The State Of Maharashtra vs Soma Laxman Nikam
2014 Latest Caselaw 181 Bom

                                                      368.1995 Cri.Appeal.odt
                                     1




                                                                       
                                            
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD




                                               
               CRIMINAL APPEAL NO. 368 OF 1995




                                              
     The State of Maharashtra                         .. APPELLANT

            VERSUS




                             
     Soma Laxman Nikam,
     Age 49 Years,
               
     Occupation: Service,
     Resident of Fekari Taluka
     Bhusawal, District Jalgaon                        .. RESPONDENT
                                                          [Orig. Accused]
              
                                    ...

     Mr. S.D.Kaldate, APP for Petitioner - State
     Mr. A.R.Syed, Adv. h/f. Mr. S.P.Brahme, Advocate for
     Respondent.
      


                                     ...
                              CORAM : S.S. SHINDE &
   



                                      N.W.SAMBRE, JJ.

RESERVED ON : 15.12.2014 PRONOUNCED ON: 24.12.2014

JUDGMENT [PER S.S.SHINDE, J.]:-

1] This Appeal is filed by the State, challenging

the Judgment and Order of acquittal dated 25.09.1995

passed by the 4th Additional Sessions Judge, Jalgaon in

Sessions Case No. 124 of 1992, thereby acquitting the

accused for the offence punishable under Section 302 of

the Indian Penal Code.

368.1995 Cri.Appeal.odt

2] The case of the prosecution, in brief, is as

under:

The case of the prosecution is that the

deceased [a deserted married woman] was residing with

her parents at Fekari. The parents of deceased agreed to

purchase a house and earnest amount Rs.2,000/- was paid.

But sale deed was not executed. Accused are related to

both purchaser and seller. A serious dispute arose in

between deceased and her family members and accused.

Due to this, accused on 14.08.1991 around 2.30 set the

deceased on fire resulting in her death. She was taken to

Hospital by her grandmother and other relatives. She died

on 15.08.1991. Two dying declarations were recorded; one

by Police Head Constable and other by Executive

Magistrate. The Sessions Judge by Judgment dated

25.09.1995 acquitted the accused of charges. The same is

subject matter of challenge in this Appeal.

3] The prosecution examined 12 witnesses. The

dying declarations are at Exhibit-28 and Exhibit-35.

Exhibit-28 is recorded by PW-9, Police Head Constable.

368.1995 Cri.Appeal.odt

Exhibit-35 is recorded by the Executive Magistrate,

Bhusawal.

4] The learned Additional Public Prosecutor

appearing for the State submits that, both dying

declarations given by the deceased are reliable. The dying

declarations are proved through Executive Magistrate and

the Medical Officer. There are attending circumstances

which would unequivocally indicate that, the respondent

was responsible for the death of the deceased, and

therefore, this Appeal deserves to be allowed.

5] The learned counsel appearing for the

respondent submits that, the witnesses did not support

prosecution case. PW-1 to PW-7 are declared / turned

hostile. They are parents and grand mother of deceased

and panch witnesses. There is no corroboration by

independent evidence. It is further submitted that, there is

no corroboration to the dying declarations. The medical

evidence does not support the prosecution case. There are

material discrepancies in dying declarations, which are as

follow:

368.1995 Cri.Appeal.odt

(i) Dying declaration at Exh.35 has no endorsement of read over and explained. It is

not admissible in evidence.

(ii) Dying declaration at Exh.28 - PW-9 completed

the recording of statement within 10 minutes and return of Police Station @ 3.45 p.m. Whereas remark of fitness by PW-8 is @ 4.10

p.m. Therefore, it is also not reliable.

(iii)

Exhibit-28 does not inspire confidence. The

PW-8 did not physically examine the deceased. Only few questions were put to her. It is not sufficient.

(iv) PW-8 Doctor did not examine deceased before

recording dying declaration at Exh.28.

(v) It's a case of 100% burn injuries. She was not mentally fit to depose anything. Both the lungs were congested. Laryanx, Trachen and Bronchi were congested. Respiratory system was

totally affected. Hence, the certification about the condition of deceased at said point of time by Doctor was minimum required.

(vi) The thumb impression was obtained on Exh.28.

              100%     burns    -     thumb       impression          not
              acceptable.





