Raju S/O. Bhagirath Irche vs The State Of Maharashtra
2023 Latest Caselaw 11361 Bom

2023:BHC-AUG:24037-DB


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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD


                                   CRIMINAL APPEAL NO.517 OF 2017
                                               WITH
                                CRIMINAL APPLICATION NO.1375 OF 2018
                                         IN APEAL/517/2017

            Raju s/o Bhagirath Irche
            Age: 30 years, Occu.: Labour,
            R/o. Misarwadi, Taluka and
            District Aurangabad.                                                  .. Appellant

                  Versus

            The State of Maharashtra
            Through Police Station Officer,
            Police Station Jawaharnagar,
            District Aurangabad.                                                  .. Respondent

                                                ...
            Ms. Poonam V. Bodke Patil, Advocate for the appellant.
            Mr. A. M. Phule, APP for the respondent - State.
                                                ...

                                               CORAM :     SMT. VIBHA KANKANWADI AND
                                                           ABHAY S. WAGHWASE, JJ.

                                    RESERVED ON :          16th October, 2023
                              PRONOUNCED ON :                  6th November, 2023


            JUDGMENT [Per Smt. Vibha Kankanwadi, J.] :-


            .     Original accused - present appellant takes an exception to challenge

his conviction in Sessions Case No.397 of 2010 by learned Additional

Sessions Judge, Aurangabad on 17.02.2017, by holding the appellant guilty

of committing offence punishable under Section 302 of Indian Penal Code.

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2. The prosecution story is that deceased Shital Bansilal Manpure @

Shital Arjun Patthe @ Shital Raju Irche (as these names are appearing in

the record) came to be admitted with Ghati Hospital, Aurangabad on

26.05.2010. The Medico Legal Certificate is stated to be given on

13.06.2010 to the police chowki situated within the hospital premises. She

was admitted with 59% superficial to deep burns. After the Medico Legal

Certificate was given, P.W.5 PHC Kautik Gore was asked by PSO Jawahar

Nagar Police Station to carry out the further activities. Thereafter, he went

to hospital and recorded the dying declaration around 11.40 p.m. after

getting the endorsement by the medical officer that Shital was in a fit state

of mind to give the statement. On the basis of said statement, offence came

to be registered on 14.06.2010 under Section 307 of Indian Penal Code

vide Crime No.96 of 2010. Thereafter, he gave letter to P.W.3 Dulaji Mendke

- Naib Tahsildar cum Executive Magistrate on 14.06.2010 to record the

statement of Shital. Accordingly, P.W.3 Mendke went to hospital and

recorded dying declaration Exhibit-37 between 9.42 a.m. to 10.05 a.m.

3. It was revealed that deceased Shital was residing with the appellant

and P.W.2 Akash Deepak Patthe. It was also revealed from the dying

declaration and the statement of witnesses that Shital was earlier married

to one Deepak Patthe. P.W.2 Akash is their son, however, at the time of

incident and about four years prior to the incident, Shital was not residing

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with Deepak, but accused was residing with her. It is said that they were

staying as husband and wife, but they were not married. After the offence

was registered, investigation was undertaken. Panchanama of the spot

came to be executed. Statement of P.W.2 Akash came to be recorded, so also

that of the other witnesses. Shital was expired on 24.06.2010 and

thereafter intimation was given to the police and then after executing

inquest panchanama, the dead body was sent for postmortem and offence

under Section 302 of Indian Penal Code came to be added. Accused came

to be arrested and after the completion of investigation, charge-sheet was

filed.

4. After the committal of the case, charge was framed against the

appellant. He pleaded not guilty. The prosecution, therefore, examined in

all eight witnesses to bring home the guilt of the accused. After the

evidence on record and hearing both sides, the learned Trial Judge held

that the offence has been proved by the prosecution and, therefore, the

accused came to be convicted and sentenced to suffer imprisonment for life

and to pay fine of Rs.10,000/-, in default, to suffer simple imprisonment for

six months for the offence punishable under Section 302 of Indian Penal

Code. Set off was granted under Section 428 of the Code of Criminal

Procedure. This is the judgment and order which is under challenge in this

appeal.

