Kundlik Nagappa Mane vs The State Of Maharashtra
2021 Latest Caselaw 3649 Bom

                                                             20.Cri. Appeal 357-1998.doc

Neeta S.
Sawant
Digitally signed by
Neeta S. Sawant       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2021.03.09
18:07:30 +0530
                                CRIMINAL APPELLATE JURISDICTION

                                   Criminal Appeal No. 357 / 1998

                      Kundlik Nagappa Mane
                      Aged about 45 years,
                      Occupation : Service,
                      Residing at Gut No.11, Bombatwadi,
                      Behind Mankhurd Municipal School,
                      Mumbai - 400088.                                     ..   Appellant


                                                    Versus

                      The State of Maharashtra
                      (At the instance of Trombay
                      Police Station, Mumbai).                             ..   Respondent


                                                     *****

Mr. Rupesh Bobade, Advocate for Appellant through Legal Aid Committee.

Smt. Sharmila Kaushik, APP for State/ Respondent.

                                                     *****


                       Najeeb                                                    1/13
                                            20.Cri. Appeal 357-1998.doc




                      CORAM :        SANDEEP K. SHINDE J.
                                           th
                       DATE     :     26        FEBRUARY, 2021.



ORAL JUDGMENT :-

1. Appellant has been convicted for the offences punishable

under Sections 498-A and 306 of the Indian Penal Code, 1860

in the Sessions Case No. 471 / 1994 by the learned Additional

Sessions Judge, Greater Mumbai, who sentenced him to suffer

imprisonment for four years, which he had undergone as on

the date of his conviction, as a under trial Prisoner.

2. Against the conviction and sentence, this appeal is

preferred under Section 374 (2) of the Code of Criminal

Procedure, 1973.

3. Heard. learned Counsel for the Appellant and learned APP

for State.

Najeeb 2/13

20.Cri. Appeal 357-1998.doc

4. Briefly stated prosecution case is that;

Accused was married to one lady by name Laxmi. They had

no issue out of the wedlock. Thus, with the consent of

Laxmi, he married Shobha (deceased). The accused was

charge-sheeted for causing murder of Shobha and for ill-

treating her. On 22 December, 1993, Local Police received a nd

message, that a lady having sustained burn injuries, was

admitted in the Hospital. Hence, P.S.I. Vinod Chavan

contacted Special Executive Magistrate, Ms. Sulochana Swarna

and alongwith her, he went to Hospital Shatabdi. That after

making enquiry with doctor on duty, whether, Shobha was in

fit condition to give statement, Executive Magistrate recorded

her Dying Declaration. Thereafter, another statement of

Shobha was recorded by the Police Officer, whereafter the

crime no. 447 / 1993 was registered under Section 306 of

IPC.

     Najeeb                                                             3/13
                                            20.Cri. Appeal 357-1998.doc


5.        During   investigation,   spot   panchanama       was       drawn,

whereby, a plastic can of Kerosene, Nylon Saree and burned

blouse pieces were attached. Statements of neighbours and

of relatives were recorded. The learned Judge framed a

charge under Section 498-A and 302; in alternative under

Section 306 of IPC and upon appreciating the evidence of the

Special Executive Magistrate, Investigating Officer and PW-4

Prakash Namdeo Alhad (neighbour), convicted accused of the

offence punishable under Section 306 of IPC.

6. Learned Advocate (appointed), in support of the appeal

has taken me through the Dying Declaration recorded by the

Special Executive Magistrate at Exhibit-8 and would submit

since, Shobha had suffered 70% terminal burn injuries, before

recording the Dying Declaration, doctor was not consulted to

ascertain whether Shobha was in fit condition to give a

Najeeb 4/13

20.Cri. Appeal 357-1998.doc

statement or not. In support of the contention, he has

brought to my notice an approval of doctor, which it appears

was made on a separate sheet appended to Dying Declaration

and not on declaration itself. He would contend that the

Special Executive Magistrate admitted, in his testimony that he

had not taken endorsement of doctor before recording the

statement. Therefore, submission is; in absence of certification

by doctor, that Shobha was in condition to give statement,

Dying Declaration cannot be relied upon and it is to be kept

out of the consideration. He would further submit that the

evidence of Prakash Alhad - PW-4, clearly shows that it was

a case of self immolation and in support of this contention, he

has also relied on the spot panchanama, which suggests that

deceased had locked the door from the inside. Counsel would

further submit that there are material contradictions in two

Dying Declarations; one recorded by the Special Executive

Najeeb 5/13

20.Cri. Appeal 357-1998.doc

Magistrate and another by Police Officer on the same day and

therefore, even Dying Declarations did not further the

prosecution case. On these grounds, he seeks acquittal of the

appellant.

7. Per-contra, learned APP would support the conviction and

sentence and submitted, that the findings recorded by the

learned Judge are founded on cogent and reliable evidence and

therefore, unless, shown that the findings are perverse, this

Court may not interfere with the impugned conviction and

sentence.

8. I have carefully considered the arguments of respective

Counsel and perused the evidence. One of questions, for

consideration is; Whether, certification, by doctor that, victim

was in fit state of mind, is mandatory before admitting the

Dying Declaration to evidence.

