Bombay High Court

Padmakar S/O Fakiraji Dongre vs State Of Maharashtra on 27 July, 2017

Bench: V.M. Deshpande

Judgment

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

                   CRIMINAL APPEAL NO.234 OF 2003

Padmakar s/o Fakiraji Dongre,
aged about 30 years,
occupation Labourer,
Resident of Umri (Sindhi),
Tahsil Narkhed,
District Nagpur.                                            ..... Appellant.

                                  ::   VERSUS   ::

The State of Maharashtra
(Through P.S.O. Narkhed, District 
Nagpur)                                                          ..... Respondent.

================================================================
           Shri S.S. Jaiswal, Counsel for the appellant.
           Shri R.S. Nayak, Addl.P.P. for the respondent/State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : JULY 27, 2017.

ORAL JUDGMENT

1. Exception, in the present appeal, is to judgment

and order of conviction passed by learned 2 nd Ad hoc

Additional Sessions Judge at Nagpur dated 28.3.2003 in

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Sessions Trial Case No.76 of 1997. Appellant, accused No.2 in

the Trial, stands convicted by learned Additional Sessions

Judge at Nagpur for the offence punishable under Section 306

of the Indian Penal Code, 1860 and is directed to suffer

rigorous imprisonment for 5 years and to pay a fine of

Rs.5,000/- and in default of payment of fine amount to

suffer 1 year rigorous imprisonment.

2. I have heard learned counsel Shri S.S. Jaiswal for

the appellant and learned Additional Public Prosecutor Shri

R.S. Nayak for the respondent/State. With their able

assistance, I have gone through entire record and

proceedings.

3. Appellant Padmakar along with Bandu s/o Laxman

Dongre, husband of deceased Surekha, faced charge for the

offence punishable under Section 306 read with Section 34 of

the Indian Penal Code, 1860. According to the charge,

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appellant Padmakar, in furtherance of common intention

which is shared with acquitted accused No.1 Bandu, on

4.5.1996 abetted the deceased to commit suicide.

After a full- fledged Trial, accused No.1 Bandu was acquitted.

No appeal was filed by the State challenging acquittal of

accused No.1 Bandu.

4. PW9 Police Sub Inspector Baban Pandurang

Palase at Narkhed Police Station, received case papers in

respect of deceased Surekha from hospital. On the basis of

the said, he registered an offence vide Crime No.103 of 1996

punishable under Section 306 of the Indian Penal Code, 1860

against appellant Padmakar. In pursuance to investigation,

in respect of the said offence, he visited spot and drew spot

panchanama Exhibit 24. On 6.5.1996, he seized a chit from

acquitted accused No.1 Bandu under seizure panchanama

Exhibit 43. He has also recorded statements of the

prosecution witnesses. From evidences of these prosecution

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witnesses it is brought on record that offence was also

registered against appellant Padmakar on the basis of report

lodged by deceased Surekha vide Crime No.99 of 1996

punishable under Sections 458 and 354 of the Indian Penal

Code, 1860. This particular offence was registered on

27.4.1996 for the occurrence dated 25.4.1996.

5. To bring home the guilt of appellant Padmakar,

there is no other material available on record against him

except two written dying declarations. Those two dying

declarations are found at Exhibits 30 and 35.

6. Dying declaration Exhibit 30 is recorded by PW6

Police Sub Inspector Yadaorao Sitaram Deshmukh whereas

dying declaration Exhibit 35 is recorded by PW4 Naib

Tahsildar and Executive Magistrate Ramesh Nagorao

Chandekar.

7. As per dying declaration Exhibit 30, prosecution

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claims that deceased Surekha made her statement with PW6

Police Sub Inspector Yadaorao Deshmukh that when her

husband went to their grocery shop and when deceased was

alone in the house prior to 9 days of the incident, appellant

Padmakar outraged her modesty and from that time she used

to think that there was no point in remaining alive and,

therefore, she poured kerosene on herself and set her ablaze.

It is also stated in dying declaration Exhibit 30 that she was

angry upon appellant Padmakar and, therefore, she has set

herself on fire.

8. Dying declaration Exhibit 35 states that appellant

Padmakar came to outrage her modesty 9 days ago and he had

outraged her modesty and since then he is absconding and she

is fearing him she has poured kerosene on herself and set her

ablaze.

9. From aforesaid two dying declarations, it is crystal

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clear that there is a common thread in dying declarations that

prior to 9 days of commission of suicide appellant Padmakar

outraged her modesty and, therefore, she has committed

suicide. Close scrutiny shows that in dying declaration

Exhibit 30 she has stated that after her modesty was outraged

it was her in mind for 9 days that what is the use of she being

a living creature and, therefore, she has committed suicide.

However, in dying declaration Exhibit 35 she

claims that after her modesty was outraged, appellant

Padmakar is absconding and there is a threat to her from him

and, therefore, she committed suicide.

10. Therefore, on aforesaid closure scrutiny, it is clear

that on material aspect both dying declarations are different

from each other. It is already brought on record that in

respect of incident of outraging modesty, the matter was

already reported to the police and the offence was already

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registered against appellant Padmakar as it is brought on

record by first information report Exhibit 53. Further, there

is no evidence available on record to show that during the

period of these 9 days, deceased Surekha was under

depression. This, in my view, is necessary since there is no

proximate live link of incident of outraging modesty and

commission of suicide. No doubt true that different persons

may react differently to the same situation. However, when

prosecution claims that for an act of outraging modesty

deceased was abetted by appellant Padmakar to commit

suicide, in that event it was primary duty of the prosecution

to establish that connecting evidence in that behalf. Failure

on the part of prosecution to establish that connecting

evidence, in my view, benefit has to be extended in favour of

appellant. It is cardinal principle of law that till the guilt is

proved by the prosecution beyond reasonable doubt, the

accused is having presumption in his favour in respect of his

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innocence. The Court should not be in rush to destroy the

said presumption unless cogent evidence is available on

record against the accused person.

