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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.311 OF 2005
Premkumar @ Prashant s/o.
Gajanan Ramteke, aged about
32 years, Occ. Labour, r/o.
Christain Colony, Ghutkala
Ward, Chandrapur. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O., Chandrapur. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daga, Advocate for the Appellant.
Mr.S.S.Doifode, A.P.P. for Respondent/State.
____________________________________________________________
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Date of reserving the Judgment : 4.12.2017.
Date of pronouncing the Judgment : 14.12.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant has assailed the Judgment of conviction by Ad- hoc Additional Sessions Judge, Chandrapur. Appellant is convicted in Sessions Trial No.193 of 1996 for the offence punishable under Section 498-A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for one month. The appellant is convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for one month.
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2. The case of prosecution against the appellant, in short, is as under :
Appellant married with deceased Kavita eight months prior to the date of incident. After the marriage, Kavita was residing with appellant at Chandrapur. Appellant was helper in M.S.E.B. at Ballarshah. For 2-3 months, after the marriage, Kavita resided with appellant at Chandrapur. Later on, quarrel took place in between the appellant and his brother. Deceased Kavita and her husband (appellant) came for residence at Ballarshah at the house of her parents. They resided there for about 1½ months. Thereafter, appellant took his wife Kavita to Chandrapur. He was beating deceased Kavita under the influence of liquor. Kavita narrated the incident to her mother. She convinced Kavita that appellant will change his behaviour.
3. It is the case of prosecution that, on 10th March, 1996, in the night at about 10.00 p.m., accused beat deceased Kavita. Kavita told appellant not to beat and she will go to her parents' house, appellant poured kerosene on her person and set her on fire. Neighbours rushed to the spot of incident, extinguished the fire, ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 4 apeal311.05.odt brought auto rickshaw and took the deceased to the General Hospital, Chandrapur.
4. In the night itself, police was informed by the Medical Officer about admission of the patient. Police Officer went to the hospital and issued memo to Medical Officer to certify as to whether deceased was fit to give statement. The Medical Officer certified that deceased Kavita was not fit to give statement. Again, on the next day, at about 8.30 a.m., memo was given to the Medical Officer to examine the deceased and issue Certificate as to whether she was fit to give statement. The Medical Officer certified that patient was not fit for giving statement.
5. Information was given to her mother and relatives at Ballarshah. They reached to the General Hospital early in the morning. As per the statement of her mother Jijabai wd/o. Patruji Nimgade (PW-4), she inquired from Kavita as to how she burnt. The deceased told her that appellant quarreled with her, beat her when she told appellant not to beat and she will go to her parents at Ballarshah, accused poured kerosene on her person and set her on fire. Thereafter, at about 9.00 a.m., Kavita died. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 :::
5 apeal311.05.odt 6. Initially, Marg was registered. Marg inquiry was
conducted by PSI Vishwakar. He submitted Inquiry report of Marg. As per the direction of Investigating Officer Kiran Ambadas Dhote (PW-12), crime was registered by Police Inspector Madavi vide printed F.I.R. at Exh.50.
7. Police Inspector Kiran Dhote investigated the crime and recorded statements of witnesses. After complete investigation, he submitted charge sheet to the Judicial Magistrate, First Class, Chandrapur. As the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the Sessions Court, the case was committed to the Court of Session for trial.
8. Charge was framed at Exh.8. Same was read over and explained to the appellant/accused. He pleaded not guilty and claimed to be tried. It appears from the way of cross-examination that defence is of total denial. It is the defence of appellant that deceased sustained burn injuries accidentally while cooking food.
9. Learned trial Court recorded evidence of following witnesses :
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a) Mahendra s/o. Ramdas Jagtap (PW-1) (Exh.13).
b) Yashodhara wd/o. Shantaram Ganvir (PW-2) (Exh.17).
c) Ajay s/o. Wasudeorao Aglave (PW-3) (Exh.18).
d) Jijabai wd/o. Patruji Nimgade (PW-4) (Exh.24).
e) Sk. Ajij s/o. Sk. Gulam Nabi (PW-5) (Exh.26).
f) Kailash s/o. Patruji Nimgade (PW-6) (Exh.29).
g) Mohammad Aayub s/o. Mohd. Wazir Rajavi (PW-7)
(Exh.32).
h) Waman s/o. Anandrao Vaidya (PW-8) (Exh.33).
i) Arun s/o. Bapurao Mandaokar (PW-9) (Exh.39).
j) Dr.Ashok s/o. Hariprasad Shanaishchandra (PW-10)
(Exh.45).
k) Punjabrao s/o.Paikuji Madavi (PW-11) (Exh.48).
l) Kiran Ambadas Dhote (PW-12) (Exh.53).
m) Dr.Anant Krushnarao Hajare (PW-13) (Exh.60).
