Sandip Prakash Rathod vs The State Of Maharashtra
2022 Latest Caselaw 13252 Bom

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                                        1



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                        CRIMINAL APPEAL NO.286 OF 2015


 Sandip Prakash Rathod,
 Age-30 yeas, Occupation:Agricultural,
 R/o-Pimperkhed, Tq-Mantha,
 District-Jalna.
                                                    ...APPELLANT
                                                (Orig. Accused No.1)
        VERSUS

 The State of Maharashtra
                                                       ...RESPONDENT

                   ...
      Mr.Joydeep Chatterji Advocate for Appellant.
      Mr.S.J. Salgare, A.P.P. for Respondent-State.
                   ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       RAJESH S. PATIL, JJ.

DATE OF RESERVING JUDGMENT : 29th JULY 2022

DATE OF PRONOUNCING JUDGMENT : 20th DECEMBER 2022

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

1. Appellant is the husband of deceased Kavita, who stood

prosecuted and convicted for committing offence punishable

under Section 302 of the Indian Penal Code in Sessions Case

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No.24 of 2014 by the learned Additional Sessions Judge, Jalna,

on 2nd March 2015. He has been directed to undergo

imprisonment for life and to pay fine of Rs.1500/-, in default of

payment of fine, to suffer rigorous imprisonment for six months.

It will not be out of place to mention here that appellant is the

original accused No.1 and along with accused Nos.2 to 5, he

stood prosecuted for the offence punishable under Sections 302,

498-A read with Section 34 of the Indian Penal Code, however all

of them have been acquitted of the offence punishable under

Section 34 of the Indian Penal Code. Accused Nos.2 to 5 were

also acquitted of the offence punishable under Section 302 of the

Indian Penal Code.

2. The prosecution story, in short, is that Kavita who was

aged 27 years, got married about 9 years prior to her death with

accused No.1 i.e. present appellant. She had a son, aged 8 years

and a daughter, aged six years. According to the prosecution, the

husband as well as the in-laws and other relatives of husband

i.e. in all accused Nos.1 to 5 used to raise suspicion over the

character of Kavita. She was assaulted and abused under the

influence of liquor. She was at home at about 11.00 a.m. on 17 th

September 2013 when accused No.1 had poured kerosene on

her person. Then Kavita got annoyed and abused the husband.

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The husband got annoyed with her and ignited the match stick

and set her to fire. Thereafter, accused Nos. 2 to 5 had

extinguished the fire and took her to Mantha Government

Hospital. She was then referred to Civil Hospital, Jalna. While

under treatment, she gave the dying declaration, which came to

be recorded by police head constable Rangrao Sardar. The said

dying declaration has been treated as First Information Report

and further investigation has been undertaken.

3. Statements of witnesses have been recorded and at that

stage the offence was under Section 307 of the Indian Penal

Code and other Sections. But thereafter Kavita expired on 21 st

September 2013 and then, after drawing the inquest

panchnama, the dead body was sent for postmortem. After the

postmortem, the dead body was handed over to the relatives.

Statements of the relatives were recorded and prior to that

panchnama of the spot came to be executed. Certain articles

came to be seized from the spot. The seized articles were sent

for chemical analysis. Some of the accused persons came to be

arrested and others had obtained anticipatory bail. After

completion of the investigation, charge-sheet came to be filed.

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4. After the committal of the case, the learned Additional

Sessions Judge framed charge against all the accused persons at

Exhibit-13 for the offence punishable under Sections 498-A, 302

read with Section 34 of the Indian Penal Code. All the accused

pleaded not guilty. Trial has been conducted. Prosecution has

examined in all eight witnesses to bring home the guilt of the

accused. After taking into consideration the evidence on record,

the other documents, statement of the accused persons under

Section 313 of the Code of Criminal Procedure and hearing both

the sides; as aforesaid, the learned Additional Sessions Judge

has held accused No.1 guilty of committing offence under

Section 302 of the Indian Penal Code and the rest of the accused

as well as even accused No.1 under rest of the charges have

been acquitted. Hence this Appeal by original accused No.1.

5. Heard Mr. Joydeep Chatterji, learned Advocate for the

appellant and Mr. Salgare, learned APP for the State.

