Bhagwan Tukaram Dange And Tukaram ... vs The State Of Maharashtra
2004 Latest Caselaw 141 Bom

JUDGMENT

V.G. Palshikar, J.

1. Being aggrieved by the judgment and order of conviction passed on 9-3-1999 by the VI Additional Sessions Judge, Satara in Sessions case No. 11 of 1999 convicting the accused under Section 302, 498 read with 34 of IPC and sentencing them to suffer R.I. for life, the appellants have filed this appeal on the ground mentioned in the memo of appeal as also verbally canvassed by the learned counsel appearing on behalf of the accused/appellants.

2. With the assistance of the learned counsel for the defence and the learned Prosecutor we have scrutinised the evidence and have reappreciated the evidence on record.

3. The prosecution story as disclosed by the reappreciation of the evidence stated briefly is that the accused No. 1 is the husband of the victim and the accused No. 2 is the father of accused No. 1. Both of them used to ill-treat the victim for not fulfilling their financial demands and there is evidence on record to show that they were physically harassing the victim. In the night of 18th and 19th October 1998 the accused allegedly poured kerosene on the victim and set her a fire, as a result of which she was seriously burnt and was admitted to the hospital. In the hospital her dying declaration was recorded in which she squarely named the accused persons as the perperators of the crime and therefore the investigation was taken up at the end of which the accused were charge sheeted under Sections 302 read with 34 and 498 read with 34 of the IPC.

4. The prosecution has examined as many as seven witnesses and it is on the appreciation of this evidence the learned Judge came to the conclusion of guilt and consistently with this conclusion he sentenced the accused to suffer imprisonment for life under Section 302 of IPC. It is this judgment which is impugned in this appeal by the accused persons.

5. The learned counsel appearing on behalf of the accused contended that the evidence on record is insufficient to warrant conviction of the accused. According to him, there is consistent evidence of the accused pouring kerosene and putting the victim enfire. The dying declaration is not liable to be believed because in the submission of the ld. Counsel the person who has suffered 90% burn cannot be in a position to depose. The ld. prosecutor defended the judgment of conviction by saying that there is no infirmity in relying on a dying declaration particularly when there is intrinsic evidence to support the same. We have to examine these contentions in the light of our reappreciation of the evidence on record.

6. P.w.1 Satish is the medical officer, who admitted the victim in the hospital approximately at 3 a.m. on 19th October 1998. When she was admitted he found her in a condition to give statement and therefore he called police. Police recorded the dying declaration. This witness at that time examined the victim and certified that she was in a condition to give her statement. He also conducted the post martum and he has proved that the death was caused due to burns. He has stated that the victim was through out the recording of her dying declaration in sense. A certificate to that effect has been endorsed by him in the dying declaration. This therefore is the first dying declaration recorded by the police on admission of the victim in the hospital.

7. P.w.3 Suresh is another medical officer of the hospital; who was present in the hospital on 19th October 1998 around noon. He submits that around noon Executive Magistrate came to the hospital to record the dying declaration of the victim and therefore he took him to the victim. He examined the victim and found that she was conscious and was in a state of mind to give statement. He issued a certificate to that effect and has proved it in the court.

8. P.w.5 Amulkumar is the Special Executive Magistrate who recorded the dying declaration of the victim around noon on 19th October 1998. He also states that when he recorded the statement Dr. Suresh was present. He had examined the victim and told the Executive Magistrate that the victim was conscious state of mind and physique to give statement. Thereafter he recorded the statement. The statement is proved by him in the court which is at Exh.23. It bears his signature as also the endorsement of the doctor. Thus we have two dying declarations recorded as per law the first being one recorded by P.w.5 Head constable to which is attached a certificate of P.w.1 Dr. Satish. The second dying declaration is recorded around noon on 19th October 1998 by the Executive Magistrate. This certificate bears the endorsement of Dr. Suresh declaring that the victim was in a conscious condition of physique and mind to give statement or declaration which may be recorded by Executive Magistrate. We thus have on record two dying declarations of the victim recorded by two independent persons.

9. In both these declarations there is categorical statement by the victim that she was put on fire by the accused. In addition to that we have the evidence of P.w.6 who deposed previous ill-treatment by both the accused to victim. On careful consideration of this evidence, we have firmly of the view that there is no error committed by the trial court accepting the dying declarations and convicting the accused after relying on this document. The documents are prepared as required by law. There are certificates of Medical Officers attending to the effect that the patient was in conscious condition of mind and body to give declaration. In the face of such evidence there is therefore no question of interfering with the order of conviction passed by the trial Judge. In the result therefore the appeal fails and it is dismissed.