CRIMINAL APPEAL 3 of 2006 on 10 November 2001

1) Rukhmabai w/o Pandurang SonwaneAge: 65 Yrs., occu. Labour,

2) Ramawtar s/o Pandurang SonwaneAge: 23 Yrs., occu. Labour, Both R/o Virwade, Tq. Chopda,District Jalgaon... APPELLANTS(Orig.Accused nos. 1 & 2)

VERSUS

VERSUS

VERSUS

The State of Maharashtra... RESPONDENT

.....

Shri P.B.Patil Advocate for Appellants;Shri P.B.Varale APP for Respondent.

.....CORAM: P.V.HARDAS &S.P.KUKDAY,JJ.Date : 11.10.2007.

JUDGMENT (PER: S.P.KUKDAY,J.)

.Appellants are convicted of the offences punishableunder section 302 read with 34 of the Indian Penal Codefor committing murder of Rekha daughter in law ofappellant no.1. They are sentenced to suffer imprisonmentfor life and to pay fine of Rs.1,000/- each in default to suffer rigorous imprisonment for one year, by Ad-hocAdditional Sessions Judge, Amalner. This order of conviction and sentence is impugned in the present appeal.

2) Facts of the prosecution case lie in a narrow compass. Rajendra Pandurang Sonawane is serving in forest department and was living with his wife Rekha (deceased)and two children at Nasik. His father Pandurang, motherRukhmabai (Appellant no.1) and brothers Nanabhau andRamavtar (Appellant no.2) were jointly living at theirnative place Virwade. The deceased had come to Virwadefor Dassera. On 10th November, 2001 at about 8.00 or 8.30p.m. there was a quarrel between her and Rukhmabai as thedeceased did not allow daughter of Ramavtar to play on thebed. On his return to the house Ramavtar quarreled withthe deceased. Mother and son then beat her. She somehowextricated herself from the situation and slept inside thehouse. At about 3.00 or 3.30 in the night of 11th,appellant no.1 sprinkled kerosene on her person. Thedeceased woke up when the kerosene touched her skin, tofind both the appellants sanding near her. Appellant No.2ignited match stick and threw it on her person. Thedeceased started shouting as her clothes caught fire. Inresponse, her brother in law Nanabhau came to her rescueand doused the fire. he then took the deceased to CottageHospital at Chopda with the assistance of neighbours. Atthe hospital medical officer Dr. Sarvayya (P.W.5) treatedher and informed Chopda Police of the medico legal case.In response ASI Nana Bagul (P.W.3) visited the CottageHospital and on the assurance of the medical officer thatthe deceased is in a fit condition to make a coherentstatement, recorded statement of the deceased (Ex.30) in

his presence during 5.00 to 5.30 in the morning. On thebasis of this statement offence came to be registeredagainst the appellants under sections 307 read with 34 ofthe Penal Code and the investigation was taken over by APIDeshmukh (since deceased). The investigating officerensured that requisition letter is sent to the ExecutiveMagistrate for recording dying declaration of the deceasedbut her statement could not be recorded by the ExecutiveMagistrate as the deceased was shifted to Civil Hospitalat Jalgao for treatment. The investigating officer thusintimated Zilla Peth Police to make arrangements forgetting the statement of deceased recorded by theExecutive Magistrate. However, no action was taken byZilla Peth Police. The investigating officer visited thescene of occurrence on the same day and attached pieces ofnylon clothes of the deceased under panchanama of thescene of occurrence. He then arrested the appellants.The deceased succumbed to the injuries sustained by her on20th November 2001. As a sequel, the penal section 307was changed to section 302 of the Penal Code. Policeofficer attached to Hospital Chowky of Zilla Peth PoliceStation Jalgaon; recorded A.D.No.0/2001 and held inqueston the dead body (Ex.25). The dead body was then sent forpostmortem. Dr. Surwade (not examined) performed autopsyand prepared postmortem report (Ex.27, admitted by thedefence) opining that the deceased died due to 63% burns.

On completion of the investigation the appellants came tobe charge sheeted.

3) At the trial appellant no.1 pleaded falseimplication. According to her Ramavtar (Appellant no.2)was residing separately from them in the village and hadgone out for work. On the fateful night, the deceased whohad come for the festival, was sleeping inside the houseand she was sleeping in the court yard of the house withher husband, son Nanabhau and children of the deceased.At about 3.00 o’ clock they heard cries of the deceasedand ran inside the house. Neighbours had also come totheir house on hearing the cries of the deceased. All ofthem extinguished the fire. They found that the deceasedwas unconscious and the lantern hanging on the wall waslying on the floor in broken condition. They immediatelytook the deceased to Cottage Hospital at Chopda fortreatment.

