Bombay High Court
Rajesh @ Pappu S/O Madanlal Joshi ... vs The State Of Maharashtra, Through ... on 18 August, 2017
Bench: Ravi K. Deshpande
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apeal45.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Appeal No.45 of 2016
1. Rajesh @ Pappu s/o Madanlal Joshi,
Aged about 32 years,
Occupation - Handcart Puller.
2. Smt. Vimal w/o Madanlal Joshi,
Aged about 53 years,
Occupation - Housewife.
3. Pawan @ Omi s/o Madanlal Joshi,
Aged about 31 years,
Occupation - Handcart Puller.
All R/o. C/o. Govind Mahajan,
Near Sargam Bichhayat Kendra,
Lalganj Gujri, P.S. Lakadganj,
Nagpur.
(In Nagpur Jail) ... Appellants
Versus
The State of Maharashtra,
through P.S.O.,
P.S. Lakadganj,
Nagpur. ... Respondent
Shri R.M. Daga, Advocate for Appellants.
Shri S.A. Ashirgade, Additional Public Prosecutor for Respondent.
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apeal45.16.odt
Coram : R.K. Deshpande & Manish Pitale, JJ.
th
Date of Reserving the Judgment : 9 August, 2017
Date of Pronouncing the Judgment : 18th August, 2017
Judgment (Per R.K. Deshpande, J.) :
1. The appellants/accused by way of this appeal have
approached this Court challenging the judgment and order
passed by the learned Sessions Judge, Nagpur, on
14-8-2015 in Sessions Trial No.110 of 2014, thereby convicting
them under Section 235(2) of the Criminal Procedure Code for
the offence punishable under Section 498-A read with Section 34
of the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for three years and to pay a fine of Rs.1,000/-
each, in default to suffer further R.I. for six months. They are
also convicted for the offence punishable under Section 302 read
with Section 34 of the Penal Code and sentenced to suffer
imprisonment for life and to pay a fine of Rs.1,000/- each, in
default to suffer further R.I. For one year. Both the sentences
apeal45.16.odt
imposed are ordered to run concurrently. The alternate charge
framed under Section 304-B of the Indian Penal Code is held to
be does not survive.
2. Deceased Sangita was married with accused No.1 Rajesh
on 24-6-2012. Accused No.2 Vimal and accused No.3 Pawan are
the mother and the brother of accused No.1 Rajesh respectively.
All the accused persons were residing jointly in the rented
premises of one Govindrao Mahajan, located in Lakadganj area,
Nagpur. After the marriage, deceased Sangita joined the
company of accused No.1 Rajesh at her matrimonial home. She
begotton a son, viz. Jay, who was six months' old at the time of
incident.
3. The unfortunate incident of burning of victim Sangita
occurred on 8-11-2013 in the matrimonial home in the wee
hours of morning at 7 a.m. resulting in 91% burns to her. She
was admitted in the Mayo Hospital at Nagpur for medical
treatment and ultimately she succumbed to the burn injuries on
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13-11-2013 at about 5 p.m. Pursuant to the FIR, the offence was
registered under Section 307 read with Section 34 of IPC at
Police Station Lakadganj vide Crime No.351 of 2013. All the
appellants being made accused were arrested on 8-11-2013 at
22.50 hours. While the victim was fighting for her life, two dying
declarations were recorded on 8-11-2013 -
one by PW 2-Tryambak Kamble, the Special Judicial Magistrate,
and another by PW 9-Smt. Shubhangi Wankhede, the Assistant
Police Inspector. After the death of victim Sangita, the
appellants/accused were prosecuted ultimately for the offences
punishable under Sections 498-A, 302 and 304-B read with
Section 34 of the Indian Penal Code, which were registered
against them.
4. It was alleged in the charge framed on 7-5-2014, as
modified on 6-4-2015, that the appellants/accused, in
furtherance of their common intention, subjected victim Sangita
mental and physical cruelty and harassment during her
cohabitation with accused No.1 Rajesh at the matrimonial home
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for unlawful demand of money and on account of suspicion on
her character, etc., and have committed the offence punishable
under Section 498-A read with Section 34 of the Indian Penal
Code. It is further alleged that the appellants/accused on
8-11-2013 in between 5 a.m. and 7 a.m. at the dwelling house of
the accused, in furtherance of common intention, did commit
murder intentionally and knowingly causing death of victim
Sangita, thereby committed an offence punishable under
Section 302 read with Section 34 of the Indian Penal Code.
5. In the alternative, it was alleged in the charge that in
furtherance of common intention, the accused subjected
deceased Sangita to cruelty for demand of dowry and her death
occurred by burns or otherwise than in the normal circumstances
within seven years of her marriage and soon before her death,
she was subjected to cruelty or harassment in connection with
the demand of dowry and thereby committed an offence of
dowry death punishable under Section 304-B read with
Section 34 of the Indian Penal Code.
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6. The learned Sessions Judge by his judgment and order
dated 14-8-2011 delivered in Sessions Trial No.110 of 2014, held
all the accused guilty of the offences punishable under
Sections 498-A and 302 read with Section 34 of the Indian Penal
Code. This is the subject-matter of challenge in this appeal.
7. Relying upon the oral evidence of PW 7 Dr. Pankaj
Ghodmare, who conducted autopsy on the mortal remains of
victim Sangita, it is held that the post mortem report at
Exhibit 32 is proved and also relying upon the inquest
panchanama at Exhibit 27, it is held that the prosecution has
succeeded in proving that the death of victim Sangita occurred
due to septicemia following burns. Though it is held that there
were no internal injuries found and no direct evidence is
available on record, the circumstantial evidence brought on
record has established the guilt of the accused.
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8. Relying upon the oral evidence of PW 5 Sandeep Shroti,
the brother of victim Sangita; PW 4 Ranjana, the neighbour,
PW 8 Smt. Minakshi Kamble, the Social Activist and Member of
Women Cell; and the documents produced on record consisting
of Exhibit 46, the complaint to the Women Cell; Exhibits 45 and
47/1, the compromise-deeds/settlements entered into between
the accused No.1 Rajesh and victim Sangita, it is held that the
prosecution witnesses have candidly established that there was a
hostile atmosphere at the matrimonial home of the victim. The
accused No.1 nurtured hatred and malice towards the victim and
he used to suspect about the character, which establishes the
motive for the accused to eliminate the victim. These were the
findings to hold the accused guilty of the offence under
Section 498-A read with Section 34 of the Indian Penal Code.
9. The oral testimony of PW 2 Tryambak, the Special
Judicial Magistrate, and of PW 6 Dr. Vivek Ghate, have been
relied upon to hold that Exhibit 25, the first dying declaration of
the victim recorded, has been proved. The second dying
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declaration at Exhibit 60 is held to be proved on the basis of the
oral evidence of PW 9 Shubhangi, the Investigating Officer,
supported by the oral evidence of PW 6 Dr. Vivek. It is held that
Dr. Vivek was present throughout recording of the dying
declarations at Exhibits 25 and 60 and both these dying
declarations contain the endorsement under his signature that
the patient is conscious, and the statements were recorded before
him and the thumb impression was also obtained in his presence.
