Chandrashekhar Vinayakrao ... vs State Of Maharashtra, Through ...
2016 Latest Caselaw 3695 Bom

        apeal329.14                              1




                                                                                     
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                             
                           NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO.329 OF 2014.




                                                            
       APPELLANT:                  Chandrashekhar Vinayakrao Warghane,
                                   Convict No.C-4529 detained in Amravati
                                   Central Prison, Amravati, aged 40 years, 




                                             
                                   Labour, R/o Kasarkheda, Tq.Dhamangaon
                              ig   (Rly), Distt.Amravati.

                                                : VERSUS :
                            
       RESPONDENT:       State of Maharashtra,
                         through Police Station Officer,
                         Police Station, Mangrul Dastagir,Tq.
                         Dhamangaon (Rly), Distt.Amravati.
      


       -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   



       Mr.R.M.Daruwala, Advocate (appointed) for the appellant.
       Mr.C.A.Lokhande, Addl.Public Prosecutor for the State.
       =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-





                                      CORAM:      B.R.GAVAI AND 
                                                             V.M.DESHPANDE, JJ.

DATE: 11th JULY, 2016.

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

1. Being aggrieved by the judgment and order of

conviction passed by the learned Additional Sessions Judge - 4,

Amravati, in Sessions Trial No.32 of 2012, in 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 further Simple Imprisonment for one month, the appellant

is before this Court in the present appeal.

2.

We have heard Shri R.M.Daruwala, the learned counsel

appointed for the appellant and Shri C.A.Lokhande, the learned

Additional Public Prosecutor for the State, in extenso. Both of

them took us through the entire record and proceedings of

Sessions Case No.32 of 2012.

3. The prosecution case, as it could be gathered from the

evidence, which is adduced during the course of trial is as under :-

Dr.Preeti Shende (PW 10) was attached to Kasturba

Hospital at Sevagram as a Casualty Medical Officer. When she

was discharging her duties, on 2nd of October, 2011 at 1.10 pm.,

patient Vandana Chandrashekhar Warghane was brought to the

hospital by her relatives. She was brought to the hospital as she

sustained burn injuries. Initially, she was brought to the Casualty

Ward and at the time of admission of patient Vandana history was

given that she was set to fire by her husband. Accordingly, Preeti

Shende (PW 10) obtained signature of her relatives and admitted

Vandana in the hospital. When she was examined by Dr.Preeti

Shende she noticed that she was having burn injuries over back,

chest, eyes and abdomen. The injury report is at Exh.73.

4. Police Station Officer of Police Station Mangrul Dastagir

directed Shrikrushna Talan (PW 1), who was attached to Police

station Mangrul Dastagir as Head Constable to record the

statement of injured patient. Accordingly, Head Constable Shri

Talan reached to the hospital at Sevagram. He contacted the

doctor and asked him as to whether the patient is in position to

give her statement. The requisition is at Exh.21. She was

examined by Doctor and reported that she was fit to give her

statement. Thereafter, he proceeded to record her statement.

According to the statement of Vandana, since marriage of about

13 years she was not looking after in a good manner by her

husband (appellant) and he was having illicit relations with one

Kamal Raghatate, which was known to her, therefore she was ill

treated by her husband and used to send her at her parental

house. On 26th of September, 2011 she was called by her

husband therefore she came to her matrimonial house on 27 th of

September, 2011. However, on next day i.e. on 28 th of

September, 2011 appellant abused her in a drunken condition. It

is further stated in the said statement that on the day of the

incident i.e. on 2nd of October, 2011, after lunch, her husband

(appellant) picked up quarrel with her and asked her to leave.

Upon that, when Vandana replied that he has called her by

making phone, on that, the appellant poured kerosene on her and

set her ablaze. The statement recorded by Head Constable Shri

Talan (PW 1) is at Exh.22. The said statement was treated as First

Information Report and a Crime was registered vide Crime No.50

of 2011 for the offence punishable under Sections 307 and 498-A

of the Indian Penal Code. The printed FIR is at Exh.23.

