Balasaheb Sahebrao Kolte vs The State Of Maharashtra
2017 Latest Caselaw 8540 Bom

                                                                  Cri.Appeal 225/2002
                                       1

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

                        CRIMINAL APPEAL NO. 225 OF 2002

Balasaheb s/o Sahebrao Kolte,
Age 31 years, Occu. Labourer,
R/o Manikdaundi road,
Shivshakti Nagar, Pathardi,
Taluka Pathardi, Dist.Ahmednagar                                    ..Appellant

        Versus

The State of Maharashtra                                            ..Respondent

-WITH-

CRIMINAL APPEAL NO. 228 OF 2002

Sumanbai w/o Sahebrao Kolte Age 46 years, Occu. Household & Labourer R/o Manikdaundi road, Shivshakti Nagar, Pathardi, Taluka Pathardi, Dist.Ahmednagar ..Appellant

Versus

The State of Maharashtra ..Respondent

Mr D.R. Jaybhar, Advocate for appellants Mr S.J. Salgare, A.P.P. for respondent-State

CORAM : T.V. NALAWADE AND A.M. DHAVALE, JJ

DATE : 8th November 2017

ORAL JUDGMENT (Per A.M. Dhavale, J.)

1. In Sessions Case No.41/2001, the learned Additional Sessions

Judge, Ahmednagar by judgment dated 30.3.2002 held accused no.1

Balasaheb guilty under Section 302 of Indian Penal Code and

sentenced him to imprisonment for life and to pay fine of Rs.500/-, in

default rigorous imprisonment for three months, but acquitted

accused no.2 - Sumanbai of offence punishable under Section 302 of

Cri.Appeal 225/2002

Indian Penal Code. He held accused nos.1 and 2 guilty for the offence

punishable under Section 498-A of Indian Penal Code and sentenced

them to rigorous imprisonment for two years and to pay fine of

Rs.500/-, in default rigorous imprisonment for two months each. The

aggrieved accused no.1 Balasaheb has preferred Criminal Appeal

No.225/2002 and accused no.2 Sumanbai has preferred Criminal

Appeal No.228/2002.

2. Accused no.1 Balasaheb, husband of deceased Swati and

accused no.2 - Sumanbai, mother-in-law have been prosecuted on the

basis of dying declaration of Swati recorded by P.W.5 - Ramchandra

Dimale, Special Judicial Magistrate on 18.1.2001 at 5.45 p.m. It was

registered as F.I.R. at C.R. No.10/2001 under Sections 498-A, 302 read

with Sec.34 of Indian Penal Code at Pathardi police station. The dying

declaration shows that the Special Judicial Magistrate had taken

opinion of Medical Officer on duty that the patient was conscious and

fit to give statement. The dying declaration shows that Swati had

sustained 65% burns and was admitted in the hospital by her

husband. Her marriage was solemnised two years back (it must be

three years). She had a son aged two years. Her husband was

serving in a hotel, but since Deewali of year 2000, he was not doing

any work, while she was working under a mason. She used to accost

him why he was not doing any work and he used to abuse her. On

18.1.2000, when she asked him as to why he is not going on work, he

poured kerosene from a stove on her person and attempted to set her

on fire, but his first attempt failed and the match stick was

extinguished by Swati, but he lit another match stick and set her on

Cri.Appeal 225/2002

fire. Her saree and blouse caught fire and clinged to her body. Her

mother-in-law was standing there. She instigated accused no.1 -

Balasaheb stating that 'let her die as she had given lot of trouble'.

Swati raised shouts, Thereafter she came out of the house and poured

water on herself. Her husband and mother-in-law did not help her to

extinguish the fire. But, they admitted her in the hospital. Then the

neighbours gathered there. Both husband and mother-in-law of Swati

left the hospital without intimation. She was studied upto 7th

Standard and she held her husband and mother-in-law responsible for

the incident. After recording dying declaration, P.W.5 - Special

Executive Magistrate Dimale obtained her thumb impression and

again obtained certificate about her consciousness from the Medical

Officer. This F.I.R. (Exh.40) recorded in Civil Hospital, Ahmednagar

was sent to Pathardi and crime was registered at Police Station,

Pathardi at 11.10 p.m.

3. The investigation revealed that deceased Swati was married to

accused no.1 three and half years before the incident. After initial

good treatment, she was subjected by the accused to dowry demand

for construction of house and accused no.1 used to abuse and assault

her. Whenever she was visiting her maternal house, she was

disclosing these facts to her maternal relatives. During investigation,

spot panchnama was drawn and statements of material witnesses

were recorded. The deceased succumbed to the burn injuries on

2.2.2001, i.e. after fourteen days. Then, inquest and post mortem

were conducted. Accused no.2 had brought orders of anticipatory

bail. The accused were arrested and after completion of investigation,

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charge-sheet was submitted in the Court of Judicial Magistrate, First

Class, Pathardi.

