Bombay High Court
Prabhakar Gangadhar Lokhande vs The State Of Maharashtra on 19 August, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:18374-DB
Cri.Appeal No.616/2021
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.616 OF 2021
Prabhakar Gangadhar Lokhande
Age 45 years, Occu. Service
R/o Gandhinagar, Main Road,
Ranjangaon (Shenpunji),
Tq. Gangapur, Dist.Aurangabad ... APPELLANT
(Orig. Accused)
VERSUS
The State of Maharashtra
through MIDC Waluj Police Station
Taluka Gangapur, District Aurangabad
(Copy to be served on
Public Prosecutor, High Court of
Judicature of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. N.S. Kadrare, Advocate for appellant
Mr. N.R. Dayama, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 12th July, 2024.
Date of pronouncing judgment : 19th August, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
This appeal takes an exception to a judgment of
conviction and consequential order of sentence, dated
10/11/2021, passed by learned Additional Sessions Judge,
Vaijapur, District Aurangabad in Sessions Case, No.58/2017,
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whereby the appellant was convicted for offence punishable
under Sections 302 and 498-A of the Indian Penal Code and,
therefore, sentenced to suffer imprisonment for life and to pay
a fine of Rs.10,000/- and rigorous imprisonment (R.I.) for a
term of 3 years and to pay fine of Rs.2000/- respectively, with
default stipulations.
2. The facts giving rise to the present appeal are as
follows :-
The appellant had married Sangita (deceased)
about 20 years before the fateful day i.e. 17/5/2017. The
couple was blessed with 2 grown up sons, P.W.1 Rahul and
P.W.3 Shubham respectively. It is the case of the prosecution
that, the appellant was unemployed. He was addicted to
liquor. He would suspect loyalty of his wife Sangita
(deceased). On the given day i.e. 17/5/2017, Sangita was
home. The appellant returned home little past 12.00 noon.
She asked him to pay Rs.500/- to her as she wanted to go for
one function. He refused. The appellant suspected Sangita to
have stolen his Rs.10,000/- and paid to her paramour. Sangita
denied the same on oath in the name of her sons. The
appellant asked her to accompany him to the Police Station.
She joined him. Both of them came out of the house. Their
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son Rahul (P.W.1) was also at home. Before the couple
walked 4-5 steps, appellant pulled her (Sangita) hair and
dragged back to his home. He abused and assaulted her. the
appellant then doused kerosene on her person and set her
ablaze by igniting a match stick.
3. Rahul (P.W.1) rushed her to Ghati Hospital,
Aurangabad. Her admission to the hospital was informed to
M.I.D.C. Waluj Police Station. A police official Eknath Ware
(P.W.2) was deputed to visit the hospital and make enquiry into
Medico Legal Case (MLC). He accordingly paid visit to the
hospital. He learnt from the doctor the victim to have not been
in a conscious state of mind to make a valid statement.
4. On the following day, he again visited the hospital
and gave a letter to the Medical Officer on duty with a request
to examine the patient and report whether she was conscious
to make a statement. After having received doctor's opinion,
he recorded statement (Exh.25) - F.I.R.-cum-dying declaration.
He then issued a letter to Executive Magistrate (P.W.27), who
too, after having received the opinion from the Medical Officer
about the fitness of the patient, recorded a statement of
Sangita. Meanwhile, the parents of Sangita had reached
hospital.
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5. A crime was registered. Sangita succumbed to the
burns. Inquest (Exh.32) and autopsy (Exh.33) were conducted
on her mortal remains. The autopsy report (Exh.33) indicates
Sangita to have died of Septicemia due to burns.
6. A crime scene panchanama (Exh.17) was drawn.
The appellant was arrested. Statements of persons acquainted
with the facts and circumstances of the case were recorded. A
kerosene can, a match box with match sticks therein, a half
burnt match stick were seized from the crime scene. Clothes
of the deceased too were taken charge of. All the articles
seized were sent to Forensic Science Laboratory, Aurangabad
for chemical analysis and report. Upon completion of the
investigation, charge sheet was filed before the Court of
learned Judicial Magistrate, First Class, Aurangabad. The
case, in turn, was committed to the Court of learned Additional
Sessions Judge, Vaijapur (Trial Court).
