IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 421 OF 2006
1. Rukminbai shlok Kandgule,
Age : 36 years, Occu.; Household,
2. Suman Dattu Pasare,
Age : 65 years, Occu.: Household,
3. Bharat s/o. Dattu Pasare,
Age : 26 years, Occu.: Agri.,
All R/o. Padoli (A),
Tq. and Dist. Osmanabad APPELLANTS
(Accused)
VERSUS
The State of Maharashtra RESPONDENT
(Prosecution)
----
Mr. Satej S. Jadhav, Advocate for the appellants
Mrs.A.V. Gondhalekar, Addl. Public Prosecutor, for the
respondent/State
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 8th December, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
One Bibhishan Premraj Gund (original accused No.1) and the present appellant No.1, hereinafter referred to by her first name i.e."Rukminbai" were chargesheeted by Police Station, Bembli for the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 2 criapl421-2006 offences punishable under Sections 306 and 498-A read with Section 34 of the Indian Penal Code ("IPC", for short), on the allegations that Bibhishan had illicit relations with Rukminbai prior to and even after the marriage of Bibhishan with the deceased Shivnanda and therefore, both of them were beating and illtreating the deceased Shivnanda. The deceased Shivnanda always used to ask both of the accused to abstain from keeping illicit relations. Ultimately, because of the illtreatment meted out to her by both of these accused, the deceased Shivnanda committed suicide by setting herself ablaze in her house on 27th June, 2000 at about 12.00 noon.
2. The deceased Shivnanda was taken to the Civil Hospital at Osmanabad for treatment by her brother-in- law namely Dilip. Her statement was recorded by PHC Patil, attached to police outpost of Civil Hospital, Osmanabad on the same day at about 2.10 p.m., after getting it verified from the Medical Officer that she was in a fit condition to give statement. In that statement, she alleged that on 27 th June, 2000, when her husband i.e. accused No.1 Bibhishan had gone to the field for sowing and when she was sleeping in her house ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 3 criapl421-2006 at about 12.00 noon, Rukminbai, her parents and brother i.e. appellant no.3 namely Bharat, came there. Rukminbai was holding a kerosene can. All of them hurled abuses against her and beat her by kicks and fists. Rukminbai poured kerosene from the can on her person and the mother of Rukminbai, i.e. appellant no.2 namely Suman, set her on fire by igniting a matchstick. When she was caught by fire, all of them ran away. She tried to extinguish fire from her person by pouring water. She sustained extensive burns on various parts of her body. Her brother-in-law namely Dilip Gund took her to the Civil Hospital at Osmanabad for treatment.
3. PHC Patil sent the above mentioned statement of the deceased Shivnanda to Police Station, Osmanabad, on the basis of which a crime came to be registered for the offences punishable under Sections 307, 323, 504, read with Section 34 of the IPC under "0" number, since the incident had taken place within the local limits of jurisdiction of Bembali Police Station. Shivnanda died in the hospital on 28th June, 2000 at 2.05 a.m. The inquest of the body of the deceased Shivnanada was prepared. Her body was referred to the Medical Officer for the postmortem. The Medical Officer found 98% of ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 4 criapl421-2006 burns on her body. He opined that she died of shock due to 98% of burns. After her demise, the offence under Section 307 of the IPC came to be substituted by the offence under section 302 of the IPC. The statements of the deceased Shivnanda and inquest panchanama were sent by PHC Patil from Police Station, Osmanabad to Police Station, Bembli with his forwarding letter. On the basis of that letter, Crime No.43 of 2000 was registered in Police Station, Bembli, for the offences punishable under Sections 302, 323 and 504 read with Section 34 of the IPC.
4. The investigation followed. The spot panchanama was prepared. Statements of the witnesses were recorded. Considering the evidence collected during investigation, the Investigating Officer found sufficient grounds to proceed against Bibhishan and Rukminbai only for the offences punishable under Sections 498-A and 306 read with Section 34 of the IPC. Accordingly, he submitted chargesheet against them in the Court of Chief Judicial Judicial Magistrate, Osmanabad.
5. The offence under Section 306 of the IPC being exclusively triable by the Court of Session, the learned Chief Judicial Magistrate committed the case to the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 5 criapl421-2006 Court of Session, Osmanabad.