                                                     368.1995 Cri.Appeal.odt





                                                                     
     6]             It is further submitted that, the physical




                                             

condition of deceased can be observed from following:

i] Inquest panchanama - 100% burn injuries.

ii] P.M. report Exh.24 - 100% burns, all body parts congested.

iii] Column No.20 of P.M.report both lungs

congested, Laryanx, Tranchen and Bronchi

were congested. The statement was not believable.

                                                    recording         of    any
                 
     7]             It is further submitted that, the medical history

is not reliable, it states that, her grandmother brought her

to Hospital. Whereas PW-8 states that, Govind Tayade's

name as close relative is noted in medical history and he

brought her. Govind Tayade is not relative of deceased. It

is further submitted that, the brother in law of accused was

not examined. The wife of accused is also not examined by

the prosecution.

8] It is further submitted that, the real maternal

uncle because of some civil transaction with the parents of

deceased killed his niece, cannot be accepted. There is no

evidence brought to prove the motive. It is further

368.1995 Cri.Appeal.odt

submitted that, the following circumstances are against the

prosecution:

i] The deceased was married and deserted

woman.

ii] Clothes were not seized.

iii] Ramnath Pradhan brother in law of accused and

wife Sonabai were not examined.

9] It is further submitted that, there is no

corroboration to the Exh.28 and Exh.35. The surrounding

circumstances of Exh.28 and Exh.35 are suspicious.

Therefore, Exh.28 and Exh.35 cannot be relied upon. It is

further submitted that, the Sessions Judge after considering

the evidence on record gave detailed findings from

paragraph Nos.119 to 124 and has taken a probable and

possible view, therefore, it is prayed that the same may

kindly be maintained.

10] We have heard the learned Additional Public

Prosecutor for the Appellant - State and the learned

counsel appearing for the respondent, perused the original

record so as to find out correctness of the findings recorded

368.1995 Cri.Appeal.odt

by the trial Court and the Judgments cited by the counsel

appearing for the parties across the bar. The prosecution

examined 12 witnesses. However, PW-1 to PW-7 turned

hostile. Unfortunately, father, mother and grandmother of

the deceased Sunanda also turned hostile. The prosecution

case rests upon two dying declarations at Exhibit-28 and

Exhibit-35. Upon careful perusal of the dying declaration at

Exhibit-35, same is in question-answer form and same is

recorded by the Executive Magistrate, Bhusawal. Upon

perusal of the said dying declaration, there is endorsement

of the Medical Officer to the effect that, patient is fit for

statement. Said endorsement is given at 5.20 p.m. on 14th

August, 1991. However, there is no endorsement to the

effect that, the patient is conscious, oriented and able to

give statement. After recording dying declarations, another

endorsement by the Doctor is that, statement recorded

before her, however, there is no endorsement to the effect

that, throughout at the time of recording the dying

declaration the Medical Officer was present, and patient

was conscious, oriented and was in a fit condition to give

dying declaration. In the facts of the present case, when

there was 100% burns, it was necessary for the Medical

Officer to give such endorsement. It further appears that,

368.1995 Cri.Appeal.odt

the contents of the dying declaration were not read over to

the Sunanda, and she has not stated that, those are correct

as per her narration. Therefore, in view of the Judgment of

the Hon'ble Supreme Court in the case of Shaikh Baksh

Vs. State of Maharashtra1, no reliance can be placed on

the said dying declaration.

                                 
     11]
                  
                    There    is   another   dying       declaration          at

Exhibit-28, which is recorded by the Police Head Constable.

Upon careful perusal of the said dying declaration, the

Medical Officer has given endorsement that, patient is fit

for statement. Such endorsement is given at 4.10 p.m. on

14th August, 1991. There is another endorsement by the

Doctor that, statement of the deceased was recorded

before her. Except these two endorsements, there is no

endorsement by the Doctor that, the patient was conscious,

oriented and in a fit mental condition to give dying

declaration. There is also no endorsement after recording

of dying declaration that, patient was conscious, oriented

and in a fit mental condition to give statement during

recording of dying declaration. In the present case, as

already observed, Sunanda was 100% burnt. Probable

1. 2007 (11) SCC 269

368.1995 Cri.Appeal.odt

death of Sunanda was shock due to extensive burns.

