Shankarrao Ramrao Shinde And Anr vs The State Of Maharashtra
2016 Latest Caselaw 4189 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD




                                                        
                          CRIMINAL APPEAL NO. 506 OF 2015




                                                       
    1.    Shankarrao Ramrao Shinde                               ..       Appellants
          Age. 50 years, Occ. Agriculture,                                [original
                                                                          accused
    2.    Saraswatibai Shankarrao Shinde                                  No.1 & 2]




                                             
          Age. 40 years, Occ. Household,

          Both R/o. Dhasadi,
          Tq. & Dist. Parbhani.
                                  
                                 
                                             Versus

    The State of Maharashtra                                     ..       Respondent

    Mr. Joydeep Chatterji, Advocate for the appellants.
       


    Mr. D.R. Kale, A.P.P. for respondent/State.
    



                                    CORAM          :    A.V.NIRGUDE &
                                                        A.I.S. CHEEMA,J.

                                    RESERVED ON  :      07.07.2016
                                    PRONOUNCED ON :     27.07.2016





    J U D G M E N T : [PER : A.V. NIRGUDE,J.] :-

1. This appeal is directed against judgment and

order dated 28.05.2015 passed by the learned Sessions

Judge, Parbhani, in Sessions Case No.33 of 2014

convicting the appellants for the offence punishable

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under section 302 read with section 34 of the Indian

Penal Code and sentencing them for life imprisonment with

a fine of Rs.5000/- each, in default, six month rigorous

imprisonment.

2. It was alleged that the appellants, who are

henceforth be referred to as accused Nos.1 & 2, on

23.11.2013 between 9.30 a.m. to 10.00 a.m. set victim-

Kantabai on fire. Kantabai died within few hours and

thus they committed her murder. It was also alleged that

they tried to destroy evidence against them and thereby

committed an offence punishable under section 201 read

with section 34 of the Indian Penal Code.

3. The prosecution case depended on depositions of

ten witnesses. The evidence that emerged from these

depositions and other proved documents is narrated as

under :-

4. P.W.1-Pralhad is 33 years old son of victim

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Kantabai. Accused No.1 is his father. Accused No.2 is

second wife of accused No.1. From both the wives accused

No.1 has children. All the members of this family stayed

at village Dhasadi, Tq. Parbhani in one house, but in

two different parts. In one part accused Nos.1 & 2 and

their children stayed. In the other, victim - Kantabai

and her grownup children resided. P.W.1-Pralhad-son of

Kantabai is Karta of her branch of family. He admitted

that accused No.1 as father gave 5 Acres 30 Guntha land

to him as his share. The relationship between Pralhad and

accused Nos.1 & 2 was not cordial.

5. The incident took place on 23rd November, 2013

at about 9.00 a.m. Accused No.1 had sold his horse for

Rs.81,000/-. Victim-Kantabai was demanding 50% of the

sale proceeds. Accused No.1 refused to part with the

amount. On account of this, there occurred quarrel

between accused Nos.1 & 2 on one side and victim Kantabai

on the other.

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6. Hearing this quarrel Pralhad went out to call

Prakash and Nivritti, his friends, so that they would try

to settle the dispute. By the time Pralhad and Prakash

came back, they found Kantabai standing inside the house

and her clothes burning. Prakash's brother Vishnu also

came there. The fourth person who came there was Nivrutti

and all four of them tried to extinguish the fire.

Accused Nos.1 & 2 too were present there. Then Pralhad

arranged to take his mother to hospital for treatment.

All four of them and others carried victim Kantabai to

hospital. During the journey Kantabai disclosed to

Prakash that it was accused Nos.1 & 2, who had set her on

fire. She specifically stated that accused No.2 poured

kerosene on her person and accused No.1 ignited a match

stick for setting her on fire. At about 11.00 a.m. they

reached Civil Hospital, Parbhani, where Kantabai was

admitted. Treatment was started. Doctors enquired with

Kantabai as to how the incident has taken place.

Kantabai narrated certain 'history'.

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7. P.W.2-Dr.Kazi stated that on that day she was on

duty in Civil Hospital, Parbhani. Kantabai was brought

to hospital with 100% burn injuries. Dr.Kazi found

Kantabai conscious, when she was admitted. She started

Kantabai's treatment. She also recorded medico-legal case

and sent a letter to Police chowky. She asked Kantabai as

to what had happened. Kantabai told her as to 'what had

happened'. At that time Kantabai was conscious and

oriented. Kantabai's case papers were also produced on

record, which show following note -

"History given by brother-in-law Nivrutti Jadhav. History of burn

injury, morning 9 a.m.".

