Research › Search › Judgment

Bombay High Court · body

2016 DIGILAW 538 (BOM)

GAJANAN v. STATE OF MAHARASHTRA

2016-03-09

A.S.CHANDURKAR, B.R.GAVAI

body2016
JUDGMENT : A.S. Chandurkar, J. 1. By this appeal, the appellant takes exception to the judgment dated 21-8-2013 passed by the learned Additional Sessions Judge, Kelapur in Sessions Trial No. 23/2011 whereby the appellant has been convicted for an offence punishable under section 302 of the Indian Penal Code (for short, the Penal Code) and has been sentenced for imprisonment for life. He has also been sentenced to pay fine of Rs. 2,000/- and in default thereof to undergo further simple imprisonment for one year. 2. The facts as can be gathered from the case of the prosecution are that the appellant was married to one Laxmi. As the appellant was having illicit relations with some other lady, he disliked his wife. The appellant used to harass her and used to sent her to her parental home. On 22-4-2011, at about 01:00 p.m., the appellant had beaten his wife-Laxmi and had asked her to leave her house. He thereafter poured kerosene upon her and set her on fire. The parents of the appellant, however, poured water upon her and took her to the hospital. She was initially taken to the hospital at Pandharkawada and then to Yavatmal. Her statement was recorded by a Police Officer attached to Yavatmal Police Station. On 26-4-2011, she was shifted to the hospital at Sevagram where she expired on 27-4-2011 at 09:30 p.m. Her dying declaration was recorded by the Naib Tahasildar. Initially, an offence under section 307 of the Penal Code was registered and after her death, the offence punishable under section 302 of the Penal Code was added. 3. After completing the investigation, the appellant was charged for the offences punishable under section 302 and section 498-A of the Penal Code. As the appellant did not plead guilty, he was tried after the case was committed to the Sessions Court. At the conclusion of the trial, the appellant came to be convicted for the offence punishable under section 302 of the Penal Code, but was acquitted for the offence punishable under section 498-A of the Penal Code. Hence this appeal. 4. Shri R. M. Daga, the learned Counsel for the appellant submitted that the conviction of the appellant was not sustainable in law. According to the learned Counsel, the dying declarations (Exh.32, Exh.49 and Exh.66) could not have been relied upon for convicting the appellant. Hence this appeal. 4. Shri R. M. Daga, the learned Counsel for the appellant submitted that the conviction of the appellant was not sustainable in law. According to the learned Counsel, the dying declarations (Exh.32, Exh.49 and Exh.66) could not have been relied upon for convicting the appellant. He submitted that the dying declaration at Exh.66 indicated that there was no endorsement about the mental state and physical condition of the deponent when the same was recorded. The thumb impression of the deponent was also not attested by the Police Officer, who had recorded said statement. As regards the dying declaration dated 26-4-2011 is concerned, it was submitted that only the endorsements made by the Medical Officer were exhibited vide Exh.49 and Exh.50. The scribe, who had written down the dying declaration had not been examined and therefore, the contents of said dying declaration could not be said to be proved. As regards the dying declaration dated 27-4-2011 at Exh.32 is concerned, it is submitted that though the same bears the thumb impression of right hand of the deponent, both the hands of the deponent had been bandaged and, therefore, it was not possible that her thumb impression could have been taken. He also submitted that the Naib Tahsildar had admitted in his cross-examination that when the dying declaration was collected, the Medical Officer had given his endorsement without examining the patient. It was, therefore, submitted that considering the various infirmities in all the three dying declarations, the same could not have been the basis for convicting the appellant. In support of his submissions, the learned Counsel for the appellant placed reliance on the decisions of the Hon'ble Supreme Court in Surinder Kumar vs. State of Haryana, 2012 (1) Mh.L.J. (Cri.) (S.C.) 1 : 2011 (12) SCALE 171 and State of Punjab vs. Gian Kaur and Another, 1998 Cri.L.J. 2061. He also relied upon the judgments in Vilas @ Bandu Punjabrao Misal vs. State of Maharashtra, 2016 (1) Mh.L.J. (Cri.) 493 and Datta s/o Tukaram Malwad vs. State of Maharashtra, 2015 (1) Mh.L.J. (Cri.) 275 : 2014 ALL MR (Cri) 3967. It was then submitted that there were two oral dying declarations vide Exh.40 and Exh.42 on record. He also relied upon the judgments in Vilas @ Bandu Punjabrao Misal vs. State of Maharashtra, 2016 (1) Mh.L.J. (Cri.) 493 and Datta s/o Tukaram Malwad vs. State of Maharashtra, 2015 (1) Mh.L.J. (Cri.) 275 : 2014 ALL MR (Cri) 3967. It was then submitted that there were two oral dying declarations vide Exh.40 and Exh.42 on record. The same were, however, a weak piece of evidence and if the written dying declarations were excluded from consideration, the conviction of the appellant could not be based upon these two oral dying declarations. It was, therefore, submitted that the appeal deserves to be allowed and the appellant was entitled to be acquitted. 