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