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2014 DIGILAW 2371 (BOM)

Milind Ramchandra Gharat v. State of Maharashtra

2014-12-01

G.S.KULKARNI, P.V.HARDAS

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JUDGMENT P.V. Hardas, J. 1. The Appellant who stands convicted for the offence punishable under sections 302, 452and 354 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- in default of which to undergo R.I. for 3 years and to pay a fine of Rs.2000/-in default of which further R.I. for 3 months and R.I. for 6 months and to pay fine of Rs.500/- in default to undergo further S.I. for 15 days respectively, by the Sessions Judge, Raigad- Alibag by Judgment dated 3rd March 2014 by this appeal questions the correctness of his conviction and sentence. Facts as are necessary for decision of this appeal may be stated thus : 2. PW 13 - API Suresh Warankar who on 16th May 2007 was attached to Panvel city police station and was on duty received a telephone call from Gandhi Hospital at 10.45 a.m. He was informed about admission of injured Pratibha and the appellant in hospital with injuries. He accordingly proceeded to the hospital for recording the dying declaration. On reaching hospital, he contacted Resident Medical Officer and requested him to ascertain if the injured were in a fit condition to give their statements. The Medical Officer on examining the injured opined that injured Pratibha was in a fit condition to give her statement. PW 13 - API Suresh Warankar accordingly recorded the dying declaration of Pratibha at Exhibit 52. In the said dying declaration, Pratibha had disclosed that the appellant as usual had come to her house and had poured kerosene on her from a can and had set her ablaze. PW 13 -API Suresh Warankar thereafter obtained thumb impression of Pratibha on the dying declaration and also requested the Medical Officer to put his endorsement on the dying declaration. He thereafter, recorded statement of the appellant at Exhibit 53. After coming to the police station, he forwarded both statements to NRI Sagari police station and also intimated NRI Sagari police station on telephone. 3. PW 11 - PSI Sambhaji Salokhe who on 16th May 2007 was attached to NRI Sagari police station was handed over the dying declaration of Pratibha by PW 12- Sr.P.I. Kisan Bahure. On the basis of dying declaration of Pratibha at Exhibit 52 he registered an offence vide Crime No.I-44/2007 under section 307 of the Indian Penal Code. 3. PW 11 - PSI Sambhaji Salokhe who on 16th May 2007 was attached to NRI Sagari police station was handed over the dying declaration of Pratibha by PW 12- Sr.P.I. Kisan Bahure. On the basis of dying declaration of Pratibha at Exhibit 52 he registered an offence vide Crime No.I-44/2007 under section 307 of the Indian Penal Code. PW 11- PSI Sambhaji Salokhe along with PW 12- Sr.P.I. Kisan Bahure proceeded to the scene of the incident. On reaching the scene of the incident, he noticed half burnt clothes as well as a half burnt shirt. One mobile hand set was also found. A kerosene can, match box and a burnt matchstick were found. A cash memo in the name of Ravindra Kathor Patil was also found there. These articles were seized from the scene of incident and a panchanama was drawn in presence of witnesses at Exhibit 40. Photographs of the scene of the incident were taken. Statements of witnesses were recorded. Further investigation was then entrusted to PW 12-Sr.P.I. Kiran Bahure who was attached to NRI Sagari police station with investigation of Crime No.I-44/2007. He recorded statements of the witnesses and also recorded supplementary statements. On 5th October, 2007 he arrested the appellant under a arrest panchanama at Exhibit 21. On 1st June, 2007 the seized property was referred to the Chemical Analyser under requisition at Exhibit 48. Report of the Chemical Analyser is at Exhibit 49. Further to the completion of investigation, charge sheet against the appellant was submitted. 4. On the case being committed to the Court of Sessions, the trial Court vide Exhibit 9 framed charge against the appellant for the offence punishable under sections 452, 354 and302 of the Indian Penal Code. The appellant vide Exhibit 10 denied his guilt and claimed to be tried. Prosecution in support of its case examined 13 witnesses. Defence of the appellant was of denial in respect of setting deceased Pratibha ablaze. The trial Court by relying on evidence of the prosecution convicted and sentenced the appellant as afore stated. 5. Prosecution had examined PW 1 - Shilpa Chirlekar sister-in-law of deceased, PW 2- Laxmibai Chirlekar mother of deceased, PW 3 - Pandharinath Vishnu Chirlekar husband of deceased who did not support prosecution and were declared hostile. The trial Court by relying on evidence of the prosecution convicted and sentenced the appellant as afore stated. 5. Prosecution had examined PW 1 - Shilpa Chirlekar sister-in-law of deceased, PW 2- Laxmibai Chirlekar mother of deceased, PW 3 - Pandharinath Vishnu Chirlekar husband of deceased who did not support prosecution and were declared hostile. Prosecution had also examined PW 6 - Rukmini Patil, PW 7 - Sulochana Phadke and PW 8 - Sainath Salunkhe who also did not support prosecution and were declared hostile. PW 4 - Dhananjay Thakur Father of the deceased supported the prosecution to the extent of Pratibha having made an oral dying declaration to him. Prosecution relied upon the dying declaration recorded by PW 9 - Aji Nerle Tahsildar at Exhibit 35 and dying declaration at Exhibit 52 recorded by PW 13- API Suresh Warankar. 