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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 631 OF 1998
Baban Bhiva Jadhav ...Appellant
Residing at :- Gutichi Wadi, Kandalepada Tal. Pen, District Raigad
Vs.
The State of Maharashtra ...Respondent
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Mr. Shivprasad P. Vernekar i/by Mr. Pratap Patil
Advocate for the Appellant
Mr. H. J. Dedhia APP for the Respondent-State
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ORAL JUDGMENT
1. Heard learned Advocate Shri Vernekar for the Appellant-accused and learned APP Shri Dedhia for the Respondent-State.
2. The only issue arisen in this Appeal is “whether the prosecution evidence is sufficient to warrant conviction for an offence punishable under Section 304, Part-II of the Indian Penal Code”.
3. The learned Advocate for the Appellant tried his level best to point out how there are inconsistencies in two dying declarations and how two witnesses have not supported the prosecution case. He has also tried to point out how there are lacunae in the investigation. I will deal with them in subsequent part of the order.
4. The learned APP supported the conviction and additionally, he submitted that after the incident the Appellant absconded for three years and that is why the charge-sheet was filed as per the provisions of Section 299 of the Criminal Procedure Code.
5. The prosecution case needs to be stated. It is as follows: a) The deceased-Laxmibai Baban Jadhav was resident of Gutichi Wadi, Tal Pen, District Raigad. The present Appellant is her husband. Both of them have five children. b) The incident took place on 24.03.1994 at about 08.00 p.m.. The deceased-Laxmibai was preparing food on earth oven. At that time, the Appellant came there under the influence of liquor and abused her. c) The Appellant threw kerosene from the can towards the deceased-Laxmibai and with the help of matchstick, he set her on fire. She suffered burn injuries. d) In the meantime, her father-Vithal Lahanya Pawar came there and extinguished the fire and took her to the Government hospital, Pen and from there she was taken to the Civil hospital, Alibaug. She sustained 60% burn injuries. She succumbed to the injuries and died on 07.04.1994. e) Initially, her statement was recorded by PW No. 4-Police Head Constable- Chandrakant Sahadeo More, attached to the Alibaug Police Station, on 25.03.1994. He sent papers to the Pen Police Station and an offence was registered under Sections 307, 504, 498-A of the Indian Penal Code. Thereafter, it was transferred to Wadkhal Police Station. f) After her death, it was converted into Section 302 of the Indian Penal Code.
6. The Appellant could not be arrested immediately after the incident. The charge-sheet was filed in his absence. He was arrested after three years on 09/04/1997. He denied the commission of the offence. He was charged for commission of only offence under Section 302 of the Indian Penal Code. He submitted two reasons for the false accusation:- First, there was a fight among the bullocks and due to that, the kerosene can fell on the body of the deceased, who was preparing the food and that is how she was engulfed in fire. His Father-in-law has agreed to pay the compensation for the death of the bullock and there was some dispute and that is why false accusation was made. Prosecution Case
7. During evidence, the prosecution has examined the seven witnesses. They are as follows:- PW No. 1 Rukmini Baban Jadhav Daughter of the deceased. She has not supported the prosecution case PW No. 2 Vithal Lahanya Pawar Father of the deceased He has not supported. PW No. 3 Suresh Mapuskar Resident Nayab Tahasildar, who has recorded the dying declaration on 28.03.1994 PW No. 4 Chandrakant Sahadeo More Police Head Constable who has recorded the statement of the Laxmibai on 25.03.1994, which is treated as first dying declaration. He was attached to Civil hospital, Alibaug. PW No. 5 Dr. Durgesh Parhe Doctor who has attended both the dying declarations and certified her fitness. PW No. 6 Suresh Nagu Sonawane Police Patil panch to the spot panchnama. PW No. 7 PSI Vineet Jaywant Choudhari PSI Investigating Officer
8. The accused has admitted few of the documents. The Post mortem report is admitted. That is why, the concerned Doctor is not examined.
