Criminal Appeal No. 295 of 2017 · Bombaybench High Court
Case Details
2023:BHC-AUG:24554-DB CRI APPEAL295 OF 2017.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO.295 OF 2017.Vijay s/o. Sahebrao PatilAge 35 years, Occ.: Labour, R/o.Takarkheda, Tq.Amalner,Dist.Jalgaon. ... Appellant Versus1.The State of Maharashtra2.Dipak Vijay PatilAge: Minor, 3.Om Vijay PatilAge: Minor,Both R/o. Takarkheda, Tq.Amalner,Dist.Jalgaon.(u/g. of Grandfather Sahebrao Sheshrao Patil Age: 65 years, R/o. Takarkheda, Tq.Amalner,Dist.Jalgaon) ... Respondents.....Mr.S.S.Jadhav, Advocate for Appellant Mrs.V.S.Choudhari, APP for Respondent no.1-State Ms.Harshita Manglani, Advocate for Respondent nos.2 and 3 (Appointed)..… CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATE : 06 NOVEMBER, 2023JUDGMENT (PER ABHAY S. WAGHWASE, J.) :1.Conviction and sentence recorded by Additional Sessions Judge,Amalner, Dist.Jalgaon dated 11-05-2017 in Sessions Case No.5 of 2016 foroffence under Section 302 of the Indian Penal Code (IPC) has resulted into1/26
Legal Reasoning
CRI APPEAL295 OF 2017.odt filing of instant appeal by invoking Section 374 of the Code of CriminalProcedure thereby questioning the legality and sustainability of the impugnedjudgment. CASE OF PROSECUTION IN BRIEF2.Present appellant was chargesheeted by Amalner Police Station forcommission of offence under Section 302, 504 of the IPC in the backdrop ofFIR bearing 148 of 2015 registered on the strength of dying declarationExh.25 recorded by a Lady Police Constable posted at Dhule City Police Stationwherein deceased informed that her husband was addicted to liquor. Since 7-8 days prior to the occurrence, he was demanding money from her and onfailure to meet the demand he abused her. Deceased gave statement that on07-10-2015 at around 03:00 p.m. he again put up a demand of money forliquor, abused her and on refusal, sat on her, poured kerosene and thereafterignited her. Brother and parents shifted her to the hospital where after onexamination by PW4 Dr.Kuwar regarding fitness to give statement, herstatement was recorded and initially offence was recorded under Section 307and 504 of the IPC. She succumbed to 96% burns and so crime was convertedto Section 302 of the IPC and accused was chargesheeted and finally tried bylearned Additional Sessions Judge, Amalner, who passed above mentionedimpugned order questioned before us in appeal.2/26
Legal Reasoning
CRI APPEAL295 OF 2017.odt SUBMISSIONSOn behalf of Appellant :3.For relief of setting aside impugned judgment, learned Counsel for theappellant would submit that there are two dying declarations Exh.24 andExh.25. He pointed out that deceased allegedly suffered 96% burns andtherefore, it is doubtful whether she was in capacity to give statement. Hissecond attack on same count is that in view of scoring and interpolations inthe dying declarations, there is possibility of Doctor giving endorsement andcertification by not examining the deceased but issuing certification by sittingin chamber. He further submitted that except child witness testimony, there isno other independent witness. When the child was with maternal uncle andbeing in custody of grand parents, possibility of child to be tutored cannot beruled out and therefore, his evidence cannot be straightway accepted inabsence of corroboration. He pointed out that in dying declarations it is statedthat brother and parents of deceased have allegedly shifted her to the hospital,but none of them are examined. That history reported at the time ofadmission is also doubtful. All such crucial aspects have not been consideredby the learned trial Judge and straightway dying declarations are relied andhence he prays to allow the appeal.On behalf of State : 4.Per contra learned APP would submit that scribes of dying declarationshave been examined by prosecution. That dying declarations are promptly3/26 CRI APPEAL295 OF 2017.odt recorded. That they are both consistent regarding role and overt act ofappellant husband. That very child of deceased and appellant has deposedagainst his own father. Inspite of cross-examination, his evidence has remainedunshaken and as such it is submitted that there is no reason to interfere in thejudgment which is based on sound reasons and findings.5.Here case of prosecution is rested on oral evidence of in all tenwitnesses.EVIDENCE ON BEHALF OF PROSECUTION PW1 Dilip Sahebrao Patil is Pancha to spot panchanama. His evidence is atExh.14. Spot panchanama is at Exh.15. PW2 Dipak Vijay Patil is son of deceased and accused. He is a child witness.His evidence is at Exh.18-A. PW3 Dr.Prakash Kisan Tale is the Doctor, who examined accused. His evidenceis at Exh.21. PW4 Dr.Ajayraj Anandraj Kuwar is the Doctor, who made endorsement on thedying declaration Exh.24. His evidence is at Exh.23. PW5 Kailas Pandit Borse is Circle Officer (Special Executive Magistrate), whorecorded dying declaration Exh.24. His evidence is at Exh.26.PW6 Himmat Dongar Koli is the landlord. His evidence is at Exh.28. PW7 Zulal Vithhal Patil is father of deceased. His evidence is at Exh.29. 