6. PW 9 - Aji Nerle Tahsildar who had recorded the dying declaration of Pratibha at Exhibit 35 deposes about going to the hospital and requesting Medical Officer to ascertain if Pratibha was in a fit condition to give her statement. He then deposes about recording dying declaration of Pratibha at Exhibit 35. According to him, Pratibha had disclosed that on the day of the incident the appellant had come to the house of Pratibha as usual and had poured kerosene on her and had set her ablaze. In cross-examination on behalf of the appellant, he has admitted that he was aware that answers given by the injured were required to be written in the same language of the injured. He however, admitted that while scribing the answers given by Pratibha, he had used his own language. Thus, the dying declaration of Pratibha at Exhibit 35 is not in the language of Pratibha. The scribe has not written the exact words in which Pratibha had narrated the incident. Apart from it, we find that the dying declaration at Exhibit 35 suffers from serious infirmity. PW 9 - Aji Nerle does not depose that the dying declaration had been read over to Pratibha and that Pratibha had admitted contents to have been correctly recorded. The dying declaration at Exhibit 35 is in a printed proforma. The printed proforma also does not bear any column that the dying declaration had been read over to the declarant and after admitting the contents of the dying declaration, the declarant had put her thumb impression. The dying declaration at Exhibit 35 is in a printed proforma. The printed proforma also does not bear any column that the dying declaration had been read over to the declarant and after admitting the contents of the dying declaration, the declarant had put her thumb impression. This dying declaration therefore, in our opinion will have to be left out of consideration. 7. PW 13 - API Suresh Warankar also deposes about recording of dying declaration of Pratibha at Exhibit 52. Even PW 13 -API Suresh Warankar does not depose that the dying declaration had been read over to Pratibha and Pratibha had admitted the contents to have been correctly recorded. In the absence of such evidence, in our opinion no reliance whatsoever can be placed on the dying declaration. Apart from that, we find that there is variance in the two dying declarations in respect of the incident. 8. Mr. Shirish Gupte learned senior counsel for the appellant has referred to the Judgment of the Division Bench of this Court in Raju Kachru Adangale vs. The State of Maharashtra2014 ALL MR (Cri) 4085. The Division Bench of this Court to which one of us (P.V. Hardas, J) was a member by relying on the Judgment of the Supreme Court in Shaikh Bakshu & ors vs. State of Maharashtra (2008) 1 SCC (Cri) 679 and Abdul Riyaz Abdul Bashir vs. State of Maharashtra 2012 ALL MR (Cri) 2188 had held that unless there was evidence that the dying declaration had been read over to the declarant and that the declarant had admitted the contents to have been correctly recorded, no reliance could be placed on the dying declaration. The two dying declarations at Exhibit 35 and at Exhibit 52 suffers from same infirmity and in our opinion, no reliance whatsoever can be placed on the dying declarations. 9. Prosecution has examined PW 4 -Dhananjay Thakur Father of deceased Pratibha who deposes that Pratibha had made a oral dying declaration to him that she had been set ablaze by the appellant. According to him, Pratibha had informed him that the appellant had come to her house and had dragged her to the bedroom and thereafter had poured kerosene on her and had set her ablaze. He was cross-examined and contradictions in his deposition at portion marked 'A to D' were put. According to him, Pratibha had informed him that the appellant had come to her house and had dragged her to the bedroom and thereafter had poured kerosene on her and had set her ablaze. He was cross-examined and contradictions in his deposition at portion marked 'A to D' were put. By virtue of the aforesaid contradictions, it is apparent that the oral dying declaration to which he has alluded to cannot be made the basis for conviction. Apart from omissions touching the incident in question, contradictions at portion marked 'A to D' have rendered testimony of this witness to be wholly unreliable. Apart from that, an oral dying declaration is primarily a weak piece of evidence and unless the Court finds that implicit reliance can be placed on the evidence relating to oral dying declaration, no conviction can be based on the oral dying declaration. In the present case, we find that implicit reliance cannot be placed on the testimony of PW 4 - Dhananjay Thakur and therefore, even the oral dying declaration cannot be made the basis for sustaining conviction of the appellant. 10. Prosecution had examined PW 5 - Dr.Vinay Shelar who claims that history had been narrated by the injured Pratibha that she had sustained injuries due to kerosene stove. The said narration of the history in no manner advances the prosecution case. Statement of Pratibha which was recorded as a dying declaration also cannot be made use of against the appellant in the trial against him. We thus, find that there is no evidence whatsoever for sustaining the conviction of the appellant and in our opinion is entitled to be given benefit of doubt. 11. Accordingly, Criminal Appeal is allowed and conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine if paid, by the appellant be refunded to him. Since the appellant is in jail, he be released forthwith if not required in any other case.