Are Eye Witnesses Reliable ?
The learned counsel for the appellant- accused
criticized the evidence of child witness P.W.5.
Reliance was
placed on the case of Radhey Shyam Vs. State of Rajasthan,
reported in 2014 AIR SCW 1398. It is argued that, the evidence
of child witness is required to be closely scrutinized and as a
matter of caution, the Court must find adequate corroboration to
the child witness evidence.
The argument is that, P.W.5
admitted in cross-examination that he was told by the police
that, in the Court he will have to tell the same thing as were
the witness.
written in his statement. We have gone through the evidence of
The witness has properly deposed regarding the
incident and in the cross-examination the answers given by the
witness show that he understands things properly.
He fairly
stated what the police had told him while recording his
statement. Even if police told him that at the time of evidence in
Court he will have to depose as per his statement, that by itself
does not mean that the police had not recorded what the child
told or recorded any statement on their own.
Being child
witness, if the police, after recording the statement of the
witness apprise him of the fact that in the Court also he will have
to say as per the statement, this by itself does not amount to
tutoring the witness and it does not make the evidence of
witness doubtful.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.8 OF 2012
Komalsing s/o Ramsing Patil,V The State of Maharashtra,
Coram:S.S. SHINDE AND A.I.S. CHEEMA, JJ.
Date of pronouncing judgment : 7/7/2014
Citation;2014 ALLMR(cri)3265 Bom
The
appellant
(hereinafter
referred
to
as
the
“accused”) was charge sheeted for offence punishable under
He has been
having committed murder of his wife Ujwala.
Section 302 of the Indian Penal Code, 1860 (IPC for short) for
sentenced to suffer imprisonment for life and to pay fine of
Rs.1000/-.
In default of fine, it has been directed that he will
undergo R.I. for six months. The case of prosecution in brief is
2.
as follows:
The accused was married with Ujwala (hereinafter
ig
referred to as the “victim”) about 14 years before the incident,
which took place in the night between 1st - 2nd February 2011. A
son namely Tejas was born out of the wedlock.
Due to
differences between the couple, the victim along with son Tejas
went to live with her mother Induabi at village Satiche Vadgaon,
Taluka
Bhadgaon,
District
Jalgaon.
Victim
had
initiated
proceedings against the accused and litigations were pending. In
spite of the separation and proceedings between the parties, the
accused used to visit the victim at the place of her mother and
was harassing them.
In the night of incident, at about 10.00 – 10.30 p.m.,
the accused reached the place of Indubai in drunken condition
where the victim along with her mother and Tejas was sleeping.
He knocked the door and when the same was opened, the victim
and her mother asked the accused not to enter the house as he
Then he further
the house and closed the door from inside.
was drunk. Accused picked up quarrel and forced Indubai out of
quarreled with the victim and sprinkled kerosene on her and put
her on fire. The child Tejas, who was inside the house, saw the
incident and when the victim started shouting due to fire, Tejas
opened the door from inside and Indubai also found that her
At that time, accused poured water on
daughter was burning.
ig
the victim. The victim Ujwala was rushed to the Rural Hospital at
Bhadgaon.
At the Rural Hospital, one Head Constable Bhausaheb
Patil was there due to some other matter and when the victim
was taken there, he recorded her statement at about 4.50 a.m.
In that statement, the victim stated that she had herself poured
kerosene on herself and put fire to her person.
The Head
Constable went back to the Police Station and made station diary
entry.
He also prepared spot panchanama. The victim, during
the day, was shifted to the Civil Hospital, Jalgaon. At the Civil
Hospital, P.S.I. Jilha Peth Police Station, Jalgaon Mr. Rajendra
More went and recorded dying declaration of the victim, in which
she blamed the accused for having burnt her.
declaration was recorded at about 6.45 p.m.
This dying
Just then, Naib
Tahsildar Lakhichand Pardeshi, who had also been called,
reached
the
hospital
and
he
also
recorded
similar
dying
declaration of the victim. P.I. Sanjay Bhamre of Bhadgaon Police
Station received two dying declarations recorded by P.S.I.
Rajendra More and Naib Tahsildar Lakhichand.
