Laxman Dharamraj Shendge vs The State Of Maharashtra
2023 Latest Caselaw 11411 Bom

2023:BHC-AUG:24165-DB
                                                                      CRI APPEAL 385 OF 2018.odt


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                               CRIMINAL APPEAL NO.385 OF 2018

            Laxman Dharamraj Shendge
            Age 40 years, Occ.: Labour,
            R/o Hivargavhan, Taluka Wadwani,
            Dist.Beed.                                        ... Appellant

                  Versus

            The State of Maharashtra
            Through Station Officer, Police Station
            Wadwani, Taluka Wadwani, Dist.Beed.               ... Respondent

                                                  .....
                            Mr.Prakash S. Paranjape, Advocate for Appellant
                               Mr.S.D.Ghayal, APP for Respondent-State
                                                  .....

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

                                   RESERVED ON   : 31 OCTOBER, 2023
                                   PRONOUNCED ON : 07 NOVEMBER, 2023

            JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Aggrieved by the judgment and order of conviction passed by the

learned Additional Sessions Judge, Majalgaon, Dist.Beed in Sessions Case

No.65 of 2013 dated 31-03-2015 holding present appellant guilty for offence

under Sections 498-A, 302 and 506 of the Indian Penal Code (IPC) and

sentencing him to suffer rigorous imprisonment for one year, imprisonment

for life, rigorous imprisonment for six months and to pay fine respectively, the

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convict has preferred instant appeal by invoking Section 374 of the Code of

Criminal Procedure.

CASE OF PROSECUTION IN BRIEF

2. Crime was registered on the basis of dying declaration of deceased at

Exd.28/1 on 20-08-2013 wherein deceased Meera gave statement about her

marriage with accused convict, about having two children namely Shubham

and Narayan. She gave statement that appellant husband was addicted to

liquor and under its influence, he used to abuse her in filthy language and

suspect her character.

On 19-08-2013, while she was sleeping, appellant husband came home

under influence of liquor, questioned her fidelity, abused her and when she

back answered by saying that he does not work, he poured kerosene on her

and ignited her. Her brother-in-laws and their wives, hearing shouts, came

and doused the fire and she was taken to the hospital where PW5 Vijay Jagtap

(PHC) recorded her statement and crime was registered on the basis of the

same.

PW7 Arun Jagtap (PI) carried out investigation and on gathering

sufficient evidence, accused was chargesheeted, tried by the learned

Additional Sessions Judge, Majalgaon and on appreciation of oral and

documentary evidence, found appellant guilty and convicted as above.

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SUBMISSIONS

On behalf of Appellant :

3. Learned Counsel for the appellant submitted that except dying

declarations, there is no other evidence or direct evidence. He pointed out

that there are two dying declarations and the same are admittedly not

consistent. That dying declarations allegedly recorded by PW2 Mrs.Bundele,

Special Executive Magistrate is not in question-answer form. He further

pointed out that children of accused and deceased were not examined for the

best reasons known to the prosecution even when they were material

witnesses. He further pointed out that so called other witnesses have not

supported prosecution. He further submitted that it has come in dying

declarations that door was closed and so it was required to be broke open for

gaining entry and as such it is his submission that it is a clear case of suicide

and not homicidal as alleged. He criticized findings and conclusion of the

learned trial Court by submitting that law on dying declaration has not been

correctly appreciated and applied by learned trial Court and hence, he prayed

to allow the appeal.

On behalf of State :

4. In answer to above, learned APP, canvassing in favour of impugned

judgment, would submit that admittedly there are two dying declarations but

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the same are consistent as regards to role of husband is concerned. He

submits that in both dying declarations, it is stated that appellant was

addicted to liquor and he used to abuse and suspect character of deceased.

That incident had taken place in the house. That there is no explanation

inspite of opportunity to explain the circumstances. That while answering

questions under Section 313 of the Code of Criminal Procedure, according to

him, there is nothing to show that both children of accused and deceased were

there in house and inspite of so they were not examined. Lastly, he submitted

that deceased died due to "septicemia due to burns". That deceased has

named appellant husband. That there was no reason for false implication and

therefore, according to him, there is no merit in the appeal.

5. Admittedly case is based on dying declarations and there is no direct

evidence.

