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THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 304 OF 2005
Ajay s/o Digamber Deogade,
aged about 24 years, Occ. Labourer,
R/o : Bhadrawati, District : Chandrapur. ... Appellant
VERSUS
The State of Maharashtra,
through P.S.O. Bhadrawati. ... Respondent
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Shri R. M. Daga, Advocate for the appellant
Shri V. P. Gangane, Additional Public Prosecutor for the respondent
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CORAM : R. K. DESHPANDE AND
M. G. GIRATKAR, JJ.
Date of reserving the judgment : 13/11/2017.
Date of pronouncing the judgment : 23/11/2017 Judgment (Per : M.G. Giratkar, J) Appellant was charge-sheeted for committing murder of his wife. Learned Additional Sessions Judge, Chandrapur acquitted the appellant for the offence punishable under Section 304-B of the Indian Penal Code and convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/- in default to suffer further simple imprisonment for three months. Being aggrieved by the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 2 jg.apeal.304.05.odt judgment of conviction in Sessions Case No. 119/2004 dated 12-4-2005, appellant has filed the present appeal.
2. The case of the prosecution against the appellant in short is as under.
(i) The appellant married with deceased Vishakha on 19-3-2004. After the marriage, appellant was demanding Rs. 50,000/- from her parents. On the day of incident i.e. on 18-4-2004, in evening, appellant came to house and asked his wife Vishakha as to why she did not serve food to his mother. Therefore, there was quarrel between them. He taken her in the bathroom, poured kerosene on her person and set her on fire. Vishakha started burning. She caught the appellant. Appellant also sustained burn. Neighbours extinguished fire. They were admitted in the Government Hospital, Chandrapur in the night at about 10.00 p.m.
(ii) On 19-4-2004, Executive Magistrate Sirsam recorded statement/ dying declaration of Vishakha. She has stated that appellant quarreled with her saying as to why she did not serve food to his mother and on that count, there was quarrel. Appellant poured kerosene and set her on fire. She has also stated that she caught the appellant and appellant also sustained burn. On 22-4-2004, during medical treatment in the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 3 jg.apeal.304.05.odt hospital, Vishakha died.
(iii) PSI Khamankar registered the crime on 26-4-2004 after receipt of dying declaration. Thereafter he went to spot of incident and prepared spot panchanama, seizure panchanama. He has recorded statements of witnesses. Further investigation was carried out by PSI Solanki. PSI Solanki seized video recording, arrested accused and after complete investigation, filed charge-sheet before the Judicial Magistrate First Class, Bhadrawati. Offences under Sections 302 and 304-B of the Indian Penal Code are exclusively triable by the Sessions Court, therefore, the Judicial Magistrate First Class, Bhadrawati committed the case to Sessions Court for trial.
(iv) Charge was framed by the trial Court at Exhibit 5 for the offences punishable under Sections 304-B and 302 of the Indian Penal Code. The same was readover and explained to the appellant to which he pleaded not guilty and claimed to be tried.
(v) Trial Court has examined in all total following 11 witnesses.
(1) P.W. 1 Hemant Madhukar Meshram (Exhibit 12) (2) P.W. 2 Mahadeo Shankar Narayane (Exhibit 15) (3) P.W. 3 Ashish Vilasrao Nagarale (Exhibit 16) (4) P.W. 4 Rajesh Gajananrao Alone (Exhibit 32) ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 4 jg.apeal.304.05.odt (5) P.W. 5 Imtiyas Mumtaz Siddiqui (Exhibit 33) (6) P.W. 6 Vilas Nathuji Nagarale (Exhibit 36) (7) P.W. 7 Raghunath Ramchandra Khamankar (Exhibit 39) (8) P.W. 8 Chandrakant Motiramji Sirsam (Exhibit 41) (9) P.W. 9 Gulabsingh Gayansingh Solanki (Exhibit 47) (10) P.W. 10 Dr. Rafiq Ramjan Ali Mawani (Exhibit 51) and (11) P.W. 11 Dr. Seema Madhukar Shegaonkar (Exhibit 54) Statement of accused/appellant was recorded under Section 313 of Code of Criminal Procedure. He has denied material incriminating evidence against him.
(vi) After hearing the prosecution and defence, learned trial Court discarded the evidence in respect of dowry death for the offence punishable under Section 304-B of the Indian Penal Code. Learned trial Court relied on the evidence of P.W. 2 and P.W. 6 in respect of oral dying declaration stated by deceased and convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code holding that appellant poured kerosene on the person of his wife Vishakha and set her on fire.