Waman Narayan Patil was working as Head Constable at

Shani Peth Police Station, Jalgaon, who recorded dying

declaration at Exhibit 28. Waman Naryan Patil was

examined as PW-9. He stated in his deposition that, at the

relevant time, he was working as Head Constable in Police

Station Bhusawal. On 14.08.1991, he was on duty at Police

hours

Station from 14.00 to 20.00 hours. On that day, at 15.30

memo was received from Municipal Hospital,

Bhusawal that, one patient Sunanda d/o. Pandharinath is

admitted in Hospital, who has sustained 100% burn

injuries, and she was under treatment. He then visited

Municipal Hospital. He met Medical Officer, Dr.Kavita

Sontakke. He requested Dr. Sontakke whether the patient

was in a position to give her statement. On that, Doctor

and PW-9 went to the room where patient was admitted.

Then Doctor inquired from patient about her name and

other questions were put to the patient. After Doctor

satisfied herself, certified that, patient was fit to make

statement and then he started recording statement of the

patient. He further deposed that, he asked Sunanda her

name and address and then statement was recorded, and

same was read over to the patient. He obtained thumb

368.1995 Cri.Appeal.odt

mark of the patient on the statement. He further stated

that, said dying declaration bears his signature and the

endorsement by Doctor about fitness of patient to give

statement. The statement bears thumb mark of patient

Sunanda. After returning to the Police Station, he

registered Crime No.62/1991 and then recorded the

statement of other witnesses.

12] During cross examination of this witness, he

stated that, when statement of Sunanda was recorded, her

relatives were sitting in varandah. He further deposed that,

to ascertain fitness of Sunanda for giving statement, Doctor

only asked her name and other questions but no other

examination was carried by Doctor. He further deposed

that, then he asked Sunanda how incident took place. He

further deposed that, while Sunanda was giving statement,

he did not find that, she had pains from her talk. While

narrating incident, Sunanda was taking pause. He further

stated that, he cannot say definitely whether Sunanda was

taking pause for remembering about incident or it was

because of pains. Upon careful perusal of the cross

examination of PW-9, it is abundantly clear that, Medical

368.1995 Cri.Appeal.odt

Officer except asking name and other questions to the

patient, no physical examination was conducted. It means

endorsement given by the Medical Officer that, patient is fit

is without actually examining the patient, and only on the

basis of satisfying by asking her name and other questions.

13] Dr.Kavita Satish Sontakke, Medical Officer, Civil

Hospital, Jalgaon is examined as PW-8, her evidence is at

Exhibit-18. In her evidence, she stated that, she was

working as Medical Officer in Municipal Hospital since 1986

to 1993. On 14.08.1991, she was on day duty. On that

day, Sunanda d/o. Pandharinath Zalte was admitted in

Hospital of burn injuries. At the time of her admission, she

had inquired about history of the patient. The patient

Sunanda disclosed that, her maternal uncle set her on fire

pouring rokel at 2.30 p.m. on 14.08.1991 out of property

dispute. She further stated that, history of the patient

disclosed at the time of admission, was reduced by her in

writing. She further stated that, the intimation was sent to

the Police and after Police came to the Hospital for

recording statement of Sunanda, to ascertain whether

Sunanda was able to speak or not, she did ask name of the

368.1995 Cri.Appeal.odt

patient. She further stated that, other questions were also

asked so as to find out whether the patient is oriented to

time and place. Then, she found that, patient was fit to

give her statement, and accordingly, she certified the dying

declaration. She further stated that, throughout recording

of the dying declaration, she was present. After recording

dying declaration, thumb impression was taken and PW-8

endorsed same. Statement of Sunanda is recorded in her

presence. After death of Sunanda, she conducted autopsy

on the dead body. There were 100% burns. Hair of scalp

were burnt and hair of eye brows were burnt partly. All

organs were congested. She further stated that, cause of

death was shock due to extensive burns. Upon careful

perusal of the examination in chief of this witness, nowhere

she has stated that, she physically examined patient so as

to ascertain her fitness to give dying declaration. It

appears that, by only asking the oral questions,

endorsement is given that, patient is fit. Upon careful

perusal of the dying declaration at Exh.28, there is no

endorsement that, patient is conscious, oriented and in

a fit mental condition to give dying declaration. Even on

completion of the dying declaration, there is no

endorsement that, during recording of dying declaration,

368.1995 Cri.Appeal.odt

the patient was conscious, well oriented and was mentally

fit to give dying declaration. Without physically examining

the patient, it appears from the evidence of PW-9 that,

PW-8 did not examine the patient physically. Even from

reading of evidence of PW-8, it is noticed that, she has not

specifically stated that, patient was examined by her so as

to ascertain whether patient is conscious, well oriented and

in a fit mental condition to give dying declaration.

witness has also stated that, all organs were congested and This

there were 100% burns on the dead body.

