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BOMBAY HIGH COURT
V.K. Jadhav, Shrikant D. Kulkarni, JJ.
Sanjay S/o Maruti Doule – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 295 of 2014
Decided on 8-9-2021
(A) Indian Evidence Act, 1872 – Section 32(1) – Dying declaration – Admissibility in evidence – Oral dying declaration is admissible in evidence and there is no legal bar – There is no requirement of law that a dying declaration must necessarily be made to a Magistrate with certification of doctor about mental fitness of patient – What is essentially required is that person who records a dying declaration must be satisfied that deceased was in a fit state of mind – Certification by doctor is essentially a rule of caution and voluntary and truthful nature of declaration can be established otherwise. (Para 19)
(B) Indian Penal Code, 1860 – Section 302 – Criminal Procedure Code, 1973 – Section 374(2) – Murder of wife – Life sentence – Deceased died of burn injuries – Case resting upon dying declarations in form of oral as well as written coupled with Section 106 of Evidence Act regarding absence of any explanation from side of appellant/accused as to how his wife sustained burn injuries in his house when both of them were alone – There is no dominant and sizable variance in two dying declarations – Deceased has stated about involvement of her husband by pouring kerosene on her person and set her ablaze – That statement is also consistent with oral dying declarations given by deceased before PWs – There are three oral dying declarations and two written dying declarations – All of them are found to be consistent about role of accused in setting his wife ablaze after pouring kerosene from a can in the house when both of them were alone – Conviction and sentence upheld – Appeal dismissed. (Paras 17, 36, 37 and 41)
Result: Criminal Appeal dismissed.
JUDGMENT
Shrikant D. Kulkarni, J.—The appellant who is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 2,000/- with a default stipulation to undergo further rigorous imprisonment for six months in the event of non-payment of fine by the Additional Sessions Judge at Vaijapur in Sessions Case No. 305 of 2012, by judgment dated 30.04.2014, this appeal under Section 374(2) of the Code of Criminal Procedure questions the correctness of the conviction and sentence.
2. The facts prosecution case in narrow compass are as under:
(a) Kalpana (since deceased) was wife of the accused. The accused was running his workshop at Waluj. Wife Kalpana and son Kishor were also helping to the accused in the workshop. The accused along with his family were residing at Chhatrapatinagar (Shenpunji) at the time of incident.
(b) According to the prosecution, the accused was addicted to liquor. He used to beat his wife Kalpana after consuming liquor. The incident took place on 11.06.2012 about 7.00 a.m. Navnath Vare (first informant), who happens to be brother-in-law of the accused, heard the shouts like (Matter in other language). He rushed to the house of accused and saw that the smoke was emitting from her house. The door of her house was closed from inside. Navnath Vare noticed that the accused was running away from his house by bending the tin of the roof of his house. Navnath Vare (first informant) entered into the house of the accused from the same roof and then opened the door of the house. He noticed that Kalpana had caught fire. He poured water on her body and tried to extinguish the fire. The first informant asked Kalpana as to how the incident occurred. Kalpana disclosed to her brother that accused along with his two friends had been to the house and had dinner. Thereafter, two friends of her husband went away. The accused was fully drunk at that time. After picking up the quarrel, accused poured kerosene on the person of Kalpana from one can and set her ablaze and thereby she received burns.
(c) Kalpana was immediately taken to Ghati hospital and admitted there. Navnath Vare lodged the FIR with M.I.D.C. Police Station, Waluj. On that basis C.R. No. 126 of 2012 came to be registered against the accused under Section 323 and 307 of the Indian Penal Code.
(d) PW-4 Sanjay Ahire (P.S.I.) issued a letter to the Special Judicial Magistrate for recording statement. Mr. Sanjay Ahire, P.S.I. also recorded statement/dying declaration of Kalpana on 12.06.2012.
(e) Kalpana succumbed to death due to burn injuries when medical treatment was going on. In view of this development, Section 302 of the Indian Penal Code came to be added. The accused came to be arrested. The Investigating Officer rushed to the scene of offence and prepared the panchanama of the scene of offence. From the scene of the offence, he seized one kerosene can, burnt pieces of clothes and one matchstick box. All the seized articles were sent to C.A. for analysis and report.
(f) After committal of the case, learned Additional Sessions Judge at Vaijapur framed the charge against the accused for the offence punishable under Section 302 of the Indian Penal Code vide Exhibit 6. Trial was commenced. The prosecution machinery has examined in all 7 witnesses, including Investigating Officer.
(g) The defence of the appellant-accused is of total denial. He defended that he has been falsely foisted upon in this case. He was not present at the time of the alleged incident. He has been implicated at the instance of first informant.
(h) The learned Additional Sessions Judge at Vaijapur, after appreciating the evidence produced by the prosecution machinery and considering the argument advanced by the learned APP and the defence counsel, was pleased to hold the appellant-accused guilty for the offence punishable under Section 302 of the Indian Penal code and sentenced to undergo imprisonment fo
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