State of Maharashtra v. Gajanan Baburao Phakatkar

Judgment

1. By appeal against acquittal Appellant- State Maharashtra exception Judgment Order 10th May 1988 passed learned Additional Sessions Judge, Pune, Respondent has been acquitted of the offences punishable under section 302 and 498A of the Indian Penal Code, 1860.

2. The Respondent/accused husband Mrs.Ujwala Gajanan Phakatkar. The Respondent married deceased Ujwala sometime 1980 : 2 : 7 5 years. The Respondent deceased staying Bhosari, Pune. The prosecution Respondent addicted subjecting ill-treatment. It prosecution 22nd January 1982 a quarrel between Respondent deceased Ujwala Respondent deceased Ujwala pouring kerosene person. At deceased received injuries narrated incident father. The prosecution father Police complaint with the hope that the relations between the Respondent and his wife will improve.

3. The prosecution alleged 7th May 1987

7.00 a.m. Respondent poured kerosene person Ujwala fire. The deceased serving office Municipal Corporation Pune. She returned

5.00 p.m. started cooking stove. The playing outside. After deceased returned house, returned house. 7th May 1997 Thursday a holiday Respondent. The prosecution Respondent behind a : 3 : poured kerosene deceased Ujwala lighted fire. According prosecution Chetan witnessed incident water. room. The deceased Fakir Mohammed running a premises Respondent neighbours extinguished The prosecution Respondent attempt extinguish though present. The victim Sasoon Hospital Pune admitted According prosecution 8th May 1987 ward.

1.40 a.m.

declaration deceased Ujwala before Special Judicial Magistrate purportedly stated wearing caught accidently cooking therefore, suffered injuries. stated husband extinguished present a She incident occurred. The parents deceased informed incident rushed Hospital remained hospital Ujwala 12th May

1987. The prosecution deceased Ujwala mother Vijaya husband hopeful survival, interests children, : 4 : a statement Special Judicial Magistrate. On 12th May 1987

9.00 a.m. Dr.Chaudhari recorded statement Ujwala stated a quarrel with husband husband poured kerosene her. When kerosene soacked caught fire. The extinguished Respondent nearby. Ujwala expired

12.45 p.m. same day before the Police could be called for recording dying declaration.

4. After Judge The prosecution examined P.W.3 Chetan 9 witnesses deceased. considering evidence, learned Sessions conclusion prosecution proved beyond reasonable doubt. He prosecution failed motive accused committing crime. The Court not accept the evidence of the minor son of the deceased.

5. Shri Shaikh, learned A.P.P. appearing Appellant-State submitted evidence witness Chetan (P.W.3) accepted reason depose against father. He submitted evidence : 5 : witness position understand implications questions therefore, reason discard evidence because witness 7 years. He submitted contradictions, any, evidence P.W.3 a nature sufficient discard version. He submitted deposition mother deceased (P.W.8) inspires confidence stated circumstances deceased statement Special Executive Magistrate earlier manner deceased poured kerosene person. The learned A.P.P. relied evidence P.W.2 father deceased. He submitted entire evidence record a conclusion except conclusion regarding accused drawn. He submitted theory propounded accused accidental cannot accepted considering medical evidence evidence record. He, therefore, submitted Respondent/accused proved beyond reasonable doubt and therefore, appeal should be allowed.

6. The learned Counsel Respondents submitted evidence witness cannot : 6 : conviction. He submitted possibility witness tutored witness company father i.e. father deceased incident. He submitted without ascertaining whether witness implication administering oath, learned administered witness. He pointed learned Judge recorded finding witness position properly understand questions a position answers question. He submitted evidence witness is, cannot accepted material contradictions evidence. He submitted considering evidence witnesses, a Judge Respondent established beyond reasonable doubt. He, therefore, submitted interference was called for in the present appeal against acquittal.

7. In the light of the submissions made by the learned Counsel appearing for the parties it will be necessary to consider the oral evidence on record.

8. P.W.1 Pramod Kumar photographer : 7 : photographs offence. Nothing really evidence. P.W.2 Pandurang father deceased. He deposed marriage deceased Ujawala place. He stated behaviour of her husband i.e. accused no.1 was not proper and he was addicted to some intoxicants.

