- (1.) This Criminal Appeal raises the question about the relevance of dying declarations, and the approach to be adopted by the Courts with respect thereto. The appellant's wife, Chandrakala Hiraman Murkute, died an unnatural and a very painful death at about 2 a.m. on 7.4.2000 in a village in Jamkhed Taluka of District Ahmednagar, State of Maharashtra, having suffered 91% burn injuries in the previous night leading to cardio- respiratory failure. The First Adhoc Addl. Sessions Judge, Ahmednagar held the appellant responsible for the same, principally on the basis of her dying declarations, and convicted him for cruelty and murder under Sections 498-A and 302 of the Indian Penal Code (I.P.C. for short) by his judgment and order dated 16.8.2004 in Sessions Case No.103 of 2000. The conviction U/s 302 of IPC was confirmed by the Aurangabad Bench of the High Court of Judicature at Bombay in Criminal Appeal No.31 of 2005, though the one under Section 498-A of I.P.C was set-aside for the lack of sufficient evidence. The Courts below have accepted the two dying declarations of deceased Chandrakala as giving the correct cause for the burn injuries viz. that they were caused by the appellant. They have rejected the defence of the appellant that he was nowhere near the deceased at the time of the incident and that he was not responsible for the same. In view of this conviction under Section 302 I.P.C., the appellant is required to undergo imprisonment for life, and to pay a fine of Rs.500/-, in default suffer a rigorous imprisonment for three months. This judgment of the High Court dated 28.6.2005 in Crl. Appeal No. 31/2005 is being challenged for being rendered solely on the basis of dying declarations. The facts leading to the present appeal are as follows:-
(2.) Deceased Chandrakala had been married to the appellant since a long time, and had three children from the marriage viz., Bapu, aged about 20-22 years and married at the time of the incident, Ramesh aged about 14 years, and daughter Shobha (whose age has not been mentioned). As per the charge-sheet, the appellant is stated to have poured kerosene on Chandrakala and set her on fire at about 8 p.m. on 6.4.2000. She was admitted in the rural hospital, Jamkhed immediately at 9:15 p.m. One Dr. Eknath Mundhe (PW-5) was on duty at that time, and he recorded the history of injuries (exhibit 33) at about the same time in the following words "H/o Homicidal burns by husband as she was not willing to perform his marriage with her sister and he was also demanding gold on 6.4.2000 at about 8 p.m." Thus as per this writing, the appellant was insisting that Chandrakala bring gold from her parents, and that he be permitted to marry her sister. Chandrakala refused to acquiesce to either of these demands, and, therefore, she was given serious burn injuries by the appellant on that fateful night. According to their younger son Ramesh (DW-1) the deceased was taken to the hospital by her family members. That being so, this recording by the doctor assumes significance since it must have been made in their presence. After Head Constable Dagadu Baba Kharat (PW-4) came for duty to that hospital, the above duty doctor informed him about the incident, and also that Chandrakala was still in a position to make a statement. PW-4 recorded the second statement of Chandrakala (exhibit 28) in the presence of PW-5 and the staff nurse after PW-5 certified that she was in a position to give a statement. Chandrakala stated that the appellant poured kerosene on her from a ten liter drum, and then set her on fire since she declined to accept his demand of a golden ring of one tola, and transfer of the land belonging to her maternal uncle to him. According to this statement one neighbour Baba Saheb Vitekar had extinguished the fire, and then she was brought to the hospital. Thereafter, her thumb impression was obtained on the statement after reading it to her. This second dying declaration was treated as the First Information Report (F.I.R.) and was registered at 10:10 p.m. as Crime No. 44/2000 under Section 307 I.P.C. for attempt to murder. Chandrakala was very much in a position to make a statement at that time, and was not under the influence of any drug since she was injected with sedatives only at about 10:30 p.m. At the time of recording of this statement her two sons as well as the appellant were present since, as stated by Ramesh (DW-I), all the family members had taken her to the hospital. The Appellant has also stated in his statement under Section 313 of Cr.P.C that he too had gone to the hospital. Mother and brother of Chandrakala were however not present at that time as they could reach the hospital only after she had passed away. After her death the charge was altered from the one under Section 307 to the one under Section 302 I.P.C.
(3.) During the trial, the prosecution examined five witnesses. PW- 1 Dr. Abhijit Boralkar who performed the post-mortem gave the cause of death as follows:- "Death due to cardio-respiratory failure (due) to shock due to extensive burns 91% superficial to deep." Thus, there is no dispute over the cause of death. The question is as to how she received the burn injuries. The mother (PW-2) and brother (PW-3) of Chandrakala supported her version as to why, she suffered the burn injuries viz., that appellant was insisting that she fetch a golden ring, and also to transfer her maternal uncle's land to him for last about two months, and that her refusal has led to this gruesome act by him. The defence of the appellant in this behalf was, however, inconsistent. In his statement under Section 313 of Cr.PC he indicated the probability of accidental death due to bursting of the stove. The investigating officer P.I. Kandre, however categorically stated that during examination of the place of occurrence no furnace, stove or cooking articles were found over there. The appellant examined three witnesses in his defence. Their younger son Ramesh (DW-1) stated on the other hand that his mother had committed suicide. The cause for committing the suicide as stated by Ramesh was however very flimsy viz., that he had asked his mother to give him Rs.2 for watching a movie, which she had declined. This had led the appellant to scold her, because of which she went inside the house and bolted the door. Later on when Ramesh was playing outside the house, and when his elder brother and father were also outside the house, his sister Shobha who was playing at the neighbour's house raised the alarm that Chandrakala had set herself on fire. According to Ramesh the appellant climbed on the roof, removed one of the tin sheets and jumped inside, to remove the bolt of the door when it was found that the deceased was lying on the floor in a burnt condition. A close relative of the appellant viz., Mhase Nagu Vitkar (DW-2) was examined who also gave similar evidence. As far as the statement of Ramesh (DW-1) is concerned, the same was discarded for the reason that it was a hearsay based on the statement allegedly made by Shobha to him and Shobha was not examined. Besides, the house of the neighbour where Shobha was supposed to have been playing, was at a distance of about 150 feet from the house of deceased, and there were many houses in between the two houses. Therefore, her statement of coming to know that Chandrakala had set herself on fire could not be accepted, since Shobha would not have been able to know the same from such a distance. Similarly, the statement of Ramesh that his father had jumped into the house after removing the tin sheet of the roof could not be accepted for the reason that though he is claimed to have suffered an injury in the process, at the time of his arrest in the night of 6.4.2000, the appellant declined to go to any hospital (as the arrest panchnama records) when asked whether he suffered from any pain or injury. This leads to the discarding of the statement of Dr. Satpute (DW-3) also, who is said to have examined the accused two days subsequent to the incident, on 8.4.2000, and noticed abrasions on his left elbow and arm, and a burn injury on left elbow. The statement of DW-2 was also not accepted for the reasons that he was a person of 70 years of age who accepted that he could not see beyond 15-20 feet. He would not have come to know of the incident when his house is situated at a distance of 150 feet from the place of occurrence. Consideration of the submissions on facts:;