4. In due course, the case was committed to the Court of Sessions.

The learned Additional Sessions Judge, Ahmednagar framed charge at

Exh.8. Both the accused pleaded not guilty. The prosecution

examined nine witnesses. Defence of the accused is of denial of

allegations of ill-treatment and commission of murder.

5. It is the case of the accused that deceased Swati sustained

burns due to accidental flames from the stove. The learned Additional

Sessions Judge, Ahmednagar accepted the prosecution case

substantially and convicted the accused.

6. Learned Advocate Mr D.R. Jaybhar for the appellants argued

that there was no dowry demand or ill-treatment by the accused to

the deceased for three and half years. The deceased had given birth

to a son. Accused were already having their own house. Therefore,

there was no question of demanding dowry for construction of house.

The accused themselves have taken the deceased to the hospital for

treatment. The circumstances on record disclose that the dying

declaration is not true. The alleged dying declaration was not read

over to the deceased and she had not admitted it to be correct before

her thumb impression was allegedly taken. Even, dying declaration

does not contain any statement to that effect. The cause shown for

committing murder is inherently improbable and insufficient. The

deceased was studied upto 7th Standard. Her father stated that she

Cri.Appeal 225/2002

had written letters to him, but the same were not produced. The

hands of the deceased were totally burnt. Hence, it is not known how

her thumb impression was obtained on dying declaration.

7. Learned Counsel for the appellant relied on following rulings :

(i) State of Rajasthan v. Ashfaq Ahmed AIR 2009 SC 2307

It is a case where the patient was critical and, therefore, his

injuries could not be examined. The dying declaration recorded by

Investigating Officer was discarded. This ruling is not applicable to

the facts of the present case.

(ii) Pankaj v. State of Rajasthan, AIR 2016 SC 4150

In this case, the deceased was brought unconscious to the

hospital. There was no certificate of duty doctor that she regained

consciousness in front of S.D.M. Hence, dying declaration was held to

be not reliable. This ruling is also not applicable to the facts of

present case.

(iii) State of Maharashtra v.Hemant Chauriwal AIR 2016 SC 287

In this case, the deceased bride had sustained 88% burns and

her dying declaration was recorded by Naib Tahsildar in Civil Hospital,

Yavatmal, on the day of incident. She died of septicemia after two

days. The dying declaration was registered as F.I.R. on the next day

and there was no evidence in whose possession the crucial evidence

was during the intermediate period. In paragraph 8, it is observed :

Cri.Appeal 225/2002

"8. It is a settled law that dying declaration can be the sole basis of conviction and it does not require any corroboration. But it is equally true that dying declaration goes against the cardinal principle of law that 'evidence must be direct'. Thus, dying declaration must be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. In the present case, dying declaration was recorded by the Naib Tahsildar after she was informed vide a Memo by the police authorities. However, it is on record that the said police official who delivered the Memo was never produced or examined before the Court. The Naib Tahsildar deposed before the Court that fitness certificate as to mental capacity of the deceased was taken from the doctor. However, the certificate nowhere states that the deceased was in a fit and stable mental condition at the time of making the statement. The dying declaration was recorded on 20.06.2004 i.e. the same day of incident but the same was recorded at 5.45 p.m. and it is undisputed that the incident occurred in the morning at 8.00 a.m. The Naib Tahsildar specifically deposed that she ordered the blood relation of the deceased to be removed from the ward. The dying declaration was signed by the Naib Tahsildar P.W.1, the doctor PW5 and thumb impression of the deceased was taken at about 5.55 p.m. The dying declaration then formed the basis of the FIR on 21.06.2004 at Ghatanji Police Station, however, there is no explanation as to in whose custody the said crucial piece of evidence was placed for one full day. The prosecution did not give any evidence to explain the said delay."

Cri.Appeal 225/2002

(iv) State of Gujarat v. Jayrajbhai Varu AIR 2016 SC 3218

The law regarding appreciation of dying declaration is laid down

in paragraphs 10 and 11 as follows :

"10. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. In case of more than one dying declaration, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocent dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the courts below are fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests.

