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2014 DIGILAW 1363 (BOM)

Balu s/o. Ratan Kale v. State of Maharashtra

2014-06-26

B.P.DHARMADHIKARI, C.V.BHADANG

body2014
Judgment B.P. DHARMADHIKARI, J. Five convicts in Sessions Case No. 126/2007 are before this Court in these two separate appeals under Section 374(2) of the Code of Criminal Procedure. Accused no.3 Balu Ratan Kale has filed his appeal separately vide Criminal Appeal No.246/2011. Other four accused, who are members of same family and close relatives of three deceased, have filed other appeal. 2. Additional Sessions Judge, Washim has, vide judgment delivered on 19.4.2011, convicted appellants for offences punishable under Sections 143, 448 and 302 of the Indian Penal Code. He has acquitted all these accused of offences punishable under Sections 452 and 504 of the Indian Penal Code under S.235(2) Cr.P.C. Punishment of Rigorous Imprisonment of six months and fine of Rs.200/- (in default to suffer Simple Imprisonment for 15 days) is imposed for offence punishable under Section 143 of the Indian Penal Code. Punishment of Rigorous Imprisonment of six months and similar fine or punishment in default is ordered for offence punishable under Section 448 of the Indian Penal Code. Life Imprisonment with fine of Rs.2000/- each and simple imprisonment for six months, in default thereof, has been awarded for offence punishable under Section 302 of the Indian Penal Code. 3. Dr. Kalsi, learned counsel for the appellants, has submitted that conviction is based only upon three dying declarations. Two dying declarations are given by Deepak s/o Rambhau Thorat, while the remaining is given by his father Rambhau Thorat. She submits that in an incident alleged to have taken place between 20.00 to 20.30 hours at village Mungla on 14.9.2007, all accused persons are alleged to have forced entry into the residential house of deceased persons, poured kerosene upon them and burnt them. She points out that Rambhau was father of Deepak while Narmada was mother of said Deepak and wife of Rambhau. Accused No.4 Badrinath is paternal uncle of deceased Deepak. Accused No.5 Sau. Latabai happens to be his aunt and wife of Badrinath. Accused No.1 Mangal and Accused No.2 Amar are cousins of deceased Deepak i.e. sons of Badrinath and Latabai. 4. Learned counsel for the appellants contends that the prosecution could not produce any eyewitness and evidence of PW-1 Ashok Jagannath Thorat cannot be used against appellants. She points out that Ashok happens to be brother of deceased Rambhau as also accused Badrinath. 4. Learned counsel for the appellants contends that the prosecution could not produce any eyewitness and evidence of PW-1 Ashok Jagannath Thorat cannot be used against appellants. She points out that Ashok happens to be brother of deceased Rambhau as also accused Badrinath. She further states that their real sister Shobha has been examined as defence witness and she has stated that there was quarrel between deceased Narmada and her husband and as a consequences thereof, she having threatened to set herself on fire, did accordingly. Deepak and Rambhau tried to extinguish that fire and in the course suffered burn injuries. According to her, other prosecution witnesses are not very relevant insofar as this story is concerned. She points out that three dying declarations, which have been relied upon by Sessions Court to convict the appellants, are mutually inconsistent and, therefore, needed to be disbelieved. She submits that dying declaration, first in point of time, is alleged to be given by Deepak and recorded by PSI Kamble (PW5). He was aware of all legal requirements like certification of Medical Officer and need of getting it recorded through an Executive Magistrate. Deepak, in this dying declaration, is alleged to have stated that his mother was set on fire by Balu Ratan Gopala and Mangal poured kerosene from kerosene can in the house of Deepak on the person of his mother Narmada. She was then set on fire. His uncle and aunt were instigating others to kill. She points out that this dying declaration is allegedly signed by said Deepak. PSI Kamble claimed that, on the basis of this dying declaration, he lodged First Information Report at 2.30 hours on 15.9.2007 under Sections 307, 147, 149, 452 and 504 of the Indian Penal Code. The other dying declaration of Deepak is recorded by Executive Magistrate Nirbhay Jain (PW3) on 15.9.2007 allegedly at 12.40 hours in afternoon. In this dying declaration, Deepak is claimed to have stated that all accused persons came together, beat them and confined them in house. His uncle Badrinath poured kerosene on his person and Mangal used matchstick to set him on fire. Kerosene was also poured on person of his father and mother. 