1 Crim.Appeal No.1228/04
lgc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1228 OF 2004
Keshav Laxman Chalke ]
C.No.1413 ]
Kolhapur Central Prison, ]
Kalamba - 416007. Kolhapur ]... Appellant.
versus
The State of Maharashtra ]... Respondent.
Mr.Abhaykumar Apte, Advocate appointed for the Appellant.
Mr. P S Hingorani, APP, for the State/Respondent.
CORAM : NARESH H PATIL &
MRS.MRIDULA R BHATKAR, JJ
DATE : 22nd JUNE 2011
ORAL JUDGEMENT : [PER NARESH H PATIL, J]
1 This appeal is directed against judgment and order dated
04/06/2001 passed by learned IInd Additional Sessions Judge, Satara in Sessions
Case No.108 of 2000 by which the Appellant Keshav Laxman Chalke was
convicted for the offence punishable under Section 302 of the Indian Penal Code
and was sentenced to suffer imprisonment for life and fine.
2 The Appellant was charged for the offence punishable under Section
302 of the Indian Penal Code along with two others i.e. original Accused Nos.2
and 3 who were acquitted by the trial Court. All the accused were related to each
other. Acquitted original Accused No.2 Yashwant Laxman Chalke is the real
brother of present Appellant and acquitted original Accused No.3 Phulabai
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Yaswant Chalke is the wife of original Accused No.2 Yashwant. Incident in
question took place on 10/04/2000. The Appellant was residing along with his
deceased wife Taibai and three sons. The prosecution alleges that on
09/04/2000 in the evening deceased Taibai was sitting on ota along with her
children, at that time Appellant came to his house under the influence of liquor.
He started abusing Taibai. It is alleged that Appellant told deceased Taibai that
they should purchase bullocks belonging to his uncle but deceased Taibai rejected
the said suggestion, in stead she suggested to purchase bullocks from open
market. The couple started quarreling. Thereafter Appellant asked his wife
Taibai to serve him food. They all went inside the house. It is alleged that a
kerosene can was kept in the house. Appellant poured kerosene from the said
can on the person of deceased Taibai and put the end i.e. the last portion of the
saree of deceased (referred as “Padar” in Marathi and “Pallu” in Hindi) on
hearth. Taibai caught fire. It is further alleged that the Appellant thereafter ran
away. Due to burning sensation the deceased started shouting “save me, save
me”. The neighbourers gathered including PW No.2 Parubai Chalke. They
extinguished the fire. PW No.2 Parubai Chalke asked deceased as to how the
incident took place to which the deceased answered that her husband poured
kerosene on her person and set her on fire. On asking reasons for her husband to
do so, deceased Taibai informed PW No.2 Parubai that the husband did so on the
instigation of acquitted original Accused No.2 Yaswant and his wife Accused No.3
Phulabai. PW No.2-Parubai , Babanbhai, Housabai, Housabai, Kalabai and one
Patil of Thoseghar brought the deceased to Civil Hospital, Satara. Taibai was
admitted in hospital and Medical Officer started treatment after admission of
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Taibai in hospital between 2.00 to 2.30 a.m. on 10/04/2000. Prosecution
Witness No.6 Balasaheb Ganpatrao Jadhav issued a yadi to the policeman in the
hospital which is at Exhibit-34 on record.
3 According to the prosecution, one constable came to enquire
regarding condition of the patient. The Medical Officer examined the patient and
expressed his opinion that she was in a position to give statement. According to
the Medical Officer the deceased was conscious and was in fit to give statement.
The constable recorded statement of Taibai. According to the prosecution, the
Medical Officer made an endorsement on the said statement regarding
consciousness of the deceased. The endorsement made by the doctor is at
Exhibit-35. Thereafter PSI Patil reached hospital. He too enquired regarding the
condition of the patient for recording statement. PW No.6-Dr.Balasaheb Jadhav
examined the patient again and opined that she was fit to give statement. PSI
Patil then recorded the statement of the patient. After recording the statement of
patient, PW No.6 Dr.Balasaheb again examined the patient and made an
endorsement on the said statement that the patient was fit to give statement. The
said endorsement is at Exhibit-36. Thereafter the patient was shifted to burn
ward after giving first aid.
