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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.253 OF 2005
Shri Tanaji Bajirao Chawan, ]
Convict No.C/2368, ]
through Kolhapur Central
ig ]
Prison, Kalamba - 416 007. ] ..Appellant.
[Orig.Accused]
Versus
The State of Maharashtra, ]
Medha Police Station, ]
Tq. Jaoli, District - Satara. ] ..Respondent.
.........
Mr.D.G. Khamkar, Advocate for the Appellant.
Mrs.A.S. Pai, A.P.P. for the State.
.........
CORAM : D. D. SINHA & A. P. BHANGALE, JJ.
DATE OF RESERVING ) : 22.10.2010
THE JUDGMENT )
DATE OF PRONOUNCING ) : 29.10.2010
THE JUDGMENT )
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ORAL JUDGMENT (PER A. P. BHANGALE , J.) :
1. Present Criminal Appeal arose out of judgment and order
dated 07/10/2003 passed by learned VIth Additional Sessions
Judge, Satara, who found the appellant guilty of the offence
punishable under Section 302 of the Indian Penal Code and sentenced
him to suffer rigorous imprisonment for life and to pay fine in the
sum of Rs 500/- in default to suffer further rigorous imprisonment for
five months. The appellant was further found guilty of the offence
punishable under Section 498-A of the Indian Penal Code, the
appellant was sentenced to suffer S.I. for 3 years and to pay fine in
the sum of Rs.400/- in default to suffer further S. I. for four months .
The appellant was also found guilty of the offence punishable under
Section 504 of IPC and sentenced to suffer R.I. for one year and to
pay fine in the sum of Rs.200/- in default to undergo R. I. for two
months.
2. The case of the prosecution briefly stated is as under:-
Sau Lata @ Ranjana Tanaji Chawan, resident of Kalewadi
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(Sartale) Tauka-Jaoli, District-Satara (deceased) was wife of the
appellant. They were married on 03/07/1994. They had two sons –
Nitiraj & Rajiv out of the wedlock. The appellant is truck driver by
occupation. Lata died at Civil Hospital, Satara due to septicemia due
to 76% burns. Madhukar Pawar (father of the deceased) had died
about 9 months prior to the date of the incident. It is case of the
prosecution that the deceased Lata was ill-treated by the appellant on
the ground that she should get transferred her share in her father’s
property in his name in respect of the agricultural land belonging to
her father but she was not ready because the appellant was addicted
to liquor and to satisfy his lust, he was likely to sell the land. As Lata
had refused, the appellant started harassing her by abusing and
assaulting her. On 01/05/2002 at about 11 a.m., the appellant had
brought dry wood and had asked Lata to prepare egg curry. While
Lata was cutting onion for that purpose, the appellant started abusing
her on the ground that she was not getting her share transferred in
his name. The appellant threatened to kill her and abused. He
removed the lid of the bottle containing kerosene and spread it on
her person and set her on fire with the help of lighted matchstick, due
to which Lata’s saree started burning. The appellant then pushed her
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to Padvi of the house. Lata shouted. The relatives i.e brother of the
appellant and his wife, who were nearby, had rushed to the scene.
The appellant had poured water on the person of Lata and
extinguished the fire. Then the appellant with the help of his brother
Shivaji, his wife Mangal had brought Lata to Civil Hospital Satara at
about 3.05 p.m. It is case of the prosecution that while Lata was
brought by the rickshaw, the appellant had insisted and influenced
Lata to tell falsely that she had caught fire due to flickering of the
stove accidentally and threatened her that otherwise he will kill her
brother and her mother.
3. On 03/05/2002 A.S. I. Narendra Shankar Jagtap (PW-7) who
went to Civil hospital, Satara had recorded the statement of Lata at
Exh.37 in presence of Dr.Ravindra Ghongade (PW-9) and had
registered the offence as C.R. No.25 of 2002 at Kudal police station.
During the investigation the panchnama regarding the scene of
offence was drawn, burnt pieces of clothes and one stove was seized.
