Research › Search › Judgment

Bombay High Court · body

2011 DIGILAW 1319 (BOM)

Vishnu s/o Bhagwan Gade v. State of Maharashtra

2011-10-19

P.V.HARDAS, S.B.DESHMUKH

body2011
JUDGMENT (Per P.V.HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.500/, in default of which to undergo Simple Imprisonment for three months, by the 1st Ad hoc Additional Sessions Judge, Buldana, by judgment dated 15/01/2006, in Sessions Case No.145 of 2005, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may be briefly be stated thus PW 8 Manik Wagh, Naib Tahsildar, who was attached to Buldana was served with a letter on 17/06/2005 requesting him to record the dying declaration of Jyotsana, who had been admitted in the hospital having sustained burns. He accordingly requested the Medical officer to ascertain if Jyotsana was in a fit condition to give her statement. The Medical Officer accordingly endorsed that Jyotsana was in a good mental condition to give her statement. The endorsement of the Medical Officer is at Exh.42. Thereafter PW 8 Manik Wagh recorded the statement of Jyotsana at Exh.45. In the dying declaration at Exh.45, Jyotsana had stated that her husband had poured kerosene on her and had set her ablaze. PW 3 Anil Jadhav, who was on duty as a Home Guard on 18/6/2005 was requested to deliver the papers to the Police Station Janefal. He accordingly delivered the papers to the Police Station. On the basis of the said dying declaration, offences punishable under Sections 307, 498A, 506 read with 34 of the Indian Penal Code came to be registered. PW 12 Dnyandev Zagare, P.S.I, who was attached to Police Station Janefal received the case diary of Crime No.34 of 2005 and he accordingly proceeded to the hospital at Buldana and recorded the statement of Jyotsana. He arrested the accused and recorded the statements of witnesses. The seized property was referred to the Chemical Analyzer along with the requisition at Exh.52. Further to the completion of investigation, it appears that a chargesheet against the accused came to be filed and offence punishable under Section 302 of the Indian Penal Code came to be added, as Jyotsana had succumbed to her injuries on 22/6/2005. 3. The seized property was referred to the Chemical Analyzer along with the requisition at Exh.52. Further to the completion of investigation, it appears that a chargesheet against the accused came to be filed and offence punishable under Section 302 of the Indian Penal Code came to be added, as Jyotsana had succumbed to her injuries on 22/6/2005. 3. On committal of the case to the court of Sessions, Trial court vide Exh.8 framed charge against the appellant and other accused for offences punishable under Sections 302, 498A read with 34 of the Indian Penal Code. The appellant and other accused denied their guilt and claimed to be tried. The accused had admitted the inquest panchanama at Exh.16, which was drawn on 22/6/2005 between 10.00 and 10.30 a.m. 4. The trial court upon appreciation of the evidence of the prosecution witnesses acquitted the other accused but convicted the appellant for an offence punishable under Section 302 of the Indian Penal Code only. Before we deal with the submissions advanced before us by Shri R.R.Shrivastava, learned counsel appointed for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. 5. The entire case against the accused revolves around the dying declaration at Exh.45 recorded by PW 8 Manik Wagh and the oral dying declarations made to PW 5 Ashok and PW 6 Mandabai, parents of deceased Jyotsana. 6. PW 8 Manik Wagh, the Naib Tahsildar, states about receiving a requisition for recording the statement of Jyotsana and proceeding to the Civil Hospital and recording the statement 5 of Jyotsana at Exh.45 after ascertaining the condition of Jyotsana from the Medical Officer. In cross-examination, he has admitted that he does not know whether father and mother of Jyotsana were present. Admission is further elicited that he had observed that Jyotsana was conscious. He has also admitted that the Medical Officer had issued the certificate at Exh.42 in his presence. He has admitted to have read over the dying declaration to Jyotsana before obtaining her thumb impression. 7. We, therefore, find that no dent has been made to the evidence of PW 8 Manik Wagh about recording the statement of Jyotsana at Exh.45. Additionally, we find that even the oral dying declarations have virtually gone unchallenged. 8. He has admitted to have read over the dying declaration to Jyotsana before obtaining her thumb impression. 7. We, therefore, find that no dent has been made to the evidence of PW 8 Manik Wagh about recording the statement of Jyotsana at Exh.45. Additionally, we find that even the oral dying declarations have virtually gone unchallenged. 