Bombay High Court
Amakka Shankar Potraj vs The State Of Maharashtra on 20 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
PPD
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.975 OF 2005
1. Amakka Shankar Potraj, ]
Age : 40, Occ.Labour, ]
R/o. H.No.803, North Sadar ]
Bazaar, Solapur. ]
2. Venkatesh Shankar Potraj, ]
Age: 21, occ.:Labour, ]
R/o. as above.
ig ]..APPELLANTS
[Orig.Accused Nos.1 & 2]
Versus
The State of Maharashtra ] ..Respondent
....
Mr. N.P. Shimpi, Advocate for the Appellants.
Mr. D.P. Adsule, APP for the Respondent - State.
....
CORAM : SMT. V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE : 20th DECEMBER, 2012
ORAL JUDGMENT: [PER A.R. JOSHI, J.]
1. Heard rival arguments on this Appeal preferred by the
appellants/orig.accused Nos.1 & 2 challenging the judgment and
order of conviction dated 29th August, 2005 passed by the III
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Adhoc Additional Sessions Judge, Solapur in Sessions Case
no.109 of 2005.
2. By the impugned judgment and order,
appellants/orig.accused Nos.1 & 2 were convicted for the
offence punishable under Section 498A of IPC read with Section
34 of IPC and were sentenced to suffer RI for three years and to
pay fine of Rs.500/- each, in default to suffer further RI for three
months each. Both the appellants were also convicted for the
offence punishable under Section 302 read with Section 34 of
IPC and were sentenced to suffer RI for life and to pay fine of
Rs.1000/- each, in default RI for three months. By the same
judgment and order, original accused No.3 was acquitted of all
the charges. There is no appeal against the said acquittal,
preferred by the State. Original accused Nos.1 & 2 who are
mother-in-law and husband of victim Yallamma preferred the
present appeal.
3. The case of the prosecution in nutshell is as under :-
Some time six months prior to the incident, the victim
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Yellamma got married with appellant/accused No.2 Venkatesh.
Initially for about four months, Yellamma was treated normal.
However, thereafter there used to be quarrels and torture of
Yellamma at the hands of her husband(appellant/accused No.2)
and also at the hands of her in-laws i.e. appellant/accused No.1
and acquitted accused No.3. The accused persons were doubting
the character of Yellamma alleging that she had some illicit
relations with her maternal uncle by name Krishna Mhetre. It is
also the case of prosecution that for some time prior to the
incident which took place on 26.1.2005, Yellamma and her
husband /appellant No.2 resided at Pune as appellant No.2 was
having the work in the building construction line. Apparently
they resided there happily. They came back to the residence of
the in-laws of the victim at Solapur on 26.1.2005 at early hours
and in fact the incident of victim Yellamma receiving severe burn
injuries due to pouring of kerosene, occurred at about 11:00 a.m.
on the same day. According to the case of prosecution on the
day of the incident at about 11:00 a.m., there was quarrel and
in which both the appellants took part in pouring kerosene over
the person of Yellamma and setting her on fire. According to the
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more specific case of the prosecution after the kerosene was
poured on the person of Yellamma, appellant/accused No.1 (i.e.
mother-in-law of the victim) set her on fire by using ignited
match-stick. Apparently in the said incident of burning,
Yellamma received about 94% burns and mostly on her limbs
and also on face, chest and abdomen. Noticing the commotion
from the house of the appellants/accused and hearing the hue
and cry as well as shouts made by victim Yellamma, the
neighbours gathered there and tried to extinguish the fire.
Intimation was given to the relatives of Yellamma by some
neighbours. PW-2 Narassappa, paternal uncle of the victim,
reached the spot and noticed the situation and asked his one son
to bring auto-rickshaw. In the auto-rickshaw the victim was
taken to Civil Hospital, Solapur. According to said PW-2
Narassappa, while on the way to the hospital, victim gave her
dying declaration taking the name of the appellants as pouring
kerosene on her person and setting her on fire.
