Sanajy Dnyanoba Narwade vs The State Of Maharashtra
2018 Latest Caselaw 753 Bom

                                               1                                Cri.Appeal 417-2013


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                   CRIMINAL APPEAL NO. 417 OF 2013


       Sanjay s/o Dnyanoba Narwade,
       Age 36 years, Occupation Agriculture,
       R/o Waghalwadi Tq. Ambajogai
       Dist. Beed.                                                       ...Appellant

       Versus

       The State of Maharashtra,
       Through Police Station (Rural),
       Ambajogai Dist. Beed.                                             ...Respondent

                                      ----
       Mr. S. D. Kaldate, Advocate along with Atul R. Kale, Advocate
       with Mr. P. N. Mule, Advocate for appellant.
       Mr. A.B. Girase, Addl. Public Prosecutor, for respondent/ State.
                                      ----

                                 CORAM :        PRASANNA B. VARALE &
                                                SMT. VIBHA KANKANWADI,JJ.

DATE : 20-01-2018.

ORAL JUDGMENT ( Per Smt. Vibha Kankanwadi. J.)

1. Present appeal has been filed by the original accused who has

been convicted for murdering his wife.

2. The prosecution had come with a case that, deceased Shilabai

was married to accused in the year 2004. After marriage she

started cohabiting with the appellant-accused at Waghalwadi Tq.

Ambajogai Dist. Beed. They have a daughter. There was quarrel

between deceased and accused at about 09.00 a.m. on 29-07-2012;

2 Cri.Appeal 417-2013

on the ground that the agricultural land should not be sold. Accused

was insisting that, he would sell the land but deceased was advising

him not to do that. However, accused abused and assaulted

deceased Shilabai under the influence of liquor and then brought

kerosene can, poured the kerosene on her person and ignited the

matchstick and put it on her. Because of the same she ablaze and

received burn injuries to her chest, both the hands, legs. Her cousin

mother-in-law Gayabai Baburao Narwade and others extinguished

the fire. Her mother-in-law Anusaya Dnyanoba Narwade and others

brought her in auto rickshaw to Government Hospital, Ambajogai.

3. When she was admitted in the Burn Ward No.6, Ward No.14

and was under treatment, her dying declaration came to be recorded

between 01.00 to 01.20 p.m. by Police Head Constable. On the

basis of her said dying declaration, offence vide Crime No. 72 of

2012 came to be registered for the offence punishable under Section

307, 323 and 504 of the Indian Penal Code.

4. It is the further prosecution story that, on the basis of the said

FIR investigation was undertaken. Simultaneously Tahsildar,

Ambajogai was requested to record dying declaration and

accordingly dying declaration has also been recorded by Tahsildar,

Ambajogai. The Investigating Officer visited the place of incident

and executed spot panchanama. At the time of execution of the

3 Cri.Appeal 417-2013

spot panchanama, saree, blouse, plastic can containing kerosene,

one matchstick, simple earth and kerosene smelled earth were

seized from the spot.

5. Statements of witnesses were recorded. During the course of

treatment Shilabai expired on 02-08-2012. Inquest panchanama

has been prepared and then dead body was referred for post

mortem. After the post mortem report was collected, offence under

Section 302 of Indian Penal Code has been added. The clothes of

the accused were seized under panchanama. The seized muddemal/

articles were sent for chemical examination. Further statements of

the witnesses have been recorded, accused came to be arrested,

and after the completion of the investigation, charge-sheet has been

filed before Judicial Magistrate, First Class, Ambajogai.

6. After the committal of the case i.e. Sessions Case No. 90 of

2012, charge came to be framed for the offence punishable under

Section 302, 307, 323, 504 of Indian Penal Code against the accused

on 17-01-2013 by Additional Sessions Judge, Ambajogai. The

contents of the charge were read over and explained to the accused

in vernacular. He pleaded not guilty and trial has been conducted.

Prosecution has examined eight witnesses and proved documents in

order to bring home the guilt of the accused. After hearing both

sides and perusing the evidence on record, the learned Sessions

4 Cri.Appeal 417-2013

Judge has come to the conclusion that the prosecution has proved

that the accused has committed offence punishable under Section

302 of the Indian Penal Code, and therefore he has been sentenced

to suffer imprisonment for life and to pay fine of Rs.1,000/-, in

default rigorous imprisonment for one month. The appellant-

accused has challenged the said conviction in this appeal.

