Bombay High Court
Age 42 Years vs The State Of Maharashtra } on 28 October, 2010
Bench: D.D. Sinha, A.P. Bhangale
1 Apeal 471-2003.sxw
srj
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 471 OF 2003
Anjanabai A. Pendhare }
Age 42 years, R/o. Lohner, }
Tal: Satana, District Nashik
ig } .. Appellant
} (Orig. Accused No.1.)
V/s.
The State of Maharashtra } .. Respondent.
Mr. Anilkumar Patil with Mr. Sachin Pawar, Mr. Jitendra Gaikwad
& Mr. Vinit Patil, for Appellant.
Mr. J.H. Dedhia, Addl. Public Prosecutor, for State-Respondent.
CORAM: D.D.SINHA & A.P.BHANGALE, JJ.
DATE OF RESERVING THE JUDGMENT} 18.10.2010
DATE OF PRONOUNCING THE JUDGMENT } 28.10.2010
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JUDGMENT : (PER : A. P. BHANGALE, J)
1. Being aggrieved by the judgment and order dated
28/03/2003 passed by the 2nd Additional Sessions Judge, Malegaon in
Sessions Case No.12 of 1997 whereby the Sessions Court convicted
the appellant for offence punishable under section 302 of the Indian
Penal Code and sentenced her to undergo imprisonment for life and to
pay fine in the sum of Rs 100/- in default to suffer undergo R I for six
months , the appellant has preferred this Appeal before us.
2. Brief facts necessary for the disposal of this appeal are as
follows:-
That the appellant and deceased Jeejabai who was her
Savat(co-wife of Ashok Pendhare) used to reside with their Husband
Ashok Pendhare ( original Accused no 2). There used to be quarrels
between the two. On the day of the incident on 22/01/1996.
Appellant Anjanabai had demanded money earned by Jeejabai from
the agricultural labour work performed by her. Jeejabai refused to
pay. This led to quarrel between them. Anjanabai was enraged by the
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refusal, consequent to which on 22/01/1996 at about 10.00 a.m. the
appellant poured kerosene oil on Jeejabai and set her on fire. It is the
prosecution case that Jeejabai when burnt, husband of the appellant
was sitting out of the house, came to her and he tried to extinguish
the fire along with the appellant. Thereafter, it is the prosecution case
that Jeejabai was taken to the Satana Rural Hospital where PW 7,
Dr. Rajaram Patekar examined her injuries and found that Jeejabai
suffered almost about 65% burns on her body. Patient was referred to
Civil Hospital, Dhule for further treatment and she was found fit to
give oral statement. However, her dying declaration was recorded.
3. The police were informed of this incident by PW 3 Shri
Udaysingh, Police Patil of village Lohaner, PW 6 Shaikh Munir, A.S.I.
upon written direction (Ex 23) from Police Station officer, Shri Ahire,
on 22/01/1996 went to Satana Rural Hospital and recorded a
complaint of Jeejabai, since she was giving coherent answers to his
questions and was mentally fit to give her statement (Ex 22). It is the
further case of the prosecution that on 22/01/1996 crime No. 9 of
1996 was registered at Satana Police Station under section 307 of the
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Indian Penal Code. PW 8 who took up the investigation and went to
village Lohaner and recorded spot Panchnama (Ex 13) and seized
articles from the spot. Investigating Officer had also recorded
statements of neighbourers and the relatives of Jeejabai. Dying
declaration of Jeejabai was recorded at Dhule. Jeejabai expired,
while she was under Medical treatment, the offence was altered to
section 302 IPC in place of Section 307 of IPC. At Dhule, Inquest
Panchnama was drawn. Muddemal articles were referred to Chemical
Analyzer for Chemical Analysis. C.A Certificates were received (Ex
29). Residues of kerosene were found on the pieces of clothes seized
from the spot.
