Bombay High Court
Subhash Tikaram Jadhav vs The State Of Maharashtra on 19 December, 2016
Bench: V.K. Tahilramani
1. cri apeal 167-11 (j).doc
RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 167 OF 2011
Subhash Tikaram Jadhav
Age - 37 Years, Occ. - Cook in School,
R/at - Ashrif School, Hingoli,
Taluka Bhiwandi, Dist. Thane.
[At present lodged in Thane Central
Prison, Thane] .. Appellant
[Org. Accused)
Versus
The State of Maharashtra
[ At the instance of Bhiwandi Police
Station, Bhiwandi ] .. Respondent
(Org. Complainant)
...................
Appearances
Mr. Pramod Patel Advocate for the Appellant
Mr. H.J. Dedia APP for the State
...................
CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : DECEMBER 19, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant -original
accused against the judgment and order dated 30.10.2010
passed by the learned Extra Joint Ad-hoc Additional Sessions
Judge, Thane in Sessions Case No. 128 of 2009. By the said
jfoanz vkacsjdj 1 of 16
1. cri apeal 167-11 (j).doc
judgment and order, the learned Session Judge convicted the
appellant for the offence punishable under Section 302 of IPC
and sentenced him to suffer rigorous imprisonment for life
and fine of Rs. 1000/-, in default R.I. for two months.
2. The prosecution case briefly stated, is as under:
(a) The appellant was married to Meena about 12
years prior to the incident. They had three
children. One of them was PW 4 Vaishali. At the
time of the incident, the appellant, his wife and
their children were residing at Village Nimboli,
District Thane. The appellant used to drink liquor
and beat Meena under the influence of liquor.
Meena used to inform this fact to her brother PW 6
Ganesh, hence, one month prior to the incident,
PW 6 Ganesh had taken his sister Meena to his
house at Nasik. Meena made a complaint to
Mahila Mandal Nashik about the harassment to
her by her husband. Thereafter, the dispute was
jfoanz vkacsjdj 2 of 16
1. cri apeal 167-11 (j).doc
settled in the office of Mahila Mandal Nashik.
Meena then went to her husband's house at
Nimboli.
(b) There was Bhaubeej festival on 30.10.2008. The
sister of the appellant had come to their house,
however, on account of the behaviour of Meena,
the sister of the appellant along with her husband
left the house of the appellant and went away.
On account of this, on the next day i.e on
31.10.2008 in the morning, Ankush (original
accused No 2), the brother of the appellant called
the appellant and told him why he sent his sister
and sister's husband back immediately.
Thereupon, the appellant got angry and a quarrel
took place between the appellant and his wife
Meena. The appellant then poured kerosene on
Meena and set her on fire. The appellant then
went out of the house. Neighbours extinguished
jfoanz vkacsjdj 3 of 16
1. cri apeal 167-11 (j).doc
the fire. Meanwhile, the appellant came back and
took Meena to the hospital. In the hospital two
dying declarations of Meena came to be recorded
i.e Exh. 30 and Exh. 48. Exh. 48 was recorded
first in point of time. It was recorded by PW 9 PSI
Pashte. The said dying declaration was treated as
FIR. Thereafter, investigation commenced.
Meanwhile, the second dying declaration of Meena
(Exh. 30) was recorded by PW 8 API Jadhav and
PW 3 S.E.O Ms. Yasmin Irani. Meena expired on
17.11.2008. The offence was converted from
Section 307 to Section 302 of IPC. After
completion of investigation, charge sheet came to
be filed. In due course, the case was committed
to the Court of Sessions.
3. Charge came to be framed against the appellant under
Section 302 of IPC and against the brother of the appellant
(accused No. 2) under Section 302 r/w 109 of IPC. The
jfoanz vkacsjdj 4 of 16
1. cri apeal 167-11 (j).doc
accused pleaded not guilty to the said charge and claimed
to be tried. Their defence was that of total denial and false
implication. After going through the evidence adduced in
this case, the learned Sessions Judge acquitted original
accused No. 2 of the offences charged, however, he
convicted and sentenced the appellant-original accused No.
1 as stated in paragraph 1 above, hence, this appeal
preferred by the appellant against his conviction and
sentence.
4. We have heard the learned counsel for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
arguments advanced by the learned counsel for the
parties, the judgment delivered by the learned Sessions
Judge and the evidence on record, for the reasons stated
below, we are of the opinion that the appellant poured
kerosene on his wife Meena and set her on fire.
jfoanz vkacsjdj 5 of 16
1. cri apeal 167-11 (j).doc
5. The conviction of the appellant is based on two dying
declarations i.e Exh. 30 and Exh. 48. As far as the second
dying declaration Exh. 30 is concerned, we are not inclined
to rely on the same because there is no endorsement on the
dying declaration about physical and mental fitness of the
deceased. No doctor has also been examined to show that
when dying declaration Exh. 30 was recorded, the doctor had
examined Meena and found her in a fit condition to give a
statement. In addition, it is seen that PW 8 API Jadhav who
recorded the dying declaration of Meena did not put any
preliminary questions to Meena to satisfy himself that
Meena was in a fit condition to give a dying declaration. PW 3
SEO Yasmin Irani who recorded the dying declaration Exh. 30
which was scribed by PW 8 API Jadhav has also not stated
that she put any preliminary questions to Meena to satisfy
herself that Meena was in a position to give a dying
declaration. In view of all these facts, we are not inclined to
place reliance on this dying declaration.
