Tarabai Kamanna Bande vs The State Of Maharashtra (Notice ...
2002 Latest Caselaw 941 Bom

JUDGMENT

A.S. Aguiar, J.

1. This is an appeal by the accused in Sessions Case No. 85 of 1986 against the order of conviction and sentence under Section 302 of the I.P. Code passed by the II Additional Sessions Judge, Solapur vide order dated 3.1.1987.

2. The said order of conviction is impugned, inter alia, on the grounds, that, the Trial Court failed to appreciate and consider the evidence of the child witness Smita (P, W. 20); that there was no sufficient motive on the part of accused to have caused the death of her daughter-in-law Vanita; that the dying declaration of deceased Vanita (Exh. 24) is unbelievable as she was unconscious and it was not possible for her to have made the dying declaration.

3. Briefly, the case of the prosecution is that deceased Vanita was married to the eldest son of accused, Baswaraj Bande in the month of May, 1985 and since then she was living in the matrimonial house at Solapur with her husband. The family of the husband of the deceased comprised of his father, mother, two brothers and a small school going daughter of the sister of the husband, namely, Smita (P.W. 20) and the deceased. It appears that Vanita was not happy with the marital life and she often complained to her father, mother and maternal uncle (P.W. 4) Subhash. That, the accused used to harass her on trifle matters and she used to illtreat her. It was also grievance of the deceased that the accused, mother-in-law never allowed her to take meals till 3.00 p.m. Due to the constant complaining by Vanita to her parents and maternal .uncle, they talked to the husband and father-in-law of Vanita and requested them not to illtreat Vanita and to forgive her if she has committed any mistakes. However, even after that the attitude and behaviour of the in-laws did not change.

4. On the fateful day i.e., on 31.10.1985 at about 10.00a.m. while the accused was washing clothes in the bathroom and Vanita was cooking in the kitchen, Smita (P.W. 20} returned from the school and asked for Poha which she started eating in the kitchen. Vanita also took some bread and started eating. Seeing this, the mother-in-law got annoyed. After finishing her Poha, Smita went out of the house to play and Vanita and her mother-in-law alone were in the house. Sometime thereafter in a fit of rage the mother-in-law, accused poured kerosene on Vanita and set her on fire. A crowd gathered in front of the house on hearing the cries for help from Vanita. At about 11.30 a. m. Kisan Mane (P.W. 3), a passer-bye, attracted by the crowd came near the house and was shocked to find Vanita aflame and crying out. He took two gunny bags from the nearby shop and wrapped them around the body of Vanita and extinguished the fire. The clothes Vanita was wearing were completely burnt and she was rendered practically naked. Therefore, Kisan Mane (P, W. 3) wrapped his Dhoti around her body. A rickshaw was brought and Vanita was removed to the Civil Hospital, Solapur where, she was admitted with extensive burns on all over her body. The Hospital authorities informed the local police about Vanita's admission in hospital as a serious burning case and A.S.I. Shaikh (P.W. 13), Police Station Officer of Fauzdar (Chawdi Police Station, Solapur made entry of the information in the Station Diary which is at Exhibit 33 and directed P.C. Shinde (P.W. 14) to come to the hospital and record the statement of Vanita. The maternal uncle of Vanita, Subhash (P.W. 4) had arrived at the hospital and Vanita stated to him that her mother-in-law had poured kerosene on her person and set her on fire. Vanita's father on being informed of the incident, rushed to the hospital and on making inquiries as to how she sustained burn injuries, Vanita told him that her mother-in-law had poured kerosene on her body and set her on fire. Thereafter, Special Judicial Magistrate was called to the hospital and he recorded the dying declaration (Exhibit 24) of Vanita at about 5.00 p.m. From 5.00 p.m. to 5.20 p. m. Vanita's father lodged a report at the Police Station. Offence was registered under Section 307 of the I.P.C. Panchanama was drawn at the scene of offence and incriminating articles found in the kitchen were taken charge under the panchanama.

5. Vanita expired the next morning. The offence was converted to one under Section 302 of the I.P.C. - Inquest panchanama was made on the dead body which was then sent for postmortem examination. Burnt pieces of clothes found on the person of Vanita at the Hospital were produced by P.C. Gopinath before the P.S.O. Incriminating articles were sent to the C.A. After completion of investigation, statements were recorded and thereafter charge was filed against accused in the Court of Judicial Magistrate First Class, Court 1, Solapur. The case was thereafter committed to the Court of Sessions. Charge under Section 302 of the I.P.C. was framed against accused and was explained to her. She pleaded not guilty. The defence of accused is one of mere denial. However, she has admitted her presence in the house at the time of the incident. The accused claims that she also sustained burn injuries on her hand in an attempt to extinguish the fire. However, she has not examined any one in her defence nor examined herself as a defence witness but merely relied on the medical certificate Exh. 56 to prove injuries on her hand.

