State Of Mah. Thru. Police Station ... vs Dugabai Shaligram Mokalkar
2017 Latest Caselaw 7239 Bom

Judgment

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

                   CRIMINAL APPEAL NO.236 OF 2007

State of Maharashtra, through
Police Station Officer, Hiwarkhed,
Taluka, Telhara, District Akola.                     ..... Appellant.

                                 ::   VERSUS   ::

Durgabai Shaligram Mokalkar,
Aged about 70 years,
Occupation Labourer, R/o Khandala,
Taluka, Telhara, District Akola.                  ..... Respondent.

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           Shri V.A. Thakare, Addl.P.P. for the appellant/State.
           Shri S.G. Joshi, Counsel appointed for the respondent.
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                                CORAM : R.K. DESHPANDE &
                                                 V.M. DESHPANDE, JJ.

DATE : SEPTEMBER 16, 2017.

ORAL JUDGMENT (Per : V.M. Deshpande, J.)

1. The present appeal is directed against judgment

and order of acquittal passed by learned Ad hoc Additional

Sessions Judge at Akot (District Akola) dated 17.2.2007 in

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Sessions Trial No.5 of 2006. By the impugned judgment and

order, learned Judge of the Court below acquitted the

respondent for the offence punishable under Section 302 of

the Indian Penal Code.

2. We have heard learned Additional Public

Prosecutor Shri V.A. Thakare for the appellant/State and

learned counsel Shri S.G. Joshi appointed through The High

Court Legal Services Sub Committee at Nagpur to represent

the respondent/original accused, in extenso. With their able

assistance, we have gone through the record and proceedings.

3. According to learned Additional Public Prosecutor

Shri V.A. Thakare for the appellant/State, the order of

acquittal is required to be set aside inasmuch, as according to

him, learned Judge of the Court below has completely failed

to evaluate the prosecution case as it was brought on record

in view of dying declaration Exhibit 32 and oral dying

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declaration made by deceased to other prosecution witnesses.

He, therefore, submits that the appeal be allowed.

4. Per contra, it is the submission of learned counsel

Shri S.G. Joshi appointed for the respondent that the

judgment and order of acquittal, passed by learned Judge of

the Court below, is just and, therefore, merely because the

other view is possible, this Court as the Appellate Court

should be slow in substituting its view in place of the view

expressed by learned Judge of the Court below. He, therefore,

prays for dismissal of the appeal.

5. PW8 Kashinath Raghoji Chavan on 24.9.2005 was

working at Police Station Hiwarkhed. He was entrusted as

the station diary incharge on the said day from 8:00 p.m. to

8:00 a.m. of the next day. During his duty hours, a Police

Constable B.No.1640 of City Kotwali Police Station at Akola

came and handed over an envelope. The said envelope was

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containing (i) dying declaration; (ii) dying declaration memo,

and (iii) letter of Medical Officer to Police Officer. On the

basis of the said statement, PW8 Kashinath Chavan registered

a crime vide Crime No.76 of 2005 for the offence punishable

under Section 307 of the Indian Penal Code. The printed first

information report is at Exhibit 48. He, thereafter, handed

over the investigation to Police Station Officer Ravindra

Ramrao Kayande.

6. The first information report was registered on the

basis of dying declaration of Vanmala Mokalkar. Her such

statement was recorded by PW6 Naib Tahsildar Pralhad

Narayan Gedam. The statement of Vanmala is at Exhibit 32.

7. As per the dying declaration of Vanmala, on the

day of incident, i.e. on 24.9.2005, the respondent, who is her

mother-in-law, poured kerosene and set her ablaze.

8. After the investigation was entrusted, PW8 Police

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Station Officer at Police Station Hiwarkhed Ravindra

Kayande on 25.9.2005 visited village Khandala where Vanmala

used to reside. However, the house was locked. Therefore, he

could not inspect the spot. Thereafter, he went to Akola and

at Government Hospital at Akola recorded statement of victim

Vanmala. He also recorded statement of Shrikrishna, the

husband of Vanmala so also statements of neighbours. Spot

panchanama Exhibit 21 was drawn by him on 28.9.2005. At the

spot, he found an empty plastic bottle emitting smell of

kerosene and some burnt pieces of clothes. These articles

were seized under a separate seizure panchanama Exhibit 22.

9. During treatment, on 7.10.2005 Vanmala expired at

Government Hospital at Akola. After the receipt of papers, in

respect of her death, he converted the offence for the offence

punishable under Section 302 of the Indian Penal Code. After

completion of other usual investigation, he sent final report in

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the Court of learned Magistrate who committed the case to

the Court of Session. The Court of Sessions framed a charge

against the respondent below Exhibit 13 on 20.11.2006. The

respondent was charged for committing the offence

punishable under Section 302 of the Indian Penal Code. The

respondent denied the charge and claimed for her trial.

