CRI.A 484.15.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.484 OF 2015
Janardhan @ Digambar s/o Gulabrao
Tupkar, Aged about 33 years,
Occupation-Agriculturist,
R/o. Gunj, Tahsil-Sindkhed Raja,
District-Buldana. .. APPELLANT
(In Jail)
.. VERSUS ..
State of Maharashtra,
through Police Station Officer,
Sakharkherda, Tahsil-Sindhkhed Raja,
District-Buldana. .. RESPONDENT
..........
Shri S.D. Chande, Advocate for Appellant,
Shri V.P. Maldhure, APP for Respondent.
..........
CORAM : B.R. GAVAI AND
KUM. INDIRA JAIN, JJ.
DATED : FEBRUARY 27, 2017.
ORAL JUDGMENT : (Per : KUM. INDIRA JAIN, J.) This appeal is directed against the judgment and order dated 15.9.2014 passed by the learned Additional Sessions Judge (Link Court), Mehekar in Sessions Trial No.23/2013. By the said judgment and order, sole accused ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 2 Janardhan is convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment for life and fine of Rs.1,000/- in-default imprisonment for 6 months. Accused came to be acquitted of the offence punishable under Section 498-A of the Indian Penal Code.
2] Prosecution case, which emerges from the charge- sheet and connecting papers thereto, may be stated in brief as under :
(a) Seema was the eldest daughter of
complainant Deorao Lahane, resident of
Khandala, District-Parbhani. She was married before 10-11 years with the accused resident of Gunj, Tahsil-Sindkhed Raja, District- Buldana. The couple was blessed with a son PW-2 Dnyaneshwar and two daughters Pratiksha and Sakshi.
(b) According to prosecution, accused was addicted to liquor. He used to raise quarrel with Seema. He was suspecting her character and beating her often. She disclosed about ill-treatment to her father. Her father used to pacify the accused. As accused did not improve his behaviour, Deorao had brought Seema and her children to his house before one year of the incident. ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 3
(c) Prior to four days of incident, accused along with his relatives and 2-3 villagers had been to the house of Deorao. He insisted that Seema should join his company and she should be sent to her matrimonial house. He promised not to consume alcohol and not to ill-treat Seema. Considering the future of children, Seema agreed to resume cohabitation and she accompanied the accused to his house.
(d) On 24.11.2012 in the morning accused raised suspicion on chastity of Seema and beat her. At 2.00 pm, he poured kerosene on her person and set her on fire. After setting her ablaze, accused tried to extinguish fire. She was admitted to Civil Hospital, Buldana. Father and other relatives of Seema were informed about the incident. They rushed to the Hospital. Executive Magistrate was requested to record dying declaration of the victim. PW-3 Rajendra Ingle, Executive Magistrate rushed to the Hospital. He enquired from the Medical Officer regarding condition of the patient to give her statement. After doctor certified that she was fit to give her statement, he recorded dying declaration of Seema.
::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 4 (e) On 25.11.2012, Deorao father of Seema lodged report. Crime No.67/2012 was registered against the accused for the
offence punishable under Section 307 of the Indian Penal Code. Accused was arrested.
(f) API Ashok Lande (PW-9) took over
investigation. He visited the spot and
recorded spot panchanama. Certain articles like pieces of bangles, burnt pieces of saree and petticoat, a plastic can containing kerosene were seized from the spot. During investigation, statement of other witnesses were recorded.
(g) Seema succumbed to injuries on 30.11.2012.
The offence was converted to Section 302 of the Indian Penal Code. Inquest panchanama was drawn. Dead body was sent for postmortem. PW-6 Dr. Anil Kothari performed postmortem and opined cause of death due to septicemia due to deep burns. Seized muddemal was sent to Forensic Science Laboratory. On completing investigation, charge-sheet was submitted to the Court of Judicial Magistrate, First Class, Sindkhed Raja.
3] On committal, trial Court framed charge against the accused vide Exh.4. He pleaded not guilty and claimed ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 5 to be tried. His defence was of total denial and false implication. He stated that he alienated six gunthas farm land to repay the loan. Seema did not like the same, as she was worried about the future of children. In a fit of anger, she committed suicide.
4] Prosecution examined in all nine witnesses to substantiate the guilt of accused. Accused did not examine himself on oath or other witness in support of his defence. On going through the evidence adduced by the prosecution, learned Additional Sessions Judge convicted the accused as stated herein-above. Being aggrieved thereof, accused has preferred this appeal.
