Bombay High Court
Sanjay Shivaji Limbole vs The State Of Maharashtra on 12 October, 2017
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.98 OF 2010
Sanjay Shivaji Limbole
Age 21 years,
Adarsha Nagar, Plot No.27,
Old Kumbhari Naka,
Solapur.
(At present in District Prison,
Solapur) ... Appellant/
Orig. Accused
versus
The State of Maharashtra
(At the instance of
Vijapur Naka Police Station, Solapur) ... Respondent
.......
• Mr.Jaydeep D. Mane, Advocate for the Appellant.
• Mr.H.J. Dedhia, APP for the State/Respondent.
CORAM : A.A. SAYED &
SARANG V. KOTWAL, JJ.
RESERVED ON : 26th SEPTEMBER, 2017
PRONOUNCED ON : 12th OCTOBER, 2017
JUDGMENT (PER : SARANG V. KOTWAL, J.) :
1. The present Appeal is preferred by the Appellant
challenging the Judgment and Order dated 08/12/2009 passed
by the Ad-Hoc Additional Sessions Judge, Solapur, in Sessions
Nesarikar
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Case No.40/08, whereby the Appellant was convicted for the
offence punishable u/s 498-A of the Indian Penal Code and was
sentenced to rigorous imprisonment three years and to pay a
fine of Rs.500/- and in default of payment of fine to undergo
further simple imprisonment for nine months. The Appellant
was also convicted for the offence punishable u/s 302 of IPC and
was sentenced to suffer imprisonment for life and to pay a fine
of Rs.1,000/- and in default of payment of fine to undergo
simple imprisonment for 3 and ½ years. Both the sentences were
directed to run concurrently and the Appellant was given benefit
of set off u/s 428 of Cr.P.C.
2. The prosecution case pertains to the incident dated
07/10/2007, at about 04.00 p.m,. when the Appellant poured
kerosene on his wife Sunita and set her ablaze in their house at
Solapur. According to the prosecution case, the Appellant was
subjecting her to cruelty and harassment on account of unlawful
demand of gold and cash, which he was asking her to bring from
her parents and on her refusal to comply with his demand, he
committed her murder.
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3. The FIR in the present case was lodged pursuant to the
statement given by the deceased herself in the hospital to PI
Suryakant Phadnis, which was registered vide C.R.No.229/07 of
Vijapur Naka Police Station, Solapur, u/s 498-A of Cr.P.C. and
307 of IPC. After the death of the injured Sunita, the offence
was converted to section 302 from 307 on 09/10/2007. The
Appellant was arrested on 08/10/2007 at about 02.45 p.m. from
his house. After registration of the FIR, the investigation was
carried out, statements of various witnesses were recorded.
While the injured Sunita was still alive on 07/10/2007, even
before the FIR was registered, her Dying Declaration was
recorded by Special Judicial Magistrate in the hospital. Various
articles were sent to FSL for chemical analysis and after the
investigation was completed, the charge-sheet was filed on
18/12/2007. Thereafter the case was committed to the Court of
Sessions.
4. During the trial, the prosecution examined seven
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witnesses and the defence examined three witnesses. The
defence of the Appellant is that he was not at home when the
incident had taken place and the defence witnesses have tried to
show that the deceased had suffered burn injuries due to
bursting of stove.
5. P.W.1 Nehru Hanmant Pawar was the Maternal Uncle
of the deceased, who has deposed that Sunita was married with
the Appellant on 20/06/2007. He has further stated that Sunita
was also known as Sunanda. He has deposed that deceased was
frequently used to inform him and his family members that the
Appellant was demanding gold and cash and was persistently
asking the deceased to bring the same from her parental house
and as she did not comply with the demand, she was
continuously being illtreated and assaulted. He has deposed that
the Appellant was the son of Sunita @ Sunanda's paternal Aunt.
He has deposed that on 07/10/2007, he came to know that
Sunanda @ Sunita had suffered burn injuries and therefore they
rushed to hospital at about 05.30 p.m., but met her only at
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07.30 p.m. He further deposed that when he asked how she
suffered burn injuries, she informed that the Appellant had set
her on fire about 05.00 p.m. She had told this witness that since
she could not comply with the demand of the Appellant, he had
set her on fire and she had also informed that the Appellant had
assaulted her on 06/10/2007. She further informed him that her
mother-in-law and sister-in-law had brought her to hospital and
that she expired on 08/10/2007. In the cross-examination he
has denied that the marriage between the Appellant and the
deceased was a love marriage, he has denied that they got
married inspite of opposition from the family.
6. He has further admitted that his statement was not
recorded by the police and he has denied the suggestion that the
deceased had not made any Dying Declaration to him.
