AI Structured Summary
Not yet generated for this judgment
Judgment
(Per Bharati Dangre, J)
1 The appellant, the accused arraigned in C.R No. I-6/2014, registered with Rabale, MIDC police station, Navi Mumbai, was accused of pouring kerosene on his wife, Merry Arif Phansophkar and setting her on fire by use of a match stick on 13/1/2014 at 3 p.m at their Namdeo Nagar, Krishna, Nivas, Navi Mumbai. Merry succumbed to the injuries and expired on 25/1/2014.
In the wake of the accusations levelled against him, he was charged for pouring kerosene and setting her on fire intentionally and with full knowledge that his act will cause her death, and therefore, he was charged under Section 307 of Indian Penal Code. Since Merry succumbed to the burn injuries on 25/1/2024, he was charged under Section 302 of the IPC. Since the accused pleaded not guilty, the prosecution examined 12 witnesses to establish the charge levelled against him.
2 In order to establish the relationship shared by the couple as husband and wife, prosecution examined the owner of the building, Suryakant Pol as PW 1, and though he admitted that the couple used to reside on rent in the building owned by him, he told the court that he did not had any knowledge about their relationship. He was, therefore, declared hostile.
Haroon Kamble, a person residing in the neighborhood, being examined as PW 4, stated that sometimes there used to be quarrel between the accused and his wife, but he was unaware as to how deceased Merry died, and he did not possess any direct information about the incident. Another person in the neighborhood Rakesh Chaturvedi is examined as PW 5, also reiterated what was stated by PW 4.
one more witness examined by the prosecution is PW 7 Santosh Komu, who deposed that the couple used to quarrel frequently, and some days prior to the incident, a scuffle took place between them and accused Mary had broken the glass of window, and the quarrel was resolved by neighbors. However, in the cross examination, he admitted that he was not aware whether the quarrel between them was normal like other couples, but he admitted that he heard them quarrelling.
From the testimony of above witnesses, prosecution could not discern the exact nature of relationship shared by the husband and wife.
3 The charge levelled against the accused of setting Merry on fire is proved by the deceased herself, who gave two dying declarations; the first recorded by the Police Sub-Inspector - PW 12 on 14/1/2014 (Exhibit-59) at around 12.50 p.m, and the second recorded by the Executive Magistrate, Thane, PW 10 on 15/1/2014 (Exhibit-43) at 3.57 p.m.
In both the dying declarations, Merry attributed the act of setting her on fire to her husband Arif.
She deposed that after engaging her in a quibble, he poured kerosene on her person and set her on fire by igniting a matchstick, and he ran away. She categorically stated in both declarations that she poured water on herself to douse the fire, took a rickshaw to the Civil Hospital, Thane, and got herself admitted.
Merry succumbed to the injuries on 25/1/2014, and Dr. Snighda Devidas Devane, (PW 9), who conducted the post mortem noted the burn injuries to the extent of 42%, and opined that “the death was due to septicemia due to 40% cutaneous burns”.
4 The conviction of the accused Arif is based on two dying declarations, as the learned trial Judge relying upon them, in light of Section 106 of the Evidence Act, 1872 recorded that it led only to one conclusion, that the accused poured kerosene on her and set her on fire, and she died during treatment on account of the burn injuries sustained by her.
The dying declaration was considered to be trustworthy, as the Doctor certified and deposed that she was in a fit mental condition to give statement, and it was also so stated by the Executive Magistrate (PW 10), and there was no reason why they would falsely implicate the accused.
Recording that the prosecution had proved the presence of the accused at home, at the time of incident, and since the burden under section 106 of the Evidence Act must be discharged by him, explaining the circumstances in which Merry, his wife caught fire, as he was present in the house, and since this burden was not discharged by him, and no explanation was offered, the trial Judge recorded that a strong circumstances existed against the accused, that he is responsible for commission of the crime. Since both the dying declarations attributed death of Merry to the accused, a finding was rendered that he was guilty of committing an offence punishable under section 302 IPC.
5 The learned counsel Mr. Kocharekar for the appellant has invited our attention to the evidence on record, as he urged that the persons in the neighborhood have failed to prove that the relationship between the couple was turbulent, and what is brought on record was a quibble which is not uncommon for a married couple.
Mr. Kocharekar would submit that the dying declarations on which the learned trial Judge has placed reliance are not trustworthy and cannot be relied upon.
Referring to the first dying declaration (Exhibit 59),he has submitted that the said statement of the deceased is recorded by PW 12, and there is an endorsement by the Medical Officer of General Hospital, Thane at 12.50 p.m to the following effect :-
“Patient is conscious and oriented.”
However, the doctor, who has made the aforesaid endorsement is not examined as a witness.
As regards the 2nd dying declaration (Exhibit 45), it is the objection of Mr. Kocharekar that there is no certification by the doctor that the patient was fit to give the statement which was recorded at 3.57 a.m. and an endorsement that “the patient is fit to give statement”, is without any seal/identification of the Medical Officer, and this endorsement is on the communication exchanged by the Executive Magistrate with the Medical Officer (Exhibit-44/20).