5. Learned counsel for appellants points out that doctor nowhere has certified that Deepak was in fit condition to give such statement either at the beginning of its recording or at the end. Kerosene was also poured on person of his father and mother. 5. Learned counsel for appellants points out that doctor nowhere has certified that Deepak was in fit condition to give such statement either at the beginning of its recording or at the end. The said statement shows that Deepak was not knowing writing and, therefore, could not put his signature. The dying declaration of Rambhau was then allegedly recorded by Executive Magistrate Nirbhay Jain between 1.00 pm to 1.12 pm on very same day. Rambhau is claimed to have stated that accused persons beat them, pelted stones on their house and, thereafter, confined them in it. Kerosene was poured on their persons and they were burnt. He has also stated that land dispute was going on between parties. Learned counsel points out that impression of right leg thumb of Rambhau is obtained with remark that his hand is burnt. She again contends that in this declaration also there is no proper certification by Dr. Vinay Virwani (PW 4). She argues that these three dying declarations are, therefore, not proved as required by law and could not have been used by Sessions Court to return a finding of guilt against the appellants. 6. To drive home these contention, she has also invited attention of Court to evidence of Executive Magistrate/Naib Tahsildar Nirbhay Jain, Medical Officer Dr. Vinay Virwani and PSI Madhav Kamble. 7. By pointing out suggestion given to PSI Madhav Kamble (PW5), during his cross-examination, she argues that identity or involvement of accused no.3 is not established, as there are several persons by name Balu in Gopal community at village Mungla. She submits that population of said village is about five to seven thousand and number of Gopal community is large in that area. She states that Deepak and Rambhau did not know surname or other details of Balu claimed to be an associate of other accused persons and appellant no. 3 is not that Balu. 8. By inviting attention to postmortem report, she submits that percentage of burn injuries sustained by Rambhau and Deepak was very high and doctor, in his cross-examination, has stated that general condition of patient was not satisfactory. She points out that because of that serious condition, thumb marks of their relatives were obtained by hospital authorities on bed-head ticket. 8. By inviting attention to postmortem report, she submits that percentage of burn injuries sustained by Rambhau and Deepak was very high and doctor, in his cross-examination, has stated that general condition of patient was not satisfactory. She points out that because of that serious condition, thumb marks of their relatives were obtained by hospital authorities on bed-head ticket. Doctor also accepted that his certificate did not mention that Deepak and Rambhau were properly oriented and in fit state of mind. She also points out that Executive Magistrate/Naib Tahsildar was not able to state, whether Rambhau and Deepak were in same ward or in different wards when he recorded the statement. This witness asked other persons near patients to go out and according to her, this shows possibility of tutoring the deceased. She also points out that clothes sent for Chemical Analysis were seized almost after 20 days of incident. She has invited attention to deposition of PW1 Ashok Jagannath Thorat to urge that said witness has discredited himself and his evidence is, therefore, rightly discarded by Sessions Court. 9. Learned APP Shri S.S. Doifode argues that PW1 Ashok became hostile in peculiar circumstances and those circumstances show that accused persons had accepted their guilt and to pay compensation or to make amends for it. He also invites attention to statement of Ashok recorded under Section 164 of the Code of Criminal Procedure. 10. Inviting attention of Court to two dying declarations, he submits that first dying declaration of Deepak is consistent with his second dying declaration. He further states that confining deceased in room/house was with intention to kill and, therefore, the accused persons are rightly found guilty under the provisions of Sections 147 and 149 of the Indian Penal Code. Dying declaration of Rambhau corroborates the dying declaration of Deepak. Executive Magistrate has recorded later two dying declarations after proper examination of patients and certification from doctor. Doctor has certified that Deepak as also Rambhau were conscious for recording their D.D. before the Executive Magistrate began recording their dying declarations and were conscious throughout as per later certificates issued by doctor. He invites attention to these certificates to urge that PW-4 Dr. Virwani has found Deepak and Rambhau conscious to give dying declaration. 