Maroti S/O Damdu Manik vs State Of ...
2017 Latest Caselaw 1886 Bom

                                                       1                       apeal268.99

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                   NAGPUR BENCH : NAGPUR


                         CRIMINAL APPEAL  NO.268 OF  1999


Maroti s/o Damdu Manik,
aged about 40 years, 
r/o CAD Camp, Pulgaon, 
Tahsil : Deoli, District Wardha.                           ...            Appellant 

                  - Versus -

State of Maharashtra, through 
Police Station Officer, Pulgaon.                           ...              Respondent


                                   -----------------
Shri  R.M. Patwardhan, Advocate for appellant. 
Shri H.D. Dubey, Additional Public Prosecutor for respondent. 
                                   ----------------

                                          CORAM :   P.N. DESHMUKH, J.

DATED : APRIL 17 AND 20, 2017

ORAL JUDGMENT :

This appeal takes exception to the judgment and order dated

10/9/1999 passed by learned Additional Sessions Judge, Wardha in

Sessions Trial No.185/1995 whereby appellant (hereinafter referred to as

"accused") came to be convicted for the offences punishable under

Sections 498-A and 306 of Indian Penal Code and sentenced to suffer

rigorous imprisonment for two years for the offence punishable under

Section 498-A of Indian Penal Code and for five years for the offence

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punishable under Section 306 of Indian Penal Code. Both the sentences

are directed to run concurrently.

2) The prosecution case can be stated, in brief, as follows :

Deceased Pramila was married to accused in the year 1994.

On 3/10/1994 Ashok Tiwari, Head Constable received information about

admission of deceased in Hospital at Sevagram for sustaining burn injuries

and thus, he visited Hospital and recorded her statement vide Exh. 33 on

the same day at 4.30 p.m. On the strength of said statement, offence

punishable under Section 498-A of Indian Penal Code was registered vide

Crime No. 0/1994 at Police Station, Sevagram and papers were sent to

Police Station, Pulgaon for further action as incident had taken place

within jurisdiction of said Police Station where Crime No.248/1994 was

registered. It is the further case of prosecution that on the same day, i.e.

on 3/10/1994 P.W.11 Sulochana Nighade, Executive Magistrate recorded

dying declaration at 4.40 p.m. (Exh. 41). In both the dying declarations,

it is stated that accused had demanded dowry and entered into quarrel

with deceased, due to which she committed suicide by pouring petrol on

her person and set her on fire. She died in Hospital while taking

treatment on 6/10/1994. After death of Pramila, offence punishable

under Section 306 of Indian Penal Code came to be added in the present

crime.

3)               During   the   course   of   investigation,   post   mortem   was





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performed wherein deceased is stated to have sustained 91% burn injuries

and certified to have died due to septicemic shock as a result of extensive

burns.

4) During the course of investigation, P.W.9 Vinod Parate, PSI

visited the spot and drew spot panchanama (Exh. 18) and seized articles.

After recording statements of witnesses, charge-sheet was filed in the

Court of learned Judicial Magistrate, First Class, Pulgaon. In the course of

time, case came to be committed to the Sessions Court for trial.

5) Charge was framed against accused for the offences

punishable under Sections 498-A and 306 of Indian Penal Code, to which

he pleaded not guilty and claimed to be tried. The defence of accused is

of total denial and that on the day of incident, he was on duty and no

quarrel had taken place between him and his wife prior to incident. In

the alternative, it is the case of accused that deceased had white-patches

on her body, due to which she used to remain nervous and, therefore, had

committed suicide.

6) To establish charge levelled against accused, prosecution in all

has examined as many as 12 witnesses and commenced its evidence by

examining P.W.1 Balmukund Vyas, panch on spot panchanama (Exh. 18),

P.W.2 Triveni Jawade, mother of deceased, P.W.3 Dnyaneshwar Misal,

Head Constable, who on 4/10/1994 was attached to Police Station,

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Pulgaon and was on duty and received papers in Crime No. 0/1994 of

Police Station, Sevagram and had registered offence vide Crime No.

