High Court

Legal Reasoning

APEAL-818-19.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 818 OF 2019Sarang Manik GaradAge: 35 years, Occu.: Agri.,R/o Khairkheda, Tq. Sengaon,Dist. Hingoli..APPELLANTVERSUSState of MaharashtraThrough Police Inspector,Goregaon Police Station,Dist. Hingoli..RESPONDENT....Mr. S.J. Salunke, Advocate for appellant (appointed)Ms. U.S. Bhosale, A.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 21st MARCH, 2024PRONOUNCED ON : 02nd APRIL, 2024JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The appellant, vide judgment and order dated 15th July, 2019passed by Additional Sessions Judge, Hingoli in Sessions Case No. 34 of2016, has been convicted for committing murder of his wife by setting herablaze, and therefore, sentenced to suffer imprisonment for life and to payfine of Rs.5,000/- with default stipulation. He is, therefore, in this appealbefore us.2.The record indicates that alongwith the appellant, his mother,brother and even brother’s wife were charged and prosecuted for offences1 APEAL-818-19.odtpunishable under Sections 302, 304(B) and 498-A read with Section 34 ofthe Indian Penal Code (‘I.P.C.’). After appreciation of the evidence onrecord, it was realised that the appellant and the deceased were the onlypersons residing together. The trial Court, therefore, rightly acquitted themother, brother of the appellant and brother’s wife. The appellant too wasacquitted of the offences punishable under Section 304-B and 498-A of theI.P.C. Neither the State nor victim has preferred appeal against acquittal.3.The facts, giving rise to the present appeal, are as under :-Sau. Sharada (deceased) had married the appellant. It was hersecond marriage. Her first marriage was dissolved with decree of divorce.On marriage she had started residing at her matrimonial home alongwith theappellant and her in-laws. There used to be frequent quarrels between thecouple on one or the other reason.4.It is the case of prosecution that at 07:00 a.m. on 14th February,2016 deceased – Sharda was cooking on hearth at her residence. Theappellant came. He doused her with kerosene. She thereby caught fire.She was rushed to the hospital. Her statement was recorded on 14thFebruary, 2016 by 02:25 p.m. by the Executive Magistrate at the request of apolice officer. Based on said statement, crime vide C.R. No. 23 of 2016 wasregistered with Goregaon Police Station, Dist. Hingoli for the offencespunishable under Section 307 and 498-A of the I.P.C.2 APEAL-818-19.odt5.Sharda succumbed to the burns on 17th February, 2016. Section302 of the I.P.C., therefore, came to be invoked. Scene of offencepanchanama (Exh.30) was drawn. A kerosene can, half burned match stickand some burned clothes came to be seized from the scene of offence. Themortal remains of deceased – Sharda was subjected to autopsy. The seizedarticles were sent to FSL, Aurangabad for analysis. Statements of thepersons acquainted with the facts and circumstances of the case wererecorded. On completion of investigation, the appellant and in-laws of thedeceased were proceeded against by filing charge-sheet before the Court ofJ.M.F.C, Sengaon, who in turn, committed the case to the Court of AdditionalSessions Judge, Hingoli (‘trial Court’).6.The trial Court framed charge (Exh.15). The appellant pleadednot guilty. His defence was of false implication.7.To establish the charge, prosecution examined eight witnessesand produced in evidence certain documents. The trial Court, on appreciationof the evidence in case, convicted the appellant and consequently sentencedas stated above.8.Mr. Salunke, learned counsel appointed to represent theappellant, would submit that the case is based on sole dying declaration(Exh.34). It is in printed form. Our attention has been drawn to certaindocuments to suggest the Executive Magistrate received the requisition from3 APEAL-818-19.odtthe police officer by 01:50 p.m. for recording dying declaration, whereas thedying declaration itself indicates the Executive Magistrate to have requestedthe medical officer on duty at 01:45 p.m. to certify whether the patient(Sharda) was conscious oriented to make a statement. Then he brought toour notice overwriting at two places to ultimately submit that the so calleddying declaration might have been recorded by the Executive Magistrate atthe instance of someone else. According to him, there is no othercorroborative evidence to support the dying declaration. Our attention hasalso been drawn to the oral evidence of the close relations of the deceasedto submit that the deceased met with an accidental death. According tolearned counsel, no medical papers of the deceased were brought on record.The medical officer, who certified her to be conscious oriented to makestatement, was not the treating doctor nor was he on duty in burn ward. Thesame caused prejudice to the appellant in his defence. Learned counselultimately urged for allowing the appeal.9.Learned A.P.P. would, on the other hand, submit that