Pramod Navneet Shirsat (In Jail) vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3551 Bom

        apeal92.14                               1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                            CRIMINAL APPEAL NO. 92 OF 2014.




                                                            
       APPELLANT:                  Pramod Navneet Shirsat,
                                   aged about 25 years, Occu: Labour,
                                   R/o Takli (Khojbal) Tq.Balapur,Distt.




                                             
                                   Akola.
                             
                                                : VERSUS :

       RESPONDENT:       State of Maharashtra,
                            
                         through Police Station Officer,
                         Police Station Ural, Distt.Akola.

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       Mr.R.M.Mardikar, Advocate for the appellant.
       Mr.C.A.Lokhande, Additional Public Prosecutor for the State.
   



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                                      CORAM:      B.R.GAVAI AND 





                                                             V.M.DESHPANDE, JJ.

DATE: 4th JULY, 2016.

ORAL JUDGMENT (Per V.M.Deshpande, J.)

1. Being aggrieved by the judgment and order of

conviction passed by learned Sessions Judge, Akola, dated 30 th of

December, 2013, in Session Trial No.91 of 2011, by which the

appellant was convicted for the offence punishable under Section

302 of the Indian Penal Code and was directed to suffer

imprisonment for life and to pay a fine of Rs.1000/- and in default

of payment of fine to suffer rigorous imprisonment for three

months, the appellant is before this Court.

2.

A Charge was framed against the present appellant and

his parents in Sessions Trial No.91 of 2011 for the offence

punishable under Section 302 read with Section 34 of the Indian

Penal Code. According to the Charge, on 6th of March, 2011 at

about 10 p.m. at Takali (Khojbal), Tq.Balapur, Distt.Akola, all the

accused persons in furtherance of their common intention, caused

death of Smt.Pratibha.

Though the parents of the appellant are acquitted by the

learned Court below, no appeal questioning their acquittal is filed

before this Court by the State.

3. We have heard Shri R.M.Mardikar, learned counsel for

the appellant and Shri C.A.Lokhande, the learned Additional

Public Prosecutor for the State, in extensive.

4. Though, in the charge, it has been stated that the

deceased Pratibha was wife of the present appellant, the said fact

is seriously disputed by the appellant. Further, from the evidence

of PW 1 Laxmibai, the mother of the deceased, it is clear that

Pratibha was married with one Jagdeo Nikhade before three years.

However, she was deserted by him due to matrimonial dispute. It

is nowhere in the case of the prosecution witness Laxmibai

(PW 1), the mother of the deceased or PW 2 Sanghpal, the brother

of the deceased that there was divorce between Pratibha and said

Jagdeo.

According to the prosecution, Pratibha used to reside

with the present appellant. In that view of the matter, it is crystal

clear that Pratibha was not wife of appellant, at the most they

were in live-in-relationship.

5. The date of incident is 6th of March, 2011. As per the

evidence of Laxmibai, mother of the deceased, the house of the

appellant is situated in fourth lane behind her house. According

to the prosecution, the time of the incident is at about 10 p.m.

She heard crying of Pratibha and therefore, she along with her son

Sanghapal (PW 2) rushed to the house of the appellant to notice

that Pratibha was burning. Pratibha was taken to the hospital in

an auto-rickshaw by Sanghpal, Laxmibai and Vilas, brother-in-law

of Laxmibai. Said Vilas is not examined by the prosecution.

According to the prosecution, in the auto-rickshaw Pratibha made

an oral Dying Declaration to these two prosecution witnesses.

6. The case of the prosecution is solely based on two

written Dying Declarations as well as an oral Dying Declarations

made to Laxmibai (PW 1) and Sanghpal (PW 2), as claimed by

them.

7. According to Laxmibai, Pratibha made an oral Dying

Declaration to her as under :-

"She told me that her parents-in-law were complaining that she cannot do household

work. They asked Pramod to drive her out of house. She further stated that accused Pramod brought a kerosene Can and

poured kerosene on her person and burnt

her with burning match-stick and then ran away."

Shri Sanghpal (PW 2) claimed that following Dying Declaration

was made :-

"On the way, Pratibha told us that accused persons quarrelled with her. Her parents-

in-law caught her hands and husband poured kerosene on her person and burnt her."

Thus, from the aforesaid two Dying Declarations it is crystal clear

that on material point the Dying Declarations are at variance.

Further, according to Laxmibai, after hearing a noise

when she and Sanghpal went to the house of Pratibha that time

Pratibha ran out of the house in burning condition and fell in front

of the house. This aspect is not corroborated by Sanghpal (PW 2).

On the contrary, it is stated by him that when they reached to the

house Pratibha was burning inside the house. The spot

panchanama is at Exh.50. The perusal of the said panchanama

does not reflect any symptoms about the fact of burning inside the

house.

According to Laxmibai and Sanghpal, the house of the

appellant was surrounded by houses of many neighbours. From

the evidence of these two witnesses, it is clear that when they

reached to the spot, no neighbour was present on the spot. It

appears to be unnatural since the voice of Pratibha was heard by

Laxmibai and Sanghpal whose house is situated away from the

house of the appellant. The house of the appellant was

surrounded by neighbours therefore, had really Pratibha shouted

for help, the attention of neighbours would have been called and it

would have been most natural on their part to gather there.

