[Cites 13, Cited by 0]
Bombay High Court
Prasad Sudhakar Kulkarni vs The State Of Maharashtra on 5 May, 2026
Author: S. M. Modak
Bench: M. S. Karnik, S. M. Modak
2026:BHC-AS:21316-DB
1. Cri. Appeal 808.17 final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.808 OF 2017
ALONGWITH
INTERIM APPLICATION NO. 1839 OF 2024
ALONGWITH
INTERIM APPLICATION NO. 4457 OF 2025
ALONGWITH
INTERIM APPLICATION NO. 4516 OF 2024
Prasad Sudhakar Kulkarni,
(Presently in Central Jail, Nashik)
Age : 30 Years, Residing at : Poornima
Apartment, Flat No.4, Chetna Nagar,
Indira Nagar, Nashik. ...Appellant
Versus
1. The State of Maharashtra,
Through Indira Nagar Police Station, ...Respondent No.1
District : Nashik, (CR No.I-78/201). (Ori.Complainant)
2. Balkrushna Jaggannath Mulay,
Age : 66 Years, Occupation : Nil,
Residing at : Balaji Angan, Near S.G.
Vidyalaya, Ram Mandir Road,
Kopargaon, Ahmednagar. ...Respondent No.2
*****
Ms. Pushpa Ganediwala a/w Ms. Anima Mishra, Mr. Anuj Singh, Mr.
Vinod Patil, Ms. Priyanka P., Mr. Pradyumna Agrawal, Ms. Anshu
Agrawal and Mr. Bhushan Shinde i/b. Dhaara Legal, Advocates for
Appellant.
Mr. S. V. Gavand, APP, for Respondent No.1 - State.
Mr. S. G. Deshmukh a/w Mr. Gautam T. Kanchanpurkar, Advocates
for Respondent No.2.
Digitally signed
by SEEMA
SEEMA KSHITIJ
YELKAR
KSHITIJ Date:
YELKAR 2026.05.05
19:12:33
+0530
LSP/SKY/SS 1/62
::: Uploaded on - 05/05/2026 ::: Downloaded on - 06/05/2026 15:51:27 :::
1. Cri. Appeal 808.17 final.doc
*****
CORAM : M. S. KARNIK AND
S. M. MODAK, JJ.
DATE : 5th MAY 2026
JUDGMENT :
(PER : S. M. MODAK, J.)
1. The Appellant is convicted by the Court of Additional Sessions
Judge, Nashik on 22nd August 2017 for the offence punishable under
Section 302 of Indian Penal Code in a trial conducted in Sessions Case
No.240/2011. The sentence is life imprisonment and fine of Rs.
5,000/- and there is imprisonment in default to pay fine for period of
six months. The amount of fine is to be paid to the father of the
victim-Kirti. The correctness of the said judgment is challenged on
behalf of the Appellant.
2. The contention of the Appellant is there are two sets of dying
declarations (Exh. 120 and Exh. 93). One set suggest that Kirti
succumbed to accidental burn injuries whereas another set suggest that
it was a homicidal death due to pouring of kerosene and setting her on
fire by her own husband i.e. the present Appellant. The Appellant
contend that the trial Court has not considered both sets of dying
declarations as per the set norms. According to him, he has offered a
1. Cri. Appeal 808.17 final.doc
proper explanation as to how deceased-Kirti succumbed to burn
injures. Whereas according to prosecution the second set of dying
declaration clearly suggest that it is the Appellant who is responsible
for the death due to burning and in fact it is the case of the homicidal
death i.e. to say 'Kirti' and Appellant both were staying in the same
house and when the deceased- Kirti was burnt, the Appellant was very
much present there and the explanation which is offered by him is not
a plausible explanation. Father of the deceased/respondent No.2
during pendency of trial has also raised grievance about bonafides of
the investigation. Even there was criminal Writ Petition No. 3235 of
2011 filed by him in this Court. However, the Commissioner of Police,
Nashik has transferred the investigation to Inspector attached to Crime
Branch, Nashik. So we are required to decide as to whether the lacunae
pointed in the investigation on behalf of the respondent No.2 are
natural or whether they were deliberate.
3. On this background, when we have read the trial Court
judgment, we find the trial Court has given importance to second set of
dying declaration (Exh. 93). Trial Court found certain defects in
investigation and that is how, trial Court has convicted the Appellant.
1. Cri. Appeal 808.17 final.doc
While dealing with the Appeal, we are supposed to ascertain whether
the defects in the investigation are really the defects to assist the
Appellant or they are the defects occurred in a natural course
unintentionally. We also have to find out what are the circumstances
corroborating accidental dying declaration and what are the
circumstances corroborating dying declaration implicating the
Appellant and then this Court has to assess which set of dying
declarations is correct.
4. On this background, we have heard learned Advocate Ms.
Ganediwala for the Appellant, learned APP Shri Gavand for the
Respondent No. 1-State and learned Advocate Shri Deshmukh for
Respondent No.2-father of the deceased.
5. The death of the deceased due to burn injuries is not disputed.
The issue is, 'whether it was accidental or homicidal'. The presence of
the accused at the time of incident is also not in dispute because he
himself got burn injuries and he was also hospitalized in a civil
hospital. So the issues involved before us are as follows:-
(a) Whether the prosecution has proved homicidal death
of the deceased Kirti ?
(b) Whether it is the first set of dying declaration
1. Cri. Appeal 808.17 final.doc
suggesting accidental death is reliable or whether it is
the second set of dying declaration suggesting
homicidal death at the hands of the Appellant is to be
believed?
(c) Whether the trial Court has rightly appreciated the
evidence?
Prosecution case
6. The prosecution case as reflected from the evidence need to be
restated. It is as follows:-
(i) The deceased Kirti married to the Appellant on
20th January 2011 at Aurangabad. At the time of
marriage the Appellant was residing at
Aurangabad. After the marriage both of them
shifted to Nashik.
(ii) The Appellant was working in a Company at
Nashik. His fellow colleague was PW No.9-
Hemant Puroshottam Vispute, whereas the spot
panch-PW No.1 Rajesh Dusane was also his
fellow colleague.
(iii) During lifetime, deceased Kirti has disclosed to
her brother PW No.2-Dinesh about the
harassment at the instance of the Appellant. The
Appellant used to consume liquor and used to
beat and abuse his own wife-Kirti.
(iv) There are certain instances of demand of money
1. Cri. Appeal 808.17 final.doc
by the Appellant from his own wife Kirti during
her lifetime. Those instances are quoted by Kirti
to her own brother-PW No.2-Dinesh. Some of
such instances took place on 23 rd April 2011, 25th
April 2011, 26th April 2011, 27th April 2011 and
on 9th May 2011.
(v) The Appellant used to demand Rs.1 lac for the
purpose of purchase of car. The relatives of
deceased Kirti has expressed inability on account
of financial constraint. (It is important to note
that these facts stated by Dinesh in his evidence
are not part of his police statement).
(vi) Mr. Deshmukh considers these allegations as a
motive for committing murder by the Appellant.
Whereas according to Mrs. Ganediwala, this
portion is by way of improvement and need to be
excluded while appreciating the evidence.
(vii) Unfortunate incident took place on 12th May
2011 at about 9.30 to 10 p.m., when both the
spouses were at home. It is the prosecution case
that the Appellant returned home in a drunken
condition and when the deceased asked him
about the same, he got annoyed and poured
kerosene on the person of the deceased and set
her on fire.
(viii) Whereas according to the Appellant, the gown of
1. Cri. Appeal 808.17 final.doc
the deceased was caught fire due to a burning
niranjan (diya) and that is how she sustained
burn injury.
(ix) According to Mr. Deshmukh, if the gown caught
fire due to a niranjan, 95% burn injuries will not
be possible.
(x) PW No. 1-Rajesh Dusane was informed about
the burning incident by mother of the Appellant
at 9.30 p.m. of 12th May 2011. He went to the
spot immediately, called Shekhar Kulkarni (who
is husband of sister of Appellant) and was
instrumental in shifting the deceased and
Appellant first to Life care hospital and then to
the Civil hospital.
