Bombay High Court
State Of Maharashtra vs Nivrutti Bhalerao And Ors on 31 July, 2017
Bench: T.V. Nalawade
Criminal Appeal No.67/2001
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.67 OF 2001
The State of Maharashtra
through P.S.O., Basmathnagar,
District Parbhani ... APPELLANT
VERSUS
1) Nivrutti s/o Santoba Bhalerao,
Age 35 years, Occu. Service,
2) Sambhaji s/o Manikrao Bhalerao,
Age 30 years, Occu. Agri.
3) Sow. Rahibai w/o Santoba Bhalerao,
Age 55 years, Occu. Household
4) Dhrupatabai w/o Nivrutti Bhalerao,
Age 30 years, Occu. Household
5) Santoba s/o Gyanba Bhalerao,
Age 60 years, Occu. Agri.
All R/o Darephal, Tq. Basmathnagar,
District Hingoli. ... RESPONDENTS
.....
Shri S.D. Ghayal, A.P.P. for appellant/ State
Shri R.N. Chavan, Advocate holding for
Shri Vijay Sharma, Advocate for respondents
.....
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Criminal Appeal No.67/2001
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CORAM: T.V. NALAWADE AND
SUNIL K. KOTWAL, JJ.
DATE : 31st July, 2017.
JUDGMENT (PER SUNIL K. KOTWAL, J.) :
1. This appeal is directed by the State against the
judgment and order of acquittal of accused No.1 to 5, delivered
by Additional Sessions Judge, Parbhani, in Sessions Trial
No.180/1999. Respondents are original accused No.1 to 5
respectively.
2. Facts leading to institution of this appeal are that,
accused were prosecuted for the offences punishable under
Sections 302, 498-A read with Section 34 of the Indian Penal
Code (I.P.C. for short). Prosecution case in brief is that,
deceased Sojarbai was the wife of accused No.1. Accused No.4
is second wife while accused No.3 and 5 are parents of accused
No.1. Accused No.2 is cousin of accused No.4. The deceased
Sojarbai married to accused No.1 prior to 17 years, however, she
did not conceive child. Therefore, before 7 to 8 years, accused
No.1 performed second marriage with accused No.4.
3. It is alleged that, all accused persons ill-treated the
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deceased Sojarbai and as she did not conceive child. Parents of
the accused No.1 started residing in separate house before 7 to 8
years at village Daraphal, Taluka Basmathnagar, District Hingoli.
At the relevant time of occurrence of the incident, at the eve of
Nagpanchami festival of 1999, deceased had gone to her
maternal home. On 26/8/1999, at about 4.30 p.m., she came
back to the house of accused No.1 along with Vilas Chavan
(P.W.3). However, when they reached to the house of accused
No.1, they noticed that the house was locked. They waited up to
6.00 p.m. till arrival of accused No.1, 2 and 4. Thereafter quarrel
started between deceased and accused No.1, 2 and 4.
Ultimately, at about 9.00 p.m., accused No. 1, 2 and 4 took the
deceased to the house of accused No.3 and 5 under the pretext
of of obtaining key of the house. Quarrel in between them
continued even in front of house of accused No.3 and 5. After
some time, accused No.3 and 5 asked the accused No.1 to set
the deceased ablaze. Thereon, accused No.1 fetched plastic can
containing kerosene from the house of accused No.5. Accused
No.2 and 4 caught hold of deceased and accused No.1 poured
kerosene on the body of deceased and set her ablaze. Deceased
started shouting and, therefore, Vilas Chavan (P.W.3) who was
witnessing the occurrence, fled away towards his village Adgaon.