6. The learned Trial Judge initially framed charges against Bibhishan and Rukminbai for the offences punishable under Sections 498-A and 306 read with Section 34 of the IPC vide Exh.50 on 5 th December, 2005 and explained the contents thereof to them in vernacular. They pleaded not guilty and claimed to be tried. After PHC Patil and one more witness were examined and the during declaration of the deceased Shivnanda was proved before the Trial Court on 16 th January, 2006, the learned Trial Judge framed charges afresh against Bibhishan for the offence punishable under Section 498-A of the IPC and against Rukminbai, her mother Suman and brother Bharat, for the offence punishable under Section 302 read with Section 34 of the IPC vide Exh.88 on 6th March, 2006. He explained the contents of those charges to the accused persons to which they pleaded not guilty. Their defence is that of total denial and false implication.
7. The prosecution examined six witnesses to establish guilt of the above named accused persons for the above mentioned offences. After evaluating the said evidence, the learned Trial judge found that the dying ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 6 criapl421-2006 declaration of the deceased Shivnanda was voluntary and truthful. He, therefore, relied on that dying declaration and convicted Rukminbai, Suman and Bharat (original accused Nos.2, 3 and 4, respectively) only for the offence punishable under Section 302 read with Section 34 of the IPC. He acquitted Bibhishan (original accused No.1) of the offence punishable under Section 498-A of the IPC. The original accused Nos.2 to 4 are the appellants before this Court. The learned Trial Judge sentenced each of them to suffer imprisonment for life and to pay a fine of Rs.5000/-, in default to suffer rigorous imprisonment for one year each.
8. The learned counsel for the appellants submits that the case of the prosecution is solely depending on the alleged dying declaration of Shivnanda recorded by PHC Patil (PW1). According to him, the deceased Shivnanda had sustained 98% burns. She was not a fit state of mind to give any statement much less the detailed and exhaustive dying declaration (Exh-63). He submits that the language used and the manner in which the events have been narrated in the said dying declaration themselves make it clear that the deceased Shivnanda is not the author of the said dying ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 7 criapl421-2006 declaration. Admittedly, the brother-in-law of the deceased Shivnanda namely Dilip Gund had taken her to the Civil Hospital for treatment after the incident. He would have been the best witness to state as to whether the deceased Shivnanda was in a condition to speak and whether she had any allegation to make against anybody behind the incident of burning. However, the prosecution has not examined him without assigning any reason. The daughter of the deceased Shivnanda was present at her house at the time of the incident. However, she has been given up by the prosecution vide purshis (Exh.99). According to the learned counsel, the daughter of the deceased Shivnanda was knowing that the deceased Shivnanda had committed suicide and therefore, her evidence was suppressed by the prosecution. He submits that the house in which the incident took place is situate abutting a main road of the village. There were a number of houses and shops in front of or adjacent to that house. However, no independent witness has been examined by the prosecution. He submits that as stated in the dying declaration, the husband of the deceased Shivnanda had illicit relations with accused No.1 since before the marriage of the deceased Shivnanda which had taken place prior to about seven years of the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 8 criapl421-2006 incident. The prosecution has not produced any evidence to show as to what happened on the day of the incident which prompted the appellants to go to the house of the deceased Shivnanda and to set her on fire. According to him, the very genesis of the incident as stated in the dying declaration is not natural and probable. No motive has been attributed against the appellants for setting the deceased Shivnanda ablaze. The learned counsel further submits that the Medical Officer has not endorsed on the dying declaration that deceased Shivnanda was conscious, oriented and in a fit condition to give statement. This fact also creates doubt about fit mental condition of the deceased Shivnanda. In the circumstances, according to him, the dying declaration, which is surrounded by suspicion, could not have been used by the Trial Court for basing conviction against the appellants for a serious offence like murder. He submits that the Investigating Officer, after considering the statements of the witnesses recorded by him, formed an opinion that the appellants were liable to be prosecuted for the offence punishable under Section 306 of the IPC. All these witnesses have not been examined by the prosecution without assigning any reason. This fact also creates doubt about truthfulness ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 9 criapl421-2006 of the contents of the dying declaration of the deceased Shivnanda. He, therefore, submits that the appellants are entitled to get benefit of doubt.
9. As against this, the learned A.P.P. submits that there is positive and dependable evidence of PHC Patil and Dr. Alangekar to show that the deceased Shivnanda was in a fit state of mind to give statement at the time when it was recorded by PHC Patil. She submits that when PHC Patil and Dr. Alangekar deposed before the Court that the deceased Shivnanda was in a fit state of mind to give statement, even in the absence of any specific endorsement that the deceased was conscious, oriented and in a fit state of mind to give statement, the competency of the deceased Shivnanda to give statement cannot be questioned. She relief on the judgment in the case of Laxman Vs. State of Maharashtra AIR 2002 SC 2973, wherein it is held that even absence of certification of doctor as to fitness of mind of declarant at the time of giving declaration would not have any adverse effect on the veracity of the dying declaration. A certification by the doctor is essentially a rule of caution and therefore, voluntary and truthful nature of the dying declaration can be ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 10 criapl421-2006 established otherwise. It is further observed that what essentially required is that the person who records a dying declaration must be satisfied that the declarant 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 of the doctor the declaration can be acted upon provided the Court holds the same to be voluntary and truthful.
