On this point Supreme Court has laid down law in the case reported as AIR 2004 SC 1708 [Nillam Veera Satyanandam and Ors. Vs. Public Prosecutor, High Court of A.P]. The Apex Court has laid down that when there are multiple dying declarations, each dying declaration must be considered independently on its own merits as to its evidentiary value and one cannot be rejected because of the contents of others.1
1. The appeal is filed against judgment and order of Sessions Case No. 21/2010, which was pending in the Court of Cri. Appeal No. 2/2011
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Additional Sessions Judge, Jalgaon. The Trial Court has convicted the appellant for offence punishable under section 302 of Indian Penal Code ("I.P.C." for short) and he is sentenced to imprisonment for life. Both the sides are heard in appeal.
2. It is the case of prosecution that deceased Rekhabai was daughter of Kashinath Patil, resident of Shirsal, Tahsil Amalner, District Jalgaon. Rekhabai was given in marriage to the appellant in the year 2005. At the relevant time, Rekhabai had a son, aged about 20 months.
3. For some time, the deceased had cohabited with appellant in the house of the parents of the appellant in village Mangrul. The appellant is addicted to liquor and he was not giving any income for household expenses. The parents of the appellant did not approve the conduct of the appellant and so, they asked him to live separately. The appellant then started living with the deceased and his son in a separate house which was taken on rent in Mangrul itself. The appellant was working in M.I.D.C., Mangrul. The conduct of the appellant did not improve even after starting of separate residence. The appellant continued to give illtreatment to the deceased and he continued his bad habits. The incident took place in this house after about two months of Cri. Appeal No. 2/2011
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starting of separate residence.
4. The incident took place on 19.2.2010 at about 8.00 a.m. The deceased was washing clothes in bath room (Mori), which was constructed inside of the house. The appellant came there in drunken condition and he started making inquiry about the amount of Rs. 100/-, which he had seen in a glass pot of house. The deceased said that their son was sick and in spite of that he had come in drunken condition to the house and he was making inquiry about money. Upon that, the appellant started quarreling with the deceased and he started giving beating with kicks and fist blows. Due to this harassment, the deceased said that it would be better, if he finishes her and ends the matter. The appellant said that he would do that and then he took can of kerosene and poured kerosene on person of deceased and set her on fire. When the deceased was in flames, she started shouting and she ran outside the house. The neighbours gathered and they somehow extinguished the fire. The neighbours noticed that the accused was present in the house, but the accused was not making any attempt to extinguish the fire.
5. The neighbours of the appellant and his parents shifted the deceased first to cottage hospital at Amalner and from Cri. Appeal No. 2/2011
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there the deceased was shifted to Civil Hospital, Dhule. On the same day in the evening the deceased was shifted to a private hospital by name Chaitanya Hospital from Davpur. Civil Hospital referred the matter to police as soon as the deceased was admitted there. Similarly, the matter was referred by Chaitanya Hospital to police. The dying declarations of the deceased then came to be recorded by police and also through Executive Magistrate. On the basis of the dying declaration recorded by Police Officer, the Crime at Cr.No. 43/2010 came to be registered for the offence punishable under sections 307, 323 and 506 of I.P.C.
6. Somebody informed the parents of deceased about the incident and they rushed to Civil Hospital, Dhule. The deceased narrated the incident to them also and she blamed the appellant for the injuries sustained by her. From Chaitanya Hospital the deceased was shifted to Kasturba Hospital, Mumbai. There again the statement of deceased was recorded by police. Rekha succumbed to injuries on 18.3.2010 in Kasturba Hospital Mumbai.
7. The panchanama of the spot was prepared on 19.2.2010 itself and from the house of the appellant articles like Cri. Appeal No. 2/2011
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partly burnt Sari having smell of kerosene, can of kerosene and matchstick came to be taken over. Police recorded the statements of neighbours of the appellant and also of the parents of the deceased. The accused came to be arrested on 21.2.2010 and his clothes came to be taken over. The clothes had smell of kerosene. In Kasturba Hospital enquest panchanama was prepared and in Mumbai post mortem came to be conducted on the dead body. This record along with the record like the statement of deceased recorded at Mumbai came to be collected by Amalner Police Station. During the course of investigation, the articles seized came to be sent to C.A. Office. After completion of investigation, the chargesheet came to be filed for offence punishable under section 302 of I.P.C.
8. In the Trial Court, the appellant took the defence of total denial. The appellant contended that the deceased had sustained injuries accidentally, as her Sari fell on the flames of gas stove accidentally. For defence some dying declarations of deceased dated 19.2.2010 were brought on the record. These dying declarations are to the effect that she sustained injuries accidentally as a part of her Sari fell accidentally on the flames of gas stove. In the Trial Court, the prosecution relied on the dying declarations given against the appellant and also some Cri. Appeal No. 2/2011
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circumstantial evidence in the form of spot panchanama. Kashinath (PW 1) and his wife Sarlabai (PW 2), who is step mother, were examined in the Trial Court to prove the oral dying declarations given to them. The Trial Court has believed the evidence given by the prosecution.
9. It was mainly submitted for the appellant that when the first dying declaration was to effect that Rekhabai sustained injuries accidentally, the Trial Court ought to have discarded the other dying declarations. It was also submitted that no reason is given by the prosecution, as to why more dying declarations were recorded when the dying declarations were recorded on 19.2.2010 in Civil Hospital. It was submitted that when there are such inconsistent dying declarations, conviction cannot be based by picking and choosing one dying declaration in which the accused is blamed for the incident. The A.P.P. supported the decision given by the Trial Court.
10. For appellant some reported cases were cited on the point of dying declaration. In the case reported as 2006 ALL MR (Cri) 817 [Shahu Parshu Rathod (Aade) Vs. State of Maharashtra], this Court has observed that if there are multiple dying declarations, it is impermissible to pick and chose either of Cri. Appeal No. 2/2011
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the dying declaration. The facts of this reported case show that there were discrepancies in the two dying declarations and so this Court has held that it was not possible to place reliance on both the dying declarations. In the case reported as 2005 ALL MR (Cri) 972 [Md. Rafiq Md. Tajoddin Vs. State of Maharashtra] this Court has observed that the dying declaration should be accepted in its entirety and it is not permissible to pick some pieces of many dying declarations to base the conviction. It s true that the dying declarations need to be consistent on material point, but only because one dying declaration is consistent even on material point, on that ground only, the remaining dying declarations cannot be straight away discarded. On this point Supreme Court has laid down law in the case reported as AIR 2004 SC 1708 [Nillam Veera Satyanandam and Ors. Vs. Public Prosecutor, High Court of A.P]. The Apex Court has laid down that when there are multiple dying declarations, each dying declaration must be considered independently on its own merits as to its evidentiary value and one cannot be rejected because of the contents of others.
