Bombay High Court
Premkumar @ Prashant Gajanan ... vs The Stat Of Mah.Thr.Pso ... on 14 December, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.311 OF 2005
Premkumar @ Prashant s/o.
Gajanan Ramteke, aged about
32 years, Occ. Labour, r/o.
Christain Colony, Ghutkala
Ward, Chandrapur. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O., Chandrapur. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daga, Advocate for the Appellant.
Mr.S.S.Doifode, A.P.P. for Respondent/State.
____________________________________________________________
::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 02:13:10 :::
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*******
Date of reserving the Judgment : 4.12.2017.
Date of pronouncing the Judgment : 14.12.2017.
*******
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
JUDGMENT (Per M.G.Giratkar, J) :
1. Appellant has assailed the Judgment of conviction by Ad-
hoc Additional Sessions Judge, Chandrapur. Appellant is convicted
in Sessions Trial No.193 of 1996 for the offence punishable under
Section 498-A of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for two years and to pay a fine of Rs.500/-, in
default to suffer rigorous imprisonment for one month. The appellant
is convicted for the offence punishable under Section 302 of the
Indian Penal Code and sentenced to suffer imprisonment for life and
to pay a fine of Rs.500/-, in default to undergo rigorous
imprisonment for one month.
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2. The case of prosecution against the appellant, in short, is
as under :
Appellant married with deceased Kavita eight months
prior to the date of incident. After the marriage, Kavita was residing
with appellant at Chandrapur. Appellant was helper in M.S.E.B. at
Ballarshah. For 2-3 months, after the marriage, Kavita resided with
appellant at Chandrapur. Later on, quarrel took place in between
the appellant and his brother. Deceased Kavita and her husband
(appellant) came for residence at Ballarshah at the house of her
parents. They resided there for about 1½ months. Thereafter,
appellant took his wife Kavita to Chandrapur. He was beating
deceased Kavita under the influence of liquor. Kavita narrated the
incident to her mother. She convinced Kavita that appellant will
change his behaviour.
3. It is the case of prosecution that, on 10th March, 1996,
in the night at about 10.00 p.m., accused beat deceased Kavita.
Kavita told appellant not to beat and she will go to her parents'
house, appellant poured kerosene on her person and set her on fire.
Neighbours rushed to the spot of incident, extinguished the fire,
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brought auto rickshaw and took the deceased to the General
Hospital, Chandrapur.
4. In the night itself, police was informed by the Medical
Officer about admission of the patient. Police Officer went to the
hospital and issued memo to Medical Officer to certify as to whether
deceased was fit to give statement. The Medical Officer certified that
deceased Kavita was not fit to give statement. Again, on the next day,
at about 8.30 a.m., memo was given to the Medical Officer to
examine the deceased and issue Certificate as to whether she was fit
to give statement. The Medical Officer certified that patient was not
fit for giving statement.
5. Information was given to her mother and relatives at
Ballarshah. They reached to the General Hospital early in the
morning. As per the statement of her mother Jijabai wd/o. Patruji
Nimgade (PW-4), she inquired from Kavita as to how she burnt. The
deceased told her that appellant quarreled with her, beat her when
she told appellant not to beat and she will go to her parents at
Ballarshah, accused poured kerosene on her person and set her on
fire. Thereafter, at about 9.00 a.m., Kavita died.
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6. Initially, Marg was registered. Marg inquiry was
conducted by PSI Vishwakar. He submitted Inquiry report of Marg.
As per the direction of Investigating Officer Kiran Ambadas Dhote
(PW-12), crime was registered by Police Inspector Madavi vide
printed F.I.R. at Exh.50.
7. Police Inspector Kiran Dhote investigated the crime and
recorded statements of witnesses. After complete investigation, he
submitted charge sheet to the Judicial Magistrate, First Class,
Chandrapur. As the offence punishable under Section 302 of the
Indian Penal Code is exclusively triable by the Sessions Court, the
case was committed to the Court of Session for trial.