Hearing shouts of the deceased, nearby residents gathered on
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the spot and doused the fire. The deceased was immediately
rushed to Civil Hospital, Parbhani. On M.L.C. Intimation (Exh.18)
given by Medical Officer, Civil Hospital, Parbhani, Police Head
Constable Pathan (P.W.1) from Police Station, Nanalpeth,
Parbhani paid visit to the deceased on 26/8/1999 at midnight,
and after verifying the fit condition of the deceased from the
concerned Medical Officer, he recorded first dying declaration
(Exh.19) on 27/8/1999 at 00.30 a.m. This dying declaration was
treated as F.I.R. and Crime No.00/1999 came to be registered
under Sections 307, 498-A read with Section 34 of the I.P.C. at
Police Station, Nanalpeth, Parbhani. Second dying declaration
(Exh.41) of the deceased was recorded by Naib Tahsildar Shri
B.S. Makrand (P.W.6) on 27/8/1999 at 00.50 Hrs. On the same
day, the parents and relatives of the deceased were informed
and, therefore, her brother P.T. Renge (P.W. 2) rushed to Civil
Hospital, Parbhani along with other relatives. In their presence,
again deceased disclosed the entire occurrence. The F.I.R.
(Exh.19) was transferred to Police Station, Hatta, within whose
jurisdiction the incident had taken place. On receiving that
report, Crime No.99/1999 came to be registered against the
accused persons for the above mentioned offences. Deceased
succumbed to her injuries on 27/8/1999 at about 6.00 a.m.
Inquest panchanama was drawn by Head Constable Pathan when
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the dead body was referred to Medical Officer, Civil Hospital,
Parbhani for post mortem examination. Dr. B.R. Jadhav (P.W.5)
performed autopsy examination and by submitting the post
mortem report (Exh.34), opined that, cause of death of the
deceased was cardio respiratory failure due to shock and
secondary to 100% burns. During the course of investigation,
P.S.I. P.P. Pardeshi (P.W.8) had drawn spot panchanama
(Exh.46) of the spot of incident. He seized bangle pieces and
burnt pieces of sari. Offence punishable under Section 302 came
to be added in Crime No.99/1999. Accused were arrested on
28/8/1999 and their police custody was obtained till 31/8/1999.
On 31/8/1999, in police custody, accused No.1 gave disclosure
statement and in consequence whereof, plastic can of kerosene
and match box came to be seized from his house. The banian,
full pant and underwear which were on the person of accused
No.1, came to be seized under panchanama dated 28/8/1999.
These articles were referred to Chemical Analyser for chemical
examination. After completion of the investigation, charge sheet
was filed against all accused persons in the Court of Judicial
Magistrate, First Class, Basmathnagar.
4. Offence punishable under Section 302 of the I.P.C.
being exclusively triable by Court of Sessions, this case was
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committed to Sessions Court, Parbhani. The then Additional
Sessions Judge framed charge (Exh.4) against the accused
persons for the offence punishable under Sections 302, 498-A
read with Section 34 of the Indian Penal Code. Accused pleaded
not guilty and claimed trial. The defence of the accused was of
total denial and false implication.
5. Prosecution examined total 8 witnesses. After
considering the direct and circumstantial evidence placed on
record, the learned trial Court pleased to acquit the accused
persons. Against that judgment and order of acquittal, this
appeal is filed by the State.
6. Learned A.P.P. for the State submitted that, though
prosecution has proved two written dying declarations and one
oral dying declaration of the deceased, the learned trial Court
erroneously acquitted the accused persons. According to A.P.P.,
the prosecution has examined Medical Officer (P.W.7) and proved
that, at the time of recording of dying declaration, the deceased
was in fit state of mind to give statement. According to A.P.P.,
Vilas Chavan (P.W.3), who is important eye witness, is
erroneously disbelieved by the trial Court without assigning
proper reasons.
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7. Learned Advocate for the accused supported the
judgment of acquittal on various grounds which will be
considered in the further part of the judgment.
8. In the case at hand, by examining Head Constable
Pathan (P.W.1), Naib Tahsildar B.S. Makrand (P.W.6),
prosecution has proved two written dying declarations (Exh.19
and 41) of the deceased. To prove that at the time of recording
of these both dying declarations the deceased was in fit state of
mind to give statement, prosecution has placed reliance on
testimony of Dr. Patel (P.W.7). In addition to this, prosecution
has placed reliance on direct evidence of important eye witness
Vilas Chavan (P.W.3) and other circumstantial evidence such as
recovery of kerosene can and match box from the possession of
accused No.1.
9. Initially, we propose to consider the evidence placed
on record by prosecution in the form of three dying declarations.
(1) Recorded by Head Constable Pathan (P.W.1) at Exh.19.
(2) Recorded by Executive Magistrate Shri B.S. Makrand
(P.W.6) at Exh.41.