4) Appellant no.2 also pleaded innocence. He claimedthat he is residing separately from his parents. On10.11.2001 he went out for the work of loading cotton inthe truck for Rajendra Surana with other workers andreturned on the next day at about 10.00 a.m. and wasinformed of the incident. He then immediately went to thehospital. Appellant no.2 has examined Rajendra Surana (D.W.1) to establish his alibi.

5) In support of its case the prosecution examinedfive witnesses. The present case entirely rests on thedying declaration recorded by ASI Nana Bagul (P.W.3). Onreceipt of the requisition from PSO, ASI Bagul visitedCottage Hospital, verified from the medical officer thatthe deceased is in fit mental state to make a coherentstatement and recorded her statement in his presence. Thedeceased mentioned in her statement that at about 8.00 or8.30 p.m. appellant no.1 quarreled with her as she didnot allow daughter of appellant no.2 to play on the cotdue to likelihood of her soiling the bed. On return ofappellant no.2 both the appellants subjected her tomerciless beating. She some how extricated herself andslept inside the house on that night. At about 3.00 o’clock in the night she woke up on sensing wetness of theclothes to find both the appellants standing near her.Appellant no.1 had sprinkled kerosene on her person;appellant no.2 ignited a match stick and set her on fire.In response to her cries Nanabhau extinguished the fire.She was then taken to the hospital. In the crossexamination ASI Bagul categorically stated that heobtained endorsement of the medical officer on the sheetof paper used for recording dying declaration before thecommencement of recording the statement.

6) Autopsy surgeon Dr. Sarvayya (P.W.5) stated thatafter admission of the deceased to the hospital at about4.15 a.m. he informed Chopda Police of the MLC case.Police officer approached him at about 5.00 a.m. Theywent to the ward and asked the relatives of the deceasedto leave the place. He then examined the patient andfound that she is in a fit state of mind and well orientedto make a statement. After his examination of the patientthe officer recorded statement of the deceased in hispresence. After completion of the recording of thestatement he again examined the patient at about 5.30 a.m.and found her to be in fit mental state. He thus madeendorsement on the dying declaration. The patient wasthen referred to Civil Hospital, Jalgao. In the crossexamination the autopsy surgeon conceded that theendorsement regarding fitness of the patient was made atthe end of the proceedings.

7) Nimba Garbad Koli (P.W.4) stated that the deceasedwas living with both the appellants and her father in law.After receiving telephonic message he went to the hospitalwith his wife and others. At the hospital the deceasedtold him that at about 3.00 o’ clock in the nightappellant no.1 poured kerosene over her person andappellant no.2 set her on fire. In the cross examination Nimba (father of deceased) exhibited hostility bycontradicting his statement in the examination in chiefthat appellants were living jointly by conceding (i) thatappellant no.2 was residing separately from his parents(ii) that statement of the deceased was recorded by thepolice in his presence and that the deceased had notdisclosed to police why she was set on fire (iii) thatboth hands of the deceased were bandaged. He alsopersisted in maintaining that the deceased had notdisclosed why she was set on fire though he made inquiriesregarding the cause of occurrence.

8) Rajendra Surana ( D.W.1) stated that he employedeight labourers including appellant no.2 in the evening at6.00 p.m. for loading cotton in the truck hired fromtransporter. The truck was loaded at Virwade and then atKhardi till 8.00 a.m. on the next day. On his return toVirwade he came to know that Rekhabai died due to burningat Virwade. In the cross examination, Rajendra concededthat he does have documents in his possession to show thathe purchased cotton from the cultivators and hired a truckfor loading this cotton. He further conceded that he hasdocuments to show that he paid wages to the labourers buthas not filed these documents on record.

9) At the conclusion of the trial, the Sessions Judge found that the dying declaration of the deceased inspiresconfidence. He further found that the defence versionpropounded by appellant no.1 is false and appellant no.2has failed to establish his alibi. In conformity of thisfinding learned Sessions Judge convicted the appellants ofthe offence punishable under section 302 read 34 of thePenal Code and sentence them as stated earlier.

