Bombay High Court
Pravin vs The State Of Maharashtra on 20 October, 2012
Bench: P.V. Hardas, A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.122 OF 2012
1. Pravin s/o. Manohar Dhabekar,
Aged about 30 yrs.,
2. Sachin @ Balya Manohar Raut,
Aged about 27 yrs.,
3. Manohar @ Manya Mahadeo Raut,
Aged about 50 yrs.,
4. Smt. Savitribai w/o. Manohar Raut,
Aged about 40 yrs.,
5. Smt. Vatsalabai Manohar Dhabekar,
Aged about 60 yrs.,
All accused are r/o. Jambudipnagar,
Nagpur (All accused in jail) ........ APPELLANTS
// VERSUS //
The State of Maharashtra,
through Police Station Officer,
Police Station, Hudkeshwar, Nagpur ........ RESPONDENT
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Mr.R.H.Rawlani, Adv. with Mr.R.M.Daga, Adv.
for the Appellants.
Mr.M.K.Pathan, A.P.P. for Respondent/State.
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Coram: P.V.HARDAS &
A.P.BHANGALE, JJ.
Date : 20.10.2012.
ORAL JUDGMENT (Per A.P.Bhangale, J) :
1. This appeal is directed against the Judgment and Order
dt.19.3.2012 passed in Sessions Trial No.170 of 2011 by the learned
Additional Sessions Judge-5, Nagpur whereby the appellants were
convicted of the offences punishable under Section 302 r/w. Section
149 of the Indian Penal Code and were sentenced to suffer rigorous
imprisonment for life and to pay a fine in the sum of Rs.200/- each,
in default to further suffer rigorous imprisonment for 15 days. They
were also convicted for the offence punishable under Section 143 of
the Indian Penal Code and were sentenced to suffer rigorous
imprisonment for three months and to pay a fine in the sum of
Rs.100/- each, in default to suffer further rigorous imprisonment for
15 days. They were further convicted for the offence punishable
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under Section 147 of the Indian Penal Code and were sentenced to
suffer rigorous imprisonment for one year and to pay a fine of
Rs.100/- each, in default to further suffer rigorous imprisonment for
15 days.
2. The facts, briefly stated, are as under :
On or about 2nd December, 2010, at about 5.00 a.m., it is
alleged that Nandkishor @ Nandu Chandrakant Dahare received burn
injuries as a result of pouring of kerosene on his body. It is the case
of the prosecution that there was a quarrel between the deceased and
the appellants/accused and the appellants caused burn injuries to the
deceased by pouring kerosene on his body and lighting a match stick.
The offence was reported at Police Station, Hudkeshwar, under
Section 307 r/w. Sections 143, 147, 148 and 149 of the Indian Penal
Code vide Exh.47, on the basis of which the investigation started. It
is the case of prosecution that the Investigating Officer recorded the
statement of the deceased as to the cause of death through Executive
Magistrate and on the basis of that, upon completion of investigation,
the appellants were charge sheeted before the Judicial Magistrate,
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First Class (Corporation Court No.1), Nagpur and the case was
committed for trial before the Court of Sessions at Nagpur. The
charge was framed as per Exh.10, to which the appellants/accused
pleaded not guilty and claimed trial. Prosecution has examined ten
witnesses in support of the prosecution case. The accused denied
their penal liability and alleged that they were falsely implicated and
in fact, the deceased had committed suicide. One defence witness
Shakuntala Chandrakant Dahare (mother of the deceased) was
examined in support of the defence.
3. We have heard the submissions at the bar and also perused
the evidence on record and the judicial precedents pointed out to us
during the course of submissions.
4. The first question which we are required to answer is
whether deceased Nandkishor met with homicidal death.
Prosecution has examined Dr.Ashutosh Yashwantrao Deshmukh (PW-
6) who performed post mortem examination on the dead body of
deceased Nandu @ Nandkishor on 6.1.2011 between 5.00 p.m. to
6.05 p.m.. According to him, total burns were 40 % and the cause of
death was mentioned as septicemia due to burn injuries. Dr. Ashutosh
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admitted that the burns if are more than 50 % are generally fatal and
in the present case, prompt and aggressive treatment was required.
