Gopal Kisan Jadhao vs State Of Maharashtra Through ...
2002 Latest Caselaw 597 Bom

JUDGMENT

V.M. Kanade, J.

1. The Appellant is charged under Section 302 of the Indian Penal Code for having committed the murder of Annapurna by dousing her in kerosene and burning her. The Trial Court has convicted the Appellant under Section 302 of the Indian Penal Code and sentenced him to suffer R. I. for life and also a fine of Rs. 100/- in default to suffer further R. I. for 1 month.

2. The prosecution case is this, that Annapurna was the daughter of Mankarnabai w/o Ukarda Sonone and was residing in Ambedkar Nagar, Akola. In January, 1996, she was residing in the same locality with her two daughters and husband. Deceased Annapurna though was married, was residing with her mother as she had come from her matrimonial house on account of illness. Annapurna's husband used to reside at Khamgaon.

3. The case of the prosecution is that the appellant/accused Gopal Kisan Jadhao was also the resident of the same locality. He had a sister-in-law viz. Mangala. Deceased Annapurna used to work as a domestic servant and earn Rs. 500/- per month. It is the case of the prosecution that on 8.1.1996 Annapurna was not feeling well and, therefore, she was at home for the whole day. Her father Ukarda Sonone was out of station and her mother Mankarnabai and sister Gokarnabai had left the house to attend to their duties. In the evening when Mankarnabai came home, she found that Annapurna had sustained burn injuries. Thereafter, complainant Mankarnabai tried to rescue Annapurna and at that time deceased Annapurna told her mother that accused Gopal had poured kerosene on her person and set her on fire by means of a match stick.

4. It is the further case of the prosecution that prior to the incident in the afternoon on the same day, there was a quarrel between Annapurna and the sister-in-law of the accused and it was on account of the said quarrel that accused Gopal went to the house of deceased Annapurna, poured kerosene which was in the house on the person of Annapurna and set her on fire. Further case of the prosecution is that Mankarnabai then brought Annapurna to Akola General Hospital. Thereafter, she was admitted there and medical treatment was given to her.

5. It is the case of the prosecution that Dadarao Chuddappa (P. W. 3) who was the night officer attached to the Police Station, Civil Lines, Akola, received the message at about 1.40 a. m. on 9.1.1996 from Head Constable Nilesh that it was necessary to record dying declaration of Annapurna and thereafter the Police Constable Nilesh tendered the dying declaration of Annapurna to Dadarao Chuddappa (P. W. 3} and thereafter crime was registered as Crime No. 18/96 under Section 307 of the Indian Penal Code against the accused. P. S. I. Dadarao Chuddappa drew the First Information Report on the basis of the dying declaration and started the investigation.

6. It is the case of the prosecution that in the morning P. S. I. Chuddapa (P. W. 3) visited the spot and thereafter at about 18.00 a. m. he handed over the case papers to P. Section 1. Sunil Boride and the further investigation was carried out by the said P. S. I. Sunil Bonde. It is the further contention of the prosecution that in the night itself P. W. 6 Sakharam Lakkewar Executive Magistrate had recorded the dying declaration of injured Annapurna in presence of Dr. Ranjeet Patil. Thereafter on the next day, Annapurna expired in the Hospital and on her death Section 302 of the Indian Penal Code was added to Crime No. 18/96. The post-mortem was conducted and the charge-sheet was filed against the accused. The Sessions Court framed charge of the offence under Section 302 of the Indian Penal Code. The accused pleaded not guilty to the said charge. In the Trial Court, the prosecution examined 6 witnesses. The prosecution has examined P. W.1 Niwritti Gawai as a panch witness. Mankarnabai the mother of the deceased was examined as P.W. 2 who stated that the deceased Annapurna told her that accused Gopal poured kerosene on her person and set her on fire. P. W. 3 Dadasaheb Chudappa is an Investigating Officer. P. W. 4 Sunil Bonde was also examined as he carried out further investigation. P. W. 5 Dr. Ranjit Patil was examined in whose presence dying declaration was recorded and P. W. 6 Sakharam Lakkewar was examined as he was the Executive Magistrate who recorded dying declaration of deceased Annapurna. The accused examined defence witness Dr. Dipak Laxmanrao Mankar who was the Head of the Burns Ward where the deceased Annapurna was admitted on 8.1.96.

7. The learned Trial Court after perusing the evidence on record relied upon the statement of Mankarnabai the mother of the deceased Annapurna, as also on the dying declaration which was recorded by the Executive Magistrate in presence of Dr. Ranjit Patil who had certified that the patient was in a fit state to give dying declaration. The appellant was convicted under Section 302 of the Indian Penal Code and sentenced to suffer R. I for life. The appellant is challenging the said Judgment in this appeal.

