Ajay Digamber Deogade vs The State Of Mah.Thr.Pso ...
2017 Latest Caselaw 8975 Bom

                                                   1                                       jg.apeal.304.05.odt


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

                           CRIMINAL APPEAL NO. 304 OF 2005

Ajay s/o Digamber Deogade, 
aged about 24 years, Occ. Labourer, 
R/o : Bhadrawati, District : Chandrapur.                                                        ... Appellant

             VERSUS

The State of Maharashtra, 
through P.S.O. Bhadrawati.                                                                  ... Respondent
-------------------------------------------------------------------------------------------------
Shri R. M. Daga,  Advocate for the appellant
Shri V. P. Gangane, Additional Public Prosecutor for the respondent 
-----------------------------------------------------------------------------------------------------------------------

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

Date of reserving the judgment : 13/11/2017.

Date of pronouncing the judgment : 23/11/2017

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

Appellant was charge-sheeted for committing murder of his

wife. Learned Additional Sessions Judge, Chandrapur acquitted the

appellant for the offence punishable under Section 304-B of the Indian

Penal Code and convicted him for the offence punishable under Section

302 of the Indian Penal Code and sentenced him to suffer rigorous

imprisonment for life and to pay fine of Rs. 1,000/- in default to suffer

further simple imprisonment for three months. Being aggrieved by the

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judgment of conviction in Sessions Case No. 119/2004 dated 12-4-2005,

appellant has filed the present appeal.

2. The case of the prosecution against the appellant in short is

as under.

(i) The appellant married with deceased Vishakha on 19-3-2004.

After the marriage, appellant was demanding Rs. 50,000/- from her

parents. On the day of incident i.e. on 18-4-2004, in evening, appellant

came to house and asked his wife Vishakha as to why she did not serve

food to his mother. Therefore, there was quarrel between them. He

taken her in the bathroom, poured kerosene on her person and set her

on fire. Vishakha started burning. She caught the appellant. Appellant

also sustained burn. Neighbours extinguished fire. They were admitted

in the Government Hospital, Chandrapur in the night at about

10.00 p.m.

(ii) On 19-4-2004, Executive Magistrate Sirsam recorded statement/

dying declaration of Vishakha. She has stated that appellant quarreled

with her saying as to why she did not serve food to his mother and on

that count, there was quarrel. Appellant poured kerosene and set her

on fire. She has also stated that she caught the appellant and appellant

also sustained burn. On 22-4-2004, during medical treatment in the

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hospital, Vishakha died.

(iii) PSI Khamankar registered the crime on 26-4-2004 after receipt of

dying declaration. Thereafter he went to spot of incident and prepared

spot panchanama, seizure panchanama. He has recorded statements of

witnesses. Further investigation was carried out by PSI Solanki. PSI

Solanki seized video recording, arrested accused and after complete

investigation, filed charge-sheet before the Judicial Magistrate First

Class, Bhadrawati. Offences under Sections 302 and 304-B of the

Indian Penal Code are exclusively triable by the Sessions Court,

therefore, the Judicial Magistrate First Class, Bhadrawati committed the

case to Sessions Court for trial.

(iv) Charge was framed by the trial Court at Exhibit 5 for the offences

punishable under Sections 304-B and 302 of the Indian Penal Code. The

same was readover and explained to the appellant to which he pleaded

not guilty and claimed to be tried.

(v) Trial Court has examined in all total following 11 witnesses.