7. Heard the learned counsel Mr. S. B. Kaldate along with Atul R.

Kale, Advocate with Mr. P. N. Mule, Advocate for appellant, and Mr.

A.B. Girase, Addl. Public Prosecutor, for respondent/ State. Perused

the entire record. Following points arise for our determination,

findings and reasons for the same are as follows ;

POINTS FINDINGS

1) Whether death of Shilabai is : In affirmative.

homicidal ?

2) Whether prosecution has proved that : In affirmative.

accused had poured the kerosene on the person of Shilabai at about 9.00 a.m. on 29-07-2012 in his house at Waghala Tq. Ambajogai Dist. Beed, and ablaze her, thereby committed her murder ?

8. Both the points are taken up together for the sake of

convenience and to avoid repetition.

REASONS

AS TO POINTS NO. 1 AND 2 :

9. It has been vehemently submitted on behalf of appellant that

5 Cri.Appeal 417-2013

the case of the prosecution is based upon dying declarations. P.W.1

Santosh Yadav is the brother of the deceased. He has been

examined to prove the alleged oral dying declaration given by the

deceased on 29-07-2012. However, in order to rely upon the same

it ought to have been proved undoubtedly by the prosecution that

the deceased was in a fit state of mind. P.W.2 ASI Dinkar Yekal is

the police officer who had recorded the dying declaration on 30-07-

2012 (Exhibit 19). It is apparent that the said dying declaration has

been recorded after the arrival of the brother of the deceased. So

also the testimony of P.W.5 Naib Tahsildar S. K. Devale who had

recorded the second dying declaration on 30-07-2012. It is to be

noted that in both the dying declarations the deceased had made

substantial improvement in the form that the father-in-law had also

poured kerosene. When such an improvement has been made then

it goes to the root and makes both the dying declarations

untrustworthy. The prosecution has not examined any person from

the village who was present immediately after the incident.

Definitely after deceased had caught the fire and persons had come

to extinguish the same, they would have ask the deceased about the

reason and she would have answered those questions. Much

weightage can be given to that oral communication by the deceased

to the neighbourers. Instead of adducing quality evidence, the

prosecution has tried to rely on the oral dying declarations which

6 Cri.Appeal 417-2013

have been taken after much gap of time.

10. The learned Addl. Public Prosecutor submitted that, there is

absolutely no inconsistency in both the written dying declarations.

Both the dying declarations i.e. recorded by ASI and Naib Tahsildar

are consistent with each other. A minor improvement will not

discard the dying declaration. Further the written dying declaration

is also consistent with the oral dying declaration. Therefore, the

reasons assigned by the learned Trial Court are proper and

justifiable. The learned Addl. Public Prosecutor tried to rely on the

decision in State of Punjab Versus Parveen Kumar, AIR 2005

Supreme Court 1277, wherein it has been held that,

"The mere fact on the basis of the same evidence another view is possible, is not a ground for setting aside Judgment and order though it was the order of acquittal yet the basic principle is the same."

In fact the same authority was relied by the learned advocate

appearing for the appellant in order to point out that, when there are

inconsistent dying declarations then it cannot be the basis of

conviction.

11. The learned advocate appearing for the appellant has further

relied on the decision in, Suresh s/o Arjun Dodorkar (Sonar) Vs.

State of Maharashtra, 2005 All MR (Cri) 1599, wherein it has been

held that,

7 Cri.Appeal 417-2013

"In case of multiple dying declarations when acceptance of one dying declaration falsifies the other, then both the dying declarations have to be necessarily rejected. The dying declarations has to pass all the tests of reliability as the declarant is not available for cross-examination."

12. He further placed reliance on Suresh s/o Shrirang

Mandawgane Vs State of Maharashtra, 2010 All MR (Cri) 147. In

this case both the dying declarations were not in consonance with

each other and are at variance. Under such circumstance evidence

of the prosecution based on two dying declarations was rejected.