9. As said above, PW No. 1-Rukmini, daughter of the deceased and PW No. 2-Vithal, Father-in-law of the accused have not supported the prosecution case. According to the prosecution, Rukmini was very much present when the incident took place, but she chose not to support the prosecution case. In fact, she supported the defence taken by the accused. She states that there was a fight in between the bullocks and due to that, the kerosene box fell on the deceased and that is why, she was caught in fire.
10. Whereas the Father-in-law-PW No. 2 has deposed some facts about the ill-treatment meted out by the Appellant to the deceased. However, charge was not framed for an offence under Section 498-A of the Indian Penal Code. However, how his daughter was engulfed in the fire, he has not deposed the fact supporting the prosecution. Though he went to the spot after hearing the quarrel, he has not described the manner of the incident. According to him, the accused was not present at that time.
11. The evidence of these two witnesses is not useful to the prosecution. On this background, the case is only based on dying declarations. The law is well settled. It is presumed that a person under the expectation of death always tells correct and true facts. However, it is also true that the maker of the dying declaration is not available to give evidence, so the accused will not get the chance to cross-examine them.
12. That is why, the Court has to be conscious while dealing with such kind of evidence. There are two aspects:- First what was stated by the deceased about the incident; and Second, abundant precaution was taken by the investigating agency.
13. The first dying declaration was recorded by PW No. 4- Chandrakant More. It was recorded on 25.03.1994 at about 03.00 a.m., that is in between intervening night of 24th and 25th March 1994. He was attached to the Civil hospital. He has taken precautions in getting endorsement of the Medical officer-Doctor Durgesh Parhe. The Doctor certified that the patient was conscious and able to give a statement. Chandrakant More during cross-examination has deposed that the dying declaration was recorded in the cabin of the Medical officer, whereas concerned Medical officer does not say so.
14. According to the learned Advocate for the Appellant, this is an inconsistency. I do not think so. The issue is, it was recorded in the Civil hospital, when the patient was admitted as an indoor patient. Mr. More has deposed what the deceased stated to him. It is true in the dying declaration at Exh. 19, there is reference of pouring of kerosene from the can by the Appellant and with the help of a match stick, she was set on fire. However, before the Court, the witness has deposed only about the pouring of kerosene. He has not said about using of the matchstick.
15. The second dying declaration was recorded by PW No. 3-Suresh Mapuskar, who is Tahasildar. It was recorded on 28.03.1994. At that time, Mr. Mapuskar also took care in obtaining the endorsement of the Medical officer, thereby certifying her fitness.
16. My attention is invited to the answer given to question no. 9 in exhibit 17. There, the deceased has said about throwing of the kerosene can (he has also deposed said fact), whereas in the earlier dying declaration, she has said about throwing of kerosene from the can. It was also pointed out that at the time of carrying out the spot panchnama, the Police have seized one can, a half burnt blouse and soil. Whereas, my attention is invited to the Chemical Analyzer report at Exh. 12 and the forwarding letter to the Chemical Analyzer at Exh.
11. It is true that the can was not sent for analysis. What was sent were half-burnt blouse, kerosene-mixed soil and plain soil. The report states that kerosene residues were detected on all the articles. While it is true that it is the bounden duty of the investigating officer to send a can for the analysis, however it was not done. However, evidence cannot be discarded. Kerosene residues were found on the blouse and in the soil which was seized from the spot. If we go to the injuries from the Post- Mortem report, there are all burn injuries and percentage is 60%. The cause of the death is ‘septicemia due to superficial and deep burn injuries’.
17. The learned Judge opined that the death was not accidental but homicidal. Except the admission given by the PW No. 1 about the kerosene was not thrown but due to fight in between the bullocks, kerosene falls the Appellant has not probabilized his defence.
18. As against this, we have the statements of the deceased, recorded by two persons that the kerosene can/kerosene was thrown on her. It is important to note that when a person who has received the burn injuries, there may be some differences about giving the details of the incident. At one stage, she has said about throwing of the kerosene from the can and at another, she has said about throwing of the can, but the fact remains that a can was thrown towards her. When a can is thrown what can be the outcome. The outcome will be the kerosene from the can is bound to fall on her. It is important to note that at that time she was preparing food near earth oven.