P.I. Sanjay
Bhamre converted the second dying declaration recorded by
P.S.I. Rajendra More into F.I.R. and offence was registered on
3.2.2011 at 01.30 a.m at Police Station, Bhadgaon vide Crime
No.21/2011. As he found discrepancies in the dying declarations
ig
recorded by Head Constable Bhausaheb Patil at Bhadgaon and
those recorded at Jalgaon, he went to Civil Hospital, Jalgaon and
he recorded dying declaration seeking explanation of the victim,
where she stated that, at Bhadgaon in her statement, she had
said that she herself poured kerosene on herself and burnt
herself because the husband (accused) had threatened her that
she should say that she had herself done the act, or otherwise if
she survives, he will again burn her.
The victim expired on
7.2.2011 and the offence was converted into Section 302 of the
IPC.
The statements of witnesses were recorded.
The articles
seized from the spot during the course of spot panchanama were
sent to Chemical Analyser.
The inquest panchanama was
recorded and post mortem of the body of victim was done. As
per the
post mortem,
victim had expired due to cardio
respiratory arrest due to shock because of 65% burns.
On completing the investigation, charge sheet came
to be filed before the Judicial Magistrate, First Class, Bhadgaon.
to the Court of Sessions at Jalgaon.
The offence being Sessions triable, matter came to be committed
The charge was framed
under Section 302 of the IPC. Accused pleaded not guilty. His
defence as appearing from the cross-examination of witnesses
and statement under Section 313 of the Code of Criminal
Procedure (Cr.P.C. for short) is that the victim had herself poured
ig
kerosene on her person and set herself on fire. Defence is that,
the accused, when he saw the victim on fire, put water on her
and put out the fire and that he along with others had carried the
victim to the hospital, and that she later on died due to burn
injuries. The accused has stated in statement under Section 313
of the Cr.P.C. that, he was arrested on the same day of his wife
burning from the hospital and he was taken to Police Station and
thereafter even he was treated for the burn injuries he had
suffered in the incident.
3.
The prosecution examined 9 witnesses to prove its
case. The Court called Head Constable Bhausaheb Patil as Court
witness and the said Head Constable was examined as Court
witness.
Trial Court considered the oral and documentary
evidence and convicted and sentenced the accused as mentioned
above. Hence this Appeal.
It has been argued by the learned counsel for the
4.
appellant- accused, and grounds have been raised in the appeal,
that the evidence has not been properly appreciated.
The
inconsistent dying declarations should not have been accepted.
The dying declarations were not free from doubt.
Conviction
could not have been based on such dying declarations. The oral
Against this, the learned A.P.P. argued that, the
ig
5.
evidence of P.W.5 Tejas and P.W.6 Indubai was not reliable.
As there was inconsistency
investigation done is reliable.
between the two dying declarations recorded by Head Constable
Bhausaheb Patil and the statements recorded by P.S.I. More and
Tahsildar
Naib
Lakhichand,
P.I.
Sanjay
Bhamre
recorded
statement seeking explanation of the victim and thus, it is clear
on record that the dying declaration made at Bhadgaon was
under pressure of accused and the same was rightly ignored by
the trial Court. According to the learned A.P.P., even if the dying
declarations are ignored, there is direct evidence of P.W.5 Tejas
and P.W.6 Indubai and there is no reason to disbelieve them. In
the defence of statement under Section 313 of Cr.P.C., the
accused has not denied his presence on the spot or presence of
P.W.5 Tejas and of P.W.6 Indubai to be at or near the spot.
6.
Having heard counsel for both sides, we have
carefully gone through the oral and documentary evidence
available on record.
First Dying Declaration
7.
Going by the sequence of events, firstly the evidence
of Court witness Bhausaheb Patil needs to be considered.
The
evidence of this witness shows that, in the night between
1.2.2011 and 2.2.2011 at about 4.15 a.m., he happened to be at
the Rural Hospital, Bhadgaon for recording statement of a victim
At that time, Medical Officer Dr.
involved in accident case.
Jadhav informed him about the patient Ujwala (victim) admitted
in the hospital for treatment of burn injuries.