8. Looking to the material inconsistency in the oral dying

Declaration, as claimed by the mother and the brother of the

deceased, in our view, it does not inspire confidence and therefore

the same are discarded. Insofar as written Dying Declarations are

concerned, the first in time is recorded by Shri Vinod Patil (PW 4).

He is Executive Magistrate. On 7th of March, 2011, he received

requisition from City Kotwali Police Station for recording Dying

Declaration of Pratibha. The requisition is at Exh.62. The said

was received by Shri Vinod Patil at 7 a.m. Accordingly, he went

to the Main Hospital, Akola and met with the concerned doctor

and gave him requisition that he should examine the patient and

certify about her condition. The said requisition given by him is

at Exh.63-A. Accordingly, Dr.Shivshankar Khedkar (PW 5)

examined patient and gave a certificate that the patient is in a fit

condition. The said is given at 7.15 a.m. Thereafter, Shri Vinod

Patil proceeded to record the Dying Declaration. According to the

Dying Declaration, on 6th of March, 2011 at about 10 p.m. in the

night, her husband Pramod and her parents-in-law poured

kerosene on her person and set her ablaze. Her husband is

habituated to drinks and used to ill-treat her. This is the only

four-line Dying Declaration. The Dying Declaration is at Exh.63-B.

The Dying Declaration does not show that after recording the

Dying Declaration the said was read over to the declarent namely;

Pratibha and she admits the contents as true. In that view of the

matter and in view of the consistent view of this Court in that

behalf that if the Dying Declaration is not read over to the

declarent and if there is no endorsement that she admits it to be

true, the same cannot be considered. Accordingly, we have no

hesitation to discard the Dying Declaration (Exh.63-A).

9. The another Dying Declaration is Exh.74. The said is

treated as First Information Report, on the basis of which a printed

FIR (Exh.75) was prepared and a Crime No.24 of 2011 was

registered against the appellant for the offence punishable under

Section 307 read with Section 34 of the Indian Penal Code.

10. The aforesaid declaration is recorded by Shri Anil

Kuralkar (PW 6), the Assistant Police Inspector. At the relevant

time Shri Kuralkar was attached to Police Station, Ural. He

received a telephone call that Pratibha is admitted in hospital in

burnt condition. Accordingly, he took entry in the Station Diary

and went to the hospital. However, the said Station Diary is not

produced on record. After reaching to the hospital he met

Medical Officer Dr.Anant Dawange (PW 3). He requested Shri

Dawange to examine Pratibha by giving requisition letter

(Exh.73). Accordingly, as per the prosecution Shri Dawange

examined Pratibha and gave his endorsement that she is fit to give

her statement. The said endorsement is given below Exh.73, the

requisition. The fitness Certificate is at Exh.59.

11. After having obtaining the Medical Certificate, Shri

Kuralkar proceeded to record Dying Declaration. According to the

Dying Declaration, Pratibha was married with one Shri Nikhade.

However, due to the discord with him she left him and started

residing with the appellant. It is stated that she was not married

with the appellant but was intending to marry with him.

According to the Dying Declaration (Exh.74), on 6 th of March,

2011 the father of the appellant picked up quarrel with her on the

count that she is unable to do proper cooking. Thereupon,

deceased asked the father of the appellant that said should be

asked to his wife namely; the mother of the appellant. On that

count, there was a quarrel between the parents of the appellant

and the deceased. It is further stated that after two hours i.e. at 9

O'oclock the appellant came under the influence of liquor and

picked up quarrel with her. At 10 O'clock in the night the

appellant asked her to bring kerosene for killing her, upon that

Pratibha said that she will not bring kerosene therefore he brought

kerosene and poured on her person and set her ablaze.

12. Therefore, it is clear that there is a variance in the

prelude of the Dying Declaration (Exh.74) recorded by PW 6 Anil

Kuralkar, Investigating Offer, and the Dying Declaration (Exh.63-

A) recorded by Dr. Vinod Patil (PW 4). Leave apart the said, when

Dr.Dawange was under the cross-examination, he has admitted

that there were 10 to 12 relatives of the patient in the Ward. If

that be so, the tutoring at their behest cannot be completely ruled

out, especially when in the statement recorded under Section 313

of the Code of Criminal Procedure of the appellant it has been

stated by the appellant that he was never ready for the marriage

with Pratibha. It is amply proved on record that Pratibha was not

his wife and she was trying to marry with the appellant. Once

there is a iota of suspicion that the tutoring is possible then it is

unsafe to accept such a Dying Declaration.

13. Upshot of the above discussion leads us to pass the

following order.

-ORDER-

The appeal is allowed.

The judgment and order of conviction under Section

302 read with Section 34 of the Indian Penal Code, dated 30th of

December, 2013 passed by Sessions Judge, Akola in Sessions Trial

No.91 of 2011 is quashed and set aside. The appellant is acquitted

of the said offence.

The appellant be set at liberty if not required in any

other Crime.

                                             
                      JUDGE
                              ig                                            JUDGE
                            
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