4 According to the prosecution, Executive Magistrate reached the
hospital at around 4.30 a.m. He too enquired regarding the patient and her
condition to give statement. The Medical Officer again examined the patient and
opined that she was fit to give statement and an endorsement to that effect was
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made by the doctor on the requisition letter which is at Exhibit 28. The
Executive Magistrate recorded statement of the deceased. The Medical Officer
had put endorsement in respect of the consciousness of the deceased on the dying
declaration (Exhibit-29).
5 On the basis of statements recorded, a crime was registered and the
police started investigation. The police arrested original Accused Nos.2 Yashwant
and Accused No.3 Phulabai and obtained their remand. Spot panchanama was
drawn in respect of the spot and the articles were seized from the scene of
offence. The police recorded statements of the witnesses. On the next day, the
seized articles were sent to the Chemical Analyzer for examination. According to
Investigating Officer, the Appellant was not traceable though he was searched at
various places. On 15/04/2000, Taibai expired. The police conducted inquest
panchanama and the Medical Officer conducted autopsy. An offence under
section 302 of the Indian Penal Code was registered against the Appellant and the
police recorded supplementary statements of some persons. After completion of
investigation, a charge-sheet was filed. The Appellant-accused pleaded not guilty
to the charge levelled against him on 06/04/2001 by the trial Court.
6 The prosecution examined as many as nine witnesses. The defence
too examined Sachin Keshav Chalke – the son of Appellant as defence witness.
In the evidence of PW No.1 Santosh Keshav Chalke – the son of
Appellant, who was 10 years old at the time of his examination before the Court
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and PW No.2 Parubai Chalke, it has come that the Appellant poured kerosene on
the person of deceased and set her on fire by putting the last portion of the end
of her saree on hearth (“Chul” in Marathi). Before the incident in question the
Appellant had a quarrel with his wife on the issue of purchasing bullocks. The
Appellant was stated to be under influence of liquor. The father of deceased PW
No.4 – Kisan Maruti Kadam was examined by the prosecution. He stated that
after he received intimation, he met his daughter in hospital at around 10 to
10.30 am on 10/04/2000. He deposed before Court that the deceased was in
ward No.9 and after he met her, she told him that her husband had poured
kerosene on her person and put the end of her saree on hearth and thereafter ran
away. He deposed before Court that the deceased was prompted by original
Accused Nos. 2 and 3 Yashwant and Phulabai respectively.
7 Prosecution Witness No.1 is Santosh Keshav Chalke, was of a very
young age when he was examined by the prosecution. After putting certain
questions, oath was administered to this child witness. He has deposed in respect
of the act of the accused due to which the deceased suffered burn injuries and
ultimately died. An omission has been brought on record by the defence in the
evidence of this witness. He claims to have told the police that he along with his
mother, father and brother had gone inside the house. On behalf of the defence it
was submitted that this witness failed to make a statement before police to that
effect, and therefore, it was not possible for him to witness the incident of
pouring kerosene by the Appellant on the deceased.
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8 Prosecution Witness No.2 Parubai Shivram Chalke, – the
neighbourer of the deceased, who immediately reached to the spot of incident.
She stated that she heard a commotion, therefore she came out of her house and
went to the house of Appellant. She saw the Appellant running out of his house.
She stated that she and the son of Appellant poured water on the person of the
deceased and tried to extinguish the fire. The other persons also gathered there.
She further stated that the deceased disclosed her the role played by the
Appellant in the incident and blamed the Appellant for causing burn injuries to
her. In the cross examination PW No.2 Parubai stated that when she reached
Taibai’s house she was brought on ota of the house. Taibai was asking for water.
This witness PW No.2 is the relative of one Pandurang Chalke and the Appellant
is distantly related to her.
9 Prosecution Witness No.3 is Maruti Krishna Chate, who acted as a
panch in respect of the spot of incident. He stated that there was a hearth near
the western wall of the house. He deposed that they found ash and burnt wood
lying in the hearth and also found pieces of burnt cloth and a blue coloured
kerosene can. According to this witness, all these articles were seized under a
panchanama which was proved by the prosecution. It was recorded in the
panchanama that half burnt saree was also found on the scene of offence which
was smelling of Kerosene. There was a smell of kerosene in the room. The police
seized all these articles i.e. plastic can of kerosene, half burnt pieces of saree,
sample of soil lying on the floor, ash from the hearth.
