1 apeal268.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.268 OF 1999
Maroti s/o Damdu Manik,
aged about 40 years,
r/o CAD Camp, Pulgaon,
Tahsil : Deoli, District Wardha. ... Appellant
- Versus -
State of Maharashtra, through
Police Station Officer, Pulgaon. ... Respondent
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Shri R.M. Patwardhan, Advocate for appellant.
Shri H.D. Dubey, Additional Public Prosecutor for respondent.
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CORAM : P.N. DESHMUKH, J.
DATED : APRIL 17 AND 20, 2017 ORAL JUDGMENT :
This appeal takes exception to the judgment and order dated 10/9/1999 passed by learned Additional Sessions Judge, Wardha in Sessions Trial No.185/1995 whereby appellant (hereinafter referred to as "accused") came to be convicted for the offences punishable under Sections 498-A and 306 of Indian Penal Code and sentenced to suffer rigorous imprisonment for two years for the offence punishable under Section 498-A of Indian Penal Code and for five years for the offence ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 2 apeal268.99 punishable under Section 306 of Indian Penal Code. Both the sentences are directed to run concurrently.
2) The prosecution case can be stated, in brief, as follows :
Deceased Pramila was married to accused in the year 1994. On 3/10/1994 Ashok Tiwari, Head Constable received information about admission of deceased in Hospital at Sevagram for sustaining burn injuries and thus, he visited Hospital and recorded her statement vide Exh. 33 on the same day at 4.30 p.m. On the strength of said statement, offence punishable under Section 498-A of Indian Penal Code was registered vide Crime No. 0/1994 at Police Station, Sevagram and papers were sent to Police Station, Pulgaon for further action as incident had taken place within jurisdiction of said Police Station where Crime No.248/1994 was registered. It is the further case of prosecution that on the same day, i.e. on 3/10/1994 P.W.11 Sulochana Nighade, Executive Magistrate recorded dying declaration at 4.40 p.m. (Exh. 41). In both the dying declarations, it is stated that accused had demanded dowry and entered into quarrel with deceased, due to which she committed suicide by pouring petrol on her person and set her on fire. She died in Hospital while taking treatment on 6/10/1994. After death of Pramila, offence punishable under Section 306 of Indian Penal Code came to be added in the present crime.
3) During the course of investigation, post mortem was
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3 apeal268.99
performed wherein deceased is stated to have sustained 91% burn injuries and certified to have died due to septicemic shock as a result of extensive burns.
4) During the course of investigation, P.W.9 Vinod Parate, PSI visited the spot and drew spot panchanama (Exh. 18) and seized articles. After recording statements of witnesses, charge-sheet was filed in the Court of learned Judicial Magistrate, First Class, Pulgaon. In the course of time, case came to be committed to the Sessions Court for trial.
5) Charge was framed against accused for the offences punishable under Sections 498-A and 306 of Indian Penal Code, to which he pleaded not guilty and claimed to be tried. The defence of accused is of total denial and that on the day of incident, he was on duty and no quarrel had taken place between him and his wife prior to incident. In the alternative, it is the case of accused that deceased had white-patches on her body, due to which she used to remain nervous and, therefore, had committed suicide.
