Parvatibai Sambhaji Aamre vs The State Of Maharashtra
2021 Latest Caselaw 12829 Bom

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                                       -1-


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 315 OF 2014


 Parvatibai w/o Sambhaji Aamre
 Age 47 years, Occ. Household
 R/o. Barad, Tq. Mudkhed,
 District Nanded                                         ...Appellant

          versus

 The State of Maharashtra                                ...Respondent

                                      AND
                         CRIMINAL APPEAL NO. 247 OF 2014

 Sujata w/o Shivshankar Pawar
 Age 22 years, Occ. Household
 R/o. Nivgha, Tq. Mudkhed
 District Nanded                                         ...Appellant

          versus

 The State of Maharashtra                                ...Respondent

                                     .....
 Mr. Gajanan Kadam, advocate for the appellant
 Mr. Sachin J. Salgare, A.P.P. for respondent-State
                                       .....

                                     CORAM : V. K. JADHAV AND
                                             SHRIKANT D. KULKARNI, JJ.

Date of Reserving the Judgment : 11.08.2021

Date of pronouncing the Judgment : 08.09.2021

JUDGMENT (PER V.K. JADHAV, J.) :-

1. Both these appeals are directed against the judgment and

order of conviction dated 22.04.2014 passed by the Additional

Sessions Judge-1, Nanded in Sessions Case No. 42 of 2012.

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2. Brief facts giving rise to the present appeals, are as follows:-

i) Deceased Pushpa was given in marriage to Navnath Aamre,

resident of Barad, Tq. Mudkhed, district Nanded some 2½ to 3 years

back prior to the incident. Deceased Pushpa was treated well initially

for a period of six months by her mother-in-law, brother-in-law

(juvenile in conflict with law) and sister-in-law. However, thereafter

she was subjected to cruelty for various reasons, prominent amongst

it, that they did not like her. Even though the husband of deceased

Pushpa used to give understanding to them but they did not listen to

him also. The incident had taken place on 13.8.2011. Deceased

Pushpa got up early in the morning and cooked the food for tiffin of

her husband. Her husband was employed in a fertilizer shop at

Nanded. Thus, the husband Navnath left the house for his work.

Thereafter, the appellant accused No.1 Parvatibai, appellant accused

No.2 Sujata and brother-in-law (juvenile in conflict with law) started

quarreling with her for the reason that they did not like her. At about

11.00 a.m. when deceased Pushpa started taking her meal, at that

time her brother-in-law (juvenile in conflict with law) had caught her

hands and appellant-accused No.1 mother-in-law Parvatibai poured

kerosene on her person and appellant accused No.2 sister-in-law

Sujata ignited her with the help of match stick. Deceased was taken

to Primary Health Center at Barad by their neighbours.

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ii) On 13.8.2011 the police station, Barad had received one

M.L.C. intimation about it from Rural hospital, Barad. However, by

that time, the patient was referred to Government Hospital, Nanded.

P.W.3 A.P.I. Kamlakar Patil went to Government Hospital, Nanded

and after taking opinion of the Medical Officer as to the fitness and

conscious state of mind of patient Pushpa, recorded her statement

Exh.24. Deceased Pushpa had narrated entire incident to him and it

was reduced into writing. Meanwhile, as per the request letter issued

by the in-charge of Police Chowki of the Hospital of police Station

Vazirabad, P.W.6 Pundlik Zunjare, the Special Judicial Magistrate

has recorded the dying declaration of deceased Pushpa on

14.8.2011 after obtaining certificate from the concerned doctor

recorded her statement Exh.48.

iii) On the basis of the said statement at Exh.24, A.P.I. Kamlakar

Patil has registered crime No. 21 of 2011 for the offences punishable

under Section 307, 498-A, 323 r.w. 34 of I.P.C. P.W.3 A.P.I.

Kamlakar Patil has visited the spot and drawn the spot panchanama

in presence of panchas. He has seized the articles from the spot i.e.

