Bombay High Court
Rameshwar Ramkrishna Mankar vs State Of Mah. Thr. Pso Ps Kalama, ... on 13 September, 2017
Bench: Swapna Joshi
1 Judg 130917 apeal 427.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Criminal Appeal No.427 of 2003
Rameshwar Ramkrishna Mankar
aged 37 years, Occ.-Betal-shop,,
R/o. Paradi-Basti, near Hanuman Mandir, Paradi,
Nagpur (Now in Jail). .... Appellant.
-Versus-
State of Maharashtra,
through P.S.O. PS Kalamna, Nagpur. .... Respondent.
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None for the appellant.
Mr. S.B. Bissa, Additional Public Prosecutor for State.
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Coram : Mrs. Swapna Joshi, J.
th
Dated : 13
September, 2017.
ORAL JUDGMENT
This appeal has been directed against the judgment and
th
order passed by the learned 4 Additional Sessions Judge, Nagpur in
Sessions Trial No.188 of 1998 delivered on 05-07-2003, whereby the
learned trial Judge had convicted the appellant (hereinafter will be referred
as 'the accused') for the offence punishable under Section 498-A of the
Indian Penal Code and sentenced to suffer rigorous imprisonment for
three years and to pay a fine of Rs.200/-.
2] The learned trial Judge further convicted the accused for the
offence punishable under Section 306 of the IPC and sentenced to suffer
2 Judg 130917 apeal 427.03.odt
rigorous imprisonment for five years and to pay a fine of Rs.300/-, in
default of payment of total fine amounting to Rs. 500/-, the accused to
suffer rigorous imprisonment for one month.
3] I have heard Mr. S.B. Bissa, the learned Additional Public
Prosecutor for the State. The appellant/accused and his Counsel
remained absent. With the assistance of the learned APP, I have carefully
gone through the record of the prosecution case.
4] The facts leading to prefer this appeal can be summarised as
under :-
Deceased Mamta got married with the accused in the year
1988. After marriage, she was residing with a joint family for few years
and thereafter the deceased and the accused started residing separately
along with their children. The accused is having two sons namely PW-6
Amit and Sagar and one daughter namely Sneha out of the said wedlock
with deceased Mamta. It is the case of the prosecution that, the accused
used to consume liquor and under the influence of liquor, he used to beat
and quarrel with Mamta. In this manner, the accused illtreated her.
Deceased Mamta had informed her relatives about the said illtreatment
meted out to her at the hands of the accused. On the day of incident i.e.
on 16-01-1998 at about 1.30 pm, Mamta committed suicide by pouring
kerosene on her body and setting herself ablaze. Mamta was admitted in
Meyo Hospital, Nagpur for treatment. The statement of Mamta was
recorded by Police on the same day at about 5.45 pm. In her statement
Mamta disclosed that, on the earlier night of incident, at about 11.00 pm,
3 Judg 130917 apeal 427.03.odt
the accused returned to the house at about 11.00 pm by consuming liquor,
quarreled with her and abused her. He did not allow her to sleep for the
whole night. As the torture of the accused was unbearable to Mamta,
she set herself on fire on the next day at about 1.30 pm. Mamta died on
the same day at about 7.10 pm.
5] It is the case of the prosecution that both the brothers and
mother of Mamta visited the hospital and Mamta informed them that, on
the earlier night of incident, accused beat her by consuming liquor and
therefore she set herself ablaze. The brother of Mamta PW-1-
Shivshankar lodged the complaint against the accused (Exhibit-35). On
the basis of the said complaint, the offence was registered against the
accused under Sections 498-A and 306 of the IPC. At the relevant time,
PW-10-PSI-Manik was attached to Kalmana Police Station. On receipt of
telephonic message about receiving the burn injuries to Mamta, PW-10
proceeded to the place of incident and prepared spot panchanama
(Exhibit-51). He visited the hospital and enquired with the Medical Officer
whether Mamta is fit to give her statement and when Medical Officer
opined that Mamta is fit to give her statement, he recorded the statement
of Mamta (Exhibit-107). On the basis of the said statement, PW-10
registered the offence. Mamta died at about 7.10 pm on the same day.
