Bombay High Court
Rukminbai Shlok Kandgule & Ors vs The State Of Mah on 8 December, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 421 OF 2006
1. Rukminbai shlok Kandgule,
Age : 36 years, Occu.; Household,
2. Suman Dattu Pasare,
Age : 65 years, Occu.: Household,
3. Bharat s/o. Dattu Pasare,
Age : 26 years, Occu.: Agri.,
All R/o. Padoli (A),
Tq. and Dist. Osmanabad APPELLANTS
(Accused)
VERSUS
The State of Maharashtra RESPONDENT
(Prosecution)
----
Mr. Satej S. Jadhav, Advocate for the appellants
Mrs.A.V. Gondhalekar, Addl. Public Prosecutor, for the
respondent/State
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
DATE : 8th December, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
One Bibhishan Premraj Gund (original accused
No.1) and the present appellant No.1, hereinafter
referred to by her first name i.e."Rukminbai" were
chargesheeted by Police Station, Bembli for the
2 criapl421-2006
offences punishable under Sections 306 and 498-A read
with Section 34 of the Indian Penal Code ("IPC", for
short), on the allegations that Bibhishan had illicit
relations with Rukminbai prior to and even after the
marriage of Bibhishan with the deceased Shivnanda and
therefore, both of them were beating and illtreating the
deceased Shivnanda. The deceased Shivnanda always used
to ask both of the accused to abstain from keeping
illicit relations. Ultimately, because of the
illtreatment meted out to her by both of these accused,
the deceased Shivnanda committed suicide by setting
herself ablaze in her house on 27th June, 2000 at about
12.00 noon.
2. The deceased Shivnanda was taken to the Civil
Hospital at Osmanabad for treatment by her brother-in-
law namely Dilip. Her statement was recorded by PHC
Patil, attached to police outpost of Civil Hospital,
Osmanabad on the same day at about 2.10 p.m., after
getting it verified from the Medical Officer that she
was in a fit condition to give statement. In that
statement, she alleged that on 27 th June, 2000, when her
husband i.e. accused No.1 Bibhishan had gone to the
field for sowing and when she was sleeping in her house
3 criapl421-2006
at about 12.00 noon, Rukminbai, her parents and brother
i.e. appellant no.3 namely Bharat, came there. Rukminbai
was holding a kerosene can. All of them hurled abuses
against her and beat her by kicks and fists. Rukminbai
poured kerosene from the can on her person and the
mother of Rukminbai, i.e. appellant no.2 namely Suman,
set her on fire by igniting a matchstick. When she was
caught by fire, all of them ran away. She tried to
extinguish fire from her person by pouring water. She
sustained extensive burns on various parts of her body.
Her brother-in-law namely Dilip Gund took her to the
Civil Hospital at Osmanabad for treatment.
3. PHC Patil sent the above mentioned statement of
the deceased Shivnanda to Police Station, Osmanabad, on
the basis of which a crime came to be registered for the
offences punishable under Sections 307, 323, 504, read
with Section 34 of the IPC under "0" number, since the
incident had taken place within the local limits of
jurisdiction of Bembali Police Station. Shivnanda died
in the hospital on 28th June, 2000 at 2.05 a.m. The
inquest of the body of the deceased Shivnanada was
prepared. Her body was referred to the Medical Officer
for the postmortem. The Medical Officer found 98% of
4 criapl421-2006
burns on her body. He opined that she died of shock due
to 98% of burns. After her demise, the offence under
Section 307 of the IPC came to be substituted by the
offence under section 302 of the IPC. The statements of
the deceased Shivnanda and inquest panchanama were sent
by PHC Patil from Police Station, Osmanabad to Police
Station, Bembli with his forwarding letter. On the basis
of that letter, Crime No.43 of 2000 was registered in
Police Station, Bembli, for the offences punishable
under Sections 302, 323 and 504 read with Section 34 of
the IPC.
4. The investigation followed. The spot panchanama
was prepared. Statements of the witnesses were recorded.
