Santosh S/O Janrao Dongardive (In ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3536 Bom

                                                                                  APEAL.11.14
                                                 1

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                  
                                   NAGPUR BENCH, NAGPUR.




                                                          
                                CRIMINAL APPEAL NO. 11 OF 2014




                                                         
         Santosh s/o Janrao Dongardive,
         Aged about 40 years, Occupation :
         Cultivator, R/o Bambarda, 
         Tq. Karanja Lad, District Washim. 




                                          
         (In Jail).                                           ....             APPELLANT.
                             
                      // VERSUS //

         The State of Maharashtra, 
                            
         through its Police Station
         Officer, Police Station Karanja
         Lad,  District Washim.                               ....           RESPONDENT.
      


         Mr. Ansingh Girdekar, Advocate for appellant,
   



         Mr. N.B. Jawade, Additional Public Prosecutor for respondent.





                               CORAM :  B.R. GAVAI & V.M. DESHPANDE, JJ.     
                                DATED  :  JULY 1, 2016.


         JUDGMENT (PER B.R. GAVAI, J.)

1] Being aggrieved by the judgment and order passed by the

learned Additional Sessions Judge, Mangrulpir dated 26.11.2013 in

Sessions Trial No. 106/13, thereby convicting the appellant for the

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offence punishable under Section 302 of the Indian Penal Code and

sentencing him to suffer R.I. for life and to pay a fine of Rs.1000/- and

in default to undergo simple imprisonment for three months, the

appellant has approached this Court.

2] The prosecution case, in brief, as could be gathered from

the material placed on record is as under :-

The deceased Asha was married to Sanjay Dongardive

DW-1 about 6 to 7 years prior to the incident. Initially they were

residing in the joint family along with the elder brother-in-law and

mother-in-law. However, the deceased and Sanjay started residing

separately after sometime. They were blessed with one girl child,

who unfortunately did not survive. Thereafter, they were again

blessed with one child who was about 1½ years old at the time of the

incident. It is the prosecution case that her mother-in-law

Panchfulabai accused no.4, cousin father-in-law Ajabrao accused no.

3, cousin mother-in-law Chandrakalabai accused no.2 and the

present appellant Santosh - accused no.1 used to ill-treat and harass

her on trivial issue and blaming her that she used to steal cow-dung-

cakes.

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3] It is the prosecution case that on 9.10.2010 at around 6

p.m. accused no.1 Santosh came and picked up a quarrel with the

deceased. At that time, she was in the courtyard of her house. After

the quarrel, she proceeded to her room. Santosh followed her. He

picked up a kerosene can, poured kerosene on her person and set

her ablaze by igniting match-stick and fled away. She raised an

alarm. She had sustained severe burn injuries, i.e. 61%. On

hearing the noise, her husband came there and extinguished the fire

by pouring water. At that time, accused Ajabrao, Chandrakalabai and

Panchfulabai were in their house. Her husband and one Rahul

Wankhede DW.2 took her to a hospital in auto-rickshaw to

Kamargaon. Thereafter, she was referred to Civil Hospital, Amravati.

4] When she was brought to the hospital at Amravati, Head

Constable Harishchandra Dongare PW.4 was on duty at Civil

Hospital. After receipt of the information, he went to the ward

concerned, disclosed his purpose of visit and handed over requisition-

memo Exh. 64. The concerned Doctor took him to patient Asha,

examined her and opined that she was in a fit state of mind to give

statement. As such, PW.4 Harishchandra recorded her statement

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below Exh. 64. Similarly, PW.3 Mr. Prabhakar Shewane - Executive

Magistrate also recorded her statement below Exh. 58. In the

meantime, an information was received in the Police Station Karanja.

As such, entry was taken in the station-diary by PW.6 Suresh

Kangde. He went to village and executed the spot panchnama below

Exh. 20. On 14.10.2010 he received the case diary of Crime No.

135/10 along with his zero crime diary and the two dying declarations

from the Police Station Rajapeth, Amravati district along with letter

requesting to register the offence. PW.6 Suresh went to Amravati

and in Ward No.4 of the Civil Hospital met the concerned Doctor. A

letter requesting the Doctor to examine the deceased was given by

him. The doctor examined her and gave his endorsement.

Thereafter she recorded her statement below Exh. 88. Again after

recording the statement, he requested the doctor to examine her to

verify regarding consciousness while recording the statement. The

Doctor examined her and gave the endorsement. In the night of

14.10.2010 Asha succumbed to the injuries. On the basis of the

crime which was registered, the accused no.1 came to be arrested on

14.10.2010 vide Exh. 23. The rest of the accused were arrested on

4.1.2011.

