Sanjay Manohar Dhole vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 8552 Bom

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

                              CRIMINAL APPEAL NO. 25 OF 2016

Sanajy Manohar Dhole,
aged 40 years, Occupation 
Service, r/o Vasant Building, 
Room No.9, BARC Colony,
Trome, Mumbai.                                                           ... APPELLANT

                                                   VERSUS

The State of Maharashtr,
through PSO, Karanja (G),
Tah. Karanja, District Wardha.                                           ... RESPONDENT

                                      ....
Shri Mir Nagman Ali, Advocate with Shri H.J. Jha, Advocate for the appellant.
Shri T.A. Mirza, Additional Public Prosecutor for the respondent.
                                      ....

                                                                     CORAM :  PRASANNA B. VARALE AND
                                                                                          ARUN D. UPADHYE, JJ.

DATED : 09TH NOVEMBER, 2017.

ORAL JUDGMENT : (Per Prasanna B. Varale, J.)

By way of present appeal, the appellant/original accused is

challenging the judgment and order dated 01st January, 2016 passed by the

learned Additional Sessions Judge, Wardha in Sessions Case of No. 91 of 2011

thereby convicting the appellant for commission of the offence punishable

under Section 302 of the Indian Penal Code and sentencing him to suffer

imprisonment for life along with fine of Rs.10,000/-, in default of payment of

fine, to suffer rigorous imprisonment for six months. The case of the

prosecution is unfolded through the dying declaration of the victim namely

Anita, wife of the appellant. There are three dying declarations of the victim

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and we may deal with these dying declarations later on.

2. Victim Anita was admitted to Suretech Hospital, Nagpur, a

private hospital due to burn injuries. In the statement recorded by Head

Constable Mushtaq attached to Police Station, Dhantoli, Nagpur, Anita was

working as a staff nurse attached to the Rural Hospital, Karanja Ghadge. The

government quarter was allotted to her. The appellant/accused was working

as a Technician in Bhabha Atomic Research Center at Tarapur, Mumbai. The

couple was blessed with a daughter namely Sejal. At the time of incident,

Sejal was about eight years of age. As the victim Anita was working as a staff

nurse and was allotted government quarter, she was residing at Karanja

Ghadge with her daughter; whereas the appellant/accused used to visit his

family. As it was difficult for the victim to take care of her daughter being

government employee, she sought help of her father and her father used to

take care of minor daughter, while the victim was attending her duties. The

appellant/accused used to ill treat the victim for demand of money and

raising suspicion over the character of the victim. The appellant/accused

was addicted to vices of liquor.

3. On the fateful day i.e. 06th November, 2010, the victim Anita left

her house to attend duty at about 02:00 p.m. Though normally her duty

hours are till 08:00 p.m., as her reliever reported the duty late, the victim

reached the house at about 09:30 p.m. The appellant/accused picked up the

quarrel on account of her late arrival and raised suspicion over her character.

The kerosene was stored in the bottle as an alternate arrangement in case of

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failure of electric supply. The appellant/accused by pouring kerosene on the

person of victim, set her on fire with the matchstick. Though the victim

raised hue and cry, due to night hours, no help was available to her. The

victim was subjected to burn injuries on her face, upper part of body, hands

and legs. The appellant/accused then poured water on her and gave her

threats not to disclose the incident to anybody. The victim then made phone

call to Medical Officer and also one Nilesh Gajanan Chafle. Initially she was

admitted in Rural Hospital, Karanja and then was shifted to the private

hospital i.e. Suretech Hospital, Nagpur. On 07.11.2010, on receiving the

information from Suretech Hospital, Head Constable Mushtaq visited the

Suretech Hospital and recorded the statement of victim. On 08.11.2010, PSI

Meshram attached to Police Station Karanja Rural, visited Nagpur and issued

letter to Executive Magistrate, Nagpur Shri Sanjay Hardas to record the

statement of victim. Executive Magistrate Hardas, by visiting Suretech

Hospital, Nagpur on 08.11.2010 at about 11:30 a.m., recorded her statement.

On receipt of statement recorded by Executive Magistrate to Police Station,

Karanja Rural, Crime No. 172/2010 was registered against the appellant/

accused initially under Section 307 of the Indian Penal Code.

4. On 11.11.2010, Dhantoli Police Station, Nagpur received

intimation from Suretech Hospital that patient Anita died during treatment.