10) Main plank of the argument of learned counsel ShriP.B.Patil for the appellants is that the dying declarationrecorded by Police Officer deserves to be excluded fromconsideration as no steps were taken for getting the dyingdeclaration recorded through the Magistrate though thedeceased was alive for about ten days after theoccurrence. Referring to the admission given by father ofthe deceased that statement of his daughter was recordedat Jalgao hospital in his presence, learned counselcontends that adverse inference be drawn against theprosecution for suppression of material evidence.According to learned counsel apart from these infirmitiesthe fact that thumb impression of the deceased could nothave been obtained on the dying declaration, the fact thatappellant no.2 was living separately from his parents andwas not in the village; impair evidentiary value of thedying declaration.

11) Per contra, learned APP Shri Varale supports theorder of conviction and sentence on the premise that noinfirmity can be found with the dying declaration of thedeceased proved by the prosecution.

12) First contention of learned Counsel that noreliance can be placed on the dying declaration as it isrecorded by the Police officer is based on theobservations of the Apex court and the Division Bench ofthis Court. In Dalip Singh and others V. State of Punjab(AIR 1979 SC 1173) rule enunciated in Munnu Raja andanother V. State of Madhya Pradesh (AIR 1976 SC 2199) isfollowed. In Munnu Raja (supra) Their Lordships observedin para 11 of the report that the Investigating officersare naturally interested in the success of theinvestigation. Thus, practice of investigating officerhimself recording the dying declaration during the courseof investigation ought not to be encouraged. It is forthis reason Their Lordships excluded third dyingdeclaration from consideration. Their Lordships rejectedargument based on the earlier decision in the matter ofBalak Ram V. State of U.P. (AIR 1974) SC 2165) that thesecond dying declaration made to the investigating officerbe treated as suspect. Rejecting this argument it isobserved in para 9 of the report:

".The error of this argument consists in theassumption that the dying declaration was made to aninvestigating officer. The statement, Ex.P-14, was madeby Bahadur Singh at the police station by way of a firstinformation report. It is after the information wasrecorded, and indeed because of it, that the investigationcommenced and, therefore, it is wrong to say that thestatement was made to an investigating officer. The Station House Officer who recorded the statement did notpossess the capacity of an investigating officer at thetime when he recorded the statement. The judgment onwhich the counsel relies has therefore no application."

14) The principle that in appropriate cases if therecording of the statement by the investigating officer isjustified, it can be relied upon is acknowledged by theApex Court In Kulwant Singh V. State of Punjab, (2004) 9SCC 257. In that case the deceased was unconscious fromthe beginning and regained consciousness on the fifth daywhen his statement was recorded by the investigatingofficer. In this background it is observed by TheirLordships in para 35, 36 and 37 of the report:."35. Section 32 of the Indian Evidence Act, 1872nowhere states that the dying declaration must be recorded in the presence of a Magistrate or in other words, nostatement which has not been recorded before theMagistrate cannot be treated to be a dying declaration.The fact that the investigating officer from the beginningintended to take the statement of Partap Singh is not indispute. The endorsement made by the doctor in Ext.PQ/1and Ext.PR/1 would clearly show that he had not been foundfit to make such statement. Only on the fifth day, i.e.18-06-1987, the statement of Partap Singh could berecorded.

.36. Section 32 of the Indian Evidence Act alsodoes not state that a dying declaration should be madeonly in expectation of death and in that view of thematter, the fact that Partap Singh died on 26-6-1987 aftera period of one week is of no consequence. Explanation Ito Sub-Section (1) appended to Section 32 specifies thatwhen the statement is made by a person as to the cause ofhis death, or any of the circumstances of the transactionwhich resulted in his death where cause of death of thatperson’s death comes into question would be a relevantfactor.

.37. P.W.9, the investigating officer Hukum Singhhas proved the statement of Partap Singh. He deposed thathe was fully conscious when he made the statements which were read over to him. In that view of the matter, thesaid statements are admissible under section 32 of theIndian Evidence Act."

15) In all cases dying declaration recorded by theInvestigating Officer can not be rejected merely on thatground. Whether to rely upon such a statement or notdepends on the quality of evidence and probabilities ofthe prosecution case and has to be decided on the factsand circumstances of each case. In the present case thedying declaration is not recorded by the investigatingofficer. It is recorded by ASI Bagul on gettingintimation of medico legal case from the cottage hospital.This statement is treated as FIR and the offence isregistered on the basis of this statement. In thesecircumstances, we are unable to sustain contention oflearned Counsel Shri P.B.Patil, that no reliance can beplaced on the dying declaration recorded by ASI Bagul.

