The State Of Maharashtra vs Mrs. Kalpana

JUDGMENT ( PER KISHORE C. SANT, J. ) :-

This appeal by the State arises out of the judgment and order passed by the learned 2^nd Additional Sessions Judge, Dhule dated 01.12.2003 in Sessions Case No. 118/2002. By way of impugned judgment and order the learned Additional Sessions Judge held the respondent accused not guilty and acquitted her from the offence punishable under section 302 of the Indian Penal Code (hereinafter referred to as “I.P.C.” for the sake of brevity).

The facts in short giving rise to the present appeal are that the deceased Shital, a step daughter of the present accused-respondent alongwith her younger brother was residing with the accused and her husband. The accused was also having three children from her earlier husband. Being a step daughter, it is alleged that the accused was not liking her. On 19.06.2002 the husband of the accused left for duty and was not at home, the daughter and one was in the house. At that time the accused poured Kerosene on the person of Shital and set her on fire. Shital came out of the house by raising shouts. The neighbours rushed to Shital and extinguished the fire by pouring water. Shital was immediately rushed to the hospital at Dondaicha by father who immediately came there. The patient had received 94% burns. Looking at a condition of the patient she was shifted to Civil Hospital at Dhule. At Dhule Hospital her statement came to be recorded by an Executive Magistrate. One more statement also came to be recorded of the patient by one Head Constable. On that basis initially FIR was registered with City Police Station, Dhule under section 307 of the I.P.C. However, unfortunately, the deceased died subsequently on 22.06.2002 at 6.00 p.m. in the hospital. Therefore, the Police added section 302 of the I.P.C.

On completion of investigation, charge-sheet came to be filed. The accused was tried. In support of its case the prosecution examined total eight witnesses. The defence examined one witness. The prosecution proved both the dying declarations, panchanama and other documents. The learned Trial Judge on considering the evidence on record acquitted the accused holding that the prosecution has failed to prove the guilt beyond reasonable doubt and giving benefit of doubt to the accused. It is considered that no neighbour is examined by the prosecution.

The learned A.P.P. Smt. Jape for the State vehemently argued that, there is clinching evidence in the forms of two dying declarations against the accused those inspire confidence. Both the dying declarations are recorded when patient was in conscious state of mind. Though PW-4 is a child witness, he has clearly deposed about the incident. His statement also inspires confidence. The defence taken is totally improbable. There is strong motive behind the act. She submits that, the accused herself was having three children of her own and three step children. It is natural for her that she was not liking the step children. She submits that, the learned Additional Sessions Judge has acquitted the accused only stating that no other witnesses are examined and recorded that there is fault in the investigation. In fact, the investigation is properly conducted. Every circumstance is proved against the accused. No two views are possible on the basis of evidence laid before the Court. Only view possible is to hold accused guilty of the offence. Therefore, the appeal needs to be allowed by setting aside the acquittal. The accused be held guilty and be convicted. The learned A.P.P. relies upon the judgment in the case of State of Madhya Pradesh Vs. Dal Singh and Others^{11.! " # $ % & '}.

The learned advocate Mr. Warma for the respondent/accused vehemently argued that the learned Additional Sessions Judge has taken a possible view. The said cannot be said to be totally perverse or against the record. It has come on record by way of evidence of defence witness that the fire was extinguished by using a quilt. The said quilt is not seized. From statement under section 313 of the Code of Criminal Procedure it is clear that the accused is falsely roped in an offence at the instance of grandparents of the deceased who were not liking the accused as she married with their son, father of the deceased against their will. In the statement under section 313 the accused has clearly stated that when the incident took place she was at the house of neighbour and the deceased received injuries due to an accident while playing in the house. The deceased and the child witness were tutored by the relatives. He thus submits that since the probable view is taken by the learned Trial Court, no interference is required. He relied upon the judgment in the case of State of Maharasthra Vs. Raghunath Ramchandra Sable².

PW-1 is a Medical Officer namely Mr. Sandip Chhabu Patil from Government Medical Hospital, Dhule who conducted the post-mortem. He stated about the condition of the deceased when she was brought to the hospital. Her age is stated to be 12 years. He examined the patient and found that the burn injuries were prior to 2-3 days. He opined that the deceased died due to septicemia following thermal burns. This witness is not cross-examined by the defence. The witness proved the post-mortem notes.

