Janardhan @ Digambar S/O Gulabrao ... vs State Of Maharashtra, Through ...
2017 Latest Caselaw 77 Bom

 CRI.A 484.15.odt                             1


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

                    CRIMINAL APPEAL NO.484 OF 2015


 Janardhan @ Digambar s/o Gulabrao
 Tupkar, Aged about 33 years,
 Occupation-Agriculturist,
 R/o. Gunj, Tahsil-Sindkhed Raja,
 District-Buldana.                 ..                               APPELLANT
                                                                   (In Jail)

                               .. VERSUS ..

 State of Maharashtra,
 through Police Station Officer,
 Sakharkherda, Tahsil-Sindhkhed Raja,
 District-Buldana.                    ..                        RESPONDENT

                               ..........
 Shri S.D. Chande, Advocate for Appellant,
 Shri V.P. Maldhure, APP for Respondent.
                     ..........

                               CORAM : B.R. GAVAI AND
                                       KUM. INDIRA JAIN, JJ.

DATED : FEBRUARY 27, 2017.

ORAL JUDGMENT : (Per : KUM. INDIRA JAIN, J.)

This appeal is directed against the judgment and

order dated 15.9.2014 passed by the learned Additional

Sessions Judge (Link Court), Mehekar in Sessions Trial

No.23/2013. By the said judgment and order, sole accused

Janardhan is convicted of the offence punishable under

Section 302 of the Indian Penal Code and sentenced to

suffer Rigorous Imprisonment for life and fine of Rs.1,000/-

in-default imprisonment for 6 months. Accused came to be

acquitted of the offence punishable under Section 498-A of

the Indian Penal Code.

2] Prosecution case, which emerges from the charge-

sheet and connecting papers thereto, may be stated in brief

as under :

                (a)       Seema          was    the     eldest         daughter           of
                          complainant          Deorao     Lahane,         resident        of

Khandala, District-Parbhani. She was married before 10-11 years with the accused resident of Gunj, Tahsil-Sindkhed Raja, District- Buldana. The couple was blessed with a son PW-2 Dnyaneshwar and two daughters Pratiksha and Sakshi.

(b) According to prosecution, accused was addicted to liquor. He used to raise quarrel with Seema. He was suspecting her character and beating her often. She disclosed about ill-treatment to her father. Her father used to pacify the accused. As accused did not improve his behaviour, Deorao had brought Seema and her children to his house before one year of the incident.

(c) Prior to four days of incident, accused along with his relatives and 2-3 villagers had been to the house of Deorao. He insisted that Seema should join his company and she should be sent to her matrimonial house. He promised not to consume alcohol and not to ill-treat Seema. Considering the future of children, Seema agreed to resume cohabitation and she accompanied the accused to his house.

(d) On 24.11.2012 in the morning accused raised suspicion on chastity of Seema and beat her. At 2.00 pm, he poured kerosene on her person and set her on fire. After setting her ablaze, accused tried to extinguish fire. She was admitted to Civil Hospital, Buldana. Father and other relatives of Seema were informed about the incident. They rushed to the Hospital. Executive Magistrate was requested to record dying declaration of the victim. PW-3 Rajendra Ingle, Executive Magistrate rushed to the Hospital. He enquired from the Medical Officer regarding condition of the patient to give her statement. After doctor certified that she was fit to give her statement, he recorded dying declaration of Seema.

                (e)       On 25.11.2012, Deorao father of Seema
                          lodged     report.        Crime      No.67/2012             was
                          registered      against     the     accused          for     the

offence punishable under Section 307 of the Indian Penal Code. Accused was arrested.

                (f)       API     Ashok     Lande         (PW-9)         took        over
                          investigation.       He    visited       the     spot       and

recorded spot panchanama. Certain articles like pieces of bangles, burnt pieces of saree and petticoat, a plastic can containing kerosene were seized from the spot. During investigation, statement of other witnesses were recorded.

(g) Seema succumbed to injuries on 30.11.2012.

The offence was converted to Section 302 of the Indian Penal Code. Inquest panchanama was drawn. Dead body was sent for postmortem. PW-6 Dr. Anil Kothari performed postmortem and opined cause of death due to septicemia due to deep burns. Seized muddemal was sent to Forensic Science Laboratory. On completing investigation, charge-sheet was submitted to the Court of Judicial Magistrate, First Class, Sindkhed Raja.

3] On committal, trial Court framed charge against

the accused vide Exh.4. He pleaded not guilty and claimed

to be tried. His defence was of total denial and false

implication. He stated that he alienated six gunthas farm

land to repay the loan. Seema did not like the same, as she

was worried about the future of children. In a fit of anger,

she committed suicide.

4] Prosecution examined in all nine witnesses to

substantiate the guilt of accused. Accused did not examine

himself on oath or other witness in support of his defence.

On going through the evidence adduced by the prosecution,

learned Additional Sessions Judge convicted the accused as

stated herein-above. Being aggrieved thereof, accused has

preferred this appeal.

