Bombay High Court
The State Of Maharashtra vs Shankar Bapu Jamdate on 15 January, 2018
Bench: Anuja Prabhudessai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 88 OF 2002
The State of Maharashtra .....Appellant
v/s.
Shankar Bapu Jamdade ......Respondent
Ms. A.A.Takalkar, APP for the Appellant-State.
Mr. Abhaykumar Apte, Adv. appointed for the Respondent.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
DATED : JANUARY 15, 2018.
ORAL JUDGMENT :-
1. The State has challenged the Judgment and Order dated 23 rd
October, 2001 in Sessions Case No. 184 of 2000, whereby the learned
4th Ad-hoc Assistant Sessions Judge, Kolhapur has acquitted the
respondent/accused of offence under Section 306 of the Indian Penal
Code.
2. Since the accused was not represented by any advocate, Mr.
Abhaykumar Apte is appointed as amicus curiae. Heard Ms. A.A.
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Takalkar, learned APP for the State and Mr. Abhaykumar Apte,
learned Counsel for the Respondent. I have perused the records and
considered the submissions advanced by the learned Counsels for the
respective parties.
3. The brief facts necessary to decide this appeal are as under :-
(i) Sunita Shankar Jamdade, wife of the respondent-accused had
set herself ablaze on 26th June, 2000. She was admitted in Sangli
Civil Hospital with severe burn injuries. PW9 who was on duty at the
said hospital recorded the statement of Sunita. Said Sunita had
alleged tht the respondent accused had subjected her to cruelty. He
used to pressurize her to give divorce. He used to abuse her parents
and used to ill-treat her. She claimed that due to the constant
harassment and in a fit of anger, she poured kerosene on her body
and set herself ablaze.
(ii) Sunita expired on 29th June, 2000. On 30th June, 2000 PW7-
Dr. Sanjay Bhave had conducted post-mortem over the body of
Sunita. He opined that said Sunita had expired due to shock as a
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result of 94% burn injuries.
4. The statement of Sunita was forwarded to Jaisingpur Police
Station. On receipt of the said statement, PW4 API Appasaheb Koli
registered Crime No. 73 of 2000 for offence under Section 306 of
IPC. He recorded the statements of the parents of the deceased,
conducted panchanama, seized all the incriminating material and on
completion of investigation he filed the chargesheet.
5. Upon the case being committed, charge was framed and
explained to the accused. The accused pleaded not guilty and
claimed to be tried.
6. The prosecution, in support of its case examined 10 witnesses.
The statement of the accused was recorded under Section 313 Cr.P.C.
Upon appreciating the evidence on record and considering the
submissions advanced by the learned Counsels representing the
respective parties, the learned Adhoc Addl. Sessions Judge acquitted
the respondent-accused of the aforesaid crime. Being aggrieved by
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the said order, the State has preferred this appeal.
7. Heard Ms. Takalkar, learned APP for the State, and Mr. Apte
learned Counsel for the respondent-accused. I have perused the
records and considered the submissions advanced by the learned
Counsel for the respective parties.
8. At the outset, it may be mentioned that in Aruvelu & Anr. vs.
State represented by the Public Prosecutor, (2009) 10 SCC 206, the
Apex Court has observed thus :-
"39. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC
450, a two Judge Bench of this Court of which one of us
(Bhandari, J.) was a member had an occasion to deal with
most of the cases referred in this judgment. This Court
provided guidelines for the Appellate Court in dealing with
the cases in which the trial courts have acquitted the
accused. The following principles emerge from the cases
above:
1. The accused is presumed to be innocent until proven
guilty. The accused possessed this presumption when he was
before the trial court. The trial court's acquittal bolsters the
presumption that he is innocent.
2. The power of reviewing evidence is wide and the
appellate court can re-appreciate the entire evidence on
record. It can review the trial court's conclusion with respect
to both facts and law, but the Appellate Court must give due
weight and consideration to the decision of the trial court.
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3. The appellate court should always keep in mind that the
trial court had the distinct advantage of watching the
demeanour of the witnesses. The trial court is in a better
position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise
disturb the trial court's acquittal if it has "very substantial
and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one
that leads to acquittal, the other to conviction - the High
Courts/appellate courts must rule in favour of the accused...
40. This Court in a recently delivered judgment State of
Rajasthan v. Naresh @ Ram Naresh 2009(11) SCALE 699
again examined judgments of this Court and laid down that
"An order of acquittal should not be lightly interfered with
even if the court believes that there is some evidence
pointing out the finger towards the accused. This Court has
dealt with the scope of interference with an order of
acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to the
definite conclusion that the appellate court should be very
slow in setting aside a judgment of acquittal particularly in
a case where two views are possible. The trial court
judgment can not be set aside because the appellate court's
view is more probable. The appellate court would not be
justified in setting aside the trial court judgment unless it
arrives at a clear finding on marshalling the entire evidence
on record that the judgment of the trial court is either
perverse or wholly unsustainable in law."
