Bombay High Court
Mangu Maharu Chavan vs State Of Maharashtra on 26 February, 2021
Bench: S.S. Jadhav, N. R. Borkar
3.apeal508.1996.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 508 OF 1996
Mangu Maharu Chavan,
aged 35 years, resident of
Malegaon, Tal. Malegaon
Dist. Nasik. ... Appellant
V/s.
State of Maharashtra. ... Respondent.
(At the instance of Police Station,
Malegaon)
-------------------
Mr. Sachin V. Dhakephalkar a/w. Mr. Mahesh Subramaniam, advocate
for appellant.
Ms. P.P. Shinde, APP for State.
---------------------
CORAM : SMT. SADHANA S. JADHAV &
N.R. BORKAR, JJ.
DATE : FEBRUARY 26, 2021.
JUDGMENT (SMT. SADHANA S. JADHAV,J)
1 The appellant herein is convicted for the offence
punishable under section 302 of the Indian Penal Code and sentenced
to suffer imprisonment for life and fine of Rs. 1,000/- I.d. to suffer R.I.
for one year by Additional Sessions Judge, Malegaon in Sessions Case
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No. 90 of 1991 vide Judgment and Order dated 17/8/1996. Hence,
this appeal.
2 Such of the facts necessary for the decision of this appeal
are as follows :
(i) On 7/6/1991 Shobhabai, wife of the appellant was
admitted in N.N. Wadia Hospital at Malegaon with history of burn
injuries. Dr. Ansari P.W. 2 informed Malegaon Taluka Police Station
telephonically that a patient was admitted in the hospital with history
of burn injuries and being medico legal case, the police should make
arrangement for recording of the statement of the injured.
(ii) The message was sent to Special Executive Magistrate
(P.W.1) Mrs. Mrudula Mahashabde and she was requested to record the
statement of the injured accordingly. P.W. 1 in the capacity of the
Special Executive Magistrate visited the hospital and found the patient
to be conscious and oriented and recorded the statement of the injured
which is at Exh. 34.
(iii) The injured Shobha had disclosed to the Special Executive
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Magistrate that on 7/6/1991 at about 10 a.m. her husband had
returned home in an inebriated state of mind. His mother and sister
asked him not to treat Shobhabai properly. Her husband i.e. the
present appellant had assaulted her. She was also assaulted by her
mother-in-law and sister-in-law. In the meanwhile, her husband had
poured kerosene on her person and had set her ablaze.
(iv) Upon hearing her cries, the neighbours had rushed to the
spot and had extinguished the flames. Some one had informed her
brother about the said incident. Her brother visited her house and had
taken her to N.N. Wadia Hospital for treatment.
(v) On the basis of the said statement, Crime No. 176 of 1991
was registered at Malegaon Taluka Police Station. Investigation of the
said offence was entrusted with P.W. 6 Chindhu Namdeo Mahajan.
After filing of the charge-sheet, the case was committed to the Court of
Sessions and prosecution had examined 6 witness to bring home the
guilt of the accused.
3 P.W.1 Ms. Mrudula Mahashabde is the Special Executive
Magistrate. She had received a letter from the police station. Pursuant
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to which, she had recorded statement of the injured which is marked
at Exh.33. She has deposed before the Court that she had inquired
with the patient as to whether she was conscious and in a position to
make a statement. Upon receiving an answer in affirmative, she had
recorded the statement of the injured. She had obtained endorsement
of the doctor on the statement, after recording the same. She has
categorically admitted in the cross-examination also that the
endorsement of the doctor as far as the consciousness of the victim was
concerned was obtained only after the statement was recorded.
4 P.W. 2 Dr. Ansari Mohd. Yakub had examined the patient on
7/6/1991 at about 3.45 p.m. He had informed the police station
about the same. According to him, he had once again examined the
injured. He found her to be conscious and in a position to give
statement. Accordingly, he had informed the Magistrate and then
statement of the victim was recorded. He had given the written
endorsement on the said statement only after the same was recorded.
Dr. Ansari Mohd. Yakub had stated before the Court that
supplementary statement of the injured patient was recorded by the
police. The said statement is at Exh. 46. P.W. 2 claimed to have given
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his opinion about the state of mind of the injured while recording the
supplementary statement also. Shobha had succumbed to the burn
injuries on the same day. While performing autopsy, it was opined that
she had sustained 96% burn injuries. In the cross-examination, P.W. 2
categorically denied that it cannot be said that the patient who has
suffered 96% burns would remain unconscious. He had denied the
suggestion that the injured was not conscious at the time of admission
in the hospital.
5 P.W. 3 Shobhabai More happens to be the sister-in-law of
the deceased Shobha. According to her, she had accompanied Shobha
to the hospital. While in transit, Shobha had disclosed to P.W.3 that
she was assaulted by her husband and she had sustained fracture to
her hand and that thereafter, her husband had set her ablaze.
According to P.W. 3, family members of Shobha were not present in
the house when she had been to her house.
6 Upon perusal of the supplementary statement of the
deceased, which was recorded on the same day and is at Exh. 46, she
has elaborated the incident in her supplementary statement and has
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stated that she was assaulted by her mother-in-law and sister-in-law
and that when the neighbours were trying to extinguish the flames, her
husband had pretended to save her. Besides that there is no
inconsistency in the two statements i.e. at Exh. 34 and Exh. 46.
