Bombay High Court
Nilkanth Laxman Koli vs The State Of Maharashtra on 10 December, 2015
OJ APEAL 893 OF 2005.doc
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 893 OF 2005
Nilkanth Laxman Koli ]
age about 28 years, ]
residing at : Vatar Galli, Laxman House ]... Applicant.
Matruchhaya, Madhgaon, ] Ori. Accused
Malad (W), Mumbai ]
ig ]
At present lodged in Central Jail Thane ]
V/s.
State of Maharashtra ]
at the instance of Malvani Police Station ] .... Respondent
Mumbai ]
Mr. K. M. Mhatre, for the appellant.
Mr.H. J. Dedia, APP for the Respondent-State.
CORAM : SMT. V.K. TAHILRAMANI ACTING CJ &
DR. SHALINI PHANSALKAR-JOSHI, J.
th DECEMBER, 2015.
DATE : 10
ORAL JUDGMENT : [PER : DR. SHALINI PHANSALKAR-JOSHI-J. ]
1. The appellant - original accused, who stands convicted, by
judgment and order dated 29th June, 2005, in Sessions Case No.619 of
2003, of Additional Sessions Judge for Greater Bombay, for the offence
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punishable under Section 302 of Indian Penal Code and sentenced to
suffer rigorous imprisonment for life and to pay fine of Rs.5,000/- in
default to suffer rigorous imprisonment for three months, by this appeal
challenges his conviction and sentence.
2. Brief facts of the appeal can be stated as follows :-
Deceased Bharati was the wife of appellant. Their marriage
had taken place on 25th April, 2002 at Madh village. After the marriage,
they were residing together in the same village. As per prosecution case,
appellant was suspecting the fidelity of his wife Bharati and on that
count there used to be frequent quarrels. On the day of incident, on
13.7.2003, in the morning, the appellant quarrelled with the deceased
and then left the house. In the afternoon, he returned and slept. At about
5 to 5.30 p.m., he woke up from the sleep and then poured kerosene on
his wife Bharati and set her ablaze by lighting match stick. When Bharati
shouted, her brother-in-law P.W.1 Kishor and his wife P.W.3 Malan
rushed to her help. They extinguished the fire and then took her in a
rickshaw to Bhagwati hospital. On the way, P.W.1 Kishor got down
from the rickshaw, went to Malwani and informed P.W.2 Ganga, the
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mother of Bharati.
3. P.W.10 API Shinde, who was on duty at Malwani Police
Station, received message at about 7.30 p.m. from Bhagwati Hospital,
Casualty Department, about admission of a patient Bharati, having
sustained burns due to her husband pouring of kerosene on her and
setting her ablaze on the ground of taking suspicion of her character.
P.W.10 API Shinde made station diary entry to that effect and then went
to Bhagwati Hospital, ward No.4. After making enquiry with P.W.9 Dr.
Thakery, as to whether Bharati was in a position to give statement, he
recorded her statement vide Exh.27. On making telephone call
Malawani Police Station, he obtained running C.R.No.107 of 2003 from
the Officer on duty and accordingly offence under Section 307 of Indian
Penal Code was registered against the appellant. On the same night at
about 8.00 p.m. P.W.4 Special Executive Magistrate-Manda Barba,
recorded dying declaration of Bharati vide Exh.16 in which Bharati
reiterated the fact that the appellant has poured kerosene on her and set
her ablaze.
4. From Bhagwati Hospital, P.W. 10 API Shinde, alongwith
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API Dalvi, went to the spot of incident. He drew panchnama of scene of
offence in presence of panchas vide Exh.18 and burnt piece of clothes of
Bharati and other incriminating articles were seized under said
panchnama. The appellant was arrested on the same day under
panchnama Exh.13. P. W. 10 API Shinde then recorded statements of
witnesses. Further investigation of the case was taken over by P.W.11
Police Inspector Chaskar.
5. On 17.7.2003, Bharati succumbed to burn injures. Hence
offence was converted to section 302 of IPC. During the course of
further investigation, seized muddemal articles were sent to chemical
Analyzer on 24.4.2003. The Chemical Analyzer's Report is at Exh.10.
Further to completion of investigation, chargesheet came to be filed in
Court of Additional Chief Metropolitan Magistrate, against appellant on
25.8.2003.
6. On committal of the case to the Sessions Court, trial Court
framed charge against the appellant vide Exh.3. The appellant pleaded
not guilty and claimed to be tried, raising the defence of false
implication. In support of his plea that at the time of incident, he was
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not present in house, appellant examined one defence witness, his
nephew Suryakant Koli.
7. As against it, in order to bring home guilt of accused,
prosecution examined in all 12 witnesses and on appreciation of their
evidence on record, trial Court was pleased to hold the guilt of the
appellant to be proved beyond reasonable doubt and convicted and
sentenced him, as aforesaid.