9. In the instant case, the dying declaration of the deceased Sunita
was recorded by PW9 Maruti Shinde, who at the relevant time was
on duty at Sangli Civil Hospital. The testimony of PW9 indicates that
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on 26.10.2000 Sunita Jamdade was admitted in Sangli Civil Hospital
with burn injuries. Dr. Niraj Rayate was on duty in the burns ward.
He requested Dr. Rayate to examine the patient and to certify her
condition. Accordingly, Dr. Rayate examined Sunita and certified that
she was in a fit condition to make a statement. PW9 thereafter
recorded the statement of Sunita, which is at Exhibit 32. He has
stated that he had read over the said statement to Sunita and that
she had confirmed that the contents of the statement were as per her
say.
10. The prosecution has also examined PW5 Dr. Neeraj Rayate. This
witness deposed that on 26th June 2000 he was on duty at Sangli
Civil Hospital. On the said date, at about 1.45 pm a patient was
admitted in the burns ward. The police personnel had visited the
burns ward and had requested him to examine the patient and to
certify whether she was in a fit condition to give her statement. He
has deposed that he had examined the patient and certified that her
condition was good and that she was capable of giving statement.
He had made an endorsement to that effect on the statement /dying
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declaration recorded by PW9.
11. It may be mentioned that as far as the dying declaration is
considered, the law is well settled, In Shantabai vs. State of
Haryana, AIR 2007 SC 2709 the Apex Court has summarized the
law on the dying declaration as under:
"..Though the dying declaration is entitled to great weight,
it is worthwhile to note that the appellant has no power of
his cross examination. Such a power is essential for elicIn
the case of Shantabai vs. State of Haryana, AIR 2007
SC 2709 the Apex Court has summarized the law on the
dying declaration as under:iting the truth as an obligation
of other could be. This is the reason the court also insists
that the dying declaration should be of such a nature as to
inspire full confidence of the court in its correctness. The
court has to be on guard that the statement of deceased
was not as a result of either tutoring or prompting or a
product of imagination. The court must be further satisfied
that the deceased was in a fit state of mind after the clear
opportunity to observe and identify the assailant. Once
the court is satisfied that the declaration was true and
voluntary, undoubtedly, it can base its conviction without
any further corroboration. It cannot be laid down as a
absolute rule of law that the dying declaration in form of
sole basis of conviction unless it corroborated. The rule
requiring corroboration is merely a rule of prudence. This
Court has laid down in several judgments the principles
governing dying declaration, which could be sumed up as
under as indicated in Smt. Paniben v. State of Gujrat (AIR
1992 SC 1817):
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(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. [See Munna Raja & Anr. v. State of Madhya
Pradesh (1976) 2 SCR 7640]
(ii) If the court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. [See State of Uttar Pradesh v. Ram Sagar
Yadav and Ors. [ AIR 1985 Sc 416 and Ramavati Devi v.
State of Bihar AIR 1983 SC 1640]
(iii) The Court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the
result of tutoring, prompting or imagination. The
deceased had an opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
[See K. Ramchandra Reddy & Anr. v. The Public Prosecutor
(AIR 1976 SC 1994)]
(iv) Where dying declaration is suspicious, it should not
be acted upon without corroborative evidence. [See
Rasheed Beg v. State of Madhya Pradesh (1974 (4) SCC
264)]
(v) Where the deceased was unconscious and could never
make any dying declaration, the evidence with regard to it
is to be rejected. [See Kaka Singh v. State of M.P. (AIR
1982 SC 1021)].
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. [See Ram Manorath
and Ors. v. State of U.P. 91981 (2) SCC 654)]
(vii) Merely because a dying declaration does contain the
details as to the occurrence it is not to be rejected. [See
State of Maharashtra v. Krishnamurthi Laxmipati Naidu
(AIR 1981 SC 617)]
(viii) Equally, merely because it is a brief statement, it is
not to be discarded. On the contrary, the shortness of the
statement itself guarantees truth. [See Surajdeo Oza and
Ors. v. State of Bihar (AIR 1979 SC 1505)].
(ix) Normally the Court in order to satisfy whether
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deceased was in a fit mental condition to make the dying
declaration look up to the medical opinion. But where the
eye witness said that the deceased was in a fit and
conscious state to make the dying declaration, the medical
opinion cannot prevail. [See Nanahau Ram and Anr. v.
State of Madhya Pradesh. (AIR 1988 SC 912)]
(x) Where the prosecution version differs from the version
as given in the dying declaration, the said declaration
cannot be acted upon. [See State of U.P. V/s. Madan
Mohan & Ors. (AIR 1989 SC 1519)]
(xi) Where there are more than one statement in the
nature of dying declaration, one first in point of time must
be preferred. Ofcourse, if the plurality of dying declaration
could be held to be trustworthy and reliable, it has to be
accepted. [See Mohanlal Gangaram Gehani v. State of
Maharashtra (AIR 1982 SC 839)] ."
12. In the case of Shaikh Bakshu and Ors. v/s State of
Maharashtra 2007 (11) SCC 269, the Apex Court has
emphasized the requirement of reading over and explaining
the contents of the statement to the victim/deceased.
