Smt Karuna Bajirao Ramteke vs State Of Mah.Thr.Pso Nagpur
2017 Latest Caselaw 9375 Bom

 apeal585of04.odt                          1




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


                     CRIMINAL APPEAL NO.585 OF 2004


 Smt. Karuna w/o. Bajirao Ramteke,
 Aged about 52 years, R/o. Kumbhare 
 Colony, Kamptee, District Nagpur                                       ...APPELLANT


          ...V E R S U S...


 The State of Maharashtra,
 Through Police Station Officer
 Police Station Kamptee,
 District Nagpur                                                     ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Mr. R.M. Daga, counsel for the appellant.
 Ms. Ritu Kalia, Additional Public Prosecutor for the respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                       :ROHIT B. DEO, J. 

DATE :07.12.2017

ORAL JUDGMENT:

The appellant is aggrieved by the judgment and order

dated 24.8.2004, passed by the 2nd Adhoc Additional Sessions

Judge, Nagpur, in Sessions Trial 162 of 2003, by and under which,

the appellant (hereinafter referred to as "the accused") is

convicted of offence punishable under section 304 Part II of the

Indian Penal Code ("IPC" for short) and is sentenced to suffer

simple imprisonment for five years and to payment of fine of

Rs. 5000/-.

2. Heard Shri R.M. Daga, the learned counsel for the

accused and Smt. Ritu Kaliya, the learned Additional Public

Prosecutor for the respondent / State.

3. The learned counsel for the accused submits, that the

judgment and order impugned is manifestly erroneous and

militates against the weight of evidence on record. The conviction

is, substantially if not entirely, based on dying declaration dated

4.1.2003 recorded by Smt. Shewantabai Rahate (P.W.6). The said

dying declaration ought to have been discarded as wholly

unreliable, is the submission. The dying declaration is not in a

question and answer form, the doctor, who is said to have

endorsed the fitness of the injured Vaishali to give the statement is

not examined, the dying declaration purports to bear the left toe

impression of the injured which reveals clear ridges and curves

which renders the dying declaration suspect since Vaishali

concededly suffered 17% burns on the left limb and 18% burns on

the right limb, the dying declaration falls foul of the enunciation

of law of the Hon'ble Apex Court in Shaikh Bakshu & Others Vs.

State of Maharashtra, (2007) 11 Supreme Court Cases (Cri.)269 and

of the Division Bench of this Court in Abdul Riyaz Abdul Bashir Vs

State of Maharashtra, 2012 ALL MR (Cri.) 2188 and the contents are

inconsistent, is the submission.

4. The learned Additional Public Prosecutor, with usual fairness,

does not dispute that if the dying declaration Exh. 23 is kept out of the

consideration, the conviction of the accused would be unsustainable.

However, the learned Additional Public Prosecutor Ms. Ritu Kaliya

contends that the dying declaration Exh. 23 is implicitly reliable and

confidence inspiring and is correctly found to be trustworthy by the

learned Sessions Judge.

5. Before I venture to consider the dying declaration Exh. 23,

I may consider the depositions of the prosecution witnesses who have

been examined to prove that the deceased Vaishali was subjected to

cruelty. Be it noted that the accused Karuna Ramteke, who is the

mother in law of the deceased, faced trial alongwith Damodar, the

husband of the deceased, for having committed offence punishable

under section 498-A read with section 34 of IPC, section 302 and 120-B

of IPC. Damodar is acquitted of all the offences. The accused is

acquitted of offences punishable under section 498-A, 120-B and 302 of

IPC and is convicted of offence punishable under section 304 part II of

IPC.