5. After registration of the Crime, the investigation was

entrusted to Ambadas Kisanrao Hiwale (PW 9), who was Police

Station Officer and Police Inspector of Police Station Mangrul

Dastagir. He visited the spot, prepared the spot panchanama

(Exh.7) in presence of panchas. From the spot, he also seized

burnt pieces of clothes, one plastic Can having remaining of

kerosene, one match-box and simple as well as kerosene stained

earth under Seizure Panchanama (Exh.8). On next day, he

arrested the accused/appellant. He also recorded statement of

witnesses. He sent the Muddemal articles to the Chemical

Analyzer. On 15th of November, 2011 Vandana expired during her

treatment therefore intimation (Exh.59) was given to the learned

Magistrate (F.C.), by which it was intimated that the Crime is

converted into an offence punishable under Section 302 of the

Indian Penal Code. After completion of the investigation charge-

sheet was presented in the Court of Law.

6. During the course of the trial, the prosecution has

examined in all eleven witnesses and also relied upon four written

Dying Declarations of Vandana. The appellant also examined two

witnesses, they are DW 1, his daughter Ms.Nayana and

Dr.Shrikant Deshmukh (DW 2), a Medical Practitioner at

Amravati. According to the defence, Vandana was having some

mental disorder and therefore she has committed suicide.

7. When the case of the prosecution is completely based on

Dying Declaration, the conviction can be secured only if the Dying

Declaration is cogent, reliable and trustworthy and it passes the

test laid down by the Court regarding the acceptability of the said.

In the present case, as observed above, there are four Dying

declarations, out of which, Exh.22 was treated as a First

Information Report.

8. From the time of recording of these Dying Declarations,

their sequence will be as follows :-

i) First Dying Declaration (Exh.49),

ii) Second Dying Declaration (Exh.88),

iii) Third Dying Declaration (Exh.22) and

iv) Fourth Dying Declaration (Exh.45).

9.

Dying Declaration (Exh.45), recorded by Shivaji

Dattatraya Gurame (PW 5), PSI, and Dying Declaration (Exh.88),

recorded by Mohd.Mustafa Ab.Gani Shaikh (PW 11), ASI, though

implicate the appellant as a person who has poured kerosene on

Vandana and set her ablaze and though prior to recording of these

two Dying Declarations the certification of fitness was obtained by

this Scribe from the doctor, these two dying declarations are

required to be kept out of consideration, in view of the

authoritative pronouncement of Hon'ble Apex Court in Shaikh

Bakshu and ors. ..vs.. State of Maharashtra, reported in

2007(11) SCC 269, since after recording of these two Dying

Declarations the Scribe did not put an endorsement on these two

Dying declarations that after its recording the said was read over

to Vandana and she admits the contents as true.

That leaves us for scrutiny of the remaining two Dying

Declarations.

As per the timing, Dying Declaration (Exh.49) is first in

time. This Dying Declaration is recorded by Shri Ganesh

Sonowane (PW 7), Executive Magistrate. This prosecution witness

was serving at Wardha. On 2 nd of October, 2011, he received a

Memo to record the Dying Declaration. Accordingly, he visited

Kasturba Hospital at Sevagram. He went in the Burn Ward and

contacted Dr.Hamper Kenchen (PW 3). He discloses his intention

to Dr.Kenchen that he wishes to record statement of patient

Vandana and therefore he requested for her examination. The

request Memo given to Dr.Kenchen is at Exh.33. Accordingly,

Dr.Hamper Kenchen examined patient and recorded his finding on

Exh.33 itself that patient is conscious and is in a condition to give

her statement. Dr.Kenchen even from the witness box has

corroborated that Executed Magistrate Shri Ganesh Sonowane

contacted him thereafter he examined patient Vandana and found

that she was in a fit condition.

After having armed with certification that Vandana is in

a fit condition, Ganesh Sonowane, the Executive Magistrate, also

got himself confirmed about her fitness and he found that she was

in a position to give the statement. The Dying Declaration

recorded by PW 7 Ganesh Sonowane is in question-answer form.

Dying Declaration (Exh.49) shows that on 2nd of October, 2011 at

10.00 am. the appellant poured kerosene on her an set her ablaze.

