Oral Judgment: (Per Kakade, J.)
1. The appellant has preferred this Appeal against the Judgment and Order dated 25th September, 1998 passed by Addl. Sessions Judge, Mumbai in Sessions Case No.173 of 1995 wherein he was convicted for commission of offence under Sections 302 and 449 of the Indian Penal Code and was sentenced to suffer life imprisonment and to pay fine of Rs.100/- in default to suffer S.I. for five days on first count and to suffer R.I. for one year and pay fine of Rs.100/- in default to suffer S.I. for five days on second count.
2. The facts giving rise to the present case, in brief, are thus –
3. Complainant Nanduprasad Gupta was staying along with his sister, brother-in-law and four children of his sister at Hut No.36, which they have purchased from one Rajesh Gupta on 11.10.1994. On 14.10.1994 when complainant was standing near the temple situated at Ganesh Murty Nagar he was informed by his sister’s son that the room was burning and his mother was also burning. Therefore, complaint and his friend Shankar Prasad rushed to the hut No.36 and found that Geetakumari was lying outside the hut in a supine position. She was found completely burnt. She was crying and saying that one Surendrakumar had set her on fire. The complainant also saw that his sister was burnt but the hut was not burnt and kerosene had fallen on the floor
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f the hut. Geetakumari was lying outside about 2/3 feet from her hut. Somebody had poured water on her body. Police arrived on the spot and taxi was brought and with the help of some people he put his sister Geetakumari in taxi and Geetakumari was taken to St.George’s Hospital. In the taxi she disclosed to complaint that it was accused who had set her on fire. They reached the hospital at about 9 to 9.30 p.m. Initially the doctors were not ready to get Geetakumari admitted in the hospital, but due to intervention of some respectable persons including Special Executive Magistrate from Colaba she was admitted in the hospital. The Police arrived there about half an hour after her admission in the hospital. Police recorded complainant’s statement vide Exh.6 and the offence was registered against the accused. After Geetakumari was admitted in the hospital, one of the Special Executive Magistrates, Lalji Gupta was present there to record the dying declaration of Geetakumari. The Medical Officer also recorded the statement of Geetakumari. In both her statements deceased squarely implicated the accused. She succumbed to the injuries in the said hospital on 15.10.1994. Inquest panchanama was prepared and body was sent for post mortem examination. In the meantime the Police had prepared panchanama of scene of incident and had seized several incriminating articles. The accused was arrested. The statements of several witnesses were recorded. The articles which were seized were sent to Chemical Analyser for examination, whose report was received, which is part of record. On completion of the investigation the charge-sheet was sent to the court of law. The learned Magistrate committed the case to the court of Sessions.4. The learned Additional Sessions Judge framed the charge for the offence under punishable Section 302 and 449 of the Indian Penal Code, to which accused pleaded not guilty. The defence of the accused is that of total denial of any criminal liability. The prosecution led its evidence at length and on that basis the learned Trial Judge came to the inclusion that the evidence on record was sufficing to bring home the guilt and accordingly proceeded to convict and sentenced the accused in aforesaid manner.Hence the appeal.5. We heard Mr. Gole the learned counsel for the appellant and Mrs.V.R.Bhosale, the learned APP for State at length. We also perused the entire evidence on record.6. As can be seen from the record the prosecution case is mainly balanced on the evidence of dying declarations of deceased Geetakumari. P.W.1 Nanduprasad, brother of the deceased, has given the details of the earlier dispute between the parties over ownership of the hut wherein Geetakumari was residing and the entire evidence on record, including that of complainant Nanduprasad, evidently establishes the factum of dispute between the parties over occupation of hut in which Geetakumari suffered burnt injuries. Complainant has stated that at the time of the incident he had gone to Colaba Market and returned at 8.00 p.m. at which time his nephew rushed to him and informed him that Geetakumari was set on fire and therefore he rushed to the hut along with one Shankar Gupta and saw the crowd had gathered at the hut, which was duly purchased by his brother-in-law. He found that Geetakumari was burnt but kerosene was fallen on the floor of the hut and Geetakumari was lying on the distance of 2/3 feet from the hut. She was groaning with pain. Somebody had poured water upon her body. Police arrived on the scene and on their instructions taxi was brought wherein Geetakumari was put and was taken to St.George’s Hospital. While traveling to the Hospital complainant asked Geetakumari as to how it had happened and she informed him that the appellant had come and set her on fire after pouring kerosene upon her. This was the first dying declaration. It is significant to note that this piece of evidence is not at all shaken in the cross-examination and therefore, has to be relied upon as an important corroborative piece of evidence to written dying declarations immediately but subsequently recorded in the hospital. It is also to be noted that there was absolutely no time either for Geetakumari to concoct the story and implicate the accused falsely, nor the complainant had any reason to involve the accused falsely if the culprit was somebody else, therefore this oral dying declaration assume significance.7. Geetakumari was taken to the hospital. It is again evident that she was resident of Zopadoattu and the local leaders had arrived when they came to know about the incident. They were Executive Magistrates including P.W.3 Lalji Gupta and one Kasotia, who was present with him. The evidence of P.W.3 Lalji Gupta is important from two angles. Firstly, he has corroborated the prosecution story that there was dispute between the accused and deceased person’s husband over ownership and occupation of the hut wherein they were living, and secondly due to the fact that Lalji Gupta, who also a Special Executive Magistrate, has recorded the dying declaration of Geetakumari Witness Lalji Gupta has stated that he introduced himself to the Doctor as Special Executive Magistrate and requested that he should be allowed to record Geetakumari’s statement. He also made enquires with the Doctor whether Geethakumari was in condition to make a statement and Doctor had opined that she was in condition to make a statement and thereafter the dying declaration Exh.10 came to be recorded wherein Geeta squarely stated that it was the accused who