Bombay High Court
Syed Tajoddin Syed Rehman vs The State Of Maharashtra on 17 July, 2017
Bench: S.S. Shinde
86.01appeal
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 86 OF 2001
Syed Tajoddin S/o. Syed Rehman,
Age : 35 Years, Occ : Agriculture,
R/o Islampura, Pachod, Tq. Paithan,
Dist. Aurangabad.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.N.S. Ghanekar, Advocate for the appellant.
Mr.S.J. Salgare, APP for respondent/State.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 29TH JUNE,2017.
DATE OF PRONOUNCING JUDGMENT: 17TH JULY, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
This appeal is directed against the
judgment and order dated 22nd February, 2001,
passed by the Sessions Judge, Aurangabad in
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Sessions Case no. 298 of 2000, thereby convicting
appellant (original accused no.1) for the offence
punishable under Section 302 of the Indian Penal
Code (for short "I.P. Code").
2. The prosecution case in nut-shell, is as
under:-
(A) Sangita Madhukar Manmode (now deceased)
was a resident of Kalyan Nagar, Pachod,
Tq.Paithan. She had three daughters and was
earning her livelihood by doing manual work. She
had illicit relations with accused no.1 Tajoddin,
who is resident of Islampura, Pachod, Tq.Paithan.
About six months prior to her death, she had given
an amount of Rs.8000/- to accused no.1 for
purchase of land. At that time, accused no.1
assured her that he would purchase the land in her
name, but accused no.1 spent that amount without
purchasing any land.
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(B) On the day of incident i.e. on 28 th
February, 2000 at about 8 or 8.30 a.m., Sangita
went to the house of accused no.1 and demanded the
amount of Rs.8000/-, which she had given to him
for purchase of land. At that time accused no.1
abused and also threatened her that, if she would
demand the money again, he would kill her by
setting her on fire. Thereupon, she told him that
she would not leave his house unless the amount
was paid. Thereafter, he brought kerosene from
the house and poured it on her person and set her
on fire. masses
(C) At the time of incident, accused no.2
i.e. the wife of accused no.1 Tajbee was also
present there and she also abused Sangita. When
Sangita was burning, neighbours Salim Bagwan and
others came there and extinguished the fire and
took her to Government Hospital, Pachod for
medical treatment.
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(D) Dr. Rajput, the Medical officer (PW-5)
working at Rural Hospital, Pachod, admitted
Sangita in the Hospital and examined her. He found
superficial deep burn injuries to the extent of
100%. He immediately started treatment and
informed police at 8.30 a.m.
(E) P.S.I. Chakre (PW-9) went to the hospital
and recorded statement of Sangita and obtained her
toe impression, as she was totally burnt. He also
obtained the signatures of the doctor on the said
statement, which is treated as first information
report. He thereafter registered the first
information report bearing C.R.No.14 of 2000 under
section 307 of I.P. Code against the accused. He
then went to the place of incident and recorded
statements of the witnesses. On the very same day
at about 3 p.m. Dr. Rajput informed about the
death of Sangita. Then he registered offence
under section 302 of I.P. Code. The inquest
panchnama was drawn and the dead body of Sangita
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was sent for postmortem examination. Thereafter,
Dr. Rajput, Medical Officer performed the
postmortem on the dead body. The Medical Officer
opined that Sangita's death was caused due to
cardio respiratory arrest due to shock due to 100%
superficial deep thermal burns.
(F) During the course of investigation, API
Chakre recorded statements of the witnesses,
including mother of the deceased. He arrested
accused on 18th March, 2000. The pieces of burnt
Sarees found at the place of incident were sent
for chemical analysis. Search of house of
deceased Sangita was taken in presence of panchas,
but nothing useful was found. Chemical Analyzer in
his report stated that kerosene residues were
found on the earth along with synthetic molten
hard masses of cloth pieces of the deceased.
After completion of the investigation, the charge-
sheet came to be filed before the Judicial
Magistrate First Class, Paithan on 24th March,
2000.
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(G) As the offence under section 302 of I.P.
