Bombay High Court
Smt. Nirmala W/O Vinayakrao ... vs The State Of Maharashtra, Through ... on 2 August, 2016
Bench: B.R. Gavai
apeal322.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.322 OF 2014.
APPELLANT: Smt.Nirmala w/o Vinayakrao Sonare,
aged about 63 years, r/o Simbhora, Tq.
Morshi, Distt.Amravati.
: VERSUS :
RESPONDENT: The State of Maharashtra,
through Police Station Officer,
Police Station Morshi, Tq.Morshi,
Distt.Amravati.
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Mr.Piyush Rajurkar, Advocate h/f Mr.M.Anil Kumar, Advocate for
the appellant.
Mr.V.A.Thakare, Additional Public Prosecutor for the respondent.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 2nd AUGUST, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. The present appeal is directed against the judgment and
order of conviction passed by learned Additional Sessions Judge-I,
Amravati in Sessions Trial No.22 of 2013, dated 15 th of April,
2014. By the impugned judgment, the appellant was convicted
for the offence punishable under Section 302 of the Indian Penal
Code and was directed to suffer rigorous imprisonment for life and
also to pay a fine of Rs.5000/- and in default of payment of fine
she was directed to suffer Simple Imprisonment for six months.
2.
Following is the prosecution case :-
(a) Jagdish Khanve (PW 5) was attached to Morshi
Police Station as a Head Constable. On 18 th of October, 2012, an
information was received from Morshi Sub-District Hospital in
respect of sustaining burn injuries of one Pranita Moreshwar
Sonare and that she was referred to Amravati Hospital. The said
information was reduced as Sana Entry No.37 of 2012.
(b) Vijay Patil (PW 10), Police Inspector of Morshi
Police Station directed Jagdish Khanve (PW 5) to prepare the spot
panchanama. Accordingly, Jagdish Khanve reached to the spot of
the incident i.e. the house of the appellant. One lady Police
Constable was also accompanying with him. After some time,
Police Inspector Shri Patil also came to the spot. Two panchas
were called on the spot. The spot panchanama (Exh.23) was
drawn as per the existing situation. He also carried seizure of the
articles lying on the spot of the incident under Seizure Memo
(Exh.24).
(c) Shri Vijay Patil (PW 10) also directed Shri
Sangale (PW 4), ASI, B.No.993 to go to the Irvin Hospital
Amravati to record the statement of the victim. Accordingly, Shri
Sangale (PW 4) reached to the Irvin Hospital at Amravati. The
victim was indoor patient in the Burn Ward No.4. Shri Sangale
thereafter gave a memo to the doctor on duty and requested him
to give his opinion as to whether the patient is in a condition to
give the statement or not. The requisition given by Shri Sangale
to doctor is at Exh.28. After obtaining the opinion of the doctor
on the same letter that patient is fit to give statement, her
statement was recorded, in which she stated that on 18 th of
October, 2012 at about 6 p.m. her mother-in-law (appellant),
blamed her of theft and the husband of the sister-in-law abused
her. Thereafter, the appellant poured kerosene on her and set her
ablaze. The statement so recorded by Shri Sangale, ASI, is at
Exh.29.
(d) Even prior to the recording of the statement by
ASI Shri Sangale, Shri Kishor Bagde, Naib Tahsildar, attended the
hospital at about 8.45 p.m. on the call from the Irvin Hospital
Amravati for recording the statement of patient. He went to the
Police Chowky inside the hospital. A Memo (Exh.25) was given
to him by the Police to record statement in respect of Pranita
Sonare. Thereafter, he sought opinion of the doctor on duty
about the fitness of the patient to give the statement. Doctor
examined the patient and gave his opinion. Thereafter, Naib
Tahsildar Shri Bagde also put some questions to the patient and
got himself satisfied that the patient is able to give statement and
thereafter he started recording of her statement. According to the
statement given to Shri Kishor Bagde, Pranita, the victim, stated
that on 18th of October, 2013 when she was at home, her mother-
in-law i.e. appellant blamed her of theft and also charged her
mother of doing some black-magic. That time, the husband of her
sister-in-law also abused and thereafter her mother-in-law
(appellant) poured kerosene on her person and set her ablaze.
The Dying Declaration recorded by Kishor Bagde (PW 3) is at
Exh.26-B.
(e) Shri Subhash Sangale (PW 4) reached to the
Police Station Morshi along with the statement recorded by him as
well the statement recorded by Shri Bagde. On the basis of the
dying declarations, the Crime was registered by Shri Patil, Police
Inspector. Subhash Sangale (PW 4) signed the printed FIR as a
complainant and it is at Exh.30. The Investigating Officer Shri
Patil took the investigative of Crime No.191 of 2012 for the
offence punishable under Sections 307, 504 read with Section 34
of the Indian Penal Code. During the treatment, victim Pranita
expired. After getting said information, the offence was converted
into an offence punishable under Section 302 of the Indian Penal
Code. Both the appellants were arrested by the Investigating
Officer. The Investigating Officer after completing the
investigation found that sufficient material were collected against
the accused persons and therefore filed a Charge-sheet in the
Court of law.
