Dilip Narsingrao Sonwane vs The State Of Mah
2016 Latest Caselaw 1650 Bom

                                                                                           criapp668.12.doc
                                                       1


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                      BENCH AT AURANGABAD 




                                                                                            
                              CRIMINAL APPEAL NO. 668 OF 2012   




                                                                    
    Dilip s/o Narsingrao Sonawane
    age 41 years, occ.labourer
    r/o Janta Colony, nanded
    (at present in Central Prison,
    Harsul, Aurangabad.)                                                        .. APPELLANT 




                                                                   
    VERSUS
     
    The State of Maharashtra
    Through Chief Secretary,




                                                     
    home Department,
    Mantralaya, Mumbai 32.       ig                                             .. RESPONDENT


    Mr. Hemant Surve, advocate for appellant.  
    Mr. S.J. Salgare, APP for the State.  
                               
                                                          =====

                                                             CORAM :  R.M. BORDE &
                                                                        K. L. WADANE, JJ.  

                                                             DATE    :  20th APRIL, 2016. 
      


     
    JUDGMENT : ( PER R.M. BORDE, J. )
   

1. Accused/appellant was tried for commission of offence of murder of

his wife Sonabai in Sessions Case No. 57/2011 before the Court of Sessions

at Nanded and has been held guilty for commission of offence under section

302 of the Indian Penal Code and, is sentenced to suffer rigorous

imprisonment for life and to pay fine of Rs. 1,000/-, in default, to suffer six

months rigorous imprisonment.

2. According to prosecution, accused Dilip is the husband of deceased

Sonabai and they were residing together alongwith son Amol at Janta

Colony, Nanded in the rented premises owned by Arunabai Mane PW2. The

incident in question has occurred on 27.11.2010 at about 9.30 pm at the

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rented residential house of the accused. It is alleged that accused was

suspecting fidelity of his wife and used to beat her. On 27.11.2010 at about

9.30 pm while deceased Sonabai was at the residence, accused came in

drunken condition and started abusing her. He assaulted deceased on the

count of her refusal to give money for purchasing liquor. It is alleged that

accused shut the door and bolted it from inside. He took up plastic bottle

containing kerosene and poured kerosene on the person of the deceased

and set her on fire by throwing lighted matchstick. Deceased got fire and

raised hue and cry. Upon hearing shouts, neighbours and the land lady

Arunabai rushed on the spot. Accused ran away from the house. It is

stated that deceased Sonabai was admitted in Government hospital at

Nanded. At the hospital, after her admission, her statement was recorded

by Head Constable Ashok Handebag at about 1.30 pm on 28.11.2010 after

securing certification from the Medical Officer in respect of condition of the

patient. On 29.11.2010, dying declaration of deceased was recorded by

Special Executive Magistrate Mahesh Wadajkar wherein the deceased

implicated the accused as a culprit who poured kerosene on her person and

set her ablaze. Deceased Sonabai died at the hospital on 14.12.2010. She

had suffered 46% burn injuries and cause of her death is septicemic shock

due to superficial deep burn injuries.

3. After completing investigation, charge sheet was submitted to the

Court. The case being triable by the Court of Sessions, it was committed to

the Sessions Court for trial. Charge of commission of offence under section

302 of the Indian Penal Code was framed against accused vide exh. 6 to

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which he pleaded not guilty and claimed to be tried. Defence of accused is

of denial. According to him, deceased got burns accidentally while

preparing food.

4. In order to substantiate guilt of the accused, prosecution has

examined eleven witnesses. The case merely rests on two dying declarations

recorded by Police Head Constable Ashok Handebag and Special Executive

Magistrate Mahesh Ajabrao Wadajkar. With the assistance of learned

counsel appearing for accused/appellant as well as learned APP, we have

scanned the evidence. According to us two consistent dying declarations

wherein deceased has unequivocally stated that accused/appellant is the

culprit who poured kerosene on her person and set her ablaze, need to be

accepted. PW 10 Ashok Handebag has stated in his deposition that on the

relevant day i.e. 27.11.2010 from 20.00 hours to 28.11.2010 he was on

patrolling duty. He received phone message from PSO Shivajinagar at

1.00 am informing that patient has been admitted which is a medico legal

case and that he should rush to the Government hospital, Nanded. On

MLC report, name of patient is recorded as Sonabai Dilip Sonawane. He

went to the Government hospital and contacted Medical Officer of ward no.

