Saderaj Baba Nagraj Baba Kapate ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3662 Bom

        apeal238.14                              1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO.238 OF 2014.




                                                            
       APPELLANT:                  Saderaj Baba Nagraj Baba Kapate @ 
                                   Anupam Padmakar Bodade, aged
                                   about 35 years, R/o Riddhapur, Tq.




                                             
                                   Morshi, Distt.Amravati.
                             
                                                : VERSUS :

       RESPONDENT:       State of Maharashtra,
                            
                         through Police Station Officer,
                         Police Station, Shirkhed, Tq.Morshi,
                         Distt. Amravati.
      


       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
       Mr.S.S.Dhengale, Advocate for the appellant.
   



       Mr.N.B.Jawade, Addl.Public Prosecutor for the State.
       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                      CORAM:      B.R.GAVAI AND 





                                                             V.M.DESHPANDE, JJ.

DATE: 8st JULY, 2016.

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

1. The appellant faced a Charge for the offence punishable

under Section 302 of the Indian Penal Code for homicidal death of

Sau.Nirmala. After a full fledged Trial in Sessions Trial No.35 of

2013, the learned Additional Sessions Judge - 4, Amravati found

him guilty. Consequently, by the impugned judgment and order

of conviction dated 13th of March, 2014, the appellant was

directed to suffer imprisonment for life and also to pay a fine of

Rs.10,000/- and in default of payment of fine to suffer further

simple imprisonment for a period of three months. Hence, this

appeal.

2. Such of the facts necessary for the decision of this

appeal are as under :-

Deceased Nirmala used to reside with the present

appellant. Though they were not married, they were in live-in-

relationship.

3. The incident is dated 10th of November, 2012 at about

6.00 p.m. at village Riddhapur. The place of the incident is a

house of the appellant situated at Riddhapur. Incident of burning

took place inside the said house, as it could be seen from spot

panchanama (Exh.29) duly proved by Pravin Jawarkar (PW 1).

4. The First Information Report (FIR) is recorded on the

basis of Dying Declaration of Nirmala. The printed FIR is at

Exh.53. The same was registered by Baburao Ghom (PW 9),

Police Head Constable, attached to Police Station, Shirkhed. The

FIR was registered on 11th of November, 2012. A Crime was

registered for the offence punishable under Section 307 of the

Indian Penal Code vide Crime No.118 of 2012.

5. The statement of Nirmala, on the basis of which the

Crime was registered, was recorded by Ganesh Thakare (PW 10)

API. On getting information that Nirmala was admitted in the

hospital at Amravati, Ganesh Thakare, who was Police Station

Officer of Police Station Shirkhed, reached to the hospital at

Amravati. Since he was intending to record statement of Nirmala,

he gave a requisition (Exh.37) to the Medical Officer, by which he

requested the Medical Officer to examine Nirmala and to certify

whether she is able to give her statement. After obtaining the

said Certificate, statement of Nirmala was recorded in which she

implicated the appellant as a person who has caused her burn

injuries.

6. PW 10 Ganesh Thakare, API, carried further

investigation. He prepared Spot Panchanama. He seized simple

as well as kerosene stained soils, burnt match-stick and burnt

clothes of Nirmala from the spot under seizure Memo (Exh.30) in

presence of panch Pravin Jawarkar (PW 1).

He arrested appellant on 12th of November, 2012 under

Arrest Panchanama (Exh.27). On 14th of November, 2012 Nirmala

died and therefore the offence was converted into the offence

punishable under Section 302 of the Indian Penal Code. The

Investigating Officer conducted inquest in presence of panch

witnesses. The Inquest Panchanama is at Exh.7. Prior to the

death of Nirmala, on 11th of November, 2012, the clothes of the

appellant were seized under Seizure Memo (Exh.12) and they

were duly sealed. The Investigating Officer also gave a letter

(Exh.60) to Sarpanch, Gram Panchayat, Riddhapur in respect of

the issuance of the certificate of the house of the appellant. By

the said, the ownership of the house whereat the incident took

place was enquired. Exh.62 is the certificate from Sarpanch,

Riddhapur, by which it was informed that the appellant is the

resident of the house in question, however, it stands in the name

of his father. The seized articles were sent to the Chemical

Analyzer. After completion of the investigation, a Charge-sheet

was filed in the Court of Judicial Magistrate (F.C.), Morshi. The

learned Magistrate found that the offence is exclusively triable by

the Court of Sessions and therefore, he committed the case to the

Court of Session.

7. A Charge (Exh.3) was framed against the appellant in

Session Trial No.35 of 2013 for the offences punishable under

Section 302 of the Indian Penal Code. The appellant denied the

charge and claimed for his trial. The prosecution examined in all

ten witnesses to prove the Charge and also relied upon various

proved documents. The learned Judge of the Court below found

that the appellant was guilty and therefore convicted him as

mentioned in the opening paragraph of this judgment.

