Full Judgment Text
[1]
2005:BHC-AS:8949-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995
Ramesh Chaitram Shelar,
Residing at Shemali,
Taluka Satana, District Nasik. ..Appellant
(Orig. accused )
V/s.
The State of Maharashtra ..Respondent.
Mr.P.K. Dhakephalkar for the Appellant.
Mr.D.R. More, A.P.P. for the Respondent/State.
CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, &
ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ.
DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005.
ORAL JUDGMENT ( PER ANOOP V. MOHTA, J.)
. The appellant was accused of murdering his wife
Sushila ( referred hereinafter " the deceased"), by
setting her ablaze. By the impugned judgment and order
dated 12/6/1995, the learned Sessions Judge, has
convicted the appellant for the offence punishable under
section 302 and Section 498-A of the Indian Penal Code
(IPC). Therefore, this appeal.
2. The deceased was residing with the appellant,
two sons and her mother-in-law in the small two- room
house at Shemali, Taluka Satana, District Nasik. The
deceased was resisting the insistence of the appellant
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for the divorce, as he wanted to marry one Surekha, with
whom he had illicit relation. The appellant was
harassing and beating the deceased for the same. They
were quarrelling regularly on this count. The reasons
for their quarrel was known to the neighbours (P.W.2 to
P.W. 6).
3. On 26/9/1989, at 12.30 a.m., just after
midnight, the appellant ablazed the deceased, after
pouring kerosene on her, when she was sleeping with
their son Tushar. A neighbour, Vasant (P.W. 5), who
was residing in the adjoining house of the deceased,
heard shouts as "save me save me". He rushed and saw
that the deceased was burning out side the house. He
therefore, took out "Godhadi" from his house and tried
hard to extinguish the fire. But the fire could not be
extinguished completely. In the meantime, another
neighbour, Dadabhau reached to the spot and able to
extinguished the fire. Vasant, (P.W. 5) thereafter,
went and called the brother of the Sarpanch, Ramesh
(P.W. 2). Both reached to the spot and when enquired
with the deceased, she expressed that," get yourself
understand". Another neighbour, Bharat (P.W. 3), when
reached also found the deceased in burning condition.
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She was crying and telling that her husband set her on
fire. The appellant was not present on the spot.
P.W.2, Ramesh went and informed the Police Station,
Satana. The police reached on the spot. The deceased
had asked Ramesh, P.W. 2 to call her parents. The
police took the deceased and her son to the hospital at
Satana and admitted them in the hospital at 2.15 a.m.
4. Police Head Constable P.W. 7, on information
from the hospital at Satana, sent Police Head Constable
Bhoye and Honorary Magistrate (hereinafter referred
"H.M.") Mr. Pakale, (P.W. 4) for recording a dying
declaration (referred hereinafter as "first dying
declaration") of the deceased. The said first D.D.
(Exh.28) was recorded on 27/9/1989, in question and
answer form in Marathi language. The said first D.D.
was scribed in Marathi by the Police Head Constable, as
H.M’s eye sight was weak, and his hands were cramping.
Dr. Hemant (P.W. 8) had granted due permission for
recording the first dying declaration. The deceased had
again stated that her husband set her on fire, as he
wanted to perform second marriage. The deceased had put
thumb-impression on the said statement. It is signed by
the H.M. Dr. Hemant has also endorsed and signed it.
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This Doctor has also endorsed on the top of the
statement that "the patient is conscious and is in
position to give statement". The said endorsement was
given after examining the patient. In presence of Dr.
Hemant, the H.M. had noted the first dying declaration.
Dr. Hemant after basic treatment, had referred the
deceased to Civil Hospital, Nasik.
5. On 27/9/1989 at about 6 a.m., the Special
Executive Magistrate (referred hereinafter " SJM"),
Jayprakash, P.W, 9, was called by a Police Head
Countable,(P.W. 6) ( Shaikh) from Bhadrakali Police
Station to record an dying declaration (referred
hereinafter as "second dying declaration") (Exh.46) of
the deceased. Dr. Vasant Vaidya (PW 10) was on duty.
After due examination and endorsement to the effect,
that she was in a position to make the statement, the
SJM had recorded the second dying declaration. Before
recording, the SJM had, asked the doctor, and the police
to leave the room. All the necessary questions and
answers were exchanged in marathi. She was in a
conscious condition. The deceased had reiterated that
her husband-appellant set her on fire, as he wanted to
marry with Surekha. The deceased made some additional
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statements for the first time in this dying declaration.
After completion of the recording, at about 7 to 7.30
a.m., a thumb-impression of the deceased was taken on
it. Dr. Vaidya again examined the patient and put his
signature after the endorsement about her stable and fit
condition to give the statement (Eh.46). The dying
declaration thereafter was forwarded alongwith Yadi
Exh.47.
6. The parents of the deceased reached to the
Nasik, Civil Hospital on 27/9/1989 at about 8 a.m. The
deceased informed them, at 8.30 a.m., about the incident
and the role of the appellant. As per P.W. 6-Tanaji,
the father of the deceased, she was in conscious
condition to speak and to make statement. At 4 p.m. on
the same day, the deceased succumbed to the burn
injuries. The post-mortem was conducted by P.W. 11 Dr.
Sunil Shah. The cause of death was, shock due to burn
of 96%, as recorded in post-mortem report and
certificate (Exh. 51 and 50).
7. The spot panchanama was prepared on 27/9/1989 by
P.W. 12- Rajendra, an Investigating Officer (I.O.)