11. In the case reported as 2011 ALL MR (Cri) 2105 [Ashok Pandurang Jadhav Vs. State of Maharashtra], on the basis of the ratio laid down by the Apex Court in the case reported Cri. Appeal No. 2/2011
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as AIR 1958 SC 22 [Khushal Rao Vs. State of Bombay], this Court has observed that the prosecution must prove two things in such a case viz. (i) the dying declaration was really made, and (ii) the dying declaration is true. It is further observed by this Court that evaluation of the dying declaration would depend upon the testimony of person before whom the dying declaration was made and the medical opinion, if any, available to show the physical and mental condition of the declarant at the material time. In the case of Khushal Rao cited supra and also in the case reported as AIR 1979 SC 190 [Jaswant Singh Vs. State (Delhi Administration)], the Apex Court has further laid down that if the Court is satisfied on a close scrutiny of dying declaration that it is truthful, it is open to the Court to convict the accused on its basis without any independent corroboration. There cannot be any dispute over the propositions laid down in the cases cited supra by the Apex Court. Thus, when there are multiple dying declarations and there is inconsistency on material point in the dying declaration, each dying declaration must be scrutinized independently to find out whether it was true and it was voluntarily made. When there is inconsistency, the circumstantial evidence would lend assurance to the dying declaration which can be called as true and voluntary.
Cri. Appeal No. 2/2011
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12. In the case reported as AIR 2005 SC 97 [State of Maharashtra Vs. Sanjay D. Rajhans], it is laid down by the Apex Court that the Court is also expected to see whether the version given in the dying declaration is probable in nature. There cannot be any dispute over this proposition also.
13. Some other reported cases were cited for the appellant. In the case reported as 1982 (1) SCC 700 [Mohanlal Gangaram Gehani Vs. State of Maharashtra] the importance of F.I.R. is discussed. The facts of this reported case are altogether different. In the case reported as AIR 2004 SC 4383 [Dasari Siva Prasad Reddy Vs. Public Prosecutor, High Court of A.P.] and in the case reported as AIR 2004 SC 3249 [Narendra Singh and Anr. Vs. State of M.P.] the Apex Court has discussed the principles which need to be followed for appreciation of circumstantial evidence. There cannot be dispute over those propositions. The facts of these reported cases were altogether different.
14. Let us see the evidence of the present case in the light of aforesaid propositions of law. Along with the chargesheet, the State had produced all the record including two dying declarations dated 19.2.2010, which are in favour of the accused. Cri. Appeal No. 2/2011
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The Trial Court has considered these dying declarations also. So, it cannot be said that some material was suppressed by the State. Even a neighbour of the appellant/accused was examined, but he turned hostile.
15. The appellant, deceased and their son aged about 20 months were living together in the house, where the incident took place and they were there atleast for about two months. This fact is not disputed and this fact is mentioned in the dying declarations and also in the evidence of the parents of the deceased. The incident took place at about 8.00 to 8.30 a.m. After the incident, the deceased was shifted to many hospitals and throughout, the treatment the parents and the brother of the appellant took care of the deceased and they spent for the treatment. The parents of the deceased did not go to Mumbai when the deceased was shifted for better treatment to Kasturba Hospital. Rekhabai succumbed to injuries on 19.3.2010. These facts are not disputed. They need to be kept in mind at the time of the appreciation of the evidence.
16. The evidence of Kashinath (PW 1) and step mother Sarlabai (PW 2) show that on 19.2.2010 by chance they were present in Amalner and they had come there for treatment of Cri. Appeal No. 2/2011
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Sarlabai. Their evidence shows that they learnt about the incident in Amalner. It was informed to them that Rekhabai was already shifted to Civil Hospital Dhule and so they directly went to Civil Hospital, Dhule from Amelner. They have given evidence that Rekhabai was unconscious on 19th and she regained consciousness on 20th. It is not disputed that the parents of Rekhabai went to Civil Hospital, Dhule and they were not with Rekhabai right from the beginning. Their evidence shows that they probably reached civil hospital after noon time.
17. Kashinath (PW 1) has deposed that on 20th February 2010 Rekhabai disclosed to him that on 19th the appellant had picked up quarrel with her on account of money, he had given beating to her and when she had expressed that he should finish her, he had set her on fire after pouring kerosene on her person. Kashinath has further deposed that Rekhabai disclosed to him that when he was in flames, she ran out of the house and there, the neighbours extinguished the fire. Similar evidence on the main incident disclosed by Rekhabai is given by Sarlabai (PW 2).
18. There is some inconsistency about the story given by Rekhabai in the evidence of PW 1 and PW 2. When PW 1 has deposed that Rekhabai had disclosed that she was making inquiry Cri. Appeal No. 2/2011
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with the accused about the amount of Rs. 100/- kept by her and the amount was missing, PW 2 has deposed that Rekhabai disclosed to her that accused was making inquiry in respect of the amount of Rs. 100/-. These two witnesses are illiterate villagers. The evidence of PW 1 shows that he had not even visited the house where the accused and Rekhabai were living for about two months. They did not go to Mumbai when Rekha was shifted to Mumbai for better treatment. It is admitted by them that on the occasions of festival, Rekhabai used to go to the house of her maternal uncle. This conduct and nature of evidence given by PW Nos. 1 and 2 show that they had not kept much contact with Rekha atleast during the two months when their separate residence was started. The evidence was recorded after many months. In view of these circumstances, there is bound to be some discrepancy. However, the evidence given by PW Nos. 1 and 2 on material point that Rekhabai blamed the accused for the injuries sustained by her, is consistent.
19. Suggestions are given to PW Nos. 1 and 2 during cross examination that on 19th Rekhabai had disclosed to them that she caught fire accidentally. These suggestions are denied by them. The evidence of PW Nos. 1 and 2 show that they have no knowledge that statement of Rekhabai was recorded on 19th and Cri. Appeal No. 2/2011
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even on 20th by police or Executive Magistrate.
20. Executive Magistrate Waman Bhoi (PW 5) has given evidence that on 20.2.2010, on the request made by Devpur Police Station, he recorded dying declaration of Rekhabai. The dying declaration dated 20.2.2010 is proved as Exh. 23. He has deposed that the dying declaration was recorded in Chaitanya Hospital of Devpur and before recording the statement, he had obtained the opinion of the doctor about the fitness of Rekhabai to give statement. He has deposed that opinion was given by doctor that Rekhabai was in a position to give statement. Doctor Mhaskar (PW 6) has given evidence that the deceased was his patient and he had given opinion that she was in a position to give statement when Executive Magistrate had asked for the opinion. The evidence of doctor and the Executive Magistrate show that doctor was present near Rekhabai throughout when dying declaration was being recorded.
