Ramesh Mahadeo Tiple vs The State Of Mah.Thr.Pso Wardha
2017 Latest Caselaw 5793 Bom

                                         1                                     apel582.04




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.582 OF 2004


 Ramesh s/o Mahadeo Tiple,
 Aged 45 years, 
 R/o Telanghedi Ward, Hinganghat,
 Tahsil - Hinganghat, District - Wardha.                     ....       APPELLANT


                     VERSUS


 The State of Maharashtra, 
 through Police Station Officer, 
 Police Station, Hinganghat, District -
 Wardha.                                                     ....       RESPONDENT

 ______________________________________________________________

               Shri S.B. Solat, Counsel for the appellant, 
            Shri N.B. Jawade, Addl. P.P. for the respondent. 
  ______________________________________________________________


                              CORAM :    ROHIT B. DEO, J.

                           DATED   :     9
                                              AUGUST, 2017
                                           th




 ORAL JUDGMENT : 

1. Heard Shri S.B. Solat, learned Counsel for the appellant

and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent.

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2. By the present appeal, exception is taken to the judgment

and order dated 15-07-2004 delivered by the learned Sessions Judge,

Wardha in Sessions Trial 63/2000 convicting the appellant for offence

punishable under section 308 of the Indian Penal Code and imposing

sentence of rigorous imprisonment for three years and payment of fine

of Rs.5000/-, in default of which further rigorous imprisonment for six

months.

3. The case of the prosecution, sans unnecessary details is

that the deceased Baby was in a live-in relationship with the appellant

(hereinafter referred to as the "accused"). The relationship was

turbulent and there were frequent quarrels. The incident took place on

25-01-2000 at about 9.30 p.m. A quarrel ensued between the accused

and Baby during the course of which uncharitable accusations were

allegedly made by the accused against Baby. Enraged Baby poured

kerosene over her person. The accused lighted a match stick and set

her a fire. The accused himself took her to the hospital. Baby's

statement was recorded by a police officer vide Exhibit 32 on the basis

of which offence was registered as Crime 30/2000. Baby's statement

was again recorded by the executive magistrate vide Exhibit 37. Baby

succumbed to her injuries. Spot panchanama and inquest panchanama

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were drawn vide Exhibits 21 and 24 respectively. One plastic can, one

stick, match box, one wooden board, burnt pieces of clothes and earth

mixed with oil were seized from the spot vide seizure panchanama

Exhibit 22. An autopsy was conducted and the medical report opined

that the death was due to extensive burns. Further investigation

ensued, statements of witnesses were recorded and the accused charge-

sheeted. The learned Judicial Magistrate First Class committed the

proceedings to the Court of Sessions for trial which framed charge for

offences punishable under sections 498-A and 302 of the Indian Penal

Code. The accused pleaded not guilty and claimed to be tried.

4. The prosecution examined six witnesses while the defence

examined two witnesses. P.W.1 Rafiq Khan proved the spot

panchanama at Exhibit 21. During cross-examination, Rafiq Khan has

denied the suggestion that the panchanama was prepared by the police

in his absence. P.W.2 Madhukar Katkar who is the brother of deceased

Baby deposed that she was living with the accused for a year and half

before her death at Hinganghat. He states that upon receiving

information that Baby died due to burn injuries, he visited the hospital

at Hinganghat. During the cross-examination, Madhukar Katkar

admits that Baby was married to one Tadas and from the wedlock a

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child was born. He further admits that the son of the deceased expired

in a drowning accident six months prior to the incident. He denies the

suggestion that the deceased Baby was mentally disturbed due to the

death of her son. He further denies the suggestion that the deceased

was not living with the accused. P.W.3 Chhabu Madavi was examined

to bring on record the turbulent relationship of the accused with Baby.

He did not support the prosecution and was declared hostile and cross-

examined. During the cross-examination, Chhabu Madavi admits that

the deceased was living with accused. However, he denies the

suggestion that there used to quarrels between the deceased and the

accused and that the accused used to assault the deceased. A specific

suggestion is put to Chhabu Madavi that the accused was quarreling

and physically ill-treating the deceased for four to five days before the

incident, which suggestion is denied. Chhabu Madavi was also cross-

examined by the defence and he admits that the deceased was living

alone in the house owned by one Ramdas Mendhe. P.W.4 Sudhakar

Meghare who was then attached to police station Wardha as assistant

sub-inspector has deposed that he recorded the statement of the

deceased pursuant to permission granted by the doctor. He deposes

that the doctor certified that the deceased was fit to give a statement.