had came in the hut and poured kerosene upon her and set her on fire. Witness Lalji Gupta has further stated that he started recording statement at about 10.30 p.m. and completed it on 11.00 p.m. Doctor Salian made endorsement to the effect that the patient was conscious and was in condition to give statement and also signed in proof thereof. Witness Lalji also obtained signature of other S.E.M. who was present, viz. Kasotia, on the said dying declaration. Therefore, it is apparent that the first dying declaration Ex.10 was recorded in presence of two Special Executive Magistrates wherein Geeta squarely implicated the appellant who committed the crime. Second dying declaration of Geeta also came to be recorded in the presence of Police Officer, which is more in details because in the second dying declaration Geeta has given a brief narration of the background of the dispute between the parties due to which appellant poured kerosene upon her and set her on fire. This second dying declaration Ex.17-A was recorded immediately but subsequent to the first dying declaration on arrival of Police and that too was duly endorsed by Dr.Salian to the effect that the patient was conscious and was in a position to give her statement, therefore, it is quite clear that both the dying declarations are consistent on the fact that it was the accused who poured kerosene upon Geetakumari and set her on fire, due to which she succumbed to the injuries on the next day. It is also proved beyond reasonable doubt that for the reason that overt act on the part of the accused was that the dispute between the accused and husband of the deceased over ownership and occupation of the hut where deceased was residing.The evidence of Dr.Salian shows that when he came in Casualty Ward he saw that Geeta was lying on a trolley and she was giving the statement to the Police Officer and Doctor heard that the accused had poured kerosene upon her and set her on fire. Dr.Salian has further stated that Special Executive Magistrate did record the statement of Geetakumari in his presence. He was in his office at that time and some had come to him and asked for his permission to record the statement. The trolley on which Geeta was lying and his office were side by side and Geetakumari was in a condition to give statement for which he had made endorsement to that effect on the said statement. However, in his cross examination Dr.Salian has stated that when he went to the Casualty Ward one Dr.Sane and his unit were examining Geeta and there was no need for himself to examine Geeta again as Dr.Sane was examining her. He has further stated that he put his endorsement when he was asked by the Police Officer to do so.8. Mr.Gole the learned counsel for the appellant, on the basis of this statement of Dr.Salian in the course of cross examination, vehemently urged that Dr.Salian was not present when the dying declarations were recorded and has not examined the patient whether she was conscious and was in a position to give statement. In this regard our attention was invited by Mr.Gole to the evidence of P.W.4 Dr.Hashmi, who has stated that he was working as C.M.D. in the said Hospital and on that day at about 9.00 p.m. Geeta was brought in the hospital in his presence. He examined her and he found that she was unconscious with 80% burn injuries and therefore, he referred her to the Surgical resident doctor. Now on the basis of this statement the learned counsel for the appellant submitted that if Geeta was found to be unconscious on arrival, the entire evidence of dying declaration, which is the foundation of the prosecution, has to be discarded and benefit of doubt must be given to the accused. However, we propose to disagree with this proposition mainly on the ground that there is overwhelming contrary evidence on record to substantiate the prosecution case that Geeta was indeed conscious and was in a position to give statement at the time when those were recorded by the S.E.M. Lalji Gupta as well as by the Police. The evidence of Dr.Hashmi wherein he said that Geeta was found unconscious on arrival has to be read in juxtaposition with evidence of not only Dr.Salian, but also witness Lalji and others. The case papers on record also substantiate the facts that though Geeta was unconscious on arrival, she had regained consciousness subsequently and statements were recorded only after she was examined by Dr.Sane, who satisfied himself that she was in a position to give statement. As can be seen from the record, the prosecution did not propose to examine Dr.Sane, however, the learned Trial Judge, rightly, summoned Dr.Sane as Court Witness in order to get the position clarified because according to Dr.Salian it was Dr.Sane who had actually examined Geeta at the relevant time with his unit. Dr.Hashmi’s evidence also shows that due to serious condition of Geeta, patient was referred to Surgical Unit. Dr.Sane, was examined as Court witness, and he has categorically stated in his evidence that he was working as Honorary professor of Surgery in the said hospital at the relevant time and on the basis of indoor papers of the patient Geetakumari he was in a position to state that she was admitted under care of his unit at the said hospital. The notes recorded in indoor papers, which are part of the record, are testified to be in handwriting of resident doctor Ms.Girija Dravid and house man Pramod. Whose handwriting was identified by Dr.Sane. Dr.Sane further stated that patient was seen by him for the first time on that day and was examined. She had sustained 85% burn injuries and she was conscious, cooperative and well oriented. It was around 9.30 p.m. when the patient was examined by him. He has also stated that he had talked to patient Geeta and had inquired from her how did she suffered the burn injuries and the patient had replied that burns were due to kerosene and she was complaining of pains. It is significant to note that there is absolutely no cross-examination on behalf of the defence of this witness, and therefore, his evidence has gone virtually unchallenged on record. Therefore, taking into account the totality of circumstantial evidence before us, it is absolutely clear that both the dying declarations of Geeta are found to be genuine, trustworthy and sufficient to rely upon in order to bring home the guilt. Mr.Gole the learned Counsel for the appellant tried to bring to our notice various discrepancies and so called contradictions in the entire evidence on record, however, suffice to say that those would not go to the root of the matter nor would be fatal to the prosecution case.9. For the reasons recorded above we hold that the evidence of dying declarations duly supported by various witnesses is sufficient to establish the guilt of the accused and therefore, we have no hesitation to confirm the order passed by the learned Trial Judge. In the result the appeal fails and stands dismissed.
"2004 ALL MR (CRI) 1857"