14 and informed him that he intends to record statement of the injured lady.

The Medical Officer took him to the patient who was identified as Sonabai.

Medical Officer examined the patient and made endorsement certifying that

the patient is in a position to talk. The witness thereafter proceeded to

record statement of deceased Sonabai. PW 10 Ashok recorded her

statement as per her narration. Deceased Sonabai affixed her thumb

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impression on the statement. Medical Officer after recording of statement

again examined the patient and made endorsement on the dying declaration

below recording of the statement that the patient is conscious. Police Head

Constable Ashok thereafter went to the police station and on the basis of

said statement, crime came to be registered.

4. On perusal of dying declaration exh. 22 recorded by PW 10 Ashok, it

is revealed that deceased Sonabai has in unequivocal terms stated that it is

accused Dilip who came in drunken condition and picked up quarrel with

her. After entering the room he bolted the door from inside, he picked up

plastic bottle containing kerosene and poured the same on her person and

set her on fire by igniting matchstick. Deceased shouted for help,

thereupon the neighbours and the landlady came and they admitted her to

the Government Hospital. Another dying declaration has been recorded by

PW 9 Mahesh Wadajkar, Special Executive Magistrate. Mahesh has stated

in his deposition that on 28.11.2010, he received requisition letter from

police requesting him to record statement of Sonabai. The copy of the letter

is produced on record and marked as exh. 37. He thereupon reached the

burn ward of Government Hospital, Nanded at about 5.20 pm. He

introduced himself to Dr. Nikhil Bhambre, Medical Officer attached to burn

ward and informed him that he intends to record dying declaration of

patient Sonabai. The Medical Officer took him near the bed of the patient.

The witness further states that he drove out relatives of deceased and

accused who were near the patient. Medical Officer examined the patient to

ascertain her condition and made endorsement on the statement that the

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patient is in a position to talk. Witness introduced himself to the patient.

The witness further states that he gave her oath before recording of her

statement. The statement was reduced into writing as per her narration.

The witness further states that he took her thumb impression on the

statement. Medical Officer who was present there examined the patient and

put endorsement in respect of her condition below the statement. Dying

declaration is admitted in evidence and is at exh. 39. There is nothing in

the cross-examination which falsifies the facts narrated by the witness or

which create any doubt in respect of veracity of the statement of the

witness. On perusal of dying declaration at exh. 39, it appears to be

substantially same as recorded by Head Constable Ashok at exh. 22. In the

statement recorded by Executive Magistrate, it is stated by deceased that at

about 9.30 to 10.00 pm on 27.11.2010, accused came back to the residence

in drunken state and put lock to the door from inside. It is further stated

that accused raised quarrel with her and abused her in filthy language. He

extended threat to kill her and also asked her to given consent for divorce.

It is alleged by Sonabai that thereafter accused poured kerosene on her

person and set her on fire. Accused himself poured water on her person

and thereafter ran away. It is stated that at the relevant time her minor son

Amol was at the residence.

5. PW 8 Dr. Nikhil has been examined by prosecution to prove

endorsement in respect of condition of the patient put by him on dying

declaration recorded by PW 10 Head Constable Ashok as well as PW 9

Special Executive Magistrate Mahesh Wadajkar. PW 8 stated in his

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deposition that police Head Constable recorded dying declaration of

deceased on 28.11.2010 at about 1.30 am and at the relevant time the

patient was in a position to make statement. The witness has admitted

endorsement put on dying declaration at exh. 22 recorded by Head

Constable Ashok as regards condition of the patient. The witness has

further deposed about recording of statement by PW 9 Mahesh Wadajkar,

Special Executive Magistrate, and has also certified correctness of the

endorsement made by him in respect of condition of the patient before and

after recording of the statement by the Special Executive Magistrate. It thus

can be concluded that at the time of recording dying declaration by Head

Constable Ashok as well as PW 9 Mahesh Wadajkar, Special Executive

Magistrate, the patient was in a condition to speak. Both the witnesses

have recorded dying declarations in observance of the procedure and after

ascertaining condition of the patient. Learned counsel appearing for the

accused vehemently contends that there are variances in the dying

declarations recorded by PW 9 Mahesh and PW 10 Ashok. It is contended

that in the dying declaration exhibit 39 recorded by the Special Executive

Magistrate, the deceased is stated to have deposed that after reaching home

accused put lock to the entrance door from inside and that he also asked

her to agree for divorce. The inconsistencies that have been pointed out are

in respect of pouring water on her person by her husband and reaching her

to the hospital after the incident by her parents. In the statement at exh.

