Bombay High Court
Vitthalsing Narayansingh Thakur vs The State Of Maharashtra on 11 December, 2017
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 481 OF 2014
Vitthalsing Narayansingh Thakur ]
Age - 44 Years, Occ. - Nil, ]
residing at Tulsi Narayan Patil Chawl, ]
Room No. 1, Village Ghoddev, ]
Bhayander (E), District Thane. ]
(Confined as Convict No. C-8570, Nashik ]
Road Central Prison) ] Appellant
(Org. Accused)
Versus
The State of Maharashtra ]
(At the instance of Mira Road Police ]
Station, Dist. Thane in C.R. No. I-671 of ]
2008 tried in Sessions Case No. 89/2009 ] Respondent
• Mr. Prosper D'Souza, Advocate (appointed) for the
Appellant
• Mrs. G.P. Mulekar, APP for the State
CORAM : SMT. V.K. TAHILRAMANI, Acting C.J. &
M.S. KARNIK, J.
DATE : DECEMBER 11, 2017.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
1. This appeal is preferred by the appellant-original
accused against the judgment and order dated 19.11.2010
passed by the learned Sessions Judge, Thane in Sessions
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Case No. 89 of 2009. By the said 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. 2,000/-,
in default, R.I. for six months.
2. The prosecution case briefly stated, is as under:
(a) Deceased Chhaya was the wife of the appellant.
She was married to the appellant about 12 years
prior to the incident. At the time of the incident,
the appellant and Chhaya had a 4 years old
daughter.
(b) The incident took place on 26.10.2008 at about
8.30 a.m. At that time, the appellant poured
kerosene on his wife Chhaya and set her on fire.
Chhaya was rushed to the hospital. In the
hospital, Chhaya gave two dying declarations Exh.
28 and Exh. 32 wherein she implicated the
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appellant. The dying declaration Exh. 28 was
treated as FIR. Thereafter, investigation
commenced. Meanwhile Chhaya expired in the
hospital, hence, the offence was converted from
Section 307 to Section 302 of IPC. After
completion of investigation, the charge sheet
came to be filed.
3. Charge came to be framed against the appellant -
original accused under Section 302 of IPC. The appellant
pleaded not guilty to the said charge and claimed to be tried.
His defence was that of total denial and false implication.
After going through the evidence adduced in this case, the
learned Sessions Judge convicted and sentenced the
appellant as stated in paragraph 1 above, hence, this appeal.
4. We have heard the learned Advocate for the appellant
and the learned APP for the State. After giving our anxious
consideration to the facts and circumstances of the case,
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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 caused the death of his wife
by setting her on fire.
5. The conviction of the appellant is mainly based on two
dying declarations Exh. 28 and Exh. 32. The dying
declaration Exh. 28 was recorded by PW 5 Police Head
Constable Telgote. PHC Telgote has stated that on
26.10.2008, he was instructed to go to Bhagwati Hospital to
record the statement of one lady who has received burn
injuries, hence, he went to the hospital. He inquired with the
doctor in charge (PW 8 Dr. Sagaonkar) if the lady was in a
position to give a statement. The doctor replied that the
lady was in a position to give a statement. PHC Telgote then
recorded the statement of Chhaya as per her version and
obtained her thumb impression below her statement. The
said statement / dying declaration is at Exh. 28. In the
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statement / dying declaration, Chhaya has stated that she
was married to the appellant about 12 years prior to the
incident. On the day of the incident i.e on 26.10.2008 in the
morning, her husband defecated in the Mori (bathroom
without WC), hence, a quarrel took place between Chhaya
and her husband. Chhaya then informed her landlady about
the appellant defecating in the Mori. The landlady then
pacified the quarrel and went away. The appellant got angry
as his wife Chhaya had informed their landlady about him
defecating in the Mori, hence, he poured kerosene on his
wife Chhaya and set her on fire. Thereafter, he ran away.
6. PW 8 Dr. Sagaonkar has stated that he was attached to
Bhagwati Hospital. On 26.10.2008, Chhaya Thakur was
brought to the hospital with burn injuries. He admitted her in
the burns ward. He noticed that Chhaya had sustained 90%
burn injuries. On the very same day, Police came to record
the statement of Chhaya. The police inquired with him
whether Chhaya was in a position to give a statement. He
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told the police that Chhaya was in a position to give a
statement. The police then recorded the statement of
injured Chhaya. Dr. Sagaonkar stated that the said
statement is at Exh. 28.