(Exh. 23). The seizure panchanama of muddemal articles
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Exh.23 was also prepared. The articles and seized
muddemal were sent to Chemical Analyser. The C.A.
report is at Exh. 55. He recorded the statement of 8
witnesses. After receipt of the death information on
28/9/1989, the offence was registered under Section 302
of IPC, as crime No. 161/1989. I.O. received the
inquest panchanama and the dying declarations on
30/9/1989. The map of the spot of incident was prepared
by the Tahasildar on 19/10/1989. The accused was
arrested on 24/10/1989, after his discharge from the
hospital, as he had also received 22% burn-injuries.
The statement of the parents of the deceased was
recorded on 20/12/1989. After completion of the
investigation, the charge-sheet was filed. The accused
had denied the charges and pleaded not guilty. His
defence was of total denial. His further defence was
that he tried to extinguish the fire and the relatives
of the deceased deposing against him falsely. No
defence witness was examined.
8. The prosecution has examined 12 witnesses in
support of the case. The learned Sessions Judge, after
considering the material on the record and basically,
two dying declarations of the deceased Exh. 28 and 46,
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convicted the appellant for the offence punishable under
Section 302 of IPC and sentenced him to suffer rigorous
imprisonment for life and to pay fine of Rs. 500/- in
default to suffer rigorous imprisonment for two months.
The appellant has also been convicted for the offence
punishable under section 498A of IPC and sentenced him
to suffer rigorous imprisonment for two years and to pay
fine of Rs. 500/- in default to suffer rigorous
imprisonment for two months. The appellant was
acquitted of the offence punishable under section 307 of
IPC.
9. Heard the learned Counsel, Mr. P.K.
Dhakephalkar for the appellant and the learned A.P.P.
Mr. D.R. More for the respondent/State. We have gone
through the record in extenso. After considering the
rival submissions made by the Counsel appearing for the
respective parties, we are also of the view, that the
prosecution has proved the guilt of the appellant. The
reasoning given by the learned Sessions Judge, in the
facts and circumstances of the case, is correct.
Therefore, we are confirming the order of conviction by
recording the following reasons.
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10. The dying declarations and its contents Exh.28
dated 27/9/1989, recorded at 2.30 a.m. and Exh.46 dated
27/9/1989 recorded at 7 a.m., are the basic foundation
for the conviction. The same have been corroborated by
the other evidence, including the medical evidence. It
is a settled law that the dying declaration is
admissible under section 32 of the Evidence Act, subject
to strict scrutiny and closest circumspection to the
statement as its truth cannot be tested by a
cross-examination. Any tutoring or prompting also needs
a close scrutiny, in the facts and circumstances. It is
also necessary to satisfy that the deceased was in a fit
state of mind to make a statement, apart from his or her
consciousness. But the solemnity and sanctity attached
to the words of a dying person also cannot be
overlooked. After all these scrutinies, if a Judge is
satisfied that the dying declaration is true and
voluntary, the person can be convicted based upon the
same. The dying declaration recorded by the authorised
Magistrate in proper manner, after exchanging the
requisite questions and answers and by following and
complying with all the necessary formalities and with
such endorsement, can not be skate over. The Apex
Court’s decision in 1976 Cr. L.J. 1548 ( K. 1976 Cr. L.J. 1548 ( K. 1976 Cr. L.J. 1548 ( K.
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Ramchandra Reddy and another V. The Public Prosecutor)
Ramchandra Reddy and another V. The Public Prosecutor) Ramchandra Reddy and another V. The Public Prosecutor)
once and again reiterated the above principles, as based
upon the Apex Court’s decision. AIR 1958 S.C. 22 ( AIR 1958 S.C. 22 ( AIR 1958 S.C. 22 (
Khushal Rao V. State of Bombay) Khushal Rao V. State of Bombay). The Apex Court has Khushal Rao V. State of Bombay)
again elaborated the said principles in 2004 AIR SCW 2004 AIR SCW
2004 AIR SCW
7396 ( Muthu Kutty and another V. State by Inspector of 7396 ( Muthu Kutty and another V. State by Inspector of 7396 ( Muthu Kutty and another V. State by Inspector of
Police Tamil Nadu) Police Tamil Nadu). Police Tamil Nadu)
11. The first dying declaration Exh.28 recorded by
P.W.4, the H.M. on 27/9/1989, even though scribed by
the Police Head Constable, was recorded in presence of
the Doctor P.W 8, after obtaining the due permission
from the said Doctor and after due exchanges of the
questions. The statement was recorded in Marathi, the
known language of the deceased. She made positive
statement that her husband setting her on fire, as he
wanted to marry second time and he was always harassing
for the same. The first dying declaration was duly
endorsed and signed by the H.M. The Thumb-impression of
the deceased was also taken on the same, after reading
the contents to her satisfaction that it was written as
per her say. She also stated that her husband Ramesh
and their son Tushar was in the house, when her husband
set her on fire by pouring kerosene. Merely because,
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there was no endorsement made below the thumb-impression
of the deceased, as sought to be contended by the
Counsel appearing for the appellant, the whole statement
cannot be discarded. It also cannot be discarded, as it
was written in Marathi language by the said Police Head
Constable. Even though, she was also replying in
"Airani" language as extracted in the cross-examination
of P.W.4. There is a deposition to the effect that she
was also answering in Marathi language. The H.M’s.
weak eye sight, age about 72 years and cramping hands,at
the relevant time, on these counts also the first dying
declaration in question cannot be over looked. This
procedural lacuna in the facts and circumstances of the
case, nowhere disturbed the sanctity and solemnity of
the dying declaration. Dr.Hemant Haralkar (P.W.8) has
categorically stated that he had examined the patient,
before and after recording the statement.The doctor has
supported the prosecution case, that the deceased was
admitted in the hospital on 27/9/1989 at about 2.15 a.m.
and he had given treatment and informed the police.
