State Of Maharashtra vs Mahesh Singh
2005 Latest Caselaw 1284 Bom

JUDGMENT

R.C. Chavan, J.

1. By this appeal the State has challenged respondent's acquittal for the offence punishable under Section 302 of the Penal Code, recorded by the learned 6th Additional Sessions Judge, Nagpur.

2. The respondent was tried for murder of his wife by setting her ablaze on 27th "November, 1991 at his residence on account of a petty domestic dispute. Respondent's wife Pushpabai, who had sustained burn injuries, was taken to hospital where police caused her dying declaration to be recorded before a Special Executive Magistrate. In the said declaration the victim implicated the respondent. An offence was registered. The victim succumbed to her injuries on 7.12.1991. After an inquest her body was sent for post-mortem examination and it was found that the victim died on account of 54% burns suffered by her. Police recorded statement of witnesses, seized incriminating articles and sent them to the Forensic Science Laboratory and on completion of investigation submitted charge-sheet before the Chief Judicial Magistrate, Nagpur.

3. On finding that the accused was alleged to have committed an offence, triable exclusively by the Court of Sessions the learned Chief Judicial Magistrate committed the case to the Court of Sessions at Nagpur. It was assigned to learned 6th Additional Sessions Judge, who charged the respondent-accused of an offence punishable under Section 302 of the Penal Code. The accused pleaded not guilty and hence, was put on trial. The prosecution examined in all nine witnesses in its endeavour to bring home the guilt of the accused. Upon considering of the prosecution evidence, in light of defence of denial raised, the learned Trial Judge proceeded to acquit the respondent-accused. Aggrieved thereby the State has preferred this appeal.

4. We have heard Adv. Sonak, learned Additional Public Prosecutor for the State. He submitted that the learned Trial Judge should not have brushed aside the evidence of P.W. 8 Smt. Shakuntala Bopulkar, Special Executive Magistrate, who recorded Dying Declaration and P.W. 9 AS1 Trivedi who registered the offence on the basis of this Dying Declaration. He submitted that the recitals in the dying declaration received affirmative corroboration from the evidence of P.W. 4 Dr. Nagdevate who had examined the accused and found that at the relevant time the accused was under the influence of liquor. Therefore, according to the learned Additional Public Prosecutor, notwithstanding the hostility of the victim's sons Mangesh and Rajesh, examined as P.W. Nos. 1 and 2, there was enough material for the learned Trial Judge to record conviction.

5. His learned adversary contended first, that the dying declaration was not reliable because it was apparently recorded by ASI Trivedi and not by the Special Executive Magistrate. Secondly, respondent's having consumed liquor at the relevant time does not necessarily lend corroboration to the circumstances leading to cause of death stated by victim's wife Pushpabai, in the dying declaration at Exh. 32. The learned Counsel further submitted that the evidence of victim's sons cannot be brushed aside because they were not declared hostile and the defence was, therefore, entitled to rely on the same.

6. We have examined the entire evidence on record in the light of the contentions of both the learned Counsel. There can be no doubt that the victim died on account of 54% burn injuries as observed in the notes of post-mortem examination at Exh. 14. The prosecution had come up with the case that these burns are homicidal in nature having been inflicted by the respondent accused. Therefore, it has to be found out whether the evidence tendered warrants such a conclusion.

7. Victim's sons Mangesh and Rajesh, who may be about 15 and 14 years old at the relevant time, were examined as P.W. Nos. l and 2. They have categorically ruled out the presence of their father when the incident occurred. They have also ruled out victim's having made any statement that their father was the author of the burn injuries sustained by their mother. Mangesh and Rajesh were not too young at the relevant time to understand what was happening. Surely they must have been influenced by the fact that the accused was their father, but then the victim was their own mother, and therefore, when they chose to state that their father was not the author of injuries if would be difficult to brush aside this evidence.

