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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 298 OF 2021
ALONG
IN
CRIMINAL APPEAL NO. 298 OF 2021
Kailas Laxman Chavan
Age- 28 years, Residing at
Tamkarwadi, Thangaon, Tq. Sinnar, District-Nashik
[Presently at Nashik Road Central Prison] .APPLICANT/ACCUSED
Through Senior Police Inspector, Sinnar Police Station, Taluka- Sinnar, District- Nashik. ...RESPONDENT...
Mr. Vivek M Punjabi a/w. Ms. Shweta Bhagchandani for appellant.
Mr. Y M Nakhwa, APP for State. ...
JUDGMENT
1. The present appeal is preferred by the appellant (original accused) being aggrieved by the judgment and order dated 4th February, 2021, passed by Additional Sessions Judge, Nashik, thereby convicting him for the offences punishable under Section Bhagyawant Punde, PA 302 and 498-A of the Indian Penal Code, 1860 (hereinafter for short ‘IPC’).
2. The case of the prosecution in nutshell can be summarized as under:- Shobha Chavan (deceased) was the wife of the appellant. After the marriage the accused used to doubt her character and assault her under the infuence of alcohol. The accused mentally and physically harassed Shobha by suspecting her character and subjected her to cruelty by willful conduct. On 11.10.2016 at about
9.00 pm, after coming home under the infuence of alcohol, the accused noticed one drinking pot, which was kept near the devhara (place of worship in the house). After seeing the same, the accused asked his wife if any outsider had come. However, when Shobha (deceased) told the accused that the drinking pot was kept by the accused himself, the accused got annoyed and abused her. Thereafter, he poured kerosene on the person of Shobha and put her ablazed. Thereafter, after 4 to 5 days, while being treated in the hospital, Shobha (decreased) expired. In the meantime, on the report of the informant (the deceased), the offence was registered.
3. After registration of offence, investigation was carried out. Investigating offcer carried out spot panchnama (Exhibit-16), seized various articles from the spot of incident. Thereafter, on 13.10.2016, the investigating offcer arrested the accused by preparing arrest panchnama (Exhibit-51). Thereafter, she recorded the statement of witnesses and sent the seized muddemal to forensic lab along with covering letter (Exhibit-52). After completion of investigation, the investigating offcer has fled chargesheet. The Judicial Magistrate First Class, Sinnar, committed the case to the Court of Sessions, since offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions. Charge was framed against the accused for the offence punishable under Section 302 of IPC and the accused pleaded not guilty. The accused took the defence that the false case has been fled against him.
4. In order to prove its case the prosecution has examined following witnesses- Kailas Uttam Gaikwad (PW[1]), Madhavrao Kashinath Kokate (PW[2]), Khandu Ganpat Jedgule (PW[3]), Sitaram Sahadu Lokhare (PW[4]), Dr. Sonali Ashok Gaidhani (PW[5]), Nitin Ramnath Mandlik (PW[6]), Nivrutti Bhavani Chavan (PW[7]), Ashok Fakira Ahire (PW[8]) and Dr. Nikhil Somnath Saindane (PW[9]).
5. In addition to examination of aforesaid witnesses the prosecution has also relied on the various documents including spot panchnama (Exh.16), statement of informant (deceased) (Exh.20), statement dated 12.10.2016 of the deceased (Exh. 34), inquest panchnama (Exh.41), memorandum of postmortem examination (Exh.44), muddemal pavti (Exh.50), arrest panchnama (Exh.51) and C.A. report (Exh. 54).
6. After a full fedged trial, the trial Court convicted the accused for the offences punishable under Section 302 and 498-A of the IPC. Hence, this appeal.
7. Learned counsel appearing for the appellant has made following submissions-
(i) The dying declaration recorded by the Executive
Magistrate is on a printed form and is in the form of a questionnaire. Also, the questions asked by the Magistrate to the deceased have been previously framed. There is difference in the time recorded by the medical offcer. The medical offcer has endorsed that Shobha (deceased) was ft to give a statement at
12.30 pm., and another endorsement at 12.50 pm. The total time calculated for recording the said dying declaration is 62 minutes. So, even if the doctor gave an endorsement at the beginning of the said dying declaration and another at the end, the time of the said endorsement of the doctor is not correct and proper. The dying declaration at Exhibit-20 and the statement at Exhibit-34 bears only the thumb impression of the patient. Nitin Mahadik (PW[6]) in his cross examination stated that he asked the patient (deceased) whether she could sign, in reply she said that she could not sign, and therefore, took her thumb impression. Whereas, Khandu Jedgule (PW[3]) has stated in his cross examination that the deceased could sign in Marathi and she did her education till 7th standard.