3. Prosecution mainly relied on the written dying declaration, Exhibit 43 recorded by P.W. 8. Prosecution has also relied on the dying declaration recorded on video camera by P.W. 4 Rajesh Alone of Search ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 5 jg.apeal.304.05.odt T.V. channel. Prosecution also relied on oral dying declaration stated by deceased to P.W. 2 Mahadeo Narayane and P.W. 6 Vilas Nagarale.
4. Defence of appellant is that deceased was cooking food at the time of incident, stove was burst and, therefore, she caught fire and sustained burn injuries. Learned counsel Shri Daga for the appellant has submitted that it has come in the evidence of P.W. 2 and P.W. 6 that statement of deceased was recorded by police but that statement is not filed on record, therefore, material evidence is suppressed by the prosecution.
5. Learned counsel Shri Daga has submitted that documents, Exhibit 18, 19, 20, 25 and 27 show that Vishakha stated to the police that she sustained burn injuries while cooking food. Learned counsel pointed out spot panchanama, Exhibit 13, seizure panchanama, Exhibit 14 and submitted that seized stove was on the spot and some cooked food articles were lying there. The probable defence is proved by the appellant, learned trial Court has not considered the same.
6. Learned counsel Shri Daga has submitted that trial Court itself not relied on the dying declaration, Exhibit 43 recorded by P.W. 8 Executive Magistrate Sirsam. Learned trial Court also not relied on the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 6 jg.apeal.304.05.odt evidence of P.W. 4 and P.W. 5. As per the evidence of P.W. 4, he had recorded the statement of deceased in video camera. As per the evidence of P.W. 5, C.D. was seized by the police in which the statement of deceased was recorded. Learned trial Court not relied on this evidence.
7. Learned counsel Shri Daga has submitted that P.W. 2 and P.W. 6 are interested witnesses, therefore, their evidence should not have been relied by the trial Court. Prosecution failed to prove the guilt of appellant beyond reasonable doubt, hence, appeal be allowed and appellant be acquitted for the offence punishable under Section 302 of the Indian Penal Code.
8. Learned Additional Public Prosecutor Shri Gangane for the State/respondent has strongly supported the impugned judgment. He has submitted that evidence of P.W. 2 is well supported by the evidence of P.W. 6. After the incident, on 19-4-2004, P.W. 2 and P.W. 4 came to know about the incident. P.W. 6 is father of deceased and P.W. 2 is brother-in-law of deceased. They went to General Hospital, Chandrapur. They went to Burn Ward. Deceased Vishakha told them that her husband/appellant came to house in the evening and asked her as to why she did not serve food to his mother, therefore, there was ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 7 jg.apeal.304.05.odt quarrel between them. He taken her in bathroom, poured kerosene and set her on fire.
9. Learned Additional Public Prosecutor has submitted that on the basis of oral dying declaration stated by P.W. 2 and P.W. 6, trial Court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. Learned trial court came to the conclusion that there is no any evidence about the demand of dowry. Evidence in that respect stated by her brother P.W. 3 not relied by the trial Court. P.W. 2 and P.W. 6 not stated in respect of demand of Rs. 50,000/- etc.
10. There is no dispute about the death of Vishakha. P.W. 11, Medical Officer, Dr. Seema Shegaonkar has stated in her evidence that she has conducted postmortem on the dead body of Vishakha. As per her opinion, cause of death was due to 100% burn, accordingly, she issued postmortem report, Exhibit 55.
11. Now it is well settled law that accused can be convicted on the basis of sole dying declaration provided it is free from doubt and inspire the confidence of Court. When the dying declarations are contradictory or create doubt, it cannot be relied on. Hon'ble Supreme ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 8 jg.apeal.304.05.odt Court in the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22 laid down following guiding principles as to how dying declaration is to be considered :
"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."
12. Deceased and appellant both were admitted in General Hospital, Chandrapur. They were admitted in Burn Ward. Immediately, Medical Officer informed to the Duty Police Officer in the hospital. Exhibit 18 and Exhibit 19 were information given by Medical Officer to the Duty Police Officer in the hospital.
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13. As per Exhibit 19, Vishakha had sustained 100% burn injuries. Exhibit 20 is the report from Police Officer, Police Chowki, General Hospital, Chandrapur to the Police Inspector. In this report, he has stated that "on 18-4-2004 at about 21.30 Hours, Vishakha was cooking food on stove, accidentally, stove burst and she sustained burn injury about 100%. Her husband Ajay Deogade sustained 10% burn injury." On the report/memo of Medical Officer, statements of both the witnesses recorded and submitted with the report.
