Bombay High Court
Dashrath Arun Sasane vs The State Of Maharashtra on 8 September, 2022
Bench: A.S. Gadkari, Milind N. Jadhav
Appeal.806.15.doc
ATU
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 806 OF 2015
Mr. Dashrath Arun Sasane
Age : 30 years, Hindu,
Indian inhabitant, Occu.: Cobbler,
R/o.:- Govindwadi, Patripool, Appellant
Kalyan (E). ... (Orig. Accused)
Versus
The State of Maharashtra.
(Through Dadar Police Station Respondent
in CR.No.281/2013) ... (Orig. Complainant)
Mr. Nikhilesh D. Pote, Advocate for Appellant.
Mr. S. S. Hulke, APP for Respondent - State.
CORAM : A.S. GADKARI &
MILIND N. JADHAV, JJ.
RESERVED ON : 04th August, 2022.
PRONOUNCED ON : 08th September, 2022.
JUDGMENT (PER: MILIND N. JADHAV, J.)
. This Appeal questions the legality of the Judgment and
Order dated 07.02.2015 passed by the learned Special Judge,
appointed under the P.C. Act, Court of Sessions for Greater Bombay in
Sessions Case No.1138 of 2013 convicting Appellant under Section
235(2) of the Criminal Procedure Code, 1973 (for short "Cr.P.C.") for
offence punishable under Section 302 of the Indian Penal Code, 1860
(for short "IPC") and sentencing him to suffer imprisonment for life.
2. Shorn of unnecessary details, the prosecution case which
emerges from record is as under: -
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2.1. Appellant is husband of deceased victim Sharmila Dasrath
Sasane (hereinafter referred to as "Sharmila"). Appellant is convicted
under Section 302 IPC for committing murder of Sharmila by setting
her ablaze.
2.2. According to prosecution, on 08.09.2013 at about 17:00
hours information was received by Dadar Police Station, from KEM
Hospital on telephone regarding Sharmila sustaining burn injuries by
setting herself on fire and having been admitted to the hospital by her
mother-in-law Smt. Laxmi Sasane. PSI Yashwant Rao Shinde PW-9
along with police constable 00791 visited KEM Hospital and after
consulting the Doctor on duty about the condition, consciousness and
orientation of Sharmila, which was certified by the Doctor as
satisfactory, recorded her dying declaration (Exh.41). This dying
declaration was given on 08.09.2013 between 09:30 p.m. to 10:00
p.m. In this dying declaration Sharmila narrated that on 08.09.2013,
though she was having fever and did not wish to go to work (labour
job), Appellant forced her to go to work and earn her daily wages of
Rs. 500/- for the day; thereafter, when she returned home in the
evening Appellant insisted that she should give him Rs.200/- for
buying Liquor; Sharmila refused to part with any money, hence
Appellant got enraged, abused her physically and took the can of
kerosene lying in the house, poured it on her and threatened that if
she did not give him money he would set her on fire. Despite this
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Sharmila refused to give him money, hence Appellant lighted a match
stick and set her ablaze; she started shouting but Appellant told her
that since she did not give him Rs.200/- she should die. Thereafter,
fire was extinguished by neighbors and she was taken to hospital by
Appellant.
2.3. On the basis of the above statement, C.R. No. 281 of 2013
was registered at Dadar Police Station at 00:05 hrs, on 09.09.2013,
for offences punishable under sections 307 and 504 IPC. Spot
panchanama (Exh.32) was conducted and partly burnt clothes of
Sharmila smelling of kerosene were seized in the presence of PW-5
pancha witness. That apart, one 5 litre plastic can containing half litre
kerosene, one match box, half burnt match stick, one black beads
broken mangalsutra, one yellow bangle and one white anklet were
seized from spot of incident in presence of pancha witnesses.
2.4. On 09.09.2013, Appellant was arrested; clothes worn by him
at the time of incident were recovered and seized vide panchanama
Exh.29; seized articles were sent by Investigating Officer (I.O.) for
chemical analysis. C. A. Report was obtained vide Exh.48.
2.5. On 10.09.2013 in the presence of PW-1 - Special Executive
Magistrate, second dying declaration of Sharmila was recorded which
was marked in evidence as (Exh.13.) This dying declaration was
recorded at about 02:45 p.m. I.O. recorded statements of several
persons and collected documents relating to non-cognizable offence
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about quarrels between Appellant and Sharmila registered in the years
2011 and 2012.