6. It has been vehemently submitted on behalf of the

appellant - husband that the conviction is solely based on dying

declaration Exhibit-31 recorded by PW-5 police head constable

Sardar. PW-8 Dr. Ramteke was the duty medical officer who had

given endorsement on dying declaration Exhibit-31. Perusal of

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the dying declaration together with the entire evidence of PW-5

Sardar and PW-8 Dr. Ramteke, it can be seen that the dying

declaration is a concocted document. The thumb impression on

the dying declaration is not attested. The dying declaration was

not read over to the deceased. So also, it does not appear to be

in the words of deceased Kavita. The contents if considered with

the testimony of other relatives, it can be seen that some

concocted story was prepared. Death occurred three days after

the alleged incident. There was no attempt on the part of the

investigating agency to record the dying declaration once again

though PW-5 Sardar says that intimation was given to the

Tahsildar i.e. Executive Magistrate to record the dying

declaration of the deceased. Other major witnesses have turned

hostile. The relatives have negatived that there was any kind of

ill-treatment to the deceased. Under such circumstance, when

there was no motive at all to the appellant to commit the crime,

he cannot be held guilty. Only dying declaration cannot be relied

to award conviction. The learned trial Judge has not appreciated

the evidence properly.

7. The learned Advocate appearing for the appellant relied on

the Full Bench decision of this Court in Ganpat Bakaramji Lad

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vs. The State of Maharashtra, 2018 ALL MR (Cri) 2249,

wherein it has been held thus:-

" In respect of the dying declaration, the general principles to be kept in mind are

(i) that it is not a weaker kind of evidence and it stands on the same footing as other evidence, and (ii) that there is no absolute rule of law that it cannot form the sole basis of conviction, unless corroborated by other independent evidence. The first step required to be taken in every case, is to consider the three-fold questions as under :

(a) Whether a declarant had an opportunity to observe and identify the assailant or the accused?,

(b) Whether a declarant was in a conscious and fit condition at the time of recording the statement?, and apeal186.13.odt

(c) Whether the Court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?

The absence of an endorsement in the dying declaration -

(a) by a doctor regarding the fitness of mind of the declarant, or

(b) that the statement was read over and explained to the declarant, who found it to be correct, cannot be the reason for holding that the dying declaration is unacceptable, if the Court is otherwise satisfied that such a dying declaration inspires confidence.

The rejection of the dying declaration cannot be on the solitary instance of absence of endorsement of reading over and explaining

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the declaration and the declarant confirming it to be true. It will always depend upon the facts and circumstances of each case. We are clearly of the view that it will be a cumulative effect of the facts and circumstances of the case, which will determine such issues. The presence or absence of a particular fact or circumstance or a situation in a given case may become significant, whereas it may become insignificant in another apeal186.13.odt case. The mode and manner of appreciation of evidence differs from case to case, though the principles of appreciation of evidence may be the same. The perception of the matter in each case and the manner of the appreciation of evidence differs from person to person. Hence, there cannot be a strait-jacket formula or hard and fast rule which can be laid down.

Neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribe any particular format in which a dying declaration is to be recorded. It can be oral as well as written. In case of oral dying declaration, the question of existence or insistence upon reading over and explaining the declaration to the deceased does not arise. If that be so, how can such insistence be in respect of written dying declaration? It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. Such a requirement therefore cannot be held as mandatory.

The observations in the cases of Shaikh Bakshu 2007 ALL SCR 2407 and Kantilal (2009) 12 SCC 498, are based on the facts and would not, therefore, constitute a precedent or a ratio decidenti or even an obiter dicta to hold that bearing such an endorsement in the dying declaration is must. In our view, it would be unjust to reject the dying declaration only on such hyper technical view, which hardly of any help in the matter of criminal trials. "

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8. Per contra, the learned APP strongly opposed the Appeal

and submitted that even the dying declaration as a sole evidence

can be relied to convict an accused if it is found to be reliable. If

the dying declaration inspires confidence then it can be relied on.

A person will not lie on his death bed, therefore, proper

weightage is required to be given to those statements of a

person who makes those statements when he is on death bed.

