Bombay High Court

Ramesh Suryabhan Gajbe vs The State Of Mah.Thr.Pso Amravati on 17 November, 2017

Bench: R. B. Deo

 apeal37of06.odt                           1




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


                      CRIMINAL APPEAL NO.37 OF 2006


 Ramesh S/o. Suryabhan Gajbe,
 Aged about 40 years, 
 Occupation : Agriculturist,
 R/o. Shendurjana Bazar, 
 Tahsil Tiwasa, District Amravati                                       ...APPELLANT


          ...V E R S U S...


 The State of Maharashtra,
 Through P.S.O., Police Station
 Tiwasa, District Amravati                                            ..RESPONDENT
 -------------------------------------------------------------------------------------------
          Mr. P.R. Agrawal, counsel for the Appellant.
          Mr. A.M. Kadukar, counsel for Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM       
                                                       :ROHIT B. DEO, J.

DATE :17.11.2017

ORAL JUDGMENT:

Exception is taken to the judgment and order dated

9.12.2005, in Sessions Trial 76 of 2004, delivered by the

Additional Sessions Judge, Amravati, by and under which the

appellant (hereinafter referred to as "the accused") is convicted for

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

("IPC" for short) and sentenced to suffer rigorous imprisonment

for three years and to payment of fine of Rs. 500/-. The accused is

however, acquitted of offence punishable under section 306 of the

IPC..

2 Heard Shri. P.R. Agrawal, the learned counsel for the

appellant and Shri. A.M. Kadukar, the learned Additional Public

Prosecutor for the respondent / State.

3 The case of the prosecution, as is unfolded during the

course of trial is thus:-

4 Deceased Savita, whose marriage with the accused

was solemnized in the year 1994, poured kerosene on her person

and set herself afire at 8.00 p.m. on 30.3.2004. She was admitted

to the Rural Hospital, Tiwasa. Head Constable Shri. A.V. Mete

(PW 1) recorded Savita's dying declaration at 12.20 a.m. on

31.1.2004. On the basis of the dying declaration and the report of

Head Constable Mete, offence punishable under section 498-A of

the IPC was registered against the accused. The second dying

declaration was recorded by the Executive Magistrate Shri. Arun

Haribhau Meshram - PW 6, at 2.35 a.m. on 31.3.2004. Savita

expired at 3.45 p.m. on 31.3.2004.

5 Investigation ensued and chargesheet for offences

punishable under section 498-A and 306 of the IPC, was submitted

in the Court of Judicial Magistrate First Class, Chandur Railway,

who committed the proceedings to the Sessions Court.

6 The learned Sessions Judge framed charge under

section 498-A and 306 of the IPC, the accused abjured guilt and

claimed to be tried in accordance with law. The trend and tenor

of the cross-examination and the statement of the accused

recorded under section 313 of the Code of Criminal Procedure

reveal that the defence was of total denial.

7 Concededly, deceased Savita suffered 100% burns.

The post mortem examination report Exh. 60 reveals that both the

upper limbs suffered 18% burn injuries and the total burn injuries

were 100%.

8 The dying declaration Exh. 27, which is recorded by

PW 1 - Head Constable Mete at 12.20 a.m. on 31.3.2004, is to the

effect that the accused used to suspect Savita's character. On the

fateful day at 8.00 p.m., Savita, the accused and three children

Amita, Nitu and Shubham were at home. The accused hurled

filthy abuses (prostitute) at Savita, who poured kerosene on her

person and set herself afire. Savita shouted, the fire was

extinguished by her brother-in-law Rajendra Gajbe and one

Tarabai Raut. Savita was admitted by her brother-in-law Rajendra

Gajabe, one Dilip Borkar and others in the Government Hospital at

Tiwasa. Savita set herself afire since the accused used to harass

Savita physically and mentally by suspecting her character.