7. The Trial Court framed the Charge (Exh.11). The
appellant pleaded not guilty. His defence was of false
implication. According to him, Sangita committed suicide by
setting herself ablaze.
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8. To bring home the charge, the prosecution
examined 8 witnesses and produced in evidence certain
documents.
9. The Trial Court, on appreciation of the evidence in
the case, convicted and consequently sentenced the appellant
as stated above.
10. Heard. Learned counsel for the appellant would
submit that, P.W.1 Rahul, son of the appellant and deceased
was at home. His evidence in examination-in-chief itself
supports the appellant. the prosecution did not declare him to
have been won over nor was he subjected to a cross-
examination by A.P.P. Evidence of P.W.1 Rahul, therefore
needs to be read as it is. According to him, the deceased had
related P.W.1 Rahul to have committed suicide by setting
herself ablaze. His evidence would indicate that he and the
appellant poured water on the person of Sangita to extinguish
fire and then he rushed her to the hospital. The medical
history given to the Medical Officer on duty was, "attempt to
commit suicide". The learned Advocate took us through the
evidence on record of each and every witness to ultimately
submit the prosecution to have failed to bring home the charge
beyond reasonable doubt. We do not propose to refer to his
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submissions in further extenso since those may be our
reasons to reach a particular conclusion.
11. The learned A.P.P. would, on the other hand,
submit that, P.W.1 Rahul was none other than a grown up son
of the appellant and the deceased. He was outside when the
incident took place. He did not witness the incident. Rahul's
evidence, therefore, carries less importance. Both, P.W.2
Eknath and the Executive Magistrate Sk. Munuruddin (P.W.6)
have recorded statements of Sangita, which on her demise,
became her dying declarations (D.Ds.). Both the D.Ds. are
consistent with each other in material particulars. He even
relied her father Bajirao (P.W.5) and the brother Sanjay (P.W.8)
about having set her ablaze by the appellant, suspecting her
character. Both these witnesses have even testified that the
appellant would ill-treat Sangita for long before the incident
took place. According to him, both these witnesses are
independent one. Documentary evidence shall necessarily
prevail over oral evidence of P.W.1 Rahul. According to
learned A.P.P., a D.D. if found to be reliable, can be the basis
for conviction. He, therefore, urged for dismissal of the appeal.
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12. We have considered the submissions advanced.
Perused the evidence on record and the judgment impugned
herein.
APPRECIATION :-
13. Dr. Amit Jadhav conducted post mortem on the
mortal remains of Sangita. According to him, Sangita died due
to Septicemia due to burns.
14. Deceased Sangita had married the appellant 20
years before May 2017. The couple was blessed with two
grown-up children. The incident took place on 17/5/2017 by
little past noon at the home of the appellant. It was comprising
of 2 rooms. The incident took place in the kitchen. Elder son
Rahul was home.
15. Learned Advocate for the appellant admitted
certain documents before the Trial Court. those are - crime
scene panchanama (Exh.17), inquest (Exh.32) and post
mortem report (Exh.33).
16. The crime scene panchanama indicates water was
logged in the kitchen room. There was kerosene smell. A
kerosene can containing 50 ml. kerosene, a match box with
match sticks therein and half burnt match stick came to be
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seized from the crime scene. P.W.1 Rahul, son of the
appellant and deceased Sangita had rushed Sangita to Ghati
Hospital, Aurangabad. We, therefore, first need to advert to
the evidence of P.W.1 Rahul. It is in his evidence that, his
father (appellant) was not doing any work. He would beat up
his mother Sangita. He (appellant) would always quarrel with
her. It is further in his evidence that he was present outside of
his residence on 17/5/2017. He heard shouts of his mother.
He, therefore, rushed to the house. He saw his mother in
burning condition. Kerosene can was near his father. He and
the appellant poured water on the person of Sangita. The
appellant had said his mother to have lost his Rs.10,000/-.
The appellant had suspected her (Sangita) to have taken the
amount.
It is further in his evidence that, he and the
appellant took his mother to Ghati Hospital, Aurangabad in
autorickshaw. According to him, the appellant had alleged her
to have paid Rs.10,000/- to her paramour. He denied the
kerosene can was in the hand of the appellant. It is in his
evidence that when he poured water on the person of his
mother, the appellant asked him to not extinguish fire and let
her die.