11. The court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned."

8. Per contra, learned A.P.P. Mr S.J. Salgare submitted that the

dying declaration is recorded by Special Judicial Magistrate who is

independent person. He has followed the procedure, he has obtained

Cri.Appeal 225/2002

the necessary opinion of the Medical Officer about fitness of the

patient. He has properly deposed what was told to him by deceased

Swati. There is nothing suspicious in the dying declaration. Hence,

the conviction of accused no.1 based on dying declaration should not

be disturbed. He fairly conceded that the dying declaration is silent

on the ill-treatment in past. Hence, there is no reliable material to

convict accused nos.1 and 2 under Section 498-A read with Sec.34 of

Indian Penal Code.

9. The prosecution has examined following witnesses and

produced following documents :

(i) Police witnesses : P.W.4 Head Constable Shivaji Sathe, attached

to Civil Hospital, who issued request letter Exh.29 for recording

dying declaration.

(ii) Dying Declaration (Exh.34) recorded by P.W.5 - Special

Executive Magistrate Ramchandra Dimale and P.W. 6 Dr. Nagne

Oral dying declaration before P.W.1 Bhanudas and and P.W.2

Ishwar.

(iii) Medical Evidence :

(Inquest panchnama and post mortem notes) (Exhs.18 & 19)

(iv) The evidence of past conduct :

P.W.1 Bhanudas father of the deceased

P.W.2 Ishwar, brother of the deceased

Cri.Appeal 225/2002

P.W.7 Head Constable Biraji Waghmode, who registered the

F.I.R. at C.R.No.10/2001 at Police Station, Pathardi.

P.W.8 P.S.I. Ghanshyam Palwade who conducted initial

investigation. He drew spot panchnama (Exh.26) in presence of P.W.3

Kishore who has also supported the prosecution. P.W.8 P.S.I. Palwade

seized stove, match box, burnt pieces of clothes from the spot and

recorded statements of witnesses. He arrested accused no.1

Balasaheb and further investigation was handed over by him to P.W.9

P.I. Randive. He had formally arrested accused no.2 who had

obtained orders of anticipatory bail. After death of Swati, he

converted the crime under Section 307 of Indian Penal Code to

Section 302 of Indian Penal Code. He collected material documents

and submitted charge-sheet.

10. The accused have admitted inquest panchnama (Exh.18) and

post mortem notes (Exh.19). Those show that deceased Swati had

sustained 65% burns on 18.1.2001 in the morning at her matrimonial

house and died on 2.2.2001 i.e. after fourteen days due to burns.

Here the crucial question is whether deceased Swati sustained burns

by accident or she committed suicide or this was a case of suicidal

death. This can be determined only on the basis of ocular evidence.

The medical evidence cannot throw light on this. Hence, we proceed

to consider the ocular evidence.

11. As per the evidence of P.W.1 - Bhanudas and P.W.2 Ishwar,

deceased Swati daughter of P.W.1 Bhanudas and sister of P.W.2

Ishwar residents of Daule Wadgaon married to accused no.1 who is

Cri.Appeal 225/2002

resident of Pathardi about 3 ½ years before the incident. Thereafter

she started co-habiting with him and gave birth to a male child. At

the time of marriage, there was no complaint of any dowry demand.

During the period of co-habitation also, no complaint was made to the

police about any dowry demand or ill-treatment. P.W.1 Bhanudas and

P.W.2 Ishwar deposed that accused persons were asking Swati to

bring money from her parents for constructing house and accused

used to abuse and assault Swati. Whenever Swati was visiting her

maternal house or whenever P.W.1 Bhanudas, her father used to

come to her matrimonial house, she use d to tell him about the

incident. P.W.2 Ishwar is brother of Swati who has also deposed about

similar behaviour of the accused. However, we find that their

evidence is not at all trustworthy and reliable at this point. P.W.1

Bhanudas stated that the ill-treatment started after the first Deewali,

whereas P.W.2 Ishwar stated that the ill-treatment started after last

Deewali. P.W.1 Bhanudas has admitted that accused are having their

own residential house and there was no question of re-construction of

house. P.W.1 Bhanudas admitted that his financial condition was poor

and the accused were aware of it. He admitted that these statements

are made by him for the first time in the Court. The allegations

regarding dowry demand are as vague as it could be. No time and

date are stated. Similarly, about the allegation of abusing and

assault. P.W.1 had stated that Swati was studied upto 7th Standard

and she had written letters to her family members, but those letters

were not seized and produced in the Court to show allegations against

her in-laws. Pertinently, P.W.1 Bhanudas and P.W.2 Ishwar have not

stated anywhere that Swati was required to leave her matrimonial

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house due to ill-treatment and reside at her maternal house. There is

no allegation that there were efforts of mediation and efforts to

persuade the accused not to ill-treat Swati. The most material fact is

that in the alleged dying declaration, there is not even whisper about

dowry demand and assault on account of not meeting the dowry

demand. Hence, the evidence of P.W.1 Bhanudas and P.W.2 Ishwar

with regard to ill-treatment to Swati will have to be discarded.