the dyingdeclaration was recorded by the Executive Magistrate. It has more sanctitythan one recorded by the police official. The scene of offence panchanama(Exh.30) reinforces the dying declaration. According to her, a kerosene canwas seized from the scene of offence. The C.A. report (Exh.63) indicates theburnt clothes and other articles seized from the scene of offence had thereonkerosene residues. According to learned A.P.P., the sole dying declarationcan form the basis of conviction. She reiterated the reasons given by4 APEAL-818-19.odtlearned trial Court in support of the impugned judgment and order. LearnedA.P.P. ultimately urged for dismissal of the appeal.10.Considered the submissions advanced. Perused the evidence onrecord. Also gone through the judgment and order impugned herein. Let usadvert thereto and appreciate the same.11.P.W.6 – Dr. Pawan conducted the autopsy of the mortal remainsof Sharda. The postmortem report under his signature finds place at Exhibit39. In his opinion, the deceased died of, “shock due to burn”. Colum No.17of the P.M. report gives details of burns as follows :-Part of Body Burnt area (%) Spare area Head neck face03forehead, both cheek, scalpFront of trunk16lower abdomenBack of trunk15lower backRight upper limb08palmLeft upper limb08palmRight lower limb17soleLeft lower limb17soleGenitals 0 whole spared Total Burn %8412.The question is whether the appellant committed murder of hiswife. Admittedly, the appellant and deceased were the only persons residingin a two room premises. The incident took place on 14th February, 2016 by07:00 a.m. The deceased was cooking on hearth at her residence. Sinceshe caught fire, she was immediately rushed to Government Medical Collegeand Hospital, Akola.5 APEAL-818-19.odt13.The record indicates that her relations viz. parents and brotherwere informed immediately. They even rushed to the hospital. None of themcame forward to lodge the F.I.R. against the appellant. The record indicatesthat statement-cum-dying declaration (Exh.34) given by the deceased wastreated as F.I.R. It is best known to P.W.8 – Avinash, Investigating Officer asto why did he commenced investigation post Sharda breath her last, sincethe crime was registered on 17th February, 2016 i.e. three days after theincident and post demise of Sharda. P.W.8 – Avinash, Investigating Officer,in his evidence submitted that he had been to the relations of the deceasedto record their statements. They submitted him to have not been in mentalframe to make a statement. According to him, they submitted him that theythemselves would come to give their statements lateron.14.P.W.1 – Santosh is the real brother of deceased – Sharda. It is inhis evidence that Sharda was previously married. Since the couple could notpull on together, the marriage was dissolved with a decree of divorce. Shardathen married the appellant. It is in his evidence that Sharda’s marital life wassmooth. He went on to state that Sharda died accidentally after one and halfmonth of marriage with the appellant. According to him, Sharda caught firewhile she was engaged in cooking. He went on to state that on receipt of heradmission to the hospital, he rushed there immediately. He talked to her.She told him to have caught fire accidentally.15.The witness was declared to have not been supporting theprosecution. His attention was drawn to certain portion in his police6 APEAL-818-19.odtstatement. He disowned to have had stated the same. The same wasnothing but the appellant to have made demand of Rs.1 lakh and thedeceased disclosed him to have been set on fire by the appellant. Theevidence of P.W.1 – Santosh, brother of the deceased, does not support theprosecution.16.Same is the case of P.W.2- Baban. He too was the close relationof deceased – Sharda. It is in his evidence that Sharda had smooth maritallife. After two months of her marriage, she suffered burns while cooking foodon hearth. He denied his wife to have informed him that she was told bySharda to have been set ablaze by the appellant. He too was declared to benot supporting the prosecution. P.W.2 – Baban’s wife has not been examinedas witness.17.Same is the case of P.W.3 – Bhagwan, father of deceased –Sharda. His evidence is on the lines of evidence of P.W.1 and P.W.2.According to him, Sharda died accidentally. He went on to state that whileSharda was engaged in cooking, clothes on her person caught fireaccidentally. Nothing could be brought on record from his cross-examinationconducted by learned A.P.P., that would help prosecution.18.As such, the father, real brother and other relatives of thedeceased did not support the prosecution. According to them, the deceaseddied accidentally. P.W.4 – Datta is a witness to scene of offencepanchanama (Exh.30). His evidence indicates that scene of offence7 APEAL-818-19.odtpanchanama was drawn on 17th February, 2016 by 04:30 p.m. It is in hisevidence that a five liter kerosene can, a small plastic can and burnt piecesof saree besides half burnt match stick were recovered from the spot.According to him, the plastic can was in standing position. It had a cork on it.The can even contained kerosene.19.True, the C.A. report (Exh.63) indicates seized articles to havekerosene residues. The question is whether we can jump to the conclusionthat it was the appellant, who doused the deceased with kerosene and shedied thereby. To reach to such conclusion, we have only evidence in thenature of statement of the deceased (F.I.R.