4/26 CRI APPEAL295 OF 2017.odt PW8 Rajesh Shivsing Chavan (Police Naik) is carrier of muddemal. Hisevidence is at Exh.30.PW9 Pravin Mohan Kadam (PI) is Investigating Officer, who on completion of investigation chargesheeted accused. His evidence is at Exh.34. PW10 Ms.Aruna Ishwar Gaikwad is Police Head Constable, who recordeddying declaration Exh.25. Her evidence is at Exh.43.6.On appreciating submissions of both the sides, it appears that hereadmittedly evidence is in form of dying declarations and child witness account.Before adverting to verify its veracity and reliability, we wish to narratethe brief account regarding evidentiary value of dying declarations as well assettled principles which are culled out by the Hon’ble Apex Court from thevarious landmark cases like Khushal Rao v. State of Bombay; AIR 1958 SC 22,Paniben v. State of Gujarat; (1992) 2 SCC 774, Laxman v. State ofMaharashtra; (2002) 6 SCC 710, Ganpat Bakaramji Lad v. State ofMaharashtra; 2011 ALL MR Cri. 2249. Surendrakumar v. State of Punjab;(2012) 12 SCC 120, Jagbir Singh v. State (NCT of Delhi); (2019) 8 SCC 779,Madan v. State of Maharashtra; (2019) 13 SCC 464.Off late in the case of State of Uttar Pradesh v. Veerapal and another;(2022) 4 SCC 741 while deciding Criminal Appeal No.34 of 2022 on 01-02-2022, the Hon’ble Apex Court has reiterated the principles to be borne in mind5/26 CRI APPEAL295 OF 2017.odt while analyzing and accepting dying declaration. The settled principles are asunder: “1. It cannot be laid down as an absolute rule of law that a dyingdeclaration cannot form the sole basis of conviction unless it iscorroborated; 2. Each case must be determined on its own facts keeping in viewthe circumstances in which the dying declaration was made; 3. It cannot be laid down as a general proposition that a dyingdeclaration is a weaker kind of evidence than other pieces ofevidence; 4. A dying declaration stands on the same footing as anotherpiece of evidence and has to be judged in the light ofsurrounding circumstances and with reference to the principlesgoverning the weighing of evidence; 5. A dying declaration which has been recorded by a competentMagistrate in the proper manner, that is to say, in the form ofquestions and answers, and, as far as practicable, in the wordsof the maker of the declaration, stands on a much higherfooting than a dying declaration which depends upon oraltestimony which may suffer from all the infirmities of humanmemory and human character : and 6. In order to test the reliability of a dying declaration, the courthas to keep in view, the circumstances like the opportunity ofthe dying man for observation, for example, whether there wassufficient light if the crime was committed at night; whetherthe capacity of the man to remember the facts stated, had notbeen impaired at the time he was making the statement, bycircumstances beyond his control; that the statement has beenconsistent throughout if he had several opportunities of6/26 CRI APPEAL295 OF 2017.odt making a dying declaration apart from the official record of it;and that the statement had been made at the earliestopportunity and was not the result of tutoring by interestedparties.” Similarly, in the case of Uttam v. State of Maharashtra; (2022) 8 SCC576, again certain principles are enunciated which are to be borne in mind ina case wherein the evidence is in the form of dying declaration. Theseprinciples are as under : “(i) There is neither rule of law nor of prudence that dyingdeclaration cannot be acted upon without corroboration. (ii) If the Court is satisfied that the dying declaration is trueand voluntary it can base conviction on it, withoutcorroboration.