Bombay High Court
Jagannath Gangadin Thakur (In ... vs The State Of Maharashtra, Thr. ... on 19 August, 2016
Bench: B.P. Dharmadhikari
apeal 518.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Appeal No.518 of 2014
Jagannath Gangadin Thakur,
aged about 50 years,
occupation - Labour,
resident of New Sarturna,
Shitla Mata Mandir, Amravati.
ig ..... Appellant.
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Rajapeth,
Amravati. ..... Respondent.
*****
Mr. Mir Nagman Ali, Adv., for the Appellant.
Mrs. Ketki Joshi, Addl. Public Prosecutor for the Respondent-State.
*****
CORAM : B. P. DHARMADHIKARI
AND
A.S. CHANDURKAR, JJ.
Date : 19th August, 2016
ORAL JUDGMENT [Per A.S. Chandurkar, J.]:
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01. This appeal takes exception to the conviction of the
appellant by the learned Additional Sessions Judge, Amravati, in
Sessions Trial No. 114 of 2013, decided on 4th August, 2014, by which
the appellant has been sentenced to suffer Imprisonment for Life for
the offence punishable under Section 302 of the Indian Penal Code [for
short "the Code"]. The appellant has also been held liable to pay fine
of Rs. 500/-, and, in default, to undergo Rigorous Imprisonment for a
period of six months.
02. The case of the prosecution, as can be gathered from the
material on record, is that the appellant was married with one Manju
and out of said wedlock, they had one daughter and one son. They all
were residing together. Manju was working as a labourer, while the
appellant was addicted to liquor. It is the case of the prosecution that
after consuming liquor, the appellant used to harass his wife. On 23rd
January, 2013 at about 8.30 p.m., the couple was at home, while the
children had gone out. The appellant, under the influence of liquor,
started abusing said Manju. After suspecting her character, the
appellant poured kerosene from a bottle and ignited the fire, causing
burn injuries to Manju. Said Manju was thereafter admitted at Irwin
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Hospital by her children. The statement of Manju came to be recorded,
after which the offence was registered against the appellant. After
completion of the investigation, charge-sheet came to be filed. The
case was committed to the Sessions Court. The appellant did not
admit to be guilty, and claimed to be tried. After conclusion of the
trial, the appellant came to be convicted and sentenced in the manner
stated herein above. Hence this appeal.
03. Shri Mir Nagman Ali, the learned counsel for the appellant,
submitted that the conviction of the appellant was not sustainable in
law. According to him, said Manju had suffered fifty-four per cent burn
injuries and she was not in a position to give any Dying Declaration.
Though there were two Dying Declarations, there were various
infirmities therein and the same could not have been relied upon for
convicting the appellant. In so far as the first Dying Declaration dated
28th January, 2013 [Exh.15] is concerned, it was submitted that the
same did not bear any endorsement of the doctor indicating that the
deponent was in a fit state of mind for giving said declaration. The
second Dying Declaration dated 29th January, 2013 [Exhs. 24, 36 and
37] indicated that there were various corrections made in the time and
date of recording the Dying Declaration. The said Dying Declaration
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was in a printed format. He submitted that Manju was a Hindi-
speaking lady, while the Dying Declarations were recorded in Marathi,
with which language she was not familiar. He then submitted that
considering the nature of burns on her body including her hands, she
was not in a position to sign the Dying Declarations. Both the Dying
Declarations were shown to have the signatures of said Manju. In fact,
the Investigating Officer in his cross-examination had admitted that he
had not recorded the Dying Declaration of the victim, as she was
having difficulty in speaking. It was, therefore, submitted that if these
Dying Declarations, which did not inspire any confidence were
excluded from consideration, then there was no other evidence to
support the conviction of the appellant.