PW-2 is a Medical Officer namely Mr. Prakash Bhikanrao Patil who was working at Civil Hospital, Dhule as Chief Medical Officer (C.M.O.) in whose presence the dying declaration came to be recorded by the Executive Magistrate at about 1.30 a.m. on 20.06.2002. He certified that the victim was fully conscious, oriented and in a fit condition to give statement all throughout when her dying declaration was being recorded. He also verified the condition of Shital after recording of dying declaration was complete. He stated that, the patient was conscious, oriented and was able to give statement. In the cross-examination, he accepted suggestion that on the verification of the statement Article ‘A’ there was no complete thumb impression of the deceased.

PW-3 is the Special Executive Magistrate who recorded the statement of the victim. He was working as Senior Clerk. He was delegated with the powers of Special Executive Magistrate. He stated that, on 20.06.2002 at the time of recording dying declaration which starts on 01.30 a.m., he removed all the relatives of the patient out of the ward. The Doctor examined the deceased. He endorsed that the victim was in conscious and was in condition to speak. He obtained the certificate to that effect and recorded the statement. He stated that the contents were read over to the victim after recording of the statement. After recording statement again he asked the Doctor about the condition of the patient. The Doctor certified her to be conscious and in a position to speak. He produced the original statement in the Court. The duplicate copy was already handed over to the Police. In the cross-examination, he denied the suggestion that he was not having the powers of the Executive Magistrate. He did not ask questions pertaining to accidental theory mentioned in requisition letter to victim Shital. He did not make any inquiry with the patient before recording her statement. He proved the dying declaration Exh. 31.

PW-4, Kiran Shashikant Thakare is brother of the deceased aged eight years. He stated in his evidence that, he was at home and was playing with the deceased. The accused poured kerosene on the deceased and set her on fire at about 7.00 p.m. in the evening on 19.02.2002. The deceased came outside the house. That time, father arrived at home. Other neighbours extinguished the fire by pouring water. Father thereafter took the deceased to hospital. He could not state the reason as to why mother poured kerosene on the deceased. In the cross-examination, he accepted that his step mother also had three children. In the cross, he stated that, it was his father who used to take care of himself, his brother and the deceased. On the date of incident his father had left home in the morning and he returned home in the evening. He denied the suggestion that the accused used to look after himself, his sister and his brother. He stated that after the death of the deceased he started residing with his grandfather, grandmother and uncles. He clearly denied the suggestion that there were quarrels between his grandparents and step mother. In the Court he came with his grandfather. He denied the suggestion that at the time of incident, while playing with deceased, he chased the deceased and she accidentally fallen on a burning stove and in that she sustained injuries. He accepted that, when his statement was recorded by the Police, his grandfather was present and he also narrated incident to the Police. Further, he specifically denied the suggestion that his grandfather tutored him to give statement in the Court.

PW-5, Mr. Prabhudas Piran Thakur is the Police Head Constable attached to Dondaicha Police Station. On 21.06.2002 he was directed to record statement of the deceased who was admitted in the Civil Hospital, Dhule. He also recorded a statement by taking permission from the Doctor. He stated that in the dying declaration the victim stated against her step mother and narrated that there was quarrel between herself and her step mother and on that, the victim was put on fire by the accused and the neighbours extinguished the fire and thereafter she was taken to the hospital. In the cross-examination, he accepted that, he had not mentioned timing in the statement. There was no one present near the bed of the patient when statement was being recorded. The dying declaration was not recorded in question and answer forms.

PW-6 is the Medical Officer attached to Civil Hospital, Dhule who made an endorsement that the deceased was in a fit condition when recording a statement on the dying declaration made by the Police Head Constable Mr. Prabhudas Piran Thakur. Nothing much is taken in his cross-examination. He also stated that in his presence, the Constable had asked the relatives of the patient to remain outside the ward.

PW-7 is the Police Constable attached to Dondaicha Police Station. He is examined as a carrier of the articles to Forensic Laboratory. He is not cross-examined.