8. P.W.3 is Police Constable-Giri, who stated that

at about 1.30 p.m. he received 'MLC' about victim

Kantabai. He went to the ward, but at that time Kantabai

was not conscious. At about 2.15 p.m. he came back and

after verifying from Dr.Kazi that Kantabai was by then

well oriented, he recorded her statement. In her

statement, Kantabai stated to him that on that day at

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about 9.30 a.m. to 10.00 a.m., she and accused No.2 had

quarrel over sale proceeds of the horse. Accused No.1 was

present nearby and stated that he would not pay any

amount to Kantabai. Accused No.2 poured kerosene on

Kantabai's person and accused No.1 ignited a match stick

and set her on fire. She raised alarm. Her sons came

and extinguished the fire. Before and after recording of

this statement the Medical Officer put endorsement about

Kantabai's condition, certifying that she was oriented

and conscious.

9. P.W.6-Baliram Jadhav is Nayab Tahsildar of

Parbhani. On 23.11.2013 at 3.00 p.m. he received a

letter from Police for recording dying declaration. He

went to the burn ward and after obtaining Medical Officer

Dr. Doli's clearance, he too recorded Kantabai's

statement. Even at this time Kantabai disclosed to him

that it was accused No.2, who poured kerosene and it was

accused No.1 who ignited fire to her and before and after

recording of the statement he secured endorsement from

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the "on duty medical officer". On both these occasions,

however, both these witnesses did not record endorsement

in the dying declaration that after recording the dying

declaration, the same was read over to the victim and she admitted

the contents to be truthful . On the basis of the dying

declaration recorded by P.W.3, at about 9.20 p.m.,

police registered offence against the accused under

section 307 read with section 34 of the Indian Penal Code

and initiated investigation. Unfortunately, Kantabai

died at about 10.45 p.m.

10. During investigation scene of offence & inquest

panchanams were recorded. The accused were arrested on

16.11.2013. Their clothes were seized. The Chemical

Analyzer report shows that their clothes were stained

with kerosene.

11. Another significant witness of the prosecution

was P.W.4-Ramakant, the Autopsy Surgeon. He stated that

he had noted 100% burns to the victim.

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12. P.W.5 was Dr. Doli, who stated that on 23 rd

November, 2013 while she was working as Casualty Medical

Officer at Civil Hospital, Parbhani, at 3.30 p.m., she

examined victim Kantabai and found her conscious.

Thereafter, Nayab Tahsildar P.W.6 recorded Kantabai's

statement.

13. On the other hand, accused in addition to their

statements under section 313 of Cr.P.C., recorded

deposition of defence witness - Nivrutti. He stated that

at about 9.30 a.m. on 13.11.2013 while he was near Maruti

Temple, in the village, Pralhad called him. At the

request of Pralhad, he went to his house. He found

accused No.1 standing in front of door of their house.

Accused No.2 was working nearby and victim Kantabai was

present in verandah. Pralhad and Prakash came there.

Pralhad entered the house and at that time they heard

Kantabai's shouts. All of them entered the house (found

Kantabai's clothes on fire) and extinguished the fire.

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Kantabai was carried to hospital. In cross-examination,

this witness admitted that there was dispute between

witness Pralhad and accused No.1 about sharing of sale

proceeds of the horse. He even admitted that Police had

recorded his statement about the incident.

14. On the basis of material enumerated above,

learned Additional Sessions Judge believed the

prosecution case and convicted the accused.

15. Learned Counsel for the accused asserted that

this being a case solely depending on two dying

declarations, the Court should examine the dying

declarations carefully before coming to any conclusion.

He pointed out number of defects in the prosecution case.

I would discuss his submissions while recording my

reasons.

16. The questions that arose for my consideration

are (i) Whether there is delay in making allegations

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against the accused? (ii) Whether the dying declarations

are reliable evidence?

17. The evidence of the prosecution is quite

compact. P.W.1-Pralhad admitted that he, his brother

Nivrutti and others accompanied him when they took victim

Kantabai to Civil Hospital, Parbhani. What happened at

the time of admission is quite significant. On one hand

Pralhad conveniently disclosed that even during the

journey his mother narrated to him that the accused set

her on fire. Despite this, apparently this information

was not disclosed at the time of admission of the

patient. At about 11.30 a.m. the patient was admitted in

the hospital. In routine course the Medical Officer

asked the history of the incident. In this case this

formality was followed. The medical officer Dr.Kazi did

ask the victim "HISTORY". But surprisingly there is no

mention of history in the medical papers. The word

history is mentioned but the description given is "burn

injuries" only. How burn injuries were caused was

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required to be mentioned. That precisely meant "history

of the patient". Generally Doctors in such cases would

hear the history and make following kinds of

endorsements, namely:-

accidental burn or history of assault or suicidal burn or

attempted suicide etc.

18.

In this case the victim had suffered 100% burn

injuries and therefore it was necessary for the Medical

Officer Dr. Kazi to know the history of the case. The

history means how the patient had suffered burn injuries;

whether it was accidental or due to an assault or whether

it was a case of attempted suicide. If the victim had

already told Pralhad and others during journey, as to how

she sustained burn injuries, this information would have

certainly been passed over to the Medical Officer. But

it is clear from the deposition of Dr. Kazi and more

importantly contemporary entries in the case paper that

such information was not given to the Medical Officer. In

absence of the relevant entry in the case paper the

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deposition of Pralhad about oral dying declaration become

doubtful. I am inclined to discard it altogather.