(xi) After knowing about the incident, neighbours
also visited the spot. One is PW No. 9-Hemant
Vispute, who is a colleague of the Appellant. He
visited the spot after being told by PW No.1
Rajesh. Another is P.W. No. 8-Chetan Bhadange,
who is a Dentist by profession. He heard a
shouting and went to the spot.
(xii) PW No. 8-Chetan arranged for medical help and
hence called PW6-Dr. Shripad Upasani. He came
to the spot alongwith his medical team.
(xiii) PW No.6- Dr. Shripad Upasani arranged for an
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ambulance.
(xiv) When all these witnesses visited the spot, they
saw deceased Kirti was lying on a ground and she
was shouting and she was burnt. All of them also
saw the Appellant sustained burn injuries. He
had worn an underpant and banian. All of them
smelt of kerosene and they have also sensed the
liquor being consumed by the Appellant.
(xv) At Civil hospital firstly there was a dying
declaration recorded on 13th May 2011 by the
Police Head Constable R. H. Jadhav who is not
examined ( as deposed by P.W.No. 11) attached to
Indira Nagar Police Station. According to the
Appellant, this dying declaration was concealed
by the prosecution and it was produced when
insisted by the Appellant. This is the first
accidental dying declaration. (Exh. 120)
(xvi) There is spot panchnama carried out on 13 th May
2011 (Exh. 25) by seizure officer (who is not
examined). He has seized following articles from
the spot: (i) matchbox, (ii) remaining matchstick
and (iii) burnt pieces of gown and (iv) a
niranjan/samai.
(xvii) On this background the police constable thought
it fit to arrange for recording of dying declaration
through the resident Naib Tahsildar Nashik
1. Cri. Appeal 808.17 final.doc
Taluka. He wrote a letter on 13th May 2011. P. W.
No. 5 Ajit Dhenge recorded it on 13th May 2011
(1.30 to 2 A.M. as noted by the certifying
doctor).
(xviii) Balkrushna Mule, who is a father of the deceased
wrote to Senior PI of Indira Nagar Police Station
on 14th May 2011 (Exh. 105) thereby expressing
suspicion because his daughter is burnt 95% and
therefore requested the dying declaration of Kirti
be recorded again. He is not examined.
(xix) Accordingly Inspector Kopere P. W. No.11
recorded a dying declaration by visiting Civil
Hospital on 14th May 2011 at about 8.40 p.m..
(Exh. 120).
(xx) On the basis of said dying declaration Inspector
Kondiram Kopere has registered an FIR bearing
C.R. No. 78/2011 under Section 307 of Indian
Penal Code against the Appellant. He transferred
the investigation to PSI Potkule.
(xxi) There is also a property search and seizure form
(Exh. 29) recorded on 14th May 2011 by P.S.I.
Potkule. It records seizure of certain articles.
Interestingly, there is a reference of a plastic bottle
having a smell of kerosene. The defence has
harped much upon the seizure of kerosene bottle
which was not described in the spot panchnama
1. Cri. Appeal 808.17 final.doc
dated 13th May 2011. There is a report of a
Chemical Analyser (Exh. 113). They have found
the kerosene test positive in respect of a plastic
bottle and the pieces of a gown, whereas for other
two articles it was negative.
(xxii) On this background, Indira Nagar Police Station
police wrote to Special Executive Magistrate as
per their letter dated 14th May 2011, thereby
requesting to record the dying declaration. PW
No.5 again recorded the dying declaration on 14th
May 2011. PW No.12-Dr. Patil who was the
Medical Officer has certified about the fitness of
the deceased. The medical officer gave initial
fitness endorsement at 11.10 p.m. and again
certified about the fitness at 11.35 p.m.
(xxiii) While undergoing treatment, the deceased
succumbed to the injuries and she died on 16 th
May 2011. Inquest panchnama was prepared at
Civil Hospital (Exh. 100) and PW No.4 and PW
No.7 performed the inquest panchnama. Offence
is converted into one under Section 302 of
Indian Penal Code.
(xxiv) PW No. 3-Madhukar Shankpal performed
postmortem (Exh. 76) and opined that the death
was due to burn. He assessed 100% burn injuries
on the body of the deceased.
1. Cri. Appeal 808.17 final.doc
(xxv) PSI Potkule carried out the investigation and filed
charge-sheet for an offence under Section 302 of
IPC (Exh. 1).
(xxvi) Balkrushna Jagannath Mule-father of the deceased
found some suspicion about the approach of the
police. He wrote to the Commissioner of police
on 25th July 2011. He has mentioned that the
mother of the Appellant was a retired Mamledar.
(xxvii) There was a writ petition filed in the High Court
by father of the deceased and the Division Bench
of the High Court as per the order dated 18th
December 2012 passed in Criminal Writ Petition
No.3235/2011 was pleased to record willingness
shown by the Commissioner of Police to transfer
the investigation to Senior PI Shri Sanap attached
to Crime Branch as per the order dated 18th
December 2012.
(xxviii) Then PW No.13-PI Sanap carried out an
investigation and then he filed supplementary
charge-sheet (Exh. C/12A).
Conduct of trial
7. The prosecution has in all examined 13 witnesses, whereas the
defence of the Appellant is of denial and he has suggested that the burn
injuries were caused to the Appellant due to the gown catching fire by
1. Cri. Appeal 808.17 final.doc
a niranjan. He has also filed a separate written statement. The
categories of the prosecution witnesses can be summarized as follows:-
(A) PW No. 2 Dinesh Balkrishna Mule is the brother of the
deceased.
(B) On the point of visiting the spot after the incident, the
prosecution has in all examined 3 witnesses. They are
(i)PW No. 1-Rajesh Dusane, (ii) P.W. No.6 Dr. Shripad
Upasani, who is the doctor by profession and (iii) PW
No.8-Chetan Bhadange, who is a neighbour.
(C) PW No.9-Hemant Vispute is the co-employee working
with the Appellant, who visited Life care hospital and
then shifted deceased to Civil Hospital.
(D) On the point of panchnama, the prosecution examined
PW No.1- Rajesh Dusane being the spot panch and PW
No.4-Rahul Ingle and PW No.7 Manisha Lahade who
are the inquest panch.
(E) On the point of accidental dying declaration, the
prosecution has examined following witnesses:-
(i) There is first accidental dying declaration
1. Cri. Appeal 808.17 final.doc
recorded by the Police of Nashik City Police
Station on 13th May 2011 at Civil Hospital. No
one is examined on behalf of the prosecution. It
is this dying declaration which is not produced
on behalf of the prosecution along with the
charge sheet. It was produced when accused
insisted. It is at Exh. 120 given during the
evidence.
(ii) P.W. No.5-Ajit Dhenge, who is an Executive
Magistrate and he has recorded the second
accidental dying declaration Exh. 93 on 13th
May 2011 (from 1.30 a.m. to 02.00 a.m. i.e.
midnight of 12th May 2011 to 13th May 2011) as
per the timings given by certifying doctor.
(F) Second set of dying declaration, the prosecution has
examined following witnesses:-
(i) P.W. No.10-PSI Kondiram Rahu Kopere who has
recorded it on 14th May 2011 (at 8.40 p.m. timing
mentioned by doctor) at Exh. 106.
1. Cri. Appeal 808.17 final.doc
(ii) Executive Magistrate-PW No.5 Ajit Dhenge who
has recorded a dying declaration on 14th May
2011 from 11.10 p.m. to 11.35 p.m. (timings
given by certifying doctor) at Exh. 95.
(iii) Dr. Yogita Patil-PW No.12 is the Medical Officer
who has endorsed the fitness (Exh. 129 and Exh.
130) of deceased - Kirti when Executive
Magistrate recorded dying declaration on 14th
May 2011
(G) On the point of investigation, the prosecution has
examined following two officers:-
(i) PW No.11-PSI, Balu Potkule, who is the first
investigation officer attached to Indira Nagar Police
station.