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10 Prosecution Witness No.4 is Kisan Maruti Kadam – the father of
deceased, who deposed before the Court and blamed the Appellant. In his cross
examination he stated that Taibai was illiterate. He did not make any complaint
to the police or police patil about the ill-treatment given to Taibai by the
Appellant. Taibai was using kerosene even for the purpose of electricity.
11 Prosecution Witness No.5 is Dilip Bhikaji Jadhav who is one of the
material witnesses in this case. He was at the relevant time working as an
Executive Magistrate. He deposed before Court that he received a call from
police for recording dying declaration of one Chalke. After receiving intimation
he reached the civil hospital and contacted Medical Officer. On enquiry, the
doctor opined that the patient was conscious and was able to give statement. Yadi
received by this witness from police is at Exhibit-28. This witness clearly deposed
before Court that when he reached the patient, other persons near her were
asked to leave the place. The Medical Officer was with him. Thereafter he put
certain questions to the deceased in respect of her name, place of residence,
address, age etc. After getting answers from the deceased, this witness recorded
her statement as per her version. Thereafter the said statement was read over to
the deceased and her thumb impression was obtained by him. He identified his
signature and the statement which is at Exhibit-29. In the cross examination, this
witness stated that he expressed his identity to the patient. Certain questions
regarding percentage of burn injuries suffered by the deceased, physical
condition of the deceased were put to the witness. The witness denied that the
patient was unconscious. The witness, after recording statement of the deceased,
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attested the thumb impression put by the deceased on the statement. This witness
fairly admitted that he did not call independent witnesses to attest the thumb
impression after completion of recording of statement.
12 Prosecution Witness No.6 is Dr.Balasaheb Ganpatrao Jadhav – the
Medical Officer who has supported the prosecution case in respect of giving
opinion about the condition of the deceased for making statement before the
police and Executive Magistrate. The witness had proved his endorsements made
on the statements of the deceased recorded by the prosecution witnesses. He
opined that the deceased suffered 95% burn injuries which were superficial and
deep. Face of the deceased was burnt to the extent of 8%. He opined that the
injuries suffered by the deceased were not possible by accident. The witness
denied that morphine injection was given to the patient.
13 Prosecution Witness No.7 is Ajay Purshottaam Gosavi who was the
carrier of articles to the Chemical Analyzer.
14 Prosecution Witness No.8 is Sambhaji Achutrao Patil, who was the
Investigating Officer in this case.
15 The learned counsel appearing for the Appellant submitted that the
dying declarations were not recorded in the manner in which they ought to have
been recorded. The Medical Officer failed to give his opinion of deceased being fit
to make statements prior to recording of her statements. The opinions and
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endorsements made by the Medical Officer were procured after recording the
statement. In the light of the fact that the deceased had suffered 95% burn
injuries, she must not have been in a position to make statement before the
Investigating Officer and Executive Magistrate. The deceased had suffered
injuries to her face to the extent of 8% and therefore she must not have been in a
position to make statement. Recording of dying declarations is surrounded with
suspicion, prompting, tutoring. Therefore it would be improper to convict the
Appellant and confirm the conviction and sentence awarded against the
Appellant. The learned counsel further submits that the dying declarations were
recorded one after the another which itself causes serious doubt. The evidence of
PW No.1 Santosh, who is the son of the Appellant and deceased was also not
worthy of credence. According to the learned counsel, there is material omission
brought on record in respect of entering the house by Santosh. He further submits
that the Appellant is in jail since 11 years and considering the quality of evidence
on record, he be acquitted of the charge.