8. The learned Counsel for the respondent submitted that Mangesh and Rajesh were not declared hostile by the prosecution though they did not support the prosecution case and resiled from their earlier statements under Section 161 of the Cr. P.C. He submitted that since the prosecution did not declare them hostile, the defence was entitled to rely on their evidence. To support the contention that, the defence would be entitled to rely the evidence of prosecution witnesses who had not been declared hostile, the learned Counsel drew our attention to two judgments of the Hon'ble Supreme Court. In Mukhtiar Ahmed Ansari v. State , the Apex Court was considering the utility of evidence of one Vedprakash Goyal, examined as a prosecution witness, not supporting the prosecution and yet not declared hostile. The Court held that the accused could rely on the evidence of Vedprakash Goyal.

9. Similar is the observation in Raja Ram v. State of Rajasthan reported in VII (2000) SLT 308 : IV (2000) CCR 111 (SC) : (2005) 5 SCC 272, where the testimony of one Sukhdev Singh, who has been examined as P.W. 8 at the trial. The witness Sukhdev Singh had not supported the prosecution but was not declared hostile. The Supreme Court observed that the evidence of the witness would be binding on the prosecution. In view of this, the evidence of P.W 1 Mangesh and P. W. 2 Rajesh, in the instant case, would have to be duly considered while weighing probabilities in the case.

10. P.W. 6 neighbour Madhukar had not supported the prosecution and was declared hostile. P.W. 3 Tukaram and P.W. 5 Wasudeo are Panchas on inquest and seizure Panchnamas respectively. P.W. 7 P.I. Sidam had merely sent property to the Forensic Science Laboratory and received report from the Laboratory at Exh. 16 which shows detection of kerosene residues on the articles sent. The evidence of these witnesses thus, does not materially contribute in connecting the respondent to the crime.

11. P.W. 9 ASI Trivedi stated that he had registered an offence on the basis of dying declaration of the victim and conducted investigation. The evidence tendered by him at the trial began with his statement that he has registered the offence on the basis of the dying declaration, without stating as to how the dying declaration of the victim came to be recorded. It can be gathered from the cross-examination of the witness that in fact, he had gone to the spot, picked up the victim, and admitted her to the hospital. He sent requisition to the Special Executive Magistrate and then after receiving dying declaration registered the offence.

12. P.W. 8 Special Executive Magistrate Smt. Bopulkar stated that she had received a requisition vide Exh. 30, gave a requisition to the Medical Officer about the condition of the patient vide Exh. 31, and after the Medical Officer certified the patient to be fit for making a statement, she recorded statement of the victim, which is at Exh. 32. Time of recording statement was neither stated by the witness before the Court nor is it mentioned on the dying declaration at Exh. 32. Though she claimed that she had given requisition to the Medical Officer to inquire about the fitness of the victim to make a statement, the requisition at Exh. 31 appears to have been given by ASI Trivedi P.W. 9. Dying Declaration Exh. 32 itself shows an endorsement of the ASI that it was recorded before him, with Smt. Bopulkar, Special Executive Magistrate also having attested it. Possibility of the statement having been recorded by ASI Trivedi and then being merely endorsed by P.W. 8 Special Executive Magistrate Smt. Bopulkar, therefore, cannot be ruled out.

13. The object of having a statement recorded by a Magistrate is to ensure an uninfluenced recording of the declaration as to the cause of injuries sustained by a victim. When a Police Officer takes an active part in recording of the statement, possibility of pushing up his own theories about the incident would remain open. Therefore, the dying declaration, which seems to have been recorded by ASI Trivedi himself and merely endorsed by Smt. Bopulkar cannot be enough to conclude that the respondent was the author of injuries which led to his wife's death. In any case, this dying declaration, recorded in the circumstances enumerated above, does not outweigh the effect of the evidence of victim's sons Mangesh and Rajesh.

14. In this view of the matter, we find that the view taken by the learned Additional Sessions Judge is plausible and proper. Consequently the appeal fails and dismissed. Bail bonds, if any, furnished by the respondent, shall stand cancelled.