Bombay High Court High Court

Suresh Sadu Kamble vs Kolhapur on 23 November, 2010

Bombay High Court
Suresh Sadu Kamble vs Kolhapur on 23 November, 2010
Bench: D.D. Sinha, V.K. Tahilramani
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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           APPELLATE SIDE




                                                                             
                    CRIMINAL APPEAL NO. 244 OF 2005




                                                     
    Suresh Sadu Kamble                    ]
    C-894, Kolhapur Central Prison        ]     ..Appellant/
    Kalamba, Kolhapur 416 007             ]       Accused




                                                    
                  versus

    The State of Maharashtra              ]
    through Hupari Police Station         ]




                                             
    Kolhapur                              ]     ..Respondents
                           
    Mrs. Pranali Kakade - Advocate appointed for Appellant / Accused.
                          
    Mrs. A. S. Pai - Additional Public Prosecutor for Respondents - State.


                                CORAM : D. D. SINHA AND
           


                                        SMT. V. K.TAHILRAMANI, JJ.

Date of Reserving the Judgment : 18.11.2010
Date of Pronouncing the Judgment : 23.11.2010

JUDGMENT : (Per : D. D. Sinha, J.)

1. Heard the learned counsel for the appellant and the learned Additional

Public Prosecutor for the respondents – State.

2. The Criminal Appeal is directed against the Judgment and Order

dated 9th December, 1997 passed by the 3rd Additional Sessions Judge,

Kolhapur, whereby the appellant came to be convicted for the offence

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punishable under Section 302 of the Indian Penal Code and sentenced to

suffer rigorous imprisonment for life.

3. The prosecution case in nutshell is as follows:-

Deceased Shakuntala was wife of the appellant. At the relevant time

the appellant and the deceased were residing along with their two minor

sons. The marriage of deceased was solemnized with the appellant eight

years prior to the incident. The appellant was habituated to alcohol and

used to demand money from the deceased of and on for purchasing alcohol.

4. On 11th December, 1996 deceased Shakuntala prepared dinner and

went to sleep at about 9 p.m. The appellant came to the house at about 11

p.m. There was a kerosene lamp which was burning in the house of the

appellant at the relevant time. It is the case of the prosecution that the

appellant woke up his wife Shakuntala and at that time was under the

influence of alcohol. The appellant demanded money from the deceased to

purchase alcohol. The deceased refused to pay money to the appellant.

Because of the said refusal, the appellant got enraged and lifted the kerosene

lamp, poured the kerosene from the said lamp in the bottle. The appellant

thereafter poured the said kerosene oil on the person of the deceased and set

her on fire with the help of the kerosene lamp which was burning in the

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house at the relevant time. Deceased shouted for help, appellant opened the

door and ran away from the spot.

5. The neighbours of the appellant, Sadanand (P.W. 5), Arjun (P.W. 6)

and some others reached the spot of incident, entered into the house of the

appellant and tried to extinguish the fire by covering the body of the

deceased by putting blanket on her person. These persons took Shakuntala

to CPR Hospital, Kolhapur in jeep. Mr. Madhukar – The Special Executive

Magistrate (P.W. 4) recorded the dying declaration of deceased on 12th

December 1996. The Investigating Officer had drawn inquest panchnama,

spot panchnama and recorded statement of witnesses. Shakuntala

succumbed to the burn injuries. Post mortem examination was conducted by

Dr. Anand Mahipati Kamat (P.W. 13). The Investigating Officer had also

recorded statement of deceased on 12th December 1996 after obtaining

certificate of the doctor that the deceased was conscious at the time of

recording of the said statement, which is Exhibit 34. On completion of

investigation, charge sheet was submitted before the Judicial Magistrate

First Class. The case was committed to the Court of Sessions. Charge is

framed against the appellant under Section 302 of the Indian Penal Code.

The appellant pleaded not guilty and claimed to be tried. Defence of the

appellant is of total denial.