12. With regard to dying declaration, P.W.4 Head Constable, Shivaji

Sathe was working at Civil Hospital, Ahmednagar. He stated that on

18.1.2001, at about 11.00 a.m., accused no.1 Balasaheb brought his

wife Swati who had sustained burn injuries. Then Medical Officer

P.W.6 Dr. Nagne gave him intimation to the Police Station, Tofkhana.

Hence, as per directions of his superiors, P.W.4 Shivaji Sathe wrote

letter (Exh.29) to P.W.5 Special Judicial Magistrate, Dimale. Thereafter,

P.W.5 Dimale deposed that he received the letter at about 5 p.m. and

he reached the hospital at 5.35 p.m. He made enquiry with P.W.6 Dr.

Nagne, who after examination of the patient gave certificate that she

was conscious and in a position to give statement. He drove out all

the relatives of Swati. He then personally put some questions to verify

her condition and after satisfaction that she was fit to give statement,

he started to record dying declaration. As per his evidence, Swati told

him that her husband poured kerosene on her person and set her on

fire by matching stick. The first match stick could not be lit but the

accused set her on fire by lighting second match stick. She stated

that her mother-in-law was present there, but she did nothing and

stated that ' let her die, she has given us lot of -

Cri.Appeal 225/2002

trouble'. P.W.5 - Special Executive Magistrate Dimale deposed that

Swati told him that her husband poured kerosene on her person and

set her on fire. The neighbours gathered there. Her mother-in-law

and husband taken her to the hospital, but they left the hospital

without any intimation. Then he has obtained her thumb impression

and put his signature and again obtained the signature of Medical

Officer about consciousness of the patient (dying declaration is at

Exh.34).

13. It is true that dying declaration can be sole basis for conviction

without any corroboration. It is equally true that dying declaration

recorded by Special Judicial Magistrate stands on higher footing and

more credible as he is independent person. In this case, dying

declaration is also supported by medical evidence, as the doctor has

given certificate about her fitness before and after recording the dying

declaration. The certificate about fitness is not exactly as required.

There should have certificate of physical as well as mental fitness, but

the certificate shows that she was conscious and in a position to give

the statement. However, considering the fact that deceased Swati

had survived for fourteen days and she had sustained only 65% burns,

we accept the oral testimony of P.W.5 Special Judicial Magistrate and

P.W.6 Dr. Nagne that she was physically and mentally fit to make a

statement.

14. However, we find that the evidence on record shows that

accused nos.1 and 2 themselves had brought Swati to the hospital at

Ahmednagar for treatment. A message about the incident of burning

Cri.Appeal 225/2002

of Swati was given to her father promptly. The dying declaration has

been recorded at 5.45 p.m. The evidence of P.W.1 Bhanudas shows

that he learnt about the incident at 1.00 p.m. and within two hours he

had reached the hospital. Thus, Swati's maternal relatives had been

to her before recording of her dying declaration. Evidence of P.W.5

Special Executive Magistrate Dimale shows that he had removed all

her relatives from the ward at the time of recording her dying

declaration. This creates a possibility of tutoring Swati by her

maternal relatives.

15. The dying declaration shows that Swati accosted her husband

as to why he was not going for work. He got annoyed and, therefore,

he poured kerosene from stove on her person and then set her on fire

by lighting two match sticks. In the first place we find hat the story

regarding dowry demand and previous ill-treatment required to be

discarded. Merely because Swati accosted her husband as to why he

was not going for work, her husband would not take the extreme step

of pouring kerosene and setting her on fire. This appears to be

inherently improbable.

16. Secondly, accused no.1 Balasaheb would have uttered his

intention. He would have required some time to take kerosene by

removing the lid and for pouring the same on the person of Swati.

Thereafter he would have required some time for lighting the match

stick. Meanwhile, Swati could have definitely ran out of the house.

There is nothing to show that there was any obstacle to leave the

place on apprehending danger to her life. If Swati's dying declaration

Cri.Appeal 225/2002

is to be believed, she did not try to run away which is quite abnormal.

On the contrary, Swati had a reason to commit suicide as her husband

was not serving.