8. We have heard Shri S.S.Dhengale, the learned counsel

for the appellant and Shri N.B.Jawade, the learned Additional

Public Prosecutor for the State in extenso. According to the

learned counsel for the appellant, nobody has seen the appellant

pouring kerosene on deceased and setting her ablaze. He

submitted that the Dying Declaration recorded by the Executive

Magistrate as well as the Police Officer cannot be relied upon. He

further submitted that the oral Dying Declarations made to Sonali

Salkar (PW 3) and Kasturabai Kapate (PW 4) are highly

suspicious. He submitted, therefore, that the benefit of doubt

should be extended to the appellant and he be released from Jail.

Per Contra, the learned Additional Public Prosecutor

submitted that the reasoning of the learned Judge of the Court

below is justified on the basis of the available evidence on record.

He submitted that there is no reason to disbelieve the written

Dying Declarations as well as the oral Dying Declarations made to

the prosecution witnesses and therefore, he submitted that the

appeal be dismissed.

9. The burn injuries can also be caused either accidentally

or if an attempt is made to commit suicide. From the line of

cross-examination and from the statement of the appellant

recorded under Section 313 of the Code of Criminal Procedure, it

was not even remotely suggested that the deceased suffered burn

injuries accidentally and/or she tried to commit suicide.

Therefore, these two eventualities are completely ruled out.

10. It was the defence of the appellant before the Court

below that the house where the incident has occurred was

standing in the name of his father. A compromise was arrived at

in between him and deceased Nirmala in presence of panch

witnesses, one of whom was examined by the appellant as a

defence witness namely; Govindrao Bidkar (DW 1). It is the

further defence of the appellant in his statement recorded under

Section 313 of the Code of Criminal Procedure that the deceased

was insisting him that the house should be transferred in her name

and also he should do the marriage of her daughter. Since the

house was not transferred in her name nor he has taken any step

for marriage of her daughter, he has been falsely implicated.

11. The deceased was initially married with Keshavrao

Salkar. PW 3 Sonali Salkar is daughter of deceased from

Keshavrao Salkar. Subsequently, deceased embraced 'Mahanubhav'

sect therefore she was deserted by Keshavrao. Another daughter

of deceased is Bhavna and she is residing in 'Mahanubhav Ashram'

at Aurangabad.

After taking 'Diksha' of Mahanubhav sect, the deceased

started residing with the appellant, who also was from

'Mahanubhav' sect, at Riddhapur.

12. The deceased suffered 78% burn injuries as it could be

seen from Exh.9.

13.

The case of the prosecution is based on two Dying

Declarations recorded by Ganesh Thakare (PW 10), Assistant

Police Inspector, and a Dying Declaration recorded by Shri

Narayan Mankar (PW 6), Executive Magistrate. These two Dying

Declarations are at Exhs.59 and 47, respectively. The prosecution

also relies upon the two oral Dying Declarations made by deceased

Nirmala to her daughter Sonali (PW 3) and her mother Kasturabai

(PW 4).

14 Dying Declaration recorded by PW 6 Narayan Mankar,

Executive Magistrate, is at Exh.47. He received an information

from Police Station Chowki at Irwin Hospital, Amravati for

recording the statement of Nirmala. Therefore, he went to Irwin

Hospital and visited Ward No.4 where Nirmala was admitted. He

met Dr.Shama Shajiya (PW 5), who was present in the Burn Ward.

He requested Dr.Shama to examine the patient and to certify

whether patient is in a condition to give her statement.

Accordingly, Dr.Shama examined Nirmala and certified that

Nirmala is in a condition to give her statement. The Certificate

given by Dr.Shama is a Exh.44. After obtaining such certificate

Narayan Mankar, Executive Magistrate, proceeded to record her

statement. It was disclosed by Nirmala to Executive Magistrate

Shri Narayan Mankar that on 10th of November, 2012 the

appellant insisted that the deceased should bring her daughters

but since the girls have failed to come, therefore he poured

kerosene on her and set her ablaze.

After recoding of the statement of Nirmala, Dr.Shama

again examined her and gave Certificate (Exh.45) to the effect

that while recording her statement declarent was fully conscious

and was able to give her statement.

15. We see some force in the submissions of the learned

counsel for the appellant that this Dying Declaration (Exh.47)

cannot be the basis for conviction. The perusal of Dying

declaration (Exh.47) would reveal that after recording the said

Dying Declaration it was not read over to the declarent and there

is no endorsement that the declarent admitted the contents of the

same as true. Further, even from the witness box it is not deposed

by PW 6 Narayan Mankar that statement recorded by him was

read over to the declarent. Further, Dr.Shama has also not

deposed in her evidence that said statement was read over to the

declarent.

