Raghunath S/O Ramdas Shende (In ... vs State Of Maharashtra, Through Its ...
2016 Latest Caselaw 5398 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR
                            Criminal Appeal No.35 of 2015




                                                       
     Raghunath son of Ramdas Shende,
     aged about 32 years,
     occupation - Labour,




                                           
     resident of Juna Surla,
     Tq. Mul, Distt. Chandrapur.
                              ig                           .....          Appellant.
                                                                        [in jail]
                            
                                           Versus

     The State of Maharashtra,
     through Police Station Officer,
     Police Station, Mul,
      

     Distt. Chandrapur.                                  .....          Respondent.
   



                                   *****
     Ms. Sonali Saware, Adv., [appointed] for the Appellant.





     Mr. V.A. Thakre,              Addl. Public Prosecutor for the respondent-
     State.

                                             *****





                                         CORAM :        B. P. DHARMADHIKARI
                                                        AND
                                                        A.S. CHANDURKAR, JJ.

                                         Date       :   20th September, 2016





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     ORAL JUDGMENT [Per A.S. Chandurkar, J.]:

01. The Appellant in the present appeal filed under Section 374

(2) of the Criminal Procedure Code, 1973 challenges his conviction for

having committed an offence punishable under Section 302 of the

Indian Penal Code. By the Judgment dated 7th July, 2011 in Sessions

Case No. 32 of 2010, he has been sentenced to Rigorous Imprisonment

for Life with a fine of Rs.1,000/-.

02. It is the case of the prosecution that the appellant was

married with one Dhrupada in the year 1996. The appellant had two

children. The appellant, however, used to doubt the character of his

wife and used to harass her. On 19th November, 2009 at about 5.00

p.m., when the appellant returned home, he enquired with his wife as

to what she was doing for the entire day. He picked up a quarrel with

her and thereafter poured kerosene on her person. He then set her on

fire. Dhrupada was then removed to the hospital by her neighbours.

Initially, an offence punishable under Section 307 of the Penal Code

came to be recorded. However, on 25th November, 2009, said

Dhrupada expired on account of burn injuries. The appellant was

accordingly charged for having committed the offences punishable

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under Sections 302 and 498-A, Indian Penal Code. After the case was

committed to the Sessions Court, the appellant did not plead guilty.

He was accordingly tried and at the conclusion of the trial, the

appellant was sentenced in the manner stated herein above. Being

aggrieved, the present appeal has been filed.

03.

Ms. Sonali Saware, the learned counsel [appointed] to

represent the appellant, submitted that the evidence on record was

not sufficient to sustain the conviction of the appellant. According to

her, though there were two Dying Declarations at Exhs.44 and 36 on

record, there were various inconsistencies therein and same could not

be relied upon. Though PW 6 and PW 8 had referred to the statements

made by Dhrupada to them, their depositions also did not warrant

acceptance in view of inconsistencies therein. Both the said witnesses

were related with the deceased. The mental and physical health of

Dhrupada, while recording the Dying Declarations, had not been

brought on record and, therefore, a doubt was created in that regard.

It was, therefore, submitted that the conviction of the appellant was

liable to be set aside.

04. Shri V. A. Thakre, the learned Addl. Public Prosecutor for the

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State, on the other hand, supported the conviction of the appellant.

He submitted that both the Dying Declarations had been recorded after

following the prescribed procedure and when the deponent was in a fit

state of mental and physical health. The depositions of PW 6 and PW 8

corroborated the earlier Dying Declarations and the version of said

witnesses was consistent. Inconsistencies, if any, were trivial and it

count.

was not necessary to discard the case of the prosecution on said

Hence it was submitted that the appeeal had no merit and was

liable to be dismissed.

05. We have heard the respective counsel for the parties at

length and we have also perused the records of the case.

06. The victim Dhrupada died on account of septicemic shock

due to multiple burns. This is evident from the Post-mortem Report at

Exh.39, which indicates that her death was homicidal.

07. Since it is the case of the prosecution that there were two

Dying Declarations on record, it would be necessary to consider the

same first. The Dying declaration, that is first in time, is at Exh.44

dated 19th November, 2009. The same has been recorded by one

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Ghanshyam Khobragade, who was the Asstt. Sub-Inspector attached to

Police Station, Gadchiroli. He was examined as PW 12. According to

him, on the basis of Intimation Letter at Exh.43, he had been to Govt.

Hospital to record the statement of Dhrupada. According to him, Dr.

Vinod Chaudhari [PW 13] was present when he recorded the statement

of Dhrupada.

Perusal of Exh.44 indicates that the same does not bear the

time when the recording of said Dying Declaration had commenced.

There is no endorsement of the Doctor at the commencement of such

recording, that the deponent was in a fit mental and physical state to

give her statement. At the end of said statement, the same is shown

to have been signed by Dr. Chaudhari at 11.50 p.m.. The Doctor has

stated that the statement was recorded in his presence. In absence of

the endorsement that the patient was in a fit state of mind after the

statement was recorded, the state of her health while the statement

was recorded has not come on record. In his cross-examination at

Exh.47, it was admitted by the Doctor that he had not noted anywhere

that at about 11.30 p.m., on 19th November, 2009, the patient was

physically and mentally fit to give her statement. He further admitted

that when the patient was admitted, her general condition was poor.

