Purandas Sahadeorao Thokbarde ... vs The State Of Mara., Thr. P.S.O. ...
2016 Latest Caselaw 6662 Bom

       apeal59.2015                                                                        1



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                             NAGPUR BENCH

                          CRIMINAL APPEAL  NO.  59  OF  2015




                                                        
      Purandas s/o Sahadeorao Thokbarde,




                                                       
      Convict No. C-4633, Central Prison
      Amravati, District - Amravati.                      ...   APPELLANT

                        Versus




                                           
      1. The State of Maharashtra
         through P.S.O. Walgaon,
                             
         Tq. Bhatkuli, Amravati,
         District - Amravati.                             ...   RESPONDENT
                            
      Ms. F.N. Haidari, Advocate for appellant.
      Shri S.S. Doifode, A.P.P. for respondent/ State.
                         .....
      


                                     CORAM :  B.P. DHARMADHIKARI &
   



                                                KUM. INDIRA JAIN, JJ.

NOVEMBER 24, 2016.

ORAL JUDGMENT : (PER : KUM. INDIRA JAIN, J.)

This appeal is preferred by Appellant - Accused

against the judgment and order dated 29.11.2014 passed by the

learned Additional Sessions Judge, Amravati, in Sessions Case No.

128 of 2011. By the said judgment and order, learned Additional

Sessions Judge convicted the Appellant for the offence punishable

under Section 302 of the Indian Penal Code and sentenced him to

suffer imprisonment for life and a fine of Rs.3,000/-, in default, to

suffer further simple imprisonment for a period of three months.

2. For the sake of convenience, we shall refer the

Appellant in his original status as Accused as he was referred

before the Trial Court.

3. Prosecution case briefly stated is as under :

i.

Deceased Pushpa was wife of Accused. She

was married to Accused before seven years of the

incident. Couple was blessed with a male child.

ii. Incident occurred on 19.11.2011 at around 11.00

P.M. According to the prosecution, on that day at 6.00

P.M., Accused came home with a liquor bottle and

started consuming liquor. Pushpa tried to pacify him

not to consume liquor. On that accused raised quarrel

and assaulted Pushpa. The quarrel between duo

continued till 11.00 P.M.

               iii.    At around 11.00 P.M, accused poured kerosene

               on   person   of   Pushpa   and   set   her   ablaze.     He

extinguished fire. After neighbours rushed to the place

of incident, Pushpa was taken in an Auto rickshaw and

admitted in Irwin Hospital, Amravati.

iv. On 20.01.2011, information was received by the

Police Station, Walgaon from Irwin Police Chowky and

on receipt of information, Police Head Constable (PHC)

Gajanan Vidhate (PW 6) visited the hospital at 11.00

A.M. Dr. Sandhya Deshmukh, Medical Officer was on

duty. PHC Vidhate gave her memo for recording

statement of Pushpa. Dr. Deshmukh examined the

patient and permitted PHC Vidhate to record her

statement. Thereafter PHC Vidhate recorded

statement of Pushpa.

v. In the meanwhile, memo was issued to

Executive Magistrate. Prakash Ghormade (PW 5)

visited Irwin Hospital and ascertained from Dr.

Sandhya Deshmukh Medical Officer whether Pushpa

was fit to give her statement or not. Dr. Sandhya

Deshmukh examined the patient and found her fit to

make her statement. Thereafter statement of Pushpa

was recorded by the Executive Magistrate.

vi. The statement recorded by Executive Magistrate

was submitted to the Police Station, on the basis of

which Crime No. 15 of 2011 was registered under

Section 307 of the Indian Penal Code.

vii. It appears that third statement of victim was

recorded by P.W. 8 - P.I. Bagul on 21.01.2011.

Accused was arrested. During investigation

statements of witnesses came to be recorded. Pushpa

succumbed to burn injuries on 25.01.2011. Inquest

panchnama was drawn. Then dead body was sent for

postmortem. During postmortem examination, Dr.

Archana Jamthe (PW 9) noticed 54% burns and opined

cause of death as shock due to 54% burns.

viii. After the death of victim, offence was converted

to Section 302 of the Indian Penal Code. Investigating

Officer forwarded the seized articles to Chemical

Analyser. On completing investigation, charge sheet

was submitted to the Court of Judicial Magistrate First

Class, Bhatkuli, District - Amravati, who in turn

committed the case for trial to the Court of Session.

