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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 25 OF 2016
Sanajy Manohar Dhole,
aged 40 years, Occupation
Service, r/o Vasant Building,
Room No.9, BARC Colony,
Trome, Mumbai. ... APPELLANT
VERSUS
The State of Maharashtr,
through PSO, Karanja (G),
Tah. Karanja, District Wardha. ... RESPONDENT
....
Shri Mir Nagman Ali, Advocate with Shri H.J. Jha, Advocate for the appellant.
Shri T.A. Mirza, Additional Public Prosecutor for the respondent.
....
CORAM : PRASANNA B. VARALE AND
ARUN D. UPADHYE, JJ.
DATED : 09TH NOVEMBER, 2017.
ORAL JUDGMENT : (Per Prasanna B. Varale, J.) By way of present appeal, the appellant/original accused is challenging the judgment and order dated 01st January, 2016 passed by the learned Additional Sessions Judge, Wardha in Sessions Case of No. 91 of 2011 thereby convicting the appellant for commission of the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life along with fine of Rs.10,000/-, in default of payment of fine, to suffer rigorous imprisonment for six months. The case of the prosecution is unfolded through the dying declaration of the victim namely Anita, wife of the appellant. There are three dying declarations of the victim ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 2 apeal25.16 and we may deal with these dying declarations later on.
2. Victim Anita was admitted to Suretech Hospital, Nagpur, a private hospital due to burn injuries. In the statement recorded by Head Constable Mushtaq attached to Police Station, Dhantoli, Nagpur, Anita was working as a staff nurse attached to the Rural Hospital, Karanja Ghadge. The government quarter was allotted to her. The appellant/accused was working as a Technician in Bhabha Atomic Research Center at Tarapur, Mumbai. The couple was blessed with a daughter namely Sejal. At the time of incident, Sejal was about eight years of age. As the victim Anita was working as a staff nurse and was allotted government quarter, she was residing at Karanja Ghadge with her daughter; whereas the appellant/accused used to visit his family. As it was difficult for the victim to take care of her daughter being government employee, she sought help of her father and her father used to take care of minor daughter, while the victim was attending her duties. The appellant/accused used to ill treat the victim for demand of money and raising suspicion over the character of the victim. The appellant/accused was addicted to vices of liquor.
3. On the fateful day i.e. 06th November, 2010, the victim Anita left her house to attend duty at about 02:00 p.m. Though normally her duty hours are till 08:00 p.m., as her reliever reported the duty late, the victim reached the house at about 09:30 p.m. The appellant/accused picked up the quarrel on account of her late arrival and raised suspicion over her character. The kerosene was stored in the bottle as an alternate arrangement in case of ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 3 apeal25.16 failure of electric supply. The appellant/accused by pouring kerosene on the person of victim, set her on fire with the matchstick. Though the victim raised hue and cry, due to night hours, no help was available to her. The victim was subjected to burn injuries on her face, upper part of body, hands and legs. The appellant/accused then poured water on her and gave her threats not to disclose the incident to anybody. The victim then made phone call to Medical Officer and also one Nilesh Gajanan Chafle. Initially she was admitted in Rural Hospital, Karanja and then was shifted to the private hospital i.e. Suretech Hospital, Nagpur. On 07.11.2010, on receiving the information from Suretech Hospital, Head Constable Mushtaq visited the Suretech Hospital and recorded the statement of victim. On 08.11.2010, PSI Meshram attached to Police Station Karanja Rural, visited Nagpur and issued letter to Executive Magistrate, Nagpur Shri Sanjay Hardas to record the statement of victim. Executive Magistrate Hardas, by visiting Suretech Hospital, Nagpur on 08.11.2010 at about 11:30 a.m., recorded her statement. On receipt of statement recorded by Executive Magistrate to Police Station, Karanja Rural, Crime No. 172/2010 was registered against the appellant/ accused initially under Section 307 of the Indian Penal Code.