Next witness, PW-8 is the Assistant Police Inspector attached to Dondaicha Police Station who visited the spot of the incident. He prepared panchanama of the scene of occurrence in the presence of panchas. He seized plastic can, match stick box, two half burnt match sticks, fragments of half burnt cloths. He collected earth smelling with kerosene from the spot of incident. He also recorded statements of witnesses. He identified the articles. He exhibited the statement Exh. 37 recorded by P.H.C. Thakur. In the cross-examination it is taken that he did not make any inquiry about the marriage of accused with father of the deceased. First wife of Shashikant was no more and he was having three children from first wife. Nothing much is taken in the cross-examination.

DW-1 Shashikant Hiraman Thakare is father of the deceased and husband of the accused. He stated that, he performed second marriage with the accused so that she would look after his children from first wife. The marriage was solemnized against the will of his parents and therefore there used to be quarrel between his parents and the accused. The parents started residing separately at Dhule. On the date of incident, he left the house at 12 in the noon with the deceased. The deceased went to school and he went on his duty. He returned at home for meal at 3.00 p.m. That time, the deceased had also come from the school. At 5.30 p.m. he was with the accused outside the house with neighbourers. When they were sitting on the Ota, a quarrel took place between deceased and her brother. The deceased came running outside home with flames. Neighbours and himself extinguished fire with quilt and she was immediately taken to the Cottage Hospital by himself. While on the way the deceased told him that she fallen on the burning stove and sustained injuries. From the Cottage Hospital she was shifted to Civil Hospital. He was mentally disturbed and therefore remained outside the hospital. The accused used to take care of all the children like her own children. In the cross-examination, he stated that, he performed second marriage immediately within a month of death of his first wife when his parents were insisting him to wait for some time to perform second marriage. After the incident, the accused started residing separately with her parents.

From this evidence, it is seen that, in both the dying declarations the deceased has clearly stated the role of the accused. So far as pouring of kerosene and setting the deceased on fire, there is consistency. Both the dying declarations bear the endorsement of the Doctors that the deceased was in a fit condition to make a statement. The spot panchanama Exh. 12 shows that there was kitchen Ota and gas near the platform (Ota). There was a plastic can containing half a litre of kerosene. Two half burnt match sticks and match box were found. There was smell of kerosene near the ground. The ground was wet. Even one half burnt handkerchief was found with the smell of kerosene. There was no kerosene stove found in the house. The story of the defence therefore cannot be believed that the deceased had fallen on the stove. On the contrary, when there is gas in the house there is no question of having a kerosene stove. Even finding of the kerosene also shows that it was brought for some purpose as when there is no kerosene stove, there was no reason for anyone to keep kerosene in the house.

So far as PW-4 is concerned, though is a child witness, it is seen that his statement inspires confidence. The Chemical Analyzer’s report shows that the earth reeking was contaminated with kerosene oil. Exh. 6 is the cement plaster, Exh. 4 is the slightly burnt torn towel and Exh. 5 are also cement plaster pieces which are collected from the scene of the crime. Thus, the burning was due to kerosene.

From the evidence of both the Doctors who examined the patient at the time of dying declarations clearly show that the deceased was conscious and in a fit state of mind to give statement. There is nothing to show that the dying declarations declarations clearly stated that, there was no one around while recording the dying declarations. The panchanama is proved. The post-mortem notes show that the deceased received 94% burns. In the present case, it is not denied that the deceased died due to burns. Only defence taken is that she fallen on the stove which is not found in the house. Though the defence witness is examined, his evidence does not inspire confidence. The deceased being elder one was 12 years and naturally she would have quarrels with the step mother. Thus, there is reason to believe that there was strong motive in the mind of the accused.

The facts thus seen are (i) both the dying declarations are consistent on the point of as to who set the victim on fire. In both the dying declarations she has clearly stated that, it is the accused who poured kerosene on her person and set her on fire. (ii) PW-4 i.e. brother of victim has also clearly stated that, when the incident took place there only victim and accused were at home. The witnesses who recorded dying declarations and the medical officers who put endorsement on the dying declarations have in clear terms stated that, when the statement was being recorded, the victim was in a conscious state of mind and was able to give statement. (iii) The defence of the accused that the victim caught fire as she ran near kerosene stove while playing with PW-4 is without any material. No kerosene stove is found in the room/kitchen. On the contrary, a gas stove was found on the platform/Ota. The defence is thus totally improbable. The defence witness is the husband of accused who is not an eye witness and he did not see actual incident. His evidence is of no use to the defence. In a statement under section 313 of Cr.P.C., no explanation is comingforth about the evidence.

