Tukaram Dadu Savat vs State of Maharashtra

R.P. Desai, J.—The Appellant was charged and tried for an offence u/s 302 of the Indian Penal Code in Sessions Case No. 228 of 1982 in the Court of Sessions for Greater Bombay. By his judgment and Order dated 23.2.1984, the learned Additional Sessions Judge, Greater Bombay convicted the Appellant u/s 302 of the Indian Penal Code and sentenced him to suffer R.I. for life. It is the said Judgment and Order of conviction and sentence which is under challenge in the present Appeal.

Briefly stated, the prosecution story runs as under:

The deceased Smt. Kusumbai Tukaram Sawant and the accused were married in the year 1971. The couple had three children viz : Ajit, Vasanti and Sunil. According to the prosecution, the accused suspected the fidelity of the deceased. There used to be frequent quarrels between the two of them. On the day of incident i.e. on 12.10.1981 the accused returned home at about 4.00 p.m.. He. went to attend a funeral. He returned at about 7 p.m. and started quarreling with the deceased. At about 9.45 p.m. he poured kerosene on the deceased and set her on fire. The deceased was removed to Cooper Hospital in a taxi by her brother-in-law and others. Within a short while the accused followed them to the hospital.

P.W. 2, P.C. Waingankar was on duty in the Casualty Department of the Cooper Hospital. Between 10.30 p.m. to 10.45 p.m. on 12.10.1981 the deceased was brought to the Casualty Department in a fully burnt condition P.C. Waingankar asked the deceased as to what had happened to her, to which she replied that her husband had poured kerosene on her and set fire to her with a match-stick. She stated that her husband suspected her fidelity. P.C. Waigankar then made entry to that effect in entry register being Exh. 9. He immediately gave the message to Vile Parle Police Station pursuant to which. P.I. Khot came to the Cooper Hospital. P.W. 4, Dr. Parmar examined the deceased at about 10.55 p.m. According to Dr. Parmar, the deceased was brought by the accused and the deceased gave history of alleged homicidal burns due to kerosene by her husband. Dr. Parmar found 100% superficial to deep burns. He made the relevant entry in the casualty medical register at 10.55 p.m.

P.I. Khot attached to Vile Parle Police Station upon receipt of information from P.C. Waigankar came to Cooper Hospital and rushed to the ward where the deceased was admitted. He found the deceased to be conscious. He started recording the statement of the deceased at 11.15 p.m. on 12.10.1981. According to P.I. Khot as the statement was in progress the doctor came there to attend on her. The doctor left the bed and P.I. Khot completed recording of the statement and took an endorsement of Dr. Tushar Doshi on the statement. He obtained thumb impression of the deceased on the said statement. According to P.I. Khot, the deceased stated that her husband was suspecting her fidelity and at 9.45 p.m. he had poured kerosene on her sari and set it on fire. The said statement came to be treated as F.I.R. and the investigation proceeded on the basis of the same. According to the prosecution Dr. Doshi (P.W. 5) examined the deceased at 11.30 p.m. on 12.10.1981 and the deceased told him that she had sustained burns due to pouring of kerosene at home by her husband Dr Shahaji Deshmukh (P.W. 9) also examined the deceased. According to the prosecution, the deceased told him that her husband had poured kerosene on her and burnt her and that is why she sustained burn injuries.

P.I. Khot contacted Honorary Metropolitan Magistrate, Shri V.V. Ranade (P.W. 3) for the purpose of recording the dying declaration of the deceased. P.W. 3, Vithal Ranade visited the Cooper Hospital. He recorded the dying declaration of the deceased. When he asked her as to, how she had received the burns, the brief reply of the deceased was ''kerosene''. To the question as to, who had put the kerosene on her, the deceased replied it was her husband, because he was suspecting her. According to Shri Ranade, he found the deceased conscious and in a position to understand the question and he recorded the dying declaration satisfying himself that the deceased was conscious and in a position to understand the questions. Dr. Doshi made an endorsement indicating that she was conscious and in a position to give the dying declaration. The deceased succumbed to the injuries at 2.10 a.m. on 13.10.1981. Dr. Nagpurkar (P.W. 7) conducted the post-mortem and he opined that the cause of death was shock clue to 100% burns. Upon completion of the investigation, the accused came to be charged as aforesaid.

