The State Of Mah. Thr. Police ... vs Kanchan Sanjay Ghaywat And 2 Ors
2017 Latest Caselaw 8632 Bom

                                                   1                                       jg.apeal.385.09.odt


                 THE HIGH COURT OF JUDICATURE AT BOMBAY
                        : NAGPUR BENCH : NAGPUR.

                           CRIMINAL APPEAL NO. 385 OF 2009

The State of Maharashtra through 
Police Station Officer, 
Police Station Channi, Akola, 
Tq. & Distt. Akola.                                                                         ... Appellant

             VERSUS

(1) Kanchan Sanjay Ghaywat,
      Aged about 24 years

(2) Parsha @ Prashant Sagar Thakare,
      Aged about 21 years 

(3) Sagar Shivram Thakare,
      Aged about 45 years, 

      All residents of Chondhi, 
      Police Station Channi, 
      District - Akola.                                                                    ... Respondents
-------------------------------------------------------------------------------------------------
Mrs. M. H. Deshmukh, Additional Public Prosecutor for the State/ 
appellant
Mr. Shriniwas Deshpande, Advocate for the respondents (appointed)
-----------------------------------------------------------------------------------------------------------------------

                                                  CORAM :  R. K. DESHPANDE AND
                                                                 M. G. GIRATKAR, JJ.

Date of reserving the judgment : 6/11/2017.

Date of pronouncing the judgment : 13/11/2017

Judgment (Per : M.G. Giratkar, J)

This is an appeal by the State/prosecution challenging the

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acquittal of the respondent nos. 1 to 3 for the offence punishable under

Section 302 read with Section 34 of the Indian Penal Code.

2. The case of the prosecution against the respondents in

nutshell is as under.

(i) The respondent no. 1 Kanchan w/o Sanjay Ghaywat was the

daughter-in-law of deceased Tukaram Harkuji Ghaywat. From the

evidence on record, it appears that husband of respondent no. 1,

namely, Sanjay died. The State Government granted compensation of

Rs. 1,00,000/-. Therefore, there was dispute between the wife of

Sanjay, namely, Kanchan and family members of deceased.

(ii) As per the evidence on record, after the death of Sanjay, marriage

of Kanchan was performed with brother of Sanjay, namely, Mangesh

Ghaywat. As per the evidence of Mangesh Ghaywat, within a short

period from the time of marriage, Kanchan left his company and started

residing with her parents at village Chondhi.

(iii) As per the case of prosecution, early in the morning of 14-2-2008,

all three accused entered in the field of deceased, poured kerosene and

set him on fire. He was admitted in Government Hospital. P.W. 1,

Executive Magistrate Shri Sanjay Garkal recorded dying declaration,

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Exhibit 30. On the basis of said dying declaration, crime was registered

against the accused/respondents. Investigating Officer investigated the

crime and filed charge-sheet before the Court.

(iv) Trial Court framed charge at Exhibit 13. Same was readover and

explained to the accused/respondents to which they pleaded not guilty

and claimed to be tried. Prosecution has examined in all 8 witnesses.

Learned trial Court not relied on dying declaration, Exhibit 30 and

acquitted all the accused(respondents) vide judgment dated 31-1-2009

in S.T. No. 75/2008. Being aggrieved by the judgment of acquittal,

prosecution/State filed the present appeal.

3. Heard learned Additional Public Prosecutor Mrs. Deshmukh

for the appellant/State. She has submitted that prosecution has proved

dying declaration, Exhibit 30. P.W. 1 has stated that he recorded the

dying declaration. He has stated in his evidence that he obtained the

certificate of doctor. Patient was in a fit state of condition to make a

statement. Thereafter, he recorded dying declaration of deceased.

4. Learned Additional Public Prosecutor Mrs. Deshmukh has

pointed out us dying declaration, Exhibit 30 and submitted that as per

the dying declaration, all accused persons pressed the mouth of

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deceased, poured kerosene and set him on fire.