21. The dying declaration at Exh. 23 shows that it was recorded at about 17.45 hours on 20.2.2010. In the dying declaration Rekhabai disclosed that at about 8.00 a.m. she was cooking food on gas stove and she was also washing clothes. She disclosed that she asked the accused as to why he had come in Cri. Appeal No. 2/2011
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drunken condition when accused asked about amount of Rs. 100/- which he had seen in a glass pot of house. She disclosed that the accused then started assaulting her. She disclosed that she then said to the accused that he should finish her to end the matter. She disclosed that accused then took a can of kerosene, poured kerosene on her person and set her on fire. She disclosed that she raised hue and cry and she ran out of the house when she was in flames. She disclosed that her neighbours extinguished the fire. She disclosed that she was shifted to hospital. On this dying declaration, there is endorsement of the doctor, as follows :- "Patient conscious, fit to record statement
throughout the statement"
22. In the cross examination of Bhoi (PW 5), it is only suggested to him that Rekhabai gave aforesaid statement as she was tutored by her parents. The evidence of Bhoi (PW 5) shows that he had taken care to see that all the relatives of deceased were taken out of the room before starting of recording of dying declaration.
23. Salim (PW 4), a Police Inspector of Devpur Police Station, has given evidence that on 20.2.2010 he recorded statement of Rekhabai in Chaitanya Hospital. He has deposed that Cri. Appeal No. 2/2011
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he first took opinion of the doctor about the fitness of Rekhabai to give statement and then he recorded the dying declaration which is at Exh. 21. There is evidence of Dr. Mhaskar (PW 6) on Exh. 21 also. Doctor has given evidence that he had again examined Rekhabai, when his opinion was sought by the Police Officer regarding the fitness of patient. There is such endorsement on Exh. 21. In Exh. 21, there are few more particulars about the incident. In addition to the aforesaid disclosures, Rekhabai disclosed that accused had said to her that he would finish her and after that he had set her on fire. This dying declaration was recorded at about 6.00 p.m. i.e. after some time of recording of dying declaration by Executive Magistrate on 20th. These two dying declarations viz. Exhs. 21 and 23 recorded on 20.2.2010 are consistent with each other on material point. The Crime at Cr. No. 43/10 was recorded on the basis of Exh. 21 for the offence punishable under section 307 etc. of I.P.C.
24. Deoram Chavan (PW 11) was attached to Amalner Police Station, Dhule. The house of appellant is situated within the local jurisdiction of Amalner Police Station. Chaitanya Hospital is situated within local jurisdiction of Devpur Police Station. Chavan (PW 11) has deposed that he received the papers prepared by Devpur Police Station like Exhs. 21 and 23 on 20.2.2010 and after Cri. Appeal No. 2/2011
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registering the crime, he took over the investigation. Chavan has given evidence that he also visited Chaitanya Hospital on 21.2.2010 and he recorded one more statement of Rekhabai. This dying declaration of Rekhabai is proved as Exh. 47. Though there is no evidence that Chavan had obtained opinion of doctor about the fitness of Rekhabai, there is no reason to disbelieve Chavan and his evidence shows that by way of precaution he recorded one more statement after starting of the investigation. The contents of Exh. 47 are consistent with Exhs. 21 and 23 on material point. In the cross examination of Chavan, it is only suggested to him that Rekhabai was tutored by her relatives to give such statement.
25. Pratap Kharade (PW 7) was working as P.S.I. in Agripada Police Station, Mumbai. He has given evidence that when he received information from Kasturba Hospital, he went there and he recorded the statement of Rekhabai on 12.3.2010. This dying declaration is proved as Exh. 30. He has not given evidence that he had obtained the opinion of doctor about the fitness of Rekhabai to give statement. In Exh. 30 Rekhabai disclosed that there was quarrel between her and her husband and during quarrel the husband set her on fire. The story of starting quarrel due to the amount of Rs. 100/- was not given by Cri. Appeal No. 2/2011
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Rekhabai to Kharade. However, on material point, this dying declaration is also consistent with the aforesaid three dying declarations. In the cross examination of Kharade, it was suggested to Chavan that Rekhabai was not fit to give statement and this suggestion is denied by Kharade.
26. The aforesaid discussion shows that the prosecution has proved four written dying declarations, which were given between 20.2.2010 and 12.3.2010. It is true that Bed Head Ticket of these three hospitals are not produced. But the tenor of the cross examination does not show that there was much dispute about the physical or mental fitness of Rekhabai. There is medical evidence in support of atleast Exhs. 21 and 23. The prosecution has also given evidence of parents of deceased to prove that to them also oral dying declarations were made by the deceased. It is only suggested to the parents that they wanted to extract money from the accused and so they have falsely implicated the accused. The suggestion is denied. In view of the circumstances and the evidence discussed above, it does not look probable that the parents wanted to extract money from the appellant or his parents.
27. As against the evidence of six dying declarations of Cri. Appeal No. 2/2011
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Rekhabai on which the prosecution has relied, the defence is relying on two dying declarations dated 19.2.2010. In the cross examination of Bhoi (PW 5), the Executive Magistrate, it is brought on the record that on the request made by police he had recorded the first dying declaration of Rekhabai in Civil Hospital, Dhule on 19.2.2010. This dying declaration is at Exh. 25. In the cross examination, he has admitted the suggestion given to him that he had obtained the opinion of doctor of Civil Hospital before recording of dying declaration and doctor had given opinion that Rekha was fit to give the statement. There is no such endorsement of doctor appearing on Exh. 25. In Exh. 25 Rekhabai disclosed that on 19.2.2010 at about 8.00 a.m. when she was preparing tea on gas stove, her son aged about one and half years, dragged portion of her Sari towards gas stove and due to that her Sari was caught in fire. She disclosed that she did not want to blame anybody for the incident. This statement was recorded at about 12.25 p.m. on 19.2.2010.
28. The defence has brought on record one more dying declaration dated 19.2.2010, which is at Exh. 55. The say of the prosecution was obtained and the prosecution gave no objection to give exhibit to this document. In this document also, similar disclosure was made by the deceased.
