Lata Shivram Anklu vs The State Of Maharashtra
2021 Latest Caselaw 8119 Bom

                                                                         Appeal.772.2018.doc


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                        CRIMINAL APPELLATE JURISDICTION

                           CRIMINAL APPEAL NO.772 OF 2018

Lata Shivram Anklu                                    }
Age-62 years Occu : Labour                            }
R/o : F/1, Railway Sankalp Vasahat                    }
Mankhurd, Mumbai-43 at present                        }
in Kolhapur Central Prison                            }....Appellant/Ori.Accused

       Versus

The State of Maharashtra                              }
At the instance of P.S.O. Police                      }
Station, Mankhurd, Mumbai.                            }....Respondents

                                            ***
Mr. Aniket Vagal, Advocate for the Appellant.

Mr. Arfan Sait, APP for the Respondent-State.

                                            ***

                                       CORAM : PRASANNA B. VARALE &
                                               SURENDRA P. TAVADE, JJ.


                               RESERVED ON : 10th JUNE, 2021


                           PRONOUNCED ON : 19th JUNE, 2021




JUDGMENT (PER SURENDRA P. TAVADE, J.) :

1. The Appellant (original Accused) has preferred this appeal against the

judgment and order passed by the Additional Sessions Judge, Greater Bombay in

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Sessions Case No.234/2014 whereby she was convicted of the charge of

committing ofence punishable under Section 302 of Indian Penal Code (for

short "IPC"), and sentenced to sufer imprisonment for life and to pay fne of

Rs. 1,000/-, in default, to sufer further simple imprisonment for a period of one

month.

2. The case of prosecution, in brief, can be summarized as under:

Bhumya Ramyya Yalmadu - Deceased (hereinafter referred to as the

Deceased) was residing in a room at Railway Sankalp Vasahat Mankhurd,

Mumbai. He was widower. He came into contact with the Appellant at Cuf

Parade. The Appellant was widow. Both of them decided to reside together in

the house of the Deceased. The Appellant was addicted of liquor and narcotic

drug. Hence, she used to demand money from the Deceased.

3. On 12.12.2013 at about 10.00 a.m. the Deceased and Appellant were in

the house of Deceased. The Appellant demanded Rs.600/- from the Deceased,

but the Deceased gave only 100/- to her and told her that he would give balance

amount afterwards. But the Appellant got annoyed and poured kerosene on the

person of the Deceased and set him ablaze. Hence, the Deceased sustained

severe burn injuries on the various parts of his body. Atiq Khan, neighbore of

deceased poured water on the person of the Deceased. Somebody informed the

incident to the police.

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4. On receipt of the information about burning of the Deceased, police

came to the house of the Deceased and shifted him to Rajewadi Hospital. In the

hospital, the Medical Ofcer - Dr. Anand Nishad Pahadi (PW-1) recorded the

history of the incident given by the deceased. Similarly, the police ofcer also

recorded the statement of the Deceased with the consent of Medical Ofcer,

which was treated as FIR. On the basis of statement of the Deceased, Crime

No.364/2012 was registered u/s. 307 of IPC. During the course of treatment, on

13.12.2013 at about 11.00 a.m. the Deceased succumbed to burn injuries. The

Investigating Ofcer visited the scene of ofence and prepared the panchanama.

He also seized articles and took samples from the spot. He recorded the

statement of the witnesses. The Investigating Ofcer prepared a inquest

panchnama and the dead body was sent to the postmortem. Dr. Shivaji Vishnu

Kachare (PW-5) was conducted the postmortem. He prepared the PM report

wherein he opined that cause of death of the Deceased was shock due to 85%

superfcial to deep burns which was unnatural. Hence, the Appellant came to be

arrested.

5. After the death of the Deceased, the charge was altered to Section 302 of

IPC. The seized articles were sent to the Chemical Analysis. After completion

of the investigation, a chargesheet came to be fled against the Appellant in the

Court of Metropolitan Magistrate, 11th Court, Kurla, Mumbai. The learned

Metropolitan Magistrate committed the case of the Appellant in the Court of

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Sessions for trial.

6. On appearance of the Appellant, a charge came to be framed under

Section 302 of IPC at Exh.3. The Appellant pleaded not guilty and claimed to be

tried.

7. To prove the charge against the Appellant, the prosecution has relied

on the evidence of as many as seven witnesses. It was defence of the Appellant

that she was not present in the house at the time of incident. The Deceased

sustained burn injuries due to blast of the stove. However, she did not lead any

evidence in support of her defence.

8. On going through the evidence on record and the submissions of the

rival parties, the learned trial Court held the Appellant guilty u/s.302 of the IPC

and sentenced her as aforesaid. Hence, the Appellant preferred this appeal.