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17. In his cross-examination, P.W.1 Rahul testified that,
his younger brother Shubham was also present outside the
house. He admitted that, his mother used to get annoyed as
his father (appellant) was not doing any work to earn living. He
was consuming liquor and beating her up. He then testified
that, when he entered the house, he heard his father said "his
mother to have set herself ablaze". According to him, his
father (appellant) got annoyed as his mother set herself
ablaze. It appears that, this witness went on to admit the
defence version. It is further in his evidence that, on way to
Ghati Hospital in autorickshaw, the mother related to have
committed mistake by setting herself ablaze. It was he who
informed his maternal grandparents about his mother to have
suffered burns. It is he who informed the doctor that his
mother attempted to commit suicide.
18. It is further in his evidence that, on admission of his
mother to hospital, all her relations visited the hospital. He
shared with them as to how the incident took place. He went
on to state that, his grandparents were present while his
mother's statement was recorded. He, however, then testified
that his mother had suffered 90% of burns. She was not in a
position to talk. He was present near her when her two
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statements were recorded. The officers who recorded her
statements met relatives of his mother on arrival to Ghati
Hospital. He further went on to state that, those officers were
given some information, and based on which they prepared the
statements, below whereof they obtained signature of his
mother.
19. P.W.3 Shubham, another son of the appellant,
testified his mother to have set herself ablaze. He was,
therefore, cross-examined by the learned A.P.P. In his cross-
examination, he deposed that, both, Rahul (P.W.1) and he
were at their home when the incident took place. It was Rahul
who extinguished the fire. It is his uncle and aunt who took his
mother to Aurangabad in autorickshaw.
In the cross-examination by the defence Advocate,
he testified that, he was playing outside of his home when his
mother suffered burns.
20. P.W.2 Eknath was Assistant Sub-Inspector of
Police, M.I.D.C. Waluj Police Station. Exh.23 is the M.L.C.
Report. He (P.W.2 Eknath) was asked to make an enquiry into
the same. He, therefore, went to the hospital on the same day
i.e. on 17/5/2017. He issued a letter (Exh.24) to the Medical
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Officer on duty to examine the patient and report whether she
was fit to make a statement. The Medical Officer Dr.
Sushilkumar (P.W.4) gave his opinion on the requisition
(Exh.24) itself. In his opinion, the patient was not in the state
to give valid statement. The said endorsement is at Exh.39,
which reads thus :
"At present, the patient is not in the state to give
valid statement."
21. P.W.2 Eknath, therefore, went back to the Police
Station. He again went to the hospital on the following day by
9.00 in the morning and again issued a requisition to the
Medical Officer on duty. It is at Exh.25. The Medical Officer
was requested to give his opinion as to whether the patient
was fit to make a statement. The Medical Officer Dr.
Sushilkumar (P.W.4) gave the endorsement on Exh.25 itself.
The endorsement is at Exh.40, which reads :
"At present, the patient is in the state to give
valid statement."
22. Thereupon, P.W.2 Eknath recorded Sangita's
statement (Exh.26), wherein she stated that, she was at her
home by 12.00 noon on the previous day (17 May). Her
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husband (appellant) came from outside. She requested him to
pay Rs.500/- to her as she wanted to attend one function. The
appellant thereupon started abusing her and said that she
committed theft of his Rs.10,000/- and paid it to her paramour.
He then started assaulting her. She, therefore, started to leave
the house. The appellant thereupon pulled her and dragged
her in the house. He took her to the kitchen to beat her up with
fist and kick blows. As she had fallen on the floor due to the
beating, the appellant doused kerosene on her person. He
said her to have extra-marital relationship with someone. Then
he ignited a match stick and set her ablaze. On hearing her
cries, son (P.W.1 Rahul) came in. He poured water on her
person. The appellant was present at the entrance door. She
asked Rahul to not extinguish fire and let her die. She further
related P.W.2 Eknath that it was Rahul who brought her to the
hospital in autorickshaw.
23. Exh.27 is the requisition letter issued to the
Executive Magistrate Sk. Munurudin (P.W.6) by P.W.2 Eknath,
requesting him to record statement of Sangita.