4. On 11.11.2010, Dhantoli Police Station, Nagpur received intimation from Suretech Hospital that patient Anita died during treatment. Marg No. 00/2010 came to be registered by the Police Station, Dhantoli, Nagpur. Inquest Panchnama prepared at the hands of police official attached to Dhantoli Police Station. The dead body was referred to postmortem examination. The Police Station, Dhantoli, Nagpur, on ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 4 apeal25.16 receiving the documents namely death certificate and death summary, forwarded the same to Karanja Rural Police Station. On receiving these papers, Karanja Rural Police Station added Section 302 of the Indian Penal Code. The investigating agency was set in motion. Necessary formalities were completed, such as, recording the statements of witnesses, seizure of material, forwarding the seized muddemal property to Chemical Analyser, collecting the Chemical Analyser's report. On completing the investigation, charge sheet was submitted before the learned Judicial Magistrate, First Class, Karanja (G). The offence being exclusively triable by Court of Session, case was committed to the Sessions Court, Wardha. The accused pleaded not guilty and claimed for trial. To bring home the guilt of accused, the prosecution examined as many as eight witnesses and submitted its case through the oral evidence as well as the documentary evidence. On assessing the evidence, the learned Sessions Judge held the accused guilty of commission of offence under Section 302 of the Indian Penal Code and awarded punishment referred to above.
5. Shri Ali, the learned Counsel appearing on behalf of the appellant submits that though the prosecution submits that there are as many as three dying declarations, none of these dying declarations satisfies the test and these dying declarations suffer from infirmities and contradiction to each other. Thus the submission of Shri Ali is that no reliance can be placed on these dying declarations and the same ought to have been kept out of consideration and the conviction and sentence awarded to the appellant is unsustainable and the appellant be acquitted. The next submission of Shri ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 5 apeal25.16 Ali is that though the trial Court accepted the oral version of PW-5 Sejal i.e. daughter of appellant and the victim, the witness PW-5 is a child witness and there is enough material to say that the possibility of tutoring the witness could not have been ruled out. He further submits that it is the consistent view of this Court and the Apex Court that the version of child witness is to be considered with care and caution as these witnesses are proven to be tutoring.
6. Shri Ali, the learned Counsel for the appellant led heavy attack on the dying declaration (Exh.32) recorded by the Head Constable Mushtaq on the ground that Head Constable Mushtaq failed to obtain the certificate of fitness of the patient from the doctor and as the dying declaration is silent on this aspect, this dying declaration cannot be accepted. The learned Counsel then submits that though the alleged first dying declaration was recorded on 07.11.2010, no first information report was registered and the FIR was registered only after recording the second and third dying declarations. The delay in registration of the FIR makes the prosecution case doubtful is the submission of Shri Ali. He then submits that there are contradictions between the alleged dying declaration and the version of the witness PW-5 Sejal. The learned Counsel also submits that there is an ambiguity on the aspect of the alleged spot of incident as the witness refers that the incident took place in the room; whereas the spot of incident is shown in the spot panchnama in front of bathroom. Shri Ali, the learned Counsel, in alternate, submits that the evidence shows that there was a quarrel between the victim and the accused on the fateful day. He submits that it was alleged against the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 6 apeal25.16 appellant/accused that he raised doubt about the intention of the paternal members of victim in a property transaction. It is the submission of Shri Ali that as all of a sudden quarrel took place and in heat of passion, the appellant/accused though allegedly set the victim on fire, he then poured water on the victim and he himself shifted the victim to the hospital for treatment. Thus it is the submission of Shri Ali that the appellant was not carrying any intention and the act of the appellant was not the result of premeditation but it was an act of sudden provocation. The learned Counsel thus submits that the conviction and sentence awarded to the appellant for commission of an offence under Section 302 of the Indian Penal Code is unsustainable.
7. Shri Ali, the learned Counsel for the appellant, in support of his submission, places heavy reliance on the judgments in the cases of Ashok Govinda Borse .v. State of Maharashtra (reported in 2009 All MR (Cri) 148); The State of Maharashtra .v. Bhairavnath Mahadeo Shilimkar and others (reported in 1997 Bom CR (Cri), 610); Shaikh Bakshn and others .v. State of Maharashtra (reported in 2007 DGLS (SC), 780); Sunil Kashinath Raimale .v. State of Maharashtra (reported in 2006 All MR (Cri), 1117); Manil Vanaji Gawali .v. The State of Maharashtra (reported in 2013 All MR (Cri), 1766); Ashok Vitthalrao Chahande .v. State of Maharashtra (reported in 2017 All MR (Cri)m, 1949); Shantilal @ Lakhan Purandar Kamble .v. The State of Maharashtra (reported in 2016 All MR (Cri), 3453); Patiram Sadhu Sakharwade .v. State of Maharashtra (reported in 2003 All MR (Cri), 1296); and Subhash Tikaram Madhav .v. The State of Maharashtra (reported in ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 7 apeal25.16 2017 All MR (Cri), 2240).