10. The learned A.P.P. further relied on the judgment in the case of Atbir Vs. Government of N.C.T. of Delhi, AIR 2010 SC 3477, in support of her contention that if a dying declaration is found to be voluntary and truthful, it can form the sole basis of conviction even without corroboration. She submits that that the deceased Shivnanda gave the dying declaration (Exh.63) when she was in a fit state of mind. It was voluntary and truthful. It was not influenced by any other person or the outcome of imagination. It creates great confidence. She, therefore, submits that the learned Trial Judge has rightly believed the said dying declaration and rightly convicted the appellants on the basis thereof.
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11 criapl421-2006
11. The husband of the deceased Shivnanda, who was original accused No.1, has been acquitted of the offence punishable under Section 498-A of the IPC. The said acquittal has not been challenged by the prosecution and as such, has attained finality.
12. As seen from the evidence produced by the prosecution, the case is solely based on the dying declaration (Exh.63) of the deceased Shivnanda.
13. PHC Patil (PW3) (Exh.101) deposes that on 27 th June, 2000, after receiving the MLC intimation (Exh.102) from the doctor of Civil Hospital, he went to the burns ward alongwith the doctor and requested the doctor to examine the deceased Shivnanda and to opine whether she was able to give statement. Accordingly, the doctor put his endorsement that she was conscious. Thereafter, he recorded the statement of the deceased as per her say which is at Exh.63. He read over the contents thereof to her whereon she stated that they were as per her say. Then he obtained her thumb mark below it and then put his own signature. Thereafter, the doctor made endorsement thereon and signed it. He sent that statement alongwith his forwarding letter (Exh.102) to City Police Station, Osmanabad.
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12 criapl421-2006
14. Dr. Alangekar (PW3) (Exh-94) deposes that on the request of a Police Constable, he went to the burns ward in the Civil Hospital and examined the deceased Shivnanda. He found her to be conscious and able to give statement. Therefore, he asked the police to record her statement. Accordingly, he put endorsement on the statement on the top thereof. After her statement was recorded, he again examined her and found her to be conscious. He then put his endorsement as "in front of me" and signed it.
15. There is no dispute that the deceased Shivnanda had sustained 98% of burns. One can imagine the physical and mental condition of a person suffering from 98% of burns. The case papers of the deceased Shivnanda have not been produced on record. Therefore, the appellants could not get an opportunity to point out the medicines which were being administered to the deceased Shivnanda when her dying declaration (Exh-63) is stated to have been recorded. Generally, the history of the incident is asked to the patient when he/she is admitted in the hospital. In the absence of those case-papers, the said history also was not made available to the appellants. The history of the incident given by the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 13 criapl421-2006 deceased Shivnanda at the time of her admission would have been of a great help to the Court also to consider the state of mind of the deceased Shivnanda and her first version about the incident in which she sustained burns. The prosecution has withheld this material evidence without assigning any reason. Therefore, adverse inference will have to be drawn and accordingly drawn that had the said evidence been produced, it would not have supported the case of the prosecution.
16. Dilip Gund, the brother-in-law of the deceased Shivnanda had brought her to the Civil Hospital at Osmanabad after the incident. In the natural course, the deceased Shivnanda would have disclosed him the reason of her sustaining burns. He would have been the best witness to prove the oral dying declaration of the deceased Shivnanda which certainly would have thrown light on the factual position leading to the incident of burning. The prosecution did not examine him without assigning any reason though his statement was recorded by the Investigating Officer as seen from the particulars of witnesses given in the chargesheet.
17. The daughter of the deceased Shivnanda was present at the house at the time of the incident. She ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 14 criapl421-2006 appeared before the Court. However, the prosecution did not examine her and informed the Court vide Pushis (Exh-
99) that she was given up as she was not supporting the case of the prosecution. The evidence of the daughter of the deceased Shivnanda also would have made the factual position clear. However, her evidence has been withheld by the prosecution.
18. From the evidence of Sahebrao (PW2) (Exh-96), who happened to be a panch to the spot of incident, it is clear that there was a main road running from near the spot of incident. There were shops in front of that house. There were other houses adjacent to that house. None of the witnesses residing near the house, where the incident took place, has been examined by the prosecution without assigning any reason.