PW-10 prepared inquest panchanama. He recorded the statements of
witnesses and after completion of the investigation, he submitted the
chargesheet in the Court of learned JMFC. The case was committed to
the Court of Sessions. The learned trial Judge framed the charge and on
4 Judg 130917 apeal 427.03.odt
hearing and on conducting the trial, on appreciation of the evidence, the
learned trial Judge was convicted the accused as aforesaid. The defence
of the accused was of total denial. Hence, this appeal.
6] I have carefully gone through the record and proceedings of
the case. The prosecution has heavily relied upon the dying declaration
of deceased Mamata. It is not disputed that Mamta died a suicidal death.
The dying declaration of Mamta has been recorded by PW-10. PW-10-
Manik stated that he had given request letter (requisition) Exhibit-82) to
the doctor and the doctor made an endorsement that the patient is fit to
give her statement and thereafter he recorded the statement of Mamta.
He then obtained the thumb impression of right hand of Mamta.
According to him, the statement was read over to Mamta and the said
statement was correctly scribed (Exhibit-107).
Significantly Mamta had received 98% burn injuries as
depicted from the P.M. report (Exhibit-47).
7] From the testimony of PW-10-Manik it is noticed that, the
certificate (Exhibit-82) which PW-10-Manik had obtained from the
Medical Officer does not reveal that the Mamta was mentally and
physically fit to give her statement. It is not clear from the said
endorsement that the Medical Officer was throughout present with Mamta
when the statement was recorded by PW-10-Manik. Similarly, the
testimony of PW-10-Manik does not make it clear that as to what time he
started recording the statement of Mamta and when he concluded it. It is
also not clear as to why PW-10-Manik has not summoned the
5 Judg 130917 apeal 427.03.odt
Executive Magistrate for recording the statement of Mamta. Thus, the
dying declaration was recorded by PW-10-Manik, does not inspire
confidence.
8] In this regard, the testimony of Medical Officer PW-7-
Dr. Laxmanrao Deshmukh shows that, on 16-01-1998, PW-9-Police
Officer ASI-Somkuwar has given him a request letter (Exhibit-82)
enquiring whether the patient is fit to give her statement or not. He put his
endorsement on the said letter that the patient is fit to give her statement.
9] The second dying declaration was recorded by PW-9-
Sitaram Somkuwar. according to PW-9, on 16-01-1998, he had given a
request letter (Exhibit-82) to the Chief Medical Officer and making enquiry
whether the patient is fit to give her statement or not. PW-9 stated that
the doctor opined that the patient is fit to give her statement. Thereafter,
he recorded the statement of deceased (Exhibit-104). PW-9 admitted
that he had not obtained the fitness certificate from the Medical Officer of
Mamta prior to recording the statement of Mamta. In view of the testimony
of PW-9 it is clear that, he had not obtained the medical certificate about
the fitness of Mamta. In view thereof, it is doubtful that Mamta was
mentally and physically fit before giving her statement to PW-9. The
statement recorded by PW-9, therefore, becomes a doubtful document
and no reliance can be placed upon the said dying declaration.
10] The prosecution relied upon the testimony of PW-6-Amit
who is the son of the deceased and the accused. He was aged about 10
years old at the time of incident and at the time of adducing evidence he
6 Judg 130917 apeal 427.03.odt
was aged about 14 years old. He deposed that, on the day of incident i.e.
on 16-01-1998, he had gone to school at 7 am. He returned home at 9.30
am in a recess of lunch. At that time his mother was present in the
house. He did not remember whether his father was present in the house
or not at that time. He took lunch and went to the school. He returned
home at about 12 o'clock in the noon. He took meals again at about 12 to
1 pm. His father had come to the house for lunch. His father asked for
meals to his mother. His father asked his mother to prepare food. His
mother replied that because of he beat her during night, she is not feeling
well. Despite that his mother started cooking food. His father directed his
mother to prepare food hurriedly. At that time his father quarreled with his
mother by saying that she had taken Rs. 20/- belonging to him. His
mother got annoyed. She took Can of kerosene with her. She poured
kerosene on her body and she took a match box with her. At that time the
accused said that, if she belongs to real family she would get herself
burnt. Thereafter, his mother set herself on fire. PW-6 further stated that
his father used to consume liquor frequently and also used to beat her
mother. It is significant to note that, in the cross examination PW-6 stated
that, he came to the Court along with his maternal uncle Bhagwan and
since evening he was with him. The Police and his maternal uncle had
read over to him his statement and obtained his signature.