On the basis of these dying declarations, the accused are held
guilty of the offence punishable under Section 302 read with
Section 34 of the Indian Penal Code.
10. The Sessions Court rejected the theory of tutoring the
victim by her relatives before the dying declarations were
recorded. The theory of accidental death while heating the water
on the stove is also rejected relying upon the post mortem report
at Exhibit 32, the spot panchnama at Exhibit 28 and the
Chemical Analyzer's report at Exhibit 18. The story of suicide is
also disbelieved and it is held that no explanation, as
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contemplated by Section 106 of the Evidence Act is furnished by
the accused in a custodial death. The Court takes into account
the conduct and demeanor of the accused persons previous and
subsequent to the alleged incident of burning. It rejects the
evidence of DW 1 Rajendra Juwarkar, who was on duty at Mayo
Hospital, as Incharge of Police Chowki.
11. Shri R.M. Daga, the learned counsel appearing for the
appellants, invited our attention to Exhibit 23, which is the first
intimation given on 8-11-2013 to the Special Judicial Magistrate,
Nagpur by Police Sub-Inspector M.K. Dubey at Police Station
Lakadganj, Nagpur. The intimation was received by the Special
Magistrate at 1.45 p.m. informing that patient Sou. Sangita
Rajesh Joshi is admitted in Ward No.3 of Mayo Hospital for
medical treatment of burns suffered by her on account of
accidental bursting of stove used while boiling the water. He
also invited our attention to Exhibit 81, which is an entry in the
station diary at Police Booth at Mayo Hospital, wherein it is
stated that while boiling the water, there was accidental blast of
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stove, as a result of which, victim Sangita suffered serious burn
injuries and she has been admitted in Ward No.3 of Mayo
Hospital for medical treatment. This was the entry on 8-11-2013
at 07.25 hours. He also invited our attention to Exhibit 51,
which is a letter issued on 8-11-2013 by Head Constable Raju in
Police Station Lakadganj informing the House Officer, Mayo
Hospital, Ward No.3, about the accidental death of victim
Sangita and asking for a declaration as to whether the patient is
fit for recording the statement. According to Shri Daga, these
documents clearly establish that the victim herself reported
accidental death.
12. Shri Daga further invited our attention to Exhibit 25,
which is a dying declaration recorded by PW 2 Tryambak, the
Special Judicial Magistrate, putting the date and time of
recording it as 8-11-2013 at 2.20 noon. He invited our attention
to the oral testimony of PW 9 Shubhangi, Assistant Police
Inspector, in which it is stated that despite direction to Head
Constable Raju for the statement of victim Sangita, Shri Dubey
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did not receive the relevant documents from the Special Judicial
Magistrate up to 5 'o Clock and, therefore, she herself along with
Dubey rushed to Mayo Hospital and visited patient Sangita. She
further states that after permission from the concerned doctors
on requisition of Police Sub-Inspector Dubey, she herself
recorded the statement of Sangita and at that time, PSI Dubey
and the concerned doctors were present near the bed of the
patient. According to Shri Daga, Exhibit 25 cannot, therefore, be
the first dying declaration recorded on 8-11-2013 at 2.20 p.m.
13. According to Shri Daga, Exhibit 60 can only be the first
dying declaration. Inviting our attention again to Exhibit 25, the
dying declaration, Shri Daga submits that though Dr. Vivek
certifies that the patient is conscious and the statement was
recorded before him, he does not put the time of these
endorsements at Exhibits 25A and 25B contained in Exhibit 25.
He submits that the endorsement at Exhibit 53 in the another
dying declaration at Exhibit 60 records the time as 6.45 p.m. on
8-11-2013 for granting declaration of fitness and certifying that
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the statement is recorded in his presence. According to him,
Exhibit 60 was the first dying declaration, the recording of which
concluded at 6.45 p.m. and the story of dying declaration at
Exhibit 25 was concocted. He submits that Police Sub-Inspector
Dubey was present throughout the recording of both the dying
declarations, but he was not examined as a witness.
14. Shri Daga further submits that Head Constable Raju
sought permission from the House Officer Dr. Vivek, which is at
Exhibit 51. Dr. Vivek made an endorsement at Exhibit 51 that
the patient is fit to give statement and the time put thereon was
12.15 noon. According to him, one more declaration was
recorded by Head Constble Raju, which was of accidental death,
but that is suppressed and not disclosed.
15. Coming to the contents of both the dying declarations at
Exhibits 25 and 60, Shri Daga invites our attention to the
endorsements contained in it showing that the right hand thumb
impression of victim Sangita is obtained on both the dying
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declarations and the Special Judicial Magistrate puts his
signature to acknowledge such impression made before him on
Exhibit 25. Exhibit 25 also bears an endorsement by
PW 6 Dr. Vivek, the House Officer, to the effect that the thumb
impression obtained in his presence and it is marked as
Exhibit 25/A. Such acknowledgment is not there by
PW 9 Shubhangi, who wrote the dying declaration at Exhibit 60,
though the right hand thumb impression of the victim shown to
have been obtained.
16. Inviting our attention to the post mortem report at
Exhibit 32, Shri Daga submits that the right upper limb, left
upper limb, right lower limb, and left lower limb are completely
burnt. He further invites our attention to the inquest panchnama
at Exhibit 27, which clearly records on 13-11-2013 that both the
hands of victim Sangita are burnt and on the thumb of the right
leg, there is an impression of blue ink. He invites out attention to
the contents of Exhibit 25, wherein victim Sangita answers
question No.11 stating that her both the hands and legs are
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burnt. According to him, this evidence clinchingly creates a
doubt about truthfulness of both the dying declarations.
17. Referring to the panchnama at Exhibit 28, Shri Daga
invites our attention to the items seized from the spot of incident,
and the seizure of match box or match sticks is conspicuously
missing from the items of seizure. He further invites our
attention to the requisition at Exhibit 33 forwarded on
22-11-2013 to the Regional Forensic Science Laboratory,
containing a match box filled with eight match sticks, including
one found to be burnt and sealed in a packet as item at serial
No.3, bearing Exhibit A-2. He further invites our attention to the
Chemical Analyzer's report at Exhibit 18, submitted on
12-3-2014, describing articles contained in the parcel, one of
which being Exhibit 3, the match sticks in match box wrapped in
paper labelled as A-2. Shri Daga submits that in the absence of
seizure of match box or match sticks from the spot of incident on
8-11-2013, it could not have been found in the sealed packet
forwarded to the Laboratory and also in the Chemical Analyzer's
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report.