Statement of witnesses were recorded. On 07/05/2002 a requisition
letter was sent to Special Judicial Magistrate Sanjay Anant Mulik
(PW-1) to record dying declaration of Lata, which was recorded on
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the same day between 10.40 p.m. to 11.40 p.m. by PW-1 in presence
of Dr.Anil Shinde (PW-10). Ultimately Lata had succumbed to her
burn injuries. Her dead body was referred for the postmortem
examination and memorandum of postmortem (Exh.17) was issued.
In the course of investigation, the glass bottle and a match stick were
recovered at the instance of the accused (appellant).
4. Upon completion of investigation, on 22/08/2002 the accused
was charge sheeted before the learned Judicial Magistrate, First Class
at Medha. On 26/08/2002 the case was committed to the Court of
Sessions, Satara.
5. The charge below Exh.10 was framed on 21/06/2003. The
appellant/accused pleaded not guilty and claimed trial. Accordingly
plea of the accused was recorded below Exh.11.
6. The prosecution examined ten witnesses and closed evidence
in the trial Court. The defence evidence of two witnesses was led by
the accused.
7. We have heard learned advocate for the appellant and learned
A.P.P. for the State.
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8. The inquest panchnama (Exh.15) and post-mortem notes
were admitted by the defence and were exhibited. Medical officer
Dr.S. Kasar who had conducted postmortem examination of the dead
body of the victim Lata ( Exh.17), found 76% antemortem burn
injuries and opined that the deceased died due to septicaemia due to
76% burns.
9. PW-1 Sanjay Mulik, a Special Judicial Magistrate was
requisitioned by the police to visit Civil Hospital, Satara and to
record dying declaration. He met Dr. Shinde – Medical officer, and
inquired as to whether Lata was conscious. Medical officer certified
that she was conscious and well oriented to give her statement under
the endorsement Exh.24. Then PW-1 proceeded to record the dying
declaration (Exh.25), put her some questions and after answers
assessing her fitness, recorded dying declaration as per her version.
After the statement was read over to her she had affixed her signature
below the statement. PW-1 also affixed his signature (vide Exh.25).
Lata emphasized that her first dying declaration was given due to
threat given by her husband Tanaji who had carried her by the
rickshaw and who insisted upon her to state falsely that she received
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burns accidentally due to flickering of the flames of the stove and had
threatened her that otherwise he will kill her brother and others from
her parental family. According to her, her husband had brought
domestic firewood which was kept arranged on the loft inside the
house. Then her husband asked her to prepare eggs-curry. She had
cut the onion for that purpose. At that time her husband started
abusing her for her failure despite telling her repeatedly to get the
land of her share from her father’s property transferred to her name.
Her husband threatened to kill her and abused her. He poured
kerosene upon her from the bottle-lamp and lighted a matchstick and
set her on fire. Her Saree caught fire and soon her body was up in
flames. Her husband pushed her to the side of Padvi in the house. She
shouted, which attracted the attention of her brother-in-law Shivaji
and his wife Mangal who came rushing. At that time her husband
poured water upon her person and extinguished the fire. Shivaji,
Mangal and her husband (appellant) had carried her to the hospital.
10. At the hearing of the appeal, the learned Advocate for the
appellant assailed the findings recorded by the trial Court which in
this case are based on the two documents Exh.25 and Exh.37 (which
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incidentally has been treated by the investigating authorities as the
F.I.R) as against the very first statement of the deceased Lata at Exh.
51 as deposed by DW-1 & DW-2 recorded earlier on 1/5/2002 and
the second statement or dying declaration which was recorded on
3/5/2002 and which is at Exh. 37. The first head of attack proceeds
on the footing that these documents (Exh.25 and Exh.37) essentially
contradict with the earlier document Exh.51. What the learned
Advocate emphasizes is that at the earliest point of time, deceased
Lata has stated that she had received burns as a result of accident due
to flickering of the flames of the stove. Two days later she has
virtually altered the version to the extent that she has stated that her
husband poured kerosene on her person and set her on fire.