This Doctor has categorically stated that the patient
was in a position to give statement. This Doctor has
put necessary endorsement before and also after
recording the statement of the deceased and signed the
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same. This Doctor has deposed that the deceased was
referred to the Civil Hospital, Nasik as her condition
was critical. There is nothing on the record to discard
or disbelieve the evidence of these two witnesses P.W.
4 and P.W. 8.
12. The sound mental condition and ability to make
the statement and consciousness of the patient, if
endorsed and recorded by the Doctor, in such cases, in
absence of such specific endorsement by the H.M. or
such Magistrate, would not affect the said dying
declaration.
13. The second dying declaration was recorded in the
Civil Hospital, Nasik by the SEM at 7 a.m. on
27/9/1989. The P.H.C. had called the SEM as per
Exh.47. Dr. Vaidya - P.W. 10 was on duty who examined
and endorsed on Exh.46 that the deceased was conscious
and in a position to speak. The SEM requested the
Doctor, the police, and others to go out of the ward.
No one was present in the room except the deceased and
the SEM. The SEM after completing the essential
formalities, recorded Exh. 46 in the question and
answer form. The deceased in the second D.D. stated
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that when she was sleeping, the husband wake her up and
insisted for a signature on the divorce papers and also
asked to bring Rs. 4000/- from her parents. The
deceased resisted the same by stating that it would be
difficult for her poor parents to fulfil the money
demand. The appellant thereafter, poured kerosene and
set her on fire by a match stick. She further stated
that as she was crying and shouting, her husband
appellant ran out. She was unaware who extinguished the
fire. She further stated that their son who was
sleeping with her, was also burnt; that she was taken
to the Government Hospital at Satana; that after some
time she was brought to the Government Hospital at
Nasik. This statement was thereafter read over and her
thumb-impression was also taken. Dr. Vaidya was called
and he again endorsed after examining that the patient
was able to give the statement. Dr. Vaidya has further
deposed that it bears the thumbimpression of the
deceased and his signature. There is nothing brought on
the record, except minor discrepancy or omission or
variance to disbelieve or discard the unshaken evidence
of P.W.9 SEM and Dr. Vaidya-P.W. 10. On the contrary,
the deceased reiterated and maintained the allegations
and action of the appellant- her husband to the effect
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that he ablazed her by pouring kerosene, as she was
resisting to sign the divorce papers and the demand of
Rs. 4000/-.
14. As pointed out, the second Dying declaration for
the first time referred about the divorce paper, demand
of Rs. 4000/- and the presence of her mother-in-law at
the relevant time. The basic ingredients which are
matching and corroborating with the first dying
declaration that the appellant set her on fire by
pouring kerosene, when she was sleeping as he wanted to
marry second time, cannot be overlooked. This statement
goes to the root of the matter.The first dying
declaration also matches with the second dying
declaration to the effect that their son Tushar was also
got burn injuries, as he was sleeping with the deceased.
This further corroborates that the deceased was harassed
by the appellant and wanted to marry second time and
therefore, committed the crime in question. We are
satisfied that the second dying declaration also, as
duly recorded by SEM, in presence of Doctor, after
following before and after procedures of recording such
dying declaration is truthful and reliable. Some
additional statements made for the first time in the
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second dying declaration as noted above, no way affect
the first dying declaration and its contents. There are
no material contradictions some so called improvements,
if any, cannot affect the two dying declarations as
sought to be contended by the learned Counsel appearing
for the appellant. The deceased died on the same date
at 4 p.m. After going through the evidence and the
second dying declarations, we are convinced that there
is nothing on the record to show that the deceased was
not conscious or was not in sound state of mind. Both
the dying declarations were recorded in Marathi, the
known language of the deceased. Therefore, on this
count also, we are of the view that the dying
declarations are reliable. In view of this, we are also
satisfied that both the dying declaration are consistent
on main aspect and even, if there are some variance,
those according to us are not sufficient to discard
these two dying declarations Exh.28 and 46.
15. Another aspect which further supports the
prosecution case that both the dying declarations made
by the deceased when there were no close relatives or
any one present to influence or tutor her, at the
relevant time. Her parents reached at Nasik, Civil
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Hospital at 8 a.m. Second dying declaration was
recorded at 7 a.m.. The first dying declaration was
recorded at about 2.15 to 2.30 a.m. Both the dying
declarations were recorded at the earliest opportunity
and without any influence of any kind. Therefore, such
dying declarations and its contents need to be
respected. There is nothing brought on the record that
the deceased had falsely implicated the appellant-her
husband. There is no reason to doubt these two dying
declarations. There is nothing to doubt to its
genuinnes, as rightly observed by the learned Sessions
Judge, as all the necessary and material witnesses have
corroborated and supported the prosecution case fully.
All the witnesses have supported the prosecution case
and link the chain of circumstances, which are ;
(a) P.W.5-Vasant and P.W. 3- Bharat heard the shouts of
the deceased and ran towards the spot and saw that the
deceased was burning, out of the house. P.W. 5, Vasant
tried to extinguish the fire by Godhadi. The deceased
was crying and telling that her husband set her on fire.
