The High Court dismissed the criminal appeal filed by a husband convicted for murdering his wife by setting her ablaze with kerosene, upholding the trial court's finding that the dying declaration was reliable and the evidence proved the offence beyond reasonable doubt.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 612 OF 2010
Hari Ishwar Patil
Age 30 years, Occ: Agriculturist and Service. R/o Sanowad, Tal. Patan Dist. Satara.
.. Appellant
(Org. Accd. No. 2)
Versus
The State of Maharashtra
.. Respondent
Mr. Shekhar Ingawale for appellant. Mrs. S. D. Shinde, APP for State.
CORAM: P. V. HARDAS & A. S. GADKARI, JJ.
Reserved On : MARCH 18, 2014
Pronounced On : MARCH 25, 2014
JUDGMENT [ Per P. V. Hardas, J.] :
for offence punishable under Section 302 of the Indian Penal Code and
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sentenced to imprisonment for life and to pay a fine of Rs. 5000/-, in default of which to undergo further RI for three months, by the Additional Sessions Judge, Karad, by judgment dated 28.04.2010, in Sessions Case No. 21 of 2008, by this appeal questions the correctness of his conviction and sentence.
PW 3 – ASI Tanaji Potekar, who, on 27/7/2007, was attached to the Karad City Police Station and was on duty in the Krishna Hospital at Karad was informed by the Medical Officer at about 1.45 p.m. about admission of Savita in the hospital with burns. PW 3 – ASI Potekar, accordingly, went to Ward No. 11 and requested PW 4 – Dr. Vashishta to ascertain if Savita was in a fit condition to give her statement. PW 4 – Dr. Vashishta inquired from Savita her name and the village where she was residing. Dr. Vashishta also examined Savita and then opined that Savita was in a fit condition to give her statement. PW 3 – ASI Potekar also ascertained for himself that Savita was in a fit condition to give her statement. He accordingly obtained the endorsement of the Medical
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Officer on a paper and recorded the statement of Savita. Injured Savita
narrated that she was married to the appellant on 10/5/2007 and since the beginning the appellant was disliking Savita as Savita was less educated. The appellant used to state that he wanted to perform a second marriage and, therefore, was calling upon Savita to give him divorce. In respect of the incident, Savita disclosed that on 27/7/2007 since it was a festival of Bendure, Savita and her mother-in-law had prepared delicacies and thereafter the family took their lunch. Her mother-in-law went for washing the clothes. At that time Savita and the appellant were present in the house and the appellant told Savita not to reside in the house and to go to her parents’ house. The appellant had also expressed that he did not like Savita as she was less educated. Savita, therefore, asked the appellant as to why he had married her. The appellant then caught her hand and dragged her to the kitchen and took the stove and poured kerosene on Savita and thereafter struck a match-stick and set Savita ablaze. Savita thereafter cried out for help and the neighbouring persons arrived there and extinguished the fire. The appellant also came there and extinguished the fire. Savita was thereafter brought by the appellant and the neighours to the hospital. PW 3 – ASI Potekar read over the contents of the statement to Savita and Savita admitted the contents of the statement. Thereafter the left thumb
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impression of Savita was obtained, but since it was not clear, the impression of the left big toe was obtained. The doctor thereafter examined Savita and opined that she had been in a fit condition to give her statement. The dying declaration of Savita is at Exh. 33.
PW 8 – Head Constable Vilas Patil, who, on 27/7/2007, was attached to the Patan Police Station, received the dying declaration of Savita recorded by PW 3 – ASI Potekar. On the basis of the said dying declaration, PW 8 – Head Constable Patil registered an offence vide Crime No. 91 of 2007. Further investigation was then entrusted to PI Shaikh.
PW 7 – PI Najaruddin Shaikh, who was attached to Patan Police Station, was entrusted with the investigation of Crime No. 91 of 2007. He immediately proceeded to the scene of the incident and in the presence of the panch witnesses, drew the scene of the incident panchanama at Exh. 46. From the scene of the incident, he seized one stove, match-box, burnt match-stick and burnt clothes of Savita. On the same day, he arrested the appellant under seizure memo at Exh. 47. On 28/7/2007 injured Savita succumbed to her injuries and PW 3 – ASI Potekar drew the inquest panchanama of the dead body of Savita in the presence of panchas at Exh.
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Postmortem on the dead body of deceased Savita was performed by PW 6 – Dr. Arjun Wangikar. PW 6 – Dr. Wangikar noticed that Savita had sustained 100% burns i.e. deep thermal burns. He, therefore, opined that deceased had died due to hypo-volumic shock due to 100% deep thermal burns. The postmortem report is at Exh. 43. The advance death certificate is at Exh. 44.
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appreciation of the evidence, convicted and sentenced the appellant as afore-stated, while acquitting him for an offence punishable under Section 498-A of the IPC. The trial court acquitted original accused nos.1 and 3 for the offences with which they were charged and convicted.
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assault Savita. In respect of the incident, he deposes that on 27/7/2007 at about 1 p.m. he had received a telephone call from his daughter Jyoti, who informed him that Savita had been admitted in the hospital due to burns. PW 1 – Tukaram along with his and other relatives had gone to the hospital and had found that Savita was not in a condition to speak. On the next day Savita succumbed to her injuries and his statement was recorded on 29/7/2007. In cross-examination, a suggestion was denied by Tukaram that Savita was unconscious. He had volunteered that at that time Savita was speaking. He was confronted with portion marked “A” from his statement dated 29/7/2007 that Savita was not in a position to talk.
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that Savita had not disclosed to him anything in the hospital.
