Sanjay Bapuso Sasne vs The State Of Maharashtra
2017 Latest Caselaw 7006 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO.376 OF 2010

    Sanjay Bapurao Sasne                                          ... Appellant
                versus
    The State of Maharashtra                                      ... Respondent

                                           .......

    •       Mr.Priyal Gopaldas Sarda, for the Appellant.
    •       Ms. R.M. Gadhvi, APP for the State/Respondent.

                            CORAM         :  A.A. SAYED &
                                             SARANG V. KOTWAL, JJ.
                            RESERVED ON   :  31st AUGUST, 2017
                            PRONOUNCED ON :  12th SEPTEMBER, 2017


    JUDGMENT (PER : SARANG V. KOTWAL, J.) :

1. The Appellant has preferred the present Appeal against

judgment and order dated 06/04/2010 in Sessions Case

No.09/09, passed by Additional Sessions Judge, Ichalkaranji,

whereby the Appellant was convicted for commission of offence

punishable u/s 302 of the Indian Penal Code and was sentenced

to suffer imprisonment for life and to pay a fine of Rs.15,000/-

and in default of payment of fine to suffer further rigorous

imprisonment for six months.

Nesarikar





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2. The prosecution case is that, the present Appellant was

having illicit relationship with one Savitri Chandrakant Londhe.

Savitri's husband had expired a few years ago and her son was

residing with his Uncle. Savitri was residing alone. On

20/12/2007 at about 11.00 p.m. the present Appellant

quarreled with Savitri. He was demanding that Savitri should

transfer her house in his name, and on her denial; getting

annoyed, he poured kerosene on her person and set her ablaze.

Thereafter he threw water on her person and fled away from the

spot. The said Savitri went to her sister-in-law's place. She was

taken to hospital by her relatives. According to the prosecution

case, her statement was recorded in the night, which was

treated as FIR. Initially the FIR was registered at Laxmipuri

Police Station vide C.R.No.00/07 and was transferred to Hupari

Police Station, Kolhapur, at about 03.05 p.m. on 21/12/2007

and crime was registered vide C.R.No.72/07 u/s 307, 504 of the

Indian Penal Code. On the next morning of the incident

again her statement was recorded by a Special Executive

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Magistrate in respect of the incident. Savitri survived for a few

days and ultimately on 26/12/2007 she succumbed to her

injuries because of the Septicemic shock. She had suffered 75%

superficial to deep burn injuries. After the death of the victim

section 302 of IPC was added.

3. The Appellant was arrested on the next day of the

incident i.e. on 21/12/2007. Various panchanamas and

statements of the witnesses were recorded and after the

investigation was over, charge-sheet was filed on 18/03/2008

before the 4th J.M.F.C. Ichalkaranji, Kolhapur. Thereafter the

case was committed to the Court of Sessions and was tried as

Sessions Case No.09/09 before the Additional Sessions Judge,

Ichalkaranji. The charge was framed against the Appellant on

30/09/2009 u/s 302 and 504 of the Indian Penal Code. At the

conclusion of the trial the Appellant was acquitted from the

charge of commission of offence u/s 504 of IPC and was

convicted u/s 302 of IPC as mentioned earlier.

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4. During the trial the prosecution examined 11

witnesses. P.W.1 Anil Bapusaheb Ghongade was the Pancha for

spot panchanama, which was carried out on 21/12/2007

between 15.30 p.m. to 16.15 p.m. in the house of the said

Savitri. During conduct of the spot panchanama the police

seized two burnt Sarees, a Can containing kerosene, a burnt

blouse, a small kerosene lamp, match box and pair of footwear.

However, the articles were not sent to C.A. and there are no C.A.

Reports assisting the prosecution against the accused in the

present case.

5. P.W.2 Sunil Chandrakant Londhe was the son of the

deceased. P.W.3 Maruti Doulat Londhe was the brother-in-law

of the deceased. P.W.5 Subhadra Maruti Londhe was the sister-

in-law of the deceased. P.W.7 Rajesh Shankar Rathod was P.W.2

Sunil's friend. All these witnesses did not support the

prosecution case. They were examined on two aspects i.e. past

illicit relationship between the Appellant and the deceased and

the oral Dying Declaration she was supposed to have made

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while being taken to hospital in their presence. However, none

of these witnesses has supported the prosecution case and they

were declared hostile.