(ii) PW No.13-PSI Sanjay Sanap who is attached to
Crime Branch who has carried out the investigation
after it is transferred as per order of Commissioner
of Police on 17th December 2012.
(H) PW No.3 Dr. Madhukar Sankpal, who has carried out
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post mortem. (Exh. 76)
8. There are also other documentary evidence which will be
referred during the course of the judgment. We will first scrutinize the
evidence adduced on the point of homicidal death.
About spot
9. About the place of the incident i.e. on 01 st floor Poornima
Apartment at Chetna Nagar, Nashik, there is ample evidence to suggest
that the burning incident took place at that spot on 12 th May 2011 at
about 8.30 p.m.. Admittedly, there is no eyewitness to the incident.
The spot panchnama at Exh. 25 is duly proved through the evidence of
the spot panch-PW No. 1. The seizure of the articles on 13 th May 2011
which is also duly proved. Not only that there are three witnesses who
rushed to the spot. They are :- Witness No. 1-Dusane and other two
witnesses; PW 8-Chetan and PW 6-Upasani.
10. They have seen the deceased lying on the ground with burn
injuries and they have also noticed accused having burn injuries. So the
spot of incident is duly proved.
Seizure of articles
11. There is spot panchnama carried out on 13th May 2011 at 9.00
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a.m. to 9.45 a.m. The police who carried it is not examined. He has
seized (i) matchbox, (ii) remaining matchstick and (iii) burnt pieces of
gown and (iv) a niranjan/samai. However, the issue does not rest there.
There is one more property search and seizure panchnama at Exh. 29
dated 14th May 2011 prepared by PSI Potkule. There are four articles
mentioned. Earlier articles already mentioned in spot panchnama were
also described in it. The additional article mentioned is a plastic barni
(can) having a smell of rockel (kerosene). According to Appellant, this
can was not mentioned in the panchnama and even PW No.1-Rajesh
Dusane spot panch has agreed that this was not found when he along
with others have visited the spot of the incident. PSI Potkule has also
deposed about preparing the search and seizure form having
description of the bottle with the smell of rockel.
12. We find that there is no finding of the trial Court on this issue . If
the kerosene bottle is not there on 13 th May 2011, it is for the
prosecution to explain how it is mentioned in the property search and
seizure form dated 14th May 2011. This form is not a seizure
panchnama but it is a form which is generally prepared after seizure is
effected. This form mentions the name of Shekhar Surendra Kulkarni,
1. Cri. Appeal 808.17 final.doc
who has produced those articles (who prosecution alleges as husband of
sister of the Appellant). Admittedly, he is also not examined on behalf
of the prosecution.
13. PW No.2-Dinesh has tried to give some explanation about this
plastic bottle. After getting knowledge of the incident, when he came
to Nashik, he went to the flat on 13 th May 2011 along with his father
and relatives, he saw relatives of the Appellant were cleaning the tiles of
the first room and they have sensed smell of kerosene. He had also
noticed one empty plastic bottle of kerosene near the kitchen ota. He
has further stated that he has seen mother of the Appellant was
throwing the burnt pieces in the toilet. When he has asked the mother,
she hurriedly told that the police will come.
14. He was cross-examined on the facts noticed by him when he
visited the spot and facts deposed by him. He has denied that " he has
not stated those facts". However, when PSI Potkule was cross-
examined, he has admitted that "witness Dinesh in his statement has
not stated about the facts witnessed by him when he visited the flat on
13th May 2011".
15. There is one allegation made by father of the deceased that the
1. Cri. Appeal 808.17 final.doc
investigation done by the police was faulty. The issue is why PSI
Potkule will do all these things. He is supposed to record the facts
stated by the witness in his statement recorded under Section 161 of
the Code of Criminal Procedure. There are two aspects. First one is
oversight and second is deliberate attempt to help the accused.
16. Respondent No.2 is having a grievance against PSI Potkule. But
when the spot panchnama was prepared, it was not PSI Potkule who
has prepared it but it was prepared by Head Constable. Question is
whether it can be lacuna on the part of Police Head Constable who has
performed seizure panchnama on 13 th May 2011 or whether PSI
Potkule has deliberately added it in property search and seizure form.
Attempt to remove ambiguity
17. At this juncture, it is relevant to consider efforts made on behalf
of the prosecution when the trial was going on. There was an
application at Exh. 156 filed on behalf of the prosecution to recall PSI
Potkule for clearing the ambiguity in the seizure of bottle having smell
of alcohol and other aspect. In fact, it can certainly be considered as a
genuine effort to clear the ambiguity. It was in that sense an ambiguity.
Because when spot panchnama was prepared at 9 a.m. to 9.45 am on
1. Cri. Appeal 808.17 final.doc
13/5/2011, there was no seizure of bottle having smell of alcohol and
when there is reference of seizure of such a bottle in the property search
and seizure form, learned A.P.P. was justified in making such request.
If such a request could have been allowed by the trial Court, through
PSI Potkule, prosecution could have got an opportunity to explain it.
Findings of Trial Court
18. It is important to consider the reasonings given by the trial
Court. It is reflected in para no. 42 of the impugned judgment. Trial
Court considered "filing of writ petition in High Court by father of the
deceased and transfer of investigation" as the factors for observing that
there is no ambiguity. In fact reasons given in the application were
more appropriate to recall PSI Potkule. Hence, we do not subscribe to
the said view.
19. We are conscious we are not dealing with proceedings in which
there is challenge to the order passed by the trial Court. We have
considered this issue for deciding whether it has got impact on overall
responsibility of the prosecution to prove the case and correctness of
the findings recorded by the trial Court in the impugned judgment.
20. When considered from said angle, we feel that due to the said
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order, prosecution has lost an opportunity to explain the ambiguity. At
the same time, even the Appellant is denied of an opportunity to
challenge the prosecution case of subsequent recording of property
search and seizure form having reference of bottle having smell of
kerosene. Hence, we have got serious doubt about bonafides of seizure
of barni having the smell of the kerosene. There is one more reason.
PW No. 1-Dusane has also admitted that barni was not found when he
visited the spot at the time of panchnama. So it creates serious doubt
about the place at where it was found. Even Shekhar Kulkarni who has
produced it (as per prosecution case) is not examined.
About dying declarations
21. Mr. Deshmukh, learned counsel for Respondent No. 2 and Mrs.
Ganediwala, learned counsel for the Appellant have relied upon
various judgments. They are as follows:-
Judgments relied upon on behalf of the Appellant
(i) Makhan Singh Vs. The State of Haryana1
(ii) Irfan @ Naka Vs. The State of Uttar Pradesh2
(iii) Abhishek Sharma Vs. State (Govt. Of NCT of Delhi)3
Judgments relied upon on behalf of the Respondent No. 2
1 MANU/SC/1003/2022
2 (2023) INSC 758
3 2023 INSC 924
1. Cri. Appeal 808.17 final.doc
(i) Sudhakar Vs. State of Madhya Pradesh4
(ii) Sher Singh and Anr. Vs. State of Punjab5
(iii) Lakhan Vs. State of Madhya Pradesh6
(iv) Raju Devade Vs. State of Maharashtra7
22. When we have read above judgments, the following principles
emerge:
Principles for appreciating Dying Declaration
(a) The Court has to see whether the dying declaration is true
and made voluntarily by the deceased. There is no rule that
dying declaration has to be corroborated by other
evidence.
(b) The Court has to ascertain himself that dying declaration is
not the result of tutoring, prompting or imagination.
(c) Court should be satisfied about the fitness of the maker of
the statement.
(d) Even though there is no fitness certificate by the Doctor,
the dying declaration can be relied upon when the recorder
is satisfied about fitness of the maker.
(e) The accused cannot cross-examine the deceased, hence, the
dying declaration should be of such a nature so as to inspire
full confidence of the Court in its truthfulness and
correctness.
4 (2012) 7 SCC 569
5 (2008) 4 SCC 265
6 (2010) 8 SCC 514
7 (2016) 11 SCC 673
1. Cri. Appeal 808.17 final.doc
(f) Whether the statement was recorded properly and whether
the dying declaration is consistent throughout.