10. In order to prove its case, the prosecution

examined in all 11 witnesses and also relied on various

documents duly proved during the course of the Trial. The

statement of the respondent was recorded under Section 313

of the Code of Criminal Procedure, 1973 in which she claimed

that a false case was filed against her. She also examined one

defence witness Shrikrishna Mokalkar, the husband of the

deceased through which the defence tried to establish that

deceased committed suicide. Learned Judge of the Court

below acquitted the respondent mainly on the ground that

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looking to the age of the respondent and her feeble condition,

it was inherently improbable for her to overpower deceased

and pour kerosene on her body. Learned Judge of the Court

below also accepted the testimony of DW1 Shrikrishna

Mokalkar, the husband of the deceased and acquitted the

respondent.

11. As it could be seen from the record the incident of

burning of Vanmala has occurred inside the house and there

is no ocular version in respect of actual overt act on the part

of the respondent.

12. According to the prosecution, deceased Vanmala

made oral dying declaration to PW1 Dnyandeo Janrao Lakhe,

PW3 Indubai Dnyandeo Lakhe, and PW4 Meerabai w/o

Vishwanth Khanderao and a written dying declaration

recorded by PW6 Naib Tahsildar Pralhad Gedam.

13. According to PW1 Dnyandeo Lakhe, on the day of

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the incident, he heard shouts and cry. Thereafter, Vanmala

came to his house. That time, she was burning and fire was on

her body. He poured water and extinguished the flames on

her body. Then, he placed a blanket around her body and

took her to her house. At that time, DW1 Shrikrishna

Mokalkar came to the house since he had been to fetch water

from outside. According to the claim of this prosecution

witness, Vanmala informed him that her mother-in-law, the

respondent poured kerosene on her body and set her ablaze.

14. On a closure scrutiny of the evidence of PW1

Dnyandeo Lakhe, we are of the view that the claim of this

prosecution witness, about oral dying declaration being made

to him, is unacceptable.

According to this prosecution witness, Vanmala

came to his house in a burning condition and there he

extinguished the fire and, thereafter, she was brought back to

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her house.

In the cross-examination, this witness has

admitted that when Vanmala had been to his house, she did

not disclose anything about the incident nor she named

anyone. Not only that, in his cross-examination he has

admitted that he took 15 minutes' time for extinguishing the

fire and placing the blanket on her body and then she was

sitting at his house for some time.

15. Normally, it would be most natural on the part of

this witness at the time of extinguishing the fire to question

Vanmala as to how she received the burn injuries. There is no

disclosure on the part of Vanmala about the incident at his

place. Therefore, though this witness is a witness to the truth

to the extent that he saw the victim running to his house in a

burning condition and he extinguished the fire, in our

considered view, his claim that Vanmala gave oral dying

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declaration to him is his exaggerated version. Therefore, to

that extent his testimony cannot be believed.

16. Similarly, the evidence of his wife PW3 Indubai

Dnyandeo Lakhe cannot be accepted to the extent that

deceased made oral dying declaration to her. However, the

evidence of PW4 Meerabai w/o Vishwanth Khanderao shows

that when she went to the house of Vanmala, she noticed that

Vanmala had sustained burns due to fire, whereupon, as per

the version of PW4 Meerabai, she asked Vanmala as to why

she has done so. Thereupon, according to PW4 Meerabai,

Vanmala disclosed to her that the respondent poured

kerosene on her body and set her on fire. There is nothing in

the cross-examination of PW4 Meerabai to disbelieve her said

version. Therefore, we can safely rely on her testimony about

the oral dying declaration.

17. PW2 Sarangdhar Kisan Awchar has proved spot

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panchanama Exhibit 21 and seizure of articles under

Exhibit 22.

18. Written dying declaration Exhibit 32 is scribed by

PW6 Naib Tahsildar Pralhad Narayan Gedam on 24.9.2005. He

was discharging his duties as a Naib Tahsildar. The Police

Inspector, City Kotwali at Akola, through Police Constable

Pravin, sent a memo for recording dying declaration to this

prosecution witness. The said memo is at Exhibit 30. The said

Police Inspector requested Taluka Magistrate to record dying

declaration of patient Vanmala, a resident of Khandala, who

was admitted in the hospital on account of sustaining burn

injuries.

19. After getting such request from the Police

Authority, PW6 Naib Tahsildar Pralhad Gedam within 15-20

minutes proceeded to the General Hospital. On reaching to

the hospital, he met a doctor, who was on duty, who is PW7

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Dr. Chandan Shriram Jaiswal. PW6 Naib Tahsildar Pralhad

Gedam disclosed his intention to Dr. Jaiswal for recording the

statement of Vanmala. PW6 Naib Tahsildar Pralhad Gedam

also gave a letter to PW7 Dr. Jaiswal requesting him to

examine patient Vanmala. The said letter requesting Dr.

