Shashikant Shankar Patne vs State Of Maharashtra
2004 Latest Caselaw 193 Bom

JUDGMENT

P.V. Kakade, J.

1. The appellant has preferred this appeal against the judgment and order dated 10.1.2000 passed by the Sessions Judge, Satara in Sessions Case No. 134 of 1999 wherein the appellant was convicted for offence punishable under Section 302 of the I.P.C. and was sentenced to suffer life imprisonment and to pay fine of Rs. 1,000/- in default to undergo R.I. for three months.

2. The facts giving rise to the present case, in brief, are thus--

The accused is the resident of Karad. He had married to one Malan who died because of burn injuries previously, therefore, he solemnized his second marriage with deceased Sanjivani. He was living with his children and wife. He always used to quarrel with her after drinking liquor. On the date of the incident i.e., on 18.4.1999 he was in drunken condition and picked up quarrel with his wife at 5.00 p.m. At that time, daughter Rupali (P.W. 2) was playing outside the house. She was sent to call her maternal uncle Shiva (P.W. 3). He arrived at the spot of the incident and saw that the accused had been quarrelling with his wife and he had poured kerosene on her person. The accused then took match-box and lighted match-stick and threw it on the person of his wife and consequently she sustained burn injuries.

The accused and Shiva took her to the Cottage Hospital, Karad, for medical treatment at about 7.05 p.m. Dr. Chivate (P.W. 6), medical officer on duty, started medical treatment. He also recorded the history of the incident as given by Sanjivani who disclosed that it was her husband who had set her on fire. The medical officer informed the police. Police Head Constable Tukaram (P.W. 8) visited the Cottage Hospital at about 11.05 p.m. and recorded the F.I.R. wherein deceased Sanjivani also disclosed him that it was her husband who set her on fire by pouring kerosene upon her. On the basis of the F.I.R., offence was registered at C.R. No. 94 of 1999 punishable under Section 307 of the I.P.C. at City Police Station, Karad. Sanjivani was then transferred to Civil Hospital, Satara for the purpose of medical treatment where she succumbed to her injury. Dr. Marulkar (P.W. 9) had effected the autopsy on the dead body and post-mortem report was duly submitted to the police. According to the report, Sanjivani sustained 85% burn injuries and she died as a result of those burn injuries. Doctor also opined that burn injuries were sufficient in the ordinary course of nature to cause death. He also recorded the death as homicidal on the case paper.

3. The offence was converted into 302 of the I.P.C. against the accused. The investigating officer visited the spot of incident and drew spot panchnama. Inquest panchnama was held and the body was sent for post-mortem examination whose report is part of the record. It is also clear from the record that Head Constable Ankushe tried to record the dying declaration of Sanjivani through Executive Magistrate but could not be done due to non-availability of Executive Magistrate and entry to that effect is made in the station diary vide Exh. 15. Statements of witnesses were recorded and incriminating articles seized in the course of title investigation were sent to C.A. for examination whose report was received and is part of the record. On completion of the investigation, the charge-sheet was sent to the Court of law. The learned Magistrate committed the case to the Court of Sessions.

4. The learned Sessions Judge, Satara framed charge against the accused for the impugned offence to which he pleaded not guilty. Defence of the accused is that of total denial of any criminal liability. According to the Sessions Judge, it was a homicidal death suffered by Sanjivani. Prosecution led its evidence at length on which basis the learned trial Judge came to the conclusion that the evidence on record is sufficient to bring home the guilt and accordingly recorded the order of the conviction and severe sentence against the accused in aforesaid manner. Hence the appeal.

5. We have heard Mr. A.P. Mundargi for the appellant and Mrs. Kejariwal, learned A.P.P. for the State. We have also perused the entire evidence on record.

6. As can be seen from the evidence on record, it is the case based on two dying declarations besides evidence of various witnesses providing corroboration to the dying declarations.

The evidence of Dr. Chiyate, medical officer of Cottage Hospital, Karad, shows that on 19.4.1999 he was on duty. At about 7.15 p.m. on 18.4.1999 patient Sanjivani Patne was admitted in the hospital with burn injuries. He examined her and found that there were burn injuries all over her body to the extent of 72%. Accordingly he prepared case paper. The patient also gave history stating that burn injuries were caused by her husband by pouring kerosene over her person at about 7.15 p.m. at Mangalwar Peth, Karad. At the time of recording history, as per Dr. Chivate's evidence, Sanjivani was conscious and well oriented. She was responding to verbal commands. There was smell of kerosene. Even her hair were wet due to kerosene. The medical treatment was given to her and the patient was transferred to Krishna Hospital at Karad at about 8.30 p.m. but was again brought by the relatives to the Cottage Hospital at 10.30 p.m. At 10.45 p.m. he informed his superiors to arrange for recording dying declaration of Sanjivani and, therefore, police were informed to record dying declaration. At 12.30 a.m. during the night, the patient was transferred to Civil Hospital, Satara, for further treatment. According to Dr. Chivate, Sanjivani was also in a position to talk and give statement during the period from 10.30 p.m. to 12.30 a.m. during the night.

This version of Dr. Chivate is corroborated by case history record Exh. 30 wherein it is clearly stated that patient had given history of homicidal burn by her husband by pouring kerosene upon her at 7.00 p.m. at Karad, Mangalwar Peth. It was observed that patient was conscious and well oriented and cooperative and was responding to verbal commands. Therefore, there is absolutely no doubt whatsoever that the history recorded by Dr. Chivate, duly proved by his evidence, was first in time immediately after the patient was brought to the hospital and, therefore, amounts to first dying declaration of Sanjivani which was totally unblemished by any tutoring or any such element.