The first case law needs to be discussed here is the judgment in the case of Shivaji Sahabrao Bobade And Another Vs. State of Maharashtra³. The Hon’ble Apex Court in the said judgment laid down as to what approach need be taken by the Appellate Court while dealing with an appeal against acquittal. It is held that, balance between the rule of benefit of doubt and public good needs to be maintained. It is held that, the benefit of doubt cannot be granted so liberally and Court should be cautious in giving such benefit. The Court has to see that the accused ‘must be guilty’ and not merely ‘may be guilty’. The conviction may be based on a testimony of single eye witness. While judging the evidence of a witness from rural area the Court should keep in mind that he may not give the evidence as person in urban area. He may not be in a position to give exact details. The Court, in the said case, even relied upon undocumented dying declaration. The Court thus has to see that there is absolute assurance on guilt if the finding of the acquittal is to be converted into conviction. In this case, the Trial Court had acquitted the accused. In an appeal, the High Court held the accused guilty of the offence under section 302 of the I.P.C. and allowed the appeal. The judgment of the High Court in the appeal was sustained.

In the judgment in the case of Laxman Vs. State of Maharashtra⁴, the Hon’ble Apex Court considered evidence in the form of dying declaration. It is held that, it is the duty of the Court to decide that the declarant was in a fit state of mind to make a declaration. It is also stated that, mere absence of doctor’s certification as to fitness would not, ipso facto, rendered the dying declaration unacceptable. In the said case, the doctor’s certification was absent as regards mental fitness of the declarant. The Hon’ble Apex Court, however, accepted the dying declaration by accepting the version of the person who recorded the dying declaration that the victim was in a conscious state of mind. It is held that, it is not the requirement of law that a dying declaration must necessarily be made to a Magistrate as no such statutory form is provided. It is further held that the essential requirement is that the person who records a dying declaration is satisfied that the deceased was in a fit state of mind. Considering this judgment this Court finds that, in the present case, dying declarations can certainly be relied upon and are proved beyond reasonable doubt.

In the case of State of Rajasthan Through Secretary, Home Department Vs. Abdul Mannan⁵, the Hon’ble Apex Court considered the scope of interference by the Supreme Court in an beyond reasonable doubt, the acquittal cannot be given just on some contradictions in statements of witnesses ignoring entire case of prosecution. The Court has recorded that, while interfering with the judgment of acquittal, the Court has to be cautious in taking away the right of a free citizen. It is observed in paragraph No. 15 that miscarriage of justice arising from acquittal of the guilty is no less than from the conviction of an innocent.

Paragraph No. 9 in the case of State of M.P. Vs. Bacchudas⁶ reads as under :

. It is thus miscarriage of justice is not only in a case where a person is wrongly convicted, but also when there is an acquittal in the case where there is clear evidence.

In the case of Ghurey Lal Vs. State of U.P.⁷, the Hon’ble Apex Court considered the scope of interference by the Appellate Courts in the cases of acquittal by the Trial Court. It laid down certain guidelines. In the said case, the Trial Court had acquitted the accused. The High Court set aside the acquittal on appreciation of evidence. The principles laid down in the said judgment are as under :

In the latest judgment in the case of Rajendra Vs. State of Maharashtra⁸, the Court again considered law on dying declarations. The appeal against conviction was dismissed holding that the dying declaration clearly stated about the role played by the accused. The contents of the dying declaration were proved by the prosecution witnesses. Certain inconsistencies in the evidence were held to be quiet natural and were not material affecting the sub-stratum of the statement of the victim. The Court found that there was no reason to doubt the correctness of the dying declaration of the deceased that was proved in evidence. The attending doctor had certified that the deceased was capable of narrating her statement. Paragraph No. 25 of the said judgment reads as under :

. The Hon’ble Apex Court considered the judgment in the case of Kundula Bala Subrahmanyam Vs. State of Andhra Pradesh⁹ and specifically paragraph No. 18 of the said judgment which reads as under :

In the case of P. V. Radhakrishna Vs. State of Karnataka¹⁰, it is held that, when the Court is satisfied that the statement is coherent and consistent, then there shall be no legal impediment to make it basis for conviction even in absence of corroboration. If the person recording dying declaration is satisfied that declarant is in a fit medical condition to make dying declaration then it will not be invalid solely on the ground that the condition of the patient is not certified by a doctor.