jfoanz vkacsjdj 6 of 16
1. cri apeal 167-11 (j).doc
6. Exh. 48, the first dying declaration of Meena was
recorded by PW 9 PSI Pashte. PSI Pashte has stated that on
31.10.2008, he was on duty at Sion Hospital. He was called
by Dr. Anant Narayan through the ward-boy for recording
dying declaration of burn patient Meena. He then made
inquiry with the patient (Meena) and the patient told him
that her husband started quarreling with her; thereafter her
husband poured kerosene on her and set her on fire.
7. That Meena was in a fit condition to give the dying
declaration Exh. 48 is seen from the evidence of PW 14 Dr.
Chandrashekhar Anantnarayan. Dr. Anantnarayan has
stated that on 31.10.2008, he was on duty at Sion Hospital
as a medical officer. One police officer approached him and
requested him to examine the patient namely Meena Jadhav
who had sustained burn injuries. The police officer
requested him to disclose whether the patient was in a
position to make a statement. On examining the lady, Dr.
Anantnarayan disclosed to the police officer that the patient
jfoanz vkacsjdj 7 of 16
1. cri apeal 167-11 (j).doc
was in position to make a statement. Thereafter, the officer
recorded the statement of the patient namely Meena Jadhav
in his presence.
8. Mr. Patel, the learned counsel for the appellant placed
reliance on the decision of this Court in the case of
Shakuntalabai Khairuprasad Joshi Vs. State of
Maharashtra1 . He placed reliance on paragraph 9 of the
said decision wherein it has stated that "it is necessary for
the recording officer to ascertain fitness of the state of mind
of the patient / victim to make a dying declaration. The
patient must be in a position to understand and answer the
questions put to him / her. The preliminary questions put up
by the recording officer and answers given by the patient
assumes importance for to rely upon the same in order to
record conviction. In other words, sufficient evidence is
necessary to make the dying declaration worthy of reliance."
In Shakuntalabai, no Doctor was examined. There was no
material to show that any doctor examined the patient to
1 2012 All M.R. (Cri) 1970
jfoanz vkacsjdj 8 of 16
1. cri apeal 167-11 (j).doc
ascertain whether the patient was in a fit condition to give a
dying declaration, hence, these observations about the
recording officer putting preliminary questions to satisfy
himself were made. In the present case, it is seen that there
is sufficient evidence to show that the dying declaration is
worthy of reliance. PW 14 Dr. Anantnarayan has
categorically stated that Meena was in a position to make
the statement.
9. Thereafter, Mr. Patel placed reliance on paragraph 13 of
the said decision which reads thus:-
" 13. ........ Thus when the patient is in the Hospital receiving
medical treatment, the certificate is needed from the attending
doctor in respect of written dying declaration to the effect that the
patient was fit and conscious to make statement before recording
it and throughout the time taken for recording it. It is unsafe to
rely upon the dying declaration if the veracity of it is doubtful."
It is noticed that in the case of Shakuntalabai, the
doctor who examined the patient to show that the patient
was in a fit condition to give a dying declaration was not
examined, therefore, this Court observed that at least a
jfoanz vkacsjdj 9 of 16
1. cri apeal 167-11 (j).doc
certificate is needed from the attending doctor to the effect
that the patient was fit and conscious to make a statement.
In the present case, PW 14 Dr. Anantnarayan has clearly
stated that he examined the patient and he found her in a fit
condition to give a statement. The facts in the case of
Shakuntalabai being entirely different from the facts in the
present case, this decision cannot be made applicable to the
facts of the present case.
10. In the present case, the prosecution specially through
the evidence of PW 14 Dr. Anantnarayan has proved that
Meena was in a fit state of mind to make a dying declaration.
No doubt only the signature of the doctor appears on the
dying declaration, however, the evidence of PW 14 Dr.
Anantnarayan clearly shows that he had examined Meena
and found her in a fit condition to give a statement.
11. Mr. Patel submitted that PW 14 Dr. Anantnarayan did
not know Marathi, hence, it was not possible for Dr.
jfoanz vkacsjdj 10 of 16
1. cri apeal 167-11 (j).doc
Anantnarayan to question Meena to satisfy himself about
fitness of Meena to give a dying declaration. However, the
evidence of PW 14 Dr. Anantnarayan shows that he
examined the lady i.e Meena Jadhav and on examining her,
he found her in a position to make a statement. It is not
always necessary for the doctor to put questions to the
patient to ascertain whether the patient is in a fit condition
to give a statement. Even if the doctor examines the patient
and then finds that the patient is in a fit condition to make a
statement that would be enough. At this stage, we would
like to state that Meena had sustained only 60%-65% burns
and she survived for almost 17 days as she had expired on
17.11.2008. This shows that condition of Meena was not
critical and she was in a position to make a dying
declaration.
