{"id":43319,"date":"2010-11-23T00:00:00","date_gmt":"2010-11-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/suresh-sadu-kamble-vs-kolhapur-on-23-november-2010"},"modified":"2017-02-10T18:54:46","modified_gmt":"2017-02-10T13:24:46","slug":"suresh-sadu-kamble-vs-kolhapur-on-23-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/suresh-sadu-kamble-vs-kolhapur-on-23-november-2010","title":{"rendered":"Suresh Sadu Kamble vs Kolhapur on 23 November, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Suresh Sadu Kamble vs Kolhapur on 23 November, 2010<\/div>\n
Bench: D.D. Sinha, V.K. Tahilramani<\/div>\n
                                          1\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                           APPELLATE SIDE\n\n\n\n\n                                                                             \n                    CRIMINAL APPEAL NO. 244 OF 2005\n\n\n\n\n                                                     \n    Suresh Sadu Kamble                    ]\n    C-894, Kolhapur Central Prison        ]     ..Appellant\/\n    Kalamba, Kolhapur 416 007             ]       Accused\n\n\n\n\n                                                    \n                  versus\n\n    The State of Maharashtra              ]\n    through Hupari Police Station         ]\n\n\n\n\n                                             \n    Kolhapur                              ]     ..Respondents\n                           \n    Mrs. Pranali Kakade - Advocate appointed for Appellant \/ Accused.\n                          \n    Mrs. A. S. Pai - Additional Public Prosecutor for Respondents - State.\n\n\n                                CORAM : D. D. SINHA AND\n           \n\n\n                                        SMT. V. K.TAHILRAMANI, JJ.\n<\/pre>\n
                             Date of Reserving the Judgment : 18.11.2010
\n                             Date of Pronouncing the Judgment : 23.11.2010<\/p>\n
    JUDGMENT : (Per : D. D. Sinha, J.)<\/p>\n
    1.    Heard the learned counsel for the appellant and the learned Additional<\/p>\n
    Public Prosecutor for the respondents – State.\n<\/p>\n
    2.    The Criminal Appeal is directed against the Judgment and Order<\/p>\n
    dated 9th December, 1997 passed by the 3rd Additional Sessions Judge,<\/p>\n
    Kolhapur, whereby the appellant came to be convicted for the offence<\/p>\n
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\n                                              2<\/span><\/p>\n
    punishable under Section 302 of the Indian Penal Code and sentenced to<\/p>\n
    suffer rigorous imprisonment for life.\n<\/p>\n
    3.    The prosecution case in nutshell is as follows:-\n<\/p>\n
          Deceased Shakuntala was wife of the appellant. At the relevant time<\/p>\n
    the appellant and the deceased were residing along with their two minor<\/p>\n
    sons. The marriage of deceased was solemnized with the appellant eight<\/p>\n
    years prior to the incident. The appellant was habituated to alcohol and<\/p>\n
    used to demand money from the deceased of and on for purchasing alcohol.\n<\/p>\n
    4.    On 11th December, 1996 deceased Shakuntala prepared dinner and<\/p>\n
    went to sleep at about 9 p.m. The appellant came to the house at about 11<\/p>\n
    p.m. There was a kerosene lamp which was burning in the house of the<\/p>\n
    appellant at the relevant time. It is the case of the prosecution that the<\/p>\n
    appellant woke up his wife Shakuntala and at that time was under the<\/p>\n
    influence of alcohol. The appellant demanded money from the deceased to<\/p>\n
    purchase alcohol. The deceased refused to pay money to the appellant.\n<\/p>\n
    Because of the said refusal, the appellant got enraged and lifted the kerosene<\/p>\n
    lamp, poured the kerosene from the said lamp in the bottle. The appellant<\/p>\n
    thereafter poured the said kerosene oil on the person of the deceased and set<\/p>\n
    her on fire with the help of the kerosene lamp which was burning in the<\/p>\n
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\n                                          3<\/span><\/p>\n
    house at the relevant time. Deceased shouted for help, appellant opened the<\/p>\n
    door and ran away from the spot.\n<\/p>\n
    5.    The neighbours of the appellant, Sadanand (P.W. 5), Arjun (P.W. 6)<\/p>\n
    and some others reached the spot of incident, entered into the house of the<\/p>\n
    appellant and tried to extinguish the fire by covering the body of the<\/p>\n
    deceased by putting blanket on her person. These persons took Shakuntala<\/p>\n