Considering the evidence collected during investigation,
the Investigating Officer found sufficient grounds to
proceed against Bibhishan and Rukminbai only for the
offences punishable under Sections 498-A and 306 read
with Section 34 of the IPC. Accordingly, he submitted
chargesheet against them in the Court of Chief Judicial
Judicial Magistrate, Osmanabad.
5. The offence under Section 306 of the IPC being
exclusively triable by the Court of Session, the learned
Chief Judicial Magistrate committed the case to the
5 criapl421-2006
Court of Session, Osmanabad.
6. The learned Trial Judge initially framed
charges against Bibhishan and Rukminbai for the offences
punishable under Sections 498-A and 306 read with
Section 34 of the IPC vide Exh.50 on 5 th December, 2005
and explained the contents thereof to them in
vernacular. They pleaded not guilty and claimed to be
tried. After PHC Patil and one more witness were
examined and the during declaration of the deceased
Shivnanda was proved before the Trial Court on 16 th
January, 2006, the learned Trial Judge framed charges
afresh against Bibhishan for the offence punishable
under Section 498-A of the IPC and against Rukminbai,
her mother Suman and brother Bharat, for the offence
punishable under Section 302 read with Section 34 of the
IPC vide Exh.88 on 6th March, 2006. He explained the
contents of those charges to the accused persons to
which they pleaded not guilty. Their defence is that of
total denial and false implication.
7. The prosecution examined six witnesses to
establish guilt of the above named accused persons for
the above mentioned offences. After evaluating the said
evidence, the learned Trial judge found that the dying
6 criapl421-2006
declaration of the deceased Shivnanda was voluntary and
truthful. He, therefore, relied on that dying
declaration and convicted Rukminbai, Suman and Bharat
(original accused Nos.2, 3 and 4, respectively) only for
the offence punishable under Section 302 read with
Section 34 of the IPC. He acquitted Bibhishan (original
accused No.1) of the offence punishable under Section
498-A of the IPC. The original accused Nos.2 to 4 are
the appellants before this Court. The learned Trial
Judge sentenced each of them to suffer imprisonment for
life and to pay a fine of Rs.5000/-, in default to
suffer rigorous imprisonment for one year each.
8. The learned counsel for the appellants submits
that the case of the prosecution is solely depending on
the alleged dying declaration of Shivnanda recorded by
PHC Patil (PW1). According to him, the deceased
Shivnanda had sustained 98% burns. She was not a fit
state of mind to give any statement much less the
detailed and exhaustive dying declaration (Exh-63). He
submits that the language used and the manner in which
the events have been narrated in the said dying
declaration themselves make it clear that the deceased
Shivnanda is not the author of the said dying
7 criapl421-2006
declaration. Admittedly, the brother-in-law of the
deceased Shivnanda namely Dilip Gund had taken her to
the Civil Hospital for treatment after the incident. He
would have been the best witness to state as to whether
the deceased Shivnanda was in a condition to speak and
whether she had any allegation to make against anybody
behind the incident of burning. However, the
prosecution has not examined him without assigning any
reason. The daughter of the deceased Shivnanda was
present at her house at the time of the incident.