7. Thereafter, PW 6 Special Executive Officer Mr. Valiyakat
recorded the dying declaration (Exh. 32) of Chhaya. This
dying declaration also shows that the appellant poured
kerosene on Chhaya and set her on fire. Mr. D'Souza,
learned Advocate for the appellant submitted that this dying
declaration cannot be relied upon because there is no
endorsement of the doctor on this dying declaration that
Chhaya was in a position to give a statement.
As far as this aspect is concerned, it is noticed that PW
6 SEO Mr. Valiyakat has clearly stated that Chhaya was
conscious and was in a position to gave a statement. The
Supreme Court in the case of Laxman Vs. State of
Maharashtra1 has observed as under:-
" If the materials on record indicate that the deceased was fully
conscious and was capable of making a statement, the dying
1 AIR 2002 SC 2973
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declaration of the deceased thus recorded cannot be ignored merely
because the doctor had not make the endorsement that the deceased
was in a fit state of mind to make the statement in question."
The Supreme Court further observed that :-
" In the absence of a medical certification that the injured was in
a fit state of mind at the time of making the declaration, it would be very
much risky to accept the subjective satisfaction of a magistrate who
opined that the injured was in a fit state of mind at the time of making a
declaration' has been too broadly stated and is not the correct
enunciation of law."
In any event, even if we exclude the dying declaration
Exh. 32 from consideration, the dying declaration Exh. 28
remains. We find that we can safely rely on the dying
declaration Exh. 28 which shows that the appellant poured
kerosene on his wife Chhaya and set her on fire.
8. As far as both the dying declarations are concerned, Mr.
D'Souza submitted that the evidence of PW 3 Darshana
shows that the fingers of both the hands of Chhaya were
burnt, however, both the dying declarations bear thumb
impressions of Chhaya. He submitted that if all the fingers
were burnt, it was not possible to take the thumb
impressions of Chhaya on the dying declarations.
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As far as this submission is concerned, the evidence of
PW 1 Dr. Kate shows that Chhaya had sustained 90%
superficial to deep burns. It is not anybody's case that the
burn on the fingers of Chhaya was so deep that she could not
give a thumb impression. If there are superficial burn
injuries, it is still possible to give a thumb impression. In any
event, the thumb impressions on both the dying declarations
are not very clear that is they do not show clear ridges. This
is on account of superficial burn injuries sustained by
Chhaya. It is pertinent to note that no question was put to
any of the Doctors i.e PW 1 Dr. Kate or PW 8 Dr. Sagaonkar
that the burn injuries on the fingers were such that it was not
possible for the patient to give a thumb impression. Looking
to all these facts, we see no reason to disbelieve that the
dying declarations bear the thumb impressions of Chhaya.
9. In addition to the dying declarations, the prosecution
has relied on the evidence of PW 3 Darshana to show that an
oral dying declaration was made by Chhaya to Darshana.
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Darshana has stated that the appellant, his wife and their 5
years old daughter were living in one room in the premises of
Darshana as tenants. She has stated that on 26.10.2008 at
about 6.00 a.m., quarrel was going on between the appellant
and his wife in their room on account of the appellant
defecating in the Mori in the room occupied by them.
Chhaya complained to the mother of Darshana that under
the influence of liquor, the appellant had defecated in the
Mori in the room occupied by Chhaya and the appellant.
Darshana's mother then tried to make the appellant
understand that he should not come home under the
influence of liquor. Thereafter, Darshana's mother went
away. At about 8.30 a.m., Darshana heard hue and cry from
the room of the appellant. She then went to the room of the
appellant. She saw that Chhaya was on fire. Darshana along
with other neighbours extinguished the flames by pouring
water. At that time, Chhaya told them that she had
complained regarding her husband defecating in the Mori,
hence, her husband had poured kerosene on her and set her
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on fire.
10. The medical evidence also shows that Chhaya had
sustained burn injuries. PW 1 Dr. Kate performed the
postmortem on the dead body of Chhaya. He found that she
had sustained 90% superficial to deep burns over her body.
In his opinion, the cause of death was septicemia following
90% superficial to deep thermal burns (unnatural). The C.A.
report also shows that the clothes of the deceased tested
positive for kerosene residues. This further substantiate the
prosecution case that the appellant had poured kerosene on
his wife and thereafter, set her on fire.
11. Looking to the evidence on record, we are of the
opinion that the prosecution has proved its case against the
appellant beyond all reasonable doubt, hence, we find no
merit in the appeal. The appeal is dismissed.
[ M.S. KARNIK, J ] [ ACTING CHIEF JUSTICE ]
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