Bombay High Court
Ganesh Rama Charhatkar And Anr vs The State Of Mah on 29 March, 2016
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.512 OF 2012
1 Ganesh Rama Charhatkar,
age: 24 years, Occ: Education,
R/o Limba Ruie, Tq. and
District Beed.
2 Sushila w/o Rama Charhatkar,
age: 40 years, Occ: Household,
R/o Limbai Ruie, Tq. & District
Beed. Appellants
Versus
The State of Maharashtra,
through Police Station,
Beed Rural Police Station,
Tq. & District Beed. Respondent
Mr.N.S.Ghanekar, advocate for appellants.
Mr.S.Y.Mahajan, APP for Respondents.
CORAM : R.M.BORDE &
K.L.WADANE, JJ.
DATE : 29th March, 2016
PER COURT:
1 This is an appeal by original accused No.1 Ganesh
and accused no.2 Sushila objecting to the conviction and sentence
imposed by the Additional Sessions Judge on 24.07.2012 in
Sessions Case No.104 of 2011. Both the accused are held guilty for
commission of offence punishable under Section 302 read with
Section 34 of the Indian Penal Code and are sentenced to suffer
rigorous imprisonment for life and to pay fine of Rs.500/- each, in
default, to suffer simple imprisonment for six months. They are
also held guilty for commission of offence punishable under
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Section 304-B read with Section 34 of the Indian Penal Code and
are sentenced to suffer rigorous imprisonment for seven years and
to pay fine of Rs.500/- each, in default to suffer simple
imprisonment for six months. Accused nos.1 and 2 are convicted
for commission of offence punishable under Section 498A read
with Section 34 of the Indian Penal Code and are sentenced to
suffer rigorous imprisonment for one year and to pay fine of
Rs.500/-, in default, to suffer simple imprisonment for six months.
The trial Court has directed that all the sentences shall run
concurrently.
Accused No.3 Rama has been held not guilty for any of
the offence and has been acquitted.
4 Accused no.1 Ganesh is husband of deceased Rekha,
whereas, accused no.2 Sushila and accused no.3 are the in laws
and parents of accused no.1. It is disclosed that marriage of
accused no.1 with deceased Rekha was solemnized some three
years prior to the date of incident. It is alleged that deceased
Rekha was subjected to illtreatment and cruelty soon after ¾
months of the marriage. Accused were demanding a sum of
Rs.80,000/- for purchasing motor cycle for Ganesh, husband of
the deceased. Deceased was being abused on account of her
complexion and was blamed for not able to cook food properly.
5 It is alleged that on 04.04.2011 at about 1730 hours, at
the matrimonial home of deceased Rekha, while she was cleaning
tiles, accused no.2 Sushila abused her saying that she was living
in bad condition and was not working properly and they do not
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want to cohabit with her. She further shouted that she should be
killed. Saying so, accused no.1 Sushila lifted kerosene can of 5
liters and poured kerosene on the person of deceased. Accused
No.2 ignited match stick and threw it on the person of deceased
Rekha. It is alleged that while deceased Rekha was crying,
accused no.3 Rama was at the door, however, he did nothing.
Thereafter accused no.1 Ganesh extinguished fire by pouring water
on her person and she was taken to Civil Hospital, Beed.
6 Prosecution witness No.3 Ashabai, mother of the
deceased and P.W.5 Gorakh, father of deceased were informed.
They came to the hospital and upon inquiry, deceased disclosed
them that the accused committed the act of setting her on fire.
Statement of victim Rekha was recorded initially by Police Head
Constable Jagtap. Thereafter Special Executive Magistrate Abhay
Maske was called who also recorded her dying declaration at
Exhibit-68. Similarly, video recording was done while deceased
was disclosing the reason for sustaining injuries to her cousin
brother P.W.7 Mohan. The video recording was done by P.W.9
Police Head Constable Ujagare and transcript of the same was
prepared by PSI Vilas Kadam - PW 11. Deceased Rekha succumed
to the injuries on 06.04.2011. P.W.11 Vilas Kadam conducted
investigation and submitted charge sheet to the Court.
7 Accused, at the trial, pleaded not guilty to the charge
and claimed to be tried.
8 In order to bring home guilt of the accused,
prosecution examined as many as 11 witnesses, whereas, defence
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examined one Shri Shivaji Bhokre, the neighbour. After recording
evidence of prosecution witnesses and statements of accused,
learned Judge of the trial Court found accused nos.1 and 2 -
appellants herein guilty for the charges levelled against them and
imposed sentence of imprisonment, as specified in the 1st
paragraph.
