Bombay High Court

State Of Maharashtra vs Shivaji Vithoba Mane And Ors on 11 August, 2017

Bench: S.V. Gangapurwala

                                        (1)                       252 cri. appeal 212.00

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                      CRIMINAL APPEAL NO. 212 OF 2000


      The State of Maharashtra                               ..        Appellant

               Versus

1.    Shivaji s/o Vithoba Mane,
      Age 28 yrs, Occ. Mechanic,


2.    Digamber s/o Venkat Mane,
      Age 28 yrs, Occ. Mechanic,
      both r/o Anandwadi, Tq. Nilanga,
      Dist. Latur.


3.    Gulab s/o Bhaurao Kasture,
      Age 40 yrs, Occ. Agriculture,
      r/o Bhagatwadi, Tq. Omerga,
      Dist. Osmanabad.                                       ..        Respondents

                                     ---
              Advocate for Appellant /State: Mr. R.V. Dasalkar
           Advocate for Respondents : Mr. D.S. Mali for R/1. To 3.
                                     ---

                                    CORAM :     S.V. GANGAPURWALA &
                                                MANGESH S. PATIL, JJ.

                                    DATE      : 11.08.2017

ORAL JUDGMENT :-

.              The accused persons were prosecuted for the offence

punishable under Section 498-A, 302, 201 r/w Section 34 of the Indian





                                          (2)                    252 cri. appeal 212.00

Penal Code (for short I.P.C.).         All these accused are acquitted by the

Sessions Court.          The state has filed the present appeal against the

accused nos. 1, 2 and 3. The state has not filed any appeal against

accused no.4, who was basically prosecuted for the offence punishable

under Section 498-A of the I.P.C.

2. The story of the prosecution is that the accused nos. 1, 2 and

3 on or about 05.11.1998 in the evening at about 6 p.m. met the

deceased Alka at the Bus Stand and told the deceased Alka that the

husband of Alka accused no.4 is waiting for her at Ausa and has called

her. Deceased Alka along with accused nos. 1, 2 and 3 came to Ausa by

Bus. On alighting at Ausa the deceased did not find her husband accused

no.4. It is the further case of the prosecution that the accused nos. 1, 2

and 3 told deceased that they have deliberately said that the accused

no.4 would come and further asked deceased to behave properly. The

accused nos. 1, 2 and 3 were on two motorcycles. Along with them they

took the deceased on the motorcycle through Lamjana road and during

the travel through the Lamjana road ahead of Ausa they stopped their

vehicles near a bush and one Shivaji Mane i.e. accused no.1 took out the

bottle containing poison and by force had made the deceased drink

poison. Thereafter, accused no.4 came in a jeep, took her to her

(3) 252 cri. appeal 212.00

maternal home at Tambarwadi and left. The parents of the deceased

Alka took her to the hospital after observing that she was vomiting and

deceased subsequently died.

3. To bring home the guilt, the prosecution relied on three

written dying declarations and three oral dying declarations. The oral

dying declarations were said to have been made to the father, mother

and uncle. One dying declaration is in the nature of the F.I.R., another is

recorded by the Tahsildar and the third by the Special Executive

Magistrate. The viscera was also sent for examination, the C.A. report is

received and which does not suggest any presence of poison.

4. Mr. Dasalkar, the learned A.P.P. for the appellant submits that

the dying declarations are consistent with each other. There is

consistency with regard to the acts attributed to accused nos. 1, 2 and 3,

minor variations in the dying declarations would not affect the veracity of

it, nor the same would be unsafe to rely. The learned A.P.P. further

submits that considering the consistency in all the three dying

declarations and the oral dying declarations the offence as alleged

against the accused is proved. The evidential value of dying declarations

is on higher pedestal. The learned A.P.P. submits that the motive is also

writ large. These accused nos. 1, 2 and 3 did not appreciate the inter

(4) 252 cri. appeal 212.00

caste marriage between the deceased and their brother. In the light of

that, the offence ought to have been held to be proved.

5. Mr. Mali, the learned counsel for the accused supports the

order.

6. It would be seen that the Panchnamas exhibit 14 and 15 are

admitted. The prosecution had examined 12 witnesses. Basically the

case of the prosecution revolves around the dying declarations. The

deceased had passed B.A.M.S. and she had started her own dispensary

at village Kasarshirsi prior to seven months of the alleged incident.

7. It would appear that Sachin the brother of the deceased was

present in the house when the deceased had come to her maternal

home. Said Sachin ought to have the knowledge that the deceased had

administered the poison. The Investigating Officer / PW-12 has admitted

in the evidence that during the investigation, it transpired that when

deceased came to the house, it was not disclosed by the deceased to her

parents that she was administered poison. One of the circumstance

brought on record was that in the village itself there was a Rural

Hospital, however, the deceased was carried up to a distance of 40 kms.

