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2004 Supreme(Bom) 1070
IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S. Mohite R.S., JJ.
Ramesh Babu Desai .... Appellant.
Versus
State of Maharashtra.... Respondent.
Criminal Appeal No. 588 of 1992, decided on 30-7-2004.
Advocates appeared :
R.V. More, for appellant.
D.S. Mhaispurkar, Addl.P.P., for respondent.
Headnote:Criminal Procedure Code, 1973 - Section 273 - Appreciation of evidence - Admissibility - Exhibiting after oral evidence of prosecution over - Dying declaration taken on record with noting thereon "As admitted during cross-examination and even in chief-examination by witness be exhibited" - Propriety of manner of exhibiting document. - Totally wrong and totally contrary to rule of evidence and against established principle of law relating to recording of evidence with reference to Section 273 of Criminal Procedure Code. The moment accused able to get injuries treated effectively and having survived, any such statement cease to be dying declaration.
Criminal Procedure Code, 1973 - Section 374 - Appeal against conviction - On basis of dying declaration - Pouring of kerosene on body of deceased setting her afire in her room - Conviction challenged - Defence of alibi came there by hearing shout and extinguished fire. - Held, prosecution unable to establish claim of deceased in dying declaration. Evidence of witnesses categorically stated presence of accused outside room of deceased at relevant time attempt on his part to extinguish fire on body of deceased corroborated by medical evidence. Prosecution not able prove link between act of catching fire on body of deceased and any act on part of accused. Nothing disclosed from defence of accused which can establish any false statement or contention by accused to use as missing link.
Criminal Procedure Code, 1973 - Section 374 - Appeal against conviction - Death by burn injuries - No possibility of deceased receiving burn injuries in course of cooking. - Held, incident occurred around 10.00 p.m. or so and till next date morning room of deceased was accessible to strangers after she was taken to hospital. No evidence that any guard was at scene of offence or any steps taken to ensure that nobody interferes with evidence. Merely because utensils were clean and kept in cupboard, it would not lead to conclusion that deceased had no occasion to have burn injuries in process of cooking.
Evidence Act, 1872 - Section 3 - Panchnama - Proof thereof. - Mere production of panchnama on record with confirmation of signature of one of panchas cannot mean confirmation either of contest thereof or about truthfulness of contents of panchnama. It is necessary for panchas to broadly state in reliable evidence, facts which they might have noticed prior to recording of panchnama and such evidence should be disclosed from testimony of panch recorded in Court.
Evidence Act, 1872 - Section 3 - Appeal against conviction - Death by burns - Lower Court held that utensils found to have been cleaned and kept in cupboard - No possibility of deceased receiving burn injuries in course, of cooking. - Held, Incident occurred around 10.00 p.m. or so and till next morning room of deceased was accessible to strangers after she was taken to hospital. No evidence to show any guard was posted at scene of offence or any steps taken to ensure that nobody interferes with evidence. Merely because utensils were clean and kept in cupboard, it would not lead to conclusion that deceased had no occasion to receive burn injuries in process of cooking.
Evidence Act, 1872 - Sections 3 and 32 - Dying declaration - Admissibility of - Exhibiting thereof after oral evidence of prosecution over - Dying declaration of accused taken on record with noting thereof "As admitted during cross-examination and even in chief-examination by witness be exhibited" - Manner of exhibiting document. - Held, it was totally wrong and totally contrary to rule of evidence and against established principle of law relating to recording of evidence engrafted in Section 273 of Cr PC. When accused was able to get injuries treated effectively and having survived, any such statement cease to be dying declaration.
Evidence Act, 1872 - Sections 3 and 32 - Dying declaration - Appeal against conviction - Stating pouring of kerosene by accused on deceased and setting her fire in her room - Conviction challenged - Defence that he was not present in room of deceased at the time of incident and he came there by hearing shout and extinguished fire. - Held, prosecution not able to prove claim of deceased in her dying declaration. Evidence of witnesses categorically stated presence of accused outside room of deceased at relevant time and attempt on his part to extinguish fire on body of deceased is corroborated by medical evidence. Prosecution not able to established link between act of catching fire on body of deceased and any act on part of accused. Neither anything disclosed from defence of accused which can establish or reveal any false statement or contention by accused to use as missing link.
Evidence Act, 1872 - Sections 3 and 154 - Hostile witness - Appreciation of evidence. - Held, merely because witnesses are declared as hostile, their entire evidence does not stand discarded and even evidence of hostile witnesses, if it finds corroboration from facts of case, same may also be taken into account while judging guilt of accused. AIR 2004 SCW 1254 - Relied on.