-cum-dying declaration, Exh.34)recorded by P.W.5 – Gajanan, Executive Magistrate. It is in his evidencethat he was Nayab Tahasildar in the Office of Collectorate, Akola. At 01:50p.m. on 14th February, 2016 he received a requisition (Exh.33) from thepolice officer for recording of statement of an injured. He, therefore, rushedto the hospital. He asked doctor on duty to examine burnt patient and statehim whether she was in a fit mental state to make a statement. It is further inhis evidence that the doctor on duty, accordingly examined her before andafter recording of statement by him. He went on to state that the doctorcertified her to have been conscious oriented both, before and after recordingof her statement (Exh.34).20.Exhibit 33 is a requisition letter made by an police officer to theTahasildar, Akola. It was received by office of Tahasildar at 01:50 p.m. on8 APEAL-818-19.odt14th February, 2016. Whereas, the dying declaration (Exh.34) indicatesP.W.5 – Gajanan to have requested the medical officer on duty at 01:45 p.m.to certify whether Sharda was conscious oriented to make a statement. Therequest made by P.W.5 – Gajanan to the Medical Officer appears to havebeen made even before he received requisition (Exh.33). He did not offerany explanation in that regard. True, P.W.7 – Dr. Mohd. Imran testified tohave had examined Sharda and certified her to be conscious oriented tomake a statement. He referred to his endorsement appearing on the dyingdeclaration (Exh.34).21.Cross-examination of P.W.7 – Dr. Mohd. Imran, however indicatesthat he was on duty in Surgery Department. The patient was admitted in BurnWard. He was not a treating doctor of deceased – Sharda. He, therefore,did not place on record the medical papers of the deceased. According tohim, there was no independent doctor looking after the Burn Ward. The fact,however remains that he was not a treating doctor. It is further in hisevidence that a burnt patient is administered pain killers. He, however couldnot state what kind of treatment was extended to Sharda since he did nothave any medical papers with him. He admitted to have not been on duty inBurn Ward on 14th February, 2016.22.It is P.W.8 – Avinash, Investigating Officer, who produced inevidence medical papers (Exh.53). For want of examination of a treatingdoctor of deceased Sharda, prejudice has necessarily been caused to theappellant in his defence. Had the treating doctor been examined, it could9 APEAL-818-19.odthave been brought on record as to what kind of treatment the deceased wasextended at the relevant time. We have reason to observe so for the reasonthat in the medical papers (Exh.53), the history has been given as,“accidental burn”. It is reiterated that for the reasons best known to theInvestigating Officer, he registered the crime post demise of Sharda i.e. threedays after the alleged crime was committed. The record indicates thestatements of father, brother and other relations of the deceased wererecorded more than two weeks after the incident. As such, we have onlyevidence in the nature of F.I.R.-cum-dying declaration (Exh.34) given by thedeceased, which reads as under :-“ मीघरीचुलीवरस्वयंपाककरीतहोती. तेवढयातमाझानवरासारंगमाणि(cid:25)कगरड घरीआलावत्यानेघरातीलघासलेटचीकॅनआ(cid:25)ूनमाझ्याअंगावरघासलेटटाकले. त्यामुळेमीजळालीआहे. आमचीघरीनेहमीको(cid:25)त्याहीकार(cid:25)ावरूनभांड(cid:25)ेहोतहोती. त्यामुळेमाझ्यानवरानेचमलाजाळलेआहे. मीखरेसांगते. नवऱ्याव्यतितरिरक्त माझाको(cid:25)ावरहीआरोपनाही.”23.It has already been observed that P.W.5 – Gajanan, ExecutiveMagistrate, who recorded the F.I.R.-cum-dying declaration , had received therequisition at 01:50 p.m., whereas he requested the medical officer toexamine Sharda was timed 01:45 p.m. The distance between his office andcivil hospital has not been brought on record. Let us assume that it musthave at least taken him ten minutes to reach the hospital post receipt ofrequisition. The requisition was also received by Tahasildar and not byP.W.5 – Gajanan himself. According to P.W.5, he recorded every matter thatwas stated by the deceased as it is. While recording the name of deceased,her village, taluka and district, he noted it down as, “Khairkheda, Tq. Risod,10 APEAL-818-19.odtDist. Washim. Then he erased it down on his own and replaced ‘Washim” by“Hingoli”. Learned counsel for the appellant has, therefore, every reason tocontend that the said matter has been written by P.W.5 himself withoutenquiring with deceased – Sharda.24.In case of Khushal Rao Vs. State of Bombay, AIR 1958 SC 