The Head
Constable went to the Police Station and made a station diary
entry at about 4.50 a.m. and again went back to the hospital to
record the statement of victim Ujwala.
On the request of Head Constable Bhausaheb, the
Medical Officer examined the patient Ujwala and certified that
she was conscious and able to give her statement.
Head
Constable Bhausaheb deposed that, after the Medical Officer
certified that the patient was conscious and able to give her
statement, he recorded the statement.
On recording her
statement, he obtained her thumb impression and the statement
was also signed by him. The Medical Officer Dr. Jadhav endorsed
The witness proved the
and able to give her statement.
in the margin of the statement that the patient was conscious
statement at Exhibit 48.
Exhibit 48 is to the following effect :-
Victim Ujwala stated that she was residing at
Vadgaon Satiche along with her mother Indubai
and 8 years old son Tejassing. Her marriage
with the accused was 13 years old. Since last
Diwali, she was staying at the place of her
mother with her son. Nine years back, her
husband questioned her chastity and was
beating her and since then she was staying at
her mother’s place and had filed case against
the husband. On 7.6.2010, from Court she had
gone to reside at the place of her husband at
Vadgaon, however, again the husband started
questioning her chastity and used to beat her
and so, since Diwali, with her son, she had
come back to her mother’s place. Every 10-15
days, the accused had been coming to the
place of her mother and even there he had
been questioning her chastity and beating her.
On 1.2.2011, at about 11.00 p.m., her husband
had come to her and she and her husband
along with son were sleeping in the house and
mother was sleeping outside and accused tried
to force himself on her and she opposed. At
that time, accused questioned her chastity and
started abusing.
Because of that, due to
anger, she poured kerosene from the tin in the
house on herself and burnt herself.
The
accused put water on her and put out the fire
and she was burnt, having injuries to her both
hands, face, neck, chest and her stomach and
back had also burnt. After the fire was put out,
her cousin brother Indrasing Somsing, Sanju
Mansing, uncle Subhash Jamsing etc. people in
vehicle had brought her to Bhadgaon
Government Hospital for treatment.
As per statement, she stated that, she was fully
8.
conscious and that the statement was read over to her and she
admitted the same to be correct. When Exhibit 48 was recorded
as above by Head Constable Bhausaheb, there is endorsement of
doctor that the patient was conscious and the endorsement bears
time as 4.50 a.m.
9.
Second Dying Declaration
It appears that, the victim was shifted to Civil
Hospital, Jalgaon on 2.2.2011.
P.W.3 Dr. Rahul Nikam has
deposed from the case papers that the victim was referred to the
Civil Hospital on reference from the Medical Officer of Rural
Hospital, Bhadgaon. He says that, the patient was admitted at
4.00 p.m. on 2.2.2011 and she was given treatment. Evidence
of P.W.1 P.S.I. Rajendra More of Jilha Peth Police Station,
Jalgaon is that intimation was received from the Casualty Medical
Officer about admission of victim Ujwala with 65% burns.
He
was required to go and record her statement. He claims that, he
went to the hospital at 6.00 p.m. The evidence of P.W.1 P.S.I.
Rajendra and P.W.3 Dr. Rahul shows that P.S.I. More went and
met the doctor and enquired if patient was conscious to give her
statement.
According to the evidence, doctor examined the
patient and asked her certain questions for his satisfaction to see
if she could give rational answers. The doctor found the patient
to be conscious and well oriented and he thus certified.
Regarding Exhibit 12, evidence of P.S.I. Rajendra More is that,
he required all the relatives of the patient to withdraw from the
Ward and near the patient there was nobody except P.W.1 and
P.W.3. According to P.S.I., he asked the victim as to what was
the incident and she narrated the same. The evidence of P.S.I.
More regarding what the victim told him, is as under :
“She had narrated that she was married about 14
years back to Komalsing Patil. She has a son
aged 9 years but for the last three years she has
been living away from her husband and initiated
proceedings for maintenance. She had said that
she was living at her mother's place at village
Satiche Vadgaon. She also had narrated that
although she is living away from her husband, her
husband Komalsing in a drunken state sometimes
comes to her mother's place, picks up quarrels,
gives abuses and also assaults her. She further
stated that on 1/2/2011 at about 10.30 in the
night, her husband Komalsing again came in a
drunken condition and started giving abuses and
also suspected her character and was shouting at
her. Her son was then asleep. She also stated
that her husband Komalsing was not in a
condition to listen to what she was saying, he got
annoyed, closed the door from inside and having
picked up a tin from under the wooden stand,
sprinkled kerosene on her person.