9. He stated 7th May 1987

11.00 p.m. informed daughter Ujwala suffered injuries Sasoon Hospital. He hospital Ujwala’s sister-in-law, husband’s brother around her. He stated family members stayed Hospital. On 9th May 1987

5.15 p.m. informed Ujwala stated husband fire. He stated 6

6.30 p.m. day, Ujwala narrated husband ablaze. stated Ujwala’s husband hospital death. He stated 11th May 1987 taking bath. At Chetan deceased accused deceased fire. He stated accused perform deceased Ujwala brother : 8 : performed her last rites. He stated that he lodged complaint on 13th May 1987 about the incident.

10. In cross-examination admitted deceased staying 8th May

1987. He admitted accused hospital Ujwala admission injuries chest. In cross-examination stated daughter drawing salary Rs.800 Rs.900 daughter purchased a admeasuring one-half Guntha, a television a cupboard earnings. He stated daughter purchased a connection. He admitted deceased Ujwala accused 7th May

1987. He admitted talked incident either 11th 12th May

1987. There explanation waited filing complaint 13th May 1987 according 11th May 1987 itself daughter Ujwala had told him and his wife that accused had poured kerosene on her body and set her ablaze.

11. P.W.3 Chetan stated 7 recording evidence. We Marathi English depositions witness : 9 : administered him. Perusal record learned Judge ascertained whether understood speaking understood nature affirmation. More recorded satisfaction witness a position understand question question. In deposition Chetan stated incident mother brought a him. In evening father assaulted mother thereafter ablaze pouring kerosene person. He stated thereafter mother running people extinguished stated cross-examination fire. He playing outside inside 6 p.m. brother Yogesh. He stated accused thereafter bed. He further stated brother retired alongwith father. He stated awakened shouts mother. He stated shouts mother, mother closed. He stated police enquiries him, incident. He stated police recorded statement, father sitting by his side and his grand father did not tell : 10 : him to give statement before the police.

12. As stated earlier, learned Judge appears administered witness. Section 4 Oath Act 1969 provides affirmation witnesses required evidence before Court. Proviso section 4 witness a 12 age, Court person having authority examine witness opinion though witness understands speaking truth, understand nature affirmation, provisions section 4 witness. Therefore, Judge opinion witness understand nature affirmation, affirmation administered witness. The Apex Court provisions section 118 Indian Evidence Act 1872 sections 5 13 Oaths Act 1897 a Judgment reported AIR 1952 S.C. (Rameshwar s/o.Kalyan Singh v/s. The State Rajasthan). Justice Vivian Bose 54 Bench, referred to the proviso to section 5 of the Indian Oaths Act 1873 which reads thus: . "Provided witness a : 11 : twelve age, Court person having authority examine witness opinion that, though understands speaking truth, understand nature affirmation, foregoing provisions section provisions S.6 witness, absence affirmation render inadmissible evidence witness affect obligation of the witness to state the truth." The Apex Court considered question whether opinion referred proviso formally recorded whether inferred circumstances deposition recorded. After considering proviso section 5 Indian Oaths Act, 1873 and section 118 of the said Act of 1872, in paragraph 11 the Apex Court held as under: "I however desirable judges magistrates should always opinion understands speaking record : 12 : that, otherwise credibility witness seriously affected, necessary so, reject evidence altogether. But whether Magistrate Judge really opinion can, I think, gathered circumstances when there is no formal certificate."

13. Relying Judgment Apex Court, Division Bench Court Judgment reported 79 Bom.L.R. page 132 (State v/s.Sharanappa) held that : a At outset, constrained observation regarding recording evidence a witness. No doubt, following Supreme Court Rameshwar Kalyan Singh State Rajasthran, nowadays v. Judges precaution putting preliminary questions ascertain whether witness a position distinguish between falsehood. But conveniently ignore caution repeatedly recording evidence a witness should : 13 : invariably questions answers. This recording evidence a fairplay Court deposition appellate Court exactly question answer witness. questions answers witness tutored, all, manner. The evidence stereo-typed manner narration. It difficult a question public prosecutor himself, whether manner whether proper circumstances. Another feature worthy evidence question answer form, Judge himself opinion demeanour details given, whether a truthful witness. Ample opportunity provided appellate Court manner particulars Therefore, advisable essential record evidence record. witness question answer : 14 : making a stated Rameshwar Kalyan Singh’s case. That caution Supreme a ascertain whether witness really capable distinguishing between falsehood, whether a position understand implications thereof. From better questions actually recorded because are a test of her credibility and the degree of her understanding.