(b) Tanaji P.W. 6, the father of the deceased has also
supported the prosecution case of ill-treatment and
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harassment as the appellant wants to perform second
marriage. This also corroborates with the evidence of
P.W..w.3 and P.W. 4.
(c) P.W.2,3 and 5 have corroborated the illicit
relations of the appellant, as narrated by the deceased.
The deceased in both the dying declarations Exh.28 and
46 narrated the ill-treatment and harassment caused by
the appellant, as he wanted to perform second marriage
and as the deceased resisted to sign the divorce deed
and or to fulfil the demand of money.
(d) P.W. 1 Bajirao also supports the panchanama, being
a panch witness and also supports that one Godhadi,
kerosene dabba, stove, pieces of saree, burn stick, cot
with burn string, were found on the spot.
(e) The appellant-husband was not present on the spot
even as per P.W. 3. P.W. 2, Ramesh reached to the
spot and went to inform the Police Station, Satana. The
deceased had also requested Ramesh to call her
parents.Police took the deceased and her son to the
Hospital at satana at about 2.15 a.m.
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(f) The Police witness Avinash Kulkarni, P.W. 7 links
the facts that after receipt of the Telephone message,
he sent PHC. Bhoye to call H.M. and thereafter the
crime was registered. H.M. (Mr. Pakale) (P.W. 4)
reached to Satana Hospital and recorded first dying
declaration of the deceased on 27/9/1989 Exh.28. Dr.
Hemant P.W. 8 was present in the Hospital at Satana.
The deceased had reiterated that her husband set her on
fire, as he wanted to perform second marriage.
(g) The other connecting materials which supports the
prosecution case, are the evidence of P.W. 12-
Rajendra,I.O. and all the necessary proved documents
like spot/seizure panchanama Exh.23, C.A. report
Exh.55, inquest panchanama, dying declaration Exh.28 and
46.
(h) SEM, P.W. 9, Jayprakash recorded the second dying
declaration at Civil Hospital Nasik, in presence of Dr.
Vaidya, P.W. 10 who was on the duty. All the necessary
formalities were completed before recording the second
dying declaration also. The due endorsement and
signature of Dr. P.W. 10 are on the second dying
declaration dated 27/9/1989.
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(i) On both the dying declarations there are endorsement
and the thumbimpression of the deceased. Both the
Doctors have made necessary endorsements before and
after recording the said dying declarations. The
deceased was in able and sound state of mind and was
conscious as per both the doctors.
(j) The burn injuries to the son Tushar as proved and
placed on the record also supports the dying declaration
of the deceased as well as the prosecution case, which
remained unshattered.
(k) The parents of the deceased reached at about 8 a.m.
on 27/9/1989 at the Civil Hospital, Nasik. There were
no relatives or any one present near the deceased at the
relevant time to influence or tutor her to make such
dying declarations.
(l) The cause of death was due to burn of 96% Exh.51 AND
50 as per p.W. 11, Dr. Sunil Shah.
(m) Independent witnesses, specially the neighbourers
have corroborated the deceased’s dying declarations
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apart from other evidence including of the medical
evidence. All these witnesses remained unshaken in
their cross-examinations therefore are reliable and
connect the appellant with the crime in question.
16. In view of two dying declarations and all the
connected circumstances, as proved and placed on the
record, merely because prosecution failed to give
justification to the 22% burn injuries to the appellant
in the facts and circumstances of the case, we are not
convinced to give any benefit to the appellant for the
same, even otherwise such non explanation in the present
case nowhere affect the prosecution case and contents of
the dying declarations in question. In the statement
under Section 313 of Cr.P.C., the appellant was unable
to explain and in fact denied all the events and
documents. The appellant in spite of the opportunity
failed to support his defence and also failed to give
proper explanation to the incident and his presence or
absence on the spot at the relevant time, including his
burn injuries, even though admittedly, he was arrested
on 24/10/1989 after he discharged from the hospital.
17. For the reasons recorded above, we are also of
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the view, that the prosecution has proved beyond
reasonable doubt that the appellant has committed the
offence in question, as defined under Section 498A of
IPC and under Section 302 of IPC.
18. In view of this we are declined to interfere
with the reasoning given by the learned Judge. There is
no substance in the appeal. The impugned Judgment and
order is maintained and confirmed. The appellant is
directed to surrender to his bail bond forthwith. The
appeal is dismissed.
[ S.S. PARKAR, J. ] [ S.S. PARKAR, J. ] [ S.S. PARKAR, J. ]
[ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995
Ramesh Chaitram Shelar,
Residing at Shemali,
Taluka Satana, District Nasik. ..Appellant
(Orig. accused )
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V/s.
The State of Maharashtra ..Respondent.
Mr.P.K. Dhakephalkar for the Appellant.
Mr.D.R. More, A.P.P. for the Respondent/State.
CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, &
ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ.
DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005.
P.C.
. For reasons separately recorded the following
order is passed.
. We decline to interfere with the reasoning given
by the learned Judge. There is no substance in the
appeal. The impugned Judgment and order is maintained
and confirmed. The appellant is directed to surrender
to his bail bond forthwith. The appeal is dismissed.
[ S.S. PARKAR, J. ] [ S.S. PARKAR, J. ]
[ S.S. PARKAR, J. ]
[ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.]
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2005:BHC-AS:8949-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995
Ramesh Chaitram Shelar,
Residing at Shemali,
Taluka Satana, District Nasik. ..Appellant
(Orig. accused )
V/s.