11. The learned Advocate submitted that in a case where there
are only very minor variations that a Court may either reconcile them
or may also overlook them provided it does not essentially affect or
alter the main thrust of the accusations. He submitted that in this case
the deceased Lata has swung from the first and earliest theory of the
accident to homicide and with such grave and material accusations
against her husband that no Court can rely on either of the dying
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declarations. Learned Advocate invited our attention to the following
rulings :-
i) Smt Kamla Vs. State of Punjab
[ 1993 Cri. L J. 68(SC) ]
ii) Kishan Lal Sethi Vs. Jagan Nath & another
[ AIR 1990 SC 1357]
iii) Mohanlal Gangaram Gehani Vs. State of Maharashtra
[ 1982 SCC (Cri) 334 ]
12.
We do not need to mention the settled proposition that if
there are multiple dying declarations and the deceased has given
different versions at different times, then a Court will be left with no
option except to hold that it is unsafe to rely upon any of the
particular statement to the exclusion of the others.
13. The learned Advocate therefore submitted that in a case
where it is not possible to reconcile the diametrically opposing
versions then it would be totally unsafe for the Court to base a
conviction purely on incriminating material. On the other hand, the
learned Additional Public Prosecutor submitted that if a particular
statement, be it the version at the earliest point of time or the one
which emerges later when the deponent was in a better position to
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tell the truth, which inspires the judicial mind and confidence of the
Court, then it is certainly open for the Court to accept that part of the
evidence to the exclusion of the other given under the undue
influence, coercion or threat from the husband. What Learned A.P.P.
states that undoubtedly at the earliest point of time Lata indicated
that her Saree caught fire due to flickering of the flames of the stove.
But, the learned APP states that it is one of the rare and unusual cases
in which at a later point of time the deponent has very clearly
explained and indicated why she had put forward something other
than the truth at an earlier stage. The learned A.P.P. submits that the
explanation ought to be accepted as quite plausible so that the
subsequent dying declaration must really be treated as voluntary, true
and acceptable in the light of circumstances under which earliest
statement was made.
14. Deceased Lata has clearly pointed out the reasons why she
could not tell the truth in her first statement which was recorded
earlier. It is this submission for which there is supportive evidence in
this case from the oral evidence of the prosecution witnesses,
particularly, PW-3 Suman and PW-5 Murlidhar, PW-7 A.S.I.
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Narendra, PW-9 Dr Ravindra, and PW-10 Dr Anil Shinde. All these
witnesses have supported the view that Exh.25 which is the dying
declaration recorded on 07/5/2002 is in fact a reliable document, as
true and voluntary.
15. We may mention in brief that PW-3 Suman Pawar (mother of
Lata), PW-6 Hemant Pawar (brother of Lata), and PW-5 Murlidhar
Pawar (uncle of Lata) are quite categorical about the generality of the
accusations and in particular Lata’s charge that she was being ill-
treated by her husband for purposes of extorting her share in her
father’s (ancestral) property. The evidence even indicates that accused
had gone to the extent of telling the deceased that the purpose of
getting rid of her was her failure to get the share in her father’s
property in the name of the appellant. The learned A.P.P. submitted
that this evidence has got to be looked at in the light of Lata’s candid
explanation that she was threatened by the accused that if she
implicated him in the incident of burning, he would kill her brother
and others and this was the reason why she was compelled under the
circumstances to put forward the accident theory. The submission
proceeded on the line that the explanation by Lata ought to be
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considered as a valid and correct one, and reliable to the effect of
nullifying the earlier version (Exh.51) put forward by her under the
threat and undue influence of her husband for upholding the truth
which appears mentioned in Exh.37 and Exh.25.