8. Charge was framed at Exh.8. Same was read over and
explained to the appellant/accused. He pleaded not guilty and
claimed to be tried. It appears from the way of cross-examination
that defence is of total denial. It is the defence of appellant that
deceased sustained burn injuries accidentally while cooking food.
9. Learned trial Court recorded evidence of following
witnesses :
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a) Mahendra s/o. Ramdas Jagtap (PW-1) (Exh.13).
b) Yashodhara wd/o. Shantaram Ganvir (PW-2) (Exh.17).
c) Ajay s/o. Wasudeorao Aglave (PW-3) (Exh.18).
d) Jijabai wd/o. Patruji Nimgade (PW-4) (Exh.24).
e) Sk. Ajij s/o. Sk. Gulam Nabi (PW-5) (Exh.26).
f) Kailash s/o. Patruji Nimgade (PW-6) (Exh.29).
g) Mohammad Aayub s/o. Mohd. Wazir Rajavi (PW-7)
(Exh.32).
h) Waman s/o. Anandrao Vaidya (PW-8) (Exh.33).
i) Arun s/o. Bapurao Mandaokar (PW-9) (Exh.39).
j) Dr.Ashok s/o. Hariprasad Shanaishchandra (PW-10)
(Exh.45).
k) Punjabrao s/o.Paikuji Madavi (PW-11) (Exh.48).
l) Kiran Ambadas Dhote (PW-12) (Exh.53).
m) Dr.Anant Krushnarao Hajare (PW-13) (Exh.60).
10. Statement of appellant/accused was recorded under
Section 313 of the Code of Criminal Procedure. Appellant has
denied material incriminating evidence against him. He has stated in
his statement under Section 313 of the Code of Criminal Procedure
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that he was at Pan shop at the time of incident. When there was
smoke, he came running. Witnesses also rushed there. Witnesses
helped him. He along with witnesses put Kavita in auto and took her
to the hospital. He was present in the hospital in whole night near
Kavita.
11. Learned trial Court heard the prosecution and defence
and came to the conclusion that prosecution has proved the guilt of
appellant/accused for the offence punishable under Sections 498-A
and 302 of the Indian Penal Code and convicted the
appellant/accused, as aforesaid.
12. Heard Learned Counsel Mr.R.M.Daga for the appellant.
He has pointed out the evidence on record and submitted that Kavita
was burnt extensively. Her face, chest etc. were burnt. She was not in
a position to talk. She was admitted in the General hospital,
Chandrapur. Admission Register shows that deceased Kavita
sustained burn injuries accidentally. A copy of Admission register is
at Exh.55.
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13. Learned Counsel pointed out memo issued by Head
Constable to the Medical Officer Exh.58, dt.11.3.1996. Time is
mentioned as 00.50 hours. By the said memo, Medical Officer was
requested to examine the patient and certify as to whether she was in
a position to give statement. The Medical Officer certified that
patient was not in a position to give statement. Again, early in the
morning on 11.3.1996, at about 8.30 a.m., memo was issued to the
Medical Officer by Police Authority to examine the patient and certify
about her condition as to whether she was fit to give statement.
14. Learned Counsel has submitted that the Medical Officer
certified on Exh. Nos.58 and 59 that patient was not fit to give
statement. Time of certification is in the night itself at about 00.50
and early in the morning at about 8.30 a.m. Therefore, there is no
written dying declaration on record.
15. Learned Counsel Mr.Daga has submitted that when it is
proved by Exh. Nos.58 and 59 that patient was not in a position to
speak/talk, then in such a situation, it was impossible for the
deceased to tell her mother about the cause of death. Her mother
Jijabai Nimgade (PW-4) has stated in her evidence that she reached
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in the hospital at about 6 a.m., and on her inquiry, deceased stated
to her that there was quarrel, appellant beat her, poured kerosene
and set her on fire. This particular evidence is wrongly relied on by
the trial Court to convict the appellant.
