Bombay High Court
Satwa Wakode vs The State Of Maharashtra on 23 January, 1996
Equivalent citations: 1996CRILJ4028
Author: S.P. Kulkarni
Bench: S.P. Kulkarni
JUDGMENT M.B. Ghodeswar, J.
1. The appellant has challenged the judgment and order dated 30-12-1991 passed by the Additional Sessions Judge, Pusad in Sessions Case No. 111 of 1990 convicting him for the offence punishable under S. 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and fine of Rs. 5,000/- i/d R.I. for one year for committing the murder of his wife Dhrupati.
2. The facts of the case in brief are as under :
The appellant-accused and his wife Dhrupati along with children were living in a hut at Arni, District Yavatmal. The parents of Dhrupati were also residing at Arni. The appellant was suspecting the character of his wife Dhrupati and on 26-3-1990 at about 6.00 p.m., he assaulted Dhrupati by means of spear head (Bhala), as a result of which Dhrupati sustained bleeding injuries. PW 14 Mangala whose house is near to the house of the accused, came there and went to the police station to lodge her report (Exhibit 81). On the basis of the said report, offence under S. 307 of the Indian Penal Code was registered. PW 20 Shri Keshaorao Idole, P.S.I. along with his staff, reached the spot and noticed Dhrupati having bleeding injuries. He immediately shifted Dhrupati to the Primary Health Centre, Arni, where Head Constable (B.No. 66) Panjabrao recorded the dying declaration of Dhrupati (Exhibit 56). PW 8 Dr. Hanumansing Bais examined her and referred Dhrupati to the General Hospital, Yavatmal. PW 10 Dr. Smt. Rekha Mundhada admitted her in the hospital. She found the condition of the patient unsatisfactory. Hence she issued requisition (Exhibit 50) to the Police Station Officer, Yavatmal to make arrangements for recording of dying declaration. The Tahsildar and Executive Magistrate recorded the dying declaration of Dhrupati (Exhibit 48) on 26-3-1990 at about 11.10 p.m. The accused was arrested on the same date. The blood stained clothes of the deceased were seized under Seizure Memo (Exhibit 16). P.S.I. Idhole prepared the spot panchanama (Exhibit 18). The blood stained clothes were found on the spot. The spear was recovered on the memorandum of the appellant-accused. P.S.I. recorded the statements of the witnesses and has also taken the photographs of the spot of incident through PW 4 Anil Ingole the photographer Dhrupati was receiving treatment in the General Hospital, Yavatmal till 10-5-1990. She was discharged from the hospital on 10-5-1990 and PW 5 Chintaman Gorlewar, Police Constable, brought her Discharge Report in the police station. Thereafter, Dhrupati was residing in her house at Arni. She died on 1-6-1990 at Arni. Gram Panchayat, Arni issued the extract of Birth-Death Register (Exhibit 91) of Dhrupati and P.S.I. Idhole seized it. P.S.I. Idhole sent the weapon i.e. spear-head to Dr. Hanumansing Bais (PW 8) for examination and his opinion. After completion of the investigation, he sent the seized property for chemical analysis and filed charge sheet on 26-6-1990 under Ss. 302, 307, 498-A and 506(2) of the Indian Penal Code on 31-8-1991. The accused pleaded not guilty and claimed to be tried.
3. The prosecution has examined in all 20 prosecution witnesses. PW 7 Laxmi daughter of accused, PW 14 Mangala, PW 15 Parwatibai, PW 16 Nanda, PW 17 Ramkrishna and PW 18 Shamrao are examined as eye-witnesses. Almost all the witnesses have not supported the prosecution and therefore, they are cross-examined on behalf of the prosecution. Nothing more is elicited in the cross-examination except the contradictions in their previous statements. PW 1 Dattatraya Nalge is a Panch on seizure of petticoat and saree of Dhrupati (Exhibit 16) which was blood stained. PW 2 Ajay Rathod also acted as a Panch on spot Panchanama (Exhibit 18) and some articles seized from the spot. PW 3 Barkat Tagale is also a Panch on memorandum of accused and recovery of spear head. PW 4 Anil Ingole is the photographer who has taken the photographs of spot of incident and who has proved the photographs. PW 5 Chintaman is the police constable who produced the discharge report of Dhrupati in the police station (Exhibit 35 and Exhibit 36) and also carried the property to the Chemical Analyser. PW 6 Dadarao is a Talathi who has drawn the map of the spot of incident. PW 8 Dr. Hanumansing Bais has examined Dhrupati in Public Health Centre, Arni and issued the injury certificate Exhibit 44. He has also examined the accused-appellant who had one abrasion over the right middle finger and issued Medical Certificate (Exhibit 45) in respect of the accused. PW 8 Dr. Hanumansing has examined Dhrupati and certified that there were lacerated wounds 12 in number (vide Exh. 41) on scalp right side, left thigh-left leg, forehead, left arm, nasal cavity, chest, abdomen, right index finger, left index finger, middle finger (left). He has also proved the injury certificate of the accused Exhibit 45. PW 9 Govind Gatalewar, Naib Tahsildar and Executive Magistrate has proved the so-called dying declaration of Dhrupati (Exhibit 48). PW 12 Head constable Panjabrao has also proved the dying declaration of Dhrupati (Exhibit 56).