16) It is next contended that the prosecution is guiltyof suppressing statement of the deceased recorded at CivilHospital, Jalgao. In view of the suppression of materialevidence, no reliance should be placed on the dyingdeclaration Ex.30. In support of this contention relianceis placed on the decision of the Division Bench of thisCourt In Prabhakar Wamanrao Salve V. State of Maharashtra

(2006 ALL M R (Cri.) 1274 to which one of us (Hardas,J.)is a party. In that case it was found that statement ofNita recorded by PSI Shaikh prior to the recording ofdying declarations Ex.23 and 34 was suppressed. It wasfurther found that dying declarations do not inspireconfidence as earlier history of accidental death wasrecorded by Dr. Sharma. In view of these infirmities itwas found that dying declarations were not reliable. Thedying declarations were not discarded merely on account ofsuppression of earlier statement recorded by PSI Shaikh assought to be canvassed by learned Counsel Shri P.B.Patil.In the present case contention that one of the statementsrecorded by Police Officer at Jalgao is suppressed by theprosecution is founded on the admission of Nimba, fatherof the deceased. Nimba has referred to oral dyingdeclaration of the deceased in his examination in chief.He further mentioned that the deceased was living with herfather in law and both the appellants. However, for thereasons best known to him, father of the deceased hasgiven admission in his cross examination that appellantno.2 was living separately from his parents. Recording ofstatement of the deceased by Police officer at Jalgaohospital is one of the other admissions given by Nimba.In view of this hostility exhibited by Nimba, no reliancecan be placed on his testimony in the absence ofcorroboration. In fact, as statement of the deceased was already recorded by the officer attached to Chopda PoliceStation having jurisdiction to investigate the offence, itis difficult for us to envisage how Jalgao Police couldhave recorded statement of the deceased. Considering thefact that Nimba has shown hostility in his crossexamination, we are not inclined to place reliance on anadverse admission given by him in the cross examination inthe absence of independent corroboration.

17) Learned Counsel has next questioned probative valueof the dying declaration, on the basis of the admissiongiven by hostile witness Dhondu Patil (P.W.1) and Nimba(P.W.4) that appellant no.2 was living separately from hisparents. After testifying that there was kerosene lampnear the door of the house, the witness denied that spotpanchanama was prepared in his presence. He was thusdeclared hostile. In the cross examination Dhondu thengave an admission that appellant no.2 was livingseparately from his parents. Once Dhondu denied hispresence at the scene of occurrence, at the time ofpreparation of spot panchanama, no reliance can be placedon the admissions given by him during his evidence.Similarly, as Nimba in his examination in chief hascategorically testified that his daughter was living withher father in law and the appellants, it is not possibleto rely on the admission given by him regarding separate residence of appellant no.2 in his cross-examination. Inthis background, we are satisfied that these witnesseswere won over by the defence. In the light of thesefacts, we are not inclined to place reliance on theadverse admissions given by them. In this view of thematter, we cannot sustain contention of learned Counselthat appellant no.2 was living separately from hisparents.

18) Learned Counsel has also made reference to thedefence adopted by the appellants during their examinationunder section 313 of the Criminal Procedure Code that thedeceased died an accidental death. We have alreadypointed out that once Dhondu denied his presence at thescene of occurrence at the time of the preparation ofPanchanama, no importance can be attached to the admissiongiven by him that there was a kerosene lamp near the doorof the house. Thus, theory of accidental death has nosupport from the material on record. We, therefore, donot find any fault with the conclusion of learned TrialJudge that the defence has failed to establish theory ofaccidental death. Referring to the fact that the deceasedhad sustained only 63% burns, the Trial Judge has rightlyconcluded that no adverse inference can be drawn from thefact that thumb impression of the deceased was obtained byPSI Bagul, on the basis of tainted evidence of Nimba that hands of the deceased were bandaged.

19) Last contention of learned Counsel for theappellants Shri Patil is in respect of alibi. LearnedCounsel would argue that evidence of Rajendra (D.W.1)deserves credence. Rajendra has made a false statementthat on his return to the village after loading of thetruck with cotton, he came to know that the deceased diedat Virwade of the burns suffered by her. Besides, thewitness admitted that he does posses documentary evidenceto show that wages were paid to appellant no.2 and otherworkers on that day but has not produced the documentaryevidence which according to his own showing was available.The Trial Judge has thus, rightly declined to placereliance on the testimony of Rajendra. In the light ofthese facts, we can not persuade ourselves to sustaincontention of learned Counsel for the appellants thatappellant no.2 has established his alibi.