17. The dying declaration does not disclose why accused no.2

Sumanbai would abet the commission of suicide. It is silent regarding

the previous instances of quarrels. The statement that the mother-in-

law Sumanbai stated " Jalu de, maru de, Hine Khup tras dila ahe" (let

her burn and die, she has given lot of trouble to us) is not acceptable

in the light of the facts on record. In order to base conviction solely

on the basis of dying declaration, the law is settled that such dying

declaration should be found to be truthful, trustworthy, reliable and

convincing which should inspire confidence in the mind of a Judge. In

this regard, we rely on State of Gujarat Vs. Jayrajbhai Varu, AIR

2016 SC 3218. We find that though there was substantial

compliance of the procedure in recording the dying declaration, it

does not appear to be truthful. There was no justifiable reason for

accused nos.1 and 2 to cause death of Swati. Besides, accused nos.1

and 2 in that case would not have brought her to the hospital

immediately. The dying declaration shows that at the time of

incident, several neighbours had gathered, but prosecution has not

examined a single neighbour. P.W.6 Dr. Nagne has stated that the

history was given as injuries due to burns. There is no specific history

that burns were caused by particular person.

18. We find that in case of such deaths, the prosecution invariably

does not produce the medical evidence with regard to the treatment

given to the patient during her life. The post mortem report is no

Cri.Appeal 225/2002

doubt important, but the case papers or medical papers disclosing the

history recorded by the doctor and the symptoms noted in the clinical

examination are also important. Besides, vital parameters found in the

examination and noted in case papers, the medicines and sedatives

given to the patient during the treatment are very material

documents and the prosecution is bound to produce and prove such

documents.

19. The prosecution cannot blindly rely on the dying declaration.

The Investigating Officer should find out material corroborating or

contradicting the statement made in the dying declaration and should

fairly put up such evidence before the Court for determining the

genuineness and truthfulness of the dying declaration. In the present

case, it is alleged that both the hands of Swati were fully burnt. Then,

it is not explained how her thumb impressions were obtained on dying

declaration. Besides, it is necessary to know that after recording the

dying declaration, it is essential that the dying declaration should be

read over to the deponent and should be asked whether it is correctly

recorded or not and after the deponent admits the correctness, then

only her signature of thumb impression should be taken. It is

axiomatic that if the witness is in position to make signature, the

signature should be preferably obtained and if not in a position to

sign, then that fact should be recorded and thumb impression should

be obtained.

20. There is always possibility that a thumb impression can be

obtained even in unconsciousness of a person and sometimes even of

Cri.Appeal 225/2002

a dead person. Therefore, dying declaration bearing signature of the

patient is much more reliable than dying declaration bearing thumb

impression. Besides, if the thumb impression cannot be obtained, the

opinion of the doctor to that effect should be taken and thereafter the

toe impression also be obtained on the dying declaration.

21. It is a matter of fact that large number of brides die in

suspicious circumstances within short period after their marriages and

there must be large number of cases of brides being subjected to ill-

treatment, harassment or even killed in their matrimonial houses. The

Investigating Officer is supposed to show utmost sensitivity while

conducting investigation in such cases. The investigation should be

extremely prompt, scientific and complete in all respect. All

precautions should be taken so that no loop holes are left in the

prosecution story. In case of recording of dying declaration, it will be

always better if the Video recording can be done so as to rule out any

doubts about truthfulness or genuineness of the dying declaration. We

direct that all police officers having power to investigate such serious

cases be instructed through their superiors to follow these directions

in paragraphs 19, 20, 21.

22. In the present case, in the facts and circumstances discussed

hereinabove, we find that the dying declaration is not trustworthy and

reliable beyond reasonable doubt. Hence, the conviction of accused

no.1 Balasaheb under Section 302 read with Sec.34 of Indian Penal

Code is not sustainable. The learned trial Judge has not taken into

account the above discrepancies in the prosecution evidence and,

therefore, conviction of accused no.1 deserves to be set aside and

Cri.Appeal 225/2002

accused no.1 Balasaheb deserves to be acquitted. Hence, we pass

the following order :

- ORDER -

(I)     Both the appeals are allowed.


(II)    The order of trial Court convicting the appellant Balasaheb s/o

Sahebrao Kolte as mentioned in Criminal Appeal No.225 of 2002 and

convicting appellant Sumanbai w/o Sahebrao Kolte as mentioned in

Criminal Appeal No.228 of 2002 are hereby set aside.

(III) Both the appellants stand acquitted of all the offences for which

they are tried and they are sentenced by the trial Court.

        ( A.M. DHAVALE, J.)              ( T.V. NALAWADE, J.)




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