24. P.W.6 Sk. Munuruddin was serving as a Clerk in
Juvenile Court. He was a Special Judicial Magistrate as well.
It is in his evidence that, he received letter from P.W.2 Eknath.
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He, therefore, went to Ghati Hospital on 18 May. He issued a
letter to the Medical Officer on duty to obtain his opinion as to
whether patient was conscious to make a statement.
According to him, the Medical officer gave endorsement on
Exh.47 itself before and after recording of her statement. The
Medical Officer certified the patient to have been fit to make a
valid statement.
25. It is further in his evidence that, he then introduced
himself to Sangita. He recorded her statement at 11.30 a.m.
Before that, he ensured that neither police official nor her
relations were around her. Then he recorded her statement.
She related him that the appellant suspected her to have
stolen his Rs.10,000/-. He even threatened her to take her to
the Police Station. The appellant then dragged her to the
kitchen room by catching her hair. The appellant pressed her
mouth with one hand and doused her with kerosene. The
appellant even set her on fire by igniting a match stick. She
further related him that it was his son who brought her to the
hospital. The D.D. recorded by P.W.6 is at Exh.48.
26. The Medical Officer on duty Dr. Sushilkumar
(P.W.4) testified that, on 17/5/2017, P.W.2 Eknath, A.S.I.,
M.I.D.C. Waluj Police Station had been to the hospital and
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gave him requisition (Exh.24). He examined the patient to find
her to have not been in a state to give valid statement. He,
therefore, gave endorsement (Exh.39) to that effect.
It is further in his evidence that, on the following
day, P.W.2 Eknath had again been to the hospital. He (P.W.4
Dr. Sushilkumar) examined the patient and gave an
endorsement that she was fit to make a valid statement. The
endorsement was given on requisition (Exh.25). He referred to
his endorsement (Exh.40). According to him, P.W.2 Eknath
then recorded Sangita's statement. He thereafter again gave
an endorsement below the statement. He referred to his
endorsement to that effect (Exh.41). According to him, the
patient was conscious to make a statement before and after
recording of the same.
27. He was subjected to a searching cross-
examination. It is in his evidence that, the endorsement at
Exh.40 on Exh.25 was given by him by 9.15 a.m. on 18 May.
Sangita had suffered 85 to 90% burns. Condition of a patient
sustaining such percentage of burns was always fluctuating.
He was unable to state by what time P.W.2 Eknath recorded
Sangita's statement. He went on to state that, condition of
Sangita was serious. He was in Ward meant for burn patients.
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While P.W.2 Eknath had come to obtain his endorsement
(Exh.40), relations of the patient were around her. He too was
present for about 5 to 6 minutes. P.W.2 Eknath recorded
Sangita's statement during that time. It is further in his
evidence that, after P.W.2 Eknath asked the patient her name
and address, Dr. Sushilkumar (P.W.4) left the ward. He then
admitted that, he gave endorsement (Exh.41) on Exh.26 at
1.30 a.m.
He gave a vital admission to the following
effect:
"It is true that, he did not know what was the
condition of patient Sangita right from 1.30 a.m.
to 1.30 p.m. on 18/5/2017."
It is further in his evidence that, P.W.2 Eknath came
to him and told to have recorded Sangita's statement and he
asked him to give endorsement. According to P.W.4 Dr.
Sushilkumar, he did not meet the patient when he gave
endorsement (Exh.41). He went on to state that, in medical
papers the history recorded was "suicidal 90% superficial to
deep burns". He, however, denied to have given endorsement
without examining the patient.
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28. P.W.5 Bajirao was the father of deceased Sangita.
It is in his evidence that, Sangita had 25 years of married life.
She was blessed with three children. The appellant would
suspect her character. The appellant was addicted to liquor.
He would beat Sangita. Sangita would relate her woes to him
on phone. He used to reason with the appellant.
29. It is further in his evidence that, on 17/5/2017, his
son Rahul (P.W.1) informed him about Sangita to have
suffered burns. He, therefore, rushed to the hospital. He met
Sangita there. On enquiry, he learnt from her that she
demanded Rs.500/- from her husband (appellant). The
appellant thereupon beat her up and suspected her to have
stolen Rs.10,000/-. She further related him that the appellant
poured kerosene on her person and set her ablaze. The
appellant thereafter ran away. It was her son Rahul (P.W.1)
who extinguished the fire.