13. Further reliance has been placed on the decision in Ramesh

s/o Rangrao Walsange and others Vs State of Maharashtra, 2012

All MR (Cri) 1861. This case was also on the line when material

inconsistencies are there in two dying declarations and they are not

in consonance with each other as well as role attributed to

appellants, such dying declarations were not relied. Similar view has

been taken in Smt. Laxmibai w/o Dhanraj Moon and Another Vs.

The State of Maharashtra, 2012 All MR (Cri) 3537.

14. The learned Addl. Public Prosecutor has relied on the decision

in Ashabai and Another Versus State of Maharashtra, 2013 DGLS

(SC) 9, equivalent 2013 (2) AIR Bombay R 321. In this case, in the

first dying declaration before PSI, the deceased had deposed that

mother-in-law had poured kerosene on her and let fire. In the

8 Cri.Appeal 417-2013

second dying declaration which was recorded by Executive

Magistrate, which was in the question and answer form, almost

same facts were reiterated. The third dying declaration was also

recorded by Executive Magistrate wherein two more names of other

members were included stating that those persons had threatened

the deceased. It was held that, this version itself does not mean

that earlier two were unacceptable, because even in this fact victim

had named accused No.1, 2 and 3 as main accused. Thus, the

learned Addl. Public Prosecutor supported the Judgment and order

passed by the trial Court.

15. At the outset it is to be noted that, the panchanama of the

spot has been proved and it is at Exhibit 15. The contents of the

panchanama would show, that the incident had taken place in one of

the room where there was iron cot. The burnt pieces of saree,

plastic can containing kerosene, matchstick are the articles amongst

other articles which have been seized from the spot. There is a

pursis produced at Exhibit 16 which shows that the defence has

admitted the panchanama, and therefore, the panchas were

discharged. Thus situation at the spot was admitted to the accused.

However, as regards the said situation is concerned, it would give

rise to three theories, one is accidental, another is suicidal and third

is homicidal. Neither the prosecution has come with a case nor the

accused has put a defence that, it was the suicidal case. Then only

9 Cri.Appeal 417-2013

two possibilities remain, one was accidental and another was

homicidal. The prosecution has then examined P.W.4 Dr. Vishwajeet

Pawar who had conducted the post mortem. He has deposed that,

he had examined deceased Shilabai, it was a case of 30 % burnt

injuries. Those were ante mortem. After noting the injuries he has

come to the conclusion that the cause of death was septicemia due

to 30 % of superficial and deep burns of total body surface area.

The post mortem report is at exh.27. The only question that was

asked to him in the cross was that where he had seen the treatment

papers and he has answered it in the negative. Thus it is to be

noted that, there is no cross as regards the opinion regarding cause

of death. Again taking into consideration the said opinion, the two

theories emerged, one is regarding homicidal and another is

accidental. Therefore, when the prosecution has come with a case

that it was a homicidal death, the prosecution should prove the

same and rule out the possibility of accidental death.

16. The relationship between deceased and accused is not denied.

Deceased was residing in the same house where accused was

residing. In order to bring the evidence regarding homicidal death,

the prosecution has relied on one oral dying declaration and two

written dying declarations.

17. P.W.1 Santosh Yadav is the brother of the deceased. He has

10 Cri.Appeal 417-2013

deposed that deceased Shilabai got married to accused in 2004. He

has stated that his sister was treated properly by the accused for

initial two years and thereafter accused started ill-treating his sister.

According to him accused was abusing and beating deceased after

consuming liquor. It is to be noted that, no charge is framed under

Section 498-A of the Indian Penal Code, and therefore, the said part

of his deposition cannot be considered. The witness has further

stated that, he was in his village at about 10.00 a.m. on 29-07-2012

when he was received telephone call from Waghalwadi from an

unknown number. It was informed to him that, his sister has

sustained burnt injuries and was admitted in Swamy Ramanand

Teerth Rural Medical College and Hospital, Ambajogai. He

immediately went to the hospital. He met his sister. His sister told

him that, accused and his father were intending to sell the

agricultural land, however she protested, the accused had consumed

liquor at that time, he assaulted deceased and poured kerosene on

the person of deceased and ablaze her. The fire was extinguished by

aunt of the accused who resides in the neighbourhood.