    to CPR Hospital, Kolhapur in jeep. Mr. Madhukar – The Special Executive<\/p>\n
    Magistrate (P.W. 4) recorded the dying declaration of deceased on 12th<\/p>\n
    December 1996. The Investigating Officer had drawn inquest panchnama,<\/p>\n
    spot panchnama and recorded statement of witnesses.                  Shakuntala<\/p>\n
    succumbed to the burn injuries. Post mortem examination was conducted by<\/p>\n
    Dr. Anand Mahipati Kamat (P.W. 13). The Investigating Officer had also<\/p>\n
    recorded statement of deceased on 12th December 1996 after obtaining<\/p>\n
    certificate of the doctor that the deceased was conscious at the time of<\/p>\n
    recording of the said statement, which is Exhibit 34. On completion of<\/p>\n
    investigation, charge sheet was submitted before the Judicial Magistrate<\/p>\n
    First Class. The case was committed to the Court of Sessions. Charge is<\/p>\n
    framed against the appellant under Section 302 of the Indian Penal Code.\n<\/p>\n
    The appellant pleaded not guilty and claimed to be tried. Defence of the<\/p>\n
    appellant is of total denial.\n<\/p>\n
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\n                                            4<\/span><\/p>\n
    6.    The learned counsel for the appellant has submitted that the case of<\/p>\n
    the prosecution is mainly based on the evidence of dying declaration which<\/p>\n
    was not recorded in question and answer form by P.W. 4              Madhukar, the<\/p>\n
    Special Executive Magistrate, which creates doubt about authenticity of the<\/p>\n
    evidence of dying declaration. It is further contended that the deceased<\/p>\n
    suffered more than 80% burns and therefore Dr. Pramod G. Patil (P.W. 12)<\/p>\n
    in his cross-examination has admitted that in such condition normally pain<\/p>\n
    relieving injection is given to the patient and patient gets giddiness and<\/p>\n
    remains in the said condition for a period of 4 to 5 hours. It is contended that<\/p>\n
    in the instant case the deceased suffered 80% burn injuries and therefore the<\/p>\n
    pain relieving injection must have been given to her in the hospital and<\/p>\n
    therefore it can safely be presumed that at the time of recording of a dying<\/p>\n
    declaration she was not in a fit condition to give statement. It is contended<\/p>\n
    that even if it is presumed for the sake of argument that the appellant poured<\/p>\n
    kerosene on the person of the deceased and set her on fire, however, the<\/p>\n
    deceased died after three days and therefore the act of the appellant would<\/p>\n
    be punishable not under Section 302 of the Indian Penal Code but would fall<\/p>\n
    under Section 304 (Part I) of the Indian Penal Code. In order to substantiate<\/p>\n
    her contention, reliance is placed on the decision of this Court in the case of<\/p>\n
    Dayaram Dhonduji Thakre vs. State of Maharashtra [2002 ALL MR<\/p>\n
    (Cri) 2430]. It is therefore contended that neither the dying declaration<\/p>\n
    recorded by the Special Executive Magistrate nor the statement recorded by<\/p>\n
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\n                                            5<\/span><\/p>\n
    police officer, Exhibit 34, is trustworthy and reliable.            Similarly, the<\/p>\n
    evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 also does not inspire<\/p>\n
    confidence and therefore the findings of conviction recorded by the trial<\/p>\n
    court are unsustainable in law.\n<\/p>\n
    7.    The learned Additional Public Prosecutor on the other hand has<\/p>\n
    supported the judgment and order of conviction passed by the trial court and<\/p>\n
    contended that the dying declaration recorded by the Special Executive<\/p>\n
    Magistrate (P.W. 4) is completely corroborated by the medical evidence as<\/p>\n
    well as by the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9. It is<\/p>\n
    submitted that before recording of the dying declaration, Dr. Pramod (P.W.\n<\/p>\n
    12) has examined the deceased and found her mentally fit to give her<\/p>\n
    statement. P.W. 4 Madhukar (Special Executive Magistrate) recorded the<\/p>\n
    dying declaration only after obtaining the fitness certificate from the doctor.\n<\/p>\n
    It is submitted that taking into consideration the cogent evidence of dying<\/p>\n
    declaration which is corroborated by the ocular testimony of prosecution<\/p>\n
    witnesses coupled with the medical evidence, the judgment and order of<\/p>\n
    conviction passed by the trial court is sustainable in law.\n<\/p>\n
