Partly allowed

Laxmibai Babaram Chikhalkar and Anr. v. the State of Maharashtra

Bombay HC25 Mar 2011APEAL/182/2004

Case brief

AI extract

What is this about?

High Court Criminal Appeals challenging conviction for murder and culpable homicide by omission. Convictions for murder upheld; conviction for culpable homicide by omission set aside due to fetus being under 14 weeks.

What did the court decide?

Conviction under S. 302 IPC affirmed. Conviction under S. 316 IPC set aside. Fine under that count refunded. Appeal against acquittal of 3rd accused dismissed.

Laxmibai Babaram Chikhalkar and Anr. Vs the… — Murder and Culpable Homicide | Bombay HC (2011)

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ast

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.182 OF 2004

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1. Smt.Laxmibai Babaram Chikhalkar,	)
Indian inhabitant, Adult, age 60 yrs.	)
Occ.Maid servant, resident of chawl	)
No.121, Worli, B.D.D.Chawl, Room	)
No.79, Worli, Mumbai.	)
2. Prakash Babaram Chikhalkar,	)
Indian inhabitant, adult, age 36 yrs.	)
Occ. Service, resident of 121, Worli,	)
BDD Chawl, Room No.78, Mumbai.	)
(Both at present lodged as undertria	l)
in Yervada Central Prison) v/s.	).. Appellants. (org.accd.nos. 1 and 2.)
The State of Maharashtra	)
at the instance of Worli P. Stn.	)
(C.R. No.106 of 1998)	).. Respondent.

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WITH CRIMINAL APPEAL NO.325 OF 2005

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The State of Maharashtra v/s.	).. Appellant.
Shantaram Babaram Chikhalkar	)
Age-33 yrs. Occ.Service	)
R/o 121, Worli, BDD Chawl,	)
Room No.78, Mumbai.	).. Respondent.

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Mr. A.G.Toraskar, advocate appointed for appellant in appeal no. 182/04. And respondent in appeal no.325/05.

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Mr. J.P.Yagnik, APP for State.

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CORAM : P.V. HARDAS &

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M.N. GILANI, JJ.

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DATE : MARCH 25, 2011.

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M.N.GILANI,J

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1 Both these appeals are directed against the judgment and order dated 29^th January, 2004 passed by the Additional Sessions Judge, City Civil and Session Court, Greater Mumbai in Sessions

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Case No.732 of 1998, whereby the original accused 1 and 2- appellants 1 and 2 in criminal appeal no.182 of 2004 came to be convicted and the original accused 3-appellant in Criminal appeal no.325 of 2005 was acquitted. Accused 1 and 2 were convicted for the offence punishable under section 302 r/w 34 of the I.P.C. and were sentenced to suffer R.I. for life and to pay fine of Rs. 1,000/- each i.d. to suffer R.I. for six months each. They were also convicted for the offence punishable under section 316 r/w 34 of I.P.C. and were further sentenced to suffer R.I. for 5 years and to pay fine of Rs.500/- each i.d. to suffer R.I. for 3 months each. Substantive sentences were ordered to run concurrently.

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2 The facts giving rise to the prosecution case are thus: In November, 1997 Geeta @ Shubhangi married the accused

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3 and went to reside with him in chawl at Worli, Mumbai. Accused 1 is the mother and accused 2 is the brother of the accused 3. Initially, the accused 2 and his wife used to share the same room. After marriage the deceased started complaining about the misbehavior of the accused 2. Accused 1 without coming to her rescue took side of the accused 2. In the course of time, the accused 2 went to reside at Bhayender. However, he continued to visit the place of residence of the deceased. He used to make advances towards the deceased which the deceased used to repel. Besides, informing her mother-in-law-the accused

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1 and accused 3, she divulged this fact to her parents. On account of ill-treatment, the deceased was compelled to lodge report in the police station. The police intervened and it was

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decided that there should be joint meeting of all concerned. On 28^th April, 1998 at the insistence of in-laws of the deceased, the meeting was postponed.