She also
stated that her husband Komalsing having lighted
a match stick set her on fire. She made a hue
and cry, on hearing of which her son Tejas was
awakened. She also stated that her son Tejas
opened the door from inside and in the meantime
Komalsing spilled water from the bucket on her
person. Having spilled water on her person, her
husband Komalsing went away.”
P.S.I. More deposed that, the statement as above
10.
(Exhibit 12) was given to him by the victim which he reduced in
writing. The statement is in Marathi in first person. According to
him, the victim stated that she has complaint against the
husband who had burnt her. P.S.I. More has deposed that, he
read over whatever was written by him to the victim and she
accepted the same to be correct. Exhibit 12 bears endorsement
in this regard. P.W.1 P.S.I. More has then deposed that, victim
had burn injuries on her left hand including palm and so he
obtained her right hand thumb impression on the foot of the
statement.
There is Dastur accordingly below Exhibit 12.
The
document bears signature of the P.S.I. and the Medical Officer
Dr. Nikam has also certified the document.
According to the
P.S.I., he went back and made station diary entry.
As the
incident had occurred in the jurisdiction of Bhadgaon Police, he
informed them and the Bhadgaon Police collected the statement
Exhibit 12.
Third Dying Declaration
11.
P.W.2 Naib Tahsildar Lakhichand has deposed that,
on 2.2.2011 he received phone call from Jilha Peth Police Station,
asking him to record dying declaration of the victim.
He
proceeded to the Civil Hospital where the police officer gave him
letter requesting to record dying declaration of victim Ujwala.
The evidence of P.W.2 Lakhichand as well as P.W.3 Dr. Nikam
shows that, P.W.2 contacted the doctor and on his request, Dr.
Rahul again examined the victim if she was in a condition to give
statement. Doctor found the victim to be oriented and conscious
to give statement and told so to the Executive Magistrate
(P.W.2). Evidence is that, P.W.2 Lakhichand then recorded dying
declaration (Exhibit 14). P.W.2 Lakhichand has deposed that, at
that time, except him and the doctor and the patient, nobody
else was present there.
P.W.2 has deposed that, he started
putting questions to the victim one after the other, and the
answers were recorded in her words.
The dying declaration
recorded is in Marathi. As per the evidence of P.W.2 Lakhichand,
he asked the following questions and recorded the following
answers :-
“Question No.1 : What is your name ?
Answer : Ujwala Komalsing Patil
Question No.2:- Who brought you here ?
Answer : My uncle Umersing took me to the hospital
Question No.3: How the incident occurred ?
Answer :
On 1/2/2011 at about 11 in the night my
husband came to my place. At that time I was in the house
along with my mother, son and my husband. . . . . My husband
drove my mother out of the house and latched the door from
inside. There was a quarrel between me and my husband. We
have litigations pending before the Court at Bhadgaon. My
husband always suspected my character. My husband sprinkled
kerosene from the kerosene tin on my person and set me on
fire. My son opened the door latch from inside. My husband
spilled water on my person. My husband himself has burnt me.”
P.W.2 Lakhichand has deposed that, whatever the
12.
victim told him was reduced into writing and that it was read
over to her and her acknowledgement of the same to be correct
was obtained.
He deposed that, he obtained right hand thumb
impression of the victim and he also signed the document.
According to him, he again asked the Medical Officer to examine
the patient, which the doctor did.
P.W.3 has proved his
endorsement on the document (Exhibit 14) regarding the patient
Exhibit 20.
being conscious, which endorsement has been separately marked
Fourth Dying Declaration
13.
P.W.9 P.I. Sanjay Bhamre has deposed that, on
2.2.2011, he received two statements from Jilha Peth Police
Station, Jalgaon and directed P.S.O., to register offence, and the
same was registered at Crime No.21/2011 under sections 307,
324, 323, 504 and 506 of the IPC. P.W.9 Sanjay says that, he
took over the investigation.