11] In this context, it is significant to note that prior to recording
his evidence the prosecution had read over his statement to him,
therefore, in my view, it cannot be termed as refreshing his memory.
7 Judg 130917 apeal 427.03.odt
12] In case of Suresh s/o Purushottam Ashtankar v The State
of Maharashtra and another, reported in 2015 ALL MR (Cri) 4243, the
Division Bench of this Court relied upon the judgment of the Single Bench
of this Court, reported in 2007 ALL MR (Cri) 352, wherein it is observed,
"32. .............There would indeed be nothing wrong
in the witness refreshing his memory, but that ought
to be done before the Court and not outside the
Court. In order to test the veracity of a witness, he
would be required to recollect the incident out of his
own memory and should he falter on some material
aspect, he could be allowed to refresh his memory
with reference to the contemporaneous records of
the incident created by the police. It would not be
permissible for such witness to stealthily refresh his
memory before entering the Court and deposing
about the entire evidence giving minute details as if
he was reeling them out from his memory.
Therefore, the objection to the reliability of evidence
of PW-2 Prabhakar taken by learned Counsel for the
appellant is valid."
13] In view of the legal position, the testimony of PW-6-Amit who
was a child aged about 10 years old at the time of incident, cannot be
relied upon and he is not found to be a trustworthy and reliable witness. It
is well settled that the testimony of child witness can be relied upon
provided it is found to be cogent, reliable and trustworthy. With regard to
the testimony of PW-6-Amit, the learned Judge has observed that the
witness is a child witness and in order to avoid his cross examination, by
way of contradictions and omissions, his entire statement is marked as
Exhibit-56.
8 Judg 130917 apeal 427.03.odt
14] It appears that there were improvements in the version of
PW-6-Amit. The document (Exhibit-56) shows that, when the school was
over at 12 o'clock PW-6-Amit came home. At that time his mother was
sleeping in the kitchen. His sister was playing down stairs. He started
eating food. His mother woke up and picked up Can kept on the machine
(sewing machine) and poured kerosene on her body and picked up the
match box from the drop (drawer) and set herself on fire. PW-6-Amit
raised an alarm by shouting as to "mother caught fire, mother caught fire".
Thereafter, his grandmother, Mothi Aai (father's elder brother's wife) and
his father arrived at that place and they extinguished the fire by wrapping
blanket around his mother. They also poured water on the person of her
mother to extinguish the fire. Thereafter, his mother was taken to the
hospital. It appears that PW-6-Amit has made an improvement before the
Court and the said improvement creates a doubt whether the accused
was present at the place of incident when deceased set herself on fire.
Thus, the testimony of PW-6-Amit is not reliable at all. No credence can
be placed on his testimony.
15] The prosecution further relied on the testimony of mother of
deceased PW-2-Shantabai. As per the testimony of PW-2-Shantabai,
she had gone to the hospital and talked with Mamta. Mamta told her that
on the previous day accused had beaten her mercilessly by consuming
liquor intermittently and therefore she had got herself burnt. During the
cross examination she stated that, she had not lodged the report against
the accused about illtreatment of Mamta at the hands of accused. It is
9 Judg 130917 apeal 427.03.odt
noticed that, the statement of PW-2 was recorded after one month of the
incident. In the cross examination PW-2 denied that Mamta was not in a
position to speak during her stay at hospital. However. the post mortem
report indicates that Mamta had received 98 % burn injuries and even
the Medical Officer has not stated that whether Mamta was mentally and
physically fit to give her statement before her mother. Therefore, it is
doubtful whether Mamta had made any statement before her mother with
regard to the accused had beaten her mercilessly by consuming liquor
therefore she set herself on fire. Her testimony is not found to be a
reliable one.
16] The testimony of PW-1-Shivshankar Chakole who is the
complainant reveals that, Mamta had cohabited with accused for about
10 years. Accused was addicted to liquor. Accused used to quarrel with
Mamta and to beat her. Preceding two years of the date of incident,
accused and Mamta along with their children had started residing
separately from the joint family and the accused used to harass Mamta.