22 recorded by Head Constable Ashok, the deceased has stated about

bolting the door from inside after accused reached home. In the dying

declaration recorded by PW 10 Ashok, it is alleged that accused Dilip was

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demanding money for purchasing liquor, which fact does not appear to have

been stated in the dying declaration at exh. 39. The act of pouring water by

the husband after setting her on fire is not stated by her in the dying

declaration at exh. 22 whereas in dying declaration at exh. 39, it is stated

that her neighbours and landlady reached her to the hospital. The

discrepancies in both the dying declarations pointed out by learned counsel

for accused are not sufficient to disbelieve the dying declarations which are

otherwise consistent. In the dying declaration at exh. 22, the deceased has

stated that accused Dilip was suspecting her character and used to beat her

and as such he poured kerosene on her person and set her on fire. This fact

does not appear to have been mentioned in exh. 39 recorded by the Special

Executive Magistrate.

6. The presence of accused at the time of incident is duly proved and

has not been denied. PW 2 Arunabai is the land lady who was present at

the residence at the relevant time. The land lady resides in the same house

which consists of total six rooms out of which three rooms were given on

rent. Accused and his wife used to reside in one room which is part of the

same house. It is stated by PW 2 in her deposition that at about 8.00 pm

she was in the house and heard voice of deceased 'save save' from her room

and thereafter she rushed to the room however, the entry door was closed.

The door was opened by the accused and it was noticed by the witness that

deceased had sustained burn injuries on her face etc. Witness further

states that she went to the house of parents of the deceased who reside

nearby and informed them about the incident. On their arrival they took

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deceased to the hospital. Although there appears to be some inconsistency

in respect of time of occurrence and as to whether PW 2 took her to the

hospital, they are of minor nature which according to us, are not sufficient

to persuade us to disbelieve prosecution version. As has been stated above,

the substratum of prosecution allegations that it is the accused who poured

kerosene on the person of the deceased and set her on fire is consistent in

both the dying declarations of deceased Sonabai. Deceased alongwith

accused were present at the house at the relevant time, has also been

deposed by PW 2 Arunabai. PW 3 Vinod who is the nephew of deceased has

been examined by prosecution. PW 3 stated in his deposition that deceased

Sonabai was his maternal aunt and accused is his maternal uncle. It is

stated by the witness that at about 9.30 pm while he and his parents were

taking meal, land lady of deceased came and informed that deceased has

sustained burn injuries. Witness alongwith his uncle Sheshrao reached the

house of accused and noticed that deceased had sustained burn injuries on

chest, both hands etc. On making enquiry, deceased told him that accused

was demanding money for consumption of liquor and was suspecting her

character and as such, poured kerosene no her person and set her on fire.

Deceased was taken to the hospital by witness Vinod and his uncle

Sheshrao. He further deposed that when he reached residence of the

deceased her son Amol was also there. There is little to disbelieve the

version of the witness who has immediately spoken with the deceased after

occurrence of the incident. Oral dying declaration given to PW 3 Vinod is

consistent with the theory of prosecution as has been set out in dying

declarations exh. 22 and 39. PW 4 Amol, son of accused, has been

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examined by prosecution. The witness was aged about 7 to 8 years at the

time of incident. Learned Sessions Judge has observed that the witness

does not understand the sanctity of oath and as such oath was not

administered to the witness. The child witness has deposed conflicting

versions in respect of the incident. Although in the examination-in-chief he

accuses his father as the person who has poured kerosene on the person of

his mother and set her on fire, however, in the cross examination the

witness has stated that his mother was cooking meal and at that time the

stove got burst and she sustained burn injuries. In re-examination again

the witness has reverted back to the statement as stated by him in the

examination-in-chief and made allegations against his father. It is recorded

by learned Sessions Judge, after observing the demeanor of the witness that

the child witness is not believable. We do not find any reason to controvert

the observations of the learned Sessions Judge. The evidence lead by

prosecution which mainly consists of two dying declarations at exh. 22 and

39 coupled with the version of Arunabai PW 2 in respect of presence of the

accused at the spot of occurrence and the oral dying declaration of deceased

given to PW 3 Vinod, is sufficient to hold accused guilty. The defence raised

by accused is not acceptable since there are no circumstances appearing in

the prosecution version which supports the defence of accused that as a

result of bursting of stove there was fire which resulted in sustainance of

burn injuries by deceased and her consequential death.