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5. Heard learned Advocate Ms. Poonam V. Bodke Patil for the appellant

and learned APP Mr. A. M. Phule for the respondent - State.

6. It has been vehemently submitted on behalf of the appellant that the

learned Trial Judge has absolutely not appreciated the evidence properly.

The Trial Court failed to consider that the first dying declaration i.e.

Exhibit-52, which was recorded by P.W.5 Kautik Gore was after many days

of the incident and the delay in recording the dying declaration has not

been explained by the prosecution. Dying declaration recorded by P.W.3

Mendke - the Naib Tahsildar is after the FIR. The learned Trial Judge failed

to consider that P.W.2 Akash has turned hostile, though as per the

prosecution story he was inside the house when the alleged incident took

place in the house. P.W.6 Sunita Bhagure, who is the niece of Shital, was

not present in the house or near the house when the incident took place.

She admits that deceased was staying with the appellant, but that

circumstance cannot be considered when P.W.2 Akash is not saying the

presence of accused at the relevant time inside the house. The prosecution

has also not examined the medical officer, who examined deceased

immediately after her admission. The apparent corroboration in both the

dying declarations cannot be simply accepted as gospel truth when overall

evidence and situation is required to be considered. P.W.2 Akash in his

examination-in-chief rather says that there was quarrel between his mother

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and accused at night time and then he woke up, but thereafter his mother

had poured kerosene on her person and set herself to fire. There was no

scope for invoking Section 106 of Indian Evidence Act when the

prosecution witness himself is saying that the act has been done by the

deceased herself and not by the accused. Though bed head ticket i.e.

treatment papers were produced on record, yet the notings do not show

that at any point of time prior to the FIR deceased had conveyed it to police

as to how she received burn injuries. Therefore, the learned Trial Judge

ought to have acquitted the appellant by holding that the offence has not

been proved beyond reasonable doubt.

7. Per contra, the learned APP strongly supported the reasons given by

the learned Trial Judge while convicting the appellant. Both the dying

declarations have been legally recorded. The cross-examination of P.W.3

Mendke, P.W.6 Sunita and P.W.7 Dr. Saiful Islam would show that all the

relatives were asked to go out when the dying declaration was recorded.

That means the procedure that was adopted was perfectly legal. The

presence of the accused in the house of deceased appears to have not been

denied. Therefore, naturally the burden would get shifted on the shoulders

of the accused to prove or bring those circumstances on record, which

caused injury to deceased Shital. There is no merit in the present appeal.

It deserves to be dismissed.

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8. It appears that the learned Trial Judge has come to the conclusion

that the prosecution has proved the offence on the basis of both the dying

declarations Exhibit-52 and Exhibit-37, which came to be recorded by P.W.5

Kautik Gore and P.W.3 Mendke respectively. Therefore, the law on manner

of appreciation of evidence in the form of dying declaration as well as

settled principles which are culled out by the Hon'ble Apex Court from the

various landmark cases like Khushal Rao vs. State of Bombay; AIR 1958 SC

22, Paniben vs. State of Gujarat; (1992) 2 SCC 774, Laxman vs. State of

Maharashtra; (2002) 6 SCC 710, Ganpat Bakaramji Lad vs. State of

Maharashtra; 2011 ALL MR Cri. 2249. Surendrakumar vs. State of Punjab;

(2012) 12 SCC 120, Jagbir Singh vs. State (NCT of Delhi); (2019) 8 SCC

779, Madan vs. State of Maharashtra; (2019) 13 SCC 464, State of Uttar

Pradesh vs. Veerapal and another; (2022) 4 SCC 741 and Uttam vs. State of

Maharashtra; (2022) 8 SCC 576, is required to be taken into consideration.

