Bombay High Court
Amol Ramesh Shelhale vs The State Of Maharashtra on 1 April, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:9619-DB
Cri Appeal No.90 of 2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.90 OF 2022
Amol s/o. Ramesh Shelale,
Age : 24 years, Occ. Labour,
r/o. Nagral, Tq. Deoni, Dist.Latur ..Appellant
Vs.
The State of Maharashtra,
Through Police Station Officer,
Police Station, Deoni, Tq. Deoni,
Dist.Latur ..Respondent
----
Mr.V.D.Gunale, Advocate for appellant
Mr.S.D.Ghayal, Addl. G.P. for respondent - State
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : FEBRUARY 13, 2025
PRONOUNCED ON : APRIL 01, 2025
JUDGMENT (PER R.G.AVACHAT, J.) :
-
The challenge in this appeal is to the judgment of
conviction and the order of consequential sentence passed by learned
Addl. Sessions Judge-2, Udgir, Dist. Latur, in Sessions Case No.21 of
2018, whereby, the appellant has been convicted for the offences
punishable under Sections 302 and 498-A of Indian Penal Code and
therefore, sentenced to suffer imprisonment for life and R.I. for one
year, respectively, with default stipulation.
2. The case of prosecution, in short, as disclosed from the
evidence on record, is that the appellant married Manisha
(deceased) two months before 05.02.2018. Manisha's parents were
no more. The appellant would suspect her loyalty to him. There,
therefore, used to be quarrels between the two. On the given day,
i.e. on 05.02.2018, by 01.30 pm., the appellant started abusing her.
He assaulted her with electric-wire. Manisha, therefore, went out of
the house to make call to her cousin. The appellant, thereafter,
dragged her to the house, poured kerosene on her person and then,
set her ablaze after bolting the door. On hearing commotion,
neighbours gathered. The appellant and neighbours extinguished
the fire with water and rushed Manisha to hospital. She was then
referred to the Civil Hospital, Latur. After ten days, Manisha
succumbed to the burns at the hospital. Manisha's statement was
recorded by the police official on duty. Based on the same, crime
vide C.R. No.13 of 2018 was registered with Devni Police Station, for
the offences punishable under Sections 307 and 498-A of Indian
Penal Code. On demise of Manisha, Section 302 of I.P.C. came to be
added in place of Section 307 of I.P.C.
3. Inquest and autopsy were conducted on the mortal
remains. The appellant was arrested. Crime-scene panchnama
(Exh.12) was drawn. Statements of the persons acquainted with the
facts and circumstances of the case were recorded. Upon
completion of the investigation, charge sheet was filed against the
appellant.
4. Charge (Exh.6) was framed. The appellant pleaded not
guilty. The prosecution examined twelve witnesses and produced in
evidence certain documents. The trial court, on appreciation of the
evidence in the case, convicted and consequentially, sentenced the
appellant, as stated above.
5. Learned counsel for the appellant would submit that
none of the witnesses related to the deceased Manisha, have
supported the prosecution case. The so-called dying declaration was
recorded by the police constable. Inspite of a letter being issued to
the Executive Magistrate, it is not known, as to why, the Executive
Magistrate did not record Manisha's statement. He would further
submit that it is not known, as to whether, the Executive Magistrate
has recorded statement of Manisha and the same has been held
back by the prosecution. No medical papers of the victim were
placed on record. The Medical Officer, who attended the victim first,
admitted that Manisha was administered analgesic medicines to
relieve her of pains. Bandage was applied. He would further submit
that the statement has been recorded in such a fashion so as to
make it self-evident that certain matter, such as, on which number of
bed the deceased was kept, etc., has been written by the police
official himself. He would further submit that such a dying
declaration was short to inspire confidence. According to him, the
appellant is behind the bars for little over seven years. He,
therefore, urged for allowing the appeal.
6. Learned APP would, on the other hand, submit that
unfortunately, the relations of the deceased and other witnesses did
not stand by the prosecution. Same would, however, be of little
consequence. According to him, the dying declaration given by the
deceased has been duly proved. The deceased had suffered 53% of
burns. The Medical Officer certified her to be conscious oriented to
make a statement. She breathed her last ten days after the incident.
The dying declaration given by the victim inspires confidence.
According to learned APP, analgesic medicines were not in the nature
of medicines like Fortwin, which would keep a patient in drowsy
state. According to him, the police official recorded the dying
declaration after having verified the patient to have been conscious
oriented to make a statement. The dying declaration forms the sole
basis for conviction of the appellant. Learned APP relies on the
decision of the Apex Court in the case of Surinder Kumar Vs. State of
Haryana, MANU/SC/1271/2011. He, therefore, urged for dismissal of
the appeal.
7. Considered the submissions advanced. Perused the
evidence on record. Let us advert thereto and appreciate the same.
