State Of ... vs Vishnu Narayan Wagh
2017 Latest Caselaw 1832 Bom

apeal.668.02.jud                         1


  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            NAGPUR BENCH, NAGPUR


                    CRIMINAL APPEAL NO.668 OF 2002


State of Maharashtra,
through Police Station Lonar,
District Buldhana.                                                 .... Appellant

       -- Versus --

Vishnu Narayan Wagh,
Aged 26 years,
R/o Pimprikhandare, Tahsil Lonar,
District Buldhana.                                              .... Respondent


Shri I.J. Damle, Additional Public Prosecutor for the Appellant/State.
Shri R.D. Khade, Advocate for the Respondent

                CORAM           : KUM. INDIRA JAIN, J.

                DATE            : APRIL 19, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

order dated 30/09/2002 passed by the learned Assistant

Sessions Judge, Buldhana, in Sessions Case No.55/2001 thereby

convicting the sole accused of the offences punishable under

Sections 498-A, 306, 323 and 504 of the Indian Penal Code.

02] The facts, in brief, giving rise to the present appeal

may be stated thus :

i. Accused was married to Lata on 01/06/1997. After

marriage, she went to cohabit with accused at Pimpri

Kandhare, Tahsil Lonar, District Buldhana. Initially for

two years, Lata was treated well in her matrimonial

house. Thereafter, she was being ill-treated by

accused. He used to abuse her, her mother and her

sister. She was often beaten by accused as he was

suspecting her character.

ii. On 08/02/2001 at about 05:15 p.m., accused beat and

abused Lata, her mother and sister. Lata asked him

not to abuse and not to ill-treat her, else she would

commit suicide. On that, accused remarked that he

would not suffer loss. Reacting on the comment of

accused, Lata picked up a kerosene container, poured

kerosene on her person and set herself on fire.

Accused did not extinguish fire. He left the house.

Lata shouted. Hearing her cries, neighbourers

assembled and she was taken to Primary Health

Center, Bibi.

iii. Medical Officer informed the Police. Her dying

declaration was recorded by Head Constable Uttam

Atram. Thereafter, Lata was referred to General

Hospital Jalna. Dr. Ravindra Guthe [PW-6] informed

Police Station Kadim about admission of a burn

patient. PW-1 Head Constable Shivaji Chawre

recorded dying declaration of the patient at General

Hospital, Jalna. On the basis of statement of Lata,

Crime No.0/2001 came to be registered under

Sections 498-A, 323 and 506 of the Indian Penal Code

at Kadim Police Station. During investigation, PW-7

Naib Tahsildar Padmakar Kulkarni was requested to

record dying declaration of the patient. He visited

hospital and recorded statement of Lata. The said

statement was submitted to the Police Station. On

the basis of dying declaration recorded by Executive

Magistrate, Crime No.16/2001 was registered under

Sections 498-A, 323, 504 and 506 of the Indian Penal

Code against the accused.

iv. On 12/02/2001, Police Inspector Nayak received the

investigation. He visited the hospital and recorded

statement of deceased. She succumbed to injuries on

14/02/2001. Then offence under Section 306 of the

Indian Penal Code was added. Head Constable Magre

recorded inquest-panchnama. It was followed by

postmortem performed by Dr. R.T. Ghute [PW-6] and

Dr. Poharegaonkar. Medical Officers opined probable

cause of death as septicemia due to 78% burns.

Statements of relatives of Lata and other witnesses

were recorded. On completing investigation, charge-

sheet was submitted to the Court of Judicial

Magistrate First Class, Mehkar, who in turn committed

the case for trial to the Court of Sessions.

03] On committal, Trial Court framed charge against the

accused vide Exh.13. He pleaded not guilty and claimed to be

tried. Accused raised a specific defence and submitted that Lata

was cooking food and that time she was filling kerosene in stove.

Stove flared up and clothes of Lata were caught by fire. Accused

submitted that he never ill-treated Lata as alleged by the

prosecution, but at the instance of her close relatives, he has

been falsely involved.

04] In support of its case, prosecution examined in all

eight witnesses. Considering the evidence of prosecution

witnesses and submissions made on behalf of the parties, Trial

Court came to the conclusion that dying declarations were

inconsistent and prosecution could not prove the guilt of accused

beyond reasonable doubt. In consequence thereof, accused was

acquitted. Hence, this appeal by the State of Maharashtra.

05] Heard Shri I.J. Damle, learned Additional Public

Prosecutor for appellant/State and Shri R.D. Khade, learned

Counsel for respondent. With the assistance of the learned

Counsel for the parties, this Court has scrutinized the evidence

of prosecution witnesses. On meticulous evaluation of the

evidence, this Court, for the below mentioned reasons, is of the

opinion that view taken by the Trial Court is a reasonable and

possible view and so no interference is warranted in this appeal.

06] Prosecution case mainly revolves around the dying

declarations. In all, three dying declarations were recorded.

