Bombay High Court
Narendra S/O Ramdas Meshram And 2 ... vs State Of Maharashtra, Through ... on 12 July, 2016
Bench: B.R. Gavai
apeal411.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.411 OF 2014.
APPELLANTS: 1. Narendra Ramdas Meshram,
aged about 27 years, Occu:Labour,
R/o Mundipar Sadak Tq.Sakoli,Distt.
Bhandara.
ig 2. Amrut Ramdas Meshram,
aged 33 years, Occu: Labour,
r/o Mundipar Sadak, Tq.Sakoli, Distt.
Bhandara.
3. Sitabai Ramdas Meshram,
aged about 50 years, Occu: Labour,
R/o Mundipar Sadak, Tq.Sakoli,
Distt.Bhandara.
: VERSUS :
RESPONDENT: State of Maharashtra,
through Police Station Officer,
Police Station, Lakhani, Tq.Lakhani,
Distt.Bhandara.
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Mr.R.M.Daga Advocate with Ms.F.N.Haidari, Adv. for appellants.
Mr.S.M.Ukey, Addl.Public Prosecutor for the State.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 12th JULY, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. The present appeal is directed against the judgment and
order of conviction passed by the learned Additional Session
Judge, Bhandara, dated 23rd of May, 2014, in Session Trial No.46
of 2009, convicting the appellants for the offence punishable
under Section 302 read with Section 34 of the Indian Penal Code
and directed them to suffer imprisonment for life and to pay a fine
of Rs.1000/- each of them and in default of payment of fine to
suffer further rigorous imprisonment for three months.
2. During the pendency of the trial itself, original accused
no.3 Sitabai Ramdas Meshram has expired. A Charge was framed
against the appellants and deceased accused for the offence
punishable under Section 498-A read with Section 34 of the Indian
Penal Code and for the offence punishable under Section 302 read
with Section 34 of the Indian Penal Code. The accused persons
were acquitted of the offence punishable under Section 498-A read
with Section 34 of the Indian Penal Code and no appeal is
preferred against the said acquittal.
3. We have heard Shri R.M.Daga, learned counsel for the
appellants and Shri S.M.Ukey, the learned Additional Public
Prosecutor for the State. According to the learned counsel for the
appellants, the case which is based on Dying Declaration of
deceased Kavita must fail in view of the authoritative
pronouncement of Hon'ble Apex Court in the case of Shaikh
Bakshu and ors. ..vs.. State of Maharashtra, reported in 2007
(11) SCC 269 and also in view of the decision of this Court in the
case of Vilas @ Bandu Punjabrao Misal ..vs.. State of
Maharashtra reported in 2016(1) Mh.L.J.(Cri) 493.
4. Appellant Narendra is the husband of deceased whereas
appellant no.2 Amrut is brother-in-law. The date of the incident
is 3rd of January, 2009. Dr.Yogesh Shamrao Nakade (PW 8) was
on C.M.O. duty in General Hospital Bhandara on 3 rd of January,
2009. On the said day, Kavita was admitted in General Hospital,
Bhandara with 75% burn injuries. Accordingly, he informed the
police by intimation letter vide Exh.48.
5. Purushottam Waghmare (PW 7) was attached to
General Hospital, Bhandara as a A.S.I. He had been to Kavita
Meshram for recording her statement. He gave request letter
(Exh.41) to Medical Officer to examine the patient. According to
this witness, doctor examined and gave certificate and thereafter
he recorded her statement. The said statement so recorded by
Purushottam Waghmare is at Exh.42. This statement (Exh.42)
was treated as a First Information Report and was registered the
same as such by Bhaurao Chachane (PW 1), a Police Head
Constable, attached to Lakhani Police Station. The printed FIR is
at Exh.19. The said FIR was registered for the offence punishable
under Sections 498-A, 307 read with Section 34 of the Indian
Penal Code vide C.R.No.7 of 2009.
6. PW 6 Bhikanrao Bibane, P.S.O., Lakhani took the
investigation of Crime No.7 of 2009. He visited the spot and
prepared the spot panchanama (Exh.33). He also recorded the
statement of parents of the deceased. He caused arrest of the
accused persons. Articles scattered on the spot were seized by
him under seizure Panchanama (Exh.34). Muddemal properties
were sent by him to Chemical Analyzer. Further investigation
was carried by PW 9 Purushottam Badewale who filed the Charge-
sheet.
7. The Dying Declaration, which is treated as First
Information Report is scribed by Purushottam Waghmare (PW 7).