18. On the question of the findings in respect of offence
under Section 498-A of the Indian Penal Code, Shri Daga invited
our attention to the oral evidence of PW 5 Sandeep Shroti, the
brother of victim Sangita, which has been heavily relied upon by
the Sessions Court. In para 9 of the cross-examination, the
attention of this witness was invited to certain omissions in the
statement recorded by the police. Simultaneously inviting our
attention to the oral evidence of PW 9 Shubhangi, the
Investigating Officer, it is urged that the omissions have been
established and hence the evidence of PW 5 Sandeep Shroti
becomes unreliable. He further submits that the testimony of
PW 5 Sandeep is also not supported by other witnesses
PW 1 Roshan and PW 4 Ranjana, the neighbourers of the victim.
He submits that no significance can be attached to Exhibits 45
and 47/1, the compromise-deeds/settlements between accused
No.1-Rajesh and victim Sangita. According to Shri Daga, at the
most the evidence may be admissible against accused No.1 and
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there is no evidence against accused Nos.2 and 3 on the
allegations under Section 498-A of the Indian Penal Code.
19. We have heard the learned counsels for the parties at
length. We also adjourned the matter from time to time so as to
enable the learned counsels to address us on various aspects of
the matter, including the charge under Section 304-B of the
Indian Penal Code which the learned Judge of the Sessions Court
has held as does not survive. In the absence of acquittal of the
accused for the offence under Section 304-B of the Indian Penal
Code, we called upon the learned counsels to address us on this
aspect of the matter also. We granted them time for this
purpose. Accordingly, we have heard the learned counsels and
perused the original record of the Sessions Court.
20. The incident occurred on 8-11-2013 at about 7 a.m. The
victim was taken to the Mayo Hospital by accused
No.1-Rajesh along with others, where she was admitted in Ward
No.3. At that time, DW 1-Head Constable Rajendra Juwarkar
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was on duty on the Police Booth at Mayo Hospital. He has
entered the witness-box as a defence witness and proved entry at
Exhibit 81 in the station diary at 7.25 a.m. on 8-11-2013. The
entry is regarding serious burns suffered by the victim on account
of accidental blast of burning stove while boiling the water. The
entry is in Marathi and it states that victim Sangita caught
accidental fire and because of her shouting, accused Rajesh got
up from his bed, poured the water and extinguished the fire. The
oral evidence including the cross-examination of this witness
being relevant and short, is reproduced below :
"Examination-in-chief on behalf of accused no.3 by
Advocate Mr. Bhangade.
In the intervening night between 7.11.2013 to
8.11.2013 up-till 10.00 a.m. I was assigned the duty at
Police Chowky at Mayo Hospital, Nagpur. On that day,
P.H.C. Nagrare was accompanied with me on duty at
Mayo Hospital Police Chowky. On 8.11.2013 at about
7.25 a.m. the injured Sangita Rajesh Joshi was admitted
in the hospital for her burn. She was brought by her
husband Rajesh. I asked the history of the burn to him
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and he disclosed that his wife Sangita was heating the
water on the stove and her clothes caught fire due to the
bursting of the stove. I reduced into writing the history of
the burn of patient Sangita by her husband Rajesh in the
station diary kept in the same to Lakadranj P.S. for
further process. My associate P.C. Nagrare reduced into
writing the history of burn in the station diary. The
attested true copy of the station diary of Mayo Hospital
Police Chowky now shown to me is the same. It was
attested by my superior Shri Khandekar. I identify his
signature. The photostat copy of the station diary of Mayo
Hospital Chowky is at Exh.81.
Cross Examination on behalf of prosecution by
Mr. D.M. Kolhe, A.P.P.
I had not recorded the statement of patient Sangita.
Her husband Rajesh disclosed to me that her plight was
worst and therefore, it was essential to get his wife Sangita
admitted in the hospital as early as possible. Therefore,
I had not recorded her statement.
Re-examination - Nil."
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21. The aforesaid oral evidence of the defence witness is
very clear. He says that victim Sangita was brought in the
hospital by her husband Rajesh, the accused No.1. The witness
asked the history of burn to the accused No.1, who disclosed that
his wife Santiga was heating the water on the stove and her
clothes caught fire due to bursting of stove. This version of the
accused No.1 was reduced in writing in the station diary, the
entry of which is at Exhibit 81. The witness is emphatic in saying
that he has not recorded the statement of patient Sangita and it
is the husband Rajesh, who disclosed him that her plight was
worst. He is further emphatic in stating that he has not recorded
the statement of victim Sangita. The entry at Exhibit 81 clearly
states that the patient was unfit for giving the statement. We
find that all the subsequent entries and intimations at
Exhibits 23, 51, 57 and 58 relied upon by Shri Daga, made in
succession, indicating the accidental death of victim, are based
upon the entry at Exhibit 81. We, therefore, reject the contention
of Shri Daga that the evidence brought on record clearly
establishes the case of accidental death of victim Sangita or that
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the victim herself made the statement of accidental death.
22. PW 4 Ranjana is the first witness to be on the spot of
incident. She is the neighbourer of the accused and deceased
Sangita and states in her deposition that on the date of incident,
i.e. 8-11-2013 at about 5 to 5.30 a.m., she was washing the
utensils and at that time, she saw deceased Santiga proceeding
towards the wash-room for bath. The witness asked her what
she is doing and the victim disclosed that she was going for bath,
as her son urinated on her saree. The witness continued with the
work of washing the utensils, and after 15 to 20 minutes, she
heard the commotions and saw the smoke coming out of the
house of Sangita. She knocked the door of the deceased and it
was opened by the brother-in-law of the deceased, i.e. accused
No.3 Pawan. The witness saw that Sangita received burn injuries
and the fire was seen extinguished by pouring water. The
witness gave a call to her son PW 5 Sandeep, who brought the
blanket and put on the person of victim Sangita. Accused No.1
Rajesh and PW 5 Sandeep took the victim to the hospital, where
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she was admitted. Accused No.1 Rajesh thus accompanied victim
Sangita to the hospital.
23. According to the prosecution, Exhibit 25 was the first
dying declaration recorded by PW 2 Tryambak, the Special
Executive Magistrate, in the presence of PW 6 Dr. Vivek.
Exhibit 25 contains the date of completion of recording of dying
declaration as 3.00 noon (p.m.). The dying declaration at
Exhibit 60 does not indicate the time when it was written.
According to Shri Daga, Exhibit 53, which is an endorsement by
PW 6 Dr. Vivek on Exhibit 60 that the statement was recorded
before him and the patient was fit and conscious till the
completion of statement, gives the time as 6.45 p.m. Relying
upon the evidence of PW 9 Shubhangi, the Investigating Officer,
Shri Daga has urged that since the relevant documents from the
Special Executive Magistrate were not received till 5 'o Clock,
PW 9 Shubhangi along with Police Sub-Inspector Dubey rushed
to Mayo Hospital, visited patient Sangita and recorded her
statement in the presence of PW 6 Dr. Vivek. He, therefore,
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submits that the dying declaration at Exhibit 25 was not recorded
at least up to 6.45 p.m., when PW 6 Dr. Vivek put his
endorsement on Exhibit 60.