10. Statement of appellant/accused was recorded under Section 313 of the Code of Criminal Procedure. Appellant has denied material incriminating evidence against him. He has stated in his statement under Section 313 of the Code of Criminal Procedure ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 7 apeal311.05.odt that he was at Pan shop at the time of incident. When there was smoke, he came running. Witnesses also rushed there. Witnesses helped him. He along with witnesses put Kavita in auto and took her to the hospital. He was present in the hospital in whole night near Kavita.
11. Learned trial Court heard the prosecution and defence and came to the conclusion that prosecution has proved the guilt of appellant/accused for the offence punishable under Sections 498-A and 302 of the Indian Penal Code and convicted the appellant/accused, as aforesaid.
12. Heard Learned Counsel Mr.R.M.Daga for the appellant. He has pointed out the evidence on record and submitted that Kavita was burnt extensively. Her face, chest etc. were burnt. She was not in a position to talk. She was admitted in the General hospital, Chandrapur. Admission Register shows that deceased Kavita sustained burn injuries accidentally. A copy of Admission register is at Exh.55.
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13. Learned Counsel pointed out memo issued by Head Constable to the Medical Officer Exh.58, dt.11.3.1996. Time is mentioned as 00.50 hours. By the said memo, Medical Officer was requested to examine the patient and certify as to whether she was in a position to give statement. The Medical Officer certified that patient was not in a position to give statement. Again, early in the morning on 11.3.1996, at about 8.30 a.m., memo was issued to the Medical Officer by Police Authority to examine the patient and certify about her condition as to whether she was fit to give statement.
14. Learned Counsel has submitted that the Medical Officer certified on Exh. Nos.58 and 59 that patient was not fit to give statement. Time of certification is in the night itself at about 00.50 and early in the morning at about 8.30 a.m. Therefore, there is no written dying declaration on record.
15. Learned Counsel Mr.Daga has submitted that when it is proved by Exh. Nos.58 and 59 that patient was not in a position to speak/talk, then in such a situation, it was impossible for the deceased to tell her mother about the cause of death. Her mother Jijabai Nimgade (PW-4) has stated in her evidence that she reached ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 9 apeal311.05.odt in the hospital at about 6 a.m., and on her inquiry, deceased stated to her that there was quarrel, appellant beat her, poured kerosene and set her on fire. This particular evidence is wrongly relied on by the trial Court to convict the appellant.
16. Learned Counsel has pointed out the evidence of Yashodhara wd/o. Shantaram Ganvir (PW-2), Mohammad Aayub s/o. Mohd. Wazir Rahavi (PW-7) and Waman s/o. Anandrao Vaidya (PW-8). Material omissions are brought on record in their cross- examinations. Those omissions are proved by Kiran Dhote (PW-
12)/Investigating Officer. At last, it is submitted that prosecution has failed to prove that accused poured kerosene and set the deceased on fire. There is no evidence in that respect. Learned Counsel has submitted that the impugned Judgment is prima facie illegal and liable to be quashed and set aside.
17. Heard Mr.S.S.Doifode, learned A.P.P. for the Respondent/State. He has supported the impugned Judgment. Learned A.P.P. has submitted that evidence of Jijabai Nimgade (PW-
4) is corroborated by evidence of Yashodhara Ganvir (PW-2). Their evidence is also corroborated by the evidence of Mohammad Aayub ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 10 apeal311.05.odt (PW-7) and Waman Vaidya (PW-8). Hence, the appeal is without any merit and liable to be dismissed.
18. There is no dispute that deceased died due to burn injuries. Medical Officer Dr.Ashok s/o. Hariprasad Shanaishchandra (PW-10) has stated in his evidence that he had conducted post mortem on the dead body of Kavita. As per his observations, he found 84 % burn injuries on the body. As per his opinion, cause of death was shock due to extensive burns. Accordingly, he issued post mortem report (Exh.47).