8. In this appeal, we have heard learned counsel for appellant
and learned APP for the State. In our considered pinion, in order to
appreciate rival submissions made by them, it would be useful to refer
to evidence on record.
9. The prosecution in the present case stands on a very strong
and solid evidence of oral and written dying declarations which are
found to be thoroughly consistent to one another. The law is well
settled that the conviction can be based on the sole evidence of dying
declaration as great solemnity and sanctity is attached to the words of
dying person because a person on the verge of death is not likely to
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speak lie or to concoct the case so as to implicate an innocent person. As
per law, however, when there are multiple dying declarations,
consistency in each dying declaration is the relevant factor to be
considered for placing full reliance thereupon. In the instant case,
though there are multiple dying declarations, all of them are proved to be
thoroughly consistent, completely, reliable and voluntary. The first dying
declaration is in the form of immediate disclosure made by Bharati
before P.W.1 Kishor, her brother-in-law, whose house is just adjacent to
the house of the deceased with one partition in between. According to
evidence of P.W.1 Kishor, on the date of incident, at about 6 to 6.30 p.m.
when he and his wife were in their house, he saw smoke coming out of
the house of Bharati. The said smoke was coming to their house also
through the door fixed in the partition wall. He further heard cries of
Bharati. Hence he and his wife P.W.3 Malan came out of the house and
went in front of the door of Bharati's house. They saw Bharati was in
flames and the appellant was standing outside the house. They
extinguished the fire. At that time Bharati was talking and saying that
her husband was suspecting her chastity; he has poured kerosene on her
person, set her on fire and then he had come out of the house. As per
evidence of P.W.1 Kishor, he and his wife took Bharati to Bhagwati
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Hospital. Bharati was in the hospital for about 5 to 6 days. Thereafter she
died.
10. Though this witness is cross examined at length, absolutely
nothing worthwhile is elicited in his cross examination to disbelieve him.
No reason is also pointed out for him to state anything falsely against his
own real brother. His evidence also reveals that on the way to the
hospital he got down from the rickshaw near Malwani village in order to
give information to the mother of the deceased. His evidence proves
presence of the appellant at the time of the incident.
11. This evidence gets complete support and corroboration from
the evidence of P.W.2 Ganga, the mother of the deceased, who on
receiving information from P.W.1 Kishor, went to the hospital and there
made enquiry with Bharati. According to her evidence, at that time,
Bharti was conscious and she told her that her husband has poured
kerosene on her and set her on fire.
12. The material piece of evidence is naturally the dying
declaration recorded by P.W.4 Special Executive Magistrate, Manda
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Barba, to whom information was given by the police and she reached
hospital at about 8.30 p.m. According to her evidence, she made enquiry
with the Medical Officer about the condition of Bharati and he told her
that Bharati was in a position to give statement. Then, she went near
Bharati. Bharati opened her eyes, saw her and then she asked Bharati
her name, made enquiry with her about her age and educational
qualification. Thereafter P.W.4 Manda asked her as to how she sustained
the burns and Bharati told P.W.4 Manda that her husband was beating
and illtreating her as he was suspecting her chastity. On that day in the
morning at about 10 to 10.30 a.m., her husband quarrelled with her, went
out of the house, returned in the afternoon and slept thereafter. In the
evening at about 6 to 6.30 p.m., he woke up and poured kerosene oil in
small tin from the big tin. She was folding clothes in the house, her
husband poured kerosene on her and set her on fire by lighting the match
stick due to which she sustained the burns. She made hue and cry and
then her brother-in-law P.W.2 Kishor and P.W.3 Malan, his wife came
to her house and extinguished her fire and brought her to the hospital.
As per evidence of P.W.4 Special Executive Magistrate, Manda, as the
hands of Bharati were burnt, she obtained her thumb impression on the
dying declaration Exh.16. She also got endorsement of the Doctor on
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the same after recording of dying declaration.
13. This dying declaration gets full support and full
corroboration from evidence of P.W.10 API Shinde, who was on duty at
Malwani Police Station and at about 7.30 p.m. on the receipt of message
from Bhagwati Hospital about admission of patient by name Bharati,
having burnt by her husband at about 5.00 p.m. on the ground of
suspicion about her chastity, has rushed to the hospital and thereafter,
after verifying from the Doctor, that she was in position to give
statement, recorded her statement. In the statement before him also,
Bharati has reiterated what she has told before P.W.4 Special Executive
Magistrate, Manda that it was the appellant, who had poured kerosene on
her and set her ablaze. Thereafter her brother-in-law P.W.1 Kishor and
his wife P.W. 3 Malan having heard noise and shouting rushed to her
house and extinguished her fire. They brought Bharati to the hospital
whereas her husband- the appellant remained standing at the door of the
house.
