JUDGMENT
Vishnu Sahai, J.
1. The appellant aggrieved by the Judgment and order dated 29-6-1993, passed by the IVth Additional Sessions Judge, Solapur in Session Case No. 56 of 1993, convicting and sentencing him to undergo imprisonment for life under section 302 of IPC has come up in appeal before us.
2. The prosecution case in brief is that the deceased Sarojini was the wife of the appellant. About 2 years prior to the incident she was married to the appellant. The couples used to live in Maulali Chowk area in the city of Solapur. Sarojini always used to complain about the appellant quarreling with her and beating her. This was not taken serious note of by her parents, her uncle Gadappa Bhimanna Metepatil, P.W. 4 and other family members because, they thought them to be usual quarrels which take place between husband and wife. On 30-11-1992,the uncle of the deceased, Gadappa Bhimanna Metepatil (P.W.4) a resident of Ambedkar Nagar had some work near the Central Talkies. At about 4 pm while he was on his way for that work he passed near the house of the appellant and saw a big crowd standing there. Some persons from the crowd told him that the daughter of his brother was set to fire and taken to Civil Hospital. Immediately Gadappa proceeded and informed his brother Ayeppa, father of Sarojini who used to reside in Kumta Naka area. On receipt of the information from him Ayeppa and his wife immediately went to Civil Hospital, Sholapur in an auto rickshaw and Gadappa followed them on a motor cycle.
In the hospital Gadappa discovered that Sarojini had burns all over her body. When he enquired from her as to what had happened she replied that the appellant was sore against her because against his wishes, previous day, she had gone to attend the ‘Sakharpuda’ (engagement) function of her younger sister. She also told him that on account of that the appellant started beating her from early morning (morning of 30-11-1992) and at about 3 p.m the same day hit her with a stool. Thereafter the appellant burnt her with a cigarette on her face and she started crying aloud. Thereafter the appellant poured kersense oil on her person and set fire to her with a match stick.
Same day at about at 11 p.m. Sarojini is alleged to have succumbed to her injuries in the Civil Hospital, Solapur.
3. Going backwards, Sarojini was admitted in Civil Hospital, Solapur at 3.35 p.m by her father-in-Law Nagappa. There she was examined by Dr. Abhijit Suhas Mhaskar P.W. 10. and Dr. Ashok Nilappa Bolde P.W. 5. On her right eyebrow, both doctors found a contused lacerated wound 2 cm x 1 cm. Dr. Bolde PW 5 also found circular burn marks, five in number on the left cheek and three in number on the right cheek. According to both the doctors she had 100% burns ranging from superficial to deep. Both the doctors asked her as to how she had sustained injuries and she replied that she was beaten and burnt.
The same day (30-11-1992) Abdul Farid Shaikh P.H.C. (P.W. 9) received an order Exh. 28 from Head constable Swamy at about 4 p.m. to proceed to Civil Hospital, Solapur in connection with recording of the statement of Sarojinii who was admitted in the aforesaid hospital. Immediately, P.H.C. Abdul Farid Shaikh, P.W. 9 proceeded for Civil Hospital, Solapur where on reaching the casualty ward, he enquired from Dr. Bolde P.W. 5 as to whether Sarojini who was admitted in that ward was in a fit condition to give her statement. To his aforesaid querry, the doctor replied in the affirmative. P.H.C.Shaikh turned out the large crowd which was present there and after putting some question to her to which she replied, he recorded her statement (dying declaration) in question and answer form. The endorsement of Dr. Bolde that she was conscious is Exhibit 21 and the statement of Sarojini is Exhibit 21A. In our opinion, the aforesaid statement is of vital importance to the decision of this case. Hence, we are reproducing the same:-
DYING DECLARATION
Civil Hospital,OPD,
Solapur. Tm: 16.30 to 17 hrs.
Q: What is your full name? How many years old are you?
A: My name is Sarojini Sunkappa Pujari, age 22 yrs.
Q: Where are you living and with whom?