one bottle of bisleri having residues of kerosene, one match box and

one burnt matchstick were there. The said spot panchanama is

marked at Exh.26. P.W.3 A.P.I. Kamlakar Patil has recorded the

statements of witnesses. On the next day, on 15 th (15.8.2011) he

seized the clothes of deceased from the hospital under seizure

panchanama Exh.27. He has effected arrest of appellant accused

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No.1 Parvatibai on 20.8.2011 under arrest panchanama Exh.28 and

also effected arrest of brother-in-law (juvenile in conflict with law) on

23.8.2011. The seized property was sent to the C.A..

iv) On 4.9.2011, P.W.3 A.P.I. Kamlakar Patil has received

intimation from Vazirabad police station about death of patient

Pushpa. He has received the inquest panchanama drawn by

Vazirabad police station in the hospital at Exh.19. P.W.3 A.P.I. Patil

had obtained permission from the Magistrate and added Section 302

of I.P.C. He has arrested appellant accused No.2 Sujata on

5.11.2011 under arrest pancahnama Exh.31. After completion of

investigation, he has submitted charge sheet in the court and also

separate charge sheet against accused brother-in-law (juvenile in

conflict with law) to the juvenile court.

v) Learned Additional Sessions Judge-1, Nanded has framed the

charge. The contents of the charge were read over and explained to

the accused persons in vernacular. They pleaded not guilty and

claimed to be tried. The prosecution has examined in all six

witnesses to substantiate the charges levelled against them. After

recording of evidence, the learned trial court has also recorded the

statements of accused persons under Section 313 of Cr.P.C. The

appellant accused has examined D.W.1 Navnath at Exh.65. Their

defence is of total denial. As per their defence, while cooking the

food, deceased Pushpa has suffered burn injuries accidentally. It is

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also their defence that Sujata, who is married sister-in-law of

deceased Pushpa, was at her matrimonial home and the defence

witness Navnath, who happened to be the husband of deceased

Pushpa, had been to her house for celebrating festival of

Rakshabandhan.

vi) By judgment and order of conviction dated 22.4.2014 the

learned Additional Sessions Judge-1, Nanded in Sessions case No.

42 of 2012 convicted both the appellants for the offences punishable

under Section 302 of I.P.C. and also the appellant-accused No.1

Parvatibai for the offence punishable under Section 498-A of I.P.C.

The learned Additional Sessions Judge has passed order to the

following effect:-

"1. The accused No.2 Sujata w/o Shivshankar Pawar is acquitted under section 235 of Cr.P.C. of the offence punishable under section 498-A of the Indian Penal Code.

2. The accused No. (1) Parvatibai w/o Sambhaji Aamre and No. (2) Sujata w/o Shivshankar Pawar, are convicted under section 235(2) of Cr.P.C. of the offence punishable under section 302 r.w. 34 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine Rs.500/- each, in default to suffer rigorous imprisonment for six months.

3. The accused No.(1) Parvatibai w/o Sambhaji Aamre is convicted under Section 235(2) of Cr.P.C. of the offence

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punishable under Section 498-A of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay fine Rs.500/-, in default to suffer rigorous imprisonment for one month.

4. The accused No.1 shall undergo substantive sentence concurrently.

5. The accused No.2 shall surrender her bail bonds.

6. The period of detention is given set off under section 428 of Cr.P.C.

7. Muddemal produced vide list Exh.13 being worthless of value, be destroyed after appeal period.

8. Copies of judgment be supplied to accused free of costs, under section 363 of Cr.P.C. after transcription, as per pursis Exh.78."

3. Learned counsel for the appellants submits that the

prosecution case entirely rests upon dying declarations Exh.24 and

48 respectively. There is no direct evidence in this case. Learned

counsel submits that the said dying declarations are not consistent

on material parts and there is no corroboration to the said dying

declarations. P.W.6 Pundlik Zunjare the Special Judicial Magistrate

has admitted that the appellants and relatives of deceased Pushpa

met her in the hospital when he visited the hospital for recording the

dying declaration. Thus, the possibility of tutoring cannot be ruled

out. Learned counsel submits that P.W.6 Pundlik Zunjare has not

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satisfied himself as to the conscious state of mind of deceased

before recording her dying declaration. There is no evidence that

deceased Pushpa was subjected to cruelty by the appellants-

accused for the reason that they did not like her. The prosecution

has not examined any witness on the point of cruelty at the hands of

appellants-accused. Learned counsel submits that P.W.1 Balaji

Lonwade, the panch witness to the spot panchanama Exh.26 and

panch witness P.W.2 Sadashiv Tande for the seizure of clothes of

deceased Pushpa Exh.27 have not supported the prosecution case

and those panchanmas are exhibited merely on the basis of

evidence of P.W.3 A.P.I. Kamlakar Patil.

4. Learned counsel for the appellants submits that the

prosecution has examined P.W.4 Dr. Sarika Jawalikar, who has

conducted the post mortem examination on the dead body of

Pushpa. Learned counsel submits that though the incident had taken

place on 13.8.2011, deceased Pushpa died on 4.9.2011. P.W.4 Dr.