Marg No. 00/2010 came to be registered by the Police Station, Dhantoli,

Nagpur. Inquest Panchnama prepared at the hands of police official

attached to Dhantoli Police Station. The dead body was referred to

postmortem examination. The Police Station, Dhantoli, Nagpur, on

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receiving the documents namely death certificate and death summary,

forwarded the same to Karanja Rural Police Station. On receiving these

papers, Karanja Rural Police Station added Section 302 of the Indian Penal

Code. The investigating agency was set in motion. Necessary formalities

were completed, such as, recording the statements of witnesses, seizure of

material, forwarding the seized muddemal property to Chemical Analyser,

collecting the Chemical Analyser's report. On completing the investigation,

charge sheet was submitted before the learned Judicial Magistrate, First

Class, Karanja (G). The offence being exclusively triable by Court of Session,

case was committed to the Sessions Court, Wardha. The accused pleaded

not guilty and claimed for trial. To bring home the guilt of accused, the

prosecution examined as many as eight witnesses and submitted its case

through the oral evidence as well as the documentary evidence. On assessing

the evidence, the learned Sessions Judge held the accused guilty of

commission of offence under Section 302 of the Indian Penal Code and

awarded punishment referred to above.

5. Shri Ali, the learned Counsel appearing on behalf of the appellant

submits that though the prosecution submits that there are as many as three

dying declarations, none of these dying declarations satisfies the test and

these dying declarations suffer from infirmities and contradiction to each

other. Thus the submission of Shri Ali is that no reliance can be placed on

these dying declarations and the same ought to have been kept out of

consideration and the conviction and sentence awarded to the appellant is

unsustainable and the appellant be acquitted. The next submission of Shri

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Ali is that though the trial Court accepted the oral version of PW-5 Sejal i.e.

daughter of appellant and the victim, the witness PW-5 is a child witness and

there is enough material to say that the possibility of tutoring the witness

could not have been ruled out. He further submits that it is the consistent

view of this Court and the Apex Court that the version of child witness is to be

considered with care and caution as these witnesses are proven to be

tutoring.

6. Shri Ali, the learned Counsel for the appellant led heavy attack on

the dying declaration (Exh.32) recorded by the Head Constable Mushtaq on

the ground that Head Constable Mushtaq failed to obtain the certificate of

fitness of the patient from the doctor and as the dying declaration is silent on

this aspect, this dying declaration cannot be accepted. The learned Counsel

then submits that though the alleged first dying declaration was recorded on

07.11.2010, no first information report was registered and the FIR was

registered only after recording the second and third dying declarations. The

delay in registration of the FIR makes the prosecution case doubtful is the

submission of Shri Ali. He then submits that there are contradictions

between the alleged dying declaration and the version of the witness PW-5

Sejal. The learned Counsel also submits that there is an ambiguity on the

aspect of the alleged spot of incident as the witness refers that the incident

took place in the room; whereas the spot of incident is shown in the spot

panchnama in front of bathroom. Shri Ali, the learned Counsel, in alternate,

submits that the evidence shows that there was a quarrel between the victim

and the accused on the fateful day. He submits that it was alleged against the

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appellant/accused that he raised doubt about the intention of the paternal

members of victim in a property transaction. It is the submission of Shri Ali

that as all of a sudden quarrel took place and in heat of passion, the

appellant/accused though allegedly set the victim on fire, he then poured

water on the victim and he himself shifted the victim to the hospital for

treatment. Thus it is the submission of Shri Ali that the appellant was not

carrying any intention and the act of the appellant was not the result of

premeditation but it was an act of sudden provocation. The learned Counsel

thus submits that the conviction and sentence awarded to the appellant for

commission of an offence under Section 302 of the Indian Penal Code is

unsustainable.

7. Shri Ali, the learned Counsel for the appellant, in support of his

submission, places heavy reliance on the judgments in the cases of Ashok

Govinda Borse .v. State of Maharashtra (reported in 2009 All MR (Cri) 148);

The State of Maharashtra .v. Bhairavnath Mahadeo Shilimkar and others

(reported in 1997 Bom CR (Cri), 610); Shaikh Bakshn and others .v. State of

Maharashtra (reported in 2007 DGLS (SC), 780); Sunil Kashinath

Raimale .v. State of Maharashtra (reported in 2006 All MR (Cri), 1117);

Manil Vanaji Gawali .v. The State of Maharashtra (reported in 2013 All MR

(Cri), 1766); Ashok Vitthalrao Chahande .v. State of Maharashtra (reported

in 2017 All MR (Cri)m, 1949); Shantilal @ Lakhan Purandar Kamble .v. The

State of Maharashtra (reported in 2016 All MR (Cri), 3453); Patiram Sadhu

Sakharwade .v. State of Maharashtra (reported in 2003 All MR (Cri), 1296);

and Subhash Tikaram Madhav .v. The State of Maharashtra (reported in

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2017 All MR (Cri), 2240).