18. It is to be noted that, except suggestion that his sister was not

in a position to talk, there is nothing on record in order to discard

whatever he had stated. No doubt the oral dying declaration is a

very weak type of evidence but in order to disbelieve the said

witness, though an opportunity was available to the accused, that

11 Cri.Appeal 417-2013

opportunity has not been exhausted. No doubt it was tried to be

brought on record from his cross-examination that the funeral was

performed at the village of the accused and the said funeral was

attended by this witness and his parents. It was tried to be brought

on record that the relationship was normal. Even if for the sake of

arguments it is accepted that the relationship was normal yet as

regards the incident is concerned, except one single suggestion

there is nothing to disbelieve him.

19. It was tried to be pointed out that in his testimony P.W.2 ASI

Dinkar Yekal has stated that when he went to hospital on 29-07-

2012 after receipt of the information, he found that the witness was

sleeping. Therefore it was submitted that there is less possibility that

the patient was in a position to make a statement. We are unable to

accept the said submission because it has not been extracted from

both the witness as to what time they had gone to the hospital. The

possibility of both these witnesses visiting the burn ward at different

time and then when P.W.2 ASI Dinkar Yekal went, the possibility of

the patient being asleep is not ruled out. Another fact is that,

merely because she was asleep, we cannot presume that deceased

was not in a fit state of mind for giving statement or talking with her

brother. Therefore, in this case even the oral dying declaration is

believable.

12 Cri.Appeal 417-2013

20. Much stress has been given on the alleged two inconsistent

dying declarations. Dying declaration (Exhibit 19) was recorded by

P.W.2 ASI Dinkar. He had in fact obtained certificate from P.W.7

Dr. Rupesh Thakare before he is proceeded to record Exhibit 19. The

testimony of P.W.2 Dinkar and P.W.7 Dr. Rupesh on the point of

examination of the deceased, in the beginning of the statement and

at the end, is consistent. In fact the accused had declined to cross-

examine P.W.7 Dr. Rupesh, and therefore, he cannot raise a doubt

regarding the mental state of Shilabai when Exhibit 19 was

recorded. Exhibit 19 has been duly proved through P.W.2 Dinkar

Yekal. In fact it was rather extracted in his cross-examination that

he had asked the relatives of Shilabai to go out of the room before

he started recording Exhibit 19. Further the reason as to why he

had obtained the toe impression of deceased has been extracted in

the cross. He has stated that, as both the hands had received burn

injuries, he had obtained toe impression. That means, whatever

lacunae left in examination-in-chief, they have been filled up in the

cross-examination. Under such circumstance we cannot doubt the

procedure that has been adopted while recording the dying

declaration.

21. P.W. 5 S. K. Devale was Naib Tahsildar who has recorded the

dying declaration (Exhibit 37). P.W.7 Dr. Rupesh was the same

doctor who had given endorsements on Exhibit 37 regarding the

13 Cri.Appeal 417-2013

mental fitness of deceased to make statement. Independently also

both the persons who have recorded the both the dying declarations

have independently assessed and were satisfied about the fitness of

deceased to give the statement. We would like to rely on the

decision in, Sher Sing and Another Vs. State of Punjab, (2008) 4

Supreme Court Cases 265. It has been observed that,

"Since the accused had no power of cross-examination, the Court would insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the Court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit."

Normally, the Court places reliance on the medical evidence for

reaching the conclusion whether the person making a dying

declaration was in a fit statement of mind, but where the person

recording the statement states that the deceased was in a fit and

conscious state, the medical opinion will not prevail, nor it can be

said that since there is no certification of the doctor as to the fitness

of mind of the declarant, the dying declaration is not acceptable.

What is essential is that the person recording the dying declaration

must be satisfied, that the deceased was in a fit state of mind. Thus,

here independently also both the witnesses who recorded the dying

14 Cri.Appeal 417-2013

declaration got themselves satisfied about the mental fitness of the

deceased before they had started recording her dying declaration.

The medical opinion was supporting their statement and the medical

opinion has gone unchallenged.

22. Now as regards the alleged inconsistency is concerned, except

making allegation against father-in-law that he had also taken part

in the act of ablaze, there is no inconsistency at all. The role

attributed to the present appellant is the same in both the dying

declarations.