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3 Incident occurred on 28^th April, 1998 at about 7.30 p.m.. Accused 1 to 3 were present in the house. Accused persons quarrelled with the deceased. Accused 1 then poured kerosene on the body of the deceased and the accused 2 set her ablaze. Accused 3 did not intervene. Thereafter, all the three accused left the place by closing the door. After seeing the smoke the neighbours gathered. Fire brigade was summoned. Police also arrived at the scene of occurrence. Then in police van, the deceased was moved to KEM Hospital. The deceased suffered 90% to 96% burns.

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4 Police recorded her statement and on that basis first information report came to be registered. Dying declaration of the deceased was also recorded by the Special Executive Officer. On 29^th April, 1998 at 12.15 mid-night, she succumbed to the injuries. Usual investigation like recording of the statements, drawing spot panchanama was done by PSI Kamble. After completion of the investigation, chargesheet was submitted to the Court of Metropolitan Magistrate, Mumbai who then committed the case to the court of Sessions.

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5 Learned Additional Sessions Judge framed the charge against the accused 1 to 3 for the offence punishable under section 302 r/w. 34 of I.P.C. and as the deceased was three months pregnant, charge for the offence punishable under section

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316 r/w. 34 of I.P.C. was also framed.

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6 After considering the evidence brought on record, learned Additional Sessions Judge believed the prosecution case while rejecting the defence theory of alibi and proceeded to convict the accused 1 and 2 and sentenced them as indicated above. The learned Additional Sessions Judge acquitted the accused 3 of all the charges framed against him by giving him benefit of doubt. 7 Assailing the order of conviction and sentence, Mr.Toraskar, the learned counsel for appellant 1 and 2 contented that: the learned Additional Sessions Judge has committed serious error in believing the prosecution evidence, ignoring various infirmities, lacunae and improbabilities. The learned Additional Sessions Judge ought to have appreciated that the case solely rests upon multiple dying declarations recorded at different point of time and by different authorities. There is no consistency in these dying declarations. These dying declarations have been recorded after the deceased has been tutored and prompted. Evidence regarding the presence of medical officer at the time of recording of dying declaration is shaky and should not have been relied upon. After the incident, at no point of time the deceased was in a fit mental condition to give dying declaration. Because of enmity, the story has been concocted by the parents of the deceased. The defence of alibi put forth by the accused should have been accepted as has been deposed to by the defence witnesses. There was no justification to discard this evidence. In nutshell, it is the contention of Mr.Toraskar, learned Counsel for

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the accused/appellants that the learned Additional Sessions Judge has committed serious error in convicting accused 1 and 2.

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8 The learned APP supported the judgment and order of conviction and sentence passed against the accused 1 and 2. According to him, three written dying declarations supported by the oral dying declaration, evidence of previous conduct of the accused and the incidents of ill-treating the deceased amply point out to the guilt of the accused. In support of appeal against acquittal of accused 3, learned APP contended that the learned Additional Sessions Judge committed error in acquitting the accused 3. The evidence adduced by the prosecution is sufficient to nail the accused 3. Presence of the accused 3 on the spot as is evident from the dying declaration, which has been accepted by the learned Additional Sessions Judge, speaks volumes about his guilt. Although, overtact has not been alleged against the accused 3, he being mute spectator, of the incident wherein the deceased was set on fire, is sufficient to infer his participation in the crime. The nature of omission attributed to the accused 1 was of culpable nature and exhibits animus to commit offence.

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9 After having heard learned counsel for both the parties, following points arise for our consideration.

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(i) In the light of the evidence brought on record, whether conviction and sentence of accused 1 and 2 for the offence punishable under section 302 r/w 34 of I.P.C. is sustainable ?

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(ii) Whether conviction of accused 1 and 2 for the offence punishable under section 316 r/w 34 of I.P.C. is correct and legal ?

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(iii) Whether the acquittal of the accused 3 of all the charges levelled against him calls for interference ?

