Shankar S/O Pandurang Nikhare vs State Of Maharashtra, Through ...
2016 Latest Caselaw 2624 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                 
                                   NAGPUR BENCH, NAGPUR




                                         
                            CRIMINAL APPEAL NO.296 OF 2014
                             
                            
      Shankar s/o. Pandurang Nikhare,
      Aged about 35 years, Occ. Band Master,
      r/o. Bhande Plot, Zopadpatti,
      Nagpur.                       ..........      APPELLANT
      
   



              // VERSUS //





      State of Maharashtra,
      Through P.S.O., Sakkardara,
      Distt. Nagpur.                   ..........       RESPONDENT





      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                    None for the appellant/accused.
                Mr.M.K.Pathan, A.P.P. for the Respondent/State.
      -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




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

DATE : 8.6.2016.

ORAL JUDGMENT (Per B.R.Gavai, J) :

1. Being aggrieved by the Judgment and Order passed by

the learned Sessions Judge, Nagpur in Sessions Trial No.10 of 2009

thereby convicting the appellant for the offence punishable under

Section 302 of the Indian Penal Code and sentencing him to undergo

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

default to suffer further rigorous imprisonment for six months, the

appellant has approached this Court.

2. The learned Counsel for the appellant is not present in

the Court. However, Their Lordships of the Apex Court in the case of

K.S.Panduranga .vs. State of Karnataka reported in 2013 ALL MR

(Cri) 1485 (S.C.) have observed thus :-

" It is not obligatory on the part of the Appellate Court in all circumstances to engage amicus curiae in a criminal appeal to argue on behalf of the accused failing which the judgment

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rendered by the High Court would be absolutely unsustainable. It is one thing to say that the court should

have appointed an amicus curiae and it is another thing to

say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in

putting his appearance to argue the matter. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits

without the presence of the counsel does not deserve acceptance."

3. In that view of the matter, we have proceeded to hear

the appeal on merits. We have scrutinized the entire evidence with

the assistance of the learned A.P.P.

4. The prosecution case, as could be gathered from the

material placed on record, is thus :

Deceased Anusaya was married to one Rakeshkumar Kardam in

the year 2001. She had one son and daughter from the said husband.

Said Rakeshkumar deserted Anusaya in the year 2005 and thereafter,

in the year 2007, Anusaya married the accused.

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5. It is the prosecution case that, on 5th May, 2008, at

around 6 a.m., the accused asked the deceased to prepare a cup of

tea. The accused then also uttered that she shares bed with her

brother. When deceased Anusaya told accused not to abuse in such a

manner, the accused abused the deceased in a filthy language and

quarrelled with her. He picked up a plastic bottle containing

kerosene and poured the same on the person of Anusaya, lit a match

stick and set her on fire. Deceased Anusaya shouted loudly. On

hearing her screams, the neighbourers came there; they threw earth

on her and extinguished the fire. After sometime, her mother namely

Saraswatibai, her father namely Ganpatrao and others came there

and took Anusaya to the Medical College Hospital, Nagpur.

6. On receipt of the information at the Police booth, Police

Naik Sanjay Nilkanthrao Bhute (PW-6) visited Ward No.4 and

recorded statement of Anusaya below Exh.25. Punamchand

Bahadure, PSI took entry in the Station diary below Exh.32 about the

information received by him from the Police Booth of the Medical

College. He visited the Medical College Hospital and recorded

statement of Anusaya below Exh.34. The same was treated as oral

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report and on the basis of the same, offence under Sections 307 and

498-A of the Indian Penal Code came to be registered vide Crime

No.151 of 2008.

7. At the request of the Investigating Officer, Trimbak

Kamble (PW-1), Special Judicial Magistrate also recorded her dying

declaration. On the next day, at 9.30 a.m., Anusaya succumbed to

the burn injuries. As such, the case was altered to one under Section

302 of the Indian Penal Code.

8. After the post mortem was conducted, further

investigation was done and at the conclusion of the investigation,

charge sheet came to be filed in the Court of Judicial Magistrate,

First Class Corporation Court No.1, Nagpur for the offence

punishable under Sections 302 and 498-A of the Indian Penal Code.

Since the offence punishable under Section 302 of the Indian Penal

Code was exclusively triable by the Court of Sessions, the case came

to be committed to the learned Sessions Judge. The charges were

framed for the offences punishable under Sections 302 and 498-A of

the Indian Penal Code below Exh.5. The accused pleaded not guilty

and claimed to be tried. At the conclusion of the trial, the learned

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trial Judge acquitted the accused of the offence punishable under

Section 498-A of the Indian Penal Code and passed the order of

conviction and sentence as aforesaid. Being aggrieved thereby, the

present appeal.

9. The present case revolves around three written dying

declarations and oral dying declarations.

10.

The first dying declaration is recorded by Sanjay

Nilkanthrao Bhute (PW-6), who was on duty at Medical Police Booth

when deceased Anusaya was admitted in the hospital. He narrates

about recording of statement of Anusaya. The statement recorded by

him is below Exh.25. In the said dying declaration, the deceased

clearly states that, in the morning, her husband was giving her

abuses in filthy language and he poured kerosene from the plastic

bottle on her person and set her on fire by a match stick. The second

dying declaration is recorded by Punamchand Nathuji Bahadure,

Investigating Officer (PW-8). His evidence is below Exh.31. The

dying declaration recorded by him is below Exh.32. In the said dying

declaration, she states that, at around 6 a.m., her husband abused

her in filthy language and poured kerosene from a plastic bottle on

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her person and set her on fire. On the basis of said statement below

Exh.32, the F.I.R. came to be lodged below Exh.35.