4. Also according to the case of prosecution, PW-3 one
Nagnath, son of PW-2 reached the hospital after knowing
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regarding the incident of burning. He met the victim who was
then under treatment and according to said PW-3 Nagnath again
the victim narrated the entire incident as to appellants/accused
pouring kerosene on her person and setting her on fire.
5. Intimation was given to the Sadar Bazaar police station
as well as to the Civil Hospital, Solapur regarding admission of
the victim Yellamma in the hospital for burn injuries.
Accordingly, one PSI Jadhav (PW-10) attended the hospital and
after ascertaining the condition of victim as able to give
statement, recorded her statement which is at Exh.31 and
apparently it was treated as First Information Report. On the
basis of the said statement, offence was registered and
investigation was started during which intimation was given to
one Special Judicial Magistrate one Mohd. Chiniwar (PW-4).
Accordingly he attended the Civil Hospital, Solapur and after
obtaining the endorsement from the attending doctor
Madhusudan (PW-9), regarding condition of the patient,
recorded the statement of the victim. It was recorded
apparently between 12:45 p.m. to 1:00 p.m.. Again in the said
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statement allegations were made against the appellants/accused
as to pouring kerosene on her person and setting her on fire.
6. The offence was registered initially against all the
three accused persons i.e. present appellant/accused Nos.1 & 2
and acquitted accused No.3 - father-in-law of the victim. During
investigation, spot panchnama was conducted in which PW-6 one
panch by name Laxman took part. Also during the investigation,
the partly burnt clothes of the victim were taken charge of under
different panchnama in which PW-7 another panch by name
Ramesh took part. On the same day, statements of the witnesses
were recorded and all the three accused were put under arrest
on 28.1.2005. By that time, the victim who was under
treatment at Civil Hospital, Solapur died at about 7:00 a.m. on
28.1.2005. After completion of investigation, charge-sheet was
filed and the matter was committed to the Court of Sessions. It
was tried and disposed of by impugned judgment and order
wherein original accused No.3 was acquitted and present
appellants/accused Nos.1 & 2 were convicted for the offences
charged.
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7. Admittedly, the entire case of the prosecution is based
on the circumstantial evidence and mainly on the evidence of
dying declarations of the victim Yellamma. In order to have
proper perspective of the matter and to ascertain the scope of the
arguments advanced on behalf of the appellants/accused Nos.1
& 2, certain factual position is required to be mentioned as under
:-
[i]
Death of victim Yellamma occurred just within four or
six months of her marriage with appellant/accused No.2. It must
be mentioned that there is no cognate material coming before the
trial Court as to on which date the marriage between
appellant/accused No.2 and Yellamma took place. According to
the dying declaration given before the PSI Jadhav, she got
married with Venkatesh in September, 2004. Admittedly, the
incident of burning occurred on 26.1.2005 and according to the
said dying declaration which at Exh.31, though there is mention
that marriage occurred in September, 2004, for four months after
the marriage she was treated well and thereafter for two months
she was being ill-treated and harassed by the appellants on the
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allegation that she had illicit relations with her maternal uncle
Krishna Mhetre, in any event it is a factual position that the death
of victim occurred just within four to six months of her marriage.
[ii] It is a case of custodial death and the victim sustained
severe burn injuries when she was staying at her matrimonial
house and when all the accused persons were staying together on
the day of the incident.
[iii] Victim sustained 94% burn injuries and it was a case of
unnatural death and the death was due to burns caused by
setting the victim on fire after pouring of kerosene.
[iv] The victim died while under treatment at Civil
Hospital, Solapur at 7:00 a.m. on 28.1.2005.
8. Bearing in mind the above factual position, the
arguments advanced on behalf of the appellants/accused are
required to be construed. The main thrust of the argument was
on the genuineness or otherwise of the dying declarations
allegedly given by the victim. In the present matter, the first
written dying declaration was given to PSI Jadhav after he
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attended the hospital, which is at Exh.31 in the notes of
evidence, and it was immediately taken after admission of the
victim in the hospital. It must be mentioned that prior to
recording of the said dying declaration, the condition of the
victim was ascertained and to that effect the attending doctor
PW-9 Madhusudan gave his endorsement. We have carefully
gone through the said Exh.31. We have gone through the
substantive evidence of the attending doctor PW-9 Madhusudan,
wherein he has specifically mentioned as to the condition of the
victim to give statement. Even such endorsements are
appearing on the dying declaration Exh.31 with timings.