Jaiswal to examine the patient and to certify about the fitness

of Vanmala is at Exhibit 31. The evidence of PW6 Naib

Tahsildar Pralhad Gedam is duly corroborated in that behalf

by PW7 Dr. Jaiswal that Naib Tahsildar Pralhad Gedam had

been to the General Hospital and handed over requisition

Exhibit 31.

20. After the receipt of communication Exhibit 31,

PW7 Dr. Jaiswal along with PW6 Naib Tahsildar Pralhad

Gedam proceeded to Burn-Ward. There, PW7 Dr. Jaiswal

examined patient Vanmala. On his examination, he noticed

that Vanmala was able to give her statement. Accordingly, he

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gave fitness certificate (Exhibit 45).

21. Armed with the certification by PW7 Dr. Jaiswal

about the fitness of Vanmala that she is in a position to give

her statement, as per the evidence of PW6 Naib Tahsildar

Pralhad Gedam, before recording her statement he asked the

persons attending patient Vanmala to leave the Burn-Ward.

Thereafter, he started recording the statement. The

statement of Vanmala was recorded in the presence of PW7

Dr. Jaiswal, is the claim of PW6 Naib Tahsildar Pralhad

Gedam and the said fact is also duly corroborated by PW7 Dr.

Jaiswal.

22. As per the statement of Vanmala, on 24.9.2005 at

8:00 a.m., respondent Durgabai poured kerosene on her and

set her ablaze. According to statement of Vanmala, she was

having ill-treatment at the hands of the respondent. The

respondent used to beat her. She states in her statement that

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there is no ill-treatment to her at the hands of her husband.

The neighbours extinguished the fire and her husband

brought her to the hospital, is her statement. After recording

of statement was over, the same was read over to the

declarant and Vanmala admitted the contents as true.

Thereafter, the scribe, PW6 Naib Tahsildar Pralhad Gedam,

obtained her thumb impression on her statement. After

recording of her statement, Vanmala was again examined by

PW7 Dr. Jaiswal and he gave his certificate (Exhibit 46) that

Vanmala was fully conscious during recording of her

statement.

23. The cross-examinations of PW7 Dr. Jaiswal and

scribe PW6 Naib Tahsildar Pralhad Gedam show that there is

no impediment whatsoever in nature to accept their versions

in respect of the fact about recording of dying declaration of

Vanmala. The evidences of these two prosecution witnesses

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and contemporaneous documents show that utmost care of

following the procedure before and after recording of dying

declaration was scrupulously followed.

24. There is no circumstance by which it could be said

that dying declaration Exhibit 32 comes under the clouds of

suspicion. It is settled principle of law that a dying

declaration, which is free from any suspicious circumstance

and which inspires confidence, can be accepted and can be

the basis for conviction.

25. In the present case, learned Judge of the Court

below it appears that has given complete go-by to the settled

principle of law governing the field of dying declaration and

its value for recording conviction.

26. From perusal of the impugned judgment it appears

that learned Judge of the Court below has swayed away with

the fact that the respondent is having a feeble condition and,

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therefore, it was not possible for her to overpower the

deceased and, therefore, he has acquitted the respondent. He

has also relied upon the testimony of the husband of the

deceased, who happens to be the son of the respondent, to the

effect that Vanmala committed suicide by pouring kerosene

on herself.

27. The reasoning given by learned Judge of the Court

below has its inherent flaw. The relevant from dying

declaration, which is in Marathi, reads as under:-

fnuka d 24-9-2005 jkst h jkgrs ?kjh [ka MkGk ;k fVdk.kh ldkGh 8

oktrk ek>h lklq nqx kZ fgus ekÖ;k vax koj ?kklys V Qsdys o

ekphlph mxkGw u ekÖ;k va x koj Qs dyh R;keq Gs ek>h lkMh

isV yh--------------

[The emphasis is supplied by the Court].

28. From the aforesaid, it is crystal clear that the

deceased never claimed that she was caught hold by the

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respondent and, thereafter, kerosene was poured on her. She

states in her dying declaration that kerosene was thrown on

her person and ignited match stick was also thrown on her

body. For throwing kerosene and ignited match stick does

not require that the deceased ought to have been

overpowered by the respondent. Therefore, the reasoning

given by learned Judge of the Court below, in our view, is

unsustainable. In our view, learned Judge of the Court below

has not considered the available evidence on record in its

correct perspective rather considered in a perverse manner.

Therefore, this Court is required to upset the judgment and

order of acquittal.