19. The dying declaration (Exh-63) of the deceased Shivnanda reads as under :
"Patient is conscious Sd/- 2.10 pm. fu-63 t ck c fnukad [email protected]@2000 eh f'kouank Hkz-fcHkh"k.k xaqM o; 27 o"kZ /kank ?kjdke jk- ikMksGh rk-ft- mLekukckn-::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 :::
15 criapl421-2006 le{k ljdkjh nok[kkuk mLekukckn ;sFks vkS"k/k mipkj pkyw vklrkauk fopkjsyo:u lkaxrs dh] eyk ,d eqyxh vklwu ,d nhj o tkow vklwu lklw o ek>s irh vkls loZt.k vkEgh ,d= jkgrks- ek>s ekyd 'ksrh djrkr ek>s ekgsj fHklsy fiaijh rk-ykrwj ;sFkhy vklwu ek>s yXu gksowu lkr o"kZ >kyh vkgsr- ekÖ;k uo&;kus vkeP;k xkokrhy :Deh.kh /kuxj ;k ukokph j[ksy Bsoysyh vkgs- o R;kaps izse laca/k ekÖ;k yXukiwohZiklwu pkyw vkgsr o R;keqGs ek>h o :Deh.khckbZph usgeh HkkaM.k raVk gksr vkls-
vkt [email protected]@2000 jksth ek>s ekyd gs ,sdchyk isj.kh dj.;klkBh xsys vkgsr eh tsou [kku d:u ?kjh >ksiys gksrs- rsOgk nqikjh ckjk okt.;kP;k lqekjkl ekÖ;k uo&;kph j[ksy :Deh.kh o rhph vkbZ] oMhy nRrw /kuxj o Hkkm vkls ekÖ;k ?kjh vkys rsOgk :Deh.khP;k gkrkr jkWdsyps dWUM gksrs- rsOgk lokZauh eyk f'kohxkG dsyh o ykFkk&cqD;kauh ekjgk.k dsyh o :Deh.khus gkrkrhy jkWdsy dWUM ekÖ;k vaxkoj vksrys o frP;k vkbZus dkMh vks<wu ekÖ;k lkMhl ykoyh rsOgk ekÖ;k loZ vaxkl tkG ykxyk rsOgk rs loZt.k iGwu xsys- ekÖ;k vaxkl iksGw ykxys rsOgk eh iGr tkmu ?kjkrhy jkat.kkrhy ik.kh rkaC;kus ekÖ;k vaxkoj vksrwu ?ksrys eyk tkG ykxY;kus ekÖ;k Mksdhps v/kZoV dsl] psgjk xGk] Nkrh] iksV nksUgh ik;] gkr ikB vkls Hkktys vkgs- uarj ek>s fnj fnyhi xaqM ;kauh [kktxh thi d:u vkS"k/k mipkjkdfjrk l-n-mLekukckn ;sFks vkuys- l/;k ekÖ;koj vkS"k/k mpkj pkyw vklwu eh iw.kZi.ks 'kq/nhoj vkgs-
rjh vkt fnukad [email protected]@2000 jksth nqikjh ckjk okt.ksP;k lqekjkl :Deh.kh /kuxj] frph vkbZ&oMhy o Hkkm ;kauh eyk ekjgk.k d:u thos ekj.;klkBh jkWdsy vksrwu dkMh vks<wu isVowu eyk tkGys vkgs- rjh ojhy pkj tukfo:/n ek>h dk;ns'khj rØkj vkgs- :Deh.khP;k vkbZps o Hkkokps ukao eyk ekfgr ukgh-
ek>k tckc fygyk rks eyk okpwu nk[kfoyk rks eh lkafxrys izek.ks cjkscj o [kjk vkgs-
le{k fu-vka-
[email protected]&
l-n-pkSdh vaeynkj] iks-LVs- f'kouank Hkz-fcHkh"k.k xaqM
mLekukckn ¼'k½ ;kapk vls-
Infront of me
Sd/-
M.O.G.H.Os'bad
27/6/2000 2.35 p.m."
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20. The contents of the dying declaration (Exh-63), which is in a narrative form, exfacie show that the manner of narration therein is not expected of an illiterate woman like the deceased Shivnanda. It seems to be in the language of PHC Patil (PW1). The deceased Shivnanda, who had sustained 98% of burns, would not have given such a detailed and exhaustive statement.