Before adverting to the evidence, we propose to give brief account of

settled legal position regarding evidentiary value of dying declarations as well

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

various landmark cases like Khushal Rao v. State of Bombay; AIR 1958 SC 22,

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

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

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

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(2012) 12 SCC 120, Jagbir Singh v. State (NCT of Delhi); (2019) 8 SCC 779,

Madan v. State of Maharashtra; (2019) 13 SCC 464.

Off late in the case of State of Uttar Pradesh v. Veerapal and another; (2022) 4

SCC 741 while deciding Criminal Appeal No.34 of 2022 on 01-02-2022, the Hon'ble

Apex Court has reiterated the principles to be borne in mind while analyzing and

accepting dying declaration. The settled principles are as under:

"1. It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

2. Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made;

3. It cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

4. A dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

5. A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character : and

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6. In order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

Similarly, in the case of Uttam v. State of Maharashtra; (2022) 8 SCC

576, again certain principles are enunciated which are to be borne in mind in

a case wherein the evidence is in the form of dying declaration. These

principles are as under :

"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration.

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.

(iii) The Supreme Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration.

(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.

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(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected.

(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth.

(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail.

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon."

Very recently certain principles of law with regard to case involving

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

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

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

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"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 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."

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

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

which are to be borne in mind while appreciating dying declarations.

6. Here case of prosecution is rested on oral evidence of in all seven

witnesses.

EVIDENCE ON BEHALF OF PROSECUTION

PW1 Harishchandra Dnyanoba Dhavale is Spot Pancha. His evidence is at

Exh.17. He has no supported case of prosecution.

PW2 Padmawati Shriramsinha Bundele is Naib Tahsildar (Special Executive

Magistrate) and she recorded dying declaration Exh.23. Her evidence is at

Exh.20. She deposed about receiving message from Police Chowky Amaldar,

Civil Hospital, Beed, she going to Civil Hospital, approaching Doctor, obtaining

fitness certificate and recording dying declaration and obtaining thumb

impression. This witness stated that in dying declaration Exh.23, deceased

stated that at around 11:45 p.m., her husband poured kerosene on her person

and set her on fire.

PW3 Dr.Rajesh Vijaykumar Kachre is the Doctor, who conducted post mortem

and opined about death of Meera due to "Septicemia due to 40% of superficial

to deep burns" which are ante mortem in nature. His evidence is at Exh.25.

PW4 Macchindra Rangnathrao Wagh (ASI) is Police Officer, who stated that

since 2012, he is posted at Wadwani Police Station as the PSO. He deposed

about receipt of MLC including dying declaration and on its strength

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registering crime bearing no.113 of 2013 for offence under Sections 307, 498-

A, 504 and 506 of the IPC. His evidence is at Exh.27.

PW5 Vijay Sopan Jagtap is the Police Head Constable (PHC), who recorded

dying declaration Exh.28/1. He deposed about receiving MLC, visiting burn

ward, seeking Doctor's endorsement about fitness and recording dying

declaration of Meera wherein she reported that her husband came in house at

about 11:45 p.m. after consuming liquor, she woke up and at that time quarrel

taking place on account of her husband doubting her character. That after

quarrel accused brought kerosene can, poured kerosene on her person and

ignited her. His evidence is at Exh.30.

PW6 Rambhau Dharmaraj Shendge is brother of accused. He has not

supported prosecution. His evidence is at Exh.33.

PW7 Arun Suresh Jagtap (PI) is the Investigating Officer, who carried out

investigation and chargesheeted accused. His evidence is at Exh.37.

7. Here solitary piece of evidence is two dying declarations. In the light of

above legal requirement, we visited both the dying declarations. For proper

comprehending and analyzing the same, we reproduce both the dying

declarations in translated form.

FIRST DYING DECLARATION

First dying declaration Exh.28/1 is recorded by PW5 Vijay Jagtap (Police

Head Constable).

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"EXHIBIT 28/1 Civil Hospital,Beed Burns Ward.

20-8-2013 Patient is conscious and fit for statement.

Signed/- 20-8-2013 AT 3.40 AM Medical Officer, Dist. Hospital Beed.