    8.    We have considered the contentions canvassed by the respective<\/p>\n
    counsel of parties and also considered the decision cited by the learned<\/p>\n
    counsel for the appellant. In the instant case the case of the prosecution<\/p>\n
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\n                                           6<\/span><\/p>\n
    primarily is based on the dying declaration of the deceased recorded by the<\/p>\n
    Special Executive Magistrate (P.W. 4). Similarly the other set of evidence<\/p>\n
    adduced by the prosecution is of P.W. 5, Sadanand, P.W. 6 Arjun, P.W. 7<\/p>\n
    Banda, P.W. 8 Anusaya and P.W. 9 Suman to whom the deceased has made<\/p>\n
    oral dying declaration.\n<\/p>\n
    9.    Law on subject is well settled, if the dying declaration is trustworthy,<\/p>\n
    cogent and inspires confidence in that case conviction can be based on the<\/p>\n
    sole testimony of such dying declaration, in a given case even without<\/p>\n
    corroboration. However rule of prudence requires corroboration. It is also<\/p>\n
    well settled that if the dying declaration is not in question and answer form<\/p>\n
    that by itself is not enough to discard the said evidence if it is otherwise<\/p>\n
    cogent and reliable and is corroborated by the other evidence. In the instant<\/p>\n
    case P.W. 4 Madhukar (Special Executive Magistrate) recorded the dying<\/p>\n
    declaration of the deceased in the hospital, which is Exhibit 13. The<\/p>\n
    testimony of P.W. 4 Madhukar would show that he has recorded dying<\/p>\n
    declaration as per the narration of the deceased and obtained signature of the<\/p>\n
    doctor prior to recording of the dying declaration.          Perusal of dying<\/p>\n
    declaration, Exhibit 13 demonstrates that on the date of the incident at about<\/p>\n
    11 p.m. deceased was asleep. Appellant came home and was under the<\/p>\n
    influence of alcohol, woke her up and demanded money from her for<\/p>\n
    consuming alcohol. Deceased refused to oblige him and therefore the<\/p>\n
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\n                                          7<\/span><\/p>\n
    appellant poured kerosene oil in the bottle from the kerosene lamp.\n<\/p>\n
    Thereafter poured the said kerosene oil which was in the bottle on the<\/p>\n
    person of the deceased and set her on fire. The appellant thereafter ran way<\/p>\n
    from the spot. The dying declaration further demonstrates that deceased<\/p>\n
    shouted for help and therefore people residing nearby came to the spot and<\/p>\n
    extinguished fire with the help of the blanket and took her to the hospital.\n<\/p>\n
    Special Executive Magistrate has also mentioned in the dying declaration<\/p>\n
    that at the time of recording of dying declaration deceased was fully<\/p>\n
    conscious and he recorded the same as per her narration.\n<\/p>\n
    10.   The dying declaration recorded by the Magistrate has been<\/p>\n
    corroborated by the evidence of P.W. 5, P.W. 6, P.W. 7, P.W. 8 and P.W. 9.\n<\/p>\n
    The evidence of P.W. 5 Sadanand shows that on hearing noise which was<\/p>\n
    coming from the house of the appellant he went to the house of the<\/p>\n
    appellant. At that time P.W. 6 Arjun was present on the spot. This witness<\/p>\n
    pushed the door of the room which was closed from inside. The appellant<\/p>\n
    after opening the door came out of the room, at that time this witness, P.W.\n<\/p>\n
    7 Banda, P.W. 6 Arjun were present, they extinguished the fire with the help<\/p>\n
    of the rug \/ blanket. P.W. 5 enquired how she caught fire, deceased narrated<\/p>\n
    to this witness that the appellant poured kerosene on her person and set her<\/p>\n
    on fire with the help of kerosene lamp which was burning in the room.\n<\/p>\n
    While going through the cross-examination of this witness, we do not find<\/p>\n
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\n                                          8<\/span><\/p>\n
    any material which would affect the veracity of the testimony of this<\/p>\n
    witness. The oral dying declaration made to this witness by the deceased is<\/p>\n
    totally consistent with the material particulars of the prosecution case<\/p>\n
    mentioned by the deceased in the dying declaration which was recorded by<\/p>\n
    the Special Executive Magistrate.\n<\/p>\n
    11.   The evidence of P.W. 7 Banda and P.W. 9 Suman also discloses that<\/p>\n
    oral dying declaration was made to them by the deceased. Deceased<\/p>\n