19. The medical evidence shows that deceased died due to burn injuries. The Court has to decide whether she died homicidal, suicidal or accidental death. While scrutinizing evidence, it is duty of the Court to go through all the evidence on record. There is no dispute that deceased was burnt in the night of 10.3.1996 at about 10.00 p.m. She was admitted in the hospital by appellant and others. Admission Register (Exh.55) shows that she had sustained burn injury due to accident. Spot panchanama (Exh.27) shows that stove, cooking materials were scattered on the spot of incident. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 :::
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20. Yashodhara Ganvir (PW-2) is the nearest friend of Jijabai Nimgade (PW-4). She has stated in her evidence that she along with Jijabai Nimgade (PW-4) came to the hospital at about 6.30 a.m. Mother of Kavita asked deceased as to how she burn. Kavita told that "her husband beat her and when she told not to beat and she will go at her parent's house, at that time, her husband poured kerosene on her person and burnt her". This particular evidence is nothing but improvement in the evidence of Yashodhara Ganvir (PW-
2). It is brought on record in her cross-examination in para no.3 that she could not assign any reason as to why it is not written in her police statement. She has further admitted in para no.5 of her cross- examination that, for the first time, she was stating before the Court that mother of Kavita asked and Kavita told her that her husband burnt her. Her evidence shows that she is the nearest friend of Jijabai (PW-4). Her admission itself shows that she has supported the version of Jijabai (PW-4) because of their relations. Her evidence is not reliable because material omission is brought on record in her cross-examination.
21. Mahendra Jagtap (P.W.1) and Ajay Aglave (PW-3) are the panch witnesses. They have stated about panchanamas. Jijabai ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 12 apeal311.05.odt (PW-4), mother of deceased has stated in her evidence that she was informed by police about the incident. At about 4 a.m., she along with Yashodhara Ganvir (PW-2) and other relatives went to General Hospital, Chandrapur. She went to burn ward. At about 6 a.m., she asked Kavita about the incident. Kavita told her that "Premkumar came to house at about 9 to10 p.m., beat her. Kavita told "not to beat and she will go at Ballarshah at her mother's house, Premkumar poured kerosene on her person, lighted match stick and threw on her body." She has further stated that this talk was made at about 6 a.m. Kavita died at about 9.00 a.m. In the cross-examination, she has stated that face and head of Kavita was fully burnt. Police told her that doctor gave report that Kavita was not able to talk and therefore, her statement was not recorded.
22. Learned trial Court relied on the evidence of Jijabai Nimgade (PW-4) and came to the conclusion that oral dying declaration stated by Jijabai (PW-4) is supported by other witnesses. The trial Court, therefore, came to the conclusion that appellant has committed murder of his wife Kavita and convicted for the offence charged against him.
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23. It is pertinent to note that, while recording satisfaction about the oral dying declaration stated by Jijabai (PW-4), it was duty of the trial Court to see as to whether deceased was in a fit condition to talk with her mother. Evidence of Yashodhara Ganvir (PW-2) shows that she was falsely supporting the evidence of Jijabai (PW-4). The evidence of Yashodhara (PW-2) is not reliable. As per the evidence of Jijabai (PW-4), Yashodhara Ganvir (PW-2) was with her when she entered in the burn ward of hospital and asked about the incident to Kavita.
24. There is no dispute that Kavita was extensively burnt as per the Certificate given by the Medical Officer on memo Exh. Nos.58 and 59. It is clear that the deceased was not in a fit condition to give statement. In the night itself, at about 00.50 hours, the Medical Officer certified that Kavita was not fit to give statement. Again, early in the morning, police tried to record her statement. On the memo Exh.59, Medical Officer certified that deceased was not fit to give statement. Therefore, question arises as to how deceased gave statement to her mother.
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25. Jijabai (PW-4) is most interested witness to prosecute the appellant and therefore, her evidence is to be scrutinized very carefully. Her evidence is not reliable because, as per the medical evidence i.e. Certificate of doctor given on memo Exh. Nos. 58 and 59, it can clearly be seen that Kavita was not in a position to speak. It is also brought on record in the cross-examination of other witnesses that deceased was not in a position to talk because she was having extensive burns. Learned trial Court wrongly relied on the evidence of Jijabai (PW-4). Oral dying declaration stated by Jijabai (PW-4) is the only evidence before the Court. There is no other corroborative evidence to show that the appellant poured kerosene and set the deceased on fire.
26. The evidence of Kailash s/o. Patruji Nimgade (PW-6) shows that he was brother of deceased. He has stated that he came to General hospital, Chandrapur at about 7 to 7.30 a.m. His mother was weeping near the bed of Kavita. When he went in burn ward, Kavita asked mother to give her water. He came outside. Kavita was extensively burnt. Kavita died at about 9 to 9.30 a.m. She died due to burning.