A: We are residing jointly with my husband, brother-in-law, sister-in-law at Keshavnagar Zopadpatti, Solapur.
Q: How are you injured?
A: Yesterday asked for going to my maternal house to attend the engagement function of my sister at Kumtha Naka and on the same reasons quarrel took place between me and my husband Sunkappa Nagappa Pujari. My husband lifted up a wooden stool and beat me on the right eye and my husband poured kerosene from the can in the house on my body and put me on fire so my body is completely burnt.
Q: Who extinguished the fire?
A: The persons from the galli extinguished the fire. I do not know their names.
Q: Do you have any complaint about the incident?
A: I have complaint against my husband about the incident.
Q: How many years passed to your marriage and how many children you have?
A: Two years passed to my marriage and I have no children.
Q: Are you educated?
A: No.
Q: Do you want to say anything more?
A: I want to say something more than these things.
Q: What do you want to say?
A: My husband scorched on my face with the lighted cigarette by tying my hands and legs.
This statement is read over to me and it is correct as per my narration.
This statement giving in writing signed and dated the same.”
After recording the dying declaration Dr.Bolde asked the constable on duty to give information to police station Sadar Bazar.
4. The F.I.R. is alleged to have been recorded by P.W. 9 Abdul Farid Shaikh at the dictation of the victim Sarojini. On its basis Crime No. 204 of 1992 was registered at 6.05 p.m. A dying declaration was also recorded by the Executive Magistrate Devendra Timappa Bhandare (P.W. 8) between 6.15 to 6.30 p.m. on the same day, at the Civil Hospital, Solapur. The contents of this dying declaration and the statement recorded by Abdul Farid Shaikh P.W. 9 reproduced above, are identical.
5. As mentioned earlier, the same day (30-11-92) at about 11 p.m in Civil Hospital, Solapur, Sarojini succumbed to her injuries. The autopsy was performed on 1-12-92 between 10-45 a.m. and 11.40 a.m. The autopsy report shows that she had 91% burns spread all over her body and the cause of death given by autopsy surgeons Dr. V.K.Bhanot and Dr. A.Gadgil was shock and toxaemia due to superficial burns.
6. The investigation was conducted in the usual course and thereafter the appellant was chargesheeted for an offence punishable under section 302 I.P.C. In the usual course, the case was committed to the Court of Sessions.
7. In the trial Court, as many as 11 witnesses were examined by the prosecution. It also tendered and proved various exhibits including two dying declarations recorded by P.H.C .Abdul Farid Shaikh P.W. 9 and the dying declaration recorded by the Executive Magistrate Devendra Timappa Bhandare P.W. 8. There is a fourth dying declaration also that being the statement of the victim to her real uncle Gadappa Bhimana Metapatil P.W. 4.regarding the manner in which she was burnt. The learned trial Judge rejected the F.I.R. which was recorded by Abdul Farid Shaikh P.W. 9 as well as the dying declaration recorded by Executive Magistrate Devendra Timappa Bhandare P.W. 8. The former he rejected on the ground that there was no endorsement by the doctor and the latter he rejected on the ground that its contents were identical to the first statement of the victim recorded by Abdul Farid Shaikh P.W. 9 and also because no endorsement of the doctor was obtained and the questions put to the victim were those which were suggested by P.S.I. Jadhav. However the trial Judge believed the first statement given by the victim Sarojini to Abdul Farid Shaikh P.W. 9 and the oral dying declaration which she gave to her uncle P.W. 4 Gadappa Bhimana Metapatil. He passed the impugned order which is being challenged in this appeal.
8. We have heard Mr. T.E. Mane for the appellant and Mr. Patil Additional Public Prosecutor for the State of Maharashtra at a considerable length. We have perused the entire material on record. After giving our anxious consideration to the matter, we are firmly of the opinion that the prosecution has established its case against the appellant beyond any shadow of doubt and this appeal deserves to be dismissed.
