Oral Judgment: (P.V. Hardas, J.)

The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default of which to undergo rigorous imprisonment for two months, by the Ad-hoc Additional Sessions Judge, Akola, by judgment dated 29/4/2005, in Sessions Trial No.176 of 2003, by this appeal questions the correctness of his conviction and sentence.

2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus:

P.W.-9 P.S.I. Ingole, who was attached to police Station Civil Lines, Akola on 8/6/2003, was informed at 0.35 hours that Police Constable Sachin of Out-post, Main Hospital, Akola had brought one dying declaration and occurrence report. P.W-9 P.S.I. Ingole accordingly registered offence vide Crime No.390/2003 under Section 307 of the Indian Penal Code and investigated the same. He accordingly arrested the accused on 8/6/2003 under arrest panchanama at Exh.33. He visited the scene of the offence and drew scene of offence panchanama at Exh.11. From the scene of offence, certain articles came to be seized. He accordingly visited the Main Hospital at Akola and contacted the Medical Officer and requested him to opine if injured Smt. Kanta Gaikwad was in a fit condition to give her statement. He had accordingly submitted a memo at Exh.30B. Along with the Medical Officer, P.W.-9 P.S.I. Ingole visited the ward and the Medical Officer examined injured Kanta and certified that she was in a fit condition to give her statement. The certificate was issued by the Medical Officer on the memo at Exh.30-A. Statement of Kanta accordingly was recorded and her thumb impression was obtained. The statement of Kanta recorded by P.S.I. Ingole is at Exh.31B. P.W.-11 P.S.I. Budhwant who was attached to Civil Lines Police Station, Akola was entrusted with further investigation of Crime No.390/03, recorded the statement of witnesses. He forwarded seized articles to the Chemical Analyzer along with requisition at Exh.39. On completion of the investigation, charge-sheet against the appellant was submitted.

It also appears that P.W.-6 Ramesh Chandanbatwe, Executive Magistrate was served with a memo from City Kotwali Police Station for recording the dying declaration of Kanta. The memo is at Exh. 26. Upon receipt of the memo, he contacted P.W.7 Dr. Shekhar Khonde and requested him to certify whether Kanta was in a fit condition to give her statement. Accordingly, the statement of Kanta came to be recorded at Exh.27-B. Since ointment had been applied to her thumbs, the toe impression came to be obtained.

3. On committal of the case to the Court of Sessions, the trial Court vide Exh.2 framed charge against the appellant for offence punishable under Section 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The prosecution in support of its case examined 11 witnesses. The trial Court upon appreciating the evidence convicted and sentenced the appellant as aforestated.

4. Before we deal with the submissions advanced before us by Shri R. M. Daga, learned Counsel for the appellant and the learned A.P.P. for the State, it would be useful to refer to the evidence of the prosecution witnesses.

5. P.W.-1 Sheela Tayde, a neighbour, P.W.-2 Sukhdeo Sarkate, brother of Kanta, P.W.-3 Laxmi Khandare, a neighbour and P.W.-4 Shewantabai Sarkate, mother of deceased Kanta did not support the prosecution and were declared hostile. The prosecution, therefore, rests principally upon the evidence of two dying declarations recorded by P.W.-6 Ramesh Chandanbatwe and P.W.9-P.S.I. Ingole.

6. P.W.-9 P.S.I. Ingole states about proceeding to Main Hospital, Akola and after ascertaining from the Medical Officer the fitness of Kanta to give her statement, recorded the statement of Kanta. In cross-examination, he has admitted that he had not made any entry in the station diary about his departure to Main Hospital, Akola for recording statement of Kanta. He has also admitted that he had not made any entry in respect of arrival at the police station. Apart from this, there is no cross-examination in respect of recording of statement of Kanta. The prosecution has examined P.W.8 Dr. Gosavi, who has stated about examining Kanta and certifying that Kanta was in a fit condition to give her statement. Thus, the evidence of P.W.-8 Dr. Gosavi and P.W.-9 P.S.I. Ingole establishes on record that dying declaration of Kanta was recorded by P.S.I. Ingole at Exh.31-B.