6. PW 1 - Mukesh Meshram, is witness to the spot

panchanama, and duly proves the spot panchanama Exh. 8. PW 2 -

Kailash Kawale who is the father of the deceased and did not support

the prosecution. Permission under section 154 of the Indian Evidence

Act was sought to put questions to the said witness in the nature of

cross-examination. The learned Additional Public Prosecutor has

extracted certain admissions in the cross-examination of PW 2 - Kailash,

inter alia an admission that Vaishali disclosed in the hospital that a day

prior to the incident, accused Damodar illtreated Vaishali under the

influence of liquor. However, the said witness has denied the

suggestion that in the statement given to the police he stated that the

accused mother in law filthily abused Vaishali and that Vaishali was

pushed by the accused with the result that Vaishali fell on the burning

stove. In the cross-examination on behalf of the accused, PW 2 admits

that Vaishali and accused Damodar were living a happy married life.

PW 3 - Rajkumar Madame, who is a neighbour of the accused

Damodar, is examined to prove that he tried to douse the fire and that

Vaishali was taken to the hospital by her husband Damodar and one

Raju Adakane.

PW 4 - Ratnamala, who is the mother of the deceased Vaishali

has deposed that she was at the bed side of Vaishali in the hospital and

during the said period Vaishali disclosed that a day prior to the incident

a quarrel ensued between Vaishali and accused Damodar since she

objected to Damodar drinking liquor. PW 4 has deposed that Vaishali

disclosed that accused mother in law threw stove on her person and

then left the room. PW 4 states that the said act was preceded by a

quarrel between Vaishali and the accused during the course of which

the accused abused Vaishali and asked her not to stay in the house. In

the cross-examination, several significant omissions are brought on

record. Indeed, every material and significant statement in the

examination in chief is shown to be an omission. The omissions are

duly proved in the cross-examination of PW 7 - Ishaque Sheikh, the

scribe of statement recorded under section 161 of the Code of Criminal

Procedure. Be it noted, that even the statement that Vaishali told the

witness that the accused threw stove on the person of Vaishali is an

omission which is duly proved.

7. PW 5 - Kamal Patankar, who was then attached to Police

Station Kamptee, has recorded dying declaration Exh. 18 on 3.1.2003.

However, the learned Sessions Judge has held that the said dying

declaration Exh. 18 is suspect and for good reasons, has discarded the

same.

PW 6 - Smt. Shevantabai Rahate, is the Executive Magistrate

who recorded the dying declaration Exh. 23 on 4.1.2003. The

deposition of PW 6 reveals, that she has produced copy of requisition to

Medical Officer, which was not filed alongwith charge sheet, which

requisition purportedly bears an endorsement of Medical Officer

certifying that Vaishali was fit to give a statement. I shall consider the

evidence of PW 6 at a later stage in the judgment.

PW - 7 Ishaque Sheikh is the Investigating officer.

8. The learned counsel for the accused is justified in

contending that the evidence of the mother of the deceased PW 4 must

be discarded, and having done so, the conviction rests entirely on dying

declaration Exh. 23. The evidence of the mother of the deceased is

neither reliable nor trustworthy nor confidence inspiring. Every

significant statement is proved to be an omission and since the

omissions touch the core and not peripheral aspects of the prosecution

version, the omissions partake the character of contradictions.

9. The question which stares one in the face is whether it

would be safe to rest the conviction on dying declaration Exh. 23. The

answer is clearly no.

10. The juristic justification for the admissibility of a dying

declaration as substantive evidence, which is an exception to the rule

against the admissibility of hearsay evidence which is not tested by

cross-examination, is that a person who is facing eminent death would

not ordinarily indulge in false implication or resort to falsehood. The

sanctity of the dying declaration is juristically explained by the maxim

"Nemo moriturus praesumitur mentire". No one at the point of death is

presumed to lie. The Hon'ble Apex Court enunciates the law thus in

Kundula Bala Subrahmanyam Vs. State of Andhra Pradesh, (1993)

2 Supreme Court Cases 684:

"18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy, Under Section 32, when a statement is made by a person as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and

if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then then the court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same".

However, while there can not be demur with the preposition that

conviction can rest entirely on the dying declaration, the conscious of

the Court must be satisfied that the dying declaration was made by the

deceased in a conscious state of mind and the dying declaration is

otherwise cogent, reliable and free from infirmities.