5. Shri J.Y. Ghurde, the learned Additional Public Prosecutor for the State supported the judgment of the Sessions Court. He submitted that there were three dying declarations on record dated 22-4-2011, 26-4-2011 and 27-4-2011. The statements made therein were consistent with each other and the appellant had been clearly implicated by the deponent. He submitted that the statements made therein were truthful and were only against the appellant. He further submitted that even the deposition of the witnesses examined below Exh.40 and Exh.42 implicated the appellant and, therefore, the learned Judge of the Sessions Court had rightly convicted the appellant. He submitted that the decisions relied upon by the learned Counsel for the appellant were distinguishable and were not applicable to the facts of the present case. He, therefore, sought for dismissal of the appeal. 6. With the assistance of the learned Counsel for the parties, we have gone through the entire record and have also perused the impugned judgment. For the purposes of proving the homicidal death of Laxmi, the prosecution has examined PW-3 Dr. Ninad Nagrale at Exh.34. This witness conducted the postmortem and issued the postmortem report at Exh.35. The probable cause of death has been mentioned as septicemia and shock as a result of 69% burn injuries on the entire body. It has been further opined that there was no natural disease condition detected that would have caused or contributed to the death. This report has not been very seriously challenged in the cross-examination of said witness. It is, therefore, clear that Laxmi expired on account of shock and burn injuries. The death of said Laxmi is, therefore, proved to be homicidal. 7. This report has not been very seriously challenged in the cross-examination of said witness. It is, therefore, clear that Laxmi expired on account of shock and burn injuries. The death of said Laxmi is, therefore, proved to be homicidal. 7. To bring home the guilt of the appellant, the prosecution has relied upon three dying declarations. The first dying declaration is dated 22-4-2011 at Exh.66. This dying declaration has been recorded by PW-10 Deepak Gawande below Exh.65. This witness has stated that he was attached to Yavatmal City Police Station and after the Medical Officer examined the patient and had given his opinion that the victim was well oriented and was able to give her statement, he recorded the same. He obtained the thumb impression of the victim. On that basis, the crime came to be registered and the F.I.R. was at Exh.67. In his cross-examination, this witness has admitted that he had not asked the Medical Officer his name. He did not ascertain from the office that the person treating the patient was a doctor or not. He admitted that the thumb mark of the victim was not attested by him. 8. Perusal of this dying declaration at Exh.66 indicates that the same does not bear any endorsement of the Medical Officer that the victim was in a proper state of mind and well oriented to give the same. There is no such endorsement either at the commencement of recording the dying declaration or at the end when the dying declaration was completed. In absence of such endorsement by the Medical Officer, the credibility of the same becomes doubtful. Similarly, the thumb impression of the deponent has also not been attested. In Vilas Punjabrao Misal (supra), it was held by the Division Bench of which one of us (B.R. Gavai, J.) was a party, that if there is no endorsement by the Medical Officer that the deponent was in a mentally and physically fit state to give the dying declaration, the same cannot be said to be free from doubt. Hence, the dying declaration at Exh.66 cannot be relied upon for sustaining the conviction of the appellant. 9. The next dying declaration is dated 26-4-2011. The prosecution examined PW-8 Dr. Kamllesh Zaria at Exh.48. This witness was attached to the Kasturba Hospital, where Laxmi was admitted. Hence, the dying declaration at Exh.66 cannot be relied upon for sustaining the conviction of the appellant. 9. The next dying declaration is dated 26-4-2011. The prosecution examined PW-8 Dr. Kamllesh Zaria at Exh.48. This witness was attached to the Kasturba Hospital, where Laxmi was admitted. This witness has stated that on examining the patient, she was found fit and well oriented to give her statement. He put an endorsement at the beginning of recording of the statement as Exh.49. After her statement came to be recorded, he again examined her and found that she was fit and well oriented. He, therefore, put another endorsement at Exh.50. It is, however, to be noted that the scribe of said dying declaration has not been examined by the prosecution. This witness is also silent in that regard and he does not state as to who recorded said dying declaration. In absence of the evidence of the person who had scribed the dying declaration, the contents of said dying declaration have remained to be proved in accordance with law. 10. That leaves us with the third dying declaration which is at Exh.32. This dying declaration is dated 27-4-2011. The prosecution has examined one Shriram Urkunde as PW-2 below Exh.31. This witness was working as