The State Of Mah. Thru Pso vs Suresh S/O Narayan Gorle
2017 Latest Caselaw 2708 Bom

 Judgment                                             1                            apeal712.06+1.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.

                               CRI. APPEAL NO.  529 OF 2006
                                               WITH
                               CRI. APPEAL NO.  712 OF 2006

 APPEAL NO. 529/2006.

 Suresh S/o. Narayan Gorle, 
 Aged about 35 years, Occupation: 
 P.C.B. No.342, R/o. Police Head
 Quarter, Amravati. 
                                                                           ....  APPELLANT.

                                       //  VERSUS //

 The State of Maharashtra,
 through Police Station Officer,
 Police Station, Gadge Nagar, Amravati
 Tq. & District : Amravati. 
                                                   .... RESPONDENTS
                                                                     .
  ___________________________________________________________________
 Shri Sumit Joshi, Advocate for appellant.  
 Shri N.R.Patil, A.P.P. for Respondent.  
 ___________________________________________________________________

 WITH

 APPEAL NO. 712/2006.

 The State of Maharashtra,
 through Police Station Officer,
 Police Station, Gadge Nagar, Amravati
 Tq. & District : Amravati. 
                                                                           ....  APPELLANT.
                                       //  VERSUS //
 Suresh S/o. Narayan Gorle, 
 Aged about 35 years, Occupation: 
 P.C.B. No.342, R/o. Police Head
 Quarter, Amravati. 
                                                    .... RESPONDENT
                                                                     .
  ___________________________________________________________________
 Shri N.R.Patil, A.P.P. for Appellant.  
 Shri Sumit Joshi, Advocate for Respondent. 
 ___________________________________________________________________


::: Uploaded on - 16/06/2017                              ::: Downloaded on - 28/08/2017 04:40:53 :::
  Judgment                                          2                            apeal712.06+1.odt




                      CORAM        :  B. P. DHARMADHIKARI AND Z.A.HAQ, JJ.
                      DECIDED ON   :  JUNE 02, 2017.


 JUDGMENT  (PER : Z.A.Haq, J): 

1. Criminal Appeal No. 529 of 2006 is filed by the accused

challenging the judgment passed by the Ad-hoc Additional Sessions

Judge convicting him for the offence punishable under Section 498-A

of the Indian Penal Code and sentencing him to undergo rigorous

imprisonment for 3 years and to pay fine of Rs.500/- and in default of

payment of fine to undergo further rigorous imprisonment for six

months.

2. Criminal Appeal No.712 of 2006 is filed by the State of

Maharashtra challenging the same judgment passed by the Ad-hoc

Additional Sessions Judge insofar as the accused is acquitted of the

offence punishable under Section 302 of the Indian Penal Code.

As these two appeals arise out of the same judgment they

are being disposed of by common judgment.

3. The case of the prosecution is:

Judgment 3 apeal712.06+1.odt

The accused-Suresh Dorle was working in the Police

Department at the time of incident as a Constable. The marriage of

accused Suresh and deceased Neeta was solemnized in 1991, the

couple had a daughter Ankita who was aged about 11 years at the time

of the incident, that the accused Suresh used to trouble his wife Neeta

under the influence of liquor and as there was no change in the

attitude and conduct of the accused for a considerable period, Neeta

left the matrimonial house on 3rd November, 2003 along with Ankita

and started living with her parents, Neeta was reluctant to return to

the matrimonial house as she apprehended ill-treatment and even

threat to her life, that on assurance given by the younger brother of the

accused, the parents of Neeta sent her to the matrimonial house on 11 th

November, 2003. On 14th November, 2003 at about 3.00 p.m. the

accused came to his house in drunken state, picked up quarrel with

Neeta, poured kerosene on her person and set her ablaze. Neeta had

sustained extensive burn injuries and though she was hospitalized and

given treatment she succumbed to the injuries on 17 th November, 2003.