11. Learned APP further contends that no dispute about signature of Deepak on his first dying declaration at Exh.123 was raised by appellants. He invites attention to these certificates to urge that PW-4 Dr. Virwani has found Deepak and Rambhau conscious to give dying declaration. 11. Learned APP further contends that no dispute about signature of Deepak on his first dying declaration at Exh.123 was raised by appellants. Similarly, no questions in this respect or about his thumb impression were put to PW3 Nirbhay Jain, who recorded later dying declaration or to PW4 Doctor Virwani. He also points out that trial court has rejected evidence of defence witness Shobha on valid grounds. 12. PW5 Madhav Kamble (Police Sub-Inspector), after recording dying declaration, had proceeded to Police Station and F.I.R. was registered on 15.9.2007 at 2.30 pm. He submits that Deepak died on 16.9.2007 in the morning, while Rambhau expired on that day only in the afternoon. Thus, both persons were conscious and fit to give statement and accordingly the same have been recorded. Previous history of disputes between parties is pressed to point out that accused therefore had motive to commit such a crime. He, therefore, contends that conviction, by accepting these dying declarations, warrants no interference. 13. PW1 Ashok is the only witness examined by prosecution on incident. He happens to be brother of appellant Badrinath and deceased Rambhau. He has stated that Rambhau and Badrinath were residing separately. He has also deposed about earlier strained relations between the parties and earlier criminal prosecution. He has then spoken about the incident which took place on 14.9.2007. He has, on 11.2.2009, deposed that incident took place about one and half years ago. He stated that he knew all accused. He then stated that at the time of incident, Rambhau told accused no.4 that he would see to it that accused no.4 looses his job and he would do something wrong on his own life. He stated that accused nos. 1 to 3 did not come to house of Rambhau and did not ask him to withdraw the prosecution. He also stated that accused no.1 did not ask accused no.2 to bring a stick to teach a lesson to Rambhau. He stated that his sister Shobha tried to convince Rambhau and his wife. He also denied that all accused persons entered house and by pouring kerosene on person of Rambhau set him ablaze. APP was then given permission to cross-examine him. Various portions in his statement were read out. He denied correctness thereof. He stated that his sister Shobha tried to convince Rambhau and his wife. He also denied that all accused persons entered house and by pouring kerosene on person of Rambhau set him ablaze. APP was then given permission to cross-examine him. Various portions in his statement were read out. He denied correctness thereof. In his further cross-examination, he stated that in short time there was a flair and Deepak had less burns, he came out of the house, his brother Rambhau and his wife Narmada were lying inside house. He accepted that he had compromised the matter with accused no.4. He stated that maintenance as well as education of children of Rambhau is agreed to be done by accused no.4. He also stated that therefore he agreed not to depose in Court in tune with his police statement. He further stated that before police he had stated the factual incident. But in the light of his earlier assertion that portion mark "A", "B" and "C" in his statement read out to him were not correct, this sentence in his cross-examination does not mean that said portions were correctly recorded by the police authorities. What was that correct narration is not brought on record. He was cross examined by accused no.3 Balu i.e. appellant in Criminal Appeal No. 246/2011. In cross examination, he has stated that accused no.3 did not come to house of Rambhau and he was not involved in any act. Deposition of this witness and his conduct, therefore, clearly shows that it is not credit worthy. 14. Appellants have strongly relied upon evidence of Shobha Harihar, who has been examined as defence witness. She, in chief, has stated that deceased Narmada returned home after doing labour work and Rambhau demanded labour charges from her, which she declined. There was quarrel between them. Narmada threatened Rambhau to set herself on fire and then proceeded to do so. Deepak and Rambhau tried to extinguish the fire and in the process sustained burn injuries. She shouted for help and her brother Ashok came there. Ashok and Shobha poured water on the person of all injured. However, her ignorance, which has come on record in cross examination about school in which Badrinath was earlier serving, about dispute between Rambhau and Badri, about quarrel and Badri beating Rambhau etc. She shouted