DYING DECLARATION I, Meera Lakshman Shendage, aged 32 years, Occ. Labourer, R/o Hivargavan, Tq. Wadawani, Dist. Beed do hereby state in person that, my marriage with Lakshman Dharmaraj Shendage took place some [not legible] years. I have two sons, 1. Shubham aged 14 years 2. Narayan aged 10 years. Dharmaraj is my father-in-law. My mother-in-law Chandrakala is expired. My husband has four brothers: Balaji, Bharat, Ram and Vitthal. My parental home is at Bori-Sawargaon and my father Rambhau Devmane is a farmer. My husband Lakshman is a habitual drunkard from four years and abuses me in filthy language very often and suspects my fidelity.

On 19-8-2013 at about quarter to twelve in the night, I was in the tin-roofed house at Hivargavhan, my husband came home drunk, woke me up and started abusing me and saying that, " There's something going on between you and somebody!" and started abusing. I said to him, "why do you not work? It is I who runs the house by making household work. Why you are harassing me under influence of liquor?" As I uttered this, my husband took the white can of kerosene kept in the house and poured the kerosene from my left side and by saying that he would burn me to death, he struck of a match stick and set me ablaze. I was shouting. Then my nephew and neighbour, Rambhau and his wife, Randhavni, brother-in-law Meeththu, Bharat, their wives, Meera Sanjavani, Prayagbai Bhagwat Shendage, cousin brother of my husband Datta Shedge rushed and kicked the door open. They doused the fire with water. The jeep belonging to one Bandu Naikwade of the village was brought and taken to the Govt. Hospital and Chichvan. After treating there, I was referred to the Civil Hospital Beed

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and has been admitted in the Burns ward. My face, throat, chest, both hands, legs from the thighs to calf and the back from the left side have been burnt and I am injured. I have a complaint against my husband Lakshman who used to drink alcohol very often and out of suspicion of fidelity on my part, he said to me that he would burn me to death, poured kerosene on my person and set me ablaze with a match stick. Therefore statement is made. The statement has been read over to me and admitted to be true and correct. I am fully conscious and made the statement without any pressure from anyone.

Thumb impression of right thumb Of Meera Lakshman Shendage, R/o Hivargavhan, Tq. Wadwani Before, Signed/-

Chowki Officer, Civil Hospital, Beed.

Statement is closed; patient is conscious. 20-8-2013 Medical Officer [Dr. Nikesh Gosrani] Time: 4.20 AM

Dated 20-8-2013 No. 232/2013 Entry no. 25 at 21.30 hrs Crime No. 113/2013 u/s 307,498[A], 504. 506 of IPC is registered and further investigation is taken up by Shri. Jagtap, PSI.

Signed/-

Station House Officer, Wadavani Police Station"

(As translated by Sr. Translator, High Court, Aurangabad)

SECOND DYING DECLARATION

Second dying declaration Exh.23 is recorded by PW2 Mrs.Bundele

(Special Executive Magistrate).

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"DYING DECLARATION Civil Hospital, Beed.

Dated 20-8-2013 Exhibit 23 20-8-2013 4.45 AM Patient is conscious and fit for [making] statement.

Signed/- [Dr.Ghosrani] Medical Officer, Dist. Hospital, Beed.

I, Mrs. Meera Lakshman Shendage, r/o Hivargavan, Tq. Wadwani, Dist. Beed aged 32 years, do hereby state in person that, I have two sons 1. Shumbham Lakshman and 2. Narayan Lakshman aged 14 years and 10 years respectively. Lakshman Dharmaraj Shendage is my husband and is habitual drunkard. He abuses and beats me often. Also, he is suspicious of my fidelity. [He] Has been separated from my parents-in-law, brothers-in-law and their wives.

On 19-8-2013 at 11.45 hrs., my husband came home drunk and abused me and out of suspicion of my fidelity, he poured the kerosene from a white can on me saying that he would burn me alive and set me ablaze by igniting a match stick. I started shouting. My elder brother-in-law, Rama and Bharat and their wives, Vrindavani and Sanjivani, Meera rushed there. The cousin brother of my father-in-law, Bhagwat Shendge and his wife Prayagbai also came. They kicked open the door and entered the house. They doused the fire with water. The jeep belonging to one Naikwade of the village was brought and taken to the Govt. Hospital and Chichvan. After treating there, I was referred to the Civil Hospital Beed and has been admitted in the Burns ward. My face, throat, chest, both hands, legs and the back from the left side have been burnt. I have a complaint against my husband Lakshman. Therefore statement is made. The statement has been read over to me and admitted to be true and correct. I am fully conscious and made the statement without any pressure from anyone.

