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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.150 OF 2005
Lahu Ramchandra Bandpatte,
Age 27 years, Occ.Labour,
R/o.Budhwar Peth, Solapur. ...Appellant.
Vs.
The State of Maharashtra. ...Respondent.
....
Shri Abhaykumar Apte for the Appellant.
Ms. P.H. Kantharia, APP for the Respondent.
.....
CORAM : SMT.RANJANA DESAI &
DR.D.Y.CHANDRACHUD, JJ.
August 5, 2008.
JUDGMENT (PER DR. D.Y. CHANDRACHUD, J.):
The Appellant, together with his brother and mother, was
tried for offences punishable under Section 498A and Section 302
read with Section 34 of the Indian Penal Code. The Additional
Sessions Judge at Solapur, by his judgment dated 17th December
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2004 convicted the Appellant for offences under Sections 302 and
498A; in respect of the former, the Appellant has been sentenced to
imprisonment for life and in respect of the latter, to suffer rigorous
imprisonment for three years and to pay a fine of Rs.1,000/- and in
default, to suffer rigorous imprisonment for six months. The other two
accused have been acquitted.
2.
The Appellant and the deceased, Sridevi, were married for
12 years. The case of the prosecution is that the deceased was being
harassed and ill-treated as a child had not been born from the
wedlock. The Appellant and the deceased resided together in their
matrimonial home at Solapur. The incident took place at 3 a.m. on
28th February 2004; the case of the prosecution being that there was
an altercation during the course of which the deceased was told to
leave the matrimonial home on account of her inability to bear a child.
The deceased refused to do so upon which her clothes were doused
with kerosene and she was set alight by the Appellant. Sridevi was
brought to the Casualty Section of the Civil Hospital at Solapur by the
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Appellant and his brother at 4.05 a.m. She was examined by P.W.
10, Dr.Ghorpade to whom she furnished her history and stated that
the Appellant had poured Kerosene on her and set her on fire. Since
the victim had suffered burns, she was shifted from the Casualty
Section to the Burns Ward where she was examined by
Dr.Gunjotikar, P.W. 9. Sridevi’
s dying declaration was recorded by
ASI Gaigavli. Dr.Gunjotikar, P.W. 9, made an endorsement both
before and after the statement that the patient was conscious and in a
position to make the statement. ASI Gaigavli issued a letter to a
Special Judicial Magistrate to record her dying declaration. The dying
declaration of Sridevi was accordingly recorded by the Special
Judicial Magistrate, P.W. 1 S.G. Mangoli at 6 a.m. In both the dying
declarations, the victim implicated the Appellant, though in the
second, a role was also ascribed to the mother-in-law and to the
Appellant’
s brother. A spot panchanama was prepared in the
presence of panchas and amongst the articles recovered from the site
of the incident were a stove, a half burnt turkish towel, a half burnt
gunny bag, burnt pieces of clothes and a match box. The Appellant
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was arrested on 24th February 2004. Sridevi died at the Civil Hospital
on 29th February 2004. The brother of the Appellant and his mother
were arrested on 28th February 2004 and 5th March 2004 respectively.
3. All the three accused, including the Appellant, were
committed to trial for offences punishable under Section 498A and
Section 302 read with Section 34 of the Indian Penal Code. The
principal witnesses who deposed on behalf of the prosecution were,
S.G. Mangoli (PW 1) who was the Special Judicial Magistrate, who
recorded the dying declaration of Sridevi; U.D. Gaigavli (PW 4), who
was the ASI at Fauzdar Chavdi Police Station; Dr. S.A. Gunjotikar
(PW 9), who was the resident doctor on duty at the Surgical Ward at
the Civil Hospital; the father of the deceased (PW 6), who turned
hostile; and Dr. A.S. Ghorpade (PW 10), who was a Medical Officer
on duty at the Civil Hospital at Solapur. The prosecution examined
ten witnesses. The defence was that Sridevi had committed suicide.
The Additional Sessions Judge at Solapur convicted the Appellant of
offences under Sections 302 and 498A of the Penal Code. The
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Appellant’
s mother and brother have been acquitted.