[Indian] Penal Code, 1860 - Section 302 - Death of lady burn injuries - Lower Court held utensils found to have been cleaned and kept in cupboard, there was no possibility of deceased receiving burn injuries in course of cooking. - Held, incident occurred in morning and till next date morning room of deceased was open to strangers after she was taken to hospital. No evidence to show any guard was posted at scene of offence or any steps taken to ensure that nobody interferes with period. Merely because utensils were clean and kept in cupboard, it would not lead to conclusion that deceased had an occasion to receive burn injuries in process of cooking.
[Indian] Penal Code, 1860 - Section 302 - Admissibility - After oral evidence of prosecution over - Dying declaration of accused taken on record noting "As admitted during cross-examination and even in chief-examination by witness be exhibited" - Whether the way of exhibiting document was proper. - Held, it was wholly wrong and totally contrary to rule of evidence and against established principle of law relating to recording of evidence engrafted in Section 273 of Cri PC. Further the moment accused was able to get injuries treated effectively and having survived, any such statement ceases to be dying declaration.
[Indian] Penal Code, 1860 - Section 302 - Conviction under - Appeal against prosecution - Based on dying declaration - Stating pouring of kerosene by accused on body of deceased and setting her afire in her room - Conviction challenged - Defence that he was not present in room of deceased at the time of incident and he came there by hearing shout and extinguished fire. - Held, prosecution could not establish claim of deceased in her dying declaration. Evidence of witnesses categorically stated presence of accused outside room of deceased at relevant time and attempt on his part to extinguish fire on body of deceased is corroborated by medical evidence. Prosecution unable to prove link between act of catching fire on body of deceased and any act on part of accused. Nothing disclosed from defence of accused which can establish or reveal any false statement or contention by accused to use as missing link.
2. This appeal arises from the judgment and order dated 24-9-1992 passed in Sessions Case No. 121 of 1991 by the Addl. Sessions Judge, Sangli. By the impugned judgment the appellant/accused has been held guilty of offence of murder of one Surayya, punishable under section 302 of the Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- and in default to suffer imprisonment for six months.
3. The accusations against the appellant were that on 16-3-1991, at about 9.00 p.m., he had a quarrel with one Surayya in her room in Diwate Chawl at Yashwantnagar, Vita, for having arranged her bed on the floor, instead of the cot in the room. The quarrel lasted for few minutes and half an hour thereafter the neighbours gathered near the said room consequent to the shouts from Surayya for help. The door of the room was found closed and it was forcibly opened whereupon Surayya came out of the room in a condition where the clothes on her body were seen to have caught fire and as soon as she came out of the room, she collapsed on the ground. The fire on her body was then extinguished and she was taken to Primary Health Centre, Vita, where consequent to the advise of the Medical Officer at the Centre, she was taken to the civil hospital at Sangli, after being provided with first-aid at the Centre. In the hospital she succumbed to her burn injuries around 6.00 p.m. on 17-3-1991. However, prior to that her dying declaration was recorded wherein she disclosed about the quarrel with the accused and the reason for the quarrel as well as the fact that the accused had poured kerosene on her body and set her on fire. Consequent to recording of the dying declaration, crime was registered under No. 48/91. On conclusion of the investigation, the appellant was prosecuted for the offence punishable under section 302 and after being tried was sought to be punished by the impugned judgment as stated above.
4. Perusal of the impugned judgment discloses that the learned Addl. Sessions Judge has held the death of Surayya to be homicidal and the accused had been held to be guilty of her murder mainly on the basis of her dying declaration, the presence of the accused in the room at the relevant time and the false defence sought to be raised by the accused as well as the statement made by the accused to the Special Executive Magistrate while the accused was admitted in the hospital along with the deceased Surayya on account of the burn injuries sustained by the accused to his hands. The learned Addl. Sessions Judge has held that though the prosecution witnesses had turned hostile, the dying declaration of Surayya inspires confidence as the records disclose that the entire formalities required to be followed before and after recording of the dying declaration were duly complied with. Added to this, the fact that the deceased was conscious to give her statement is proved from the testimony of P.W. 6, the Medical Officer and that mere absence of endorsement in that regard on the dying declaration would not render the declaration to be untrustworthy. Considering the defence that Surayya received burn injuries in the course of cooking, it has been held that the same is contrary to the defence raised by the accused regarding his absence in the room at the time of the incident as well as the contents of the panchnama in relation to the room which was in occupation of Surayya, which was confirmed by P.W. 3 Ashok Patil by admitting his signature on the panchnama and which disclosed that the utensils and the stove which were found in her room did not disclose an