(iii) The Supreme Court has to scrutinise the dying declarationcarefully and must ensure that the declaration is not the resultof tutoring, prompting or imagination. The deceased hadopportunity to observe and identify the assailants and was in afit state to make the declaration. (iv) Where dying declaration is suspicious it should not beacted upon without corroborative evidence. (v) Where the deceased was unconscious and could never makeany dying declaration the evidence with regard to it is to berejected. (vi) A dying declaration which suffers from infirmity cannotform the basis of conviction. 7/26 CRI APPEAL295 OF 2017.odt (vii) Merely because a dying declaration does not contain thedetails as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not bediscarded. On the contrary, the shortness of the statement itselfguarantees truth. (ix) Normally the court in order to satisfy whether deceasedwas in a fit mental condition to make the dying declarationlook up to the medical opinion. But where the eye witness hassaid that the deceased was in a fit and conscious state to makethis dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version asgiven in the dying declaration, the said declaration cannot beacted upon.”Very recently certain principles of law with regard to case involvingmultiple dying declarations are spelt out in the case of Abhishek Sharma v.State (Govt. of NCT of Delhi) [Criminal Appeal No.1473 of 2011, decided on18-10-2023]. These principles read thus : “9.1The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;9.2All dying declarations should be consistent. In other words,inconsistencies between such statements should be ‘material’ for its credibility to be shaken;9.3When inconsistencies are found between various dying8/26 CRI APPEAL295 OF 2017.odt declarations, other evidence available on record may be considered for the purpose of corroboration of the contents of dying declarations.9.4The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.9.5Each declaration must be scrutinized on its own merits. The courthas to examine upon which of the statements reliance can be placed in order for the case to proceed further.9.6When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.9.7In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc.” The ratio that is settled is that dying declaration must be firstlyvoluntary, truthful and secondly it should not be tutored and further the sameshould inspire the confidence of the Court. These are the basic principleswhich are to be borne in mind while appreciating dying declarations. 7.Here apart from dying declarations, there is also testimony of PW2Dipak, son of deceased and accused. He is apparently a child witness.Therefore, even before touching to his substantive evidence in the witness box,we also propose to give brief account of evidentiary value of child witness.9/26 CRI APPEAL295 OF 2017.odt There are various landmark pronouncements on above aspect and a fewcould be named as under:In Mangoo and another v. State of Madhya Pradesh; AIR 1995 SC 959,the Hon’ble Apex Court while dealing with the evidence of a child witnessobserved that;“There was always scope to tutor the child, however, it cannotalone be a ground to come to the conclusion that the child witnessmust have been tutored. The Court must determine as to whetherthe child has been tutored or not. It can be ascertained byexamining the evidence and from the contents thereof as towhether there are any traces of tutoring.”In the case of Dattu Ramrao Sakhare v. State of Maharashtra; 1997 (5)SCC 341, Hon’ble Apex Court held that;“A child witness if found competent to depose to the facts andreliable on such evidence could be the basis of conviction. In otherwords even in the absence of oath the evidence of a child witnesscan be considered under Section 118 of the Evidence Act providedthat such witness is able to understand the answers thereof. Theevidence of a child witness and credibility thereof would dependupon the circumstances of each case. The only precaution whichthe Court should bear in mind while assessing the evidence of achild witness is that the witness must be a reliable one and his/her10/26 CRI APPEAL295 OF 2017.odt demeanour must be like any other competent witness and there isno likelihood of being tutored.”In Ratansinh Dalsukhabhai Nayak v. State of Gujarat; (2004) 1 SCC 64,the Hon’ble Apex Court held that;“Child witness – evidence of – conviction on the basis of – held,permissible if such witness is found to be competent to testify andthe court after careful scrutiny of its evidence is convinced aboutthe quality and reliability of the same.”The Hon’ble Apex Court in the case of Gagan