Cri. Appeal No. 2/2011
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29. The evidence of the prosecution witnesses show that the parents and the brother of accused had shifted the deceased to various hospitals. No Bed Head Ticket of General Hospital, Dhule and even Chaitanya Hospital, Devpur was collected by police and it was also not called by the Court. The record and the evidence show that there was nobody, but only the parents and brother of the accused to take care of the deceased and they took care of the deceased till her last breath. On the first day i.e. on 19th the parents and brother of the accused were only near the deceased. The parents of the deceased must have reached Civil Hospital, Dhule after noon time and prior to that the record like Exhs. 25 and 55 was created. The person, who wants to live, is bound to act as per the wishes of persons, who are taking care of her in such a situation. Son of the deceased was aged about 20 months at the relevant time. On Exh. 25, there is no endorsement of doctor, though there is such endorsement on Exh. 55. In view of these circumstances, this Court holds that Exhs. 25 and 55 are not true. At all places, the information/history was given by the brother of the accused and that can be seen from the evidence of doctor from Chaitanya Hospital. There is the possibility that the deceased was under pressure, she was tutored and as she was totally depending on the parents and brother of the accused, she Cri. Appeal No. 2/2011
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allowed such record to be created. She disclosed the truth when her parents reached the hospital. The evidence however shows that the parents were not in position to control the things or to tutor the deceased.
30. There are many other circumstances due to which the so called dying declarations dated 19.2.2010 cannot be relied upon. Shri. Titarmare (PW 10), the P.S.I., who was attached to Amalner Police Station, prepared the spot panchanama on 19.2.2010 itself and this document was prepared between 11.00 a.m. and 11.45 a.m. even before the recording of any statement of deceased on 19.2.2010. His evidence shows that from the cottage hospital Amelner, where Rekhabai was taken first, information was supplied to police and then he proceeded to the house of the appellant to prepare spot panchanama. A panch witness Shivaji (PW 3) was expected to give evidence on spot panchanama, but he has turned hostile. As Shivaji (PW 3) is a neighbour of appellant, he was also expected to give evidence on the steps taken by the neighbours for extinguishing the fire and for taking Rekhabai to the hospital. He hails from the village of the appellant. In view of these circumstances, this Court holds that there is no reason to disbelieve the police officer Titarmare (PW 10).
Cri. Appeal No. 2/2011
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31. The spot panchanama at Exh. 44 shows that the size of the house of the accused was 25 x 10 fts. There was a separate bathroom of 5 x 10 fts. size, inside the house. There was one separate room of 10 x 10 fts. The other space of the house was used for kitchen and other purposes. There was traditional cooking place, Chulha, at one corner of the room and near this place, there was a gas stove with cylinder. One can of kerosene was found at some distance from cooking place and one burnt matchstick was found near the can. There were pieces of partly burnt Sari and they were having smell of kerosene. The evidence of Investigating Officer Chavan (PW 11) shows that these articles were forwarded to C.A. Office on 18.3.2010 with covering letter. One witness Rihan Khan (PW 8), who was working as the police constable, has given evidence that he carried articles to C.A. Office on 18.3.2010. At Exh. 32 there is the office copy of covering letter and at Exh. 40 there is C.A. report in respect of the Articles. This report shows that the muddemal property was properly closed and sealed and C.A. Office found the seals were intact. Kerosene was detected on partly burnt pieces of Sari and also on petticoat of deceased.
32. For defence, one case reported as 1996 CRI.L.J. Cri. Appeal No. 2/2011
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3147 BOMBAY HIGH COURT [Ashraf Hussain Shah Vs. State of Maharashtra] was cited. The facts of this reported case show that articles like blood stained clothes and weapon were not sealed at the time of seizure and in view of the facts of the case, the Court refused to accept such evidence in that case. The facts of the present case are totally different. The spot panchanama was prepared on 19th itself, before blaming the accused by Rakhabai. There was smell of kerosene to pieces of Sares. There is ring of truth in the evidence given by Investigating Officer in respect of this piece of circumstantial evidence. The presence of kerosene on the clothes of the deceased shows that the record of dying declaration dated 19.2.2010 is not correct and the statements, disclosures in those documents are not true. If the Sari caught fired due to the flames of gas stove, there would not have been smell of kerosene to the clothes and kerosene would not have been detected in the analysis, on these clothes.
33. Nothing is said about the child of the deceased. In ordinary course, it needs to be presumed that the son aged about 20 months was present in the house at the relevant time. If the Sari of the deceased had caught fired as per the disclosure made in the document dated 19.2.2010 there was possibility of sustaining some injuries by the issue of the deceased also. It is Cri. Appeal No. 2/2011
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not the case of anybody that the child also sustained injuries. The record dated 19.2.2010 does not show that the deceased disclosed that she ran out of the house. If the deceased sustained all the burn injuries inside the house, some articles of the house would have been found in burnt condition. The description of the house given in spot panchanama does not support the record prepared on 19.2.2010. This story does not appear to be probable in nature.
34. This Court has already discussed the other circumstances like medical evidence and the consistency in so many dying declarations given on 20th and subsequent to 20th February by the deceased. It is clear that only after arrival of the parents, the deceased got some courage and she narrated the truth. So this Court holds that the dying declarations dated 20.2.2010 and subsequent dying declarations given by the deceased need to be accepted. Conviction can be safely based on these dying declarations.
35. The prosecution has examined panch witness Naresh Kalyani (PW 9) to prove the panchanama of seizure of clothes of the accused. This witness has turned hostile. The seizure panchanama at Exh. 46 is proved in the evidence of Police Officer Cri. Appeal No. 2/2011
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Chavan (PW 11). Chavan has deposed that he could trace the accused on 21st and then the clothes, which were on the person of the accused, were taken over by him. In Exh. 46, there is the mention that there was smell of kerosene to the clothes of the accused. The evidence is given to show that these articles were forwarded to C.A. Office and the C.A. report, Exh. 48, shows that on the clothes of the accused kerosene was detected. This is certainly incriminating evidence against the accused.
36. Investigating Officer Chavan (PW 11) has given evidence that he tried to find out the accused on the night of 20.2.2010, but he could not trace the accused. It is already observed that accused was not seen in the hospital at any time and he did not take steps to save the life of the deceased. It was 8.00 a.m. and ordinarily the male members are expected to remain in the house at this time. When there is dying declaration that accused had come in drunken condition to home at that time and he set the deceased on fire, it was necessary for the accused to give some explanation regarding his presence or otherwise in the house. Thus, the circumstance of non explanation of the aforesaid circumstances also can be used against the accused.
37. The discussion made above shows that there is Cri. Appeal No. 2/2011
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convincing evidence of dying declarations against the accused. There is circumstantial evidence in support of dying declarations dated 20.2.2010 and subsequent dying declarations. In the dying declarations itself the motive can be seen and even the intention can be safely inferred. This Court has no hesitation to hold that the evidence given by the prosecution is sufficient to base conviction for the offence of murder. No reason is there to interfere in the judgment and order of the Trial Court and so the appeal stands dismissed.