(g) Whether it is possible for the maker of the statement to
give the statement considering the injuries caused to him.
About multiple Dying Declarations
(h) When there are multiple dying declaration, the Court has
to see whether there are consistent or not.
(i) When there are inconsistencies, every dying declaration has
to be considered independently on its own merits so as to
appreciate its evidentiary value and one cannot be rejected
because of contents of others.
(j) In case of multiple dying declarations, it is duty of the
Court to consider each one of them in its correct
perspective and satisfy itself that one of them reflects the
true state of affairs.
(k) When there are two dying declaration giving two different
versions, serious doubt is created about the truthfulness of
the dying declaration and the Court should make an
endeavour to see corroborative material.
(l) Court can give due weightage to certain factors such as :--
(i) attendant circumstances,
(ii) condition of the deceased at the time of giving
statement.
(iii) medical evidence.
(iv) voluntariness and genuineness
(v) physical and mental fitness of the deceased.
1. Cri. Appeal 808.17 final.doc
(vi) possibility of the deceased being tutored.
23. These are some of the principles to be considered while
appreciating the evidence of dying declaration in general and principles
to be considered when there are inconsistent dying declarations.
24. When the evidence of any dying declaration is to be appreciated,
it is tested from below mentioned perspective -
(i) Who has recorded it and what type of procedure he
has followed.
(ii) whether the maker of the declaration is in fit state of
mind.
(iii) The contents of dying declaration, corroborative
material on record vis-a-vis the involvement of the
accused.
25. On the basis of above principles, we will go through the evidence
adduced before the trial Court. As said above, there are two sets of
dying declarations. First consist of two dying declarations suggesting
that death was accidental. The details are as follows:-
Accidental Dying declaration
a) First dying declaration at Exh. 120 recorded by
Police head constable Jadhav on 13th May 2011.
It is in narrative form. There is fitness endorsement by the doctor.
1. Cri. Appeal 808.17 final.doc
Admittedly, no one is examined to prove this dying declaration. This
was not produced along with the charge sheet. But when the Appellant
insisted, this was produced and then it was shown to PSI Potkule.
Furthermore, the writer of this dying declaration is not examined.
There is no reason offered before the trial Court for not examining
him. At least we do not find any reason from the impugned judgment.
26. In fact from the available evidence, there is every reason to
believe that the prosecution has made every attempt to conceal it from
the trial Court. In fact when there are inconsistent dying declarations,
the responsibility on the prosecution is to place all the materials before
the trial Court and then leave to the trial Court to appreciate it and
come to proper conclusion. This has not happened and in fact, we also
find that the trial Court has totally overlooked this fact and appreciated
the evidence without dealing with this evidence.
(b) Another dying declaration is recorded (at Exh.93) by
PW No.5 - Executive Magistrate Shri Dhenge on the
intervening night of 12th May 2011 and 13th May 2011.
It is in question and answer form. The doctor has mentioned the
timing of 1.30 a.m. to 2.00 a.m. This doctor is not examined. This
dying declaration was recorded when he received a letter from Indira
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Nagar Police Station. (Para No.2 of evidence of P. W. No. 5 on Page
No.103). It will be relevant to consider the contents of both these
dying declarations. One which recorded by police is in detail as
compared to one recorded by executive magistrate. They are as
follows :--
Contents of Dying declaration
"On 12.5.2011, my gown came in contact with
samai and hence I was burnt. My chest and
face were also burnt".
These are the contents from the proved dying declaration recorded by
executive magistrate. We have not reproduced the contents from the
one which is recorded by the police.
27. Trial Court in para No.46 of the judgment opined " it is
surprising why such letter is issued by investigating officer of Indira
Nagar Police Station". We do not endorse this view. It is for the reason
"recording of dying declaration by a person not connected to
investigation" is always preferred. So the officer who has given a letter
has committed no wrong.
28. In fact when there are two sets of dying declaration, trial Court
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should assess the available evidence in respect of every set of dying
declaration and should come to its own conclusion. We find trial Court
has not done so.
Corroborating materials
29. We have tried to find out are there any circumstances available
on record which corroborates the theory of accidental death as narrated
in above said two declarations. It is no doubt true that niranjan is
seized from the spot.
30. The main ground on which Mr.Deshmukh has tried to challenge
this theory of accidental death is the injuries caused to the deceased
and part of the body on which they were caused. Admittedly, the
treatment papers maintained by Civil Hospital during the lifetime of
deceased Kirti were not tendered in evidence. Deceased was admitted
at late evening of 12th May 2011 and she died on 16th May 2011. In fact
in a case involving inconsistent dying declarations, fitness of the maker
not only at the time of recording of dying declarations is relevant but
also at the time of admission and thereafter also. From medical papers,
the Court can consider the treatment given and other health
parameters. Unfortunately, the prosecution has overlooked this fact.
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And even we find no attempt made on behalf of the Appellant to ask
for its production.
Evidence about post mortem
31. When we have gone through the postmortem notes, we find the
injuries were 100% and they were on different parts of the body
including face to legs. Prosecution has examined the doctor who
conducted post mortem, P.W. No 3 Dr. Madhumar Yashvant Shankpal.
He has done postmortem on 16/5/2011. Cause of death is ' shock due to
burns'. He was asked about the contents of inquest panchnama. Said
panchnama refers about falling of odhani on the niranjan. When we
have read his evidence, we do not find any attempt made on behalf of
the prosecution to bring on record that the injuries noticed on the dead
body may be possible due to kerosene burning. Appellant tried to put
questions to him regarding creation of soot due to kerosene burning.
However, the doctor volunteered that if patient survives for 3 to 4
days, the particles soot may not find inside the body due to puffing of
these particles. However, the Appellant has also not made an attempt
to put up theory of burns which might have been caused due to
burning of gown in a samai.
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32. The inquest panchnama is duly proved through P.W. No.3 and
P.W.No.7. Out of them, P.W. No.3 is relative of the deceased Kirti and
prior to witnessing inquest, he has visited the hospital.
33. The argument on behalf of respondent No. 2 is "whether such
percentage of injuries may be possible if the gown is caught in the
burning niranjan". What we feel is when there are two possible reasons
for causing of death that is to say accidental or homicidal, the
prosecution ought to have brought on record and possibly through
medical officer that the percentage of injuries caused or noticed at the
time of post mortem were in fact caused due to kerosene burning only
and not due to other burning.
34. Unfortunately, we do not find any attempt made on behalf of the
prosecution in this respect. If such an attempt could have been made,
we could have certainly accepted the submission made by Mr.
Deshmukh. Furthermore, case is decided on evidence and not on the
basis of personal opinion of Judge and surprises. We also do not find
any observations made by the trial Court in this regard. So we are at
pains to observe that even though there were 100% burn injuries, for
want of materials, it is not possible to form an opinion that the 100%
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injuries were caused due to kerosene pouring only.
Inconsistency in defence version
35. Mr. Deshmukh has pointed out inconsistency in between the
exact cloth worn by the deceased at the time of incident. In the dying
declaration at Exh.93 (second accidental dying declaration), there is
reference of gown whereas in the written statement, the Appellant has
referred about odhani. Even in cross-examination of certain witnesses
suggestions were given that dress was caught in fire. The trial Court has
emphasized on this variance in para No.51 of the impugned judgment.
Trial Court observed :-
"in the dying declaration at Exh.93,
she has nowhere referred about
odhani".
Even trial Court observed :-
"samai is always having number of
flames. There is no contention that
number of wicks were existing in it.
The wick was also seized but it was not
fully burned".
36. We do not fully subscribe to the view of the trial Court. Because
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answers given in Section 313 statement is not the evidence.
Furthermore, weakness in a case put up by defence does not relieve the
prosecution from discharging their burden.
Second set of Dying declaration
37. Now we will consider the evidence on the point of second set of
dying declaration. The details are as follows:-
(a) Dying declaration (Exh.106) recorded by PW No.10,
PI Kondiram Kopere.