6 Dealing with the said objection, we have perused the evidence of two witnesses, PW 10 the Magistrate who recorded the dying declaration and PW 2, the Medical Officer who deposed that she had certified the patient to be in a fit condition before the dying declaration was recorded by the Executive Magistrate (Exhibit-45).
PW 2, Rajni Shyamrao Khalgarkar attached to Civil Hospital, Thane, as Medical Officer deposed before the Court that she received one letter from Executive Magistrate, Thane, seeking opinion whether Merry Phansophkar is able to give statement, and she examined the patient and gave the opinion in positive, and accordingly, gave endorsement on the said letter.
On being confronted with Exhibit 20, she admitted that the endorsement is in her handwriting, and it bears her signature, and the contents of the same are true and correct.
In the cross examination, she admitted that in the endorsement, she has not noted the time when she examined the patient, nor has she put any stamp or seal, and she did not put her signature on the statement recorded by the Executive Magistrate. However, she categorically admit that “the patient was mentally sound to give statement”.
7 It is also relevant to note the deposition of Executive Magistrate (PW 10), who recorded the dying declaration of Merry (Exhibit 45). PW 10 deposed as below:-
“On 15.1.14 I recorded dying declaration of Merry Arif Phansophkar in Civil Hospital, Thane. Prior to recording the said statement, I issued letter to Medical Officer of Civil Hospital. Letter dtd. 15.1.2014 now shown to me is the same, bears my signature, contents are correct. It is marked at Exh.44. Doctor given opinion that patient is in a fit condition to give statement. Thereafter, I recorded the statement in question answer form. She stated in her statement that she used to reside with her husband only. She stated that quarrel taken place between her husband Arif Phansophkar and in that he poured kerosene over her person and set on fire by matchstick. She further stated that the said fire was extinguish by herself by pouring water over herself. She stated that she is stating voluntarily. Now dying declaration shown to me is same, it is written in my handwriting. It bears signature of Merry Phansophkar and myself. It also bears my seal. Contents are true and correct. It is marked as Ex.45.”
8 Sadanand Ghute, PW 10 was subjected to cross examination, and with reference to Exhibit 44, he admit that there was a clerical mistake regarding her name. He denied the specific suggestion that the endorsement was given by the Medical Officer in the cabin itself and also denied that the dying declaration was recorded in short form and that he did not obtain endorsement of the Medical Officer on Exhibit 45, but according to him, the opinion of the Medical Officer was on Exhibit 44. He also admit that he did not ensure examination of the patient after completion of the dying declaration through the Medical Officer.
As regards Exhibit 59, the dying declaration recorded by PW-12, which is first in point of time, being recorded at 12.50 p.m, PW 12 had deposed that before recording the dying declaration, Doctor had examined her and gave opinion that she can give statement and the endorsement of opinion was obtained on a blank paper and he started recording the statement of Merry on the same paper.
PW 12 specifically deposed as below.
“At about 13.1.2914 at 3.00 p.m her husband by uttering statement “Tu kamala jat nahis Ekde tikde Lokabarobar firat aste” poured rockel on her person and uttered the statement “Ata Me Tula Jivant Sodat nahi” and then with the help of matchstick set her on fire. Thereafter, he ran away. She also stated that she herself caught the rickshaw and came to civil hospital for medical treatment.”
He categorically deposed that Merry had stated that her husband used to harass her for money, which was required for liquor, and in September 2013, he also tried to set her on fire by pouring petrol over her, but she did not file an FIR.
PW 12 has stated that the statement given by her was read over to her in Marathi, and the same was explained to her, and thereafter, her signature and thumb impression was obtained on Exhibit 59, and he also put his signature.
9 In cross examination, PW 12 admit that in the statement recorded (Exhibit 59), the starting point of recording of the statement and completion is not indicated. He also admit that there is no mention of Exhibit 59 as to whether the thumb impression is of right or left hand. He denied the suggestion that Merry tried to commit suicide in the bathroom, and therefore, there was smell in the entire room.
10 From the two dying declarations of deceased Merry, considered to be the statement given before she demised on 25/1/2014, considered to be her last statement being accepted as a Dying Declaration under section 32 of the Indian Evidence Act, 1872. The situation which a man faces on death bed is considered to be very solemn and serene, and that is the reason, the statement made as to the cause of the death, after the death of the person becomes relevant. However, since the accused has no power to cross examine the witness, the insistence is that the dying declaration should be of such nature, that it inspire full confidence of the Court of its truthfulness and correctness, and it should be assured that the statement was not a result of any tutoring or some sort of prompting or revengeful approach, or a product of imagination.
It, therefore, becomes necessary to ascertain whether the person was in a fit state of mind and had the opportunity to observe and identify the assailant in full conscience, and by way of prudence, before recording of the statement, the mental condition of the patient deserve a certification from a medical expert.