2.6. On 18.09.2013, during the course of medical treatment
Sharmila expired; I.O. carried out inquest panchanama and referred
her dead body for post-mortem and added Section 302 IPC to the FIR
registered earlier; charge sheet was filed against Appellant in the
Court of Metropolitan Magistrate, Dadar on 18.11.2013 for offences
punishable under Sections 302 and 504 IPC; since offence under
section 302 is exclusively triable by the Court of Sessions, the
Metropolitan Magistrate committed the case to the Sessions Court for
trial.
2.7. Charge was framed below Exh.3 against Appellant for
offences punishable under Sections 302 and 504 IPC and contents
thereof were read over and explained to him in vernacular; Appellant
pleaded not guilty and claimed to be tried, his defense being that of
false implication in the case.
3. To bring home guilt of Appellant, prosecution examined 10
witnesses and relied upon oral as well as documentary evidence, viz;
the two dying declarations (Exh.13 and Exh.41).
4. It is seen that PW-9 I.O. was examined by prosecution in
respect of the first in point of time dying declaration (Exh.41)
recorded by him on 10.09.2013 in KEM Hospital, perusal of the same
shows that it was recorded in the printed format by PW-9, Sharmila
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has recorded that Appellant set her ablaze; that on the date of incident
at about 07:00 p.m. Appellant demanded money from her for drinking
liquor and on her refusal to give him money abused her and physically
assaulted her on face and chest; that two days before, her mother had
given 5 litres kerosene to her; that Appellant took the kerosene can
and threatened her that if she did not give him money he would pour
kerosene on her and set her ablaze; that on her refusal to give him
money he carried out his threat, set her ablaze and cursed her. This
dying declaration is endorsed by on duty Medical Doctor with this
endorsement "P.T. is able to speak and give statement ". This
endorsement is marked in evidence as Exh.43; This dying declaration
is witnessed by PW-9 and bears the right-hand thumb impression of
Sharmila. Defense has argued that endorsement by medical doctor on
duty is insufficient and therefore the dying declaration suffers from
infirmity. According to Advocate for Appellant medical doctor on duty
has not certified that Sharmila was conscious and oriented and
therefore this dying declaration cannot be accepted as valid dying
declaration in law.
5. Prosecution has through PW-1, Executive Magistrate placed
on record Exh.13 the second written dying declaration recorded by
him; it is marked in evidence as Exh.13; it was recorded on
10.09.2013 at 2:45 p.m.; it bears endorsement of the Executive
Magistrate and thumb impression of Sharmila. Advocate for Appellant
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has argued that this dying declaration also does not bear endorsement
of the treating doctor as to whether Sharmila was conscious and
oriented; PW-1 in his evidence however has admitted that this dying
declaration does not bear the endorsement.
6. In this context deposition of P.W.-2 Dr. Manoj Bachav,
Medical Officer, in KEM hospital, Parel assumes importance. He has
deposed that on 08.09.2013 Sharmila was admitted to hospital at
08.00 p.m.; he examined her at 09:00 p.m. along with Dr. Satoskar; he
has produced on record medical case papers/dairy of Sharmila's
hospitalization and treatment from the time of her admission till she
was declared dead at 04:15 p.m. on 18.09.2013 alongwith discharge
note. These medical papers have been produced in evidence and
marked as Exh. Nos. 15, 16- Collectively 23 and 28 respectively.
Perusal of medical case papers reveal that Sharmila was brought by
her husband for admission to hospital on 08.09.2013 at about 08:30
p.m.; on her admission doctor has recorded the cause of her burns at
home being accidental; at that time, she had burns over her face, part
of chest, genetalia, and upper part of legs. At about 09:35 p.m. it has
been recorded by the doctor that burns were caused by Appellant after
throwing kerosene on her and setting her ablaze. It is pertinent to note
that at this hour the on duty medical doctor has endorsed in the
medical case paper (Exh.20) that "there is no loss of consciousness,
convulsions or head injury". There is another endorsement on
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(Exh.17) of the medical case papers that the homicidal burns were
caused by her husband by pouring kerosene over her at home.
Sharmila was admitted with approximately 35% burn injury on
08.09.2010 and she succumbed and passed away on 18.09.2013 due
to septicemia. Discharge note issued by the department of plastic
surgery, KEM hospital (Exh.19) records that, "homicidal burns as told
by patient by husband done by pouring kerosene on her at home in the
evening on 08.09.2013...".