11. Concededly, there is no evidence on record to prove that

the deceased Vaishali was in a fit physical and mental condition to give

statement. The Executive Magistrate who recorded the dying

declaration has produced a requisition to the Medical Officer purporting

to bear an endorsement of the Medical Officer that Vaishali was in a fit

condition to give statement. Strangely, the said requisition was not

filed alongwith the charge sheet and that PW 6 retained the custody

thereof and produced the same when she was examined in the trial is

suspicious to say the least. Be that as it may, the purported

endorsement is of little significance since the author thereof is not

examined. Indeed, the prosecution has not examined the doctor to

prove that Vaishali was in a fit condition to give the statement or to

throw light on the medical condition of Vaishali prior to the recording,

during the recording and at the conclusion of recording of dying

declaration Exh. 23. PW - 6 has not deposed that she was satisfied that

Vaishali was in a fit physical and mental condition to give statement.

The statement that dying declaration was read over to the maker and

the contents are admitted to be correct is conspicuously missing and all

that the dying declaration recites is that the statement was read over to

Vaishali. In view of the medical evidence that limbs of Vaishali were

extensively burnt (17% and 18% which nearly correspond to 100%

overall), the fact that the left toe impression reveals clear ridges and

curbs is again a circumstance rendering the dying declaration suspect.

12. Moreover, the contents of the dying declaration are not

consistent. The dying declaration states that Vaishali was pushed by the

accused which made her fall on the stove and her saree caught fire.

However, at a later stage the recital is that the accused herself burnt

Vaishali.

13. Shri R.M. Daga, the learned counsel for the accused has

invited my attention to the following observations in the Division Bench

Judgment of this Court in Datta s/o. Tukaram Malwad Vs. The State

of Maharashtra, 2014 All MR (Cri.) 3967, to substantiate the

contention that in the absence of a statement that the contents of dying

declaration were read over to Vaishali and were admitted by her.

(emphasis supplied), the dying declaration Exh. 23 must be excluded

from consideration.

"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 prove, apart from the truthfulness of the contents, the factum of recording of the dying declaration 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."

"29. This dying declaration is very seriously challenged by the learned defence counsel by pressing into service two reported decisions of this Court namely [I] 2012 ALL MR (Cri), 2453, Paikuji Shankar Ataram V/s. State of Maharashtra and [ii] 2012 ALL MR (Cri), 2753, Tukaram Dashrath V/s. The State of Maharashtra. He submitted that in absence of an endorsement in Exh. No. 38 that after completion of recording of the statement, the contents of said statement were read over to Kavita and she admits it to be

true, necessarily this dying declaration is to be rejected. If dying declaration (Exh. No. 38) is scrutinized, there appears no endorsement on the said document that the scribe i.e. P.W. No. 11 Vilas Jogdant has read over the statement to Kavita and thereupon Kavita has admitted the contents of the same. In Paikuji's case, cited supra, P.W.5 Shri Shrihari Kanhuji Thamke was the Executive Magistrate. He recorded the dying declaration of patient by name Tulsabai w/o. Paikuji Atram. Before the Court, during trial, P.W. NO. 5 Shrihari Thamke deposed that, he read over statement to her and she admitted the contents to be correct as per her say. Same is the position in present case. While making the pronouncement on the dying declaration recorded by P.W. NO. 5 Thamke, in Paikuji's case, cited supra, this Court proceeded to record the finding that, merely because it is mentioned in printed proforma that, statement is read over to deponent, it cannot be presumed that actual exercise of reading over same and getting it endorsed to be correct was actually followed. In the said reported case, in printed proforma, there was clause that the statement was read over to the deponent. In case at hand, even in that printed proforma noting that statement was read over to the patient, is absent".