He stated that prior to the incident, on the occasion of Diwali, Mamta
visited his house. At that time she informed that, accused used to
consume liquor, beat her and quarrel with her. He told Mamta that
everything would be all right as children would grow up. He stated that
Mamta told harassment on phone and also she was making the
grievance about the accused repeatedly. On 16-01-1998 when he
received phone call that Mamta is burnt, he proceeded to the hospital. He
had a talk with Mamta. Mamta told him that, on the earlier day, the
10 Judg 130917 apeal 427.03.odt
accused quarreled with her, beat her and drove her out of the house. She
further told that because of continuous torture, she set herself on fire.
PW-2 lodged the complaint against the accused (Exhibit-35). PW-2
during the cross examination admitted that he had not lodged the
complaint against the accused, since the marriage of accused with
Mamta till her death. From the testimony of PW-2 it is not clear why he
has not lodged the complaint when Mamta was continuously
complaining him about the alleged illtreatment. At about 3.30 pm, he
reached to the hospital and at about 7.00 pm Mamta died since Mamta
had received 98% burnt. It is doubtful whether Mamta gave any
statement to PW-2 with regard to burn injuries and the alleged illtreatment
at the hands of accused just two to three hours prior to her death,
particularly when there is no evidence of the Medical Officer that Mamata
was fit physically and mentally to give her statement. Thus, the PW-1 is
not found to be a reliable witness.
17] This Court in the case of Sanjay Saosakde vs. The State of
Maharashtra, reported in MANU/MH/3207/2015 has, in similar
circumstances held that dying declaration should be voluntary and should
not be promoted and physical as well as mental fitness of maker is to be
proved by the prosecution. It is further held that the prosecution has
miserably failed to prove material aspect beyond reasonable doubt.
18] The Hon'ble apex Court in the case of S. S. Chheena vs.
Vijay Kumar Mahajan and another, reported at 2010 Mh.L.J. Online (Cri.)
(S.C.) 4 = (2010) 12 SCC 190, in para 25 observed that, the abetment
11 Judg 130917 apeal 427.03.odt
involves mental process of instigating a person or intentionally aiding a
person in doing of a thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide, conviction cannot be
sustained. The intention the legislature and the ratio of the cases decided
by this Court is clear that in order to convict a person under section 306 of
the Indian penal Code there has to be a clear mens rea to commit the
offence. It also requires an active act or direct act which led the deceased
to commit suicide seeing no option and that act must have been intended
to push the deceased into such a position that he committed suicide.
19] It is worthwhile to note that the query was made to the
Medical Officer about the fitness of Mamta just two hours prior to her
death and it is also the case of the witnesses that at about 3.30 pm they
visited the hospital and at that time they made enquiry with Mamta. It is
doubtful whether Mamta was physically and mentally fit to give her
statement at the relevant time. Thus the entire case of the prosecution is
doubtful. The learned trial Judge has not considered all these aspects
and erroneously come to the conclusion that the deceased was mentally
and physically fit to give her statement.
20] In view of above, it is held that the prosecution has failed to
prove its case beyond reasonable doubt. In these circumstances, the
benefit of doubt is to be given to the appellant/accused. The learned trial
Court has not properly evaluated the evidence led by the prosecution. In
view thereof, the judgment and order passed by the learned trial Judge,
needs to be quashed and set aside. Hence, the following order:-
12 Judg 130917 apeal 427.03.odt
O r d e r
(a) Criminal Appeal No.526 of 2003 is allowed.
(b) The judgment and order dated 05-07-2003 delivered
th
by learned 4 Additional Sessions Judge, Nagpur in
Sessions Trial No.188 of 1998, is quashed and set
aside.
(c) The appellant is acquitted of the offences under
Sections 498-A and 306 of I.P.C.
(d) The bail bond furnished by the appellant stands
cancelled.
(e) The fine amount, if any, deposited by the appellant be
refunded to him, if not withdrawn.
(f) Muddemal property be dealt with as directed by Trial
Court after the appeal period is over.
JUDGE
Deshmukh