5] We have heard the learned counsel for the parties. On meticulous evaluation of the evidence on record and on careful consideration of the facts and circumstances of the case, arguments advanced by the learned counsel for the parties and reasons recorded by the trial court for the below mentioned reasons, we are of the opinion that prosecution has succeeded in proving the guilt of accused beyond reasonable doubt and the trial court has rightly passed the judgment and order of conviction against him. ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 6 6] Prosecution case is mainly based on dying declaration of Seema. PW-3 Executive Magistrate Rajendra Ingle recorded the dying declaration. He stated that on 24.11.2012, he received a letter (Exh.19) from Police for recording dying declaration and accordingly he reached General Hospital, Buldana at 6.30 pm. He met the Medical officer and requested him to examine the patient regarding her physical and mental fitness to make the statement. Doctor examined Seema and certified that she is fit to give her statement. Executive Magistrate further states that he introduced himself to Seema and asked about the incident. Seema narrated before him that in the morning accused had a quarrel suspecting her character and beat her. At about 2.00 pm, accused poured kerosene on her person and set her on fire. She also stated that accused tried to extinguish fire. After writing of dying declaration was over, Executive Magistrate again requested the Medical Officer to examine the patient and certify about her fitness. Medical Officer examined her and certified accordingly. The written dying declaration proved by PW-3 Executive Magistrate Rajendra Ingle is at Exh.20.
::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 7 7] Learned counsel for appellant assailed dying declaration (Exh.20) on the ground that doctor, who certified the fitness, has not been examined. It appears that Dr. K.S. Date was Medical Officer on duty. He gave the certificates. Witness summons was issued to him. It was found that his services were discontinued and he was not served with the summons. Prosecution then moved an application (Exh.32) seeking permission to examine Dr. Ganesh Rathod, who was acquainted with handwriting of Dr. Date. The said application for some or the other reason was rejected. It is thus apparent that in peculiar circumstances, Medical Officer, who certified and made endorsements on dying declaration, was not examined. Moreover, non examination of Medical Officer alone would not be fatal to the prosecution case.
8] The moot question would then arise as to why PW-3, who is an independent officer, should depose a lie. After endorsements were made by the Medical Officer, PW-3 Executive Magistrate took precaution and subjectively satisfied himself that Seema was fit go give her statement. True, PW-6 Dr. Kothari stated that he had noticed redness on Seema's trachea. According to the appellant, this indicates ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 8 that there was an injury to trachea and patient was unable to speak. It is interesting to note that no suggestion was given to Dr. Kothari that there was an injury to trachea of Seema. Even postmortem report (Exh.25) does not indicate an injury to trachea. Mere redness cannot be equated with the injury.
9] The law in respect of appreciation of dying declaration in evidence is well settled. 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 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. Keeping in view the said proposition of law and on meticulous evaluation of the evidence of Executive Magistrate, we are of the view that dying declaration (Exh.20) inspires confidence, as it is a true and voluntary statement made by the deceased.
::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 9 10] In addition to dying declaration, prosecution has relied upon evidence of PW-2 Dnyaneshwar as an eyewitness and PW-8 Motiram as a witness, who allegedly saw the accused setting Seema on fire. Trial Court has recorded the reasons for which PW-2 cannot be treated as an eyewitness. PW-8 Motiram, as he did not support the case of prosecution, his evidence is also of no help to the prosecution.
11] The next piece of evidence on which reliance is placed is in the form of oral dying declaration. PW-1 Deorao is father of Seema. According to him, he reached General Hospital, Buldana at 9.00 pm and saw burn injuries on the body of Seema. He stated that Seema disclosed to him that accused poured kerosene on her person and set her ablaze. It appears from the evidence of Deorao and Investigating Officer that Deorao belatedly disclosed about oral dying declaration to police. It has also come by way of an omission and the trial Court has discarded the evidence of Deorao on oral dying declaration. We find no reason to take a view different than taken by the trial court. 12] It is pertinent to note that presence of accused at ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 ::: CRI.A 484.15.odt 10 the time of occurrence is no where specifically denied. Incident occurred in the broad daylight. Accused did not offer any explanation for the burn injuries received by Seema, except saying that it was suicidal death. Accused could not establish his defence. The findings recorded by PW-6 Dr. Anil Kothari in postmortem report (Exh.25) clearly show cause of death as septicemia due to deep burns and mode of death as homicidal is proved beyond reasonable doubt by written dying declaration (Exh.20). 13] In the above premise, we find that appeal is devoid of substance and merit. Hence, appeal stands dismissed. No costs.
(Kum. Indira Jain, J.) (B.R. Gavai, J.) .........
Gulande ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 18:13:13 :::