He claims that the deceased told him that accused was saying that he

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would set her ablaze. The witness deposes that according to the

deceased, she poured kerosene over her person and the accused set her

on fire. According to the said witness, the deceased also told him that

it was the accused who extinguished the fire and took her to the

hospital. He says that he obtained the thumb impression of Baby on

the statement at Exhibit 32 which also bears an endorsement by the

doctor. The witness denies the suggestion in the cross-examination

that Baby was being administered oxygen. He further denies the

suggestion that Baby was not in a position to speak. He, however,

admits that the facial portion including the lips of deceased were

burnt. He further admits that neck, chest and back portion of the

injured Baby was burnt. He says that he did not ask the doctor to write

the date and time below the endorsement in Exhibit 32. He denies the

suggestion that the contents in Exhibit 32 were not narrated by Baby.

P.W.5 Balwant Kawadkar who was then executive magistrate at

Hinganghat has deposed that on 25-01-2000 he received the

requisition to record the statement of Baby and the accused. He claims

to have visited the Rural Hospital, Hinganghat and after enquiring

about the patient from the concerned clerk, to have approached Baby.

He states that he enquired from Baby and recorded her statement as

per her say. He states that Baby informed him that pursuant to a

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quarrel with her husband, she poured rock oil over her person and was

set a fire by her husband. He states that he obtained the thumb

impression of Baby on her statement at Exhibit 37. He states that the

doctor had come near Baby. He further states that he also recorded

the statement of the accused who was also admitted to the same

hospital. In cross-examination, P.W.5 admits that he did not peruse the

medical history papers of the patient. He states that there was one

person near the patient. He admits that Baby was being administered

oxygen. He admits in the cross-examination that there was no one

available with whom he could have enquired about the patient. He

denies the suggestion that he is not the author of Exhibit 37. He states

that the doctor came 5 to 10 minutes after recording of the statement

Exhibit 37. No police officer was near the patient and there were many

patients admitted in the ward. He denies the suggestion that the

contents of Exhibit 37 were narrated to him by the police. P.W.6 Arjun

Raut is the investigating officer. He was then attached to police station

Hinganghat as P.S.I. He received the case papers on 26-01-2000 and

claims to have visited the spot and prepared spot panchanama Exhibit

21. He has proved the seizure panchanama Exhibit 23 and the inquest

panchanama exhibit 24. He states that he sent the dead body for post-

mortem and recorded the statements of Chhabu Madavi and others.

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He states that he arrested the accused and presented the charge-sheet

in the court of Judicial Magistrate First Class. He admits that he did

not record the statement of the person who admitted Baby in hospital

nor did he enquire as to who accompanied Baby to the hospital. He

admits that he did not record the statement of the auto-rickshaw

driver. He admits that he did not enquire about the previous marriage

and claims ignorance of the death of the son of Baby in drowning

accident.

5. D.W.1 Vasanta Katkar states that Baby was living at

Hinganghat while accused was residing at village Shirud. He says that

accused Ramesh is to keep his cycle at the residence of Baby at

Hinganghat. He states that on the date of the incident at 9-00 p.m. he

and the accused visited the residence of Baby to collect the cycle.

Accused entered the house and started shouting. Neighbours

assembled near the spot. Accused was attempting to extinguish the

fire. He states that one Arun Katkar took both Baby and Ramesh to the

hospital. He states that Arun Katkar is Baby's brother. This witness

further states that deceased Baby was his cousin. He claims that he

was in hospital for ten to fifteen minutes. In cross-examination, D.W.1

states that his statement was not recorded by police nor did he inform

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the police about the incident. He admits that he was waiting outside

while Ramesh had entered the residence of Baby and claims ignorance

of any conversation between accused and Baby. He denies the

suggestion that he was not present on the spot and was deposing

falsely to save the accused. D.W.2 Ramdas Medhe states that Baby was

his neighbour in his own house at Hinganghat and was married to a

person from Parda. Baby was dealing in vegetables and was his tenant

for fourteen months. He states that the accused was not living with

Baby. In the cross-examination, he admits that the accused was

keeping his cycle at the house of Baby. He clarifies that the reference

is to his house. He accepts that he was at Pipalgaon when Baby

received injuries and denies the suggestion that Baby and accused were

living together as husband and wife in his house. He denies the

suggestion that he was attempting to save the accused.

6. The statement of the accused was recorded under Section

313 of the Criminal Procedure Code, 1973. The version of the accused

is that he was keeping his cycle at Baby's house while going for duty.

He states that he saw smoke and alongwith her cousin entered the

house. He states that he extinguished the fire and both he and Baby

were taken to the hospital.

