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THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 385 OF 2009
The State of Maharashtra through
Police Station Officer,
Police Station Channi, Akola,
Tq. & Distt. Akola. ... Appellant
VERSUS
(1) Kanchan Sanjay Ghaywat,
Aged about 24 years
(2) Parsha @ Prashant Sagar Thakare,
Aged about 21 years
(3) Sagar Shivram Thakare,
Aged about 45 years,
All residents of Chondhi,
Police Station Channi,
District - Akola. ... Respondents
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Mrs. M. H. Deshmukh, Additional Public Prosecutor for the State/
appellant
Mr. Shriniwas Deshpande, Advocate for the respondents (appointed)
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date of reserving the judgment : 6/11/2017.
Date of pronouncing the judgment : 13/11/2017 Judgment (Per : M.G. Giratkar, J) This is an appeal by the State/prosecution challenging the ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 ::: 2 jg.apeal.385.09.odt acquittal of the respondent nos. 1 to 3 for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
2. The case of the prosecution against the respondents in nutshell is as under.
(i) The respondent no. 1 Kanchan w/o Sanjay Ghaywat was the daughter-in-law of deceased Tukaram Harkuji Ghaywat. From the evidence on record, it appears that husband of respondent no. 1, namely, Sanjay died. The State Government granted compensation of Rs. 1,00,000/-. Therefore, there was dispute between the wife of Sanjay, namely, Kanchan and family members of deceased.
(ii) As per the evidence on record, after the death of Sanjay, marriage of Kanchan was performed with brother of Sanjay, namely, Mangesh Ghaywat. As per the evidence of Mangesh Ghaywat, within a short period from the time of marriage, Kanchan left his company and started residing with her parents at village Chondhi.
(iii) As per the case of prosecution, early in the morning of 14-2-2008, all three accused entered in the field of deceased, poured kerosene and set him on fire. He was admitted in Government Hospital. P.W. 1, Executive Magistrate Shri Sanjay Garkal recorded dying declaration, ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 ::: 3 jg.apeal.385.09.odt Exhibit 30. On the basis of said dying declaration, crime was registered against the accused/respondents. Investigating Officer investigated the crime and filed charge-sheet before the Court.
(iv) Trial Court framed charge at Exhibit 13. Same was readover and explained to the accused/respondents to which they pleaded not guilty and claimed to be tried. Prosecution has examined in all 8 witnesses. Learned trial Court not relied on dying declaration, Exhibit 30 and acquitted all the accused(respondents) vide judgment dated 31-1-2009 in S.T. No. 75/2008. Being aggrieved by the judgment of acquittal, prosecution/State filed the present appeal.
3. Heard learned Additional Public Prosecutor Mrs. Deshmukh for the appellant/State. She has submitted that prosecution has proved dying declaration, Exhibit 30. P.W. 1 has stated that he recorded the dying declaration. He has stated in his evidence that he obtained the certificate of doctor. Patient was in a fit state of condition to make a statement. Thereafter, he recorded dying declaration of deceased.
4. Learned Additional Public Prosecutor Mrs. Deshmukh has pointed out us dying declaration, Exhibit 30 and submitted that as per the dying declaration, all accused persons pressed the mouth of ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 ::: 4 jg.apeal.385.09.odt deceased, poured kerosene and set him on fire.
5. Learned Additional Public Prosecutor has pointed out us evidence of P.W. 4 Mangesh Ghaywat and submitted that he has stated oral dying declaration of deceased. Both these dying declaration are not considered by the Sessions Court and wrongly acquitted all the respondents for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. At last, learned Additional Public Prosecutor Mrs. Deshmukh submitted that appeal be allowed and all the respondents be convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.
6. Learned counsel for the respondents Mr. Shriniwas Deshpande has strongly supported the judgment. He has pointed out dying declaration, Exhibit 30 and oral dying declaration stated by P.W. 4. He has submitted that both dying declarations are contradictory. Learned counsel for the respondents has pointed out evidence of P.W. 8 and submitted that he is the first person to reach the spot of incident but he has not stated anything about the cause of death of deceased. At last, he submitted that judgment of the trial Court is perfectly legal and correct and hence, appeal is liable to be dismissed. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 :::
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7. Now, it is well settled law that accused can be convicted only on the basis of dying declaration provided that it should inspire the confidence of the Court. Corroboration is necessary if dying declaration is found to be doubtful. Hon'ble Supreme Court in the landmark decision in the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22, has observed that :
"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 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."
8. The prosecution case is based on dying declaration, Exhibit 30 and evidence of P.W. 4. Dying declaration, Exhibit 30 reads as under :
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6 jg.apeal.385.09.odt Dying declaration of patient : Tukaram Harkuji Ghaywat, aged 90 years dated 14-2-2008 :
"The said incident took place this day, at 4.00 O'clock in the morning. Kanti, Parsha and Sagar pressed mouth and assaulted. Marriage was performed with my son and they were assaulting me. They were assaulting my son. By coming on motorcycle, Kanti and Parsha poured (kerosene) oil on my person and Parsha set me on fire with the match-stick. As a result of it, I sustained burn."
9. P.W. 4 Mangesh Ghaywat has stated in his evidence that he came to know that his father was admitted in the hospital. He went to Government Hospital, Akola in the afternoon at about 3-4 p.m. His father told him that he should not stay there because "those people would kill him". Then he asked what did he mean by 'those people'. Then his father told him that it means accused nos. 1, 2 and 3 would kill him. His father told him that accused nos. 1 to 3 beaten him up, lifted him and took him under the papaya tree and set him on fire after pouring kerosene.
