Bombay High Court
Gajanan S/O Hanmantu Jiddewar (In ... vs The State Of Maharashtra, Through ... on 9 March, 2016
Bench: B.R. Gavai
1 apeal.496.13.jud
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.496 OF 2013
Appellant : Gajanan s/o Hanmantu Jiddewar,
Aged about 26 years, Occ. Nil,
R/o Sunna, Tq. Kelapur, Distt. Yavatmal.
-- Versus --
Respondent : The State of Maharashtra,
ig Through the Police Station Officer,
Pandharkawda, District Yavatmal.
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Shri R.M. Daga, Advocate for the appellant.
Shri J.Y. Ghurde, A.P.P. for the respondent.
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CORAM : B.R. GAVAI & A.S. CHANDURKAR, JJ.
DATE : MARCH 9, 2016
ORAL JUDGMENT :- (Per A.S. Chandurkar, J.)
01] By this appeal, the appellant takes exception to the
judgment dated 21/08/2013 passed by the learned Additional Sessions
Judge, Kelapur in Sessions Trial No.23/2011 whereby the appellant has
been convicted for an offence punishable under Section 302 of the
Indian Penal Code (for short, the Penal Code) and has been sentenced
for imprisonment for life. He has also been sentenced to pay fine of
Rs.2,000/- and in default thereof to undergo further simple
imprisonment for one year.
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02] The facts as can be gathered from the case of the
prosecution are that the appellant was married to one Laxmi. As the
appellant was having illicit relations with some other lady, he disliked
his wife. The appellant used to harass her and used to sent her to her
parental home. On 22/04/2011, at about 01:00 p.m., the appellant had
beaten his wife-Laxmi and had asked her to leave her house. He
thereafter poured kerosene upon her and set her on fire. The parents of
the appellant, however, poured water upon her and took her to the
hospital. She was initially taken to the hospital at Pandharkawada and
then to Yavatmal. Her statement was recorded by a Police Officer
attached to Yavatmal Police Station. On 26/04/2011, she was shifted to
the hospital at Sevagram where she expired on 27/04/2011 at 09:30
p.m. Her dying declaration was recorded by the Naib Tahasildar.
Initially, an offence under Section 307 of the Penal Code was registered
and after her death, the offence punishable under Section 302 of the
Penal Code was added.
03] After completing the investigation, the appellant was
charged for the offences punishable under Section 302 and Section 498-
A of the Penal Code. As the appellant did not plead guilty, he was tried
after the case was committed to the Sessions Court. At the conclusion of
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the trial, the appellant came to be convicted for the offence punishable
under Section 302 of the Penal Code, but was acquitted for the offence
punishable under Section 498-A of the Penal Code. Hence this appeal.
04] Shri R.M. Daga, the learned Counsel for the appellant
submitted that the conviction of the appellant was not sustainable in
law. According to the learned Counsel, the dying declarations [Exh.32,
Exh.49 and Exh.66] could not have been relied upon for convicting the
appellant. He submitted that the dying declaration at Exh.66 indicated
that there was no endorsement about the mental state and physical
condition of the deponent when the same was recorded. The thumb
impression of the deponent was also not attested by the Police Officer,
who had recorded said statement. As regards the dying declaration
dated 26/04/2011 is concerned, it was submitted that only the
endorsements made by the Medical Officer were exhibited vide Exh.49
and Exh.50. The scribe, who had written down the dying declaration
had not been examined and therefore, the contents of said dying
declaration could not be said to be proved. As regards the dying
declaration dated 27/04/2011 at Exh.32 is concerned, it is submitted
that though the same bears the thumb impression of right hand of the
deponent, both the hands of the deponent had been bandaged and,
4 apeal.496.13.jud
therefore, it was not possible that her thumb impression could have
been taken. He also submitted that the Naib Tahsildar had admitted in
his cross-examination that when the dying declaration was collected, the
Medical Officer had given his endorsement without examining the
patient. It was, therefore, submitted that considering the various
infirmities in all the three dying declarations, the same could not have
been the basis for convicting the appellant. In support of his
submissions, the learned Counsel for the appellant placed reliance on
the decisions of the Hon'ble Supreme Court in Surinder Kumar vs.