5. Learned Additional Public Prosecutor has pointed out us

evidence of P.W. 4 Mangesh Ghaywat and submitted that he has stated

oral dying declaration of deceased. Both these dying declaration are not

considered by the Sessions Court and wrongly acquitted all the

respondents for the offence punishable under Section 302 read with

Section 34 of the Indian Penal Code. At last, learned Additional Public

Prosecutor Mrs. Deshmukh submitted that appeal be allowed and all the

respondents be convicted for the offence punishable under Section 302

read with Section 34 of the Indian Penal Code.

6. Learned counsel for the respondents Mr. Shriniwas

Deshpande has strongly supported the judgment. He has pointed out

dying declaration, Exhibit 30 and oral dying declaration stated by

P.W. 4. He has submitted that both dying declarations are

contradictory. Learned counsel for the respondents has pointed out

evidence of P.W. 8 and submitted that he is the first person to reach the

spot of incident but he has not stated anything about the cause of death

of deceased. At last, he submitted that judgment of the trial Court is

perfectly legal and correct and hence, appeal is liable to be dismissed.

5 jg.apeal.385.09.odt

7. Now, it is well settled law that accused can be convicted

only on the basis of dying declaration provided that it should inspire

the confidence of the Court. Corroboration is necessary if dying

declaration is found to be doubtful. Hon'ble Supreme Court in the

landmark decision in the case of Khushal Rao vs. State of Bombay

reported in AIR 1958 SC 22, has observed that :

"In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the Court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case."

8. The prosecution case is based on dying declaration,

Exhibit 30 and evidence of P.W. 4. Dying declaration, Exhibit 30 reads

as under :

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Dying declaration of patient : Tukaram Harkuji Ghaywat, aged 90

years dated 14-2-2008 :

"The said incident took place this day, at 4.00 O'clock in the morning. Kanti, Parsha and Sagar pressed mouth and assaulted. Marriage was performed with my son and they were assaulting me. They were assaulting my son. By coming on motorcycle, Kanti and Parsha poured (kerosene) oil on my person and Parsha set me on fire with the match-stick. As a result of it, I sustained burn."

9. P.W. 4 Mangesh Ghaywat has stated in his evidence that he

came to know that his father was admitted in the hospital. He went to

Government Hospital, Akola in the afternoon at about 3-4 p.m. His

father told him that he should not stay there because "those people

would kill him". Then he asked what did he mean by 'those people'.

Then his father told him that it means accused nos. 1, 2 and 3 would kill

him. His father told him that accused nos. 1 to 3 beaten him up, lifted

him and took him under the papaya tree and set him on fire after

pouring kerosene.

10. From the perusal of evidence of all the witnesses, it is clear

that P.W. 4 is the interested witness who was having grudge against the

accused nos. 1 to 3. It is admitted fact that accused no. 1 Kanchan was

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the wife of Sanjay Ghaywat (brother of P.W. 4). Sanjay died, therefore,

Government granted compensation of Rs. 1,00,000/-. There was

dispute between the wife of Sanjay/accused no. 1 and the family

members of deceased on account of Rs. 1,00,000/-. It is brought on

record in the cross-examination of P.W. 4 and P.W. 5 that the matter

tried to settle before the Tantamukti Samiti but it was not settled.

Mother of deceased Sanjay and P.W. 4 filed court proceedings. Accused

no. 1 raised objection.

11. As per the evidence of P.W. 4, accused no. 1 wanted to get

Rs. 1,00,000/- and deceased was opposing, therefore, they killed the

deceased. It is pertinent to note that no such evidence is brought on

record. Deceased was aged about 90 years. There is no dispute that he

was residing in the field.

12. Dying declaration stated by deceased, Exhibit 30 is not

reliable because he has not stated names of assailants which indicates

that accused were the said persons. He has stated that Kanti, Parsha

and Sagar came on motorcycle, pressed his mouth and assaulted.

Marriage was performed with his son and they were assaulting his son.