(1) P.W. 1 Hemant Madhukar Meshram (Exhibit 12) (2) P.W. 2 Mahadeo Shankar Narayane (Exhibit 15) (3) P.W. 3 Ashish Vilasrao Nagarale (Exhibit 16) (4) P.W. 4 Rajesh Gajananrao Alone (Exhibit 32)

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(5) P.W. 5 Imtiyas Mumtaz Siddiqui (Exhibit 33) (6) P.W. 6 Vilas Nathuji Nagarale (Exhibit 36) (7) P.W. 7 Raghunath Ramchandra Khamankar (Exhibit 39) (8) P.W. 8 Chandrakant Motiramji Sirsam (Exhibit 41) (9) P.W. 9 Gulabsingh Gayansingh Solanki (Exhibit 47) (10) P.W. 10 Dr. Rafiq Ramjan Ali Mawani (Exhibit 51) and (11) P.W. 11 Dr. Seema Madhukar Shegaonkar (Exhibit 54)

Statement of accused/appellant was recorded under Section 313 of

Code of Criminal Procedure. He has denied material incriminating

evidence against him.

(vi) After hearing the prosecution and defence, learned trial

Court discarded the evidence in respect of dowry death for the offence

punishable under Section 304-B of the Indian Penal Code. Learned trial

Court relied on the evidence of P.W. 2 and P.W. 6 in respect of oral

dying declaration stated by deceased and convicted the appellant for the

offence punishable under Section 302 of the Indian Penal Code holding

that appellant poured kerosene on the person of his wife Vishakha and

set her on fire.

3. Prosecution mainly relied on the written dying declaration,

Exhibit 43 recorded by P.W. 8. Prosecution has also relied on the dying

declaration recorded on video camera by P.W. 4 Rajesh Alone of Search

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T.V. channel. Prosecution also relied on oral dying declaration stated by

deceased to P.W. 2 Mahadeo Narayane and P.W. 6 Vilas Nagarale.

4. Defence of appellant is that deceased was cooking food at

the time of incident, stove was burst and, therefore, she caught fire and

sustained burn injuries. Learned counsel Shri Daga for the appellant

has submitted that it has come in the evidence of P.W. 2 and P.W. 6 that

statement of deceased was recorded by police but that statement is not

filed on record, therefore, material evidence is suppressed by the

prosecution.

5. Learned counsel Shri Daga has submitted that documents,

Exhibit 18, 19, 20, 25 and 27 show that Vishakha stated to the police

that she sustained burn injuries while cooking food. Learned counsel

pointed out spot panchanama, Exhibit 13, seizure panchanama,

Exhibit 14 and submitted that seized stove was on the spot and some

cooked food articles were lying there. The probable defence is proved

by the appellant, learned trial Court has not considered the same.

6. Learned counsel Shri Daga has submitted that trial Court

itself not relied on the dying declaration, Exhibit 43 recorded by P.W. 8

Executive Magistrate Sirsam. Learned trial Court also not relied on the

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evidence of P.W. 4 and P.W. 5. As per the evidence of P.W. 4, he had

recorded the statement of deceased in video camera. As per the

evidence of P.W. 5, C.D. was seized by the police in which the statement

of deceased was recorded. Learned trial Court not relied on this

evidence.

7. Learned counsel Shri Daga has submitted that P.W. 2 and

P.W. 6 are interested witnesses, therefore, their evidence should not

have been relied by the trial Court. Prosecution failed to prove the guilt

of appellant beyond reasonable doubt, hence, appeal be allowed and

appellant be acquitted for the offence punishable under Section 302 of

the Indian Penal Code.

8. Learned Additional Public Prosecutor Shri Gangane for the

State/respondent has strongly supported the impugned judgment. He

has submitted that evidence of P.W. 2 is well supported by the evidence

of P.W. 6. After the incident, on 19-4-2004, P.W. 2 and P.W. 4 came to

know about the incident. P.W. 6 is father of deceased and P.W. 2 is

brother-in-law of deceased. They went to General Hospital,

Chandrapur. They went to Burn Ward. Deceased Vishakha told them

that her husband/appellant came to house in the evening and asked

her as to why she did not serve food to his mother, therefore, there was

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quarrel between them. He taken her in bathroom, poured kerosene and

set her on fire.