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10 The evidence relied on by the prosecution is multiple dying

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declarations of the deceased, oral as well as written. Firstly, we shall deal with the dying declaration recorded by the medical officer P.W.8. On 28/4/1998 P.W.8 Dr. Rege was on emergency duty at KEM Hospital, Mumbai. His evidence is that on 28/4/1998 at about 8.20 p.m., the deceased was brought to the hospital. She was then shifted to ward No.8. It was case of 96 to 98% superficial to deep burns. The patient was conscious and welloriented. This witness was extensively cross-examined. He made entries in the indoor case papers. He deposed that the deceased gave the history alleging homicidal burn by pouring kerosene by mother-in-law and brother-in-law on the same evening at 7.30 p.m. at Worli. On examination he found her blood pressure as 80/60 and general condition was poor although she was conscious. Indoor medical papers in his handwriting are marked as Exh. 24. History of burns given by the deceased finds place in the Exh. 24 which is reproduced hereunder:

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“28/4/98 |C/o alleged homicidal burns by pouring kerosene -----------|by mother in law and brother in law today evening at 8.30p.m. |7.30p.m. at Worli.” Subhangi | housewife |

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On the next page again similar history is repeated at 9.30 p.m.. At 11.45 p.m. there is entry to the effect that the patient started gasping and at 12.15 a.m.(on 29/4/1998) she collapsed. The requisition form for autopsy examination forms part of Exh. 24A. Against the column “the complaints with which the patient was admitted”, it is mentioned that “patient came with alleged homicidal burn by pouring kerosene by mother-in-law and brotherin-law in evening at 7.30 p.m. at Worli.”

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11 He had also brought the entire set of indoor medical papers relating to deceased and having marked as Exh. 24A. Entries in Exh. 24A on page nos. 5,6,7,8,9, 12, 18, 19 and 23 are in his handwriting. On 29/4/1998 at about 12.15 a.m.(mid night), the deceased succumbed to the injuries. This witness has been subjected to a very lengthy cross-examination. During his cross examination, it is surfaced that when the deceased was brought to the casualty department, the time was 8.05 p.m. Thereafter, he received the call and came to ward no.8. He admits that B.P. as 80/60 was abnormal and the patient in such situation may go in shock and may not be well-oriented. He admits that with 90% superficial burns, the deceased was in great agony and pain. It may happen that the person with such extensive burns may talk irrelevantly. If there is smoke because of the fire, it may cause conjunction and suffocation. There could be obstruction of larynx, trachea and in that event the patient may not be able to speak. He clarified that no pain killer was administered to the patient although it is generally given. In view of the categorical evidence of PW-8 Dr. Rege, it appears that the deceased was conscious and well-oriented while giving history of burns. It is not uncommon that the patients with 100% burns remain conscious, well-oriented and are able to speak. May be, condition of the patient deteriorates as the time passes. Then he was confronted with the entries at Exh.24 where, in the margin, the name of the deceased is written. He denied the suggestion that it is appearing in different ink or it was written at the instance of the police. In

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fact all the case papers Exh.24 and 24A pertain to the deceased. The question whether the name of Shubhangi was written in his absence does not make any difference. It is brought in his crossexamination that he had heard the entire history from the deceased and had written down on the case papers. He denied the suggestion that no history was given by the deceased and the contents in Exh. 24 are incorrect. He also denied the suggestion that the deceased was not in position to speak or that she was not conscious.

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12 The bunch of medical case papers produced by PW-8 Dr. Rege consists of one casualty OPD slip. It mentions the casualty No.5283 and below that admission time was 8.05 p.m. is written. In the column of history, it is mentioned that suicidal burns by pouring kerosene on herself. Further endorsement is regarding sending the patient to ward no.8. Dr. Rege was confronted with this. He could not explain as to which doctor made this endorsement. This entry has not been made directly on the paper. What is appearing is the carbon impression. It is not understood, as to why the original writing was not made on this paper. As against this there is clinching evidence of PW-8 Dr. Rege, who deposed about he having examined the deceased when she was brought to the ward no.8 and the time was about 8.30 p.m. When he began making notes, he started with history i.e. homicidal burns. This is appearing at page 2 of Exh. 24A, where as the casualty slip is at page 23. Learned Additional Sessions Judge dealt with this aspect of the matter in

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paragraphs-17 and 18 of its judgment and has correctly discarded the same.