9. Very recently certain principles of law with regard to case involving

multiple dying declarations are spelt out in the case of Abhishek Sharma

vs. State (Govt. of NCT of Delhi) [Criminal Appeal No.1473 of 2011,

decided on 18-10-2023]. These principles read thus :

"9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;

9.2 All dying declarations should be consistent. In other

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words, inconsistencies between such statements should be 'material' for its credibility to be shaken;

9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purpose of corroboration of the contents of dying declarations.

9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.

9.5 Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.

9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc."

10. The ratio that is settled is that dying declaration must be firstly

voluntary, truthful and secondly it should not be tutored and further the

same should inspire the confidence of the Court. These are the basic

principles which are to be borne in mind while appreciating dying

declarations.

11. In this case, in fact, the case of the prosecution is not solely resting

on the two dying declarations, but P.W.2 Akash was posed as eye witness

also. When it comes to the comparison between the direct evidence of the

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eye witness versus evidence in the nature of dying declaration, certainly the

evidence of eye witness would be important, because he is available for

cross-examination by the accused. In this case P.W.2 Akash - son of

deceased Shital has turned hostile. He is definitely saying that he was

inside the house when the incident took place, but then he says that he

woke up after there was quarrel between his mother and accused. His

mother then set herself to fire by matchbox and kerosene. She poured

kerosene on her person. Accused then took her to Ghati Hospital. Prior to

that whether he would be a competent witness or not being the child

witness aged 8 years; the Trial Judge had put certain questions and it was

found that he was giving rational answers and then his testimony is

recorded by administering oath. When it was found by the prosecution that

the witness is not supporting, permission was sought to put the questions in

the nature of cross. After the said permission was granted, those questions

have been put. P.W.4 Akash admitted that his mother was not married to

accused. His mother was insisting accused to marry with her, but accused

used to say that he would marry with another lady and on that count, there

used to be quarrels between them. He then denied the suggestion that in

the said quarrel accused had poured kerosene on the person of his mother.

It was then tried to be posed that as P.W.2 Akash had come with his

maternal aunt Sangita, whose husband is related to accused, it was tried to

be painted that the witness is under the custody and guidance of those

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relatives, hence, he is not supporting the prosecution, however, it is to be

noted that P.W.6 Sunita has been examined. It appears that there was

typographical mistake in the cross of P.W.2 Akash, when the name of his

maternal aunt has been typed as Sangita, but then he says that name of her

husband is Mohan Bhagure. P.W.6 Sunita has given her full name as Sunita

Mohan Bagure and therefore, it has to be taken that Sangita and Sunita are

the same persons. P.W.6 Sunita has rather supported the prosecution and

has not turned hostile. Therefore, in fact, there was no reason for P.W.2

Akash to give false evidence. The prosecution has not properly completed

the procedure as laid down under Section 145 of the Indian Evidence Act

and the celebrated case of Tahsildar Singh and another Vs. State of Uttar

Pradesh, [1959 AIR (SC) 1012], in which procedure has been laid down.

The statement of P.W.2 Akash under Section 161 of the Code of Criminal

Procedure was not shown to him and the specific portion was not brought

to his notice, though in the testimony of P.W.8 Varsha Manale -

investigating officer that portion marked 'A' was got exhibited as Exhibit-79.

Under the said circumstance, we cannot take note of the said portion

marked 'A' Exhibit-79, as it was not brought to the notice of P.W.2 Akash.

The prosecution has not brought any reasons on record as to why P.W.2

Akash should not support the prosecution. When the eye witness himself is

saying that his mother poured kerosene upon herself and set her to fire, we

cannot give importance to the dying declarations.