4. On behalf of the Appellant, the following submissions have
been urged in order to assail the correctness of the judgment and
order of conviction:
.(i) No thumb impression or signature of the victim was
obtained on the medical papers when she furnished her history to
Dr.Ghorpade (PW 10); (ii) There is a discrepancy in timings; PW 9
who was the Medical Officer, deposed that the victim was brought in
at the Burns Ward at 6.15 a.m. There is no endorsement in the
medico legal case papers that he had examined the victim at 5.30
a.m. and therefore, his presence was doubtful; (iii) The recording of
the dying declaration by the Special Judicial Magistrate, P.W. 1, is
stated to have commenced at 6 a.m. and to have been completed at
6.05 a.m. The Medical Officer, however, stated that the victim was
brought in the Burns Ward at 6.15 a.m. Hence prior to that there was
no occasion for the dying declaration to be recorded; (v) Two dying
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declarations of the victim were recorded, the first at 5.30 a.m. and the
second at 6 a.m. The second dying declaration contained an
improvement since the first dying declaration had not implicated the
brother and the mother of the Appellant. The evidentiary value of the
dying declaration is cast in doubt as a result of the improvement made
in the second of the two dying declarations; (vi) The father of the
deceased has not supported the prosecution.
5. On the other hand, the Learned APP submitted that in the
present case, both the dying declarations implicated the Appellant,
who was the husband of the deceased. In the second dying
declaration the victim had also implicated the other two accused, who
were as a result, acquitted by the Learned Additional Sessions Judge.
That however, is no ground to disbelieve the dying declarations in so
far as they consistently implicate the Appellant. Both the dying
declarations bear an endorsement of the Medical Officer who found
that the victim was conscious and in a fit condition to make a
statement. That apart, it was submitted that the victim had also
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furnished her history to P.W. 10, Dr.Ghorpade, who recorded it in the
OPD papers. Reliance was also placed on the spot panchanama and
on the report of the Chemical Analyser according to which a residue
of kerosene was found on the articles recovered. It was urged that
there was no reason to impute any motive either to the Medical
Officer or to the Special Judicial Magistrate, the latter having recorded
one of the dying declarations.
6. The incident in question occurred on 28th February 2004.
The victim Sridevi, who was the spouse of the Appellant was brought
to the Civil Hospital at Solapur at 4 a.m. with burn injuries by the
Appellant and his brother. P.W. 10, Dr.Ghorpade, examined the
victim Sridevi furnished her history to the examining doctor. P.W. 10
recorded in the OPD papers that he had been informed by the patient
that her husband (the Appellant before the Court) had poured
kerosene on her and had set her on fire. During the course of his
deposition, P.W. 10 stated that the victim was brought to the Hospital
at 4.05 a.m. with burns and while giving the history, she stated that
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her husband had poured kerosene on her body and set her on fire.
The OPD papers were marked in evidence as Exh.45. On behalf of
the Appellant, doubt was sought to be cast on the authenticity of
Exh.45 on the ground that the OPD papers were not signed by the
victim, nor did they bear her thumb impression. This submission
cannot carry any weight. OPD papers at the Civil Hospital which
contain a record of the medical history, examination and treatment
administered to a patient, are not required to be signed by the patient.
But quite apart from Exh.45, the case of the prosecution is based on
the two dying declarations, namely, (i) Exh.22 which was the dying
declaration recorded by ASI Gaigavli (PW 4) at 5.30 a.m.; and (ii)
Exh.12 which was the dying declaration recorded by the Special
Judicial Magistrate (PW 1) at 6 a.m.
7. The first dying declaration which was recorded by P.W. 4 at
5.30 a.m. contains an endorsement by Dr.Gunjotikar (PW 9) to the
effect that the patient was conscious and in a position to give a
statement. Dr.Gunjotikar deposed that he was present throughout
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when the statement was being recorded. In the course of the first
dying declaration, Sridevi stated that she was being ill-treated by the
Appellant and by her mother-in-law and brother-in-law since she had
not been able to bear a child. She then stated that the Appellant was
calling upon her to go back to her parental home which she had
declined to do. The Appellant is stated to have picked up a quarrel
with the victim and once again asked her to go back to her parental
home. The victim stated that she had declined to leave her
matrimonial home. Thereupon, according to her, her mother-in-law
and brother-in-law had called her a barren woman and abused her.
The Appellant is stated to have poured kerosene over her body and to
have set her on fire. As a result, she stated that she had sustained
burn injuries on her head, chest, hands, legs and stomach. The
incident took place, according to the victim, at or about 3 a.m. The
second dying declaration was recorded by PW 1, S.G. Mangoli,
Special Judicial Magistrate at 6 a.m. and contains an endorsement of
the doctor, P.W. 9, to the effect that the victim was conscious and in
a position to furnish a statement. The second dying declaration
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implicated, in addition to the Appellant, the mother and the brother of
the Appellant as being involved in the act of dousing kerosene on the
victim and setting her on fire. The first dying declaration, as noted
earlier, stated that it was the Appellant who had poured kerosene and
set fire to her. That was the circumstance which weighed with the
Learned Additional Sessions Judge in acquitting the brother and the
mother of the Appellant.