[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/
Print Page
Bombay High Court
Sharad @ Sharadchandra S/O vs The Police Station Officer on 22 March, 2012
Bench: Naresh H. Patil, T.V. Nalawade
1. The appeal is filed against judgment and order of Sessions Case No. 21/2010, which was pending in the Court of Cri. Appeal No. 2/2011
2
Additional Sessions Judge, Jalgaon. The Trial Court has convicted the appellant for offence punishable under section 302 of Indian Penal Code ("I.P.C." for short) and he is sentenced to imprisonment for life. Both the sides are heard in appeal.
2. It is the case of prosecution that deceased Rekhabai was daughter of Kashinath Patil, resident of Shirsal, Tahsil Amalner, District Jalgaon. Rekhabai was given in marriage to the appellant in the year 2005. At the relevant time, Rekhabai had a son, aged about 20 months.
3. For some time, the deceased had cohabited with appellant in the house of the parents of the appellant in village Mangrul. The appellant is addicted to liquor and he was not giving any income for household expenses. The parents of the appellant did not approve the conduct of the appellant and so, they asked him to live separately. The appellant then started living with the deceased and his son in a separate house which was taken on rent in Mangrul itself. The appellant was working in M.I.D.C., Mangrul. The conduct of the appellant did not improve even after starting of separate residence. The appellant continued to give illtreatment to the deceased and he continued his bad habits. The incident took place in this house after about two months of Cri. Appeal No. 2/2011
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starting of separate residence.
4. The incident took place on 19.2.2010 at about 8.00 a.m. The deceased was washing clothes in bath room (Mori), which was constructed inside of the house. The appellant came there in drunken condition and he started making inquiry about the amount of Rs. 100/-, which he had seen in a glass pot of house. The deceased said that their son was sick and in spite of that he had come in drunken condition to the house and he was making inquiry about money. Upon that, the appellant started quarreling with the deceased and he started giving beating with kicks and fist blows. Due to this harassment, the deceased said that it would be better, if he finishes her and ends the matter. The appellant said that he would do that and then he took can of kerosene and poured kerosene on person of deceased and set her on fire. When the deceased was in flames, she started shouting and she ran outside the house. The neighbours gathered and they somehow extinguished the fire. The neighbours noticed that the accused was present in the house, but the accused was not making any attempt to extinguish the fire.
5. The neighbours of the appellant and his parents shifted the deceased first to cottage hospital at Amalner and from Cri. Appeal No. 2/2011
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there the deceased was shifted to Civil Hospital, Dhule. On the same day in the evening the deceased was shifted to a private hospital by name Chaitanya Hospital from Davpur. Civil Hospital referred the matter to police as soon as the deceased was admitted there. Similarly, the matter was referred by Chaitanya Hospital to police. The dying declarations of the deceased then came to be recorded by police and also through Executive Magistrate. On the basis of the dying declaration recorded by Police Officer, the Crime at Cr.No. 43/2010 came to be registered for the offence punishable under sections 307, 323 and 506 of I.P.C.
6. Somebody informed the parents of deceased about the incident and they rushed to Civil Hospital, Dhule. The deceased narrated the incident to them also and she blamed the appellant for the injuries sustained by her. From Chaitanya Hospital the deceased was shifted to Kasturba Hospital, Mumbai. There again the statement of deceased was recorded by police. Rekha succumbed to injuries on 18.3.2010 in Kasturba Hospital Mumbai.
7. The panchanama of the spot was prepared on 19.2.2010 itself and from the house of the appellant articles like Cri. Appeal No. 2/2011
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partly burnt Sari having smell of kerosene, can of kerosene and matchstick came to be taken over. Police recorded the statements of neighbours of the appellant and also of the parents of the deceased. The accused came to be arrested on 21.2.2010 and his clothes came to be taken over. The clothes had smell of kerosene. In Kasturba Hospital enquest panchanama was prepared and in Mumbai post mortem came to be conducted on the dead body. This record along with the record like the statement of deceased recorded at Mumbai came to be collected by Amalner Police Station. During the course of investigation, the articles seized came to be sent to C.A. Office. After completion of investigation, the chargesheet came to be filed for offence punishable under section 302 of I.P.C.
8. In the Trial Court, the appellant took the defence of total denial. The appellant contended that the deceased had sustained injuries accidentally, as her Sari fell on the flames of gas stove accidentally. For defence some dying declarations of deceased dated 19.2.2010 were brought on the record. These dying declarations are to the effect that she sustained injuries accidentally as a part of her Sari fell accidentally on the flames of gas stove. In the Trial Court, the prosecution relied on the dying declarations given against the appellant and also some Cri. Appeal No. 2/2011
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circumstantial evidence in the form of spot panchanama. Kashinath (PW 1) and his wife Sarlabai (PW 2), who is step mother, were examined in the Trial Court to prove the oral dying declarations given to them. The Trial Court has believed the evidence given by the prosecution.
9. It was mainly submitted for the appellant that when the first dying declaration was to effect that Rekhabai sustained injuries accidentally, the Trial Court ought to have discarded the other dying declarations. It was also submitted that no reason is given by the prosecution, as to why more dying declarations were recorded when the dying declarations were recorded on 19.2.2010 in Civil Hospital. It was submitted that when there are such inconsistent dying declarations, conviction cannot be based by picking and choosing one dying declaration in which the accused is blamed for the incident. The A.P.P. supported the decision given by the Trial Court.
10. For appellant some reported cases were cited on the point of dying declaration. In the case reported as 2006 ALL MR (Cri) 817 [Shahu Parshu Rathod (Aade) Vs. State of Maharashtra], this Court has observed that if there are multiple dying declarations, it is impermissible to pick and chose either of Cri. Appeal No. 2/2011
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the dying declaration. The facts of this reported case show that there were discrepancies in the two dying declarations and so this Court has held that it was not possible to place reliance on both the dying declarations. In the case reported as 2005 ALL MR (Cri) 972 [Md. Rafiq Md. Tajoddin Vs. State of Maharashtra] this Court has observed that the dying declaration should be accepted in its entirety and it is not permissible to pick some pieces of many dying declarations to base the conviction. It s true that the dying declarations need to be consistent on material point, but only because one dying declaration is consistent even on material point, on that ground only, the remaining dying declarations cannot be straight away discarded. On this point Supreme Court has laid down law in the case reported as AIR 2004 SC 1708 [Nillam Veera Satyanandam and Ors. Vs. Public Prosecutor, High Court of A.P]. The Apex Court has laid down that when there are multiple dying declarations, each dying declaration must be considered independently on its own merits as to its evidentiary value and one cannot be rejected because of the contents of others.