Code is exclusively triable by the Court of
Session, the Judicial Magistrate First Class,
Paithan committed the case to the Sessions Court.
(H) The learned trial Court framed the charge
against both the accused under section 302 read
with 34 of the I.P. Code The said charge was read
over and explained to the accused. They pleaded
not guilty and claimed to be tried.
(I) The prosecution in order to prove the
guilt of the accused has examined in all eleven
witnesses.
3. After recording the evidence and
conducting full fledged trial, the trial Court
convicted appellant (original accused no.1) for
the offence punishable under Section 302 of the
I.P. Code and sentenced him to suffer imprisonment
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for life and to pay fine of Rs.500/-, in default
of fine amount, to suffer rigorous imprisonment
for three months. Hence this Appeal by the
appellant/ original accused no.1.
4. Learned counsel appearing for the
appellant submits that, the present case is only
based upon the circumstantial evidence in the form
of dying declaration and there is no direct
evidence. It is submitted that, there are variance
in the dying declaration, namely, at one place
deceased Sangita alleged that the appellant poured
kerosene and set her on fire, and in second breath
she alleged that, the appellant and his wife both
poured kerosene on her person and set her ablaze.
Therefore, there are contradictions in her version
in the dying declaration. It is submitted that,
the contents of the dying declaration are required
to be taken as a whole and the prosecution can not
pick and choose some part of it to make out a case
against the accused. It is submitted that, if
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there are two dying declarations with some
contradiction about pouring of kerosene and
setting the deceased on fire, then dying
declarations would have no value, however, in the
present case, the contradictions are appearing in
the same dying declaration and therefore, the same
ought to have been discarded. It is submitted
that, the Investigating Officer (P.W.9) in his
deposition has stated that, he obtained the
signature of doctor on the statement of deceased
after he recorded her statement. Therefore, this
shows that, no endorsement of doctor was obtained
prior to recording of dying declaration. It is
submitted that, the Medical Officer Dr. Rajput
(PW-5) did not state in his deposition about
giving endorsement and in such circumstances, the
endorsement on the dying declaration is not
proved. It is submitted that, the case of the
prosecution is that, deceased Sangita sustained
100% burns and died on the same day, therefore, it
is doubtful whether, deceased Sangita was in a
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position to give the dying declaration. So also
the toe impression on dying declaration
(Exhibit-31) is not attested. It is also submitted
that, the Investigating Officer (P.W. 9) has in
his evidence does not state that, he read over the
statement to Sangita and she admitted it to be
true and correct, and therefore, his evidence
cannot be believed and the same may be discarded.
5. Learned counsel appearing for the
appellant submits that, the dying declaration is
disbelieved to the extent of accused no.2, and
therefore, there is no reason to accept the same
in order to convict accused no.1/appellant. It is
submitted that, as per the spot panchnama, there
is no kerosene Can found on the spot and so also
the spot of incident is a veranda of the house of
the appellant, that means, it is in an open space.
He further submitted that, there are houses
surrounding the spot of incident, but there are no
eye witnesses to the said incident, who have been
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examined by the prosecution. It is submitted that,
the relatives and neighbourers, who are examined
as PW-2, PW-3, PW-4, PW-7 and PW-8, they did not
support the case of the prosecution. It is
submitted that, though Dr. Rajput (PW-5) has
stated in his deposition about the history given
by patient of homicidal burns, however, no such
entry is taken by the said doctor and in absence
of any such entry or noting about history, it is
difficult to believe the oral testimony of doctor.