Kanojia and another v.State of Punjab; (2006) 13 SCC 516 has ruled that,“Part of statement of child witness, even if tutored, can be reliedupon, if the tutored part can be separated from the untutored part,in case such remaining untutored part inspires confidence.”In Nivrutti Pandurang Kokate and ors. v. State of Maharashtra; AIR 2008SC 1460, the Hon’ble Court dealing with the child witness has observed asunder;“The decision on the question whether the child witness hassufficient intelligence primarily rests with the trial Judge whonotices his manners, his apparent possession or lack of intelligence,and the said Judge may resort to any examination which will tendto disclose his capacity and intelligence as well as his understandingof the obligation of an oath. The decision of the trial court may,11/26 CRI APPEAL295 OF 2017.odt however, be disturbed by the higher court if from what is preservedin the records, it is clear that his conclusion was erroneous. Thisprecaution is necessary because child witnesses are amenable totutoring and often live in a world of make-believe. Though it is anestablished principle that child witnesses are dangerous witnessesas they are pliable and liable to be influenced easily, shaped andmoulded, but it is also an accepted norm that if after carefulscrutiny of their evidence the court comes to the conclusion thatthere is an impress of truth in it, there is no obstacle in the way ofaccepting the evidence of a child witness.”In a celebrated case of Hari Om v. State of U.P.; (2021) 4 SCC 345, veryrecently the Hon’ble Apex Court, in para 22 of this judgment, has spelt outlegal principles, summarized the evidentiary value of child witness, effects ofits discrepancies, and duty of court and corroboration when to be insistedupon, which we borrow and quote here:“22. The evidence of the child witness cannot be rejected per se,but the court, as a rule of prudence, is require to consider suchevidence with close scrutiny and only on being convinced aboutthe quality of the statements and its reliability, base conviction byaccepting the statement of the child witness. If the child witness isshown to have stood the test of cross-examination and there is noinfirmity in her evidence, the prosecution can rightly claim aconviction based upon her testimony alone. Corroboration of thetestimony of a child witness is not a rule but a measure of cautionand prudence. Some discrepancies in the statement of a child12/26 CRI APPEAL295 OF 2017.odt witness cannot be made the basis for discarding the testimony.Discrepancies in the deposition, if not in material particulars,would lend credence to the testimony of a child witness who,under the normal circumstances, would like to mix up what thewitness saw with what he or she is likely to imagine to have seen.While appreciating the evidence of the child witness, the courts arerequired to rule out the possibility of the child being tutored. Inthe absence of any allegation regarding tutoring or using the childwitness for ulterior purposes of the prosecution, the courts have nooption but to rely upon the confidence inspiring testimony of suchwitness for the purposes of holding the accused guilty or not. Theevidence of the child witness must be evaluated more carefully andwith greater circumspection because a child is susceptible to beswayed by what others tell him and thus an easy prey to tutoring.The evidence of the child witness must find adequatecorroboration before it is relied upon, as the rule of corroborationis of practical wisdom than of law.”ANALYSIS8.The dying declarations Exhibits 24 and 25 are reproduced in translatedform for proper comprehension : FIRST DYING DECLARATION“Exh. 24 Dt: 07/10/2015 Dhule: Civil HospitalDhule Before the Hon’ble Executive Magistrate,Dhule Taluka, Dhule.1Time of recordingStatement: Dt. 07/10/201513/26 CRI APPEAL295 OF 2017.odt 2Name of PatientSau Kavitabai Vijay Patil3Age30 yrs4OccupationHousehold and Labour Work5Full AddressAt post Takarkhed, Tq. AmalnerDist. Jalgaon6The Place of OccurrenceAt the residential house on dt:7/10/2015 Approximately at 3.00O’clock.7Reason for the Occurrenceof Incident.Was there any trouble fromfamily members?Names of persons present atthe time of incident?Do you have suspect on anyfamily members/any otherpersons? Mentioned thenames.Who admitted in thehospital? And when?Time and date ofcommencing the statement?The husband poured Kerosene onher person and set her on fire asshe did not give money to