4. PW 19 Jakir, Police Constable had taken Dhrupati to the District Government Hospital, Yavatmal from Primary Health Centre at Arni on the day of the incident i.e. 26-3-1990. PW 20 Keshaorao Idole, Investigating Officer, after the death of Dhrupati, obtained the extract of the Register of Death on 18-6-1990. The extract of the Register of Death (Exhibit 91) shows that Smt. Parvatabai w/o Shamrao Shinde the mother of the deceased, has given information about the death of Dhrupati on 18-6-1990. The column No. 14 about the cause of death is left blank. P.S.I. Idole has not stated when he got the knowledge about the death of Dhrupati. It is not known whether the dead body of Dhrupati was buried or lit on pyre. P.S.I. Idole has not stated anything what efforts he has taken for the post-mortem examination over the dead body of Dhrupati. In this case, the post-mortem examination is not done. The father of Dhrupati PW 18 Shamrao Jyotiram Shinde has deposed that earlier, Dhrupati had sustained injuries and she had recovered. Later on, she died due to diarrhoea. On behalf of the prosecution, he was confronted with the portion marked 'A' from his previous statement that he got message that Dhrupati was assaulted by her husband with spear head alleging that she is unchaste and that she is pregnant from some other person. He denied having made such a statement. There is no cross-examination for his statement that Dhrupati died of diarrhoea and that Dhrupati recovered from her injuries. This witness has given the cause of death of Dhrupati. In the statements recorded as dying declarations, by Head Constable Panjabrao (Exhibit 56) and by the Executive Magistrate (Exhibit 48), Dhrupati has implicated the appellant having assaulted her by means of spear head. PW 10 Dr. Smt. Rekha Mundhada has deposed that the injuries were dangerous and they would heal within three to four weeks. PW 8 Dr. Hanumansing Bais has deposed that the injuries mentioned in the certificate (Exhibit 41) on the person of Dhrupati were not sufficient in the ordinary course of nature to cause death and the injuries were caused by hard and blunt weapon. As per the Chemical Analysers's report, the clothes of the accused were having blood stains of the blood group of the deceased. This is the entire evidence in this case.
5. The learned trial Judge believed the evidence of PW 12 Panjabrao Lahore, Head Constable and PW 9 Ganpat Gatlewar, Executive Magistrate (Exhibit 56 and Exhibit 48) by observing that he was satisfied that the dying declarations, as recorded, are sufficient for convicting the accused in the absence of other evidence.
6. The learned counsel for the appellant has contended that the finding of conviction as recorded by the learned trial Judge is not only grossly erroneous, but illegal and he has adopted a wrong approach. He has further contended that the evidence of dying declaration is not admissible in this case as S. 32(1) of the Evidence Act is not attracted, for either basing the conviction under S. 302 or under S. 307 of the Indian Penal Code and this has caused great prejudice to the accused. He has further urged that the learned trial Judge has committed an error in framing the charge under S. 302 and also under S. 307 of the Indian Penal Code in this case.