30. During his cross-examination, he testified that, had
he learnt the appellant to have set his daughter ablaze, then
he would have certainly filed complaint against him on
18/5/2017 itself. It is in his evidence that, he did not like the
appellant to have been addicted to alcohol. He and his son
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were annoyed with the appellant since the appellant used to
quarrel with his daughter under influence of alcohol.
31. P.W.8 Sanjay was the brother of deceased Sangita.
It is in his evidence that, he rushed to the hospital on having
learnt his sister to have suffered burns. On enquiry, Sangita
related him to have been set ablaze by her husband
(appellant) after having doused her with kerosene. The
incident occurred on account of her having made a demand of
Rs.500/-. The appellant alleged her to have stolen his sum of
Rs.10,000/-. It was P.W.1 Rahul who extinguished the fire.
During cross-examination, he admitted that his
statement was recorded after his sister died i.e. 18 days after
the incident. He denied rest of suggestions put to him during
his cross-examination.
32. P.W.7 Vithalsing was the Assistant Police Inspector,
M.I.D.C. Waluj Police Station during the relevant time. He did
the investigation of the crime. His evidence was not referred to
by any of the parties to the appeal. It was, however, brought to
our notice that, he admitted in his cross-examination that he
received on 24/5/2017 a copy of the statement recorded by
Executive Magistrate. According to him, it was Rahul (P.W.1)
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who had admitted Sangita to hospital. He recorded his (Rahul)
statement on 18 May itself. He denied Rahul (P.W.1) to have
related him that his mother set herself ablaze.
The aforesaid is the evidence in the case.
33. The case is based on two written and two oral
D.Ds. In case of Paniben (Smt.) Vs. State of Gujarat (1992)
2 SCC 474, the Apex Court, in paragraph No.18 of its
judgment, observed thus :
18. Though a dying declaration is entitled to great
weight, it is worthwhile to note that the accused has no
power of cross-examination. Such a power is essential for
eliciting the truth as an obligation of oath could be. This is
the reason the Court also insists that the dying declaration
should be of such a nature as to inspire full confidence of
the Court in its correctness. The Court has to be on guard
that the statement of deceased was not as a result of either
tutoring, prompting or a product of imagination. The Court
must be further satisfied that the deceased was in a fit state
of mind after a clear opportunity to observe and identify the
assailants. Once the Court is satisfied that the declaration
was true and voluntary, undoubtedly, it can base its
conviction without any further corroboration. It cannot be
laid down as an absolute rule of law that the dying
declaration cannot form the sole basis of conviction unless
it is coroborated. The rule requiring corroboration is merely
a rule of prudence. This Court has laid down in several
judgments the principles governing dying declaration,
which could be summed up as under:
(i) There is neither rule of law nor of prudence that
dying declaration cannot be acted upon without
corroboration. Munnu Raja v. State of M.P., (1976) 2 SCR 764.
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(ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without
corroboration. State of U. P. v. Ram Sagar Yadav, AIR 1985 SC
416; Ramavati Devi v. State of Bihar, AIR 1983 SC 164.
(iii) This 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. K. Ram Chandra
Reddy v. Public Prosecutor, AIR 1976 S.C. 1994.
(iv) Where dying declaration is suspicious it should not
be acted upon without corroborative evidence. Rasheed
Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 264.
(v) Where the deceased was unconscious and could
never make any dying declaration the evidence with regard
to it is to be rejected. (Kake Singh v. State of M. P.., AIR 1982
S.C. 1021)
(vi) A dying declaration which suffers from infirmity
cannot form the basis of conviction. (Ram Manorath v. State of
U.P. 1981 SCC (Crl.) 531).
(vii) Merely because a dying declaration does not contain
the details as to the occurrence, it is not to be rejected.
(State of Maharashtra v. Krishnamurthi Laxmipati Naidu,
AIR 1981 SC 617).
(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. Surajdeo Oza v. State of
Bihar, AIR 1979 SC 1505).