4. It is the further case of the prosecution that Satana police
station sent written requisition letter dated 22/01/1996 to Executive
Magistrate (PW 2) Shri Dharma Jadhav, then Naib Tahasidar who
went to Satana Rural Hospital to record the dying declaration of
Jeejabai, PW 2, Dharma Jadhav, came to the hospital obtained
certificate from the Medical officer to the effect that the patient was
in a position to speak and was conscious and recorded Ex.17 dying
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declaration of the said Jeejabai in question and answer form as per
her narration. It is also on the record that said Jeejabai died around
9.45 a.m. on 25/02/1996, therefore, a case which had originally
registered under Section 307 of IPC was re- registered under Section
302 of IPC and was tried for the said offence.
5. The prosecution in support of its case examined eight
witnesses, while defence is of denial. In her statement under section
313 Cr.P.C., she contended that the relatives of the deceased are
falsely deposing.
6. As stated above, the trial court found the appellant guilty
of the offence charged and sentenced her to undergo imprisonment
for life under section 302 of IPC .
7. Learned Advocate appearing for the Appellant contended
that in the instant case, possibility of accidental death may be
considered to give benefit of doubt to the Appellant although there is
evidence of oral as well as written dying declarations. Learned
Advocate contended that the injured was not in a fit state to make a
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dying declaration. Further, he contends that PW 7, Dr. Rajendra
Patekar, who was initially the doctor in-charge of the treatment of the
deceased, gave a certificate that the deceased was fully conscious and
in a condition to give a statement. He also contended that PW 7 had
failed to ensure that after the recording of the said dying declaration,
the deceased was in a fit mental condition to make the said statement.
In the absence of any such certificate by doctor, it is contended that
the dying declaration cannot be relied upon. In the said backdrop,
such a certificate of the doctor PW 7 ought not to be relied upon as
she was not specifically stated to be in a 'fit' condition to make
statement.
8. So far as the position of law in regard to the admissibility
of the dying declaration, which is not certified by the doctor, the same
is now settled by a Constitution Bench judgment of the Supreme Court
in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein
overruling the judgment of the Apex Court in Laxmi(Smt.) vs. Om
Prakash and ors., (2001 (6) SCC 118), it is held that a dying
declaration which does not contain a certificate of the doctor cannot
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be rejected on that sole ground so long as the person recording the
dying declaration was aware of the facts as of the condition of the
declarant to make such dying declaration. If the person recording such
dying declaration is satisfied that the declarant is in a fit mental
condition to make the dying declaration, then such dying declaration
will not be invalid solely on the ground that doctor failed to certify
that deceased was in the fit condition to give such statement. Be that
as it may, so far as this case is concerned, that question does not arise
because in the instant case PW 7, Dr Patekar, a doctor who treated the
deceased and the doctor on duty when summoned came and
examined the deceased and noted in the dying declaration itself as to
the capacity of the deceased to make a dying declaration. That apart
from the narration of the questions and answers in the dying
declaration, it is clear that the deceased was in a fit state of mind to
make the statement. The fact, as how the deceased had received burn
injuries, is also deposed by her brother Hiralal (PW 4) and her Father
Motiram (PW 5), as their depositions indicate statements made by the
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deceased to them in respect of the circumstances which ultimately
resulted into her death.
9. The learned Advocate for the appellant contended that
we should examine the contents of the dying declaration in the
background of the fact that the deceased had suffered nearly 65%
burns and ever since her admission in the hospital, she was under
Medical treatment, she suffered septicemia and shock following the
thermal burns which resulted in her death. According to him, she
could have survived by receiving timely and best medical treatment.
10. Therefore, the learned Advocate contends that it is not
safe to place reliance on the dying declaration. We have carefully
perused the evidence of PW 2 Dharma and PW 6 Shaikh Munir who
recorded the dying declaration and PW 7, Dr Rajaram Patekar, who is
the doctor, who certified the condition of Jeejabai. From their
evidence, we are satisfied that the deceased, at the time she made the
dying declaration, was in a fit condition of mind to make such
statement. Having found no discrepancy in the statement of the
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deceased, we are inclined to accept the same as held by the trial court
below.