16 The learned APP for the State/Respondent submits that the
prosecution has placed cogent and reliable evidence on record. The prosecution
witnesses have not exaggerated the sequence of events of the incident. The
conduct of husband is suspicious. He ran away soon after his wife suffered burn
injuries. He was not traced out for many days by the police. There is no evidence
to show that the Appellant was tried to extinguish the fire or he suffered burn
injuries to his hands, fingers in saving life of his wife. The learned APP submits
that the dying declarations recorded by the police and Executive Magistrate are
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recorded in a natural course and they are consistent. The infirmities tried to be
pointed out by the defence in the evidence in respect of consciousness of the
deceased are insignificant. It was submitted that there was nothing wrong in
doctor’s making endorsement after recording dying declaration. The doctor was
present when the statement was recorded. He supported the prosecution case. He
had examined the deceased whenever the prosecution witnesses reached the
hospital for recording dying declarations. The dying declarations are voluntary
and truthful, according to the learned APP. PW No.2 Parubai, though related to
the Appellant distantly, is the independent witness in the sense that she reached
the spot of incident, tried to extinguish the fire, took the deceased to hospital and
before whom the deceased narrated that the Appellant had poured kerosene on
her person and set her on fire.
17 The Medical Officer, after conducting post mortem opined that the
cause of death is “Septicaemia shock due to 95% Burns”. The deceased suffered
95% burn injuries. The deceased died after six days i.e. on 15/04/2000. We
have carefully scrutinized the case papers relating to the treatment provided to
the deceased which are placed on record at Exhibit 38. The endorsements of the
Medical Officer in respect of the treatment provided to the deceased during her
admission in the hospital are available. On 10/04/2000 case papers show that
the deceased was conscious. Even on 11/04/2000 she was conscious and
oriented. On 12/03/2000 the endorsement on the case papers shows that she was
conscious and oriented. On 13/04/2000 there was an endorsement that she was
gasping and pulse was feeble. On 14/04/2000 she was conscious and oriented.
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On 15/04/2000 she was conscious, but at 10.20 pm her condition started
deteriorating, BP not recordable, pupils dilated, fixed, not reaching to light and
she succumbed to her injuries.
18 Normally we notice that the Medical Officer puts endorsement
before starting recording of dying declaration in respect of the condition of
patient to make statement and after recording statement too the Medical Officer
puts his endorsement in respect of the condition of patient. This is done to make
sure that the patient was conscious and well oriented through out the time during
which the dying declaration was being recorded. But there is no statutory
provision or mandatory rule in respect of endorsement of the Medical Officer in
specific words at the time of recording of dying declaration or completion of the
same. No doubt such endorsement in given facts of the case would lend
credibility to recording of the dying declaration if on other counts the dying
declaration is found to be voluntary and truthful. The purpose is that recorder of
dying declaration must be satisfied that the maker of the dying declaration is
conscious and well oriented to understand as to what statement he/she is giving
and whether the statement is voluntary and truthful and not out of vengeance
and result of imagination. It depends on the facts of each case to appreciate as
to whether the dying declaration is voluntary and truthful. In the facts of the
present case we find that earlier oral dying declaration was made by the deceased
before PW No.2-Parubai. The presence of PW No.2 at the scene of offence soon
after the incident in question took place cannot be denied so also her attempts to
extinguish the fire and taking the deceased to hospital along with others. We
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have no doubt to observe that the deceased before her admission in hospital must
be in a fit state of body and mind to narrate the incident before PW No.2 Parubai.
The deceased clearly blamed the Appellant in respect of burn injuries caused to
her. Even before PW No.4 Kisan Maruti Kadam, who is the father of deceased,
the deceased had blamed the Appellant for the burn injuries suffered by her.
Considering the evidence on record we are not inclined to accept the statement
recorded by police constable Tate as dying declaration as the same is not
exhibited and proved. The endorsements at Exhibits – 35 and 36 are proved.
Constable Tate has not been examined by the prosecution.
19 We do not find any infirmity in recording the statement of the
deceased by the PSI. There is no provision in law that the police officer cannot
record the statement/dying declaration. Normally as of rule of caution Executive
Magistrate is called to record a dying declaration. In the instant case the
prosecution had taken much precaution in sending requisition to Executive
Magistrate to record dying declaration and accordingly PW No.5 – Dilip Jadhav
recorded the dying declaration of the deceased. From the evidence of PW No.5,
it reveals that before recording the dying declaration he got himself satisfied
about the condition of patient and thereafter recorded the same. We find that the
evidence of PW No.5 is worthy of credence. He enquired with the Medical Officer
before recording the dying declaration and even after completion of recording the
dying declaration. The same was read over to the deceased and thereafter her
thumb impression was obtained on it.