9. Shri. Vagal, learned Counsel on behalf of the Appellant submitted that

except dying declaration there is no evidence on record to prove the

involvement of the Appellant in the crime. He submitted that there is no

material on record to establish that the Appellant was conscious and was able to

make statement, therefore, the alleged dying declaration is of no use to prove

charge against the Appellant. He also submitted that even if it is presumed that

the Appellant set the Deceased on fre, still charge under Section 302 cannot

sustain. He also submitted that the Appellant and the Deceased were residing

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together, they were not married. It is the case of prosecution that the Appellant

was addicted to liquor and narcotic drug. It appears that she demanded money

from the Deceased, but he did not pay. Hence, out of anger, the alleged incident

was taken place. There is no intention on the part of the Appellant to commit

murder of the Deceased.

10. He also submitted that at the most the case falls under Section 304 Part

II of IPC. The Appellant is in custody since last more than 7 years, therefore,

the leniency be shown to her.

11. On the other hand, learned APP submitted that in addition to written

dying declaration, the prosecution has relied on two oral dying declarations of

the Deceased. All three dying declarations are genuine and consistent. The

prosecution has rightly proved the written as well as oral dying declarations of

the Deceased, which established that the Appellant and none else has poured

kerosene on the person of the Deceased and set him on fre. The charge under

Section 302 is rightly proved by the prosecution. He also submitted that the

Appellant has not shown any repentance or remorse after the incident.

Therefore, it can be said that the Appellant had intention to kill the Deceased.

The case does not fall under Section 304 Part II of IPC. Hence, he submitted

that the order of trial Court be confrmed.

12. It is the case of prosecution that the Deceased died due to burn injuries.

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To prove the cause of death of the Deceased, the prosecution has heavily relied

on the evidence of Dr. Shivaji Kachare (PW-5), who deposes that on 13.12.2013

he was attached to Rajewadi Hospital as a Medical Ofcer. On that day, dead-

body of the Deceased was brought by PC No.11501 of Mankhurd police station

for postmortem. On the same day between 5.15 p.m. to 6.15 p.m. he conducted

postmortem examination. He found 85% superfcial deep burns with reddish

line demarcation in between burn injuries. He noticed skin peeled of with

yellowish slough formation at burn injuries. He has given the percentage of burn

injuries as under:-

1. Head, neck ,face - 9%

2. Bilateral upper extremities - 18%

3. Bilateral lower extremities - 28%

4. Anterior of trunk - 20%

5. Posterior of trunk - 10% Total 85% superfcial burns.

13. On conclusion of postmortem examination, he opined that cause of

death of the Deceased was shock due to 85% superfcial to deep burn which are

unnatural. He produced postmortem report at Exh.26. The evidence of

Medical Ofcer is not challenged on behalf of the Appellant. Therefore, it is

established that the death of Deceased caused due to 85% burn injuries and it was

unnatural.

14. It is the case of prosecution that on 12.12.2013, Bhanudas Kale (PW-4)

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was on duty on Mobile Van No.1 alongwith ASI Gore, Havaldar Mane, Police

Constable Bangale and Patil. When his mobile van reached near Mankhurd

railway station at about 10.20 a.m. they received a wireless message from control

room that one person sustained burn injuries at Karbala Chawl near Rahate

Nagar. Accordingly, his van reached at the sport as per the information. He saw

mob of people. The injured person was brought out of the chawl. The said

person had sustained injuries. He was covered with Chaddar. With the help of

local people, he put the said injured in the van and proceeded to Rajewadi

Hospital. On the way, he made enquiry with the injured person. He was in a

position to speak. He disclosed that his girlfriend demanded money but he did

not pay money to her. She got annoyed and poured kerosene and set him on

fre. Thereafter, he admitted injured to the hospital.

15. The evidence of constable Bhanudas Kale (PW-4) is simply denied. He

admitted that he did not lock the doors of the house of injured person. Similarly,

he did not visit the spot again. It is suggested to him that the injured was not in

a position to speak but he denied the said suggestion. Except the suggestion

nothing has brought on record to disbelieve the evidence of Bhanudas Kale. In

fact, Bhanudas Kale was a chance witness. On the day of incidence, he was on

patrolling duty. He received a message of the incident from control room.

Hence, he rushed to the spot and took injured to the hospital. On the way, out

of courtesy, he made enquiry with the injured about the incident which he

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disclosed. So it can be said that the statement made by the injured was in the

form of oral dying declaration.