"30. To rule out any remote infirmity, it is necessary that there has to be an endorsement on the dying declaration that the contents were read over and admitted to be correct and as per the say of the deponent. The said cannot be treated as an empty formality, since the deponent is not available for cross examination. This endorsement according to us is most vital piece in as much as the declarant is not available for cross examination. The contemporaneous document Ehx. No. 38, on which the endorsement to the effect that it was read over to

Kavita and after that she admitted the contents thereof as true, is absent. Since the present case is solely depends on the dying declaration, such endorsement or certification by the scribe is almost importance. In absence of that, it is really difficult to visualize as to really, after the completion of dying declaration the contents were read over to Kavita, as claimed by P.W. No. 11 Vilas Jogdant for first time in the Court.". "33. It will be very useful here to mention the reported decision of Hon'bel Apex Court, reported in (2007) 11, Supreme Court Cases, 269:[2007 ALL SCR 2407] Shaikh Bakshu & Ors V/s. The State of Maharashtra. It will be very useful to extract relevant portion of the aforesaid authority of the Hon'ble Apex Court which reads thus, "there was no mention in the dying declaration that it was read over and explained to the deceased. The Trial Court and the High Court concluded that the even though it is not so stated, it has to be presumed that it was read over and explained. View is completely unacceptable."

"13. The trial court, however, held dying declaration to be credible because the Medical Officer was present when the dying declaration was recorded. There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable."

14. The learned counsel Shri. R.M. Daga has further invited

my attention to a Division Bench judgment of this Court reported in

Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, 2012 ALL MR

(Cri) 2188 and in particular to paragraph 8 which reads thus:

"8. On perusal of Exh. 63, it appears that in column no. 2 the deponent had given the detailed narration of the incident and has stated that her mother-in-law had exhorted her husband to eliminate Nargis. Nargis got enraged and doused herself with kerosene and when she was changing her clothes, her husband ignited the match-stick and because the neighbours had raised the cries, her husband attempted to extinguish the fire. In column no.5, it is stated that she had sustained burn injuries to her face, both hands, chest and back. The reply to column no. 7 is also stated. However, column no. 8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent. The said column is left blank. To rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct. The said column cannot be treated as an empty formality since the deponent is not available for cross -examination. Hence it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire confidence of the Court. It , therefore, appears that the statement was never read over to the deceased and there is no endorsement to that effect. When the declaration was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it can not be presumed that the actual exercise of reading over the statement and getting it endorsed to be

correct , was actually followed. In fact the said column is blank and, therefore, the said fact can not be assumed. The learned counsel for the appellant has relied upon the judgment of the Apex Court reported in (2008) 1 Supreme Court Cases (Cri) 679- Shaikh Bakshu and others .vs. State of Maharashtra wherein it is held by the Apex court that "there was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even through it is not so stated, it has to be presumed that it was read over and explained". The Apex Court has held that the said view is unacceptable. The learned counsel for the appellant has also relied upon the judgment reported in 2004 ALL MR (Cri) 3220 in the case of Shivaji Tukaram Potdukhe .vs. State of Maharashtra wherein it is held that "when the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration can not be made foundation for sustaining the conviction". We have observed that it is doubtful whether the signature on Exh. 63 is that of deceased Nargis since the accused by taking recourse to Section 155 of the Indian Evidence Act has examined an independent witness who has deposed that the signature on the Nikahnama was made by Nargis in his presence and , therefore, in the present case we find that the written dying declaration at Exh. 63 cannot be made the sole basis for recording the conviction. Notwithstanding the fact that it was recorded by the Magistrate, the discrepancies in the written dying declaration are such that they would not inspire the confidence of the Court".

15. If the dying declaration is tested on the anvil of the enunciation

of law, referred to supra, the dying declaration must be excluded from

consideration and having done so, I am not persuaded to uphold the

conviction of the accused under section 304 part II of IPC.

16. The judgment and order impugned is set aside. The accused is

acquitted of offence punishable under section 304 part II of IPC.

17. The bail bond of the accused shall stand discharged.

18. The appeal is allowed.

JUDGE

RS Belkhede