9 During the course of hearing of appeal, on earlier
occasion, the Division Bench of this Court, by an order dated
08.01.2016, directed transmission of the record back to the
Sessions Judge for recording evidence of Police Head Constable
Vijay Jagtap, as a Court witness, who recorded dying declaration
of deceased, which was first in time. It is recorded in the order
passed by this Court that on 04.04.2011, two different officers
recorded two different statements of the victim. It was further
observed that both these statements ought to have been proved
before the trial Court, however, earlier statement recorded by
Police Head Constable Vijay Jagtap was not proved. Even accused-
appellant did not make any attempt either to get the statement
proved either through cross examination or by prosecution
witnesses or by requesting the Court to record evidence of
concerned Police Head Constable. This Court has observed that
the statement is of vital importance and as such, in exercise of
powers conferred under Section 391 of the Criminal Procedure
Code, this Court directed the learned Sessions Judge to record
evidence of Police Head Constable Vijay Jagtap. It was also
directed to the learned Sessions Judge to record deposition of Vijay
Jagtap; and to record findings as to whether deposition recorded
is believable or not.
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10 In adherence to the directions issued by this Court,
deposition of Vijay Jagtap was recorded as court witnesses at
Exhibit-94 and he has been cross examined by the prosecution.
The learned Trial Judge has also recorded his finding in
paragraph no.6. The learned Judge has opined that on going
through the evidence of witness, it comes to fore that he was on
duty at the Police Chowki, Civil Hospital Beed, at the relevant
time. He received MLC letter. As a part of his duty, he went to
record statement of the victim. It is further recorded by the trial
Court that he i.e. police constable appears to have followed
standard protocol for recording of statement in such cases. He
took the doctor with him and got the patient examined and after
satisfying himself about the physical and mental condition of the
patient, her statement came to be recorded. It is further observed
that the Constable read over contents to the patient and she had
admitted its correctness. Again the Constable got examined the
victim by doctor and found that she was in a position to make
statement. At the time of recording statement of the deceased, the
in-laws, who were present there, were directed to move out of the
ward. The learned Judge has observed that on perusal of the
dying declaration at Exhibit-96, he finds it containing sufficient
inculpatory material against the accused. It is further stated that
it cannot be said to be favouring the accused. The learned Judge
has further observed that deposition of Police Head Constable is
believable and as such, the learned Judge has submitted his
findings to this Court, as directed.
11 The prosecution, in order to substantiate allegations
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against the accused, mainly relies upon the evidence in the form of
dying declaration of deceased Rekha, recorded by Naib Tahsildar at
Exhibit-67 as well as video recording of oral dying declaration of
the deceased, as told to P.W.7 Mohan Mane and recorded by Vilas
Ujgare, Police Constable. The transcript of the video recording is
prepared by P.W.11- P.S.I. Vilas Kadam and is at Exhibit-56. P.W.5
Ganesh Tawre speaks about the oral dying declaration of the
deceased as told to him.
12 The defence has admitted the dying declaration
recorded by Court Witness No.1 - Police Head Constable Vijay
Sopan Jagtap, at Exhibit-96, which is first in time.
13 P.W.8 Omprakash Sabale is the doctor examined by
the prosecution, who has deposed about condition of the patient
while her dying declaration was recorded by Naib Tahsildar Shri
Abhay Maske. The doctor has deposed that one Constable and
Tahsildar approached him and requested to examine the patient by
name Rekha who was admitted in the hospital for treatment. The
Naib Tahsildar, P.W.10 was intending to record statement of the
victim. He claims that he went to the burn ward, examined victim
Rekha and endorsed on the paper brought by Naib Tahsildar as
regards condition of the patient at 10.00 p.m. He recorded that the
patient is conscious and oriented. It is further claimed that the
Tahsildar started recording of statement after receiving
endorsement and at the conclusion of the statement, he again
examined the patient and put his endorsement thereon.
