Motiram Manohar Phad And Anr vs The State Of Maharashtra
2017 Latest Caselaw 8811 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

               CRIMINAL APPEAL NO.624 OF 2006
                               
1.     Motiram s/o Manohar Phad,
       Age : 23 years, Occu. Agri.

2.     Sumanbai w/o Manohar Phad,
       Age : 50 years, Occu. Agri.

       Both r/o Saudana, Taluka                             APPELLANTS
       Ambajogai, District Beed                          (Orig. Accused 
                                                           Nos.1 and 2)
       VERSUS

The State of Maharashtra                                    RESPONDENT 
                                                          (Prosecution)

                         ----
Mr. A.M. Gaikwad, Advocate for the appellants
Mr. S.N. Morampalle, A.P.P. for the State/Prosecution 
                         ----

                                       CORAM : SUNIL P. DESHMUKH AND
                                               SANGITRAO S. PATIL, JJ.

                                       DATE  : 17th November, 2017


JUDGMENT (PER SANGITRAO S. PATIL, J.)  :

The appellants have taken exception to the

judgment and order dated 17th August, 2006, passed in

Sessions Case No.97 of 2004 by the learned 1st Adhoc

Additional Sessions Judge, Ambejogai, whereby they

have been convicted and sentenced for the offences

punishable under Sections 302 and 498-A read with

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Section 34 of the Indian Penal Code ("IPC", for short).

2. Appellant No.1 is the husband, while appellant

No.2 is the mother-in-law of the deceased namely Balika.

The marriage of appellant No.1 and the deceased Balika

was performed before about one year of the incident that

took place on 12th May, 2004.

3. It is alleged that the deceased Balika did not

conceive child even after one year of the marriage and

therefore, the appellants started illtreating her. On

12th may, 2004 at about 6.00 p.m., the deceased Balika

was taking out grains from a gunny bag for being grinded

on the say of appellant No.2. Both the appellants

closed the door of the house from inside, poured

kerosene on her person and appellant No.1 set her on

fire by means of a burning matchstick. The deceased

Balika raised shouts and tried to run away. She

sustained serious burn injuries. The appellants then

tried to make a show of extinguishing fire from her

person. One Surekha Namdeo Phad, Aasubai Laxman Phad

and others rushed to the husband of the appellants. They

extinguished the fire. The mother, cousin-brother-in-

law and cousin-maternal uncle of the deceased Balika

took her to the Civil Hospital at Ambejogai and admitted

3 criapl624-2006

her there for treatment.

4. The statement of the deceased Balika was

recorded by ASI Lambture on 13th may, 2004 at about 12.30

noon. It was treated as the FIR. On the basis thereof,

crime No.73 of 2004 came to be registered against the

appellants for the offences punishable under Sections

307 and 498-A read with Section 34 of the IPC in Police

Station (Rural), Parali.

5. The investigation followed. The spot panchanama

was prepared on 14th May, 2004 at about 9.00 a.m. A

kerosene lamp came to be seized from the spot of the

incident. The Investigating Officer gave a letter to

the Special Executive Magistrate to record the statement

of the deceased Balika. Accordingly, the Special

Executive Magistrate namely Savita Anurath Sagar

recorded her statement on 14 th May, 2004 at 10.30 a.m.

The statements of the witnesses were recorded. Balika

died on 17th May, 2004 at about 00.30 a.m. The offence

punishable under Section 302 of the IPC came to be

substituted for the offence punishable under Section 307

of the IPC. The inquest of the body of the deceased

Balika was prepared. It was referred to the Medical

Officer for post-mortem. The Medical Officers conducted

4 criapl624-2006

post-mortem on the body of the deceased Balika on 18 th

May, 2004 and found 87% of burns on her body. They

opined that she died due to shock due to burns. After

completion of the investigation, the appellants came to

be chargesheeted for the above mentioned offences in the

Court of the learned Judicial Magistrate First Class,

Ambejogai.

6. The case being exclusively triable by the Court

of Session, the learned Magistrate committed it to the

Additional Sessions Court at Ambejogai for trial. The

learned Trial Judge framed charges against the

appellants for the above mentioned offences vide Exh-26

and explained the contents thereof to them in

vernacular. The appellants pleaded not guilty and

claimed to be tried. Their defence is that of total

denial and false implication. According to them, the

deceased Balika sustained burns accidentally.

7. The prosecution examined seven witnesses to

establish guilt of the appellants for the above

mentioned offences. The learned Trial Judge evaluated

the evidence of the prosecution and found the appellants

guilty for the above mentioned offences. He, therefore,

convicted them for the said offences and sentenced each

5 criapl624-2006

of them to suffer imprisonment for life and to pay a

fine of Rs.500/- in respect of the offence punishable

under Section 302 of the IPC and imprisonment for three

years and a fine of Rs.500/- in respect of the offence

punishable under Section 498-A of the IPC.