14. As per Exhibit 24, after death of Vishakha, Medical Officer, Mrs. Maskar Madam gave information and it was recorded in Accidental Death Register. In Exhibit 25, Accidental Death Report, it is mentioned that Medical Officer Maskar gave report about the death and it is written in the report that deceased Vishakha Ajay Deogade, aged about 18 years was cooking food on 18-4-2004 at about 9.30 p.m., stove was burst. She sustained 100% burn. She was admitted in the night of 19-4-2004 at about 00.15 Hours at General Hospital, Chandrapur. She died on 22-4-2004. It was informed to the Sub Divisional Officer vide Exhibit 26. Same contents are written. The letter/form for the postmortem, Exhibit 27 shows the contents that deceased Vishakha sustained burn injuries while cooking food and she died on 22-4-2004. ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 :::
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15. It is well settled principle of criminal law that prosecution has to prove the guilt of accused beyond reasonable doubt. Keeping this principle in mind, we have to scrutinize all the evidence on record. P.W. 1 Hemant Meshram has stated in his evidence that spot panchanama, Exhibit 13 was prepared in his presence. Police has seized stove, match stick etc. vide seizure panchanama, Exhibit 14.
16. P.W. 2 Mahadeo Narayane has stated in his evidence that he came to know about the incident of burning on 19-4-2004. He has stated in his evidence that marriage of Vishakha was solemnized on 19- 3-2004. She died on 19-4-2004. Her death is also unnatural by burning. Therefore, it is clear that death of Vishakha was within 7 years of marriage. To attract provisions of Section 304-B of the Indian Penal Code, prosecution has to prove the ingredients of Section 498-A of Indian Penal Code that death of Vishakha was in connection with demand of dowry.
17. Evidence of P.W. 2 and P.W. 6 on this aspect is silent. Only P.W. 3 Ashish Nagarale has stated in his evidence that after the marriage, appellant was demanding Rs. 50,000/- and, therefore, he was ill-treating her, beating her. Evidence of this witness is not corroborated by the nearest relative i.e. P.W. 2 brother-in-law of deceased and P.W. 6 ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 11 jg.apeal.304.05.odt father of deceased. Evidence of this witness (P.W. 5) is discarded by the trial Court and, therefore, rightly acquitted the appellant for the offence punishable under Section 304-B of the Indian Penal Code.
18. In respect of offence punishable under Section 302 of the Indian Penal Code, the learned trial Court has relied on the oral dying declaration stated by P.W. 2 and P.W. 6, before the Court.
19. Learned trial Court rightly discarded written dying declaration, Exhibit 43 recorded by P.W. 8 Executive Magistrate Sirsam. We have gone through the written dying declaration, Exhibit 43. From the perusal of this dying declaration, it cannot be relied on because he has not written the name of deceased in the dying declaration. In the cross-examination, he has admitted that Medical Officer not certified that patient was fit to give her statement. He has further stated that he did not remember the name of patient. Even after reading Exhibit 43, he cannot tell the name of patient, regarding contents of 'statement was read out to patient' was earlier written. In Exhibit 43 contents that it was readover is not in his handwriting. He has not mentioned in dying declaration, Exhibit 43 that patient was in a position to give her statement.
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20. From the perusal of Exhibit 43, it is clear that Medical Officer not given any certificate to show that he examined the patient before recording Exhibit 43 and found that she was fit to give the statement. Therefore, learned trial Court has rightly discarded written dying declaration, Exhibit 43.
21. Prosecution has examined P.W. 4 Rajesh Alone. He has stated in his evidence that he was cameraman of local channel 'Search T.V.', Chandrapur. On 19-4-2004 at about 5.00 p.m., he went to General Hospital, Chandrapur to collect news in burn case of Vishakha. He started video camera and recorded her statement. He has stated that deceased stated that her husband quarreled with her, taken her in the bathroom forcibly, poured kerosene and set her on fire. In the cross- examination, he has admitted that police has not seized original video cassette having the video clippings. His statement was recorded after three months. They had not taken any permission from the Medical Officer to record the statement.
