State Of Maharashtra vs Anil Appa Bhalerao And Others
2017 Latest Caselaw 4250 Bom

                                                          Cri.Appeal No.132/1999
                                      (( 1 ))


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.132 OF 1999


 The State of Maharashtra,
 (through : Yawal Police Station,
 District Jalgaon)                          ...   APPELLANT
                                            (Original Complainant)
          VERSUS

 1.       Anil Appa Bhalerao,
          Age 18 years,

 2.       Anil Alias Guddya Dhondu Koli,
          Age 25 years,

 3.       Arun Sukdev Koli,
          Age 22 years

 4.       Vaijabai Appa Bhalerao
          Age 45 years

 5.       Suresh Bapu Marathe,
          Age 25 years,

          All R/o Yawal,
          District Jalgaon                  ...   RESPONDENTS

                                  .....
 Shri S.D. Ghayal, A.P.P. for the appellant
 Shri V.B. Jadhav, Advocate holding for
 Shri A.V. Hon, Advocate for respondents No.1 to 5
                                  .....

                                 CORAM:     T.V. NALAWADE AND
                                            SUNIL K. KOTWAL, JJ.

                                 DATED:     10th July, 2017.

 J U D G M E N T (PER SUNIL K. KOTWAL, J.):

1. This appeal is directed by State of Maharashtra

against the judgment and order of Sessions Judge, Jalgaon in

Cri.Appeal No.132/1999 (( 2 ))

Sessions Case No.3/1998, wherein the respondents were

acquitted of the offences punishable under Sections 302 and 449

read with Section 34 of the Indian Penal Code (hereinafter

referred as I.P.C.). Respondents No.1 to 5 are original accused

No.1 to 5 respectively. Respondent No.2 died during pendency of

the appeal.

2. Shorn of necessary details :-

The case of the appellant in brief is that, the

deceased Miss Aarti Madhukar Sapkale, aged 17 years and

accused No.1 to 5 are the residents of Yawal city, District Jalgaon.

Respondent No.1 and 4 were was the neighbours of deceased.

Respondents No.2, 3 and 5 were the friends of respondent No.1.

Respondent No.2, 3 and 5 used to tease the deceased and when

she protested, they abused and threatened her. On 1/10/1997,

at about 4.15 p.m., when deceased was alone in her house, at

that time, accused No.1,3 4 and 5 went inside the house of

deceased and held her. Thereafter, respondent No.2 poured

kerosene on the body of deceased and set her ablaze. Hearing

shouts of the deceased, neighbour Raju Gajre (P.W.9) and his wife

Ranjana rushed on the spot and they extinguished fire with the

help of quilt lying in the house of deceased. At that time, uncle of

the deceased namely Ravindra (P.W.2) had reached on the spot.

On enquiry, the deceased disclosed them the occurred incident.

Initially, deceased was shifted to Rural Hospital, Yawal where

Cri.Appeal No.132/1999 (( 3 ))

doctor Talyarkhan Tadavi (P.W.7) recorded the history of

kerosene burn and informed Yawal Police Station. Immediately

the Head Constable Shri Ashok More (P.W.13) was deputed to

Yawal Rural Hospital. Head Constable Ashok More (P.W.13), in

presence of Dr. Talyarkhan Tadavi (P.W.7) recorded the

statement of deceased, wherein she again disclosed the occurred

incident to them. As deceased had sustained 80% burn injuries,

she was referred to Civil Hospital, Jalgaon, where she succumbed

to her injuries on next day at 6.00 a.m.

3. On the basis of statement given by deceased, crime

was registered at Police Station Yawal. During the course of

investigation, all the accused persons were arrested and spot

panchanama was drawn on the spot of occurrence by A.P.I. Shri

Rajendra Raising (P.W.11). He attached one plastic can of

kerosene, one match box and ash of burnt clothes from the spot

of occurrence. Statements of the relevant witnesses were

recorded and the seized articles on the spot were referred to

Chemical Analyser on 6/10/1997. Three photographs (Articles A

to C) and their negatives were seized from the photographer Shri

Barjighe under panchanama. After death of deceased, local

police had drawn inquest panchanama and the dead body was

referred for post mortem examination. Dr. Kulkarni (P.W.12)

performed autopsy. After completion of investigation, charge

sheet was submitted in the Court.