Here, the learned trial Judge has held that the dying declaration

is inspiring confidence. The concerned police officer, after

receiving the intimation, had gone to the doctor. PW-8 Dr.

Ramteke had made endorsement about the mental condition of

the deceased Kavita at that time. When he had found that she

was in a mental condition to give statement, PW-8 Dr. Ramteke

allowed PW-5 Sardar to record the dying declaration. The thumb

part was not required to be attested, as the document in its

entirety is required to be considered and it was the statement of

Kavita and therefore, we can take that the said thumb

impression was that of deceased Kavita. Though the other

relatives of deceased Kavita had turned hostile, yet her own

statement on the death bed is required to be weighed more. The

learned APP has supported the reasons given by the learned

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Additional Sessions Judge and submitted that conviction does

not require any interference.

9. At the outset, it will have to be considered from the record

that whether dying declaration can be the sole basis for

conviction and if yes, then whether in the present case the dying

declaration Exhibit-31 is inspiring confidence or not. As regards

the first part of the question is concerned, it is already answered

in the various decisions of the Hon'ble Supreme Court as well as

this Court that the dying declaration can be the sole basis of

conviction if it is true and voluntary. Further, a dying declaration

recorded by the police officer is also admissible. However, in

order to adjudicate as to whether the dying declaration is true,

voluntary and inspiring confidence, we will have to scan the

evidence.

10. In the present case, PW-1 Shyam Rathod - panch to the

spot panchnama, PW-2 Sunil Chavan - panch to the seizure of

clothes of accused No.1, PW-3 Balchand Chavan - father of

deceased Kavita, PW-4 Prakash Balchand Chavan - brother of

deceased Kavita, all of them turned hostile. PW-6 PSI Limbaji

Shelke is the investigating officer. PW-7 Dr. Ravindra Bedarkar is

the autopsy surgeon, who proved the postmortem report Exhibit-

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46. PW-5 police head constable Sardar and PW-8 Dr. Ramteke

have been examined on the point of dying declaration

Exhibit-31.

11. PW-7 Dr. Ravindra Bedarkar has deposed that dead body of

Kavita Rathod was brought to civil hospital, Jalna on 30 th

September 2013 for autopsy. In fact it appears to be a

typographical mistake committed by the learned Additional

Sessions Judge while recording the deposition, for the simple

reason that if we peruse the postmortem report Exhibit-46, it

says that the dead body was received at about 10.00 a.m. on

21st September 2013, the postmortem was started at about

10.05 a.m. on 21st September 2013 and was ended by 11.00

a.m. on 21st September 2013. The learned trial Judge ought to

have been alert while recording the evidence. If there was any

controversy in the document and the deposition, it ought to have

been got clarified immediately during the deposition itself. The

Judicial Officer, while recording evidence, is expected to be alert

and he or she should get involved in the said process, so that

there should be no confusion either to themselves or even to the

appellate authorities. The postmortem report, at the end, also

states that it has been given on 21st September 2013. Important

point to be noted is that a cryptic examination-in-chief appears

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to have been taken on behalf of the prosecution. PW-7 Dr.

Bedarkar states that he found that there was evidence of 100%

superficial to deep burns and the cause of death was, due to

septicemia due to 100% superficial to deep burns. It is also to be

noted that Column No.17 of the postmortem report only states

that there was evidence of 100% superficial to deep burns. The

percentage of burns on each limb was not given and it was not

even tried to be extracted by anybody. There is no cross-

examination to this witness on behalf of the accused also.

Therefore, we can conclude that Kavita died due to burn injuries

those were sustained by her. In case of death by burn injuries,

three possibilities would be initially created, first is accidental,

second is suicidal and third is homicidal. The burden is on the

prosecution to prove that the burn injuries sustained by Kavita

were homicidal in nature only in order to bring the case under

Section 299 of the Indian Penal Code. In other words, the

prosecution will have to rule out the possibility of accidental and

suicidal burn injuries. The postmortem report by itself will not

prove the same.

12. Before proceeding further, we will have to bear it in mind

that other accused persons as well as the present appellant have

been acquitted by the learned trial Judge for the offence

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punishable under Section 498-A read with Section 34 of the

Indian Penal Code. The question, therefore, would be as to what

was the motive for the appellant to commit such crime. Further,

as aforesaid, all the relatives of deceased Kavita turned hostile.