The State of Maharashtra ..Respondent.
Mr.P.K. Dhakephalkar for the Appellant.
Mr.D.R. More, A.P.P. for the Respondent/State.
CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, &
ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ.
DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005.
ORAL JUDGMENT ( PER ANOOP V. MOHTA, J.)
. The appellant was accused of murdering his wife
Sushila ( referred hereinafter " the deceased"), by
setting her ablaze. By the impugned judgment and order
dated 12/6/1995, the learned Sessions Judge, has
convicted the appellant for the offence punishable under
section 302 and Section 498-A of the Indian Penal Code
(IPC). Therefore, this appeal.
2. The deceased was residing with the appellant,
two sons and her mother-in-law in the small two- room
house at Shemali, Taluka Satana, District Nasik. The
deceased was resisting the insistence of the appellant
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for the divorce, as he wanted to marry one Surekha, with
whom he had illicit relation. The appellant was
harassing and beating the deceased for the same. They
were quarrelling regularly on this count. The reasons
for their quarrel was known to the neighbours (P.W.2 to
P.W. 6).
3. On 26/9/1989, at 12.30 a.m., just after
midnight, the appellant ablazed the deceased, after
pouring kerosene on her, when she was sleeping with
their son Tushar. A neighbour, Vasant (P.W. 5), who
was residing in the adjoining house of the deceased,
heard shouts as "save me save me". He rushed and saw
that the deceased was burning out side the house. He
therefore, took out "Godhadi" from his house and tried
hard to extinguish the fire. But the fire could not be
extinguished completely. In the meantime, another
neighbour, Dadabhau reached to the spot and able to
extinguished the fire. Vasant, (P.W. 5) thereafter,
went and called the brother of the Sarpanch, Ramesh
(P.W. 2). Both reached to the spot and when enquired
with the deceased, she expressed that," get yourself
understand". Another neighbour, Bharat (P.W. 3), when
reached also found the deceased in burning condition.
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[3]
She was crying and telling that her husband set her on
fire. The appellant was not present on the spot.
P.W.2, Ramesh went and informed the Police Station,
Satana. The police reached on the spot. The deceased
had asked Ramesh, P.W. 2 to call her parents. The
police took the deceased and her son to the hospital at
Satana and admitted them in the hospital at 2.15 a.m.
4. Police Head Constable P.W. 7, on information
from the hospital at Satana, sent Police Head Constable
Bhoye and Honorary Magistrate (hereinafter referred
"H.M.") Mr. Pakale, (P.W. 4) for recording a dying
declaration (referred hereinafter as "first dying
declaration") of the deceased. The said first D.D.
(Exh.28) was recorded on 27/9/1989, in question and
answer form in Marathi language. The said first D.D.
was scribed in Marathi by the Police Head Constable, as
H.M’s eye sight was weak, and his hands were cramping.
Dr. Hemant (P.W. 8) had granted due permission for
recording the first dying declaration. The deceased had
again stated that her husband set her on fire, as he
wanted to perform second marriage. The deceased had put
thumb-impression on the said statement. It is signed by
the H.M. Dr. Hemant has also endorsed and signed it.
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[4]
This Doctor has also endorsed on the top of the
statement that "the patient is conscious and is in
position to give statement". The said endorsement was
given after examining the patient. In presence of Dr.
Hemant, the H.M. had noted the first dying declaration.
Dr. Hemant after basic treatment, had referred the
deceased to Civil Hospital, Nasik.
5. On 27/9/1989 at about 6 a.m., the Special
Executive Magistrate (referred hereinafter " SJM"),
Jayprakash, P.W, 9, was called by a Police Head
Countable,(P.W. 6) ( Shaikh) from Bhadrakali Police
Station to record an dying declaration (referred
hereinafter as "second dying declaration") (Exh.46) of
the deceased. Dr. Vasant Vaidya (PW 10) was on duty.
After due examination and endorsement to the effect,
that she was in a position to make the statement, the
SJM had recorded the second dying declaration. Before
recording, the SJM had, asked the doctor, and the police
to leave the room. All the necessary questions and
answers were exchanged in marathi. She was in a
conscious condition. The deceased had reiterated that
her husband-appellant set her on fire, as he wanted to
marry with Surekha. The deceased made some additional
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[5]
statements for the first time in this dying declaration.
After completion of the recording, at about 7 to 7.30
a.m., a thumb-impression of the deceased was taken on
it. Dr. Vaidya again examined the patient and put his
signature after the endorsement about her stable and fit
condition to give the statement (Eh.46). The dying
declaration thereafter was forwarded alongwith Yadi
Exh.47.
6. The parents of the deceased reached to the
Nasik, Civil Hospital on 27/9/1989 at about 8 a.m. The
deceased informed them, at 8.30 a.m., about the incident
and the role of the appellant. As per P.W. 6-Tanaji,
the father of the deceased, she was in conscious
condition to speak and to make statement. At 4 p.m. on
the same day, the deceased succumbed to the burn
injuries. The post-mortem was conducted by P.W. 11 Dr.
Sunil Shah. The cause of death was, shock due to burn
of 96%, as recorded in post-mortem report and
certificate (Exh. 51 and 50).
7. The spot panchanama was prepared on 27/9/1989 by
P.W. 12- Rajendra, an Investigating Officer (I.O.)
