Kailas Laxman Chavan vs The State Of Maharashtra
2022 Latest Caselaw 971 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 298 OF 2021
                                   ALONG WITH
                       INTERIM APPLICATION NO. 1089 OF 2021
                                        IN
                         CRIMINAL APPEAL NO. 298 OF 2021

Kailas Laxman Chavan
Age- 28 years, Residing at
Tamkarwadi, Thangaon, Tq. Sinnar,
District-Nashik
[Presently at Nashik Road Central Prison] .APPLICANT/ACCUSED

         Versus

The State of Maharashtra
Through Senior Police Inspector,
Sinnar Police Station,
Taluka- Sinnar,
District- Nashik.                          ...RESPONDENT
                               ...
Mr. Vivek M Punjabi a/w. Ms. Shweta Bhagchandani for appellant.
Mr. Y M Nakhwa, APP for State.
                               ...
                        CORAM : S. S. SHINDE &
                                   N. R. BORKAR, JJ.

RESERVED ON: 4th JANUARY, 2022.

PRONOUNCED ON : 27th JANUARY, 2022

JUDGMENT: [PER S.S. SHINDE, J.]

1. The present appeal is preferred by the appellant (original

accused) being aggrieved by the judgment and order dated 4 th

February, 2021, passed by Additional Sessions Judge, Nashik,

thereby convicting him for the offences punishable under Section

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302 and 498-A of the Indian Penal Code, 1860 (hereinafter for short

'IPC').

2. The case of the prosecution in nutshell can be

summarized as under:-

Shobha Chavan (deceased) was the wife of the appellant.

After the marriage the accused used to doubt her character and

assault her under the infuence of alcohol. The accused mentally

and physically harassed Shobha by suspecting her character and

subjected her to cruelty by willful conduct. On 11.10.2016 at about

9.00 pm, after coming home under the infuence of alcohol, the

accused noticed one drinking pot, which was kept near the devhara

(place of worship in the house). After seeing the same, the accused

asked his wife if any outsider had come. However, when Shobha

(deceased) told the accused that the drinking pot was kept by the

accused himself, the accused got annoyed and abused her.

Thereafter, he poured kerosene on the person of Shobha and put

her ablazed. Thereafter, after 4 to 5 days, while being treated in the

hospital, Shobha (decreased) expired. In the meantime, on the

report of the informant (the deceased), the offence was registered.

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3. After registration of offence, investigation was carried

out. Investigating offcer carried out spot panchnama (Exhibit-16),

seized various articles from the spot of incident. Thereafter, on

13.10.2016, the investigating offcer arrested the accused by

preparing arrest panchnama (Exhibit-51). Thereafter, she recorded

the statement of witnesses and sent the seized muddemal to

forensic lab along with covering letter (Exhibit-52). After completion

of investigation, the investigating offcer has fled chargesheet. The

Judicial Magistrate First Class, Sinnar, committed the case to the

Court of Sessions, since offence punishable under Section 302 of

IPC is exclusively triable by the Court of Sessions. Charge was

framed against the accused for the offence punishable under

Section 302 of IPC and the accused pleaded not guilty. The accused

took the defence that the false case has been fled against him.

4. In order to prove its case the prosecution has examined

following witnesses- Kailas Uttam Gaikwad (PW1), Madhavrao

Kashinath Kokate (PW2), Khandu Ganpat Jedgule (PW3), Sitaram

Sahadu Lokhare (PW4), Dr. Sonali Ashok Gaidhani (PW5), Nitin

Ramnath Mandlik (PW6), Nivrutti Bhavani Chavan (PW7), Ashok

Fakira Ahire (PW8) and Dr. Nikhil Somnath Saindane (PW9).

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5. In addition to examination of aforesaid witnesses the

prosecution has also relied on the various documents including spot

panchnama (Exh.16), statement of informant (deceased) (Exh.20),

statement dated 12.10.2016 of the deceased (Exh. 34), inquest

panchnama (Exh.41), memorandum of postmortem examination

(Exh.44), muddemal pavti (Exh.50), arrest panchnama (Exh.51) and

C.A. report (Exh. 54).

6. After a full fedged trial, the trial Court convicted the

accused for the offences punishable under Section 302 and 498-A of

the IPC. Hence, this appeal.

7. Learned counsel appearing for the appellant has made

following submissions-

(i) The dying declaration recorded by the Executive

Magistrate is on a printed form and is in the form of a

questionnaire. Also, the questions asked by the Magistrate to the

deceased have been previously framed. There is difference in the

time recorded by the medical offcer. The medical offcer has

endorsed that Shobha (deceased) was ft to give a statement at

12.30 pm., and another endorsement at 12.50 pm. The total time

calculated for recording the said dying declaration is 62 minutes.

So, even if the doctor gave an endorsement at the beginning of the

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said dying declaration and another at the end, the time of the said

endorsement of the doctor is not correct and proper. The dying

declaration at Exhibit-20 and the statement at Exhibit-34 bears

only the thumb impression of the patient. Nitin Mahadik (PW6) in

his cross examination stated that he asked the patient (deceased)

whether she could sign, in reply she said that she could not sign,

and therefore, took her thumb impression. Whereas, Khandu

Jedgule (PW3) has stated in his cross examination that the

deceased could sign in Marathi and she did her education till 7 th

standard.