9. Apart from the dying declaration to the police officer
(Exh.31), immediately within short time there was another dying
declaration recorded by a Special Judicial Magistrate one Mohd.
Chiniwar (PW-4). It is at Exh.11 in the notes of evidence. It
was recorded, as mentioned above, on the same day at 12:45
p.m. to 1:00 p.m.. Again at this time the said Special Judicial
Magistrate ascertained himself through the attending doctor PW-
9 Madhusudan regarding the condition of the victim. In fact
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such endorsements were also given on the said dying declaration
which is recorded in vernacular Marathi and is at Exh.11 in the
notes of evidence. At the starting of the said dying declaration
(Exh.11) there is an endorsement by PW-4 SJM to the following
effect : "Civil Hospital casualty. Before recording the statement I
satisfied myself patient was in conscious condition." Prior to this,
there is also an endorsement of the attending doctor at 12:45
p.m. on 26.1.2005 to the effect that "patient is conscious to give
oral statement". In fact, this is the endorsement which has been
proved by the attending doctor (PW-9) and it is Exh.28 in the
notes of evidence wherein specific time was written by the side
of the signature of the attending doctor.
10. Apart from the above two dying declarations, there are
three oral dying declarations which can be considered as
corroboration to the earlier written dying declarations. Such
oral three dying declarations are in fact revealed from the
substantive evidence of PW-2, PW-3 & PW-9. So far as PW-2
Narasappa, paternal uncle of the victim is concerned according
to him while he was taking the victim in auto-rickshaw for
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admitting her to the Civil Hospital, she had narrated the entire
incident alleging the role against the appellants/accused as to
pouring kerosene and setting her on fire. There is another oral
dying declaration before PW-3 Nagnath, one of the sons of PW-2
Narasappa. According to this witness PW-3 Nagnath, he met the
victim at the hospital and on enquiry with her, she revealed the
entire story and the same is in consonance with what is stated
before PW-2 Narasappa. Third dying declaration is in fact in the
form of recording of the history, done by PW-9 Dr.Madhusudan at
the time of admission of the patient. The substantive evidence of
said PW-9 Dr.Madhusudan is worth mentioning with advantage
as under : "she was brought by Sidram Ballappa Gopireddy.
Patient gave history of homicidal burns by pouring of kerosene
and alighting by her mother-in-law and husband, and father-in-
law at 11 a.m." In fact the further substantive evidence of said
medical officer is worth mentioning which show the immediate
condition of the said patient when he had examined the patient.
Said evidence reads as under :
"I examined the patient Yellamma. She smelling kerosene.
Blouse and petticoat were burnt and she was responding to
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commands i.e. whatever I was asking she was responding.
I found 94% superficial to deep burn injuries as follows :
Head, neck and face - 8%
Right upper limb - 9%
Left upper limb - 9%
Right lower limb - 18%
Left lower limb - 18%
front of chest and abdomen- 14%
back - 18%"
11. During the arguments, as mentioned above, the
evidence of all these dying declarations was heavily assailed on
behalf the appellants specifically pointing out that as the patient
had sustained 94% burn injuries and mostly on her hands and
even on palm, there was no any chance of said victim to be so
conscious to give details of the incident. It is also argued that the
endorsement of the Medical Officer only to the effect of
consciousness of the victim is not sufficient and something more
is required as to orientation of the victim or the specific
mentioning as to fit state of mind of the victim in order to give
statement. In support of this argument, shelter of the following
authority is taken on behalf of the appellants
(1999) 7 SCC 695
[Paparambaka Rosamma & Ors. Vs. State of A.P.]