24. It is not possible to accept the aforesaid contentions of
Shri Daga. PW 2 Tryambak, the Special Executive Magistrate,
received the intimation for recording of dying declaration at
1.45 p.m., which is apparent from Exhibit 23, and this fact is
admitted. Exhibit 24 is the communication written by
PW 2 Tryambak to the House Officer/Ward Incharge of Mayo
Hospital as to whether the patient is fit to give the statement.
The endorsement on it made by PW 6 Dr. Vivek, which is marked
as Exhibit 24-A regarding fitness of the victim to give the
statement, was made at 2.15 p.m. on 8-11-2013. Exhibit 25
stipulates the time of 2.20 noon (p.m.) when recording of dying
declaration commenced and it ended at 3.00 noon (p.m.). It
bears the certificate at Exhibit 25-A by PW 6 Dr. Vivek that the
statement was recorded before him and the patient was
conscious. It is, therefore, clearly established that Exhibit 25 was
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the first dying declaration recorded from 2.20 p.m. to 3.00 p.m.
on 8-11-2013. Obviously, the dying declaration at Exhibit 60
was subsequent.
25. We would now like to see the evidence brought on
record creating a suspicion or a doubt about recording of both
the dying declarations at Exhibits 25 and 60. Both these dying
declarations contain a right hand thumb impression obtained of
victim Sangita. In Exhibit 25, which is of two pages, such a
thumb impression is on both the pages, whereas
Exhibit 60, which is also of two pages, contains such a thumb
impression at the end only. PW 2 Tryambak (Special Executive
Magistrate) has attested the thumb impressions on Exhibit 25,
and PW 6 Dr. Vivek has made his endorsement that the thumb
impression was obtained in his presence. However, the thumb
impression on Exhibit 60 is not attested by PW 9 Shubhangi
(Assistant Police Inspector), who recorded the statement of
victim Sangita. PW 6 Dr. Vivek also does not certify that the
thumb impression was obtained in his presence.
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26. The inquest panchanama at Exhibit 27 was prepared
between 13.45 hours and 14.35 hours on 13-11-2013. Entry F in
such inquest panchanama at Exhibit 27 consists of seven items,
which are reproduced as under :
ß10½ e`rkP;k 'kfjjkojhy t[kekaps o.kZu ¼vlY;kl½
Q½ vo;o (Limbs) .......
1½ mtok gkr tGkysyk fnlr vkgs-
2½ Mkok gkr tGkysyk fnlr vkgs-
3½ mtok ik; tGkysyk fnlr vkgs-
4½ Mkok ik; tGkysyk fnlr vkgs-
5½ xqIr Hkkx 'kkcqr R;kyk dsl fnlr vkgs-
6½ ikB iq.kZi.ks tGkysys fnlr vkgs-
7½ vf/kd ekghrh vlY;kl & rGik; 'kkcqr vlqu mtO;k
ik;kP;k vaxB;koj fuGh 'kkbZps fu'kk.k fnlr vkgs-
u[ks nksUgh gkrkps o ik;kps 'kkcqr vkgs-Þ
The above report is that the right and left hand; both seem to be
burnt. The document at Exhibit 27 is admitted.
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27. The post mortem report at Exhibit 32 was prepared
between 3.00 p.m. and 4.00 p.m. on 13-11-2013, and column
No.17 of it being relevant, is reproduced below :
"17. Surface wounds (1) Mixed dermo-epidermal burns present all over
and injuries--Their the body excluding head, mammary regions of chest,
nature, position, external genital and soles. Evidence of infection
dimensions(measured) present over back of trunk, both upper limbs &
and directions to be axillae as yellowish-green purflecks. Erythematous
accurately stated-their patches present over both lower limbs at places.
probable age and Surging of eyebrows and eyelashes present.
causes to be noted. Blackening of facial skin present.
If bruises be present Surface area of burns %
what is the condition of
the subcutaneous i) Head, Neck and Face - 05
tissues? ii) Front of trunk - 16
iii) Back of trunk - 18
iv) Right upper limb - 09
(N.B.--(When injuries v) Left upper limb - 09
are numerous and vi) External Genitals - Nil
cannot be mentioned vii) Right lower limb - 17
within the space viii)Left lower limb - 17
available they should Total - 91%"
be mentioned on a
separate paper which
should be signed).
The surface area of burns of right upper limb and left upper limb
are 9% each, whereas those of right lower limb and left lower
apeal45.16.odt
limb are 17% each. Thus, the report is that it is completely
burnt. The post mortem report also contains a body diagram of
the victim showing diagrammatic representation of burnt surface
area, in which right upper limb, left upper limb, right lower limb
and left lower limb are shown to be completely burnt. The total
surface area of burn was 91%. The document at Exhibit 32 is
admitted in evidence.
28. Before appreciating the evidence in respect of the two
dying declarations at Exhibits 25 and Exhibit 60, we would like
to see the position of law of dying declaration relevant, to throw
light on the factual controversy involved in the present case. In
the decision of the Apex Court in the case of Bhajju alias Karan
Singh v. State of Madhya Pradesh, reported in (2012) 4 SCC 327,
it is held in paras 26 and 27 as under :
"26. The law is well settled that a dying declaration is
admissible in evidence and the admissibility is founded on
the principle of necessity. A dying declaration, if found
reliable, can form the basis of a conviction. A court of
apeal45.16.odt
facts is not excluded from acting upon an uncorroborated
dying declaration for finding conviction. The dying
declaration, as a piece of evidence, stands on the same
footing as any other piece of evidence. It has to be judged
and appreciated in light of the surrounding circumstances
and its weight determined by reference to the principle
governing the weighing of evidence. If in a given case a
particular dying declaration suffers from any infirmity,
either of its own or as disclosed by the other evidence
adduced in the case or the circumstances coming to its
notice, the court may, as a rule of prudence, look for
corroboration and if the infirmities are such as would
render a dying declaration so infirm that it pricks the
conscience of the court, the same may be refused to be
accepted as forming basis of the conviction."
"27. Another consideration that may weigh with the
court, of course with reference to the facts of a given case,
is whether the dying declaration has been able to bring a
confidence thereupon or not, is it trustworthy or is merely
an attempt to cover up the laches of investigation. It must
allure the satisfaction of the court that reliance ought to be
placed thereon rather than distrust."
apeal45.16.odt
There cannot be any doubt about admissibility of dying
declaration in evidence founded on the principle of necessity. It
stands on the same footing as any other piece of evidence and it
has to be judged and appreciated in the light of the surrounding
circumstances and its weight has to be determined by the
reference to the principles governing the weighing of evidence. If
a dying declaration suffers from any infirmity either of its own or
disclosed by other evidence adduced in the case or the
circumstances coming to its notice, the Court may, as a result of
prudence look for corroboration, and if the infirmities are such as
would render the dying declaration so infirm that it pricks the
conscience of the Court, the same may be refused to be accepted
as forming basis of the conviction.