Initially, Dying Declaration of Neeta was recorded by the Executive

Magistrate, but she was under the influence of the accused at that time

and therefore, another dying declaration of Neeta was recorded by

Police Officer on 14th November, 2003.

Judgment 4 apeal712.06+1.odt

4. After receiving the report of the incident, the investigating

machinery conducted investigation and after completing the formalities

chargesheet for the offence punishable under Section 302 of the Indian

Penal Code was filed against the accused before the Chief Judicial

Magistrate, Amravati who in turn made it over to Judicial Magistrate

First Class and as the offence is exclusively triable by the Court of

Session the learned Magistrate committed the case to the Sessions

Court. In the meantime, the accused was arrested on 19 th December,

2003. The Sessions Court framed charge for the offence punishable

under Section 302 of the Indian Penal Code, however, Criminal

Application No. 628 of 2006 was filed before this Court which was

decided on 19th June, 2006 and it was directed that the additional

charge for the offence punishable under Section 498-A of the Indian

Penal Code be framed. The charges were explained to the accused. He

did not accept the guilt and therefore, the trial is conducted. At the

conclusion of the trial the Sessions Court recorded that the prosecution

has failed to prove that Neeta died of homicidal death and that the

accused committed her murder by setting her ablaze. The Sessions

Court recorded that the prosecution has proved that Neeta was given

cruel treatment by the accused, she was harassed physically and

Judgment 5 apeal712.06+1.odt

mentally and that the accused has committed the offence punishable

under Section 498-A of the Indian Penal Code.

5. We have heard the learned advocate for the accused and

the learned A.P.P. for the State of Maharashtra and have also examined

the record with their assistance. There is no eyewitness of the incident.

It is not in dispute that deceased Neeta suffered 100% burn injuries

and the accused sustained 32% burn injuries. The case of the

prosecution is mainly based on the Dying Declarations (Exhs.43, 46

and Exh.52). In the cross-examination of Dr. Trupti Kisan Bobde

(P.W.5) it has come on record that as per practice of the hospital

history of the patient is noted and when history of Neeta was recorded

at the time of her admission vide Exh.65 Neeta had told that she had

made suicidal attempt by pouring kerosene. This witness has stated

that dying declaration Exh.No.52 does not contain endorsement or her

signature showing that the dying declaration (Exh.No.52) was

recorded in her presence. Dr. Dnyaneshwar Uddhavrao Deshmukh

(P.W.6) who had examined Neeta when her dying declaration

(Exh.No.46) was recorded has stated in his examination-in-chief that

he had examined pulse rate and blood pressure of Neeta and had

certified that she was fit to give statement. However, the prosecution

Judgment 6 apeal712.06+1.odt

has not proved before the Court by producing the medical papers of

Neeta to show the reading of pulse rate and blood pressure of Neeta at

the time when her dying declaration vide Exh.46 was recorded. It

being not disputed that Neeta suffered 100% burn injuries, it would

not be safe to accept the evidence of this witness without there being

any endorsement either on the dying declaration (Exh.No.46) showing

reading of blood pressure and pulse rate of Neeta at the relevant time

and in the absence of any medical paper having been produced in that

regards. The Sessions Court, referred to the dying declaration

(Exh.No.43) which is recorded first in point of time and has recorded

that the statements in these dying declarations indicate that Neeta died

of suicidal death and not homicidal death. However, the Sessions

Court has not given any weightage to this dying declaration

(Exh.No.43) as it found that at the time of recording of this dying

declaration Neeta was in the company of the accused and was under

his control.

Other dying declaration (Exh.No.46) is recorded at the

instance of relatives of Neeta. Raosaheb Milke (P.W.No.2) had moved

application (Exh.No.48) to the Commissioner of Police insisting for

recording of dying declaration of Neeta and pursuant to it the dying

Judgment 7 apeal712.06+1.odt

declaration of Neeta vide Exh.46 came to be recorded. The evidence

on record shows that at the time of recording of this dying declaration

(Exh.No.46) Neeta was in the company of her relatives since prior to 5-

6 hours. The evidence on record shows that Neeta had suffered 100%

burn injuries and therefore, she might have been given sedatives.

