Bombay High Court
Sakharam Shivlal Rathod (In Jail) vs The State Of Maharashtra, Through ... on 31 January, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
Cri.Appeal No.260/2015 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.260 OF 2015
Sakharam Shivlal Rathod,
Aged about 44 years, Occ : Agriculturist,
R/o Sakhara, Tq. Ghatanji, Distt. Yavatmal. .... Appellant
-- Versus --
The State of Maharashtra,
Through Police Station Officer,
Ghatanji, Tq. Ghatanji, Dist. Yavatmal. .... Respondent
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Shri M.P. Kariya, Advocate for the Appellant
Shri S.M. Ukey, A.P.P. for the Respondent.
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CORAM : B.R. GAVAI & KUM. INDIRA JAIN, JJ.
DATE : 31st JANUARY, 2017.
ORAL JUDGMENT :- (Per Kum. Indira Jain, J.)
This appeal takes an exception to the judgment and order dated 07/01/2015 passed by the learned Sessions Judge, Yavatmal in Sessions Case No.119/2013.
02] By the said judgment and order, the sole accused Sakharam Shivlal Rathod is convicted of the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/-, in ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 2 default to suffer rigorous imprisonment for six months. 03] For the sake of convenience, we shall refer the appellant in his original status as accused, as he was referred before the trial Court.
04] Prosecution case in nutshell is as under :
(I) Deceased Nirmala was the wife of accused. They were married in 1994. Their family was consisting of son Tushar, aged 17 years, daughter Pooja, aged 19 years and themselves. They were residing at village Sakhara in Tahsil Ghatanji, District Yavatmal. (II) Incident took place on 19/06/2013 at about 08:30 p.m. Accused raised quarrel with his wife Nirmala and insisted her to demand Rs.20,000/- from her sister.
She was beaten on such demand on previous occasions too. Accused was drunk that time. He picked up kerosene can and poured kerosene on person of Nirmala. Thereafter, he ignited a matchstick ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 3 and set her on fire. After setting her ablaze, accused fled away from the spot. Nirmala shouted for help. Indrajeet and Avi Rathod rushed, wrapped her in a quilt and her mother-in-law shifted her to Rural Hospital, Ghatanji. Medical Officer, Rural Hospital, Ghatanji informed Ghatanji Police Station. Then she was referred to Civil Hospital, Yavatmal. On receiving M.L.C. Report, message was sent to Yavatmal City Police Station to make arrangement of recording dying declaration of the patient. Yavatmal City Police Station also received M.L.C. Report from Civil Hospital, Yavatmal. API Dongre visited the spot and recorded spot-panchnama. The burnt pieces of clothes, broken pieces of bangles, earth mixed with kerosene, simple earth, kerosene can and matchbox lying on the spot were seized.
(III) On 20/06/2013, ASI Anil Sane (PW-7) visited the hospital. He ascertained from the Medical Officer, whether patient was fit to give her dying declaration and then recorded dying declaration of Nirmala. The ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 4 said statement was submitted to police station.
Nirmala succumbed to injuries and died on 21/06/2013. Marg No.0/2013 was registered at City Police Station, Yavatmal. As the offence occurred within the jurisdiction of Ghatanji Police Station, Marg Report and the dying declaration of Nirmala were forwarded to Ghatanji Police Station.
(IV) On receiving police papers in the marg and dying declaration, Crime No.94/2013 was registered at Police Station Ghatanji. Further investigation was taken over by API Arun Gurnule (PW-13). Accused was arrested on the same day. Statements of witnesses were recorded by Investigating Officer and also under Section 164 of the Code of Criminal Procedure by Judicial Magistrate First Class, Ghatanji. (V) On 21/06/2013, after Nirmala succumbed to injuries and died, inquest-panchnama was drawn. Her dead- body was sent for postmortem. Dr. Laxman Durgawad (PW-3) was the Medical Officer on duty. He along with ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 5 Dr. Kuchewar performed postmortem and found that deceased sustained 90% burns specified in column no.17 of the Postmortem Report (Exh.29). Doctors opined cause of death as shock due to burn.
(VI) The seized articles were then sent to Forensic Science Laboratory. Postmortem Report was collected. On completing investigation, charge-sheet was submitted to the Judicial Magistrate First Class, Ghatanji, who in turn committed the case for trial to the Court of Sessions, Yavatmal.
05] Charge came to be framed against the accused vide Exh.5. He pleaded not guilty and claimed to be tried. The factum of marriage between Nirmala and accused is not in dispute. The couple was blessed with a daughter and a son is admitted. Regarding incident, defence of accused was of total denial and false implication.
06] Prosecution examined in all 13 witnesses to substantiate the guilt of accused. Accused did not examine himself. He chose not to examine any witness in support of his ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 6 defence. On going through the evidence adduced by the prosecution, learned Sessions Judge convicted the accused, as stated hereinabove. Being aggrieved thereof, accused has preferred this appeal.
07] We have heard the learned Counsel for the parties. On careful consideration of the facts and circumstances of the case, arguments advanced by learned Counsel for appellant and learned A.P.P. for the State and reasonings recorded by the trial Court, for the below mentioned reasons, we are of the opinion that prosecution has not proved the guilt of accused beyond reasonable doubt and accused ought to have been acquitted. 08] At the threshold, it is to be mentioned here that PW-1 Pooja, PW-2 Keshav and PW-10 Vijay, who immediately rushed to the spot, did not support the prosecution. They were cross- examined at length and prosecution tried to bring and prove contradictions on record through the evidence of API Gurnule (PW-13) and Judicial Magistrate First Class Tejwantsingh Sanghu (PW-11). Nothing could be elicited in the cross-examination of these material witnesses to show that they had a reason to take ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 7 side of the accused. In this situation, we find it appropriate to keep the testimonies of these three witnesses out of consideration.