Savita at Exh. 33 has admitted that he had not made any entry in the case papers regarding recording of the dying declaration. He has admitted that he was present in the hospital when Savita had been admitted in the hospital at about 1.30 p.m. He has admitted that Savita was in the casualty department for about 5 to 10 minutes. He has admitted Savita had sustained 100% burn injuries and both hands and legs of Savita were burnt. Face of Savita was also burnt. He has admitted that his two assistant constables had not assisted him in the recording of the dying declaration. He has admitted that when he had recorded the statement of Savita, treatment had already commenced and a net had been placed on Savita. The net was placed upto the chest. He has admitted that the fingers of both hands of Savita were partly burnt. He has denied the suggestion that the toe impression on the dying declaration is not the toe impression of Savita.
As per the endorsement of the Medical Officer, the recording of the dying declaration commenced at 2 p.m. and the recording concluded at 2.25 p.m. Prosecution has also examined PW 4 – Dr. Vashishta, who
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clearly stated that Savita was conscious, oriented and was talking. Savita had disclosed that she had been set ablaze by her husband and he had taken down the disclosure in the medical case papers. He has identified the medical case papers at Exh. 36. He then deposes about ascertaining if Savita was fit to give her statement at the behest of a police officer. He deposes about recoding of the dying declaration of Savita and about endorsing about the fitness of Savita. In cross-examination he has admitted that the patient had history of disponea and dysphasia i.e. the patient was having difficulty in breathing and difficulty in swallowing. At Exh. 36, the disclosure made by Savita has been recorded in which Savita had stated that she had been set ablaze by her husband by pouring kerosene on her. The medical case papers also indicate that fortwin injection had been administered to Savita. The Medical Officer, however, was not confronted in the cross-examination as to when fortwin injection had been administered to Savita i.e. whether before the recording of the dying declaration or after the recording of the dying declaration.
urged before us that admittedly Savita had sustained 100% burns and consequently it is extremely doubtful if Savita was in a fit condition to give
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her statement. Learned counsel for the appellant has also urged before us
that since fortwin injection had been administered to Savita, Savita could not have been in a fit mental condition to give her statement. The learned APP has supported the findings arrived at by the trial court.
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We, therefore, do not find any room to doubt the correctness of the dying declaration of Savita. PW 1 – Tukaram and PW 2 – Dilip have also deposed that Savita was complaining that the appellant was disliking her as she was less educated. That is the reason stated by Savita in the dying declaration and the appellant to have set her ablaze. According to us, the dying declaration at Exh. 33 is a confidence inspiring piece of evidence and we do not notice any infirmity in its recording or in its contents to doubt the veracity of the dying declaration. The dying declaration at Exh. 33, therefore, proves the offence against the appellant beyond reasonable doubt. As pointed out by us above, there is no evidence on record as to when the fortwin injection had been administered to Savita. Moreover, PW 4 – Dr. Vashishta was not questioned about the time it would take for the absorption of fortwin injection. In the absence of that evidence, an inference that Savita was not in a fit condition to give her statement cannot be drawn. In any event, the disclosure made by Savita to PW 4 – Dr. Vashishta was made immediately on her admission, much prior to the administration of the fortwin injection. The offence against the appellant, therefore, has been proved beyond reasonable doubt.
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DW 1 – Sanjay deposes that on the day of the incident, he had heard the cries from the house of the accused and had gone there and had noticed that wife of the appellant was engulfed in flames. He then states that the appellant also came there from outside and extinguished the fire. He then states that he had asked Savita as to how she had sustained burns and Savita had informed him that while lighting the stove, she had sustained the burns. Sanjay then states that Savita was removed to the hospital. In crossexamination, he has admitted that his house is not adjoining the house of the appellant. He has admitted that he is an agriculturist and his land is at a distance of 2 to 3 kms. from the village. He has admitted that in the month of July, agricultural operations were going on in the field. He has admitted that he goes to the agricultural field between 9 a.m. to 10 a.m.
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obviously stepped into the witness box in order to oblige the appellant. No reliance, therefore, can be placed on the testimony of DW 1 –Sanjay.
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s/o Digambarrao Rajhans [(2004) 13 SCC 314] . In the said case, the
Supreme Court doubted the truthfulness of the dying declaration that on a moving scooter the accused had poured kerosene on her and had set her ablaze with a match-stick. The ratio of the said judgment, in the facts of the present case, is also not applicable.
(A. S. GADKARI, J.) (P. V. HARDAS, J.)
2 issues framed by the court
Whether the appellant is guilty of murder under Section 302 read with Section 34 of the IPC by setting his wife ablaze with kerosene.
Whether the dying declaration of the deceased was recorded when she was in a fit mental condition despite sustaining 100% burns.
Colour shows how this judgement treated each authority
P. V. Radhakrishna vs. State of KarnatakaDistinguished¶12
P. V. Radhakrishna vs. State of Karnataka **[AIR 2003 SC 2859]** · Who else cites this
Criminal Appeal No. 1215 of 2005Distinguished¶12
Criminal Appeal No. 1215 of 2005
State of Punjab vs. Gian KaurDistinguished¶12
State of Punjab vs. Gian Kaur and anr. **[AIR 1998 SC 2809]** · Who else cites this
State of Maharashtra vs. Sanjay s/o Digambarrao RajhansDistinguished¶12
State of Maharashtra vs. Sanjay s/o Digambarrao Rajhans **[(2004) 13 SCC 314]** · Who else cites this
3 provisions across 1 enactments
Hari Ishwar Patil
The State of Maharashtra
P. V. Hardas
A. S. Gadkari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