It is pertinent to note that evidence of P.W. 5, panch witness of the spot

who is closed relative of deceased has admitted in cross-examination

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that the spot of incident was the field in which no vehicle could go. He

did not see any tyre mark of any vehicle on the spot of incident.

Therefore, it is clear that whatever deceased stated that

assailants/accused came on motorcycle is not reliable.

13. In the dying declaration, Exhibit 30, deceased has stated

that his son was also beaten but his son has not stated before the Court

that accused persons have beat him at the time of incident.

14. As per the evidence of P.W. 5 in cross-examination,

deceased was alone residing in the field. He was cooking food there

itself. There was a kiln. The possibility that deceased sustained burn

injuries while cooking food cannot be ruled out. P.W. 4 is interested in

implicating the respondents because he wanted to get Rs. 1,00,000/-

which was granted by the Government towards compensation for the

death of his brother Sanjay. As per his evidence, respondent no. 1

married with him on 11-7-2006 and thereafter she left in the month of

December. It is the case of accused no. 1 that she did not marry with

P.W. 4. P.W. 4 and other family members not given Rs. 1,00,000/- to

her which was granted by the Government towards compensation for

the death of her husband.

9 jg.apeal.385.09.odt

15. Evidence of P.W. 4 shows that he is interested in

prosecuting the respondents because he reached to the Government

Hospital at about 3-4 p.m. till that time nobody recorded dying

declaration of deceased. Deceased not disclosed about the cause of

death to any other relatives. Exhibit 30 was recorded by P.W. 1 at

about 9.30 p.m. on 14-2-2008. Therefore, it is clear that P.W. 4 after

reaching to the hospital got the said dying declaration recorded.

16. Cause of death stated by deceased to P.W. 1 and P.W. 4 is

also not reliable because dying declaration, Exhibit 30 and oral dying

declaration stated by P.W. 4 are contradictory. As per the evidence of

P.W. 4 himself, deceased was not talking in clear words. He disclosed

him that those people would kill him. Deceased told him that accused

lifted deceased, took him under the papaya tree and set him on fire after

pouring kerosene. It is pertinent to note that this fact is not stated by

deceased in his dying declaration, Exhibit 30. Therefore, dying

declaration stated by P.W. 4 is also not reliable.

17. It is pertinent to note that if really, it was a case of

homicidal death, then deceased would have disclosed to the closed

relatives. P.W. 8 was the first person reached to the spot of incident.

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18. P.W. 8 has stated in his evidence that he was in the field at

about 7.00 a.m. on 14-2-2008. His maternal uncle Santosh who is

dumb came to him. He understand him by the gesture, therefore, he

followed him to the field of deceased Tukaram. There he found

Tukaram in charred condition. Therefore, he taken him in the bullock

cart to his residence. Thereafter his son Bharat went to Alegaon to get a

taxi. He followed him on the bullock cart with the injured Tukaram.

While on the way, taxi came there. Thereafter injured was taken to

District Hospital, Akola. In the cross-examination, he stated that "while

on the way, Tukaram was only saying that he was feeling pain on

account of the burn injuries. He did not say anything else." It is

pertinent to note that P.W.8 is the son of daughter of deceased. Being a

grandson, it was his natural conduct to ask deceased/grandfather as to

how he burnt. If the deceased was really burnt by accused, then it was

a natural conduct to disclose the incident to his grandson. But deceased

not stated anything to his grandson, P.W. 8 about the incident. This

itself shows that deceased might have sustained burn injuries

accidentally.

19. Dying declaration stated by P.W. 4 and dying declaration,

Exhibit 30 are contradictory. Those are not reliable. Learned Sessions

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Judge rightly recorded its findings and rightly acquitted all the

respondents. There is no infirmity or illegality in the judgment of the

Sessions Court. Hence, we proceed to pass the following order.

(i) The appeal is dismissed.

(ii) R & P be sent back to the trial Court.

(iii) Fees of learned counsel for the respondents are quantified

at Rs. 5,000/-.

                        JUDGE                                    JUDGE



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