drinkliquor.Both the husband and wife werepresent at home.Husband: Vijay Sahebrao Patiland (She) herselfMy husband is addicted to liquor.He was demanding money sincelast 7-8 days for drinking liquorand continuously abusing mebadly. Today on dt. 7/10/2015 atabout 3:00 o’clock he pouredkerosene on me by sitting on myperson and set ablaze by thematch stick on the reason of notgiving money and ran away out ofthe house. I ran outside the housescreaming as my body was burnt.At that time ex-Police Patil of ourvillage Shri Himmat Koli put quilton my person and extinguishedfire. After some time my brotherRaghunath Zulal Patil and myparents (mother and father) cameto my village as my maternalplace is nearby and admitted mein the Civil Hospital Dhule byambulance. I have complaintagainst my husband VijaySahebrao Patil regarding the saidincident. The above statement is read891014/26 CRI APPEAL295 OF 2017.odt over to me and it is true andcorrect as per my narration.Hence this statement.......The time and date of of commencement of statement 7/10/15 on 18:40Before Executive Magistrate Dhule Taluka, Dhule Patient is conscious and oriented to give statement. Kavita Vijay Patil Thumb expression of Big toe due to burn injuries on both the hands. D.D.started R/R In evidence of at 6:20 pm P.W. No. 04 in......7/10/2015 Dt: 2/02/2015Sd/- Sd/-(C.M.O) D.J.-1 & A.S.J. AmalnerPatient is conscious and oriented to give statement.D.D. ended at 6.40 p.m.7/10/2015Sd/-(C.M.O)Dhule”(As translated by Sr. Translator, High Court, Aurangabad).SECOND DYING DECLARATION “STATEMENT Exh. 25Dt: 07/10/2015Patient is conscious orientedAmalner P.S. Part 5.crime Reg.and give statement atNo. 148/2015 IPC Sec. 307,504 6.45 pm Sd/- station Diary No. 281/1507/10/2015 Medical OfficerEntry is noted at No. 2 on 00/05Sd/-S.H.O. Amalner P.S.Patient is conscious and oriented to givestatement. Statement ended at 7.00 p.m.7/10/2015Sd/-15/26 CRI APPEAL295 OF 2017.odt (C.M.O) Sarvopchara Rugnalaya, DhuleI Mrs. Kavitabai Vijay Patil, age 30 yrs. Occupation Household and Labourwork, R/o: Takarkheda, Tq. Amalner, Dist. Jalgaon.I do hereby make statement upon asking in person that, I am residing at theabove mentioned place with my husband Vijay Sahebrao Patil, two sons namelyDipak and Om. My husband has an addiction of drinking liquor and since last 7 to 8days he was demanding money to drink liquor and was abusing me badly. He wasnot working himself and was not allowing me to work either. Today on dt. 7/10/2015 at 3.00 O’clock in the afternoon he asked for moneyto drink liquor as usual and as I did not give money to him he abused me badly andby sitting on my person poured kerosene on my person and ablaze me with thematch stick and ran away from the house. As my body was burning, I screamed andran out of the house. At that time our owner, ex-village Police Patil Himmat Koli, hasextinguished me by putting quilt on my person. As my maternal village is nearby,after some time my brother Raghunath Zulal Patil, my parents (father and mother)came to my village and put me in an ambulance and admitted me at the CivilHospital Dhule today on 07/10/2015 at 5.15 in the evening for the treatment and Iam undergoing treatment. I have complaint against my husband Vijay Sahebrao Patilregarding the said incident. My above statement is read over to me and it is written true and correctas per my narration.BeforeHence this statementsd/-Dt: 7/10/2015.(K. M. Gaikwad)Sau. Kavitabai Vijay PatilP.H.C. Dhule Civil P.S.Big toe impression due to burn injuries on both hands”(As translated by Sr. Translator, High Court, Aurangabad).9.Dying declarations Exh.24 and Exh.25 are scribed by PW5 Borse,Revenue Authority and PW10 Ms.Gaikwad, Lady Police Constable respectively.We have gone through the substantive evidence of both these witnesses. They16/26 CRI APPEAL295 OF 2017.odt claim to have visited hospital, approached Doctor, sought endorsement andcertification to record dying declarations and thereafter, have recorded bothdying declarations. Exh.24 is first in point of time and Exh.25 seems to besubsequent one. On going through the dying declarations, it is worth notingthat they are consistent about appellant / husband’s bad vices i.e. consumptionof liquor and he abusing her since 7-8 days for not giving her money to buyliquor. In both dying declarations, he has stated about she made to fall, hesitting on her for refusing to give money to buy liquor and then pouringkerosene and setting her on fire. She has named him and held himresponsible for the burns. Inspite of both scribes being subjected to cross-examination, theirevidence about they going to hospital and recording dying declarations hasremained intact. Therefore, there is no reason to discard or disbelieve or evendoubt the dying declarations. Both are independent witnesses. There isnothing on record to disbelieve their testimonies. Even we are convinced thatthe dying declarations carry no infirmity so as to discard the same or doubt thesame. 