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(3) Oral dying declaration made before Prabhakar Renge
(P.W.2), who is brother of the deceased.
10. Head Constable Pathan (P.W.1) deposes that, after
receipt of M.L.C. intimation (Exh.18) on 26/8/1999, he
proceeded to Government Hospital, Parbhani and initially,
approached the duty medical officer and informed him about his
intention to record statement of the deceased. From the
testimony of Pathan (P.W.1), it emerges that, the concerned
medical officer examined the deceased and opined that she was
in fit condition to give statement and accordingly, this witness
recorded dying declaration (Exh.19) on 27/8/1999 at 00.30 Hrs.
This witness has reproduced the statement of deceased before
him. According to this witness, after completing the recording of
dying declaration, he obtained thumb impression of deceased on
the said dying declaration and countersigned it and thereafter
again medical officer examined the deceased and endorsed at the
bottom of the statement that the deceased was conscious. It
also emerges that, the dying declaration was scribed by the
writer and Pathan (P.W.1). It reveals that, learned trial Court
mainly placed reliance on "Paparambaka Rosamma & ors. Vs.
State of Andhra Pradesh", reported in (1999 Cri.L.J. 4321),
wherein the larger Bench of Apex Court ruled that, in absence of
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medical certification that the injured was in fit state of mind at
the time of making declaration, it would be risky to accept the
subjective satisfaction of a Magistrate to opine that the injured
was in a fit state of mind at the time of making declaration.
11. However, it must be mentioned that, Constitutional
Bench of Apex Court, in Laxman V.s State of Maharashtra
reported in (AIR 2002 SC 2973), over ruled Paparambaka Vs.
State (cited supra) and ruled that, the ultimate test is whether
the dying declaration can be held to be a truthful one and
voluntarily given. Before recording the declaration, the officer
concerned must find that the declarant was in fit condition to
make the statement in question. Therefore, the finding of the
learned trial Court that in absence of proper certification by
concerned medical officer on the dying declaration (Exh.19) it is
invalid, is not the correct position of law. However, after going
through the reasoning given by learned trial Court while rejecting
the three dying declarations, it becomes clear that, apart from
certification of Medical Officer Dr. Patel (P.W.7), the learned trial
Court has also considered that this medical officer was not the
person who was providing treatment to the deceased and who
was not aware what was the line of treatment and what
medicines were administered to this patient. This witness was
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not aware whether any sedative was given to the patient.
Considering these all aspects, learned trial Court rightly held
that, in absence of evidence of Dr. Janapurkar, who treated the
deceased, only on the basis of testimony of Dr. Patel (P.W.7),
conclusion cannot be drawn that the deceased was in fit
statement of mind to give dying declaration. Trial Court also
considered that, prosecution has suppressed the case papers of
the hospital wherein history of the injury is noted and even note
is recorded regarding examination of the patient at the time of
recording dying declaration. Therefore, considering the
possibility of giving sedative to the deceased at the time of her
treatment, the trial Court rightly held that the evidence of Dr.
Patel (P.W.7) falls short to establish that deceased was conscious
or in condition to give statement.
12. Trial Court has also noted in para 32 of the judgment
that the dying declaration was not recorded by Head Constable
Pathan (P.W.1) in the very words of the deceased. After going
through the dying declaration (Exh.19), it emerges that, it has
been recorded almost in the form of First Information Report.
Even though Pathan (P.W.1) claims that he recorded the
statement of deceased on the basis of questions put up to the
deceased, those questions are not mentioned in the dying
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declaration. Therefore, possibility cannot be ruled out that the
dying declaration was obtained by putting certain leading
questions to the deceased. Even the scribe of the dying
declaration is not examined by prosecution and nothing is on
record which shows that dying declaration was read over to the
deceased and after informing its contents to be correct by
deceased, her thumb impression was obtained over it. Thus, the
finding of the trial Court is correct that it was the duty of the
prosecution to specifically bring on record that deceased heard
the statement recorded by Head Constable and she admitted it to
be true and correct. Reference can be made of the case Mohan
Lal Vs. Ram Narayan reported in (AIR 1993 SC 2457),
wherein the prosecution had not examined the scribe of the
dying declaration without assigning any reason. The accused
consequently had not got opportunity to cross-examine the
scribe. Considering these circumstances, it was held that the
dying declaration was not reliable.