8. Shri Mirza, the learned Additional Public Prosecutor appearing

on behalf of the respondent/State supports the judgment and order

challenged in the instant appeal and submits that no error is committed by

the learned Sessions Judge, Wardha in convicting and sentencing the

appellant by awarding him a proper punishment.

9. In view of the rival submissions, we have gone through the

evidence. Exh.32 is the dying declaration which is first in point of time. This

dying declaration is recorded by PW-1 Mushtaq on 07.11.2010. In this dying

declaration, the victim by referring to her matrimonial status, the status

being employees, of victim and the appellant/accused, states about the

incident. She specifically states that the appellant/accused picked up the

quarrel with her when she came at about 09:30 p.m., at her house on raising

suspicion over her character, he poured kerosene on her person and set her

on fire. She then states about the act of the appellant/accused by pouring

water on her person and giving threats and then she states about giving an

intimation of the incident to the medical officer and one of her

acquaintances Nilesh Gajanan Chafle through mobile phone. PW-1 Mushtaq

who is examined as PW-1 to prove the dying declaration (Exh.32), gives the

detail account of receiving information that one patient admitted to Suretech

Hospital had received the burn injuries. Then he states that he reached the

hospital and found that the victim was in ICU and confirmed the fact of Anita

being admitted in ICU through Medical Officer and also issued a letter to the

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concerned officer for recording the statement. He ascertained from the

Medical Officer that the patient was in fit condition to give statement.

Though Shri Ali, the learned Counsel for the appellant led heavy attack on

the dying declaration on the ground that it is unacceptable, it is the

submission of Shri Ali that there is no endorsement of the medical officer

that the patient was in fit condition to record statement. It is also submitted

by him that the statement was not read over to the victim. We find that PW-1

Mushtaq ascertained the fit physical condition of the victim for recording the

statement from the medical officer and this finds place in his oral evidence.

Though the suggestion was given to this witness that the patient was not in a

fit condition, he flatly denied the suggestion. It is also an attempt of Shri Ali

to submit before us that as the family members of the victim were present

near the victim, possibility of tutoring cannot be ruled out.

10. We are unable to accept the aforesaid submission of Shri Ali, the

learned Counsel for the appellant for the reason that in the version of PW-1

Mushtaq, it is clear that the victim was in ICU when the statement was

recorded by PW-1 and in the ICU while the statement was being recorded, no

relative of the patient was present. The only persons present were the

medical officer and PW-1. Merely because the relatives who were present in

the hospital, one cannot jump to the conclusion that while recording the

dying declaration, the victim was tutored. It was natural for those relatives to

rush to the hospital on receiving the intimation.

11. The second dying declaration is recorded by the Executive

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Magistrate PW-2 Sanjay Hardas. Shri Ali, the learned Counsel makes an

attempt to submit that the second dying declaration is also unacceptable as

there is no reference in the dying declaration about the completion of

recording the same, it only refers to the timing of initiation of recording

dying declaration. It is also an attempt made by the learned Counsel to

submit that in the second dying declaration, there is no reference of raising

the doubts on the character of the victim by the appellant/accused. Thus, it

is submitted by Shri Ali that there is a contradiction in two dying declarations

namely first dying declaration and second dying declaration. On going

through the dying declarations proved through PW-2 Sanjay Hardas, we find

that in these dying declarations also the victim states that the appellant used

to suspect the character and on that count he was picking up quarrels. Thus,

we find no serious lacuna in any of these dying declarations. Both these

dying declarations proved by PW-1 and PW-2 respectively satisfy the test as

laid down by various judgments of this Court and the Apex Court.

12. Shri Ali, the learned Counsel for the appellant led heavy attack on

the version of PW-5 Sejal. He makes an attempt to submit before us that the

witness Sejal was in the company of her grandfather and grandmother. He

further submits that on the day of incident also, the grandfather of the

witness was present in the house till arrival of the appellant/accused. The

learned Counsel also submits that the witness PW-5 Sejal states that the

grandfather was carrying a grudge against the appellant/accused and the

grandfather and accused were not seeing each other eye to eye. Thus, it is

the submission of Shri Ali that the relations between the appellant/accused

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and his in laws were strained and as PW-5 Sejal was in company of her grand

parents, the possibility of tutoring cannot be ruled out.