7 P.W. 4 Dadaji Suryavanshi had also accompanied the victim
to N.N. Wadia Hospital, being a friend of the brother of the victim.
Even according to him, oral dying declaration was made in which the
victim had disclosed about squeezing of hand by her husband setting
her ablaze.
8 P.W. 5 Shelke is the investigating officer, whereas P.W. 6
Chindhu had recorded supplementary statement of the injured which
is at Exh. 46.
9 Learned Counsel for the appellant had vehemently
submitted that the dying declaration at Exh. 34 cannot be relied upon
for the simple reason that there is no cogent evidence to show that the
victim was in a fit state of mind to give her statement. It is argued that
the endorsement of P.W. 2 on the said statement was obtained only
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after it was recorded and hence, it is doubtful as to whether the victim
was oriented and in a fit state of mind to make a statement. The
learned Counsel submits that there is no independent evidence. The
investigating officer has not recorded the statements of the neighbours
who had extinguished the flames. That the oral dying declaration does
not inspire confidence as the victim had suffered 96% of burn injuries.
It is also argued that there was no motive on the part of the appellant
to set his wife ablaze and in the absence of evidence of such a nature,
the conviction recorded by the Additional Sessions Judge deserves to
be quashed and set aside.
10 As against this, the learned APP submits that it is
specifically stated in the dying declaration that the appellant was in an
intoxicated state of mind at the time of incident and therefore, it
would not be necessary to have a particular motive. Learned APP
submits that the incident has occurred in the house and therefore, it
would not be possible to record the statement of any independent
witness who had reached the spot only after the victim was set ablaze.
According to learned APP, the dying declaration of the victim deserves
to be held as voluntary and truthful. However, looking at the
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inconsistency in both the statements, it would be difficult to hold that
the said statement of the victim is voluntary and truthful and therefore,
does not inspire confidence of the Court.
11 Apart from the above said facts of the case, it is pertinent to
note that the time of recording the statement at Exh. 34 is not
mentioned in the statement.
12 In this case, while recording the statement of the accused
under section 313 of the Code of Criminal Procedure, 1973, no
question was put to the accused in respect of the contents of the dying
declaration which is at Exh. 34. The precise reason could be that P.W. 1
has not stated the said contents before the Court and therefore, all that
can be inferred is that a statement of the victim was recorded. It is
apparent on the face of the record that the most incriminating
circumstance against the accused has not been put to him rather he
was not confronted with the incriminating circumstances for which he
could be convicted for life.
13. It would be appropriate to place implicit reliance on the
judgment of the Apex Court in the case of Shaikh Maqsood v/s. State
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of Maharashtra1, wherein it is held as follows :
"6. The purpose of Section 313 of the Code is set out in its
opening words- `for the purpose of enabling the accused to
explain any circumstances appearing in the evidence against
him.' In Hate Singh, Bhagat Singh v. State of Madhya Pradesh
(AIR 1953 SC 468) it has been laid down by Bose, J that the
statements of accused persons recorded under Section 313 of the
Code `are among the most important matters to be considered at
the trial'. It was pointed out that the statements of the accused
recorded by the committing magistrate and the Sessions Judge
are intended in India to take the place of what in England and in
America he would be free to state in his own way in the witness
box and that they have to be received in evidence and treated as
evidence and be duly considered at the trial. This position
remains unaltered even after the insertion of Section 315 in the
Code and any statement under Section 313 has to be considered
in the same way as if Section 315 is not there.
7. The object of examination under this Section is to give the
accused an opportunity to explain the case made against him.
This statement can be taken into consideration in judging his
innocence or guilt. Where there is an onus on the accused to
discharge, it depends on the facts and circumstances of the case
if such statement discharges the onus."
1 2009(6) SCC 583
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The Supreme Court has further held that -
"The whole object of the section is to afford the accused a fair
and proper opportunity of explaining circumstances which
appear against him and that the questions must be fair and must
be couched in a form which an ignorant or illiterate person will
be able to appreciate and understand. A conviction based on the
accused's failure to explain what he was never asked to explain is
bad in law. The whole object of enacting Section 313 of the Code
was that the attention of the accused should be drawn to the
specific points in the charge and in the evidence on which the
prosecution claims that the case is made out against the accused
so that he may be able to give such explanation as he desires to
give."
14 In the present case, the Special Executive Magistrate has
failed to testify before the Court the narration of facts which were
disclosed to her by the victim, which would lead to the transaction in
which she had sustained burn injuries and had subsequently died. It
is for this reason, there is failure on the part of the prosecution to bring
the contents of the statement before the Court and the most
incriminating circumstance against the accused. The accused had no
opportunity to give any explanation about the most incriminating
circumstance against him. It is in view of this that the appeal deserves
to be allowed.
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15 Hence, following order is passed :
ORDER
(i) The appeal is allowed.
(ii) The conviction and sentence passed against the appellant
for the offence punishable under section 302 of the Indian Penal Code
recorded by the Additional Sessions Judge, Malegaon in Sessions Case
No. 90 of 1991 vide Judgment and Order dated 17/8/1996 is hereby
quashed and set aside.
(iii) The accused - appellant is acquitted of all the charges
levelled against him.
(iv) The bail bond stands cancelled.
(v) Fine amount, if paid, be refunded.
(vi) The appeal is disposed of accordingly.
(N.R. BORKAR, J) (SMT. SADHANA S. JADHAV, J)
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