29. Shri Daga for the appellant/accused invited our
attention to the decision of the Division Bench of this Court in
the case of Datta s/o Tukaram Malwad v. The State of
Maharashtra, reported in 2014 ALL MR (Cri) 3967. Paras 16, 18
and 19 of the said decision being relevant, are reproduced
apeal45.16.odt
below :
"16. Then we have the evidence of P.W. No.6 Dr.
Kiran Prabhakar Gojamgunde, who carried autopsy on
dead body of Kavita on 16th May, 2010. He has proved
post mortem report Exh.No.29. According to the column
No.17 of the post mortem report, except burn injuries, he
found no other injuries on the body of Kavita. The
injuries on the upper limb of both the right hand and left
hand were 9% indicating there-in that, upper limbs were
completely burnt. Even the inquest panchanama
Exh.No.33 clearly shows that, both the hands were
completely burnt, which is proved by P.W.9 Ramrao
Yadavrao Wakle."
"18. When the Court is called upon to appreciate the
evidence of written dying declaration, the Court has to be
extremely cautious and examine with meticulous care of
the evidence regarding recording of the dying declaration.
Merely because witnesses came forward and deposed about
the recording of the dying declaration, it should not impel
the Court to immediately accept the dying declaration. It
has to be remembered that the declarant is not available
for cross-examination and, therefore, the prosecution must
apeal45.16.odt
prove, apart from the truthfulness of the contents, the
factum of recording of the dying declaration as well as the
fact that the declarant was in a fit mental condition to
give the statement to show that after recording of dying
declaration the same was read over to the declarant and
the declarant has admitted its contents."
"19. Further from Exh.No.33 inquest panchanama, it
is clear that, her both hands were completely burnt. Even
the post mortem report Exh.No.29 shows that both the
upper limb were burnt to the extent of 9% which indicates
the said fact. Not only that, P.W.9 Ramrao Wakale,
panch on the inquest panchanama (Exh.No.33) admitted
that, skins over the fingers of deceased were peeled.
However, on careful examination of thumb impressions
which are found on Exh. Nos.38 and 42, it show ridges
and curves on the thumb impressions which creates very
serious doubt about the said thumb impressions."
The aforesaid decision holds that the injuries on the upper limb
of both the right and left hand to the extent of 9% indicate that
the upper limb were completely burnt. On careful examination
of thumb impressions, ridges and curves are found which creates
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very serious doubt about the said thumb impressions. Merely
because the witnesses came forward and deposed about
recording of dying declaration, it should not impel the Court to
accept it. The prosecution must prove, apart from truthfulness of
the contents, the factum of recording dying declaration as well as
the fact that the declarant was in a fit mental condition to give
statement.
30. Keeping in view the principles of law laid down by the
Apex Court and this Court, we have to appreciate the evidence
on record if creates any doubt about the genuineness or
truthfulness of the declarations and the medical fitness of the
victim at the time of recording. The inquest panchanama at
Exhibit 27 and the post mortem report at Exhibit 32 clearly
indicate that the hands of the victim were clearly burnt. There is
a positive evidence available on record in the inquest
panchanama at Exhibit 27 that the sole planter surface of the
right foot of victim Sangita is intact and there is an impression of
blue ink found on her thumb of the right leg, and this remains
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unexplained. This raises a strong suspicion or doubt about the
genuineness or truthfulness of both the declarations. We could
have appreciated any finding in the inquest panchanama or the
post mortem report about the impression or print of blue ink on
the right hand thumb, which is conspicuously missing. The first
entry in the station diary at Exhibit 81 recorded by the defence
witness Head Constable Rajendra, clearly shows that when the
victim was admitted on 8-11-2013 in Mayo Hospital for
treatment, she was unfit for recording the statement at 7.25 a.m.
This is repeated in another entry in the station diary at
Exhibit 57 made at 9.35 a.m. on the same day. Apart from this,
there is nothing in both the dying declarations to show that the
same were read over to victim Sangita after completion of
recording, and that she admitted the contents thereof. In our
view, all these infirmities clearly render the dying declarations at
Exhibits 25 and 60 doubtful in relation to genuineness,
truthfulness and medical fitness of victim Sangita at the time of
recording and do not inspire confidence to base the conviction of
the accused. It is, therefore, not possible for us to sustain the
apeal45.16.odt
conviction recorded by the Sessions Court in respect of the
offence under Section 302 read with Section 34 of the Indian
Penal Code, exclusively based upon the dying declarations at
Exhibits 25 and 60.
31. We have also gone through the panchanama at
Exhibit 28, to which Shri Daga invited our attention. It contains
the list of documents seized from the spot where the incident
occurred. We find that neither the match box nor the match
sticks were seized. However, the requisition forwarded to the
Regional Forensic Science Laboratory, which is at Exhibit 33
dated 22-11-2013, indicates blackish match box of 'Chavi' brand
containing eight match sticks, including one which is found to be
burnt and sealed in an envelope marked as Exhibit A-2. The
Chemical Analyzer's report at Exhibit 18 contains the list of
articles, which includes the match sticks in match box wrapped in
paper labelled A2 at Exhibit No.(3).
apeal45.16.odt
32. In our view, the aforestated instance takes us nowhere.
Even if in seizure panchanama at Exhibit 38, the match box or
match sticks are not found, it is possible that those might have
been wrapped in the clothes. Normally, the accused shall not
leave such things on the spot. At any rate, this is not the instance
which can be used to hold that the accused No.3, the
mother-in-law, brought the match box, lit the stick and set the
victim ablaze.
33. Coming to the contention of Shri Daga that one more
dying declaration was recorded by Head Constable Raju, Buckle
No.3924, attached to Lakadganj Police Station, the evidence of
PW 9 Shubhangi needs to be seen. She states that after receiving
the information from Mayo Hospital about hospitalization of
victim Sangita, the entry was taken in the station diary at
Lakadganj Police Station, which is at Exhibit 57. She further
states that Police Sub-Inspector Dubey directed Police Head
Constable Raju to visit Mayo Hospital to record the statement of
Sangita and he was directed to secure the services of a Special
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Judicial Magistrate for that purpose. She makes a reference to
Exhibit 58, which is the renewal entry No.22.
34. Police Head Constable Raju went to Mayo Hospital and
gave a letter to the House Officer, Ward No.3, to certify the
fitness of the patient for recording the declaration. It is at
Exhibit 51. PW 6 Dr. Vivek proves his endorsement on Exhibit 51
that the patient is fit to give statement at 12.50 noon. He states
that thereafter Police Head Constable Raju went away. Probably,
he wanted to get this fitness certificate for the Special Judicial
Magistrate, PW 2 Tryambak, who subsequently came at about
2.20 p.m. after receiving the intimation at 1.45 p.m. for
recording the statement. It is, therefore, not possible to accept
the contention that Police Head Constable Raju had recorded the
dying declaration, as is urged. The contention is, therefore,
rejected.