16. Learned Counsel has pointed out the evidence of
Yashodhara wd/o. Shantaram Ganvir (PW-2), Mohammad Aayub
s/o. Mohd. Wazir Rahavi (PW-7) and Waman s/o. Anandrao Vaidya
(PW-8). Material omissions are brought on record in their cross-
examinations. Those omissions are proved by Kiran Dhote (PW-
12)/Investigating Officer. At last, it is submitted that prosecution has
failed to prove that accused poured kerosene and set the deceased on
fire. There is no evidence in that respect. Learned Counsel has
submitted that the impugned Judgment is prima facie illegal and
liable to be quashed and set aside.
17. Heard Mr.S.S.Doifode, learned A.P.P. for the
Respondent/State. He has supported the impugned Judgment.
Learned A.P.P. has submitted that evidence of Jijabai Nimgade (PW-
4) is corroborated by evidence of Yashodhara Ganvir (PW-2). Their
evidence is also corroborated by the evidence of Mohammad Aayub
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(PW-7) and Waman Vaidya (PW-8). Hence, the appeal is without any
merit and liable to be dismissed.
18. There is no dispute that deceased died due to burn
injuries. Medical Officer Dr.Ashok s/o. Hariprasad Shanaishchandra
(PW-10) has stated in his evidence that he had conducted post
mortem on the dead body of Kavita. As per his observations, he
found 84 % burn injuries on the body. As per his opinion, cause of
death was shock due to extensive burns. Accordingly, he issued post
mortem report (Exh.47).
19. The medical evidence shows that deceased died due to
burn injuries. The Court has to decide whether she died homicidal,
suicidal or accidental death. While scrutinizing evidence, it is duty of
the Court to go through all the evidence on record. There is no
dispute that deceased was burnt in the night of 10.3.1996 at about
10.00 p.m. She was admitted in the hospital by appellant and
others. Admission Register (Exh.55) shows that she had sustained
burn injury due to accident. Spot panchanama (Exh.27) shows that
stove, cooking materials were scattered on the spot of incident.
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20. Yashodhara Ganvir (PW-2) is the nearest friend of Jijabai
Nimgade (PW-4). She has stated in her evidence that she along with
Jijabai Nimgade (PW-4) came to the hospital at about 6.30 a.m.
Mother of Kavita asked deceased as to how she burn. Kavita told
that "her husband beat her and when she told not to beat and she
will go at her parent's house, at that time, her husband poured
kerosene on her person and burnt her". This particular evidence is
nothing but improvement in the evidence of Yashodhara Ganvir (PW-
2). It is brought on record in her cross-examination in para no.3 that
she could not assign any reason as to why it is not written in her
police statement. She has further admitted in para no.5 of her cross-
examination that, for the first time, she was stating before the Court
that mother of Kavita asked and Kavita told her that her husband
burnt her. Her evidence shows that she is the nearest friend of Jijabai
(PW-4). Her admission itself shows that she has supported the
version of Jijabai (PW-4) because of their relations. Her evidence is
not reliable because material omission is brought on record in her
cross-examination.
21. Mahendra Jagtap (P.W.1) and Ajay Aglave (PW-3) are
the panch witnesses. They have stated about panchanamas. Jijabai
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(PW-4), mother of deceased has stated in her evidence that she was
informed by police about the incident. At about 4 a.m., she along
with Yashodhara Ganvir (PW-2) and other relatives went to General
Hospital, Chandrapur. She went to burn ward. At about 6 a.m., she
asked Kavita about the incident. Kavita told her that "Premkumar
came to house at about 9 to10 p.m., beat her. Kavita told "not to
beat and she will go at Ballarshah at her mother's house, Premkumar
poured kerosene on her person, lighted match stick and threw on her
body." She has further stated that this talk was made at about 6 a.m.
Kavita died at about 9.00 a.m. In the cross-examination, she has
stated that face and head of Kavita was fully burnt. Police told her
that doctor gave report that Kavita was not able to talk and
therefore, her statement was not recorded.
22. Learned trial Court relied on the evidence of Jijabai
Nimgade (PW-4) and came to the conclusion that oral dying
declaration stated by Jijabai (PW-4) is supported by other witnesses.
The trial Court, therefore, came to the conclusion that appellant has
committed murder of his wife Kavita and convicted for the offence
charged against him.