8. The learned counsel for the appellants submits

that the prosecution is mainly relying on the statement

of the deceased Balika recorded by ASI Lambture (PW6) of

Police Station, Ambejogai on 13th May, 2004 at about

12.30 noon, which was treated as the FIR and consequent

upon the death of Balika, as a dying declaration

(Exh-50). He submits that the deceased Balika was not

in a condition to give such exhaustive statement. The

mother and other relatives of the deceased Balika were

present with her in the hospital. Though she was

admitted in the hospital at about 8.00 p.m. on 12 th May,

2004, she did not make any allegation against the

appellants implicating them in the incident of burning

till the time of recording her alleged dying declaration

(Exh-50).

9. According to the learned counsel, the dying

declaration (Exh-50) has been prepared by ASI Lambture

(PW6) at the instance of the maternal relations of the

6 criapl624-2006

deceased Balika. He submits that the Medical Officer

has not given endorsement on the said dying declaration

that the deceased Balika was in a fit state of mind to

give statement prior to its recording. He further

submits that the delay in giving such statement has not

been explained by the prosecution.

10. The learned counsel then points out to the

dying declaration (Exh-37), recorded by the Special

Executive Magistrate on 14th May, 2004 at about 10.30

a.m. In that dying declaration, she has specifically

stated that on 12th May, 2004 at about 6.00 p.m., when

she was taking out grains from a gunny bag for being

grinded, she was holding a burning kerosene lamp which

accidentally fell on her saree. Due to that, her saree

was caught by fire. She raised shouts whereon the

appellants rushed to her and extinguished fire by

pouring water on her person. She further stated that

she had no complaint to make against anybody. He

submits that this dying declaration bears the

endorsement of the same Medical Officer who has endorsed

on the dying declaration (Exh-50) about fit state of

mind of the deceased Balika to give statement. He

submits that the said dying declaration has been

7 criapl624-2006

produced by the prosecution when the matter was at the

stage of hearing bail application. The genuineness

thereof has been admitted on behalf of the appellants

and therefore, it has been admitted in the evidence.

11. The learned counsel further submits that the

parents and other relatives of the deceased Balika were

examined by the prosecution. They did not support the

prosecution. Therefore, the dying declaration (Exh-50),

which incriminates the appellants, cannot be relied on

in the absence of any evidence corroborating the

contents thereof. On the contrary, the evidence of the

parents of the deceased Balika show that the appellants

had no reason to set the deceased Balika on fire. The

spot panchanama also shows that a kerosene lamp was

found there which came to be seized. There was no

kerosene container found in the house of the appellants

when the spot panchanama (Exh-31) was prepared. He

submits that a false seizure panchanama (Exh-66) has

been prepared on 18th May, 2004 at about 5.45 p.m.,

showing that there was a kerosene container in the house

of the appellants. He submits that when there are

contradictory dying declarations, the dying declaration,

which is in favour of the accused and which is supported

8 criapl624-2006

by the other evidence and attending circumstances, has

to be accepted. He submits that the appellants have

been wrongly convicted by the learned Trial Judge and

prays that the impugned judgment and order may be set

aside.

12. On the other hand, the learned A.P.P. supports

the impugned judgment on the say that the dying

declaration (Exh-50), which was recorded first in point

of time, clearly incriminates the appellants and shows

that they poured kerosene on her person and set her

ablaze. There was no reason for the deceased Balika to

state false against the appellants. According to him,

the learned Trial Judge has rightly appreciated the

facts of the case and rightly convicted and sentenced

the appellants believing the dying declaration (Exh-50)

as voluntary and truthful. He, therefore, prays that the

appeal may be dismissed.

13. The learned counsel for the appellants cited

the judgment in the case of Raju Devade Vs. State of

Maharashtra AIR 2016 SC 3209, wherein it has been held

that when there are multiple dying declarations, each

dying declaration has to be considered independently on

its own merits so as to appreciate its evidentiary value

9 criapl624-2006

and one cannot be rejected because of the contents of

the other. In the cases where there are more than one

dying declarations, it is the duty of the Court to

consider each one of them in its correct perspective and

satisfy itself that which one of them reflects the true

state of affairs.