11. Learned Advocate contended that from the evidence of the
PW 7, it is clear that the deceased must have suffered burn injuries
accidentally, therefore, it is not safe to rely upon the prosecution
evidence to convict the appellant. We noticed the trial court after
taking into consideration the evidence and also the factum that the
husband of the deceased who carried her to hospital may have given
false history of accident to save the skin of the appellant. In such a
situation, we are unable to pursuade ourselves to take a contrary
view than the one taken by the Trial court below.
12. Prosecution has placed reliance upon evidence of PW 4
who is brother of deceased Jeejabai. His evidence indicates that there
used to be quarrel between the deceased and the appellant as they
were co-wives of Ashok Pendhare (original accused No.2). According
to PW 4, the appellant and Ashok Pendhare used to demand money
earned by Jeejabai out of labour work which she used to perform.
According to Hiralal, his sister after she admitted in Satana Rural
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Hospital, he questioned about the injury she sustained and Jeejabai
told him that Anjanabai (original accused No.1 and the appellant)
poured kerosene oil and thereafter set her ablaze by a match stick.
13. Prosecution also cross examined father of deceased
Jeejabai, namely Motiram (PW 5) deposed that she sustained burn
injuries and was moved to Satana Rural Hospital. He had questioned
her as to how it happened. She told him that on the day of incident,
Anjanabai (original accused no.1 and appellant ) was demanding the
money. Jeejabai refused to give money. Anjanabai poured kerosene
on her person which was five liters in quantity and set herself ablaze
by match-stick. PW 6 (ASI) Shaikh Munir, who was attached to Satana
Rural Police Station, on the day of incident, he visited Jeejabai in the
Satana Rural Hospital after she had sustained burn injury. He was
directed by the PSO of Satana Police Station to go to the Hospital to
record the statement of Jeejabai Pendhare. According to him (PW 6)
Shaikh Munir, Jeejabai was mentally fit and gave the statement and
she was coherently giving the answers to his questions. He had
recorded her statement as per Exh. 22 and also obtained her thumb
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impression and he signed statement. According to PW 6, he had met
the doctor before recording the statement, although he did not obtain
medical certificate regarding mental fitness of Jeejabai to give her
statement. Perusal of Exh. 22 shows that on 22.01.1996 at about
10.a.m., Anjanabai (co-wife of Ashok Pendhare) was demanding
money earned by Jeejabai from her labour work. She had refused to
pay money. Therefore, Anjanabai got angry and poured kerosene on
her person and lightened a match stick. As a result of which, her
saree got fire and she sustained injury. After she raised shout, her
husband, who was siting on the platform outside the house, did
came in side. He along with Anjanabai extinguished fire by covering
body of Jeejabai by means of quilt. Then her husband and Anjanabai
had carried her to the hospital.
14. Prosecution has examined (PW 2) Dharma Jadhav, who
was then Naib Tahsildar at Satana. He was requisitioned by police to
visit Satana Rural Hospital on 22.01.1996. Pursuant to which he went
to Satana Rural Hospital. He met Dr. Patekar (PW 7) and obtained
certificate as to whether lady person (Jeejabai) was in a position to
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speak and was conscious . He then went to Jeejabai and told her that
he is Magistrate. PW 2 told her about the purpose of his visit i.e. to
record her statement. He asked few questions regarding her name,
age etc., her knowledge of Marathi as well as how she was burnt and
recorded her dying declaration in question and answer form.
According to PW 2, Dharma Jadhav, the dying declaration was
recorded as per her narration. She told PW 2 that Anjanabai (original
accused no.2) poured kerosene on her person. At that time, her
husband was sitting on the platform, out side the house. He along
with Anjanabai i.e. Appellant extinguished fire. Jeejabai also narrated
the reason for the incident that she had refused to give money earned
by her from labour work to Anjanabai. Considering the evidence of
dying declaration oral as well as written declaration and PW 2, 6 and
7 who were cross examined at length, their evidence remained
unshattered in cross examination in respect of recording of dying
declaration as narrated by Jeejabai. Apart from dying declaration, we
have seen the Spot Panchnama (Ex 13), Inquest Panchnama (Ex 14)
C. A. reports (Ex 29) which are duly established by the prosecution by
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examining PW 8, Shri Rajendra Shete, investigating officer. It is
always desirable that the prosecution ought to have examine the
medical officer for proving the contents of postmortem notes. Proof of
contents of the postmortem report and relevant expert opinion could
be brought on the record by examining the medical officer who made
postmortem notes after conducting postmortem examination.
