17. cri apeal (j) 481-14.doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 481 OF 2014
Vitthalsing Narayansingh Thakur ]
Age - 44 Years, Occ. - Nil, ]
residing at Tulsi Narayan Patil Chawl, ]
Room No. 1, Village Ghoddev, ]
Bhayander (E), District Thane. ]
(Confined as Convict No. C-8570, Nashik ]
Road Central Prison) ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
(At the instance of Mira Road Police ]
Station, Dist. Thane in C.R. No. I-671 of ]
2008 tried in Sessions Case No. 89/2009 ] Respondent
• Mr. Prosper D'Souza, Advocate (appointed) for the
Appellant
• Mrs. G.P. Mulekar, APP for the State
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : DECEMBER 11, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original accused against the judgment and order dated 19.11.2010 passed by the learned Sessions Judge, Thane in Sessions jfoanz vkacsjdj 1 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc Case No. 89 of 2009. By the said judgment and order, the learned Session Judge convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to suffer rigorous imprisonment for life and fine of Rs. 2,000/-, in default, R.I. for six months.
2. The prosecution case briefly stated, is as under:
(a) Deceased Chhaya was the wife of the appellant.
She was married to the appellant about 12 years prior to the incident. At the time of the incident, the appellant and Chhaya had a 4 years old daughter.
(b) The incident took place on 26.10.2008 at about 8.30 a.m. At that time, the appellant poured kerosene on his wife Chhaya and set her on fire. Chhaya was rushed to the hospital. In the hospital, Chhaya gave two dying declarations Exh.
28 and Exh. 32 wherein she implicated the jfoanz vkacsjdj 2 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc appellant. The dying declaration Exh. 28 was treated as FIR. Thereafter, investigation commenced. Meanwhile Chhaya expired in the hospital, hence, the offence was converted from Section 307 to Section 302 of IPC. After completion of investigation, the charge sheet came to be filed.
3. Charge came to be framed against the appellant - original accused under Section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence was that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, jfoanz vkacsjdj 3 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant caused the death of his wife by setting her on fire.
5. The conviction of the appellant is mainly based on two dying declarations Exh. 28 and Exh. 32. The dying declaration Exh. 28 was recorded by PW 5 Police Head Constable Telgote. PHC Telgote has stated that on 26.10.2008, he was instructed to go to Bhagwati Hospital to record the statement of one lady who has received burn injuries, hence, he went to the hospital. He inquired with the doctor in charge (PW 8 Dr. Sagaonkar) if the lady was in a position to give a statement. The doctor replied that the lady was in a position to give a statement. PHC Telgote then recorded the statement of Chhaya as per her version and obtained her thumb impression below her statement. The said statement / dying declaration is at Exh. 28. In the jfoanz vkacsjdj 4 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc statement / dying declaration, Chhaya has stated that she was married to the appellant about 12 years prior to the incident. On the day of the incident i.e on 26.10.2008 in the morning, her husband defecated in the Mori (bathroom without WC), hence, a quarrel took place between Chhaya and her husband. Chhaya then informed her landlady about the appellant defecating in the Mori. The landlady then pacified the quarrel and went away. The appellant got angry as his wife Chhaya had informed their landlady about him defecating in the Mori, hence, he poured kerosene on his wife Chhaya and set her on fire. Thereafter, he ran away.
6. PW 8 Dr. Sagaonkar has stated that he was attached to Bhagwati Hospital. On 26.10.2008, Chhaya Thakur was brought to the hospital with burn injuries. He admitted her in the burns ward. He noticed that Chhaya had sustained 90% burn injuries. On the very same day, Police came to record the statement of Chhaya. The police inquired with him whether Chhaya was in a position to give a statement. He jfoanz vkacsjdj 5 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc told the police that Chhaya was in a position to give a statement. The police then recorded the statement of injured Chhaya. Dr. Sagaonkar stated that the said statement is at Exh. 28.