He recorded it on 14th May 2011 after respondent No. 2/father of the
deceased has complained to Indira Nagar Police Station on 14/5/2011
(Exh. 105). It is important to note that the father is not examined as a
witness on behalf of the prosecution. What is the reason it is best
known to them. We cannot read what is stated by him in his complaint.
38. We do find some reference in the evidence of P.W No. 10
Kopere. Shri Kopere was not attached to Indira Nagar Police Station,
but he was attached to Ambad Police Station. Shri Kopere was having
charge of Indira Nagar Police Station as regular officer was on leave. He
deposed "father of the deceased has informed, his daughter was burnt
and admitted in civil hospital and he requested for recording her
supplementary statement". On the basis of this declaration, Mr. Kopere
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registered an offence u/s. 307 of Indian Penal Code at Indira Nagar
Police Station against the Appellant. It is important to note, the
provisions of Section 498-A were not invoked. There is timing at 8.40
p.m. mentioned by the medical officer. This is the first dying
declaration wherein deceased Kirti has stated that it is the Appellant
who has poured kerosene on her and set her on fire. Admittedly, the
doctor who has given endorsement is not examined. Deceased Kirti
could not sign hence Shri Kopere has obtained her right hand thumb
impression.
39. It will be relevant to consider contents of this dying declaration
(Exh.106). They are as follows :--
a) Deceased Kirti and her husband/Appellant were alone in
the house. Appellant returned home by consuming liquor.
b) She tried to convince him but Appellant quarreled with her.
c) Appellant poured kerosene from a bottle on her and set her on
fire with the help of match stick.
d) She shouted. As a result Appellant tried to extinguish the fire by
putting chaddar on her.
e) She came out of the house and shouted for help.
f) She was admitted in civil hospital by one Shekhar Kulkarni.
40. Shri Kopere admits he has not recorded the statement of father
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of the deceased. There is only timing as 8.40 p.m. on the said dying
declaration. He was asked question about "necessity of taking the
endorsement at the beginning of recording of such declaration ". He
answered doctor was present along with him. This doctor is not
examined. There is no rule that there should be endorsement at the
beginning and at the end. But such practice is developed due to passage
of time.
41. Presence of doctor throughout recording of declaration is always
advisable because he can monitor the health of the patient. And if both
the timings are mentioned, it helps the Court to assess the evidence in
proper way. Because these timings are mentioned at that time and if
they are recorded, there is hardly any scope of filling lacunae by way of
oral evidence.
b) Such kind of dying declaration (Exh.95) is also
recorded by PW No.5 Shri Dhenge - Executive
Magistrate.
42. On 14th May 2011, he received letter for Indira Nagar police
station. At the time of evidence, he has not brought that letter however
the defence has shown the said letter from the record. Accordingly, it
was marked as Exh.94. He admits father of the victim has requested for
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recording statement of the deceased. As said above father of the victim
is not examined. There is no reason for the prosecution not to examine
him.
43. It seems Exh.94 was written by some police constable attached to
Indira Nagar Police station which is addressed to executive magistrate.
The writer of this letter is not examined. He could have thrown some
light on whose instructions he gave this letter. For this piece of
evidence, the learned trial judge has not observed "why such letter was
given". Learned trial Judge while commenting on a letter written to
Executive Magistrate (who subsequently recorded accidental dying
declaration) has questioned necessity of writing letter. But when Police
wrote present letter (then Executive Magistrate recorded Exh.94), the
necessity is not questioned.
44. On this background, Shri Dhenge recorded it on 14 th May 2011.
The medical officer has mentioned the timing as 11.10 p.m. to 11.35
p.m. The doctor who has given the endorsement is examined as PW
No.12 Dr. Yogita Patil.
45. It will be relevant to consider contents of dying declaration
recorded by Executive Magistrate Shri Dhenge. They are as follows :-
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a) He records " there is reference in the police letter to the
effect earlier statement was given by the deceased under
pressure and she has complained against husband to her
father and she wishes to give statement again". Again we
are stressing on the importance of examining father of the
deceased. All the facts about the circumstances disclosed
by deceased to her father could have been brought in
evidence.
b) Again the dying declaration mentions her mental
condition was not good earlier and hence I have given false
statement. It is important to note that earlier dying
declaration was recorded by the same executive magistrate.
When he records such fact does it mean to say that Shri
Dhenge has not assessed mental condition of the deceased
at the time of recording earlier dying declaration. This
creates doubt about reliability of the evidence of Shri
Dhenge. Trial Court has not assessed his evidence from
that perspective.
c) Details of the incident as recorded in this dying
declaration are more or less similar to the declaration
recorded by Shri Kopere except on certain aspect.
46. It is emphasized to record the dying declaration in the words of
the maker. It is the responsibility of the Court to consider minute
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details. This is all the more necessary for the reason the maker of the
dying declaration is not available at the time of giving of evidence but
the Court can assess the evidence only on the basis of record created
contemporarily.
47. The trial Court has considered the evidence of PW No.5 Shri
Dhenge as trustworthy for the reason "that statement recorded by him
corroborates with the statement recorded by PSI Kopere " (Para 54).
According to Ms. Ganediwala this factual observation is not entirely
correct. We agree with her. We have also minutely gone through the
contents of both these dying declarations. The variation noticed in
them is as follows :--
Subject Exhibit - 95 Exhibit 106
Manner of saving the By throwing water By throwing water and
deceased chaddar
Persons who shifted Neighbours Shekhar Kulkarni
her to hospital and husband
The variation on above first aspect is not about important particular.
While appreciating the defence of the Appellant, trial Court
appreciated it with microscopic examination and observed there is
variance in between gown and odhani trial Court considered it as
major variance, But then trial Court ought to have applied same
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yardstick prior to comparing both these Dying declarations. However,
we do not consider it as major variation.
48. However on the said aspect of persons who shifted her, there is
major variation. At one place she says 'neighbours and husband'. This
is understandable. At other place when she says that Shekhar Kulkarni
admitted them in civil hospital. Except PW No.1 Dusane and PW
No.9 Vispute, other witnesses (about visit to the spot they are) PW
No. 6-Upasane and PW No.8-Bhadange have not referred about the
presence of Shekhar Kulkarni.
49. Even when we have read the evidence of PW No. 1-Dusane, he
has referred the name of Shekhar Kulkarni. What he has deposed is :-
"thereafter I got down and phoned to Shekhar kulkarni".
After that he said:-
"at the hospital Shekhar Kulkarni had shown to him
one mangalsutra and finger rings which were also
smelling of kerosene".
From this, we cannot irresistibly infer that Shekhar Kulkarni was
present in the house when the deceased was shifted to Civil Hospital.
50. Whereas PW No.9-Vispute (who has accompanied the deceased
in the ambulance) has referred about the name of Shekhar Kulkarni at
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the subsequent stage. He deposed "doctor has asked to remove his
finger ring and at the relevant time his sister's husband Shekhar
Kulkarni was present. He had filled up the form ". From this it cannot
be inferred that Shekhar Kulkarni was very much present in the house
when deceased was shifted. If it is so at whose instance name of
Shekhar Kulkarni is referred in Exh. 106 (recorded by by Mr. K opere).
How this fact can be overlooked? However, trial Court has not
considered it.
Corroborative materials
51. On the basis of above evidence, we tried to find out
corroborative circumstances available on record. Mr.Gavand, learned
APP has invited our attention to the report by chemical analyzer and
the forwarding letter sent by PSI Potkule. These are at Exh.113 and
Exh.112 respectively. It is true four articles were sent. The analysis by
CA is as follows:-
(a) Kerosene test was positive in respect of empty plastic jar and
partly burnt clothes of gown.
(b) Kerosene test was negative for samai and match box was
found unsuitable.
We have already commented on prosecution evidence on the point of
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'seizure of barni having the smell of keresone recorded in search and
seizure form' as not reliable. No doubt Court has to consider presence
of kerosene particle on piece of cloth described as gown. But this
circumstance need to be considered with other proved circumstances.