State of Haryana - 2011[12] SCALE 171 and State of Punjab vs. Gian
Kaur and another - 1998 CRI.L.J. 2061. He also relied upon the
judgments in Vilas @ Bandu Punjabrao Misal vs. State of
Maharashtra - 2016 (1) Mh.L.J. (Cri.) 493 and Datta s/o. Tukaram
Malwad vs. The State of Maharashtra - 2014 ALL MR (Cri) 3967.
It was then submitted that there were two oral dying
declarations vide Exh.40 and Exh.42 on record. The same were,
however, a weak piece of evidence and if the written dying declarations
were excluded from consideration, the conviction of the appellant could
not be based upon these two oral dying declarations. It was, therefore,
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submitted that the appeal deserves to be allowed and the appellant was
entitled to be acquitted.
05] Shri J.Y. Ghurde, the learned Additional Public Prosecutor
for the State supported the judgment of the Sessions Court. He
submitted that there were three dying declarations on record dated
22/04/2011, 26/04/2011 and 27/04/2011. The statements made
therein were consistent with each other and the appellant had been
clearly implicated by the deponent. He submitted that the statements
made therein were truthful and were only against the appellant. He
further submitted that even the deposition of the witnesses examined
below Exh.40 and Exh.42 implicated the appellant and, therefore, the
learned Judge of the Sessions Court had rightly convicted the appellant.
He submitted that the decisions relied upon by the learned Counsel for
the appellant were distinguishable and were not applicable to the facts
of the present case. He, therefore, sought for dismissal of the appeal.
06] With the assistance of the learned Counsel for the parties,
we have gone through the entire record and have also perused the
impugned judgment. For the purposes of proving the homicidal death of
Laxmi, the prosecution has examined PW-3 Dr. Ninad Nagrale at Exh.34.
6 apeal.496.13.jud
This witness conducted the postmortem and issued the postmortem
report at Exh.35. The probable cause of death has been mentioned as
septicemia and shock as a result of 69% burn injuries on the entire body.
It has been further opined that there was no natural disease condition
detected that would have caused or contributed to the death. This
report has not been very seriously challenged in the cross-examination
of said witness. It is, therefore, clear that Laxmi expired on account of
shock and burn injuries. The death of said Laxmi is, therefore, proved to
be homicidal.
07] To bring home the guilt of the appellant, the prosecution
has relied upon three dying declarations. The first dying declaration is
dated 22/04/2011 at Exh.66. This dying declaration has been recorded
by PW-10 Deepak Gawande below Exh.65. This witness has stated that
he was attached to Yavatmal City Police Station and after the Medical
Officer examined the patient and had given his opinion that the victim
was well oriented and was able to give her statement, he recorded the
same. He obtained the thumb impression of the victim. On that basis,
the crime came to be registered and the F.I.R. was at Exh.67. In his
cross-examination, this witness has admitted that he had not asked the
Medical Officer his name. He did not ascertain from the office that the
7 apeal.496.13.jud
person treating the patient was a doctor or not. He admitted that the
thumb mark of the victim was not attested by him.
08] Perusal of this dying declaration at Exh.66 indicates that the
same does not bear any endorsement of the Medical Officer that the
victim was in a proper state of mind and well oriented to give the same.
There is no such endorsement either at the commencement of recording
the dying declaration or at the end when the dying declaration was
completed. In absence of such endorsement by the Medical Officer, the
credibility of the same becomes doubtful. Similarly, the thumb
impression of the deponent has also not been attested. In Vilas
Punjabrao Misal (supra), it was held by the Division Bench of which one
of us (B.R. Gavai, J) was a party, that if there is no endorsement by the
Medical Officer that the deponent was in a mentally and physically fit
state to give the dying declaration, the same cannot be said to be free
from doubt. Hence, the dying declaration at Exh.66 cannot be relied
upon for sustaining the conviction of the appellant.
09] The next dying declaration is dated 26/04/2011. The
prosecution examined PW-8 Dr. Kamllesh Zaria at Exh.48. This witness
was attached to the Kasturba Hospital, where Laxmi was admitted. This
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witness has stated that on examining the patient, she was found fit and
well oriented to give her statement. He put an endorsement at the
beginning of recording of the statement as Exh.49. After her statement
came to be recorded, he again examined her and found that she was fit
and well oriented. He, therefore, put another endorsement at Exh.50. It
is, however, to be noted that the scribe of said dying declaration has not
been examined by the prosecution. This witness is also silent in that
regard and he does not state as to who recorded said dying declaration.