13. Trial Court also noted certain improvements made by
Head Constable Pathan (P.W.1) in his examination-in-chief,
which is not included in the dying declaration (Exh.19). It was
also pointed out that, Pathan (P.W.1) has tried to insert his own
version through the mouth of deceased. It is to be noted that,
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from the evidence of Dr. Jadhav (P.W.5), who performed autopsy
examination of the deceased, he deposes that both hands of the
deceased were found completely burnt including fingers and
thumbs and it was not possible to obtain thumb impression of a
person who sustained third degree burn injuries as found on the
body of deceased. Despite this condition of deceased, Head
Constable Pathan (P.W.1) says that, he obtained thumb
impression of the deceased on her dying declaration. This
statement of Head Constable Pathan (P.W.1) appears to be
totally unreliable. Thus, considering overall conduct of Head
Constable Pathan (P.W.1) and above discussed circumstances,
we have no hesitation to hold that learned trial Court rightly
disbelieved the testimony of Head Constable Pathan (P.W.1)
and consequently, disbelieve the dying declaration (Exh.19).
14. To prove the second dying declaration of the
deceased (Exh.41) recorded by Executive Magistrate Shri B.S.
Makrand (P.W.6), this witness stepped in witness box and
deposed that, after verifying the fit condition of deceased
through concerned Medical Officer, he recorded statement of
the deceased as per her narration. This dying declaration was
also rightly discarded by learned trial Court on account of
doubtful thumb impression of deceased on the dying
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declaration when her both hands were totally burnt and not in
a condition to give the impression. So also, as observed
above, in absence of evidence of Dr. Janapurkar, who gave
medical treatment to the deceased, possibility of giving
sedative to the deceased cannot be ruled out. Therefore, the
view taken by the learned trial Court while rejecting the
second dying declaration of the deceased cannot be termed as
impossible view.
15. Shri Prabhakar Renge (P.W.2) stepped in witness
box and deposed that, on 27/8/1999 at about 2.00 a.m.,
along with other relatives, he went to the Government
Hospital, Parbhani and enquired with the deceased. From his
testimony, it emerges that, in his presence also the deceased
disclosed all the details of occurrence i.e. setting her ablaze
after pouring kerosene. However, after going through cross-
examination of this witness, it emerges that, initially he tried
to suppress his relations with one Samindrabai, who resides at
village Darephal. Later on, he was compelled to admit his
relationship with her. This indicates that, he is not a truthful
witness. So also, it cannot be ignored that, Prabhakar
(P.W.2) has admitted in his cross-examination that the
condition of deceased went on becoming more critical. This
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witness claims that, he enquired with the deceased at 2.00
o'clock in the hospital. However, he nowhere says that he
obtained prior permission of the Medical Officer for
questioning the deceased. Even this witness does not speak
that before questioning the deceased he was satisfied that the
deceased was in condition to give the correct disclosure. In
the circumstances, on the basis of testimony of such
interested witness, who did not try to contact the police even
after knowledge regarding the alleged illegal acts of the
accused, cannot be relied upon. Learned trial Court has
minutely considered overall conduct of this witness and rightly
rejected the testimony of Prabhakar Renge (P.W.2).
16. Now the direct evidence of Vilas (P.W.3), if
considered and scrutinized carefully, it emerges that, though
he claims that he was present on the spot of incident at the
time of occurrence, and though he claims that in his presence
the accused persons set ablaze the deceased, the overall
conduct of this witness is absolutely abnormal. From the
cross-examination of Vilas (P.W.3), it emerges that, after
watching the occurrence of the incident, he bolted away from
the spot and went to his village Adgaon, which is at a distance
of 5 to 6 Kms. from Darephal. Vilas (P.W.3) has admitted in
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his cross-examination that, even after occurrence of the
incident, he was present at village Darephal till 9.00 to 9.30
p.m. In natural course, after witnessing such horrified
occurrence, P.W.3 would have immediately left the village
Darephal so that none of the accused could trace out him to
finish the sole eye witness. From his cross-examination, it
also emerges that, even after going to Adgaon, he did not
narrate the incident to anybody at Adgaon. In natural course,
at least in his own house he would have definitely narrated
the incident to his family members. From his cross-
examination, it also emerges that, Police Station Hatta is
hardly at a distance of 5 to 6 Kms. from village Adgaon.