248/1994 at Police Station, Pulgaon vide Exh. 21, P.W.4 Ravindra

Jawade, brother of deceased, P.W.5 Sugandha Kambale, maternal aunt of

deceased in whose evidence, letter (Exh. 26) came to be exhibited since

referred in the cross-examination, P.W.6 Pramod Dhobe, who has acted as

panch on spot panchanama along with P.W.1 Balmukund Vyas, P.W.7

Pralhad Sukhadeo, another panch witness in whose presence one plastic

can came to be seized under panchanama (Exh. 30) having petrol smell on

9/10/1994 from the bath-room in the house of accused, P.W.8 Ashok

Tiwari, Head Constable, Buckle No.849, who on issuing memo to Medical

Officer vide Exh. 32, on receiving medical endorsement recorded first

dying declaration at Exh. 33 on 3/10/1994 at about 4.30 p.m. and on that

strength, had registered Crime No. 0/1994 at Police Station, Sevagram, of

which papers were then sent to Police Station, Pulgaon, P.W.9 PSI Vinod

Parate, who drew spot panchanama in presence of P.W.1 Balmukund Vyas

and P.W.6 Pramod Dhobe and on recording statements of witnesses has

handed over further investigation to PSI Rothe, who filed charge-sheet,

P.W.10 Dr. Bipinchandra Tirpude, who has performed post mortem and

prepared notes and proved the same (Exh. 38), P.W. 11 Sulochana

Nighade, Naib Tahsildar, Executive Magistrate, who has recorded second

dying declaration (Exh. 41) on the same day at 4.40 p.m. and concluded

its evidence by examining P.W.12 Dr. Sanjiv Jindal, who has proved his

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medical endorsement at Exh. 40 given by him on memo (Exh. 32) issued

for certifying physical fitness of deceased by P.W.8 Head Constable P.W.8

Ashok Tiwari.

7) Accused examined as many as four defence witnesses in

support of his case, namely, D.W.1 Manorama, his sister, to establish

healthy relations between deceased and accused and that accused was on

duty at the time of incident, D.W.2 Harischandra, neighbour, D.W.3

Dr. Surendra Nitnaware to establish that deceased was having white

coloured patches on her person for which she was being provided

medicines and D.W.4 Dr. Dilip Gupta on the history given by deceased of

her sustaining burn injuries accidentally.

8) Learned trial Court on considering evidence and documents on

record, convicted accused as aforesaid. Hence, this appeal.

9) Heard Shri Patwardhan, learned Counsel for appellant, and

Shri Dubey, learned Additional Public Prosecutor for respondent.

10) On behalf of appellant, submissions advanced were three-fold.

Firstly, on the point of dying declarations - Exh.33 and Exh.41

respectively, both dated 3/10/1994, it is submitted that they are word to

word similar and as such, raised doubt about their truthfulness. It is

further contended that there is no evidence of its scribe about their

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reading over contents of dying declaration to its maker. It is further

pointed out that though according to prosecution case, time gap between

recording these two documents is of 10 minutes only - one recorded by

Police and another by Executive Magistrate, evidence of these two

witnesses being P.W.8 Ashok Tiwari, Head Constable, who has recorded

Exh. 33 and P.W.11 Sulochana Nighade, Executive Magistrate, who has

recorded Exh 41, is silent about presence of each other in the Hospital for

recording dying declaration. Therefore, it is submitted that both the

documents are doubtful and for that purpose, learned Counsel for accused

has relied upon the case of Parasram Chandrasha Ghante vs. The State

of Maharashtra (2014 ALL MR (Cri) 5089} and Rama Rajdhar Koli and

another vs. State of Maharashtra (2002 ALL MR (Cri) 136} and

submitted that case of prosecution based on above two dying declarations

is full of doubts and cannot be relied upon.