Therefore, there is no support to the theory of the prosecution

that there was some motive for the appellant to commit the said

crime. Under such circumstance, the dying declaration is the

only piece of evidence now left to support the prosecution story.

13. Further, before turning to scan the evidence of PW-5

Sardar and PW-8 Dr. Ramteke, it will have to be considered that

incident had taken place, as per the prosecution story, around

11.00 a.m. on 17th September 2013. Kavita was initially taken to

Government Hospital, Mantha and then she was referred to Civil

Hospital, Jalna. Prosecution has not examined anybody nor any

document was collected from the Government Hospital, Mantha.

At what time she was taken there, what was the history that was

told etc. is kept in dark. PW-8 Dr. Ramteke appears to be the

medical officer who had given treatment to Kavita, but when he

came for deposition, he had not brought the case papers. In his

cross-examination he has claimed that without going through

those case papers, he will not be in a position to say what kind

of medical treatment was given to Kavita on that day. In fact, it

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has not even been brought on record as to the time at which

Kavita was admitted to Civil Hospital, Jalna. It is then stated that

the dying declaration was recorded between 6.10 p.m. to

6.50 p.m. on 17th September 2013. But PW-8 Dr. Ramteke in his

cross-examination says that he will not be able to say what

treatment was given to Kavita before 6.10 p.m. on that day.

Whether any sedative was given to her or not and what was the

assessment of the injuries on her person, is all kept in dark by

the prosecution. When there was evidence of 100% burn injuries

and then PW-8 Dr. Ramteke in his examination-in-chief also says

that at the time of admission she has 100% burn injuries, but he

has not bifurcated it limb-wise, then whether she was in a

position to speak, was she conscious, oriented etc., all appears

to be the guess work of PW-8 Ramteke on the day of his

deposition only on the basis of Exhibit-31 i.e. dying declaration,

because he was not supported with case papers. The

investigating officer has not collected the case papers from the

hospital. Therefore, the testimony of PW-8 Dr. Ramteke is not

inspiring confidence. It appears that merely because the police

official was asking for an endorsement, it appears that he has

given the same. Further from the bare perusal of dying

declaration Exhibit-31, it can be seen that the upper

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endorsement is written afterwards, that means after the

statement was recorded, and therefore there is overlapping.

Further, the endorsement at the end has erasers. Word " होता "

has been scored and added with " आहे ". It is also overlapping to

the signature. The end endorsement originally appears to be

"certified that the patient was in conscious state at the end of

the statement" and now after scoring, the word " होता ", it reads,

"certified that patient is in conscious state at the end of the

statement". Therefore, it appears that the mistake was

thereafter realized and the scoring has been done. There is

absolutely no explanation taken by the prosecution from PW-8

Dr. Ramteke as to why the earlier word was scored.

14. PW-5 police head constable Sardar has stated that he was

attached to medical police chowki at Civil Hospital, Jalna on 17 th

September 2013. He received MLC pertaining to Kavita and then

he met to doctor in burn patients ward. Doctor put endorsement

that the patient is in a condition to give statement. Thereafter,

he recorded the statement. According to him, Kavita told before

him that her husband, in-laws, husband's brother and his wife

were suspecting her character since long. On the day of incident,

she was sleeping at about 11.00 a.m. on 17 th September 2013

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and then her husband poured kerosene on her person

whereupon she got annoyed and abused her husband. Thereafter

her husband got annoyed and set her to fire with the help of

match stick. Her mother-in-law and brother-in-law came and

they extinguished fire by pouring water on her person and then

she was taken to Mantha Hospital and then to Civil Hospital,

Jalna. He says that the statement was read over to Kavita and

thereafter she had put her right thumb impression. He had then

signed it and after the conclusion the doctor had again put his

remark and signature. It is to be noted that in his cross-

examination, PW-5 has stated that he will not be able to state

the time when Kavita was referred to Civil Hospital, Jalna.

Medical treatment has started to Kavita when he was near her.