9 The second dying declaration Exh. 53 is recorded at

2.30 a.m. on 31.3.2004 by Shri. A.H. Meshram, the Executive

Magistrate (PW 6). The second dying declaration does not refer to

the accused suspecting Savita's character or subjecting Savita to

harassment due to such suspicion. The second dying declaration

states that the accused used to quarrel with Savita and beat her

and since she was fed up, she set herself afire. The second dying

declaration states that the fire was extinguished by the accused.

The second dying declaration incorporates a statement that the

dying declaration was read over to the patient. However, the

statement that the contents of the dying declaration were accepted

by the maker to be correct, is conspicuously absent. The dying

declaration purports to bear the right hand thumb impression of

Savita.

10 Sudam Rodge, the father of the deceased Savita who

is examined as PW 2, did not support the prosecution. Permission

to put questions in the nature of cross-examination was sought

and granted. In the cross-examination, PW 2 admits that he did

disclose to the police that the accused used to suspect the

character of Savita and to illtreat her on that count, since two

years prior to the incident. PW 2, however, denies that Savita

committed suicide since accused suspected her character and

illtreated her continuously. In the cross-examination on behalf of

the accused, PW 2 admits that the relations between the accused

and Savita were good till her death. He admits that Savita was

hot tempered and asserts that Savita did not ever complain about

the behaviour of the accused. In the next breath, PW 2 volunteers

that Savita simply stated that the accused abused her. PW 2

categorically admits that Savita was not subject to harassment or

illtreatment by the accused. Tarabai Deochand Raut, a neighbour

of the accused, who is examined as PW 3, deposes thus:-

"1. Accused is my neighbour. Deceased Savita is wife of the accused. One year ago Savita died due to burn injuries.

2. Intercy (sic) relations between accused and Savita were cordial

and happy.

3. Savita burnt at her own house. At that time I was present in my house. On hearing cries and shouts of Savita I rushed to her house. On my reaching I saw that Savita burning and crying for help saying "Wachwa Wachwa". I do not know about the further events. In a hospital at Amravati Savita was saying that accused suspect about her character therefore, she burnt herself. I personally heard the same".

PW 3 admits that the accused extinguished the fire and in

the process both the hands of the accused suffered burn injuries.

She admits that she helped in extinguishing the fire and that the

accused and Savita were taken to the hospital by the brother of the

accused Rajendra and one Dilip Borkar. PW 3 admits that she did

not state before the police that in the hospital, Savita said that

accused suspected her character. She admits that she did not ever

see the accused and Savita quarreling with eachother.

11 Shri. P.R. Agrawal, the learned counsel for the

accused would urge that the evidence of PW 2 - Sudam Rodge and

PW 3 - Tarabai Raut, even if accepted at face value, is not

sufficient to bring home the charge. I am inclined to agree. PW 2

who is father of the deceased Savita, did not support the

prosecution and was treated as hostile witness and cross-examined

by the learned Additional Public Prosecutor. The admission in the

cross examination of the learned Additional Public Prosecutor that

he disclosed to the police that in the last two years, the accused

used to suspect the character of Savita, is more than wiped out by

the admission extracted in the cross-examination on behalf of the

accused. The solitary statement in the examination in chief of

Tarabai - PW 3 that Savita was saying that the accused suspected

her character and therefore, she set herself afire, is an admitted

omission. PW 3 has deposed that it was the accused who

extinguished the fire and in the process suffered burn injuries.

12 The learned Additional Public Prosecutor would

however, inviting my attention to the dying declarations Exh. 27

and Exh. 53, submit that the conviction can rest solely on the

dying declarations. The submission of the learned Additional

Public Prosecutor, that a dying declaration which is found to be

implicitly reliable and confidence inspiring can be the sole basis of

conviction, as a proposition is unexceptionable. However, I am

not persuaded to let the conviction rest on the two dying

declarations, for reasons more than one.