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13 On 28/4/1998 PW-11 PSI Potbhare was on night duty as Station House Officer. At about 7.45 p.m. he received message from control room about a lady sustaining burn injuries. He went to the B.D.D.chawl no.121, Worli. The deceased was already moved to the KEM hospital. He deposed that immediately he went to the house of PW-4 Mrs. Anita, the Special Executive Officer, and carried her to KEM hospital. They reached there at about 8.30 p.m. PW-11 PSI Potbhare enquired with the doctor about condition of the deceased, particularly, whether she was able to give the statement. After he was told that the deceased was able to give statement, he recorded her statement. Thereafter, PW-4 Anita, SEO recorded her statement. Firstly, we shall deal with the statement recorded by PW-4 Anita.

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14 PW-4 Anita, SEO deposed about PW-11 PSI Potbhare visiting her house and she accompanying him to the KEM hospital. This witness then narrated as to the manner in which the statement was recorded. She started putting questions to the deceased. The deceased replied to her that “her bother-in-law poured kerosene on her body and her mother-in-law lit the match stick.” The witness clarified that the statement of the deceased was recorded in question-answer form. At the end of the same, she put her seal and signature. She obtained signature of the doctor. She admitted that the doctor was not present when she was recording the statement. She then obtained signature of

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deceased and then handed over the dying declaration to the PW-11 PSI Potbhare. She proved the dying declaration recorded by her and is marked as Exh.15. In cross-examination, she clarified that the contents in Exh.15 were read over and explained to the deceased and the same has been found correctly recorded. Further, it is brought in her cross-examination that while she was recording dying declaration, PW-11 PSI Potbhare was standing away from her. In the next breath she stated that he was standing by her side. It is elicited in her cross-examination that mother of the deceased was present in the ward. However, she denied the suggestion that the mother of the deceased was present when the dying declaration was being recorded. Then she was questioned about the scorings and over writings appearing in the statements. She explained that initially she had written “poured and set on fire”, but subsequently this was over written and changed to “set on fire”. The manner in which this witness deposed and the scorings and overwritings made by her made us to examine her evidence closely and with caution. As usual and which is not the correct practice, printed questionnaire was used by the PW 4 Anita to record the statement. First 11 questions are of preliminary nature. To the question as to where the incident occurred, she replied that it occurred in her house. To the next question which is crucial, as to how the incident occurred, the deceased replied. Her statement in vernacular is :

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"मीजेवणकरीत होतेआिणमाझाििरानेमाझाअंगावरहातटाकलेआिणििऱाचया सांगणयावरनमलाििवीगाळकरणसासुनेमाझाअंगावरराकेलओतलेवििरानेपेटऊण ििलेवभाजलेआहे.”

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There are overwritings over the words “अंगावर” and words “पेटिवले” . However, all overwritings and scoring have been initialled. To the last question, as to against whom she had a complaint, she replied that “I have complaint against mother-in-law and brotherin-law and husband.” Admittedly, PW-4 Anita was very casual in recording the statement. The manner in which she made scorings and overwritings and the manner in which she deposed in the court shows that this witness did her job in most casual and irresponsible manner. The fact remains that there is no ambiguity so far as the role of the mother-in-law and brother-in-law are concerned. At the foot of the statement, there is endorsement of the medical officer that the patient was fully conscious and oriented. Although, the witness deposed that she had obtained signature of the deceased, what is appearing is thumb impression. The deceased was under great pain and agony with 96 to 98% burns. Therefore, question of she putting her signature did not arise. Admission of this witness that a signature of the deceased was obtained, is nothing but her irresponsible attitude. In the present case, during the short span, multiple dying declarations came to be recorded. Having gone through the evidence of PW-4 Anita and particularly, examining the scorings and overwritings made by her and her admissions such as absence of medical officer at the time when the dying declaration was recorded and the presence of PW-11 PSI Potbhare, no implicit reliance can be placed on Exh. 15 visa-vis the testimony of this witness.