However, she has been given up by the prosecution vide
purshis (Exh.99). According to the learned counsel, the
daughter of the deceased Shivnanda was knowing that the
deceased Shivnanda had committed suicide and therefore,
her evidence was suppressed by the prosecution. He
submits that the house in which the incident took place
is situate abutting a main road of the village. There
were a number of houses and shops in front of or
adjacent to that house. However, no independent witness
has been examined by the prosecution. He submits that
as stated in the dying declaration, the husband of the
deceased Shivnanda had illicit relations with accused
No.1 since before the marriage of the deceased Shivnanda
which had taken place prior to about seven years of the
8 criapl421-2006
incident. The prosecution has not produced any evidence
to show as to what happened on the day of the incident
which prompted the appellants to go to the house of the
deceased Shivnanda and to set her on fire. According to
him, the very genesis of the incident as stated in the
dying declaration is not natural and probable. No motive
has been attributed against the appellants for setting
the deceased Shivnanda ablaze. The learned counsel
further submits that the Medical Officer has not
endorsed on the dying declaration that deceased
Shivnanda was conscious, oriented and in a fit condition
to give statement. This fact also creates doubt about
fit mental condition of the deceased Shivnanda. In the
circumstances, according to him, the dying declaration,
which is surrounded by suspicion, could not have been
used by the Trial Court for basing conviction against
the appellants for a serious offence like murder. He
submits that the Investigating Officer, after
considering the statements of the witnesses recorded by
him, formed an opinion that the appellants were liable
to be prosecuted for the offence punishable under
Section 306 of the IPC. All these witnesses have not
been examined by the prosecution without assigning any
reason. This fact also creates doubt about truthfulness
9 criapl421-2006
of the contents of the dying declaration of the deceased
Shivnanda. He, therefore, submits that the appellants
are entitled to get benefit of doubt.
9. As against this, the learned A.P.P. submits
that there is positive and dependable evidence of PHC
Patil and Dr. Alangekar to show that the deceased
Shivnanda was in a fit state of mind to give statement
at the time when it was recorded by PHC Patil. She
submits that when PHC Patil and Dr. Alangekar deposed
before the Court that the deceased Shivnanda was in a
fit state of mind to give statement, even in the absence
of any specific endorsement that the deceased was
conscious, oriented and in a fit state of mind to give
statement, the competency of the deceased Shivnanda to
give statement cannot be questioned. She relief on the
judgment in the case of Laxman Vs. State of Maharashtra
AIR 2002 SC 2973, wherein it is held that even absence
of certification of doctor as to fitness of mind of
declarant at the time of giving declaration would not
have any adverse effect on the veracity of the dying
declaration. A certification by the doctor is
essentially a rule of caution and therefore, voluntary
and truthful nature of the dying declaration can be
10 criapl421-2006
established otherwise. It is further observed that what
essentially required is that the person who records a
dying declaration must be satisfied that the declarant
was in a fit state of mind. Where it is proved by the
testimony of the Magistrate that the declarant was fit
to make the statement, even without examination of the
doctor the declaration can be acted upon provided the
Court holds the same to be voluntary and truthful.
10. The learned A.P.P. further relied on the
judgment in the case of Atbir Vs. Government of N.C.T.
of Delhi, AIR 2010 SC 3477, in support of her contention
that if a dying declaration is found to be voluntary and
truthful, it can form the sole basis of conviction even
without corroboration. She submits that that the
deceased Shivnanda gave the dying declaration (Exh.63)
when she was in a fit state of mind. It was voluntary
and truthful. It was not influenced by any other person
or the outcome of imagination. It creates great
confidence. She, therefore, submits that the learned
Trial Judge has rightly believed the said dying
declaration and rightly convicted the appellants on the
basis thereof.
11 criapl421-2006
11. The husband of the deceased Shivnanda, who was
original accused No.1, has been acquitted of the offence
punishable under Section 498-A of the IPC. The said
acquittal has not been challenged by the prosecution and
as such, has attained finality.
12. As seen from the evidence produced by the
prosecution, the case is solely based on the dying
declaration (Exh.63) of the deceased Shivnanda.
13. PHC Patil (PW3) (Exh.101) deposes that on 27 th
June, 2000, after receiving the MLC intimation (Exh.102)
from the doctor of Civil Hospital, he went to the burns
ward alongwith the doctor and requested the doctor to
examine the deceased Shivnanda and to opine whether she
was able to give statement. Accordingly, the doctor put
his endorsement that she was conscious. Thereafter, he
recorded the statement of the deceased as per her say
which is at Exh.63. He read over the contents thereof to
her whereon she stated that they were as per her say.
Then he obtained her thumb mark below it and then put
his own signature. Thereafter, the doctor made
endorsement thereon and signed it. He sent that
statement alongwith his forwarding letter (Exh.102) to
City Police Station, Osmanabad.