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By pointing our attention to para-8 & 9 of the said
authority it is submitted that in the present matter there is
nothing to ascertain that the patient was in a fit state of mind to
give statement and more over it has not been ascertained by the
officers recording the dying declaration as to such mental and
physical condition of the victim, further argued.
12. We have gone through the ratio propounded by the
aforesaid authority of the Hon'ble Apex Court. It must be said
that authenticity of dying declaration depends on the facts and
circumstances of the case and whether there is any other
independent corroboration available. In the present matter, at
the cost of repetition, it must be mentioned that there are
endorsements of the attending medical officer PW-9
Dr.Madhusudan on both the written dying declarations Exh.31 &
Exh.11 mentioning that the patient was conscious to give oral
statement. All those endorsements made by PW-9
Dr.Madhusudan have been identified by him and as they were
proved, they were marked as exhibits and taken on record by
the trial Court. Moreover there is a corroboration to the contents
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of the said dying declaration and that in the present matter
there are two oral dying declarations respectively before PW-2 &
PW-3 and one history given by the victim herself, apparently in
the form of the dying declaration, as to how she had sustained
the burn injuries and this history was given to PW-9
Dr.Madhusudan, as mentioned earlier. Again on this aspect, our
attention is drawn towards the ratio propounded by the another
authority
(2006) 3 SCC 161
[P. Mani Vs. State of T.N.]
By pointing to the contents of para-14 of the said
authority, it is submitted that though the conviction can be
recorded on the basis of the dying declaration alone, but, the
same must be wholly reliable. In other words, it is argued that
if there is any suspicion in putting reliance on such dying
declaration, then it would not be safe to convict the accused
person solely on the strength of such dying declaration. There
cannot be dispute on the said legal proposition as propounded in
the said authority. What is to be ascertained is whether the
dying declaration given by the victim inspires confidence or
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whether there are any material defects or any circumstances so
as to suggest that it was impossibility on the part of the victim to
give any such statement implicating the accused persons.
Moreover, whether or not a particular dying declaration is
acceptable, is to be viewed in juxtaposition of the circumstances
of that particular case. In the case at hand, we had observed
that there are two written dying declarations, as discussed
above, so also there are two oral dying declarations and there is
history apparently in the form of history given to the medical
officer (PW-9). In all these dying declarations, the main thread of
the case of the prosecution has not in any way changed. In
other words, it must be said that all these dying declarations
unequivocally point towards the appellants/accused persons and
mainly the present appellants, as perpetrators of the crime of
pouring kerosene and setting the victim on fire. In any event
considering the facts of the present case, we are of the
considered view that these dying declarations are reliable and
can safely be taken as implicating both the appellants/accused
for the offences charged.
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13. Another argument was advanced on behalf of the
appellants/accused regarding the possibility or otherwise of
taking thumb impression of the victim at the end of the dying
declarations - which are Exh.31 & Exh.11. On this aspect, our
attention is drawn to the substantive evidence of PW-9
Dr.Madhusudan and specifically regarding the injuries sustained
by the victim. The injuries of the victim are earlier reproduced
with advantage. Mentioning those injuries, it is argued that both
the hands and also palms of the victim were burnt. By this
answer given by PW-9, attending doctor in his evidence, it is
tried to suggest that there was no possibility that a thumb
impression of the victim could be taken. On this, we have
carefully gone through the substantive evidence of PW-4 Special
Judicial Magistrate. During the cross-examination, the said
witness has specifically answered to the following effect:
"left hand of Yellamma was not burnt and I had not
seen her right hand. It is true that when we
obtained thumb impression, we write the attestation.
I have not obtained the signatures of other persons
who are acquainted with Yellamma."
. When we read this substantive evidence in
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juxtaposition of the factual position appearing and apparent on
the face of Exh.11 that her thumb impression of left hand thumb
has been obtained and there is an endorsement of the said
Special Judicial Magistrate as it was obtained in his presence.