10.Apart from consistent dying declarations, prosecution seems to haveexamined PW2 Dipak, very child of accused and deceased and PW6 Himmat,landlord, who was also present at the time of incident. 17/26 CRI APPEAL295 OF 2017.odt PW2 Dipak, son of deceased and accused is a child witness. After thelearned trial Judge has ascertained his efficiency to depose by putting himpreliminary questions and on subjective satisfaction to that extent, hisstatement has been recorded, wherein he stated that on that day, he had beento School at 11:30 a.m. In the morning itself his father had abused his motherby consuming liquor. He stated that he used to make demand of cash forconsuming liquor. At 03:00 p.m. to 04:00 p.m. he learnt from his classmatesthat his mother was set ablaze by his father and so he went home and saw hismother sitting on cot inside the house with severe burns. He stated that evenhis mother informed him that his father had ablaze her and thereafter, she wastaken in Ambulance to hospital. That his father also suffered burns on hishands. In cross-examination child has been asked whether in his statementbefore Police he had stated that students had informed him that his father hadablaze his mother and the said part is not finding place in his statement and somuch part is shown as omission. He further answered that at the time ofrecording his statement, his grandfather told him to make such statementagainst accused. Attempt is made by further suggesting him that his fatherused to bring clothes for him as well as sarees for his mother and maintaininghis mother and him. He flatly denied that he falsely stated about his mothertelling him that his father set her ablaze. 18/26 CRI APPEAL295 OF 2017.odt 11.Here above testimony of PW2 Dipak, child witness, on due satisfactionhas been recorded by learned trial Judge. Secondly, child has also spokenabout his father consuming liquor and even beating her under its influence onthat very morning before he went to School at 11:30 a.m. Omission as regardsto learning from friend about incident is not material omission. Likewise evenhis statement that, at the instance of grandfather he is giving statement alsoneed not be given undue importance. There is oral dying declaration to thiswitness and he has deposed accordingly. Therefore, we do not find any reasonto discard or doubt his version merely because he is a child witness. We findthat his evidence is inspiring confidence and therefore, there is no need toinsist upon corroboration, which is just a matter of caution not rule. Evenotherwise testimony of PW2 Dipak gets corroborated from evidence of PW6Himmat. 12.Apart from PW2 Dipak, prosecution has also adduced evidence of PW6Himmat, landlord at Exh.28, who also in his evidence stated that at 02:30 to03:00 p.m. on 07-10-2015, he heard shouts from the house of accused andsaw wife of accused in flames. He stated that he tried to douse the fire by useof quilt. He also claims that he inquired about reason for burn injuries and shetold that her husband set her on fire by sitting on her person and that accusedhad made demand of money for consuming liquor and when she did not paythe same, he set her on fire.19/26 CRI APPEAL295 OF 2017.odt Nothing is brought in his cross-examination to discredit his evidence.CONCLUSION13.Therefore, on carefully analyzing the above evidence, we find not onlydying declarations to be consistent and worthy of credence but there is alsoreliable evidence of very child of accused and deceased as well as anindependent witness, who corroborates testimony of PW2 Dipak also. Dyingdeclarations are inspiring confidence. There is evidence of PW2 Dipak andPW6 Himmat, which is also not shown to be unworthy of credence. Therefore,case of prosecution is squarely proved.14.We have gone through the impugned judgment. We do not find anyreason to interfere in the findings as regards to offence under Section 302 ofthe IPC is concerned.15.Ms.Harshita Manglani, learned Counsel for