14. In a recent Judgment Apex reported (2004) 1 S.C.C. 64 (Ratansinh Dalsukhbhai Nayak v/s. State Gujarat) Apex Court occasion consider the law relating to a child witness. In paragraph 7 the Apex Court held as under: "7. In Dattu Ramrao Sakhare v. State Maharashtra it was held as follows :(SCC p.343, para 5) . "A witness competent depose reliable evidence conviction. KIn : 15 : absence evidence a witness considered Section 118 Evidence Act provided witness understand questions rational answers thereof. The evidence a witness depend case. credibility thereof The circumstances precaution should assessing evidence a witness witness a reliable his/her demeanour competent witness and there is no likelihood of being tutored." The decision question whether witness sufficient intelligence primarily Judge notices manner, apparent possession intelligence, Judge resort examination disclose capacity intelligence undersanding obligation The decision disturbed may, however higher oath. : 16 : preserved records, conclusion erroneous. This precaution necessary because witnesses amenable tutoring a make-believe. Though established principle witnesses dangerous wtinesses pliable liable influenced easily, shaken moulded, accepted careful scrutiny evidence conclusion impress it, obstacle of accepting the evidence of a child witness." If Apex Court Judgment apparent record before nothing indicate learned Sessions Judge noticed manners witness, apparent possession intelligence. The learned Judge resorted examination disclose capacity intelligence understanding obligation of an oath. There appears to be no decision of the learned Judge on this aspect.

15. In witness concerned, : 17 : Privy Council judgment reported AIR 1946 Privy Council 3 (Mohamed Sugal Esa Mamasan Rer Alalah v/s. The King), evidence a witness admissible evidence whether corroborated not. However, Privy Council a evidence a practice uncorroborated child, whether unsworn. Privy Council further a prudence law. The Division Bench Court in the case of State v/s. Sharanappa (supra) held that : . "Another caution various Courts although witness The High competent testify, notoriously dangerous unless statement recorded immediately before contact with others and in particular her close relatives." The Apex Court Judgment reported (1998) 7 S.C.C. 17 (Panchhi others v. State U.P.) occasion consider evidentiary evidence of a child witness. In paragraphs 11 and 12 the Apex Court held as under: : 18 : "11. ................The evidence a witness evaluated carefully greater circumspection because a susceptible swayed by what others tell him and thus a child witness is an easy pray to tutoring.

12. Courts evidence a witness adequate corroboration before on. It a practical wisdom (vide Prakash State M.P., Baby Kandayanathil v. State v. Kerala, Raja Ram Yadav v. State Bihar, Dattu Ramrao Sakhare v. State of Maharashtra." In position emerges aforesaid decisions, evidence witness Chetan appreciated. In evidence P.W.2 Pandurang stated daughter brought 8th May

1987. From statement Chetan recorded i.e. 14th May 1987 residing father deceased. Moreover father deceased accompanied witness statement recorded : 19 : Police. A witness easily tutored therefore, recording statement witness material. The English deposition witness Marathi version thereof preliminary questions learned Sessions Judge witness ascertaining whether witness understands implication administering oath. No questions ascertain whether witness position understand questions answer same. Without taking precautions, administered witness. As stated a Supreme Court Rameshwar (supra) satisfaction Judge understands speaking important satisfaction gathered circumstances Judge. formal certificate recorded learned In before us, nothing record indicate learned Judge satisfied himself capacity witness understand nature questions. There nothing record learned Sessions Judge before proceeding record evidence formed opinion a position understand opinion speaking truth. We desirable learned : 20 : Magistrates learned Session Judges should normally follow procedure judgment of the Division Bench of this Court in the case of State v/s. Sharanappa.