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15 The other dying declaration is at Exh.25A recorded by

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PW-11 Potbhare. He deposed that after enquiring with the doctor who was treating the deceased, he started recording the statement which is in narrative form. This statement was treated as first information report. The relevant contents in Exh.25 and 25A are: “today on 28/4/1998 at about 19.30 hours while cooking food, at the instigation of Prakash(her brother-in-law) her motherin-law started pushing her. Mother in law and Prakash, brother-inlaw started beating her, while the husband was crying. Then mother in law put kerosene oil on her body. Brother-in-law, Prakash lit the match stick and set her on fire. While burning, I was screaming. Laxmibai, mother-in-law, Prakash, brother-in-law and Shantaram fled away. Neighbours put me in the police vehicle and brought me to KEM Hospital.” This statement is signed by PW-11, PSI Potbhare and thumb marked by deceased. 16 PW-8 Dr.Rege, although, deposed that he put endorsement on Exh. 25 on 28/4/1998 at about 11.30 p.m. he clarified that he put this endorsement because the patient was conscious while her statement was recorded by the police. It is, obvious from this admission that immediately after the statement was recorded he did not put the endorsement- but it was put sometime afterwards. This is what he has admitted in his cross-examination repeatedly. Exh. 24 and 24A medical case papers show that the doctors were attending the patient right from the time she was brought to the hospital. In view of this, the evidence of PW-11, PSI Potbhare, that immediately on reaching to the hospital he proceeded to record statement of the deceased and before that he had ensured about

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fitness of the deceased to give statement appears, trustworthy. We, have therefore, no hesitation in accepting the same.

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17 PW-1 Pramila, PW-3 PSI Kapale and PW-12 PI Manohar are the witnesses who deposed about the deceased divulging to them the manner in which the incident occurred. Testimony of these three witnesses is consistent on the point that the deceased had disclosed to them that on 28/4/1998 at about 7.30 p.m. when she was in house accused 1 to 3 were also present there. They quarreled with her and thereafter her mother in law poured kerosene oil on her body and her brother-in-law set her on fire. No role was attributed to accused 3. Thereafter, they all left the house. She shouted for help. Neighbours arrived, put out the fire and she was brought to the KEM Hospital.

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18 Even if, evidence of PW-1 Pramila is kept out of consideration, may be for the reason that she is interested witness, evidence of PW-3 Kapale, PSI, who was incharge of the wireless van, will have to be given due consideration. Absolutely, he has no grudge against accused persons nor even remotely connected with their matrimonial affairs. On the way from Worli to KEM Hospital, it was natural that he put questions to the deceased about the manner in which she got burns. PW-12 Manohar was PSO of Worli Police Station was on Bandobast duty at the relevant time. After knowing about the incident at 8.30 p.m. he visited KEM Hospital and enquired with the deceased about the cause of burns. According to him, the deceased disclosed to him about the role of her mother in law and brother in

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law.

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19 Now, we proceed to examine the defence theory about probability of the deceased having had committed suicide. PW-5 Shahabuddin is the panch witness. PW-11 PSI Potbhare had visited the spot at about 11 p.m. It is in the evidence of PW-5 Shahabuddin that entire room was smelling of kerosene. There were burnt articles like saree, pieces of clothes, bed sheets etc. Even the fridge was damaged due to fire. He drew panchanama which is at Exh.18. He was specifically questioned in his crossexamination about the condition of the door and the latch. Nothing surfaced in his cross-examination to point out that door was required to be broken by the neighbours after hearing screams of the deceased. Although, through the defence witnesses, this theory was explored, however the fact remains that there was no evidence to show that door was closed from inside and the neighbours were required to make the entry by breaking the doors. PW-6 Chandralekha is panch witness to the panchanama Exh.20 regarding seizure of clothes which were on the body of the deceased. This seizure was effected in the hospital. Pieces of saree, petticoat, ornaments were seized. All these articles were sent to Chemical Analyst. The report of the Chemical Analyst at Exh. 32 points out that on the burnt nicker, burnt petticoat, burnt pieces of saree, towel, partly burnt saree, kerosene residues were detected. Kerosene can was also found on the spot which is evident from the evidence of PW-5 Shahabuddin. Exh.32 points out that considerable amount of kerosene was

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poured on the body of deceased before she was set on fire. It is also in the evidence that the deceased was 3 months pregnant. Under these circumstances, it is difficult to believe that deceased would take extreme step of committing suicide, particularly, when her parents were in the same city and were accessible at all times. In the month of March, 1998, that means one month prior to the incident, the deceased had left the house, may be for whatever reasons, and then the matter was taken up to the Worli Police. Police at Worli Police Station intervened and the deceased went back to reside with her in-laws. This circumstance points out that in distress the deceased was capable enough to leave the matrimonial house and take shelter in her parent’s house. This ultimately, rules out the possibility that she decided to end her life. The defence has put forth the theory of alibi. If this was so, then the possibility of there being quarrel between the deceased and her in laws, which instigated the deceased to set herself on fire, is also ruled out.