4. Charge came to be framed against the accused under

Section 302 of the Indian Penal Code vide Exh. 6. He pleaded not

guilty and claimed to be tried. The factum of marriage with the

deceased is not in dispute. Regarding incident, defence of accused

was of total denial and false implication. He raised specific defence

that Pushpa was mentally ill and she herself poured kerosene on

her and set her ablaze. Alternatively, defence of accidental burns

was also raised stating that while cooking on the stove, Pushpa

received burn injuries.

5. Prosecution examined in all nine witnesses to

substantiate the guilt of accused. Accused examined three

witnesses in support of his defence. On going through the

evidence adduced by the parties, learned Additional Sessions

Judge convicted the accused as stated in para 1 above. Being

aggrieved thereof, accused has preferred this appeal.

6. We have heard the learned counsel for the parties. On

careful consideration of the facts and circumstances of the case,

arguments advanced by the learned counsel for the appellant and

the learned A.P.P. for the State, reasonings recorded by the trial

Court and evaluation of evidence on record, for the below

mentioned reasons, we are of the opinion that prosecution could

prove that the accused poured kerosene on the person of Pushpa

and set her ablaze.

7. The prosecution case is mainly based on two dying

declarations recorded by PHC Gajanan Vidhate and Executive

Magistrate Prakash Ghormade. PHC - Vidhate was attached to

Walgaon Police Station. On 20.01.2011 when he was on duty, an

information was received from Irwin Police Chowky that one

Pushpa Purandas Thokbarde of Walgaon who sustained burns is

admitted to the hospital. On receiving information, PHC Vidhate

reached the Hospital and inquired from Medical Officer about

condition of Pushpa to give her statement. It is stated by PHC

Vidhate that Doctor examined the patient and certified on the memo

given by him to her that patient is fit to give her statement. After

Doctor certified, PHC Vidhate recorded statement of Pushpa.

8. Before PHC Vidhate, Pushpa stated that on 19.01.2011

at about 6.00 P.M. her husband Purandas came home in drunken

condition with a liquor bottle. She asked him not to consume liquor

and on that quarrel was raised by her husband. She stated that

quarrel continued till 11.00 P.M. She states that at around 11.00

P.M. her husband poured kerosene on her person and set her on

fire. She shouted and then her husband put a quilt on her and

extinguished fire. Pushpa disclosed that neighbours rushed to her

house on hearing shouts. An Auto-rickshaw was brought by her

husband and she was shifted to Irwin Hospital for treatment. She

stated that her husband was consuming liquor and ill-treating her

since marriage. She reiterated that her husband poured kerosene

and set her ablaze. Statement recorded by PHC Vidhate is at Exh.

35.

9. Another dying declaration recorded by PW 5 Executive

Magistrate Prakash Ghormade on 20.01.2011 is at Exh. 31.

According to the Executive Magistrate, he received information from

Irwin Police Chowky at around 1.00 P.M. that statement of a burn

lady was required to be recorded. He then went to Irwin Police

Chowky. Memo was issued to him for recording dying declaration.

With the memo he had been to Hospital and requested the Doctor

to examine patient Pushpa as he was to record her statement. Shri

Ghormade stated that a lady Doctor examined the patient and

opined that she was fit to give her statement. Thereafter he asked

Police and other persons around the patient to move out of the

Ward. He introduced himself to the patient and told her that he has

to record her statement. He made preliminary inquiry regarding

name, age, address of the patient and asked her about the incident.

10. Before the Executive Magistrate, Pushpa narrated

almost the same facts and the manner of incident as she disclosed

to PHC Vidhate except a change that her husband poured water

and extinguished fire whereas before PHC she stated that he

extinguished fire with the help of a quilt.

11. To corroborate evidence of P.W. 5 Executive

Magistrate and P.W. 6 Vidhate prosecution placed reliance on the

evidence of P.W. 4 Dr. Sandhya Deshmukh. Dr. Deshmukh was

attached to General Hospital, Amravati on 20.01.2011. She was on

duty as emergency Medical Officer. She received a requisition from

the Executive Magistrate and on receiving requisition she states

that she examined patient Pushpa and found her conscious and

oriented. She certified that patient was fit to give her statement.