23. As regards multiple dying declarations are concerned we would

like to rely on the decision in Mukesh and Another Versus State

(NCT of Delhi) and others, reported in 2017 (6) Supreme Court

Cases 01. Here in this case there were more than one dying

declarations and after considering the legal position laid down in

various authorities it has been observed that, "In cases where there

are more than one dying declarations, the Court should consider

whether they are consistent with each other. If there are

inconsistencies, the nature of inconsistencies must be examined as

to whether they are material or not. In cases where there are more

than one dying declarations, it is the duty of the Court to consider

each one of them and satisfy itself as to the voluntariness of the

reliability of the declarations. Mere fact of recording multiple dying

15 Cri.Appeal 417-2013

declarations does not take away the importance of each individual

declaration. The Court has to examine the contents of the dying

declaration in the light of various surrounding, facts and

circumstances". Therefore, as regards present accused is concerned

both the dying declarations are consistent. There is no material

inconsistency in both of them.

24. The case laws which have been relied by the learned Advocate

for the appellant are not helpful to him for the simple reason that

the facts in those cases were different. In State of Punjab Versus

Parveen Kumar, AIR 2005 Supreme Court 1277 (Supra), the first

dying declaration was not against either the mother-in-law, father-

in-law or sister-in-law, but the allegation was solely against the

respondent who was said to have sprinkled kerosene oil on her and

set her on fire. In the second dying declaration the roles assigned to

them were different. The allegation was that the mother-in-law

sprinkled kerosene oil and husband set her fire with a matchstick. It

was found that the attribution of separate role was the material

inconsistency. In Suresh s/o Arjun Dodorkar (Sonar) Vs. State of

Maharashtra, 2005 All MR (Cri) 1599 (Supra), taking into

consideration the material inconsistencies, the benefit was given to

the accused. It was found that, though in the two dying

declarations, there was consistency in respect of name and number

of accused, the prelude to the incident there was variance. There

16 Cri.Appeal 417-2013

was also variance in respect of incident itself. In Suresh s/o

Shrirang Mandawgane Vs State of Maharashtra, 2010 All MR (Cri)

147 (Supra), there were different versions regarding the incident

which were totally inconsistent with each other. Ramesh s/o

Rangrao Walsange and others Vs State of Maharashtra, 2012 All

MR (Cri) 1861 (Supra) and Smt. Laxmibai w/o Dhanraj Moon and

Another Vs. The State of Maharashtra, 2012 All MR (Cri) 3537

(Supra) also the dying declarations were found to be not in

consonance with each other and role attributed to the appellants

were totally different.

25. Thus what emerges from the discussion is that, each of the

dying declaration will have to be considered independently and this

has also been laid down in Nallam Veera Stayanandam And Others

Vs. Public Prosecutor, High Court of A.P., 2004 (10) SC 769. It is

observed that,

"Each dying declaration has to be considered independently on its own merits as to its evidentiary value and one cannot be rejected because of the contents of the other."

The consistency in oral as well as dying declaration is that, the

accused-appellant had consumed liquor and when there was dispute

between him and the deceased, after deceased raised objection for

selling agricultural land, accused poured kerosene upon her person

and ablazed her. This fact is therefore established beyond

17 Cri.Appeal 417-2013

reasonable doubt by the prosecution.

26. Definitely act of pouring kerosene and throwing burning

matchstick would cause fire and would kill a person, would be in the

knowledge of any person, and therefore, said act which was done by

the accused was with an intention to cause her death, and therefore,

it is a murder punishable under Section 302 of the Indian Penal

Code.

27. The learned trial Court has rightly appreciated the evidence on

record and has come to the right conclusion thereby holding the

accused guilty of committing offence punishable under Section 302

of Indian Penal Code. Definitely merely because a second view is

possible this Court cannot take the second view in the appeal.

Resultantly there is no merit in the present appeal, it deserves to be

dismissed. Hence, following order.

ORDER

Appeal is hereby dismissed.

         (SMT. VIBHA KANKANWADI)                            (PRASANNA B. VARALE)
                  JUDGE                                           JUDGE

vjg/-.