(ii) The dying declaration does not bear the seal of the

Magistrate. The Executive Magistrate has stated in his cross

examination that the dying declaration does not bear his seal. It is a

mandatory requirement for all medical legal certifcates that the

persons signature is associated with designation and the offce

stamp. Hence, the signature needs to be verifed before it is

accepted. Besides it should be witnesses by two persons of which

one should be the doctor. The dying declaration in the form of

questions and answers are disputed because dying declaration is a

statement given by the dying patient in her verbatim, no questions

asked nor suggested nor interpreted.

         (iii)     So, also there is no medical certifcate which would

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explain and assess the mental ftness of Shobha (deceased) while

giving statement (Exhibit-34) and the dying declaration (Exhibit-20).

The dying declaration at (Exhibit-20) and the statement at (Exhibit-

34) only bears endorsement of the medical offcer which states that

the patient is conscious, oriented and fr to give statement, but what

examinations were conducted by the medical offcer to assess the

medical ftness of the deceased while giving statement are neither

explained nor mentioned. The medical offcer i.e. Sonali Gaidhani

(PW5) in her cross examination stated that while putting her

endorsement on the statement and dying declaration, she has not

mentioned about the details of examination carried out by her

before and after recording the statement. The police hawaldar (PW6)

has stated in his cross examination that the doctor informed him

orally that the patient was in a mentally and physically ft condition

to give statement. The Executive Magistrate has stated in his cross

examination that he cannot say the exact nature of examination

done by the doctor to ascertain the mental and physical ftness of

the deceased to record the statement.

(iv) The deceased herself in her statement stated that the

accused poured water on her and tried to douse the fre. Whereas,

the father of the deceased has stated in his examination in chief

that he met deceased and she told her that the accused poured

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kerosene on her and set her on fre but has also stated in his cross

examination that her daughter did not tell him that the accused

poured water on her and tried to douse the fre. The postmortem

report mentions burns all over the body except some place i.e. over

the upper limbs which means that the face and the tongue of the

deceased which would have been diffcult or rather not possible for

the deceased to speak, and that is why Sitaram Lokare (PW4) in his

cross examination has stated that the deceased was having

diffculty in speaking. Whereas, the doctor, hawaldar, Executive

Magistrate have stated that the deceased was in a ft state to give

statement. Based on the statement about the burns described over

the body it is implied that the fngers are also involved. Hence, it is

unlikely for the fngers to retain prints in superfcial and deep burns

as described by the doctor, who conducted the postmortem. As far

as the total percentage of the burns is concerned, it is true to say

that there are serous discrepancies between the doctor's description

of burns over the body and the percentage estimation. Inquest by

police indicate 90%, but the doctor estimate is 72%, but his

description confrms 90%, the doctors appeared to have erred in

calculating the burns and describing it because he says it is 72%,

but his description confrms it as 90%.

         (v)       The other important aspect that cannot be ignored is

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that in cases of patient who suffered severe burns (72-90%), the

patients are treated in Burn ICU, which is highly sterile area,

wherein no other person other than the doctor and paramedics are

allowed, to prevent nosocomial infection or external infections.

Hence, in such conditions it is surprising as how police personnel

or Magistrate was allowed to do the investigation or record dying

declaration. Kailas Gaikwad (PW1), who is panch witness, in his

cross examination has clearly stated that there were no recoveries

as to lamp or any matchstick from the spot of incident. As per the

statement given by the deceased which is recorded as dying

declaration at (Exh.20), and another statement at (Exh.34) the

accused with the help of their neighbours i.e. Sanjay Chavan,

Kachru Chavan, Sharad Chavan and Dnyaneshwar Chavan took the

deceased to the hospital at Nashik in the pickup car. However, the

prosecution has not examined these four important witnesses who

accompanied the accused in taking deceased to the hospital. The

deceased has stated in her dying declaration and in her statement

given to the police that the accused set her on fre by pouring

kerosene on her. But the deceased has also stated that the accused

himself poured water on her when the deceased started burning

and tried to douse the fre and called the neighbours for help and

then he took her to the hospital.

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         (vi)      The deceased and her relatives have stated that the

accused used to harass her mentally and physically under the

infuence of alcohol. But, no complaints have been lodged by them

against the accused in the past. Khandu Jedgule (PW4) has stated

in his cross examination that he never lodged any complaint against

the accused about the harassment to her daughter. Nivrutti Chavan

(PW7), who is the relative of deceased in his cross examination

stated that the accused used to assault the deceased under the

infuence of alcohol and doubt her on character, but no complaint

has been lodged against him in the past. The relatives of the

deceased in their cross examination have stated that they were

angry on the accused when the deceased told them in the hospital

that the accused set her on fre. Nivruttin Chavan (PW7) has stated

that the accused in the hospital told him that the deceased suffered

burn injuries on her own and later the deceased informed them that

the accused set her on fre and later in his cross examination has

stated that when the deceased informed him that the accused set

her on fre and all of then were very angry. Sitaram Lohakare (PW4)

has stated that there was a dispute between the accused and father

of the deceased 4 to 5 years prior to the incident. Khandu Jedgule

(PW3), who is father of deceased in his cross examination stated

that since her daughter was burnt he was very angry.