9. After carefully going through the first statement of the victim Sarojini recorded by P.H.C. Abdul Farid Shaikh, P.W. 9 (Exh. 21A) and the statement of Gadappa Metapatil P.W. 4, the real uncle of the victim who has proved the oral dying declaration, we are of the opinion that both the aforesaid dying declarations inspires confidence.
We would first like to take up the first dying declaration which Sarojini made to P.W. 9 Adbul Farid Shaikh. That statement was recorded by P.H.C. Abdul Farid Shaikh between 4.30 p.m. on 30-11-92. Before recording the statement Abdul Farid Shaikh P.W. 9 took an endorsement from the doctor (Exh. 21) which was to the effect that the victim was in a sound condition to give the dying declaration. In the earlier part of our judgment, we have reproduced that dying declaration of Sarojini, in its entirety. We find that the same is truthful in consonance with probabilities and medical evidence. In her statement, Sarojini has mentioned that on account of her going to the engagement function of her sister at Kumthanaka, there was a quarrel between her and her husband (the appellant) and the appellant hit her with a wooden stool and poured kerosene oil over her entire body and scorched her face with a lighted cigarette and burnt her with a match stick. As we have seen earlier, Dr.Bolde PW 5 found injuries of hurling of a stool and those attributable to scorching by a cigarette on her person. Dr. Bolde found a contused lacerated wound 2 cm x 1 cm on her eye brow and circular burn marks five in number on left cheek and three in number on right cheek. In his statement in trial Court, he has stated that the contused lecerated wound could be caused by throwing a stool (Article No.1) and the circular burn marks could be caused by means of burning the face with a cigarette. The medical evidence also corroborates the prosecution case. No suggestion from the side of the appelant was made to Dr. Bolde, that the contused lacerated wound and circular burn marks on cheek of the victim did not exist in reality and were falsely shown by him. A persusal of the evidence of P.H.C. Shaikh shows that all legal formalities had been complied with before recording this dying declartion. Before recording it P.H.C. Shaikh had asked the persons present in casualty ward to go out and after they went out, as mentioned above he had asked Dr. Bolde as to whether the victim was in a fit condition to give statement and it was only after Dr. Bolde had replied in the affirmative that he recorded the statement in question and answer form. After recording it he read it over to the victim who admitted its contents to be true. Thereafter he obtained her thumb impression on it.
P.H.C. Shaikh also stated that it was in the presence of the Medical Officer (Dr. Bolde) that he recorded the statement. He emphatically denied the suggestion made to him in his cross-examination that it was in collusion with the relations from the paternal side of the victim and police officer on duty at Civil Hospital that he had prepared this statement. He also denied the defence suggestion that at the time of recording of her statement the victim was unconscious and that he subsequently obtained the endorsement of the doctor. After giving our thoughtful consideration we are of the opinion that this dying declaration inspires confidence. No reason has been spelled out before us as to why Dr. Bolde would have given a false certificate pertaining to fitness of victim or P.H.C. Shaikh would have falsely deposed that this statement of the victim was her own statement free from all tutoring. There was absolutely no enimity whatsoever between them and the appellant, nor were they, in any way, interested in the victim. For the aforesaid reasons in our opinion this dying declaration is reliable and has been rightly believed by the learned trial judge.
10. Now we propose taking up the oral dying declaration made by the victim to her real uncle Gadappa, P.W. 4. To the aforesaid dying declaration we have referred in paragraph 2 of our judgment.
In our opinion the evidence of the oral dying declaration also inspires confidence. As seen above, the victim was conscious and in a fit condition to tell her uncle about the manner of her death, when asked by him. We may mention that the manner of assault as given out in the oral dying declaration to P.W. 4 Gadappa, is identical to that as given out in the first dying declaration of the victim, (Exhibit 21A) referred to above. In our opinion the evidence of the oral dying declaration also has a ring of truth about it and the learned trial Judge was justified in placing reliance on it.