for help and her brother Ashok came there. Ashok and Shobha poured water on the person of all injured. However, her ignorance, which has come on record in cross examination about school in which Badrinath was earlier serving, about dispute between Rambhau and Badri, about quarrel and Badri beating Rambhau etc. or punishment of Badri by competent court, all show that she was either feigning it or then not giving correct answers and was trying to favour accused persons i.e. her brother Badrinath and his family. Trial Court, therefore, has rightly discarded her evidence also. 15. Only evidence available on record in this background is in the shape of three dying declarations. Various technical objections have been raised by learned counsel for appellants. First statement of Deepak recorded by PW5 Madhav has been treated as dying declarations and it is at Exh.123. He has stated that on 14.9.2007 between 8.00 to 8.30 hours, he himself and his parents were present in the house. His cousin brother Mangal, Sandeep, Badrinath and Latabai wife of Badrinath as also Balu Ratan Gopal came there, abused him. Mangal, Sandip and Balu forcibly entered the house. Sandeep proceeded to beat his mother and his father Rambhau tried to pacify Sandeep. Mangal pushed his father away. Balu Gopal caught hold of his mother and Mangal poured kerosene from kerosene can in Deepak's house on person of his mother Narmada and set her on fire. His uncle Badrinath and aunt Latabai were shouting loudly and inducing others by using words "kill them" and because of this noise, his uncle Ashok Thorat and other people "gathered. Ashok Thorat intervened and separated them and then everybody went away. He and his father got burnt in an attempt to extinguish the fire on person of his mother. He has stated that all these persons entered the house with an intention to kill them and attempted to burn them by pouring kerosene. Police brought him to hospital at Washim. He has then stated that his oral report is read out to him and it is written correctly by Shri Kamble. Thereafter, he has placed his signature on right hand side and on left hand side PW5 Kamble has placed his signature as witness. Police brought him to hospital at Washim. He has then stated that his oral report is read out to him and it is written correctly by Shri Kamble. Thereafter, he has placed his signature on right hand side and on left hand side PW5 Kamble has placed his signature as witness. On the basis of this report and dying declarations at 2.30 am on 15.9.2007, offence under Sections 147, 149, 307, 452 and 504 of the Indian Penal Code has been registered by PW5. That F.I.R. is at Exh.124 and it also mentions burning of mother Narmada only. 16. PW5 PSI Madhav Kamble has proved these documents. He has stated that he recorded it between 12.30 am to 1.00 am. Statement was recorded at his dictation by his writer by name Vijay Ghuge. He accepted that he did not obtain endorsement of Medical Officer prior to recording of statement of Deepak and he was aware that such statement needed to be recorded by Executive Magistrate. He also stated that when patient was admitted in hospital, their relative Ashok was with them. He has stated that on way to hospital, Deepak and Rambhau were in condition to speak. He denied that while coming to Washim, he got knowledge that lady (Narmada) had set herself on fire. He further accepted in remand papers of 16.9.2007. It was mentioned that Deepak and Rambhau had sustained bum injuries while extinguishing fire of mother Narmada. He has stated that he did not see, whether both hands of Deepak were burnt. He denied that Deepak was not in a position to put his signature. He accepted that Medical Officer at Washim was present in the hospital. 17. Other dying declaration of Deepak is recorded on 15.9.2007 by PW-3 Executive Magistrate Nirbhay Jain. He has stated that he obtained certificate of Doctor before proceeding to record dying declaration and after recording it, he asked some preliminary questions and was satisfied that Deepak and Rambhau were fit to give the statement or dying declaration and as per the narration, he recorded dying declarations. It was read over and then Deepak was asked to sign on it. Because of inability he put his thumb print on it which he has attested and put his own signature, that dying declaration is at Exh.66. 18. Exh.66 shows that it bears signature of Medical Officer Dr. It was read over and then Deepak was asked to sign on it. Because of inability he put his thumb print on it which he has attested and put his own signature, that dying declaration is at Exh.66. 