apeal.668.02.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.668 OF 2002
State of Maharashtra,
through Police Station Lonar,
District Buldhana. .... Appellant
-- Versus --
Vishnu Narayan Wagh,
Aged 26 years,
R/o Pimprikhandare, Tahsil Lonar,
District Buldhana. .... Respondent
Shri I.J. Damle, Additional Public Prosecutor for the Appellant/State.
Shri R.D. Khade, Advocate for the Respondent
CORAM : KUM. INDIRA JAIN, J.
DATE : APRIL 19, 2017. ORAL JUDGMENT :-
This appeal takes an exception to the judgment and order dated 30/09/2002 passed by the learned Assistant Sessions Judge, Buldhana, in Sessions Case No.55/2001 thereby convicting the sole accused of the offences punishable under Sections 498-A, 306, 323 and 504 of the Indian Penal Code. ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 2 02] The facts, in brief, giving rise to the present appeal may be stated thus :
i. Accused was married to Lata on 01/06/1997. After marriage, she went to cohabit with accused at Pimpri Kandhare, Tahsil Lonar, District Buldhana. Initially for two years, Lata was treated well in her matrimonial house. Thereafter, she was being ill-treated by accused. He used to abuse her, her mother and her sister. She was often beaten by accused as he was suspecting her character.
ii. On 08/02/2001 at about 05:15 p.m., accused beat and abused Lata, her mother and sister. Lata asked him not to abuse and not to ill-treat her, else she would commit suicide. On that, accused remarked that he would not suffer loss. Reacting on the comment of accused, Lata picked up a kerosene container, poured kerosene on her person and set herself on fire. Accused did not extinguish fire. He left the house. Lata shouted. Hearing her cries, neighbourers assembled and she was taken to Primary Health Center, Bibi.
::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 3 iii. Medical Officer informed the Police. Her dying declaration was recorded by Head Constable Uttam Atram. Thereafter, Lata was referred to General Hospital Jalna. Dr. Ravindra Guthe [PW-6] informed Police Station Kadim about admission of a burn patient. PW-1 Head Constable Shivaji Chawre recorded dying declaration of the patient at General Hospital, Jalna. On the basis of statement of Lata, Crime No.0/2001 came to be registered under Sections 498-A, 323 and 506 of the Indian Penal Code at Kadim Police Station. During investigation, PW-7 Naib Tahsildar Padmakar Kulkarni was requested to record dying declaration of the patient. He visited hospital and recorded statement of Lata. The said statement was submitted to the Police Station. On the basis of dying declaration recorded by Executive Magistrate, Crime No.16/2001 was registered under Sections 498-A, 323, 504 and 506 of the Indian Penal Code against the accused.
iv. On 12/02/2001, Police Inspector Nayak received the investigation. He visited the hospital and recorded ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 4 statement of deceased. She succumbed to injuries on 14/02/2001. Then offence under Section 306 of the Indian Penal Code was added. Head Constable Magre recorded inquest-panchnama. It was followed by postmortem performed by Dr. R.T. Ghute [PW-6] and Dr. Poharegaonkar. Medical Officers opined probable cause of death as septicemia due to 78% burns. Statements of relatives of Lata and other witnesses were recorded. On completing investigation, charge- sheet was submitted to the Court of Judicial Magistrate First Class, Mehkar, who in turn committed the case for trial to the Court of Sessions.
03] On committal, Trial Court framed charge against the accused vide Exh.13. He pleaded not guilty and claimed to be tried. Accused raised a specific defence and submitted that Lata was cooking food and that time she was filling kerosene in stove. Stove flared up and clothes of Lata were caught by fire. Accused submitted that he never ill-treated Lata as alleged by the prosecution, but at the instance of her close relatives, he has been falsely involved.
::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 5 04] In support of its case, prosecution examined in all eight witnesses. Considering the evidence of prosecution witnesses and submissions made on behalf of the parties, Trial Court came to the conclusion that dying declarations were inconsistent and prosecution could not prove the guilt of accused beyond reasonable doubt. In consequence thereof, accused was acquitted. Hence, this appeal by the State of Maharashtra. 05] Heard Shri I.J. Damle, learned Additional Public Prosecutor for appellant/State and Shri R.D. Khade, learned Counsel for respondent. With the assistance of the learned Counsel for the parties, this Court has scrutinized the evidence of prosecution witnesses. On meticulous evaluation of the evidence, this Court, for the below mentioned reasons, is of the opinion that view taken by the Trial Court is a reasonable and possible view and so no interference is warranted in this appeal. 06] Prosecution case mainly revolves around the dying declarations. In all, three dying declarations were recorded. PW-1 Head Constable Chawre, PW-7 Executive Magistrate Padmakar Kulkarni and PW-8 Police Inspector Keshav Nayak are ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 6 the witnesses of dying declarations. The dying declarations recorded by PW-1 Head Constable Chawre is first in point of time according to the prosecution. This, however, does not appear to be correct. It appears that first dying declaration of Lata was recorded at Primary Health Center, Bibi. This dying declaration [Exh.28] was not produced along with the charge-sheet. It was at the instance of accused that statement of Lata recorded at Primary Health Center was produced by the investigating agency. Dying declaration [Exh.28] indicates that Lata was preparing chapatis and since kerosene in stove finished, she was filling kerosene in the stove and stove got flared up and her clothes caught fire. As statement [Exh.28] is first in point of time and no role is attributed to accused in getting this statement recorded, it appears to be true, reliable and trustworthy statement of the victim. Needless to state that investigating agency was duty bound to place entire material before the Court including the statement [Exh.28]. Suppression of material piece of evidence would clearly indicate that investigating agency did not approach the Court in a fair and just manner, thereby causing serious prejudice to the accused by keeping behind the statement [Exh.28].