11) Learned Counsel for accused then by referring to evidence of

P.W.2 Triveni Jawade, mother, P.W.4 Ravindra Jawade, brother and

P.W.5 Sugandha Kambale, maternal aunt of deceased has submitted that

from their evidence, prosecution has not established cruelty by accused to

deceased, due to which she had committed suicide. Thirdly, by referring

to spot panchanama and evidence of Officer, who drew spot panchanama

along with seizure panchanama of petrol can, it is contended that as per

contents of the spot panchanama, there was smell of kerosene on the spot

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as well as the burnt cloth pieces found on the spot. However, what is

recovered during the course of investigation is can having smell of petrol.

It is thus submitted that seizure of said can is subsequent to recording of

dying declarations and to corroborate its contents, said seizure of can is

established, as according to contents of dying declarations, deceased has

stated that she had poured petrol on her person while in the spot

panchanama, which was recorded prior to recording of dying declaration,

reference is to kerosene smell and by pointing out such contradictory case

of prosecution, it is submitted that recovery of can is just to establish

contents of dying declarations as aforesaid. It is contended that since

from above evidence, two versions are coming on record, neither of them

can be acted upon to establish guilt of accused. It is thus submitted that

case of prosecution is full of doubts and in fact, from the medical

documents, since history given by deceased is of her sustaining burn

injuries accidentally, case of accused of his false implication is found

substantiated. It is, therefore, prayed that appeal be allowed.

12) Shri Dubey, learned Additional Public Prosecutor for

respondent, on the other hand, has contended that in the evidence of

P.W.2 Triveni Jawade, mother, P.W.4 Ravindra Jawade, brother and

P.W.5 Sugandha Kambale, maternal aunt of deceased, there are no

material contradictions and thus, it is established that it is due to cruelty

caused to deceased by accused, she committed suicide. It is further

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contended that involvement of accused is also established from the dying

declarations on record, which are consistent with each other and thus, has

supported the impugned judgment and prayed for dismissal of appeal.

13) In the light of submissions advanced as aforesaid, it is found

necessary to first consider evidence of P.W.8 Ashok, Tiwari, Head

Constable, who has recorded first dying declaration (Exh. 33) and has

stated that on 3/10/1994 when he was attached to Police Chowky within

Sevagram Medical College was informed of admission of deceased Pramila

on having sustained burn injuries and, therefore, for recording her

statement, he visited the Hospital and after her physical condition was

certified to be fit by P.W.12 Dr. Sanjeev Jindal on memo of requisition

(Exh. 32), he recorded dying declaration wherein deceased has stated

that as accused had suspected her character, she was subjected to ill-

treatment and, therefore, she committed suicide by pouring petrol on her

person. Another ground alleged to be stated by deceased for commission

of suicide is that accused was demanding Rs.12,000/- from her father and

for that reason, she committed suicide. P.W.8 Ashok Tiwari, Head

Constable has proved dying declaration (Exh. 33) recorded on 3/10/1994

at 4.30 p.m. by him and on the basis of the same, had registered Crime

No.0/1994 with Police Station, Sevagram and forwarded documents in

the said crime along with Exh. 33 to Police Station, Pulgaon within whose

jurisdiction crime took place, for further necessary action.

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In cross-examination, P.W.8 Ashok Tiwari has admitted that

he required about an hour to record dying declaration (Exh. 33) and that

same is recorded in the absence of Medical Officer.

14) Above evidence is contradicted by evidence of P.W.12

Dr. Sanjiv Jindal, who has stated that on 3/10/1994 he was present in

Sevagram Hospital in whose presence deceased was admitted and has

certified her to be in a fit condition to make her statement as per his

medical endorsement (Exh. 40). In cross-examination, Doctor in clear

terms admitted that he was present throughout when statement was

recorded, as such this piece of evidence contradicts evidence of P.W.8

Ashok Tiwari. Even otherwise, admittedly evidence of P.W.8 Ashok

Tiwari, Head Constable is silent about his reading over contents of Exh. 33

to deceased and about her admitting same to be recorded as stated by her.

15) Similarly, evidence of P.W.11 Sulochana Nighade, Executive

Magistrate reveals that on the same day, i.e. on 3/10/1994 she visited

Sevagram Hospital for recording dying declaration and on obtaining

medical endorsement (Exh. 41) from Medical Officer certifying patient to

be in a fit condition to make a statement recorded dying declaration (Exh.