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27. Brother of deceased, has not stated anything about the statement made by Kavita. When he was present in the hospital, then it was his natural conduct to ask his mother. It was also natural conduct of Jijabai (PW-4) to tell to this witness. Jijabai (PW-4) has not stated in her evidence that she stated to Kailash Nimgade (PW-6) or Kailash has not stated that his mother told him about cause of death stated by Kavita. Therefore, the only evidence of Jijabai (PW-
4) is not reliable. Moreover, it is clear from the Certificate of Medical Officer on Exh. Nos.58 and 59 that Kavita was not in a position to talk/speak. Learned trial Court wrongly relied on the evidence of Jijabai (PW-4).
28. Sheikh Ajij s/o. Sheikh Gulam Nabi (PW-5) has stated about the Spot panchanama (Exh.27). He has stated that Spot panchanama was prepared in his presence. Match box, stove, kerosene can were lying on the spot. From the perusal of Spot panchanama, utensils and cooking materials were also lying on the spot of incident. The Admission Register (Exh.55) shows that, at the time of admission in the General Hospital, history was stated as accidental burn. It corroborates the Spot panchanama. Therefore, ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 16 apeal311.05.odt defence of the accused that deceased might have sustained burn injury accidentally while cooking food is probable.
29. Burden of accused to prove his defence is not as like the prosecution. Prosecution has to prove the guilt of accused beyond reasonable doubt. Whereas, accused has to prove his defence by preponderance of probabilities. It appears that accused has discharged his burden.
30. Mohammad Aayub (PW-7) and Waman Vaidya (PW-8) appear to be interested witnesses. Mohammad Aayub (PW-7) has stated in his evidence that when he reached to the spot of incident, appellant was there and he was smoking cigar. He was not helping to take the deceased to the hospital. But material omissions are brought on record in his cross-examination. What he has stated about presence of accused on the spot of incident by smoking cigar is brought on record as an omission. There are other omissions brought on record in his cross-examination. Therefore, it is clear that this witness has made much more improvements only to support the prosecution version. Therefore, his evidence is not reliable. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 :::
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31. Waman Vaidya (PW-8) has also made much more improvements in his evidence. He has also stated that he along with Ayub extinguished fire. But appellant was not helping to take the deceased in the hospital. Whereas in his police statement, he has stated that he along with appellant took the deceased to the hospital. This contradictory version is proved by Investigating Officer Kiran Dhote (PW-12). Therefore, evidence of Waman Vaidya (PW-8) is also not reliable.
32. While relying on the dying declarations, more particularly oral dying declarations, the Court must be very cautious. In the Land Mark Judgment of Hon'ble Supreme Court in the case of Khushal Rao .vs. State of Bombay reported in AIR 1958 SC 22, the Hon'ble Supreme Court has observed as under :
"In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 18 apeal311.05.odt and the assailants of the victim, there is no question of further corroboration.
If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."
33. Prosecution has failed to establish that the appellant beat the deceased, poured kerosene and set her on fire. On the other hand, it appears from Exh.55 Copy of Admission Register in hospital and Spot panchanama (Exh.27) that deceased might have sustained burn injury accidentally while cooking food. In Exh.55, it is specifically mentioned that the deceased sustained burn injury accidentally. The evidence of Jijabai (PW-4) on the point of oral ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 19 apeal311.05.odt dying declaration stated by Kavita is not reliable in view of Certificate issued by Medical Officer on Exh. Nos. 58 and 59. Therefore, it is clear that the learned trial Court has wrongly convicted the appellant only on the basis of oral dying declaration stated by Jijabai (PW-4).
34. In respect of offence punishable under Section 498-A of the Indian Penal Code, it is pertinent to note that Yashodhara (PW-2) is the nearest friend of Jijabai (PW-4), but she has not stated anything about the cruelty caused by the appellant. Waman Vaidya (PW-8) and Arun Mandaokar (PW-9) were neighbours of deceased. They have also not stated anything about the cruelty caused by the appellant to the deceased. Evidence of mother and brother of deceased on the point of cruelty is not supported by any independent witness. Learned trial Court has wrongly convicted the appellant for the offence punishable u/s. 498-A of the Indian Penal Code.
35. From the evidence on record, it is clear that the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt for the offences punishable under Section 498-A and 302 of the Indian Penal Code. Learned trial Court has not ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 20 apeal311.05.odt considered the evidence brought on record by the side of defence and has wrongly convicted the appellant for the offences punishable under Sections 302 and 498-A of the Indian Penal Code. Hence, we are inclined to allow the appeal and pass the following order :
// ORDER // The appeal is allowed.
Appellant is hereby acquitted of the offences punishable under Sections 498-A and 302 of the Indian Penal Code.
Fine amount, if paid by the appellant, be refunded to him.
Appellant is on bail. His bail bonds shall stand cancelled.
The record and proceedings be sent back to the trial Court.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 ::: 21 apeal311.05.odt ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 :::