Judgment 1 apeal712.06+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRI. APPEAL NO. 529 OF 2006
WITH
CRI. APPEAL NO. 712 OF 2006
APPEAL NO. 529/2006.
Suresh S/o. Narayan Gorle,
Aged about 35 years, Occupation:
P.C.B. No.342, R/o. Police Head
Quarter, Amravati.
.... APPELLANT.
// VERSUS //
The State of Maharashtra,
through Police Station Officer,
Police Station, Gadge Nagar, Amravati
Tq. & District : Amravati.
.... RESPONDENTS
.
___________________________________________________________________
Shri Sumit Joshi, Advocate for appellant.
Shri N.R.Patil, A.P.P. for Respondent.
___________________________________________________________________
WITH
APPEAL NO. 712/2006.
The State of Maharashtra,
through Police Station Officer,
Police Station, Gadge Nagar, Amravati
Tq. & District : Amravati.
.... APPELLANT.
// VERSUS //
Suresh S/o. Narayan Gorle,
Aged about 35 years, Occupation:
P.C.B. No.342, R/o. Police Head
Quarter, Amravati.
.... RESPONDENT
.
___________________________________________________________________
Shri N.R.Patil, A.P.P. for Appellant.
Shri Sumit Joshi, Advocate for Respondent.
___________________________________________________________________
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CORAM : B. P. DHARMADHIKARI AND Z.A.HAQ, JJ.
DECIDED ON : JUNE 02, 2017.
JUDGMENT (PER : Z.A.Haq, J):
1. Criminal Appeal No. 529 of 2006 is filed by the accused challenging the judgment passed by the Ad-hoc Additional Sessions Judge convicting him for the offence punishable under Section 498-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 3 years and to pay fine of Rs.500/- and in default of payment of fine to undergo further rigorous imprisonment for six months.
2. Criminal Appeal No.712 of 2006 is filed by the State of Maharashtra challenging the same judgment passed by the Ad-hoc Additional Sessions Judge insofar as the accused is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
As these two appeals arise out of the same judgment they are being disposed of by common judgment.
3. The case of the prosecution is:
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Judgment 3 apeal712.06+1.odt The accused-Suresh Dorle was working in the Police Department at the time of incident as a Constable. The marriage of accused Suresh and deceased Neeta was solemnized in 1991, the couple had a daughter Ankita who was aged about 11 years at the time of the incident, that the accused Suresh used to trouble his wife Neeta under the influence of liquor and as there was no change in the attitude and conduct of the accused for a considerable period, Neeta left the matrimonial house on 3rd November, 2003 along with Ankita and started living with her parents, Neeta was reluctant to return to the matrimonial house as she apprehended ill-treatment and even threat to her life, that on assurance given by the younger brother of the accused, the parents of Neeta sent her to the matrimonial house on 11 th November, 2003. On 14th November, 2003 at about 3.00 p.m. the accused came to his house in drunken state, picked up quarrel with Neeta, poured kerosene on her person and set her ablaze. Neeta had sustained extensive burn injuries and though she was hospitalized and given treatment she succumbed to the injuries on 17 th November, 2003. Initially, Dying Declaration of Neeta was recorded by the Executive Magistrate, but she was under the influence of the accused at that time and therefore, another dying declaration of Neeta was recorded by Police Officer on 14th November, 2003.
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4. After receiving the report of the incident, the investigating machinery conducted investigation and after completing the formalities chargesheet for the offence punishable under Section 302 of the Indian Penal Code was filed against the accused before the Chief Judicial Magistrate, Amravati who in turn made it over to Judicial Magistrate First Class and as the offence is exclusively triable by the Court of Session the learned Magistrate committed the case to the Sessions Court. In the meantime, the accused was arrested on 19 th December, 2003. The Sessions Court framed charge for the offence punishable under Section 302 of the Indian Penal Code, however, Criminal Application No. 628 of 2006 was filed before this Court which was decided on 19th June, 2006 and it was directed that the additional charge for the offence punishable under Section 498-A of the Indian Penal Code be framed. The charges were explained to the accused. He did not accept the guilt and therefore, the trial is conducted. At the conclusion of the trial the Sessions Court recorded that the prosecution has failed to prove that Neeta died of homicidal death and that the accused committed her murder by setting her ablaze. The Sessions Court recorded that the prosecution has proved that Neeta was given cruel treatment by the accused, she was harassed physically and ::: Uploaded on - 16/06/2017 ::: Downloaded on - 28/08/2017 04:40:52 ::: Judgment 5 apeal712.06+1.odt mentally and that the accused has committed the offence punishable under Section 498-A of the Indian Penal Code.