Kavita had sustained burn injuries all over her body. She was in

pains. PW-5 police head constable Sardar has not explained as to

why he had taken right thumb impression of Kavita on

Exhibit-31. In fact it is always the practice to take thumb

impression of left hand on any document and if it is not possible

for some reason to take the thumb impression of left hand then

only the thumb impression of the right hand would be taken and

for this purpose it was necessary on the part of the prosecution

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to prove as to what had happened to the left hand of Kavita

when she was admitted to Civil Hospital, Jalna.

15. Another fact that is required to be considered from Exhibit-

31 is that there is only one statement that accused Nos.1 to 5

were raising suspicion over the character of Kavita since long. As

aforesaid, Kavita's relatives i.e. father and brother are not

supporting to this statement. Her marriage had taken place nine

years ago and she had two children. In this background, as to

what had happened for the accused persons to raise suspicion

over her character at such a late stage itself, is a question and

prosecution has not tried to give answer to the same. This

statement cannot lead us to conclude that there was a motive

for appellant to commit the crime. Another thing that is

surprising is that Kavita's maternal home, Pimparkheda appears

to be a small village and it is hard to believe that she has been

allowed to sleep till 11.00 a.m. She says that she was sleeping

at about 11.00 a.m. when appellant poured kerosene on her

person. It is not her statement or words that as she was sleeping

till 11.00 a.m., husband got annoyed and then poured kerosene

on her person. Why she was sleeping even in that odd hours

taking into consideration the village background, cannot be

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gathered. Further, if she was sleeping, then prior to that nothing

had happened. It has not been brought on record by the

prosecution that something had happened in the morning and

therefore she was sleeping, which annoyed the appellant. What

was the reason for appellant to pour kerosene on her person, is

a question. In the entire evidence led by the prosecution, we are

unable to get answer to this question. Prosecution has not

examined Kavita's children, who were expected to be at home in

the normal course, provided they would have gone to attend the

school etc. Another factor that appears to have not been

considered by the trial Court is that in her dying declaration

Kavita has stated that after the husband poured kerosene on her

person she got annoyed and abused the husband, then husband

got annoyed and then set her on fire. The trial Court has not

gone into the aspect as to whether the deceased had provoked

accused - appellant. We need not go into that aspect for the

simple reason that the dying declaration itself is not inspiring

confidence. It does not appear to be true and it is also not

supported by the case papers, of which details were necessary,

as to whether the sedative was started, what was the position of

the left hand of Kavita etc.

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16. Though the dying declaration can be the sole basis of

conviction, yet as this dying declaration Exhibit-31 fails to

comply the yardsticks, it is not reliable. Even after considering

the ratio in Ganpat Bakaramji Lad vs. The State of

Maharashtra (supra), the dying declaration in the present case

is not inspiring confidence. Further, part of it has been, in a way

rejected by the trial Court itself while acquitting the present

accused as well as other accused for the offence punishable

under Section 498-A of the Indian Penal Code. Such bifurcation

or acceptance in part only, cannot be allowed. The dying

declaration will have to be read in its entirety. At the cost of

repetition, it can be said that since there are over writings also

and the aforesaid unexplained facts leads us to conclude that

Exhibit-31, dying declaration is a concocted document or a

prepared document and it ought to have been discarded outright

by the learned Additional Sessions Judge. The conviction based

on the erroneous findings cannot be allowed to be sustained and

therefore, the Appeal deserves to be allowed by holding that the

prosecution had failed to prove the guilt of the accused beyond

reasonable doubt. Under such circumstance, following order is

passed:-

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ORDER

(I) Appeal stands allowed.

(II) The conviction awarded to the appellant - original accused No.1 - Sandip Prakash Rathod in Sessions Case No.24 of 2014 on 2nd March 2015 by the learned Additional Sessions Judge, Jalna by holding him guilty of committing offence punishable under Section 302 of the Indian Penal Code, stands set aside.

(III) The appellant be set at liberty, if not required in any other case.

(IV) It is clarified that there is no change in the rest of the order passed by the learned Additional Sessions Judge, Jalna.

 [RAJESH S. PATIL]                      [SMT. VIBHA KANKANWADI]
      JUDGE                                       JUDGE

 asb/DEC22