Even in the M.L.C. forwarded to Police Station,
there is no reference about any history or
homicidal burns. It is submitted that, the accused
immediately after the incident had tried to
extinguish the fire and in that, he sustained 14%
burns, and therefore, the conduct of accused in
extinguishing the fire and admitting her in the
hospital shows his innocence. It is submitted
that, it is highly improbable that deceased will
not shriek or run away from the spot when the
accused brought kerosene Can, poured the kerosene
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on her person and set her ablaze. The deceased
had opportunity to run away, to shout and to save
herself. Therefore, the story of prosecution that
she stood still at one place, allowed accused to
pour kerosene and set her on fire, is highly
improbable. On the other hand, the story of the
accused is that because of the quarrel when
accused went inside his house and when he heard
cries came out and saw deceased inflames is quite
probable. It is submitted that, if the accused
would have done act as alleged, definitely eye
witnesses would have been there. It is submitted
that, when the case is based upon circumstantial
evidence, the motive is important circumstance and
no evidence is produced on record by the
prosecution stating that the deceased gave accused
an amount of Rs.8000/- to purchase land and on the
day of incident, she came to demand the said
amount and due to anger, the appellant had
committed act as alleged by the prosecution.
Therefore, the motive alleged is also very weak.
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6. Learned counsel appearing for the
appellant in support of his contention that, if
the dying declaration does not inspire confidence,
and if there is no endorsement at the beginning of
recording of the dying declaration, the same
deserves to be discarded, has placed reliance on
the reported judgment of the Supreme Court in the
case of Kashi Vishwanath V/s State of Karnataka 1,
reported judgment of Bombay High Court bench at
Nagpur in the case of Jitendra @ Balu Uttamrao
Nagrale V/s State of Maharashtra2, Bombay High
Court bench at Goa in the case of Sunder Gounder
S/o Sanmugam Gounder V/s State of Goa3, unreported
judgment of Bombay High Court at Principal Seat in
the case of Ramija Ayyub Bagwan V/s State of
Maharashtra (in Appeal No.860 of 2003, decided on
6th September, 2007) and the unreported judgment
of this Court in the case of Vishnu S/o Asaram
1 2013(4) Bom.C.R. (Cri.) (S.C.) 68
2 2017 All M.R. (Cri) 752
3 2015(1) Bom.C.R.(Cri.) 289
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Kanade V/s State of Maharashtra (in Criminal
Appeal No.422 of 2014, decided on 23rd August,
2016) and submits that, the appeal deserves to be
allowed.
7. On the other hand, learned A.P.P.
appearing for the respondent/State invites our
attention to the findings recorded by the trial
Court and submits that, Jaykumar Rajaram Chakre
(PW-9) recorded the statement of Sangita Madhukar
Manmode (now deceased). It is submitted that, he
in his evidence has in detail stated the manner in
which the statement of deceased Sangita was
recorded and also his evidence in cross
examination remained unshattered. It is submitted
that, Dr. Ganeshsing Rupchand Rajput (PW-5) in his
evidence has categorically stated that, the
patient herself has stated history of alleged
burnt that, the appellant poured kerosene on her
person and set her ablaze. The Medical Officer is
an independent witness and he had no reason to
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falsely implicate the appellant in the alleged
incident. He invites our attention to the evidence
of Investigating Officer as well as the Medical
Officer and submits that, their evidence inspire
confidence. The prosecution successfully proved
the dying declaration beyond reasonable doubt.
Admittedly, the spot of incident was veranda in
the house of the accused. The house of deceased
Sangita is far away from the house of the accused.
There was no question of having any kerosene Can
with her at the relevant time. There are
witnesses, who have stated that, they heard the
cries of Sangita and went to the spot of incident.
He further invites our attention to the
incriminating articles recovered from the spot and
also the inquest panchanama and submits that, the
findings recorded by the trial Court deserve to be
confirmed.
8. We have given careful consideration to
the submissions of the learned counsel appearing
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for the appellant and the learned A.P.P. appearing
for the respondent/State. With their able
assistance, we have perused the entire evidence on
record, so as to find out whether the findings
recorded by the trial Court are perverse or
otherwise.
9. Upon careful perusal of the evidence
brought on record by the prosecution, the spot of
incident is proved by the prosecution beyond
reasonable doubt. From perusal of the spot
panchanama and also the seizure panchanama, it
appears that, the incriminating articles were
recovered from the veranda of house of appellant.