14. In the case of Shudhakar Vs. State of M.P. AIR

2012 SC 3265, it is observed that in the cases involving

multiple dying declarations, for determining which of

the various dying declarations should be believed by the

Court, the test of common prudence would be to first

examine which of the dying declarations is corroborated

by other prosecution evidence. Further, the attendant

circumstances, the condition of the deceased at the

relevant time, the medical evidence, the voluntariness

and genuineness of the statement made by the deceased,

physical and mental fitness of the deceased and

possibility of the deceased being tutored are some of

the factors which would guide the exercise of judicial

discretion by the Court in such matters.

15. In Puran Chand Vs. State of Haryana 2010 AIR

SCW 3677, it is observed that the Courts have to be

extremely careful when they deal with a dying

10 criapl624-2006

declaration as the maker thereof is not available for

the cross-examination which poses a great difficulty to

the accused persons. A mechanical approach in relying

upon a dying declaration just because it is there, is

extremely dangerous. The Court has to examine a dying

declaration scrupulously with a microscopic eye to find

out whether the dying declaration is voluntary,

truthful, made in a conscious state of mind and without

being influenced by the relatives present or by the

investigating agency who may be interested in the

success of investigation or which may be negligent while

recording the dying declaration. It is further observed

that it cannot be that a dying declaration which

supports the prosecution alone can be accepted, while

the other innocuous dying declarations have to be

rejected. Such trend will be extremely dangerous.

16. Keeping in mind the above referred principles,

governing the dying declarations, we proceed to consider

the dying declarations of the deceased Balika.

17. The dying declaration (Exh-50) was recorded by

ASI Lambture (PW6) (Exh-49) on 13th May, 2004 between

12.30 and 1.00 noon in the Civil Hospital at Ambejogai.

He states that he got it verified from the Medical

11 criapl624-2006

officer that the deceased Balika was in a fit state of

mind to give statement and then recorded dying

declaration (Exh-50) as per her say. In this dying

declaration, the deceased Balika alleged that the

appellants were illtreating her because she had not

conceived any child even after one year of the marriage.

She stated that she had informed about that illtreatment

to her parents and her parents tried to convince the

appellants to treat her properly. She then alleged that

on 12th May, 2004 at about 6.00 p.m., when she was taking

out grains from a bag, both the accused (appellants)

closed the door of the house from inside and poured

kerosene on her person. Appellant No. 2 asked appellant

No.1 to set her on fire and accordingly, appellant No.1

lit a matchstick and set her ablaze. She raised shouts

whereon the appellants made a show of extinguishing fire

from her person so as to mislead the neighbours. Surekha

Namdeo Phad, Aasubai Laxman Phad and others came there

and extinguished fire from her person. She was admitted

in the Civil Hospital at Ambejogai by her mother, cousin

brother-in-law, cousin maternal uncle, the son of her

cousin maternal uncle and one Narayan. Thus, the

deceased Balika attributed guilt to the appellants for

setting her on fire.

12 criapl624-2006

18. ASI Lambture (PW6) admits that there is no

endorsement given by the Medical Officer on the dying

declaration (Exh-50) prior to recording it that the

deceased Balika was in a fit condition to give

statement. The Medical Officer concerned has not been

examined by the prosecution to show that the deceased

Balika was in a fit condition to give statement when the

dying declaration (Exh-50) was recorded. Though

initially ASI Lambture (PW6) states that at the time of

recording the dying declaration (Exh-50), the deceased

Balika, the Medical Officer on duty and himself only

were present, he states in his cross-examination that

the dying declaration (Exh-50) was actually recorded by

his writer under his supervision. Thus, one more person

was present at the time of recording dying declaration

(Exh-50). The person, who scribed or recorded the dying

declaration (Exh-50) has not been examined by the

prosecution. As seen from the contents of the dying

declaration (Exh-50), the mother of the deceased Balika

was with her when she was admitted in the Civil Hospital

at Ambejogai on 12th May, 2017 at about 8.00 p.m. There

is absolutely no explanation given by the prosecution as

to why the deceased Balika did not disclose involvement

13 criapl624-2006

of the appellants in the incident of setting her on fire

until the dying declaration (Exh-50) was recorded.

19. Rukminbai (PW2) (Exh-41) is the mother of the

deceased Balika. She specifically states that she was

present in the hospital with the deceased Balika from

12th May, 2004 until she died. She then states that the

deceased Balika stated her in the hospital that the

incident of fire took place accidentally due to fall of

burning lamp on her person. She denies that the

appellants used to illtreat the deceased Balika. If the

appellants had set the deceased Balika on fire, she

certainly would have disclosed that fact to her mother

Rukminbai (PW2). However, whatever was stated by the

deceased Balika to Rukminbai (PW2) is contrary to what

has been mentioned in the dying declaration (Exh-50).