respondent nos.2 and 3appointed by us, would point out that accused father is in jail, mother hasexpired and both children were in custody and taken care of by grandparentsbut unfortunately now even grandfather has expired. Therefore, bothchildren, who are of tender age, are now exposed to adverse condition. Theyhave no means for their survival and better education and therefore, she seeks20/26 CRI APPEAL295 OF 2017.odt indulgence of this Court by invoking Section 357-A of the Code of CriminalProcedure (Cr.P.C.) and issuing directions.16.Here admittedly deceased has two children and they are named by herin both dying declarations Exh.24 and Exh.25. She has not given their agesbut her own age on record has come as 30 years of age. Therefore, there isreason to presume and infer that both children must be of tender age anddefinitely not above teenage.Learned Counsel for the appellant also fairly pointed out that after deathof mother and after incarceration of accused father, children have lostcompany and shelter of both parents. Statement has been made across the bar by the learned Counsel for therespondent nos.2 and 3 that off-late even grandfather has expired and so sheseeks arrangement of adequate means for rehabilitation and future of both thechildren. She has also sought reliance on following rulings :(a) State of Maharashtra Through Police Station, Bhokar v. Baburao Ukandu Sangerao; 2023 SCC Online Bom 1945(b) Suresh and Another v. State of Haryana; (2015) 2 Supreme Court Cases 227. 17.Section 357-A of the Code of Criminal Procedure provides as under : “357-A. Victim Compensation Scheme :- (1) Every State Governmentin co-ordination with the Central Government shall prepare a21/26 CRI APPEAL295 OF 2017.odt scheme for providing funds for the purpose of compensation to thevictim or his dependents who have suffered loss or injury as a resultof the crime and who, require rehabilitation.(2) Whenever a recommendation is made by the Court forcompensation, the District Legal Service Authority or the State LegalService Authority, as the case may be, shall decide the quantum ofcompensation to be awarded under the scheme referred to in sub-section (1)(3) If the trial Court, at the conclusion of the trial, issatisfied, that the compensation awarded under section 357 is notadequate for such rehabilitation, or where the cases end in acquittalor discharge and the victim has to be rehabilitated, it may makerecommendation for compensation.(4) Where the offender is not traced or identified, but thevictim is identified, and where no trial takes place, the victim or hisdependents may make an application to the State or the DistrictLegal Services Authority for award of compensation.(5) On receipt of such recommendations or on theapplication under sub-section (4), the State or the District LegalServices Authority shall, after due enquiry award adequatecompensation by completing the enquiry within two months.(6) The State or the District Legal Services Authority, as thecase may be, to alleviate the suffering of the victim, may order forimmediate first-aid facility or medical benefits to be made availablefree of cost on the certificate of the police officer not below the rankof the officer in-charge of the police station or a Magistrate of thearea concerned, or any other interim relief as the appropriateauthority deems fit.” 22/26 CRI APPEAL295 OF 2017.odt 18.Time and again the Hon’ble Apex Court reiterated that victim(s) aregenerally not kept in sight by trial Courts. Section 357 and 357-A areincorporated with a definite purpose of compensating victim(s) of crime and /or their dependents. It has now become mandate of law that criminal Courtsare required to apply its mind to the question of awarding compensation. Thelandmark case which has become a torch bearer on above aspect is the case ofAnkush Shivaji Gaikwad v. State of Maharashtra; (2013) 6 Supreme CourtCases 770. In this judgment, it has been held that “power to awardcompensation is not ancillary to other sentences, rather it is in additionthereto.” The very idea incorporated under Victim Compensation Scheme is toreassure victim that he or she is not forgotten in the criminal justice systemand rather has a stake and say in such system. In the selfsame judgment, thefactors which are required to be considered while granting compensation arealso elaborately dealt with. In paragraph nos.28 to 58 the Hon’ble ApexCourt has elaborately discussed and dealt about Victimology since