15. In view of three Judge Bench decision of the Supreme
Court in Panneerselvam vs. State of Tamil Nadu, (2008) 17 SCC
190 and also the principles governing the dying declaration as
summed up in Paniben vs. State of Gujarat , (1992) 2 SCC 474.
The analysis of the above decisions clearly shows that,
(i) Dying declaration can be the sole basis of conviction
if it inspires the full confidence of the Court.
(ii) The Court should be satisfied that the deceased was
in a fit state of mind at the time of making the
statement and that it was not the result of tutoring,
prompting or imagination.
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(iii) Where the Court is satisfied that the declaration is
true and voluntary, it can base its conviction without any
further corroboration.
(iv) 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.
(v) Where dying declaration is suspicious, it should not
be acted upon without corroborative evidence.
(vi) A dying declaration which suffers from infirmity
such as the deceased was unconscious and could never
make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain
all the details as to the occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be
discarded.
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(ix) When the eye-witness affirms that the deceased was
not in a fit and conscious state to make the dying
declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the Court is satisfied that it
is true and free from any effort to induce the deceased to
make a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it basis of
conviction, even if there is no corroboration.
16. We also found that in the case on hand, Learned
Additional Sessions Judge has found the dying declaration (Ex 17)
credit-worthy and has held the same to have been made by the
deceased in a fit mental state. The English translation of the dying
declaration, as made by the deceased to PW 2 is -
Q.1 Tell your Full name-
Answer:- My name is Jeejabai Ashok
Pendhare , 40 years of age, occupation-
Household, resident of Lohaner, Taluka
Satana.
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Q.2 Do you understand Marathi
language?
Answer:- Yes.
Q.3 How you were burnt or poisoned
or injured? Tell truth in details without fear
of anybody.
Answer:- Today on 22/01/1996, my
Husband's other
ig wife (Savat)
Anjanabai Ashok Pendhare,poured rockel
upon my body and she lighted a match stick
and put upon my body. At that time my
Husband was sitting outside on Ota and he
had extinguished the fire. Initially no body
came to rescue me. My Savat Anjanabai was
demanding agricultural labour money which
was not given by me hence she set me on
Fire by pouring rockel over my body.
17. Conviction can be based on dying declaration, if it satisfies
conscience of the Court and if the Court finds that it is consistent,
truthful and reliable. As observed earlier, all the dying declarations
made by the deceased prior to her death were consistent, truthful and
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reliable which involved the appellant with the commission of crime.
We have considered the overall evidence on the record carefully.
There is evidence of the Police Patil of the Village that there used to
be frequent quarrels between the appellant and the deceased. One
such quarrel with the deceased over petty matter of demanding the
money earned by her from the agricultural labour work and refusal to
pay by the deceased Jeejabai, enraged the appellant to take the
extreme step to set the deceased Jeejabai on fire. It is in evidence that
the appellant had also tried to extinguish the fire along with her
husband when he came from outside the house and they both tried to
extinguish the fire. Having carefully examined the judgment of the
court below and facts and circumstances on record, in our opinion,
the appellant appears to be guilty of culpable homicide, not
amounting to murder, as the act of setting Jeejabai on fire by the
accused was a result of sudden quarrel which took place. In the heat
of passion the appellant had lost power of self control.
18 Apeal 471-2003.sxw
Section 299 I.P.C. reads as under:
"299 - Culpable homicide:- Whoever causes
death by doing an act with the intention of
causing death, or with the intention of causing
such bodily injury as is likely to cause death, or
with the knowledge that he is likely by such act
to cause death, commits the offence of culpable
homicide"
Section 300 I.P.C. reads as under:
"300 - Murder:- Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is
done with the intention of causing death, or-
Secondly,- If it is done with the intention of
causing such bodily injury as the offender knows
to be likely to cause the death of the person to
whom the harm is caused, or- Thirdly,- If it is
done with the intention of causing bodily injury
to any person and the bodily injury intended to
be inflicted is sufficient in the ordinary course of
nature to cause death, or- Fourthly,- If the person
committing the act knows that it is so imminently
19 Apeal 471-2003.sxw
dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause
death, and commits such act without any excuse
for incurring the risk of causing death or such
injury as aforesaid."