29. Learned Judge of the Court below also ought to

have seen that there was no reason for the deceased to

commit suicide. No circumstance whatsoever is brought on

record by the defence or from the line of the cross-

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examination of the prosecution witnesses to show any reason

for committing suicide.

30. DW1 Shrikrishna Mokalkar, is son of the

respondent. Obviously, in order to save his mother, this

defence witness is claiming that the deceased committed

suicide. However, in absence of any reason for taking such a

step, this Court is disbelieving the defence witness.

31. Once it is established that the respondent has

thrown kerosene and has thrown ignited match stick, which

offence the respondent has committed and for what offence

she should be punished?

32. Learned Additional Public Prosecutor Shri V.A.

Thakare for the State submits that the respondent is required

to be punished for the offence punishable under Section 302 of

the Indian Penal Code. His submission will have to be

evaluated in the light of the available evidence of prosecution

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witnesses.

33. PW5 is Ramdas Govind Mankar. He is the father

of deceased Vanmala. His evidence shows that his daughter

was leading a happy marital life with her husband. His

evidence shows that initially after the marriage, the

respondent used to reside with Vanmala and her husband.

However, after some time, Vanmala started residing

separately, along with her husband, from the respondent. The

said fact is also corroborated by other prosecution witnesses.

Thus, it is established on record that at the time of incident

the respondent was not residing with the deceased and was

residing separately along with her other son Balkrishna. The

residence of said Balkrishna was near to the house of

Shrikrishna, the husband of the deceased.

34. The evidence of PW5 Ramdas Mankar shows that

before separation, Vanmala was having 'Sasurwas' at the

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hands of the respondent. That shows at the most that the

respondent was trying to have her upper hands in day-to-day

affairs of the household.

35. According to PW1 Dnyandeo Lakhe and PW3

Indubai Lakhe, who are neighbours of Shrikrishna, in the

morning they heard shouts and cry which according to PW1

Dnyandeo was due to quarrel between the respondent and the

deceased.

36. It is not the prosecution case that the respondent

with pre-meditation carried kerosene with her, reached to the

house of the deceased and, thereafter, poured kerosene on her

and set her ablaze. Though in Exhibit 32 Vanmala states that

the respondent used to beat her, in our view, her said version

is exaggerated one. At the time of incident, Vanmala was

residing separately from the respondent. PW1 Dnyandeo,

PW3 Indubai are totally silent in their evidence that at any

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point of time prior to the incident they had occasion to notice

beating of Vanmala at the hands of the respondent.

37. From the evidence of PW1 Dnyandeo Lakhe and

PW3 Indubai Lakhe one can reach to the conclusion that on

the day of the incident the respondent had been to the house

of the deceased. Her visit to the house of the deceased is also

not an unnatural and cannot be objected. The respondent was

visiting the house of her other son Shrikrishna.

38. At the time of incident, Shrikrishna, the husband

of the deceased, was not available in the house and he had

been to fetch water and he came to the house only after the

fire was extinguished by PW1 Dnyandeo Lakhe.

39. From the aforesaid, it is clear that when the

respondent visited the house of Shrikrishna in his absence, it

appears that there erupted a sudden dispute in between the

mother-in-law and the daughter-in-law which is duly

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corroborated by the version of PW1 Dnyandeo Lakhe and PW3

Indubai Lakhe and in that without there being any intention

on the part of the respondent it appears that the respondent

threw kerosene which was available on the spot. In our view,

considering the evidence on record, the present prosecution

case comes under exception 4 of Section 300 of the Indian

Penal Code.

40. The re-evaluation of the entire prosecution case

requires us to pass the following order:

ORDER

i) The criminal appeal is partly allowed.

ii) Judgment and order, passed by learned Ad hoc

Additional Sessions Judge at Akot (District Akola)

in Sessions Trial No.5 of 2006 dated 17.2.2007

acquitting the respondent for the offence

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punishable under Section 302 of the Indian Penal

Code, is hereby set aside.

iii) The respondent is convicted for the offence

punishable under Section 304 Part-II of the Indian

Penal Code and is directed to suffer jail sentence

for 5 years and to pay a fine of Rs.250/-.

iv) On failure to deposit the said fine amount, the

respondent shall further undergo simple

imprisonment for 15 days.

v) The respondent is directed to surrender her Bail

Bonds immediately. Else, learned Judge of the

Court below is directed to take necessary steps to

procure the presence of the respondent to serve

out the jail sentence.

vi) Learned counsel Shri S.G. Joshi appointed for

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the respondent by The High Court Legal Services

Sub Committee at Nagpur is entitled to receive

professional charges from the said Committee and

the fees are quantified at Rs.5000/-.

viii) The criminal appeal is partly allowed and

disposed of.

                             JUDGE                                         JUDGE 

!!  BRW  !!




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