7. Thereafter, PW 6 Special Executive Officer Mr. Valiyakat recorded the dying declaration (Exh. 32) of Chhaya. This dying declaration also shows that the appellant poured kerosene on Chhaya and set her on fire. Mr. D'Souza, learned Advocate for the appellant submitted that this dying declaration cannot be relied upon because there is no endorsement of the doctor on this dying declaration that Chhaya was in a position to give a statement.
As far as this aspect is concerned, it is noticed that PW 6 SEO Mr. Valiyakat has clearly stated that Chhaya was conscious and was in a position to gave a statement. The Supreme Court in the case of Laxman Vs. State of Maharashtra1 has observed as under:-
" If the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dying 1 AIR 2002 SC 2973 jfoanz vkacsjdj 6 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc declaration of the deceased thus recorded cannot be ignored merely because the doctor had not make the endorsement that the deceased was in a fit state of mind to make the statement in question." The Supreme Court further observed that :- " In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration' has been too broadly stated and is not the correct enunciation of law."
In any event, even if we exclude the dying declaration Exh. 32 from consideration, the dying declaration Exh. 28 remains. We find that we can safely rely on the dying declaration Exh. 28 which shows that the appellant poured kerosene on his wife Chhaya and set her on fire.
8. As far as both the dying declarations are concerned, Mr. D'Souza submitted that the evidence of PW 3 Darshana shows that the fingers of both the hands of Chhaya were burnt, however, both the dying declarations bear thumb impressions of Chhaya. He submitted that if all the fingers were burnt, it was not possible to take the thumb impressions of Chhaya on the dying declarations.
jfoanz vkacsjdj 7 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc As far as this submission is concerned, the evidence of PW 1 Dr. Kate shows that Chhaya had sustained 90% superficial to deep burns. It is not anybody's case that the burn on the fingers of Chhaya was so deep that she could not give a thumb impression. If there are superficial burn injuries, it is still possible to give a thumb impression. In any event, the thumb impressions on both the dying declarations are not very clear that is they do not show clear ridges. This is on account of superficial burn injuries sustained by Chhaya. It is pertinent to note that no question was put to any of the Doctors i.e PW 1 Dr. Kate or PW 8 Dr. Sagaonkar that the burn injuries on the fingers were such that it was not possible for the patient to give a thumb impression. Looking to all these facts, we see no reason to disbelieve that the dying declarations bear the thumb impressions of Chhaya.
9. In addition to the dying declarations, the prosecution has relied on the evidence of PW 3 Darshana to show that an oral dying declaration was made by Chhaya to Darshana.
jfoanz vkacsjdj 8 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc Darshana has stated that the appellant, his wife and their 5 years old daughter were living in one room in the premises of Darshana as tenants. She has stated that on 26.10.2008 at about 6.00 a.m., quarrel was going on between the appellant and his wife in their room on account of the appellant defecating in the Mori in the room occupied by them. Chhaya complained to the mother of Darshana that under the influence of liquor, the appellant had defecated in the Mori in the room occupied by Chhaya and the appellant. Darshana's mother then tried to make the appellant understand that he should not come home under the influence of liquor. Thereafter, Darshana's mother went away. At about 8.30 a.m., Darshana heard hue and cry from the room of the appellant. She then went to the room of the appellant. She saw that Chhaya was on fire. Darshana along with other neighbours extinguished the flames by pouring water. At that time, Chhaya told them that she had complained regarding her husband defecating in the Mori, hence, her husband had poured kerosene on her and set her jfoanz vkacsjdj 9 of 10 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::
17. cri apeal (j) 481-14.doc on fire.
10. The medical evidence also shows that Chhaya had sustained burn injuries. PW 1 Dr. Kate performed the postmortem on the dead body of Chhaya. He found that she had sustained 90% superficial to deep burns over her body. In his opinion, the cause of death was septicemia following 90% superficial to deep thermal burns (unnatural). The C.A. report also shows that the clothes of the deceased tested positive for kerosene residues. This further substantiate the prosecution case that the appellant had poured kerosene on his wife and thereafter, set her on fire.
11. Looking to the evidence on record, we are of the opinion that the prosecution has proved its case against the appellant beyond all reasonable doubt, hence, we find no merit in the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
jfoanz vkacsjdj 10 of 10
::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:37:33 :::