Anup Datta Khandare (In Jail) vs State Of Maharashtra Thr. P.S.O. ...
2017 Latest Caselaw 7781 Bom

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

                         CRIMINAL APPEAL NO.441/2016

 Anup Datta Khandare,
 Convict No.C-8996,
 Aged about : 26 years,
 R/o Ambedkar Nagar,
 Ramabai Chowk,
 P.S. Wadi, Nagpur.
 Presently in Central Prison,
 Nagpur.                                                     ..... APPELLANT

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

 State of Maharashtra,
 Through P.S.O., Police Station,
 P. S. Wadi, Nagpur.                                         ... RESPONDENT

 -------------------------------------------------------------------------------------------
 Ms. S. H. Bhatia, Advocate (Appointed) for the appellant.
 Shri P. S. Tembhre, APP for respondent-sole.
 -------------------------------------------------------------------------------------------

                                CORAM:-    
                                            PRASANNA B. VARALE &
                                             ARUN D. UPADHYE, JJ.

DATED :

04/10/2017.

ORAL JUDGMENT : (PER PRASANNA B. VARALE, J.)

1. By the present appeal, the appellant Anup Datta

Khandare is challenging the Judgment and order dated 19/01/2015

passed by the learned 1st Additional Sessions Judge, Nagpur, thereby

convicting and sentencing the appellant/accused to suffer rigorous

imprisonment for life along with fine of Rs.1,000/-, in default of fine, to

suffer rigorous imprisonment for two months for the offence punishable

under Section 302 of the Indian Penal Code. He was also directed to

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suffer the sentence of rigorous imprisonment for one year along with

fine of Rs.500/-, in default of fine, to suffer rigorous imprisonment for

one month for the offence punishable under Section 498-A of the Indian

Penal Code. The learned Additional Sessions Judge further directed the

appellant that both the substantive sentences of imprisonment shall run

concurrently.

2. The case of prosecution which emerges from the record

and material is the marriage between the appellant and Ramabai @

Meenabai took place in the year 2009. The couple was blessed with

two sons. The unfortunate incident took place on 24/09/2012 at about

8.00 to 8.30 p.m. At the time of incident, the appellant, his deceased

wife, children and mother of the appellant were residing in a rented

premises/house of one Waghmare situated at Ramabai Chowk,

Ambedkar Nagar, Wadi, Nagpur and information was received to the

police that a lady is admitted in the hospital sustaining burns. The lady

was subjected to medical examination. The Executive Magistrate

Sau.Ujwala w/o Dilip Telmasare recorded dying declaration by

obtaining necessary certificate of fitness from the Medical Officer. The

said dying declaration was recorded on 27/09/2012. On 09/10/2012,

Ramabai, who was under medical treatment breathed last at about 6.15

p.m. Death information was forwarded. Accordingly, accidental death

entry was recorded as per Merg No.63/12. As per dying declaration

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recorded by the Magistrate, deceased Ramabai stated that from last 4

days prior to the incident, she was subjected to beating at the hands of

the appellant / accused and on the date of incident, the appellant beat

her on her left thigh and poured kerosene on the person of her and set

her on fire and fled away from the spot. Mother-in-law of Ramabai alias

Meenabai shifted the victim to Mayo Hospital.

3. On the basis of the dying declaration, Crime

No.149/2012 was registered at Wadi Police Station for the offence

punishable under Section 302 of IPC. Subsequently, the offence under

Section 498-A of IPC was added. Accordingly, usual formalities were

undertaken by the police authorities and the investigating agency, such

as effecting arrest of the accused, forwarding the dead body for post

mortem, receiving the report of post-mortem, drawing panchnamas

such as Spot Panchnama, Inquest Panchnama, forwarding the query

reports, receiving the information and recording the statement of

witnesses. On concluding the investigation formalities, charge-sheet was

filed in the Court of learned Judicial Magistrate First Class, Corporation

Court No.2, Nagpur. The offence being exclusively triable by the Court

of Sessions, the learned Magistrate committed the case to the Court of

Sessions for trial. Charge was read over and explained to the

appellant/accused who pleaded not guilty and claimed to be tried. The

defence of the appellant was of total denial and false implication. The

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statement of the appellant/accused under Section 313 of Cr.P.C. was

recorded.

4. Submissions were advanced by the learned counsel

appearing for the State i.e. APP as well as the counsel appearing for the

accused. The learned Sessions Judge framed the points for

consideration namely;

whether the prosecution proved that the appellant/accused with intention or knowledge, caused death of Ramabai @ Meenabai on 24/09/2012 by pouring kerosene on her person and setting her on fire and thus, the prosecution proved that since 2009 till the incident of 24/09/2012, the victim Ramabai was subjected to physical and mental ill- treatment with cruelty.