16. We have very carefully assessed the evidence of PW-3 Suman
Pawar, PW-5 Murlidhar Pawar and PW-6 Hemant Pawar. PW-3
Suman’s evidence does support the view that deceased-Lata was ill
treated constantly since two years prior to the incident. The accused
was insisting upon Lata to get her share in her ancestral land
transferred in her name, he used to assault her and that Lata told her
about the ill-treatment when Lata had come to her house. The
accused used to create disputes under the influence of liquor and
hence relatives were not giving any land to him. PW-3 Suman went to
the hospital with her son at about 10.30 p.m., when the accused was
present. In his presence, Lata was not prepared to disclose anything
as to how she was burnt. But Lata told her mother that she will
disclose after 2 days. Later on next day itself, Lata disclosed to her
mother that her husband Tanaji sprinkled kerosene on her person and
set her on fire since she did not ask for share in her father’s estate.
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Lata also disclosed to her mother that the accused, his brother and his
wife had brought her to the hospital and the accused had threatened
her in the rickshaw that she shall not disclose that the accused had
set her on fire, otherwise he will kill her. Her husband thus wanted
Lata to disclose that she got burnt accidentally due to flickering of
the flames of the stove. Thus the fact which is established is that Lata
had received ill-treatment at the hands of the accused and lastly the
fact that the deceased Lata was pressurized into putting forward an
incorrect version of the incident at the earliest point of time due to
fear from her husband. This, in our view, is reinforced by the evidence
of PW-5 Murlidhar (who is uncle of Lata). He deposed that he had
received a telephone message at about 8.30 p.m. on 1/5/2002 at
Mumbai from the neighbourer that Lata was burnt and admitted in
hospital at Satara. He returned to the native place and then went to
the Civil Hospital at Satara. PW-5 inquired as to how Lata was burnt
and she disclosed that her husband had sprinkled kerosene upon her
and set her on fire with the help of match-stick. She also disclosed
about the fact that her husband had insisted that she should say that
she was burnt by flickering of the stove otherwise her relatives would
be finished off.
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17. PW-6 Hemant Pawar (brother of the deceased) also deposed
that Lata was telling him that she was harassed by the accused who
insisted upon her to demand share in the property of her father and
used to assault her . The accused-Tanaji had also visited the house of
Hemant to demand share of Lata (his wife) which the witness says
that he assured the accused that it will be given, if he treat his sister
properly.
18.
PWs-3 & 5 had visited the hospital and had occasion to talk
to the deceased Lata. Unless the deceased had in fact told them about
the harassment and the subsequent incident of setting her on fire by
accused, it is most unlikely that they would fabricate the false story
against the accused with whom they had neither any kind of adverse
relationship nor any axe to grind. If the accused was not in any way
responsible for the death of Lata, it would be difficult to understand
as to why there would be any need for him to threaten her while he
had carried her by the rickshaw. Lata being a simple, an least
educated girl could not come up the factual story of the incident, due
to fear and pressure of her husband. However, as soon as she got the
first opportunity she had disclosed the factual incident. In totality,
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therefore, there is a perfectly plausible and acceptable explanation
coming from the victim herself, well supported by other evidence on
record which is self explanatory to clear off the divergence between
the two different versions in dying declarations.
19. In the reported cases cited by learned Advocate for the
appellant, there was no such explanation on record and there was no
material evidence to support such an explanation. This is an unusual
case, but, it also furnishes a novel angle of the law in so far as it leads
us to a conclusion that where there are two divergent versions in
statements by the deceased which are capable of being fully and
totally reconciled, then the Court need not reject them merely
because prima facie they appear different. The position that emerges
is, therefore, that the Court will have to momentarily put itself into
the shoes of the deceased and if this is done, the whole picture
becomes clear. The deceased, after sustaining the burns was taken to
the hospital by the accused by rickshaw. He had threatened Lata with
dire consequences to her and her brother and if she implicates the
accused in the act of burning and she, therefore, was compelled to
make her initial statement in this background to DW-2 Dr.Smeeta and
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to DW-1 Chitrasain. The learned Trial Judge was, therefore, justified
in his view to record conviction on the basis of the documents Exh.25
and Exh.37. They can validly form the basis of a conviction
considering the evidence as to why and how the first statement (Exh.
51) was made.