APEAL.11.14

5] At the conclusion of investigation, a charge-sheet came to

be filed against the accused in the Court of learned J.M.F.C., Karanja.

Since the case was exclusively triable by the Sessions Judge, the

same came to be committed to the Sessions Court, Mangrulpir.

The learned trial Judge framed the Charges below Exh. 13 for the

offence punishable under Section 302 of the Indian Penal Code

against the accused no.1 and for the offence punishable under

Section 498-A of the Indian Penal Code against rest of the accused.

They pleaded "not guilty" and claimed to be tried. At the conclusion

of the trial, the learned trial Judge passed an order of conviction and

sentence as aforesaid against the accused no.1. The rest of the

accused were acquitted of the charges charged with. Being

aggrieved thereby, the present appeal has been filed.

6] Mr. Ansingh Girdekar, the learned Counsel for the

appellant, submits that the learned trail Judge has grossly erred in

convicting the appellant. It is submitted that there are multiple dying

declarations and there is a contradiction in various dying declarations.

It is further submitted that the dying declarations are not free from

doubt, inasmuch as perusal of the dying declarations and the

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evidence of the witnesses while recording the same would reveal that

the deceased was not in a fit state of mind to make the statement. It

is further submitted that the learned trial Judge has utterly failed to

take into consideration the evidence of the defence witnesses, which

fully establish that the accused was not concerned with the crime in

question. The learned Counsel, therefore, submits that the order of

conviction and sentence is not sustainable in law and the order of

conviction and sentence needs to be set aside and the accused

acquitted of the charges charged with.

7] As against this, Shri N.B. Jawade, the learned Additional

Public Prosecutor for the respondent/State, submits that the dying

declaration unclinchingly implicates the present appellant. He

submits that the perusal of the dying declarations would reveal that

they are such which are truthful and as such, the conviction awarded

on the basis of the said dying declarations warrants no interference.

8] With the assistance of the learned A.P.P. as well as the

learned Counsel for the appellant, we have scrutinized the entire

evidence on record.

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9] By now, it is a settled principle of law that a conviction can

be based solely on the basis of the dying declaration. The only

requirement is that such a dying declaration should be found to be

trustworthy, reliable, cogent and the one which inspires the

confidence in the mind of the Court. In the present case, there are

three dying declarations. The first one is recorded by PW.4

Harishchandra Dongare below Exh. 65, the second one is recorded

by the Executive Magistrate PW.3 Prabhakar Shewane below Exh. 58

and the third one is recorded by the Investigating Officer PW.6

Suresh Kangde below Exh. 88.

10] The evidence of PW.4 Harishchandra is below Exh. 63.

He states that after the receipt of information, he met the concerned

doctor and disclosed the purpose to record the statement. He states

that the doctor examined the patient in his presence and concluded

that she was in a fit state of mind to give statement. She gave the

statement below Exh. 64. He further states that he recorded the

statement wherein the deceased stated that in the night of 9.10.2010

when she was in house her elder brother-in-law Santosh came in

house, abused her and he brought a kerosene can, poured kerosene

APEAL.11.14

on her person and lit her with the match-stick and fled away. He

further stated that he wrote her statement and read over the same to

her and she admitted the same to be true and correct. He further

stated that he had obtained the left toe impression of Asha on the

said declaration. He further states that the doctor put up his signature

at Exh. 65 to the effect that her statement was correct.

11]

The second dying declaration is recorded by PW.3

Prabhakar Shewane. His evidence is below Exh. 55. He also states

that after receipt of the information, he went to the hospital, asked the

doctor to get examined the patient in order to know that the patient

was in an oriented state. He handed over the printed form to the

doctor. Doctor examined the patient and declared that the patient

was in a state to give statement. The Doctor also gave his remarks

below Exh. 57. He states that thereafter he asked the relatives of the

patient to go outside the ward. He further states that he put certain

questions to her in order to verify her state of mind. A similar version

as has been given to PW.4 Harishchandra has been given to this

witness also by the deceased. He states that he had read over the

contents of the said statement to the patient, who admitted the same

APEAL.11.14

to be correct. He further states that after recording the statement, he

called the doctor and requested him to examine the patient in order to

know her state. Accordingly, the doctor examined the patient and

declared that she was in an oriented state and made his endorsement

at Exh. 58. No doubt that there is no endorsement in the dying

declaration that the same was read over to the deceased and she has

admitted the contents to be true. As such, the conviction solely on

the basis of the said dying declaration would not be sustainable.