She states that Executive Magistrate recorded statement of Pushpa

in her presence. After recording dying declaration, Executive

Magistrate again asked her to examine and certify whether patient

was conscious and fit in the course of recording statement or not.

Dr. Deshmukh examined the patient and put an endorsement at the

end of statement. Both the endorsements are at Exhs. 24 and Exh.

25.

12. The learned counsel for the appellant has seriously

assailed the evidence of PHC Vidhate, Executive Magistrate

Ghormade and Dr. Deshmukh and also both the dying declarations

(Exhs. 31 and 35) on the following grounds :

(i) The first and foremost submission made by the

learned counsel for appellant is that both the dying declarations are inconsistent and do not pass all the tests of reliability as required in law. She submits that

in case of multiple dying declarations, Court cannot

pick and choose any one dying declaration and convict the accused. Reliance is placed on the decision of this Court in Suresh s/o Arjun Dodokar (Sonar) vs. State

of Maharashtra [2005 ALL MR (Cri) 1599]. This Court in para 9, observed thus :

"In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the

incident itself."

(ii) The next submission on behalf of the appellant is

that dying declaration (Exh. 31) was not read over to the victim and there is no endorsement to the effect

that it was read over and admitted to be true and correct by the victim. She submits that though dying declaration mentions about thumb impression, whose

thumb impression was taken is not known. Under such circumstances, it is stated that dying declaration is

suspicious and no reliance could have been placed on the same. To substantiate the contention, learned

counsel pressed into service decisions of this Court in Abdul Riyaz Abdul Bashir vs. State of Maharashtra

[2012 ALL MR (Cri) 2188] and Munnabee w/o

Shoukat Tadvi vs. State of Maharashtra [2016 (5) Mh.L.J. (Cri.) 637].

13. In response to the submissions advanced on behalf of

the appellant, learned A.P.P. vehemently contended that there is

nothing in the evidence of PW 5 Executive Magistrate Shri

Ghormade, PW 6 PHC Shri Vidhate and PW 4 Dr. Sandhya

Deshmukh to show that they had any reason to grind an axe

against the accused. Learned A.P.P. submits that in such case,

dying declarations will have to be accepted as true and voluntary

statement of the deceased. Reliance is placed on the decision of

the Hon'ble Supreme Court in Raju Devade vs. State of

Maharashtra [2016 ALL MR (Cri) 3134 (S.C.)].

14. Insofar as reading over of dying declaration Exh. 31 is

concerned, submission is that in column No. 8 of the dying

declaration, it is clearly stated that statement was read over to the

victim and thumb impression was obtained. According to the

learned A.P.P., column No. 8 in Exh. 31, shows compliance and

reading over of the statement to the victim and the objection raised

on behalf of the appellant would thus not sustain. It is then urged

that statement recorded by PHC Vidhate (Exh. 35) clearly indicates

that the statement was read over to the victim and she admitted the

same to be true and correct.

15. Learned A.P.P. relies upon the decisions of this Court

in Saderaj Baba Nagraj Baba Kapate @ Anupam Padmakar

Bodade vs. State of Maharashtra [2016 ALL MR (Cri) 3487] and

Diwakar s/o Ganpat Thote & Anr. vs. State of Maharashtra

[2016 ALL MR (Cri) 4801], to substantiate his submission that in

such circumstances dying declarations cannot be brushed aside.

Learned A.P.P. relies upon the decision of this Court in Sumanbai

w/o Mahadeo Gaikwad vs. The State of Maharashtra [2016 ALL

MR (Cri) 3809] on appreciation of evidence in respect of multiple

dying declarations.

16. We have gone through the above authorities. Needless

to state that 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 statement has been made in the absence of

accused who had no opportunity of testing the veracity of the

statement by cross examination. It is settled law that once the court

comes to a conclusion that dying declaration is the truthful version

as to the circumstances of death and the assailant of victim, no

further corroboration is required to such a dying declaration.

17. Keeping in view these legal parameters, we now advert

to the admissibility, reliability and truthfulness of the dying

declarations Exhs. 31 & 35 and the evidence of witnesses thereon.

18. With the assistance of the learned counsel for the

parties, we have gone through the evidence of PW 5 Executive

Magistrate Ghormade, PHC Vidhate and Dr. Deshmukh. Nothing

could be elicited in their cross examination to show that they have a

reason to state a lie. We see no reason to disbelieve the

testimonies of these three witnesses.