However, this witness did not inform the Police Station
regarding commission of murder by accused in presence of
this witness. Climax is that, Vilas (P.W.3) has flatly admitted
that he did not feel it necessary to go to his house at Adgaon
to inform the incident or to go to Police Station to give the
information about the incident. Another important unnatural
conduct to be noted is that, though this witness claims that
after watching the incident he ran away from the spot due to
fear and apprehension of life. The cat has come out of the
bag when this witness was subjected to further searching
cross-examination. Vilas (P.W.3) has admitted in cross-
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examination that he had gone to Darephal i.e. at the village
accused to attend funeral of deceased. Had this witness really
witnessed the occurrence, definitely on account of
apprehension of life at the hands of accused, he would have
not dared to attend the funeral of the deceased at least at
village Darephal. Another important aspect is that, from the
cross-examination of this witness, it emerges that, though in
his presence the entire incident occurred, neither he tried to
intervene nor he tried to get the help of any neighbour or
villager. This absolutely unnatural conduct of this witness
certainly creates doubt regarding testimony of this witness
that he is one of the eye witness of the occurrence.
Considering the overall circumstances, learned trial Court also
rightly disbelieved the testimony of Vilas (P.W.3). No
neighbour who extinguished the fire is examined by
prosecution. Thus, independent witnesses are suppressed by
prosecution, who could have unfolded true story.
17. Regarding the circumstantial evidence placed on
record by prosecution in the form of recovery of kerosene can
(Article 9) and match box (Article 10) as per information given
by accused No.1 in police custody, it is suffice to say that,
recovery of such common articles from the house of accused
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is not at all abnormal circumstance. From the cross-
examination of investigating officer P.S.I. Pardeshi (P.W.8), it
emerges that, it was transpired in his investigation that
deceased and the accused No.1 were taken in jeep to the Civil
Hospital, Parbhani after the incident. The investigating officer
also admitted that, accused No.1 was admitted in the Civil
Hospital and when he was arrested, the investigating officer
found that the right hand of the accused was burnt in the
same incident. However, prosecution has conveniently
suppressed the injuries on the body of accused No.1 sustained
by him at the time of occurrence. Thus, possibility cannot be
ruled out that at the time of occurrence, accused No.1 might
have tried to extinguish the fire and that time sustained
burns. So also, possibility cannot be ruled that while taking
the injured to Civil Hospital, Parbhani, the clothes of the
accused would have received some stains of kerosene.
Therefore, only on the basis of detection of kerosene residues
from the clothes of the accused No.1, inference cannot be
drawn that he committed the murder of deceased. No other
circumstantial evidence is placed on record by prosecution to
connect the accused persons with the alleged crime.
18. Thus, after careful scrutiny of the evidence of
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prosecution witnesses on record, we are fully satisfied that, no
clinching evidence has been placed on record to prove that
death of the deceased was homicidal death and with requisite
intention of knowledge, accused caused the homicidal death of
the deceased. So also, when dying declarations of deceased
are disbelieved, there remains no iota of evidence to establish
the charge even under Section 498-A of the I.P.C.
19. Thus, the view taken by trial Court while acquitting
the accused of the offences punishable under Sections 302,
498-A read with Section 34 of the Indian Penal Code is
probable view and the acquittal recorded by trial Court need
not be interfered. It follows that, this appeal fails and
deserves to be dismissed. Hence we pass the following
order :
ORDER
(i) Criminal Appeal is dismissed.
(ii) Under Section 437-A of the Code of Criminal Procedure,
respondents/ accused shall execute before the trial Court bail
bonds with sureties for the amount of Rs.10,000/- (Rupees ten
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thousand) each to appear before the Supreme Court as and when
notices are issued to them in respect of any proceedings filed
against this judgment and the said bail bonds shall remain in
force for a period of six months from today.
(SUNIL K. KOTWAL) (T.V. NALAWADE)
JUDGE JUDGE
fmp/