13 The contents of the two dying declarations Exh.27

and Exh. 53, recorded by PW 1 and PW 6, respectively, are

substantially inconsistent with each other and the inter se variance

is one circumstance which dents the reliability of the dying

declarations. The contents of the dying declaration are also

inconsistent with evidence of PW 3 - Tarabai who asserts that it

was the accused who extinguished the fire when Savita set herself

ablaze and suffered injuries in the process. Concededly, both the

upper limbs of the deceased Savita suffered 18% burns

corresponding to 100% burn injuries. The thumb impression

appearing on the dying declarations, however, reveal clear ridges

and curves. It would be apposite to note the following

observations of the Apex Court in the case of State of Punjab v.

Gian Kaur and another reported in AIR 1998 SC 2809.

"5. The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found evidence of Dr. Ajay Sahni - P.W.1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view."

It would also be fruitful to refer to the following

observations of the Division Bench of this Court in Abdul

Riyz Abdul Bashir vs. State of Maharashtra reported in

2012 ALL MR (Cri) 2188.

"8. On perusal of Exh.63, it appears that in column no. 2 the deponent had given the detailed narration of the incident and has stated that her mother-in-law had exhorted her husband to eliminate Nargis. Nargis got enraged and doused herself with kerosene and when she was changing her clothes, her husband ignited the match-stick and because the neighbours had raised the cries, her husband attempted to extinguish the fire. In column no.5, it is stated that she had sustained burn injuries to her face, both hands, chest and back. The reply to column no.7 is also stated. However, column no.8 pertains to the fact that the statement as recorded was read over to the deponent and proved to be correct as per the say of the deponent. The said column is left blank. To rule out any remote infirmity, it is necessary that there has to be an endorsement that the contents were read over and admitted to be true and correct. The said column cannot be treated as an empty formality since the deponent is not available for cross- examination. Hence it is a material inherent infirmity in the dying declaration and, therefore, cannot inspire confidence of the Court. It, therefore, appears that the statement was never read over to the deceased and there

is no endorsement to that effect. When the declaration was not read over to the deponent and hence not admitted by the deponent to be correct and recorded according to her say, then such a dying declaration cannot be a foundation for sustaining the conviction. Merely because it is mentioned in the printed proforma that the statement is read over to the deponent, it cannot be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct, was actually followed. In fact the said column is blank and, therefore, the said fact cannot be assumed. The learned counsel for the appellant has relied upon the judgment of the Apex Court reported in (2008) 1 Supreme Court Cases (Cri) 679 - Shaikh Bakshu and others .vs. State of Maharashtra wherein it is held by the Apex court that "there was no mention in the dying declaration that it was read over and explained to the deceased. The trial Court and the High Court concluded that even though it is not so stated, it has to be presumed that it was read over and explained". The Apex Court has held that the said view is unacceptable. The learned counsel for the appellant has also relied upon the judgment reported in 2004 ALL MR (Cri) 3220 in the case of Shivaji Tukaram Potdukhe .vs. State of Maharashtra wherein it is held that "when the declaration was not read over to Durgabai and she had not admitted the contents thereof to be correct, according to us, the dying declaration cannot be made

foundation for sustaining the conviction". We have observed that it is doubtful whether the signature on Exh.63 is that of deceased Nargis since the accused by taking recourse to Section 155 of the Indian Evidence Act has examined an independent witness who has deposed that the signature on the Nikahnama was made by Nargis in his presence and, therefore, in the present case we find that the written dying declaration at Exh.63 cannot be made the sole basis for recording the conviction. Notwithstanding the fact that it was recorded by the Magistrate, the discrepancies in the written dying declaration are such that they would not inspire the confidence of the Court."

Even de-hors the inter se inconsistencies between two

dying declarations and the inter se inconsistency with the

testimony of PW 3 Tarabai, if the dying declarations are

tested on the anvil on the afore referred enunciation of law

by the Apex Court, the two dying declarations are rendered

suspect and do not inspire confidence.

On a holistic appreciation of evidence on record, I

have no hesitation in opining that the conviction of the

accused under section 498-A of the IPC is unsustainable. It

would be extremely hazardous to base the conviction on the

two dying declarations on record.

The judgment and order impugned is set aside. The