Cri.Appeal No.132/1999 (( 4 ))

4. Charge (Exh.8) was framed against accused No.1 to 5

for commission of the offences punishable under Sections 302

and 449 read with Section 34 of the Indian Penal Code.

Respondents pleaded not guilty and claimed trial. Defence of the

respondents was that, deceased had love affairs with respondent

No.2 and because family members of deceased opposed that

relationship and arranged marriage of deceased with her parental

aunt's son, the deceased committed suicide by setting herself

ablaze. In the alternate, accused Nos.2, 3 and 5 had also taken

defence of alibi and examined defence witnesses in support of

their defence.

5. After considering the oral and documentary evidence

placed on record, learned trial Court acquitted respondents No.1

to 5 of the offence punishable under Sections 302 and 449 read

with Section 34 of the I.P.C. Therefore, this appeal arises.

6. Learned A.P.P. for the appellant argued at length, and

submitted that, the appellant is relying on one written dying

declaration and three oral dying declarations of the deceased.

His contention is that, when these three dying declarations are

free from doubt, conviction can be based only on the basis of

truthful dying declaration, even in absence of direct evidence.

Cri.Appeal No.132/1999 (( 5 ))

7. On the other hand, learned defence Advocate

submitted that, from the cross-examination of prosecution

witnesses, it emerges that, the terms in between respondents

and family members of the deceased were cordial and the

respondents had no reason to commit murder of the deceased.

In other words, according to defence, no evidence regarding

motive is available. Learned defence counsel assailed the dying

declaration on the ground that the oral dying declarations are not

reliable and even the written dying declaration is a prepared

document. According to defence counsel, no clinching evidence

is available on record to show that the written dying declaration,

alleged to be recorded by Head Constable Ashok More (P.W.13)

was recorded when the deceased was in the fit state of mind to

give statement.

8. After scrutiny of evidence placed on record, it is clear

that, no direct evidence is available in the form of eye witness

who had seen the respondents while setting ablaze the deceased.

Even no witness is available who had seen the respondents while

running away from the spot or even nearby the spot at the

relevant time of the occurrence i.e. at about 4.15 p.m. Therefore,

the total prosecution case is based on only four dying

declarations of the deceased. Three dying declarations are oral

and only one is written, which is obtained by Head Constable

More (P.W.13), in presence of Medical Officer, Rural Hospital,

Cri.Appeal No.132/1999 (( 6 ))

Yawal Dr. Talyarkhan Tadavi (P.W.7). The first oral dying

declaration is in presence of Ravindra Sapkale (P.W.2), who is

uncle of the deceased, who reached on the spot immediately

after the occurrence of the incident. Second oral dying

declaration is in presence of Smt. Shashikalabai (P.W.3), who is

mother of deceased and third oral dying declaration is in

presence of Madhukar Sapkale (P.W.8), who is father of the

deceased.

9. Before proceeding to examine the reliability of these

four dying declarations, we must make it clear that, even only on

the basis of dying declaration conviction can be based without

corroboration by other evidence, provided that the dying

declaration is free from every infirmity. The entire law regarding

dying declaration is disclosed in K. Ramchandra Reddy Vs.

The Public Prosecutor (1976 Cri.L.J. 1548). In that case, the

case of Khushal Rao is quoted in para 6 and that is regarding

when the dying declaration can be basis for conviction. Bearing

in mind the law stated in para 6 of the said case and considering

the facts of this case, the following principles can be stated to be

relevant for us :-

(1) The Court will have to be on guard against the

statement of the deceased being a result of either of

tutoring, prompting or a product of his imagination,

Cri.Appeal No.132/1999 (( 7 ))

(2) The Court must be satisfied that the deceased was in a

fit state of mind to make statement.

(3) The deceased had clear opportunity to observe and

identify his assailant and that he was making the

statement without influence of rancour.

(4) One of the important tests of the reliability of a dying

declaration is that the person who recorded it must be

satisfied that the deceased was in a fit state of mind.