He then submitted that the daughter of the appellant,
Reshma, who was examined as PW 2, Naresh, the brother of Manju,
who was examined as PW 5, did not support the case of the
prosecution. In fact, the said witnesses had stated that the relations
between the appellant and his wife were cordial. It was then urged
that the presence of the appellant at the site has not been proved. No
neighbours were examined though their statements had been recorded
under Section 161 of the Criminal Procedure Code. Seizure of the
clothes of the appellant was doubtful, as the Panchas in that regard
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were not examined. The Investigating Officer in his cross-examination
admitted that the appellant was arrested on 29th January, 2013 at 3.00
a.m. and that he had not made any attempt to run away. As far as the
two reports indicating commission of non-cognizable offences at
Exhs.62 and 63 are concerned, it was submitted that these documents
had not been duly proved, as the scribe had not been examined. He
submitted that though it was open for the Court to rest its conviction
merely on the basis of a Dying Declaration, such Dying Declaration
should be without any doubt and should inspire confidence of the
Court. The same was not the fact in the present case. In support of his
submissions, the learned counsel placed reliance upon the Judgments
of the Hon'ble Supreme Court in :-
[a] State of Maharashtra Vs. Hemant Kawadu
Chauriwal etc.[AIR 2016 SC 287],
[b] Umakant & another Vs. State of Chhattisgarh [AIR
2014 SC 2943], and
[c] State of U.P. Vs. Madan Mohan & others .[AIR 1989
SC 1519],
He, thus, submitted that the appellant was entitled to be
acquitted.
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04. Per contra, Mrs. Joshi, learned Addl. Public Prosecutor for the
State, supported the conviction of the appellant. She submitted that
the Sessions Court rightly relied upon both the Dying Declarations.
They were recorded in accordance with law and after ensuring that the
deponent was in a fit physical and mental state. According to her, the
second Dying Declaration [Exhs.24, 36 and 37] had been recorded by
the Naib Tahsildar, who was an independent person having no grudge
against the appellant. The overwriting in the said Dying Declaration
had been counter-signed and only certain corrections therein had been
made. It was urged that the Naib Tahsildar [Exh.22] as well as the
Doctor [Exh.34] were independent witnesses and their depositions
inspire confidence for being accepted. No suggestion was given to the
said witnesses with regard to the signatures of the deceased on the
Dying Declarations. Similarly, there was sufficient motive on the part
of the appellant to commit the crime as his relations with the deceased
were strained. The appellant did not give any explanation in his
examination under Section 313 of the Criminal Procedure Code. Even
if the depositions of the daughter and the brother of the deceased
were excluded from consideration, the Dying Declaration could be
relied upon for sustaining the conviction. As the appellant was the
husband of the deceased, his presence at the residence was natural
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and having failed to give any explanation, whatsoever, in that regard,
the appellant was not entitled to contend that his presence had not
been proved. Learned Add. Public Prosecutor placed reliance upon the
following decisions of the Hon'ble Supreme Court:-
[1] Hiraman Vs. State of Maharashtra [ (2013) 12 SCC
586],
[2]
Anjanappa Vs. State of Karnataka [ (2014) 2 SCC
776], and
[3] Prempal Vs. State of Haryana [ (2014) 10 SCC 336]].
05. We have heard the learned counsel for the parties at length.
We have also perused the records of the case.
06. To bring home the charge against the appellant, the
prosecution has examined nine witnesses. PW 1 - Vinod Chikhalkar
[Exh.12] was the Head Constable attached to Rajapeth Police Station.
He has deposed that on receiving a memo from Irwin Hospital, he had
visited the said hospital and had given a letter to the Medical Officer to
get his opinion about the fitness of the victim - Manju. An
endorsement that the victim was fit to give her statement was made
by the Medical Officer and the memorandum was placed at Exh.14. He
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has then stated that he recorded the statement of Manju in which she
stated that on 28th January, 2013 at about 8.30 p.m., when both her
children were outside, the appellant under the influence of liquor had
abused her and had thereafter poured kerosene on her body. He had
thereafter set her ablaze. This statement is at Exh.15, and it was
signed by the victim - Manju as well as by the said witness. On that
basis, the crime was registered and the appellant came to be arrested
on 29th January, 2013 at 3.00 a.m. In his cross-examination, he stated
that no member from the family of Manju or her in-laws lodged any
complaint. He denied the suggestion that Manju was not in a position
to give her statement.
The daughter of the appellant, Reshma, was examined as
PW 2 [Exh.18]. In her deposition, she has stated that she was not at
home when the incident took place. She reached thereafter and on
finding her mother in a burnt condition, she and her brother took her to
the hospital. This witness did not support the case of the prosecution.