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20 PW-1 Pramila spoke about the ill-treatment meted out to the deceased. The entire span of marital life was of five months. During these five months period, the deceased had complained to her about ill-treatment meted out at the hands of accused 1 and 2. The deceased had said that accused 2 used to come to her house particularly when she used to be alone and used to make advances at her. This does not appear to be an after-thought story. It is also in the evidence of PW-1 Pramila that the deceased was required to leave the house on 20/3/1998 and for that

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accused 3 had abused her. For that she had lodged complaint with the Dadar Police Station(Exh.10). There is no denial to the fact that the police officers attached to Worli Police Station had intervened in the matter and thereafter, the deceased went to reside with her in laws. There is also evidence to show that on the day of the incident, both sides had decided to meet to patch up the differences. In such situation, the deceased taking up the extreme step to end her life is wholly improbable. It is pertinent to note that immediately, after the deceased was admitted to the hospital her dying declaration came to be recorded. On that basis, offence under section 307 r/w 34 of I.P.C. was registered. That means, it was registered before 12.15 a.m. of 29/4/1998. PW-11 PSI Potbhare visited the spot and carried out spot panchanama mentioning C.R.No.106/1998. It is also in the evidence that to inform the parents, phone-number was ascertained from none other than the deceased and thereafter, parents of the deceased arrived. This again rules out the possibility of prompting and tutoring the deceased by her mother or other relations. In the dying declarations, there are natural variations and infirmities. They are not stereo-typed. While informing the medical officer, the deceased attributed the role to accused 1 and 2 without disclosing the name of accused 3. While making disclosure to PW-4 Anita, she attributed role to accused 1 and accused 2, but at the same time stated that she had general complaint against the accused 3 also. Before PW-11 PSI Potbhare, the deceased attributed main role to accused 1 and

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accused 2 and at the same time she stated that accused 3 was mute spectator and was crying. In the light of these facts and circumstances, scorings made by PW-4 Anita in Exh. 15 point out that nothing was preplanned and whatever occurred while recording dying declaration was due to sheer mistake and nothing else. Therefore, in our considered view, few infirmities surfaced surrounding recording of dying declarations being natural and unintentional, there need not be any hesitation in accepting them. 21 Suggestions have been put to the prosecution witness that the deceased was having an affair with one Telgu boy. It was also suggested that she had eloped with him and for that a complaint was lodged in the police station. It was also suggested to the prosecution witnesses that the deceased was reluctant to marry the accused 3 and for this reason the bride party arrived in marriage venue 1 to 2 hours late. DW-3 Rohini, wife of accused 2 stated about deceased having had disclosed to her that her marriage with accused 3 was performed against her will. We consider this as futile attempt of the defence to find fault with the prosecution case. By undertaking this exercise nothing is surfaced to dislodge the prosecution case. Maintaining friendship or even having affair before marriage cannot be the ground to condemn a person in any respect, much less makes him untruthful.

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22 Now, we shall advert to the evidence of defence witnesses. DW-1 Prabha was working as a nurse in Dr. Bapat’s Endoscopic Clinic. DW-7 Shekhar is son-in-law of Dr. Bapat. DW-8 Anuradha