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23. It is pertinent to note that, while recording satisfaction
about the oral dying declaration stated by Jijabai (PW-4), it was duty
of the trial Court to see as to whether deceased was in a fit condition
to talk with her mother. Evidence of Yashodhara Ganvir (PW-2)
shows that she was falsely supporting the evidence of Jijabai (PW-4).
The evidence of Yashodhara (PW-2) is not reliable. As per the
evidence of Jijabai (PW-4), Yashodhara Ganvir (PW-2) was with her
when she entered in the burn ward of hospital and asked about the
incident to Kavita.
24. There is no dispute that Kavita was extensively burnt as
per the Certificate given by the Medical Officer on memo Exh. Nos.58
and 59. It is clear that the deceased was not in a fit condition to give
statement. In the night itself, at about 00.50 hours, the Medical
Officer certified that Kavita was not fit to give statement. Again, early
in the morning, police tried to record her statement. On the memo
Exh.59, Medical Officer certified that deceased was not fit to give
statement. Therefore, question arises as to how deceased gave
statement to her mother.
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25. Jijabai (PW-4) is most interested witness to prosecute
the appellant and therefore, her evidence is to be scrutinized very
carefully. Her evidence is not reliable because, as per the medical
evidence i.e. Certificate of doctor given on memo Exh. Nos. 58 and
59, it can clearly be seen that Kavita was not in a position to speak. It
is also brought on record in the cross-examination of other witnesses
that deceased was not in a position to talk because she was having
extensive burns. Learned trial Court wrongly relied on the evidence
of Jijabai (PW-4). Oral dying declaration stated by Jijabai (PW-4) is
the only evidence before the Court. There is no other corroborative
evidence to show that the appellant poured kerosene and set the
deceased on fire.
26. The evidence of Kailash s/o. Patruji Nimgade (PW-6)
shows that he was brother of deceased. He has stated that he came
to General hospital, Chandrapur at about 7 to 7.30 a.m. His mother
was weeping near the bed of Kavita. When he went in burn ward,
Kavita asked mother to give her water. He came outside. Kavita was
extensively burnt. Kavita died at about 9 to 9.30 a.m. She died due
to burning.
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27. Brother of deceased, has not stated anything about the
statement made by Kavita. When he was present in the hospital, then
it was his natural conduct to ask his mother. It was also natural
conduct of Jijabai (PW-4) to tell to this witness. Jijabai (PW-4) has
not stated in her evidence that she stated to Kailash Nimgade (PW-6)
or Kailash has not stated that his mother told him about cause of
death stated by Kavita. Therefore, the only evidence of Jijabai (PW-
4) is not reliable. Moreover, it is clear from the Certificate of Medical
Officer on Exh. Nos.58 and 59 that Kavita was not in a position to
talk/speak. Learned trial Court wrongly relied on the evidence of
Jijabai (PW-4).
28. Sheikh Ajij s/o. Sheikh Gulam Nabi (PW-5) has stated
about the Spot panchanama (Exh.27). He has stated that Spot
panchanama was prepared in his presence. Match box, stove,
kerosene can were lying on the spot. From the perusal of Spot
panchanama, utensils and cooking materials were also lying on the
spot of incident. The Admission Register (Exh.55) shows that, at the
time of admission in the General Hospital, history was stated as
accidental burn. It corroborates the Spot panchanama. Therefore,
16 apeal311.05.odt
defence of the accused that deceased might have sustained burn
injury accidentally while cooking food is probable.
29. Burden of accused to prove his defence is not as like the
prosecution. Prosecution has to prove the guilt of accused beyond
reasonable doubt. Whereas, accused has to prove his defence by
preponderance of probabilities. It appears that accused has
discharged his burden.
30. Mohammad Aayub (PW-7) and Waman Vaidya (PW-8)
appear to be interested witnesses. Mohammad Aayub (PW-7) has
stated in his evidence that when he reached to the spot of incident,
appellant was there and he was smoking cigar. He was not helping to
take the deceased to the hospital. But material omissions are
brought on record in his cross-examination. What he has stated
about presence of accused on the spot of incident by smoking cigar is
brought on record as an omission. There are other omissions brought
on record in his cross-examination. Therefore, it is clear that this
witness has made much more improvements only to support the
prosecution version. Therefore, his evidence is not reliable.