19. The incident took place at about 9.00 a.m. At

that time there occurred quarrel between Kantabai on one

side and the accused on the other. The subject matter of

the quarrel was sharing of sale proceeds of the horse.

Accused No.1 flatly refused to part with any amount to

Kantabai. P.W.1-Pralhad stated that because of this

quarrel, he thought that he should call some villagers

and persuade through them accused No.1 to part with some

amount. Before he could come back, the incident took

place. Unfortunately, there was no eye witness to the

incident. Other family members such as Pralhad's wife,

sisters etc. were not at home. The question is whether

accused No.1 and 2 at that time could have set Kantabai

on fire. Pralhad in cross-examination admitted that

within few minutes he came back to house. In these few

minutes, it is said, the assault took place. The victim

in the dying declarations did not narrate the prelude to

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the incident. She simply stated that "accused No.1

poured kerosene on her person and accused No.1 set her on

fire". But to undertake such activity, the assailants are

required to over-power their victim. Unless the victim

is made stationary, it is not possible for the assailants

to drench their victim's clothes with kerosene. Assuming

that somehow the clothes of victim were soaked in

kerosene, it is further difficult to ignite them with

match stick/s. Even for that the victim must be

stationary. The victim in such situation would not

remain stationary. He or she would try to escape. He or

she would raise alarm, call for help and would try to

escape from the grip of the assailants and would go to

safer place. In other words the victim would not remain

stationery. He or she would move rather violently. If

the incident as described in the dying declaration is to

be believed, it would last for about few minutes and the

victim could have come out of the house raising alarm.

Such incident on day time would have attracted attention

of passersby. Even Pralhad could have rushed and helped

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his mother. On the face of it, the incident as narrated

by the victim in dying declaration is not believable to

me.

20. There is one more serious flaw in the

prosecution case. Both the dying declarations do not

contain mandatory endorsement that the statement was read

over to the victim and she admitted the contents as

correct. The importance of such endorsement was

highlighted by the Supreme Court in the judgment of

Shaikh Bakshu and Ors. Vs. State of Maharashtra, 2007

(11) SCC 269. In the reported judgment the facts were

similar. After dying declaration was recorded, there was

no endorsement on it that the same was read over and

explained to the victim. The Trial Court and the High

Court concluded that even in absence of such endorsement

the Court can presume that the dying declaration was read

over and explained to the victim. The Supreme Court

observed that this view of the Lower Courts was

unacceptable. Taking clue from this ratio, the Division

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Bench of this Court in the judgment of Paikuji s/o.

Shankar Ataram Vs. State of Maharashtra, 2012 All M.R.

(Cri) 2453, observed that absence of endorsement that the

statement was read over and explained to the victim would

amount to "inherent infirmity" in the dying declaration.

I quote following passages from this judgment.

"9. To rule out any remote infirmity, it is necessary that there has to be an endorsement on the dying declaration that the contents were read over and admitted to be correct and as per the say of the

deponent. The said column cannot be treated as an empty formality, since the deponent is not available for cross-examination.

10. Hence, it is a material inherent infirmity in the

dying declaration and, therefore, cannot inspire the confidence of the Court. When the statement was not read over to the deponent and hence not admitted by the

deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the

statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the same and getting it endorsed to be correct was actually followed.

11. Reliance can be placed on the judgment delivered by the Hon'ble Supreme Court in the case of Sheikh Bakshu

and others. Vs. State of Maharashtra, reported in (2008) 1 Supreme Court Cases (Criminal) 679. It is held by the Apex Court that :-

"There was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even though it is not so stated, it has to be

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presumed that it was read over and explained. The view is clearly unacceptable.""

21. This defect in the dying declaration makes both

the dying declarations almost useless. If the dying

declarations are removed from consideration, all that we

have is deposition of Pralhad about oral dying

declaration. I have discussed above how this part of

evidence is untrustworthy. In absence of supporting

documentation at the Civil Hospital on case papers, I

have no hesitation to discard Pralhad's deposition on

this point.

22. The third circumstance against appellant/accused

is that their clothes were found stained with kerosene.

Presence of kerosene on clothes of a villager is not an

unusual circumstance. The kerosene being an usual

commodity used in the household, its presence on the

clothes would make no difference and cannot draw

conclusion that the accused were involved in the

incident. The appeal, therefore, should succeed.

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                                          O R D E R


                    (i)              The Criminal Appeal is allowed.




                                                      
                    (ii)        The   judgment   and   order   dated 

28.05.2015 passed in Sessions Case No.33 of 2014 by learned Additional Sessions Judge, Parbhani is hereby quashed and set aside. The

accused/appellants are acquitted of the offences with which they were charged. Fine amount, if

paid by the accused/appellants be refunded to them.

(iii) The accused/appellants be set at liberty, if they are not required in any other case.

[A.I.S. CHEEMA,J.] [A.V.NIRGUDE,J.]

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