11. In the case reported as 2011 ALL MR (Cri) 2105 [Ashok Pandurang Jadhav Vs. State of Maharashtra], on the basis of the ratio laid down by the Apex Court in the case reported Cri. Appeal No. 2/2011
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as AIR 1958 SC 22 [Khushal Rao Vs. State of Bombay], this Court has observed that the prosecution must prove two things in such a case viz. (i) the dying declaration was really made, and (ii) the dying declaration is true. It is further observed by this Court that evaluation of the dying declaration would depend upon the testimony of person before whom the dying declaration was made and the medical opinion, if any, available to show the physical and mental condition of the declarant at the material time. In the case of Khushal Rao cited supra and also in the case reported as AIR 1979 SC 190 [Jaswant Singh Vs. State (Delhi Administration)], the Apex Court has further laid down that if the Court is satisfied on a close scrutiny of dying declaration that it is truthful, it is open to the Court to convict the accused on its basis without any independent corroboration. There cannot be any dispute over the propositions laid down in the cases cited supra by the Apex Court. Thus, when there are multiple dying declarations and there is inconsistency on material point in the dying declaration, each dying declaration must be scrutinized independently to find out whether it was true and it was voluntarily made. When there is inconsistency, the circumstantial evidence would lend assurance to the dying declaration which can be called as true and voluntary.
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12. In the case reported as AIR 2005 SC 97 [State of Maharashtra Vs. Sanjay D. Rajhans], it is laid down by the Apex Court that the Court is also expected to see whether the version given in the dying declaration is probable in nature. There cannot be any dispute over this proposition also.
13. Some other reported cases were cited for the appellant. In the case reported as 1982 (1) SCC 700 [Mohanlal Gangaram Gehani Vs. State of Maharashtra] the importance of F.I.R. is discussed. The facts of this reported case are altogether different. In the case reported as AIR 2004 SC 4383 [Dasari Siva Prasad Reddy Vs. Public Prosecutor, High Court of A.P.] and in the case reported as AIR 2004 SC 3249 [Narendra Singh and Anr. Vs. State of M.P.] the Apex Court has discussed the principles which need to be followed for appreciation of circumstantial evidence. There cannot be dispute over those propositions. The facts of these reported cases were altogether different.
14. Let us see the evidence of the present case in the light of aforesaid propositions of law. Along with the chargesheet, the State had produced all the record including two dying declarations dated 19.2.2010, which are in favour of the accused. Cri. Appeal No. 2/2011
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The Trial Court has considered these dying declarations also. So, it cannot be said that some material was suppressed by the State. Even a neighbour of the appellant/accused was examined, but he turned hostile.
15. The appellant, deceased and their son aged about 20 months were living together in the house, where the incident took place and they were there atleast for about two months. This fact is not disputed and this fact is mentioned in the dying declarations and also in the evidence of the parents of the deceased. The incident took place at about 8.00 to 8.30 a.m. After the incident, the deceased was shifted to many hospitals and throughout, the treatment the parents and the brother of the appellant took care of the deceased and they spent for the treatment. The parents of the deceased did not go to Mumbai when the deceased was shifted for better treatment to Kasturba Hospital. Rekhabai succumbed to injuries on 19.3.2010. These facts are not disputed. They need to be kept in mind at the time of the appreciation of the evidence.
16. The evidence of Kashinath (PW 1) and step mother Sarlabai (PW 2) show that on 19.2.2010 by chance they were present in Amalner and they had come there for treatment of Cri. Appeal No. 2/2011
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Sarlabai. Their evidence shows that they learnt about the incident in Amalner. It was informed to them that Rekhabai was already shifted to Civil Hospital Dhule and so they directly went to Civil Hospital, Dhule from Amelner. They have given evidence that Rekhabai was unconscious on 19th and she regained consciousness on 20th. It is not disputed that the parents of Rekhabai went to Civil Hospital, Dhule and they were not with Rekhabai right from the beginning. Their evidence shows that they probably reached civil hospital after noon time.
17. Kashinath (PW 1) has deposed that on 20th February 2010 Rekhabai disclosed to him that on 19th the appellant had picked up quarrel with her on account of money, he had given beating to her and when she had expressed that he should finish her, he had set her on fire after pouring kerosene on her person. Kashinath has further deposed that Rekhabai disclosed to him that when he was in flames, she ran out of the house and there, the neighbours extinguished the fire. Similar evidence on the main incident disclosed by Rekhabai is given by Sarlabai (PW 2).
18. There is some inconsistency about the story given by Rekhabai in the evidence of PW 1 and PW 2. When PW 1 has deposed that Rekhabai had disclosed that she was making inquiry Cri. Appeal No. 2/2011
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with the accused about the amount of Rs. 100/- kept by her and the amount was missing, PW 2 has deposed that Rekhabai disclosed to her that accused was making inquiry in respect of the amount of Rs. 100/-. These two witnesses are illiterate villagers. The evidence of PW 1 shows that he had not even visited the house where the accused and Rekhabai were living for about two months. They did not go to Mumbai when Rekha was shifted to Mumbai for better treatment. It is admitted by them that on the occasions of festival, Rekhabai used to go to the house of her maternal uncle. This conduct and nature of evidence given by PW Nos. 1 and 2 show that they had not kept much contact with Rekha atleast during the two months when their separate residence was started. The evidence was recorded after many months. In view of these circumstances, there is bound to be some discrepancy. However, the evidence given by PW Nos. 1 and 2 on material point that Rekhabai blamed the accused for the injuries sustained by her, is consistent.
19. Suggestions are given to PW Nos. 1 and 2 during cross examination that on 19th Rekhabai had disclosed to them that she caught fire accidentally. These suggestions are denied by them. The evidence of PW Nos. 1 and 2 show that they have no knowledge that statement of Rekhabai was recorded on 19th and Cri. Appeal No. 2/2011
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even on 20th by police or Executive Magistrate.
20. Executive Magistrate Waman Bhoi (PW 5) has given evidence that on 20.2.2010, on the request made by Devpur Police Station, he recorded dying declaration of Rekhabai. The dying declaration dated 20.2.2010 is proved as Exh. 23. He has deposed that the dying declaration was recorded in Chaitanya Hospital of Devpur and before recording the statement, he had obtained the opinion of the doctor about the fitness of Rekhabai to give statement. He has deposed that opinion was given by doctor that Rekhabai was in a position to give statement. Doctor Mhaskar (PW 6) has given evidence that the deceased was his patient and he had given opinion that she was in a position to give statement when Executive Magistrate had asked for the opinion. The evidence of doctor and the Executive Magistrate show that doctor was present near Rekhabai throughout when dying declaration was being recorded.