Portion in Police Statement of PW No.2
52. Mrs. Ganediwala, learned counsel for the Appellant, has invited
our attention to one more circumstance. Certain portion from the
statement of PW No. 2-Dinesh dated 14th May 2011 before the Police
was marked at Exh.123. This was done through PSI Potkule. He has
admitted that PW No.2-Dinesh has stated the said fact to him. We can
certainly read that portion.
53. It talks about the condition of deceased-Kirti expressed by PW
No. 2-Dinesh and this was noticed by him, when he alongwith other
relatives have visited the Civil hospital. According to him, deceased-
Kirti was not in a position to speak. For our better understanding the
exact portion in Marathi is reproduced:
"ते व्हा माझे आई, वडील व आत्या व इतर नाते वाईक
नाशि क शि शिव्हल हॉशि टल जळीत कक्ष ये थे हजर होते .
त्यावे ळे माझी बहीण शिकती" शिह ाशिहले अ ता ती
बोलण्याच्या री थीतीत नव्हती."
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This has happened when PW No. 2-Dinesh has visited the Civil
hospital. The timings are not clear, but probably it may be on 13 th May
2011. This circumstance is also relevant circumstance which throw
some light about the prosecution case of giving of statement by
deceased Kirti on 14th May 2011.
54. He was cross-examined on this portion. The answers given by
him are reproduced below for ready reference. They are:
It did not happen that "on 13th May 2011 when I had
been to Burn Ward to see my sister, she was not in a
position to talk". It is not true that "on 14th May 2011
my statement was recorded and in the said statement I
have stated that when I had been to burn ward on 13 th
May 2011 my sister was not in a position to talk".
When asked about recording statement, he flatly denied that his
statement was recorded. The question is why PSI Potkule will record a
statement containing imaginary facts and will state the facts which the
witness has not stated.
Filing of Writ Petition
55. It is very well true that the father of the deceased has filed a writ
petition No. 3235 of 2011, before this Court making grievance about
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the investigation. It is very well true that petition was disposed of on
18th December 2012. This Court has recorded "transfer of investigation
already done by the Commissioner of Police to the Crime Branch ". At
the same time it is true that there was no occasion for this Court to
make any comment about the grievances against the investigating
agency.
56. In criminal proceedings, filing of writ petition is one thing and
giving evidence is another thing. Ultimately, the trial Court is supposed
to deal with the evidence which is adduced. There was a serious issue
raised by father of the respondent about the investigation. However,
when the stage of appreciation of evidence arrives, the standard of
enquiry is different. If the Court has to give a finding about such
grievance, Court can certainly draw an inference on the basis of the
available evidence. The issue before the trial Court was "whether to
trust and believe the grievances of PW No.2 and his father or whether
we can trust the investigating agency".
57. No doubt there is a letter written by Deputy Police
Commissioner Nashik addressed to Director General of Police on 7 th
September 2015. It is on page no. 307 of paper book. It refers to
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demand of the papers by the first informant Dinesh Mule about the
departmental enquiry conducted against PSI Potkule. But question is
whether it is sufficient to draw an inference against Shri Potkule. We
are making clear that observations herein are only for the purpose of
deciding the issues involved in the appeal and not for any other
purpose. Ultimately Court decides the issues on the basis of evidence.
58. We feel that the trial Court was not right in drawing an inference
about the defects in the investigation. There ought to have been
additional material which we find missing. For this reason we find
stand taken by PW No.2-Dinesh on the point of disowning the
statement given by him to PSI-Potkule as not justified.
Facts deposed by independent witnesses
59. There is one more circumstance brought to our notice by Mr.
Deshmukh. It is about the fact deposed by three independent
witnesses. They have visited the spot immediately on 12 th May 2011.
These witnesses are -
PW No. 1-Rajesh Dusane,
PW No. 6-Dr. Shripad Upasani
PW No. 8-Chetan Bhadange.
60. PW No. 1 - Rajesh Dusane - This witness is examined on two
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aspects. One visiting the spot on 12th May 2011 on receiving telephonic
information from mother of the Appellant at 9.30 p.m. And secondly
again visiting the spot on 13th May 2011 for witnessing spot
panchanama. He is the witness whose statement is not recorded by
Inspector Sanap but his statement is recorded by PSI Potkule only. His
evidence about spot panchnama is already discussed. We will focus on
facts noticed by him on 12th May 2011 at the time of first visit.
From his evidence, following facts emerge:-
a) He saw deceased in burnt condition and Appellant (on
underpant and baniyan) in drunken condition. He has
participated in shifting both of them to Life Care Hospital
first and then to Civil Hospital.
b) At Civil Hospital, Shekhar Kulkarni has shown him
mangalsutra and finger rings having smell of kerosene.
During cross-examination, he has given following answers:
a) At the Civil Hospital, police did not make any enquiry.
He has also not given any information to the police
about the condition of Prasad and his wife.
b) At the time of spot panchnama, police have not made
any enquiry with him about the incident.
c) On his own accord, he has not stated anything about
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condition of Appellant-Prasad.
d) At that time also not stated about smell of kerosene on
mangalsutra and finger ring (which were shown by
Shekhar Kulkarni).
e) Neither kerosene bottle was found nor reference of smell
of kerosene in the spot panchnama.
f) He has not disclosed to anyone about condition of
Appellant, smell of kerosene and smell of kerosene to
above said two articles. (till giving police statement).
g) At work place, he has not seen Appellant in drunken
condition.
61. Trial Court has not considered his evidence in minute details.
His line of cross-examination is about natural conduct of the witness
after the incident.
About smell of kerosene :- His statement was not recorded after delay.
One fact is clear, he has not disclosed to police even though there was
an occasion in the civil hospital and at the time of spot panchnama.
This evidence is very relevant because there is dying declaration of
kerosene burning.
About smell of alcohol :- This is also important piece of evidence. It is
one of the piece of corroborating material and needs to be scrutinized
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with proper precaution. Even though there was an occasion for the
witness to state, he has chosen to keep mum. This factor was not
considered by the trial Court. The test of prudent man has to be
applied.
62. PW No.8 - Chetan - He is next door neighbour of the
Appellant. He resides in adjoining building. He went to spot after
hearing the shouts. He noticed following facts:-
a) Appellant and his wife were shouting.
b) Wife was burnt almost
c) There was smell of kerosene.
d) He called Dr. Upasani -PW No.6.
e) He came down from first floor. When he got down and
went near Appellant, there was smell of liquor.
During cross-examination, he has given following answers:
a) After the incident, police have visited Pournima Building,
police have not inquired with him and he has even not
intimated to police about visiting the spot.
b) PSI Sanap recorded his statement after 18-19 months of the
incident.
c) He could not offer any explanation why the facts " about
sensing smell of liquor from the mouth of Appellant" are not
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appearing in his police statement.
63. PW No.6 Shripad Upasani :- During chief, he has stated
following facts:-
a) He is doctor by profession. He visited the spot on the
call received from PW No.8 - Chetan.
b) He saw one lady in a burnt condition and water around
her.
c) He saw another person wearing underpant and baniyan
talking on mobile.
d) He sensed smell of kerosene and burnt clothes. He also
felt smell of alcohol from person talking on mobile.
e) He arranged for shifting of patients to Life Care
Hospital.
During cross-examination, he has stated following facts:-
a) He has not narrated about the incident to the police
within 2-3 days.
b) Even within one month, he has not disclosed about
smell of alcohol and kerosene.
c) For one and half years, he has not disclosed those facts
to police.
64. So far as their visit is concerned, it is not incriminating against
the Appellant. But when they deposed that they have noticed smell of
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alcohol from to the mouth of the Appellant and also noticed smell of
kerosene at the spot, these facts are incriminating.