He also found that the dead body was having bed soars on its back
aged about 8 to 10 days and he explained meaning of word the
Septicemia as 'an infection in blood due to bacteria'. According to the
evidence of Dr.Ashutosh, the deceased was receiving medical
treatment in Government Medical College, Nagpur from 2.12.2010;
but, 10 to 15 days prior to his death, he had left hospital without
intimation. Police were asked to produce the treatment papers, but
they did not do so. According to Dr.Ashutosh, in case the patient does
not take medical treatment for burn injuries for 10 to 15 days, it
would be fatal. Evidence of Dr.Ashutosh indicating that deceased
Nandu died as a result of Septicemia due to burn injuries and his
admission in the cross-examination also indicating that the deceased
had left the hospital 10 to 15 days prior to his death without
intimation would show that the deceased had neglected to take
medical treatment for his burn injuries. Bearing in mind this medical
evidence, we also find that it is a case of multiple dying declarations
which are at variance with each other as to their contents.
5. Punjaji Pandurang Nemade (PW-3), P.S.I., Police Station,
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Hudkeshwar, Nagpur had requisitioned the services of Executive
Magistrate, Nagpur City for recording the statement of injured Nandu.
Evidence of Punjaji reveals that he had sent a letter as per Exh.39 to
the Executive Magistrate, Nagpur City which mentions that, on 2nd
December, 2010, at about 5.00 a.m., Nandu @ Nandkishor, aged
about 35 years, r/o. Jambudeep Nagar hutments has got burnt and is
admitted in the Medical College, Ward no.7 and therefore, his dying
declaration be recorded. Initial information from PSI Punjaji Nemade
(Exh.37) indicates that the C.M.O., Medical College, Nagpur City was
informed that Nandu @ Nandkishor Chandrakant Dahare has
committed suicide and was admitted in the Medical College for
medical treatment while taking medical opinion as to his fitness to
give statement. While Vasant Rathod (PW-4), ASI from Police
Station, Hudkeshwar claimed that he had obtained endorsement from
Medical Officer and noted report of the injured, in which the injured
claimed that, while he was standing near compound of his house, at
that time, Manohar Raut, his wife, his son Balya, his brother-in-law
and his mother poured kerosene on his person from a Can and set
him ablaze by lighting match stick and the neighbours took him for
medical treatment (Exh.47).
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6. During the course of cross-examination, Vasant Rathod
admitted that initial opinion given to the police was pertaining to self-
ablazing of Nandu Dahare. It is also admitted that various types of
crimes were registered against the deceased in Police Station,
Sakkardara and Hudkeshwar such as robbery, assault and burning,
although Vasant (PW-4) denied the suggestion that Nandu set himself
ablaze by pouring kerosene on his person from the stove of his house
and then ran away out of house and came on the road. The suspicion
regarding cause of his death is already on record. It is pertinent to
note that, in the report (Exh.47), Nandu claimed that, on 2nd
December, 2010, at about 5 a.m., he was standing near compound of
his house and, at that time, Praveen Dhabekar came to him and
uttered words 'tu bahut badmashi karato', and then poured kerosene
on his head and lighted match stick and at that time, the persons
around him extinguished him. Report (Exh.47) also alleges that, at
the relevant time, Sachin Raut, Manohar Raut and wife of Manohar
Raut namely Savitribai as also mother-in-law of Manohar Raut were
present.
7. Prosecution has examined Dattatraya Ganpatrao Pohnekar
(PW-8), who was Naib-Tahsildar of Nagpur City at the relevant time
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and who recorded dying declaration as per Ex.62. Exh.62 named
Savitribai Raut, Pravin Dhabekar, Manohar Raut, Sachin Raut and
Smt. Dhabekar, mother of Savitribai as the persons who poured
kerosene on the person of Nandu @ Nandkishor Dahare and set him
on fire by lighting the match stick citing prior enmity with Savitribai
as the reason. Thus, we have conflicting evidence on record which is
suspicious in nature regarding exact cause of death of Nandu @
Nandkishor Dahare. On the basis of such inconsistent evidence in the
dying declarations recorded read with the medical evidence and the
initial investigation, we cannot reach to the safe conclusion to the
effect that the deceased met with homicidal death. It is because,
according to the medical evidence, the deceased died due to
Septicemia resulted from the burn injuries. The doctor also indicated
that the deceased had left the hospital without intimation prior to 10
to 15 days of his death, which indicated that the deceased was
negligent and unwilling to receive proper medical treatment and such
conduct was likely to cause his death. While, in front of the
Investigating Officer, the deceased imputed criminal liability to Pravin
Dhabekar. He chose to impute criminal liability to multiple number of
accused when the Naib-Tahsildar came and recorded his dying
declaration. On the basis of such unreliable and inconsistent,
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conflicting evidence, we have to record a finding that the prosecution
has miserably failed to establish beyond reasonable doubt that
deceased Nandu @ Nandkishor Dahare met with homicidal death.