35. In order to prove the offences under Section 304-B read
with Section 34 of the Indian Penal Code and under
apeal45.16.odt
Section 498-A read with Section 34 of the Indian Penal Code, the
first witness examined by the prosecution was PW 1-Roshan
Dankhede, a tenant in the same building where the accused
persons were staying. He states that on the date of occurrence
on 8-11-2013 between 6.30 and 7.00 a.m., he was at his house
and his mother, PW 4 Ranjana, noticed smoke coming from the
house of the accused. She woke up me. The witness stepped
into the house of the accused persons and saw that the deceased
was burning. He states that the accused persons all were asleep
and he woke up them. He states that he never saw any of the
accused persons ill-treating the deceased or suspecting her
character. This witness was declared as hostile and was
cross-examined by the prosecution. This witness does not
support the prosecution.
36. PW 3-Harshak Mahajan, examined by the prosecution, is
the landlord, and the accused persons were his tenants. The
accused persons were residing on the first floor, whereas this
witness was residing on the ground floor. This witness also does
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not support the theory of the prosecution about ill-treatment to
victim Sangita, and he categorically states that there was no
ill-treatment to Sangita at the hands of the accused. He states
that he had no inkling that accused Rajesh suspected about the
character of deceased Sangita and on that count, the accused
used to treat her severely. This witness was treated as hostile,
and the prosecution was permitted to cross-examine him. This
witness does not support the case of the prosecution.
37. PW 4 Ranjana was examined by the prosecution. She is
the mother of PW 1 Roshan. She supports the theory of the
prosecution that there were frequent quarrels between accused
Rajesh and his wife Sangita on domestic reasons, and Rajesh
used to beat Sangita in the quarrel. She claims to be knowing
the complaint lodged by deceased Sangita to the Women Cell for
maltreatment and also the hearing of shouts of the deceased.
She states that Sangita was not allowed to have conversation
with the neighbourers. She also states that she used to pursue
the mother-in-law, accused Vimalbai, not to maltreat Sangita, but
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she did not pay any attention.
38. PW 4 Ranjana speaks about quarrel between accused
Rajesh and deceased Sangita for domestic reasons and not about
any unlawful demand for property or valuable security. She does
not even speak of accused Rajesh suspecting character of Sangita.
She does not speak about any specific instances of maltreatment
by the other accused persons. Her evidence does not indicate
any wilful conduct on the part of the accused persons, of such a
nature as was likely to drive the deceased to commit suicide. We
do not find any incriminating instances against the accused
persons in respect of the offences under Sections 498-A and
304-B of the Indian Penal Code. In our view, the Sessions Court
committed an error in relying upon this evidence to hold the
accused guilty of the acts of cruelty.
39. The star witness in respect of demand of dowry and
cruelty to Sangita, is her brother, PW 5 Sandeep. He states that
initially for about 7 to 8 days after the marriage, all the things
apeal45.16.odt
were normal in the matrimonial home of Sangita, but thereafter
accused Rajesh started maltreatment to Sangita. He used to beat
her on suspecting her character and also cast the allegations
about her illicit relations with brother-in-law, accused Pawan.
He also used to suspect the immoral activities of Sangita with
neighbourers and the brother. The witness cites an instance that
when he himself along with his sister-in-law had been to the
house of the accused, at that time they saw that Sangita was
beaten up in the matrimonial home and there were injuries on
her person. He states that Sangita was not allowed to have
conversation freely with them. He further states that thereafter
Sangita was brought to their parents' home where she disclosed
that her husband was ill-treating and beating her for suspecting
her character. He states that at that time, Sangita stayed in his
house for about a week, and during that period, accused Rajesh
used to visit Sangita daily at his house. He states that thereafter
accused Rajesh brought his brother and mother at his house and
requested to send sister Sangita for cohabitation, saying that
there would not be any maltreatment to her. This witness proves
apeal45.16.odt
the compromise-deed dated 20-10-2012 at Exhibit 45, entered
between accused Rajesh and the in-laws of Sangita in presence of
an Advocate. Thereafter, deceased Sangita was sent with accused
Rajesh for cohabitation in her matrimonial home.
40. This witness also refers to another instance, which took
place after fifteen days of sending Sangita to the matrimonial
home. He says that he himself along with his brother and
mother visited the house of the accused to see Sangita and at
that time also injuries marks were seen on the person of Sangita
and it was told to them by accused Rajesh and others that
Sangita had fallen in the house and received the injuries. He
states that when Santiga was asked about the cause of injuries,
she started weeping and disclosed that she was being beaten up
by husband Rajesh. He further states that thereafter they took
sister Sangita to their patents' home and visited Kamptee Police
Station for lodging the complaint against the accused. The
complaint was filed to the Women Cell at Kamptee, which is
placed on record at Exhibit 46. This witness also refers to the
apeal45.16.odt
undertaking furnished by accused Rajesh once again about his
good behaviour on the stamp paper dated 23-7-2013 placed on
record at Exhibit 47. He states that thereafter sister Sangita
joined the company of her husband for cohabitation at the
matrimonial home. He states that Sangita delivered a male child
at her matrimonial home and at that time, accused Rajesh was
demanding Rs.5,000/- for medical expenses of sister Sangita. He
states that his brother paid Rs.5,000/- to the accused for
expenses of delivery of sister Sangita, but thereafter also the
maltreatment to the sister was continued at the hands of the
accused.
41. The attention of this witness was invited to his statement
recorded by police under Section 161 of the Criminal Procedure
Code to point out certain omissions. Para 09 of his deposition
being relevant, is reproduced below :
"09. I had stated to the police in my statement that
myself and my sister-in-law had been to the house of
accused and at that time we saw that the sister Sangita
apeal45.16.odt
was beaten up by the accused and she was not allowed to
have conversation with us. I had also stated to the police
in my statement that thereafter we took sister Sangita to
our house at Kamptee. I cannot assign any reason why all
these facts are absent from my statement. I had stated to
the police that after about 15 days of the compromise in
between the spouses, myself and my mother had been to
the house of accused and saw the injury marks on the
person of sister Sangita and thereafter we made inquiry
with her. I had stated to the police in my statement that
on inquiry, accused disclosed that the Sangita had fallen
on the ground and received injuries. I had stated to the
police that thereafter on inquiry with the Sangita, she by
weeping disclosed that the accused Rajesh beaten up her. I
cannot assign any reason why all these facts are not
mentioned in my statement. Not true that I am depositing
falsely that the accused Rajesh was suspecting about the
immoral relations of the sister Sangita with her
brother-in-law, neighbours and we brothers etc."