We have carefully perused the spot panchanama. It
is stated in the said spot panchanama that, the
spot of incident is the veranda of the residential
house and at the said place, Sangita W/o Madhukar
Manmode was found lying in burnt condition. There
was kerosene smell on the spot. The pieces of
clothes in burnt condition, one small box (Tait)
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of copper in burnt condition, a piece of broken
bangle and one yellow colour bead, were found on
the spot. It is true that, the witnesses PW-1 Anil
Nathrao Jagtap, PW-2 Babasaheb Laxman Manmode,
PW-3 Shaikh Salim Sk. Chand and PW-4 Shaikh Ayub
Shaikh Hasan were declared as hostile, however,
before they were declared hostile, they stated in
examination-in-chief that, they saw Sangita lying
on the road infront of the house of the appellant.
Therefore, one thing is clear that, the incident
had taken place at the house of appellant. It is
true that, they have also stated that, they saw
the accused/appellant while trying to extinguish
the fire. During the cross-examination by the
A.P.P., PW-2 has stated that, he has not stated
portion marked A, B, C in his statement recorded
under section 161 of Cr.P.C. PW-3 has stated that,
he has not stated the portion marked `A' in his
statement under section 161 of Cr.P.C. PW-4 has
stated that, he did not state the portion marked
A', in his statement recorded by the police under
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161 of Cr.P.C., however, the Investigating Officer
Shri Chakre (PW-9) has specifically stated that,
he recorded their statements correctly and as
narrated by them.
10. The Investigating Officer was confronted
with the portion marked A, B, C from the statement
of PW-2, the portion marked A from the statement
of PW-3 and the portion marked A from the
statement of PW-4. He stated that, the said
portion marked has been stated by them while
recording their statements under section 161 of
Cr.P.C. and the said statements are as per their
narration.
11. It has come on record that, the house of
deceased Sangita was at a distance of 100 feet
from the house of the accused. In a statement
recorded under section 313 or Cr.P.C., the accused
has admitted that, Sangita had come to his house
and demanded Rs.5,000/- but when he expressed his
86.01appeal
inability to give, she got annoyed and committed
suicide by burning herself. Therefore, there is no
slightest doubt that, the incident had taken place
at the house of the appellant. There was no
question of Sangita bringing kerosene to get
herself burnt there at the spot of incident. It is
also not the case of the accused that, on refusal
of payment of money, Sangita got annoyed and went
to her house, brought kerosene and committed
suicide infront of his house. The prosecution has
proved the site panchanama at Exh.10 through
Investigating Officer. The place of incident has
been shown on a veranda of house of the accused.
The trial Court has rightly drawn the inference
that, veranda forms a part of house.
12. We have carefully perused the statement
of Sangita at Exhibit 31-C recorded by Jaykumar
Rajaram Chakre (PW-9). In fact the said statement
was treated as the first information report and
subsequently the dying declaration. Upon careful
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perusal of the endorsement of the Medical Officer,
it is mentioned that, the patient is serious but
in a condition to give the statement. Merely
because the Medical Officer forgotten to state in
his evidence that, such endorsement was given on
the said dying declaration or that, the
Investigating Officer stated that, the endorsement
was given after recording the statement, would not
nullify the contents of the dying declaration.
Upon careful perusal of the contents of the dying
declaration, there is no manner of doubt that,
Sangita stated that, the appellant poured kerosene
on her person and set her ablaze. Though it is
tried to be contended by the learned counsel
appearing for the appellant that, Jaykumar Rajaram
Chakre (PW-9) has not stated in his evidence that,
the contents of the dying declaration read
over to Sangita and she stated that, the said
contents are true, however, on careful perusal of
the dying declaration, it is stated by Sangita
that, the statement was read over to her and the
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said is as per her narration. It has come in the
evidence of PW-9 that hands of Sangita were burnt,
and therefore, he obtained the toe impression of
Sangita. At this juncture, it would be apt to make
reference to the evidence of PW-9. Jaykumar
Rajaram Chakre, I.O.(PW-9) in his deposition
stated that, on 28th February, 2000, he was
attached to Pachod Police Station as A.P.I. He
received MLC at Exh.19 from Pachod hospital. After
making entry in station diary, he went to the
hospital for recording statement. He recorded the
statement of Sangita and obtained toe-impression.