Regarding criminal liability imputed to the appellants before us, we
have evidence of dying declarations which are at variance with each
other spelling out different versions in respect of alleged incident of
murder caused by the appellants.
8.
Mother of the deceased was examined in support of
defence that the accused were falsely implicated. According to
Shakuntala Dahare (DW-1), deceased Nandu had come from outside
on 2nd December, 2010 and he had called her to awaken her and
took stove from her room. She felt that he must be carrying away the
stove to prepare tea. After short time, she heard shouts "melo re
bappa" ("O Father, I am dying"). She saw that he was lying in the
Courtyard with burn injuries. According to Shakuntala, one
Dharamtok, a neighbour, had come, who had put out the burns by
picking up quilt from her bed and covering the person of Nandu.
Shakuntala also deposed that, at the time of incident, Nandu had
consumed liquor and he himself had poured kerosene on his person
from the stove and set himself on fire. This evidence of Shakuntala
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cannot be brushed aside as false and improbable. Shakuntala is not a
stranger, but mother of the deceased and she would never spare any
real culprit, if at all her son was murdered according to the
prosecution. Wife of deceased Nandu namely Kunda was also
examined as PW-1. According to her, her husband wanted to take tea
and went to the room of her mother-in-law. After sometime, she
heard shouts and screaming of her husband and saw that he was
burnt. Thereafter, his friend came and extinguished the fire and took
her husband to the hospital. This evidence appears consistent with
defence version of the incident. It is also pertinent to note that, while
receiving medical treatment in the hospital for about 15 days, her
husband/deceased had taken discharge and returned home. Kunda
(PW-1) was disowned by the prosecution and was cross-examined.
But, she denied the suggestions from the prosecution. Her evidence
also indicated that her husband was in the habit of consuming liquor
and he had consumed liquor on the date of the incident. The evidence
of Punjaji Nemade (PW-3) shows that he gave requisition (Exh.37) to
C.M.O. of Medical College, Nagpur City for recording statement of
deceased Nandu @ Nandkishor Dahare, who was burnt and
therefore, brought to Medical College for medical treatment. In our
opinion, this earliest version of the incident ought to have alerted the
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learned trial Judge to exercise abundant caution while appreciating
evidence in the present case. Criminal Court cannot deprive life long
liberty of an accused on the basis of bald and shaky version of the
prosecution. While, in front of Vasant (PW-4), deceased Nandu had
claimed that, Manohar Raut, his wife, his son Balya, his brother-in-
law and his mother poured kerosene on his person and set him ablaze
by lighting match stick. This statement before police is totally
inconsistent with the earlier version of evidence as per Exh.37 and the
requisition letter given to the Medical Officer (Exh.46). In the report
(Exh.47), medical liability was only attributed to Pravin Dhabekar,
while it was stated that other accused named Sachin Raut, Manohar
and Savitribai and Dhabekar (mother of Savitribai) were only present
at the time of incident when the Executive Magistrate (Naib-
Tahsildar) recorded dying declaration as per Exh.62. Deceased Nandu
chose to attribute overt acts to all the appellants namely Savitribai,
Pravin, Manohar Raut, Sachin Raut and Smt. Dhabekar. This version
imparting penal liability to all the appellants is absolutely unreliable
because had the appellants intended to commit murder of Nandkishor
by pouring kerosene over his body and setting him on fire, the result
would not have been only 40 % burn injuries when multiple numbers
of alleged offenders acted in concert furtherance of their common
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intention. It is also pertinent to note that while Nandkishor had
received burn injuries on 2.12.2010, he, in fact, died on 6.1.2011.
Evidence of his wife as also Dr. Ashutosh that Nandkishor had sought
discharge from hospital and returned home neglecting medical
treatment for the burn injuries received by him would indicate that
that negligence in receiving medical treatment may also have
contributed death of Nandkishor.
9.