5. On an appreciation of the evidence on record, findings

were recorded in an affirmative by the learned Sessions Judge. The

prosecution examined as many as 9 witnesses to support its case. The

accused did not examine any witness or himself in support of his

defence.

6. The learned counsel Ms. Bhatia appointed for the

appellant submitted that the learned Sessions Judge committed an

error in placing implicit reliance on the version of the prosecution

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witnesses namely; the father and brother of the deceased. It was the

submission of Ms. Bhatia, learned counsel for the appellant that these

witnesses have admitted and deposed that the marriage between the

appellant and the deceased was against their will and wish. She

submitted that the marriage was an outcome of love affair between the

appellant and the deceased and as such, the same was not approved by

the family members. The family members, more particularly, the father

and brother were against the accused. Thus, it was the attempt of Ms.

Bhatia, learned counsel to submit that these witnesses were interested

witnesses and as they were carrying grudge against the accused, their

version ought not to have been accepted by the learned Sessions Judge.

Ms. Bhatia, learned counsel then submitted that the learned Sessions

Judge also failed to consider the aspect of inordinate delay caused in

recording the dying declaration or lodgment of the report against the

accused. Thus, the learned counsel prays for setting aside the judgment

and order passed by the Sessions Judge and seeks acquittal of the

appellant/accused.

7. Per contra, Shri Tembhre, learned APP for the State

supports the impugned judgment and order passed by the learned

Sessions Judge. The learned APP submitted that the prosecution led

clinching evidence against the accused, which is in the form of dying

declarations, one written and two oral dying declarations. The learned

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APP submitted that the written dying declaration was recorded by the

Executive Magistrate, which is free from any doubt. The learned APP

then submitted that the incident took place on 24/09/2012. The victim

was immediately shifted by none else, but by her mother-in-law in the

hospital. The victim was undergoing medical treatment and on

27/09/2012, the dying declaration was recorded. The learned APP

submitted that the delay of 2 days is not such an inordinate delay to

throw the dying declaration out of consideration, which is otherwise a

genuine and a truthful version free from any doubt or latches. The

learned APP further submitted that the medical evidence also supports

the case of prosecution. The learned APP then submitted that merely

because at the initial period, the father and brother were against the

love marriage of the accused and deceased, cannot be a reason to term

their evidence as untruthful. The learned APP submitted that the

version of these witnesses show that it was their initial reaction, but

subsequently the father visited the house of deceased. He then

submitted that merely because these witnesses are in relation with the

deceased or in her close relationship, is no ground for rejecting their

version stamping the same as untruthful version. The learned APP

submitted that truthful version coming out from a valid dying

declaration, can be the sole basis for recording conviction against the

accused and this is the settled position in law.

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8. As stated above, the prosecution case mainly rests on

the dying declaration insofar as death of victim is concerned, the

Inquest Panchnama and the post-mortem report proved by the Medical

Officer is the material supporting the case of prosecution. Though the

panchas have turned hostile, the panchnama is proved by the

Investigating Officer. It would be useful to refer to the Post-Mortem

Report. The appellant / accused had not disputed the cause of death as

the documents namely Post-Mortem Report and Inquest Panchnama

were admitted. Perusal of the Post-Mortem Report shows that 52% body

was subjected to burns. The upper part of the body namely; head, neck

and face - 9%, front of trunk - 16 %, back of trunk - 15%, right upper

limbs and left upper limbs - 6% each were subjected to burn injuries.

Column 21 of the Post-Mortem refers to congestion of both the lungs.

The Post-Mortem Report then refers to the opinion in respect of cause

of death and the same is septicaemia due to burns. Thus, the learned

Sessions Judge committed no error in arriving at a conclusion that the

deceased Ramabai @ Meenabai died homicidal death.