7. Although there are certain minor inconsistencies in two dying

declarations recorded by police Head Constable Ashok and the Special

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Executive Magistrate Mahesh, they are not of such a nature which compel

us to dis-believe the version stated by deceased in its totality. In cases

wherein multiple dying declarations are recorded, if acceptance of one

version necessarily leads to rejection of the version stated in other dying

declarations, then only the evidence in the form of multiple dying

declarations need to be discarded. In the instant matter, the substratum of

prosecution version that it is the accused who poured kerosene on the

person of deceased and set her on fire is consistent and, acceptance of one

of the dying declarations does not lead to negation of the other version. The

dying declaration is to pass the test of reliability. In our opinion, both the

dying declarations are reliable inspite of their being minor inconsistencies.

Apart from the version as stated in the dying declaration, presence of

accused at the spot of occurrence at the relevant time is not disputable and

has been proved. Accused has also not denied his presence at the time of

occurrence of the incident. In these circumstances, the burden is heavy on

the accused to explain the circumstances leading to the death of deceased

and, according to us, the defence raised by accused is not reliable. In the

matter of Kushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22, the

Supreme Court has observed thus :

"In order to pass the test of reliability, a dying

declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But, once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the

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dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not

reliable by itself, and that it suffers from an infirmity, then without corroboration, it cannot form the basis of a conviction."

There is neither a rule of law nor a rule of prudence which has

hardened into a rule of law that a dying declaration cannot be acted upon

unless it is corroborated. Primary effort of the Court is to find out, whether

the dying declaration is true. If it is true, no question of corroboration

arises. It is the duty of the Court to scrutinise the dying declaration

carefully and must ensure that the declaration is not the result of tutoring,

prompting or imagination.

8. The Full Bench of this Court in the matter of Ramesh Gyaoba Kamble

Vs. State of Maharashtra reported in 2011(4) Bom.C.R. (Cri.) 42, has

observed thus :

19.4 In State of Uttar Pradesh Vs. Ramsagar Yadav, 1985 DGLS (soft) 13 : 1985 DGLS(Cri) soft 709 : A.I.R. 1985 S.C. 416 the Supreme Court observed that it is well settled as a matter of law,

that a dying declaration can be acted upon without corroboration. There is not even Rule of prudence which has hardened into a Rule of Law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court is to find out whether the dying

declaration is true, if it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.

19.9 In Laxmi Vs. Om prakash, 2001 DGLS (soft) 845 : 2001 DGLS(Cri.) soft 269 : A.I.R. 2001 S.C.W. 2481, the Supreme Court held thus :

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A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not

excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the

same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the

maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to

cross-examination.

9. It is thus settled law that on careful scrutiny of the dying declaration

if the Court is satisfied that the same is free from any infirmity and is

reliable and can be acted upon, it may form basis of conviction even if there

is no corroboration. Confidence of the Court is summum bonum and in the

event of there being any affirmation thereto in the judicial mind, question of

any disbelief or distrust would not arise. In the event however of there being

some infirmity, howsoever negligible it be, the Court unless otherwise

satisfied about the credibility thereof, ought to look for some corroboration.

10. In the instant matter, according to us, the version stated by deceased

in both the dying declarations in respect of complicity of accused in the

alleged crime does appear to be acceptable. As has been stated above, the

presence of accused alongwith company of accused at the relevant time in

the room cannot be ruled out. The version stated in the dying declarations

is corroborated by oral statement made by deceased to her nephew Vinod

who visited her immediately after occurrence of the incident. The

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discrepancies pointed out by defence in the dying declarations at exh. 22

and 39 are of minor nature and do not persuade us to dis-believe the

substratum of the version of prosecution as regards complicity of accused in

the crime. We are of the considered view that evidence put on record by

prosecution inspires confidence for holding accused guilty beyond

reasonable doubt.

11. In view of above, the appeal deserves to be dismissed and the same is

accordingly dismissed.

    ( K. L. WADANE )                                                                   ( R. M. BORDE )
          JUDGE                                                                              JUDGE
      


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