(Exh. 23). The seizure panchanama of muddemal articles
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[6]
Exh.23 was also prepared. The articles and seized
muddemal were sent to Chemical Analyser. The C.A.
report is at Exh. 55. He recorded the statement of 8
witnesses. After receipt of the death information on
28/9/1989, the offence was registered under Section 302
of IPC, as crime No. 161/1989. I.O. received the
inquest panchanama and the dying declarations on
30/9/1989. The map of the spot of incident was prepared
by the Tahasildar on 19/10/1989. The accused was
arrested on 24/10/1989, after his discharge from the
hospital, as he had also received 22% burn-injuries.
The statement of the parents of the deceased was
recorded on 20/12/1989. After completion of the
investigation, the charge-sheet was filed. The accused
had denied the charges and pleaded not guilty. His
defence was of total denial. His further defence was
that he tried to extinguish the fire and the relatives
of the deceased deposing against him falsely. No
defence witness was examined.
8. The prosecution has examined 12 witnesses in
support of the case. The learned Sessions Judge, after
considering the material on the record and basically,
two dying declarations of the deceased Exh. 28 and 46,
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[7]
convicted the appellant for the offence punishable under
Section 302 of IPC and sentenced him to suffer rigorous
imprisonment for life and to pay fine of Rs. 500/- in
default to suffer rigorous imprisonment for two months.
The appellant has also been convicted for the offence
punishable under section 498A of IPC and sentenced him
to suffer rigorous imprisonment for two years and to pay
fine of Rs. 500/- in default to suffer rigorous
imprisonment for two months. The appellant was
acquitted of the offence punishable under section 307 of
IPC.
9. Heard the learned Counsel, Mr. P.K.
Dhakephalkar for the appellant and the learned A.P.P.
Mr. D.R. More for the respondent/State. We have gone
through the record in extenso. After considering the
rival submissions made by the Counsel appearing for the
respective parties, we are also of the view, that the
prosecution has proved the guilt of the appellant. The
reasoning given by the learned Sessions Judge, in the
facts and circumstances of the case, is correct.
Therefore, we are confirming the order of conviction by
recording the following reasons.
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[8]
10. The dying declarations and its contents Exh.28
dated 27/9/1989, recorded at 2.30 a.m. and Exh.46 dated
27/9/1989 recorded at 7 a.m., are the basic foundation
for the conviction. The same have been corroborated by
the other evidence, including the medical evidence. It
is a settled law that the dying declaration is
admissible under section 32 of the Evidence Act, subject
to strict scrutiny and closest circumspection to the
statement as its truth cannot be tested by a
cross-examination. Any tutoring or prompting also needs
a close scrutiny, in the facts and circumstances. It is
also necessary to satisfy that the deceased was in a fit
state of mind to make a statement, apart from his or her
consciousness. But the solemnity and sanctity attached
to the words of a dying person also cannot be
overlooked. After all these scrutinies, if a Judge is
satisfied that the dying declaration is true and
voluntary, the person can be convicted based upon the
same. The dying declaration recorded by the authorised
Magistrate in proper manner, after exchanging the
requisite questions and answers and by following and
complying with all the necessary formalities and with
such endorsement, can not be skate over. The Apex
Court’s decision in 1976 Cr. L.J. 1548 ( K. 1976 Cr. L.J. 1548 ( K. 1976 Cr. L.J. 1548 ( K.
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[9]
Ramchandra Reddy and another V. The Public Prosecutor)
Ramchandra Reddy and another V. The Public Prosecutor) Ramchandra Reddy and another V. The Public Prosecutor)
once and again reiterated the above principles, as based
upon the Apex Court’s decision. AIR 1958 S.C. 22 ( AIR 1958 S.C. 22 ( AIR 1958 S.C. 22 (
Khushal Rao V. State of Bombay) Khushal Rao V. State of Bombay). The Apex Court has Khushal Rao V. State of Bombay)
again elaborated the said principles in 2004 AIR SCW 2004 AIR SCW
2004 AIR SCW
7396 ( Muthu Kutty and another V. State by Inspector of 7396 ( Muthu Kutty and another V. State by Inspector of 7396 ( Muthu Kutty and another V. State by Inspector of
Police Tamil Nadu) Police Tamil Nadu). Police Tamil Nadu)
11. The first dying declaration Exh.28 recorded by
P.W.4, the H.M. on 27/9/1989, even though scribed by
the Police Head Constable, was recorded in presence of
the Doctor P.W 8, after obtaining the due permission
from the said Doctor and after due exchanges of the
questions. The statement was recorded in Marathi, the
known language of the deceased. She made positive
statement that her husband setting her on fire, as he
wanted to marry second time and he was always harassing
for the same. The first dying declaration was duly
endorsed and signed by the H.M. The Thumb-impression of
the deceased was also taken on the same, after reading
the contents to her satisfaction that it was written as
per her say. She also stated that her husband Ramesh
and their son Tushar was in the house, when her husband
set her on fire by pouring kerosene. Merely because,
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[10]
there was no endorsement made below the thumb-impression
of the deceased, as sought to be contended by the
Counsel appearing for the appellant, the whole statement
cannot be discarded. It also cannot be discarded, as it
was written in Marathi language by the said Police Head
Constable. Even though, she was also replying in
"Airani" language as extracted in the cross-examination
of P.W.4. There is a deposition to the effect that she
was also answering in Marathi language. The H.M’s.
weak eye sight, age about 72 years and cramping hands,at
the relevant time, on these counts also the first dying
declaration in question cannot be over looked. This
procedural lacuna in the facts and circumstances of the
case, nowhere disturbed the sanctity and solemnity of
the dying declaration. Dr.Hemant Haralkar (P.W.8) has
categorically stated that he had examined the patient,
before and after recording the statement.The doctor has
supported the prosecution case, that the deceased was
admitted in the hospital on 27/9/1989 at about 2.15 a.m.
and he had given treatment and informed the police.