Sarika has noted percentage of burns to the extent of 38.40%. In her

opinion, the cause of death was septicemia due to burn. P.W. 4 Dr.

Sarika has admitted in her cross examination that due to the bacterial

infection, toxin is created to that part of infection.

5. Learned counsel for the appellants submits that as per the

prosecution story, in the form of dying declaration of the deceased,

the incident had taken place without any premeditation and during

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the course of quarrel. There is no clear opinion expressed by the

Medical Officer, who has conducted the post mortem examination

that the burn injuries sustained by deceased which is only 38.40%,

were sufficient in ordinary course of nature to cause death. The

incident had taken place on 13.8.2011 and deceased died almost

after 22 days i.e. on 4.9.2011. The proximate cause of death was

septicemia due to burn. Learned counsel submits that considering

the same, the case would fall under Section 304 of I.P.C. and does

not fall under Section 302 of I.P.C.

6. Learned counsel for the appellants submits that the

prosecution has examined Navnath Aamre i.e. husband of deceased

as D.W.1. He has deposed that on 13.8.2011 there was festival of

Rakshabandhan. His sister appellant-accused No.2 Sujata married in

2010 and she was residing at Nivgha. On account of festival of

Rakshabandhan, D.W.1 Navnath had been to the house of his sister

at Nivgha for tying Rakhi. After half an hour, he had received a

phone call from neighbour of village Barad informing him that his wife

was burnt while cooking the food. D.W.1 Navnath has deposed that

when the incident occurred the appellant accused No.2 Sujata was at

Nivgha. He also deposed that appellant-accused No.1 his mother

had been to agricultural field. His brother (juvenile in conflict with

law) had been to the school. Learned counsel submits that the trial

court has also acquitted appellant-accused No.2 Sujata for having

committed offence under Section 498-A of I.P.C. It is thus clear that

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deceased Pushpa was never subjected to cruelty as defined under

Section 498-A of I.P.C. by the appellant accused Sujata. The

prosecution has not examined any witness on the point that

appellant-accused Sujata was at the spot of incident at the time of

incident. Learned counsel submits that the appellant Sujata has 10

years old son and she is having her own family at village Nivgha.

She is on bail during pendency of this appeal. The appellant accused

No.1 Parvatibai has undergone 10 years of sentence, as she was

under trial and during pendency of this criminal appeal, she is not on

bail. Learned counsel submits that both the accused may be

acquitted.

Learned counsel for the appellants in order to substantiate his

contentions, placed reliance on the following cases:-

i) Sham Madhavrao Rupvate vs. State of Maharashtra, reported in 2000 Cri.L.J. 2389,

ii) Subhash vs. State of Maharashtra, reported in I(2006) DMC 261,

iii) Khokan vs. State of Chhattisgarh, reported in AIR 2021 SC 939,

iv) Nallapati Sivaiah vs. Sub Division Officer, Guntur, A.P.

reported in AIR 2008 SC 19.

7. Learned A.P.P. Mr. Salgare submits that the complaint/dying

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declaration Exh.24 and dying declaration Exh.48 recorded by the

Special Judicial Magistrate are reliable and consistent on material

parts and inspiring confidence. P.W.3 A.P.I. Kamlakar Patil has

recorded the complaint/dying declaration of deceased Pushpa at

Exh.24 after obtaining opinion from the treating doctor. The said

Medical Officer has examined the patient and found to be conscious

oriented and accordingly made the endorsement to that effect on the

complaint/dying declaration. Similarly, P.W.6 Pundlik Zunjare,

Special Judicial Magistrate has also obtained the similar opinion from

the treating doctor before recording dying declaration Exh.48 and the

said dying declaration Exh.48 also bears endorsement at the top and

at the bottom of dying declaration in handwriting of the doctor and his

signature below it certifying that the patient was conscious oriented

to deliver the statement and she was conscious oriented throughout

the process of recording of statement.

8. Learned A.P.P. submits that the prosecution has also

examined P.W.5 Dr. Girish Umare to corroborate the same. Learned

A.P.P. submits that P.W.3 A.P.I. Kamlakar Patil has also drawn the

spot panchanama immediately on the same day and seized the

articles under the spot panchanama Exh.26. Those articles are one

plastic bottle of bisleri having residues of kerosene, one match box

and one burnt matchstick. Learned A.P.P. submits that the

appellants-accused have raised false defence about accidental death

while cooking the meals. There is nothing on the spot indicating that

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deceased Pushpa had sustained burns accidentally. Learned A.P.P.

submits that the appellant accused No.1 Parvatibai poured kerosene

on the person of deceased Pushpa and appellant-accused No.2

Sujata set her on fire with the help of matchstick. There was clear

intention to commit murder. Death due to septicemia due to burns

are usually the known complications and on the basis of the same no

inference could be drawn about the intention of the appellants

accused for causing culpable homicide not amounting to murder.