PW-1 Head Constable Chawre, PW-7 Executive Magistrate

Padmakar Kulkarni and PW-8 Police Inspector Keshav Nayak are

the witnesses of dying declarations. The dying declarations

recorded by PW-1 Head Constable Chawre is first in point of time

according to the prosecution. This, however, does not appear to

be correct. It appears that first dying declaration of Lata was

recorded at Primary Health Center, Bibi. This dying declaration

[Exh.28] was not produced along with the charge-sheet. It was

at the instance of accused that statement of Lata recorded at

Primary Health Center was produced by the investigating

agency. Dying declaration [Exh.28] indicates that Lata was

preparing chapatis and since kerosene in stove finished, she was

filling kerosene in the stove and stove got flared up and her

clothes caught fire. As statement [Exh.28] is first in point of time

and no role is attributed to accused in getting this statement

recorded, it appears to be true, reliable and trustworthy

statement of the victim. Needless to state that investigating

agency was duty bound to place entire material before the Court

including the statement [Exh.28]. Suppression of material piece

of evidence would clearly indicate that investigating agency did

not approach the Court in a fair and just manner, thereby

causing serious prejudice to the accused by keeping behind the

statement [Exh.28].

07] Even assuming that statement [Exh.28] is to be kept

out of consideration for a moment, moot question arises here is

whether dying declarations [Exhs.44 and 59] recorded by the

Police Officer and the Executive Magistrate are consistent,

trustworthy and believable. The Trial Court has disbelieved

these dying declarations mainly on the ground of absence of

Medical Certificate and cogent medical evidence regarding

fitness of patient to make her statement. Reliance is placed by

the Trial Court on the decision of -

1. Paparambaka Rosamma and others vs. State of Andhra Pradesh - [1999 Cri.L.J. 4321]

2. Kodadi Shriniwasa Lingam and others vs. State of Andhra Pradesh - [2001 Cri.L.J. 602 AP]

08] It is pertinent to note that Sessions Case No.55/2001

was decided by the Trial Court on 30/09/2002. Before judgment

was delivered by the Trial Court, the Hon'ble Supreme Court in

case of Laxman vs. State of Maharashtra - [AIR 2002 SC

2973, on 27/08/2002 overruled the decision in Paparambaka

Rosamma vs. State of Andhra Pradesh and approved the

decision of the Hon'ble Supreme Court in Koli Chunilal Savji

vs. State of Gujarat - [AIR 1999 SC 3695]. The Hon'ble

Supreme Court in paragraph 3 observed thus :

"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and

identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die.

There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular

case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

09] As the decision in Paparambaka Rosamma was

overruled by the Hon'ble Supreme Court, the observations of the

Trial Court based on the decision of Paparambaka Rosamma

are totally against the judicial pronouncement and settled

position of law that for want of medical certificate, dying

declaration cannot be relied upon. Though the observations are

incorrect, question remains whether both the dying declarations,

on which strong reliance is placed by the prosecution, inspire

confidence and can be believed as truthful and trustworthy.

10] 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. Once the court

comes to a conclusion that dying declaration is the truthful

version as to the circumstances of the death and the assailant of

victim, no further corroboration is required to such a dying

declaration.

11] In the case on hand, evidence of PW-1 Head

Constable Chawre and PW-7 Executive Magistrate Kulkarni

clearly indicates that in the statement [Exh.44] before the Head

Constable, she stated that accused abused and assaulted her.

She told him that he always harasses her, she would set herself

on fire. Thereupon, he said that if she sets herself on fire,

nothing wrong would take place. Before the Executive

Magistrate, she disclosed that accused abused and harassed her

daily, she became angry and in the hit of anger, poured kerosene

on her person and set her on fire. The utterances by accused

stated in dying declaration recorded by the Police Officer are

missing in the dying declaration recorded by the Executive

Magistrate. An abetment, according to prosecution, is only the

utterances by the accused that he will not be at lost if she

commits suicide. On the alleged utterances, one dying

declaration is totally silent. The law on applicability of Section

306 of the Indian Penal Code is well crystallized by the Hon'ble

Supreme Court, and Division Bench and Single Bench of this

Court. A reference to the decision in Criminal Appeal

No.100/2016, dated 11/04/2017 can be made here for the sake

of convenience.

12] So the law is well settled that abetment under Section

306 of the Indian Penal Code requires the prosecution to prove

an abetment under Section 107 of the Indian Penal Code. Prima

facie, in the dying declaration recorded by the Executive

Magistrate, no abetment is attributed to the accused. There is

no cogent and convincing evidence to indicate that accused

instigated, aided or abated the commission of suicide by the

deceased.

13] In the above premise, view taken by the Trial Court is

a possible and reasonable view. No perversity is noticed in the

findings recorded by the Trial Court though observations based

on the decision in Paparambaka are incorrect as the same was

overruled by the Hon'ble Supreme Court in the case of Laxman

vs. State of Maharashtra, the conclusion drawn by the Trial

Court is, however, found sustainable in law. No perversity is

noticed. Hence, the following order :

ORDER

i. Criminal Appeal No.668/2002 is dismissed.

ii. No costs.

(Kum. Indira Jain, J.) *sdw