(ii) The dying declaration does not bear the seal of the
Magistrate. The Executive Magistrate has stated in his cross examination that the dying declaration does not bear his seal. It is a mandatory requirement for all medical legal certifcates that the persons signature is associated with designation and the offce stamp. Hence, the signature needs to be verifed before it is accepted. Besides it should be witnesses by two persons of which one should be the doctor. The dying declaration in the form of questions and answers are disputed because dying declaration is a statement given by the dying patient in her verbatim, no questions asked nor suggested nor interpreted.
(iii) So, also there is no medical certifcate which would explain and assess the mental ftness of Shobha (deceased) while giving statement (Exhibit-34) and the dying declaration (Exhibit-20). The dying declaration at (Exhibit-20) and the statement at (Exhibit-
34) only bears endorsement of the medical offcer which states that the patient is conscious, oriented and fr to give statement, but what examinations were conducted by the medical offcer to assess the medical ftness of the deceased while giving statement are neither explained nor mentioned. The medical offcer i.e. Sonali Gaidhani (PW[5]) in her cross examination stated that while putting her endorsement on the statement and dying declaration, she has not mentioned about the details of examination carried out by her before and after recording the statement. The police hawaldar (PW[6]) has stated in his cross examination that the doctor informed him orally that the patient was in a mentally and physically ft condition to give statement. The Executive Magistrate has stated in his cross examination that he cannot say the exact nature of examination done by the doctor to ascertain the mental and physical ftness of the deceased to record the statement.
(iv) The deceased herself in her statement stated that the accused poured water on her and tried to douse the fre. Whereas, the father of the deceased has stated in his examination in chief that he met deceased and she told her that the accused poured kerosene on her and set her on fre but has also stated in his cross examination that her daughter did not tell him that the accused poured water on her and tried to douse the fre. The postmortem report mentions burns all over the body except some place i.e. over the upper limbs which means that the face and the tongue of the deceased which would have been diffcult or rather not possible for the deceased to speak, and that is why Sitaram Lokare (PW[4]) in his cross examination has stated that the deceased was having diffculty in speaking. Whereas, the doctor, hawaldar, Executive Magistrate have stated that the deceased was in a ft state to give statement. Based on the statement about the burns described over the body it is implied that the fngers are also involved. Hence, it is unlikely for the fngers to retain prints in superfcial and deep burns as described by the doctor, who conducted the postmortem. As far as the total percentage of the burns is concerned, it is true to say that there are serous discrepancies between the doctor’s description of burns over the body and the percentage estimation. Inquest by police indicate 90%, but the doctor estimate is 72%, but his description confrms 90%, the doctors appeared to have erred in calculating the burns and describing it because he says it is 72%, but his description confrms it as 90%.
(v) The other important aspect that cannot be ignored is that in cases of patient who suffered severe burns (72-90%), the patients are treated in Burn ICU, which is highly sterile area, wherein no other person other than the doctor and paramedics are allowed, to prevent nosocomial infection or external infections. Hence, in such conditions it is surprising as how police personnel or Magistrate was allowed to do the investigation or record dying declaration. Kailas Gaikwad (PW[1]), who is panch witness, in his cross examination has clearly stated that there were no recoveries as to lamp or any matchstick from the spot of incident. As per the statement given by the deceased which is recorded as dying declaration at (Exh.20), and another statement at (Exh.34) the accused with the help of their neighbours i.e. Sanjay Chavan, Kachru Chavan, Sharad Chavan and Dnyaneshwar Chavan took the deceased to the hospital at Nashik in the pickup car. However, the prosecution has not examined these four important witnesses who accompanied the accused in taking deceased to the hospital. The deceased has stated in her dying declaration and in her statement given to the police that the accused set her on fre by pouring kerosene on her. But the deceased has also stated that the accused himself poured water on her when the deceased started burning and tried to douse the fre and called the neighbours for help and then he took her to the hospital.
(vi) The deceased and her relatives have stated that the accused used to harass her mentally and physically under the infuence of alcohol. But, no complaints have been lodged by them against the accused in the past. Khandu Jedgule (PW[4]) has stated in his cross examination that he never lodged any complaint against the accused about the harassment to her daughter. Nivrutti Chavan (PW[7]), who is the relative of deceased in his cross examination stated that the accused used to assault the deceased under the infuence of alcohol and doubt her on character, but no complaint has been lodged against him in the past. The relatives of the deceased in their cross examination have stated that they were angry on the accused when the deceased told them in the hospital that the accused set her on fre. Nivruttin Chavan (PW[7]) has stated that the accused in the hospital told him that the deceased suffered burn injuries on her own and later the deceased informed them that the accused set her on fre and later in his cross examination has stated that when the deceased informed him that the accused set her on fre and all of then were very angry. Sitaram Lohakare (PW[4]) has stated that there was a dispute between the accused and father of the deceased 4 to 5 years prior to the incident. Khandu Jedgule (PW[3]), who is father of deceased in his cross examination stated that since her daughter was burnt he was very angry. In support of aforesaid contention, the learned counsel appearing for the appellant placed reliance on following reported judgments- Jayamma & Anr. vs. State of Karnataka[1], Sampat Babso Kale Vs. State of Maharashtra[2], Panchdeo Singh Vs. State of Bihar[3], Paparambaka Rosamma & Ors. Vs. State of A.P.4, Sham Shankar Kankaria Vs. State of Maharashtra[5], Chacko Vs. State of Kerala[6] and Laxman Vs. State of Maharashtra[7].