7. P.W.2 Manikbhau Kondiba Chougule was a Pancha for
the spot panchanama dated 07/10/2007 and was the Pancha for
inquest panchanama dated 08/10/2007. He has admitted that
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there was stove at the spot and when the spot panchanama was
conducted, it was not seized. P.W.7 Ayyub Shaikh was the Police
Naik who had carried the Muddemal articles to the C.A. Office,
Pune.
8. P.W.4 Dr.Ujwala Kshatriya had conducted post-mortem
examination on 08/10/2007 at about 01.00 p.m. and she had
noticed "Superficial to deep burns reddish black sooty, skin
peeled off at places due to burn, singeing of scalp hair, eye
brows, eye lashes, axillary hair present, smell of kerosene
present to scalp hair and body. There were 96% burns in all." In
the cross-examination she has stated that "both upper limbs
along with forearm and hands were also totally burnt. There
were superficial to deep burns on the palm."
9. Apart from this witness, the main evidence in this case
is in the form of Dying Declarations by P.W.3 Dayanand Shravan
Mane and P.W.6 Suryakant Phadnis. Before referring to their
evidence it is advantageous to refer to the evidence of P.W.5
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Dr.Sudhir Shinde, because he is the Medical Officer, who was
treating the deceased when she was admitted in the hospital and
who had given the endorsements on both these Dying
Declarations. He has stated that he was a residential Doctor at
the relevant time and on 07/10/2007 he was on duty. Sunita
was admitted at 04.15 p.m. He has deposed that Dr.Karyakarte
enquired with her regarding the cause of injuries and she had
told him that her husband had poured kerosene on her and set
her ablaze. Thereafter this witness Dr.Shinde had examined her.
He had found that the patient was fully conscious and well
oriented in time, place and name and her pulse, respiration were
normal. She was admitted in the ward at 05.55 p.m. Thereafter
he has deposed that the Magistrate visited the ward at 06.30
p.m. for recording her Dying Declaration. He has stated that in
the room, only he himself and the Magistrate were present near
the patient. He then examined the patient and found her to be
conscious, well oriented in time, place and name. After that, this
witness P.W.5 Dr.Sudhir Shinde gave his endorsement in writing
on the Dying Declaration. The Magistrate asked questions to the
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patient and replies were taken down in writing. After recording
of the Dying Declaration was over, Dr.Shinde again examined
her and found her to be in a position to give statement. The
statement was read over to her. She had admitted that the
contents were true and correct. Her left hand thumb impression
was taken on the Dying Declaration in his presence.
10. P.W.5 Dr.Shinde has further deposed that at about
07.00 p.m. PSI came to make enquiries and again at that time,
Dr.Shinde examined the patient in his presence and found that
she was in a position to talk and she was conscious and well
oriented in name, time and place and accordingly he made an
endorsement at the top of the second Dying Declaration. PSI
asked her about the incident and then again she stated that her
husband poured kerosene on her and set her ablaze. This
statement was also reduced in writing by PSI in his presence and
the statement was read over to her. She had admitted that even
this statement was proper and correct and then her left hand
thumb impression was obtained on the said Dying Declaration.
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He then again examined patient and found her to be conscious
with time, place and date and was in a position to give her
statement and thereafter again the endorsement was made by
him to that effect on the second Dying Declaration.
11. Thus, this witness has examined the patient on four
occasions, when her two Dying Declarations were recorded.
According to him the patient was fully conscious and well-
oriented and was in a position to give a statement which was
recorded as a Dying Declaration. Dr.Shinde has proved the
endorsements on both Dying Declarations. His examination was
directed mainly towards the burns on the arms and limbs to
throw doubt on the thumb impression. The cross-examination
was only in respect of the nature of burn injuries. There was no
serious challenge to her ability to give statement, when her
Dying Declaration was recorded.
12. In this background, two Dying Declarations recorded
by the Special Judicial Magistrate and PSI, have to be examined.
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The first of these Dying Declarations was recorded by P.W.3
Dayanand Mane, Special Judicial Magistrate in between 06.30 -
06.45 p.m. He has stated that he was requested by the police
officers of Vijapur Naka police station for recording Dying
Declaration of the patient Sunita. He has stated that when he
reached the hospital, he enquired from the Doctor whether the
patient was in a conscious condition. He further deposed that
the Doctor examined her and stated that she was in a condition
to speak and was in a conscious condition and doctor made an
endorsement on the paper, on which the Dying Declaration was
to be recorded. This witness has deposed that he himself
ascertained whether she was in a conscious condition, whether
she was in a position to talk and made enquiries with her. He
has deposed that he himself found that she was in a position to
talk and was conscious. She gave proper answers to the initial
introductory questions. Thereafter she narrated the incident. She
has stated in her Dying Declaration that on 06/10/2007 the
Appellant had quarreled with her. On 07/10/2007 at about
08.00 a.m. the Appellant had spoken about her mother in
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abusive language and had demanded cash and gold. He
quarreled with her on that count. At about 04.00 to 04.30 p.m.
he poured kerosene on her and set her ablaze by lighting a
match stick. Her narration was reduced into writing. Again
medical officer gave his endorsement about her condition. The
said Dying Declaration was exhibited vide Ex.21.