13 P.W.10 - Abhay Maske, is the Naib Tahsildar and he
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has deposed that on 04.04.2011, he received letter from P.S.O.,
Outpost, Civil Hospital, Beed at about 9.30 p.m. He was requested
to record statement of victim namely Rekha Ganesh Charhatkar,
who had sustained burn injuries. Copy of the letter is produced at
Exhibit-65. On his arrival to the hospital, he met Dr.Sabale and
requested him to show the patient. It is stated that he along with
Dr.Sable went to the Burn Ward. He asked relatives of the
deceased to go out of the ward. He then requested Dr.Sabale to
examine the patient and give opinion as to whether she is in a
position to give statement. After the doctor examined patient and
recorded opinion as regards condition of the patient, he proceeded
to record statement of the deceased. It is claimed by the witness
that he introduced himself to the victim and put her certain
questions to ascertain as to whether the patient is in a position to
answer questions. It is stated that the witness had noted down
the answers given by the patient, in his own hand writing. The
deceased told to the Executive Magistrate that her marriage took
place on 12.04.2008 or 12.04.2007 prior to three years of the
incident. So far as matrimonial relations, she told that they were
very bad. Deceased told the Executive Magistrate that on
04.04.2011, at about 5.30 p.m., while she was preparing meals and
was washing her hands, her mother-in-law told that she is
behaving very badly, that she does not work and she should be
killed. Saying so, mother-in-law took out the kerosene can and
poured kerosene on her person, whereas, her husband ignited
match stick and threw it on her person. Her father-in-law was
standing outside. She cried for help. Her mother-in-law ran away,
whereas, her husband poured water on her person and
extinguished fire. Her husband brought her in the hospital and
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she was taking treatment in the hospital. The Executive
Magistrate deposed that the statement was voluntary one. He read
over the statement to her and she admitted correctness thereof.
14 On perusal of the statement, it appears that the
Executive Magistrate used printed proforma for recording the
statement. Certain general questions were already printed on the
sheet of the paper. The endorsement of the doctor on the dying
declaration denotes the time as 10.00 p.m. and after conclusion of
recording of the statement, the doctor has made endorsement at
10.30 p.m., below the statement. On perusal of the deposition, it
appears that although the Executive Magistrate recorded statement
of the deceased, original was kept with him and carbon copy was
handed over to the Investigating Officer. It is surprising as to why
the Executive Magistrate kept original dying declaration with him
in stead of handing over same to the Chief Judicial Magistrate.
15 Apart from this, it is surprising that the dying
declaration is recorded on printed sheet of paper and questions put
to the victim were already printed. In the cross examination, it is
stated by the Executive Magistrate that the deceased was
surrounded by her relatives. The possibility of deceased having
been tutored by the relatives cannot be ruled out.
16 The prosecution has also placed reliance on the
deposition of P.W.7 Mohan Mane, cousin of deceased. It is claimed
by the witness that he visited the hospital on 04.04.2011 and on
reaching the hospital, he put certain questions to the deceased.
The video recording of the questions put by the witness and the
answers given by the victim was done. On perusal of the
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transcript at Exhibit-56 prepared by P.W.11 Vilas Kadam, a
conclusion can be drawn that the deceased was suffering severe
pains and all the while was requesting the brother to call for
doctor. The deceased, it appears that, was persuaded to talk
although she was suffering severe pains and she had given
answers to the questions put by P.W.7. She has stated in answer
to question, 'as to who poured kerosene'?, that Sushila poured
kerosene and Ganya ignited match stick. The reference to `Ganya',
according to prosecution, she mean 'accused no.1', whereas,
'Sushila' means 'accused no.2'.
P.W.3 Ashabai and P.W.5 Gorakh Taware are parents of
the deceased. Both the witnesses deposed that deceased Rekha
was not being treated well by the accused and their family
members. She was being illtreated at the matrimonial home.
P.W.5 Gorakh has stated about the oral dying declaration made by
victim Rekha to him after his arrival at the hospital, wherein, she
implicated her mother-in-law and husband as the culprits.
18 It is disclosed from the charge sheet that immediately
after admission of the patient i.e. deceased Rekha to the hospital,
Vijay Sopan Jagtap, Police Head Constable posted at Outpost in
Civil Hospital at Beed received MLC letter from the hospital
informing that a patient has been admitted to the hospital who had
received burn injuries. On receipt of the letter, he visited the
hospital and contacted the doctor. The Head Constable informed
doctor that he desires to record statement of the patient and
requested him to examine the victim and certify about physical and
mental condition of the patient to make statement. The Police
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Head Constable recorded statement of the deceased. The
deceased, in her dying declaration, disclosed that on 04.04.2011,
while she was preparing meals at her residence, her mother-in-law
started abusing her. The mother-in-law, during the course of
quarrel, asked her to end her life by setting herself on fire. Her
husband, who was there, told her that he would not maintain her
and that she should earn her livelihood by washing utensils and
clothes of other persons. She also told about demand of amount
made by her mother-in-law and husband. It is further disclosed by
the deceased, in the statement recorded by Police Head Constable,
that her father-in-law, mother-in-law and husband always used to
beat her and abuse her. She was fed up with the illtreatment
meted out to her and as such, she took out kerosene from the can,
poured it on her person and set herself on fire. She sustained
burn injuries all over the body. She started shouting. Her mother-
in-law ran away, whereas, her husband poured water on her
person and tried to extinguish the fire. He took her to the Civil
Hospital in a white Indica car. She claims that her husband,
mother-in-law and father-in-law are responsible for the incidence
and as such, she has grievance against them.