13. On perusal of the version of aforesaid witness, we find that PW-5

Sejal was of 14 years of age when her evidence was recorded. She was

studying in IX standard at the relevant time. On a careful scrutiny of version

of Sejal, we find that her version is truthful account and merely for some

minor omissions, the version of this witness which is otherwise truthful and

unshaken cannot be turned down only on the ground that the witness is a

child witness. PW-6 is one Dr. Geeta Dixit who proves the intimation of

admission of victim forwarded to Police Station, Karanja and also the death

certificate issued by the Suretech Hospital, Nagpur. The postmortem is

admitted by the defence. The same is Exh.58. The cause of death is shown

as, "Septicemia due to burns", the affected parts of the body to burn injuries

are referred to in column No.17 and it reveals that the victim suffered 57 per

cent burn injuries. Column 17 reads thus -

"Infected mixed dermo epidermal burn injuries present over body with evidence of singing of scalp hairs, eye brown, eye lashes and pubic hairs.

Surface area of burns -

         (1) Head, neck and face                       - 05%

         (2) Trunk                    Anterior         - 16% ) Lower part 
                                      posterior        - 16% ) spared.

         (3) Upper limbs              Right            - 06% ) Posterior aspect of
                                      Left             - 08% )  forearm spared.

         (4) Lower limbs              Right            - 2.5%) Anterior aspect of 
                                      Left             - 2.5%) thighs involved.




                                       11                                                              apeal25.16



         (5) Genitalia                                     - 01% 
                                                           ______
                                    Total                  - 57%
                                                           ______

Thus this certificate along with the dying declaration refers to establish the

case of the prosecution that the victim Anita died homicidal death.

14. Dr. Rushikesh Pathak who issued postmortem report is also

examined. Though Shri Ali, the learned Counsel makes an attempt to submit

before us that it raises a doubt whether the incident took place on the spot as

alleged by the prosecution, on perusal of the material namely the spot

panchnama and the oral evidence of PW-5 Sejal, we are unable to accept the

submission of Shri Ali. The incident of the victim setting on fire took place in

one of the rooms of the official quarter allotted to the victim. Though Shri Ali

makes an attempt to submit that there is variance in the version as to the

incident of taking place in the room or in front of bathroom, as stated above,

considering the spot panchnama and the version of PW-5, we do not find

that it is of such nature which would make the prosecution case

unbelievable. It is also an attempt of Shri Ali to submit that though the dying

declaration was recorded on 07th November, 2010 itself, the FIR was

registered after recording of second and third dying declarations and the

delay is unexplained. As such, the prosecution case is unacceptable, we are

unable to accept this submission also for the reason that merely because

there is some lapse on the part of the investigating agency by itself the case of

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the prosecution which is otherwise proved against the appellant/accused

through the clinching evidence in the form of dying declarations cannot be

thrown out.

15. Thus, taking into consideration the evidence brought by the

prosecution, in our opinion, the prosecution has established that the death

of victim was of homicidal death and the accused is the author of crime. We

find merit in the alternate submission of Shri Ali that the case of the

prosecution against the accused may not stand for commission of offence

under Section 302 of the Indian Penal Code. The learned Counsel is justified

in submitting on the basis of evidence namely the dying declarations and the

oral version of PW-5, it is clear in the evidence that the accused though set

the victim on fire and then poured water on the victim. It is also the part of

evidence that the accused then shifted the victim to Rural Hospital on two

wheeler. There is also merit in the submission of Shri Ali that a quarrel took

place between the couple and it prompted the appellant/accused to take an

extreme step. The learned Counsel is also justified in placing reliance on the

judgment of this Court in the case of Subhash Tikaram Jadhav .v. The State of

Maharashtra (cited supra).

16. Considering these facts, we are of the opinion that the case

against the appellant/accused would fall under Section 304 Part II of the

Indian Penal Code, hence, we alter the conviction of the appellant from

Section 302 of the Indian Penal Code to Section 304-II of the Indian Penal

Code. In our opinion, rigorous imprisonment of 8 years with fine already

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imposed by the learned Sessions Judge of Rs.10,000/-, in default, R.I. for

further three months would meet the ends of justice.

17. The conviction and sentence imposed by the learned Additional

Sessions Judge, Wardha by judgment and order dated 01st January, 2016

passed in Sessions Case No. 91 of 2011 is accordingly modified.

18. Appeal is partly allowed to the aforesaid extent.

                JUDGE                                                                JUDGE 
      
*rrg.