19. I do not find that this variance is of such a kind so as to disbelieve the details given by her to the two persons. Even when I have read the cross-examination, I find that the evidence is not seriously challenged during cross-examination, except for the denial and by asking few questions, there is no serious challenge.
20. As said above, Dr. Durgesh Parhe prior to giving an endorsement, has ascertained the fitness of the deceased-Laxmi. From his evidence it can be said that she was in a fit mental and physical condition to answer the questions put to her and to tell what has really happened.
21. The learned Judge has believed these two dying declarations. I am also inclined to believe them. So there is every reason to believe that it was a homicidal death of the deceased caused due to burn injuries. There are three circumstances:- One can (though not send to CA), half burnt clothes and soil were found (kerosene residue). Second CA report supports it and third injuries were burn injuries. These circumstances corroborate, the version of PW Nos. 3 and 4. About offence under Section 302 of the Indian Penal Code
22. It is true that the deceased succumbed to the injuries on 07.04.1994, whereas the incident took place on 24.03.1994 The learned Judge has not convicted the Appellant for the offence punishable under Section 302 of the Indian Penal Code, and rightly so, because there has to be intention to cause death or to cause bodily injury by using the match stick. There is a reference in the dying declaration recorded by the Police Head Constable More, but before the Court, he has not deposed about the same. If the matchstick could have been used there and then deceased was set on fire, then we could have definitely inferred that there was intention to cause her death. It is proved.
23. The learned Judge has convicted the Appellant for an offence punishable under Section 304, Part II of the Indian Penal Code. As said above, I find the evidence on the part of the dying declaration as reliable and trustworthy. The learned Advocate also argued that we cannot infer the knowledge on the part of the Appellant in view of the inconsistencies.
24. If the provisions of the Indian Penal Code are perused, Section 299 is the Section which lays down the meaning of culpable homicide. There are three types. In the first two types, intention is important, whereas in the third type, knowledge is important. Whereas Section 300 lays down when it can be said that culpable homicide amounts to murder and when exceptions are there, it does not amount to murder. There are five exceptions. The Appellant does not say that his case falls within any of the exceptions. Just because there is a reference that Appellant was drunk, it does not mean he has lost his control. There are four clauses to Section 300 when it is said it amounts to murder. As per clauses 1, 2 and 3 intention is important, whereas as per Clause 4, knowledge is important. So, if there is knowledge that act must be imminently dangerous and will result in death in all probabilities, then only it is an act of murder.
25. In this case, the death has not occurred immediately, but there is a time gap. When the Appellant has thrown a can containing the kerosene, particularly when the deceased was preparing food near the earth oven, certainly, he has knowledge that injuries will be caused to the deceased. Considering the fact that she has not died immediately, so Clause 4 of the Section 300 is not applicable. In such an eventuality, the act falls under part-II of Section 304 of the Indian Penal Code. As per part I, there must be an intention to cause death or injury which in this case is absent. When there is knowledge that it is likely to cause death, Part-II will be applicable. The only difference between Part-II of Section 304 and Clause 4 of Section 300 is that as per Clause 4, the knowledge must be imminently dangerous that death will occur in all probabilities; if it fails, the act will fall under Part II of Section 304 of the Indian Penal Code. So an offence under Section 304, Part II of the Indian Penal Code is made out. The sentence is imprisonment for 10 years. The learned Judge has imposed the sentence of seven years.
26. Considering the above discussion, I do not think that there is merit in this appeal. The learned Advocate has done his level best to point out certain lacunae they do not go to the root. For want of material elicited during cross-examination, I am not impressed by his arguments. The lacunae are not of such a nature as to disbelieve the prosecution case. So, no case is made out for interference.
27. Hence, the appeal is dismissed. [S. M. MODAK, J.]