It is also stated in the said Dying Declaration that appellant used

to pick-up quarrel with her.

After recording the Dying Declaration the Executive

Magistrate read over the said statement to Vandana and after her

admitting its correctness he obtained her left hand Thumb

Impression since Vandana was uneducated lady.

Scribe has put endorsement below Exh.49 that after its

recording the statement was read over to the declarent and she

has admitted it to be true. Not only that, even from the witness

box Ganesh Sonowane, Scribe, has stated before the Court that the

said was read over to Vandana and the contents were admitted by

her. After recording the Dying Declaration Vandana was again

examined by Dr.Kenchen and he gave certificate (Exh.34) to the

extent that at the time of recording of her Dying Declaration she

was in a conscious condition.

10. Dying Declaration (exh.22), which is treated as FIR, is

recorded at 21.10 hrs. on 2nd of October, 2011. The said Dying

Declaration is also having prior certification from Dr.Kenchen. The

said certificate is on Exh.21, the request Memo given by PW 1

Shrikrushna Talan. Dr.Hamper Kenchen has proved said

endorsement when he was in witness box. After having armed

with the certification, Shrikrushna Talan (PW 1) recorded Dying

declaration. The said also reflects that she was subjected to

cruelty at the hands of the appellant. The reason given by the

declarent, in the said statement, for ill-treatment was that the

appellant was having illicit relations with one Kamal Raghatate.

It is also stated in the said Dying Declaration that on 2 nd of

October, 2011 the appellant picked up quarrel and poured

kerosene on her and set her ablaze.

After recording the Dying Declaration the Scribe has

followed the mandate that the statement should be read over to

the declarent. Even the said is reiterated by Shrikrushna Talan

(PW 1) from the witness box. Exh.36 is the certificate issued by

Dr.Kenchen (PW 3) that during the period of recording, patient

was conscious.

11. The submission of the learned counsel for the appellant

is that deceased has committed suicide and for that he has invited

our attention to the evidence of DW 1 Nayana and DW 2

Dr.Shrikant Deshmukh.

12. Dr.Shrikant Deshmukh is M.D. in Psychological

Medicine. His evidence shows that in the year 2003 Vandana was

brought to him and lastly she was brought in February, 2008. The

incident in question has taken place in the year 2011. From the

evidence of Dr.Shrikant Deshmukh, it is clear that his evidence is

of no use since March, 2008 she was not taken to him for any

treatment. Insofar as evidence of DW 1 Nayana is concerned, the

Dying Declaration (Exh.22) also states about her presence in the

house. She is aged about 13 years, According to Nayana, her

mother has poured kerosene on herself. Thereafter she raised a

hue and cry and on that her uncle Vilas came there and

extinguished fire and that time the appellant was in agricultural

field.

Exh.22 also shows that after raising a hue and cry from

Nayana, her brother-in-law came there. He extinguished the fire

and thereafter Vandana was taken to the hospital. As observed in

the proceeding paragraphs, when Vandana was admitted in

Kasturba Hospital, Sevagram the noting was taken by Dr.Preeti

Shende in Exh.73. It shows that she was brought by her relatives

and the history that was given was that her husband has burnt

her. In the present case Vilas is not examined. There was no

occasion for Dr.Preeti to take an endorsement on her own on

Exh.73 that the burn injuries were caused by husband of Vandana.

In that view of the matter, we see no reason to accept the evidence

of Nayana, a child witness.

13. Both the Dying Declarations (Exh.49 and Exh.22)

inspire confidence. Both show that at 10 O'clock in the morning

kerosene was poured by appellant and he set Vandana ablaze. All

the requirements to pass the test to accept a statement as Dying

Declaration are passed by these two statements. The learned

counsel for the appellant was unable to point out any suspicious

circumstance hovering around these two Dying Declarations. In

that view of the matter, we see no reason to upset the findings of

guilt recorded by the Court below. Consequently, we pass the

following order.

-ORDER-

Appeal stands dismissed.

Fees to be paid to the learned counsel appointed by

Legal Aid to represent the appellant is quantified at Rs.5000/-

(Rs.Five thousand only).

                      JUDGE                                            JUDGE




                                        
       chute