Learned A.P.P. submits that the appellant accused No.2 Sujata has

not examined herself before the court. The appellants accused have

raised this defence afterthought and accordingly D.W.1 Navnath,

who happened to be the husband of deceased Pushpa, has deposed

to save his married sister. Learned A.P.P. submits that there is no

substance in these appeals and the appeals are thus liable to be

dismissed.

Learned A.P.P. in order to substantiate his contentions placed

reliance on the following cases:-

i) Purshottam Chopra and another vs. State (Government of NCT of Delhi), reported in (2020) 11 SCC 489,

ii) Laxman vs. State of Maharashtra, reported in 2002 AIR (SC) 2973,

iii) Lahu Ramchandra Bandpatte vs. State of Maharashtra,

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reported in 2009 (2) Bom.C.R. (Cri.) 227

9. We have perused the material exhibits tendered by the

prosecution, the evidence of the prosecution witness, the statement

of the appellants-accused recorded under Section 313 of Criminal

Procedure Code, the evidence of the appellants-accused themselves

and the impugned judgment. After giving our thoughtful reflection to

the matter, we are wholly satisfied that there is no substance in these

appeals and the same must be dismissed.

10. The prosecution case rests upon two dying declarations

Exh.24 and Exh.48. Both the dying declarations are consistent on

material parts. P.W.3 A.P.I. Kamlakar Patil has recorded the

complaint/dying declaration Exh.24 in the burn ward at the

Government Hospital, Nanded where the deceased Pushpa was

admitted on sustaining burn. P.W.6 Pundlik Zunjare, The Special

Judicial Magistrate has recorded the dying declaration Exh.48.

11. The incident had taken place on 13.8.2011 at about 11.00 a.m.

to 11.30 a.m.. Deceased Pushpa after sustaining burns was initially

taken to Rural Hospital, Barad and thereafter shifted to Government

Hospital, Nanded. On 14.8.2011 at around 1.00 p.m. P.W.3 A.P.I.

Kamlakar Patil has recorded complaint/dying declaration of deceased

Pushpa at Exh.24 and on the same day i.e. on 14.8.2011 itself,

P.W.6 Pundlik Zunjare, Special Judicial Magistrate has recorded the

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dying declaration of deceased Pushpa in between 6.00 p.m. to 6.30

p.m. Before recording the dying declarations Exh.24 and Exh.48,

respectively, P.W.3 A.P.I. Kamlakar Patil and P.W.6 Pundlik Zunjare,

the Special Judicial Magistrate had approached the concerned

Medical Officer to ascertain as to whether the patient Pushpa was in

conscious state of mind and was able to give her statement.

12. P.W.5 Dr. Girish Umare was on duty as R.M.O. on 14.8.2011

at Civil Hospital, Nanded. According to him, on 14.8.2011 at around

1.00 p.m. P.W.3 A.P.I. Kamlakar Patil came into burn ward No.14

where the patient Pushpa was admitted. A.P.I. asked Dr. Girish

Umare that he wanted to record the statement of patient Pushpa and

whether the patient was in a condition to give the statement. Dr.

Girish Umare took P.W.3 A.P.I. Kamlakar Patil with him and went to

the patient. Dr. Girish Umare examined the patient. He has checked

her pulse, B.P. He asked her name. She had stated her name. He

got satisfied from examination and answer from the patient that she

was in condition and oriented to give the statement. Accordingly, he

put his endorsement on the complaint/dying declaration Exh.24 and

also signed below it. According to him, P.W.3 A.P.I. Kamlakar Patil

has recorded the statement of deceased Pushpa in his presence.

After recording the statement, P.W.3 A.P.I. Kamlakar Patil had asked

Dr. Girish Umare to examine the patient and to give his opinion.

P.W.5 Girish Umare has again examined Pushpa by examining her

pulse, B.P. and found that she was stable throughout recording of

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statement. Dr. Girish Umare again put his endorsement to that

effect at the bottom of dying declaration stating therein that the

patient was conscious during entire period of recording the

statement. P.W.5 Dr. Girish Umare has admitted his endorsement

which is in his handwriting and his signature below it. He has also

deposed that in the evening time, P.W.6 Pundlik Zunjare came to

ward No.14 and he had approached to him firstly. He had informed

to him that he wanted to record the statement of patient Pushpa.