09] Prosecution case is mainly based on dying declaration of Nirmala. So far as the oral dying declaration is concerned, prosecution witnesses do not support the case of prosecution. Regarding solitary written dying declaration, reliance is placed on the evidence of PW-7 ASI Anil Sane and PW-8 Dr. Yashwant Durge, who put an endorsement regarding fitness of the patient to give her statement. Before adverting to the evidence of ASI Anil Sane and Dr. Yashwant Durge, it would be essential to keep in mind legal parameters relating to appreciation of evidence on dying declaration.
10] The law is well settled that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that statement has been made in the absence of accused who had no opportunity of testing the veracity of the statement by cross-examination. Once the court comes to a conclusion that dying declaration is the truthful ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 8 version as to the circumstances of the death and the assailant of victim, no further corroboration is required to such a dying declaration.
11] Keeping in view the settled propositions of law, let us now consider the evidence of PW-7 ASI Anil Sane, who recorded dying declaration of Nirmala on 20/06/2013. ASI Sane was on duty at Yavatmal City Police Station at the relevant time. He received memo (Exh.42) from Civil Hospital Yavatmal. On receiving memo, he reached Civil Hospital and issued a letter (Exh.43) to C.M.O. asking him whether patient was fit to give her statement. Then along with the Medical Officer, he visited burn ward. Medical Officer examined Nirmala and made an endorsement on letter (Exh.43) that patient is fit for giving dying declaration. Then, ASI Sane recorded dying declaration of Nirmala.
12] In the said dying declaration, she narrated that her marriage took place with Sakharam in the year 1994. She had two children out of the wedlock. They were labourers. They borrowed Rs.1,00,000/- from her sister for cultivation. ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 9 Thereafter, again Sakharam insisted her to demand Rs.20,000/- from her sister. He used to beat her. On 19/06/2013, he again insisted to bring money and raised quarrel with her. Then, he poured kerosene on her person and set her on fire by lighting a matchstick. After the incident, he fled away. She stated that she sustained burns and came out of the house. Then, her relatives Indrajeet and Avi wrapped her in a quilt and her mother-in-law shifted her to hospital. She reiterated that her husband was responsible for setting her on fire. The dying declaration was proved at Exh.44.
13] PW-8 Dr. Durge was on duty at Civil Hospital when PW-7 ASI Sane had been to hospital for recording dying declaration of Nirmala. According to Dr. Durge, on receiving letter (Exh.43), he examined Nirmala Sakharam Rathod and found her conscious and oriented. He put an endorsement to that effect on the letter (Exh.43) that patient was fit for giving dying declaration and conscious and oriented. The said endorsement was marked at Exh.50. After the writing of dying declaration was concluded, he again certified that dying declaration was recorded in front of him. It appears from the ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 10 dying declaration and endorsement that it commenced at 01:30 p.m. and concluded at 02:00 p.m. In the cross-examination, Doctor admits that Nirmala sustained 86% superficial to deep burns. He states that primary treatment was given at Ghatanji Rural Hospital. Medical papers of Ghatanji Hospital were not produced. He stated that the patient gets pains, if injuries are superficial to deep burns and painkillers are given to reduce such pains. He also admits that patient was admitted in critical condition. Her palms were totally burnt and it might be possible that there was no improvement in her health condition and she expired. In view of these admissions, it was incumbent on prosecution to produce hospital record and the particulars of treatment given to the patient before recording her dying declaration. No reason is assigned by prosecution for withholding this important evidence and thus doubt gets created regarding physical and mental condition of patient to give her statement.
14] It is pertinent to note that incident occurred on 19/06/2013 at 08:30 p.m. Victim succumbed to injuries on 21/06/2013 as mentioned above. Investigating Agency had ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 11 enough time to summon the Executive Magistrate for recording dying declaration. No such step was ever taken. Dying declaration (Exh.44) does not bear thumb impression of the victim. No reason is mentioned for not getting thumb impression of victim. From 08:30 p.m. on 19/06/2013 till 01:30 p.m., what was the condition of the patient sustaining 86% burns, is not known. The witnesses on oral dying declaration are hostile. In such situation, we find it risky to place reliance on the sole dying declaration (Exh.44) without corroboration and without medical case papers regarding treatment given to the patient till her dying declaration was recorded by PW-7 ASI Sane. 15] In the above premise, we come to a conclusion that prosecution has miserably failed to bring home the guilt of accused beyond reasonable doubt and the judgment and order of conviction against him would be unsustainable in law. Hence, the following order :
i. The appeal is allowed.
ii. The conviction and sentence awarded to the appellant/accused for the offences punishable under ::: Uploaded on - 13/02/2017 ::: Downloaded on - 27/08/2017 15:07:14 ::: Cri.Appeal No.260/2015 12 Sections 302 of the Indian Penal Code vide judgment and order dated 07/01/2015 passed by the Sessions Judge, Yavatmal in Sessions Trial No.119/2013 is quashed and set aside.
iii. The fine amount, if paid, be refunded to the appellant. iv. The appellant is ordered to be released and set at liberty forthwith, if not required in any other case.
JUDGE JUDGE
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