19 The dying declaration recorded by Police Head
Constable Jagtap was not proved by the prosecution since the
prosecution opted not to examine the witness. The defence also
did not call Head Constable Jagtap to depose before the trial
Court. After the instant appeal reached this Court, the Division
Bench of this Court, considering vital importance of the evidence
of Police Head Constable Vijay Jagtap as well as necessity of
proving dying declaration of the deceased recorded at 7.55 p.m.,
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first in time, directed the trial Court to record evidence of Police
Head Constable Vijay Jagtap as the Court witness. In pursuance
to the directions issued by this Court, Vijay Jagtap was examined
as Court witness. The witness has proved the dying declaration of
the deceased recorded by him. The witness has stated before
the Court that the patient was in a fit condition to make a
statement. Before recording of dying declaration, the deceased was
examined by the doctor and an endorsement was made on the
paper on which statement of the deceased was recorded as regards
fitness of the patient to make statement. The witness further
deposed that he personally asked 2/3 questions to the victim and
on being satisfied that she is in a fit condition to give statement,
recorded her statement as per her narration. The statement
recorded by the Police Head Constable was read out to victim
Rekha. She accepted correctness of it. The Police Head Constable
obtained toe impression of her left foot since her fingers were
burnt. The witness further deposed that he obtained endorsement
of the doctor on completion of statement of the deceased. The
Court witness has further stated that at the time of recording of
statement of the deceased, though her husband and mother-in-law
were present there, he sent them away from the patient and
thereafter proceeded to record her statement. The defence has
admitted dying declaration Exhbit-96 recorded by Police Head
Constable Jagtap. There is nothing to disbelieve version of the
Court witness in respect of recording statement of the deceased by
him. On perusal of the dying declaration at Exhibit-96, it does
appear that deceased made allegations in respect of illtreatment
meted out to her by her mother-in-law, father-in-law and husband.
She has stated in the dying declaration that since she was fed up
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of the consistent illtreatment, she poured kerosene on her person
and set herself on fire.
20 Although there are subsequent dying declarations
recorded by the Executive Magistrate as well as oral dying
declaration of which video recording was done by Police Constable
Ujagare as well as the oral dying declarations made before her
parents, there is no explanation as to why the witness has changed
the version. There is no explanation tendered by the prosecution
as to why dying declaration of the deceased recorded at 7.55 p.m.
by Police Constable Jagtap, which is first in time, shall not be
believed. It is also not borne out from the record that the first
dying declaration of the deceased recorded by Police Head
Constable Jagtap was as a result of the influence exercised by the
husband or her in-laws. Such an inference cannot be drawn
because in the said dying declaration, there are allegations about
illtreatment meted out to the deceased at the hands of her father-
in-law, mother-in-law and husband. It is specifically stated by the
deceased in the first dying declaration at Exhibit-96 that she was
fed up by the illtreatment meted out to her and as such was
compelled to commit suicide.
21 There is absolutely no explanation in the subsequent
dying declaration or even in the oral dying declarations as regards
the first version stated by the deceased. There is no logical reason
as to why the dying declaration recorded by Police Head Constable
Jagtap, which has been duly proved, shall be disbelieved.
22 The trial Judge has also communicated his finding,
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that the deposition of Police Head Constable Jagtap, who has
recorded dying declaration at Exhibit-96, is believable.
23 As such, we deem it appropriate to accept the dying
declaration recorded by Police Head Constable Jagtap at Exhibit-
96. In the facts and circumstances of this case, we are of the
considered opinion that from amongst multiple dying declarations,
the version stated by deceased in her dying declaration at Exhibit-
96 as told to Police Head Constable Jagtap is acceptable. The
dying declaration has to pass test of reliability and in case where
there are multiple dying declarations and acceptance of one of the
dying declarations, the version stated in the other dying
declarations shall have to be necessarily rejected. In our opinion,
no reliance can be placed on the dying declaration recorded at the
subsequent point of time by the Executive Magistrate at Exhibit-67.