Neeta was not in a fit condition is clear from the fact that in the dying

declaration (Exh.No.46) her answer to the question regarding her

name, age and place is that her name was "Neeta Ramesh Gorle",

though the name of husband of Neeta is "Suresh".

As recorded earlier, third dying declaration (Exh.No.52) is

also not of any assistance to the prosecution as there is no entry about

recording of this dying declaration on the case papers of Neeta.

6. We find that the learned Ad-hoc Additional Sessions Judge

has properly appreciated the evidence on record on this point and it

cannot be said that there is any illegality or perversity in the

appreciation of the evidence by the Sessions Court.

The challenges raised by the State of Maharashtra in the

appeal filed by it cannot be accepted.

Judgment 8 apeal712.06+1.odt

7. We find that the conviction of the accused for the offence

punishable under Section 498-A of the Indian Penal Code is

unsustainable. The Sessions Court has convicted the accused for the

offence punishable under Section 498-A of the Indian Penal Code

relying on the evidence of Raosaheb Milke (P.W. No.2), Ankita (P.W.

No.3) and statements recorded in dying declaration (Exh.No.43). In

the cross-examination of Raosaheb (P.W. No.2) it has come on record

that Neeta had not lodged any report against her husband-complainant

of any ill-treatment. The incident occurred after about 12 years of the

marriage and the prosecution has not brought on record any evidence

to show that Neeta complained of ill-treatment by the accused during

this period. Ankita (P.W. 3) has admitted in her cross-examination

that after the incident and death of her mother she had been living

with her maternal uncle Punjabrao. Considering the fact that Ankita

was 11 years at the time of the incident and she was living with her

maternal uncle it would not be safe and proper to rely on her evidence

for the purposes of convicting the accused unless her evidence is

corroborated by other evidence. There is no corroboration on the point

of ill-treatment by accused to Neeta. Ankita (P.W. No.3) has made a

general statement in her evidence that the accused used to tell her

Judgment 9 apeal712.06+1.odt

mother to leave house otherwise he would kill her and this he used to

do under the influence of liquor. Except for this general statement

Ankita has not referred to any specific incident of ill-treatment by the

accused to Neeta. While rejecting the claim of the prosecution for

convicting the accused for the offence punishable under Section 302 of

the Indian Penal Code relying on the dying declarations including

dying declaration (Exh.No.43), it is recorded that Neeta having

suffered 100% burn injuries it cannot be said that she was fit to give

statement and in view of this, the reliance placed by the Sessions Court

on the statement of Neeta recorded in dying declaration (Exh.No.43) is

not proper for convicting the accused for the offence punishable under

Section 498-A of the Indian Penal Code. We find that the prosecution

has not been able to establish beyond doubt that the accused is liable

to be convicted for the offence punishable under Section 498-A of the

Indian Penal Code. Therefore, benefit of doubt has to be given to the

accused and the conviction under Section 498-A of the Indian Penal

Code is required to be set aside.

Hence, the following order :

i) Criminal Appeal No. 529 of 2006 is allowed and the

appellant is given benefit of doubt.

            Judgment                                               10                            apeal712.06+1.odt




                    ii)      The judgment delivered by 6 th Ad-hoc Additional Sessions

Judge, Amravati in Sessions Trial No.98/2004 holding him

guilty of offence punishable under Section 498-A of the

Indian Penal Code and sentencing him to undergo

Rigorous Imprisonment for three years and to pay fine of

Rs.5000/- is quashed and set aside.

iii) Seized Muddemal property be dealt with as directed by

the trial Court after appeal period is over.

iv) Criminal Appeal No. 712 of 2006 filed by the State of

Maharashtra is dismissed. Thus, acquittal of appellant for

the offence punishable under Section 302 of the Indian

Penal Code by the Sessions Court is upheld.

                              (Z.A.HAQ, J.)                            (B.P.DHARMADHIKARI, J.)
RRaut..