42. PW 9 Shubhangi, Assistant Police Inspector, recorded
the statements of persons under Section 161 of the Criminal
Procedure Code. She also recorded the statement of
PW 5 Sandeep. In her cross-examination, the omissions referred
apeal45.16.odt
to by PW 5 Sandeep were put to her, and she answered the same
as under :
"06) I had also recorded statement of P.W.5 Sandeep
Shroti as per his say. He had not stated in his statement
before that himself and his sister-in-law had been to the
hosue of accused and they say that the sister Sangita was
beaten up by the accused and she was allowed to have
conversation with them. He has also not stated in his
statement that they took the sister Sangita to their house
at Kamptee. He had also not stated that after 15 days of
the compromise in between the spouses, himself and his
mother had been to the house of accused and saw the
injury marks on her person. Thereafter they made inquiry
with the sister Sangita. The P.W.5 Sandeep Shroti in his
statement did not state before me that on inquiry accused
disclosed that the Sangita had fallen on the ground and
received the injuries. He had also not stated that
thereafter on inquiry the Sangita by weeping disclosed
that the accused Rajesh beaten up her. The P.W.5
Shri Shroti did not state in his statement that the police of
Kamptee P.S. refused to accept their complaint about the
maltreatment to sister Sangita nor he stated that his
brother paid Rs.5000/- to the accused at the time of
apeal45.16.odt
delivery. He had also not stated in his statement that he
made attempt to inform to the police about the incident
on telephone from the hospital but accused Rajesh
snatched away the receive of the telephone from him. He
had also not stated that after sometime the accused Rajesh
again hurled abuses and prevented him from passing the
information of the incident to police. Not true that I had
recorded the statement of P.W.5 Sandeep Shroti prior to
death of victim Sangita and intentionally I had not
appended the same in this case."
43. A comparative study of the omissions put up to
PW 5 Sandeep in his statement under Section 161 of the
Criminal Procedure Code and the evidence of PW 9 Shubhangi,
who recorded the statement of PW 5 Sandeep, clearly proved
omissions and contradictions on all material aspects. We have
also read the evidence of PW 5 Sandeep with the evidence of
PW 8 Minakshi, a Social Activist and a Member of Women Cell,
which proved the complaint at Exhibit 46 by Sangita
dated 14-6-2013, the settlements at Exhibits 45 and 47 between
accused Rajesh and Sangita recorded on 23-7-2013. Those are in
the form of undertaking of good behaviour in future, which is at
apeal45.16.odt
Exhibit 47 also signed by Sangita. The accused Rajesh has
undertaken not to beat or abuse Sangita. The complaint at
Exhibit 46 speaks about demand of Rs.80,000/- towards
expenses of delivery of child incurred on 2-5-2013.
44. In order to attract the provision of Section 498-A of the
Indian Penal Code, there has to be evidence of cruelty upon a
woman by the husband or his relatives. "Cruelty" means -
(a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of the
woman; or (b) harassment of the woman where such harassment
is with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable security
or is on account of failure by her or any person related to her to
meet such demand. In our view, the evidence of PW Ranjana,
PW 5 Sandeep, and PW 8 Minakshi, and the documents at
Exhibits 45, 46 and 47 are neither sufficient nor reliable to bring
home the guilt of the accused persons under Sections 498-A of
apeal45.16.odt
the Indian Penal Code. The learned Judge of the Sessions Court
has committed an error in holding the accused persons guilty of
such offence.
45. Now coming to the charge under Section 304-B read
with Section 34 of the Indian Penal Code, in order to seek a
conviction against a person for the offence of dowry death, the
prosecution is obliged to prove that :
(a) the death of a woman was caused by burns or
bodily injury or had occurred otherwise than under
normal circumstances;
(b) such death should have occurred within 7 years of
her marriage;
(c) the deceased was subjected to cruelty or
harassment by her husband or by any relative of her
husband;
(d) such cruelty or harassment should be for or in
connection with the demand of dowry; and
apeal45.16.odt
(e) to such cruelty or harassment the deceased should
have been subjected soon before her death.
As and when the aforesaid circumstances are established, a
presumption of dowry death can be drawn against an accused
under Section 113-B of the Indian Evidence Act. In the present
case, what is required to be established is that deceased Sangita
"soon before her death", was subjected to such cruelty or
harassment, as alleged.
46. In the decision of the Apex Court in the case of Sham Lal
v. State of Haryana, reported in (1997) SCC 759, it was a case of
marriage having taken place in the year 1983 and death of wife
occurred on 17-6-1987. The offences alleged were under
Sections 302, 304-B and 498-A of the Indian Penal Code. The
High Court maintained the conviction under Section 302 of the
Indian Penal Code. The Apex Court set aside the conviction
under Section 302 of the Indian Penal Code. It is held in paras 9,
11 and 12 as under :
apeal45.16.odt
"9. The primary requirements for finding the appellant
guilty of the offence under Section 304-B IPC are that
death of the deceased was caused by burns within seven
years of her marriage and that "soon before her death" she
was subjected to cruelty or harassment by the appellant
for or in connection with any demand for dowry."
"11. It is imperative, for invoking the aforesaid legal
presumption, to prove that "soon before her death" she
was subjected to such cruelty or harassment. Here, what
the prosecution achieved in proving at the most was that
there was persisting dispute between the two sides
regarding the dowry paid or to be paid, both in kind and
in cash, and on account of the failure to meet the demand
for dowry, Neelam Rani was taken by her parents to their
house about one and a half years before her death.
Further evidence is that an attempt was made to patch up
between the two sides for which a panchayat was held in
which it was resolved that she would go back to the
nuptial home pursuant to which she was taken by the
husband to his house. This happened about ten to fifteen
days prior to the occurrence in this case. There is nothing
on record to show that she was either treated with cruelty
or harassed with the demand for dowry during the period
apeal45.16.odt
between her having been taken to the parental home and
her tragic end."
"12. In the absence of any such evidence it is not
permissible to take recourse to the legal presumption
envisaged in Section 113-B of the Evidence Act. That rule
of evidence is prescribed in law to obviate the prosecution
of the difficulty to further prove that the offence was
perpetrated by the husband, as then it would be the
burden of the accused to rebut the presumption."
The Apex Court has taken note of patch up between two sides
before Panchayat, as a result of which the deceased decided to go
back to the nuptial house. This happened prior to fifteen days of
her death, and in the absence of any evidence of cruelty or
demand of dowry thereafter, the Apex Court held that it was not
permissible to take recourse to legal presumption under
Section 113-B of the Evidence Act.
47. The marriage between accused No.1-Rajesh and Sangita
took place on 24-6-2012. According to PW 5 Sandeep, for about
apeal45.16.odt
7 to 8 days after marriage, all the things were normal in the
matrimonial home and thereafter accused Rajesh started
maltreatment to Sangita. Without specifying the date of first
instance of maltreatment and beating on suspicion of immoral
activities of Sangita, he states that Sangita was brought to the
parents' home, where she stayed for about a week, and during
this period, Rajesh used to visit Sangita daily. Thereafter,
accused Rajesh brought his brother and mother to the house of
Sangita's parents and requested to send Sangita for cohabitation,
assuring that there will be no maltreatment. The compromise on
20-10-2012 at Exhibit 45 has been proved and Sangita went for
cohabitation with Rajesh in the matrimonial home.