14] In her cross examination, she stated that, on

14.08.1991, she was on duty attending casualty as well as

indoor patient. She was looking after both OPD and indoor

work on that day. Patient was brought by her grandmother

and other relatives. Therefore, it appears that, medical

history was recorded as narrated by the close relatives of

the patient. She further stated that, she cannot say

whether clothes of the patient were wet at the time of her

admission and clothes of patient were changed to hand

over the same to the Police. She further admits that, in

similar burn cases clothes of the patient are to be changed

368.1995 Cri.Appeal.odt

and to be handed over to Police with her observation. It is

the part of her duty, as a Medical Officer. The case papers

do not find reference that, clothes of patient Sunanda were

handed over to Police. Before arrival of police sedative was

applied to patient. The ointment was applied as soothing

agent. In fact, no sedative was used. She further deposed

that, she cannot say which part of the patient had burn

injuries of 1st degree and which part had 4th degree. She

has given details about other conditions of the patient. She

admitted that, she had not recorded diasolic B.P. of

Sunanda considering her systolic was 90.

15] Upon careful perusal of the dying declaration at

Exhibit-28 and evidence of PW-8 and PW-9, it appears that,

Medical Officer did not examine Sunanda physically so as to

ascertain from her physical condition whether she is

conscious, well oriented and in a fit mental condition to

give dying declaration. The evidence of PW-9 unequivocally

indicates that, there was no such examination by PW-8.

Therefore, it appears that, PW-8 except ascertaining name

and address of Sunanda, no other examination was

undertaken, and therefore, dying declaration at Exhibit-28

368.1995 Cri.Appeal.odt

cannot be safely relied upon.

16] Upon careful perusal of the medical report and

evidence of PW-8, she stated in her evidence that, there

were 100% burns and all organs were congested. The

thumb mark which is appeared on the dying declaration is

also not clear, and therefore, the trial Court gave benefit of

doubt to the respondent - accused.

17] The Supreme Court in the case of Surinder

Kumar Vs. State of Haryana2, held that, if there is 100%

burns, the thumb impression given by the deceased is not

acceptable. In the present case also, Medical Officer has

stated that, all organs of the deceased Sunanda were

congested. The Sunanda was 100% burnt.

18] Therefore, upon re-appreciating the entire

evidence on record, we are of the view that, the findings

recorded by the trial Court are in consonance with the

evidence brought on record. The view taken by the trial

Court is possible view, and therefore, the acquittal order

2. 2012 All MR [Cri.] 696

368.1995 Cri.Appeal.odt

deserves no interference. Even if other view is possible, is

no ground to interfere in the acquittal order if the possible

view is taken by the trial Court.

19] The Supreme Court in the case of Nepal Singh

V/s State of Haryana in Criminal Appeal No. 383 of 2002

decided on 24.04.2009, held that, in case of acquittal, there

is a double presumption in favour of the accused- firstly,

the presumption of innocence is available to him-secondly,

the accused having secured an acquittal, the presumption

of his innocence is certainly not weakened but reinforced,

reaffirmed and strengthened by the trial court.

Yet in another judgment in the case of State of

A.P. V/s M. Madhusudhan Rao3 the Supreme Court in

para 13 held thus :-

"13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the

3. 2009 All MR(Cri) 547 (S.C.)

368.1995 Cri.Appeal.odt

fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent

unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are

possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower

court in considering the evidence in the case is vitiated ig by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by

any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse, then, to prevent miscarriage of justice, the

appellate court is obliged to interfere."

20] In the light of the discussion in the foregoing

paragraphs, appeal sans merit, hence dismissed.

               Sd/-                                        Sd/-





           [N.W.SAMBRE, J.]                         [S.S. SHINDE, J.]

     ,,,
     DDC