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In support of aforesaid contention, the learned counsel

appearing for the appellant placed reliance on following reported

judgments- Jayamma & Anr. vs. State of Karnataka1, Sampat Babso

Kale Vs. State of Maharashtra2, Panchdeo Singh Vs. State of Bihar 3,

Paparambaka Rosamma & Ors. Vs. State of A.P. 4, Sham Shankar

Kankaria Vs. State of Maharashtra5, Chacko Vs. State of Kerala6

and Laxman Vs. State of Maharashtra7.

8. On the other hand, learned APP appearing for State

relying upon two dying declarations at Exhibit-20 and Exhibit-34,

so also oral dying declaration made before four prosecution

witnesses submits that the trial Court has properly appreciated the

evidence on record and arrived at correct conclusion, and therefore,

this Court may not interfere in the impugned judgment and order.

9. With the able assistance of learned counsel appearing for

the appellant and learned APP appearing for the State, we have

carefully perused the dying declaration at Exhibit-20 recorded by

Circle Offcer- Madhavrao Kokate. So far core of the prosecution

case is concerned, Shobha (deceased) stated that the accused

1 (2016) 6 SCC 213 2 (2019) 4 SCC 739 3 (2002) 1 SCC 577 4 (1999) 7 SCC 695 5 (2006) 13 SCC 165 6 (20030 1 SCC 112 7 (2002) 6 SCC 710

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poured kerosene on her body, and thereafter put her on fre.

Further, she stated that the accused even tried to douse the fre by

pouring water, and thereafter, the accused with the help of

neighbours took her to the hospital.

10. The prosecution has examined the Medical Offcer and

he stated that he had given endorsement that Shobha (deceased)

was in a ft mental condition and oriented while giving dying

declaration at Exhibit-20 and Exhibit-34.

11. Madhavrao Kokate (PW2), who recorded the dying

declaration has also deposed before the Court that he has recorded

the dying declaration correctly and has followed all the procedure.

12. Upon conjoint reading of evidence of medical offcer so

also PW2 and the contents of dying declaration, we are of the

opinion that the trial Court has rightly placed reliance upon said

dying declarations.

13. The another dying declaration is recorded at Exhibit-34.

In the said dying declaration also Shobha (deceased) stated that the

accused poured kerosene on her body, and thereafter put her on

fre.

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14. Upon careful perusal of both the dying declarations and

evidence of witnesses, we are of the view that that the dying

declaration at Exhibit-34 also deserves acceptance. In both the

dying declarations at Exhibit-20 and 34, the testimony of the

deceased is consistent that the the accused poured kerosene on her

body, and thereafter put her on fre. Therefore, substratum of

prosecution case that the accused poured kerosene on the person of

Shobha (deceased) and set her ablaze is consistent.

15. The prosecution has examined Khandu Jedgule (PW3),

Sitaram Lohakare (PW4), and Nivrutti Chavan (PW7). They have

stated that Shobha (deceased) made oral dying declaration with

them and stated about the act of the accused of pouring kerosene

on the person of Shobha (deceased) and set her ablaze. Therefore,

the said oral declaration made before these aforesaid witnesses

corroborates with the two written dying declarations at Exhibit-20

and Exhibit-34. It has also come in the evidence of PW3, PW4 and

PW7 that the appellant was in habit of giving cruel treatment to the

Shobha (deceased) and also used to harass her.

16. In the light of evidence of aforesaid witnesses an

irresistible conclusion is that the appellant committed act of

pouring kerosene on the person of Shobha (deceased), and set her

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ablaze. However, if prelude of said incident is carefully seen, it

appears that the accused entered in the house and saw one pot

near the devhara (place of worship) and suspected that some other

person entered in the house and kept the pot at the said spot.

However, it appears from the contents of dying declaration that wife

of the appellant told him that the said pot was kept by the accused

himself. However, the accused without pre-meditation, suddenly on

suspicion that some other person has come to his house, lifted the

kerosene can, poured the kerosene and set her wife on fre. The act

of the accused was not pre-meditated or designed and at the

relevant time as it has come in the dying declaration that he was

under the infuence of alcohol and committed the said act. It is

recorded in the dying declaration that the appellant after

committing said act of pouring kerosene and setting her wife ablaze,

tried to douse the fre by pouring water on the person of Shobha

(deceased), and thereafter, taken her to the hospital. Therefore,

keeping in view the evidence on record so also the attending

circumstances, we alter the conviction from Section 302 of the IPC

to Section 304 Part II of the IPC, and we impose a sentence of

rigorous impressionist of 10(ten) years on the appellant-accused.

Hence, the appeal is partly allowed, and disposed of accordingly.

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17. In view of disposal of appeal nothing survives for

consideration in the Interim Application No. 1089 of 2021. Hence,

the interim application stands disposed of.

      (N. R. BORKAR, J.)                           (S. S. SHINDE, J.)




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