In the facts of the case of K. Ramchandra Reddy

(supra), the Supreme Court has held that the omission by the

Magistrate in not putting a direct question to the deceased

regarding the mental condition of the injured when he was

satisfied that the injured was suffering from severe pain and was

not able to speak normally, so also the conduct of the deceased

in not making disclosure regarding the occurrence on three

previous occasions when he had opportunity to name his

assailant, were sufficient factors to give benefit of doubt to the

accused.

10. In the case at hand, as per prosecution case itself

accused did not have inimical terms with the deceased or her

family members. In fact, no evidence is placed on record by

prosecution to prove the motive behind the alleged murder of the

deceased. On the other hand, from the cross-examination of

Cri.Appeal No.132/1999 (( 8 ))

Ravindra Sapkale (P.W.2), Shashikalabai (P.W.3) and Madhukar

(P.W.8), it emerges that, prior to the occurrence, the family

members of the deceased had cordial relations with the accused

persons. However, even in absence of motive, prosecution can

establish guilt of the accused provided that the above discussed

four dying declarations are free from every infirmity.

11. Raju Gajare (P.W.9) is the first witness who reached

on the spot after hearing shouts of the deceased. However, when

Raju Gajare (P.W.9) entered the witness box, he deposed that, on

the date of occurrence at about 4.00 p.m., he heard shouts from

the house of Madhukar Sapkale "Save me, Save me" and,

therefore, he went to that house and saw the deceased on fire.

With the help of quilt, this witness extinguished the fire. But,

according to this witness, deceased disclosed before him that she

set herself on fire because she had love affair with Anil Koli

(accused No.2). Therefore, this witness was declared hostile and

he was confronted with his statement recorded by police.

However, nothing could be elicited in his cross-examination which

is helpful to the prosecution. On the other hand, this witness has

brought on record probability of commission of suicide by

deceased, due to her love affair with accused No.2, provided that

the above statement of this hostile witness is corroborated by

some other circumstances on record.

Cri.Appeal No.132/1999 (( 9 ))

12. No doubt Ravindra Sapkale (P.W.2) deposed before

the Court that on the date of occurrence i.e. on 1/10/1997 at

about 4.30 p.m. when he was sitting in the house of his father, he

heard commotion that a girl was set on fire, so he ran towards his

house and saw that Raju Gajare (P.W.9) and his wife Ranjana

were extinguishing fire set on deceased. According to this

witness, he asked the deceased as to who had set her on fire and

she named accused No.1, 3, 4 and 5, who held her. Deceased

also named accused No.2 Anil @ Guddya as the same culprit who

set her on fire. However, from his cross-examination, it emerges

that, at the time of occurrence, he was sitting 5 to 6 houses away

from his own house where he used to reside along with deceased

and her parents. Therefore, question arises, after hearing the

commotion, why he rushed to his own house when he was not

aware that there was some mishap in his house. The second

doubtful conduct of this witness is that, he did not enquire with

the deceased as to what happened, but he enquired in the words

"who set you on fire". When Ravindra Sapkale (P.W.2) was not

aware as to what exactly happened with the deceased, then how

can he ask the deceased as to who set her on fire. From his

cross-examination, it also emerges that, though he accompanied

the deceased to Rural Hospital, Yawal and though he met to Head

Constable More (P.W.13) who recorded dying declaration of the

deceased, this witness did not inform Head Constable More about

the disclosure statement of the deceased. Ravindra Sapkale

Cri.Appeal No.132/1999 (( 10 ))

(P.W.2) also admits that he did not tell the incident even to the

doctor or to anybody until police recorded his statement on the

next day of the incident. Thus, obviously possibility cannot be

ruled out that this witness is a prepared witness to support the

theory of murder of the deceased.

13. According to Shashikalabai Madhukar Sapkale

(P.W.3), on the date of occurrence, she was away from her house

in Yawal Market and from the third person she came to know that

her daughter was burnt and, therefore, she rushed to her house.

From her evidence, it emerges that when she enquired with the

deceased about the occurrence, deceased told that accused No.1

and 4 held her and accused No.2 poured kerosene and set her on

fire. Later on, she has improved that, according to deceased, all

accused had done this work. But this improvement was made

when learned A.P.P. repeated her previous statement. The cat

has come out of the bag, when this witness was subjected to

cross-examination. In her cross-examination, Shashikalabai

(P.W.3) admitted that when she reached to her house, by that

time, Aarti was kept in the bullock cart and many persons were

present near that cart including Raju Gajare and Ranjanabai.