6. The learned Trial Judge in a well reasoned order held the accused guilty of murder of Vanita and sentenced her accordingly for life under Section 302 of the I.P. Code.

7. The learned Trial Judge, in appreciating the evidence, rejected the defence contention that Vanita accidentally caught fire while cooking since it has been established that residue of kerosene was found near that in the flour which Vanita was using for making Chapati. Residue of kerosene was also found on parts of clothing of Vanita. Furthermore, Vanita had suffered 100% burn injuries, a circumstance which is not consistent with the defence theory of Vanita having caught fire accidentally. The presence of kerosene in the flour and on the clothing of Vanita rules out the possibility of Vanita having caught fire accidentally. The possibility of Vanita having committed suicide is ruled out as it has been established that she was infact cooking at the relevant time and a person intending to commit suicide would not have kept herself busy but would have secluded herself for the purpose of committing suicide. Furthermore, no match stick or match box was found at the place where she was found aflame. The can of kerosene was also not found there nor in the room situated at north-east corner but it was found in the kitchen near the bathroom where admittedly the incident occurred. Thus, the learned Trial Judge has rightly come to the conclusion that Vanita died a homicidal death.

8. The only question is, who committed the act of setting Vanita on fire. The learned Trial Judge has answered the question holding that it was the mother-in-law who set Vanita on fire basing his finding primarily on Vanita's dying declarations recorded in the hospital. Three dying declarations were recorded at the hospital, namely, (i) statement made by Vanita to her maternal uncle, Subhash (P.W. 4); (ii) statement made by Vanita to Kallappa Bhimrao Adake (P.W. 5), the father of deceased Vanita; and (iii) dying declaration recorded by Harlikar, Special Executive Magistrate, Solapur (P.W. 8).

9. All the three dying declarations contain a clear statement by the deceased that it was the accused mother-in-law who set Vanita on fire. The dying declaration recorded by the Special Executive Magistrate is consistent with the statements made earlier to Subhash (P.W. 4), maternal uncle of the deceased and Kallappa (P.W. 5), father of the deceased. The learned Trial Judge has noted that there is no reason to suspect the bohajldes of the Special Executive Magistrate who recorded the dying declaration as he is a respectable person employed as a Sales Tax .Inspector. He is not just the run of the mill type of Special Executive Magistrates on the list of the police station. The endorsement on the dying declaration of Dr. Bankar (P.W. 6) who has stated in clear terms that he was present by the side of Vanita when her statement was being recorded by the Special Executive Magistrate Mr. Haralikar and that Vanita was fully conscious and in a fit condition to make a valid statement puts the dying declaration beyond the pale of suspicion. Therefore, it has to be accepted on the face of it and there is no reason to suspect or to doubt the validity of the endorsement which has been deposed to also by Dr. Bankar in his evidence before the Court. Furthermore, the dying declaration (Exhibit 24), with the endorsement by Dr. Bankar was produced by S.E.M. (P.W. 8) directly in Court while deposing before the Court and not by the police.

10. A serious challenge is thrown to the three dying declarations as, according to the defence, if the deceased had 100% burns, she could not have been in a position to speak and hence, dying declarations should not be believed.

11. It is pointed out that P.W. 4 in his cross-examination has admitted that Vanita could not say anything more than the word, "Papa" and that she could utter only monosyllables and could not utter a complete word. The learned Trial Judge has in this connection referred to the deposition of Kisan (P.W. 3} who has stated that when Vanita was admitted in the hospital, she asked for water. Further more, P.W. 4 in his cross-examination has denied that Vanita was not at all in a position to speak and that he could not understand what she said. He has also denied the suggestion that Vanita had not told him that the mother-in-law had poured kerosene on her person and set her on fire. It is pointed out that Dr. Hamase (P.W. 11) has stated that when Head Constable Shinde came to him at 1.20 p.m. for recording dying declaration of Vanita, she was not conscious and not in a position to give statement and therefore he did not allow Head Constable Shinde to put any question to her for recording her dying declaration. However, it may be noted that (P.W. 11) himself has admitted that when Vanita was brought to the hospital at 12.30 p.m. he examined her, she was conscious, fabrile and her pulse was present and all systems were normal, burn percentage was 100%. He further stated that he treated the patient and thereafter Vanita was removed to the Surgical Ward. From the sequence of events it is seen that at 12.30 p.m. when Vanita was admitted, she was conscious. She was thereafter treated at about 1,20 p.m. When P.H.C. Shinde wanted to record her statements, she was unconscious. However, at 3.00 p.m. she regained consciousness and could speak only monosyllables. As per the evidence of Dr. Hamase, when Subhash (P.W. 4) saw Vanita in the hospital she could talk to him, though with difficulty, by uttering monosyllable and later on at 5.00 p. m. when her father came to the hospital, she could talk to him more clearly. This fact is confirmed by Dr. Anil Banker (P.W. 10) who has stated that at the time of admission at about 12.30 p.m. Vanita was conscious. When she was admitted as indoor patient as, also when she was treated she was conscious, although she had 100% burns. At 5.00 p.m. when the Special Executive Magistrate wanted to record the dying declaration of Vanita, he verified her condition and found that she was conscious and was in a position to give answers and further that after her statement was recorded, Dr. Banker asked her whether the information given by her was true or not, she stated that her statement is correct and it was only thereafter Dr. Bankar made endorsement on the dying declaration (Exh. 24) Thus, all the three dying declarations were made at the time when Vanita was conscious. It is possible that after being admitted as indoor patient and being treated, Vanita might have fallen into deeper slumber and became unconscious but she regained consciousness and she made statement to her maternal uncle (P.W. 4) Subhash though with some difficulty and in monosyllables. Thereafter again when her father came at 5.00 p. m., she had regained full consciousness and was able to speak very clearly which fact has been proved by the evidence of Dr. Banker (P. W, 10). Vanita was alive till 7.30 a. m. the next morning i.e., on 1.11.1985 and died only thereafter. All the three dying declarations were made before her condition deteriorated.