8. PW 5 Ashok – father of deceased Jyotsana – states that Jyotsana was married to the appellant about 8 years prior to her death. The appellant was addicted to liquor and after consuming liquor used to suspect the character of Jyotsana. PW 5 Ashok states that he had persuaded the accused to treat Jyotsana well but the illtreatment to Jyotsana continued. In respect of the incident he states that on 17/6/2005 at about 1.00 p.m. he was informed that Jyotsana was not feeling well and therefore was asked to come to village Hiwara. On reaching the village at Hiwara, he learnt that Jyotsana was admitted in the General Hospital at Buldana and therefore, accordingly, went to the hospital at Buldana. On his enquiry Jyotsana had disclosed to him that accused no.1 Vishnu had poured kerosene on Jyotsana and had set her ablaze. He states that he had lodged a report at Police Station Janefal. In cross-examination he has admitted that the marriage of his younger daughter Sunita had been performed about three weeks prior to the incident. He has admitted that neither the appellant nor the other accused had attended the marriage. Jyotsana alone, however, had attended the marriage. He has denied the suggestion that Jyotsana was not willing to go but he had forced Jyotsana to go to the house of the appellant. He has also denied the suggestion that he had pressurized Jyotsana to implicate the appellant. 9. PW 6 Mandabai also deposes on the same lines as that of the PW 5 Ashok. She also states that Jyotsana had disclosed to her that the appellant had poured kerosene and had set her ablaze. In cross-examination, she has denied the suggestion that Jyotsana had committed suicide. She has also denied the suggestion that she had tutored Jyotsana to give a false statement implicating the appellant. 10. Post mortem on the dead body of deceased Jyotsana was performed by PW 7 Dr.Santosh Jaybhaye. He states that Jyotsana had sustained 70% superficial to deep thermal burns. In cross-examination, she has denied the suggestion that Jyotsana had committed suicide. She has also denied the suggestion that she had tutored Jyotsana to give a false statement implicating the appellant. 10. Post mortem on the dead body of deceased Jyotsana was performed by PW 7 Dr.Santosh Jaybhaye. He states that Jyotsana had sustained 70% superficial to deep thermal burns. He has opined that Jyotsana had died on account of the said burns. The post mortem report is at Exh.41. He states that on 17/6/2005, at the request of the Magistrate, he had examined Jyotsana and had certified that Jyotsana was fit to give her statement. He has proved his endorsement at Exh.42 as well as the endorsement at Exh.43 after the completion of the recording of the dying declaration. In cross-examination he has admitted that at the time of the recording of the dying declaration parents of Jyotsana were not present. He has admitted that he does not know as to when Jyotsana had been admitted in the hospital. He has denied the suggestion that he had not made the endorsements at Exh.42 and 43. 11. Shri R.R.Shrivastava, learned counsel appointed for the appellant, has urged before us that no reliance can be placed on the oral dying declaration made to PW 5 Ashok and PW 6 Mandabai, as they were interested witnesses. It is also urged before us that since the parents were present, no reliance can be placed on the dying declaration recorded by PW 8 Manik Wagh at Exh.45. Shri Mirza, learned Additional Public Prosecutor, has supported the findings recorded by the trial court and has urged for dismissal of the appeal. 12. PW 5 Ashok and PW 6 Mandabai have deposed about the oral dying declarations. There is virtually no cross-examination of these two witnesses in respect of oral dying declaration. There is nothing on record to indicate that Jyotsana was not in a fit condition to give her statement. In such circumstances, therefore, according to us, the oral dying declaration cannot be rejected. In respect of the written dying declaration at Exh.45, we find that PW 7 Dr.Jaybhaye has admitted in the cross-examination that the parents of Jyotsana were not present when the dying declaration was recorded. In such circumstances, therefore, according to us, the genuineness of the dying declaration cannot be doubted on such flimsy ground. In respect of the written dying declaration at Exh.45, we find that PW 7 Dr.Jaybhaye has admitted in the cross-examination that the parents of Jyotsana were not present when the dying declaration was recorded. In such circumstances, therefore, according to us, the genuineness of the dying declaration cannot be doubted on such flimsy ground. There is nothing on record which would indicate even remotely that Jyotsana was not in a fit condition to give her statement or that Jyotsana was tutored. We, therefore, find that the implicit reliance can be placed on the dying declaration at Exh.45. The oral dying declarations made to PW 5 Ashok and PW 6 Mandabai stand corroborated by the recitals of the dying declaration at Exh.41. 13. We, therefore, find that the prosecution has proved the offence against the appellant beyond reasonable doubt. There is no merit in the present appeal and the appeal is, therefore, dismissed confirming the conviction and sentence. Fee payable to Shri R.R.Shrivastava, learned counsel appointed for the appellant, is quantified at Rs.5000/.