Thus, P.W.5 Dr. Girish Umare went to the patient Pushpa in ward

No.14 and he has also examined the patient. He checked her pulse,

B.P. and also asked her some questions, which she replied. Dr.

Girish Umare satisfied that the patient was conscious and oriented.

He has made endorsement to that effect on the top of the dying

declaration. According to him, P.W. 6 Pundlik Zunjare, the Special

Judicial Magistrate has recorded her statement and after completion

of her statement, he has again examined patient Pushpa and put his

endorsement at the bottom of the dying declaration. He has also

identified the endorsement with his signature below it.

13. In both the dying declarations Exh.24 and 48, respectively,

recorded at different times, the patient Pushpa has consistently

stated that on 13.8.2011 in the morning the incident had taken place

in her matrimonial home at about 11.00 a.m. to 11.30 a.m. when she

was taking her meals and at that time the appellants-accused and

her brother-in-law were sitting on the cot behind her. They started

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her abusing in filthy language. Deceased Pushpa had further stated

that the brother-in-law caught hold of her hands, appellant accused

No.1 mother-in-law Parvatibai poured kerosene on her person from

one plastic bottle and appellant-accused No.2 Sujata sister-in-law set

her on fire with the help of matchstick. She went outside of the

house by making hue and cry. She has given the details in her

complaint/dying declaration at Exh.24 that she herself poured water

on her person and tried to extinguish the fire. She immediately

shifted to the hospital by neighbours.

14. In both the dying declarations, she had given reason that the

appellants accused did not like her. The appellant accused No.1

Parvatibai mother-in-law wanted to perform the marriage of her son

Navnath (husband of deceased Pushpa) with her niece and thus, she

used to scold deceased Pushpa by saying that she did not like her.

Deceased Pushpa was subjected to abuses and beating

continuously by them.

15. P.W.3 A.P.I. Kamlakar Patil after recording the complaint/

dying declaration of deceased Pushpa at Exh.24 went to the police

station and submitted the statement to the P.S.O. On the basis of

the said statement/dying declaration crime No. 21 of 2011 came to

be registered and he took over investigation of the same. Thereafter,

P.W.3 A.P.I. Kamlakar Patil rushed to the spot of incident for drawing

spot panchanama. On reaching there, he found that the house was

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locked and key was kept with the neighbour. Thus, he had taken the

key from the neighbour and opened the lock of the house. P.W.3

A.P.I. Kamlakar Patil has seized the articles, i.e. one bottle of bisleri

having some kerosene in it, one match box and one burnt matchstick

from the spot of incident. Though P.W.1 panch witness on the spot

panchanama has not supported the prosecution case, however, the

prosecution has proved the contents of the spot panchnama through

P.W.3 A.P.I. Kamlakar Patil. There is no reason to discard the spot

panchnama Exh.26 and contents thereof for the reason that the

panch witness has not supported the case. It is specifically

mentioned in the spot panchanama that one DVD player was kept on

the TV and one plastic bisleri bottle having residues of kerosene

found kept on the said DVD player, one match box and one single

burnt match stick were found there. It is also mentioned in the spot

panchanama that in the room where TV is kept, towards its western

side one cot was kept. It is not necessary to repeat here that

deceased Pushpa had stated consistently in both the dying

declarations that the appellants accused and her brother-in-law

(juvenile in conflict with law) were sitting on the cot in the said room.

There is reference in both the dying declarations about pouring of

kerosene from plastic bottle, igniting her with the help of match stick

from the match box. P.W.3 A.P.I. Kamlakar Patil has also seized the

clothes of deceased from the hospital. There were pieces of burnt

Saree. There was smell of kerosene on those pieces. Panchanama

of seizure of clothes is marked at Exh.27. C.A. report is marked at

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Exh.32. Empty plastic bottle is marked at Exh. A (1), partially burnt

black bead necklace put in polythene wrapped in paper is marked at

Exh.A (2). Partially burnt saree put in a polythene wrapped in paper

marked at Exh.B. The Exhibits 1 to 3 were sent for analysis and as

per the report Exh.32 the results of the test for detection of kerosene

residues on Exhibit Nos. (1), (2) and (3) are positive. P.W.4 Dr.

Sarika Jawalikar, who has conducted the post mortem examination

also noted burn injuries in the post mortem report Exh.38. According

to her, the said burn injuries superficial to deep and the cause of

death is septicemia due to burn.