20. In three Judge Bench decision of the Supreme Court in
Panneerselvam Vs. State of Tamil Nadu, (2008) 17 SCC 190 and
also the principles governing the dying declaration are summed up in
Paniben Vs. State of Gujarat , (1992) 2 SCC 474. The analysis of
the above decisions clearly shows that :
(i) Dying declaration can be the sole basis of conviction if it
inspires the full confidence of the Court;
(ii) The Court should be satisfied that the deceased was in a fit
state of mind at the time of making the statement and that it
was not the result of tutoring, prompting or imagination;
(iii) Where the Court is satisfied that the declaration is true and
voluntary, it can base its conviction without any further
corroboration;
(iv) It cannot be laid down as an absolute rule of law that the
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dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is
merely a rule of prudence;
(v) Where dying declaration is suspicious, it should not be acted
upon without corroborative evidence;
(vi) A dying declaration which suffers from infirmity such as the
deceased was unconscious and could never make any
statement cannot form the basis of conviction;
(vii) Merely because a dying declaration does not contain all the
details as to the occurrence, it is not to be rejected;
(viii) Even if it is a brief statement, it is not to be discarded;
(ix) When the eye-witness affirms that the deceased was not in a
fit and conscious state to make the dying declaration,
medical opinion cannot prevail;
(x) If after careful scrutiny, the Court is satisfied that it is true
and free from any effort to induce the deceased to make a
false statement and if it is coherent and consistent, there
shall be no legal impediment to make it basis of conviction,
even if there is no corroboration.
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21. In the case in hand, the learned Additional Sessions Judge
has found the dying declaration (Exh.25) credit worthy and has held
the same to have been made by the deceased in a fit mental state to
depose. The English translation of the relevant portion of the dying
declaration, recorded in Marathi as made by the deceased Lata to
PW-1 is thus:-
“On 1/5/2002 at 11 a.m. while I was at my house, my
husband Tanaji returned by Truck from Mahu, he had
brought burning wood which I and my husband had keptarranged on the loft. After that my husband Tanaji said to
cook eggs curry, therefore I had cut the onion. At that time,
my husband started abusing me and said that he had atseveral times told me to get the share in the land from your
parental property falling to your share, but you are not
getting it transferred in your name therefore I will not leaveyou alive. That time I went to Pardi and after a short while
returned to the house at that time my husband again
started abusing me and said again that I will not leave youalive and immediately poured kerosene from the bottle
lamp on my person and took a match box lying nearby and
lighted one match stick from the box and put the same on
my person therefore my Saree caught fire and my body was
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brother-in-law and his wife came running. At that time myhusband poured water and extinguished the fire. Thereafter
my brother-in-law Shivaji, his wife Mangal, my Husband
Tanaji carried me to this Hospital by rickshaw. While
bringing me to the hospital by rickshaw, my husband toldme that I shall tell that I got burns due to flickering flames
of the stove otherwise he will not leave her, her brother andmembers from her parental family alive. Therefore I had
told a lie in my earlier dying declaration that I got burnsdue to flickering of flames from the stove. The statement I
am giving is genuine and true.”
In our opinion, the dying declaration must be accepted as true
and voluntary in the facts and circumstances of the case.
22. The plea of the accused in his defence that he had carried
Lata by the Truck to the Hospital appears a blatant lie as the evidence
clearly indicated that Lata was taken to the hospital by a rickshaw.
The appellant’s conduct to threaten Lata and cause deliberate delay
for taking her to the Civil Hospital, Satara and his not informing the
mother and brother of Lata of the incident till late in the evening
although the incident occurred in the morning at about 11:00 a.m.,
more so, when there is telephone connection at his house, is further
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incriminatory circumstance furnishing links against the appellant to
make the chain complete against him. The learned trial Judge has
considered the entire evidence in detail to arrive at the only logical
and correct conclusion, in the facts and circumstances of the case.
23. No ground is made out to interfere with the findings of guilt,
recorded by the trial court. In the result, Criminal Appeal is
dismissed.
(D. D. SINHA, J.)
(A. P. BHANGALE, J.)
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