5. We have heard the learned advocate for the accused and the learned A.P.P. for the State of Maharashtra and have also examined the record with their assistance. There is no eyewitness of the incident. It is not in dispute that deceased Neeta suffered 100% burn injuries and the accused sustained 32% burn injuries. The case of the prosecution is mainly based on the Dying Declarations (Exhs.43, 46 and Exh.52). In the cross-examination of Dr. Trupti Kisan Bobde (P.W.5) it has come on record that as per practice of the hospital history of the patient is noted and when history of Neeta was recorded at the time of her admission vide Exh.65 Neeta had told that she had made suicidal attempt by pouring kerosene. This witness has stated that dying declaration Exh.No.52 does not contain endorsement or her signature showing that the dying declaration (Exh.No.52) was recorded in her presence. Dr. Dnyaneshwar Uddhavrao Deshmukh (P.W.6) who had examined Neeta when her dying declaration (Exh.No.46) was recorded has stated in his examination-in-chief that he had examined pulse rate and blood pressure of Neeta and had certified that she was fit to give statement. However, the prosecution ::: Uploaded on - 16/06/2017 ::: Downloaded on - 28/08/2017 04:40:52 ::: Judgment 6 apeal712.06+1.odt has not proved before the Court by producing the medical papers of Neeta to show the reading of pulse rate and blood pressure of Neeta at the time when her dying declaration vide Exh.46 was recorded. It being not disputed that Neeta suffered 100% burn injuries, it would not be safe to accept the evidence of this witness without there being any endorsement either on the dying declaration (Exh.No.46) showing reading of blood pressure and pulse rate of Neeta at the relevant time and in the absence of any medical paper having been produced in that regards. The Sessions Court, referred to the dying declaration (Exh.No.43) which is recorded first in point of time and has recorded that the statements in these dying declarations indicate that Neeta died of suicidal death and not homicidal death. However, the Sessions Court has not given any weightage to this dying declaration (Exh.No.43) as it found that at the time of recording of this dying declaration Neeta was in the company of the accused and was under his control.
Other dying declaration (Exh.No.46) is recorded at the instance of relatives of Neeta. Raosaheb Milke (P.W.No.2) had moved application (Exh.No.48) to the Commissioner of Police insisting for recording of dying declaration of Neeta and pursuant to it the dying ::: Uploaded on - 16/06/2017 ::: Downloaded on - 28/08/2017 04:40:52 ::: Judgment 7 apeal712.06+1.odt declaration of Neeta vide Exh.46 came to be recorded. The evidence on record shows that at the time of recording of this dying declaration (Exh.No.46) Neeta was in the company of her relatives since prior to 5- 6 hours. The evidence on record shows that Neeta had suffered 100% burn injuries and therefore, she might have been given sedatives. Neeta was not in a fit condition is clear from the fact that in the dying declaration (Exh.No.46) her answer to the question regarding her name, age and place is that her name was "Neeta Ramesh Gorle", though the name of husband of Neeta is "Suresh".
As recorded earlier, third dying declaration (Exh.No.52) is also not of any assistance to the prosecution as there is no entry about recording of this dying declaration on the case papers of Neeta.
6. We find that the learned Ad-hoc Additional Sessions Judge has properly appreciated the evidence on record on this point and it cannot be said that there is any illegality or perversity in the appreciation of the evidence by the Sessions Court.
The challenges raised by the State of Maharashtra in the appeal filed by it cannot be accepted.
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7. We find that the conviction of the accused for the offence punishable under Section 498-A of the Indian Penal Code is unsustainable. The Sessions Court has convicted the accused for the offence punishable under Section 498-A of the Indian Penal Code relying on the evidence of Raosaheb Milke (P.W. No.2), Ankita (P.W. No.3) and statements recorded in dying declaration (Exh.No.43). In the cross-examination of Raosaheb (P.W. No.2) it has come on record that Neeta had not lodged any report against her husband-complainant of any ill-treatment. The incident occurred after about 12 years of the marriage and the prosecution has not brought on record any evidence to show that Neeta complained of ill-treatment by the accused during this period. Ankita (P.W. 3) has admitted in her cross-examination that after the incident and death of her mother she had been living with her maternal uncle Punjabrao. Considering the fact that Ankita was 11 years at the time of the incident and she was living with her maternal uncle it would not be safe and proper to rely on her evidence for the purposes of convicting the accused unless her evidence is corroborated by other evidence. There is no corroboration on the point of ill-treatment by accused to Neeta. Ankita (P.W. No.3) has made a general statement in her evidence that the accused used to tell her ::: Uploaded on - 16/06/2017 ::: Downloaded on - 28/08/2017 04:40:52 ::: Judgment 9 apeal712.06+1.odt mother to leave house otherwise he would kill her and this he used to do under the influence of liquor. Except for this general statement Ankita has not referred to any specific incident of ill-treatment by the accused to Neeta. While rejecting the claim of the prosecution for convicting the accused for the offence punishable under Section 302 of the Indian Penal Code relying on the dying declarations including dying declaration (Exh.No.43), it is recorded that Neeta having suffered 100% burn injuries it cannot be said that she was fit to give statement and in view of this, the reliance placed by the Sessions Court on the statement of Neeta recorded in dying declaration (Exh.No.43) is not proper for convicting the accused for the offence punishable under Section 498-A of the Indian Penal Code. We find that the prosecution has not been able to establish beyond doubt that the accused is liable to be convicted for the offence punishable under Section 498-A of the Indian Penal Code. Therefore, benefit of doubt has to be given to the accused and the conviction under Section 498-A of the Indian Penal Code is required to be set aside.
Hence, the following order :
i) Criminal Appeal No. 529 of 2006 is allowed and the appellant is given benefit of doubt.
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ii) The judgment delivered by 6 th Ad-hoc Additional Sessions
Judge, Amravati in Sessions Trial No.98/2004 holding him guilty of offence punishable under Section 498-A of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for three years and to pay fine of Rs.5000/- is quashed and set aside.
iii) Seized Muddemal property be dealt with as directed by the trial Court after appeal period is over.
iv) Criminal Appeal No. 712 of 2006 filed by the State of Maharashtra is dismissed. Thus, acquittal of appellant for the offence punishable under Section 302 of the Indian Penal Code by the Sessions Court is upheld.
(Z.A.HAQ, J.) (B.P.DHARMADHIKARI, J.)
RRaut..
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