He found the station diary entry
made by Court Witness Bhausaheb Patil in the night of 2.2.2011
regarding the victim claiming to have burnt herself and he also
noticed that the statements recorded at Jalgaon were different
and as there was discrepancy regarding how the injuries were
suffered, he has deposed that, he went to Civil Hospital, Jalgaon.
Evidence is that, P.W.9 met the Medical Officer on duty and
enquired if the victim was in a condition to speak. The Medical
Officer went to the patient and asked the victim certain questions
and opined that she was in a condition to speak, endorsing a
sheet of paper in the margin. The Medical Officer then permitted
P.W.9 to record statement of the patient. P.W.9 P.I. Sanjay has
deposed that, he also asked certain question to the victim to find
His evidence is that, he
out if she was able to speak well.
enquired from the victim as to why there is discrepancy between
the statement she gave once to the Police Officer in the hospital
at Bhadgaon and then in the Civil Hospital at Jalgaon. P.W.9 has
deposed that, the victim told that, after the incident, her
husband Komalsing had threatened her that in case she survives
from the burning she has suffered, he shall kill her. P.W.9 has
deposed that, he recorded the statement of victim Ujwala
according to what she told him and the same was read over to
her and he asked her if what he has written is correct.
She
acknowledged the correctness of what he recorded. The witness
has deposed that, after victim acknowledged the correctness, he
obtained her left hand thumb impression at the foot of her
statement
and
he
signed
the
statement.
This
dying
declaration dated 3.2.2011 has been proved by the witness at
Exhibit 37. According to him, when the statement was recorded,
only the patient, Medical Officer and he were present there.
If Exhibit 37 is perused, the victim stated that, when
she was taking treatment at Bhadgaon Rural Hospital on
2.2.2011, her statement was recorded by the police and in that
statement, she had stated that, due to the trouble from her
husband, she had poured kerosene on herself and burnt herself,
but later on, in the Civil Hospital, Jalgaon, in front of the police
ig
and in front of the Magistrate, while giving statement, she has
her.
stated that, her husband had poured kerosene on her and burnt
The statement records that, when she is asked regarding
the discrepancy, her say is that, her husband had given her
threat that when police asks, she should say that she herself put
kerosene on herself and burnt herself, otherwise if she survives,
he will again burn her. Because of such threat, to the police at
Bhadgaon, she has stated that she herself burnt herself.
The
statement Exhibit 37 claims that, she was conscious while taking
the treatment and that the statement was given as per her say
and it was read over to her and that it was correct.
The
statement bears her left hand thumb impression, (which partially
appears to be unclear.).
Eye witnesses to the incident
14.
P.W.5 Child Witness Tejassing and P.W.6 Indubai are
P.W.5 Tejassing has deposed that, since his
eye witnesses.
grandmother Indubai.
childhood he was living with his deceased mother Ujwala and
On day of occurrence, he was with his
mother and grandmother at their house at Vadgaon Satiche and
he was sleeping.
There was a knock on the door.
His
grandmother Indubai opened the door. He claims that, he woke
up because of the knock on the door.
P.W.6 Indubai has also
ig
deposed that the three were sleeping in the house when there
was a knock on the door.
When the door was opened, the
accused was standing there outside the door. P.W.5 and P.W.6
both have deposed that, at that time, the accused appeared to
be in intoxicated condition. P.W.5 has deposed that, he told the
accused as to why he had come to their house and accused
asked him if he was not his father or if he had been fathered by
somebody else. Both these witnesses have deposed that, at this
time, the accused started quarrelling.
The evidence of these
witnesses shows that, the accused forced Indubai outside the
house and closed the door from inside. The evidence of P.W.5,
who was inside the house, is that, the accused then picked up
kerosene tin, which was there, and sprinkled the kerosene on the
victim and by lighting a match stick, put his mother on fire.
Evidence shows that, Indubai, who had been pushed outside the
house, was knocking the door when the incident was happening
inside the house. When the victim started shouting, the accused
himself put water on her, which is revealed from evidence of
these two witnesses. P.W.5 had, at that time, opened the door
from inside. According to P.W.6, when she went in, she saw the
accused was putting water on the victim to extinguish the fire.