21. The dying declaration at Exh. 23 shows that it was recorded at about 17.45 hours on 20.2.2010. In the dying declaration Rekhabai disclosed that at about 8.00 a.m. she was cooking food on gas stove and she was also washing clothes. She disclosed that she asked the accused as to why he had come in Cri. Appeal No. 2/2011
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drunken condition when accused asked about amount of Rs. 100/- which he had seen in a glass pot of house. She disclosed that the accused then started assaulting her. She disclosed that she then said to the accused that he should finish her to end the matter. She disclosed that accused then took a can of kerosene, poured kerosene on her person and set her on fire. She disclosed that she raised hue and cry and she ran out of the house when she was in flames. She disclosed that her neighbours extinguished the fire. She disclosed that she was shifted to hospital. On this dying declaration, there is endorsement of the doctor, as follows :- "Patient conscious, fit to record statement
throughout the statement"
22. In the cross examination of Bhoi (PW 5), it is only suggested to him that Rekhabai gave aforesaid statement as she was tutored by her parents. The evidence of Bhoi (PW 5) shows that he had taken care to see that all the relatives of deceased were taken out of the room before starting of recording of dying declaration.
23. Salim (PW 4), a Police Inspector of Devpur Police Station, has given evidence that on 20.2.2010 he recorded statement of Rekhabai in Chaitanya Hospital. He has deposed that Cri. Appeal No. 2/2011
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he first took opinion of the doctor about the fitness of Rekhabai to give statement and then he recorded the dying declaration which is at Exh. 21. There is evidence of Dr. Mhaskar (PW 6) on Exh. 21 also. Doctor has given evidence that he had again examined Rekhabai, when his opinion was sought by the Police Officer regarding the fitness of patient. There is such endorsement on Exh. 21. In Exh. 21, there are few more particulars about the incident. In addition to the aforesaid disclosures, Rekhabai disclosed that accused had said to her that he would finish her and after that he had set her on fire. This dying declaration was recorded at about 6.00 p.m. i.e. after some time of recording of dying declaration by Executive Magistrate on 20th. These two dying declarations viz. Exhs. 21 and 23 recorded on 20.2.2010 are consistent with each other on material point. The Crime at Cr. No. 43/10 was recorded on the basis of Exh. 21 for the offence punishable under section 307 etc. of I.P.C.
24. Deoram Chavan (PW 11) was attached to Amalner Police Station, Dhule. The house of appellant is situated within the local jurisdiction of Amalner Police Station. Chaitanya Hospital is situated within local jurisdiction of Devpur Police Station. Chavan (PW 11) has deposed that he received the papers prepared by Devpur Police Station like Exhs. 21 and 23 on 20.2.2010 and after Cri. Appeal No. 2/2011
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registering the crime, he took over the investigation. Chavan has given evidence that he also visited Chaitanya Hospital on 21.2.2010 and he recorded one more statement of Rekhabai. This dying declaration of Rekhabai is proved as Exh. 47. Though there is no evidence that Chavan had obtained opinion of doctor about the fitness of Rekhabai, there is no reason to disbelieve Chavan and his evidence shows that by way of precaution he recorded one more statement after starting of the investigation. The contents of Exh. 47 are consistent with Exhs. 21 and 23 on material point. In the cross examination of Chavan, it is only suggested to him that Rekhabai was tutored by her relatives to give such statement.
25. Pratap Kharade (PW 7) was working as P.S.I. in Agripada Police Station, Mumbai. He has given evidence that when he received information from Kasturba Hospital, he went there and he recorded the statement of Rekhabai on 12.3.2010. This dying declaration is proved as Exh. 30. He has not given evidence that he had obtained the opinion of doctor about the fitness of Rekhabai to give statement. In Exh. 30 Rekhabai disclosed that there was quarrel between her and her husband and during quarrel the husband set her on fire. The story of starting quarrel due to the amount of Rs. 100/- was not given by Cri. Appeal No. 2/2011
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Rekhabai to Kharade. However, on material point, this dying declaration is also consistent with the aforesaid three dying declarations. In the cross examination of Kharade, it was suggested to Chavan that Rekhabai was not fit to give statement and this suggestion is denied by Kharade.
26. The aforesaid discussion shows that the prosecution has proved four written dying declarations, which were given between 20.2.2010 and 12.3.2010. It is true that Bed Head Ticket of these three hospitals are not produced. But the tenor of the cross examination does not show that there was much dispute about the physical or mental fitness of Rekhabai. There is medical evidence in support of atleast Exhs. 21 and 23. The prosecution has also given evidence of parents of deceased to prove that to them also oral dying declarations were made by the deceased. It is only suggested to the parents that they wanted to extract money from the accused and so they have falsely implicated the accused. The suggestion is denied. In view of the circumstances and the evidence discussed above, it does not look probable that the parents wanted to extract money from the appellant or his parents.
27. As against the evidence of six dying declarations of Cri. Appeal No. 2/2011
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Rekhabai on which the prosecution has relied, the defence is relying on two dying declarations dated 19.2.2010. In the cross examination of Bhoi (PW 5), the Executive Magistrate, it is brought on the record that on the request made by police he had recorded the first dying declaration of Rekhabai in Civil Hospital, Dhule on 19.2.2010. This dying declaration is at Exh. 25. In the cross examination, he has admitted the suggestion given to him that he had obtained the opinion of doctor of Civil Hospital before recording of dying declaration and doctor had given opinion that Rekha was fit to give the statement. There is no such endorsement of doctor appearing on Exh. 25. In Exh. 25 Rekhabai disclosed that on 19.2.2010 at about 8.00 a.m. when she was preparing tea on gas stove, her son aged about one and half years, dragged portion of her Sari towards gas stove and due to that her Sari was caught in fire. She disclosed that she did not want to blame anybody for the incident. This statement was recorded at about 12.25 p.m. on 19.2.2010.
28. The defence has brought on record one more dying declaration dated 19.2.2010, which is at Exh. 55. The say of the prosecution was obtained and the prosecution gave no objection to give exhibit to this document. In this document also, similar disclosure was made by the deceased.
