Suresh Ganpat Makhamale vs State of Maharashtra

V.K. Tahilramani, J.—This appeal is directed by the appellant-original accused against the judgment and order dated 28.03.2006 passed by the learned 3rd Ad hoc Additional Sessions Judge, Pune in Sessions Case No. 435 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant u/s 302 of Indian Penal Code and sentenced him to imprisonment for life and to pay fine of Rs. 2000/- i.d. S.I. for two months. The prosecution case briefly stated, is as under:--

(i) Deceased Aruna was the first wife of the appellant. She was residing at Talegaon Dabhade, Taluka Maval, District Pune. Thereafter, the appellant got married to one Sarala. On 23/7/2004 at 9.30 p.m. appellant came home and told Aruna that he does not want her and she should die. Saying this, the appellant poured kerosene on Aruna and set her on fire. Aruna was taken to Sasoon Hospital. There Aruna gave dying declaration. P.W. 2 Dr. Balwant was the medical officer on duty. P.W. 3 police head constable Jadhav was on duty at Sasoon hospital. He received information that one Aruna was admitted in ward No. 25 with almost 100% burn injuries. Hence, he went to P.W. 2 Dr. Balwant and asked him whether the patient was in fit condition to give her statement. P.W. 2 Dr. Balwant examined her and found that she was conscious and had presence of mind in relation to the time, place and person and she was in a condition to speak. Hence he informed police head-constable Jadhav that she was in a state to give a statement. Then P.W. 3 Jadhav recorded the dying declaration of Aruna. The said dying declaration was treated as FIR (Exh. 27). In the said dying declaration Aruna stated that she was residing at Talegaon Dabhade, Taluka, Maval, District Pune along with her son. The appellant got married to one Sarala. On 23/7/2004 at 9.30 p.m. appellant came home and told Aruna that he does not want her and she should die. Saying this, the appellant poured kerosene on Aruna and set her on fire. Her son and neighbouring people extinguished the fire and took her to the hospital. P.W. 2 Dr. Balwant examined Aruna when she was brought to the hospital. He found that she had sustained 95% burn injuries and she gave history of homicidal burns by her husband at about 9.00 to 9.30 p.m. on 23/7/2004. Aruna told doctor that appellant poured kerosene on her body and set her on fire. The neighbours and relatives extinguished the fire and took her to the hospital. Dr. Balwant recorded history given by Aruna in the case papers (Exh. 24). Aruna expired on 24/7/2004 at about 10.15 p.m. P.W. 7 Dr. Gedam conducted post-mortem on the dead body of Aruna. He had found that she had sustained 95% burn injuries and cause of death was shock due to severe burns.

(ii) After completion of investigation, the charge-sheet came to be filed. In due course the case was committed to the Court of Sessions.

Charge came to be framed against the accused/appellant u/s 302 of Indian Penal Code. The accused/appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the learned Ad hoc Additional Sessions Judge, Pune convicted and sentenced the appellant as stated in Para 1 above. Hence, this appeal.

We have heard the learned Advocate appointed for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Ad hoc Additional Sessions Judge, Pune and the evidence on record, for the reasons stated below, we are of the opinion that the appellant poured kerosene on his wife Aruna and set her on fire.

The conviction is based on the dying declaration given by Aruna to P.W. 3 police head constable Jadhav. P.W. 3 Jadhav stated that he was on duty at Sasoon hospital. He received information that one Aruna was admitted in ward No. 25 with almost 100% burn injuries. Hence, he went to P.W. 2 Dr. Balwant and asked him whether the patient was in fit condition to give her statement. P.W. 2 Dr. Balwant examined her and found that she was conscious and had presence of mind in relation to the time, place and person and she was in a condition to speak. Hence he informed police head-constable Jadhav that she was in a state to give a statement. Then P.W. 3 Jadhav recorded the dying declaration of Aruna. The said dying declaration was treated as FIR (Exh. 27). In the said dying declaration Aruna stated that she was residing at Talegaon Dabhade, Taluka Maval, District Pune along with her son. The appellant got married to one Sarala. On 23/7/2004 at 9.30 p.m. appellant came home and told Aruna that he does not want her and she should die. Saying this, the appellant poured kerosene on Aruna and set her on fire.

P.W. 2 Dr. Balwant was on duty as medical officer in Sasoon Hospital. He has stated that Aruna had sustained 95% burns. He gave history of homicidal burns by her husband at about 9.00 to 9.30 p.m. on 23/7/2004. Aruna told Doctor Balwant that appellant poured kerosene on her body and set her on fire. The neighbours and relatives extinguished the fire and took her to the hospital. Dr. Balwant recorded history given by Aruna in the case papers which is at Exh. 24.

We find both the dying declarations of Aruna to be cogent and consistent. We find that they inspire confidence. Hence, we have no hesitation in relying on the same.

It is well settled that a dying declaration can be the sole basis for conviction. The situation when a person is on death bed is solemn and serene when he is dying and the situation is grave and solemn. Given the situation in which the dying person is placed, in such situation the person is expected to state the true facts. This is the reason in law to accept the veracity of the statement of such person giving the dying declaration. It is for this reason, the requirement of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. It is worthwhile to note that the accused has no power of cross-examination. Therefore, this is a reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind to state the facts and had a clear opportunity to observe and identify the assailants. When the Court is satisfied that the dying declaration was voluntary, undoubtedly it can base its conviction without any further corroboration. Therefore. it is clear that a dying declaration can form the sole basis of conviction.

No doubt conviction can be based solely on dying declaration. However, we find that in the present case, there is one more corroborating circumstance which brings out the complicity of the appellant in the crime. When the appellant came to be arrested, panchanama Exh. 16 came to be drawn. From panchanama it is seen that clothes of the appellant were slightly burned. This circumstance also corroborates the prosecution case.

We have already observed earlier that the dying declaration inspires confidence. In this view of the matter, we find no merit in the appeal. Appeal is dismissed.

Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant-original accused. Writ of order be expedited. At this stage, we must record our appreciation for Mr. Arfan Sait, Advocate appointed from High Court Legal Services Committee, Bombay to represent the appellant. We found that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs. 2500/-. The said fees be paid to Advocate Mr. Arfan Sait within three months from today. Appeal dismissed.