15.
Thus,
there
is
People had gathered and the victim was taken to the hospital.
evidence
in
the
form
of
dying
declarations and there is also direct evidence available regarding
the incident.
Are Dying Declarations reliable?
Learned counsel for the appellant- accused relied on
16.
the case of Dnyaneshwar Ramchandra Suryawanshi Vs. State of
Maharashtra, reported in 2013 All MR (Cri) 3133, and referring to
observation of this Court in para 20 of the judgment, argued
that, when there are conflicting dying declarations one falsifying
the other, the dying declarations will have to be rejected.
Observations in para No.20 of that judgment show that, when
such submissions were made, this Court had, in that matter,
considered facts of the said case and accepted the dying
declaration
absolving
the
appellant
therein,
which
dying
declaration indicated sustaining of accidental burn injuries.
17.
In the matter of Sayarabano @ Sultana Begum Vs.
State of Maharashtra, reported in 2007 AIR SCW 1136 also the
Hon’ble Supreme Court considered situation where second dying
declaration was inconsistent with the first.
In the first dying
declaration, the deceased in that matter had not involved her
mother-in-law and described the incident as accident.
On the
next day, however, in the second dying declaration, the victim
Para 6 of the judgment reads as
ig
due to which she got burnt.
had stated that her mother-in-law threw kerosene lamp on her,
under :
“6.
In the light of the fact that in the
previous dying declaration, the deceased had
not involved her mother-in-law and had
described the incident as ‘accidental’, the
Special Judicial Magistrate asked the deceased
that when he recorded her dying declaration
on August 13, 1998, in the said statement, the
deceased had stated that she was hit by the
kerosene lamp which fell on her and she was
burnt.
The Special Judicial Magistrate,
therefore, asked her as to why she was
changing her statement. The deceased replied
that her mother-in-law (appellant) told her not
to give any statement against the family
members of her in-laws and that was the
reason why she had given the earlier
statement. But in fact, it was her mother-in-
law who threw kerosene lamp on her and thus
she was burnt.
She also stated that her
mother-in-law was harassing her.”
18.
The Hon’ble Supreme Court considered the evidence
and found that the conviction imposed by the courts below was
right, accepting the second dying declaration as true disclosure of
facts. In the present matter also, if the evidence is considered,
there is deposition of P.W.5 Tejassing, who has deposed that, at
the time of incident, when the accused spilled water on the
victim, the accused had threatened his mother that nobody
should say anything against him or else he will kill her son. The
victim also in her fourth dying declaration referred above,
explained to P.W.9 that her husband had threatened her that
ig
while giving statement to police she should say that she herself
burnt herself or else if she survives he will again burn her. P.W.9
has duly proved Exhibit 37 which also bears endorsement of
doctor that the patient was conscious and was in condition to
give statement. In addition to this, there is admission taken in
the cross-examination of P.W.5 by the accused himself that after
the incident he along with his father (i.e. the accused) and
grandmother had carried the victim to the hospital. The accused
in his statement under Section 313 of the Cr.P.C. has claimed
that on the same day of incident, police had arrested him and
taken him away from the hospital. All these facts clearly show
that, accused had threatened the victim and when the victim was
taken to the hospital at Bhadgaon, the accused was there at the
hospital and in the circumstances, the evidence of P.W.5 that the
accused had threatened at the time of incident and told the
victim not to say anything against him, needs to be accepted.
The trial Court has rightly discussed
needs to be accepted.
The fourth dying declaration (Exhibit 37) is duly proved and
evidence in this regard and ignored the first dying declaration
(Exhibit 48).
19.
third
dying
declaration
(Exhibit
14)
regarding
the
the
It has been argued for the appellant- accused that
requirement of reading over the same to the victim and enquiring
ig
if the dying declaration has been correctly recorded, has only a
printed portion in that regard in format and thus, the document
would be required to be ignored as the necessity of reading over
the statement to the victim and confirming if the same has been
correctly recorded, was not complied with.