Exception 2 to the said Rule postulates that "when culpable homicide
is not murder if the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes the death of the
persons who gave the provocation or causes the death of any other
person by mistake or accident."
Exception 4 to the said Rule reads thus:
"Exception 4. Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner."
20 Apeal 471-2003.sxw
18. The distinction between the offences of culpable homicide
and murder is the presence of special mens rea which consists of four
mental attitudes in the presence of any of which the lesser offence
becomes greater. These attitudes are stated in Section 300 of IPC as
distinguishing murder from culpable homicide not amounting to
murder.
19. The ingredients of the said Exception 4 are:-
(i) there must be a sudden fight;
(ii) there was no pre-meditation;
(iii) the act was committed in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted
in a cruel manner.
20. In the event the said ingredients are present, the cause of
quarrel would not be material as to who offered the provocation first
or started assault.
21 Apeal 471-2003.sxw
21. Indisputably, therefore, the occurrence must be sudden
and not pre-meditated and the offender must have acted in a fits of
anger.
In Rajendra Singh & Ors. v. State of Bihar (2000) 4 SCC 298
at p.307 the Apex Court held:
"So far as the third contention of Mr. Mishra is concerned,
the question for consideration would be as to whether the
ingredients of Exception 4 to Section 300 of the Indian
Penal Code can be said to have been satisfied.
The necessary ingredients of Exception 4 to Section 300 are:
(a) a sudden fight;
(b) absence of premeditation;
(c) no undue advantage or cruelty,
but the occasion must be sudden and not as a cloak for
pre-existing malice. It is only an unpremeditated assault
committed in the heat of passion upon a sudden quarrel
22 Apeal 471-2003.sxw
which would come within Exception 4 and it is necessary
that all the three ingredients must be found."
22. We have accepted the fact that dying declarations relied
upon by the prosecution are truthful, voluntary and consistent to
each other. But we must bear in mind that after deceased Jeejabai
caught fire as a result of an act of throwing a lighted match
stick at her by Anjanabai, the conduct on the part of Anjanabai to
extinguish the fire along with her husband Ashok Pendhare, is
indicative of an act of repentance on her part. The fact that appellant
Anjanabai and her husband carried Jeejabai to Satana Rural Hospital
and their giving history of accident may be an act indicative of anxiety
on their part (Appellant and her husband) to shield the appellant
from the penal liability. The prosecution was not required to
examine doctor on the pretext that the postmortem notes were not
disputed by the defence from being read in evidence. These are
reasons which cumulatively persuaded us to reduce penal liability
of the appellant to the extent of offence of culpable homicide, not
amounting to murder in this case, punishable under section
304 part - 1 of Indian Penal Code. We feel that sentence of
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rigorous imprisonment for 10 years and fine in the sum of Rs.1,000/-
in default to undergo sentence of further R.I. for six months would
meet the ends of justice in the peculiar facts and circumstances of this
case.
23. We therefore feel that appeal must succeed partly and the
same is partly allowed. The appellant can not escape from the penal
liability of the Culpable Homicide not amounting to Murder
punishable under section 304 part 1 of the Indian Penal Code.
Therefore, the conviction recorded and the sentence imposed by the
learned 2nd Additional Sessions Judge by the impugned judgment and
order is required to be confirmed with the modification that the
accused no.1 ( Appellant herein) is sentenced to suffer R,I. for ten
year and fine in the sum of Rs 1000/- in default to undergo further
R..I. for six months. Appeal is partly allowed accordingly.
(D.D.SINHA,J.)
(A.P.BHANGALE,J.)
24 Apeal 471-2003.sxw