He thereafter put his signature and also obtained
signature of doctor, on the said statement. He
registered offence in the Police Station bearing
Crime No.14/2000 punishable under Section 307
I.P.Code. He thereafter went to the place of the
incident and made panchnama. He stated that, he
thereafter recorded the statements of witnesses.
At 3 p.m. Doctor informed about death of Sangita.
He thereafter registered the offence punishable
86.01appeal
under Section 302 of I.P. Code, and then inquest
panchnama was drawn. Thereafter the search of
house of Sangita was made on 28th February, 2000.
He stated that, on 5th March, 2000 he recorded the
statement of mother of accused and others. He
arrested the accused on 18th February, 2000 and
submitted the charge sheet in the Court on 24th
March, 2000. He sent pieces of burnt saree to the
chemical analyzer under covering letters.
Thereafter, he received C.A. Report on 6th October,
2000. He further stated that, Babasaheb Manmode
(PW-2) has stated before him the portion marked A,
B and C of his police statement at Exh.36, 37, 38.
Shaikh Salim (PW-3) has stated before him the
portion marked A of his police statement. Sk Kadu
has stated before him the portion marked A of his
statement. Syed (PW-7) has stated before him the
portion marked A of his police statement.
Mehoboobkhan (PW-8) has stated before him the
portion marked A of his police statement. He also
identify accused No.1, who was present before the
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Court.
It is true that, during his cross-
examination he stated that, he obtained the
signature of doctor on the statement of deceased
Sangita after he recorded her statement,
nevertheless, upon perusal of evidence of PW-5 Dr.
Ganeshsing Rupchand Rajput, he specifically stated
that, when Sangita was brought to the hospital,
she stated that, the appellant poured kerosene on
her person and set her ablaze. Even during his
cross-examination, he reiterated that, Sangita
told him that, the appellant poured kerosene on
her person and set her ablaze.
13. The prosecution examined Ganeshsing
Rupchand Rajput (PW-5) and in his deposition he
stated that, on 28th February, 2000, he was working
as Medical Officer at Rural Hospital, Pachod. On
that day at about 8 a.m. Sangita Madhukar Manmode
was brought to the hospital for medical treatment.
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She was admitted in the hospital. He examined her
and found superficial to deep burn injuries 100%.
There was evidence of kerosene smell. He started
the treatment and informed the police at 8.30 a.m.
He stated that, on the same day at about 8 a.m.,
Sangita had given history of alleged burn by Syed
Tajoddin Syed Rehman. Patient was crying. She
was conscious, and responding to question. Her
B.P. was 90 systolic. Her pails was 100 per
minute. There were signs of dying declaration.
He stated that, during treatment, on the same day
she died at about 1.30 p.m. Then he informed
police about her death vide letter dated 28th
February, 2000. Thereafter, the police made
inquest panchnama and handed over the dead body at
6.15 p.m. for post-mortem. Thereafter, the post-
mortem was performed on 29th February, 2000 at
11.30 a.m. She had 100% superficial to deep
burns. He had mentioned all the injuries in
column no.17 of the P.M. Report. He also stated
that, on internal examination, he found injuries
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under scalp burn, brain-covering congested, brain
congest-ex. Thorax-walls, ribs cartilage - NAD,
pleura-congested, Larynx, trachea and bronchi-
congested. Right lung-oedematus and congested.
Left lung congest and oedematus. Pericardium
congested, heart congested contained blood at
right side ventricle. Peritoneum-congested, bucal
cavity, teeth, tongue were congested, blackish
colored, tongue was swollen and inside the teeth.
Teeth black stained. Stomach and its contains
were dilated and congested, and contains food
particles. Small intestine and contents congested
and filed with gas. Large intestine contains
congested, contents fiscal matter, liver and blade
oedmatus and congested. Pancreas and supernals
congested and oedematus. Spleen congested, kidneys
congested, bladder congested and empty. Viscera
was preserved for chemical analysis. He opined the
cause of death was cardio respiratory arrest due
to shock due to 100% superficial to deep thermal
burns. He thereafter, sent viscera for chemical
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analysis. Accordingly, he prepared P.M. Report.