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was working as secretary in Dr. Bapat’s Endoscopic Clinic. They were examined to prove the defence of alibi of accused 1. DW-1 Prabha deposed that she is working as nurse in the Endoscopic clinic of Dr. Bapat. The staff in the clinic works in three shifts. First shift is from 8 a.m. to 4 p.m. Second shift is from 4 p.m. to 8 p.m. and third shift is between 8 p.m. to 8 a.m. of next day. Accused 1 was working as Aaya. On 28/4/1998 duty of DW-1, Prabha was in the second shift i.e. 4 p.m. to 8 p.m. According to her accused 1 was also working in the second shift. In crossexamination, she admitted that on 28/4/1998 for the purpose of making phone call, the accused had left the clinic. The next witness DW-7 Shekhar who claimed to be a businessman and also son in law of Dr. Bapat, deposed about the presence of accused 1 in the clinic on 28/4/1998 around 7 p.m. According to him, accused 1 had purchased bread for the clinic. He saw her when he had gone out to smoke. Then they both returned to clinic at about 7.30 p.m. Ex-facie, this evidence appears artificial. He is a businessman dealing with supply of surgical articles to various hospitals. He is not managing Dr. Bapat’s clinic. On the day of incident, his presence in the clinic and he spotting the accused 1 going out to purchase bread and he going out to smoke at the same time, at the very first blush, appears artificial. DW-8 Anuradha, who was secretary in the clinic of Dr. Bapat, deposed that accused 1 attended the duty on 28/4/1998 at 4 p.m. and left hospital at 8.30 p.m. Exh.D-12 is the entry. The learned trial Court had occasion to go through the original attendance diary

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and had rightly discarded the same by giving cogent reasons in paragraph-34 of the judgment. According to the learned trial Court, whatever was brought before the court did not appear to have been maintained in the regular course of business. After close scrutiny of the evidence of all the three witnesses, it appears to us that they being the colleagues of accused 1 appeared as witnesses for her. Their evidence does not at all inspire confidence and the learned trial Court has rightly rejected the same.

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23 We are not oblivious of the law laid down by the Apex Court in State of U.P. v/s. Babu Ram(AIR 2000 SC 1735) in the matter of according treatment to the witnesses examined on the prosecution side or defence side or as court witness. The Apex Court held that :

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“Depositions of witnesses, whether they are examined on the prosecution side or defence side or as Court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a Court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses.”

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24 DW-3 Rohini, DW-4 Haridas and DW-6 Ramesh are the witnesses mainly to prove the defence of alibi of accused 2 and other accused. DW-3 Rohini admitted that on the day of incident, duty of accused 2 was over at 4.30 p.m.. However, both had gone to Ganesh temple. She being the wife of the accused 2 is bound to speak in his favour. Her evidence on its face appears infirm and without any independent support. It has come in her

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evidence that on the night intervening 28/4/1998 and 29/4/1998 at about 1 a.m. police and accused 3 had come to their house and from them they learnt about the incident. This defence theory is wholly unnatural. It is hard to believe that when such untoward incident occurred in the house of his mother and brother and all concerned were informed till 8.30 p.m., how could it happen that accused 2 was not informed, till mid-night.

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25 DW-2 Shridhar and DW-5 Mariamma are the witnesses to prove the alibi of accused 3. Since, the accused 3 has been acquitted and we did not find any substance in the appeal filed by the State against the order of his acquittal, there is no need to refer to this evidence. Suffice it, to say that the evidence of these two witnesses, that on the date of incident i.e. on 28/4/1998 in the evening they spotted the accused 3 standing at a pan shop near his house and then he was given lift in the taxi and they went to Dadar to buy flowers, at the very first blush, appears artificial and is rightly rejected by the learned trial court. In fact, it supports the prosecution case and proves the presence of the accused 3 nearby the house in the evening of 28/4/1998.

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26 DW-4 Haridas was neighbour of the accused. At the time of the incident, he was residing some where else. But on the date of incident, he had come to the Worli BDD chawl as there was some function in the house of his sister in law. When he heard loud noise of neighbours about the fire in the house of the accused, he rushed there. He did not see any of the accused nearby the house. When the incident occurred his place of residence was J.J.