12] The third dying declaration is recorded by PW.6 Suresh

Kangde. He states that on receipt of the information on 13.10.2010

from Washim, he took the entry in the station diary and went to village

Bambarda for the purpose of investigation. He had also executed

spot panchnama below Exh. 20. He states that on 14.10.2010 he

had gone to Amravati hospital. He went to Ward No.4 and met

concerned doctor. The doctor took him near the bed of Asha. Vide

letter below Exh. 71, he requested the doctor to examine the patient,

so as to verify her state of mind. Doctor examined her and declared

that she was in fit state of mind to give statement and he gave such

endorsement below Exh. 71. Thereafter, he introduced himself to

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Asha and disclosed that he wanted to record her statement. He

states that in the statement she stated that she resides along with her

husband and small kid. Adjacent to her house, the houses of her

mother-in-law, brother-in-law, cousin father-in-law are there. They

used to give sarcasm to her on trivial matters and used to ill-treat her.

On 9.10.2010 in the evening at around 6 p.m. after cooking, when

she was standing in front of water-drum, the brother of her husband,

namely, Santosh came there and raised dispute regarding theft of

sticks. Thereafter, she went inside her house. He followed her in the

house and poured kerosene from a can on her person and set her on

fire with the help of match stick and fled away. When she made

uproar, her husband came there and doused the fire by pouring water

on her person. Her husband came there and doused the fire by

pouring water on her person. Her husband with the help of villagers

took her to hospital at Kamargaon in auto. Thereafter, she was

referred to Amravati hospital and admitted there. He further states

that he recorded her statement and read over its contents and she

admitted the same to be correct and then obtained her toe impression

on it as her both palms were burnt. The said dying declaration is

exhibited as Exh. 88. He further states that he again requested the

APEAL.11.14

doctor to examine her to know her consciousness while recording

statement. Accordingly, the doctor examined and gave his

endorsement that she was in a fit state of mind to give statement.

The said endorsement is at Exh. 72. This witness has been

thoroughly cross-examined. In spite of thorough cross-examination,

nothing damaging has come in his evidence.

13]

The evidence of PW.6 Suresh is duly corroborated by the

evidence of PW.5 Dr. Yogesh Sawadekar, which is below Exh. 70.

He has clearly stated in his evidence that on 14.10.2010, a letter was

addressed to him by P.S.I. Karanja. He further states that since the

statement of deceased Asha was recorded by police, he went near

the bed of Asha. He verified the physical and mental condition of

Asha and concluded that she was in a condition to give statement.

He gave endorsement on that letter which is at Exh. 71. He further

states that the concerned police recorded the statement of deceased

Asha. Thereafter he again examined the condition of Asha and found

that she was well oriented while giving statement. He gave his

endorsement in that regard which is exhibited at Exh. 72. He has

been thoroughly cross-examined. Though suggestions are given by

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the defence that the deceased was not conscious, his testimony has

remained unshattered. To a question as to whether the patient would

go in unconscious state in case of injection of Wymesone medicine,

though he has answered "to some extent", he has clarified that there

is "less possibility".

14] We find that the dying declaration below Exh. 88 is the one

which would inspire the confidence in the mind of the Court. PW.6

Suresh who has recorded the dying declaration has clearly stated that

he had put certain preliminary questions to verify regarding the fitness

of the deceased to make the statement. At the end of the dying

declaration, there is a specific endorsement that the dying declaration

was recorded as per her version which was read over to her and she

acknowledges the same to be true. Not only that, PW.5 Yogesh

Sawadekar has specifically stated that prior to recording the dying

declaration and after recording the same, he had verified the fitness

of the deceased to make the statement and after verifying the same,

he has given endorsement below Exhs. 71 & 72. We find that the

said dying declaration is cogent, truthful, reliable and the one which

inspires the confidence in the mind of the Court. Apart from that, this

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dying declaration is duly corroborated in the material aspects by the

two dying declarations below Exhs. 65 & 58.

15] In so far as the contention regarding the defence witness

is concerned, no doubt that DW.1 Sanjay, the brother of the appellant

and the husband of the deceased and DW.2 Rahul Wankhede have

supported the defence version. However, the accused no.1 is the

brother of the appellant and the DW. 2 is his friend. As such, the

possibility of these witnesses not speaking the truth to save the

appellant cannot be ruled out. In any case, the learned trial Judge

has found that the defence of the appellant was of alibi. However, he

had not examined any witness in support of his defence of alibi.

16] In that view of the matter, we do not find that the order of

conviction and sentence as recorded by the learned trial Judge

warrants any interference. The appeal is without merit and as such,

is dismissed.

JUDGE JUDGE .

J.