6. P.W.8 Dr.Vinod Vijay Paradeshi had conducted the

Post Mortem examination on the deceased and had found 75%

burn injuries on her body. The cause of death was given by him

as death due to Septicemic shock after 75% burn injuries, which

were superficial to deep. P.W.10 Balwant Krishna Hajare, P.H.C.

was attached to Laxmipuri Police Station, Kolhapur and had

taken down entry in the station diary in respect of information

received by him in respect of aforesaid crime. P.W.11 Rajendra

Mahadev Todkar, API was the Investigating Officer.

7. The prosecution case however rests on the evidence of

three important witnesses i.e. P.W.4 Sharad Vasantrao Patil who

was a Special Executive Magistrate and who had recorded her

Dying Declaration between 11.15 a.m. to 11.30 a.m. on

21/12/2007, which was produced in evidence vide Ex.23. P.W.6

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Assistant PSI Dundappa Balappa Chigari had recorded the Dying

Declaration on 21/12/2007 between 03.15 a.m. to 04.15 a.m. in

the hospital in presence of the Medical Officer, which was

exhibited vide Ex.27. P.W.9 Dr. Sudhakar Ganapati Dhekale was

the Medical Officer, who was present in the C.P.R. Hospital,

Kolhapur, where the deceased was admitted in night between

20/12/2007 and 21/12/2007 and who had first treated the

deceased. He has produced the medical papers vide Ex.43,

wherein he had mentioned the history given by the deceased to

him at 01.45 a.m. on 21/12/2007.

8. In all these three Dying Declarations, the deceased has

clearly implicated the present Appellant as the person who had

thrown kerosene on her and set her ablaze.

9. We have heard Mr.Priyal Sarda, the learned Counsel

for the Appellant and Ms.R.M. Gadhvi, the learned APP for the

State. With their assistance we have read the evidence and have

perused the record and proceedings.

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10. Mr.Sarda submitted that none of the three written

Dying Declarations was reliable and the minimum necessary

precautions which were required to be taken while recording the

Dying Declarations were not taken. He submitted that since both

the thumbs were burnt, it was not possible that thumb

impression could show ridges on the Dying Declarations and

therefore it raised suspicion about obtaining the thumb

impressions. The Dying Declarations, per se, are contradictory to

each other. He further submitted that therefore if those Dying

Declarations were left out of the consideration, there is no

evidence against the Appellant and therefore the Appellant

deserves to be acquitted.

11. He further submitted that none of the neighbours or

the persons who had removed the deceased to the hospital was

examined. The person to whose house she had first gone, was

not examined. Her other relatives have not supported the

prosecution case. The articles were not sent for chemical

analysis. The deceased or her clothes were not showing presence

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of kerosene or at least there is no evidence to that effect

adduced by the prosecution. He submitted that the scribes of

these Dying Declarations were not examined.

12. As against these submissions, the learned APP has

supported the prosecution case on all counts and in particular

the learned APP has relied on the three Dying Declarations.

13. Considering the above rival submission it is quite

obvious that the case rests on the three Dying Declarations. The

first of these Dying Declarations is recorded at 01.45 a.m. in the

night, when she was admitted to the hospital. This is in respect

of the history given by the deceased herself to the Doctor, which

is recorded in the medical papers at Ex.43. The history given by

the deceased recorded at 01.45 a.m. on 21/12/2007 reads thus;

"Homicidal burns by (Sanjay Sasne R/o Rendal, Age-35

yrs.) on 20/12/2017 at 10.30 p.m. by kerosene."