Naib Tahasildar at Wardha. On receiving necessary instructions, he went to Kasturba Medical Hospital and after contacting the Medical Officer who examined her to be fit, he recorded the dying declaration. According to him, the deponent was examined prior to recording her statement as well as after the same was completed. He has further stated that as the deponent was unable to give her signature, he took her thumb mark. The endorsements by the Medical Officer as regards the mental and physical state of fitness of the deponent are at Exh.51 and Exh.52. In his cross-examination, this witness has stated that there were bandages on the person of the victim and in addition to the same, intra injections were also being administered to her. It has been stated that both the palms of the victims were found burnt. 11. It is to be noted that the aforesaid evidence indicates that Laxmi was bandaged and that both her palms had been found burnt. In such situation, it has not been explained as to how she was in a position to give her thumb impression. It has been stated that both the palms of the victims were found burnt. 11. It is to be noted that the aforesaid evidence indicates that Laxmi was bandaged and that both her palms had been found burnt. In such situation, it has not been explained as to how she was in a position to give her thumb impression. Further perusal of Exh.32 indicates that the thumb impression bears clear ridges and curves. In State of Punjab (supra), the victim therein had suffered 100% burns and her dying declaration indicated presence of clear ridges and curves of the thumb impression. It was held by the Hon'ble Supreme Court that the Medical Officer who was examined therein could not satisfactorily explain as to how the thumb impression on the dying declaration could have such clear ridges and curves especially when the victim had 100% burns over her body. In the present case, Laxmi had about 69% burns. There is no explanation by the Medical Officer as regards the presence of such ridges and curves on the thumb impression. Moreover, the evidence indicates that the palms were found burnt and the body was also bandaged. The learned Counsel for the appellant has rightly placed reliance upon the judgment of the Hon'ble Supreme Court in Surinder Kumar (supra) wherein also there was absence of explanation as to the manner in which the thumb impression of the deceased was obtained when her entire body was burnt. On this count, therefore, the dying declaration at Exh.32 also cannot be relied upon to support the conviction of the appellant. 12. Once these dying declarations are excluded from consideration on account of various legal infirmities as pointed out herein above, the oral dying declarations at Exh.40 and Exh.42 may be taken into consideration. However, it is to be noted that an oral dying declaration is a weak piece of evidence as observed by the Division Bench in Vilas Punjabrao Misal (supra). PW-5 Ganpat Radewar was examined at Exh.40. He is the father of Laxmi. This witness stated that Laxmi had narrated the incident of the appellant pouring kerosene on her and setting her on fire. This witness has denied various suggestions given to him in his cross-examination. PW-6 Gangadhar Radewar was examined at Exh.42. He was the uncle of said Laxmi. PW-5 Ganpat Radewar was examined at Exh.40. He is the father of Laxmi. This witness stated that Laxmi had narrated the incident of the appellant pouring kerosene on her and setting her on fire. This witness has denied various suggestions given to him in his cross-examination. PW-6 Gangadhar Radewar was examined at Exh.42. He was the uncle of said Laxmi. He has also stated that Laxmi had narrated the incident of she being set on fire by the appellant. This witness was also given various suggestions in his cross-examination so as to discredit his version. However, as stated herein above, it would not be safe to uphold the order of conviction merely on the basis of the oral dying declarations made by the victim to her father and uncle. 13. The learned Judge of the Sessions Court has convicted the appellant by relying upon all the dying declarations. However, as stated herein above, these dying declarations have not been proved to have been recorded in accordance with law and same cannot be taken into consideration for supporting the order of conviction. Similarly, the other two oral dying declarations at Exh.40 and Exh.42 being a weak piece of evidence, cannot be the only basis for upholding the conviction of the appellant. The appellant is, therefore, entitled for benefit of doubt. Hence, the following order:- (i) The criminal appeal is allowed. (ii) The conviction and sentence awarded to the appellant/accused for the offence punishable under section 302 of the Indian Penal Code vide judgment and order dated 21-8-2013 passed by the Additional Sessions Judge, Pancharkawada in Sessions Trial No. 23/2011 are quashed and set aside and the appellant/accused is acquitted of the offence. (iii) The fine amount, if paid, be refunded to the accused. (iv) The order passed by the learned trial Judge insofar as disposal of property is concerned, is maintained. (v) The appellant is ordered to be released and set at liberty forthwith, if not required in any other case.