The learned Advocate for the appellants submitted that
when dying declarations are at variance with each other and are
suspicious and when the evidence also indicates the possibility that
the deceased might have committed suicide by burning himself
coupled with the fact that he neglected his own medical treatment in
the hospital, the said aspect ought to have been considered by the
learned trial Judge so as to give benefit of doubt in favour of the
appellants. The learned Advocate for the appellants invited our
attention to the ruling in State of Punjab .vs. Parveen Kumar
reported in 2004 AIR SCW 6897. The Hon'ble Supreme Court in para
10 of this ruling observed thus :
" While appreciating the credibility of the evidence
13 apeal122.12.odt
produced before the Court, the Court must view
evidence as a whole and come to a conclusion as to its
genuineness and truthfulness. The mere fact that two
different versions are given but one name is common
in both of them cannot be a ground for convicting the
named person. The court must be satisfied that the
dying declaration is truthful. If there are two dying
declarations giving two different versions, a serious
doubt is created about the truthfulness of the dying
declaration. It may be that if there was any other
reliable evidence on record, this Court could have
considered such corroborative evidence to test the
truthfulness of the dying declarations. The two dying
declarations, however, in the instant case stand by
themselves and there is no other reliable evidence on
record by reference to which their truthfulness can be
tested. It is well settled that one piece of unreliable
evidence cannot be used to corroborate another piece
of unreliable evidence. The High Court while
considering the evidence on record has rightly applied
the principles laid down by this Court in Thurukanni
Pompiah and another vs. State of Mysore, AIR 1965
SC 939 and Khusal Rao vs. State of Bombay, 1958 SCR
552. "
10. Our attention is then invited to the ruling in State of A.P.
vs. P. Khaja Hussain, reported in I (2009) DMC 775 (SC). The
Hon'ble Supreme Court considered variance between two dying
declarations, in which the scenario was described in substantially
different manner and concluded that, in such a case conviction, is not
sustainable. Our attention is then invited to the ruling in Gulab
Somaji Neware and Ors. vs. State of Maharashtra, Criminal Appeal
14 apeal122.12.odt
220 of 2006 decided by this Court on 24.1.2012 (one of us was a
party to that judgment). In the said case, this Court has made a
reference to the ruling in Parveen Kumar's case (supra) and noted the
legal position regarding variance between the multiple dying
declarations and has set aside the conviction and sentence so as to
acquit the appellants in that case.
11. The legal position regarding acceptability of evidence in
the nature of dying declaration is well settled. As such, there is no
bar to base conviction solely on the basis of dying declaration
provided that it is voluntary, true and wholly reliable. Suspicion
arising from different versions in the dying declaration can lead to
benefit of doubt in favour of the accused. In a case where plurality of
dying declarations is in evidence, prosecution is required to establish
voluntariness, reliability of all dying declarations recorded while
deponent is in fit mental condition to give statement. When we find
discrepancies in various dying declarations on record, it is unsafe to
convict the accused in such a case. The nature of inconsistencies in
such dying declarations at variance with each other is certainly a
material which cannot be ignored. In the present case, we find that
initial information to the police was regarding alleged suicide by
15 apeal122.12.odt
Nandu @ Nandkishor by burning himself. The facts also indicate long
gap between the date of incident and the date of death in the present
case. Mother as well as widow of the deceased attributed cause of
death virtually to the deceased that he had consumed liquor on the
day of incident and he had carried stove from the room of his mother.
Under these circumstances, the possibility that Nandkishor might have
set himself on fire and attempted suicide cannot be overruled. The
alleged dying declaration was in grave doubt. It is quite possible that
a person in drunken condition may put kerosene oil upon himself and
ignite a match stick and cause burn injuries to himself. The deceased,
thereafter, imputing overt act to one or more of the appellants in his
multiple dying declarations, which are inconsistent and at variance
with each other, cannot be accepted as reliable as may be
afterthought by a person having past criminal cases against him,.
Conviction, in our opinion, could not have been based upon such
evidence. The trial Court was in error to act upon such type of
multiple dying declarations which were at variance with each other as
also contrary to earliest version of the incident. There was no
corroboration on record to any of the dying declarations recorded in
this case. None of these dying declarations could have been accepted
as true and voluntary when they were suspicious in their nature. The
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conviction recorded, therefore, by the trial Court suffers from serious
infirmity and is unsustainable in the facts and circumstances of the
present case. We, therefore, conclude that the prosecution has failed
to prove its case beyond reasonable doubt. The appellants are entitled
for the order of acquittal and hence, we pass the following order.
The Criminal Appeal is allowed.
The conviction and sentence of the appellants is hereby
quashed and set aside. The appellants are acquitted of the offences
with which they were charged and convicted.
Fine, if paid by the appellants, be refunded to them.
Since the appellants are in jail, they be released forthwith,
if not required in any other case.
JUDGE JUDGE
jaiswal