He gave request letter to doctor at Government Hospital,
Bhandara to examine the patient and to give certificate as to
whether she is in a fit condition. The said letter is at Exh.41.
According to Scribe Purushottam Waghmare, doctor has examined
and put his endorsement on Exh.41 itself that "fit for statement".
However, the doctor who has examined patient Kavita and who
has given aforesaid endorsement is not examined by the
prosecution.
Even during the substantive evidence, Purushottam
Waghmare did not state that he himself was satisfied about the
fitness of Kavita. It is not necessary that for recording Dying
Declaration by the Scribe there should be a Medical Certificate.
However, in such case the person who takes down the statement
of the declarent must himself be satisfied that the patient is in a
condition to give his or her statement. In the present case,
neither Exh.42 shows the endorsement by Purushottam
Waghmare, a Scribe, that he himself was satisfied about the fitness
of Kavita regarding giving her statement nor during his
substantive evidence he has stated so. In that view of the matter,
the Court cannot rely on the said Dying Declaration since there is
nothing available on record about the fact that the Kavita was in a
fit condition to give her statement.
8. Another Dying Declaration is recorded by a Naib
Tahsildar. He is Nanaji Wasade (PW 4). On 4 th of January, 2009
Police sent letter (Exh.23) requesting the Tahsildar to record the
Dying Declaration of Kavita who is admitted in the Government
Hospital at Ward No.18. Accordingly, Shri Wasade went to
hospital. There, he met Dr.Avinash Bokade (PW 5). He
requested Dr.Bokade to examine Kavita and to certify whether she
is able to give statement. Dr.Avinash Bokade examined Kavita and
gave certificate (Exh.51) that the patient is in a fit condition to
give statement. Thereafter, Nanaji Wasade proceeded to record
statement of Kavita who has stated that on the day of the incident
a quarrel took place between her and deceased accused i.e. her
mother-in-law. Therefore, she went back side of the house and sat
under a Nim tree. Thereafter, the present appellants came and
they caught hold her hands and her mother-in-law (deceased
accused) poured kerosene and set her ablaze. The said Dying
Declaration is at Exh.24.
The perusal of the Dying Declaration shows that the said
Dying Declaration is absent in respect of the endorsement made by
the Scribe that after recording the Dying Declaration it was read
over to the declarent/Kavita and she admits it to be true.
Therefore, the said Dying Declaration cannot be relied upon and
cannot be made basis for conviction of the accused persons in view
of the authoritative pronouncement of the Hon'ble Apex Court in
the case of Shaikh Bakshu ..vs.. State of Maharashtra, cited supra.
The said view is also followed by various judgments of this Court
and also in the reported case of Vilas @ Bandu Punjabrao Misal,
cited supra.
9. The prosecution has also examined PW 2 Anandabai
Suryawanshi and PW 3 Prabhu Suryawanshi. They are the parents
of deceased. According to them, deceased made oral Dying
Declaration to them. Evidence of PW 2 Anandabai that after
disclosing to them by deceased, they came to Police Station
Lakhani on 3rd of January, 2009 itself and filed a complaint against
the accused persons. On the said aspect, PW 3 Prabhu - her
husband, is not corroborating her. The visit of parents to Police
Station as claimed by PW 2 Anandabai found to be incorrect in
view of the evidence of Investigating Officer PW 6 Bhikanrao
Bibane, who has stated in his evidence that on 3 rd of January,
2009 parents of deceased did not come to the Police Station
Lakhani for lodging the complaint.
According to these two witnesses, when oral Dying
Declaration was made, they were accompanying the deceased
from village Mundipar to the hospital. At the hospital itself, there
was a Police Chowky and therefore, they could have disclosed
about the oral Dying Declaration, immediately. Their police
statements are recorded on 7th of January, 2009. No explanation
is given for belated recording. In that view of the matter, it will
really doubtful as to really oral Dying Declaration was made to the
parents by the deceased, as claimed by them.
10. In view of the aforesaid discussion, we have no
hesitation in our mind that the appellants are required to be
acquitted and accordingly we pass the following order.
-ORDER-
The Criminal Appeal is allowed.
The conviction and sentence awarded to the
appellants/accused for the offence punishable under Section 302
read with Section 34 of the Indian Penal Code vide Judgment and
order dated 23rd of May, 2014 passed by Additional Sessions
Judge, Bhandara in Sessions Trial No.46 of 2009 are quashed and
set aside and the appellants/accused are acquitted of the offence.
The fine amount, if paid, be refunded to the accused.
The appellants are ordered to be released and set at
liberty forthwith if not required in any other case.
JUDGE JUDGE
chute