16. In the case of Purushottam Chopra and another vs. State

(Government of NCT of Delhi) (supra) relied upon by learned

A.P.P. for the State, the Supreme court by referring the principles laid

down by the Constitution Bench in the case of Laxman vs. State of

Maharashtra, (2002) 6 SCC 710 and by referring the principles laid in

various cases decided earlier, such as (i) Koli Chunilal Savji vs.

State of Gujarat, (1999) 9 SCC 562, (ii) State of M.P. vs. Dal Singh,

(2013) 14 SCC 159, (iii) Bhagwan vs. State of Maharashtra, (2019) 8

SCC 95, (iv) State of Punjab vs. Gian Kaur, 1998 SCC (Cri) 942, (v)

Gopalsingh vs. State of M.P. (1972) 3 SCC 268, (vi) Dalip Singh vs.

State of Punjab (1979) 4 SCC 332, (vii) Thurukanni Pompiah vs.

State of Mysore, AIR 1965 SC 939, (viii) Uka Ram vs. State of

Rajasthan, (2001) 5 SCC 254, summarized some of the principles

relating to dying declarations and its admissibility and reliability in

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para 21 to 21.8 of the judgment, which are as follows:-.

"21. For what has been noticed hereinabove, some of the principles relating to recording of dying declaration and its admissibility and reliability could be usefully summed up as under:-

21.1. A dying declaration could be the sole basis of conviction even without corroboration, if it inspires confidence of the Court.

21.2. The Court should be satisfied that the declarant was in a fit state of mind at the time of making the statement; and that it was a voluntary statement, which was not the result of tutoring, prompting or imagination.

21.3. Where a dying declaration is suspicious or is suffering from any infirmity such as want of fit state of mind of the declarant or of like nature, it should not be acted upon without corroborative evidence.

21.4. When the eye-witnesses affirm that the deceased was not in a fit and conscious state to make the statement, the medical opinion cannot prevail.

21.5. The law does not provide as to who could record dying declaration nor there is any prescribed format or procedure for the same but the person recording dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making the statement

21.6. Although presence of a Magistrate is not absolutely necessary for recording of a dying declaration but to ensure authenticity and credibility, it is expected that a Magistrate be requested to record such dying declaration and/or attestation be obtained from other persons present at the time of recording the dying declaration.

21.7. As regards a burns case, the percentage and degree of burns would not, by itself, be decisive of the credibility of dying

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declaration; and the decisive factor would be the quality of evidence about the fit and conscious state of the declarant to make the statement.

21.8. If after careful scrutiny, the Court finds the statement placed as dying declaration to be voluntary and also finds it coherent and consistent, there is no legal impediment in recording conviction on its basis even without corroboration."

17. It is well settled that the dying declaration could be the sole

basis for conviction even without corroboration, if it inspires

confidence of the court. The Court should be satisfied that the

declarant was in a fit state of mind at the time of making the

statement and it was a voluntary statement. So far as the burn cases

are concerned, the percentage and degree of burns would not, by

itself, be decisive of the credibility of dying declaration and the

decisive factor would be the quality of evidence about the fit and

conscious state of the declarant to make the statement. In the instant

case, we find the complaint/dying declaration Exh.24 recorded by

P.W.3 A.P.I. Kamlakar Patil and the dying declaration Exh.48

recorded by P.W.6 Pundlik Zunjare, Special Judicial Magistrate

truthful, consistent and made voluntarily. There is nothing in the

cross examination to indicate that the same is result of tutoring,

prompting and imagination. Further, the dying declarations are

corroborated by other evidence on record. Both the dying

declarations inspire confidence and they are not suffering from any

infirmity, such as want of fit state of mind of the declarant or like

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nature.

18. Learned counsel for the appellants in the alternate has

submitted that deceased Pushpa had sustained burn injuries to the

extent of 38.40% and the cause of death is also due to septicemia

due to burns. Learned counsel submits that though incident had

taken place on 13.8.2011 deceased Pushpa died on 4.9.2011 i.e.

after 22 days of sustaining burns. Learned counsel submits that as

per the incident narrated by deceased Pushpa in both the dying

declarations, the incident had taken place as of a sudden without any

premeditation during the heat of passion upon sudden quarrel.

Learned counsel submits that exception 4 of Section 300 of I.P.C.

stands attracted and in the alternate both the appellants-accused

may be convicted under Section 304 of I.P.C.