7. PW-3 - Mahendra Namdeo Wankhaede, Assistant Professor,
Forensic Medicine, KEM hospital has deposed that he has on
19.09.2013 issued the medical cause of death certificate of Sharmila
stating cause of death as "Septicemia due to thermal burn (unnatural)"
(Exh.35) He has conducted postmortem of dead body of Sharmila and
found the Following injuries:
A. (a) Epidermal to dermo-epidermal antemortem thermal
burns present over skin surfaces.
(b) Margins Inflamed,
(c) Floors reddened,
(d) Yellowish - greenish pus pockets present at multiple
places,
(e) Singeing of scalp hair present.
B. Involved Burnt surfaces are as follows:
Part Burns Area spared
Head, Neck, Face 5% Part of Scalp
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Chest and Ab- 7% Part around umbilicus & chest
domen
Right Upper Limb 7% Palm & arm at places
Left Upper Limb 4% Palm & arm at places
Back 2% Lower back & part of upper back
Right Lower Limb 8% Part of limb
Left Lower Limb 6% Whole
Perineum 1% Nil
Total 40%
8. PW-4 - Dr. Saswat Kumar Dandawat, Registrar of KEM
hospital, attended to Sharmila in the emergency ward on 08.09.2013.
He has deposed that when Sharmila was brought to hospital she was
conscious and in a position to tell the history herself; that he examined
her and when police arrived to record her statement, he on their
request gave his opinion/endorsement that Sharmila was conscious
and fit to give statement in his own handwriting and signed the same.
This endorsement is marked in evidence as (Exh.43).
9. Mr. Nikhilesh D. Pote Advocate appearing for Appellant has
vehemently submitted that prosecution has failed to prove its case
beyond reasonable doubt; that Appellant had set Sharmila ablaze by
pouring kerosene on her; that there is no eye witness to the incident
and, at the time of incident Appellant was not present in the house
(hut); that Appellant was accompanying PW-1 (his friend) and
following Ganpati procession at a place away from the spot of
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incident; that only after learning about the incident he rushed home
and rescued Sharmila; that Sharmila had suffered accidental burn
injuries and they were not homicidal. Hence, he has prayed for setting
aside the impugned Judgment passed by the Trial Court.
10. PER CONTRA, Mr. S. S. Hulke learned APP, appearing for
State in his reply, has drawn our attention to the deposition of PW-8
mother of Sharmila who has deposed that Appellant is a habitual
drunkard and used to abuse and assault Sharmila; that he was
responsible for her murder; that the two written dying declarations
(Exh.13 and Exh.41) not only corroborated with each other but are
also in consonance with the medical case history papers of Sharmila's
admission and treatment in hospital from 08.09.2013 and 18.09.2013.
He has therefore prayed for dismissal of Appeal.
11. We have heard both the advocates and with their able
assistance perused the entire record of the case. It is seen that
prosecution case is based on the dying declarations. The dying
declarations given by the Sharmila were recorded by PW-1 and PW-9.
It is further supported and corroborated by medical evidence deposed
by PW-2 and PW-3 and recovery evidence from the spot of incident.
12. We may note that prosecution has to prove guilt of accused
beyond all reasonable doubts; law does not permit the court to convict
accused on suspicion or on the basis of preponderance of probabilities.
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Court has to be extremely careful while dealing with dying declaration
as the maker thereof is not available for cross examination, which
poses a great difficulty to the defence. In short, before relying on
dying declaration, court is duty bound to satisfy itself that the dying
declaration is a voluntary and truthful version of the maker. If the
court is fully satisfied on these issues, then there is no difficulty to base
conviction nor court is required to look for corroborative evidence.
13. The Apex court in the case Puran Chand Vs. State of
Haryana1 has held that the court has to examine the dying declaration
scrupulously with a microscopic eye to find out whether it is volun-
tary, truthful, made in a conscious state of mind and without being in-
fluenced by the relatives present or by the investigating agency who
may be interested in the success of investigation or which may be neg-
ligent while recording the dying declaration.
13.1. The Apex court in an often-quoted Judgment, in the case of
Kushal Rao Vs. State of Bombay2 has in paragraph Nos.16 and 17 of
the said judgmente laid down the principles regarding appreciation of
evidence on dying declaration. On the same lines we may usefully
refer to the observations of the Apex court in the case of Vikas Vs.