According to this witness, her brother-in-law Ravindra Sapkale

(P.W.2) was not present there because she admitted that, on the

date of incident she did not meet Ravindra Sapkale (P.W.2). On

the other hand, according to Ravindra Sapkale (P.W.2), after the

Cri.Appeal No.132/1999 (( 11 ))

occurrence, he accompanied the deceased up to Rural Hospital,

Yawal. Thus, rat is smelling somewhere. From the further cross-

examination of Shashikalabai (P.W.3), it emerges that she had

talked with deceased Aarti when she was in bullock cart and

thereafter the bullock cart went ahead. According to this witness,

her husband's sister namely Latabai was sitting in the bullock

cart. From her cross-examination, it emerges that, on the date of

incident, this witness was taken by police to Police Station. It is

highly doubtful circumstance, that when she had gone to Police

Station, Yawal, why she did not inform police about disclosure

statement of deceased and why she did not lodge report to Police

Station, Yawal against the accused persons.

14. If the testimony of Ravindra Sapkale (P.W.2) and

Shashikalabai (P.W.3) is compared, then it emerges that,

Shashikalabai (P.W.3) was trying to suppress that she had

knowledge regarding the joint photograph of accused No.2 and

deceased. On the other hand, Ravindra Sapkale (P.W.2) has

admitted in his cross-examination that prior to the incident, there

was discussion with the father and mother of the deceased

regarding the joint photograph of the deceased with accused

No.2. Thus, considering the overall conduct of Shashikalabai

(P.W.3), I find that, even her oral testimony regarding dying

declaration of deceased is totally doubtful as she tried to

suppress material facts and truth from the Court. Thus, on the

Cri.Appeal No.132/1999 (( 12 ))

testimony of such dubious witness conviction of the accused

cannot be based. Learned trial Court has rightly discarded the

evidence of this witness.

15. Madhukar Sapkale (P.W.8) is the father of the

deceased, who claims that, when he visited Rural Hospital, Yawal

on 1/10/1997 and met the deceased, at that time the deceased

named all the accused No.1 to 5 as her assailants. This witness

has also identified the joint photograph of deceased and accused

No.2 i.e. Article "C". However, from his cross-examination, it

emerges that, at the time of occurrence, he was working in Yawal

town at a far distance. So, he naturally could not meet the

deceased immediately after the occurrence. He admits in his

cross-examination that, he alone went to the hospital, but could

not tell how many persons were present in the Ward in which the

deceased was kept. According to his statement, nobody was

inside the hospital where the deceased was kept. He admits that,

when he talked with the deceased for a period of 15 minutes, at

that time, even doctor and police were not present near the

deceased. However, version of this witness is totally doubtful for

the reason that, the incident occurred at about 4.00 p.m. and

after about half an hour the deceased was taken to Rural

Hospital, Yawal. From there, at about 5.30 p.m., the deceased

was shifted to Hospital at Jalgaon as her condition was serious. In

between this period, dying declaration of deceased was recorded

Cri.Appeal No.132/1999 (( 13 ))

by Head Constable More. Considering this short time gap in

between admission of the deceased in Rural Hospital and her

discharge from the Rural Hospital at about 5.30 p.m., as specified

in medical case record of Rural Hospital, Yawal (Exh.32).

Absolutely no time was available with Madhukar (P.W.8) to have a

discussion with the deceased about occurrence of the incident.

So also, though he claims that without meeting the doctor he

sought permission from the police to see the deceased, from the

cross-examination of P.W.2 Ravindra Sapkale and P.W.3

Shashikalabai, it emerges that, in the hospital nobody was

allowed to go near the deceased as it was exclusively Ladies

Ward. Therefore, the version of Madhukar (P.W.8) is highly

improbable that with the permission of police he went to the

Ward where deceased was kept at Rural Hospital, Yawal and had

meeting with the deceased where she disclosed the occurrence

of incident to him in all details. From the cross-examination of

this witness, it further emerges that, though on the date of

incident along with his wife he had been to Police Station, Yawal,

his statement was recorded by police on third day of the incident.

Thus, obviously this witness appears to be a prepared witness.