The circumstance do not suggest that the deceased had at any time

(5) 252 cri. appeal 212.00

disclosed to her parents that the accused persons had administered her

poison. The circumstance coupled with the evidence of PW-12 would

suggest the same.

8. If there are multiple dying declarations the same have to be

consistent. The dying declaration in the form of a F.I.R. recorded by the

Police Sub-Inspector, if considered it would be clear that the deceased

was narrating the facts to Sarjerao PW-8 and who in turn was dictating to

his writer Police Constable. The said PW-8 obtained the endorsement of

Medical Officer on the statement of the deceased. Said Dr. Nilkanth PW-

10, admitted in the cross-examination that the relatives from the

maternal side of the deceased brought her to the hospital and he did not

notice any external injuries on the person of the deceased. The original

case papers exhibit-41 are totally silent on the point of recording of the

dying declaration and endorsement made by PW-10. Prior to recording

the statements endorsement was obtained by PW-8. History of the

patient was given by the parents, as such, the presence of parents at the

time of recording the statement is not ruled out. The nature and type of

the language used in the same also does not appear to be of a common

person. The another dying declaration exhibit-28 does not bear the

endorsement of the Medical Officer regarding the condition of the

(6) 252 cri. appeal 212.00

deceased. The PW-6 who recorded the dying declaration also does not

know the name of the Medical Officer who was present. Whether

deceased was in a fit state of mind to make a statement is also not

verified by him. On the contrary, PW-6 admitted in his evidence that the

condition of the deceased was critical when the statement was recorded.

He has also not mentioned the timings of the recording of the said

statement.

9. The third dying declaration exhibit-37 recorded by the Special

Executive Magistrate is in a printed form. The questions are printed,

whereas, the answers are written with the help of a ball pen. The said

Special Executive Magistrate admitted that he did not ask any other

questions except the printed questions appearing on exhibit-37. The

Medical Officer, Dr. G.S. Munde has simply signed it without ascertaining

whether the blank space in the medical certificate regarding the condition

of the patient had really been filled in. It is also admitted by the said

witness that after finishing the statement, he realized that some of the

columns remained to be filled in by the Medical Officer. He then brought

those columns to the notice of the Medical Officer. The Medical Officer

told him that he was busy and has to go for operation and therefore he

did not fill in those columns. The testimony of PW-11 Dr. G.S. Munde is

(7) 252 cri. appeal 212.00

silent that he wanted to go for emergency operation and so he did not fill

in the blank spaces. The said Dr. G.S. Munde further admitted in the

cross-examination that there is no endorsement in his handwriting at

exhibit-45 when he examined the patient at 9.00 am. He also admitted

that the certificate at the foot of the statement exhibit-37 is not filled in

by him though he signed below it. The statement exhibit-37 suffers from

infirmities.

10. There are discrepancies with regard to the act of the

individual accused. In exhibit-31 the deceased stated that the accused

no.1 Shivaji took one bottle containing poison and administered the same

to the deceased forcibly. In exhibit-28, the deceased stated that accused

nos.1, 2 and 3 had administered the poison which was brought in white

bottle. In exhibit-28, the deceased stated that accused nos. 1, 2 and 3

are residents of Bhagatwadi, whereas, these accused are all residents of

Anandwadi. The three dying declarations suffer from inconsistencies

more particularly with regard to the disclosure of the facts about the

incident, participation of the accused in administering the poison forcibly

to the deceased.

11. Over and above that, the viscera was sent for examination,

the C.A. report is also received. The said report reads as under:

                                            (8)                      252 cri. appeal 212.00

              "Exhibit No.18
              DESCRIPTION OF PARCEL/S

--One sealed plastic dabba seals intact and as per copy sent.

DESCRIPTION OF ARTICLES CONTIANED IN PARCEL/S

--Semi solid mass stated to be vomitus in a plastic dabba labelled-'Vomitus'

--Exhibit is also labelled 'Alkabai Yuvraj Mane'

RESULTS OF ANALYSIS

--General and specific Chemical testing done not reveal any poison in the exhibit

Exhibit No.19 DESCRIPTION OF PARCEL/S

--One sealed cardboard box containing, two sealed plastic bottles.

--Seals intact and as per copy sent.

DESCRIPTION OF ARTICLES CONTIANED IN PARCEL/S

1. Viscera in a plastic bottle labelled bottle No.(1).

--Stomach with its contents, small intestine with its contents--