65. It is really strange that if these three witnesses have visited the
spot immediately after happening of the incident, why their statements
are not recorded immediately. No explanation was offered before the
trial Court. Unfortunately, none of the parties have brought on record
why PSI Potkule has not recorded their statements. This Court can
certainly draw an inference that PSI Potkule ought to have verified
with the persons who were instrumental in shifting injured to Civil
hospital. There may be two inferences:-
a) These witnesses may be formal witnesses. That is to
say they have just visited the spot and arranged for
shifting of the deceased and Appellant to the hospital
or that;
b) PSI Potkule has deliberately not recorded their
statements in order to help the Appellant.
66. The testimony of PW No.6 and PW No.8 can be viewed from
different angles. It is:-
a) Lapse of PSI Potkule to record it.
b) Inaction on the part of above witnesses to inform police
about the facts noticed by them.
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c) Improvements made by them.
67. It is very well true, the prosecution case should not suffer for acts
of commission and omission by the police. Conduct of these witnesses
not to inform police is also having some significance. What is of
paramount consideration is "facts deposed in Court but not stated to
police". These improvements are about important particular.
68. About evidence of PW No.9 - Hemant Vispute :- He is the
colleague of Appellant. He received a call from PW No.1 - Dusane.
He has not visited the spot. He went to Life Care Hospital. He
deposed following facts:
a) He saw Appellant with burn injuries. Appellant told him
that his wife was burnt due to flame of samai.
b) On the advice of doctor, they were shifted to Civil
Hospital.
c) In the ambulance, he sat near the driver whereas
Appellant was sitting on backside alongwith his wife on
stretcher.
d) He noticed "wife was pointing out finger towards
Appellant and she wanted to speak but Appellant warned
her not to speak".
e) Shekhar Kulkarni pointed out finger ring of Appellant.
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It has smell of kerosene.
During cross, he has narrated following facts:
a) Statement is recorded after 23 months. On his own, he
has not shown willingness to give statement.
b) He cannot offer any explanation why the facts " about
smelling of kerosene" is not appearing in his police
statement.
c) Witness does not recollect about "pointing out finger by
the deceased towards Appellant."
About improvements, it is related to important particular.
69. PSI Potkule has admitted that he has not recorded the statement
of Dr.Chetan Bhadange, Hemant Vispute and Dr.Upasane. (Para
No.40) whereas PI Sanap has deposed about recording statement of
Mr.Dusane, Vispute and Pawar (Para 2). According to
Mrs.Ganediwala, these statements were recorded after long gap and
there is every possibility of embellishment. Whereas, according to
Mr.Deshmukh, delay in recording their statements cannot be
attributed to them but it was the fault of PSI Potkule and that is how,
PI Sanap has recorded their statements. The trial Court in para No.40
has noted there is lacuna in investigation. The statement of witness
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who has accompanied the deceased in ambulance ought to have been
recorded. The Court has noted the investigation by PSI Potkule is
defective and Court has taken note of filing of Writ Petition by father
of the victim.
70. It is true in a criminal trial, immediately reporting the incident to
the police is of significance. The delay in informing the police gives rise
to suspicion. This can be viewed from two angles. First, when there was
an occasion for these witnesses to inform the police but they have not
informed and second is, police have not contacted them.
71. We are at pains to observe that even though there were witnesses
available, for some reason or the other, their evidence cannot be
considered as reliable material to corroborate the incriminating Dying
declaration. This is because of lapse on the part of earlier Investigating
Officer, keeping mum by the witnesses and improvements made while
giving evidence.
Demand of Dowry
72. Mr. Deshmukh, learned counsel for Respondent No. 2 has
invited our attention to the demand of dowry by the Appellant and
facts stated by Mrs. Kirti during her lifetime to PW No. 2. According
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to him, this is the motive for murdering Kirti. He also invited our
attention to the findings given by the trial Court on this aspect. It is on
page No. 388, para no. 96 and 108. Trial Court has referred to the facts
deposed by PW No. 2. This is in respect of demand of Rs. 1 Lakh by
the accused for the purpose of purchase of car. We have given the
details of demand while explaining the prosecution case. No doubt this
can be considered as a motive. But the trial Court has overlooked one
fact. If the evidence has to be appreciated then the facts deposed during
chief-examination and facts deposed during the cross-examination
needs to be considered in its totality.
73. PW No. 2-Dinesh has stated that those material facts are not
stated by him on 14th May 2011. In fact, he answered that he cannot tell
whether these facts are not stated, because his statement is not recorded
on 14th May 2011. However, PSI Potkule has admitted that relevant
facts are not stated by Mr. Dinesh while giving statement on 14th May
2011. The trial Court has given Exhibit 121 and 122 to the contents of
para no. 2 and some of the contents of para No. 3 of the evidence of
PW No. 2. The manner of recording such answers is not correct. In fact
the trial Court ought to have recorded in the cross-examination.
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However, this is not illegality.
74. So also portion from Police statement (recorded under Section
161 of the Criminal Procedure Code) of PW No. 2 recorded by PW
No.11 was marked as Exh. 123. First PW No. 2 has disowned it and
then it was admitted by PW No.11-Potkule. We have already made
comment about Exh. 123. It is important to consider contents of Exh.
121 and Exh. 122 and their relevance. They are as follows :-
Exh. 121
On 23rd April 2011 accused demanded Rs. One lakh for
purchasing car. Accused had picked up quarrel for same
with my sister. She had narrated aforesaid fact to me on
phone in the said night. On 25 th April 2011 she had
come to my house. She had narrated the aforesaid
incident to my father. On the same day night my father
had phoned to accused. My father told to accused on
phone that he has no money with him due to expenses
of marriage and he would see afterwards about his
demand. On 26th April 2011 my elder sister Dipti had
come to our house at Kopargaon from Aurangabad. She
talked with mother of accused on phone on 27 th April
2011 at about 10.30 a.m. Thereafter my sister had told
me that mother of accused told that what we had
objection for giving amount to husband of deceased. We
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had given understanding to my sister and sent her on
30th June 2011 to the house of accused.
Exh. 122
On 9th May 2011 in between 9.00 to 9.30 p.m. I received
phone of accused. He asked me on phone that when we
would pay Rs.One lakh. I told him to ask about the same
to my father.
75. The facts stated by PW No. 2-Dinesh about his demand of
dowry cannot be accepted. The trial Court in para No.73 has referred
about the meaning of evidence as per Section 2 of the Evidence Act.
There can not be any dispute about its meaning. What the trial Court
has observed is whatever facts stated in chief examination has to be
treated as a evidence. This also cannot be disputed. But ' what is
evidence' is one thing and 'appreciation of evidence' is another thing.
But we find trial Court has failed to appreciate that piece of evidence.
Trial Court overlooked this improvement by making general comment
that "investigation is defective". When any Court is making any
comment about acts/omissions of any police officer or conduct of a
witness, trial Court is certainly entitled to do it. But this has to be done
with care and caution and only when that is the only inference which
can be drawn and not otherwise. In this case for want of materials, said
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inference cannot be drawn. For these reasons, the improved portion
needs to be excluded.
76. It is important to note that in the charge-sheet filed, the Police
have invoked only Section 302 of the Indian Penal Code. The
provisions of Section 498-A of the Indian Penal Code were not
invoked. It may be for the reason that prosecution witnesses have not
stated about the demand of money and consequent harassment. If
there are allegations of Section 498A of the Indian Penal Code, no
Police officer will take risk of not applying it. Even second
investigating officer Mr. Sanap has not invoked Section 498A of the
Indian Penal Code.
Conduct of the Appellant
77. Last circumstance on which Mr. Gavand, learned APP and Mr.
Deshmukh, have emphasized is about the conduct of the accused.
According to them, when the incident took place, he was very much
present at the spot and he also sustained burn injuries. According to
them, it is for the accused to explain how the incident of burning has
taken place. Both of them have relied upon the provisions of Section
106 of the Evidence Act.
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78. Whereas according to Mrs. Ganediwala, the accused has given an
explanation and according to her, there is no need to enter into witness
box but this explanation can be brought on record on the basis of the
available evidence. She relied upon two accidental dying declarations.