14. According to evidence of P.W.10 API Shinde, after
completion of recording of statement, he has read it over to her. It was
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explained to her. She confirmed the recitals to be correct as narrated by
her and then made thumb impression on the same. He has countersigned
thereon endorsing that the thumb impression was made in his presence.
Thereafter he obtained written endorsement of P.W. 9 Dr. Thakarey on
this statement Exh.27 that she was in position to give statement. On the
basis of this statement /complaint, immediately C.R.No.107 of 2003, was
registered.
15. If at all any further corroboration is required, then it is also
coming from the evidence of P.W.9 Dr.Thakery, who was on duty at
Bhagwati Hospital. According to his evidence, Bharati was admitted in
the hospital at about 7.20 p.m. She was brought by P.W.3 Malan. He has
examined Bharati and found that she suffered 85 to 90% superficial burn
injuries. He asked history to her and Bharati informed him that she was
burnt by her husband by pouring kerosene on her body and setting her
ablaze by lighting the match stick. He has recorded said history in the
case papers Exh.25. He has further deposed that after some time, P. W.4
Special Executive Magistrate, Manda came there, made enquiry with
him about Bharati and he has informed her and made endorsement on the
dying declaration also that the patient was in condition to give statement.
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At the same time, police officer had also come and he also made enquiry
with him about the condition of Bharati and he has told him that Bharati
was in a position to give statement and after statement was recorded by
police officer, he has made endorsement thereon.
16. Thus, there are two oral dying declarations made by Bharati
before P.W.1 her brother-in-law Kishor, P.W.2 her mother Ganga and
three written dying declarations, one in the form of history noted in the
case papers Exh.25 by P.W.9 Dr. Thakery, another Exh.16 as recorded
by P.W.4 Special Executive Magistrate, Manda and third, the complaint
Exh.27, as recorded by P.W.10 API Shinde. All these four dying
declaration are thoroughly consistent with one another. They are
recorded immediately after the incident within a span of 2 to 3 hours
and that too by independent persons like P.W.9 Dr. Thakare, P.W.10
API Shinde, and P.W.4 Special Executive Magistrate, Manda . Though
P.W.1 Kishor is her brother-in-law, as stated above nothing is suggested
in his cross examination to point out any reason for him to implicate his
real brother falsely. All these dying declarations are categorical to the
effect that it was the appellant who has poured kerosene on Bharati and
set her ablaze.
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17. The evidence of P..W.9 Dr. Thakarey goes to prove that
Bharati succumbed to these burn injuries on 17.7.2003. The
postmortem examination is conducted by P.W.6 Dr. Vihurkar which
reveals that Bharati has sustained 76% burns on vital parts of the body
and the cause of her death was septicemia due to those burns. The
postmortem report is at Exh.20.
18. Thus, the evidence on record categorically goes to prove
guilt of the appellant. Though appellant has examined his nephew to
show that at the time of incident, he was not in the house and was
playing football and only after hearing commotion he has rushed to the
house, the evidence on record falsifies plea raised by the appellant. The
evidence of P.W.1 Kishor clearly proves that appellant was very much
present outside the house when he rushed there on hearing cries of
Bharati.
19. As per evidence of P.W.11 Police Inspector, Chaskar, at the
time of arrest of the appellant on the same day, some burn injuries were
found on his right hand and hence he was referred to Bhagwati Hospital
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where he was examined by Doctor on 14.7.2015 at 15.25 hrs and there
they found 6 to 7% superficial to deep burns on his right hand. The
certificate to that effect is produced at Exh.38. Though the appellant has
raised defence that these injuries were sustained by him while
extinguishing the fire, it canhardly be accepted. If it was so, then injuries
should have been on both hands and not only on the right hand. This
burn injury to right hand proves his involvement in the act of pouring
kerosene and lighting the match stick. The evidence of P.W.1 Kishor,
clearly goes to prove that the appellant was standing outside the door of
the house while they found Bharati in flames and it was P.W.1 Kishor
and his wife P.W.3 Malan, who extinguished her fire; whereas the
appellant did not make any effort to do so. Therefore, the involvement
of the appellant in the act of setting Bharati on fire is writ large on the
face of record and proved beyond doubt.
20. The only contention raised by learned counsel for appellant
is that P.W.3 Malan, the wife of P.W.1 Kishor, has however, not
supported the prosecution case. In our considered opinion, merely
because she has disowned the prosecution case and hence declared
hostile by prosecution, the evidence of P.W.1 Kishor and
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unimpeachable evidence of dying declarations cannot be discarded.
Moreover, to some extent, she has also supported the case of
prosecution by depositing that when they saw smoke coming from the
house of appellant, they went there and saw Bharati in flames in her
house, then she herself and her husband extinguished fire. Therefore, her
evidence also supports the prosecution case to a major extent.