11. We would like to emphasise that had the appellant not committed the murder of the deceased in the manner mentioned in the dying declarations then the deceased who was his wife for no reason or rhyme would not have falsely implicated him. There is not even an iota of evidence that the victim in any manner was enimical to the appellant or nursed a grudge against him. Again Gadappa P.W.4 had no rancour against the appellant and had the victim not given an oral dying declaration to him incriminating the appellant, he would not have falsely deposed against the appellant, who being his brothers, son-in-law, was also his son-in-law.
12. We may also mention that the manner of assault as given by the victim in the dying declarations was perfectly natural and cannot be castigated as a figment of the victims imagination. Averments like a stool being hurled on the face of the victim and her cheeks being burnt by a cigarette, which are corroborated by medical evidence, are not such averments which can be attributed to the imagination of the victim. In their strangeness is contained the inbuilt guarantee of their truth.
13. We wish to emphasise that the deceased was done to death inside the house of the appellant. Although the appellant denies his presence at his house at the time of the incident and states that he was at E.S.I. Hospital where his brother was admitted but no witness has been examined either to prove his brother’s illness or his own presence in hospital. His defence is unworthy of reliance. It is also not disputed that at the time of the incident inside the house his father Nagappa was present. No explanation is forthcoming from either the appellant or his father as to how the victim received injuries, to which she succumbed 8 hours later. Under section 106 of the Evidence Act, which reads thus:–
“106. Burden of proving fact especially within knowledge—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
the appellant and his family members were under a legal obligation to account for the manner in which the victim was burnt and received injuries. Failure on their part to discharge this statutory burden also goes against the appellant.
14. We may mention that the presence of contused lecerated wound on the right eye brow of the victim and circular burn mark five in number on her left cheek and three in number on her right cheek not only corroborates the prosecution case but renders hollow the contention of the learned counsel for the appellant that the victim had actually committed suicide. The medical case papers of the victim (Exhibit 23) which were prepared the same day at 3.35 p.m. also rule out suicide. Therein, it has been mentioned: patient brought by relative `alleged
H/O assault and burned today at 3 p.m. ‘Had it been a case of suicide then in the aforesaid papers suicide would have been mentioned, it was Nagappa, father-in-law of the victim who had brought and got her admitted in the hospital.
15. Mr.T.E.Mane, learned counsel for the appellant made a number of submissions before us.
Firstly, he contended that in the medical case papers of the victim which were prepared at 3.35 p.m. on 30-11-92, i.e. immediately after her admisssion in the casualty ward, the name of the appellant is not mentioned and what is mentioned is “alleged H/O assault and burned today at 3 p.m. “The contention is that by way of after thought and as a consequence of tutoring the appellant name was mentioned in the dying declartion. We regret that we cannot accede to this contention, for two reasons. Firstly because Dr. Mhaskar, P.W. 10 who had medically examined the victim at 3.40 p.m. in the casualty ward deposed that ” I asked her what had happened and how she sustained burns. Sarojinibai said that she was beaten and burnt”. It may be that because Dr. Mhaskar did not specially ask her as to who had beaten her and caused her burns, she did not mention the name of the appellant, secondly the evidence is that the victim was brought to hospital by her father in law Nagappa, and in our opinion on account of his presence, she must not have dared to mention the name of the appellant who was his son. The evidence of P.H.C. Abdul Farid Shaikh is that when he reached the out patient department a crowd was there. First, he had removed the crowd and then recorded the first statement of victim, between 4.30 p.m. to 5 p.m.that is hardly an hour later to the preparation of medical case papers. At that time, the victim was alone and mentioned the name of the appellant, as her assailant, in the aforesaid statement. Hence, reject the aforesaid contention of Mr. Mane.