(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. (Nanahau Ram v. State of M.P.,
AIR 1988 SC 912).
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(x) Where the prosecution version differs from the
version as given in the dying declaration, the said
declaration cannot be acted upon. (State U.P. v. Madan Mohan,
AIR 1989 S.C. 1519)"
34. The Constitution Bench of the Apex Court in case
of Laxman Vs. State of Maharashtra (2002) 6 SCC 710,
observed thus :
A. Evidence Act, 1872 - S.32 - Dying declaration -
Fitness of state of declarant's mind - Duty of the Court
to decide and mode of deciding the same - Held, court
must decide that the declarant was in a fit state of mind
to make the declaration but where the eyewitnesses'
evidence (in the present case, the evidence of the
Magistrate who had recorded the dying declaration) to
that effect was available, mere absence of doctor's
certification as to the fitness of the declarant's state of
mind, held, would not ipso facto render the dying
declaration unacceptable - The evidentiary value of such
a declaration would depend on the facts and
circumstances of the particular case.
B. .........
D. Evidence Act, 1872 - S.32 - Dying declaration -
Doctor's certificate regarding the declarant's condition -
Interpretation of - Where the medical certificate
indicated that the declarant was conscious, held, it was
indeed a hypertechnical view to say that there was no
certification as to fitness of state of mind of the declarant
- More so when the fitness of the declarant's state of
mind was proved by the testimony of the Magistrate
who had recorded the dying declaration.
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35. There can be no two views over legal proposition
that if a D.D. found to be true and made voluntarily, can form
basis for conviction.
36. Let us now appreciate the evidence in the case.
The evidence of the son of the appellant and his father-in-law
and brother-in-law would indicate that the appellant was
addicted to alcohol. He would harass and ill-treat his wife
Sangita (deceased). The appellant was unemployed. On the
given day i.e. on 17/5/2017, Sangita was at her residence.
The appellant came to his residence from outside. There both
the sons were also at their residence, but were not actually in
the house. Sangita suffered extensive burns at her residence.
On hearing her cries, her son Rahul (P.W.1) rushed in the
house to find his father (appellant) was present in the kitchen
room. A kerosene can was lying on the floor. The appellant
was abusing his mother. He alleged his mother to have stolen
his sum of Rs.10,000/-. His evidence further indicates that, it
was he and the appellant who extinguished the fire. According
to him, he and the appellant admitted her to the hospital in
autorickshaw. According to him, the appellant alleged his wife
to have paid Rs.10,000/- to her paramour. He, in his
examination-in-chief itself denied the father was armed with a
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kerosene can. He, however, testified that, while he poured
water on the person of his mother Sangita, the appellant told
him, "Let her die". It is further in his evidence that, he informed
his maternal grandfather and thereafter relations of his mother
arrived to the hospital. P.W.1 Rahul was a prosecution
witness. In his examination-in-chief itself, he supported the
defence. Learned A.P.P., in-charge of the case, did not prefer
to put him questions which are normally put in his cross-
examination nor the learned A.P.P. informed the Court to have
not been relying on the evidence of P.W.1 Rahul. In case of
Virendra Vs. State of Madhya Pradesh (AIR 2022 SC 3373),
relied on by learned Advocate for the appellant, it has been
observed that, "prosecution witnesses who were not
treated as hostile - No attempt whatsoever was made
either to treat them as hostile or to re-examine them
except that of P.W.10 - Not even a suggestion was put to
them on the presence of P.W.15 - In such a scenario, the
statement made by the prosecution witnesses in favour of
the accused would certainly inure to his benefit."
37. As such, the prosecution's first witness make out it
to be a case of suicide. Although his evidence indicates that
his father (appellant) had abused his mother and even while he
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was attempting to extinguish fire, said, "Let her die". According
to him, his mother related him while on way to the hospital that
she committed a mistake by setting herself ablaze.
38. As against this, we have two D.Ds. recorded, one
by P.W.2 Eknath and the other by P.W.6 Sk. Munuruddin.
P.W.2 Eknath was a police official. On admission of Sangita to
the hospital, her Medico Legal Case (MLC) was registered and
information thereof was given to the concerned Police Station.