8. Shri Mirza, the learned Additional Public Prosecutor appearing on behalf of the respondent/State supports the judgment and order challenged in the instant appeal and submits that no error is committed by the learned Sessions Judge, Wardha in convicting and sentencing the appellant by awarding him a proper punishment.
9. In view of the rival submissions, we have gone through the evidence. Exh.32 is the dying declaration which is first in point of time. This dying declaration is recorded by PW-1 Mushtaq on 07.11.2010. In this dying declaration, the victim by referring to her matrimonial status, the status being employees, of victim and the appellant/accused, states about the incident. She specifically states that the appellant/accused picked up the quarrel with her when she came at about 09:30 p.m., at her house on raising suspicion over her character, he poured kerosene on her person and set her on fire. She then states about the act of the appellant/accused by pouring water on her person and giving threats and then she states about giving an intimation of the incident to the medical officer and one of her acquaintances Nilesh Gajanan Chafle through mobile phone. PW-1 Mushtaq who is examined as PW-1 to prove the dying declaration (Exh.32), gives the detail account of receiving information that one patient admitted to Suretech Hospital had received the burn injuries. Then he states that he reached the hospital and found that the victim was in ICU and confirmed the fact of Anita being admitted in ICU through Medical Officer and also issued a letter to the ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 8 apeal25.16 concerned officer for recording the statement. He ascertained from the Medical Officer that the patient was in fit condition to give statement. Though Shri Ali, the learned Counsel for the appellant led heavy attack on the dying declaration on the ground that it is unacceptable, it is the submission of Shri Ali that there is no endorsement of the medical officer that the patient was in fit condition to record statement. It is also submitted by him that the statement was not read over to the victim. We find that PW-1 Mushtaq ascertained the fit physical condition of the victim for recording the statement from the medical officer and this finds place in his oral evidence. Though the suggestion was given to this witness that the patient was not in a fit condition, he flatly denied the suggestion. It is also an attempt of Shri Ali to submit before us that as the family members of the victim were present near the victim, possibility of tutoring cannot be ruled out.
10. We are unable to accept the aforesaid submission of Shri Ali, the learned Counsel for the appellant for the reason that in the version of PW-1 Mushtaq, it is clear that the victim was in ICU when the statement was recorded by PW-1 and in the ICU while the statement was being recorded, no relative of the patient was present. The only persons present were the medical officer and PW-1. Merely because the relatives who were present in the hospital, one cannot jump to the conclusion that while recording the dying declaration, the victim was tutored. It was natural for those relatives to rush to the hospital on receiving the intimation.
11. The second dying declaration is recorded by the Executive ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 9 apeal25.16 Magistrate PW-2 Sanjay Hardas. Shri Ali, the learned Counsel makes an attempt to submit that the second dying declaration is also unacceptable as there is no reference in the dying declaration about the completion of recording the same, it only refers to the timing of initiation of recording dying declaration. It is also an attempt made by the learned Counsel to submit that in the second dying declaration, there is no reference of raising the doubts on the character of the victim by the appellant/accused. Thus, it is submitted by Shri Ali that there is a contradiction in two dying declarations namely first dying declaration and second dying declaration. On going through the dying declarations proved through PW-2 Sanjay Hardas, we find that in these dying declarations also the victim states that the appellant used to suspect the character and on that count he was picking up quarrels. Thus, we find no serious lacuna in any of these dying declarations. Both these dying declarations proved by PW-1 and PW-2 respectively satisfy the test as laid down by various judgments of this Court and the Apex Court.
12. Shri Ali, the learned Counsel for the appellant led heavy attack on the version of PW-5 Sejal. He makes an attempt to submit before us that the witness Sejal was in the company of her grandfather and grandmother. He further submits that on the day of incident also, the grandfather of the witness was present in the house till arrival of the appellant/accused. The learned Counsel also submits that the witness PW-5 Sejal states that the grandfather was carrying a grudge against the appellant/accused and the grandfather and accused were not seeing each other eye to eye. Thus, it is the submission of Shri Ali that the relations between the appellant/accused ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 10 apeal25.16 and his in laws were strained and as PW-5 Sejal was in company of her grand parents, the possibility of tutoring cannot be ruled out.