12. It is well settled that a dying declaration can be the sole
basis for conviction. The dying declaration Exh. 48 in our
opinion is worthy of reliance. However, in addition to the
jfoanz vkacsjdj 11 of 16
1. cri apeal 167-11 (j).doc
dying declaration Exh. 48, there are three oral dying
declarations on record. These oral dying declarations have
been made in the presence of PW 4 Vaishali, PW 5 Prakash
and PW 6 Ganesh.
13. PW 4 Vaishali is the daughter of the deceased and the
appellant. She has stated that she saw that the maxi of her
mother was on fire. Thereafter, the landlord made a query
to her mother regarding what had happened. Thereupon,
her mother stated that her husband had set her on fire after
pouring kerosene on her.
14. PW 5 Prakash is the father of Meena. He has stated that
Meena was his daughter and the appellant was his son-in-
law. He came to know that Meena was taken to the hospital
as she was set on fire by the appellant. He then went to the
hospital to see his daughter. He made inquiry with his
daughter Meena regarding how she had sustained injuries.
Thereupon Meena disclosed to him that her husband set her
jfoanz vkacsjdj 12 of 16
1. cri apeal 167-11 (j).doc
on fire after pouring kerosene on her.
15. PW 6 Ganesh is the brother of Meena. He has stated
that on 31st, they learnt from phone call of Vaishali that the
appellant set Meena on fire. On receiving the information,
they went to Sion Hospital to see Meena. At the hospital, on
inquiry, Meena disclosed that on the day of the incident in
morning time, her husband had received the phone call from
his brother and thereupon a quarrel started between her and
her husband; thereafter her husband set her on fire after
pouring kerosene on her.
16. Mr. Patel submitted that even assuming the appellant
set his wife Meena on fire, the act of the appellant would not
fall under Section 302 of IPC but it would at the most fall
under Section 304-II of IPC. He submitted that the appellant
had no intention to cause the death of Meena. In support of
his contention, he has placed reliance on the dying
declarations Exh. 30 and Exh. 48. In both these dying
jfoanz vkacsjdj 13 of 16
1. cri apeal 167-11 (j).doc
declarations, Meena has stated that after setting her on fire,
her husband immediately came back and took her to the
hospital. Mr. Patel further submitted that the incident had
occurred during the course of sudden quarrel which has been
stated by Meena in both the dying declarations. He
submitted that this coupled with the fact that the appellant
immediately came back and took Meena to the hospital
shows that the case would not fall under Section 302 of IPC.
17. No doubt, the evidence on record shows that it was the
appellant who set Meena on fire, however, the pivotal
question which arises in the facts and circumstances of this
case is what is the nature of the offence proved against the
appellant? It is an admitted fact that the appellant had a
quarrel with his wife Meena. Thereafter, he set her on fire,
however, immediately thereafter, he returned back and took
her to the hospital. This conduct cannot be seen divorced
from the totality of the circumstances. One also has to keep
in mind that Meena had sustained only 60-65% burns and
jfoanz vkacsjdj 14 of 16
1. cri apeal 167-11 (j).doc
she died 17 days after the incident. If the appellant had ever
intended Meena to die, he would not have immediately
rushed her to the hospital in an effort to save her. In view of
the evidence on record, we are inclined to think that the
appellant did not intend to cause her death but
unfortunately the situation slipped out of his control and it
went to a fatal extent. It is obvious that the appellant
realized his folly and was full of remorse, therefore, he
immediately rushed his wife to the hospital in order to save
her. In this view of the matter, the case would fall under
Section 304-II of IPC. We stand fortified in taking this view in
view of the observations of the Supreme Court in the case of
Kalu Ram Vs. State of Rajasthan 2 . In the said case also,
similar facts arose and the Supreme Court held that the case
would not be covered by Section 302 of IPC but it would be
covered by Section 304-II of IPC.
18. In view of above facts and circumstances, we are of the
opinion that the present case would fall under Section 304-II
2 2000 (10) SCC 324
jfoanz vkacsjdj 15 of 16
1. cri apeal 167-11 (j).doc
of IPC, hence, we alter the conviction of the appellant from
Section 302 of IPC to Section 304-II of IPC. In our opinion,
rigorous imprisonment of 8 years with fine amount of Rs.
1000/-, in default R.I. for two months would meet the ends of
justice.
19. The conviction and sentence imposed by the learned
Additional Sessions Judge, Thane by Judgment and Order
dated 30.10.2010 passed in Sessions Case No. 128 of 2009 is
accordingly modified.
20. Appeal is allowed to the aforesaid extent.
[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ]
jfoanz vkacsjdj 16 of 16