12 criapl421-2006
14. Dr. Alangekar (PW3) (Exh-94) deposes that on
the request of a Police Constable, he went to the burns
ward in the Civil Hospital and examined the deceased
Shivnanda. He found her to be conscious and able to give
statement. Therefore, he asked the police to record her
statement. Accordingly, he put endorsement on the
statement on the top thereof. After her statement was
recorded, he again examined her and found her to be
conscious. He then put his endorsement as "in front of
me" and signed it.
15. There is no dispute that the deceased Shivnanda
had sustained 98% of burns. One can imagine the
physical and mental condition of a person suffering from
98% of burns. The case papers of the deceased Shivnanda
have not been produced on record. Therefore, the
appellants could not get an opportunity to point out the
medicines which were being administered to the deceased
Shivnanda when her dying declaration (Exh-63) is stated
to have been recorded. Generally, the history of the
incident is asked to the patient when he/she is admitted
in the hospital. In the absence of those case-papers,
the said history also was not made available to the
appellants. The history of the incident given by the
13 criapl421-2006
deceased Shivnanda at the time of her admission would
have been of a great help to the Court also to consider
the state of mind of the deceased Shivnanda and her
first version about the incident in which she sustained
burns. The prosecution has withheld this material
evidence without assigning any reason. Therefore,
adverse inference will have to be drawn and accordingly
drawn that had the said evidence been produced, it would
not have supported the case of the prosecution.
16. Dilip Gund, the brother-in-law of the deceased
Shivnanda had brought her to the Civil Hospital at
Osmanabad after the incident. In the natural course,
the deceased Shivnanda would have disclosed him the
reason of her sustaining burns. He would have been the
best witness to prove the oral dying declaration of the
deceased Shivnanda which certainly would have thrown
light on the factual position leading to the incident of
burning. The prosecution did not examine him without
assigning any reason though his statement was recorded
by the Investigating Officer as seen from the
particulars of witnesses given in the chargesheet.
17. The daughter of the deceased Shivnanda was
present at the house at the time of the incident. She
14 criapl421-2006
appeared before the Court. However, the prosecution did
not examine her and informed the Court vide Pushis (Exh-
99) that she was given up as she was not supporting the
case of the prosecution. The evidence of the daughter
of the deceased Shivnanda also would have made the
factual position clear. However, her evidence has been
withheld by the prosecution.
18. From the evidence of Sahebrao (PW2) (Exh-96),
who happened to be a panch to the spot of incident, it
is clear that there was a main road running from near
the spot of incident. There were shops in front of that
house. There were other houses adjacent to that house.