Dr. Khategaonkar also put his signature on the
P.M. Report. He had also given provisional
certificate regarding cause of death. He further
stated that, on the same day Tajoddin Syed Ahmed
was admitted in hospital at 8.30 a.m. for
treatment of burn injuries. He examined him at
8.30 a.m. and found the following injuries :
(i) Evidence of superficial to deep burns
to right upper extremity anteriorly and
posteriorly. It is about 3%. The age of
injury was within 6 hours.
(ii) Evidence of superficial to deep burn
to left upper extremity, anteriorly to
posteriorly 3%
(iii) Evidence of superficial to deep
burns on right leg 6%. The age of injury
was within 6 hours.
(iv) Evidence of superficial to deep burn
on neck left side with blisters - 2%.
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He stated that, total burn area was 14%. The
age of the injuries was within 6 hours. He further
stated that, the injuries were simple. The patient
was admitted in the hospital for treatment. He
was discharged on 18th March, 2000, after healing
of injuries. He issued him a certificate. The
original certificate was given to accused no.1
father on his request. He stated that, on the
same day he informed about the admission of
Tajoddin to police by letter.
During his cross-examination, his
deposition in examination-in-chief is not
shattered. On the contrary, he reiterated that,
Sangita herself gave history of incident that,
accused Tajoddin burnt her. He specifically stated
that, he had not given any pain killers to
deceased Sangita. Sangita was speaking in Marathi
and he also spoke with her in Marathi. Therefore,
there is no reason to doubt the evidence of PW-5
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that, Sangita told him that, the accused Tajoddin
burnt her. There is no reason for the Medical
Officer to depose against the appellant. At the
earliest opportunity when Sangita was taken to
hospital, immediately she stated to PW-5 that, the
appellant burnt her. In the peculiar facts of this
case, when the spot of incident is proved beyond
reasonable doubt and it is at the house of
appellant and also dying declaration at Exh.31-C
is voluntary and truthful, which is proved by the
prosecution by recording the evidence of PW-9 and
PW-5 and also the said dying declaration gets
corroboration from attending circumstances and
from medical history told by Sangita to PW-5 that,
the appellant burnt her. We do not see any reason
to interfere in the impugned judgment and order.
The attending circumstances makes it clear that,
none other than the appellant was instrumental in
pouring the kerosene and setting ablaze Sangita
and as a result Sangita was found in burnt
condition at his house. In that view of the
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matter, cumulative effect of proving the dying
declaration by the prosecution in the light of
attending circumstances, which in material
particular corroborates the version in the dying
declaration. Therefore, in our considered view,
the trial Court has rightly believed the said
dying declaration and convicted the
appellant/accused.
14. The Supreme Court, while interpreting and
explaining the scope of Section 32 of the Indian
Evidence Act, in the case of Laxman V/s State of
Maharashtra4 held thus :-
"The situation in which a man is on the
deathbed is very solemn and serene, is
the reason in law to accept the veracity
of his statement. It is for this reason
that the requirements of oath and cross-
examination are dispensed with. Since the
accused has no power of cross-
examination, the courts insist that the
4 (2002) 6 SCC 710
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dying declaration should be of such a
nature as to inspire full confidence of
the court in its truthfulness and
correctness. The court, however, has
always to be on guard to see that the
statement of the deceased was not as a
result of either tutoring or prompting or
a product of imagination. The court also
must further decide that the deceased was
in a fit state of mind and had the
opportunity to observe and identify the
assailant. Normally, therefore, the court
in order to satisfy whether the deceased
was in a fit mental condition to make the
dying declaration looks up to the medical
opinion. But where the eyewitnesses state
that the deceased was in a fit and
conscious state to make the declaration,
the medical opinion will not prevail, nor
can it be said that since there is no
certification of the doctor as to the
fitness of the mind of the declarant, the
dying declaration is not acceptable. A
dying declaration can be oral or in
writing and any adequate method of
communication whether by words or by
signs or otherwise will suffice provided
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the indication is positive and definite.