8. We have heard Shri M. R. Daga, learned Advocate for the appellant. He has taken us through the evidence adduced by the prosecution so also the Judgment and order passed by the learned Trial Court. We have also heard the learned A. P. P. for the respondent.

9. Shri M. R. Daga, learned Counsel appearing on behalf of the appellant/accused firstly submitted that there was a discrepancy in respect of the time at which the said incident took place. He has stated that in the First Information Report the police has mentioned the time of occurrence as 20.05 hours. Similarly, in the preliminary report of the crime Exh. 23, the time of occurrence has been mentioned as 20.00 hours. He further submitted that P. W. 2 Mankarnabai in her evidence has stated that she reached home at about 6.00 p. m. in the evening. The deceased in oral dying declaration has stated that the incident happened at 5 to 5.30 in the evening. He submitted that in view of this discrepancy about the time at which the said incident has taken place, the evidence of P. W. 2 Mankarnabai cannot be relied upon. He submitted that from the said discrepancy, the dying declaration which is recorded by the Police and also by the Executive Magistrate had become doubtful. This submission of Shri Daga, cannot be accepted. The Police Constable who has recorded the said time, in his cross-examination has clearly mentioned that the time of occurrence of incident was wrongly mentioned by him as 20.05 hours. He has also admitted that in the dying declaration Exh. 22, the time of occurrence of incident was mentioned as 5 to 5.30 p. m. He has further stated that he did not feel it necessary to correct the time mentioned in Exhs. 21 and 23. From the said deposition of P. W. 4 Sunil Bonde Investigating Officer, it is clear that the time of occurrence was inadvertently mentioned as 20.05 hours and, therefore, it was a genuine mistake made by the said Investigating Officer which he has admitted in his cross-examination. The defence, therefore, cannot be permitted to take advantage of the said mistake. In our view, therefore, the said submission of Mr. Daga cannot be accepted.

10. Shri Daga, learned Counsel appearing on behalf of the appellant/ accused further submitted that the death of Annapurna was not homicidal but it was a suicidal death. He submitted that the defence has examined Dr. Mankar who was the Incharge of the Burns Department in Akola General Hospital. He submitted that the bed head ticket dtd. 8.1.96 was proved by the said Doctor and the Trial Court has exhibited the said document as Exh. 42. He submitted that in the said document, it has been mentioned that while recording the case history of the patient, it is mentioned that the patient had poured kerosene on her own and got burnt at 6.30 p. m. He submitted that in view of this evidence which is brought on record by the defence, it was crystal clear that deceased Annapurna had committed suicide. He submitted that so far as the evidence of P. W. 2 Mankarnabai is concerned, from her evidence it is brought on record that she was with her daughter till she died on the next day and thus Mankarnabai had ample time at her disposal for tutoring the deceased and as a result of the said tutoring deceased Annapurna had taken the name of the accused Gopal in her dying declaration. He submitted that under these circumstances in view of the said Exh. 42, the evidence of P. W. 2 Mankarnabai and the two dying declarations will have to be discarded and the benefit of doubt, therefore, should be shown in favour of the accused.

11. Shri Mirza, learned A. P. P. appearing on behalf of the State, opposed the said submission of Shri Daga. He submitted that Exh. 42 has not been proved by the witness. He submitted that therefore the said document cannot be read in evidence though it has been wrongly exhibited by the learned Trial Court. He submitted that so far as P. W. 2 Mankarnabai is concerned, she had no reason for tutoring deceased Annapurna, He further submitted that no suggestion has been put to P. W. 2 Mankarnabai that her daughter committed suicide. The contention of Shri Daga, learned Counsel appearing on behalf of the appellant, in respect of the theory of suicide by Annapurna, cannot be accepted. In the first place, so far as Exh. 42 is concerned, the said document and especially the portion recording the history of the patient has not been proved by Dr. Mankar. Dr. Mankar, in his examination-in-chief, has specifically stated that he is not in a position to recognize as to who is the author of the said statement. He has further stated that the name of Dr. S. L. Tayade is mentioned in the bed head ticket. He does not know the hand writing of Dr. Tayade nor could he identify the handwriting of Dr. Tayade. Thus, the crucial portion on the said document which is bed head ticket in which it is mentioned that the patient had poured kerosene on herself and had got burnt, has not been proved. In our view, the only portion of Exh. 42 which is proved is that where Dr. Mankar has acknowledged that there were 84% burns. It must be mentioned here that even the Trial Court has recorded objection taken by the prosecution to mark bed head ticket as Exhibit on the ground that the entry dtd. 8.1.96 was not in the handwriting of Dr. Mankar nor Dr. Mankar had identified the handwriting of the writer and, therefore, he had no personal knowledge about the said fact. The Trial Court had reserved the objection of A. P. P. and marked document for identification as Exh. 42.