None of the witnesses residing near the house, where the
incident took place, has been examined by the
prosecution without assigning any reason.
19. The dying declaration (Exh-63) of the deceased
Shivnanda reads as under :
"Patient is conscious
Sd/- 2.10 pm. fu-63
t ck c
fnukad [email protected]@2000
eh f'kouank Hkz-fcHkh"k.k xaqM o; 27 o"kZ /kank ?kjdke jk- ikMksGh rk-ft-
mLekukckn-
15 criapl421-2006
le{k ljdkjh nok[kkuk mLekukckn ;sFks vkS"k/k mipkj pkyw vklrkauk
fopkjsyo:u lkaxrs dh] eyk ,d eqyxh vklwu ,d nhj o tkow vklwu lklw o
ek>s irh vkls loZt.k vkEgh ,d= jkgrks- ek>s ekyd 'ksrh djrkr ek>s ekgsj
fHklsy fiaijh rk-ykrwj ;sFkhy vklwu ek>s yXu gksowu lkr o"kZ >kyh vkgsr- ekÖ;k
uo&;kus vkeP;k xkokrhy :Deh.kh /kuxj ;k ukokph j[ksy Bsoysyh vkgs- o
R;kaps izse laca/k ekÖ;k yXukiwohZiklwu pkyw vkgsr o R;keqGs ek>h o :Deh.khckbZph
usgeh HkkaM.k raVk gksr vkls-
vkt [email protected]@2000 jksth ek>s ekyd gs ,sdchyk isj.kh dj.;klkBh
xsys vkgsr eh tsou [kku d:u ?kjh >ksiys gksrs- rsOgk nqikjh ckjk okt.;kP;k
lqekjkl ekÖ;k uo&;kph j[ksy :Deh.kh o rhph vkbZ] oMhy nRrw /kuxj o Hkkm
vkls ekÖ;k ?kjh vkys rsOgk :Deh.khP;k gkrkr jkWdsyps dWUM gksrs- rsOgk lokZauh
eyk f'kohxkG dsyh o ykFkk&cqD;kauh ekjgk.k dsyh o :Deh.khus gkrkrhy jkWdsy
dWUM ekÖ;k vaxkoj vksrys o frP;k vkbZus dkMh vks<wu ekÖ;k lkMhl ykoyh rsOgk
ekÖ;k loZ vaxkl tkG ykxyk rsOgk rs loZt.k iGwu xsys- ekÖ;k vaxkl iksGw
ykxys rsOgk eh iGr tkmu ?kjkrhy jkat.kkrhy ik.kh rkaC;kus ekÖ;k vaxkoj
vksrwu ?ksrys eyk tkG ykxY;kus ekÖ;k Mksdhps v/kZoV dsl] psgjk xGk] Nkrh]
iksV nksUgh ik;] gkr ikB vkls Hkktys vkgs- uarj ek>s fnj fnyhi xaqM ;kauh
[kktxh thi d:u vkS"k/k mipkjkdfjrk l-n-mLekukckn ;sFks vkuys- l/;k
ekÖ;koj vkS"k/k mpkj pkyw vklwu eh iw.kZi.ks 'kq/nhoj vkgs-
rjh vkt fnukad [email protected]@2000 jksth nqikjh ckjk okt.ksP;k lqekjkl
:Deh.kh /kuxj] frph vkbZ&oMhy o Hkkm ;kauh eyk ekjgk.k d:u thos
ekj.;klkBh jkWdsy vksrwu dkMh vks<wu isVowu eyk tkGys vkgs- rjh ojhy pkj
tukfo:/n ek>h dk;ns'khj rØkj vkgs- :Deh.khP;k vkbZps o Hkkokps ukao eyk
ekfgr ukgh-
ek>k tckc fygyk rks eyk okpwu nk[kfoyk rks eh lkafxrys izek.ks cjkscj
o [kjk vkgs-
le{k fu-vka-
[email protected]&
l-n-pkSdh vaeynkj] iks-LVs- f'kouank Hkz-fcHkh"k.k xaqM
mLekukckn ¼'k½ ;kapk vls-
Infront of me
Sd/-
M.O.G.H.Os'bad
27/6/2000 2.35 p.m."
16 criapl421-2006
20. The contents of the dying declaration (Exh-63),
which is in a narrative form, exfacie show that the
manner of narration therein is not expected of an
illiterate woman like the deceased Shivnanda. It seems
to be in the language of PHC Patil (PW1). The deceased
Shivnanda, who had sustained 98% of burns, would not
have given such a detailed and exhaustive statement.
Moreover, in the natural course, after stating the
events those took place at the time of the incident, the
deceased Shivnanda would not have repeated the same.
However, the last paragraph of the dying declaration
(Exh-63) again contains the summary of the preceding
paragraph. This fact creates strong doubt about
authorship about the dying declaration (Exh-63) as that
of the deceased Shivnanda.