6) To establish charge levelled against accused, prosecution in all has examined as many as 12 witnesses and commenced its evidence by examining P.W.1 Balmukund Vyas, panch on spot panchanama (Exh. 18), P.W.2 Triveni Jawade, mother of deceased, P.W.3 Dnyaneshwar Misal, Head Constable, who on 4/10/1994 was attached to Police Station, ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 4 apeal268.99 Pulgaon and was on duty and received papers in Crime No. 0/1994 of Police Station, Sevagram and had registered offence vide Crime No. 248/1994 at Police Station, Pulgaon vide Exh. 21, P.W.4 Ravindra Jawade, brother of deceased, P.W.5 Sugandha Kambale, maternal aunt of deceased in whose evidence, letter (Exh. 26) came to be exhibited since referred in the cross-examination, P.W.6 Pramod Dhobe, who has acted as panch on spot panchanama along with P.W.1 Balmukund Vyas, P.W.7 Pralhad Sukhadeo, another panch witness in whose presence one plastic can came to be seized under panchanama (Exh. 30) having petrol smell on 9/10/1994 from the bath-room in the house of accused, P.W.8 Ashok Tiwari, Head Constable, Buckle No.849, who on issuing memo to Medical Officer vide Exh. 32, on receiving medical endorsement recorded first dying declaration at Exh. 33 on 3/10/1994 at about 4.30 p.m. and on that strength, had registered Crime No. 0/1994 at Police Station, Sevagram, of which papers were then sent to Police Station, Pulgaon, P.W.9 PSI Vinod Parate, who drew spot panchanama in presence of P.W.1 Balmukund Vyas and P.W.6 Pramod Dhobe and on recording statements of witnesses has handed over further investigation to PSI Rothe, who filed charge-sheet, P.W.10 Dr. Bipinchandra Tirpude, who has performed post mortem and prepared notes and proved the same (Exh. 38), P.W. 11 Sulochana Nighade, Naib Tahsildar, Executive Magistrate, who has recorded second dying declaration (Exh. 41) on the same day at 4.40 p.m. and concluded its evidence by examining P.W.12 Dr. Sanjiv Jindal, who has proved his ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 5 apeal268.99 medical endorsement at Exh. 40 given by him on memo (Exh. 32) issued for certifying physical fitness of deceased by P.W.8 Head Constable P.W.8 Ashok Tiwari.
7) Accused examined as many as four defence witnesses in support of his case, namely, D.W.1 Manorama, his sister, to establish healthy relations between deceased and accused and that accused was on duty at the time of incident, D.W.2 Harischandra, neighbour, D.W.3 Dr. Surendra Nitnaware to establish that deceased was having white coloured patches on her person for which she was being provided medicines and D.W.4 Dr. Dilip Gupta on the history given by deceased of her sustaining burn injuries accidentally.
8) Learned trial Court on considering evidence and documents on record, convicted accused as aforesaid. Hence, this appeal.
9) Heard Shri Patwardhan, learned Counsel for appellant, and Shri Dubey, learned Additional Public Prosecutor for respondent.
10) On behalf of appellant, submissions advanced were three-fold. Firstly, on the point of dying declarations - Exh.33 and Exh.41 respectively, both dated 3/10/1994, it is submitted that they are word to word similar and as such, raised doubt about their truthfulness. It is further contended that there is no evidence of its scribe about their ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 6 apeal268.99 reading over contents of dying declaration to its maker. It is further pointed out that though according to prosecution case, time gap between recording these two documents is of 10 minutes only - one recorded by Police and another by Executive Magistrate, evidence of these two witnesses being P.W.8 Ashok Tiwari, Head Constable, who has recorded Exh. 33 and P.W.11 Sulochana Nighade, Executive Magistrate, who has recorded Exh 41, is silent about presence of each other in the Hospital for recording dying declaration. Therefore, it is submitted that both the documents are doubtful and for that purpose, learned Counsel for accused has relied upon the case of Parasram Chandrasha Ghante vs. The State of Maharashtra (2014 ALL MR (Cri) 5089} and Rama Rajdhar Koli and another vs. State of Maharashtra (2002 ALL MR (Cri) 136} and submitted that case of prosecution based on above two dying declarations is full of doubts and cannot be relied upon.