9. Learned Additional Public Prosecutor has submitted that on

the basis of oral dying declaration stated by P.W. 2 and P.W. 6, trial

Court has rightly convicted the appellant for the offence punishable

under Section 302 of the Indian Penal Code. Learned trial court came

to the conclusion that there is no any evidence about the demand of

dowry. Evidence in that respect stated by her brother P.W. 3 not relied

by the trial Court. P.W. 2 and P.W. 6 not stated in respect of demand of

Rs. 50,000/- etc.

10. There is no dispute about the death of Vishakha. P.W. 11,

Medical Officer, Dr. Seema Shegaonkar has stated in her evidence that

she has conducted postmortem on the dead body of Vishakha. As per

her opinion, cause of death was due to 100% burn, accordingly, she

issued postmortem report, Exhibit 55.

11. Now it is well settled law that accused can be convicted on

the basis of sole dying declaration provided it is free from doubt and

inspire the confidence of Court. When the dying declarations are

contradictory or create doubt, it cannot be relied on. Hon'ble Supreme

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Court in the case of Khushal Rao vs. State of Bombay reported in AIR

1958 SC 22 laid down following guiding principles as to how dying

declaration is to be considered :

"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."

12. Deceased and appellant both were admitted in General

Hospital, Chandrapur. They were admitted in Burn Ward. Immediately,

Medical Officer informed to the Duty Police Officer in the hospital.

Exhibit 18 and Exhibit 19 were information given by Medical Officer to

the Duty Police Officer in the hospital.

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13. As per Exhibit 19, Vishakha had sustained 100% burn

injuries. Exhibit 20 is the report from Police Officer, Police Chowki,

General Hospital, Chandrapur to the Police Inspector. In this report, he

has stated that "on 18-4-2004 at about 21.30 Hours, Vishakha was

cooking food on stove, accidentally, stove burst and she sustained burn

injury about 100%. Her husband Ajay Deogade sustained 10% burn

injury." On the report/memo of Medical Officer, statements of both the

witnesses recorded and submitted with the report.

14. As per Exhibit 24, after death of Vishakha, Medical Officer,

Mrs. Maskar Madam gave information and it was recorded in Accidental

Death Register. In Exhibit 25, Accidental Death Report, it is mentioned

that Medical Officer Maskar gave report about the death and it is

written in the report that deceased Vishakha Ajay Deogade, aged about

18 years was cooking food on 18-4-2004 at about 9.30 p.m., stove was

burst. She sustained 100% burn. She was admitted in the night of

19-4-2004 at about 00.15 Hours at General Hospital, Chandrapur. She

died on 22-4-2004. It was informed to the Sub Divisional Officer vide

Exhibit 26. Same contents are written. The letter/form for the

postmortem, Exhibit 27 shows the contents that deceased Vishakha

sustained burn injuries while cooking food and she died on 22-4-2004.

10 jg.apeal.304.05.odt

15. It is well settled principle of criminal law that prosecution

has to prove the guilt of accused beyond reasonable doubt. Keeping this

principle in mind, we have to scrutinize all the evidence on record.

P.W. 1 Hemant Meshram has stated in his evidence that spot

panchanama, Exhibit 13 was prepared in his presence. Police has seized

stove, match stick etc. vide seizure panchanama, Exhibit 14.

16. P.W. 2 Mahadeo Narayane has stated in his evidence that

he came to know about the incident of burning on 19-4-2004. He has

stated in his evidence that marriage of Vishakha was solemnized on 19-

3-2004. She died on 19-4-2004. Her death is also unnatural by

burning. Therefore, it is clear that death of Vishakha was within 7 years

of marriage. To attract provisions of Section 304-B of the Indian Penal

Code, prosecution has to prove the ingredients of Section 498-A of

Indian Penal Code that death of Vishakha was in connection with

demand of dowry.