8. On behalf of the Appellant, it has been urged before the
Court that the improvement which was made in the course of the
subsequent declaration would cast a serious doubt on the evidentiary
value of the two dying declarations, in so far as they implicate the
Appellant. We do not find any valid reason to accept the submission.
Both the dying declarations, it may be noted, are consistent in so far
as the role that has been played by the Appellant is concerned. In
both the dying declarations the victim has consistently maintained that
there was a quarrel during the course of which, it was the Appellant,
who had set fire to her after dousing her with kerosene.
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9. The law attributes a degree of sanctity to a dying
declaration. The basis of the principle is that in the ordinary course of
human events, it is unlikely that a dying person would make an untrue
statement when confronted with the imminence of death. At the same
time, the law is cognisant of the fact that the maker of the statement,
when the statement is contained in the form of a dying declaration, is
unavailable to face the rigours of cross-examination. A dying
declaration is, therefore, assessed as an independent piece of
evidence and can be acted upon, even without corroboration, if it is
found to be trustworthy and reliable. The principles which must
govern the underlying approach of the Court in such a case are well
settled. The law does not mandate that there should be a plurality of
dying declarations. Where there is more than one dying declaration,
the first in point of time is ordinarily to be preferred (reference may be
made in this connection to the judgments of the Supreme Court in
Balbir Singh vs. State of Punjab1 and Bapu vs. State of
1 2006 AIR SCW 4950
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Maharashtra.2
10. During the course of her two dying declarations, the victim
stated that she had been ill-treated by the Appellant on account of her
inability to bear a child. Both the dying declarations are consistent in
the elaboration which they contain of the role of the Appellant in
causing the death of the victim. The dying declarations can safely be
acted upon as a trustworthy and reliable piece of evidence. Both the
dying declarations contain an endorsement of the Medical Officer (PW
9) to the effect that the victim was conscious and was in a fit condition
of mind to make a statement. There was no reason for either of the
two doctors or for the Special Judicial Magistrate to depose falsely.
Absolutely no reason has been suggested to impute any motive to
PW 1, PW 9 or PW 10.
11. The panchanama of 28th February 2004 (Exh.29) records
the recovery of an iron Stove with a residue of kerosene, a partially
2 2006 AIR SCW 5911
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burnt turkish towel, pieces of burnt clothes and a match box. The
report of the Chemical Analyser of 30th July 2004 (Exh.30) found a
residue of kerosene on the iron Stove, the turkish towel, on the burnt
pieces of clothes and on a full shirt, chadder, sari and blouse.
12. A submission was sought to be built upon by relying upon
the difference in timings at which the dying declarations were alleged
to have been recorded and it was urged that PW 9 had deposed that
the victim was brought in at 6.15 a.m. at the Burns Ward. Hence, it
was sought to be submitted that prior to this, there was no occasion to
record the dying declaration. It was also urged that there was no
endorsement in the medico legal case papers that the victim was
examined at 5.30 a.m. The submission, however, cannot be
accepted. The victim was initially brought to the Casualty Section of
the Civil Hospital. PW 9, the doctor who was on duty in the Surgical
Ward, stated that the victim was brought to the Casualty Department
at 4.05 a.m. PW 10, who was on duty in the Casualty Department of
the Civil Hospital also stated that the victim was brought in at 4.05
a.m. when she furnished the case history. The first dying declaration
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was recorded at 5.30 a.m by P.W. 4 while the second was recorded at
6 a.m. by P.W. 1. There is absolutely no justifiable reason to discard
the authenticity of the dying declarations. In any event the alleged
discrepancies of timing to which a reference has been made in the
course of submissions are of a minor nature and do not detract from
the trustworthiness or reliability of the two dying declarations.
13.
Before concluding, it would be necessary to record that the
father of the deceased, Bhimsha Irkal (PW 6), turned hostile.
However, during the course of his cross-examination, he stated that
the Appellant was addicted to liquor and that he used to ill-treat the
victim by beating her under the influence of alcohol. The prosecution,
it must, however, be emphasized, has proved its case beyond
reasonable doubt quite independent of the evidence of PW 6.
14. For all these reasons, we are of the view that there is no
merit in the submissions which have been urged on behalf of the
Appellant. The appeal shall accordingly stand dismissed.
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( SMT.RANJANA DESAI, J.)
( DR.D. Y. CHANDRACHUD, J.)
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