17 apeal311.05.odt
31. Waman Vaidya (PW-8) has also made much more
improvements in his evidence. He has also stated that he along with
Ayub extinguished fire. But appellant was not helping to take the
deceased in the hospital. Whereas in his police statement, he has
stated that he along with appellant took the deceased to the hospital.
This contradictory version is proved by Investigating Officer Kiran
Dhote (PW-12). Therefore, evidence of Waman Vaidya (PW-8) is
also not reliable.
32. While relying on the dying declarations, more
particularly oral dying declarations, the Court must be very cautious.
In the Land Mark Judgment of Hon'ble Supreme Court in the case of
Khushal Rao .vs. State of Bombay reported in AIR 1958 SC 22, the
Hon'ble Supreme Court has observed as under :
"In order to pass the test of reliability, a dying declaration
has to be subjected to a very close scrutiny, keeping in view
the fact that the statement has been made in the absence of
the accused who had no opportunity of testing the veracity
of the statement by cross-examination. But once, the Court
has come to the conclusion that the dying declaration was
the truthful version as to the circumstances of the death
18 apeal311.05.odt
and the assailants of the victim, there is no question of
further corroboration.
If, on the other hand, the Court, after examining the dying
declaration in all its aspects, and testing its veracity, has
come to the conclusion that it is not reliable by itself, and
that it suffers from an infirmity, then, without
corroboration it cannot form the basis of a
conviction. Thus, the necessity for corroboration arises not
from any inherent weakness of a dying declaration
as a piece of evidence, as held in some of the reported
cases, but from the fact that the Court, in a given
case, has come to the conclusion that that particular
dying declaration was not free from the infirmities,
referred to above or from such other infirmities as
may be disclosed in evidence in that case."
33. Prosecution has failed to establish that the appellant beat
the deceased, poured kerosene and set her on fire. On the other
hand, it appears from Exh.55 Copy of Admission Register in hospital
and Spot panchanama (Exh.27) that deceased might have sustained
burn injury accidentally while cooking food. In Exh.55, it is
specifically mentioned that the deceased sustained burn injury
accidentally. The evidence of Jijabai (PW-4) on the point of oral
19 apeal311.05.odt
dying declaration stated by Kavita is not reliable in view of
Certificate issued by Medical Officer on Exh. Nos. 58 and 59.
Therefore, it is clear that the learned trial Court has wrongly
convicted the appellant only on the basis of oral dying declaration
stated by Jijabai (PW-4).
34. In respect of offence punishable under Section 498-A of
the Indian Penal Code, it is pertinent to note that Yashodhara (PW-2)
is the nearest friend of Jijabai (PW-4), but she has not stated
anything about the cruelty caused by the appellant. Waman Vaidya
(PW-8) and Arun Mandaokar (PW-9) were neighbours of deceased.
They have also not stated anything about the cruelty caused by the
appellant to the deceased. Evidence of mother and brother of
deceased on the point of cruelty is not supported by any independent
witness. Learned trial Court has wrongly convicted the appellant for
the offence punishable u/s. 498-A of the Indian Penal Code.
35. From the evidence on record, it is clear that the
prosecution has miserably failed to prove the guilt of the appellant
beyond reasonable doubt for the offences punishable under Section
498-A and 302 of the Indian Penal Code. Learned trial Court has not
20 apeal311.05.odt
considered the evidence brought on record by the side of defence
and has wrongly convicted the appellant for the offences punishable
under Sections 302 and 498-A of the Indian Penal Code. Hence, we
are inclined to allow the appeal and pass the following order :
// ORDER //
The appeal is allowed.
Appellant is hereby acquitted of the
offences punishable under Sections 498-A and 302 of
the Indian Penal Code.
Fine amount, if paid by the appellant, be
refunded to him.
Appellant is on bail. His bail bonds shall
stand cancelled.
The record and proceedings be sent back to
the trial Court.
JUDGE JUDGE
[jaiswal]
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