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6. The learned counsel for the appellant has submitted that the case of

the prosecution is mainly based on the evidence of dying declaration which

was not recorded in question and answer form by P.W. 4 Madhukar, the

Special Executive Magistrate, which creates doubt about authenticity of the

evidence of dying declaration. It is further contended that the deceased

suffered more than 80% burns and therefore Dr. Pramod G. Patil (P.W. 12)

in his cross-examination has admitted that in such condition normally pain

relieving injection is given to the patient and patient gets giddiness and

remains in the said condition for a period of 4 to 5 hours. It is contended that

in the instant case the deceased suffered 80% burn injuries and therefore the

pain relieving injection must have been given to her in the hospital and

therefore it can safely be presumed that at the time of recording of a dying

declaration she was not in a fit condition to give statement. It is contended

that even if it is presumed for the sake of argument that the appellant poured

kerosene on the person of the deceased and set her on fire, however, the

deceased died after three days and therefore the act of the appellant would

be punishable not under Section 302 of the Indian Penal Code but would fall

under Section 304 (Part I) of the Indian Penal Code. In order to substantiate

her contention, reliance is placed on the decision of this Court in the case of

Dayaram Dhonduji Thakre vs. State of Maharashtra [2002 ALL MR

(Cri) 2430]. It is therefore contended that neither the dying declaration

recorded by the Special Executive Magistrate nor the statement recorded by

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police officer, Exhibit 34, is trustworthy and reliable. Similarly, the

evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 also does not inspire

confidence and therefore the findings of conviction recorded by the trial

court are unsustainable in law.

7. The learned Additional Public Prosecutor on the other hand has

supported the judgment and order of conviction passed by the trial court and

contended that the dying declaration recorded by the Special Executive

Magistrate (P.W. 4) is completely corroborated by the medical evidence as

well as by the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9. It is

submitted that before recording of the dying declaration, Dr. Pramod (P.W.

12) has examined the deceased and found her mentally fit to give her

statement. P.W. 4 Madhukar (Special Executive Magistrate) recorded the

dying declaration only after obtaining the fitness certificate from the doctor.

It is submitted that taking into consideration the cogent evidence of dying

declaration which is corroborated by the ocular testimony of prosecution

witnesses coupled with the medical evidence, the judgment and order of

conviction passed by the trial court is sustainable in law.

8. We have considered the contentions canvassed by the respective

counsel of parties and also considered the decision cited by the learned

counsel for the appellant. In the instant case the case of the prosecution

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primarily is based on the dying declaration of the deceased recorded by the

Special Executive Magistrate (P.W. 4). Similarly the other set of evidence

adduced by the prosecution is of P.W. 5, Sadanand, P.W. 6 Arjun, P.W. 7

Banda, P.W. 8 Anusaya and P.W. 9 Suman to whom the deceased has made

oral dying declaration.

9. Law on subject is well settled, if the dying declaration is trustworthy,

cogent and inspires confidence in that case conviction can be based on the

sole testimony of such dying declaration, in a given case even without

corroboration. However rule of prudence requires corroboration. It is also

well settled that if the dying declaration is not in question and answer form

that by itself is not enough to discard the said evidence if it is otherwise

cogent and reliable and is corroborated by the other evidence. In the instant

case P.W. 4 Madhukar (Special Executive Magistrate) recorded the dying

declaration of the deceased in the hospital, which is Exhibit 13. The

testimony of P.W. 4 Madhukar would show that he has recorded dying

declaration as per the narration of the deceased and obtained signature of the

doctor prior to recording of the dying declaration. Perusal of dying

declaration, Exhibit 13 demonstrates that on the date of the incident at about

11 p.m. deceased was asleep. Appellant came home and was under the

influence of alcohol, woke her up and demanded money from her for

consuming alcohol. Deceased refused to oblige him and therefore the

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appellant poured kerosene oil in the bottle from the kerosene lamp.

Thereafter poured the said kerosene oil which was in the bottle on the

person of the deceased and set her on fire. The appellant thereafter ran way

from the spot. The dying declaration further demonstrates that deceased

shouted for help and therefore people residing nearby came to the spot and

extinguished fire with the help of the blanket and took her to the hospital.