19. Regarding reading over of dying declaration (Exh. 31),

objection raised on behalf of the appellant appears to be

unsustainable for two reasons. First, column No. 8 of Exh. 31

though printed specifically states that statement was read over to

the victim and second, evidence of P.W. 5 Prakash Ghormade

could not be shaken in the cross examination on reading over of the

statement. On the manner of incident and involvement of accused,

both the dying declarations are consistent. If victim had to lie or

prosecution had to manipulate, as alleged by the defence, dying

declarations Exhs. 31 & 35 would not have been recorded in the

form in which they have been presented. In both the dying

declarations, victim had stated that accused extinguished fire, he

brought auto rikshaw and he took her to hospital. All these are

clinching circumstances which would negative the contention of

appellant that Exh. 31 is a suspicious statement. So far as another

dying declaration Exh. 35 is concerned, it is apparent from the

dying declaration itself that the same was read over to the victim

and she admitted the same to be true and correct.

20. In this premise and in the totality of the facts and

circumstances, we are of the considered view that the dying

declarations Exhs. 31 & 35 are voluntary, true and reliable

statements of the victim. If both the dying declarations are believed

in entirety, conclusion is inevitable that prosecution could establish

that accused poured kerosene and set Pushpa ablaze.

21. The next question is about nature of offence that is

proved by the prosecution. The learned counsel for the appellant in

the alternative submitted that three important facts narrated in the

dying declarations Exhs. 31 and 35 would clearly indicate absence

of intention to cause murder of wife. Those three factors, according

to the learned counsel are :

               (i)     incident occurred in a fit of anger;





               (ii)    the accused extinguished fire; and

               (iii)   he admitted her to the hospital.

22. Based on the facts which could emerge from the dying

declarations, learned counsel urged that conviction and sentence of

the appellant be altered under Section 304, Part II of the Indian

Penal Code. She submits that in the similar set of facts, this Court

in Harish Bhanudas Kale vs. The State of Maharashtra [2013

ALL MR (Cri) 3509] altered the conviction and sentence of the

accused under Section 304, Part II of the Indian Penal Code.

23. In response to the alternate submission, learned A.P.P.

submits that offence under Section 302 of the Indian Penal Code is

proved beyond reasonable doubt through the evidence of

prosecution witnesses and both the dying declarations and in the

circumstances of the case, it would not be appropriate to alter the

conviction and sentence as urged by the learned counsel for the

defence.

24. On careful scrutiny of the evidence of witnesses, both

the dying declarations and circumstances established, we find force

in the alternate submission of the learned counsel for the defence.

In this regard, facts established could be summarized as below :

               (i)     Accused extinguished fire;

               (ii)    he brought an auto rikshaw;

               (iii)   he shifted the victim to hospital;

               (iv)    victim sustained 54% burns; and

               (v)     she survived for six days after the incident.

25. Based on the above facts, it is difficult to come to a

conclusion that the accused has any intention to cause the death of

victim. The circumstances proved would, however, clearly attribute

knowledge of causing death to the accused. So we are of the view

that exception 4 under Section 300 of the Indian Penal Code would

be attracted and punishment under Section 304, Part II of the

Indian Penal Code would meet the ends of justice.

26. Accordingly we partly allow the appeal and pass the

following order :

               (i)      Criminal Appeal is partly allowed.
      


               (ii)     The   judgment   and   order   dated   29.11.2014
   

passed by the Additional Sessions Judge, Amravati, in Sessions Case No. 128 of 2011, convicting the appellant / accused - Purandas Sahadeorao

Thokbarde, for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and fine of Rs.3,000/-, in

default, to suffer further simple imprisonment for a period of three months, is set aside.

(iii) Appellant - Purandas Sahadeorao Thokbarde is held guilty of the offence punishable under Section 304, Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment, already undergone from 21.01.2011 to 24.06.2011 and from 29.11.2014 till

date. No separate sentence of fine is imposed.

(iv) Appellant be released forthwith, if not required in any other crime.

(v) Muddemal property be dealt with as directed by the trial Court, after the expiry of appeal period.

(vi) We quantify the fee of the learned counsel (appointed) for the appellant at Rs.7,500/-.

       




                                           
               JUDGE
                              ig                                            JUDGE
                            
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      *GS.