14. In the same document it is clearly mentioned that the

patient was conscious, oriented, was in agony and was obeying

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commands. The said document further mentions that the burns

were superficial to deep upto 73% and both the thumbs were

burnt. This recording of history by the doctor satisfies all the

requirements of a Dying Declaration mentioned u/s 32 of the

Evidence Act. The statement was made by the victim, was clear

and was related to the transaction leading to the death of the

deceased. The Medical Officer himself recorded that the patient

was conscious and oriented and this information was given

immediately. There is no reason to disbelieve the said witness

P.W.9 Dr.Dhekale in this behalf. The Medical Officer was an

independent witness and was treating the deceased and

therefore he cannot be attributed any motive to implicate the

Appellant falsely.

15. The next Dying Declaration was recorded by P.W.6

Assistant PSI Chigari between 03.15 a.m. to 04.15 a.m. This

Dying Declaration was exhibited as Ex.27 in the trial. After

Savitri was admitted in the hospital, the Medical Officer

informed the police, who came in the hospital and after taking

endorsement of the Medical Officer, this Dying Declaration was

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recorded and at the end of this Dying Declaration also there was

an endorsement by same P.W.9 Dr. Dhekhale. The first

endorsement at the top mentions that the patient was in a

condition to give statement and the second endorsement at the

bottom mentions that the statement was given in front of the

said witness P.W.9 Dr. Dhekale. From the evidence of P.W.6 it is

clear that he had gone to the Medical Officer to obtain his

opinion about the fitness of patient to give statement. In this

connection P.W.9 Dr.Dhekale has elaborated in paragraph No.3

by his deposition that the lady was conscious and oriented and

has admitted his endorsement on Ex.27. He further clarified that

the endorsement was written by his Assistant Doctor, though he

does not name him. He further asserted that the statement was

recorded as per her own narration and that it was recorded

before him. He further submitted that the endorsement at the

bottom was in his handwriting. Mr.Sarda submitted that the

Honourable Supreme Court in the case of Laxman Vs. State of

Maharashtra, reported in AIR 202 SUPREME COURT 2973,

has held that it is necessary that the person who records the

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Dying Declaration should be satisfied that the deceased was in

fit state of mind. It was further held that when it is proved that

the Magistrate recording the statement was satisfied that the

declarant was fit to make the statement, then even without

examination of the declarant by the doctor the declaration can

be acted upon, provided the Court ultimately holds the same to

be voluntary and truthful. It was further held that a certification

by the doctor is essentially a rule of caution and therefore the

voluntary and truthful nature of the declaration can be

established otherwise. Mr.Sarda submitted that the satisfaction

of P.W.6 ASI Assistant PSI Chigari to that effect was not proper

as he had relied on the endorsement of the Doctor. In the case of

Laxman (Supra) the Honourable Supreme Court has already

held that the certification by the Doctor is essentially a rule of

caution. In the present case the Medical Officer, who was

treating Savitri, has recorded that the patient was well oriented

and was in a position to give statement, then there is no reason

why such evidence cannot be relied on. Therefore we are

satisfied that the prosecution has sufficiently led evidence to

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show that at the point of recording of Dying Declaration Ex.27,

the deceased was well oriented and was in a position to give

statement and therefore this Dying Declaration can safely be

relied on.

16. The prosecution has also relied on the Dying

Declaration recorded by Executive Magistrate Sharad Patil, who

was examined as P.W.4. He has stated that he was requisitioned

by the police to record the Dying Declaration. Accordingly he

went to the hospital at about 10.15 a.m. on 21/12/2007. He

waited till 11.10 a.m. for arrival of the Doctor. But since the

Doctor was not available, he satisfied himself that the patient

was capable to give the statement and thereafter he recorded

the statement. This witness in his deposition has stated that he

had ascertained that the patient was in a condition to speak and

thereafter he recorded the statement. In the cross examination a

specific suggestion was put to him to which he answered thus,

"It is not true to say that due to burn injuries, physical health

and mental condition of Savitri was not good. Therefore she was

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not able to make any statement." Thus, the defence in the cross-

examination has brought out the prosecution case and in

particular the case of this witness P.W.4 that the mental

condition of the deceases was good at that point. Further more,

the initial questions mentioned in Ex.23 of the said Dying

Declaration also indicate that the said witness P.W.4 has

satisfied himself that she was giving proper answers and hence

was well oriented. In this view of the matter, we see no

impediment in relying on this Dying Declaration.