22. P.W. 5 Imtiyaz Siddiqui has stated that he was operator of Search T.V. Police seized one video clip. In the cross-examination, he has admitted that video clip was not sealed at the time of seizure. The video clip was shown to the appellant in the Court. He has denied that ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 13 jg.apeal.304.05.odt the lady shown in the picture was his wife. Original video recording not produced before the Court. To prove the electronic evidence, certificate as per Section 65-B of the Indian Evidence Act not produced before the Court. Learned trial Court rightly not relied on the evidence of video recording by P.W. 4. Prosecution failed to prove that the lady shown in the picture was deceased Vishakha. Moreover, original recording not produced before the Court. Appellant has specifically denied the recording. Hence, learned trial Court rightly not relied on the evidence of P.W. 4 and P.W. 5.
23. Learned trial Court relied on the evidence of P.W. 2 Mahadeo Narayane who is brother-in-law of deceased, resident of Ghodpeth, Chandrapur and evidence of P.W. 6 Vilas Nagarale, father of deceased. It is pertinent to note that evidence of these witnesses is to be scrutinized very carefully because they are interested in prosecuting the accused.
24. P.W. 2 has stated in his evidence that at the time of settlement of marriage, there was demand of Rs. 30,000/-. They had given Rs. 30,000/- to the appellant. Marriage of Vishakha was performed with the appellant. In the cross-examination, he has admitted that Rs. 30,000/- was spent by them at the time of purchase of ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 14 jg.apeal.304.05.odt clothes for marriage of bride. He has not stated anything more. He has not stated about the demand of dowry etc.
25. There is no dispute that deceased had sustained 100% burn. In such situation, whether she was able to talk/state to P.W. 2 and P.W. 6 is a question. As per evidence of Medical Officer Dr. Rafiq Mawani (P.W. 10), in case of 100% burn, patient may become unconscious at any stage. Patient was having deep burns over her face, in such type of cases, nerve system of a patient get damaged. It may happen that because of this condition, the patient may not have proper functioning of lips. This admission shows that Vishakha was not in a position to tell this witness that appellant poured kerosene and set her on fire.
26. It is admitted by P.W. 2 and P.W. 6 that mother of Vishakha was always with the patient in the General Hospital till her death but prosecution has not examined mother of deceased. She was the best witness who could have stated before the Court about the condition and statement of deceased. As per the admission of Medical Officer Dr. Rafiq Mawani, in case of 100% burn, patient many not be in a position to state/give statement. Dr. Mawani himself not certified before recording the dying declaration, Exhibit 43, when it was ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 15 jg.apeal.304.05.odt recorded by Executive Magistrate Sirsam. Dr. Mawani has only certified after recording the statement stating that she was fit to give her statement. It is pertinent to note that why Dr. Mawani not certified to the Executive Magistrate before recording the dying declaration, Exhibit 43 stating that patient was in a fit condition to give her statement, is not explained.
27. P.W. 2 has admitted in his cross-examination that generally, Medical Officer not allowed to enter in lady burn ward except the lady members. He immediately not lodged the report after he had talk with Vishakha. His statement was recorded by police after 7-8 days. He has further admitted that police has recorded dying declaration of Vishakha.
28. P.W. 6 father of deceased has stated that on 19-4-2004, he along with P.W. 2 went to General Hospital, Chandrapur. They went to Burn Ward. They enquired from Vishakha as to how she sustained burns, on that, she replied that appellant asked her as to why she did not serve food to his mother. There was exchange of words between them. Appellant poured kerosene on her person and set her on fire.
29. In cross-examination, P.W. 6 has admitted that they came to know that police has already recorded statement of deceased before ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 16 jg.apeal.304.05.odt they reached to the hospital. There is police chowki at the General Hospital. He has further admitted that police told them that Vishakha stated to them that she sustained burn injuries due to bursting of stove while cooking food.
30. From the evidence on record, it is clear that learned trial Court wrongly relied on evidence of P.W. 2 and P.W. 6. Vishakha had sustained 100% burn. In such a situation, she might not been in a position to state to P.W. 2 and P.W. 6 about the cause of death. As per admission of Dr. Mawani in 100% burn cases, there was possibility of damage to nerve system and patient may become unconscious.
31. P.W. 2 and P.W. 6 are the most interested witnesses for the conviction of appellant. Their conduct itself shows that they tried to rope all the family members of the appellant. Record shows that they approached to police station and requested to record the statement of deceased through Executive Magistrate.