    disclosed that the appellant poured kerosene on her person and set her on<\/p>\n
    fire since she refused to pay money to the appellant for consuming alcohol.\n<\/p>\n
    12.   Similarly, evidence of P.W. 8 Anusaya shows that she was awaken<\/p>\n
    after hearing noise from the house of the appellant and therefore she came<\/p>\n
    out of her house and saw the flames coming out of the house of the<\/p>\n
    appellant. She also stated in her evidence that witness Sadanand, Banda<\/p>\n
    were also present there. At that time appellant came out of the room and ran<\/p>\n
    away from the place of incident. She has further stated that deceased<\/p>\n
    sustained burn injuries and was shifted to the hospital where she died after<\/p>\n
    three days latter.\n<\/p>\n
    13.   In the instant case, the dying declaration recorded by the Magistrate<\/p>\n
    as well as oral dying declarations made by the deceased to the prosecution<\/p>\n
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\n                                            9<\/span><\/p>\n
    witnesses have been completely corroborated by the medical evidence of Dr.<\/p>\n
    Kamat (P.W. 13) who has stated in his testimony that on 15 th December<\/p>\n
    1996 he had conducted post mortem examination on the dead body of<\/p>\n
    deceased Shakuntala and noticed that she suffered 80% burns and also<\/p>\n
    opined that the probable cause of death was “Septicasemia due to 80%<\/p>\n
    burns”. Defence declined to cross-examine Dr. Kamat (P.W. 13). The dying<\/p>\n
    declaration recorded by the Special Executive Magistrate as well as oral<\/p>\n
    dying declaration made by the deceased to the prosecution witnesses are<\/p>\n
    completely consistent with each other and are also corroborated by the<\/p>\n
    medical evidence of Dr. Kamat and therefore, in our view, the prosecution<\/p>\n
    has succeeded in establishing the case of the prosecution beyond all<\/p>\n
    reasonable doubts that the appellant poured kerosene on the person of the<\/p>\n
    deceased and set her on fire.      Subsequent conduct of the appellant of<\/p>\n
    running away from the spot is also consistent with the guilt. The evidence<\/p>\n
    on record clearly shows that the fire was extinguished by the prosecution<\/p>\n
    witnesses with the help of blanket and        they took the deceased to the<\/p>\n
    hospital. It is in these circumstances, we have no hesitation to hold that the<\/p>\n
    prosecution has succeeded in bringing home the guilt of the accused for the<\/p>\n
    offence of murder.\n<\/p>\n
    14.   The decision of this Court in the case of Dayaram Dhonduji Thakre<\/p>\n
    cited by the learned counsel for the appellant, in view of the different sets of<\/p>\n
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\n                                          10<\/span><\/p>\n
    facts and circumstances involved in the present case, in our view, is of no<\/p>\n
    help to the appellant. In the said case accused threw kerosene lamp at his<\/p>\n
    wife and therefore her clothes caught fire and she received burn injuries and<\/p>\n
    died after twelve days. It is in these circumstances the conviction of the<\/p>\n
    accused in the said case under Section 302 of the Indian Penal Code was<\/p>\n
    modified to under Section 304 (Part I) of the Indian Penal Code. Whereas<\/p>\n
    in the instant case, the appellant poured kerosene on the person of the<\/p>\n
    deceased and set her on fire and the appellant also ran away from the spot<\/p>\n
    and therefore the trial court rightly held that the offence committed by the<\/p>\n
    appellant is punishable under Section 302 of the Indian Penal Code.\n<\/p>\n
    15.   For the reasons stated herein above, criminal appeal suffers from lack<\/p>\n
    of merits. Same is dismissed.\n<\/p>\n
                                                 (D. D. SINHA, J.)<\/p>\n
                                              (SMT. V. K. TAHILRAMANI,J.)<\/a><\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 16:38:12 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Suresh Sadu Kamble vs Kolhapur on 23 November, 2010 Bench: D.D. Sinha, V.K. Tahilramani 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-43319","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nSuresh Sadu Kamble vs Kolhapur on 23 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/suresh-sadu-kamble-vs-kolhapur-on-23-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Suresh Sadu Kamble vs Kolhapur on 23 November, 2010 - 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