Santosh S/O Mukindrao Ingle And ... vs State Of ...
2017 Latest Caselaw 7609 Bom

 apeal254of02.odt                           1



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


                     CRIMINAL APPEAL NO.254 OF 2002


 1        Santosh s/o. Mukindrao Ingle,
          aged about 25 years,

 2        Ramesh s/o. Zinguji Ingle,
          aged about 42 years,

          Both resident of Jambha (Bk),
          Taluka Murtizapur,
          District Akola.                                    ...APPELLANTS


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


          The State of Maharashtra,
          Through Police Station Officer - 
          Borgaon Manju, District Akola                      ...RESPONDENT

   ----------------------------------------------------------------------------------------
          None for the appellants
          Mr. A.V. Palshikar, Addl. Public Prosecution for the 
          respondent / State
   ----------------------------------------------------------------------------------------

                                   CORAM:            ROHIT B. DEO, J. 

                                   DATE:                th
                                                     27    SEPTEMBER, 2017.


 ORAL JUDGMENT

The appeal was listed on 30.3.2017, neither the

appellants nor the counsel appeared. On 6.7.2017, this Court

recalled the order dated 5.6.2002 of suspension of sentence and

grant of bail and issued non-bailable warrant to secure the

presence of the appellants.

2 The appeal was then listed on 9.8.2017. The learned

counsel Shri. V.G. Bhamburkar appeared on 9.8.2017. The appeal

was listed for hearing on 23.8.2017. The appellants alongwith the

learned counsel Shri. Bhamburkar appeared before this Court on

23.8.2017. The learned counsel assured the Court that the appeal

shall be worked out on 29.8.2017. In view of the said assurance,

the order directing issuance of non-bailable warrant was recalled

and the order of suspension of sentence and grant of bail was

restored. Record reveals that the appeal was listed for hearing on

26.9.2017. Again, neither the appellants nor the learned counsel

Shri. Bhamburkar were present. This Court heard Shri.A.V.

Palshikar, the learned Addl. Public Prosecutor for some time and

directed that the appeal be listed on 27.9.2017 as part heard

matter.

3 Even today, there is no appearance on behalf of the

appellants. Considering the past conduct of the appellants, it is

obvious that this Court is not likely to have the benefit of

assistance of the learned counsel for and on behalf of the

appellants.

4 In view of the dictum of the Hon'ble Supreme Court

in Bani Singh Vs. State of Uttar Pradesh, AIR 1996(4)SCC720, I

intend to decide the appeal on merits after scrutinizing the record

with the assistance of the learned APP Shri. A.V. Palshikar.

5 Heard Shri. A.V. Palshikar, the learned Additional

Public Prosecutor for the respondent / State and with his able

assistance, I have scrutinized the record.

The appeal is directed against the judgment and order dated

29.4.2002 in Sessions Trial 32 of 2000 delivered by the 4 th

Additional Session Judge, Akola by and under which the

appellants were convicted of offence punishable under section 506

part II of Indian Penal Code ("IPC" for short) and sentenced to

suffer rigorous imprisonment for four years and to payment of fine

of Rs. 500/-. The appellants are however, acquitted of offence

punishable under section 306 of IPC.

6 The prosecution case, as is discernible from the oral

report lodged by Anil Khandare (PW 1) on 17.11.1999 is thus:

The informant states that Amrapali is one of the four sisters

of the informant and she was often harassed by Ramesh Ingle and

Santosh Ingle, the appellants (hereinafter referred to as "the

accused") who used to threaten that her modesty will be

outraged. Amrapali disclosed the threat to the informant and her

mother. The informant attempted to make the accused, see

reason but in vain. The accused continued to threaten Amrapali

that her modesty will be outraged and her brother will be killed.

Amrapali set herself afire between 2 pm and 3 pm on 16.11.1999

and when the informant asked her as to why she set herself afire,

she replied with tears in eyes that the accused harassed her by

giving threats that her brother Anil Khandare will be killed and

her modesty will be outraged.

