Kalyan Arjun Shewale, C.No. 7439, ... vs The State Of Mah
2016 Latest Caselaw 2676 Bom

    sgp                                     1                           APEAL19.2013




                                                                                
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                        
                               CRIMINAL APPEAL NO. 19 OF 2013

    Kalyan s/o Arjun Shewale,
    Age : 40 years, Occu. Labourer,




                                                       
    R/o. Akola, Tq. Ambajogai,
    Dist. Beed, Now convict No. C/7439,
    Central Jail, at Aurangabad.                         ..      Appellant

                    Versus




                                            
    The State of Maharashtra,      
    Through Police Inspector,
    Police Station Ambajogai (Rural),
    Tq. Ambajogai, Dist. Jalna.                          ..      Respondent
                                  
                                        ..............
             Mrs Manjusha S. Jagtap, Advocate (appointed) for the appellant
                       Mr P. N. Kutti, APP for respondent/State
                                        ..............
           
        



                                                   CORAM :       A.V.NIRGUDE &
                                                                 V.L. ACHLIYA, JJ.

DATED : 09.06.2016.

ORAL JUDGMENT : (Per A. V. Nirgude, J.)

1. Heard learned counsel for the respective parties.

2. This appeal challenges the judgment and order dt. 26.11.2012

passed by ld. Additional Judge-I, Ambajogai in Sessions Case No. 105 of 2011

convicting the appellant for offence punishable u/s 302 of the Indian Penal

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Code and sentenced him to suffer life imprisonment and to pay fine of Rs.

1,000/-, with a default clause. The appellant was the husband of the victim. It

is alleged by the prosecution that, the appellant murdered his wife by setting

her on fire on 30.08.2011.

3. The prosecution depended on deposition of eight witnesses. Out

of which, three witnesses are most important. Witness No. 1 Police Constable

- Ramakant and Witness No. 5 is Naib Tahsildar - Balaji, both deposed that,

they recorded dying declarations of the victim on 31.08.2011, in which the

victim narrated the incident. Witness No. 2 is the mother of deceased Keshar,

who stated, when she learnt about the incident she came to the hospital and

heard from the victim as to how she suffered burn injuries. In other words,

this witness tried to prove oral dying declarations of the victim. Other

witnesses are formal and are not required to discuss at length. The ld. Judge

of the trial Court believed the prosecution case, which is recorded through the

above mentioned three depositions of the three witnesses.

4. The ld. Counsel for the appellant, who is 'Amicus Curiae' and

appointed by us to prosecute the appeal, asserted that, the Court should not

convict the appellant mainly on the basis of the dying declarations.

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5. Indeed, there is no other evidence against the appellant other

than dying declarations narrated to witness Nos. 1, 2 and 5. However, on

perusal of these depositions along with their cross-examinations, we are of

the view that, these dying declarations are truthful and believable piece of

evidence. We are aware that, dying declaration as such is not a strong

evidence and the Court should be circumspect while placing reliance on such

solitary piece of evidence. However, in this case, the dying declarations are

proved through unimpeachable witnesses nos. 1 and 5.

6. Prosecution witness No. 1 stated that, at about 12.00 to 1.00 pm

while he was on Hospital duty, he received MLC papers from the Hospital and

then he went to Burn Ward for recording dying declaration of the victim. He

obtained certificate of the treating Doctor that the patient was conscious,

coherent and fit to give statement. Victim narrated him the entire incident

and he recorded the same verbatim. The victim told him that, on the

previous day at about 6.00 p.m., the appellant -her husband- demanded

money from her for drinking liquor and then assaulted her. At that time, the

victim's parents-in-laws came to her rescue. The appellant even abused them.

Thereafter, she stated that the appellant took kerosene can and poured some

kerosene on her person and set her close on fire. Again her parents-in-laws

and other relatives came to extinguish the fire. She even admitted that, the

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appellant also came in her rescue. Immediately thereafter, she was taken to

Hospital. Similar statement was made to prosecution witness No. 5, who as

said above, was Naib Tahsildar and recorded victim's dying declaration in her

own words. PW-5 has recorded the dying declaration as per requisition

received from the concerned Police Station. The dying declarations recorded

by Ramakant Thorat (PW-1) and by Tanaji Chitale (PW-5) are at Exh. 24 and

46, respectively. PW-7 Dr. Amit Aiwale, the Medical Officer attached to

S.R.T.R. Hospital, Ambajogai has deposed before the Court that, on 31.08.2011

while he was on duty and present in the Hospital, Police had recorded the

dying declaration of deceased-Asha. Before recording the dying declaration,

he had examined the deceased-Asha and found her in a fit state of mind to

give statement. Accordingly, he made endorsement in his handwriting and

signature over Exh. 24. He has further deposed that, on completion of the

recording of statement of the deceased, he again examined deceased Asha

and found her to be in a fit statement of mind and able to give statement and

accordingly he made endorsement with his signature on dying declaration -

Exh. 24. He has further deposed that, at about 4.00 p.m. on the request of

Tahsildar of Ambajogai, he again examined deceased-Asha and found her in a

fit statement of mind to give statement. He has identified his endorsement as

well as signature on dying declaration at Exh. 24. He has further deposed

after conclusion of the recording of dying declaration that, he gain examined

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her and recorded his endorsement on dying declaration at Exh. 24. All these