In absence of the evidence of the person who had scribed the dying
declaration, the contents of said dying declaration have remained to be
proved in accordance with law.
10] That leaves us with the third dying declaration which is at
Exh.32. This dying declaration is dated 27/04/2011. The prosecution
has examined one Shriram Urkunde as PW-2 below Exh.31. This witness
was working as Naib Tahasildar at Wardha. On receiving necessary
instructions, he went to Kasturba Medical Hospital and after contacting
the Medical Officer who examined her to be fit, he recorded the dying
declaration. According to him, the deponent was examined prior to
recording her statement as well as after the same was completed. He
has further stated that as the deponent was unable to give her signature,
9 apeal.496.13.jud
he took her thumb mark. The endorsements by the Medical Officer as
regards the mental and physical state of fitness of the deponent are at
Exh.51 and Exh.52.
In his cross examination, this witness has stated that there
were bandages on the person of the victim and in addition to the same,
intra injections were also being administered to her. It has been stated
that both the palms of the victims were found burnt.
11] It is to be noted that the aforesaid evidence indicates that
Laxmi was bandaged and that both her palms had been found burnt. In
such situation, it has not been explained as to how she was in a position
to give her thumb impression. Further perusal of Exh.32 indicates that
the thumb impression bears clear ridges and curves. In State of Punjab
(supra), the victim therein had suffered 100% burns and her dying
declaration indicated presence of clear ridges and curves of the thumb
impression. It was held by the Hon'ble Supreme Court that the Medical
Officer who was examined therein could not satisfactorily explain as to
how the thumb impression on the dying declaration could have such
clear ridges and curves especially when the victim had 100% burns over
her body. In the present case, Laxmi had about 69% burns. There is no
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explanation by the Medical Officer as regards the presence of such
ridges and curves on the thumb impression. Moreover, the evidence
indicates that the palms were found burnt and the body was also
bandaged. The learned Counsel for the appellant has rightly placed
reliance upon the judgment of the Hon'ble Supreme Court in Surinder
Kumar (supra) wherein also there was absence of explanation as to the
manner in which the thumb impression of the deceased was obtained
when her entire body was burnt. On this count, therefore, the dying
declaration at Exh.32 also cannot be relied upon to support the
conviction of the appellant.
12] Once these dying declarations are excluded from
consideration on account of various legal infirmities as pointed out
herein above, the oral dying declarations at Exh.40 and Exh.42 may be
taken into consideration. However, it is to be noted that an oral dying
declaration is a weak piece of evidence as observed by the Division
Bench in Vilas Punjabrao Misal (supra). PW-5 Ganpat Radewar was
examined at Exh.40. He is the father of Laxmi. This witness stated that
Laxmi had narrated the incident of the appellant pouring kerosene on
her and setting her on fire. This witness has denied various suggestions
given to him in his cross-examination. PW-6 Gangadhar Radewar was
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examined at Exh.42. He was the uncle of said Laxmi. He has also stated
that Laxmi had narrated the incident of she being set on fire by the
appellant. This witness was also given various suggestions in his cross-
examination so as to discredit his version. However, as stated herein
above, it would not be safe to uphold the order of conviction merely on
the basis of the oral dying declarations made by the victim to her father
and uncle.
13] The learned Judge of the Sessions Court has convicted the
appellant by relying upon all the dying declarations. However, as stated
herein above, these dying declarations have not been proved to have
been recorded in accordance with law and same cannot be taken into
consideration for supporting the order of conviction. Similarly, the
other two oral dying declarations at Exh.40 and Exh.42 being a weak
piece of evidence, cannot be the only basis for upholding the conviction
of the appellant. The appellant is, therefore, entitled for benefit of
doubt. Hence, the following order :
i. The criminal appeal is allowed.
ii. The conviction and sentence awarded to the
appellant/accused for the offence punishable under Section
12 apeal.496.13.jud
302 of the Indian Penal Code vide judgment and order
dated 21/08/2013 passed by the Additional Sessions Judge,
Pancharkawada in Sessions Trial No.23/2011 are quashed
and set aside and the appellant/accused is acquitted of the
offence.
iii. The fine amount, if paid, be refunded to the accused.
iv. The order passed by the learned trial Judge insofar as
disposal of property is concerned, is maintained.
v. The appellant is ordered to be released and set at liberty
forthwith, if not required in any other case.
JUDGE JUDGE
*sdw