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12. Even if for the sake of arguments it is accepted that independently

the dying declarations will have to be considered, then it is to be noted that

Exhibit-52 FIR is the first in time and it was recorded by P.W.5 PHC Kautik

Gore. In his examination-in-chief itself he has stated that after the Medico

Legal Certificate was received and he was asked to record the dying

declaration, he went to the hospital, got endorsement from medical officer

stating that the patient was in a fit state of mind to give statement and then

recorded the statement. If we consider the letter that was given by him to

medical officer for the request of giving fitness certificate, he had given the

name of patient as Shital Raju Irche to the hospital authorities. Another

aspect to be noted is that in Exhibit-52, she had stated that she was married

to one Arjun in 2002. She begotten a son from him and then separated

from him in 2006 and since then Arjun has not met her. Thus, all the while

she appears to have stated that name of her husband is Arjun Patthe.

Thereafter, she says that name of her son is Akash, name of her sister is

Samiksha Mohan Bhagure (here also the name has changed from Sunita to

Samiksha), but then she says that she was residing with accused. At the

end when it came to identification of thumb mark it is said that the said

thumb mark is that of Shital Raju Irche. P.W.5 Kautik Gore does not say

that he made a query with Shital as to why she is giving the name of Shital

Arjun Patthe or Shital Raju Irche at convenient places. This is the point that

is required to be considered to know the mental state of Shital and,

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therefore, it casts doubt about the same.

13. The testimony of P.W.5 Kautik Gore does not explain the delay in

recording the dying declaration. As per the contents of Exhibit-52, the

incident had taken place in the intervening night of 26.05.2010 to

27.05.2010 and the dying declaration came to be recorded on 13.06.2010.

At this stage itself we would like to consider the testimony of the

investigating officer i.e. P.W.8 Varsha Manale. Here also there is absolutely

no investigation by her as to why there was delay in sending the Medico

Legal Certificate. Belated dying declaration definitely raises question.

Exhibit-37 came to be recorded after P.W.5 Kautik Gore requested P.W.3

Mendke to record the dying declaration. The question first of all that arises

is when P.W.5 Kautik Gore had already recorded the dying declaration why

he asked or requested P.W.3 Mendke to record the dying declaration once

again. P.W.3 Mendke recorded the dying declaration on 14.06.2010 and at

that time, upon the inquiry, it is said that Shital gave her name as Shital

Bansilal Manpure. It is also then stated that her name is Shital Raju Irche,

as she was considering Raju Irche i.e. present appellant as her husband. No

doubt, apparent reading of Exhibit-37 may give an impression that it is

corroborating to Exhibit-52. However, she says that the incident had taken

place 15 to 16 days prior to 14.06.2010. She has not given the time when

the incident took place. There is no explanation in the testimony of P.W.3

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Mendke as to why he had not tried to seek clarification regarding the name

that was told by the patient to him, which was different from the name

which he got in request letter Exhibit-35.

14. Neither P.W.5 Kaurik Gore, nor P.W.3 Mendke have given explanation

as to why they obtained right toe impression on the dying declarations. No

doubt, the percentage of burns given in postmortem report Exhibit-43,

which is proved by P.W.4 Dr. Shailesh Wakle would show that upper limbs

right as well as left were to the extent of 9%, yet P.W.4 Dr. Shailesh has not

explained that it would not even possible even to take the thumb mark of

either left or right hand. Taking int consideration all these aspects, in the

background of the testimony of P.W.2 Akash, we find that the dying

declarations Exhibit-52 and Exhibit-37 are unreliable.

15. P.W.6 Sunita has supported the prosecution story and says that in

fact, accused was the person who made phone call to her father on

26.05.2010 informing that Shital has sustained burns. She then says that

they all went to Ghati Hospital to see her and when asked Shital she told

that there was quarrel between herself and Raju. He used to say that he

intends to perform another marriage and then leave her (sever the ties).

When Shital objected/denied, then accused poured kerosene on her and set

her to fire. Thus, according to P.W.6 Sunita on 26.05.2010 itself, she could

get the information that the accused had put Shital to fire. Then the

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question arises as to why she had not approached police with a request to

record her dying declaration. Her testimony is therefore untrustworthy. It

is also contrary to what P.W.2 Akash is saying before the Court.