State of Maharashtra3 wherein after referring to the earlier case law
1 (2010) 6 SCC 566
2 AIR (1958) SC 22
3 (2008) 2 SCC 516
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including the judgment of Kushal Rao (supra), the Apex court summed
up principles governing dying declaration as under:
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration.
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without
corroboration.
(iii) This Court has to scrutinise the dying declaration carefully
and must ensure that the declaration is not the result of
tutoring, prompting or imagination. The deceased had
opportunity to observe and identify the assailants and was
in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be acted
upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make
any dying declaration the evidence with regard to it is to be
rejected.
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction.
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to
be discarded. On the conftrary, the shortness of the
statement itself guarantees truth.
(ix) Normally the court in Order to satisfy whether deceased
was in a fit mental condition to make the dying declaration
look up to the medical opinion. But where the eye witness
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has said that the deceased was in a fit and conscious state to
make this dying declaration, the medical opinion cannot
prevail.
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot
be acted upon.
14. In the view of the above settled legal position and the
evidence adduced by the prosecution in the present case, it is seen that
when the incident took place Appellant and Sharmila were the only
persons present in the house (hut). Though defense has argued that
death of Sharmila occurred due to bursting of stove (accidental death),
however evidence on record does not support this theory. Seizure of
articles from the spot of incident does not show stove in the spot
panchanama. As alluded to hereinabove and thoroughly discussed, the
dying declaration recorded by PW-9 i.e. (Exh.41) along with the
endorsement of PW-2, the medical doctor on duty, in our considered
opinion deserves to be accepted without any hesitation or doubt.
Recovery evidence shows recovery and seizure of kerosene can, match
box, one half burnt match-stick along with some articles belonging to
Sharmila and there is no dispute regarding seizure and thus recovery
evidence supports the evidence of I.O. Similarly, seizure of clothes of
accused marked in evidence as (Exh.30) and the C.A. Report (Exh.48)
clearly show detection of kerosene on the articles viz; burnt maxi,
T-shirt, bermuda pant and blueish liquid in the plastic can and this
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evidence fully corroborates the prosecution case. Though evidence of
PW-6 and PW-7 regarding occurrence of incident and presence of
Appellant at the spot does not support the prosecution case, however,
the learned Trial Court has elaborately dealt with their evidence in its
Judgment and concluded that though their testimony is not entirely
helpful, evidence of both these witnesses show that there is
inconsistency, discrepancy and improvement in their depositions. In
this context, we need to weigh the Medical evidence on record
deposed by PW-2 and PW-3 both Doctors who treated Sharmila in
KEM Hospital. That apart, medical history case papers exhibited in
evidence will not lie; there was no reason for Sharmila to give any
incorrect reason for the injury caused to her on more than one
occasion after her admission to the hospital. It is extremely important
to note that in the post-mortem report of Sharmila opinion of probable
cause of death is shown as "Septicemia due to thermal burns
(unnatural)"; contents of the cause of death stated in the death
certificate (Exh.25) corroborates with the PM report and the medical
history case papers which clearly depict the sketched part of the body
of Sharmila where the burn injuries were caused.
15. Hence, taking into consideration the Medical evidence i.e.
the Medical history case papers, evidence of PW-2 and PW-3 Doctors
and the two written dying declarations, it does not create any doubt
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that death was caused because of septicemia due to burns. The
substantive evidence of both the Medical doctors is fully reliable and
needs to be accepted. The other medical evidence placed on record
clearly show that Sharmila was conscious, able to speak, sound and
gave her statements. This medical evidence coupled with the
circumstantial evidence discussed hereinabove show that prosecution
has established its case beyond all reasonable doubts that Appellant
has committed murder of his wife Sharmila because she failed to give
him money to buy liquor and he in the bargain abused her, assaulted
her and set her ablaze. We do not find any infirmity in the impugned
Judgment and it does not call for any interference.
16. In view of the above, Criminal Appeal No.806 of 2015 stands
dismissed.
17. Before parting with the Judgment, we would like to place on
record appreciation for the efforts put in by Nikhilesh D. Pote, learned
Advocate appointed by High Court Legal Services Committee, Mumbai
for espousing the cause of Appellant; he was thoroughly prepared in
the matter and rendered proper and able assistance to the Court.
[ MILIND N. JADHAV, J.] [ A.S. GADKARI, J.]
Digitally signed by
AJAY AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2022.09.08
14:39:24 +0530
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