He, therefore, admittedly rushed to the hospital on the same
day on which Sangita was admitted to the hospital. He gave a
letter (Exh.25) to the Medical Officer on duty Dr. Sushilkumar
(P.W.4). The Medical Officer, on examining Sangita, admittedly
gave an endorsement that she (Sangita) was not fit to make a
valid statement. The said endorsement has been reproduced
above in paragraph No.20 (last line). P.W.2 Eknath had,
therefore, no option but to return to the Police Station. He
again went to the Police Station on the following day and gave
a requisition to the very doctor (P.W.4 Dr. Sushilkumar)
requesting him to examine the patient and give endorsement.
P.W.4 Dr. Sushilkumar accordingly gave endorsement at
Exh.25, certifying the patient to have been conscious to make
a valid statement. The statement recorded by P.W.2 Eknath is
:: 24 ::
at Exh.64. It does not bear the doctor's endorsement either
before or after recording of the same was over. Neither it
contained any matter nor P.W.2 Eknath testified on oath to
have put certain questions to her to ascertain her to be in
conscious state of mind to make a statement. True, in the said
statement Sangita allegedly reported him that the appellant
would suspect her character and, therefore, used to harass
and ill-treat her. She then narrated the incident as to how she
was set ablaze after pouring kerosene on her person. The
reason therefor was she had made a demand of Rs.500/-. The
appellant had suspected her to have stolen his Rs.10,000/-.
Her statement recorded by P.W.2 Eknath has also been
referred to in extenso during his examination-in-chief (para 2).
39. Then we have a D.D. recorded by Executive
Magistrate (P.W.6 Sk. Munuruddin). It was in question-answer
form. It is at Exh.48. The same does not bear the time by
which he recorded the same on 18/5/2017. It too does not
bear endorsement of Medical Officer on duty certifying Sangita
to have been fit to make a valid statement. True, P.W.6 Sk.
Munuruddin had issued a requisition letter (Exh.47) to the
Medical Officer on duty by 11.25 a.m. on 18/5/2017. The
Medical Officer Dr. Sushilkumar (P.W.4) gave endorsement
:: 25 ::
thereon twice, certifying the patient to have been conscious
oriented to make a statement.
40. A statement recorded by P.W.6 Sk. Munuruddin
suggests the appellant to have set his wife ablaze after
dousing her with kerosene. She related the Executive
Magistrate that the appellant had suspected her to have
committed theft of his Rs.10,000/-. She denied the same on
oath in the name of her sons. Both of them were about to go
to the Police Station. The appellant, however, dragged her
back to the house and set her ablaze. She further informed
the Executive Magistrate that she had made a grievance to her
father-in-law in the past about the behaviour of the appellant.
He (father-in-law), however, abused her instead of reasoning
with his own son (appellant). Then we have two oral D.Ds.,
one made to the father Bajirao (P.W.5) and the other to P.W.8
Sanjay, brother of Sangita. The oral D.Ds. said to have been
made to the father Bajirao (P.W.5) was on 17/5/2017 on which
date she was admitted to the hospital, while the other one was
on the same day, but late in the evening. Both, the father and
brother of deceased Sangita did not lodge any report with
police no sooner she related to them to have been set ablaze
by her husband. Their statements appear to have been
:: 26 ::
recorded on the demise of Sangita. Sangita died on 28/5/2017
i.e. after 11 days after she suffered burns.
41. The question is, whether the D.Ds. said to have
been made by the deceased inspire confidence. In our view,
the answer would be, "No". The reasons therefor are :-
(1) P.W.1 Rahul, son of the deceased and the appellant
was at the residence while the incident took place.
Although he was not an eye witness to the incident,
he admittedly extinguished fire and admitted Sangita
to the hospital. According to him, his mother (Sangita)
set herself ablaze. So was related to him by her
while on way to the hospital. He, therefore, gave the
history (suicidal burns) to the Medical Officer on duty
while admitting her to the hospital. The prosecution
did not cross-examine him. As such, the evidence of
the prosecution witness itself goes against the
prosecution case.