Thumb impression.

Of Meera Lakshman Shendage, R/o Hivargavhan, Tq. Wadwani Before, Signed/-

SMT. BUNDELE P.S. NAIB TEHSILDAR, TEHSIL OFFICE, BEED Statement is closed; patient is conscious.

20-8-2013, 5.20 AM Medical Officer [ Dr. Nikesh M.Gosrani]"

(As translated by Sr. Translator, High Court, Aurangabad)

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ANALYSIS

8. If we juxtapose both dying declarations, it is noticed that they cannot be

said to be consistent. In first dying declaration Exh.28/1, deceased Meera

speaks about husband coming home drunk, quarrel taking place and husband

saying to her that something is going on between her and someone. It is

thereupon she stated that she questioned him for not working and earning,

and further saying that it is she who runs the house and even does household

work. On her such utterance, she claims that he poured kerosene and ignited

her. Hearing her shouts, neighbours, brother-in-law, sister-in-law and others

came and she was brought to hospital. Whereas in second dying declaration

Exh.23 recorded almost in quick succession, she gave statement that husband

came home drunk, suspected her fidelity, poured kerosene and set her ablaze.

The quarrel part on she alone working and he not working and thereafter he

getting annoyed is not stated in the second dying declaration.

9. It is also to be taken note of that in both dying declarations, she speaks

of neighbours, relatives kicking the door to open it. Such material indicates

that house was closed from inside. If it is so then those neighbours would

have noticed the presence of accused in the house. None of those neighbours

have been examined. It is not stated in dying declaration that after setting her

on fire, accused went by closing door. In that case latch would have been from

outside which would not have required breaking it open. Therefore, there is

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reason to infer, as submitted by learned Counsel for appellant, that possibility

of suicide cannot be ruled out.

10. It is also pertinent to note that both children are also surprisingly not

examined. They were material witnesses, but neither their statements are

recorded nor they are examined in the Court and even PW7 Jagtap (PI),

Investigating Officer has admitted to that extent in the cross-examination. It

is not brought on record where the sons aged 14 and 10 years were at night

time. If they would have been in the house, they would become eye witnesses

and they would have definitely resisted father from doing such act. Further

none of the neighbours or relatives named by her in both dying declarations

are examined by prosecution. Apart from above, spot panchanama Exh.18/1

refers to husband suffering burns but medical paper to that extent does not

seem to have been gathered by the Investigating Officer. Even bed ticket and

treatment papers containing history are not placed on record.

SUMMATION

11. Therefore, taking above discussed material into consideration, firstly

dying declarations are not consistent; secondly both dying declarations are not

believable also as deceased had sustained 40% burns, was able to speak as per

prosecution story, still material information like presence or absence of sons is

not clarified; thirdly material witnesses have not been examined by

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prosecution, and as such except dying declarations, there is no other

trustworthy oral evidence. Therefore, in our opinion, story of prosecution is

not proved beyond reasonable doubt and therefore, benefit is required to be

extended for the same.

12. We have gone through the judgment under challenge, the crucial aspects

noticed by us are not borne in mind while analyzing the evidence by the

learned trial Judge. In our view, totality of the circumstances involved in the

case are unfortunately lost sight of by the learned trial Judge and hence

interference is called for. Accordingly, we proceed to pass following order:

ORDER

(I) Criminal Appeal No.385 of 2018 stands allowed.

(II) Conviction awarded to appellant Laxman S/o Dharamraj Shendge by the learned Additional Sessions Judge, Majalgaon in Sessions Case No.65 of 2013 on 31-03-2015, after holding him guilty for committing offence under Sections 498-A, 302 and 506 of the Indian Penal Code, stands quashed and set aside.

(III) The appellant stands acquitted of the offence punishable under Sections 498-A, 302 and 506 of the Indian Penal Code.

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

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(V) Fine amount deposited, if any, be refunded to him after the statutory period is over.

(VI) We clarify that there is no change in the order passed by the learned Additional Sessions Judge, Majalgaon regarding disposal of Muddemal.

(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)

SPT

Signed by: Santosh P. Takalkar Designation: PA To Honourable Judge Date: 07/11/2023 14:46:14