The elder sister of the appellant, Indubai, was examined as PW 4
[Exh.25] and she too did not support the case of the prosecution.
Same was the case with the elder brother of Manju - Naresh, who was
examined as PW 5 [Exh.29]. The Panch witness, who was examined as
PW 6 [Exh.30], also did not support the prosecution.
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07. The prosecution also examined the Naib Tahsildar, Umesh
Khodke, as PW 3 [Exh.22]. He has deposed that on receiving a memo
from the police authorities, he had been to the hospital to record the
statement of Manju. He verified the status of Manju and on being
satisfied about her condition, he recorded her statement. The said
statement is at Exh.24.
ig He has further stated that the doctor had
examined said Manju prior to recording her statement as well as after
her statement was recorded. In his cross-examination, he admitted
that there was some overwriting on the dates; but the same was
counter-signed. The Dying Declaration was recorded in the words of
the patient.
Dr. Kishor Deshmukh was examined as PW 7 [Exh.34]. This
witness has stated that he had examined Manju after receiving the
memo from PW 1. He had endorsed the memo at Exh.14 by giving his
opinion about the fitness of the patient at Exh.35. This witness also
gave his opinion when the subsequent statement was recorded at
Exh.24. In his cross-examination, he has denied that Manju was
speaking only in Hindi. He further admitted that he had not written in
his opinion that he had medically examined the patient. He explained
the corrections made in the date and time on the second Dying
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Declaration. He further stated that pain killers were given to said
Manju after the Dying Declaration was recorded.
08. The Police Sub-Inspector, Shriniwas Royalwar, was examined
as PW 8 [Exh.39]. After the arrest of the appellant, he had recorded
the memorandum statement of the appellant at Exh.40. He also
seized the clothes at the instance of the appellant. He further placed
on record two reports at Exhs.62 and 63 showing registration of non-
cognizable cases. In his cross-examination, he stated that he did not
find any finger prints on the seized bottle. The appellant was arrested
on 29th January, 2013 at 3.00 a.m., and that he had not absconded. He
admitted that he did not record the Dying Declaration of the victim, as
she was having difficulty in speaking.
09. The last witness examined on behalf of the prosecution was
Suresh Sharma who was the Asstt. Sub-Inspector [Exh.47]. He had
seized the incriminating material on 28 th January, 2013.
10. Before appreciating the evidence on record, reference can
be made to the legal principles that were highlighted by the learned
Addl. Public Prosecutor while supporting the conviction of the appellant
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based on two Dying Declarations. In Hiraman [supra], it was observed
that the proposition that a Dying Declaration could be the sole basis of
conviction was well- settled. That unless such Dying Declaration is duly
corroborated by other independent evidence for being accepted is not
an absolute rule of law. This principle has been reiterated in
Anjanappa [supra], wherein it was held that a conviction could be
based on Dying Declaration recorded properly when the declarant is in
a fit mental condition to make it. At the same time, the principle that a
Dying Declaration has to be adjudged and appreciated in the light of
surrounding circumstances and its weight determined by reference to
principles governing the weighing of evidence has been laid down in
Hemant Kawadu Chawariwal [supra]. A Dying Declaration does not
require any corroboration so long as it inspires confidence in the mind
of the Court, as observed in Umakant & another [supra]. In the light of
this legal position, the evidence on record would have to be
appreciated.
11. The first Dying Declaration [Exh.15] was recorded by PW 1 -
Vinod Chikhalkar. This witness obtained the endorsement of PW 7 -
Dr. Kishor Deshmukh before recording the said statement. In the said
statement, Manju has stated that on 28th January, 2013 at 8.30 p.m.,
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when both her children were outside, her husband had abused her and
had poured kerosene on her body after which she was set on fire. It is,
however, to be noted that after this Dying Declaration was recorded,
there is no endorsement by the doctor that while making said
statement, she was in a fit state of physical and mental health.
Though such endorsement at Exh.35 was made prior to recording of
said statement, there is no such endorsement on said declaration after
the same has been recorded. Similarly, the time on said Dying
Declaration is also not recorded. These are the infirmities in the first
Dying Declaration.