32. Report, Exhibit 37 was lodged by P.W. 6 on 19-4-2004 itself. In the report, P.W. 6 stated the names of six family members of the appellant alleging that they had committed the crime. This report was lodged on 19-4-2004 but crime was registered on 26-4-2004. ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 :::
17 jg.apeal.304.05.odt Explanation given by P.W. 7 PSI Khamankar is not reliable. He has stated in his explanation that he received dying declaration, Exhibit 43 late and, therefore, he could not register offence earlier. He has stated that he was busy in other matters but his cross-examination shows that he was on duty. He has stated in his cross-examination that he was on duty in between 18-4-2004 to 26-4-2004. Then question arise why he did not take cognizance of the report lodged by P.W. 6 on 19-4-2004.
33. As per the evidence of P.W. 9 PSI Solanki (Exhibit 47), he seized video clipping from P.W. 5, arrested the accused but this witness has not stated that video clipping was shown to the panch witnesses.
34. Evidence of P.W. 2 and P.W. 6 wrongly relied by the trial Court more particularly, when the dying declaration, Exhibit 43 and evidence of video recording by P.W. 4 discarded by the trial Court. It is pertinent to note that P.W. 2 and P.W. 6 are the interested witnesses. Their admissions in their cross-examination show that statement of Vishakha was already recorded by the police but that statement not produced on record. Exhibit 18, 19, 20, 25, 27 and 28 clearly show that statement of deceased Vishakha was recorded by police. In her statement, she had stated that when she was cooking food on the stove, stove was burst, therefore, she caught fire and sustained burn injuries. ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 :::
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35. The defence of the appellant is that deceased sustained burn injuries accidentally and therefore, died.
36. Accused has to prove probable defence and burden is not so high as like the prosecution. Prosecution has to prove the guilt of accused beyond reasonable doubt.
37. Probable defence appears to be proved by the appellant. Documents at Exhibit 18, 19, 20, 25, 27, 28 and 30 clearly show that deceased sustained burn injuries accidentally while cooking food. This documentary evidence is well supported by the admission of P.W. 2 and P.W. 6 in their cross-examination. They have admitted that when they reached to the General Hospital, police told them that statement of Vishakha was recorded by them. Police told them that Vishakha stated in her statement that she was cooking food on stove, stove was burst and she caught fire, therefore, sustained burn injuries. This evidence is also supported by spot panchanama, Exhibit 13 and seizure panchanama, Exhibit 14. On the spot of incident, no any kerosene can was found. Stove was found on the spot of incident and it was seized as per seizure panchanama, Exhibit 14. Therefore, it is clear that appellant has established by probable defence that Vishakha sustained burn ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 19 jg.apeal.304.05.odt injuries while cooking food due to bursting of stove.
38. Learned trial Court not taken into consideration the documentary evidence, Exhibit 18, 19, 20, 25, 27 and 28 in which the contents are written that Vishakha had sustained burn injuries due to bursting of stove at the time of cooking food. Learned trial Court also not taken into consideration the admission given by P.W. 2 that they were told by police that statement of Vishakha was already recorded and she has stated in her statement that while cooking food, she sustained burn injuries. Learned trial Court ought to have drawn adverse inference against the prosecution for not producing the statement of deceased on record. Admittedly, statement of deceased was recorded by police but it is not produced on record. Therefore, it is clear that statement is against the prosecution.
39. Evidence of P.W. 2 and P.W. 6 wrongly relied by the trial Court. Their admission itself show that statement of deceased Vishakha was recorded by police. P.W. 6 has specifically admitted in his cross- examination that police told him that Vishakha had stated in her statement that she sustained burn injuries due to bursting of stove while cooking food. P.W. 2 admitted in his cross-examination that police has recorded dying declaration of Vishakha. Therefore, it is clear that the ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 14:23:46 ::: 20 jg.apeal.304.05.odt dying declaration which was recorded by police not produced before the Court. Oral dying declaration stated by P.W. 2 and P.W. 6 are not reliable. Evidence of P.W. 2 and P.W. 6 in respect of dying declaration stated by Vishakha creates doubt. Hence, in view of the judgment of Hon'ble Supreme Court in the case of Khushal Rao vs. State of Bombay (cited supra), oral dying declarations stated by P.W. 2 and P.W. 6 are not reliable.
40. All the above discussion clearly goes to show that prosecution has failed to prove the guilt of accused/appellant beyond reasonable doubt for the offence punishable under Section 302 of the Indian Penal Code. Hence, we pass the following order.
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment is hereby quashed and set aside.
(iii) Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code.
(iv) Fine amount if paid be refunded to the appellant.
(v) Bail bond of accused stands cancelled.
(vi) R & P be sent back to the trial Court.
JUDGE JUDGE
wasnik
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