the case ofMaru Ram v. Union of India; (1981) 1 SCC 107, Hari Singh v. Sukhbir Singh;(1988) 4 SCC 551, Sarvan Singh v. State of Punjab; (1978) 4 SCC 111, Balrajv. State of U.P.; (1994) 4 SCC 29; Baldev Singh v. State of Punjab; (1995) 6SCC 593.It has been observed in paragraph no.33 that “The long line of judicialpronouncements recognized in no uncertain terms, a paradigm shift in the23/26 CRI APPEAL295 OF 2017.odt approach towards victim of crimes who were held entitled to reparation,restitution or compensation for the loss or injury suffered to them. 19.The aspect of Section 545 incorporated in the Code of CriminalProcedure, 1898 (old Cr.P.C.) has been touched and discussed alongwith 41stReport of Law Commission of India, amendments to Cr.P.C. brought in 2008,introduction of 357-A empowering Courts to direct State to pay compensationto victim has dealt and discussed observations of 154th Report of LawCommission of India on Cr.P.C. in which entire chapter has been devoted to“Victimology” regarding growing emphasis on victim’s right, the principlesfounded in Indian Constitutional Jurisprudence.20.The upshot of the discussion in above judgment is that, Courts of Laware not only obliged to exercise their power to award compensation but hasalso legal duty to compensate a victim for the loss and injury inflicted as aresult of act and omission on part of other party. 21.Very recently Hon’ble Apex Court in the case of Jagjeet Singh andOthers v. Ashish Mishra Alias Monu and Another; (2022) 9 Supreme CourtCases, 321 after dealing with Section 2(wa) of the Cr.P.C., which defines theword “victim”, took into account the global perspective of victim’s right, UNDeclaration of Basic Principles of Justice for Victims of Crimes, laws prevailing24/26 CRI APPEAL295 OF 2017.odt in United States of America, Australia, Canada, taking into account recentamendments made in Cr.P.C., 154th Report of Law Commission of India, in para20 observed as under ““20. It is pertinent to mention that legislature has thoughtfully givena wide and expansive meaning to the expressions “victim” which“means a person who has suffered any loss or injury caused byreason of the act or omission for which the accused person has beencharged and the expression “victim” includes his or her guardian orlegal heir .(emphasis laid)22.Again in the case of Suresh and Another v. State of Haryana; (2015) 2Supreme Court Cases 227, above views and observations are echoed foreffectuation of Section 357-A by keeping in mind the object and purpose ofsaid provision, which enables a Court to direct even a State to paycompensation, when it is found to be inadequate under Section 357 of theCr.P.C. even when the case ended in acquittal or discharge. 23.Bearing in mind above settled legal position, we proceed to examine theentitlement of children of deceased Kavitabai to seek compensation andrehabilitation.Before us statements are made across the bar that as on today after lossof mother and incarceration of father for life, children are virtually renderedorphan. We are told that after above incident and conviction, children were25/26 CRI APPEAL295 OF 2017.odt put with grandparents and even off-late grandfather is heavenly abode.However, there is nothing in black and white to that extent before us. We trustthe learned Counsel representing victim and therefore, we wish to directDistrict Legal Services Authority to conduct an enquiry and thereafter, takeeffective steps for either compensation or making available all means forrehabilitation of both children, which are permissible under law. 24.Before parting, we appreciate and acknowledge the concern raised byMs.Harshita Manglani, learned Counsel for victims for bringing to our noticethe above pivotal question which otherwise would have gone unnoticed.With above observations, we proceed to pass following order : ORDER(I)Criminal Appeal No.295 of 2017 is dismissed.(II)District Legal Services Authority, Jalgaon is hereby directedto undertake exercise of getting ascertained the current whereaboutsof children of deceased, their educational and financial status andthen on due enquiry and satisfaction, take appropriate steps formeaningful rehabilitation of children of appellant and deceased. (III)Fees of the learned Counsel, who is appointed to representrespondent nos.2 and 3, is quantified at Rs.7,000/- to be paid by theHigh Court Legal Services Sub-Committee, Aurangabad. (ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)SPT 26/26