18. Exh.66 shows that it bears signature of Medical Officer Dr. Virwani and his certificate that patient was conscious to give dying declaration. Later certificate at the end of dying declaration shows that patient was conscious while his dying declaration was recorded. These observations also apply to dying declaration Exh.67 of Rambhau. In his cross-examination, Nirbhay (PW3) Executive Magistrate has admitted that though dying declaration is to be recorded in question and answer form, Exh.66 and 67 are not recorded by him accordingly. He denied that patients Deepak and Rambhau were not in condition to talk. He expressed inability to state, whether both these persons were in one and same ward or in different wards. He denied that he did not record dying declaration of these persons and he did not visit hospital. 19. Perusal of Exh.66 in above background shows that there the deceased Deepak has given first surname of his uncle and aunt as also father's name of Mangal, Pradeep and one Amar with their surnames. He has mentioned appellant Balu as one out of people belonging to Gopal community and stated that he was not aware of surname. He has specifically given number of accused as 6. In his oral statement / D.D. recorded by PSI Kamble, he has not mentioned name of any Pradeep and described Balu as Balu Ratan Gopal. In evidence, there is attempt to show that either Mangal or Sandeep is also known as Pradeep, but apparently there is no accused before the Court by name Pradeep son of Badrinath Thorat. Existence of any such third son of Badrinath is also not brought on record. On dying declaration, Executive Magistrate has mentioned that Deepak cannot sign. The said inference is from words used in Marathi "Sahi yet nahi" which when translated implies does not know to sign. Executive Magistrate has not mentioned on dying declaration that because of injuries to his hands, Deepak is unable to sign. This remark and language employed, if construed independently, shows that Deepak was not knowing writing or how to sign. This dying declaration has been recorded between 12.40 to 12.55 in the afternoon. Executive Magistrate has not mentioned on dying declaration that because of injuries to his hands, Deepak is unable to sign. This remark and language employed, if construed independently, shows that Deepak was not knowing writing or how to sign. This dying declaration has been recorded between 12.40 to 12.55 in the afternoon. Exh.67 is the dying declaration of deceased Rambhau. He has mentioned again very same six names with similar mention of community about Balu. He has stated that he was not knowing the surname of Balu. He has stated that Balu was of Gopal community. His right leg thumb impression has been obtained and Executive Magistrate has put a remark that hands of Rambhau are burnt. This dying declaration has been recorded between 1.00 to 1.12 in the afternoon. This specific remark on DD of Rambhau also helps in comprehending the marathi remark (supra) on DD of Deepak. 20. Dr. Vinay Virwani has given certificate on both these dying declarations. He has certified that Deepak and Rambhau were fully conscious to give dying declarations and at the end i.e. after recording of DD was over, again mentioned that patient was conscious while giving the dying declarations. He has stated that he was the only C.M.O. on duty for outdoor as also indoor patients at Akola hospital on 15.9.2007. He has further stated that casualty and burn ward are situated at a distance of 5 to 7 minutes and he has stated in chief itself that Exh.66 and 67 were given to him in casualty. In paragraph 5, after perusal of bed-head ticket, in cross-examination, he has mentioned that consciousness and fit state of mind are two different things. He has stated that if general condition of patient is not satisfactory and physical condition is not good, patient cannot be said to be in a condition to give a statement. After seeing bed-head ticket at Exh. 120 and 121, he has stated that both patients were admitted in the hospital on 15.9.2007 at about 2.00 am and at that time their general condition was not satisfactory. He has stated that considering their serious condition, thumb marks of their relatives were obtained on bed head ticket. He also accepted that his certificate on dying declarations do not show well orientation or fit state of mind of patients. He has further stated that on both thumb impression ridges and curves are appearing. He has stated that considering their serious condition, thumb marks of their relatives were obtained on bed head ticket. He also accepted that his certificate on dying declarations do not show well orientation or fit state of mind of patients. He has further stated that on both thumb impression ridges and curves are appearing. He denied that he issued certificate while sitting outside burnward without examining the patients. He accepted that he did not treat both the patients. 