The subsequent changed version of the deceased is at the instance
of her close relations who were surrounding her. In the matter of
Kushal Rao Vs. State of Bombay, reported in AIR 1958 SC 22,
the Supreme Court has observed thus:
"In order to pass the test of reliability, a
dying declaration has to be subjected to a very
close scrutiny, keeping in view the fact that the
statement has been made in the absence of the
accused who had no opportunity of testing the
veracity of the statement by cross-examination.
But, once, the Court has come to the
conclusion that the dying declaration was the
truthful version as to the circumstances of the
death and the assailants of the victim, there is
no question of further corroboration.
If, on the other hand, the Court, after
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examining the dying declaration in all its
aspects, and testing its veracity, has come to
the conclusion that it is not reliable by itself,
and that it suffers from an infirmity, then
without corroboration, it cannot form the basis
of a conviction."
24 There is neither a rule of law nor a rule of prudence
which has hardened into a rule of law that a dying declaration
cannot be acted upon unless it is corroborated. Primary effort of
the Court is to find out, whether the dying declaration is true. If it
is true, no question of corroboration arises. It is the duty of the
Court to scrutinise the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting
or imagination.
25 In the instant matter, there are multiple dying
declarations placed on record. The first one is recorded by Police
Head Constable Jagtap and proved in accordance with principles
of Evidence act. It has not implicated the accused as the persons
who have set the deceased on fire, though they may be responsible
for commission of offence under Section 304-B. The subsequent
dying declaration, however, implicates the accused and points
them as the authors of burn injuries. The dying declaration,
which is first in time, which has been duly proved, does not
deserve to be rejected. There is no explanation forthcoming as to
why there is deviation in the story nor the prosecution has taken
any effort to explain the inconsistencies. On perusal of the dying
declaration recorded by Police Head Constable Jagtap, which is
first in time at Exhibit-96, appears to be natural. It does not
exonerate accused in its entirety, however, disclose that death of
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the deceased is not natural and she was subjected to illtreatment
at the hands of accused for a long period. As a result of
illtreatment meted out to her, deceased was compelled to put an
end to her life. According to us, therefore, conviction and sentence
imposed by the learned trial Judge for offence punishable under
Section 302 read with Section 34 of the Indian Penal Code needs to
be quashed and set aside and conviction and sentence imposed by
the learned trial Judge for offence under Section 304-B read with
Section 34 of the Indian Penal Code, deserves to be maintained.
Since the accused are being held guilty for commission
of offence punishable under Section 304-B read with Section 34 of
the Indian Penal Code, we do not deem it necessary to impose
separate sentence for offence punishable under Section 498A read
with Section 34 of the Indian Penal Code. The offence under
Section 304-B, in a way, is aggravated form of offence under
Section 498-A of the Indian Penal Code. We do not propose to
impose separate sentence in respect of offence punishable under
Section 498-A read with Section 34 of the Indian Penal Code,
although the order of conviction is maintained.
27 For the reasons recorded above, appeal is partly
allowed.
(a) The order of conviction recorded by learned Additional
Sessions Judge, Beed, against accused nos. 1 and 2 in respect of
offence punishable under section 302 read with section 34 of the
Indian Penal Code and imposition of sentence to suffer rigorous
imprisonment for life and to pay fine of Rs.500/- each, in default to
suffer simple imprisonment for six months, is quashed and set
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aside.
(b) Conviction and sentence imposed by learned
Additional Sessions Judge, Beed, against accused nos. 1 and 2 in
respect of offence punishable under section 304-B read with
section 34 of the Indian Penal Code and imposition of sentence of
seven years and to pay fine of Rs. 500/- each, in default to suffer
further simple imprisonment for six months, is maintained.
(c) In view of the fact that accused have been held guilty
for offence punishable under section 304-B read with section 34 of
the Indian Penal Code and sentenced for a period of seven years
imprisonment and to pay fine of Rs.500/- each, in default to suffer
simple imprisonment for six months is maintained, no separate
sentence is awarded in respect of offence punishable under section
498-A read with section 34 of the Indian Penal Code, although
order of conviction is maintained.
(d) Muddemal property, being worthless, be destroyed
after appeal period is over.
Criminal Application No.3425 of 2012 stands disposed
of.
K.L.WADANE R.M.BORDE
JUDGE JUDGE
adb/crappeal51212