41) on 3/10/1994 at 4.40 p.m. Evidence of P.W.12 Dr. Sanjiv Jindal is

found corroborated when he has stated that on that day, on requisition

(Exh. 40), he on examining the physical condition of patient, made his

endorsement that the patient was fit to make a statement. As per further

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evidence of Executive Magistrate, she then recorded dying declaration

wherein deceased stated that as accused was suspecting her character and

was demanding dowry, she committed suicide by pouring petrol on her

body and set her person on fire as prior to that, quarrel took place

between her and accused. Above stated contents of subsequent dying

declaration about alleged quarrel between accused and deceased to have

taken place prior to her committing suicide are silent in her first dying

declaration, thus, there appears substantial inconsistencies in the dying

declaration. Similarly, evidence of P.W.11 Sulochana Nighade about

reading over contents of dying declaration to its maker and she admitting

contents of dying declaration to be recorded as stated by her are silent.

16) Similarly, from the evidence of P.W.8 Ashok Tiwari, Head

Constable and P.W.11 Sulochana Nighade, Executive Magistrate, it has

come on record that both these officials had recorded dying declarations

being Exhs. 33 and 41 on 3/10/1994 in the gap of 10 minutes as Exh. 33

was recorded at 4.30 p.m. and second dying declaration was recorded at

4.40 p.m. However, neither of these witnesses has attributed presence of

each other in Sevagram Medical College though in the cross-examination,

P.W.11 Sulochana Nighade has admitted presence of relatives of deceased

at that time. In that view of the matter, fact of recording such dying

declarations raises doubt. Moreover, as stated above, P.W.12 Dr. Sanjeev

Jindal was admittedly present when second dying declaration (Exh. 41)

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was recorded and he has also admitted that in his presence, first dying

declaration (Exh.33) was recorded. However, evidence of P.W.8 Ashok

Tiwari as aforesaid is clear that Medical Officer was not present when

Exh. 33 was recorded. In that view of the matter, learned Counsel for

accused has rightly placed reliance on the case of Parasram Chandrasha

Ghante (cited supra) wherein while considering credibility of dying

declaration, it is observed that dying declaration is such that it would take

some time to record. In that case, both dying declarations made to PSI

and Special Executive Magistrate were said to have been recorded at

11 p.m. on 15/9/2002. However, neither of these two witnesses had

made reference of each other and, therefore, both the dying declarations

were not relied since were not inspiring confidence as aspect of timing

raised a great doubt.

Similar are the facts in the appeal in hand wherein Exh. 33

and 41 both dying declarations are recorded on the same day in a gap of

10 minutes, however, scribes of both these documents have not made

reference of each other.

17) With regard to evidence of P.W.8 Ashok Tiwari, Head

Constable and P.W.11 Sulochana Nighade, Executive Magistrate being

silent on the aspect of reading over contents of dying declarations to

deceased, learned Counsel for accused has rightly placed reliance on the

case of Rama Rajdhar Koli and another (cited supra) where while

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considering admissibility of dying declaration recorded by Police, it is

noted that such witness, who has recorded dying declaration must state

specifically in his deposition that the statement was read over to deceased

and contents were accepted to be correct and that in the absence of such

evidence, so called statement of deceased cannot be treated as dying

declaration to base conviction. In that case, evidence of Doctor was also

not corroborating evidence of Police Officer, who has recorded dying

declaration.

Similar are the facts involved in the appeal in hand as there is

no evidence establishing that contents of dying declarations were read

over to deceased and evidence of P.W.8 Ashok Tiwari, Head Constable

and P.W.12 Dr. Sanjiv Jindal is totally contrary to each other about

presence of Doctor at the time of recording first dying declaration

(Exh. 33).

18) Looking to the evidence on record as aforesaid, case of

prosecution based on dying declarations is found to be full of doubts and

as such, cannot be accepted establishing involvement of accused.