11) Learned Counsel for accused then by referring to evidence of P.W.2 Triveni Jawade, mother, P.W.4 Ravindra Jawade, brother and P.W.5 Sugandha Kambale, maternal aunt of deceased has submitted that from their evidence, prosecution has not established cruelty by accused to deceased, due to which she had committed suicide. Thirdly, by referring to spot panchanama and evidence of Officer, who drew spot panchanama along with seizure panchanama of petrol can, it is contended that as per contents of the spot panchanama, there was smell of kerosene on the spot ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 7 apeal268.99 as well as the burnt cloth pieces found on the spot. However, what is recovered during the course of investigation is can having smell of petrol. It is thus submitted that seizure of said can is subsequent to recording of dying declarations and to corroborate its contents, said seizure of can is established, as according to contents of dying declarations, deceased has stated that she had poured petrol on her person while in the spot panchanama, which was recorded prior to recording of dying declaration, reference is to kerosene smell and by pointing out such contradictory case of prosecution, it is submitted that recovery of can is just to establish contents of dying declarations as aforesaid. It is contended that since from above evidence, two versions are coming on record, neither of them can be acted upon to establish guilt of accused. It is thus submitted that case of prosecution is full of doubts and in fact, from the medical documents, since history given by deceased is of her sustaining burn injuries accidentally, case of accused of his false implication is found substantiated. It is, therefore, prayed that appeal be allowed.
12) Shri Dubey, learned Additional Public Prosecutor for respondent, on the other hand, has contended that in the evidence of P.W.2 Triveni Jawade, mother, P.W.4 Ravindra Jawade, brother and P.W.5 Sugandha Kambale, maternal aunt of deceased, there are no material contradictions and thus, it is established that it is due to cruelty caused to deceased by accused, she committed suicide. It is further ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 8 apeal268.99 contended that involvement of accused is also established from the dying declarations on record, which are consistent with each other and thus, has supported the impugned judgment and prayed for dismissal of appeal.
13) In the light of submissions advanced as aforesaid, it is found necessary to first consider evidence of P.W.8 Ashok, Tiwari, Head Constable, who has recorded first dying declaration (Exh. 33) and has stated that on 3/10/1994 when he was attached to Police Chowky within Sevagram Medical College was informed of admission of deceased Pramila on having sustained burn injuries and, therefore, for recording her statement, he visited the Hospital and after her physical condition was certified to be fit by P.W.12 Dr. Sanjeev Jindal on memo of requisition (Exh. 32), he recorded dying declaration wherein deceased has stated that as accused had suspected her character, she was subjected to ill- treatment and, therefore, she committed suicide by pouring petrol on her person. Another ground alleged to be stated by deceased for commission of suicide is that accused was demanding Rs.12,000/- from her father and for that reason, she committed suicide. P.W.8 Ashok Tiwari, Head Constable has proved dying declaration (Exh. 33) recorded on 3/10/1994 at 4.30 p.m. by him and on the basis of the same, had registered Crime No.0/1994 with Police Station, Sevagram and forwarded documents in the said crime along with Exh. 33 to Police Station, Pulgaon within whose jurisdiction crime took place, for further necessary action. ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 :::
9 apeal268.99 In cross-examination, P.W.8 Ashok Tiwari has admitted that he required about an hour to record dying declaration (Exh. 33) and that same is recorded in the absence of Medical Officer.
14) Above evidence is contradicted by evidence of P.W.12 Dr. Sanjiv Jindal, who has stated that on 3/10/1994 he was present in Sevagram Hospital in whose presence deceased was admitted and has certified her to be in a fit condition to make her statement as per his medical endorsement (Exh. 40). In cross-examination, Doctor in clear terms admitted that he was present throughout when statement was recorded, as such this piece of evidence contradicts evidence of P.W.8 Ashok Tiwari. Even otherwise, admittedly evidence of P.W.8 Ashok Tiwari, Head Constable is silent about his reading over contents of Exh. 33 to deceased and about her admitting same to be recorded as stated by her.
15) Similarly, evidence of P.W.11 Sulochana Nighade, Executive Magistrate reveals that on the same day, i.e. on 3/10/1994 she visited Sevagram Hospital for recording dying declaration and on obtaining medical endorsement (Exh. 41) from Medical Officer certifying patient to be in a fit condition to make a statement recorded dying declaration (Exh.