     Najeeb                                                  6/13
                                          20.Cri. Appeal 357-1998.doc


.         The Apex Court in the case of Laxman Vs. State of

Maharashtra (2002) 6 SCC 710 has held that;

" Normally, therefore, the Court in order to satisfy whether the

deceased was in a fit mental condition to make the dying

declaration looks up to the medical opinion. But where the

eye-witnesses or a Magistrate recording the statement state

that the deceased was in a fit and conscious state to make

the declaration, the medical opinion will not prevail, nor can it

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

the fitness of the mind of the declarant, the dying declaration

is not acceptable. A certification by the doctor is essentially a

rule of caution."

9. In this case, the evidence of Executive Magistrate reveals

that, before recording the statement, she had enquired with Dr.

Shetty and Godbole about the mental/ health condition of the

Najeeb 7/13

20.Cri. Appeal 357-1998.doc

Shobha (deceased). The subject Dying Declaration also shows

statement was read over to the deceased, which the deceased

stated to be correct. Thus, in view of the evidence, I have no

reason to discard the Dying Declaration recorded by the

Special Executive Magistrate, which is at Exhibit-8. In Khushal

Rao's case, AIR 1958 SC 22, Honourable Apex Court has held

that the statement made by a person who is in danger of

losing his life, as to the cause of his death or as to the

transaction which resulted in his death, becomes a relevant

fact upon his death.

10. Herein, deceased disclosed to Special Executive

Magistrate, that husband poured kerosene, set her ablaze,

latched the door from outside and left the place. Indisputably,

deceased died due to severe burn injuries. Thus, in view of

deceased narration, accused caused her death.

Najeeb 8/13

20.Cri. Appeal 357-1998.doc

11. However, the trial Court, has held, deceased had

suffered 'suicidal' and not 'homicidal death' and convicted the

accused of offence of 'Abetment of suicide'. Question is;

Whether the prosecution has proved beyond reasonable doubt

that accused was guilty of abetting suicide, of his wife-Shobha.

. To ascertain, whether the person has abated commission

of suicide of another, the consideration would be, is the

accused guilty of the act of 'instigation of suicide'.

True that, abetment may be, by instigation, conspiracy or

intentionally aiding, by any act or illegal omission, as provided

under Section 107 of the Indian Penal Code. Thus, abetment

involves a mental process of instigating a person of doing

something and offending action ought to be proximate to the

time of occurrence. If the person who committed suicide had

been hyper sensitive and action of accused is otherwise not

ordinarily expected to induce a similar circumstanced person to

Najeeb 9/13

20.Cri. Appeal 357-1998.doc

commit suicide, it may not be said to hold the accused guilty

of abatement of suicide. Hon'ble Apex Court in the case of

Gurcharan Sing V/s. State of Punjab, in Criminal Appeal No.

40/2011, has held : "As in all crimes, mens-rea has to be

established, to prove the offence of abetment as specified

under Section 107 of IPC, the state of mind to commit a

particular crime must be visible to determine the culpability. In

order to prove mens-rea, there has to be something on record

to establish or show that the accused had guilty mind and in

furtherance of that state of mind, abetted the suicide of the

deceased. The ingredients of mens-rea cannot be assumed,

ostensibly present but has to be visible and conspicuous. "

12. Keeping in mind the above understanding of law and

applying the ratio to the facts of the case; herein deceased

married the accused hardly 4 - 5 months before the incident.

 Najeeb                                                   10/13
                                      20.Cri. Appeal 357-1998.doc


It was second marriage of the accused.            Prosecution has

largely relied on Dying Declarations to contend that deceased

statement which relates to cause of death, is a "relevant

fact". It may be stated that except the Dying Declarations,

there is no other evidence to corroborate the deceased

statement which relates to cause of death. Deceased stated

that husband was suspecting her fidelity and on that count

was persistently harassing and beating her. Deceased alleged

that when she was having spat with her husband, he poured

kerosene and set her ablaze. Thus initially offence under

Section 302 of IPC was registered. The prosecution in support

of charge had examined Prakash Alhad, a neighbour of the

deceased. He was next door neighbour. His testimony

reveals that upon hearing the cries of the deceased, he rushed

to the spot. He found and seen the accused was trying to

open the door with all possible efforts at his command. It

Najeeb 11/13

20.Cri. Appeal 357-1998.doc

appears from his testimony that he had helped accused to

open the door. Therefore, the evidence of Prakash Alhad

suggests that the door was not latched from outside, but from

inside. To ascertain the variacity of evidence of this witness, I

have carefully gone through the spot panchanama. It shows

due to persistent jerks, lock inside the door was damaged.

Thus, suggesting force was applied from outside, in efforts to

open the door. Panchas had noted a dent to inner latch in

panchanama. Therefore, it is to be stated that the evidence

indicates that the door was not latched from outside, but from

inside and Shobha was alone in the house, when the incident

had taken place.

13. In the circumstances, the learned trial Court has correctly

rejected the prosecution case that accused caused death of

Shobha by setting her ablaze. Admittedly, there is not other

Najeeb 12/13

20.Cri. Appeal 357-1998.doc

independent evidence to establish that, Shobha was recurringly

harassed by the appellant either doubting her chastity or

otherwise. The statement of Dying Declaration, cannot be

looked into because, 'cause of death' alleged by deceased has

been proved 'false'. Thus, to be stated absolutely there is no

evidence to hold the appellant guilty of the act of 'instigation

of suicide'.

14. In consideration of the evidence and for the reasons

stated above, appeal is Allowed. Bond executed by the

Appellant is cancelled and sureties are discharged. The fine

amount, if paid, be refunded to the appellant.

15. The appeal is disposed of.

                           (SANDEEP K. SHINDE, J)



  Najeeb                                                 13/13