3. On committal of the case to the Court of Sessions, which
was registered as Sessions Trial No.22 of 2013, the learned
Additional Sessions Amravati framed a Charge against the present
appellant and Sanjay Shahane for the offence punishable under
Section 302 read with Section 34 of the Indian Penal Code.
4. After a full fledged trial, the learned Trial Judge of the
Court below acquitted the accused no.2 - Sanjay Shahane as well
the appellant was acquitted of the offence punishable under
Section 498-A of the Indian Penal Code. However, she was
convicted for the offence punishable under Section 302 of the
Indian Penal Code.
5. We have heard Shri Piyush Rajurkar, the learned
counsel for the appellant and Shri V.A.Thakare, the learned
Additional Public Prosecutor for the State. With the assistance of
both these Counsel, we have gone through the record and
proceedings.
According to the learned counsel for the appellant, the
case of the prosecution solely rests on two written Dying
Declarations and a oral Dying Declaration to Rahul Shahane
(PW 7). He submitted that the two Dying Declarations cannot be
the basis for the conviction. He also submitted that the oral Dying
Declaration as claimed by Rahul Shahane cannot be relied upon
since the said witness failed to disclose about the oral Dying
Declaration immediately.
Per contra, the learned Additional Public Prosecutor
would submit that the judgment and order of conviction is
required to be maintained in view of the two written Dying
Declarations.
6. A conviction can be recorded on the Dying Declaration
alone if the Court finds the Dying Declaration to be wholly
reliable. It is, therefore, necessary for the Court to examine the
evidence in minute details and should place reliance on Dying
Declaration only if it is found that the evidence of recording of
Dying Declaration is of "Sterling" quality.
7. The Dying Declaration recorded by Shri Subhash
Sangale (PW 4) is at Exh.29. He recorded the said Dying
Declaration in the Irvin Hospital at Amravati. The reason for
recording the Dying Declaration by this witness was the direction
from his superior Police Inspector Shri Vijay Patil (PW 10).
After reaching to the Irvin Hospital, Subhash Sangale
(PW 4) gave a requisition to the Medical Officer by which he
requested to the Medical Officer to give his opinion as to whether
Pranita is in a fit condition to give her statement. The said
requisition is at Exh.28. According to the evidence of Subhash
Sangale (PW 4), the doctor examined Pranita and gave his opinion
on Exh.28 itself.
The Certificate that the patient is able to give statement,
is not proved by the prosecution.
In view of the verdict of the Constitutional Bench of the
Hon'ble Apex Court in the case of Laxman ..vs.. State of
Maharashtra, reported in (2002)6 SCC 710, the certification of
the doctor is not essential before recording of the statement of the
victim. However, the Hon'ble Apex Court has ruled that in that
case the person or the Scribe, who is taking the statement of the
victim, should himself be satisfied about the condition of the
victim regarding giving of the statement.
The evidence of PW 4 Subhash Sangale is completely
silent that he himself was satisfied about the condition of Pranita
to give statement. On the contrary, his evidence shows that after
doctor gave opinion that she is fit to give statement, he started
recording of her statement. Thus, Subhash Sangale (PW 4) relied
upon the certification of the doctor about fitness of Pranita. In
that view of the matter, it was obligatory on the part of the
prosecution to prove the certificate given by him regarding the
fitness of Pranita to give statement.
Further, the requisition (Exh.28) reads as under :-
"egks n ;] ig lfou; ls o s ' kh lknj vkgs dh] ofjy tGhr
:.k LkkS - iz f .krk eks j s ' oj lks u kjs o; „‚ o"kZ jk‐
fla H kks j k] rk‐ eks f 'kZ ] ft‐ vejkorh gh na h uka d
[email protected]@2012 jks t h lk;a d kGh 6 ok‐ njE;ku lklw ]
lkljs o una b Z ;ka u h f'kfoxkG dY;kus Lorkps va x koj
jkW d s y ?ks o w u tkGw u ?ks r Y;kus ƒ‚‚ % tGY;kus vkokFkZ
lkekU; :Xuky; vejkorh ;s F ks nk[ky dj.;kr vkys
vkgs ‐ rh lkekU; :Xuky; vejkorh ;s F khy okMZ dz ‐ †
e/;s mipkj ?ks r vkgs ‐ rjh rh frps c;ku ns . ;kl
le{k vkgs vxj dls ;kckcr vkiys er feG.ks l
foua r hs ‐ Þ
8. When Subhash Sangale was in the witness box, in his
examination-in-chief itself, it appears that the Court put a question
regarding the reason as to why in the letter (Exh.28) it is stated
that the patient put herself ablaze due to the abuses given by the
mother-in-law, father-in-law and husband of sister-in-law. The
learned Judge of the Court below observed that the witness has
taken a long time to answer this question and he was completely
silent to the question posed to him and ultimately he replied that
he cannot state as to why these facts are mentioned in Exh.28.
The prosecution was under bounden duty to explain as
to how in Exh.28 it has been mentioned that due to the abuses
given to her by her in-laws she has poured kerosene on herself.