This Doctor has categorically stated that the patient
was in a position to give statement. This Doctor has
put necessary endorsement before and also after
recording the statement of the deceased and signed the
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[11]
same. This Doctor has deposed that the deceased was
referred to the Civil Hospital, Nasik as her condition
was critical. There is nothing on the record to discard
or disbelieve the evidence of these two witnesses P.W.
4 and P.W. 8.
12. The sound mental condition and ability to make
the statement and consciousness of the patient, if
endorsed and recorded by the Doctor, in such cases, in
absence of such specific endorsement by the H.M. or
such Magistrate, would not affect the said dying
declaration.
13. The second dying declaration was recorded in the
Civil Hospital, Nasik by the SEM at 7 a.m. on
27/9/1989. The P.H.C. had called the SEM as per
Exh.47. Dr. Vaidya - P.W. 10 was on duty who examined
and endorsed on Exh.46 that the deceased was conscious
and in a position to speak. The SEM requested the
Doctor, the police, and others to go out of the ward.
No one was present in the room except the deceased and
the SEM. The SEM after completing the essential
formalities, recorded Exh. 46 in the question and
answer form. The deceased in the second D.D. stated
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[12]
that when she was sleeping, the husband wake her up and
insisted for a signature on the divorce papers and also
asked to bring Rs. 4000/- from her parents. The
deceased resisted the same by stating that it would be
difficult for her poor parents to fulfil the money
demand. The appellant thereafter, poured kerosene and
set her on fire by a match stick. She further stated
that as she was crying and shouting, her husband
appellant ran out. She was unaware who extinguished the
fire. She further stated that their son who was
sleeping with her, was also burnt; that she was taken
to the Government Hospital at Satana; that after some
time she was brought to the Government Hospital at
Nasik. This statement was thereafter read over and her
thumb-impression was also taken. Dr. Vaidya was called
and he again endorsed after examining that the patient
was able to give the statement. Dr. Vaidya has further
deposed that it bears the thumbimpression of the
deceased and his signature. There is nothing brought on
the record, except minor discrepancy or omission or
variance to disbelieve or discard the unshaken evidence
of P.W.9 SEM and Dr. Vaidya-P.W. 10. On the contrary,
the deceased reiterated and maintained the allegations
and action of the appellant- her husband to the effect
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[13]
that he ablazed her by pouring kerosene, as she was
resisting to sign the divorce papers and the demand of
Rs. 4000/-.
14. As pointed out, the second Dying declaration for
the first time referred about the divorce paper, demand
of Rs. 4000/- and the presence of her mother-in-law at
the relevant time. The basic ingredients which are
matching and corroborating with the first dying
declaration that the appellant set her on fire by
pouring kerosene, when she was sleeping as he wanted to
marry second time, cannot be overlooked. This statement
goes to the root of the matter.The first dying
declaration also matches with the second dying
declaration to the effect that their son Tushar was also
got burn injuries, as he was sleeping with the deceased.
This further corroborates that the deceased was harassed
by the appellant and wanted to marry second time and
therefore, committed the crime in question. We are
satisfied that the second dying declaration also, as
duly recorded by SEM, in presence of Doctor, after
following before and after procedures of recording such
dying declaration is truthful and reliable. Some
additional statements made for the first time in the
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[14]
second dying declaration as noted above, no way affect
the first dying declaration and its contents. There are
no material contradictions some so called improvements,
if any, cannot affect the two dying declarations as
sought to be contended by the learned Counsel appearing
for the appellant. The deceased died on the same date
at 4 p.m. After going through the evidence and the
second dying declarations, we are convinced that there
is nothing on the record to show that the deceased was
not conscious or was not in sound state of mind. Both
the dying declarations were recorded in Marathi, the
known language of the deceased. Therefore, on this
count also, we are of the view that the dying
declarations are reliable. In view of this, we are also
satisfied that both the dying declaration are consistent
on main aspect and even, if there are some variance,
those according to us are not sufficient to discard
these two dying declarations Exh.28 and 46.
15. Another aspect which further supports the
prosecution case that both the dying declarations made
by the deceased when there were no close relatives or
any one present to influence or tutor her, at the
relevant time. Her parents reached at Nasik, Civil
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[15]
Hospital at 8 a.m. Second dying declaration was
recorded at 7 a.m.. The first dying declaration was
recorded at about 2.15 to 2.30 a.m. Both the dying
declarations were recorded at the earliest opportunity
and without any influence of any kind. Therefore, such
dying declarations and its contents need to be
respected. There is nothing brought on the record that
the deceased had falsely implicated the appellant-her
husband. There is no reason to doubt these two dying
declarations. There is nothing to doubt to its
genuinnes, as rightly observed by the learned Sessions
Judge, as all the necessary and material witnesses have
corroborated and supported the prosecution case fully.
All the witnesses have supported the prosecution case
and link the chain of circumstances, which are ;
(a) P.W.5-Vasant and P.W. 3- Bharat heard the shouts of
the deceased and ran towards the spot and saw that the
deceased was burning, out of the house. P.W. 5, Vasant
tried to extinguish the fire by Godhadi. The deceased
was crying and telling that her husband set her on fire.