20. The father of the deceased Balika i.e. Madhukar

(PW1) (Exh-40) also does not support the case of the

prosecution. He also states that the deceased Balika

died due to fall of a kerosene lamp on her person. He

specifically states that the deceased Balika was

cohabiting with appellant No.1 happily. As such, there

is no corroboration to the contents of dying declaration

(Exh-50) from the parents of the deceased Balika about

14 criapl624-2006

the alleged illtreatment given by the appellants to her

on the ground that she did not conceive any child. The

alleged ground behind the so called ill-treatment does

not appear to be natural and probable, because the

marriage of the deceased Balika had taken place hardly

about one year prior to the incident.

21. As stated in the dying declaration (Exh-50),

one Surekha Namdeo Phad, Aasubai Laxman Phad and others

extinguished fire from the person of the deceased

Balika. The evidence of these witnesses certainly would

have been helpful to the prosecution to establish the

reaction of the deceased Balika immediately after the

incident. Had the appellants set her on fire, she

certainly would have disclosed that fact before these

witnesses. The prosecution has withheld their evidence

without assigning any reason. Therefore, it will have

to be inferred that had they been examined, their

evidence would not have supported the case of the

prosecution.

22. API Savale (PW7) (Exh-54) admits that he had

given a letter to the Special Executive Magistrate with

a request to record statement of the deceased Balika on

14th May, 2004. The dying declaration (Exh-37) has been

15 criapl624-2006

recorded by the Special Executive Magistrate on 14th May,

2004 at about 10.30 a.m. The same Medical Officer, who

has endorsed on the dying declaration (Exh-50), has

given endorsement on the dying declaration (Exh-37) that

the deceased Balika was conscious and oriented to time,

place and person. As such, she was in a fit condition

to give statement. In that statement, she specifically

stated that she sustained burns accidentally as the

kerosene lamp fell on her person due to which her saree

was burnt and she sustained injuries. She further stated

that the appellants rushed to her and extinguished fire

from her person.

23. This dying declaration finds corroboration from

the evidence of the parents of the deceased Balika.

Moreover, one Surekha (PW5) (Exh-45), who had come to

her maternal home, which was in front of the house of

the appellants, states that when the incident took

place, she was sitting in the courtyard of the house.

She saw the appellants extinguishing the fire from the

person of the deceased Balika. Thus, the evidence on

record corroborates the contents of the dying

declaration (Exh-37), which was recorded by the Special

Executive Magistrate.

16 criapl624-2006

24. This dying declaration (Exh-37) was produced by

the prosecution when the bail application of the

appellants was being heard. The genuineness of the

contents thereof has been admitted by the appellants and

therefore, it came to be admitted in evidence. Since the

said document also forms part of the papers of

investigation and since it was recorded by the Special

Executive Magistrate at the instance of the

Investigating Officer, it was rightly admitted in

evidence. The dying declaration (Exh-37) supports the

case of the appellants that the deceased Balika

sustained burns accidentally.

25. As stated above, there is no corroboration to

the contents of the dying declaration (Exh-50), which

tends to incriminate the appellants. On the contrary,

the dying declaration (Exh-37) finds corroboration from

the evidence of the parents of the deceased Balika

herself. Consequently, in view of the above cited

judgments, the dying declaration (Exh-37), which is in

favour of the appellants, will have to be accepted and

the dying declaration (Exh-50) will have to be

discarded.

17 criapl624-2006

22. The learned Trial Judge did not appreciate the

facts of the case correctly and properly and wrongly

relied on the dying declaration (Exh-50), which was not

corroborated by attendant circumstances. The learned

Trial Judge wrongly convicted and sentenced the

appellants for the above mentioned offences. The

impugned judgment and order being not legal, proper and

correct, are not sustainable. They are liable to be

quashed and set aside. Hence, the following order:-

O R D E R

(i) The Criminal Appeal is allowed.

(ii) The impugned judgment and order dated 17 th

August, 2006 passed by the learned 1st Adhoc Additional

Sessions Judge, Ambejogai in Sessions Case No. 97 of

2004, convicting and sentencing the appellants for the

offences punishable under Sections 302 and 498-A of the

Indian Penal Code are quashed and set aside.

(iii) The appellants are acquitted of the above-said

offences.

                                      18                         criapl624-2006

(iv)             The bail bonds of the appellants are cancelled. 

They are set at liberty.


(v)              Fine   amount   deposited   by   the   appellants   be 

refunded to them.


(vi)             The appeal is accordingly disposed of. 




        [SANGITRAO S. PATIL]              [SUNIL P. DESHMUKH]
                JUDGE                             JUDGE

 
npj/criapl624-2006