three witnesses were cross-examined at length. Nothing has been elicited in

their cross-examination to raise any doubt as to the truthfulness of dying

declarations recorded by PW-1 & PW-5. Besides written as well as oral dying

declarations made by the deceased are found to be truthful, there is

corroboration to these dying declarations. There is no evidence brought on

record to accept the contention that deceased was tutored to make such

statement. So also, there is no evidence brought on record to establish that

deceased was not in a fit state of mind to make such statement. It is pertinent

to note that, the deceased has stated in her dying declaration that, after she

was set on fire by the accused, her in-laws, son and the accused put off the

flames and brought to the Hospital. She has further stated that, while

extinguishing fire on her person, the accused had also sustained some burn

injuries. The fact relating to incident stated by deceased find due

corroboration from the evidence on record. The accused had sustained burn

injuries on his palm. It is further pertinent to note that, the deceased had not

made any attempt to falsely implicate other family members.

7. The accused had taken the defence that, the deceased had

sustained the burn injuries due to explosion of stove. However, the spot

panchanama rules out the case of accidental fire due to explosion of stove.

On the contrary, the spot panchanama depicts that, no stove was found on the

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spot. The seizure of the burn pieces of clothes and other material seized from

the spot establishes that the residues of kerosene detected on half burnt

pieces of clothes of the deceased as well as the kerosene can and matchstick

box found on the spot. Thus, there is absolutely nothing on record to doubt

the truthfulness of the dying declaration made by the deceased to PW-1 & PW-

5 as well her mother PW-2.

8. It is well settled that, dying declaration shall have to be dealt with

due care and upon proper circumspection. The Court is expected to

scrutinize the dying declaration carefully and must ensure that declaration is

not the result of tutoring, prompting or imagination. It is always open to act

upon the dying declaration even without getting it corroborated when the

Court is satisfied that such an evidence is quite truthful and could be relied

upon without corroboration. It is also settled position in law that, if after

careful scrutiny of dying declaration the Court is satisfied that it is true and

free from any effort to induce the deceased to make a false statement and if it

is coherent and consistent, then same can basis to convict the person even if

there is no corroboration. As discussed in the foregoing paras, both the dying

declarations are found to be truthful and reliable. So also, written as well as

oral dying declarations are found to be consistent and no discrepancies as

such noticed in the written as well as the oral dying declarations. The fact

that, accused had sustained burn injuries to his palm and conduct of the

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deceased not to implicate the members of the family also guarantees the

truthfulness of the dying declarations recorded by PW-1 & PW-5. There is no

evidence to establish that, the dying declaration made by the deceased was

outcome of tutoring made by her relatives. The testimony of Dr. Amit Aiwale

establishes that the deceased was in a fit state of mind to give statement.

Thus, considering the over all evidence in the matter, we are of the view that,

the reasonings and findings recorded by the trial Court are consistent with

the evidence on record. There is absolutely no perversity in the reasons and

findings recorded by the trial Court. In view of this, no case has been made

out to interfere with the judgment and order passed by the trial Court in

exercise of appellate jurisdiction.

9. The learned counsel for the appellant invited our attention to the

copies of the medical case record maintained with the S.R.T.R. Medical

College & Hospital, Ambajogai, where the deceased was admitted and treated.

The medical case record in respect of the evidence is produced at Exh. 53.

The learned Counsel has invited our attention to the case papers wherein one

noting in respect of clinical history was noted by Doctor. In the noting, the

history was given as "Accidental Burn while cooking 1 Hr back". By referring

this endorsement, the learned counsel has tried to argue that deceased has

sustained the burn injuries accidentally and subsequent dying declarations

are an improved version to implicate the appellant. We are not inclined to

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accept this contention for the sole reason that, mere production of the

medical case papers is not sufficient to prove the said noting made in the

medical case papers. Although the prosecution has examined Dr. Amit

Aiwale (PW-7) and produced the medical case record at Exh. 53, no attempt is

made to establish that such statement was made by the deceased-Asha. It is

pertinent to note that, the deceased was admitted in hospital by her in-laws

and brother-in-law. Generally, the history is taken from the person who

brings such patient for admission in hospital. Naturally, in order to hide the

real fact, such history might have been given by the parents of accused or the

accused. There is no evidence brought on record that such history was given

by the deceased-Asha. In absence of any evidence that the alleged history

was given by the deceased, the contention of the learned counsel that the

deceased had improved her version while recording the dying declaration by

PW-5, cannot be accepted.

10. In view of above, we find no merit in the appeal. In the result,

the Appeal should fail. Accordingly, the Criminal Appeal is dismissed.

11. The learned counsel appointed to represent the appellant shall be

paid fees according to the rules.

           [V.L.ACHLIYA, J.]                               [A.V. NIRGUDE, J.]