In support of its case the prosecution examined as many as 9 witnesses. The defence of the accused as indicated in his 313 statement was that the he was falsely involved. According to him the deceased was suffering from T.B. and was under treatment. She was taking treatment from one Dr. T.J. Shah. In February or March 1981 the deceased had conceived and she had to be aborted as per the medical advice. Thereafter, the attitude of the deceased towards the accused changed. In 1981 the deceased had attempted to commit suicide. According to the accused, on the relevant day the accused returned to his house at about 8 p.m. He enquired as to whether the stock of medicines was exhausted. The deceased did not give any reply. The accused asked her as to why she had not taken medicines. The deceased went inside the kitchen, she came out and requested the accused to take dinner. The accused again asked her to why she was not taking medicines. He told her that if she did not reply, he would not have his dinner. The deceased then went inside the kitchen. She again came out of the kitchen and requested the accused to take dinner. The accused repeated the same question. The deceased told him that even if was not inclined to take dinner, she would have her dinner. She went in the kitchen to bring milk for children. Within a short while she came out of the kitchen in a burning condition. The accused started shouting and tried to extinguish the fire. He put gaddi on her and the fire was extinguished. His brother and the neighbour lifted her in a chaddar and put her in a taxi and took her to the hospital. According to the accused, he followed them in another taxi in short while. The accused was taken to casualty ward as she had received burn injuries and was treated there for them. According to the accused, the deceased had committed suicide and the charge levelled against him was false.

The defence examined 4 witnesses D.W. I, Dr. Bharat Pandya is the R.M.O. working in Cooper Hospital who had deposed about the injuries sustained by the accused, child witness D.W. 2, Ajit Sawant has, in his evidence given an account of the incident in question. The defence has also examined Dr. Sudhakar Sane (DW 3) and Dr Jinchand Shah (DW 4), Medical Officer, Police Dispensary, Andheri, who was treating the deceased for T.B.

Upon perusal of the evidence adduced by the prosecution as well as by the defence and upon considering the rival contentions, the learned Addl. Sessions Judge convicted the accused as aforesaid. In the present appeal the said judgment & order is challenged.

At the outset, it must be stated that the prosecution story entirely rests on dying declarations alleged to have been made by the deceased and there is no eye witness to the actual occurence of the incident. Smt. Bhonsale, the learned Counsel appearing for the Appellant contended that the so called dying declaration does not inspire confidence. She stated that in appreciating the evidence adduced in the present case, the back-ground of the case will have to be kept in mind i.e. the, relationship between the accused and the deceased was strained. While the deceased has stated in the so called dying declaration that the accused was suspecting her fidelity, the accused has come out with the case that the deceased was suffering from T.B. and that she was not taking proper treatment for the same and there used to be frequent quarrels between the two of them on account of the same. Smt. Bhonsale contended that keeping this back-ground in mind, the evidence in the case will have to be appreciated in as much as, assuming that is found that in fact, the deceased had made any dying declaration, the chances of false implication cannot be ruled out. Smt. Bhonsale contended that the accused had admittedly received burn injuries and there is no explanation whatsoever coming from the prosecution about the said injuries nor is there any mention about the same in the dying declaration. She also contended that the reasons given by the trial Court for not relying on the evidence adduced by the child witness are far from satisfactory. She contended that the prosecution has failed to prove its case beyond reasonable doubt and since the defence had probablised its case the accused deserves to be acquitted. As against this, Shri V.T. Tulpule, the learned Government Pleader contended that the order of conviction deserves to be confirmed.