There is no requirement of law that a
dying declaration must necessarily be
made to a Magistrate and when such
statement is recorded by a Magistrate
there is no specified statutory form for
such recording. Consequently, what
evidential value or weight has to be
attached to such statement necessarily
depends on the facts and circumstances of
each particular case. What is essentially
required is that the person who records a
dying declaration must be satisfied that
the deceased was in a fit state of mind.
Where it is proved by the testimony of
the Magistrate that the declarant was fit
to make the statement even without
examination by the doctor the declaration
can be acted upon provided the court
ultimately holds the same to be voluntary
and truthful. A certification by the
doctor is essentially a rule of caution
and therefore voluntary and truthful
nature of the declaration can be
established otherwise.
It is indeed a hyper technical view
that the certification of the doctor was
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to the effect that the patient is
conscious and there was no certification
that the patient was in a fit state of
mind especially when the Magistrate
categorically stated in his evidence
indicating the questions he had put to
the patient and from the answers elicited
was satisfied that the patient was in a
fit state of mind whereafter he had
recorded the dying declaration."
15. Therefore, keeping in view the exposition
of law by the Hon'ble Supreme Court in the case of
Laxman, in the facts of the present case, merely
because Ganeshsing Rupchand Rajput (PW-5)
forgotten to specifically state in his deposition
that, he gave the endorsement on the dying
declaration or Investigating Officer stated that,
such endorsement was taken after recording the
statement, would not nullify the effect of version
of Sangita in dying declaration that, the
appellant poured kerosene on her person and set
her ablaze. There cannot be a straight jacket
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formula which can be applied in every criminal
case, and always it will depend upon the facts and
circumstances of each case and the evidence
brought on record, whether the dying declaration
is voluntary, truthful and inspires confidence or
otherwise. As already observed, apart from proving
the dying declaration, other evidence brought on
record and attending circumstances makes us to
believe that, the version stated in the dying
declaration is voluntary and truthful. We do not
wish to lengthen the judgment. Suffice it to say
that, the findings recorded by the trial Court are
not perverse and are in consonance with the
evidence brought on record.
However, it appears that, there were
altercations and quarrel between Sangita and the
appellant and during such altercations, the
appellant got annoyed and enraged and brought the
kerosene Can from inside the house and poured
kerosene on the person of Sangita and set her
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ablaze. There was no premeditation as such on the
part of the appellant. The appellant had knowledge
that, his act in all probabilities would cause the
death of Sangita. However, mitigating circumstance
in favour of the appellant is that, immediately he
tried to extinguish the fire and in that process
he also sustained 14% burn injuries on his person,
as it is evident from the evidence of Ganeshsing
Rupchand Rajput (PW-5). Therefore, in the peculiar
facts and circumstances of this case, though we
confirm the findings of conviction recorded by the
trial Court, however, we are of the view that
Exception 4 to Section 300 of the I.P. Code
applies to the facts of the present case.
Therefore, we are inclined to consider the case of
the appellant under Section 304 Part II of the
I.P. Code. Hence the following order :-
O R D E R
(I) The conviction and sentence of the
Appellant, for the offence punishable
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under Section 302 of the Indian Penal
Code, 1860 is set aside. Instead, the
Appellant - Syed Tajoddin S/o Rehman
Syyed is convicted under Section 304
Part II of the Indian Penal Code, 1860
and for the said offence, the
Appellant-accused is sentenced to
suffer rigorous imprisonment for ten
years (10 years) and to pay a fine of
Rs.2000/- (Rupees Two Thousand), and in
default of payment of fine, to suffer
further simple imprisonment for three
months.
(II) The period of detention, if any,
be given as set-off to the Appellant.
(III) Appellant- accused Syed Tajoddin
S/o Syed Rehman shall surrender
forthwith before the trial Court. The
trial Court shall ensure that
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immediately Appellant-accused is sent
to the prison to suffer the sentence
awarded to him.
(IV) Criminal Appeal is
accordingly, partly allowed and stands
disposed of.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
sga/