41) on 3/10/1994 at 4.40 p.m. Evidence of P.W.12 Dr. Sanjiv Jindal is found corroborated when he has stated that on that day, on requisition (Exh. 40), he on examining the physical condition of patient, made his endorsement that the patient was fit to make a statement. As per further ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 10 apeal268.99 evidence of Executive Magistrate, she then recorded dying declaration wherein deceased stated that as accused was suspecting her character and was demanding dowry, she committed suicide by pouring petrol on her body and set her person on fire as prior to that, quarrel took place between her and accused. Above stated contents of subsequent dying declaration about alleged quarrel between accused and deceased to have taken place prior to her committing suicide are silent in her first dying declaration, thus, there appears substantial inconsistencies in the dying declaration. Similarly, evidence of P.W.11 Sulochana Nighade about reading over contents of dying declaration to its maker and she admitting contents of dying declaration to be recorded as stated by her are silent.
16) Similarly, from the evidence of P.W.8 Ashok Tiwari, Head Constable and P.W.11 Sulochana Nighade, Executive Magistrate, it has come on record that both these officials had recorded dying declarations being Exhs. 33 and 41 on 3/10/1994 in the gap of 10 minutes as Exh. 33 was recorded at 4.30 p.m. and second dying declaration was recorded at 4.40 p.m. However, neither of these witnesses has attributed presence of each other in Sevagram Medical College though in the cross-examination, P.W.11 Sulochana Nighade has admitted presence of relatives of deceased at that time. In that view of the matter, fact of recording such dying declarations raises doubt. Moreover, as stated above, P.W.12 Dr. Sanjeev Jindal was admittedly present when second dying declaration (Exh. 41) ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 11 apeal268.99 was recorded and he has also admitted that in his presence, first dying declaration (Exh.33) was recorded. However, evidence of P.W.8 Ashok Tiwari as aforesaid is clear that Medical Officer was not present when Exh. 33 was recorded. In that view of the matter, learned Counsel for accused has rightly placed reliance on the case of Parasram Chandrasha Ghante (cited supra) wherein while considering credibility of dying declaration, it is observed that dying declaration is such that it would take some time to record. In that case, both dying declarations made to PSI and Special Executive Magistrate were said to have been recorded at 11 p.m. on 15/9/2002. However, neither of these two witnesses had made reference of each other and, therefore, both the dying declarations were not relied since were not inspiring confidence as aspect of timing raised a great doubt.
Similar are the facts in the appeal in hand wherein Exh. 33 and 41 both dying declarations are recorded on the same day in a gap of 10 minutes, however, scribes of both these documents have not made reference of each other.
17) With regard to evidence of P.W.8 Ashok Tiwari, Head Constable and P.W.11 Sulochana Nighade, Executive Magistrate being silent on the aspect of reading over contents of dying declarations to deceased, learned Counsel for accused has rightly placed reliance on the case of Rama Rajdhar Koli and another (cited supra) where while ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 12 apeal268.99 considering admissibility of dying declaration recorded by Police, it is noted that such witness, who has recorded dying declaration must state specifically in his deposition that the statement was read over to deceased and contents were accepted to be correct and that in the absence of such evidence, so called statement of deceased cannot be treated as dying declaration to base conviction. In that case, evidence of Doctor was also not corroborating evidence of Police Officer, who has recorded dying declaration.
Similar are the facts involved in the appeal in hand as there is no evidence establishing that contents of dying declarations were read over to deceased and evidence of P.W.8 Ashok Tiwari, Head Constable and P.W.12 Dr. Sanjiv Jindal is totally contrary to each other about presence of Doctor at the time of recording first dying declaration (Exh. 33).
18) Looking to the evidence on record as aforesaid, case of prosecution based on dying declarations is found to be full of doubts and as such, cannot be accepted establishing involvement of accused.