Moreover, in the natural course, after stating the events those took place at the time of the incident, the deceased Shivnanda would not have repeated the same. However, the last paragraph of the dying declaration (Exh-63) again contains the summary of the preceding paragraph. This fact creates strong doubt about authorship about the dying declaration (Exh-63) as that of the deceased Shivnanda.
21. Even if the dying declaration (Exh-63) is accepted as that of the deceased Shivnanda for a while, it will be clear therefrom that she was residing jointly with her brother-in-law Dilip, mother-in-law and the wife of Dilip in the house where the incident took place. It is not the case of the prosecution that the mother-in-law and the wife of the brother-in-law of the deceased Shivnanda were not present in the house at the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 17 criapl421-2006 time of the incident. None of them has been examined by the prosecution. As seen from the contents of the dying declaration (Exh-63), the husband of the deceased Shivnanda had illicit relations with original accused No.1 since before the deceased Shivnanda got married with accused No.1. Indisputably, the marriage had taken place prior to about seven years of the incident. There is nothing on record to show that during the said period of seven years, appellant No.1 or anybody from her family had illtreated the deceased Shivnanda at any point of time on any count. There is nothing in the dying declaration (Exh-63) to show as to why the appellants had been to her house on 27th June, 2000 and what prompted the appellants to think of visiting house of the deceased Shivnanda having made preparation for setting her ablaze on 27th June, 2000. In the natural course, there would have been some other incident preceding the incident of burning, which would have made the appellants to think of setting the deceased Shivnanda on fire.
22. The incident took place at about 12.00 noon. A number of persons were residing near the house where the incident took place. None of them has come forward to ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 18 criapl421-2006 state that he/she had seen the appellants visiting the house of the deceased Shivnanda. The deceased Shivnanda would not have kept total silence after seeing the appellants coming to her house with any oblique motive. She would have tried her level best to resist them. She would have tried to run away out of the house. In any case, she would have at least raised shouts to attract attention of the others so as to seek their assistance to save herself. Nothing that of sort seems to have been done by her. In the circumstances, the incident as has been narrated by the deceased Shivnanda, does not appear to be natural and probable. It does not inspire confidence.
23. The evidence of PSI Chavan (PW7) (Exh-113), who recorded the statements of the witnesses and after completion of investigation filed chargesheet, shows that it transpired in his investigation that the deceased Shivnanda committed suicide, in the circumstances of the case, assumes importance. He cannot state before the Court as to what was stated before him by the witnesses, but being the Investigating Officer, after considering the evidence collected by him, he was supposed to form an opinion as ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 19 criapl421-2006 to what offence was disclosed against the accused persons. Accordingly, he formed an opinion that the offence punishable under Section 306 of the IPC was disclosed. If that be so, the theory of the prosecution that the appellants themselves set the deceased Shivnanda on fire, cannot be believed.
24. In the above circumstances, the sole dying declaration (Exh-63) of the deceased Shivnanda was not sufficient to hold the appellants guilty for a serious offence like murder for which the minimum punishment is imprisonment for life. It was incumbent on the part of the prosecution to produce corroborative evidence to establish the facts narrated in the dying declaration (Exh-63). The prosecution has suppressed the evidence of material witnesses, which itself creates a great doubt about the truthfulness of the contents of the dying declaration (Exh-63). In the circumstances, the learned Trial Judge should not have believed the dying declaration (Exh-63) and should not have convicted the appellants solely on the basis of the said dying declaration. The learned Trial Court committed a grave error in holding the appellants guilty of the offence of murder of the deceased Shivnanda on the basis of the ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 ::: 20 criapl421-2006 dying declaration (Exh-63) without seeking corroboration thereto. The evidence of record creates doubt about the case of the prosecution. Therefore, the benefit of doubt necessarily would have to be given to the appellants.
25. The prosecution failed to adduce sufficient, cogent and dependable evidence to establish guilt of the appellants for the offence of murder of the deceased Shivnanda, beyond reasonable doubt. The evidence on record is not free from doubt. The appellants are entitled to get benefit of doubt. The impugned judgment of conviction and sentence passed against the appellants are liable to be quashed and set aside. In the result, we pass the following order:
O R D E R (A) The Criminal Appeal is allowed.
(B) The impugned judgment and order are quashed and set aside.
(C) The appellants are acquitted of the offence punishable under Section 302 of the Indian Penal Code. ::: Uploaded on - 21/12/2017 ::: Downloaded on - 22/12/2017 23:28:43 :::
21 criapl421-2006
(D) The bail bonds of the appellants are cancelled.
They are set at liberty.
(E) The fine amount, if deposited by the
appellants, be refunded to them.
(F) The appeal is accordingly disposed of.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
npj/criapl421-2006
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