Bombay High Court
Anil Ramaji Surkar (In Jail) vs State Of Maharashtra, Through ... on 20 June, 2016
Bench: B.R. Gavai
1 apeal254.14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 254/2014
Anil s/o Ramji Surkar,
aged 34 years, Occ. Labour,
r/o Chandrashekhar Ward,
Pandharkawda, Tq. Kelapur,
Dist. Yavatmal. .....APPELLANT
...V E R S U S...
State of Maharasthra, through
Police Station Officer, P. S.
Pandharkawda. ig ...RESPONDENT
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Mrs. Nisha Gajbhiye, Advocate Appointed for appellant.
Mrs. M. N. Hiwse, A.P.P. for respondent.
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CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :-
JUNE 20, 2016
J U D G M E N T (Per : V. M. Deshpande, J.)
1. The appellant with his other eight relatives faced charged in
Sessions Trial No.12/2008 for an offence punishable under Sections
498-A, 304-B, 307 and 302 of the IPC for ill treatment and causing
death of Savita wife of the appellant by pouring Kerosene on her and
setting her ablaze.
The learned Additional Sessions Judge, Pandharkawda vide
judgment dated 21.02.2014 acquitted all the accused including the
appellant of the offence punishable under Sections 498-A , 304-B of the
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IPC, however the appellant was convicted for the offence punishable
under Section 302 of the IPC and he was directed to suffer
imprisonment for life and to pay a fine of Rs.2,000/- and in default to
suffer imprisonment for one year.
2. The facts giving rise to the present appeal are as under:
The deceased Kavita was married to the appellant prior to
seven years. The date of incident is 08.11.2007. The spot of the
occurrence is the house of the appellant situated at Chandrashekhar
Ward, Pandharkawda. The spot panchanama is at Exh.65.
Shri Sayyad Babar (PW12) was attached to Police Station,
Pandharkawda as Assistant Sub Inspector. On the said date, one Police
Constable from Yavatmal brought statement of Savita. On the basis of
the same, he registered an offence punishable under Section 307, 498-A
of the Indian Penal Code vide Crime No.169/2007. The printed FIR is
at Exh.-86.
Savita was admitted in the main hospital at Yavatmal.
While she was in the hospital during the course of her treatment, she
succumbed to the burn injuries on 13.11.2007. The said fact was
reported by Dr.Rajendra Kadukar to the Police Station, Yavatmal City.
Assistant Sub Inspector Mr. Patil recorded the said intimation vide AD
No. 0/2007 and it was given for investigation to Govind Hirekar (PW9).
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Govind Hirekar (PW9) conducted inquest on the dead body
in presence of panchas (Exh.39). He also sent the body for the post
mortem vide requisition (Exh. 56). He received provisional post
mortem report (Exh.-58) and thereafter all papers were forwarded to
Police Station, Pandharkawda for further investigation.
The case diary Crime No.169/2007 for the offence
punishable under Section 307, 498-A of the IPC was entrusted to Shri
Yogesh Pardhi (PW10), who was working as PSI at Police Station,
Pandharkawda. He visited the spot and prepared the spot panchanama
Exh.-65. He also seized various articles lying on the spot such as pieces
of saree, a burnt full pant, one plastic can containing Kerosene, match
box and burnt match sticks, burnt bangle pieces under seizure memo
(Exh.-66). He also recorded statement of the neighbours. He caused
arrest of the appellant under the arrest memo Exh.-67. He seized shirt
smelling kerosene under seizure memo Exh.-68.
On 16.11.2007, it was reported to him that the injured
Savita has succumbed to her injuries and, therefore, the offence
punishable under Section 304-B, 302 were added in the charge-sheet.
Muddemal articles were sent to the Chemical Analyser. After
completion of the investigation, final report was presented.
3. We have heard Smt. Nisha Gajbhiye-Wasnik, the learned
counsel representing the appellant and Smt. Hiwse, learned A.P.P. for
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the State. With their able assistance, we have gone through the record
and proceedings. According to the submissions of the learned counsel
for the appellant, the dying declaration on the basis of which the
appellant is convicted, is not reliable, inasmuch as according to her
submission, it could be gathered that at 9.30 p.m. Savita was not in a
condition to speak therefore her Dying Declaration should not be
accepted. She also relied on the reported case in Umakant and
another.vs.State of Chhattisgarh; (2014) 7 SCC 405 for discarding
dying declaration. She, therefore, submits that the appeal be allowed.
4. Per contra, the learned A.P.P. submitted that the dying
declaration of Savita was recorded by the Naib Tahsildar after getting
certification from the Doctor that Sarita was in a condition of giving her
statement. She submitted that there was no reason for these two
Government officers to falsely implicate the appellant. She submitted
that the dying declaration inspires confidence and, therefore, the appeal
is required to be dismissed.
5. As observed in the opening paragraph of this judgment,
though the appellant was convicted for the offence punishable under
Section 302 of the IPC, he was acquitted of the offence punishable
under Section 498-A and 304-B of the IPC and, therefore, we need not
dilate on the said issue and the evidence in that behalf.
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The appellant is convicted on the basis of the dying
declaration of Savita. In view of the post mortem report Exh.-84 and in
the light of the evidence of Dr. Rajendra Kadukar (PW6), it is clear that
Savita met with an unnatural death and according to the post mortem
report, burn injuries on her body were to the extent of 94%.
6. It is not the case of the prosecution or from the line of the
cross-examination at the hands of the appellant or his defence that
Savita received burn injuries due to the accident or she has committed
suicide. Thus, the court has to see whether the homicidal death of
Savita caused by burn injuries is authored by the appellant.