8. On the other hand, learned APP appearing for State relying upon two dying declarations at Exhibit-20 and Exhibit-34, so also oral dying declaration made before four prosecution witnesses submits that the trial Court has properly appreciated the evidence on record and arrived at correct conclusion, and therefore, this Court may not interfere in the impugned judgment and order.
9. With the able assistance of learned counsel appearing for the appellant and learned APP appearing for the State, we have carefully perused the dying declaration at Exhibit-20 recorded by Circle Offcer- Madhavrao Kokate. So far core of the prosecution case is concerned, Shobha (deceased) stated that the accused
6 (20030 1 SCC 112 poured kerosene on her body, and thereafter put her on fre. Further, she stated that the accused even tried to douse the fre by pouring water, and thereafter, the accused with the help of neighbours took her to the hospital.
10. The prosecution has examined the Medical Offcer and he stated that he had given endorsement that Shobha (deceased) was in a ft mental condition and oriented while giving dying declaration at Exhibit-20 and Exhibit-34.
11. Madhavrao Kokate (PW[2]), who recorded the dying declaration has also deposed before the Court that he has recorded the dying declaration correctly and has followed all the procedure.
12. Upon conjoint reading of evidence of medical offcer so also PW[2] and the contents of dying declaration, we are of the opinion that the trial Court has rightly placed reliance upon said dying declarations.
13. The another dying declaration is recorded at Exhibit-34. In the said dying declaration also Shobha (deceased) stated that the accused poured kerosene on her body, and thereafter put her on fre.
14. Upon careful perusal of both the dying declarations and evidence of witnesses, we are of the view that that the dying declaration at Exhibit-34 also deserves acceptance. In both the dying declarations at Exhibit-20 and 34, the testimony of the deceased is consistent that the the accused poured kerosene on her body, and thereafter put her on fre. Therefore, substratum of prosecution case that the accused poured kerosene on the person of Shobha (deceased) and set her ablaze is consistent.
15. The prosecution has examined Khandu Jedgule (PW[3]), Sitaram Lohakare (PW[4]), and Nivrutti Chavan (PW[7]). They have stated that Shobha (deceased) made oral dying declaration with them and stated about the act of the accused of pouring kerosene on the person of Shobha (deceased) and set her ablaze. Therefore, the said oral declaration made before these aforesaid witnesses corroborates with the two written dying declarations at Exhibit-20 and Exhibit-34. It has also come in the evidence of PW[3], PW[4] and PW[7] that the appellant was in habit of giving cruel treatment to the Shobha (deceased) and also used to harass her.
16. In the light of evidence of aforesaid witnesses an irresistible conclusion is that the appellant committed act of pouring kerosene on the person of Shobha (deceased), and set her ablaze. However, if prelude of said incident is carefully seen, it appears that the accused entered in the house and saw one pot near the devhara (place of worship) and suspected that some other person entered in the house and kept the pot at the said spot. However, it appears from the contents of dying declaration that wife of the appellant told him that the said pot was kept by the accused himself. However, the accused without pre-meditation, suddenly on suspicion that some other person has come to his house, lifted the kerosene can, poured the kerosene and set her wife on fre. The act of the accused was not pre-meditated or designed and at the relevant time as it has come in the dying declaration that he was under the infuence of alcohol and committed the said act. It is recorded in the dying declaration that the appellant after committing said act of pouring kerosene and setting her wife ablaze, tried to douse the fre by pouring water on the person of Shobha (deceased), and thereafter, taken her to the hospital. Therefore, keeping in view the evidence on record so also the attending circumstances, we alter the conviction from Section 302 of the IPC to Section 304 Part II of the IPC, and we impose a sentence of rigorous impressionist of 10(ten) years on the appellant-accused. Hence, the appeal is partly allowed, and disposed of accordingly.
17. In view of disposal of appeal nothing survives for consideration in the Interim Application No. 1089 of 2021. Hence, the interim application stands disposed of. (N. R. BORKAR, J.) (S. S. SHINDE, J.)