Considering in totality the evidence of the attending medical
officer PW-9 Dr.Madhusudan and considering that specifically
there is no cross-examination of any of the prosecution witnesses
and mainly PW-9 Dr.Madhusudan and also another doctor PW-5
who performed the postmortem as to suggesting them that even
all the fingers of the victim were also burnt and it was total
impossibility for obtaining her thumb impression on any of the
documents. In that event, considering the factual position, the
said argument advanced on behalf of the appellants/accused
cannot sustain.
14. Lastly, during the arguments it is submitted that there
was no cause for the appellants/accused to kill the victim.
Moreover it is pointed out that the marriage took place only four
months prior to the incident and according to the substantive
evidence of the witnesses and even as per the mention of the
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victim in her dying declaration Exh.31, she was treated well for
four months. On this aspect, we have gone through the said
contents of Exh.31, which is dying declaration recorded by PSI
Jadhav. It is recorded in vernacular Marathi and to the effect
that marriage took place in September, 2004 with Venkatesh and
on the next line it is mentioned that after the marriage she was
treated properly for four months, but, for last two months her
husband and her in-laws were ill-treating her on alleging that
she had illicit relations with her maternal uncle Krishna Mhetre.
If these entire contents are construed in proper perspective
coupled with the substantive evidence of PW-2 & PW-3, we find
that they specifically mention that the marriage took place six
months prior to the incident and for last two months there were
incidents of ill-treatment, it can be said that there is nothing to
doubt the case of the prosecution as to there was ill-treatment at
lest for about two months prior to the incident.
15. It was also argued at the fag end of the argument that
there was possibility or, in fact, it was a case of suicide inasmuch
as victim was apparently suffering from TB and was having
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stomach ache and out of frustration due to the said ailment, she
had ended her life. This type of defence is spelt out from the
written submissions given by the appellants/accused at the end
of recording of their statements under Section 313 of Cr.P.C..
Though such attempts have been made to assert that the victim
had committed suicide, there is nothing brought on record
except bare mention in the submissions that the disease of the
victim was of such a grave character so that she felt to end her
life and that also when she has reached at Solapur at the house
of her in-laws from Pune at the early hours of the same day and
to pour kerosene at that house and end her life. In other words,
even on preponderance of probabilities, this defence raised on
behalf of the appellants/accused cannot be accepted, more so,
when there is nothing brought on record that the said disease
was active and aggravated after marriage. Though such
suggestion was given to PW-2 paternal uncle of the victim, he
had denied that even after the marriage she was suffering from
some ailment like T.B. and also stomach ache. Again this
probable defence of alleged suicide committed by the victim
cannot be accepted as there is no plausible explanation coming
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from the appellants/accused in order to explain how and in what
manner the victim sustained such severe burn injuries when it is
admittedly case of custodial death. Moreover it was also brought
to our notice that appellant/accused No.2 had also sustained
about 2% burn injuries and it was probably on account of saving
the victim when she had caught fire at the matrimonial home. It
is an admitted position that appellant/accused No.2 had
sustained these burn injuries, however, still there is nothing on
record to show that after the victim caught on fire, any attempts
were made by any of the appellants/accused to take her to the
hospital for immediate medical treatment. From the substantive
evidence of PW-2 & PW-3 and also of the attending doctor PW-9
it is a factual position that there was no attempt on the part of
the husband and in-laws of the victim to take her to hospital.
Even there is nothing on record to accept on preponderance of
probabilities that it was a case of suicidal burn and
appellant/accused No.2 tried to rescue his wife. Another factual
aspect cannot be ignored that if at all it is a suicide case then the
victim has sustained almost 94% burn injuries, whereas her
husband who tried to save her had sustained only 2% burn
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injuries. All the same, this attempt on the part of the
appellants/accused to put forth this defence is also futile and
cannot sustained.
16. In view of the above, there is nothing to interfere with
the impugned judgment and order of conviction and accordingly
there is no merit in the appeal. Same is accordingly dismissed
and disposed of. Present order be communicated to the
appellants/accused through the concerned jail authorities where
they are presently lodged.
(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)
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