8. It is reiterated that all the relatives including the father of
the deceased did not stand by the prosecution. We have, therefore,
the only evidence of the police official, who recorded the dying
declaration (Exh.25), and the Medical Officer, who examined the
deceased before and after recording her statement.
9. Admittedly, the appellant married Manisha (deceased)
two months prior to the incident dated 05.02.2018. The couple was
residing at village Nagral, Tq. Udgir, Dist.Latur. Since Manisha
suffered burns, she was rushed to the Primary Health Centre, Udgir.
PW11 - Dr. Ashruba was on duty. He was not a surgeon but a
pediatric. He testified that there was no surgeon available in the
hospital. He further testified that the condition of Manisha was
critical and therefore, he referred her to the Civil Hospital, Latur.
Manisha was crying and screaming due to pains. He did not place
on record the medical papers of Manisha. He had administered her
analgesic medicine to relieve her from pains. He categorically
denied that Manisha was in drowsy state due to the medicines
administered to her. He specifically testified that he examined her
and found conscious oriented to make statement. He, however,
admitted that he did not conduct certain medical tests to ascertain
her consciousness before recording her statement. According to him,
during recording of her statement, he was attending to other
patients.
10. PW6 - Sudhakar was the Police Constable attached to the
Government Hospital Police Chowki, Udgir. He testified that the
Medical Officer (PW11 - Dr.Ashruba) gave a letter for recording of
statement of Manisha. He referred to the said letter (Exh.24). He,
therefore, reached the casualty ward. The Doctor informed him that
Manisha was on bed no.1. He, therefore, went close to Manisha.
Saline was being administered to her. He called the Doctor and
asked him, whether he could record Manisha's statement. The
Doctor, in turn, replied that she was conscious oriented and he could
record her statement. Accordingly, the endorsement was made. He,
thereafter, recorded the statement as narrated by Manisha. He
referred to the same (Exh.25). During his cross-examination, he
admitted that a letter was given to the Executive Magistrate with a
request to record Manisha's statement. He did not ask the people
around Manisha to leave the place when he recorded Manisha's
statement. The statement of Manisha reads thus:-
........... मी गांधीनगर उदगीर येथील बाबुराव हणमंत पाळले यांची
मुलगी असून गेल्या दोन महिन्यापूर्वी माझे लग्न नगराल येथील अमोल
रमेश शेल्हाळे यांचे सोबत झाले . लग्न झाल्यापासून नवरा तू
रस्त्यावरली आहेस म्हणून शिवीगाळ करायचा. तुला माय बाप
नाहीस तू मोकळी आहेस म्हणून माझे वर संशय करून मारहाण
करीत होता. पंधरा दिवसापूर्वी नवऱ्याने मारहाण करून उदगीरला
माहेरी आणून सोडले होते. नवऱ्याची आजी विमलाबाई व फुलाबाई
हिने आता मी चांगले नंदवला लावते मारू देणार माझे माझे भरोशावर
पाठवा म्हणून माझी आत्या तेजमाबाई मोहन दांडगुळे, मथुराबाई,
चुलत भाऊ राजीव नागोराव पाळले याना सांगून माझे नातेवाईकांनी
त्यांचे सोबत पाठवून दिले. त्यानंतर सारखे तो माझे माहेरच्या
नातेवाईकांवर संशय करून मारहाण करायचा तरी पण मला आई
वडील नाहीत म्हणून मी त्याचा त्रास सहन करत राहिले.
आज दिनांक ०५.०२.२०१८ रोजी दपु ारी ०१.३० वा.
सुमारास नवऱ्याने शिवीगाळ सुरु केला व इस्त्रीच्या वायरने मला
मारहाण सुरु केला. मी माझ्या चुलत भावाला फोन करून सांगते
म्हणत घर बाहेर आले असता त्याने घरात ओढू न घेऊन गेले व
स्वयंपाक रूम मधून रॉकेलचा डब्बा घेतला व ओढत स्वयंपाक रूम
मध्ये नेला व हातातील रॉकेलचा डब्बा माझे अंगावर ओतू लागला.
त्यावेळी मी बाहेर पळत होते तर त्याने काडी ओढू न माझे अंगावर
टाकली. मी बाहेर येण्यासाठी दारात येत असताना त्याने दार
लावले. मी चिरकले. त्यावेळी बाहेरचे लोक पळत आले . माझे अंगास
लागली आग पाहून गावातील लोकांनी व नवऱ्याने पाणी टाकले .
कोणी तरी माझे चुलत भावास सांगितले. चुलत भाऊ राजकुमार,
सुनील हे नागराल येथे आले व त्यांनी मला उदगीरला स.