17. Evidence of P.W. 2 and P.W. 6 on this aspect is silent. Only

P.W. 3 Ashish Nagarale has stated in his evidence that after the

marriage, appellant was demanding Rs. 50,000/- and, therefore, he was

ill-treating her, beating her. Evidence of this witness is not corroborated

by the nearest relative i.e. P.W. 2 brother-in-law of deceased and P.W. 6

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father of deceased. Evidence of this witness (P.W. 5) is discarded by the

trial Court and, therefore, rightly acquitted the appellant for the offence

punishable under Section 304-B of the Indian Penal Code.

18. In respect of offence punishable under Section 302 of the

Indian Penal Code, the learned trial Court has relied on the oral dying

declaration stated by P.W. 2 and P.W. 6, before the Court.

19. Learned trial Court rightly discarded written dying

declaration, Exhibit 43 recorded by P.W. 8 Executive Magistrate Sirsam.

We have gone through the written dying declaration, Exhibit 43. From

the perusal of this dying declaration, it cannot be relied on because he

has not written the name of deceased in the dying declaration. In the

cross-examination, he has admitted that Medical Officer not certified

that patient was fit to give her statement. He has further stated that he

did not remember the name of patient. Even after reading Exhibit 43,

he cannot tell the name of patient, regarding contents of 'statement was

read out to patient' was earlier written. In Exhibit 43 contents that it

was readover is not in his handwriting. He has not mentioned in dying

declaration, Exhibit 43 that patient was in a position to give her

statement.

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20. From the perusal of Exhibit 43, it is clear that Medical

Officer not given any certificate to show that he examined the patient

before recording Exhibit 43 and found that she was fit to give the

statement. Therefore, learned trial Court has rightly discarded written

dying declaration, Exhibit 43.

21. Prosecution has examined P.W. 4 Rajesh Alone. He has

stated in his evidence that he was cameraman of local channel 'Search

T.V.', Chandrapur. On 19-4-2004 at about 5.00 p.m., he went to

General Hospital, Chandrapur to collect news in burn case of Vishakha.

He started video camera and recorded her statement. He has stated that

deceased stated that her husband quarreled with her, taken her in the

bathroom forcibly, poured kerosene and set her on fire. In the cross-

examination, he has admitted that police has not seized original video

cassette having the video clippings. His statement was recorded after

three months. They had not taken any permission from the Medical

Officer to record the statement.

22. P.W. 5 Imtiyaz Siddiqui has stated that he was operator of

Search T.V. Police seized one video clip. In the cross-examination, he

has admitted that video clip was not sealed at the time of seizure. The

video clip was shown to the appellant in the Court. He has denied that

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the lady shown in the picture was his wife. Original video recording not

produced before the Court. To prove the electronic evidence, certificate

as per Section 65-B of the Indian Evidence Act not produced before the

Court. Learned trial Court rightly not relied on the evidence of video

recording by P.W. 4. Prosecution failed to prove that the lady shown in

the picture was deceased Vishakha. Moreover, original recording not

produced before the Court. Appellant has specifically denied the

recording. Hence, learned trial Court rightly not relied on the evidence

of P.W. 4 and P.W. 5.

23. Learned trial Court relied on the evidence of P.W. 2

Mahadeo Narayane who is brother-in-law of deceased, resident of

Ghodpeth, Chandrapur and evidence of P.W. 6 Vilas Nagarale, father of

deceased. It is pertinent to note that evidence of these witnesses is to

be scrutinized very carefully because they are interested in prosecuting

the accused.

24. P.W. 2 has stated in his evidence that at the time of

settlement of marriage, there was demand of Rs. 30,000/-. They had

given Rs. 30,000/- to the appellant. Marriage of Vishakha was

performed with the appellant. In the cross-examination, he has

admitted that Rs. 30,000/- was spent by them at the time of purchase of

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clothes for marriage of bride. He has not stated anything more. He has

not stated about the demand of dowry etc.