12. The contention of the defence is that since Vanita had suffered burn injuries, she was infact not in a position to give long answers. This is as per the extract of evidence of Dr. Sardar (P.Ws. 9) who in his cross-examination has admitted that in case where there are burn injuries on the face and neck, the patient would not be in a position to give long answers. In his cross-examination Dr. Sardar agrees with the observations made by Dr. Modi in his book on "Medical Jurisprudence on depressive illness" at page 393. The learned Counsel appearing on behalf of the appellant quoted before us a passage under the head. "Depressive Illness" from Mody's Medical jurisdprudence. However, we find that the same is not applicable to the facts of this case as this refers to mens rea and other conditions and has nothing to do with burn cases. It would be further noted that the dying declaration recorded by the three witnesses cannot be said to be long drawn detailed statements. Although Vanita may have not been in a position to give detailed statement and could only speak in monosyllables, it is probable that the said witnesses could have gathered the gist of what she was saying in monosyllables. Similarly, the Special Executive Magistrate, after hearing the answers given by Vanita in monosyllables and disjointed sentences could have reduced them into a meaningful declaration.

13. As stated earlier, there is no reason to doubt the dying declaration recorded by Special Executive Magistrate (P.W. 8) specially in view of the fact that Dr. Bankar (P.W. 11) who was present throughout the recording of the dying declaration has testified that Vanita was able to speak and was conscious and that Special Executive Magistrate (P.W. 8) recorded dying declaration in his presence and in support thereof he made the endorsement at the foot of the dying declaration and signed the same. The learned Trial Judge has rightly accepted all the three dying declarations by giving congent reasons for accepting the same. The prosecution case, therefore, that the accused, mother-in-law of Vanita poured kerosene over Vanita and then set her on fire not only appears probable but is infact established by the three dying declarations. Furthermore, the accused herself has not denied her presence at the scene of offence. P.W. 3 has stated that she was just 10 away from the burning Vanita. Accused herself has admitted that she was present. Although accused states that she tried to put out fire, this is not supported by any evidence and the evidence of P. W, 3, categorically rules out the case of the accused that she attempted to put out the fire and in the process suffered some burn injuries on her fingers. It was P.W. 3, a mere passer-bye, who on seeing Vanita aflame rushed to the nearby shop, took out two gunny bags and smothered the flame on Vanita. Since all the clothes of Vanita were burnt and she was almost naked, he wrapped a Dhoti around her body. It was P.W. 3 who took Vanita in a rickshaw to the Hospital. Husband of Vanita, Baswaraj, who was standing outside the door was also taken by P.W. 3 to the hospital alongwith small girl (P.W. 20) who was present viz., the granddaughter of the accused. In the light of the aforesaid discussion, the evidence of child witness (P.W. 20) cannot be described as anything but that of a tutored witness.

14. Minor burn injuries were sustained by the accused on her fingers, as per medical certificate Exhibit 56. The said certificate was obtained more than 24 hours after the incident and could therefore be considered as nothing more than an attempt to cover up her unnatural behaviour viz., standing as a mere spectator while her daughter-in-law was ablaze.

15. We have heard the learned Counsel for the defence and the prosecution and gone through the evidence of the witnesses and the judgment of the Trial Court and find the same to be a well reasoned judgment which requires no interference. We accordingly uphold the order of conviction. However, looking to the age of the accused, who is 62 years at present, we recommend that the Government considers her case under Sections 432 and 436 of the Code of Criminal Procedure.

16. We therefore pass the following order :

Appeal is dismissed. The accused to surrender before the Lower Court within six weeks from the date of this order. On the accused surrendering, her bail bond to stand cancelled. Appeal disposed of.