Secondly, Mr. Mane submitted that the first statement of the victim was not recorded between 4.30 p.m. and 5 p.m.,in the causualty ward, as alleged by the prosecution because Dr. Bolde P.W. 5 who according to PHC Abdul Farid Shaikh was present while it was being recorded, has stated in his examination-in-chief that the victim was shifted to Burns Ward at about 4.45 p.m. Again, we are not able to agree with him because Dr. Bolde in his cross examination and Dr. Mhaskar P.W. 10 in his examination-in-chief stated that the victim was shifted at about 5.45 p.m. to Burns Ward. P.W. 10 Dr. Mhaskar has stated that papers of admission of the victim in Burns Ward, were prepared at 4.45 p.m. but she was actually shifted there at about 5.45 p.m. It appears that since the papers were prepared at about 4.45 p.m under confusion, initially Dr. Bolde stated that the victim was shifted to Burns Ward at about 4.45 p.m. We fail to understand as to why the aforesaid two doctors, would have falsely deposed on timing of the shifting of the victim to the Burns Ward.
Thirdly, Mr.Mane contended that in as much as Dr. Mhaskar did not state about the circular burn marks on the cheek of the victim and the autopsy report does not mention either about the aforesaid circular burn marks or the contused lacerated wound, we should not accept the prosecution case about a stool being hurled on the victim by the appellant and his burning her by a cigarette. We also find this contention to be devoid of merit. Dr. Bolde P.W. 5 who was the first to examine the victim on her entering the hospital has stated about the contused lacerated wound and the circular burn marks. In the medical case papers of the victim, which were prepared at 3.35 p.m. i.e. within about a hour of the incident taking place, there is also a mention about them. No reason has been spelled out by Mr. Mane as to why we would disbelieve Dr. Bolde`s evidence.
Fourthly, Mr. Mane contended that since the first statement of victim was recorded by P.H.C. Abdul Farid Shaikh, a police personnel, and the Apex Court has disapproved the recording of dying declarations by police officers, we should not place any reliance upon it. We are afraid that this submission is not correct. What the Apex Court has deprecated is the practice of dying declarations being recorded by investigating officers. See (1) , Balakram and another, appellants v. State of Uttar Pradesh, respondent, and (2) , Munnu Raja and another, appellants v. State of Madhya Pradesh, respondent. Admittedly in the instant case the first statement of the victim was recorded by P.H.C. Abdul Farid Shaikh prior to the lodging of the F.I.R. and obviously prior to the commencement of the investigation. Hence the aforesaid ratio has no relevance to the present case. At any rate, in our opinion, the aforesaid submission is not legally tenable. The Apex Court has nowwhere said that either such statement are inadmissible in law or cannot be relied upon. It has only observed that prudence warrants that the Court should be extremely cautious and slow in accepting them. As we have mentioned it was only after taking all precautions, to which we have referred to earlier, that P.H.C. Shaikh recorded the first statement of the victim. In para 9 we have given our reasons for placing reliance on it. It it corroborated by the medical evidence also. Hence, we regret that we cannot accept the aforesaid submission of Mr. Mane.
Lastly, Mr. Mane contended that the evidence of oral dying declaration is not trustworthy for P.W.4 Gadappa who deposed about it has made improvements in his statement recorded in the trial Court. He submitted that in his statement recorded under section 161 Cr. P.C. the witness did not state about Sarojini (victim) telling them that her husband used to always quarrel with her and beat her but, only mentioned that petty quarrels between her and her husband took place. The learned counsel also pointed out that the witness did not state in his statement under section 161 Cr. P.C. that for going to his work place, he had to pass in front of the house of the appellant. Since Gadappa P.W. 4 was the uncle of the victim we have assessed his evidence with caution. In our opinion, nothing much turns on these omissions and they were on account of the fact that the witness was too full of grief at the time when he was interrogated by the Investigating Officer; understandingly because he had lost his niece. Naturally, on account of grief he must not have given a very elaborate and composed statement to the Investigating Officer. At any rate, they do not shake the core of his testimony. As mentioned earlier, being the uncle in law of the appellant and having no axe to grind against him, he would not have falsely deposed about the evidence of oral dying declaration which incriminates the appellant.
16. No other point was pressed before us by the learned Counsel for the appellant.
17. The fall out from the aforesaid discussion is that there is no merit in this appeal and it should be dismissed.
18. In the result, this appeal is dismissed and the conviction and sentence of the appellant is confirmed. The appellant is in jail and shall serve out his sentence.