17. Mr.Sarda has submitted that since scribes of these two

Dying Declarations Ex.23 and Ex.27 who had actually written

them, were not examined, these Dying Declarations cannot be

said to be proved. Here in respect of both these Dying

Declarations P.W.6 and P.W.9 have stated that those Dying

Declarations were in the handwriting of their assistants. But

they were recorded as per the enquiries made by these witnesses

and they were recorded before them. They have identified those

Dying Declarations. Therefore we see no reason to disbelieve

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these witnesses to the effect that these Dying Declarations were

recorded as per the statement given by the deceased herself and

which were recorded in the presence of those witnesses. In this

connection Mr.Sarda has relied on the observation made by the

Honourable Supreme Court in Govind Rajan and Anr. Vs. State

of Rajasthan, reported in 1993 Cri.L.J. In that case the scribe

who had written the Dying Declarations on Exhibit P-3 was not

examined and the benefit was given to the accused. However, in

the present case, the person in whose presence and on whose

questioning the Dying Declarations were recorded, are examined

by the prosecution.

18. Mr.Sarda further submitted that it was not possible

that ridges of the thumb would appear below the thumb

impression, because according the prosecution case the thumbs

were burnt. In this connection it can be seen that the thumb

impression below Ex.23 is not clear and there are no ridges

visible and the thumb impression below Ex.27 is also not very

clear. It can be seen that the evidence shows that the burns were

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superficial to deep. Therefore in the absence of clear evidence to

show that patient had suffered deep burn injuries on the thumb,

nothing much can be held against the prosecution in that behalf

as submitted by Mr.Sarda.

19. Mr.Sarda has further relied on the ratio laid down by

the Division Bench of this Court in the case of Manik Vanaji

Gawali Vs. State of Maharashtra, reported in 2013 Cri.L.J.

972, in which it is held that the evidence led by the prosecution

about mental state of the declarant can be classified as

subjective and objective. It is only on the clear evidence led by

the prosecution showing the manner in which the person

recording Dying Declaration reaches his opinion, his subjective

satisfaction can be proved. In this case, we find that the initial

questions put by the S.E.M. does show that he made efforts to

ascertain the fitness of state of mind of the declarant and only

thereafter he had recorded the statement. In case of other two

Dying Declarations the expert's opinion i.e. the Medical Officer's

opinion about the fitness of mind was clear enough and

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therefore there cannot be any doubt about the deceased being in

a proper fit state of mind to give Dying Declaration.

20. Mr.Sarda has further submitted that there is a

discrepancy in the Dying Declarations i.e. between Ex.23 and

Ex.27. In Ex.27 it is mentioned that the Appellant himself

poured water on the deceased after she was set ablaze; whereas

in Ex.23 it is mentioned that after she suffered burn injuries, she

came out of her house and at that time the neighbours poured

water on her and tried to extinguish the fire. We do not see this

as a major discrepancy or contradiction between the two Dying

Declarations, because after the Appellant threw water on her, he

immediately fled away from the spot. That by itself does not

mean that the fire was extinguished completely and therefore

when she came out of the house and when the neighbours

poured water on her to extinguish fire, there cannot be any

discrepancy between these two Dying Declarations.

21. Mr.Sarda further submitted that the articles seized

from the spot were not sent for chemical analysis, neither there

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is any evidence to show that there was any kerosene smell on

the person of the deceased when she was admitted in the

hospital. When the deceased was admitted in the hospital the

fire was already extinguished as water was poured on her before

she was taken to the hospital. Therefore there may not be any

smell of kerosene. The absence of C.A. Report in respect of

articles found on the spot is not material in the present case

simply because the occurrence of the incident cannot be

disputed. Since we are relying on the Dying Declarations, these

other circumstances do not help the Appellant in his case.

22. In view of the discussion made in the foregoing

paragraphs, we are satisfied that there is no merit in the Appeal

and hence the following order:

ORDER

The Appeal stands dismissed.

           (SARANG V. KOTWAL, J.)                (A. A. SAYED, J.)