13. On perusal of the version of aforesaid witness, we find that PW-5 Sejal was of 14 years of age when her evidence was recorded. She was studying in IX standard at the relevant time. On a careful scrutiny of version of Sejal, we find that her version is truthful account and merely for some minor omissions, the version of this witness which is otherwise truthful and unshaken cannot be turned down only on the ground that the witness is a child witness. PW-6 is one Dr. Geeta Dixit who proves the intimation of admission of victim forwarded to Police Station, Karanja and also the death certificate issued by the Suretech Hospital, Nagpur. The postmortem is admitted by the defence. The same is Exh.58. The cause of death is shown as, "Septicemia due to burns", the affected parts of the body to burn injuries are referred to in column No.17 and it reveals that the victim suffered 57 per cent burn injuries. Column 17 reads thus -
"Infected mixed dermo epidermal burn injuries present over body with evidence of singing of scalp hairs, eye brown, eye lashes and pubic hairs.
Surface area of burns -
(1) Head, neck and face - 05%
(2) Trunk Anterior - 16% ) Lower part
posterior - 16% ) spared.
(3) Upper limbs Right - 06% ) Posterior aspect of
Left - 08% ) forearm spared.
(4) Lower limbs Right - 2.5%) Anterior aspect of
Left - 2.5%) thighs involved.
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(5) Genitalia - 01%
______
Total - 57%
______
Thus this certificate along with the dying declaration refers to establish the case of the prosecution that the victim Anita died homicidal death.
14. Dr. Rushikesh Pathak who issued postmortem report is also examined. Though Shri Ali, the learned Counsel makes an attempt to submit before us that it raises a doubt whether the incident took place on the spot as alleged by the prosecution, on perusal of the material namely the spot panchnama and the oral evidence of PW-5 Sejal, we are unable to accept the submission of Shri Ali. The incident of the victim setting on fire took place in one of the rooms of the official quarter allotted to the victim. Though Shri Ali makes an attempt to submit that there is variance in the version as to the incident of taking place in the room or in front of bathroom, as stated above, considering the spot panchnama and the version of PW-5, we do not find that it is of such nature which would make the prosecution case unbelievable. It is also an attempt of Shri Ali to submit that though the dying declaration was recorded on 07th November, 2010 itself, the FIR was registered after recording of second and third dying declarations and the delay is unexplained. As such, the prosecution case is unacceptable, we are unable to accept this submission also for the reason that merely because there is some lapse on the part of the investigating agency by itself the case of ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 12 apeal25.16 the prosecution which is otherwise proved against the appellant/accused through the clinching evidence in the form of dying declarations cannot be thrown out.
15. Thus, taking into consideration the evidence brought by the prosecution, in our opinion, the prosecution has established that the death of victim was of homicidal death and the accused is the author of crime. We find merit in the alternate submission of Shri Ali that the case of the prosecution against the accused may not stand for commission of offence under Section 302 of the Indian Penal Code. The learned Counsel is justified in submitting on the basis of evidence namely the dying declarations and the oral version of PW-5, it is clear in the evidence that the accused though set the victim on fire and then poured water on the victim. It is also the part of evidence that the accused then shifted the victim to Rural Hospital on two wheeler. There is also merit in the submission of Shri Ali that a quarrel took place between the couple and it prompted the appellant/accused to take an extreme step. The learned Counsel is also justified in placing reliance on the judgment of this Court in the case of Subhash Tikaram Jadhav .v. The State of Maharashtra (cited supra).
16. Considering these facts, we are of the opinion that the case against the appellant/accused would fall under Section 304 Part II of the Indian Penal Code, hence, we alter the conviction of the appellant from Section 302 of the Indian Penal Code to Section 304-II of the Indian Penal Code. In our opinion, rigorous imprisonment of 8 years with fine already ::: Uploaded on - 13/11/2017 ::: Downloaded on - 14/11/2017 01:25:17 ::: 13 apeal25.16 imposed by the learned Sessions Judge of Rs.10,000/-, in default, R.I. for further three months would meet the ends of justice.
17. The conviction and sentence imposed by the learned Additional Sessions Judge, Wardha by judgment and order dated 01st January, 2016 passed in Sessions Case No. 91 of 2011 is accordingly modified.
18. Appeal is partly allowed to the aforesaid extent.
JUDGE JUDGE
*rrg.
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