19. In the case of Subhash vs. State of Maharashtra (supra)

relied upon by learned counsel for the appellants, the Division Bench

of this Court observed that deceased was admitted in a hospital only

with 45% of burns and she died after thirty nine days of the incident.

The offence committed by the appellant would fall within the ambit of

Section 304 of I.P.C. In the facts of the cited case, the

appellant/husband of the deceased was under the influence of liquor,

poured kerosene on the person of deceased Rekha and set her on

fire. In the above cited case, this court has also held that the dying

declaration is truthful, inspiring confidence and deceased was in fit

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condition to give the dying declaration. In para 17 of the said case,

this Division Bench of this Court has made following observations:-

"17. The next question, which falls for our consideration in the present case, is as to whether the offence committed by the appellant is a murder under Section 300, Indian Penal Code, or a culpable homicide not amounting to murder as defined under Section 304, Part-I or Part-II of Indian Penal Code. In the instant case, the deceased was admitted in the hospital on 18th May, 1993 with 45% of burns and she died after thirty nine days, i.e. on 26 th June, 1993. The opinion of the doctor reflected in Exh. 18 (admitted document) shows that the cause of death was Septicemia due to burns. In the instant case, the evidence of the prosecution is completely silent with regard to the treatment given to the deceased during the course of her stay in the hospital and in absence thereof, it is not known as to whether the proper medical treatment was administered to the deceased when she was alive for thirty nine days after the incident. Similarly, in the instant case, recitals in the dying declaration show that the appellant on the day of incident was consuming liquor right from the morning and at the relevant time, he rushed towards deceased, poured kerosene on her person and set her on fire. It is, no doubt, true that in the normal set of circumstances, in such a situation, it can safely be inferred that the act is committed with an intention of causing death of the deceased. However, in the peculiar facts and circumstances of the present case, as referred to herein above, it is possible to hold that the deceased did not succumb only due to burn injuries sustained by her and the possibility of death due to Septicemia, in absence of any evidence about medical treatment given to the deceased, cannot be ruled out, particularly when the deceased died after thirty-nine days and, therefore, the evidence of the prosecution demonstrates that

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the appellant has caused burn injuries to the deceased with an intention of causing such bodily injuries as are likely to cause death and the offence committed by the appellant, therefore, would fall within the ambit of provisions of Section 304, Part-I of the Indian Penal Code."

20. In the case of Khokan vs. State of Chhattisgarh (supra)

relied upon by learned counsel for the appellants, the Supreme court

has also observed that there was no evidence about any

premeditation on the part of the accused. There was sudden quarrel

with respect to money and the accused pushed the deceased and

stood on the abdomen in the heat of passion upon a sudden quarrel.

Therefore, the case would fall under exception 4 to Section 300 of

I.P.C.

21. In the case of Sham Madhavrao Rupvate vs. State of

Maharashtra (supra) relied upon by learned counsel for the

appellants, the Division Bench of this court observed that clause

three of Section 299 of I.P.C. applies and thus the case squarely falls

under Section 304 (II) of I.P.C. In para 18 of the said judgment, the

Division Bench of this Court has made the following observations:-

"18. For the said reasons we feel that the trial Court was justified in placing reliance on dying declarations and finding involvement of the appellant in the incident established beyond the pale of all doubts.

We however, make no bones in observing that the learned trial judge erred in convicting the appellant for offence under

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Section 302, I.P.C. The statement of Muktabai recorded by police havaldar Sudam Mahajan PW-3 and oral dying declaration made by Muktabai to Pushpa Tadpade PW-6 on 25-4-1995 at about 7 p.m. clearly show that the appellant got enraged by Muktabai's act of eating first and hence set her on fire. A perusal of the post mortem report, which has been proved by Dr. Ravindra Ashtaputre shows that Muktabai did not die directly as a consequence of her burns but died due to septicemia due to 75% burns which she had sustained. The evidence of Pushpa Tadpade PW-6 shows Muktabai died more than 1 1/2 months after the incident viz, on 13-6-1995.

It is in the aforesaid background that we have to examine the circumstance that Dr. Ravindra Ashtaputre who performed the autopsy did not state in his deposition in the trial Court that Muktabai's injuries were sufficient in the ordinary course of nature to cause death. Since there is no evidence to the effect that her injuries were sufficient in the ordinary course of nature to cause death, clause thirdly of Section 300, I.P.C. would be inapplicable. In our view the other three clauses of Section 300, I.P.C. would also be inapplicable.