::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 7 07] Even assuming that statement [Exh.28] is to be kept out of consideration for a moment, moot question arises here is whether dying declarations [Exhs.44 and 59] recorded by the Police Officer and the Executive Magistrate are consistent, trustworthy and believable. The Trial Court has disbelieved these dying declarations mainly on the ground of absence of Medical Certificate and cogent medical evidence regarding fitness of patient to make her statement. Reliance is placed by the Trial Court on the decision of -
1. Paparambaka Rosamma and others vs. State of Andhra Pradesh - [1999 Cri.L.J. 4321]
2. Kodadi Shriniwasa Lingam and others vs. State of Andhra Pradesh - [2001 Cri.L.J. 602 AP] 08] It is pertinent to note that Sessions Case No.55/2001 was decided by the Trial Court on 30/09/2002. Before judgment was delivered by the Trial Court, the Hon'ble Supreme Court in case of Laxman vs. State of Maharashtra - [AIR 2002 SC 2973, on 27/08/2002 overruled the decision in Paparambaka Rosamma vs. State of Andhra Pradesh and approved the decision of the Hon'ble Supreme Court in Koli Chunilal Savji ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 8 vs. State of Gujarat - [AIR 1999 SC 3695]. The Hon'ble Supreme Court in paragraph 3 observed thus :
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 9 identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die.
There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 10 case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
09] As the decision in Paparambaka Rosamma was overruled by the Hon'ble Supreme Court, the observations of the Trial Court based on the decision of Paparambaka Rosamma are totally against the judicial pronouncement and settled position of law that for want of medical certificate, dying declaration cannot be relied upon. Though the observations are incorrect, question remains whether both the dying declarations, on which strong reliance is placed by the prosecution, inspire confidence and can be believed as truthful and trustworthy.
10] Needless to state that in order to pass the test of reliability, a dying declaration has to be subjected to a very close ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 11 scrutiny keeping in view the fact that statement has been made in the absence of accused who had no opportunity of testing the veracity of the statement by cross-examination. Once the court comes to a conclusion that dying declaration is the truthful version as to the circumstances of the death and the assailant of victim, no further corroboration is required to such a dying declaration.
11] In the case on hand, evidence of PW-1 Head Constable Chawre and PW-7 Executive Magistrate Kulkarni clearly indicates that in the statement [Exh.44] before the Head Constable, she stated that accused abused and assaulted her. She told him that he always harasses her, she would set herself on fire. Thereupon, he said that if she sets herself on fire, nothing wrong would take place. Before the Executive Magistrate, she disclosed that accused abused and harassed her daily, she became angry and in the hit of anger, poured kerosene on her person and set her on fire. The utterances by accused stated in dying declaration recorded by the Police Officer are missing in the dying declaration recorded by the Executive Magistrate. An abetment, according to prosecution, is only the ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 12 utterances by the accused that he will not be at lost if she commits suicide. On the alleged utterances, one dying declaration is totally silent. The law on applicability of Section 306 of the Indian Penal Code is well crystallized by the Hon'ble Supreme Court, and Division Bench and Single Bench of this Court. A reference to the decision in Criminal Appeal No.100/2016, dated 11/04/2017 can be made here for the sake of convenience.
12] So the law is well settled that abetment under Section 306 of the Indian Penal Code requires the prosecution to prove an abetment under Section 107 of the Indian Penal Code. Prima facie, in the dying declaration recorded by the Executive Magistrate, no abetment is attributed to the accused. There is no cogent and convincing evidence to indicate that accused instigated, aided or abated the commission of suicide by the deceased.
13] In the above premise, view taken by the Trial Court is a possible and reasonable view. No perversity is noticed in the findings recorded by the Trial Court though observations based ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 ::: apeal.668.02.jud 13 on the decision in Paparambaka are incorrect as the same was overruled by the Hon'ble Supreme Court in the case of Laxman vs. State of Maharashtra, the conclusion drawn by the Trial Court is, however, found sustainable in law. No perversity is noticed. Hence, the following order :
ORDER i. Criminal Appeal No.668/2002 is dismissed. ii. No costs.
(Kum. Indira Jain, J.) *sdw ::: Uploaded on - 02/05/2017 ::: Downloaded on - 27/08/2017 23:57:35 :::