13. In the case of State of Madhya Pradesh V/s. Dal Singh
and Others AIR 2013 SC 2059, the Apex Court has reiterated
the law on the dying declaration as under :
"The law on the issue can be summarized to the effect that
law does not provide who can record a dying declaration,
nor is there any prescribed form, format, or procedure for
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the same. The person who records a dying declaration
must be satisfied that the maker is in a fit state of mind
and is capable of making such a statement. Moreover, the
requirement of a certificate provided by a Doctor in respect
of such state of the deceased, is not essential in every case.
Undoubtedly, the subject of the evidentiary value and
acceptability of a dying declaration, must be approached
with caution for the reason that the maker of such a
statement cannot be subjected to cross-examination.
However, the court may not look for corroboration of a
dying declaration, unless the declaration suffers from any
infirmity."
14. The law is therefore well settled that the dying declaration,
which is admissible in evidence on the principle of 'nemo moriturus
proesumitur mentiri' - a man will not meet his maker with a lie in his
mouth', can form basis of conviction if after careful scrutiny, the court
finds it to be true, voluntary, reliable and inspires full confidence.
15. In the instant case, the evidence on record, particularly the
postmortem report reveals that said Sunita had suffered 94% burn
injuries. Considering this fact, it was necessary for PW5 Dr. Rayate to
verify whether said Sunita was in mentally fit condition to give her
statement. As rightly observed by the learned Sessions Judge, he had
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not considered this fact and had not certified that she was in a mentally
fit condition to make a statement. This fact itself is sufficient to render
the dying declaration inadmissible.
16. Furthermore, a perusal of the dying declaration reveals that
Sunita was married to the respondent about 11 years prior to the date
of the incident and that they had two children from the said wedlock.
Her statement indicates that the accused is an alcoholic and that he
used to constantly tell her to give divorce. She had stated that on 26 th
June, 2000 at about 10 a.m. had once again told her to give divorce.
She has stated that on the same day at about 12:00 p.m. in a fit of rage,
she poured kerosene on her body and set herself ablaze. On hearing
her shouts, her mother-in-law and sister-in-law came to her house and
tried to extinguish the fire and thereafter took her to the hospital. Thus
the statement at Exh.32 indicates that Sunita had committed suicide as
the respondent accused used to constantly harass her for giving
divorce.
17. It may be mentioned that in order to attract the offence under
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Section 306 of IPC the prosecution had to establish that the accused
had abetted commission of suicide. The term abetment is defined
under Section 107 of IPC and the same reads thus:
----107. Abetment of a thing.- A person abets the doing
of a thing, who -
(First) -- Instigates any person to do that thing; or
(Secondly) --Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
(Thirdly) -- Intentionally aids, by any act or illegal
omission, the doing of that thing. Explanation 1.--A
person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to dis-
close, voluntarily causes or procures, or attempts to
cause or procure, a thing to be done, is said to instigate
the doing of that thing. Explanation 2.--Whoever, either
prior to or at the time of the commission of an act, does
anything in order to facilitate the commission of that act,
and thereby facilitate the commission thereof, is said to
aid the doing of that act.
18. Thus the essential ingredients of abetment are :-
(i) instigating a person to committ an offence ; or
(ii) engaging in conspiracy to committ it ; or
(iii) intentionally aiding a person to commit it.
19. In the instant case, having charged the accused for an offence
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under section 306 of IPC, the prosecution was required to establish that
the accused had instigated or intentionally aided his wife Sunita to
commit the suicide. The dying declaration of Sunita indicates that she
had set herself ablaze being annoyed by the constant demand for
divorce by the accused. Suffice it to say that mere demand for divorce
cannot be considered as instigation or provocation to commit suicide.
20. PW1 Maruti Mane, the father of the deceased Sunita, has
claimed that the respondent-accused used to dispute the paternity of
the son and used to harass Sunita by doubting her chastity. PW2
Shevanta Mane, the mother of Sunita, claims that the accused used to
beat her daughter on suspicion, and he used to constantly tell her to
give him divorce. She has stated in her cross examination that they had
not lodged any complaint against the accused for harassing her
daughter. As stated earlier, the dying declaration does not indicate that
the respondent accused had ever doubted the chastity of the deceased
or had disputed the paternity of their son.
21. The evidence of PW1 and PW2 is therefore not consistent with
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the cause stated in the dying declaration. There is no evidence to prove
that the accused had in any manner incited or provoked Sunita to
commit suicide. Hence, the learned Judge was justified in giving
benefit of doubt to the accused. The findings recorded by the learned
trial Judge are based on the evidence on record. The findings are
neither illegal nor perverse. Considering the facts and circumstances of
the case as well as the principles laid down by the Apex Court in
Ghurelal supra, in my considered view, this is not a case which
warrants interference with the order of acquittal.
22. Under the circumstances and in view of the discussion supra,
the appeal is dismissed.
(SMT. ANUJA PRABHUDESSAI, J.)
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