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29. The evidence of the prosecution witnesses show that the parents and the brother of accused had shifted the deceased to various hospitals. No Bed Head Ticket of General Hospital, Dhule and even Chaitanya Hospital, Devpur was collected by police and it was also not called by the Court. The record and the evidence show that there was nobody, but only the parents and brother of the accused to take care of the deceased and they took care of the deceased till her last breath. On the first day i.e. on 19th the parents and brother of the accused were only near the deceased. The parents of the deceased must have reached Civil Hospital, Dhule after noon time and prior to that the record like Exhs. 25 and 55 was created. The person, who wants to live, is bound to act as per the wishes of persons, who are taking care of her in such a situation. Son of the deceased was aged about 20 months at the relevant time. On Exh. 25, there is no endorsement of doctor, though there is such endorsement on Exh. 55. In view of these circumstances, this Court holds that Exhs. 25 and 55 are not true. At all places, the information/history was given by the brother of the accused and that can be seen from the evidence of doctor from Chaitanya Hospital. There is the possibility that the deceased was under pressure, she was tutored and as she was totally depending on the parents and brother of the accused, she Cri. Appeal No. 2/2011
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allowed such record to be created. She disclosed the truth when her parents reached the hospital. The evidence however shows that the parents were not in position to control the things or to tutor the deceased.
30. There are many other circumstances due to which the so called dying declarations dated 19.2.2010 cannot be relied upon. Shri. Titarmare (PW 10), the P.S.I., who was attached to Amalner Police Station, prepared the spot panchanama on 19.2.2010 itself and this document was prepared between 11.00 a.m. and 11.45 a.m. even before the recording of any statement of deceased on 19.2.2010. His evidence shows that from the cottage hospital Amelner, where Rekhabai was taken first, information was supplied to police and then he proceeded to the house of the appellant to prepare spot panchanama. A panch witness Shivaji (PW 3) was expected to give evidence on spot panchanama, but he has turned hostile. As Shivaji (PW 3) is a neighbour of appellant, he was also expected to give evidence on the steps taken by the neighbours for extinguishing the fire and for taking Rekhabai to the hospital. He hails from the village of the appellant. In view of these circumstances, this Court holds that there is no reason to disbelieve the police officer Titarmare (PW 10).
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31. The spot panchanama at Exh. 44 shows that the size of the house of the accused was 25 x 10 fts. There was a separate bathroom of 5 x 10 fts. size, inside the house. There was one separate room of 10 x 10 fts. The other space of the house was used for kitchen and other purposes. There was traditional cooking place, Chulha, at one corner of the room and near this place, there was a gas stove with cylinder. One can of kerosene was found at some distance from cooking place and one burnt matchstick was found near the can. There were pieces of partly burnt Sari and they were having smell of kerosene. The evidence of Investigating Officer Chavan (PW 11) shows that these articles were forwarded to C.A. Office on 18.3.2010 with covering letter. One witness Rihan Khan (PW 8), who was working as the police constable, has given evidence that he carried articles to C.A. Office on 18.3.2010. At Exh. 32 there is the office copy of covering letter and at Exh. 40 there is C.A. report in respect of the Articles. This report shows that the muddemal property was properly closed and sealed and C.A. Office found the seals were intact. Kerosene was detected on partly burnt pieces of Sari and also on petticoat of deceased.
32. For defence, one case reported as 1996 CRI.L.J. Cri. Appeal No. 2/2011
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3147 BOMBAY HIGH COURT [Ashraf Hussain Shah Vs. State of Maharashtra] was cited. The facts of this reported case show that articles like blood stained clothes and weapon were not sealed at the time of seizure and in view of the facts of the case, the Court refused to accept such evidence in that case. The facts of the present case are totally different. The spot panchanama was prepared on 19th itself, before blaming the accused by Rakhabai. There was smell of kerosene to pieces of Sares. There is ring of truth in the evidence given by Investigating Officer in respect of this piece of circumstantial evidence. The presence of kerosene on the clothes of the deceased shows that the record of dying declaration dated 19.2.2010 is not correct and the statements, disclosures in those documents are not true. If the Sari caught fired due to the flames of gas stove, there would not have been smell of kerosene to the clothes and kerosene would not have been detected in the analysis, on these clothes.
33. Nothing is said about the child of the deceased. In ordinary course, it needs to be presumed that the son aged about 20 months was present in the house at the relevant time. If the Sari of the deceased had caught fired as per the disclosure made in the document dated 19.2.2010 there was possibility of sustaining some injuries by the issue of the deceased also. It is Cri. Appeal No. 2/2011
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not the case of anybody that the child also sustained injuries. The record dated 19.2.2010 does not show that the deceased disclosed that she ran out of the house. If the deceased sustained all the burn injuries inside the house, some articles of the house would have been found in burnt condition. The description of the house given in spot panchanama does not support the record prepared on 19.2.2010. This story does not appear to be probable in nature.
34. This Court has already discussed the other circumstances like medical evidence and the consistency in so many dying declarations given on 20th and subsequent to 20th February by the deceased. It is clear that only after arrival of the parents, the deceased got some courage and she narrated the truth. So this Court holds that the dying declarations dated 20.2.2010 and subsequent dying declarations given by the deceased need to be accepted. Conviction can be safely based on these dying declarations.
35. The prosecution has examined panch witness Naresh Kalyani (PW 9) to prove the panchanama of seizure of clothes of the accused. This witness has turned hostile. The seizure panchanama at Exh. 46 is proved in the evidence of Police Officer Cri. Appeal No. 2/2011
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Chavan (PW 11). Chavan has deposed that he could trace the accused on 21st and then the clothes, which were on the person of the accused, were taken over by him. In Exh. 46, there is the mention that there was smell of kerosene to the clothes of the accused. The evidence is given to show that these articles were forwarded to C.A. Office and the C.A. report, Exh. 48, shows that on the clothes of the accused kerosene was detected. This is certainly incriminating evidence against the accused.
36. Investigating Officer Chavan (PW 11) has given evidence that he tried to find out the accused on the night of 20.2.2010, but he could not trace the accused. It is already observed that accused was not seen in the hospital at any time and he did not take steps to save the life of the deceased. It was 8.00 a.m. and ordinarily the male members are expected to remain in the house at this time. When there is dying declaration that accused had come in drunken condition to home at that time and he set the deceased on fire, it was necessary for the accused to give some explanation regarding his presence or otherwise in the house. Thus, the circumstance of non explanation of the aforesaid circumstances also can be used against the accused.
37. The discussion made above shows that there is Cri. Appeal No. 2/2011
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convincing evidence of dying declarations against the accused. There is circumstantial evidence in support of dying declarations dated 20.2.2010 and subsequent dying declarations. In the dying declarations itself the motive can be seen and even the intention can be safely inferred. This Court has no hesitation to hold that the evidence given by the prosecution is sufficient to base conviction for the offence of murder. No reason is there to interfere in the judgment and order of the Trial Court and so the appeal stands dismissed.
[ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/
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