25. There is no dispute that deceased had sustained 100%

burn. In such situation, whether she was able to talk/state to P.W. 2

and P.W. 6 is a question. As per evidence of Medical Officer Dr. Rafiq

Mawani (P.W. 10), in case of 100% burn, patient may become

unconscious at any stage. Patient was having deep burns over her face,

in such type of cases, nerve system of a patient get damaged. It may

happen that because of this condition, the patient may not have proper

functioning of lips. This admission shows that Vishakha was not in a

position to tell this witness that appellant poured kerosene and set her

on fire.

26. It is admitted by P.W. 2 and P.W. 6 that mother of Vishakha

was always with the patient in the General Hospital till her death but

prosecution has not examined mother of deceased. She was the best

witness who could have stated before the Court about the condition and

statement of deceased. As per the admission of Medical Officer

Dr. Rafiq Mawani, in case of 100% burn, patient many not be in a

position to state/give statement. Dr. Mawani himself not certified

before recording the dying declaration, Exhibit 43, when it was

15 jg.apeal.304.05.odt

recorded by Executive Magistrate Sirsam. Dr. Mawani has only certified

after recording the statement stating that she was fit to give her

statement. It is pertinent to note that why Dr. Mawani not certified to

the Executive Magistrate before recording the dying declaration, Exhibit

43 stating that patient was in a fit condition to give her statement, is not

explained.

27. P.W. 2 has admitted in his cross-examination that generally,

Medical Officer not allowed to enter in lady burn ward except the lady

members. He immediately not lodged the report after he had talk with

Vishakha. His statement was recorded by police after 7-8 days. He has

further admitted that police has recorded dying declaration of Vishakha.

28. P.W. 6 father of deceased has stated that on 19-4-2004, he

along with P.W. 2 went to General Hospital, Chandrapur. They went to

Burn Ward. They enquired from Vishakha as to how she sustained

burns, on that, she replied that appellant asked her as to why she did

not serve food to his mother. There was exchange of words between

them. Appellant poured kerosene on her person and set her on fire.

29. In cross-examination, P.W. 6 has admitted that they came

to know that police has already recorded statement of deceased before

16 jg.apeal.304.05.odt

they reached to the hospital. There is police chowki at the General

Hospital. He has further admitted that police told them that Vishakha

stated to them that she sustained burn injuries due to bursting of stove

while cooking food.

30. From the evidence on record, it is clear that learned trial

Court wrongly relied on evidence of P.W. 2 and P.W. 6. Vishakha had

sustained 100% burn. In such a situation, she might not been in a

position to state to P.W. 2 and P.W. 6 about the cause of death. As per

admission of Dr. Mawani in 100% burn cases, there was possibility of

damage to nerve system and patient may become unconscious.

31. P.W. 2 and P.W. 6 are the most interested witnesses for the

conviction of appellant. Their conduct itself shows that they tried to

rope all the family members of the appellant. Record shows that they

approached to police station and requested to record the statement of

deceased through Executive Magistrate.

32. Report, Exhibit 37 was lodged by P.W. 6 on 19-4-2004

itself. In the report, P.W. 6 stated the names of six family members of

the appellant alleging that they had committed the crime. This report

was lodged on 19-4-2004 but crime was registered on 26-4-2004.

17 jg.apeal.304.05.odt

Explanation given by P.W. 7 PSI Khamankar is not reliable. He has

stated in his explanation that he received dying declaration, Exhibit 43

late and, therefore, he could not register offence earlier. He has stated

that he was busy in other matters but his cross-examination shows that

he was on duty. He has stated in his cross-examination that he was on

duty in between 18-4-2004 to 26-4-2004. Then question arise why he

did not take cognizance of the report lodged by P.W. 6 on 19-4-2004.

33. As per the evidence of P.W. 9 PSI Solanki (Exhibit 47), he

seized video clipping from P.W. 5, arrested the accused but this witness

has not stated that video clipping was shown to the panch witnesses.

