apeal35.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.35 of 2015
Raghunath son of Ramdas Shende,
aged about 32 years,
occupation - Labour,
resident of Juna Surla,
Tq. Mul, Distt. Chandrapur.
ig ..... Appellant.
[in jail]
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Mul,
Distt. Chandrapur. ..... Respondent.
*****
Ms. Sonali Saware, Adv., [appointed] for the Appellant.
Mr. V.A. Thakre, Addl. Public Prosecutor for the respondent-
State.
*****
CORAM : B. P. DHARMADHIKARI
AND
A.S. CHANDURKAR, JJ.
Date : 20th September, 2016 ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 2 ORAL JUDGMENT [Per A.S. Chandurkar, J.]:
01. The Appellant in the present appeal filed under Section 374 (2) of the Criminal Procedure Code, 1973 challenges his conviction for having committed an offence punishable under Section 302 of the Indian Penal Code. By the Judgment dated 7th July, 2011 in Sessions Case No. 32 of 2010, he has been sentenced to Rigorous Imprisonment for Life with a fine of Rs.1,000/-.
02. It is the case of the prosecution that the appellant was married with one Dhrupada in the year 1996. The appellant had two children. The appellant, however, used to doubt the character of his wife and used to harass her. On 19th November, 2009 at about 5.00 p.m., when the appellant returned home, he enquired with his wife as to what she was doing for the entire day. He picked up a quarrel with her and thereafter poured kerosene on her person. He then set her on fire. Dhrupada was then removed to the hospital by her neighbours.
Initially, an offence punishable under Section 307 of the Penal Code came to be recorded. However, on 25th November, 2009, said Dhrupada expired on account of burn injuries. The appellant was accordingly charged for having committed the offences punishable ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 3 under Sections 302 and 498-A, Indian Penal Code. After the case was committed to the Sessions Court, the appellant did not plead guilty.
He was accordingly tried and at the conclusion of the trial, the appellant was sentenced in the manner stated herein above. Being aggrieved, the present appeal has been filed.
03. Ms. Sonali Saware, the learned counsel [appointed] to represent the appellant, submitted that the evidence on record was not sufficient to sustain the conviction of the appellant. According to her, though there were two Dying Declarations at Exhs.44 and 36 on record, there were various inconsistencies therein and same could not be relied upon. Though PW 6 and PW 8 had referred to the statements made by Dhrupada to them, their depositions also did not warrant acceptance in view of inconsistencies therein. Both the said witnesses were related with the deceased. The mental and physical health of Dhrupada, while recording the Dying Declarations, had not been brought on record and, therefore, a doubt was created in that regard.
It was, therefore, submitted that the conviction of the appellant was liable to be set aside.
04. Shri V. A. Thakre, the learned Addl. Public Prosecutor for the ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 4 State, on the other hand, supported the conviction of the appellant.
He submitted that both the Dying Declarations had been recorded after following the prescribed procedure and when the deponent was in a fit state of mental and physical health. The depositions of PW 6 and PW 8 corroborated the earlier Dying Declarations and the version of said witnesses was consistent. Inconsistencies, if any, were trivial and it count.
was not necessary to discard the case of the prosecution on said Hence it was submitted that the appeeal had no merit and was liable to be dismissed.
05. We have heard the respective counsel for the parties at length and we have also perused the records of the case.
06. The victim Dhrupada died on account of septicemic shock due to multiple burns. This is evident from the Post-mortem Report at Exh.39, which indicates that her death was homicidal.
07. Since it is the case of the prosecution that there were two Dying Declarations on record, it would be necessary to consider the same first. The Dying declaration, that is first in time, is at Exh.44 dated 19th November, 2009. The same has been recorded by one ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 5 Ghanshyam Khobragade, who was the Asstt. Sub-Inspector attached to Police Station, Gadchiroli. He was examined as PW 12. According to him, on the basis of Intimation Letter at Exh.43, he had been to Govt.
Hospital to record the statement of Dhrupada. According to him, Dr. Vinod Chaudhari [PW 13] was present when he recorded the statement of Dhrupada.
Perusal of Exh.44 indicates that the same does not bear the time when the recording of said Dying Declaration had commenced.
There is no endorsement of the Doctor at the commencement of such recording, that the deponent was in a fit mental and physical state to give her statement. At the end of said statement, the same is shown to have been signed by Dr. Chaudhari at 11.50 p.m.. The Doctor has stated that the statement was recorded in his presence. In absence of the endorsement that the patient was in a fit state of mind after the statement was recorded, the state of her health while the statement was recorded has not come on record. In his cross-examination at Exh.47, it was admitted by the Doctor that he had not noted anywhere that at about 11.30 p.m., on 19th November, 2009, the patient was physically and mentally fit to give her statement. He further admitted that when the patient was admitted, her general condition was poor.