21.
An attempt is made by learned counsel for appellant to
submit that in none of her dying declarations, Bharati has disclosed the
fact that she was five months pregnant, which fact is proved on record by
the evidence of Doctor. In our considered opinion, non disclosure of this
fact by Bharati, in her dying declarations, does not make any difference
to the validity of dying declaration. There is also no merit in the
submission that the cause of death of deceased Bharati that is the
septicemia was on account of death of a child in her womb because the
evidence of P.W.9 Dr. Thakarey and P.W.6 Dr. Vihurkar, is categorical
that the cause of her death was 77% burn injuries sustained by her.
22. Learned counsel for appellant has then submitted that at the
time of recording dying declaration Exh.16 by P.W.4 Special Executive
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Magistrate, Manda, and complaint Exh.27 by P.W.10 API Shinde,
P.W.9 Dr. Thakarey, was not present. This fact is admitted by P.W.9
Dr. Thakarey himself and therefore, according to him, whether Bharati
was in fit physical and mental condition to give such statement is not
proved. The reliance in this respect is also placed on the judgment of our
High Court in Shripad Arjun Kamat -vs- State of Goa, 2002(5)
LJSOFT 133. However, facts of this reported authority reveal that non
presence of Doctor at the time of recording dying declaration was
considered fatal in the light of the facts that Exh.30 and 31 memos
issued to the Doctor though bear endorsement, "fit for statement" the
said endorsement was not appearing on the copies of the memos which
were supplied to the accused alongwith charge-sheet. Hence it was held
that an attempt has been made by the prosecution to put an endorsement
on Exh.30 and 31 subsequently probably, which in reality had not
existed on these memos. In the light of these facts, it was held that
recording of dying declaration becomes suspicious. As against it, in the
present case, P.W.9 Dr. Thakarey has categorically stated that
immediately on arrival of Bharati, he has examined her and thereafter
within one or two hours, P.W.4 Special Executive Magistrate, Manda
and P.W.10 API Shinde had come. Both of them had independently
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made enquiries with him and he had informed them that Bharati was in a
position to give statement. After recording was completed,they had
approached him and he has made endorsements on both the statements
that Bharati was in a position to give statement. Therefore, merely
because he was not present at the time of actual recording of the
statements, it will not make any difference, especially when both these
witnesses viz P.W.4 Special Executive Magistrate Manda and P.W.10
API Shinde, have verified the condition of Bharati by asking her
various questions and satisfied themselves that she was in a position to
give statement. It is also pertinent to note that Bharati has survived
those injuries for about four days. She died on 17.7.2003. It was also not
case of 100% burns. Hence there is no question of doubting her fitness to
give statements and on that ground dying declarations cannot become
suspicious in any way.
23. Learned counsel for appellant has then relied upon State of
Maharashtra -vs- Raghunath Ramchandra Sable 2015 (11) LJSOFT
101, wherein the evidence on record showed that the thumb impression
of the deceased on the dying declaration was not attested by Special
Executive Magistrate, but it was attested by police. Moreover, several
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other infirmities were also pointed out in the dying declaration, like there
was no mention in the dying declaration that the contents were read over
to the deceased and those were as per her narration. It was further found
that the history of accidental burns due to explosion of stove was given
by patient herself to the Medical officer; whereas in dying declaration
she had stated that her husband poured kerosene on her person and set
her ablaze. Moreover, Doctor had admitted that at the time of recording
dying declaration relatives of deceases were present near the bed. In the
light of those infirmities and lapses in recording of dying declaration, the
evidence relating to it was disbelieved.
24. Per contra, in the instant case, the evidence of P.W.10 API
Shinde and P.W.4 Special Executive Magistrate- Manda, goes to prove
that the contents of dying declaration were read over to Bharati. She has
admitted them to be correct and then made Thumb Impression in their
presence. They have countersigned on the dying declaration. There is
also no evidence to show that any of the relatives of the deceased were
present with Bharati before dying declaration was recorded and lastly
dying declaration recorded by P.W.4 Special Executive Magistrate,
Manda and by P.W.10 API Shinde is thoroughly consistent with the
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history given by Bharati before Doctor at the time of treatment and
discloure made before P.W.1 Kishor.
25. Thus, having reappreciated the entire oral and documentary
evidence on record, we are convinced that in this case, the prosecution
has proved the guilt of the appellant beyond reasonable doubt for the
offence punishable under Section 302 of the Indian Penal Code. Hence
appeal deserves to be dismissed and stands dismissed accordingly. The
office to communicate this order to the appellant who is undergoing his
sentence in Central Jail at Thane.
[ACTING CHIEF JUSTICE.]
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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CERTIFICATE
Certified to be true and correct copy of the
original signed judgment