This Court also in the case of State of Maharashtra Vs. Shri. Krishnath Baburao Patil¹¹ has converted acquittal in conviction by recording that there were no two views possible on the basis of evidence laid before the Trial Court.

So far as the judgment relied upon by the prosecution in the case of State of Madhya Pradesh Vs. Dal Singh And Others (supra), it is held by the Hon’ble Apex Court that, there is no specific format or procedure for recording dying declaration is prescribed. It is held that, law does not provide as to who can record a dying declaration. The requirement is only that a person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. The certificate of the doctor is not essential in every case.

So far as judgment relied upon by learned advocate Mr. Warma for respondent in the case of State of Maharashtra Vs. Raghunath Ramchandra Sable (supra) is concerned, it was against the judgment of acquittal and the same was maintained. It was considered that the prosecution ought to have examined cousin brother of the deceased as he was referred in the dying declaration by the victim. His role was shown that he had come to rescue the victim and was instrumental in extinguishing fire. This judgment is relied upon for the purpose to show that no neighbouring persons are examined by the prosecution. The Court held that, while considering the judgment of acquittal in an appeal the Court should be slow. There is no dispute about the proposition that while considering the appeal against acquittal the Court has to be very slow in reversing the judgment.

As already considered it is clear that, when dying declaration inspires confidence and when it is clearly established that it is made in conscious state of mind and when the deponent was in a position to make a statement, it can safely be relied upon. The attending circumstances and other circumstances proved by the prosecution in the present case leaves no manner of doubt that the dying declaration is free from all the doubts. Nothing is shown that the dying declarations were made under pressure or in the presence of any near relative. The dying declarations are well supported and corroborated by the evidence of PW-4 i.e. brother of victim. Both the dying declarations are endorsed by the medical officers stating about the mental condition of the victim. Even the witnesses who recorded dying declarations have satisfied themselves about the mental condition of the victim. This Court does not find any difficulty in relying upon the dying declarations.

So far as defence is concerned, it is only tried to be shown that while playing with her brother he chased her and therefore she ran into kitchen and fallen on stove. This defence does not match with any of the evidence. In the panchanama it has come that kerosene was found on the ground and half burnt match sticks were also found. The defence is thus totally without any basis. Even no remote case is made out. The defence is not at all probable. Looking to the panchanama and other evidence, non examining of any neighbouring persons is also not fatal to the case of prosecution. The evidence of the defence is not of any use to the accused.

This Court finds that, the judgment of the learned Sessions Court suffers from incorrect appreciation. Therefore, the judgment of the learned Sessions Court calls for interference. It has given weightage only to the fact that the neighbouring persons are not examined which is not requirement of law at all. The evidence which is available on record is sufficient and clear to establish guilt of the accused.

Considering all above, this Court holds the accused guilty of the offence punishable under section 302 of the I.P.C. Since this Court has held the accused guilty the question needs to consider is of sentence. The learned advocate for the accused-respondent has made a last submission that in case this Court holds the accused guilty the minimum possible sentence be awarded as she is suffering from serious health issues and is bedridden. This Court is of the opinion to impose minimum sentence. Hence following order :

The criminal appeal is allowed.

The impugned judgment and order passed by learned 2^nd Additional Sessions Judge, Dhule dated 01.12.2003 in Sessions Case No. 118/2002 acquitting the accused-respondent of the offence punishable under section 302 of the I.P.C. is hereby quashed and set aside.

The accused-respondent is convicted for the offence punishable under section 302 of the I.P.C. and is sentenced to imprisonment for life and fine of Rs. 50,000/- (Rs. Fifty Thousand only) in default to further suffer R.I. for one year.

The period of detention pending trial and pending appeal is set off under section 428 of the Code of Criminal Procedure.

The accused-respondent is hereby granted three months time to surrender before the learned 2^nd Additional Sessions Judge, Dhule.

In the eventuality that the accused-respondent does not surrender within three months, the learned 2^nd Additional Sessions Judge, Dhule shall issue non-bailable warrant against the respondent – Mrs. Kalpana w/o Shashikant Thakare (Chambhar), calling upon her to serve the sentence.

With this, the criminal appeal stands disposed of.