Special Executive Magistrate has also mentioned in the dying declaration

that at the time of recording of dying declaration deceased was fully

conscious and he recorded the same as per her narration.

10. The dying declaration recorded by the Magistrate has been

corroborated by the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9.

The evidence of P.W. 5 Sadanand shows that on hearing noise which was

coming from the house of the appellant he went to the house of the

appellant. At that time P.W. 6 Arjun was present on the spot. This witness

pushed the door of the room which was closed from inside. The appellant

after opening the door came out of the room, at that time this witness, P.W.

7 Banda, P.W. 6 Arjun were present, they extinguished the fire with the help

of the rug / blanket. P.W. 5 enquired how she caught fire, deceased narrated

to this witness that the appellant poured kerosene on her person and set her

on fire with the help of kerosene lamp which was burning in the room.

While going through the cross-examination of this witness, we do not find

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any material which would affect the veracity of the testimony of this

witness. The oral dying declaration made to this witness by the deceased is

totally consistent with the material particulars of the prosecution case

mentioned by the deceased in the dying declaration which was recorded by

the Special Executive Magistrate.

11. The evidence of P.W. 7 Banda and P.W. 9 Suman also discloses that

oral dying declaration was made to them by the deceased. Deceased

disclosed that the appellant poured kerosene on her person and set her on

fire since she refused to pay money to the appellant for consuming alcohol.

12. Similarly, evidence of P.W. 8 Anusaya shows that she was awaken

after hearing noise from the house of the appellant and therefore she came

out of her house and saw the flames coming out of the house of the

appellant. She also stated in her evidence that witness Sadanand, Banda

were also present there. At that time appellant came out of the room and ran

away from the place of incident. She has further stated that deceased

sustained burn injuries and was shifted to the hospital where she died after

three days latter.

13. In the instant case, the dying declaration recorded by the Magistrate

as well as oral dying declarations made by the deceased to the prosecution

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witnesses have been completely corroborated by the medical evidence of Dr.

Kamat (P.W. 13) who has stated in his testimony that on 15 th December

1996 he had conducted post mortem examination on the dead body of

deceased Shakuntala and noticed that she suffered 80% burns and also

opined that the probable cause of death was “Septicasemia due to 80%

burns”. Defence declined to cross-examine Dr. Kamat (P.W. 13). The dying

declaration recorded by the Special Executive Magistrate as well as oral

dying declaration made by the deceased to the prosecution witnesses are

completely consistent with each other and are also corroborated by the

medical evidence of Dr. Kamat and therefore, in our view, the prosecution

has succeeded in establishing the case of the prosecution beyond all

reasonable doubts that the appellant poured kerosene on the person of the

deceased and set her on fire. Subsequent conduct of the appellant of

running away from the spot is also consistent with the guilt. The evidence

on record clearly shows that the fire was extinguished by the prosecution

witnesses with the help of blanket and they took the deceased to the

hospital. It is in these circumstances, we have no hesitation to hold that the

prosecution has succeeded in bringing home the guilt of the accused for the

offence of murder.

14. The decision of this Court in the case of Dayaram Dhonduji Thakre

cited by the learned counsel for the appellant, in view of the different sets of

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facts and circumstances involved in the present case, in our view, is of no

help to the appellant. In the said case accused threw kerosene lamp at his

wife and therefore her clothes caught fire and she received burn injuries and

died after twelve days. It is in these circumstances the conviction of the

accused in the said case under Section 302 of the Indian Penal Code was

modified to under Section 304 (Part I) of the Indian Penal Code. Whereas

in the instant case, the appellant poured kerosene on the person of the

deceased and set her on fire and the appellant also ran away from the spot

and therefore the trial court rightly held that the offence committed by the

appellant is punishable under Section 302 of the Indian Penal Code.

15. For the reasons stated herein above, criminal appeal suffers from lack

of merits. Same is dismissed.

(D. D. SINHA, J.)

(SMT. V. K. TAHILRAMANI,J.)

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