16. The prosecution has also relied on the evidence of Astiq Khan (PW-7)

for proving the oral dying declaration of the Deceased. According to Astiq

Khan, he is residing in Dargala Chawl alongwith his family. The Deceased and

the Appellant were residing in front of his house. On the day of incident at

about 10.00 a.m. he was taking breakfast. He heard screaming/shouts and hence

he and his father came out. There was a fre in front room of the house of the

deceased. He saw that the Deceased was set ablaze. He entered into the house

of deceased. The Appellant was present in the room. He put water on the

Deceased and covered him with Chaddar. He enquired with the Deceased as to

how he caught fre. He disclosed that his wife poured kerosene on him and set

him ablaze. Thereafter police van came in front of the house of the Deceased

and took him to Rajewadi Hospital. On the same day, the police inquired with

him and recorded his statement.

17. In the cross-examination, he admitted that his shop is situated at

distance of 10 minutes by walk. He was knowing the Deceased since 2012. It is

suggested to him that he did not enter in the house of the Deceased. It is also

suggested that he did not see the Appellant in the room, but the said suggestions

are denied by the witness. Except suggestion of denial, nothing worth has come

on record to disbelieve the evidence of Atiq Khan. It is also not denied that Atiq

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Khan is not neighbor of the Appellant and the Deceased. So it can be said that

the presence of the witness Atiq Khan was natural and it appears that out of

curiosity, he rushed to the spot by hearing the shouts. Similarly, on enquiry, the

Deceased disclosed the incident to him. Hence, it is also a oral dying

declaration made by the Deceased to the witness.

18. The Deceased was brought to the Rajewadi Hospital where he was

examined by Dr. Anand Nishad Pahadi (PW-1). According to him, on

12.12.2013 at about 11.00 a.m., the Deceased was brought to Rajewadi Hospital

by the police. He was admitted in male burn ward. Dr. Anand Pahadi deposed

that he examined the deceased and found that he had sustained 80 to 85% burn

injuries. He was able to speak. He has given history of injuries as "his wife

poured kerosene on him and set him at blaze". He has given name of his wife as

Lata resident at Transit Camp, Mankhurd. The Medical Ofcer further deposed

that he examined the Deceased on the frst day on his admission and thereafter

he was transferred to another unit. He prepared case-papers and noted down

the treatment given to the Deceased, which are produced on record. The said

papers are not denied by the defence. In the medical-papers, the medical ofcer

has recorded the history of assault as burn injuries caused by wife named Lata at

his house namely Transit Camp, Mankhurd around 10.00 a.m. It is further

recorded that wife poured kerosene on him and set him on fre. The said history

corroborates the oral dying declaration made before the constable Bhanudas

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Kale (PW-4) and Atiq Khan (PW-7).

19. It is the further case of prosecution that the medical ofcer informed

Mankhurd police station about the admission of the Deceased in the hospital.

Accordingly, the PI of Mankhurd police station deputed Uddhav Pol (PW-3) to

record the statement of the Deceased. According to Uddhav Pol, he rushed to

the Rajewadi Hospital and found that injured was admitted in the male burn

ward. He approached the treating doctor and disclosed his intention to record

the statement of the injured. The medical ofcer then examined the patient and

opined that the patient was in ft state of mind to give statement. Accordingly,

he made enquiry with the patient and recorded his statement in presence of the

medical ofcer. He further deposed that after recording the statement, he found

that both palms of the Deceased had injures. Hence, he was unable to put his

signature. Thus, he obtained thump impression of deceased on his statement.

He further deposed that the doctor also made endorsement (Exh.17) on the

statement (Exh.23).

20. The said statement is treated as FIR (Exh.23) on the basis of which

crime was registered. The evidence of Uddhav Pol (PW-3) was substantiated by

Dr. Anand Pahadi, who has also deposed that Mankhurd police had visited the

hospital for recording statement of the Deceased. On examination of the

deceased, he gave endorsement about mental and physical state of Deceased at

the time of recording his statement. He identifed his endorsement on the

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statement (Exh.17). So it can be said that Uddhav Pol (PW-3) recorded the

statement the Deceased after seeking opinion of medical ofcer. Similarly, he

recorded the statement of the Deceased in the presence of Medical Ofcer Dr.

Anand Pahadi. In the statement, it is mentioned by the Deceased that on

12.12.2013 at about 10.00 a.m. he was sitting on the bed. The Appellant was

preparing food on the stove. She demanded Rs.600/- from him, but he gave her

only Rs.100/- and told her that he would pay remaining amount afterwards, but

the Appellant got annoyed and poured kerosene on his person and set him on a

fre with the help of lamp. Due to fre, his clothes were burnt and he sustained

injuries on his chest, abdomen, hands, legs etc., he fell down from the bed and

he raised shouts. Somebody poured water on his person. Thereafter, the

neighbor brought him out of the house. Meanwhile, the police came to the spot

and admitted him in the hospital. The above statement is also in consonance

with the oral dying declaration made to Bhandudas Kale (PW-4) and Atiq Khan

(PW-7) and the history given by the Deceased before the medical ofcer. So it

can be said that the oral dying declaration, the history given by the Deceased

before the medical ofcer and the statement recorded by Uddhav Pol are

consistent with each other. It is established on record that while recording the

dying declaration, the police constable had taken precaution of obtaining opinion

of medical ofcer. Similarly he also satisfed that the Deceased was conscious

and able to make statement and thereafter he recorded the statement of the

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deceased. On the basis of evidence of Bhanduas Kale (PW-4), Atiq Khan (PW-

7), Uddhav Pol (PW-3), Dr. Anand Pahadi (PW-1), prosecution has proved the

oral as well as written dying declaration of the Deceased.