11. The third dying declaration is recorded by Trimbak

Shivdas Kamble (PW-1). His evidence is below Exh.9. He states in

his evidence that he had received requisition from Police Station,

Sakkardhara that patient Anusaya had sustained burn injuries and is

admitted in Medical College Hospital, Nagpur in Ward No.4 and he

was requested to record her dying declaration. He states that

thereafter he went to Ward No.4 in Medical College, Nagpur. He

gave a letter to the House Officer and asked him about mental

condition of the patient. He further states that the House Officer had

given opinion on the requisition made by him to the Medical Officer

that the patient was fit to give statement. The said is exhibited below

Exh.11. He states that he then went to the patient and told her

relatives and police personnel to go outside and then gave his

identification to the patient. He further states that he asked some

questions to her to find out whether she was fit to give statement. He

further states that since she answered the questions properly, he

started recording statement of Anusaya in question and answer form.

She disclosed that the incident had taken place on Monday at 6 a.m.

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She states that at 6 a.m. when she was preparing tea, the quarrel

took place between her and her husband. The accused was abusing

her and was saying that she was sharing bed with her brother. The

accused was also saying that the persons of that vicinity are

maintaining her and her husband was beating her. Thereafter, her

husband poured kerosene from the plastic can on her person and

ignited a match stick and set her on fire and ran away. She was

burning and shouting loudly. The neighbourers came there and

extinguished fire. Police came and brought her to hospital and

admitted her. Witness Trimbak Kamble (PW-1) further states that,

after recording her statement, the contents were read over to

Anusaya. She admitted the same to be true and correct. He further

states that thereafter he took her right thumb impression on it.

Thereafter, he had taken Certificate certifying that she was in a fit

state of mind while recording her statement. Though he is cross-

examined, his evidence has remained unshattered.

12. Perusal of Exh.11 would reveal that the requisition was

given by Trimbak Shivdas Kamble (PW-1) to the House Officer, Ward

No.4 requesting him to certify as to whether the patient was in a fit

state of mind to give declaration. Accordingly, the Medical

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Officer/Registrar (Burns) has given a Certificate that she was fit to

give statement. Perusal of Exh.12 i.e. dying declaration would reveal

that, initially, Trimbak Kamble (PW-1) has asked various questions to

the deceased to find out as to whether she was in a fit state of mind

to give dying declaration. Only after being satisfied that correct

answers were given, he has recorded actual dying declaration. After

recording her dying declaration, the same was read over to her and

thereafter, the patient admitted the same to be as per her version.

The Medical Officer/Registrar (Burns) has also given his

endorsement that, at the time of recording statement, the patient

was fit. After the dying declaration below Exh.12, the Executive

Magistrate has signed the Certificate below Exh.13 certifying that,

prior to recording of the dying declaration, he had asked the relatives

of the deceased and the police personnel to go outside. He has also

recorded that, as per his opinion, the deceased was in a fit state of

mind to make declaration. The Certificate further shows that he has

recorded statement of the maker as per her version after the doctor

had given necessary Certificate. The Certificate further states that the

doctor was present while recording the said statement.

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13. Dr.Rahul Arun Chirmale (PW-5) corroborates the version

given by Trimbak Kamble (PW-1). He states that the requisition was

given to him by Trimbak (PW-1) below Exh.11 and he has given the

Certificate that the patient was fit to give statement. He has further

stated that the dying declaration below Exh.12 bears his Certificate

and it is in his handwriting.

14. It could thus be seen that, while recording the dying

declaration below Exh.12, Trimbak Kamble (PW-1) had complied

with all the necessary requirements. His evidence clearly shows that

he was satisfied that the deceased was in a fit state of mind to make

declaration. Not only that, but his evidence is duly corroborated by

the evidence of Dr. Rahul Chirmale (PW-5).

15. The Constitution Bench of the Apex Court in the case of

Laxman .vs. State of Maharashtra reported in AIR 2002 SC 2973

has observed thus :

" What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the

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statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately

holds the same to be voluntary and truthful. A certification

by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

16. We are of the considered view that the dying declaration

below Ex.12 is truthful, cogent and reliable and is of such a nature

which inspires confidence regarding genuineness of the same. Not

only that, but the other two dying declarations recorded by Sanjay

Nilkanthrao Bhute (PW-6) below Exh.25 and the one which is

recorded by P.S.I. Punamchand Nathuji Bahadure (PW-8) below

Exh.34, on the basis of which the First Information Report below

Exh.35 was registered, are also of similar nature.

17. We find that, in view of the three consistent dying

declarations which we find to be trustworthy, reliable and cogent,

prosecution has proved beyond reasonable doubt that it is the

accused herein who has committed the crime. In that view of the

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matter, we do not find it necessary to consider the oral dying

declarations.

18. In the result, the present Criminal Appeal is found to be

without merits and as such, the same is dismissed. No order as to

costs.

                              ig    JUDGE                          JUDGE

       
                            
      jaiswal