13. The other Dying Declaration was recorded by PI
Phadnis. He has deposed that first he went to the hospital on
receiving information about the incident. Then he requested the
Special Judicial Magistrate to record her statement, which was
duly recorded and after that he enquired with Dr.Shinde
whether she was in a position to give her statement. Thereafter
Dr.Shinde examined her and gave his endorsement, being
satisfied that she was in a position to give such statement and
gave his endorsement to that effect after examining her.
Thereafter deceased Sunita narrated that the Appellant was
addicted to liquor and was demanding money and gold from her
parents. On 06/10/2007 she was assaulted by the Appellant. On
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07/10/2007 also at about 08.00 a.m. she was assaulted by him
and at 04.00 p.m. on that day he picked up quarrel, repeated his
demands and on her refusal to comply with the demands, he
poured kerosene on her and lighted a match stick and threw it
on her and she caught fire. She ran towards the door. The
Appellant ran away. The mother-in-law and sister-in-law of
deceased Sunita, took her to the hospital. After recording of her
Dying Declaration it was read over and was found to be true and
correct. Again the endorsement of the doctor about her mental
condition was sought and obtained. Thereafter, thumb
impression was obtained on the Dying Declaration. The said
Dying Declaration was exhibited vide Ex.33 during trial.
14. As against these two Dying Declarations, the defence
has examined three defence witnesses to prove that the
deceased suffered burn injuries because of bursting of stove and
the Appellant has not committed any offence. D.W.1 Vidya
Robert Jodhpurkar used to reside near the house of the
Appellant. She was a married lady and used to visit her parental
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house, which was near the house of the Appellant. According to
her, at the time of incident, she heard shouts and cries and when
she reached there, she saw Sunita was lying there in a burnt
condition. This witness has further stated that injured Sunita
told her that when she was preparing tea, there was sudden
burst of flame of the stove and she caught fire.
15. D.W.2 Parvati Shankar Mane was another neighbour
and she has stated that the Appellant was having cordial
relations with the deceased and on the day of incident, at about
04.00 p.m., she heard commotion and she came out of her
house and saw that Sunita was lying in the open space in front
of her door, she had caught fire and was burnt. This witness has
not spoken about any oral Dying Declaration made by the
deceased Sunita.
16. D.W.3 Jaya Hiralal Nimbole is the sister-in-law of the
Appellant. She has stated that the Appellant was at Pune on the
date of incident. On 07/10/2007, at about 04.00 p.m., she
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heard burst of flame of the stove. When she went inside the
Appellant's house to see what had happened, she saw that the
burner of the stove had burst and Sunita had caught fire.
Thereafter she was removed to the hospital by this witness. She
has stated that the neighbour Parvati, Vidya helped Sunita in
extinguishing the fire. She has further deposed that Sunita's
mother reached in the hospital and had told Sunita to blame the
Appellant for her injuries and that she should tell the police that
the Appellant had set her on fire. This witness had requested
Sunita to speak the truth and not to implicate the Appellant
falsely.
17. We have heard learned counsel Mr.Jaydeep Mane,
Advocate for the Appellant and Mr.H.J. Dedhia, learned APP for
the State.
18. The learned counsel Mr.Jaydeep Mane for the
Appellant submitted that the evidence of prosecution is very
doubtful and has not proved the case against the Appellant. As
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against this, the evidence of the defence witness was more
truthful and therefore the benefit of doubt should be given to
the Appellant. He has further submitted that the deceased had
suffered 96% burns and her limbs were totally burnt, it was not
possible that the Dying Declaration would show clear ridges of
her thumb impression. He has further submitted that as per the
defence witness No.3, the Appellant was not even in Solapur
when the incident had taken place and he was at Pune. He has
further submitted that the endorsements given by Dr.Shinde are
very doubtful and should not be relied on. It is submitted that
the Dying Declaration recorded by the P.W.6 Suryakant Phadnis,
is doubtful, as a person who had 96% burn injuries, could not
have given such a long statement. As against that, Mr.Dedhia,
the learned APP submitted that the prosecution has sufficiently
proved the case against the Appellant. There is no reason as to
why two Dying Declarations recorded by the Appellants by
P.W.3 and P.W.6 should not be relied on.