21. When the on DD of Deepak recorded by executive magistrate is compared with the Exh.123 i.e. statement of Deepak recorded by PSI Kamble with signature of Deepak upon it, the change in story is apparent. This dying declaration in margin shows date "15.9.2007" with time "2.30". On the basis of this statement/dying declaration, F.I.R. is claimed to be registered at 2.30 am on 15.9.2007. That F.I.R. is at Exh.124 and it mentions Section 307 of the Indian Penal Code and does not speak of Section 302 of the Indian Penal Code. PSI Kamble has stated that he recorded the statement of Deepak in between 12.30 am to 1.00 am in night between 14.9.2007 and 15.9.2007 i.e. in wee hours on 15.9.2007. He has further stated that distance between village Mungla and Washim is about 40 km. Bed-head tickets show that patients were admitted in hospital at 2.00 am on 15.9.2007. From Washim, patients were taken to Akola and PSI Kamble could not answer the question, whether patients were discharge from Washim Hospital at 00.00 hours. He has stated that he reached Mungla after receiving information of crime. He took entry in case diary at about 9.30 pm about burning of three persons and reached Mungla between 10.00 to 10.30 pm. Exh.36 is first report of crime by City Kotwali, Akola, Davakhana Chowki at about 3.00 pm on 15.9.2007. They have mentioned that Narmada was brought dead at Akola. She was being brought for treatment and on arrival she was declared dead. Kamble speaks of recording of statement of Deepak at Civil Hospital, Washim. He has also stated that Medical Officer, Washim had referred these patients to Akola. 22. Other important piece of evidence on record is Chemical Analyser's report at Exh.30. It is dated 10.12.2007. However, it is not on clothes of accused persons. Kamble speaks of recording of statement of Deepak at Civil Hospital, Washim. He has also stated that Medical Officer, Washim had referred these patients to Akola. 22. Other important piece of evidence on record is Chemical Analyser's report at Exh.30. It is dated 10.12.2007. However, it is not on clothes of accused persons. Evidence of PSO Rajendra Nagre (PW6) shows that on 2.10.2007 i.e. 17 days after the incident, he seized clothes of deceased under panchanama Exh.51 and forwarded them to office of Chemical Analyser. Thus, clothes of deceased are forwarded to Chemical Analyser on 16.10.2007. Accused No.3 Balu was arrested on 15.9.2007 and Badrinath and Latabai were arrested on very same day. Thus, this arrest is immediately after the incident and still it is not clear, whether their clothes were seized or forwarded to Chemical Analyser to detect any kerosene residue. Accused Amar was arrested on 17.9.2007, while accused Mangal has been arrested on 21.9.2007. Position in relation to seizure of their clothes is also not explained. Records do not show that their clothes were either seized or then forwarded to Chemical Analyser. 23. In their answers given to statements recorded under section 313 of the Code of Criminal Procedure, all accused have denied giving of any dying declaration either by Deepak or then by Rambhau. Though Executive Magistrate Nirbhay, in his evidence recorded during trial, has explained that Deepak was not in position to sign because of burn injuries to his hands, it is on 11.6.2009 i.e. about 21 months after the incident. His remark on dying declaration shows that Deepak was not knowing how to sign. His evidence further shows that he could not tell whether Rambhau and Deepak were in same ward or in different wards. PSI Kamble has claimed that he has obtained signature of Deepak. Thus, this material on record is inconsistent. If first dying declaration of Deepak is to be accepted, there is improvement in his later dying declaration recorded by Executive Magistrate. It further shows that Deepak was in position to sign earlier but was not in position to do so later on. Deepak could not give details of name of Balu to Executive Magistrate. All these circumstances appear to us to create doubt on the DDs. Possibility of improvement in later dying declaration cannot be ruled out. It further shows that Deepak was in position to sign earlier but was not in position to do so later on. Deepak could not give details of name of Balu to Executive Magistrate. All these circumstances appear to us to create doubt on the DDs. Possibility of improvement in later dying declaration cannot be ruled out. We, therefore, are not in position to sustain conviction only on the basis of these dying declarations. 24. Accordingly, we set aside the judgment dated 19.4.2011 delivered by Additional Sessions Judge, Washim in Sessions Case No. 126/2007. Appellants are acquitted of offences punishable under Sections 448, 302 and 143 of the Indian Penal Code. They be set at liberty forthwith if not required in connection with any other case. Accordingly, both the Criminal Appeals are allowed. Appeal allowed.