21. In view of the above discussion, it is established that the entire

prosecution case rests on the dying declarations of the Deceased. On this point,

the decision of Apex Court in the case of Laxman vs. State of Maharashtra,

reported in (2002) 6 SCC 710 is useful, which runs as under :

"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 dying declaration should be of such a nature as to inspire full confdence 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 of promoting or a product of imagination. The court also must further decide that the deceased was in a ft 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 ft mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a ft and conscious state to make the declaration, the medical opinion will not prevail, not can it be said that since there is no certifcation of the doctor as to the ftness 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 sufce provided the indication is positive and defnite. 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 specifed 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 satisfed that the deceased was in a ft state of mind. Where it is proved by the testimony of the Magistrate that the

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declarant was ft 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 certifcation by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

22. In the present case, the witness Uddhav Pol (PW-3) had made himself

satisfed that the Deceased was in ft state of mind and then recorded his

statement. It is also proved that the Deceased was ft to make statement.

Accordingly, the Medical Ofcer has given his opinion. Therefore, the

prosecution has proved written as well as oral dying declaration in the present

case. Similarly the dying declaration is voluntary and truthful.

23. The Investigating Ofcer Chandrashekhar Nalawade (PW-6) had visited

the spot alongwith panch-witness Prabhakar Borkar (PW-2). He prepared the

scene of ofence panchnama, which is proved through panch-witness Prakash

Borkar (PW-2). In his presence, green colour plastic can, bottle cum kerosene

lamp were seized. Thereafter burnt clothes of the deceased have been seized

under panchnama. The witness has identifed the seized articles. The scene of

ofence panchnama and seizure of clothes of the Deceased are not denied by the

Appellant. So it can be said that the Investigating Ofcer has carried out

investigation properly. The prosecution has proved oral as well as dying

declaration. The said dying declarations are consistent with each other. The

prosecution has proved that the Appellant poured kerosene on the person of

Deceased and set him on fre which resulted into his death.

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24. On behalf of the Appellant, the learned Counsel submitted that the

Appellant and the Deceased were residing together as husband and wife. Both of

them were in their advance age. The Appellant was addicted to liquor and

narcotic drugs. The said fact was within the knowledge of the deceased.

Therefore, he used to give money to the Appellant to fulfll her habits. It is

contended that on the day of incident, the Appellant demanded sum of

Rs.600/-, but the deceased gave only Rs.100/-, therefore, she got annoyed and

the incident had occurred. There was no intention of the Appellant to kill the

deceased, but out of anger and annoyance the incident had taken place.

Therefore, the ofence is squarely falls within the four corners of Section 304

Part II of the IPC.

25. On the other hand, learned APP submitted that the Appellant had

intention to kill, as the Appellant said to the Deceased that he should die. Except

the said words, there is nothing on record to establish that the Appellant had

intention to kill the Deceased. It appears that the incident had occurred on the

spur of moment as the deceased did not fulfll the demand of the Appellant. So

we fnd substance in the submissions of the learned Counsel on behalf of the

Appellant that the incident occurred out of anger, annoyance. No doubt, the

Appellant had knowledge that due to the incident, the deceased may die, but she

set him on fre. So it can be said that the provisions of Section 304 Part II are

applicable to the facts of the present case. The punishment provided under

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Section 304 Part II reads as under :-

"...or with imprisonment of either description for a term which may extend to ten years, or with fne, or with both, if the act is doe with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

26. The Appellant is aged about 65 years. The incident had taken place on

12.12.2013. Since then the Appellant is in custody and undergoing life

imprisonment. Looking to the age of the Appellant and the nature of ofence

proved against her, the sentence undergone by the Appellant is sufcient

sentence to be imposed to her. Hence, we pass the following order:

ORDER

I. Criminal Appeal is partly allowed.

II. The conviction and sentence passed against the Appellant under Section 302 is hereby set aside.

III. The Appellant is held guilty for the ofence punishable under Section 304 Part II of IPC.

IV. She is sentenced to the period undergone by her and pay a fne of Rs.1000/-, in default, to sufer further simple imprisonment for a period of two weeks.

[SURENDRA P. TAVADE, J.]                                [PRASANNA B. VARALE, J.]




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