12. Thereafter, the learned Trial Court has exhibited the document as Exh. 42 since the questions were asked in respect of the said document in the cross-examination. In our view, the said portion that "taking kerosene on her own and got burnt at 6.30 p. m." has not been proved by the said witness Dr. Mankar as he has not identified the handwriting of the writer and the said writing is not in his own handwriting and that he has no personal knowledge about the said handwriting. It is a settled position of law that a document can be read in evidence only if the maker of the document identifies it or if the document is written and signed in presence of the witness or he has personal knowledge about the handwriting of the maker in which circumstances, the contents of the document can be proved. In the instant case, in our view, the said portion has not been proved by this witness Dr. Mankar and, therefore, no reliance can be placed on the said document. The defence also has not examined Dr. Tayade whose name appears on the said document which is exhibited as Exh. 42. The submission of Shri Daga, learned Counsel appearing on behalf of the appellant, therefore, in respect of the theory of suicide on the basis of the said Exh. 42, cannot be accepted. In our view, in view of the dying declaration recorded by the Executive Magistrate and oral dying declaration given by deceased Annapurna to her mother P. W. 2 Mankarnabai as also the oral dying declaration which deceased Annapurna had given to the Police Officer who recorded her F. I. R. Exh. 21, the prosecution has proved that the death of deceased Annapurna was a homicidal death.

13. The next question, therefore, which falls for our consideration is whether the appellant/accused Gopal was responsible for having committed murder of deceased Annapurna. P. W. 2 Mankarnabai has stated that her daughter informed her that accused Gopal had come to their house and had poured kerosene on her person and set her on fire. P. W. 3 Dadarao Chuddappa in his evidence has stated that the Police Constable Nilesh who was attached to the Police Chowki in the Hospital, came to the Police Station and tendered the dying declaration of Annapurna. Even in the said statement, deceased Annapurna has categorically stated that accused Gopal poured kerosene on her and set her on fire with a match stick.

Coupled with this statement, another dying declaration was also recorded by the Executive Magistrate. P. W. 6 Sakharam Lakkewar has stated in his evidence that he was working as a Naib Tahsildar an also as a Executive Magistrate. He has stated that he is empowered to work as an Executive Magistrate to record the dying declaration. He further stated that he received a requisition on 18.1.1996 Exh. 31 for the purpose of recording the dying declaration. Thereafter, he issued a letter to the Doctor requesting him to examine the patient in order to ascertain whether the patient was in a position to give statement. That requisition was issued by him in his handwriting which is Exh. 22. The concerned Doctor examined the patient Annapurna and certified that she was mentally in a fit condition to give statement and made an endorsement to that effect Dr. P. W. 5 was present while statement of deceased was recorded which is exhibited at Exh. 22-A. He has further stated that he also personally ascertained whether the patient Annapurna was able to give her statement and after that he recorded the dying declaration and obtained her thumb mark on the dying declaration. The testimony of this witness was not shaken in the cross-examination. In our view, this evidence is sufficient to hold that the appellant/accused Gopal had committed the murder of deceased Annapurna by setting her on fire after dousing her in kerosene. The Apex Court in a recent Judgment in the case of Shambhu v. State of Madhya Pradesh , held that once the Doctor has certified that the deceased was in a fit state to make a statement and the deceased making the statement has stated that the accused had poured kerosene on her and had set her on fire, this evidence was sufficient for the purpose of convicting the accused. The Apex Court has further observed in paras 10 and 11 as follows :

10. It is also mentioned in the dying declaration that it was recorded in Ward No. 8 of M. Y. Hospital and the attestation by the doctor that the complainant was in a fit state to make the statement was taken prior to making the statement and that no other Police Officer or anybody else was present at the time of making such dying declaration.

11. The Sessions Judge disbelieved the dying declaration on flimsy grounds based on irrelevant considerations. Whether the Executive Magistrate reached the hospital in a scooter or any other conveyance or whether the Magistrate had noted the percentage of burn injuries on the body of the deceased are irrelevant matters which should not have weighed with the Sessions Judge in disbelieving the dying declaration.

14. In our view, the Trial Court has, therefore, rightly relied on the said dying declaration which has been corroborated by the testimony of P. W. 2 Mankarnabai. We have, therefore, no hesitation to hold that the appellant herein has committed murder of deceased Annapurna.

15. In the result, the appeal is dismissed.