दवाखान्यात आणून शरिक केले. येथील डॉक्टरांनी माझेवर उपचार
चालू केला. माझे दोन्ही पाय, दोन्ही हात, पोट, छाती, तोंडास
भाजले आहे. तरी माझे अंगावर रॉकेल टाकून जळणाऱ्या अमोल
रमेश शेल्हाळे , रा. नागराल, याचेवर कार्यवाही करावी.
The statement bears endorsement of the Doctor, indicating that the
patient was conscious oriented to make a statement. Moreover, the
Police Constable - Sudhakar had recorded her statement after having
found her to be conscious oriented.
11. Manisha had suffered 53% of burns. She succumbed to
the injuries after ten days. The post mortem report (Exh.60),
indicates that she died of "septicemic shock due to burns". We are
conscious of the legal position as regards appreciation of the
evidence in the nature of the dying declaration. The dying
declaration, if found to be true and made voluntarily, can form the
basis of conviction. As such, the dying declaration is the substantive
piece of evidence. There is, however, other side. Since the
declarant is not available for cross-examination, in some cases, the
court requires some evidence in the nature of corroboration to the
dying declaration. Each case would depend upon the facts and
circumstances appearing therein. Even a person, who has suffered
99% of burns, can make a statement.
12. In the case in hand, the evidence indicates that Manisha
was rushed to the hospital by her neighbours. No sooner she was
admitted to the hospital, the Doctor on duty gave a letter to the
Police Constable with a request to record her statement. The police
official (PW6 - Sudhakar) rushed to the casualty ward. PW11 -
Dr. Ashruba was the only Medical Officer available there. He
attended Manisha, who had suffered 53% of burns. He certified
Manisha to be conscious oriented to make statement. PW6 -
Sudhakar then recorded Manisha's statement, which has been
referred herein above.
13. The question is, whether the dying declaration inspires
confidence as being true. The reason for setting Manisha ablaze
attributed to the appellant, was that he would suspect her loyalty to
him. It was just two months old marriage. None of the relatives of
the deceased stood by the prosecution. The crime-scene
panchnama (Exh.12) indicates that a kerosene bottle was lying on
the spot. Deceased Manisha, in her statement, stated that it was the
appellant and others, who poured water and extinguished the fire.
We find her evidence as regards the appellant to have set her
ablaze, to be reliable and fit to act upon. The reason attributed to
the appellant has, however, no support of any other evidence. As
per the case of the prosecution, it is the appellant who made
disclosure statement within 2-3 days of his arrest.
14. We are conscious of the fact that the portion, which is
inculpatory is not admissible in evidence. We are, however, of the
view that whatever reason has been given by the appellant in his
disclosure statement appears to have not been investigated at all.
As such, it can be said that the prosecution has suppressed the
genesis. In the house, there were only two persons: the appellant
and deceased Manisha. The appellant in his disclosure statement
stated that on 05.02.2018, there was quarrel between him and his
wife Manisha. When he was beating her with a wire, there was
scuffle (Zatapat) between him and the deceased. A button of his
shirt was dislocated. The shirt was even torn. The same suggests
that all was not well between the couple. It is reiterated that it was
the marriage of just two months. A quarrel between the two had
preceded the incident. It can, therefore, be stated that there was no
premeditation. True, the intention to kill is very much evident, since
a person dousing a person with kerosene and setting ablaze, suggest
the intention to kill. The reason therefor, has, however, not been
investigated. The appellant has his side of story to tell. As such, the
incident took place in a spur of a moment, that too, after the quarrel
between the two. The deceased had also been aggressive. It was
the appellant, who extinguished the fire along with the others with
water. In our view, therefore, whatever the appellant has stated in
his disclosure statement can make out his case on the basis of
preponderance of probabilities.
15. At the cost of repetition, it is stated that the investigation
has not been made, as to why the quarrel had ensued between the
appellant and the deceased. It has already been observed that in
the statement of the deceased Manisha, there is nothing to indicate
that the appellant would suspect her loyalty to him. In our view,
therefore, it would be a case of culpable homicide not amounting to
murder. We are, therefore, inclined to interfere with the order
impugned herein.
16. In the result, the appeal succeeds. Hence, the following
order:-
(i) The appeal is partly allowed.
(ii) The conviction of the appellant for the offence
punishable under Section 302 of Indian Penal Code and the
consequential sentence to suffer imprisonment for life and to pay
fine of Rs.10,000/-, with default stipulation, imposed vide order dated
12.01.2022, passed by learned Addl. Sessions Judge-2, Udgir, in
Sessions Case No.21 of 2018, is hereby set aside.
Instead, the appellant hereby stands convicted for the
offence punishable under Section 304 Part I of Indian Penal Code and
therefore, sentenced to suffer rigorous imprisonment for nine years
and pay fine of Rs.1,000/-, in default, to undergo S.I. for ten days.
(iii) Rest of the terms of the impugned order to stand
unaltered.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