On the basis of the oral report Exh. 13, offence punishable

under section 506 read with section 34 of IPC was initially

registered. Amrapali expired during treatment on 16.11.1999 at

10 pm or thereabout and offence under section 306 of IPC was

additionally registered against the accused. The culmination of

investigation led to submission of chargesheet in the Court of

Chief Judicial Magistrate, Akola who committed the case to the

Sessions Court. The defence as is discernible from the statement

under section 313 of the Code of Criminal procedure is of false

implication. A specific defence is taken that accused Santosh and

Karuna, the sister of the deceased were in love and although Ankit

and Karuna's mother were agreeable to the marriage proposal,

Mohan Ingle, Anil Khandae (Informant) and Somaji Ingle were

against the marriage and hence the false implication.

7 The learned Sessions judge was pleased to acquit the

accused, despite recording a finding that the prosecution has

established that the accused issued threats to the deceased

Amrapali which were to the effect that her modesty shall be

outraged and her brother will be killed. The learned Sessions

judge was however, persuaded to record a finding that the live

link between the threats issued to Amrapali and the suicidal death

is absent. Since the State has not challenged the acquittal of the

accused for offence punishable under section 306 of PC, I refrain

from making any further observations.

The case of the prosecution as is unfolded during the trial

draws support from the oral testimony of PW1 Anil Khandare -

the informant, PW 2 Vandana Khandare (sister of the deceased),

PW 3 Somnath Ingle (father in law of the informant Anil

Khandare) and the dying declaration Exh. 29 dated 16.11.1999.

8 PW 1 is Anil Khandare, the brother of the deceased.

He has deposed that deceased Amrapali told him 7 to 8 days prior

to her suicide that the accused were harassing her and used to

threaten her with outraging of modesty and rape. PW 1 has

deposed that he made effort to make the accused see reason. PW

1 has deposed that on 16.11.1999 Amrapali was alone in the

house since PW 1 was at the residence of his father in law and the

mother of the deceased was away to answer the nature's call. PW

1 has deposed that he saw smoke emitting from the house and

noticed that the door of the house was closed from inside. He

raised an alarm, then his wife, Mohan Ingle, Yogirj Ingle and

Bandu Khandekar rushed towards his house. Amrapali was

shouting "aigo aigo". The door was broken, Amrapali was lying

with burn injuries. Mohan Ingle poured water on Amrapali, she

was wrapped in a blanket and then the informant asked her as to

why she set herself afire. The response of Amrapali was that since

accused issued threats to kill "him" (reference is to the brother of

the deceased) and to rape her, she set herself ablaze. In the cross

examination, the testimony of PW 1 is not shakened. A suggestion

is given that on 15.11.1999 at 5 pm Mohan Ingle and Ankit

assaulted accused 1. The suggestion given is that Karuna and

accused 1 Santosh desired to marry and that PW 1 and Mohan

Ingle were against the marriage. Both the suggestions are denied.

PW 2 Vandana is the wife of PW 1 and the sister in law of

deceased Amrapali. PW 2 has stated that on 15.11.1999 accused

1 - Santosh attempted to assault Ankit and the informant. A

report was lodged at Borgaon Manju Police Station by PW 1 and

the brother of Vandana. PW 2 states that on 15.11.1999 at 9 pm

accused started hurling abuses, while standing in front of the

house of PW 2, that the accused will rape Amrapali, will

disembowel Anil Khandare and will cut the limbs of Mohan.

During cross examination, a suggestion is given to PW 2 that

altercation between accused Santosh and Ankit took place due to

the youngest sister of Amrapali. Further suggestion is given that

the accused 1 - Santosh and Karuna were intending to marry and

PW 2 Vandana and some relatives were against the marriage.

Both the suggestions are denied.

9 PW 3 Somnath, who is the father in law of PW 1 -

Anil Khandare, has deposed that on 15.11.1999 at 5 pm an

altercation took place between accused and Ankit Khandare.

Accused 1 Santosh attempted to assault Ankit with knife. The

informant Anil Khandare and Ankit went to lodge report at the

Borgaon Manju Police Station. Accused came near the house of PW

3 at 9 pm and started hurling abuses. The house of PW 1 is adjacent to the

house of PW 3. PW 3 has deposed that the accused were

threatening to murder Ankit, to rape Amrapali and to chop the

hands and feet of Mohan Ingle. Nothing is brought out in the

cross examination to impeach the credibility of PW 3. A

suggestion is given that on 16.11.1999 PW 1 and his wife

Vandana scolded Amrapali due to which Amrapali committed

suicide. The suggestion is denied. PW 3 has further denied the

suggestion that the accused were falsely implicated since some

relatives were not in favour of accused 1 marrying Karuna, the

younger sister of the deceased.