Similarly, PW 12, who recorded said statement, admitted that he had ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 6 not taken any endorsement from the Doctor, that the patient was fit and was able to give her statement. He also admitted that at that point of time, medical treatment of the patient was going on. Thus, in absence of any evidence or endorsement showing the mental and physical state of health of Dhrupada, it would not be safe to rely upon the Dying Declaration [Exh.44]. The same does not inspire confidence for its acceptance.
08. Coming to the second Dying Declaration, the same is at Exh.36, and it is shown to have been recorded between 8.00 a.m., and 8.30 a.m., on 20th November, 2009. This Dying Declaration was recorded by the Naib Tahsildar who was examined as PW 10. In his deposition at Exh.35, he has stated that the Doctor had examined Dhrupada and had found her fit for the statement to be recorded.
Perusal of this Dying Declaration at Exh.36 indicates the following statement written by PW 13 - Dr. Vinod Choudhary:-
"Pt. Is conscious and able to give statement to PC on duty."
In his cross-examination, the Naib Tahsildar admitted that there was such endorsement on the Dying Declaration and that he did not tell the Medical Officer that such remark was wrong. He denied the suggestion that as the printed form was sent through the Police ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 7 Constable on duty, the Doctor had endorsed the words "To PC." He further admitted that on the Dying Declaration, there was no endorsement about the presence of the doctor.
PW 13 - Dr. Vinod Choudhary was also cross-examined on this aspect. He stated that along with the Executive Magistrate, the Police Constable was there as usual and, therefore, he had mentioned "PC on duty."
As noted herein above, the Naib Tahsildar in his deposition had categorically denied that the printed form was sent through any Police Constable. The fact that this Dying Declaration at Exh.36 was recorded by the Naib Tahsildar and presence of any Police Constable was denied by him. There is no explanation brought on record by the prosecution as to the endorsement by PW 13 that the patient was fit to give statement to the police constable on duty. On account of absence of any explanation and as there is no endorsement with regard to the state of mental and physical condition of Dhrupada after this statement was recorded, it would not be appropriate to rely upon this Dying Declaration for sustaining the conviction of the appellant.
09. It is also to be noted that the appellant in support of his defence had examined one Dr. Madhuri Weake at Exh.81. She has ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 8 stated that when Dhrupada was brought to the hospital, she was in a semi-conscious state. Her condition was not satisfactory. Such state of health continued till 24th November, 2009. Considering this evidence about the state of health of Dhrupada, it was necessary for the prosecution to have brought sufficient evidence on record with regard to the mental and physical condition of Dhrupada when the Dying Declarations were recorded.
10. Turning to the oral dying declarations that were relied upon by the prosecution, the brother of Dhrupada, Dhanraj Bhoyar, was examined as PW 6. In his deposition, he has stated below Exh.26 that after the incident when he met his sister in the hospital, she told him that the appellant had come in a drunken state and had asked her to provide him meals. As the food was not ready, he started beating Dhrupada with a stick. The sister of Dhrupada, Urmila, was examined as PW 8. In her deposition at Exh.32, she has stated that Dhrupada told her that the appellant was doubting her character and thereafter he poured kerosene on her.
From the depositions of these two witnesses, there is inconsistency as to the reasons attributed to the appellant to have set Dhrupada on fire. While PW 6 refers to meals not being kept ready, ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 9 PW 8 does not refer to meals not being ready, but has stated that the appellant was doubting her character. Considering the fact that both these witnesses were the brother and sister of the deceased, their depositions have to be considered with some caution. Considering the aforesaid inconsistency in their version, it would not be safe to rely upon their statements to hold against the appellant.
11. Thus, from the aforesaid material on record, it is found that the Dying Declarations at Exhs. 44 and 36 would have to be discarded on account of defects in recording the same. Similarly, the depositions of PW 6 and PW 8 also do not warrant acceptance considering the inconsistencies therein. Except aforesaid evidence, there is no other evidence on record to sustain the conviction of the appellant. In this situation, the appellant would be entitled to the benefit of doubt.
12. In view aforesaid, the following order is inevitable:-
ORDER [a] The Appellant-accused is given benefit of doubt.
Accordingly, Judgment of conviction dated 07th July, 2011 delivered by Additional Sessions Judge, ::: Uploaded on - 22/09/2016 ::: Downloaded on - 23/09/2016 00:51:03 ::: apeal35.15 10 Chandrapur, in Sessions Case No. 32 of 2010, is quashed and set aside, and he is acquitted of offence punishable under Section 302, Indian Penal Code.
[b] He be set free immediately if his custody is not required in any other matter.
[c] Muddemal property be dealt with as directed by Trial Court after appeal period is over.
[d] Charges of counsel [appointed] are quantified at Rs.5,000-00 [rupees five thousand only].
Judge Judge
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CERTIFICATE
I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
Uploaded by : R.B. Hedau, Uploaded on : 22nd Sept. 2016 Pvt. Secretary.
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