A Dying Declaration is a sacrosanct document. The

maker of such document is not available for cross-examination for

its veracity. Therefore, the Dying Declaration should be

absolutely free from all doubts. Insofar as Dying Declaration

(Exh.47) is concerned, there is nothing available on record to

show that the scribe read over its contents to Nirmala and it was

admitted by Nirmala that the contents are true. Therefore, in our

view, the said Dying Declaration cannot be the basis for

maintaining conviction.

16. For securing or maintaining conviction, multiple Dying

Declarations are not necessary. A singular Dying Declaration, if it

is free from all doubts, can be the basis for such conviction.

17. The another Dying Declaration, which is available in the

present case is at Exh.59. This Dying Declaration is recorded by

Shri Ganesh Thakare (PW 10), API. He visited Irwin Hospital at

Amravati which is also known as District General Hospital,

Amravati. There, he met Medical Officer Dr.Manish Rathi

(PW 2). He gave a requisition to the Medical Officer for

examining Nirmala and to certify as to whether she is able to give

her statement. Accordingly, Dr.Manish Rathi examined Nirmala

at 0.05 hrs. on 11th of November, 2012. He found that Nirmala is

in a condition to give her statement and accordingly, on Exh.37

itself, he gave Certificate. After getting such Certificate, Shri

Ganesh Thakare, API, proceeded to record her Dying Declaration.

In her Dying Declaration she stated that she resides with the

appellant though she is not married with him. She further stated

that on 10th of November, 2012 at 6 O'clock when she and the

appellant were present in the house that time the appellant picked

up quarrel with her on account of bringing her daughter at

Riddhapur. During that quarrel he poured kerosene and set her

ablaze and left the house.

After recording Dying Declaration Dr.Manish Rathi

again gave a Certificate that the Dying Declaration was recorded

in his presence and the patient was fully conscious and well

oriented during recording of her Dying Declaration. The said

Certificate is at Exh.38.

Dying Declaration (Exh.59) recites that after recording

of the Dying Declaration the said was read over to the declarent

and she admitted it to be true. Even from the witness box scribe

Shri Ganesh Thakare, API, deposed that the statement was read

over to the declarent. Even Dr.Manish Rathi (PW 2) corroborates

that Dying Declaration was recorded as per say of Nirmala.

Dying Declaration (Exh.59) recorded by Police Officer

Shri Ganesh Thakare compliances with all the prerequisites for

accepting such statement as a Dying Declaration. The evidence of

Dr.Manish Rathi (PW 2) and evidence of scribe Shri Ganesh

Thakare (PW 6) is not shattered at all and therefore, the said

Dying Declaration (Exh.59) can safely be accepted. The

submission of the learned counsel for the appellant that since the

Dying Declaration (Exh.59) is recorded by Police Officer it should

be discarded, is highly misconceived.

18. Insofar as oral Dying Declarations are concerned, those

are given to Sonali (PW 3), the daughter of deceased Nirmala, and

Kasturabai (PW 4), the mother of deceased Nirmala.

The evidence of Sonali (PW 3) and Kasturabai (PW 4)

shows that on 10th of November, 2012 at about 7 pm. Kasturabai

received a mobile call from Nirmala who informed Kasturabai that

they should come immediately as she will not survive because

appellant poured kerosene on her and set her ablaze.

The evidence of Sonali shows that she used to reside

with the appellant and with her mother at Riddhapur. She stayed

there for about nine months. However, since the appellant was

having a evil eye on her, therefore, her mother sent her to other

village by name Jalicha Dev where Kasturabai used to reside. The

evidence of these two ladies shows that the appellant used to insist

upon Nirmala that she should bring Sonali at Riddhapur and on

that count he used to pick up quarrel and used to beat her.

After reaching to hospital at Amravati, when these two

ladies met Nirmala, that time it was disclosed to them by Nirmala

that the appellant was insisting for bringing Sonali at Riddhapur

and since she refused to bring her, therefore, he picked up quarrel

and poured kerosene on her and set her ablaze. The evidence of

these two ladies withstood the searching cross-examination.

These two oral Dying Declarations also show that it is the

appellant who has poured kerosene on Nirmala and set her ablaze.

19. After the arrest, the clothes of the appellant were seized

under seizure Memo (Exh.14), which were emitting smell of

kerosene. Those were duly sealed by the Investigating Officer.

The Chemical Analyzer's report (Exh.32) shows that the clothes of

the appellant namely; full shirt and Dhoti, show the detection of

kerosene residues and the soil, which was seized from the spot,

was also having the residues of kerosene.

20. We, therefore, on the re-appreciation and reevaluation

of the entire prosecution case, reach to the conclusion that the

verdict given by the learned Judge of the Court below convicting

the appellant for the offence punishable under Section 302 of the

Indian Penal Code and its consequent sentence need not be

interfered. Consequently, we pass the following order.

-ORDER-

Appeal stands dismissed.

                      JUDGE   ig                                       JUDGE
                            
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