16. P.W.7 Dr. Saiful Islam is the medical officer, who was on duty on

13.06.2010 when P.W.5 PHC Kautik had gone to the hospital for recording

dying declaration. He is also the medical officer, who had given

endorsement on 14.06.2010 as per the request of P.W.3 Mendke. Even if for

the sake of arguments it is accepted that he was giving the true account of

what he has done, yet the fact is certain that though he was the treating

doctor, he had not given the details as to why Medico Legal Certificate was

not sent immediately to the police. As per Exhibit-74 which are the bed

head tickets, Shital was admitted around 8.20 a.m. on 26.05.2010. Since it

is exhibited documents, we can definitely consider it. The name of the

person, who admitted her to hospital is given and it can be seen that the

accused was the person, who admitted her in the hospital. Of course on his

statement it appears that name of the patient was taken as Sital Raju Irche.

Endorsement also shows that he has given intimation that the condition of

his wife Shital is critical. History that has been given is accidental burns.

The prosecution has not led evidence that the said history was given by the

accused and it proved to be intentional. Even if for the sake of arguments

we accept that the accused had given that intimation at the time of

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admission of Shital in the hospital, yet he had told that it was accidental

burns. It was still open for the hospital authorities and it was their duty to

inform that even the accidental burn case i.e. Medico Legal Case to be

referred to police immediately. Prosecution has not examined any witness,

who would give explanation as to why the MLC was not given till

13.06.2010 and, therefore, this fact is fatal to the prosecution. Possibility

of tutoring cannot be ruled out, as P.W.6 Sunita had visited the hospital.

Sunita expired on 24.06.2010, that means even after recording dying

declaration Exhibit-37 on 14.06.2010 still Shital could survive for 10 days

and in those 10 days. There was no attempt on the part of P.W.8 Varsha

Manale - the investigating officer to record her fresh statement seeking

clarification in respect of the names those she had given.

17. Testimony of P.W.4 Dr. Shailesh would show that after taking note of

the internal as well as external examination of the dead body he and the

team of postmortem had come to the conclusion that the cause of death is

due to septicemic shock due to burns. Thus, the postmortem report along

with the testimony of P.W.4 Dr. Shailesh will not ipso facto prove that the

death is homicidal in nature.

18. The learned Trial Judge has not considered the requirement of

recording of dying declaration promptly so that the possibility of tutoring is

ruled out. Such dying declarations taken after a considerable time, for

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which there is no explanation for the delay, ought not to have been relied

by the learned Trial Judge to convict the appellant. Even if we take the

proof of spot panchanama, inquest panchanama, we cannot arrive at the

conclusion that the death of Shital was homicidal in nature and the accused

is the perpetrator of the crime. Thus, considering the reasons stated above,

we hold that the learned Trial Judge erred in appreciating the evidence.

The wrong appreciation of evidence has landed him in taking erroneous

finding/conclusion and, therefore, those findings are required to be set

aside by allowing the appeal. Hence, the following order :-

ORDER

(i) The appeal stands allowed.

(ii) The conviction awarded to the appellant - Raju Bhagirath

Irche by learned Additional Sessions Judge, Aurangabad, in Sessions

Case No.397 of 2010 on 17.02.2017 for the offence punishable under

Sections 302 of Indian Penal Code stands quashed and set aside.

(iii) The appellant stands acquitted of the offence punishable under

Sections 302 of Indian Penal Code.

(iv) He be set at liberty, if not required in any other case.

(v) The fine amount deposited, if any, be refunded to the appellant

after the statutory period is over.

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(vi) We clarify that there is no change as regards the order in

respect of disposal of muddemal.

vii) In view of disposal of criminal appeal, Criminal Application

No.1375 of 2018 stands disposed of.

[ ABHAY S. WAGHWASE ]                          [ SMT. VIBHA KANKANWADI ]
       JUDGE                                              JUDGE

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