19) While considering case of prosecution about alleged ill- treatment provided by accused to deceased, due to which she committed suicide, evidence of P.W.2 Triveni Jawade, mother of deceased, is to the effect that deceased was married to accused in the year 1994 and while she was cohabiting with him, she used to write letters to her wherein she ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 13 apeal268.99 has complained that accused was demanding Rs.12,000/- and on that count, was providing her ill-treatment. On considering cross-examination of this witness on this aspect, she appears to have materially improved her version as she has deposed that in her statement recorded by Police, though she has stated so, she is unable to assign any reason as to why fact of accused demanding Rs.12,000/- as aforesaid is not mentioned in her statement. Defence has got said omission duly proved from the evidence of P.W.9 Vinod Parate, Investigating Officer, who has recorded statement of P.W.2 Triveni Jawade.
Above omission is definitely found to be material in view of case of prosecution of deceased committing suicide due to ill-treatment alleged to be provided to her by accused. However, on considering the same, by no stretch of imagination, it can be held that there was any demand by accused. In fact, alleged letter has been duly admitted and is marked as Exh.26 in the cross-examination of P.W.5 Sugandha Kambale, maternal aunt of deceased since was referred to this witness in her cross- examination and on going through its contents, P.W.5 Sugandha Kambale has admitted that in said letter, Pramila has not complained that accused was demanding Rs.12,000/-. In that view of the matter, the case of prosecution fails on this count also being not reliable at all.
20) As pointed out on behalf of accused, it is further material to note that according to evidence of P.W.1 Balmukund Vyas, witness on spot ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 14 apeal268.99 panchanama, said document came to be drawn in his presence on 3/10/1994 on visiting spot and has proved the spot panchanama as (Exh.18). In the spot panchanama, there is reference of some pieces of saree and blouse in burnt condition found lying on the spot, which were emitting smell of kerosene while contents of Exhs. 33 and 41 reveal of deceased committing suicide by setting her on fire by pouring petrol on her person. In view of such contents, fact of burnt pieces of saree and blouse emitting smell of kerosene does not corroborate with the version of deceased. In that view of the matter, there appears much substance when it is contended on behalf of accused that after recording dying declarations as aforesaid on 3/10/1994, six days thereafter, i.e. on 9/10/1994 to corroborate contents of dying declarations about deceased setting her on fire by pouring petrol on her person, one 5 litres' can having smell of petrol is shown seized from the spot. It is also material to note that there is no reference to any such can when spot panchanama came to be drawn on the day of incident itself and burnt clothes and match box came to be seized.
21) Having considered above aspects in appeal, prosecution cannot be said to have established its case beyond reasonable doubt and in fact, case of accused of his false implication appears to be more probable, which is further found substantiated from the evidence of DW 3 Dr. Nitnaware, who has deposed that at the time of incident, deceased was ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 ::: 15 apeal268.99 taking treatment from him as she was having white patches on the left side of her person and for having such patches, she was nervous and had developed mental depression. According to his evidence, any white patch can be patch of leproxy. His evidence goes unchallenged about deceased having white patches as deposed by him. Similarly, D.W.4 Dr. Dilip Gupta, who at the material time was attached to Sevagram Medical College, has stated that he as a Medical Officer was attending Burn Ward and had seen medical papers of deceased, who was examined by P.W.12 Dr. Sanjiv Jindal and as per history stated by her and as shown on the medical papers, she had sustained burn injuries accidentally.
22) On considering evidence on record as a whole, thus, it is seen that prosecution has failed to establish its case against accused beyond reasonable doubt and thus, following order is passed :
ORDER
(i) The criminal appeal is allowed.
(ii) The impugned judgment and order dated 10/9/1999 passed by learned Additional Sessions Judge, Wardha in Sessions Trial No.185/1995 convicting and sentencing appellant for the offences punishable under Sections 306 and 498-A of Indian Penal Code is set aside.
(iii) Fine amount, if any paid, be refunded to appellant.
JUDGE khj ::: Uploaded on - 06/05/2017 ::: Downloaded on - 28/08/2017 00:04:38 :::