34. Evidence of P.W. 2 and P.W. 6 wrongly relied by the trial

Court more particularly, when the dying declaration, Exhibit 43 and

evidence of video recording by P.W. 4 discarded by the trial Court. It is

pertinent to note that P.W. 2 and P.W. 6 are the interested witnesses.

Their admissions in their cross-examination show that statement of

Vishakha was already recorded by the police but that statement not

produced on record. Exhibit 18, 19, 20, 25, 27 and 28 clearly show that

statement of deceased Vishakha was recorded by police. In her

statement, she had stated that when she was cooking food on the stove,

stove was burst, therefore, she caught fire and sustained burn injuries.

18 jg.apeal.304.05.odt

35. The defence of the appellant is that deceased sustained

burn injuries accidentally and therefore, died.

36. Accused has to prove probable defence and burden is not so

high as like the prosecution. Prosecution has to prove the guilt of

accused beyond reasonable doubt.

37. Probable defence appears to be proved by the appellant.

Documents at Exhibit 18, 19, 20, 25, 27, 28 and 30 clearly show that

deceased sustained burn injuries accidentally while cooking food. This

documentary evidence is well supported by the admission of P.W. 2 and

P.W. 6 in their cross-examination. They have admitted that when they

reached to the General Hospital, police told them that statement of

Vishakha was recorded by them. Police told them that Vishakha stated

in her statement that she was cooking food on stove, stove was burst

and she caught fire, therefore, sustained burn injuries. This evidence is

also supported by spot panchanama, Exhibit 13 and seizure

panchanama, Exhibit 14. On the spot of incident, no any kerosene can

was found. Stove was found on the spot of incident and it was seized as

per seizure panchanama, Exhibit 14. Therefore, it is clear that appellant

has established by probable defence that Vishakha sustained burn

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injuries while cooking food due to bursting of stove.

38. Learned trial Court not taken into consideration the

documentary evidence, Exhibit 18, 19, 20, 25, 27 and 28 in which the

contents are written that Vishakha had sustained burn injuries due to

bursting of stove at the time of cooking food. Learned trial Court also

not taken into consideration the admission given by P.W. 2 that they

were told by police that statement of Vishakha was already recorded

and she has stated in her statement that while cooking food, she

sustained burn injuries. Learned trial Court ought to have drawn

adverse inference against the prosecution for not producing the

statement of deceased on record. Admittedly, statement of deceased

was recorded by police but it is not produced on record. Therefore, it is

clear that statement is against the prosecution.

39. Evidence of P.W. 2 and P.W. 6 wrongly relied by the trial

Court. Their admission itself show that statement of deceased Vishakha

was recorded by police. P.W. 6 has specifically admitted in his cross-

examination that police told him that Vishakha had stated in her

statement that she sustained burn injuries due to bursting of stove while

cooking food. P.W. 2 admitted in his cross-examination that police has

recorded dying declaration of Vishakha. Therefore, it is clear that the

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dying declaration which was recorded by police not produced before the

Court. Oral dying declaration stated by P.W. 2 and P.W. 6 are not

reliable. Evidence of P.W. 2 and P.W. 6 in respect of dying declaration

stated by Vishakha creates doubt. Hence, in view of the judgment of

Hon'ble Supreme Court in the case of Khushal Rao vs. State of Bombay

(cited supra), oral dying declarations stated by P.W. 2 and P.W. 6 are

not reliable.

40. All the above discussion clearly goes to show that

prosecution has failed to prove the guilt of accused/appellant beyond

reasonable doubt for the offence punishable under Section 302 of the

Indian Penal Code. Hence, we pass the following order.

                                       ORDER

         (i)     The appeal is allowed.  

(ii) The impugned judgment is hereby quashed and set aside.

(iii) Appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code.

(iv) Fine amount if paid be refunded to the appellant.

         (v)     Bail bond of accused stands cancelled.

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


                        JUDGE                                       JUDGE
wasnik