7. The evidence of Shalik (PW1), the father of the deceased
shows that Savita was required to leave her matrimonial house. Then,
there was a compromise in between the parties and the appellant
executed a bond of good behavior. The said bond is available on record
at Exh.34. The execution of this bond is also admitted by the appellant
when the appellant was examined by the learned Judge of the Court
below recorded his statement under Section 313 of the Cr. P. C.
The prosecution has also brought on record that in the year
2006, the deceased reported to the Police Station, Pandharkawda about
the abuses which she met at the hands of the appellant. Pandharkawda
police officers recorded a NC against the appellant under section 504,
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506 of the IPC and also proceedings under Section 107, 116 of the
Cr.P.C. were initiated against him. These two are brought on record at
Exh.51 and 52 respectively and those are proved by Subhash Dongre
(PW8), the police personnel.
8. Dr. Rajesh Pawar (PW5) was discharging his duties as Naib
Tahsildar at Yavatmal. On 08.11.2007, he received a requisition from
Police Station to record statement of Savita. Accordingly, at 9.00 p.m.
he went to the hospital for the said purpose. He went to Burn Ward
and consulted the Medical Officer who was treating her. The Medical
Officer examined the condition and made an endorsement that she is
not in a condition to give her statement. The said endorsement was
made at 9.31 pm.
Dr. Ramesh Pawar, the Naib Tahildar again gave a memo to
the Medical Officer at 11.35 p.m. to examine the patient and to certify
as to whether she is in a position to give her statement. Dr. Rajendra
Kadukar (PW6), the Medical Officer again examined her and then he
found that Savita was well oriented and she is in a position to make a
statement and accordingly he made the endorsement. He proved the
said endorsement in the nature of fitness certificate and it is at Exh.-45.
Armed with medical certification, Dr. Ramesh Pawar (PW2)
started recording statement of Savita. He first gathered her name from
her and, thereafter asked about the incident. That time it was stated to
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the Naib Tahsildar that at 4.00 p.m. that her husband Anil, the
appellant poured kerosene and set her ablaze. She also disclosed that
he picked up quarrel with her and was uttering that he will not keep
her. After recording the dying declaration, the scribe Dr. Rajesh Pathak
read over the statement to Savita who admitted the contents of the
same. The statement recorded by Dr. Rajesh Pawar is at Exh.-42.
After recording of her statement the Medical Officer,
Dr.Rajendra Kadukar again examined the patient and thereafter he
made an endorsement Exh.-46 that during the course of recording of
the statement, the patient was fit.
In the searching cross-examination of the scribe and the
Doctor, nothing could be elicited from them to discredit their testimony.
Further, there is nothing on record to show that these two independent
persons were nourishing any animus against the appellant. Further,
from the evidence of Shalik Jadhao (PW1), Vasant Jadhao (PW2),
Shakuntala Jadhao (PW3), it appears that the oral dying declaration
was also made to them about the incident. However, their evidence
appears to have been exaggerated to the extent that they tried to
implicate the other accused persons also.
9. Sanjay Chawre (PW4) is the neighbor. His house is situated
adjacent to the house of the appellant. His evidence shows that the
appellant came out of the house by raising shouts "Jal Gai". His
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evidence shows that this prosecution witness doused Savita by water
and extinguished the fire and then he took Savita to the rural hospital,
Pandharkawda.
10. During the course of the investigation, when the appellant
was arrested, a full shirt emitting smell of Kerosene was seized under
the seizure memo Exh.-63. The seizure memo shows that after the
seizure, the shirt was duly sealed. This shirt along with other muddemal
were sent to the Chemical Analyser for chemical analysis by the
Investigating Officer under requisition Exh.70. The Chemical Analyser's
report is available on record at Exh.-82. The full shirt, which was
received at Chemical Analsyer in a sealed condition. After its analysis,
the Chemical Analyser found that it was having residues of Kerosene.
When this incriminating circumstance was put to the appellant when his
statement was recorded under Section 313 of Cr. P. C. he did not offer
any explanation.
The Dying Declaration Exh.-42 inspires confidence. It is free
from all doubts. The same is recorded by the Naib Tahsildar after
getting certification from Dr. Rajendra Kadukar. Merely because at 9.30
p.m., the patient was not in a condition to speak that does not mean
that at 11.35 p.m. when the patient was reexamined by Dr. Rajendra,
she was not in a position to speak. When Dr. Kadukar was under the
cross-examination of the learned cross-examiner, there is nothing
9 apeal254.14.odt
brought on record to show that she did not regain consciousness. On
the contrary, in his cross-examination, it is brought on record that
during 9.30 to 11.00 she was provided with treatment. We need not
doubt the version of Dr. Kadukar about regaining the consciousness by
Savita in the absence of any material on record. Therefore, the
submission as tried to be put forth by the learned counsel for the
appellant in that behalf are required to be rejected.
A solitary dying declaration can be the basis for conviction
if the said dying declaration inspires confidence.
11. Once we reach to the conclusion that Exh.-42 is free from all
sorts of doubts and it was reduced into writing by the Naib Tahsildar
when he found that Savita was in a condition to give her statement, we
see no reason to interfere with the judgment and order of conviction.
Hence, we make the following order.
ORDER
(i) The appeal is dismissed.
(ii) Fees of the learned counsel appointed for the
appellant is quantified at Rs.5,000/-.
(V. M. Deshpande) (B. R. Gavai)
kahale