5] We have heard the learned counsel for the parties.

On meticulous evaluation of the evidence on record and on

careful consideration of the facts and circumstances of the

case, arguments advanced by the learned counsel for the

parties and reasons recorded by the trial court for the below

mentioned reasons, we are of the opinion that prosecution

has succeeded in proving the guilt of accused beyond

reasonable doubt and the trial court has rightly passed the

judgment and order of conviction against him.

6] Prosecution case is mainly based on dying

declaration of Seema. PW-3 Executive Magistrate Rajendra

Ingle recorded the dying declaration. He stated that on

24.11.2012, he received a letter (Exh.19) from Police for

recording dying declaration and accordingly he reached

General Hospital, Buldana at 6.30 pm. He met the Medical

officer and requested him to examine the patient regarding

her physical and mental fitness to make the statement.

Doctor examined Seema and certified that she is fit to give

her statement. Executive Magistrate further states that he

introduced himself to Seema and asked about the incident.

Seema narrated before him that in the morning accused had

a quarrel suspecting her character and beat her. At about

2.00 pm, accused poured kerosene on her person and set

her on fire. She also stated that accused tried to extinguish

fire. After writing of dying declaration was over, Executive

Magistrate again requested the Medical Officer to examine

the patient and certify about her fitness. Medical Officer

examined her and certified accordingly. The written dying

declaration proved by PW-3 Executive Magistrate Rajendra

Ingle is at Exh.20.

7] Learned counsel for appellant assailed dying

declaration (Exh.20) on the ground that doctor, who certified

the fitness, has not been examined. It appears that Dr. K.S.

Date was Medical Officer on duty. He gave the certificates.

Witness summons was issued to him. It was found that his

services were discontinued and he was not served with the

summons. Prosecution then moved an application (Exh.32)

seeking permission to examine Dr. Ganesh Rathod, who was

acquainted with handwriting of Dr. Date. The said

application for some or the other reason was rejected. It is

thus apparent that in peculiar circumstances, Medical

Officer, who certified and made endorsements on dying

declaration, was not examined. Moreover, non examination

of Medical Officer alone would not be fatal to the

prosecution case.

8] The moot question would then arise as to why

PW-3, who is an independent officer, should depose a lie.

After endorsements were made by the Medical Officer, PW-3

Executive Magistrate took precaution and subjectively

satisfied himself that Seema was fit go give her statement.

True, PW-6 Dr. Kothari stated that he had noticed redness on

Seema's trachea. According to the appellant, this indicates

that there was an injury to trachea and patient was unable

to speak. It is interesting to note that no suggestion was

given to Dr. Kothari that there was an injury to trachea of

Seema. Even postmortem report (Exh.25) does not indicate

an injury to trachea. Mere redness cannot be equated with

the injury.

9] The law in respect of appreciation of dying

declaration in evidence is well settled. 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 statement

has been made in the absence of accused who had no

opportunity of testing the veracity of the statement by

cross-examination. Once the court comes to a conclusion

that dying declaration is the truthful version as to the

circumstances of the death and the assailant of victim, no

further corroboration is required to such a dying declaration.

Keeping in view the said proposition of law and on

meticulous evaluation of the evidence of Executive

Magistrate, we are of the view that dying declaration

(Exh.20) inspires confidence, as it is a true and voluntary

statement made by the deceased.

10] In addition to dying declaration, prosecution has

relied upon evidence of PW-2 Dnyaneshwar as an

eyewitness and PW-8 Motiram as a witness, who allegedly

saw the accused setting Seema on fire. Trial Court has

recorded the reasons for which PW-2 cannot be treated as

an eyewitness. PW-8 Motiram, as he did not support the

case of prosecution, his evidence is also of no help to the

prosecution.

11] The next piece of evidence on which reliance is

placed is in the form of oral dying declaration. PW-1 Deorao

is father of Seema. According to him, he reached General

Hospital, Buldana at 9.00 pm and saw burn injuries on the

body of Seema. He stated that Seema disclosed to him that

accused poured kerosene on her person and set her ablaze.

It appears from the evidence of Deorao and Investigating

Officer that Deorao belatedly disclosed about oral dying

declaration to police. It has also come by way of an

omission and the trial Court has discarded the evidence of

Deorao on oral dying declaration. We find no reason to take

a view different than taken by the trial court.

12] It is pertinent to note that presence of accused at

the time of occurrence is no where specifically denied.

Incident occurred in the broad daylight. Accused did not

offer any explanation for the burn injuries received by

Seema, except saying that it was suicidal death. Accused

could not establish his defence. The findings recorded by

PW-6 Dr. Anil Kothari in postmortem report (Exh.25) clearly

show cause of death as septicemia due to deep burns and

mode of death as homicidal is proved beyond reasonable

doubt by written dying declaration (Exh.20).

13] In the above premise, we find that appeal is devoid

of substance and merit. Hence, appeal stands dismissed.

No costs.

(Kum. Indira Jain, J.) (B.R. Gavai, J.)

.........

Gulande