Similarly, PW 12, who recorded said statement, admitted that he had

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not taken any endorsement from the Doctor, that the patient was fit

and was able to give her statement. He also admitted that at that

point of time, medical treatment of the patient was going on. Thus, in

absence of any evidence or endorsement showing the mental and

physical state of health of Dhrupada, it would not be safe to rely upon

the Dying Declaration [Exh.44]. The same does not inspire confidence

for its acceptance.

08. Coming to the second Dying Declaration, the same is at

Exh.36, and it is shown to have been recorded between 8.00 a.m., and

8.30 a.m., on 20th November, 2009. This Dying Declaration was

recorded by the Naib Tahsildar who was examined as PW 10. In his

deposition at Exh.35, he has stated that the Doctor had examined

Dhrupada and had found her fit for the statement to be recorded.

Perusal of this Dying Declaration at Exh.36 indicates the following

statement written by PW 13 - Dr. Vinod Choudhary:-

"Pt. Is conscious and able to give statement to PC on duty."

In his cross-examination, the Naib Tahsildar admitted that there was

such endorsement on the Dying Declaration and that he did not tell the

Medical Officer that such remark was wrong. He denied the

suggestion that as the printed form was sent through the Police

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Constable on duty, the Doctor had endorsed the words "To PC." He

further admitted that on the Dying Declaration, there was no

endorsement about the presence of the doctor.

PW 13 - Dr. Vinod Choudhary was also cross-examined on

this aspect. He stated that along with the Executive Magistrate, the

Police Constable was there as usual and, therefore, he had mentioned

"PC on duty."

As noted herein above, the Naib Tahsildar in his

deposition had categorically denied that the printed form was sent

through any Police Constable. The fact that this Dying Declaration at

Exh.36 was recorded by the Naib Tahsildar and presence of any Police

Constable was denied by him. There is no explanation brought on

record by the prosecution as to the endorsement by PW 13 that the

patient was fit to give statement to the police constable on duty. On

account of absence of any explanation and as there is no endorsement

with regard to the state of mental and physical condition of Dhrupada

after this statement was recorded, it would not be appropriate to rely

upon this Dying Declaration for sustaining the conviction of the

appellant.

09. It is also to be noted that the appellant in support of his

defence had examined one Dr. Madhuri Weake at Exh.81. She has

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stated that when Dhrupada was brought to the hospital, she was in a

semi-conscious state. Her condition was not satisfactory. Such state

of health continued till 24th November, 2009. Considering this

evidence about the state of health of Dhrupada, it was necessary for

the prosecution to have brought sufficient evidence on record with

regard to the mental and physical condition of Dhrupada when the

Dying Declarations were recorded.

10. Turning to the oral dying declarations that were relied upon

by the prosecution, the brother of Dhrupada, Dhanraj Bhoyar, was

examined as PW 6. In his deposition, he has stated below Exh.26 that

after the incident when he met his sister in the hospital, she told him

that the appellant had come in a drunken state and had asked her to

provide him meals. As the food was not ready, he started beating

Dhrupada with a stick. The sister of Dhrupada, Urmila, was examined

as PW 8. In her deposition at Exh.32, she has stated that Dhrupada

told her that the appellant was doubting her character and thereafter

he poured kerosene on her.

From the depositions of these two witnesses, there is

inconsistency as to the reasons attributed to the appellant to have set

Dhrupada on fire. While PW 6 refers to meals not being kept ready,

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PW 8 does not refer to meals not being ready, but has stated that the

appellant was doubting her character. Considering the fact that both

these witnesses were the brother and sister of the deceased, their

depositions have to be considered with some caution. Considering the

aforesaid inconsistency in their version, it would not be safe to rely

upon their statements to hold against the appellant.

11.

Thus, from the aforesaid material on record, it is found that

the Dying Declarations at Exhs. 44 and 36 would have to be discarded

on account of defects in recording the same. Similarly, the depositions

of PW 6 and PW 8 also do not warrant acceptance considering the

inconsistencies therein. Except aforesaid evidence, there is no other

evidence on record to sustain the conviction of the appellant. In this

situation, the appellant would be entitled to the benefit of doubt.

12. In view aforesaid, the following order is inevitable:-

ORDER

[a] The Appellant-accused is given benefit of doubt.

Accordingly, Judgment of conviction dated 07th July, 2011 delivered by Additional Sessions Judge,

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Chandrapur, in Sessions Case No. 32 of 2010, is quashed and set aside, and he is acquitted of offence punishable under Section 302, Indian

Penal Code.

[b] He be set free immediately if his custody is not

required in any other matter.

[c]

Muddemal property be dealt with as directed by Trial Court after appeal period is over.

[d] Charges of counsel [appointed] are quantified at Rs.5,000-00 [rupees five thousand only].

                  Judge                                                   Judge


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