Reliance has been
placed on the case of Abdul Riyaz Abdul Bashir Vs. State of
Maharashtra, reported in 2012 ALL MR (Cri) 2188.
Reference
was made to the observations in para 8, which read as under :
“
. . . . . .
However, column No.8
pertains to the fact that the statement as
recorded was read over to the deponent and
proved to be correct as per the say of the
deponent. The said column is left blank. To
rule out any remote infirmity, it is necessary
that there has to be an endorsement that the
contents were read over and admitted to be
true and correct. The said column cannot be
treated as an empty formality since the
deponent is not available for cross-
examination. Hence it is a material inherent
infirmity in the dying declaration and,
therefore, cannot inspire confidence of the
Thus, it would be necessary to see if actual exercise
20.
Court.
It, therefore, appears that the
statement was never read over to the
deceased and there is no endorsement to that
effect. When the declaration was not read
over to the deponent and hence not admitted
by the deponent to be correct and recorded
according to her say, then such a dying
declaration cannot be a foundation for
sustaining the conviction. Merely because it
is mentioned in the printed proforma that the
statement is read over to the deponent, it
cannot be presumed that the actual exercise
of reading over the statement and getting it
endorsed to be correct, was actually followed.
....”
(Emphasis supplied)
21
of reading over the statement was done, and the same cannot be
presumed only because printed proforma has contents in that
regard. In that view of the matter, if the evidence of P.W.2 Naib
Tahsildar Lakhichand Pardeshi is perused, he has deposed that,
the proforma questionnaire was prepared by him for his own use
and every question that he asked to the patient was answered by
the patient. His evidence is that, he started putting questions to
the victim one after the other, and the answers she gave were
recorded by him in her words. He has clearly deposed that, after
recording the statement, it was read over to the victim and her
acknowledgement and its correctness was obtained and only then
he had taken the thumb impression of the victim. This specific
evidence of the witness P.W.2 Lakhichand is not specifically
It was not suggested to him
denied in the cross-examination.
that, he did not read over the statement and did not obtain the
acknowledgement of correctness from the victim.
specific
evidence
of
reading
over
the
Thus, the
statement
and
acknowledgement of correctness as deposed to by the witness is
not denied and there is no reason why the evidence in this regard
in the examination-in-chief should not be accepted.
Even otherwise, even
if third dying declaration
recorded by P.W.2 was to be ignored on any technical ground,
there is still the second dying declaration recorded by P.S.I.
Rajendra More read with fourth dying declaration available on
record, which clearly show that the accused was responsible for
the burns inflicted on the victim.
21.
Are Eye Witnesses Reliable ?
The learned counsel for the appellant- accused
criticized the evidence of child witness P.W.5.
Reliance was
placed on the case of Radhey Shyam Vs. State of Rajasthan,
reported in 2014 AIR SCW 1398. It is argued that, the evidence
of child witness is required to be closely scrutinized and as a
matter of caution, the Court must find adequate corroboration to
the child witness evidence.
The argument is that, P.W.5
admitted in cross-examination that he was told by the police
that, in the Court he will have to tell the same thing as were
the witness.
written in his statement. We have gone through the evidence of
The witness has properly deposed regarding the
incident and in the cross-examination the answers given by the
witness show that he understands things properly.
He fairly
stated what the police had told him while recording his
statement. Even if police told him that at the time of evidence in
Court he will have to depose as per his statement, that by itself
does not mean that the police had not recorded what the child
told or recorded any statement on their own.
Being child
witness, if the police, after recording the statement of the
witness apprise him of the fact that in the Court also he will have
to say as per the statement, this by itself does not amount to
tutoring the witness and it does not make the evidence of
witness doubtful.
Even otherwise, the evidence of P.W.5 has
sufficient corroboration from not only the dying declarations
recorded at Jalgaon but also from the evidence of P.W.6 Indubai,
who was admittedly very much there in and near the spot at the
time of incident.
22.
Learned counsel for the appellant (accused) relied on
the case of Laxmibai w/o Maruti Satpute & ors. Vs. State of
Maharashtra, reported in 2010 ALL MR (Cri) 182, to submit that,
in that matter also the evidence of child witness was disbelieved.