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7. The learned Sessions Judge was pleased to record a

finding that no offence is made out under section 498-A of the Indian

Penal Code. The learned Sessions Judge has also recorded a finding

that the prosecution was unable to bring home the charge that the

accused committed an offence punishable under section 302 of the

Indian Penal Code. The learned Sessions Judge, however, held that

the accused did commit an offence punishable under section 308 of the

Indian Penal Code. This is on the premise that although the accused

did not have any intention to kill Baby, he can be attributed with the

knowledge that by setting Baby afire and then immediately attempting

to extinguish the fire, death may ensue.

8. The conviction recorded by the learned Sessions Judge is

based on the two dying declarations recorded by the police and the

executive magistrate, P.W.4 and P.W.5 respectively. The learned

Sessions Judge was also persuaded to reject the testimony of the two

defence witnesses.

9. With the assistance of the learned Counsel for the accused

and learned Additional Public Prosecutor for the prosecution, I have

given my anxious consideration to the material on record and the

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reasons recorded by the learned Sessions Judge for convicting the

accused under section 308 of the Indian Penal Code. I am afraid I am

not persuaded to uphold the conviction, and for reasons spelt out infra,

the alleged dying declarations do not, in my opinion, inspire

confidence. It is an admitted position on record that the accused

suffered burn injuries while attempting to extinguish the fire and was

admitted to the hospital alongwith the deceased Baby. Perusal of the

memorandum of post-mortem examination Exhibit 27 reveals that the

skin of the deceased was completely charred except a portion below

umbilicus of 28 x 30 cm. dimension. Larynx, trachea and bronchi were

filled with black soot. The probable cause of death is stated to be

hypovolemic shock due to extensive burns. The prosecution did not

examine any medical expert to throw light on the nature and extent of

burn injuries. Pertinently, although the two dying declarations

purportedly bear endorsements of doctors, the doctor/doctors were not

examined during the course of the trial. No material is brought on

record to suggest that any attempt was made to secure the presence of

the medical practitioners who allegedly endorsed that the deceased

was fit to give a statement. No material is brought on record to suggest

that the doctors who allegedly are the authors of the endorsements on

the two dying declarations were not available to the prosecution and

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could not be examined due to such unavailability. The first dying

declaration is allegedly recorded by P.W.4-A.S.I. police station

Hinganghat on 25-01-2000 (Exhibit 32). P.W.4 has deposed that he

was permitted by the doctor to record the statement of the injured

Baby. Such permission, P.W.5 claims, was given after the doctor

examined Baby. P.W.4 also claims that Exhibit 32 bears endorsement

of the doctor. The name of the doctor is not disclosed. The

prosecution has made no attempt to examine the doctor who allegedly

made the endorsement that Baby was fit to give statement. P.W.4

admits that the facial portion of the injured including her lips were

burnt. The executive magistrate P.W.5 claims to have recorded the

dying declaration on 25-01-2000. He admits that the doctor did come

near Baby. However, P.W.5 did not peruse the medical history of the

patient. P.W.5 has admitted that when he allegedly recorded the dying

declaration Exhibit 37, Baby was being administered oxygen. He

further admits that the doctor came five to ten minutes after he

recorded the statement of the Baby. Obviously, P.W.5 made no efforts

to seek medical opinion about the fitness of Baby to give a statement.

The alleged endorsement of the medical officer at Exhibit 37 which is

to the effect that the medical officer was present from commencement

to the conclusion of the statement recorded by P.W.5, is falsified by the

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oral evidence of P.W.5. P.W.5 does not even claim in the examination-

in-chief that the medical officer was present when he recorded dying

declaration Exhibit 37. On the contrary, P.W.5 admits in the cross-

examination that the doctor came after five to ten minutes of the

conclusion of the recording of Exhibit 37. I have no hesitation in

holding that the two dying declarations Exhibits 32 and 37 allegedly

recorded by P.W.4 police officer and P.W.5 executive magistrate do not

inspire confidence and are unreliable to say the least.

10. If the two dying declarations Exhibits 32 and 37 are

excluded from consideration, there is absolutely no evidence on record

to bring home the charge under Section 308 of the Indian Penal Code.

The prosecution has miserably failed to prove the charge beyond

reasonable doubt. The judgment impugned, in my opinion, is

manifestly erroneous and cannot sustain the scrutiny of law even for a

moment.

11. The appeal is allowed. The judgment and order dated

15-07-2004 passed by the learned Sessions Judge, Wardha in Sessions

Trial 63/2000 is set aside. The bail bonds of the accused stand

discharged. The appellant be released from custody forthwith, if not

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required in any other offence.

JUDGE

adgokar