The said recitals in Exh.28 clearly show that due to abuses she has
poured kerosene on herself.
In view of the aforesaid discussion, we are of the
considered view that Dying Declaration (Exh.29) of Pranita,
though it implicates the appellant as an author of the injuries,
cannot be relied upon and consequently we reject the said Dying
Declaration.
9. Insofar as Dying Declaration (Exh.26-B) is concerned, it
is scribed by PW 3 Shri Kishor Bagde, Naib Tahsildar. After
getting information that he required to record the statement of
Pranita, this prosecution witness reached to the Irvin Hospital.
There, he contacted doctor. The said doctor is examined by the
prosecution as prosecution witness No.9 and he is Dr.Suresh
Thorat. After getting the Memo (Exh.26-A), Dr.Thorat examined
Pranita and found that Pranita was fit and was able to give
statement. Accordingly, he certified her condition by giving
certificate (Exh.49).
After having armed with the Certification from
Dr.Thorat (PW 9), Shri Kishor Bagde proceeded to record the
statement of Pranita. Before actually recording the statement of
Pranita, Scribe Shri Bagde also got himself satisfied about the
condition of patient by putting her some questions and thereafter
he recorded the statement. In the statement, Pranita has stated
that on the day of the incident the present appellant blamed her of
theft and also that her mother indulges in black-magic.
Thereafter, the acquitted accused gave abuses followed by pouring
of the kerosene by the appellant and setting her ablaze. After
recording the Dying Declaration (Exh.26-B) Dr.Thorat gave
Certificate (Exh.50) that during recording of Dying Declaration
Pranita was conscious.
10. The Dying Declaration (Exh.26-B) cannot be the basis for
conviction since Exh.26-B is completely silent that after recording
of her statement Scribe Shri Bagde read over the statement to
Pranita and after having understood the same she admitted the
contents.
Dying Declaration (Exh.26-B) is recorded in a
cyclostyle proforma. The cyclostyle proforma does not contain
any statement that the Dying Declaration was read over to the
patient and the patient had admitted the correctness of the Dying
Declaration.
11. The law on this aspect is settled by the Hon'ble Apex
Court in Shaikh Bakshu and ors. ..vs.. State of Maharashtra,
reported in 2007(11) SCC 269 and in the case of Kantilal ..vs..
State of Rajasthan reported in (2009) 12 SCC 498. The Hon'ble
Apex Court in Shaikh Bakshu's case ruled that in absence of
mentioning in the Dying Declaration about the reading over the
statement to the declarent, it cannot be presumed that the said
was read over and explained to the declarent. In Kantilal ..vs..
State of Maharashtra (cited supra) the Apex Court has observed as
under :-
:36. The abovestated facts and circumstances
would prove that the alleged dying declaration, on
which much reliance has been placed by the
defence, cannot be said to be an admissible and
reliable document. The fact that the alleged dying
declaration (Exh.D-4) did not bear endorsement
of DW 2 to the effect that it was read over and
explained to the deceased, also created a doubt on
its credibility and truthfulness."
12. Thus, it could be seen that the Apex Court has held that
not bearing an endorsement to the effect that the Dying
Declaration was read over and explained to the deceased creates a
doubt in respect of the credibility and truthfulness of the same.
Further, it is a consistent view of this Court right from
Shivaji Tukaram Potdukhe..vs..State of Maharashtra, reported
in 2004 ALL MR (Cri) 3220 that a Dying Declaration cannot be
relied upon if such dying Declaration is not read over to the
deceased and there is no endorsement to that effect.
In view of the aforesaid lacunae, a Dying Declaration
(Exh.26-B), in our view, cannot be made a foundation for
sustaining the conviction.
13. Mechanical acceptance of the Dying Declaration de hors
a meticulous scrutiny of the evidence relating to the recording of
Dying Declaration, in our view, is an error in law. The learned
Trial Court it appears has lost complete sight of the aforesaid
settled principles of law while placing reliance on the Dying
Declarations.
14. Insofar as the oral Dying Declaration made to Rahul
Shahane (PW 7), as claimed by him, it is to be noted that even
according to Rahul Shahane who is brother of the deceased, his
statement was recorded after 2 - 3 days of the death of Pranita.
It is established on record that there was a Police Chowky in the
Irvin Hospital itself. Nothing prevented this prosecution witness
to disclose to the Police at the earliest opportunity regarding the
oral Dying Declaration made to him. Further, the relevant portion
from the evidence of Rahul Shahane shows as under :-
"Her whole body was bandaged from
mouth to leg."
In view of the aforesaid, it is really hard to believe that
Pranita was in a position to speak with this prosecution witness.
In that view of the matter, the Court is not ready to place reliance
on the oral Dying Declaration. The re-appreciation of the
prosecution case by us leads us to pass the following order.
-ORDER-
The Criminal appeal is allowed.
The appellant Smt.Nirmala Vinayakrao Sonare is
acquitted of the charge for which she was convicted.
The appellant is directed to be set at liberty if not
required in any other case.
JUDGE
ig JUDGE
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