48. The another instance quoted by PW 5 Sandeep, that too
without specifying the date, occurred within a period of fifteen
days after Sangita re-joined the company of Rajesh. When
PW 5 Sandeep visited the house of the accused to see Sangita, he
found certain injuries on the person of Sangita, and when asked
about the injuries, Sangita started weeping and disclosed about
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beating by husband Rajesh. Again at that time, Sangita was
taken to the parents' home. In the complaint of Sangita at
Exhibit 46 dated 14-6-2013, there is a reference to a child born
on 2-5-2013 and the demand of Rs.80,000/- was shown to have
been made towards incurring of medical expenses for the
delivery of a child. Exhibit 47 dated 23-7-2013 is the settlement
between accused Rajesh and Sangita, and both of them have
given an undertaking of good behaviour in future. The
undertaking does not refer either to the demand of dowry or
suspicion about the character of Sangita by accused Rajesh.
49. We have already held that the evidence on record is
neither sufficient nor reliable to bring home the guilty of the
accused persons under Sections 498-A of the Indian Penal Code.
There is no evidence of the demand for dowry. Be that as it may.
The expression "soon before her death" employed under Section
304-B of the Indian Penal Code is a related term, which is
required to be considered under the specific circumstances of
each case and it admits the ideal proximate tests. Proximate and
apeal45.16.odt
live link between the effect of cruelty based on dowry demand
and the consequential death is required to be proved by the
prosecution. The entire oral evidence of PW 5 Sandeep and
PW 8 Minakshi, the complaint at Exhibit 46, and the settlements
at Exhibits 45 and 47, about the so-called cruelty or harassment
and demand of dowry, is in respect of only one accused, viz.
accused No.1-Rajesh, and there is no such evidence in respect of
the accused Nos.2 and 3. The learned Additional Public
Prosecutor could not point out any circumstance or evidence of
cruelty or harassment with the demand of dowry after 23-7-2013
till the date of occurrence of incident on 8-11-2013. In the
absence of any such evidence, no presumption under
Section 113-B of the Evidence Act would be drawn against the
accused persons for want of any burden on the part of the
accused to explain how and under what circumstances deceased
Sangita died. In our view, it is not possible for us to record the
conviction of the accused persons under Section 304-B read with
Section 34 of the Indian Penal Code.
apeal45.16.odt
50. From the above discussion, it is not possible for us to
sustain the conviction of the accused persons recorded by the
Sessions Court under Sections 302 and 498-A read with
Section 34 of the Indian Penal Code. It is also not possible for us
to hold the accused persons guilty of the offence under
Section 304-B read with Section 34 of the Indian Penal Code.
The prosecution has completely failed to prove all the charges
against the appellants/accused beyond reasonable doubt. We,
therefore, allow this appeal and quash and set aside the
judgment and order delivered by the Sessions Court in Sessions
Trial No.110 of 2014 on 14-8-2015. Accordingly, all the accused
persons are acquitted of the aforesaid offences. Fine, if any, paid
by the appellants/accused be returned to them. Since the
appellants/accused are in jail, they be released forthwith if not
required in any other case.
51. Before parting with the judgment, we would like to
observe the position of the lawyer appearing in the Court and his
obligation and duty towards the Court. A lawyer or an Advocate
apeal45.16.odt
appearing in the Court regularly, acquires a skill of advocacy by
experience in practice. By passage of time, he becomes a part of
the system of the administration of justice and plays a vital role
as an officer of the Court. The skill of his advocacy, his
knowledge of law, his mastery over the facts of the case, his
approach to the problem, the mannerism and the ethics which he
observes, elevate him to the position of an amicus curiae, i.e. the
friend of the Court. Once he assumes such a faith and
confidence of the Court, he acquires and enjoys the respect of his
stature in the Court, which makes him beneficiary of enjoying the
discretion of the Court in certain respect. Certainly, it creates
corresponding obligation and duty upon him to be fair to the
Court in all respects, including the facts and law involved in the
matter in which he appears and to come before the Court with
clean hands.
52. It is not expected from the lawyer, who has rendered
substantial number of years' practice, to be unfair to the Court,
i.e. to suppress or misrepresent the material facts, mislead the
apeal45.16.odt
Court, play a mischief, take unfair advantage of lack of assistance
to the Court from the other side, unnecessarily consume the
valuable time of the Court in advancing the arguments, which he
knows or believes to be frivolous and not supported by any
evidence on record. If a lawyer indulges in such a practice, it
will make him a person unbecoming as an officer of the Court
and hostile to the system of administration of justice, losing faith
and confidence in him, which may disentitle him to enjoy the
discretion of the Court.
53. In the present case, Shri R.M. Daga, the learned counsel,
appeared for the appellants/accused, having substantial number
of years' practice in criminal matters, and Shri S.A. Ashirgade,
the learned Additional Public Prosecutor, representing the State
of Maharashtra, i.e. the prosecution. Shri Daga, the learned
counsel appearing for the appellants/accused, was well aware
that there was hardly any assistance to us from the side of the
prosecution in meeting his propositions on facts and law both
either in pointing out anything from the original record or
apeal45.16.odt
inviting our attention to the relevant evidence of the witnesses to
support the findings recorded by the Sessions Court. As we see
and which is also apparent from the findings recorded by us,
several propositions on facts could not have been advanced, if
Shri Daga was aware of getting proper assistance by the Court
from the prosecution side. We spent three days' time in this
matter, which, according to us, could have been finished within a
day, had the learned counsel Shri Daga being fair to the Court in
raising several contentions on facts and law both. We have the
feeling that lot of time is wasted in testing the arguments of
Shri Daga for the appellants/accused. We were required to make
sure of the statements made by him on facts by searching the
record to reconcile the factual position; for instance, a plea that
the victim herself has reported the accidental death.
Once Shri Daga was asked to point the source of information of
the accidental death in the station diary, to which he invited
attention, but he claimed ignorance of it. Similar are the pleas
raised about the additional dying declarations, said to have been
recorded by Head Constable Raju and PSI Dubey. We need not
apeal45.16.odt
point out the other instance, which we have already dealt with in
our judgment. We would only say that it was not possible for us
to rely upon the statements of facts made by the learned counsel
Shri Daga, and we did not expect him to consume the valuable
time of this Court in such fashion. We expect him to be fair to
the Court in future so that the time of the Court could be saved
and in case of improper or lack of assistance by the prosecution,
the correct facts on record are brought to the notice of this Court.
With this view, we close the chapter.
54. The appeal is allowed accordingly.
(Manish Pitale, J.) (R.K. Deshpande, J.)
Lanjewar, PS