21. Even if the dying declaration (Exh-63) is
accepted as that of the deceased Shivnanda for a while,
it will be clear therefrom that she was residing jointly
with her brother-in-law Dilip, mother-in-law and the
wife of Dilip in the house where the incident took
place. It is not the case of the prosecution that the
mother-in-law and the wife of the brother-in-law of the
deceased Shivnanda were not present in the house at the
17 criapl421-2006
time of the incident. None of them has been examined by
the prosecution. As seen from the contents of the dying
declaration (Exh-63), the husband of the deceased
Shivnanda had illicit relations with original accused
No.1 since before the deceased Shivnanda got married
with accused No.1. Indisputably, the marriage had taken
place prior to about seven years of the incident. There
is nothing on record to show that during the said period
of seven years, appellant No.1 or anybody from her
family had illtreated the deceased Shivnanda at any
point of time on any count. There is nothing in the
dying declaration (Exh-63) to show as to why the
appellants had been to her house on 27th June, 2000 and
what prompted the appellants to think of visiting house
of the deceased Shivnanda having made preparation for
setting her ablaze on 27th June, 2000. In the natural
course, there would have been some other incident
preceding the incident of burning, which would have made
the appellants to think of setting the deceased
Shivnanda on fire.
22. The incident took place at about 12.00 noon. A
number of persons were residing near the house where the
incident took place. None of them has come forward to
18 criapl421-2006
state that he/she had seen the appellants visiting the
house of the deceased Shivnanda. The deceased Shivnanda
would not have kept total silence after seeing the
appellants coming to her house with any oblique motive.
She would have tried her level best to resist them. She
would have tried to run away out of the house. In any
case, she would have at least raised shouts to attract
attention of the others so as to seek their assistance
to save herself. Nothing that of sort seems to have
been done by her. In the circumstances, the incident as
has been narrated by the deceased Shivnanda, does not
appear to be natural and probable. It does not inspire
confidence.
23. The evidence of PSI Chavan (PW7) (Exh-113), who
recorded the statements of the witnesses and after
completion of investigation filed chargesheet, shows
that it transpired in his investigation that the
deceased Shivnanda committed suicide, in the
circumstances of the case, assumes importance. He
cannot state before the Court as to what was stated
before him by the witnesses, but being the
Investigating Officer, after considering the evidence
collected by him, he was supposed to form an opinion as
19 criapl421-2006
to what offence was disclosed against the accused
persons. Accordingly, he formed an opinion that
the offence punishable under Section 306 of the IPC was
disclosed. If that be so, the theory of the prosecution
that the appellants themselves set the deceased
Shivnanda on fire, cannot be believed.
24. In the above circumstances, the sole dying
declaration (Exh-63) of the deceased Shivnanda was not
sufficient to hold the appellants guilty for a serious
offence like murder for which the minimum punishment is
imprisonment for life. It was incumbent on the part of
the prosecution to produce corroborative evidence to
establish the facts narrated in the dying declaration
(Exh-63). The prosecution has suppressed the evidence
of material witnesses, which itself creates a great
doubt about the truthfulness of the contents of the
dying declaration (Exh-63). In the circumstances, the
learned Trial Judge should not have believed the dying
declaration (Exh-63) and should not have convicted the
appellants solely on the basis of the said dying
declaration. The learned Trial Court committed a grave
error in holding the appellants guilty of the offence of
murder of the deceased Shivnanda on the basis of the
20 criapl421-2006
dying declaration (Exh-63) without seeking corroboration
thereto. The evidence of record creates doubt about
the case of the prosecution. Therefore, the benefit of
doubt necessarily would have to be given to the
appellants.
25. The prosecution failed to adduce sufficient,
cogent and dependable evidence to establish guilt of the
appellants for the offence of murder of the deceased
Shivnanda, beyond reasonable doubt. The evidence on
record is not free from doubt. The appellants are
entitled to get benefit of doubt. The impugned judgment
of conviction and sentence passed against the appellants
are liable to be quashed and set aside. In the result,
we pass the following order:
O R D E R
(A) The Criminal Appeal is allowed.
(B) The impugned judgment and order are quashed and
set aside.
(C) The appellants are acquitted of the offence
punishable under Section 302 of the Indian Penal Code.
21 criapl421-2006
(D) The bail bonds of the appellants are cancelled.
They are set at liberty.
(E) The fine amount, if deposited by the
appellants, be refunded to them.
(F) The appeal is accordingly disposed of.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
npj/criapl421-2006