(2) The most mischievous part in this case appears to be
the conduct of P.W.4 Dr. Sushilkumar. Admittedly,
P.W.2 Eknath (police official) had been to the hospital
on the day Sangita was admitted. That time, P.W.4
Dr. Sushilkumar examined Sangita and certified her
to have been not in a mental frame to make a valid
statement. According to the Medical Officer, her
condition was serious and fluctuating as well. She
was moaning. She had suffered 90% of burns. She
:: 27 ::
must have been administered pain killer/ sedative.
When on the day on which she was admitted to the
hospital, she was not in a mental state to make a
valid statement. There is nothing on record in the
nature of medical papers to indicate as to how her
condition was improved to make a statement. True,
P.W.4 Dr. Sushilkumar gave endorsement to both,
P.W.2 Eknath and P.W.6 Sk. Munuruddin, who
recorded statements of Sangita. The endorsements
were to the effect that, patient was conscious-
oriented to make the statement. Those
endorsements were given on two separate papers
and not on the statements of the deceased said to
have been recorded by these two witnesses. Those
endorsements were given between the period 9.30
a.m. to 1.30 p.m. on 18/5/2017, on which both the
statements were recorded. Admittedly, P.W.4 Dr.
Sushilkumar was not present by her side while her
both the statements were recorded. He gave vital
admission in his cross-examination, wherein he
testified that, right from 9.30 a.m. on 18/5/2017
till1.30 p.m. (during which both the statements were
said to have been recorded), he did not know what
was the medical condition of patient Sangita. He
went on to state that, P.W.2 Eknath had come to him
and obtained his endorsement after having been
informed to have recorded Sangita's statement. As
such, the medical evidence on record indicates that,
on the day on which Sangita was admitted to the
hospital, she was not conscious-oriented to make a
:: 28 ::
statement. The Medical Officer on duty was unaware
of her mental state to make statement to P.W.2
Eknath and P.W.6 Sk. Munuruddin, still he gave
endorsements to both of them certifying her condition
to be fit to make statement. The same suggests that,
he did not examine Sangita before and after
recording of her statements by both these witnesses.
42. It is true that, in view of the Apex Court judgment in
case of Laxman (supra) certification of a doctor is not a must if
the person who recorded the statement is satisfied that the
patient was conscious to make a statement. Both, P.W.2
Eknath and P.W.6 Sk. Munuruddin who recorded her
statements have neither stated on oath nor recorded in the
statements of Sangita recorded by them that they put certain
questions to her to ascertain that she was conscious-oriented
to make statement. On the day on which Sangita was
admittedly not in mental frame to make a valid statement, her
father P.W.5 Bajirao and brother P.W.8 Sanjay claim to have
been related by her that the appellant set her ablaze. These
two D.Ds., therefore, cannot be relied upon. They are close
relations of the deceased. Moreover, they did not report to the
police immediately. Their statements were admittedly
recorded after the demise of Sangita i.e. 14 days after the
alleged incident. To top it, the prosecution witness itself,
:: 29 ::
namely P.W.1 Rahul testified it to be a case of suicide. In the
aforesaid backdrop, the Trial Court ought not to have convicted
the appellant. In our view, the prosecution evidence inspire no
confidence. At the cost of repetition, it is stated that, the victim
was not conscious to make a valid statement on 17. The
Medical Officer (P.W.4 Dr. Sushilkumar) gave false
endorsement, certifying her to be fit to make a statement on
18. He gave those endorsements without examining the
victim. He admitted in cross-examination that, he was
unaware about her mental fitness. The evidence of both P.W.2
Eknath and P.W.6 Sk. Munuruddin, who recorded her
statements, is silent to state that she was in a mental frame to
respond to their queries. Their evidence is silent to suggest
they to have ascertained that she was in a mental frame to
make a statement. For all these reasons, interference with the
impugned order of conviction and consequential sentence is
warranted.
43. In the result, the appeal succeeds. Hence the
order :
ORDER
(i) The Criminal Appeal is allowed.
:: 30 ::
(ii) The order dated 10/11/2021, passed by learned
Additional Sessions Judge, Vaijapur, District Aurangabad in
Sessions Case No.59/2017 is hereby set aside. The appellant
is acquitted of the offence punishable under Sections 302 and
498-A of the Indian Penal Code. The appellant be set at liberty
forthwith if not required in any other case. Fine amount, if
paid, be refunded to him.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