9. Now, the very important piece of evidence on which the

prosecution case rests is the dying declaration. It would be useful to

refer to the evidence of PW-2 - Sau. Ujwala Dilip Telmasre, Executive

Magistrate who recorded the dying declaration. In the examination-in-

chief, this witness refers the steps taken in detail, such as after receiving

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request letter for recording dying declaration, rushing to the hospital,

requesting the Medical Officer for his opinion, then examining the

victim on an endorsement of the Medical Officer certifying that the

patient was in a fit condition to give statement, removing the relatives

from the room and asking them to stay outside and recording of

statement in question-answer form, the reiteration that recording of the

dying declaration of the victim, was as per victim's say, obtained toe

impression on the declaration certifying with the endorsement that the

contents are true and correct. The witness also took caution for

assessing the mental health of the victim by asking some questions to

the victim before recording her dying declaration. Then, this witness

was subjected to cross-examination. Nothing is elicited in the cross-

examination so as to shake her version. There is nothing to suggest that

the dying declaration was recorded in the presence of relatives or it was

a tutored dying declaration. The dying declaration is brief dying

declaration concentrating on the appellant/accused beating on the left

thigh of the victim and pouring kerosene on the person of the victim

setting her on fire and running away from the spot. Then she states that

the victim was admitted in the hospital by her mother-in-law at 9.00

p.m. Exh. 25 refers the certain preliminary questions asked by the

Executive Magistrate satisfying herself that the victim was in a fit

mental condition to reply the queries and was in a fit mental condition

to record the dying declaration.

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10. Though Ms. Bhatia, the learned counsel made an

attempt to submit before this Court that the dying declaration ought not

to have been accepted by the learned Sessions Judge, we are unable to

accept the submission of Ms. Bhatia, learned counsel for the reason that

we do not find any infirmity or illegality in the dying declaration as

unreliable. The dying declaration satisfies the test of law. No error is

committed by the learned Sessions Judge in placing reliance on this

dying declaration, which is truthful one. Insofar as the other witnesses

are concerned, the father and brother of the victim were also subjected

to examination being witness No.1 (PW-1) and witness No.7 (PW-7).

11. PW-1- Santosh s/o Maroti Ganjare is the father of

victim. He deposed that the marriage between the accused and his

daughter - Ramabai @ Meenabai was solemnized sometime in the year

2009. The couple was blessed with two children and at the time of

incident, his daughter i.e. the victim was residing with her two sons and

appellant/accused in the area namely Gitti Khadan. After marriage, his

daughter was residing in the area of Gitti Khadan with two sons and the

accused. He then deposed that on 24/09/2012 at about 12.00 hours in

the night time, he received a telephonic call from mother-in-law of his

daughter informing that his daughter Ramabai @ Meenabai was

subjected to burns and was admitted in Mayo Hospital. Then, he

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deposed that he rushed to the Mayo Hospital along with his son, met

with daughter Ramabai @ Meenabai. Ramabai told him about the ill-

treatment caused to her by the accused and then, she further told that

on the day of incident, the accused poured kerosene on her body and

set her on fire. The witness then states that his daughter was in the

hospital from 15 - 16 days and thereafter, she died. This witness was

subjected to the cross-examination. Nothing is elicited from this witness

to create any doubt on his version. Same is the case of PW-7 i.e.

brother.

12. PW-7 - Suraj Santoshrao Ganjare, brother of the victim

gives similar version to his father and an attempt was made to submit

that the identity of the victim is doubtful and an attempt was made to

submit that in record, the name appears as Ramabai and in the dying

declaration, it refers to the Meenabai based on explanation offered by

these witnesses in the examination-in-chief itself. He states that

Ramabai was also known as Meenabai. On the contrary, the defence

could not establish that they were two different persons by name

Ramabai and Meenabai and it was the case of the mistaken identity.

The cross-examination of this witness hardly helps the defence. On the

contrary, it only supports the case of prosecution. It may be necessary

to refer to other formal evidence i.e. the evidence of the Investigating

Officer or the panchas who have turned hostile. In the statement under

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Section 313 of Cr.P.C., the appellant/accused, except denial, made no

attempt to challenge the prosecution evidence.

13. Thus, taking into consideration the evidence placed on

record by the prosecution and properly appreciated by the learned

Sessions Judge, we are of the opinion that no error is committed by the

learned Sessions Judge. The prosecution was successful in bringing the

evidence to establish its case that it was the appellant/accused, who

committed the crime in question. The evidence brought by the

prosecution, more particularly, in the form of dying declaration was

sufficient enough to base the conviction. The evidence in the form of

dying declaration was supported by the other material namely; oral

dying declarations made to the father and brother i.e. PW-1 and PW-7.

The medical evidence also supports the case of the prosecution.

14. In the result, we find that the challenge in this appeal

to the Judgment and order of the learned Sessions Judge clearly fails.

Resultantly, the appeal is dismissed.

15. The fees of Ms. Bhatia, learned counsel appointed for

the appellant, is quantified @ Rs.5,000/-.

                                  JUDGE                        JUDGE

 Choulwar