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20 The submission of the learned counsel for the defence is that an
independent witness should have attested the thumb impression of the deceased
and as the independent witnesses were not called to attest the thumb impression
of the deceased, the statement of the deceased cannot be taken into
consideration. Considering the facts of case and quality of evidence brought on
record, we do not find that the statement of the deceased recorded by PW No.5 is
to be brushed aside on the plea raised by the defence. The evidence of PW No.5
is worth reliable. He is an independent witness. Nothing is brought on record
that he is unnecessarily interested in prosecution or his conduct was blame
worthy from any angle.
21 The conduct of the Appellant was focused by the prosecution. Even
according to the Investigating Officer he was not available to the police. He ran
away from the house and was not traceable. There is nothing on record to show
that he tried to extinguish fire or suffered any burn injury while trying to save
life of his wife. The defence witness Sachin Chalke, who is another son of the
Appellant, was examined in support of the plea of the Appellant. We do not find
that his evidence is of any help to the Appellant.
22 The Appellant is claiming innocence. In his statement recorded
under Section 313 of the Criminal Procedure Code the Appellant failed to explain
the circumstances brought on record against him. In the said statement he stated
that a false case was filed against him. The Appellant lost best opportunity to
explain these circumstances in respect of occurrence of incident. The Appellant
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ought to be aware that the deceased was his wife. She was under his care and by
simply denying the charge or questions put by the Court, the Appellant was not
exhibiting his innocence.
23 The learned counsel appearing for the Appellant placed reliance on
the judgment of the Apex Court in the case of Godhu and anr. v/s. State of
Rajasthan reported in AIR 1974 SC 2188 on the issue relating to appreciation of
dying declaration. In respect of appreciation or suspicious circumstances while
recording dying declaration, the learned counsel for the Appellant also placed
reliance on the judgment of the Apex Court in the case of Rasheed Beg v/s State
of M.P. reported in AIR 1974 SC 332.
24 The learned APP appearing for the State/Respondent placed
reliance on the judgment of the Apex Court in the case of Munnawar and others
v/s. State of Uttar Pradesh and others, reported in (2010) 5 SCC 451. In the
facts of the said case, the Apex Court in Paras 15 and 16 has observed as under :-
“15. In K.Ramchandra Reddy case, this Court again,
on an appreciation of the circumstances leading to the
recording of the dying declaration, held that it could not be
relied upon. It is, therefore, obvious that the fact as towhether a dying declaration is reliable or not would depend
upon the facts of the case and the evidence produced by the
prosecution and no hard and fast rule by way of precedent
can ever be adopted.
16. As already observed by us, there are no
suspicious circumstances whatsoever with regard to the
dying declaration recorded by Rajdev Singh and endorsed by
Dr.Trivedi and no substantial reason has been spelt out by
Mr.SushilKumar as to why these officers would be a party in
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15 Crim.Appeal No.1228/04in both the cited cases, the primary argument was based on
the physical condition of the maker of the dying declaration
i.e. deceased. In the present case, however, the fact that thedeceased had remained alive for a long period of time after
the incident and died several days later of septicaemia
brought about by the gunshot injury clearly shows that hiscondition was not overly critical or precarious when the
dying declaration had been recorded.”
25 In the light of the facts and the evidence brought on record we find
that the prosecution has established its case beyond reasonable doubt. Two dying
declarations i.e. oral dying declaration given to PW. No.2 Parubai and the written
dying declaration recorded by PSI Patil and PW No.5 Dilip Jadhav Executive
Magistrate, are reliable. They are voluntary in nature and provide truthful
account of the incident. The deceased survived for 5 to 6 days after the incident.
Her stand in respect of Appellant’s involvement in the incident is consistent
through out in spite of the fact that she survived for 5 to 6 days. More so in the
light of the fact that she was having three small children, she continued and
maintained her stand that Appellant had poured kerosene on her person and set
her on fire. We do not find that out of vengeance the deceased had blamed the
appellant.
26 For the reasons stated above, we find no merit in the appeal. The
impugned Judgment and Order dated 04/06/2001 passed by the learned Iind
Additional Sessions Judge, Satara in Sessions Case No.108 of 2000 is confirmed.
The appeal is dismissed.
(MRS.MRIDULA R BHATKAR J.) (NARESH H PATIL, J.)
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