16. The credibility witness appears doubtful. His statement recorded belatedly. In deposition, stated father. So incident concerned, admitted cross-examination sleeping awakened shouts mother shouts, mother closed. Evidence witness recorded a incident. Considering all these aspects, it is very unsafe to rely upon the evidence of the child witness.

17. The witness P.W.4 Dr.Laxmikant Badhe. He a medical practitioner performed postmortem examination victim. He narrated nature injuries person deceased. He stated injuries antimortem. He cause of death as shock due to result of burn injuries. Nothing much turns on the evidence of the said witness. : 21 :

18. P.W.5 Fakir Mohammed Ibrahim stated running a repairing accused. He deposed 7th May 1987

7.45 p.m. deceased coming outside condition. He stated husband sitting otla. He stated coming outside room, collapsed. He stated helped persons stated extinguishing putting sand. He accused burnt. He outside kerosene spread room. He stated locked neighbouring lady. His statement recorded Police 13th May

1987. There hardly anything significant in the cross-examination of the said witness.

19. Dr.Ravindra Chaudhari, P.W.6, relevant resident Doctor Sasoon Hospital, Pune. He stated victim wanted statement therefore, victim relatives present room. He verified patient a position statement. He stated patient statement Marathi recorded English papers. The witness stated victim quarrel between husband : 22 : husband poured kerosene her. She stated kerosene soacked caught fire. husband nearby received burns. The extinguished neighbours husband. Her He stated informed R.M.O. patient wanted change declaration therefore, Police should informed. The Police informed at about 11.15. Thereafter the patient was in poor condition and she expired at 12.45 p.m.

20. We perused papers produced witness Exh.26. The papers record extent 90%. papers record 7th May 1987

10.10 patient conscious statement. At stated sudden flaring The p.m.

7.00 p.m. cooking. There endorsement 12th May 1987 second declaration recorded. P.W.6 stated quarrel victim a result husband poured kerosene body. However, husband fire. She stated lighted kerosene soaked caught fire. However, recording statement paper, : 23 : P.W.6 recorded victim stated sudden flaring cooking thereby accidently Therefore, version P.W.6 burned. support prosecution. Even accept declaration recorded P.W.6 victim did not tell that she was set on fire by her husband.

21. P.W.7 Balbhim Ransingh P.S.I. attached Bhosari Police Station. He recorded panchanama. He stated kitchen platform search. He stated cylinder kitchen platform. attached without pump, a plastic He containing quantity kerosene, a damaged box, curtain stained burned pieces. It allegedly brought victim P.W.3 Chetan allegedly used by the accused to assault the victim was not found at the spot of incident.

22. i.e. The important witness Mrs.Vijaya, P.W.8, mother victim. She deposed 7th : 24 : May 1987 itself family members Sasoon Hospital. On thereafter daughter husband poured kerosene person fire. She admitted complaint complaint 13th May 1987 husband. Her evidence consistent statement victim recorded paper. Her conduct making complaint unnatural. P.W.9 Padmakar, P.S.I. attached Bhosari Police Station examined arrest panchanama report Chemical Analyser. In the cross-examination he stated that the deceased was having a sum of Rs.10,000/- in her bank account.

23. At admission victim Sasoon Hospital, appears papers conscious history accidental reason sudden flaring stove. Even P.W.6 allegedly recorded declaration stated according victim accused poured kerosene person stove, kerosene soaked saree caught fire. As stated earlier, the evidence of P.W.3 who is the only eye witness will have to be disbelieved for the reasons which are already recorded. : 25 :

24. The complaint father victim belatedly 13th May

1987. Even according mother victim, 11th May 1987 victim incident pouring kerosene person accused accused setting fire. The victim a Municipal employee dependent husband sense. It record deceased having balance. The father victim admitted deceased Ujwala purchased a portion Bhosari. Thus victimwas ordinary housewife. If husband really guilty, victim a position Taking cannot Dying Declarations. overall evidence record, accused established beyond reasonable doubt. We perused impugned Judgment order. We learned Judge appreciated entire evidence record recorded findings proper interference. The appeal therefore dismissed. The bail bond of the accused stands cancelled. (Smt.Ranjana Desai, J.) (Abhay S.Oka, J.)