11. Dying declaration Exhibit 30 is recorded by PW6

Yadaorao Deshmukh. This prosecution witness when was

serving as Police Sub Inspector on 4.5.1996, received a

telephonic message from hospital that Surekha is admitted in

hospital in a burnt condition. Therefore, he went to the

Government Hospital at Narkhed. There, he gave a letter

Exhibit 39 to the Medical Officer and requested to give his

opinion as to whether Surekha is in a position to give her

statement. As per evidence of PW6 Yadavrao, the doctor gave

opinion that Surekha is in a condition to give statement and,

therefore, he recorded her dying declaration. The original

record shows that below Exhibit 30 there is an endorsement,

"fit to statement."

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12. From the evidence of PW6 Police Sub Inspector

Yadavrao Deshmukh, it is clear that in order to ascertain

physical as well as mental condition of Surekha, he gave

requisition to the doctor to examine her and to give his

certificate. For the reasons best known to the prosecution,

the doctor, who has given his opinion regarding fitness of

Surekha, is not examined by the prosecution. Thus,

endorsement made below Exhibit 30 "fit to give statement"

remained to be proved.

13. It is settled law that it is not necessary that in an

every case a doctor, who examines patient, should be

examined as a witness before the Court. However, before

recording the statement of injured if the scribe himself is

satisfied about the fitness of injured and is of the opinion that

statement can be recorded then in that event scribe can

proceed to record the statement.

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14. The evidence of PW6 Police Sub Inspector

Yadavrao Deshmukh is totally silent nor Exhibit 38, a

contemporaneous document, shows any noting by Yadavrao

that he himself was satisfied about physical as well as mental

condition of Surekha before recording her dying declaration.

The conviction can be secured and maintained on the basis of

dying declaration provided such dying declaration inspires

confidence. It it to be noted that declarant is not available to

the cross-examination. Therefore dying declaration should be

absolutely free from all doubts. From the evidence of PW6

Yadavrao Deshmukh it is clear that he has not ascertained

himself in respect of mental as well as physical condition of

Surekha. Further, the doctor, who gave fitness certificate, is

not examined. With the result, fitness certificate is not duly

proved. Therefore, it would be rather risky to accept dying

declaration Exhibit 30 since nothing is available on record in

respect of fitness both physical and mental of declarant

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Surekha before recording her dying declaration.

15. Another dying declaration is at Exhibit 35. It is

recorded by PW4 Naib Tahsildar and Executive Magistrate

Ramesh Chandekar. This prosecution witness on 4.5.1996

received a letter from Narkhed Police Station whereby it was

requested that he should record a dying declaration of

Surekha. Accordingly, he went to Narkhed Police Station

and, thereafter, he requested the doctor to give statement.

The doctor has given an opinion and, thereafter, he recorded

dying declaration Exhibit 35. Here also, the doctor is not

examined nor the fitness certificate given by the doctor is

proved.

16. However, in case of dying declaration Exhibit 35,

from the witness box PW4 Ramesh Chandekar claims that he

personally verified that injured was in a state of mind to give

her statement. Merely because he claims so in his evidence,

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the Court should not readily accept such evidence especially

when the statement of Surekha was recorded on 4.5.1996, and

evidence of PW4 Ramesh Chandekar was recorded after a

period of 6 years. Dying declaration Exhibit 35 sans any

detail that he made any preliminary enquiry with injured

Surekha to ascertain in respect of her mental state of affair.

It was expected from PW4 Ramesh Chandekar to note his

observations in Exhibit 35 in respect of fitness of Surekha.

Further, other doubtful circumstance is noticed by this Court

in respect of Exhibit 35. Original of Exhibit 35 shows that at

the end there is a left hand thumb impression. PW4 Naib

Tahsildar and Executive Magistrate Ramesh Chandekar has

written as under:

"since right hand is burned, thumb impression of

left hand is there."

Dying declaration Exhibit 30 is recorded by PW6

Police Sub Inspector Yadaorao Deshmukh. Original of said

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document shows that it does not have any thumb impression.

On the contrary, below there is a note "nksU gh gkrkps CkksVs tGkY;kus ."

Thus, one dying declaration, which is recorded on 4.5.1996,

speaks that it is impossible to obtain thumb impression or

signature because of burning of both hands. Whereas,

another dying declaration Exhibit 35, which is also recorded

on 4.5.1996, is having thumb impression of left hand.

17. Further, perusal of column No.17 of postmortem

report Exhibit 58 shows that both upper limbs are charred to

the extent of 18%. If that be so, appearance of left hand thumb

impression on dying declaration Exhibit 35 is a suspicious

circumstance, is the finding by this Court.

18. Appellant Padmakar, who was also prosecuted for

the offences punishable under Sections 458 and 354 of the

Indian Penal Code, 1860, is already acquitted by learned

Magistrate, as it could be seen from the observations made by

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learned Judge of the Court below in the impugned judgment.

However, in my view, said acquittal has no bearing on the

decision of the present appeal. It was for the prosecution to

prove beyond reasonable doubt that deceased Surekha made

dying declarations Exhibits 30 and 35. As seen above, there

are suspicious circumstances which caste a serious doubt

about said two dying declarations. If there are doubts,

naturally benefit has to be extended in favour of accused.

Consequently, I pass the following order:

ORDER

i) The criminal appeal is allowed and disposed of.

ii) Judgment and order of conviction passed by

learned 2nd Ad hoc Additional Sessions Judge at

Nagpur dated 28.3.2003 in Sessions Trial Case

No.76 of 1997 is hereby quashed and set aside.