79. It will also be relevant to consider the answers given by the
Appellant to the relevant questions from Section 313 statement.
According to Mr. Deshmukh when the question was put to the
Appellant about burning of Kirti by pouring kerosene, the Appellant
has expressed ignorance. However, Mrs. Ganediwala, learned counsel
for the Appellant has invited our attention to the statement given by
the Appellant in writing. In that statement, he has stated that odhani of
the deceased caught fire due to the niranjan and that is how she
suffered burn injuries. He further stated that relatives of the deceased
have pressurized the Police and then got recorded the subsequent
dying declarations.
80. According to Mr. Deshmukh, even there is variance about which
article was caught in fire, whether it is gown or odhani. About this
variance, we have already made comment in earlier part of our
judgment.
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81. In para No.83, trial Court has emphasized on non-examining
PW No.1-Dusane as a defence witness. It is true that the accused can
also bring on record certain facts by cross examining the prosecution
witness and there is no need to examine that witness by way of defence.
This cannot be a factor against the accused.
82. It is true as per the provisions of Section 106 of the Evidence
Act, it is for the accused to explain about the facts which are in his
special knowledge. At the same time, it is true that the burden on
accused to explain the facts within his knowledge is not as heavy as that
of prosecution. Whether it is odhani or gown/saree which was caught
in niranjan, is brought on record by way of dying declaration. It was
recorded by Police and by Executive Magistrate. The lacunae in the
defence does not help the prosecution evidence. It can be certainly be
said that the accused has given an explanation.
83. It is very well true, the Appellant need not prove his defence by
applying the test of proof beyond reasonable doubt. It is also settled
that if there are certain lacunaes in the defence, it does not help the
prosecution to prove its case.
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Injuries caused to the accused
84. There is no dispute about presence of the Appellant at the spot at
the time of incident. It is also undisputed fact that he has also received
burn injuries. There is dispute about percentage of burn to the
Appellant. It is matter of record that to prove those injuries,
prosecution has not examined any witness. His discharge certificate
from Civil hospital is produced, but it was not exhibited. It is the
prosecution case that the accused was drunk at the time of incident.
Admittedly, no medical certificate to that effect is proved. If any
witness on this aspect is examined on behalf of the prosecution, this
could have given an opportunity to the Appellant to disprove these
allegations. If any medical witness could have been examined, it could
have considered as a material to corroborate the version of neighbours.
100 % - whether can speak.
Conclusion
85. After appreciating all the available corroborative piece of
evidence, it will be relevant to consider the finding of the trial Court in
respect of two sets of dying declaration. We do not subscribe to finding
of the trial Court in para No.94 that the dying declaration at Exh.93
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(recorded by PW No. 5 about accidental death) and 120 (recorded by
Police Head Constable about accidental dying declaration) were given
under pressure. They are the two dying declarations which suggest of
accidental death. But we do not find on what basis the trial Court has
come to conclusion that these statements were given under the
pressure. Admittedly, at that time, the relatives of the deceased had not
arrived and even the accused was admitted in the hospital. The trial
Court has overlooked this fact.
86. The trial Court has favoured the two dying declarations (Exh. 95
and Exh. 106) which were recorded on 14th May 2011 as compared to
two dying declarations recorded on 13th May 2011. However, trial
Court has overlooked one fact that when such inconsistent dying
declarations are there on record, the facts stated by the maker has to be
tested on the basis of available proved circumstances. When we have
tested both the sets of dying declarations on the basis of the proved
available circumstance as narrated above, we find that there is only one
circumstance which can be considered. It is presence of kerosene
particles on the piece of a gown. About seizure of barni having a smell
of kerosene, about 100% burn injuries in P.M. report caused only due
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to kerosene burning, about the improvement made by PW No.2
Dinesh are not the reliable circumstances.
87. We have gone through the evidence of the Executive Magistrate-
PW No. 5, PSI Kopere-PW No. 10 and the medical officer-PW No.
12. It is the grievance of the father of the deceased that first two dying
declarations were recorded due to pressure of the Appellant, because
mother of the Appellant was retired Tahsildar. Admittedly, there was
no one from their side present in the hospital when these two
accidental dying declarations were recorded. No one from the side of
relatives of the deceased was present, but it is also a fact that the
Appellant was also admitted in the hospital. Though no one is
examined on behalf of the prosecution to indicate the percentage of the
burn injuries on the person of Appellant, but it is undisputed fact that
the Appellant was also admitted in the hospital.
88. As against this, it is a matter of record that second set of two
dying declarations were recorded after the father of the Appellant
arrived at Nashik and complained to Police. Both the sides argued that
these two sets of dying declarations were recorded at the behest of the
Appellant and at the behest of relatives of the deceased respectively. We
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have gone through the cross-examination conducted on behalf of the
defence about the concerned witnesses. Attempt is also made on behalf
of the defence to challenge the testimony of the witnesses about proper
care taken to certify the fitness of the deceased.
89. When we have gone through their cross-examination, we do not
find much infirmity in their evidence except as noted in earlier part of
this judgment. It is important to note that Executive Magistrate to both
dying declarations is same. Now at one point of time, the deceased
stated that she was caught fire as her gown was caught in burning
niranjan, whereas at other point of time, she has stated that it is
Appellant who poured the kerosene and burnt her on fire. It is true the
law presumes that the person on a deathbed speaks the truth.
90. Dr. Patil-PW No. 12, who is certifying doctor at the time of
second dying declaration recorded by Executive Magistrate has not
produced medical case papers, wherein the notings about health of the
deceased are recorded. These case papers help the Court to ascertain
the health of the maker and the treatment given. Unfortunately, even
the accused has not made any attempt to call for those papers. Though
it is a fact that there were 100% burn injuries, Appellant is entitled to
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raise a grievance about capability to speak.
91. It is true the prosecution has initially made an attempt to conceal
the evidence about accidental dying declaration. Though one dying
declaration by Executive Magistrate is produced, the certifying doctor
is not examined. We find only one corroboration to this accidental
dying declaration in the form of seizure of samai/niranjan. It is settled
law that the lacunae in the defence put up by the Appellant does not
help the prosecution case and they have to stand on their own legs.
92. About evidence relating to two dying declarations implicating
the Appellant, we do find certain lacunae as expressed earlier in the
prosecution evidence and even the findings recorded by the trial Court
which we have already discussed in earlier part of the judgment.
93. We do find a corroborating material in the form of CA report
about piece of gown having kerosene particles. Other report about
burning has been discarded by us.
94. We do find that the prosecution while conducting the trial,
ought to have examined certain witnesses, so to say the father of the
deceased, certain Police officials who have made correspondence. The
medical case papers maintained by Civil hospital till the death of
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deceased-Kirti were not produced before the trial Court.
95. After taking an overview of the entire evidence, we find that the
prosecution has not proved its case beyond reasonable doubt. We are
conscious that Kirti died within short span of matrimonial life that is
date of marriage is 20th January 2011 and death is on 16th May 2011. It
is true ultimately we are bound by rules of evidence and the cases are
decided on the basis of what has come in the evidence and not on the
basis of suspicion. For all these reasons, we find that the findings given
by the trial Court about holding the Appellant guilty being responsible
for the death of his wife cannot be sustained in the eyes of law. Though
there are lacune in the theory of accidental death, the prosecution has
not proved the case of homicidal death at the instance of the Appellant.
Hence, we have no alternative but to allow the appeal and set aside the
conviction.
96. Hence, the order :-
ORDER
(i) The Criminal Appeal is allowed.
(ii) The order of conviction and sentence recorded by the
Court of Additional Sessions Judge, Nashik on 22nd
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August 2017 for the offence punishable under Section
302 of Indian Penal Code in a trial conducted in Sessions
Case No.240/2011 is set aside.
(iii) The Appellant be released forthwith, if not required in
any other case.
(iv) Fine, if deposited, be returned to the Appellant.
97. The Criminal Appeal is disposed of.
98. Pending Interim Application, if any, also stands disposed of.
(S. M. MODAK, J.) (M. S. KARNIK, J.)