But all the same it can be safely presumed that when in the aforesaid background that appellant poured kerosene oil on deceased Muktabai and set her on fire he committed an act with the knowledge that he was likely to cause her death, in terms of clause thirdly of Section 299, I.P.C. the breach of which is punishable under Section 304(ii), I.P.C.

We accordingly hold that the appellant is guilty of an offence punishable under Section 304(ii), I.P.C."

22. In the instant case, Exception 4 of Section 300 of I.P.C., is

relevant for the present discussion, which is re-produced herein

below:-

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"300. Murder -

........

.......

Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offence having taken undue advantage or acted in a cruel or unusual manner."

23. In the instant case, the manner in which the incident had taken

place indicates that it was done with premeditation. The appellants

accused used to torture deceased Pushpa mainly for the reason that

they did not like her and appellant accused No.1 Parvatibai was

intending to perform the marriage of her son with her niece, but

unfortunately, deceased Pushpa's marriage was performed with her

son. It further appears from the sequence of crime that co-accused

brother-in-law (juvenile in conflict with law) had caught hold the

hands of deceased Pushpa, appellant accused No.1 mother-in-law

Parvatibai had poured kerosene from a plastic bottle and appellant

accused No.2 Sujata sister-in-law had immediately set on fire

deceased Pushpa with the help of a match stick that it was not a

sudden quarrel. Deceased Pushpa was taking meals at that time.

The manner in which deceased Pushpa was set on fire while she

was taking meals, the only inference could be drawn that the

appellants-accused have acted in a cruel/unusual manner.

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Deceased Pushpa ran outside of the house and extinguished the fire

by pouring water on herself. Deceased Pushpa had also stated in

her complaint/dying declaration that literally she put her head in a

domestic water tank for extinguishing the fire. The appellants-

accused and co-accused have not tried to extinguish the fire. Had it

been the incident occurred without premeditation and in a heat of

passion upon a sudden quarrel, the appellants accused would have

immediately repented and attempted to extinguish the fire but they

did not.

24. P.W.4 Dr. Sarika Jawalikar has also stated in her cross

examination that the burn injuries were superficial to deep. Even at

the time of post mortem, she had seen that central circulated system

and perripherial circulated systems were damaged.

25. In our considered opinion the ratio laid down in the cases relied

upon by learned counsel for the appellants are not applicable to the

facts and circumstances of the present case. Though, learned

counsel for the appellants accused has vehemently submitted that

there is mark discrepancy between two dying declarations Exh.24

and Exh.48 respectively, however, we do not find any substance in it.

Both the dying declaration are consistent on material parts and

inspiring confidence.

26. The learned counsel for the appellants has tried his level best

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to convince us that how the case of the appellant accused No.2

Sujata is different and it can be segregated. Learned counsel for the

appellants took us through the evidence of D.W.1 Navnath, who

happened to be husband of deceased Pushpa. We have also

carefully gone through the evidence of D.W.1 Navnath. D.W.1

Navnath has deposed that his sister appellant accused No.2 was at

village Nivgha and on 13.8.2011 he had been to the said village

Nivgha for festival of Rakshabandhan. Even he has made futile

attempt to suggest that he was residing separately alongwith his

deceased wife Pushpa. He has further deposed that the appellant

accused No.2 Sujata was at Nivgha at the time of incident, appellant

accused No.1 mother-in-law was in the agricultural field and his

brother (juvenile in conflict with law) was in the school. He has gone

to the extent by saying that his wife remained unconscious from

13.8.2011 to 4.9.2011 i.e. till her death. However, there is no attempt

on his part to explain as to how his wife died at her matrimonial

home. Though he had tried to suggest that she had sustained

accidental burns, however, the contents of spot panchanama Exh.26

so also other evidence, discussed in length in the foregoing paras,

ruled out the said possibility.

27. In our considered opinion, the trial court has rightly held both

the appellants-accused viz. Parvatibai and Sujata guilty of the

offences punishable under Section 302 r.w. 34 of I.P.C. and also the

appellant accused No.1 Parvatibai guilty of the offence punishable

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under section 498-A of I.P.C. Accordingly, no case is made out for

interference. Hence, the following order:-

ORDER

I. Criminal appeal No. 315 of 2014 (Parvatibai Sambhaji Aamre

vs. The State of Maharashtra) and criminal appeal No. 247 of

2014 (Sujata Shivshankar Pawar vs. The State of

Maharashtra) are hereby dismissed.

II. Criminal appeals are accordingly disposed of.

   ( SHRIKANT D. KULKARNI J.)                           (V. K. JADHAV, J.)

 rlj/