19. We gave our thoughtful consideration to the above
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submissions. We find that the evidence of P.W.3 Dayanand
Mane, SJM and his recording of Dying Declaration at Ex.21 is,
reliable. This witness was an experienced officer and had
recorded about more than 200 Dying Declarations. He has taken
all the necessary precautions before recording the Dying
Declaration. He had enquired with the Medical Officer, who was
treating the patient. He himself asked questions to find out
whether she was in a position to give proper statement and only
after he was satisfied, he recorded the Dying Declaration. He
had asked preliminary questions to find out whether she was in
a position to give her statement. There is hardly any infirmity in
the Dying Declaration Ex.21 recorded by this witness P.W.3
Dayanand Mane, SJM.
20. As far as the second Dying Declaration, Ex.33, is
concerned, it is recorded by P.W.6 PI Suryakant Phadnis. On this
Dying Declaration also at the beginning, before starting
recording of the Dying Declaration and after it was completed,
the Medical Officer has given clear endorsements. Though there
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are some more details given in this Dying Declaration, it can be
seen from the evidence that anyway the first Dying Declaration
was recorded between 06.30 to 06.45 p.m. and second Dying
Declaration was recorded at 07.30 p.m. Thus, she was in a good
mental condition for a period of one hour. There was nothing
unusual if she had given little more details in her second Dying
Declaration. However, as far as the main incident is concerned,
both Dying Declarations are consistent.
21. Mr.Mane, the learned counsel for the Appellant
submitted that, since both the limbs were totally burnt, it was
not possible that the thumb impression of the deceased would
show clear ridges. In this connection, the Medical Officer who
had conducted post-mortem has stated that there were
superficial to deep burns on the palm. The defence has not
asked any specific question as to whether the burn injuries on
the thumb were superficial or deep. In the absence of any such
cross-examination, it could not be inferred that the thumb
impression would not show ridges at all.
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22. Mr.Mane further submitted that the evidence of the
Medical Officer Dr.Shinde does not inspire confidence and his
endorsement appears to have been given as an afterthought. We
are unable to record any such findings, we find that the
deposition of Dr. Shinde is quite reliable. He is an independent
witness and he has absolutely no reason to support the
prosecution case. Dr.Shinde has examined the patient on four
occasions, twice each in case of each of the Dying Declarations
and every time he had conducted the proper investigation and
has given proper endorsement about the fit mental condition of
the patient to give those Dying Declarations. Therefore we see
no reason as to why this evidence should be discarded.
23. Dr.Shinde was present when both Dying Declarations
were recorded and he has also supported the version of P.W.3
and P.W.6 that the patient told them that the Appellant had
poured kerosene on her and had caused burn injuries. Thus, we
find that both these written Dying Declarations are duly proved
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by the prosecution. They are consistent with each other and
therefore we are inclined to rely on these two Dying
Declarations.
24. The evidence of Dr.Kshatriya P.W.4 shows that the
medical analysis of the scalp hair and skin sample sent for
analysis showed presence of kerosene. Thus, if it was the case of
accident, there was no reason as to why the kerosene would
appear on the scalp. As against that, this circumstance
corroborates the prosecution case that the Appellant had poured
kerosene over her. This is an additional circumstance against the
present Appellant.
25. The prosecution has relied on another circumstance
that the clothes of the accused showed presence of kerosene.
However, we do not find that, this circumstance is properly
proved by the prosecution. The Appellant was arrested on
08/10/2007 and his clothes were seized on 11/10/2007. There
is no explanation as to why the clothes were not immediately
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seized and therefore we are not holding this circumstance
against the present Appellant. Mr.Mane the learned counsel,
invited our attention to the evidence given by the defence
witnesses and submitted that the evidence should be accepted in
favour of the Appellant. Though, D.W.1 Vidya Jodhpurkar has
stated that, the deceased had made oral Dying Declaration to
her that, she suffered burn injuries because of bursting of the
stove. However, D.W.2 Parvati Mane, who was also supposed to
be present there, does not depose about any such Dying
Declaration. D.W.3 Jaya Nimbole has stated that all these
witnesses were at the spot. D.W.1 Vidya Jodhpurkar actually
was a married lady and was residing somewhere else, but she
used to visit her parents' house often. D.W.3 Jaya Nimbole
stated that the Appellant was in Pune on the date of incident.
However, the Appellant himself has not taken this defence of
alibi and even in his statement u/s 313 he has not stated that he
was in Pune on the date of incident. Therefore, it is quite clear
that all the defence witnesses and in particular D.W.3, who was
the sister-in-law of the Appellant, are trying the save the
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Appellant and we do not find that their evidence is reliable
enough.
26. With the result, we find that there is no merit in the
Appeal. Hence following order :
ORDER
The Appeal is dismissed.
(SARANG V. KOTWAL, J.) (A. A. SAYED, J.)