20) Turning to the merits, it is by now well settledthat conviction can be founded on the sole evidence of thedying declaration. Statement of the deceased made at thetime of death is bestowed with the sanctity of oath on thepremise that at such a solemn moment the soul of dyingperson sheds all the pride and prejudices and that thedying man would not meet the maker with a lie in his mouth. On this principle, exception is made to the hearsay rule by section 32 of the Evidence Act which makesstatements made by a person as to the cause of his deathor as to the circumstances of the transaction resulting inhis death, admissible in evidence. Once the court issatisfied that what is stated by the deceased is unalloyedtruth, there can be no impediment in founding convictionon the basis of the dying declaration. This principle isreiterated by the Apex Court In Heeralal Yadav Vs. Stateof M.P.,(2006) 10 SCC 718. Dealing with this aspect, itis observed in para 7 of the report:

"7.The principle that "no man at the point of hisdeath is presumed to lie. A man will not meet his makerwith lie in his mouth" is based on sound public policy.No doubt, as the dead man would not be available for crossexamination, a duty is cast upon the court to examine thedying declaration with care and caution as to whether thedying declaration is creditworthy for acceptance. Inother words, whether it inspires confidence on the basisof which alone conviction can be recorded. Similarly, itis also an accepted principle of law that the dyingdeclaration, keeping in view the above principles in mind,if inspiring confidence could be the sole basis forconviction."

21) Considering the circumstances which were similar tothe circumstances of the present case where theprosecution witnesses had turned hostile, In Ravi V.State of T.N. (2004) 10 SCC 776 Their Lordships observed:

"3.In the presence case, the first information reportwas lodged on the basis of the statement of PW 1 who isnobody else than the wife of the deceased. According tothe first information report, four persons, including theinformant, PWs 2, 3 and 4 were eyewitnesses to the allegedoccurrence but none of them has supported the prosecutioncase in their substantive evidence in court, as such theyhave been declared hostile. Conviction of the appellantis based solely on dying declaration of the victim, whichwas recorded by a Judicial Magistrate, PW 11 in thepresence of the doctor, PW 7. It is well settled that ifthe truthfulness or otherwise of the dying declarationcannot be doubted, the same alone can form the basis ofconviction of an accused and the same does not require anycorroboration, whatsoever, in law. Therefore, thequestion to be considered is whether there was anyinfirmity in the dying declaration."

22) In the present case, PSI Bagul (P.W.3) hastestified to the procedure followed by him at the time ofrecording of the dying declaration. Medical officer Dr.

Jagdhish (P.W.5) has fully corroborated his evidence. Dr.Jagdhish has stated that relatives of the deceased wereasked to go away and the statement of the deceased wasrecorded by the Police officer in his presence. He hascertified fitness of the deceased to make a coherentstatement by making an endorsement in the margin. Learnedcounsel for the appellants referred to the admission ofPSI Bagul that the endorsement was made by the medicalofficer in the beginning of the recording and theadmission of the medical officer that he made theendorsement at the end of the recording of the statement.No sinister inference can be drawn from this anomaly.What has happened is that the endorsement is made in themargin with the noting below the signature of the medicalofficer showing that the deceased was conscious during5.00 to 5.30 a.m. This noting explains the so calleddivergence in the evidence of the medical officer and PSIBagul. Testimony of these witnesses establish that dueprocedure was followed while recording dying declarationof the deceased and the deceased voluntarily made thestatement in presence of unbiased witnesses.

23) It is admitted that the deceased was ordinarilyresiding with her husband at Nasik. She was visitingparents of her husband on the occasion of Dassera.Admittedly, she had no animosity towards her mother in law

or brother in laws. The story narrated by the deceased issimple, logical and harmonious. There is no attemptwhatsoever at exaggeration or embellishment. The deceasedhad simply stated that because she did not allow daughterof appellant no.2 to play on the bed, the appellants beather. They worked up passion and in the dead of night, sether on fire. In our considered opinion, in the absence ofmotive to falsely implicate the appellants, there can notbe any impediment in accepting this unvarnished version ofthe incident given in the dying declaration. In the lightof this, we uphold order of conviction and sentencerecorded by learned Trial Judge. In the result, theappeal fails and is dismissed accordingly. As theappellant no.1 - Rukhmabai Pandurang Sonwane is on bail,she is directed to surrender before the trial Court within a period of four weeks from today for serving remainingpart of the sentence of imprisonment.

( S.P. KUKDAY, J.)

( S.P. KUKDAY, J.)

( P.V.HARDAS, J.)

bdv/uniplex/cral3.06

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(BD VADNERE,PA)