Considering the total improbable version of this witness, the

learned trial Court rightly discarded his testimony.

16. The fourth dying declaration, recorded by Head

Constable More (P.W.13) in presence of Dr. Tadavi (P.W.7) at

Cri.Appeal No.132/1999 (( 14 ))

Rural Hospital, Yawal is the most important piece of the evidence

relied by prosecution. According to A.P.P., this dying declaration

was recorded when the deceased was in fit condition of mind to

give statement and there was no possibility of tutoring the

deceased as after occurrence, at the earliest she was shifted to

Rural Hospital, Yawal. On the other hand, learned defence

counsel assailed this dying declaration mainly on the ground that

prosecution cannot establish that at the time of recording this

dying declaration the deceased was in proper condition to give

the statement.

17. At the outset, we must observe that, as after the

occurrence of incident immediately neighbours and other nearby

residents gathered on the spot and because within short time

from the occurrence the deceased was shifted to Rural Hospital,

Yawal at about 4.15 p.m., there was short time for tutoring the

deceased. It must be noted that, even father of deceased did not

reach to his house before shifting of the deceased to Rural

Hospital, Yawal. Even, when the mother of the deceased reached

on the spot by that time, deceased was kept outside the house in

bullock cart and immediately she was shifted to the hospital.

Thus, the parents had no time to tutor their daughter. So also, as

observed above, the relations between accused and family of the

deceased were cordial before the occurrence of the incident.

Therefore, tutoring the deceased to implicate the accused in such

Cri.Appeal No.132/1999 (( 15 ))

serious offence is out of question. However, we must examine

whether dying declaration was recorded by Head Constable More

when the deceased was in fit state of mind i.e. in condition to

give statement.

18. Dr. Tadavi (P.W.7) deposed on oath that, on

1/10/1997 the injured was brought to the Rural Hospital, Yawal at

about 4.15 p.m. where he used to work as Medical Officer. From

the evidence of this witness, it emerges that the deceased

sustained 82% burn injuries on her body. However, she was

conscious and well oriented. From the examination-in-chief of Dr.

Tadavi (P.W.7), it emerges that, at about 5.30 p.m. i.e. after

recording of the dying declaration by Head Constable More, the

deceased was shifted to Civil Hospital, Jalgaon as the condition of

that patient was deteriorating. However, from the cross-

examination of this witness, it emerges that, before arrival of

police when he enquired with the deceased as to what had

happened, that time she informed that she was injured due to

keorsene. Thus, it becomes clear that, at the first opportunity,

when the deceased met to independent Government servant,

that time she did not disclose that she was set on fire by the

accused persons.

19. From the statement of Dr. Tadavi (P.W.7), it emerges

that, when he informed Police Station, Yawal and on enquiry this

Cri.Appeal No.132/1999 (( 16 ))

Medical Officer informed police that the deceased was in

condition to give statement. It is to be noted that, before

recording dying declaration of the deceased by police, Dr. Tadavi

did not examine the deceased or he did not ask any preliminary

questions to the deceased to ascertain whether she was in fit

condition of mind to give the statement. Head Constable More

(P.W.13) nowhere deposed that before recording the dying

declaration he asked some introductory questions to ascertain

whether the deceased was in proper condition to give the

statement. Dr. Tadavi merely deposed that the patient was

conscious when her statement was recorded. However, from the

cross-examination of Dr. Tadavi (P.W.7), it emerges that, he could

not record the blood pressure of the deceased because, due to

burns, wrapping belt for measurement of the blood pressure was

not possible. He also admits that, at that time, the pulse rate of

deceased was 120 per minute and in normal condition, the pulse

rate is 70 per minute. From his further cross-examination, it

emerges that, such high pulse rate of 120 per minute is

accompanied by temperature and may be of indication of entry

into delayed shock. This Medical Officer has made it clear that,

due to delayed shock, mental disorder is developed and even

hallucination and delirium are resulted due to delayed shock.

According to such expert witness, such patient may imagine that

her near or dear had attacked her or after her life. Whenever

there is mental disorder, suggestions given to that patient are

Cri.Appeal No.132/1999 (( 17 ))

easily picked up by her. Thus, the extreme high pulse rate of the

deceased creates a possibility that at the time of recording dying

declaration, the deceased might be under delayed shock, and

due to hallucination and delirium or due to mental disorder, she

imagined that she was attacked by the accused persons, who

were her neighbours.