10 The evidence of PW 1 is consistent with the First

Information Report. The evidence of PW 2 and PW 3 is also

confidence inspiring. The defence of false implication has not

been probabilized even on the touchstone of preponderance of

probabilities. I am persuaded to agree with the finding recorded

by the learned Sessions Judge that issuance of threats by the

accused is established beyond reasonable doubt.

The final nail in the coffin of the defence is the dying

declaration Exh. 29. The Executive Magistrate who recorded the

dying declaration is examined as PW 5. The entire evidence of

PW 5 has gone virtually unchallenged. The Medical Officer who

examined Amrapali and issued the certificate that she was

conscious and fit to give the statement (Exh. 23) is examined as

PW 4. The Medical Officer has again examined Amrapali after

completion of recording of dying declaration and found her stable

and well oriented. The certificate issued by the Medical Officer

after completion of the recording of the dying declaration is Exh.

24. A suggestion is given to PW 4 that Amrapali was not in a fit

state to give statement, which suggestion is denied. PW 4 Medical

officer was extensively cross examined and the effort was to

extract an admission that with 98 per cent burn injuries, Amrapali

may not have been in the physical and mental condition to give a

statement. However, despite the gruelling cross examination, the

credibility of PW 4 is not impeached and his evidence is

confidence inspiring.

11 It would be apposite to refer to the relevant

observations of the Hon'ble Supreme Court in Ramesh and others

Vs. State of Haryana, reported in (2017) 1 SCC 529, which reads

thus:-

"31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State (NCT of Delhi), this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of

conviction if it is found to be reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or fact coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (see Rambai v. State of Chhatisgarh).

"32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police

officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the police or the Magistrate. In such a situation the doctor would be justified, rather duty-bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasised that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. As held in Khushal Rao. v. State of Bombay, this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the court (see Vikas v. State of Maharashtra).

"33. No doubt, the victim has been brought with 100% burn injuries. Notwithstanding, the doctor found that she was in a conscious state of mind and was competent to give her statement. Thus, the Magistrate had taken due precautions and, in fact, the medical officer remained present when the dying declaration was being recorded. Therefore, this dying declaration cannot be discarded merely going by the extend of burns with which she was suffering, particularly, when the defence has not been able to elicit anything from the cross examination of the doctor that her mental faculties had totally impaired rendering her incapable of giving a statement".

"36. In view of the specific certification by the doctor about the fitness of the deceased that she remained fit while recording the statement, the mere effect that she had suffered 100% burns would not, ipso facto, lead to the conclusion that the deceased was unconscious or that she was not in a proper state of mind to make a statement. At this stage, it would also be relevant to point out that no challenge was made by the defence to the aforesaid statement of the deceased on the ground that it was not made voluntarily or it was made by any extraneous circumstances or was the result of tutoring. In fact, even as per the appellants, it is they who had taken the deceased to the hospital and no other person known to her had come in her contact before the statement was recorded. On the contrary, P.W. 3 and P.W. 4 (father and brother of the deceased respectively) have not supported the prosecution version, which aspect shall be dealt with later at the appropriate stage and, therefore, the question of tutoring does not arise at all".

"37. On examination and analysis of the dying declaration in the aforesaid perspective, we do not find any reason to discard it having regard to the legal position on the subject already noticed above by referring to relevant case law. It is trite that dying declaration is a substantive piece of evidence and can be made the basis of conviction once the court is convinced that dying declaration is made voluntarily and is not influenced by any extraneous circumstances".

12 Since the accused are not represented in this

appeal, this Court has subjected the record to an intensive scrutiny

in order to satisfy conscious of the Court that the offence is proved

beyond reasonable doubt. Having done so, I have no hesitation in

recording a finding that the offence under section 506 part II is

proved beyond reasonable doubt.

13 However, in the facts and circumstances of the case, I

consider it appropriate to reduce the sentence to three years of

rigorous imprisonment.

14 The conviction is maintained. The accused are

sentenced to suffer rigorous imprisonment for period of three

years.

 15               Appeal is disposed of in the above terms.



  

                                                                  JUDGE




    R.S.Belkhede,
Personal Assistant.