The observations of this Court in that matter show that, in that
case the evidence of the child witness was quite cryptic and there
were no details as to what happened prior to the actual incident
and in that case, the maternal uncle and maternal grandfather
kept telling as to what the witness should depose in the Court
and thus, the witness was disbelieved.
In the present matter,
there is no such evidence or admission given by the child
witness. We find that, the evidence of the child witness P.W.5 is
23.
reliable.
The evidence of P.W.6 Indubai was criticized by the
counsel for appellant/ accused claiming that what she deposed in
her examination-in-chief that when she was outside the house,
she heard noise of kerosene tin being handled inside, was not
stated by her to the police. We find that, this is minor omission
and the evidence otherwise is reliable and not shattered at all in
the cross-examination.
Her presence at the place and time is
natural. It was her house. The witness was present on the spot
and when she was pushed out of the house and there was
quarrel inside, naturally the witness reacted and raised shouts
and when the door was opened, she had seen the accused
putting out fire of the victim.
24.
The victim expired on 7.2.2011 and P.W.7 Dr. Vijaya
carried out her post mortem. The report is at Exhibit 28. Victim
died due to the burn injuries. Looking to the evidence available
on record, prosecution has duly proved that victim suffered
culpable homicide at the hands of the accused.
What Offence ?
Now the question is whether culpable homicide in this
matter amounts to murder.
25.
We have already discussed the
evidence of P.W.5 and P.W.6, which shows that the accused had
gone to the house of P.W.6 to meet his wife and child P.W.5.
The evidence of P.W.5 Tejas shows that, when the accused
reached the house, the child witness told him not to come to
their house. P.W.5 must be about 8 years of age at that time.
Listening such thing from his son, the accused appears to have
asked the child if he was not his father or was he fathered by
somebody else.
This may be because of the strained relations
between the couple, and the accused was sensing his son going
against him. The evidence clearly shows that, when the entry of
the accused was resisted by P.W.5 and P.W.6 as well as the
victim, the quarrel took place. There is nothing to show that the
accused had gone to the place after having made any preparation
to cause hurt to the victim.
The evidence does not show that
there was any premeditation on the part of the accused. From
evidence it is clear that, in the sudden fight, which started on the
accused reaching the spot, in the heat of passion, upon sudden
spot itself and put the victim to fire.
quarrel, the accused picked up the kerosene which was on the
The evidence also shows
that, after having done so, the accused himself started putting
water on the victim and did not stop the child from opening the
door, letting P.W.6 inside. There is no denial by the prosecution
that the accused had suffered burn injuries to his hand and was
treated for the same. When the accused put the victim to fire,
knowledge must be attributed to him that such act is likely to
cause death. His further conduct of immediately starting to put
water on the victim and himself also suffering burns shows that
We find, that,
he did not have the intention to cause death.
exception (4) of Section 300 of IPC read with second part of
Section 304 of IPC is attracted and needs to be applied to the
present matter. The learned counsel for the appellant- accused
relied on the unreported case of this Court in Criminal Appeal
No.958/2010
(Dilip
Janaba
Kamble
Vs.
The
State
of
Maharashtra), decided on 20.8.2013 at Mumbai. In that matter
also, the husband had, in a sudden quarrel, poured kerosene on
the wife which was available in the house, and set her on fire and
exception (4) of Section 300 was applied.
We find that, in the
present case, for reasons discussed above, the conviction needs
to be converted from Section 302 to Section 304(II) of the IPC.
For the above reasons, the appeal is partly allowed.
26.
The conviction of the appellant under Section 302 of the Indian
Penal Code is converted into conviction under Section 304(II) of
the Indian Penal Code, 1860 and the appellant- accused is
sentenced to suffer rigorous imprisonment for ten years and to
In default of
pay a fine of Rs.1000/- (Rupees one thousand).
payment of fine, the appellant- accused shall undergo further
rigorous imprisonment for six months.
rules.
Set off be given as per
We quantify the fees of Advocate appointed for the
appellant as Rs.10,000/- (Rupees ten thousand).
(S.S. SHINDE, J.)
(A.I.S. CHEEMA, J.)
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