¶83

21 apeal182.325.doc

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Hospital compound at Byculla. On that date he had come to the house of his sister-in-law to attend birthday ceremony of her daughter. Thus he is a chance witness, which requires close scrutiny of his evidence. According to him, he accompanied the deceased in the police van. Probably defence has cited this witness to negate the evidence of PW-3 PSI Kapale, who deposed that the deceased while on way from her house to the KEM Hospital made disclosure statement before him. Presence of DW-4 Haridas in the chawl at the time of incident being sheer coincident, it is difficult to believe that he would have accompanied the deceased in the police van - leaving aside the function for which he had come there. Even assuming that he travelled in the police van - on way to the hospital, this by itself would not make the testimony of PW-3 PSI Kaple unreliable. PW-7 Rajesh is the neighbour of the deceased. According to him, he returned from duty in the night and then saw gathering of the people at the house of the deceased. He also entered the house and put out fire by pouring water on the body of the deceased. He deposed that police van came to the spot and after some time he went to KEM Hospital. In cross-examination, he was asked about the presence of DW-4 Haridas at the scene of occurrence. He categorically stated that he did not see DW-4 Haridas accompanying the deceased in the police van to the hospital. Further, evidence of PW-3 PSI Kapale is silent on the point that DW-4 Haridas had accompanied in the police van. In crossexamination, this witness clarified that in the wireless mobile van

¶85

22 apeal182.325.doc

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while carrying deceased to the hospital, he and police constables were present. Even it does not appear probable that police persons could have accommodated strangers in the police van. Evidence of PW-3, PSI Kapale and that of PW-7 Rajesh falsifies the testimony of DW-4 Haridas.

¶87

27 The evidence adduced by the prosecution in the nature of written dying declarations, which are consistent in material particulars and recorded when the deceased was conscious and well-oriented is supported by oral dying declarations made to PW-3 PSI Kapale and PW-12 PI Manohar. The evidence of illtreatment meted out to the deceased after the marriage, situation at the scene of occurrence, kerosene residues found on the articles, circumstance of the deceased being 3 months pregnant is sufficient to hold that the accused 1 and 2 committed offence punishable under section 302 r/w. 34 of I.P.C. As regards accused 3, learned Additional Sessions Judge was right in finding him not guilty and acquitting him of all the charges framed against him. Mere apathy on his part in not rescuing his wife, may be morally reprehensible, but would not make him criminally liable. In the dying declaration recorded by PW-11 PSI Potbhare Exh.25A, which is treated as FIR, it is mentioned that at the time of incident, the accused 3 was crying. In this view of the matter, we do not find any substance in the appeal filed by the State.

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28 The next question, which needs consideration is: whether ingredients of Section 316 of I.P.C. are attracted. In the post mortem notes at Exh.24, it is mentioned that fetus in the womb of

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23 apeal182.325.doc

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the deceased was of 10 to 12 weeks. In order to attract section 316, it is necessary to prove that death of the unborn child was caused when “mother was quick with the child”. Mother is said to be quick with the child when she feels fetal moments of child between 14 to 18 weeks of pregnancy. In Mody’s Medical Jurisprudence & Toxicology, Twenty-Second Edition, at page-482, the term “quick with the child” is explained as under:

¶91

“At the first perception of ‘quickening” or the foetal movement by the mother, she is said to be ‘quick with the child’, and occurs at any time between 18-20 weeks. The sensation of quickening may be simulated by flatulence and peristaltic movements of the intestines, especially in a nervous or hysterical woman, who is anxious to have children although she is not pregnant. This is known as pseudocyesis or phantom pregnancy, or spurious pregnancy.”

¶92

It is also said that after 12 weeks of conception foetus gets life. As has been indicated above in the post mortem notes, the age of the foetus is shown as 10 to 12 weeks. In this view of the matter, the accused 1 and 2 will have to be given benefit of doubt so far as, the charge under section 316 of I.P.C., is concerned.

¶93

29 In the result, the appeal no. 182 of 2004 is partly allowed. The judgment and order of conviction and sentence passed against the accused 1 and 2 (appellant in criminal appeal no.182 of 2004) under section 302 r/w. 34 of I.P.C. is affirmed. However, their conviction under section 316 r/w 34 of I.P.C. is set aside. Fine, if any, paid by them on this count be refunded. The criminal appeal no.325 of 2005 is dismissed.

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[ M.N. GILANI, J ]

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[ P.V. HARDAS, J ]

Laxmibai Babaram Chikhalkar and Anr. v. the State of Maharashtra

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Laxmibai Babaram Chikhalkar and Anr. v. the State of Maharashtra

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