7. P.W.-6 Ramesh Chandanbatwe, the Executive Magistrate also states about proceeding to the Hospital on receipt of the memo and requesting P.W.-7 Dr. Shekhar Khonde to ascertain if Kanta was in a fit condition to give her statement. Upon Medical Officers certifying that Kanta was in a fit condition to give her statement, P.W.-7 Ramesh recorded the statement of Kanta at Exh.27-B. P.W.-6 Ramesh, in his cross-examination, admitted that he had not made any enquiry as to whether any relative of the patient was present around the patient when he reached Burn Ward. He has admitted that treatment was going on. He has admitted not to have enquired about the medicines which had been administered to Kanta. The prosecution has examined P.W.-7 Dr. Khonde, who states about the condition of Kanta when he had examined her. Nothing of substance has been elicited in his cross-examination to doubt that Kanta was in a fit condition to give her statement.

8. Thus, the prosecution has proved that dying declarations of Kanta were recorded. The arrest panchanama at Exh.33 indicates that both hands and left cheek of the appellant was burnt. Shri R. M. Daga, learned Counsel for the appellant, has urged before us that no reliance can be placed on the two dying declarations in the light of the contradictory nature of their contents. Shri Daga has also urged that since injured Kanta, in the dying declarations, did not explain the injuries sustained by the appellant, the dying declarations need to be discarded. Shri Daga, learned Counsel for the appellant has placed reliance on the judgment of the Division Bench of this Court in Suresh s/o Shrirang Mandawgane Vs. State of Maharashtra reported in 2010 ALL MR (Cri) 147. The Division Bench, at paragraph 5 has observed thus :-

".... One more important circumstance which goes against these dying declaration is the fact that the appellant during that night also suffered burn injuries. Dr. Gute P.W.9 during the cross-examination admitted that on 09-03-2006 not only deceased Mangalbai was admitted to the hospital but the appellant was similarly admitted to the hospital and that he had treated him for his burn injuries. This witness stated that the appellant had sustained 9% burn injuries, out of which the burns on his face were 4% and remaining 5% burns were found on right and left arms. The injury certificate at Exhibit-32 issued in respect of appellants burn injuries was thus proved. It is obvious that the appellant sustained these injuries at the time of incident. In his statement under Section 313 of the Code of Criminal Procedure, he stated that his wife tried to commit suicide and he tried to extinguish the fire and thereby he sustained burn injuries. It was, therefore, necessary for Mangalbai while she gave her dying declaration to explain as to how her husband the appellant had sustained his injuries. In both dying declarations she made no statement as to whether after setting her on fire, the appellant came near her for any purpose and came in contact of flames emanating from her person. Thus, in our view, this is a serious lacuna in the dying declarations..."

9. In the present case, the appellant does not claim that he had sustained injuries at the time of the incident. There is no evidence whatsoever that the appellant had at all sustained any injuries at the time of the incident. Even, the appellant in his statement under Section 313 of Code of Criminal Procedure, has not raised any plea that he had attempted to extinguish the fire caught by his wife either accidentally or deliberately. Thus, the ratio of the judgment cited above would not apply to the facts of the present case.

10. A relianceis also placed on the judgment of Division Bench of this Court in case of Ramesh Tukaram Rudraksha & others Vs. State of Maharashtra reported in 2010 ALL MR (Cri) 1834 to urge before us that the two dying declarations are contradictory in nature, and therefore, no reliance can be placed on them.

11. The dying declaration recorded at Exh.27-B by P.W.6 Ramesh is a cryptic dying declaration in which the deceased only states that the appellant quarreled with her and poured kerosene on her and thereafter pushed her on the burning hearth and as a result of which deceased sustained the burn injuries. In the dying declaration at Exh.31-B, which is more elaborate, the deceased had given the prelude to the incident, i.e. about going for work along with another co-worker and the appellant suspecting on the character of the deceased. Ultimately, Kanta states that the appellant poured kerosene on her and pushed her on the burning hearth, as a result of which her Saree caught fire and she sustained burn injuries.

12. Thus, in the dying declaration at Exh.31-B, Kanta has given a detailed account of the incident while the dying declaration at Exh.27-B is a shorter version i.e. a cryptic dying declaration. There are apparently no contradictions between two dying declarations as to discard the same. The report of the Chemical Analyzer at Exh.13 clearly indicates that the clothes of Kanta tested positive for kerosene. Thus the two dying declarations, which have been relied upon by the trial Court, establish the offence against the appellant beyond reasonable doubt.

13. There being no merit in the present appeal, the appeal is dismissed confirming the conviction and sentence.