(b) Tanaji P.W. 6, the father of the deceased has also
supported the prosecution case of ill-treatment and
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[16]
harassment as the appellant wants to perform second
marriage. This also corroborates with the evidence of
P.W..w.3 and P.W. 4.
(c) P.W.2,3 and 5 have corroborated the illicit
relations of the appellant, as narrated by the deceased.
The deceased in both the dying declarations Exh.28 and
46 narrated the ill-treatment and harassment caused by
the appellant, as he wanted to perform second marriage
and as the deceased resisted to sign the divorce deed
and or to fulfil the demand of money.
(d) P.W. 1 Bajirao also supports the panchanama, being
a panch witness and also supports that one Godhadi,
kerosene dabba, stove, pieces of saree, burn stick, cot
with burn string, were found on the spot.
(e) The appellant-husband was not present on the spot
even as per P.W. 3. P.W. 2, Ramesh reached to the
spot and went to inform the Police Station, Satana. The
deceased had also requested Ramesh to call her
parents.Police took the deceased and her son to the
Hospital at satana at about 2.15 a.m.
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[17]
(f) The Police witness Avinash Kulkarni, P.W. 7 links
the facts that after receipt of the Telephone message,
he sent PHC. Bhoye to call H.M. and thereafter the
crime was registered. H.M. (Mr. Pakale) (P.W. 4)
reached to Satana Hospital and recorded first dying
declaration of the deceased on 27/9/1989 Exh.28. Dr.
Hemant P.W. 8 was present in the Hospital at Satana.
The deceased had reiterated that her husband set her on
fire, as he wanted to perform second marriage.
(g) The other connecting materials which supports the
prosecution case, are the evidence of P.W. 12-
Rajendra,I.O. and all the necessary proved documents
like spot/seizure panchanama Exh.23, C.A. report
Exh.55, inquest panchanama, dying declaration Exh.28 and
46.
(h) SEM, P.W. 9, Jayprakash recorded the second dying
declaration at Civil Hospital Nasik, in presence of Dr.
Vaidya, P.W. 10 who was on the duty. All the necessary
formalities were completed before recording the second
dying declaration also. The due endorsement and
signature of Dr. P.W. 10 are on the second dying
declaration dated 27/9/1989.
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[18]
(i) On both the dying declarations there are endorsement
and the thumbimpression of the deceased. Both the
Doctors have made necessary endorsements before and
after recording the said dying declarations. The
deceased was in able and sound state of mind and was
conscious as per both the doctors.
(j) The burn injuries to the son Tushar as proved and
placed on the record also supports the dying declaration
of the deceased as well as the prosecution case, which
remained unshattered.
(k) The parents of the deceased reached at about 8 a.m.
on 27/9/1989 at the Civil Hospital, Nasik. There were
no relatives or any one present near the deceased at the
relevant time to influence or tutor her to make such
dying declarations.
(l) The cause of death was due to burn of 96% Exh.51 AND
50 as per p.W. 11, Dr. Sunil Shah.
(m) Independent witnesses, specially the neighbourers
have corroborated the deceased’s dying declarations
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[19]
apart from other evidence including of the medical
evidence. All these witnesses remained unshaken in
their cross-examinations therefore are reliable and
connect the appellant with the crime in question.
16. In view of two dying declarations and all the
connected circumstances, as proved and placed on the
record, merely because prosecution failed to give
justification to the 22% burn injuries to the appellant
in the facts and circumstances of the case, we are not
convinced to give any benefit to the appellant for the
same, even otherwise such non explanation in the present
case nowhere affect the prosecution case and contents of
the dying declarations in question. In the statement
under Section 313 of Cr.P.C., the appellant was unable
to explain and in fact denied all the events and
documents. The appellant in spite of the opportunity
failed to support his defence and also failed to give
proper explanation to the incident and his presence or
absence on the spot at the relevant time, including his
burn injuries, even though admittedly, he was arrested
on 24/10/1989 after he discharged from the hospital.
17. For the reasons recorded above, we are also of
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[20]
the view, that the prosecution has proved beyond
reasonable doubt that the appellant has committed the
offence in question, as defined under Section 498A of
IPC and under Section 302 of IPC.
18. In view of this we are declined to interfere
with the reasoning given by the learned Judge. There is
no substance in the appeal. The impugned Judgment and
order is maintained and confirmed. The appellant is
directed to surrender to his bail bond forthwith. The
appeal is dismissed.
[ S.S. PARKAR, J. ] [ S.S. PARKAR, J. ] [ S.S. PARKAR, J. ]
[ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995 CRIMINAL APPEAL NO.311 OF 1995
Ramesh Chaitram Shelar,
Residing at Shemali,
Taluka Satana, District Nasik. ..Appellant
(Orig. accused )
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[21]
V/s.
The State of Maharashtra ..Respondent.
Mr.P.K. Dhakephalkar for the Appellant.
Mr.D.R. More, A.P.P. for the Respondent/State.
CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, & CORAM : S.S. PARKAR, &
ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ. ANOOP V.MOHTA, JJ.
DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005. DATE : 5TH MAY, 2005.
P.C.
. For reasons separately recorded the following
order is passed.
. We decline to interfere with the reasoning given
by the learned Judge. There is no substance in the
appeal. The impugned Judgment and order is maintained
and confirmed. The appellant is directed to surrender
to his bail bond forthwith. The appeal is dismissed.
[ S.S. PARKAR, J. ] [ S.S. PARKAR, J. ]
[ S.S. PARKAR, J. ]
[ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.] [ANOOP V. MOHTA, J.]
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