19) While considering case of prosecution about alleged ill-

treatment provided by accused to deceased, due to which she committed

suicide, evidence of P.W.2 Triveni Jawade, mother of deceased, is to the

effect that deceased was married to accused in the year 1994 and while

she was cohabiting with him, she used to write letters to her wherein she

13 apeal268.99

has complained that accused was demanding Rs.12,000/- and on that

count, was providing her ill-treatment. On considering cross-examination

of this witness on this aspect, she appears to have materially improved her

version as she has deposed that in her statement recorded by Police,

though she has stated so, she is unable to assign any reason as to why fact

of accused demanding Rs.12,000/- as aforesaid is not mentioned in her

statement. Defence has got said omission duly proved from the evidence

of P.W.9 Vinod Parate, Investigating Officer, who has recorded statement

of P.W.2 Triveni Jawade.

Above omission is definitely found to be material in view of

case of prosecution of deceased committing suicide due to ill-treatment

alleged to be provided to her by accused. However, on considering the

same, by no stretch of imagination, it can be held that there was any

demand by accused. In fact, alleged letter has been duly admitted and is

marked as Exh.26 in the cross-examination of P.W.5 Sugandha Kambale,

maternal aunt of deceased since was referred to this witness in her cross-

examination and on going through its contents, P.W.5 Sugandha Kambale

has admitted that in said letter, Pramila has not complained that accused

was demanding Rs.12,000/-. In that view of the matter, the case of

prosecution fails on this count also being not reliable at all.

20) As pointed out on behalf of accused, it is further material to

note that according to evidence of P.W.1 Balmukund Vyas, witness on spot

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panchanama, said document came to be drawn in his presence on

3/10/1994 on visiting spot and has proved the spot panchanama as

(Exh.18). In the spot panchanama, there is reference of some pieces of

saree and blouse in burnt condition found lying on the spot, which were

emitting smell of kerosene while contents of Exhs. 33 and 41 reveal of

deceased committing suicide by setting her on fire by pouring petrol on

her person. In view of such contents, fact of burnt pieces of saree and

blouse emitting smell of kerosene does not corroborate with the version of

deceased. In that view of the matter, there appears much substance when

it is contended on behalf of accused that after recording dying

declarations as aforesaid on 3/10/1994, six days thereafter, i.e. on

9/10/1994 to corroborate contents of dying declarations about deceased

setting her on fire by pouring petrol on her person, one 5 litres' can having

smell of petrol is shown seized from the spot. It is also material to note

that there is no reference to any such can when spot panchanama came to

be drawn on the day of incident itself and burnt clothes and match box

came to be seized.

21) Having considered above aspects in appeal, prosecution

cannot be said to have established its case beyond reasonable doubt and in

fact, case of accused of his false implication appears to be more probable,

which is further found substantiated from the evidence of DW 3 Dr.

Nitnaware, who has deposed that at the time of incident, deceased was

15 apeal268.99

taking treatment from him as she was having white patches on the left

side of her person and for having such patches, she was nervous and had

developed mental depression. According to his evidence, any white patch

can be patch of leproxy. His evidence goes unchallenged about deceased

having white patches as deposed by him. Similarly, D.W.4 Dr. Dilip

Gupta, who at the material time was attached to Sevagram Medical

College, has stated that he as a Medical Officer was attending Burn Ward

and had seen medical papers of deceased, who was examined by P.W.12

Dr. Sanjiv Jindal and as per history stated by her and as shown on the

medical papers, she had sustained burn injuries accidentally.

22) On considering evidence on record as a whole, thus, it is seen

that prosecution has failed to establish its case against accused beyond

reasonable doubt and thus, following order is passed :

ORDER

(i) The criminal appeal is allowed.

(ii) The impugned judgment and order dated 10/9/1999 passed by learned Additional Sessions Judge, Wardha in Sessions Trial No.185/1995 convicting and sentencing appellant for the offences punishable under Sections 306 and 498-A of Indian Penal Code is set aside.

(iii) Fine amount, if any paid, be refunded to appellant.

JUDGE

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