As already observed, since the prosecution has not examined any eyewitness, the prosecution case rests on the dying declaration. P.C. Jagannath Waigankar, who was in Casualty Department of the Cooper Hospital at the relevant time has stated that the deceased told him that her husband had poured kerosene on her and set her on fire, because he was suspecting her fidelity. According to P.C. Waigankar, P.W. 2, he made entry in E.P. Book to that effect P.C. Waigankar claimed that he had recorded the exact words used by the deceased in entry Exh. 9. In order to find out the truthfulness of this made by P.W. 2, Waigankar, we had a look at entry Exh. 9. and we find that the said entry does not indicate that it was deceased, who told P.C. Waigankar that, her husband had poured kerosene on her and set her on fire because he was suspecting her fidelity. The said entry is merely a noting made by P.C. Waigankar and therefore the same cannot be termed as a dying declaration made by the deceased, as contended by the prosecution. So far as the dying declaration recorded by P.W. 3, Vithal Ranade, Honorary Metropolitan Magistrate is concerned, we are of the opinion that the same also does not inspire confidence. P.W. 3, Ranade has in his evidence stated that some portion from the dying declaration was recorded by him in the Cooper Hospital on the spot and the last paragraph was written by him at his residence. In the cross examination, he has stated that it was not mentioned in the dying declaration as to, which part was written in the hospital and which part was written by him at his residence. It is, therefore; doubtful as to where exactly this dying declaration was recorded. Besides, P.W. 3, Ranade also is not clear as to whether Dr. Doshi was present at the time when he recorded the dying declaration. He has stated that, most probably doctor was present when he scribed the opening portion of the dying declaration till the remark of the Doctor. He did not remember positively about it. He has also stated that had the doctor been present, he would have mentioned in the opening paragraph of the dying declaration. Therefore, we are not inclined to place reliance on such a dying declaration. It is true that, PW 4, Dr. Parmar, A.M.O., Casualty Department, Cooper Hospital, Dr. Tushar Doshi, P.W. 5 and Dr. Deshmukh, P.W. 9 have deposed about the dying declaration made by the deceased. However, as stated above, considering the strained relationship between the deceased and the accused, chances of false implication by the deceased cannot be ruled out.

It is significant to note that the accused has also received burn injuries during the same incident. The fact that he received burn injuries is deposed to by P.C. Waigankar, P.W. 2, Dr Parmar, P.W. 4 and P.I. Khot, P.W. 8. The defence witness Dr. Bharat Pandya has also deposed about it. The fact that the accused accompanied the deceased to the hospital is also deposed to by P.W. 2, P.C. Waigankar, P.W. 4 Dr. Pannar and P.I. Khot, P.W. 8. The evidence of P. W.4. Dr. Parmar, who examined the accused at 11.30 p.m. on 12.10.1981 shows the injuries sustained by the accused. According to Dr. Parmar the accused gave history of alleged accidental burns while protecting burning wife. Dr. Parmar has described the injuries on the accused thus:

On examination-patient''s general condition fair, temperature, pulse, respiration normal, pupils (E.C.C.R.L.) Equal, Central, Circular reacting to light. Burnt hair right upper extremity and left upper extremity. Burnt hair over head and chest 5 to 10 percent superficial to deep burns, right upper extremity arid left hand power aspect.

It is clear therefore, that, immediately after the incident the accused followed the deceased to the hospital. He was examined and 5 to 10 per cent superficial to deep burns were found on his person. Looking to the short time within which the accused was examined, we feel that there was no scope for the accused to manufacture this evidence. Looking to the nature of injuries also self implication of the same appears to be improbable. In the dying declaration there is no mention of any injuries sustained by the accused. The prosecution has not given any explanation for the said injuries. Therefore, it must be said that the accused has probabilised his defence.

We find that evidence of child witness D.W. 2 Ajit Sawant also appears to be truthful and the reasons given by the learned Sessions Judge to discard the said testimony appears to us to be unacceptable. Ajit Sawant in his evidence has stated that his mother used to treat him nicely. He has deposed about the quarrel which his mother had with the accused. He has also stated that his father refused to have dinner and his mother went inside the kitchen and that she came out in a burning condition. If the accused was really responsible for setting his mother on fire there is no reason for Ajit to absolve his father-the accused. There is, therefore, no reason to discard the evidence of D.W. 2 Ajit Sawant. The fact that the deceased was suffering from T.B. is borne out by the evidence of P.W. 4-Dr. Jinchand T. Shah, who has stated that she was under his treatment for T.B. It is also important to note that Dr. Deshmukh, P.W. 9 who had examined the deceased has stated in the case papers that, deceased smelt of alcohol. When questioned about this entry, he stated that it was a mistake. One therefore. really does not know the exact mental make up of the deceased. Considering the fact that the deceased was suffering from a protracted illness, the possibility of her being unduly sensitive and depressed and getting upset when the accused repeatedly asked her whether she had taken medicines and further when he did not have his dinner cannot be ruled out We are, thereafter, of the opinion that the prosecution has not been able to prove its case beyond reasonable doubt and the defence has probabilised its case. We therefore set aside the order of conviction and sentence dated 23.2.1984 passed by the learned Addl. Sessions Judge, Greater Bombay in Sessions Case No. 228 of 1982 in the Court of Sessions for Greater Bombay. The Appellant-accused to be released forthwith unless otherwise required in any other case. Before parting with the judgment, we fail in our fairness if we do not record the extremely fair assistance rendered to us by the Public Prosecutor.