12. In so far as the second Dying Declaration at Exh.24 is
concerned, the same bears the endorsement of PW 7 regarding the
fitness of the victim. Said Manju has stated in Marathi that on 28th
January, 2013 at about 8.00 p.m., the appellant had abused her and
had set her on fire after pouring kerosene. An endorsement has also
been made after completion of this statement that Manju was in a fit
condition.
13. Other surrounding circumstances and evidence on record
indicate that after the first statement of Manju was recorded at 8.30
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p.m., on 28th January, 2013 implicating the appellant, he was not
arrested immediately. After the second statement was recorded at
1.40 a.m., on 29th January, 2013, the appellant was arrested vide
Exh.17 at about 3.00 a.m., on the same day. The Investigating Officer
has admitted in his cross-examination that the appellant did not run
away and was not absconding. He was arrested at 3.00 a.m. The Spot
Panchanama at Exh.48 was prepared on 28th January, 2013 between
10.00 p.m., and 11.00 p.m. The same indicates that adjoining the
house of the appellant where the incident had occurred, there was a
shed for tying goats. The same was noticed by PW 9 while seizing the
articles, such as the burnt clothes of Manju, the kerosene bottle etc.
The Spot Panchanama also indicates that the house of the appellant
was surrounded on all four sides by various houses.
The clothes of the appellant were seized on memorandum
under Section 27 of the Indian Evidence Act on 29th January, 2013
between 11.00 a.m., and 12.00 noon. The same were shown to have
been seized at the instance of the appellant from the shed for tying
goats. The learned Judge of the Sessions Court has disbelieved this
recovery, on the ground that there was no mention of any smell of
kerosene on the said clothes when they were seized. This conclusion
is also justified in view of the fact that though various incriminating
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articles were seized on 28th January, 2013 during Spot Panchanama,
the clothes of the appellant could not be found in the adjoining shed in
the very same premises.
14. Consideration of the entire evidence on record does not
indicate the presence of the appellant at home when the incident took
place. No attempt was made by the appellant to abscond or remain
away from the police authorities despite the fact that the incident of
burning had occurred at about 8.30 p.m., on 28th January, 2013.
Though the Arrest Form at Exh.17 indicates that the appellant was
medically examined after his arrest, there is nothing on record to
indicate if he had suffered any burn injuries. The description of the
clothes worn by the appellant has also not come on record. Another
aspect that requires consideration is that no neighbour/independent
witness has been examined by the prosecution. If Manju was sought to
be burnt against her wishes on 28th January, 2013 at about 8.30 p.m.,
it would have been but natural for her to shout and seek some help.
There is no such evidence on record placed by the prosecution. In this
background, if the conduct of the appellant is noticed, it cannot be said
that he has acted in a manner so as to raise any suspicion against him.
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15. In this background, therefore, if the second Dying
Declaration is considered in the light of the surrounding circumstances
and if all the circumstances are taken together, a doubt is created as
to the involvement of the appellant in said crime. In the decisions
relied upon by the learned Addl. Public Prosecutor, the facts indicate
that the accused therein had absconded, which circumstance gave rise
to an adverse inference pointing out to the guilt. Though it is true that
in the present case, the appellant has not stated anything in his
defence while recording his statement under Section 313 of the
Criminal Procedure Code, the same by itself would not be fatal to his
case, especially when his presence at the place of the incident is
found doubtful. In these circumstances, therefore, the conviction
cannot be sustained solely by relying upon the second Dying
Declaration and ignoring the other surrounding circumstances that are
available on record. The Dying Declaration cannot be considered in
isolation ignoring the surrounding circumstances. In that view of the
matter, the appellant would be entitled to the benefit of doubt.
16. In view of aforesaid, the following order is inevitable:-
ORDER
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[a] Judgment dated 4th August, 2014, delivered by
learned Additional Sessions Judge, Amravati, in
Sessions Trial No. 114 of 2013, convicting the
appellant of the offence punishable under Section
302 of the Indian Penal Code, is quashed and
set aside. Appellant, Jagannath Gangadin Thakur,
be set free, if not required in any other matter.
[b]
Muddemal property be destroyed as directed by
the Trial Court after appeal period is over.
Judge Judge
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apeal 518.14