7. The second dying declaration comes in the form of F.I.R. P.W. 8 Tukaram, Police Head Constable attached to Karad Police Station had stated that Head Constable Ankushe directed him to record dying declaration of Sanjivani on receipt of the information. When he went to the hospital, he saw that Dr. Chivate was present and he obtained information to the effect that Sanjivani was in fit condition to give her dying declaration at about 11.00 p.m. The witness also saw that patient was in speaking condition, therefore, he proceeded to record the dying declaration which is at Exh. 31. Perusal of Exh. 31 shows that Sanjivani had stated that it was accused--her husband who had poured kerosene on her person and set her on fire. According to her, she was subjected to such treatment by accused because he suspected her chastity. This dying declaration was recorded in the presence of Dr. Chivate as he has testified to. Moreover, P.W. 8 has also categorically stated that while he recorded the statement Exh. 32, Dr. Chivate was present throughout the time and after recording the statement he obtained thumb mark of Sanjivani below it and then obtained signature of the medical officer upon the same. It was submitted on behalf of the appellant that doctor has not certified that patient was conscious and was in a position to give statement at Exh. 32 and, therefore, the dying declaration Exh. 32 becomes doubtful However, in our view, mere absence of endorsement of doctor to that effect in this case, would not be a material lacuna especially when Dr. Chivate has testified to the effect that she was conscious and was in a position to give statement, when P.W. 8 recorded the statement. This fact is actually testified by P.W. 8 himself. Moreover, testimony of doctor cannot be doubted because he himself has recorded the history of the patient on her admission and has further stated that Sanjivani was in a position to talk during the period from 10.30 p.m. to 12.30 a.m. during the night. The dying declaration document Exh. 31 was evidently recorded at about 11.00 p.m. and, therefore, there is absolutely no doubt that Sanjivani was conscious and was in a position to give statement during the relevant time.

Both these aspects leave no doubt regarding the fact that both the dying declarations, one by way of recording of history of the patient and the other dying declaration Exh. 31 which was later on treated as F.I.R., are trustworthy, reliable and found to be genuine and are, therefore, sufficient to form foundation for conviction of the accused person.

It was submitted on behalf of the appellant that dying declaration Exh. 31 of Sanjivani was recorded by the police and, therefore, is shrouded in doubts, however, the legal position is well settled in this regard. The Supreme Court in the case of State of Karnataka v. Sheriff, reported in I (2003) SLT 522=I (2003) DMC 450 (SC)=2003 A.I.R. SCW 600, has categorically observed that dying declaration recorded by the police personnel cannot be discarded on that count alone and there is no requirement of law that dying declaration must necessarily be made through the Magistrate. In the present case before us, the prosecution has explained the fact that indeed the investigating machinery tried to obtain permission of S.E.M. to record dying declaration but he was not available and, therefore, it had to be recorded by P.W. 8 Tukaram, Police Head Constable under the supervision of Dr. Chivate in Cottage Hospital, Karad. Therefore, we hold that the dying declaration Exh. 31 recorded by the Police Head Constable Tukaram is perfectly acceptable in law as it is supported by evidence of Dr. Chivate and other surrounding circumstances.

In this regard, we may refer to the recent ruling of the Supreme Court wherein the Apex Court has given guidelines in order to have proper and correct approach towards the evidence of dying declaration. In the case of P.V. Radhakrishna v. State of Karnataka, reported in II 2003 AIR SCW 3587, it is observed thus--

"The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with, besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."

Therefore, applying this ratio to the set of facts involved in the present case, we have no doubt whatsoever that both dying declarations available in this case are worthy of passing the test given by the Supreme Court to be applied. Moreover, in the present case, we also find corroboration to the evidence of dying declaration which must be made note of.

P.W. 2 Rupali, 10 years old daughter of deceased Sanjivani was examined as a witness along with P.W. 3 Shivaji who was supposed to be the eye-witness to the incident. They did not support the prosecution case, however, their evidence in the present status also is sufficient to support the prosecution version. Rupali, the other eye-witness has stated that she was playing outside the house of her own and at which time quarrel was going on between Sanjivani and the accused in the house. The accused was in drunken condition and, therefore, she went to her maternal uncle Shivaji to call him and told him that quarrel is going on between father and mother and, therefore, he should come. According to her, Shivaji came there. At that time, she found that her mother was in burnt condition. Similarly, P.W. 3 Shivaji has admitted the fact that he was called by witness Rupali and when he went there at the house of the accused, he saw accused and Sanjivani were quarrelling. In the course of the said quarrel, accused asked her wife to go to her parents' home as he was suspecting her chastity. However Sanjivani refused to go to her parents' home and then she went inside the room. The accused also followed her. While they went inside, the witness smelt of kerosene and hence went inside the room and saw that kerosene was poured on the person of Sanjivani. She was wearing saree and blouse and thereafter the witness came out and Sanjivani shouted loudly that she should be saved. At that time, she was on fire. No doubt, this witness has however turned hostile and stated that he did not see as to how she was set on fire. In spite of this denial, the evidence of witness Rupali and Shivaji has categorically established the fact that accused and Sanjivani were quarrelling inside the house of the accused when accused was insisting that she should go to her parental home and Sanjivani was refusing to do so, at which time Shivaji went inside and saw that kerosene was on the person of Sanjivani. Thereafter she went to the bathroom shouting that she should be saved and at which time she was found in flames. This scenario testified by witness Rupali and Shivaji, in our view, is sufficient to lend support to the evidence of dying declarations on record and further provides corroboration to that evidence.

8. Therefore, in view of this factual matrix, we have no hesitation to hold that the accused was the perpetrator of the crime which has been established beyond reasonable doubt and, therefore, the learned Judge has rightly saddled the accused with criminal liability with which he is charged and thus the reasoning adopted and findings recorded by the learned trial Judge would brook no interference.

In the result, the appeal stands dismissed.