20. Even Dr. Kulkarni, who performed autopsy

examination, deposed before the Court that the cause of death of

the deceased was shock due to toxemia following 80% burns. He

admits that, in burn cases, pulse rate rises if person is under

shock, and if pulse rate crosses 120 to 140, the person becomes

unconscious. He also admits that, if carbon monoxide is present,

and it is inhaled by patient, chances of his becoming unconscious

are more, and in cases of burning, carbon monoxide and carbon-

dioxide are present. This Medical Officer opined that, if a person

does not become unconscious due to inhaling of carbon

monoxide and carbon-dioxide, it may result in hallucination and

delirium. In some cases, it is possible that person may feel that

his near or dear are attacking him and doing harm to him. Dr.

Tadavi (P.W.7) has also made it clear that, in case of kerosene

burns, it produces carbon-dioxide and carbon monoxide and the

percentage of carbon monoxide is high. From his cross-

examination, it becomes clear that, in case of inhalation of large

scale carbon monoxide, the internal organs of the body become

Cri.Appeal No.132/1999 (( 18 ))

congested and it affects central nerves system, resulting into

deterioration of patient. From the examination-in-chief of Dr.

Tadavi, it becomes clear that, at about 5.30 p.m., the deceased

was shifted to Civil Hospital, Jalgaon as her condition was

deteriorating. Thus, in view of such condition of the deceased at

the relevant time of recording dying declaration, probability

cannot be ruled that under delayed shock deceased had given

imaginary statement due to mental disorder or under

hallucination. Even Dr. Tadavi has brought on record this

probability because he has admitted in his cross-examination that

before beginning of recording of statement by police when Police

asked the deceased as to what happened, that time the

deceased replied that she was residing with her parents at above

said address. This indicates the possibility of mental disturbed

condition of deceased at the time of recording her dying

declaration.

21. Thus, from the cross-examination of these two expert

witnesses, it emerges that, possibility of recording of dying

declaration of deceased by police when she was not in fit state of

mind, is most probable. Even Head Constable Ashok More

(P.W.13) nowhere deposed that before recording statement of the

deceased he ascertained and satisfied that deceased was in state

of mind to give the statement. Only the version of this witness

that deceased could talk is not sufficient to hold that she was in

Cri.Appeal No.132/1999 (( 19 ))

fit state of mind. Therefore, taking into consideration all these

probabilities, on the basis of evidence placed on record, the

learned trial Court has rightly held that the prosecution failed to

prove that, at the time of recording these four dying declarations

of deceased, she was in fit condition to give statement. Thus,

this last dying declaration of the deceased is not free from

infirmities to base the conviction of the accused.

22. Accordingly, from the careful analysis of the evidence

on record, we are fully satisfied that before the occurrence of the

incident, the relations in between accused and the family

members of the deceased were cordial and accused had no

motive to kill the deceased by setting her on fire after pouring

kerosene inside her own house. No witness has seen the accused

persons even nearby the spot of occurrence at the relevant time

of the incident. In view of seizure of joint photograph of

deceased and accused (Article "C"), and prior discussion in

respect of this photograph by the family members of deceased

and hasty settlement of her marriage, as admitted by P.W.2

Ravindra Sapkale, probability of suicidal death of deceased due

to her love affair with accused No.2 cannot be ruled out. This

circumstance supports the version of Raju Gajare (P.W.9) that the

deceased told him that she set herself ablaze because, against

her love with accused No.2, her parents had arranged her

marriage with some third person. As observed above, all the

Cri.Appeal No.132/1999 (( 20 ))

dying declarations relied by prosecution are not free from doubt

to base the conviction. Thus, accused persons deserve benefit of

doubt.

23. After going through the judgment passed by the trial

Court we are fully satisfied that the judgment of acquittal is

based on sound reasons, and impossible view is not taken by the

trial Court. In the result, this appeal deserves to be dismissed.

Accordingly, we pass the following order :

ORDER

The Criminal Appeal is dismissed.

          (SUNIL K. KOTWAL)                   (T.V. NALAWADE)
              JUDGE                                 JUDGE




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