10. From the perusal of evidence of all the witnesses, it is clear that P.W. 4 is the interested witness who was having grudge against the accused nos. 1 to 3. It is admitted fact that accused no. 1 Kanchan was ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 ::: 7 jg.apeal.385.09.odt the wife of Sanjay Ghaywat (brother of P.W. 4). Sanjay died, therefore, Government granted compensation of Rs. 1,00,000/-. There was dispute between the wife of Sanjay/accused no. 1 and the family members of deceased on account of Rs. 1,00,000/-. It is brought on record in the cross-examination of P.W. 4 and P.W. 5 that the matter tried to settle before the Tantamukti Samiti but it was not settled. Mother of deceased Sanjay and P.W. 4 filed court proceedings. Accused no. 1 raised objection.
11. As per the evidence of P.W. 4, accused no. 1 wanted to get Rs. 1,00,000/- and deceased was opposing, therefore, they killed the deceased. It is pertinent to note that no such evidence is brought on record. Deceased was aged about 90 years. There is no dispute that he was residing in the field.
12. Dying declaration stated by deceased, Exhibit 30 is not reliable because he has not stated names of assailants which indicates that accused were the said persons. He has stated that Kanti, Parsha and Sagar came on motorcycle, pressed his mouth and assaulted. Marriage was performed with his son and they were assaulting his son. It is pertinent to note that evidence of P.W. 5, panch witness of the spot who is closed relative of deceased has admitted in cross-examination ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 ::: 8 jg.apeal.385.09.odt that the spot of incident was the field in which no vehicle could go. He did not see any tyre mark of any vehicle on the spot of incident. Therefore, it is clear that whatever deceased stated that assailants/accused came on motorcycle is not reliable.
13. In the dying declaration, Exhibit 30, deceased has stated that his son was also beaten but his son has not stated before the Court that accused persons have beat him at the time of incident.
14. As per the evidence of P.W. 5 in cross-examination, deceased was alone residing in the field. He was cooking food there itself. There was a kiln. The possibility that deceased sustained burn injuries while cooking food cannot be ruled out. P.W. 4 is interested in implicating the respondents because he wanted to get Rs. 1,00,000/- which was granted by the Government towards compensation for the death of his brother Sanjay. As per his evidence, respondent no. 1 married with him on 11-7-2006 and thereafter she left in the month of December. It is the case of accused no. 1 that she did not marry with P.W. 4. P.W. 4 and other family members not given Rs. 1,00,000/- to her which was granted by the Government towards compensation for the death of her husband.
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15. Evidence of P.W. 4 shows that he is interested in prosecuting the respondents because he reached to the Government Hospital at about 3-4 p.m. till that time nobody recorded dying declaration of deceased. Deceased not disclosed about the cause of death to any other relatives. Exhibit 30 was recorded by P.W. 1 at about 9.30 p.m. on 14-2-2008. Therefore, it is clear that P.W. 4 after reaching to the hospital got the said dying declaration recorded.
16. Cause of death stated by deceased to P.W. 1 and P.W. 4 is also not reliable because dying declaration, Exhibit 30 and oral dying declaration stated by P.W. 4 are contradictory. As per the evidence of P.W. 4 himself, deceased was not talking in clear words. He disclosed him that those people would kill him. Deceased told him that accused lifted deceased, took him under the papaya tree and set him on fire after pouring kerosene. It is pertinent to note that this fact is not stated by deceased in his dying declaration, Exhibit 30. Therefore, dying declaration stated by P.W. 4 is also not reliable.
17. It is pertinent to note that if really, it was a case of homicidal death, then deceased would have disclosed to the closed relatives. P.W. 8 was the first person reached to the spot of incident. ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 :::
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18. P.W. 8 has stated in his evidence that he was in the field at about 7.00 a.m. on 14-2-2008. His maternal uncle Santosh who is dumb came to him. He understand him by the gesture, therefore, he followed him to the field of deceased Tukaram. There he found Tukaram in charred condition. Therefore, he taken him in the bullock cart to his residence. Thereafter his son Bharat went to Alegaon to get a taxi. He followed him on the bullock cart with the injured Tukaram. While on the way, taxi came there. Thereafter injured was taken to District Hospital, Akola. In the cross-examination, he stated that "while on the way, Tukaram was only saying that he was feeling pain on account of the burn injuries. He did not say anything else." It is pertinent to note that P.W.8 is the son of daughter of deceased. Being a grandson, it was his natural conduct to ask deceased/grandfather as to how he burnt. If the deceased was really burnt by accused, then it was a natural conduct to disclose the incident to his grandson. But deceased not stated anything to his grandson, P.W. 8 about the incident. This itself shows that deceased might have sustained burn injuries accidentally.
19. Dying declaration stated by P.W. 4 and dying declaration, Exhibit 30 are contradictory. Those are not reliable. Learned Sessions ::: Uploaded on - 14/11/2017 ::: Downloaded on - 15/11/2017 01:49:40 ::: 11 jg.apeal.385.09.odt Judge rightly recorded its findings and rightly acquitted all the respondents. There is no infirmity or illegality in the judgment of the Sessions Court. Hence, we proceed to pass the following order.
(i) The appeal is dismissed.
(ii) R & P be sent back to the trial Court.
(iii) Fees of learned counsel for the respondents are quantified at Rs. 5,000/-.
JUDGE JUDGE
wasnik
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