It is not necessary that a dying declaration must be made only to a Magistrate nor there is any specified statutory form of its recording. However, the essential requirement for the dying declaration to inspire confidence is, that when the dying declaration is recorded, the giver must be in a fit state of mind.
11 Mr. Kocharekar has raised doubt on the first dying declaration recorded by PW 12 (Exhibit 59) at 12.50 p.m, merely on the ground that the doctor who has endorsed the same is not examined as a witness, we are guided by the decision of the Apex Court in case of Laxman versus State of Maharashtra,1 where the Apex Court observed thus :-
“4 Bearing in mind the aforesaid principle, let us now examine the two decisions of the court which persuaded the bench to make the reference to the Constitution Bench. In Paparambaka Rosamma & Ors. vs. State of Andhra Pradesh 1999 (7) SCC 695 the dying declaration in question had been recorded by a judicial magistrate and the magistrate had made a note that on the basis of answers elicited from the declarant to the questions put he was satisfied that the deceased is in a fit disposing state of mind to make a declaration. Doctor had appended a certificate to the effect that the patient was conscious while recording the statement, yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and was made when the injured was in a fit state of mind since the certificate of the doctor was only to the effect that the patient is conscious while recording the statement. Apart form the aforesaid conclusion in law the court also had found serious lacunae and ultimately did not accept the dying declaration recorded by the magistrate. In the latter decision of this court in Koli Chunilal Savji & Another vs. State of Gujarat 1999(9) SCC 562 it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The court relied upon the earlier decision. In Ravi Chander vs. State of Punjab 1998 (9) SCC 303 wherein it had been observed that for not examining by the doctor the dying declaration recorded by the executive magistrate and the dying declaration orally made need not be doubted. The magistrate being a disinterested witness and is a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.”
12 The aforesaid decision was followed in case of Rambai Versus State of Chattisgarh,2 where it is recorded that dying declaration cannot be rejected solely on that ground, that if the person recording the statement is satisfied that the declarant was in a fit mental condition to make dying declaration, and it would be appropriate to reproduce the observations of the Court in this regard.
“6 So far as the position of law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment of this Court reported in Laxman vs. State of Maharashtra, (JT 2002 (6) 313) wherein overruling the judgment of this Court in Laxmi(Smt.) vs. Om Prakash and ors., (2001 (6) SCC 118), it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. Be that as it may, so far as this case is concerned, that question does not arise because in the instant case PW.19, Dr. Ashok Sharma though not a doctor who treated the deceased but being the duty doctor when summoned came and examined the deceased and noted in the dying declaration itself as to the capacity of the deceased to make a dying declaration.”
13 In any case, there is another dying declaration containing a consistent statement made by the deceased Merry recorded by the Executive Magistrate at 3.57 p.m, and even the Medical Officer, as regards the said statement is examined, and deposed that she had examined the deceased and found her to be capable of giving a statement, and she admit that she had given an endorsement on the letter of the Magistrate, but there was no mention of time and it do not bear any stamp, however, in our view, it has not anyway impacted the truthfulness of the statement of Merry, accusing her husband of setting her on fire.
Amongst the two dying declarations, one is recorded by Police Sub-Inspector and other by the Executive Magistrate.
14 We do not find anything on record to suspect the bonafides of the Magistrate (PW 10), who recorded the dying declaration, and particularly the statement being recorded on being certified by PW 2, that the deceased was in a mental condition to give the statement. As far as Exhibit 59 is concerned, though there is a clear endorsement of the fitness of state of mind of the declarant only because the doctor giving the endorsement is not examined, and particularly when PW 12, had deposed that Merry was found to be fit, and he recorded the statement as given by Merry who had sustained burn injuries, we do not find any lacuna in the two dying declarations, and we are satisfied that the dying declaration (Exhibit 59) and dying declaration (Exhibit 45) are made by the deceased, when she was in a fit mental condition, and was fully conscious of what she was saying.
On both the occasions, she had attributed the act of setting her on fire to her husband in a very emphatic way, and the consistency in the two dying declarations is sufficient to establish the guilt of the accused. The two dying declarations are consistent with each other and sufficient to establish the guilty of Arif the accused. His involvement has clearly surfaced on the record through the two dying declarations, which are exception to the Rule against admissibility of hear-say evidence.
15 The prosecution, having established that on both the occasions when the statement was recorded, she was in a fit mental state, and was conscious to give her statement, and we find that the statements given by Merry inspire confidence, and there was no tutoring or prompting and once we are satisfied with its correctness and genuineness, there is no reason to doubt the said statements.
16 The conviction of the accused based upon the dying declaration, therefore, do not call for any interference, as we find that the conviction is based on the same and imposition of sentence upon the finding of conviction, also do not warrant any interference.
Upholding the impugned judgment dated 19/04/2017, the Appeal is dismissed.