7. It may be seen that besides the discharge report dt. 10-5-90 and the extract of Death Register (Exh. 91), there is no material produced on record, neither any evidence is adduced on behalf of the prosecution to prove the charge under S. 302 of the Indian Penal Code. A perusal of the charge sheet (Exh. 95) shows that on the top P.S.I. Idole (PW 20) who has filed the charge sheet, has merely mentioned Ss. 302, 506(2) and 75 of the Indian Penal Code and in the body, he has stated that it transpired in the investigation that the accused has committed an offence under Ss. 307/506(2), I.P.C. and hence charge sheet is filed. There is no mention in the charge sheet about S. 498-A of the Indian Penal Code. It is the duty of the Court to frame charge from perusal of the material available on record. As S. 302 of the Indian Penal Code is mentioned in the charge sheet, without looking into the material, the learned trial Judge, without application of mind, mechanically framed the charge under S. 302, I.P.C. and that too without ascertaining the cause of death of Dhrupati when there is no post-mortem report on record. As S. 302, I.P.C. is mentioned in the charge sheet, it appears that the learned trial Judge framed the charge under S. 302 of the Indian Penal Code. It cannot, therefore, be said that he has committed gross illegality in framing this charge. Even at the framing of this charge, there was no challenge from the defence side. The learned trial Judge also framed charge under S. 307 of the Indian Penal Code according to the specific allegations in the charge sheet. From the allegations in the charge sheet, the learned trial Judge was left to believe that there was prima facie ground for framing the charge under S. 498-A of the Indian Penal Code. Therefore, no fault can be found with him in framing this charge. Framing of the charge in this fashion may be termed as an irregularity, but it is not an illegality.
8. The Additional Public Prosecutor appearing for the State is unable to state whether scrutiny was made in this case before filing the charge sheet in the Court of Judicial Magistrate First Class. It is the normal practice followed when charge sheets are filed by the police in serious offences which are against the society. It appears that scrutiny must not have been made before filing the charge sheet in this case. We are therefore constrained to make observations that such scrutiny must be made to avoid chances of miscarriage of justice. Further, the prosecuting agencies must not look at the stage of framing of charge as a mere formality and as per S. 226 of the Criminal Procedure Code, the prosecutor has to open his case by describing the charge brought against the accused and stating by what evidence, he proposes to prove the guilt of the accused. The Court thereafter has to hear the submissions of the accused and the prosecution as per S. 227 of the Criminal Procedure Code and if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record reasons for so doing and thereafter, if he does not discharge the accused procedurally cames, the stage of framing of charge.
9. As stated earlier, the evidence of dying declaration is considered reliable and trustworthy, to form the basis for "conviction under S. 302 of the Indian Penal Code, by the trial Court. The oral testimony of the eye-witnesses about the incident of causing injuries to Dhrupati by the accused, is not relied and rightly so. There is evidence that Dhrupati was discharged from the hospital on 10-5-1990 and there is nothing to disbelieve the statement in the evidence of PW 18 Sham that Dhrupati recovered of her injuries. There is no iota of evidence in the entire case that Dhrupati died as a result of injuries she sustained in the incident dated 26-3-1990. The doctor PW 8 has also stated that none of the injuries on the person of Dhrupati could cause her death. Section 32(1) of the Evidence Act can be made applicable only when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Obviously, the statements of Dhrupati recorded by PW 12 Head Constable Panjabrao (Ex.56) and PW 9 Katalewar (Exh. 48) do not relate to the cause of death of Dhrupati or to any of the circumstances of the transaction which resulted in her death on 1-6-1990 i.e. after 2 months 4 days after the receipt of the injuries or 21 days after she was discharged from the hospital. The learned trial Judge has committed a gross error in believing the evidence of Dying Declaration (Exhibit 48) and Exhibit 56 and basing the conviction on this evidence, by treating these statements of Dhrupati as her dying declarations, though, in fact, these statements cannot be termed as dying declarations as per S. 32(1) of the Evidence Act. Therefore, the finding of conviction as recorded under S. 302 of the Indian Penal Code is illegal and requires to be set aside.
10. Next comes the question of the charge under S. 307 of the Indian Penal Code. As observed earlier, none of the eye-witnesses have supported the prosecution for committing the assault on Dhrupati by the accused. Even PW 14 Mangala who lodged the report in the police station (Exh. 81) has not supported the prosecution. From the spot Panchanama, it is clear that blood stains were found in the hut. The clothes of the accused were also found having blood stains of the blood group of the deceased. This evidence is not sufficient to base conviction under S. 307 of the Indian Penal Code. Exhibit 48 and Exhibit 56 Dying Declarations also cannot be relied upon. At the most, they can be treated as the previous statements made by Dhrupati. There is thus no material and evidence to prove the complicity of the accused in this crime. The accused is therefore not found guilty of any of the charges levelled against him.
11. In the result, the instant criminal appeal is allowed. The conviction and sentence awarded by the Additional Sessions Judge, Pusad vide his judgment and order dated 30-12-1991 passed in Sessions Case No. 111 of 1990 convicting the appellant under S. 302 of the Indian Penal Code and sentencing him to life imprisonment and fine of Rs. 5000/- i/d R.I. for one year is quashed and set aside. The appellant is in jail. He shall be set at liberty forthwith if not required in any other case.
12. Appeal allowed.