22,it has been observed thus :-“(D)Evidence Act (1 of 1872), S.32 – Dying declaration – Value.It cannot be laid down as an absolute rule of law that a dyingdeclaration cannot form the sole basis of conviction unless itis corroborated; each case must be determined on its ownfacts keeping in view the circumstances in which the dyingdeclaration was made; it cannot be laid down as a generalproposition that a dying declaration is a weaker kind ofevidence than other pieces of evidence; a dying declarationstands on the same footing as another piece of evidence andhas to be judged in the light of surrounding circumstances andwith reference to the principles governing the weighing ofevidence; a dying declaration which has been recorded by acompetent magistrate in the proper manner, that is to say,inthe form of questions and answers, and, as far as practicable,in the words of the maker of the declaration, stands on amuch higher footing than a dying declaration which dependsupon oral testimony which may suffer from all the infirmities ofhuman memory and human character, and in order to test thereliability of a dying declaration, the Court has to keep in view,the circumstances like the opportunity of the dying man forobservation, whether the capacity of the man to remember thefacts stated, had not been impaired at the time he was makingthe statement, by circumstances beyond his control; that thestatement has been consistent throughout if he had severalopportunities of making a dying declaration apart from theofficial record of it; and that the statement had been made atthe earliest opportunity and was not the result of tutoring byinterested parties. AIR 1940 Mad, 196, ApprovedAnno: C.JI. Ev.Act S.32 N.9.11 APEAL-818-19.odt(E)Evidence Act (1 of 1872), S.32 – Dying declaration –Corroboration.In order to pass the test of reliability, a dying declaration hasto be subjected to a very close scrutiny, keeping in view thefact that the statement has been made in the absence of theaccused who had no opportunity of testing the veracity of thestatement by cross-examination. But once; the Court hascome to the conclusion that the dying declaration was thetruthful version as to the circumstances of the death and theassailants of the victim, there is no question of furthercorroboration. If, on the other hand, the court, after examiningthe dying declaration in all its aspects, and testing its veracity,has come to the conclusion that it is not reliable by itself, andthat it suffers from an infirmity, then, without corroborationarises not from any inherent weakness of a dying declarationas a piece of evidence, but from the fact that the court, in agiven case, has come to the conclusion that particular dyingdeclaration was not free from the infirmities. Observations inA.I.R. 1953 S.C. 420, held to be in the nature of obiter.Anno: C.J.I. Evi.Act S.32 No.9. Paras”25.In our view, dying declaration (Exh.34) recorded by P.W.5 –Gajanan, inspires no confidence for number of reasons. The prosecutioncase is based on the F.I.R.-cum-dying declaration made by the deceased.The time recorded thereon and corrections made by P.W.5, who recordedthe same indicate his evidence is not fit to be acted upon. All the closerelations of the deceased from her parental side testified her to have met withan accidental death. True, they appeared to have been won over. Thetreating doctor was not examined. The one, who certified as to the patient’sfitness, was not her treating doctor. He was even not on duty in the BurnWard on the given day. In fact, he was on duty in Surgical Ward. Inspite ofthe incident to have taken place on 14th February, 2016, the F.I.R. wasregistered three days thereafter that too post demise of the victim. Same12 APEAL-818-19.odtsuggests her relations from parental side did not have any grievance againstthe appellant. P.W.8 – Avinash, Investigating Officer, himself testified that herrelations told him that they themselves would come to give statementslateron. The record indicates their statements to have been recorded morethan two weeks after the incident. The C.A. reports pertain to the articlesthose were seized three days after the incident. The prosecution evidenceinspires no confidence. For all these reasons, we are not at one with thefindings recorded by the trial Court.26.Before parting with, we highly appreciate the able assistancegiven by Mr. S.J. Salunke, learned counsel appointed to represent appellant.27.In the result, we pass the following order :-ORDER(I)Criminal appeal is allowed.(II)Impugned judgment and order dated 15th July, 2019 passedby Additional Sessions Judge, Hingoli in Sessions Case No.34 of 2016 thereby convicting the appellant, is hereby setaside.(III)Appellant is acquitted of the offence punishable underSection 302 of the Indian Penal Code.(IV)Appellant shall be released forthwith, if not required in anyother case.(V)Fine amount paid, if any, be refunded to the appellant.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD13