Bombay High Court
Sandip Prakash Rathod vs The State Of Maharashtra on 20 December, 2022
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.286 OF 2015
Sandip Prakash Rathod,
Age-30 yeas, Occupation:Agricultural,
R/o-Pimperkhed, Tq-Mantha,
District-Jalna.
...APPELLANT
(Orig. Accused No.1)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr.Joydeep Chatterji Advocate for Appellant.
Mr.S.J. Salgare, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI AND
RAJESH S. PATIL, JJ.
DATE OF RESERVING JUDGMENT : 29th JULY 2022
DATE OF PRONOUNCING JUDGMENT : 20th DECEMBER 2022
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Appellant is the husband of deceased Kavita, who stood
prosecuted and convicted for committing offence punishable
under Section 302 of the Indian Penal Code in Sessions Case
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No.24 of 2014 by the learned Additional Sessions Judge, Jalna,
on 2nd March 2015. He has been directed to undergo
imprisonment for life and to pay fine of Rs.1500/-, in default of
payment of fine, to suffer rigorous imprisonment for six months.
It will not be out of place to mention here that appellant is the
original accused No.1 and along with accused Nos.2 to 5, he
stood prosecuted for the offence punishable under Sections 302,
498-A read with Section 34 of the Indian Penal Code, however all
of them have been acquitted of the offence punishable under
Section 34 of the Indian Penal Code. Accused Nos.2 to 5 were
also acquitted of the offence punishable under Section 302 of the
Indian Penal Code.
2. The prosecution story, in short, is that Kavita who was
aged 27 years, got married about 9 years prior to her death with
accused No.1 i.e. present appellant. She had a son, aged 8 years
and a daughter, aged six years. According to the prosecution, the
husband as well as the in-laws and other relatives of husband
i.e. in all accused Nos.1 to 5 used to raise suspicion over the
character of Kavita. She was assaulted and abused under the
influence of liquor. She was at home at about 11.00 a.m. on 17 th
September 2013 when accused No.1 had poured kerosene on
her person. Then Kavita got annoyed and abused the husband.
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The husband got annoyed with her and ignited the match stick
and set her to fire. Thereafter, accused Nos. 2 to 5 had
extinguished the fire and took her to Mantha Government
Hospital. She was then referred to Civil Hospital, Jalna. While
under treatment, she gave the dying declaration, which came to
be recorded by police head constable Rangrao Sardar. The said
dying declaration has been treated as First Information Report
and further investigation has been undertaken.
3. Statements of witnesses have been recorded and at that
stage the offence was under Section 307 of the Indian Penal
Code and other Sections. But thereafter Kavita expired on 21 st
September 2013 and then, after drawing the inquest
panchnama, the dead body was sent for postmortem. After the
postmortem, the dead body was handed over to the relatives.
Statements of the relatives were recorded and prior to that
panchnama of the spot came to be executed. Certain articles
came to be seized from the spot. The seized articles were sent
for chemical analysis. Some of the accused persons came to be
arrested and others had obtained anticipatory bail. After
completion of the investigation, charge-sheet came to be filed.
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4. After the committal of the case, the learned Additional
Sessions Judge framed charge against all the accused persons at
Exhibit-13 for the offence punishable under Sections 498-A, 302
read with Section 34 of the Indian Penal Code. All the accused
pleaded not guilty. Trial has been conducted. Prosecution has
examined in all eight witnesses to bring home the guilt of the
accused. After taking into consideration the evidence on record,
the other documents, statement of the accused persons under
Section 313 of the Code of Criminal Procedure and hearing both
the sides; as aforesaid, the learned Additional Sessions Judge
has held accused No.1 guilty of committing offence under
Section 302 of the Indian Penal Code and the rest of the accused
as well as even accused No.1 under rest of the charges have
been acquitted. Hence this Appeal by original accused No.1.
5. Heard Mr. Joydeep Chatterji, learned Advocate for the
appellant and Mr. Salgare, learned APP for the State.
6. It has been vehemently submitted on behalf of the
appellant - husband that the conviction is solely based on dying
declaration Exhibit-31 recorded by PW-5 police head constable
Sardar. PW-8 Dr. Ramteke was the duty medical officer who had
given endorsement on dying declaration Exhibit-31. Perusal of
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the dying declaration together with the entire evidence of PW-5
Sardar and PW-8 Dr. Ramteke, it can be seen that the dying
declaration is a concocted document. The thumb impression on
the dying declaration is not attested. The dying declaration was
not read over to the deceased. So also, it does not appear to be
in the words of deceased Kavita. The contents if considered with
the testimony of other relatives, it can be seen that some
concocted story was prepared. Death occurred three days after
the alleged incident. There was no attempt on the part of the
investigating agency to record the dying declaration once again
though PW-5 Sardar says that intimation was given to the
Tahsildar i.e. Executive Magistrate to record the dying
declaration of the deceased. Other major witnesses have turned
hostile. The relatives have negatived that there was any kind of
ill-treatment to the deceased. Under such circumstance, when
there was no motive at all to the appellant to commit the crime,
he cannot be held guilty. Only dying declaration cannot be relied
to award conviction. The learned trial Judge has not appreciated
the evidence properly.
7. The learned Advocate appearing for the appellant relied on
the Full Bench decision of this Court in Ganpat Bakaramji Lad
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vs. The State of Maharashtra, 2018 ALL MR (Cri) 2249,
wherein it has been held thus:-
" In respect of the dying declaration, the general principles to be
kept in mind are
(i) that it is not a weaker kind of evidence and it stands on the
same footing as other evidence, and (ii) that there is no absolute
rule of law that it cannot form the sole basis of conviction, unless
corroborated by other independent evidence. The first step
required to be taken in every case, is to consider the three-fold
questions as under :
(a) Whether a declarant had an opportunity to observe and
identify the assailant or the accused?,
(b) Whether a declarant was in a conscious and fit condition at the
time of recording the statement?, and apeal186.13.odt
(c) Whether the Court is so convinced of the truthfulness and
voluntary nature of the statement of the declarant that it inspires
confidence to such an extent that it can be the sole basis of
conviction?
The absence of an endorsement in the dying declaration -
(a) by a doctor regarding the fitness of mind of the declarant, or
(b) that the statement was read over and explained to the
declarant, who found it to be correct, cannot be the reason for
holding that the dying declaration is unacceptable, if the Court is
otherwise satisfied that such a dying declaration inspires
confidence.
The rejection of the dying declaration cannot be on the solitary
instance of absence of endorsement of reading over and explaining
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the declaration and the declarant confirming it to be true. It will
always depend upon the facts and circumstances of each case. We
are clearly of the view that it will be a cumulative effect of the
facts and circumstances of the case, which will determine such
issues. The presence or absence of a particular fact or
circumstance or a situation in a given case may become
significant, whereas it may become insignificant in another
apeal186.13.odt case. The mode and manner of appreciation of
evidence differs from case to case, though the principles of
appreciation of evidence may be the same. The perception of the
matter in each case and the manner of the appreciation of
evidence differs from person to person. Hence, there cannot be a
strait-jacket formula or hard and fast rule which can be laid down.
Neither the provision of Section 32(1) of the Evidence Act
nor any decision of the Apex Court prescribe any particular format
in which a dying declaration is to be recorded. It can be oral as
well as written. In case of oral dying declaration, the question of
existence or insistence upon reading over and explaining the
declaration to the deceased does not arise. If that be so, how can
such insistence be in respect of written dying declaration? It is not
the requirement of any statute or of the decision of the Apex Court
that a written dying declaration must contain a column to be duly
filled in that the statements of the declarant are read over and
explained to him and that he found it to be true and correct. Such
a requirement therefore cannot be held as mandatory.
The observations in the cases of Shaikh Bakshu 2007 ALL
SCR 2407 and Kantilal (2009) 12 SCC 498, are based on the facts
and would not, therefore, constitute a precedent or a ratio
decidenti or even an obiter dicta to hold that bearing such an
endorsement in the dying declaration is must. In our view, it would
be unjust to reject the dying declaration only on such hyper
technical view, which hardly of any help in the matter of criminal
trials. "
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8. Per contra, the learned APP strongly opposed the Appeal
and submitted that even the dying declaration as a sole evidence
can be relied to convict an accused if it is found to be reliable. If
the dying declaration inspires confidence then it can be relied on.
A person will not lie on his death bed, therefore, proper
weightage is required to be given to those statements of a
person who makes those statements when he is on death bed.
Here, the learned trial Judge has held that the dying declaration
is inspiring confidence. The concerned police officer, after
receiving the intimation, had gone to the doctor. PW-8 Dr.
Ramteke had made endorsement about the mental condition of
the deceased Kavita at that time. When he had found that she
was in a mental condition to give statement, PW-8 Dr. Ramteke
allowed PW-5 Sardar to record the dying declaration. The thumb
part was not required to be attested, as the document in its
entirety is required to be considered and it was the statement of
Kavita and therefore, we can take that the said thumb
impression was that of deceased Kavita. Though the other
relatives of deceased Kavita had turned hostile, yet her own
statement on the death bed is required to be weighed more. The
learned APP has supported the reasons given by the learned
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Additional Sessions Judge and submitted that conviction does
not require any interference.
9. At the outset, it will have to be considered from the record
that whether dying declaration can be the sole basis for
conviction and if yes, then whether in the present case the dying
declaration Exhibit-31 is inspiring confidence or not. As regards
the first part of the question is concerned, it is already answered
in the various decisions of the Hon'ble Supreme Court as well as
this Court that the dying declaration can be the sole basis of
conviction if it is true and voluntary. Further, a dying declaration
recorded by the police officer is also admissible. However, in
order to adjudicate as to whether the dying declaration is true,
voluntary and inspiring confidence, we will have to scan the
evidence.
10. In the present case, PW-1 Shyam Rathod - panch to the
spot panchnama, PW-2 Sunil Chavan - panch to the seizure of
clothes of accused No.1, PW-3 Balchand Chavan - father of
deceased Kavita, PW-4 Prakash Balchand Chavan - brother of
deceased Kavita, all of them turned hostile. PW-6 PSI Limbaji
Shelke is the investigating officer. PW-7 Dr. Ravindra Bedarkar is
the autopsy surgeon, who proved the postmortem report Exhibit-
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46. PW-5 police head constable Sardar and PW-8 Dr. Ramteke
have been examined on the point of dying declaration
Exhibit-31.
11. PW-7 Dr. Ravindra Bedarkar has deposed that dead body of
Kavita Rathod was brought to civil hospital, Jalna on 30 th
September 2013 for autopsy. In fact it appears to be a
typographical mistake committed by the learned Additional
Sessions Judge while recording the deposition, for the simple
reason that if we peruse the postmortem report Exhibit-46, it
says that the dead body was received at about 10.00 a.m. on
21st September 2013, the postmortem was started at about
10.05 a.m. on 21st September 2013 and was ended by 11.00
a.m. on 21st September 2013. The learned trial Judge ought to
have been alert while recording the evidence. If there was any
controversy in the document and the deposition, it ought to have
been got clarified immediately during the deposition itself. The
Judicial Officer, while recording evidence, is expected to be alert
and he or she should get involved in the said process, so that
there should be no confusion either to themselves or even to the
appellate authorities. The postmortem report, at the end, also
states that it has been given on 21st September 2013. Important
point to be noted is that a cryptic examination-in-chief appears
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to have been taken on behalf of the prosecution. PW-7 Dr.
Bedarkar states that he found that there was evidence of 100%
superficial to deep burns and the cause of death was, due to
septicemia due to 100% superficial to deep burns. It is also to be
noted that Column No.17 of the postmortem report only states
that there was evidence of 100% superficial to deep burns. The
percentage of burns on each limb was not given and it was not
even tried to be extracted by anybody. There is no cross-
examination to this witness on behalf of the accused also.
Therefore, we can conclude that Kavita died due to burn injuries
those were sustained by her. In case of death by burn injuries,
three possibilities would be initially created, first is accidental,
second is suicidal and third is homicidal. The burden is on the
prosecution to prove that the burn injuries sustained by Kavita
were homicidal in nature only in order to bring the case under
Section 299 of the Indian Penal Code. In other words, the
prosecution will have to rule out the possibility of accidental and
suicidal burn injuries. The postmortem report by itself will not
prove the same.
12. Before proceeding further, we will have to bear it in mind
that other accused persons as well as the present appellant have
been acquitted by the learned trial Judge for the offence
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punishable under Section 498-A read with Section 34 of the
Indian Penal Code. The question, therefore, would be as to what
was the motive for the appellant to commit such crime. Further,
as aforesaid, all the relatives of deceased Kavita turned hostile.
Therefore, there is no support to the theory of the prosecution
that there was some motive for the appellant to commit the said
crime. Under such circumstance, the dying declaration is the
only piece of evidence now left to support the prosecution story.
13. Further, before turning to scan the evidence of PW-5
Sardar and PW-8 Dr. Ramteke, it will have to be considered that
incident had taken place, as per the prosecution story, around
11.00 a.m. on 17th September 2013. Kavita was initially taken to
Government Hospital, Mantha and then she was referred to Civil
Hospital, Jalna. Prosecution has not examined anybody nor any
document was collected from the Government Hospital, Mantha.
At what time she was taken there, what was the history that was
told etc. is kept in dark. PW-8 Dr. Ramteke appears to be the
medical officer who had given treatment to Kavita, but when he
came for deposition, he had not brought the case papers. In his
cross-examination he has claimed that without going through
those case papers, he will not be in a position to say what kind
of medical treatment was given to Kavita on that day. In fact, it
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has not even been brought on record as to the time at which
Kavita was admitted to Civil Hospital, Jalna. It is then stated that
the dying declaration was recorded between 6.10 p.m. to
6.50 p.m. on 17th September 2013. But PW-8 Dr. Ramteke in his
cross-examination says that he will not be able to say what
treatment was given to Kavita before 6.10 p.m. on that day.
Whether any sedative was given to her or not and what was the
assessment of the injuries on her person, is all kept in dark by
the prosecution. When there was evidence of 100% burn injuries
and then PW-8 Dr. Ramteke in his examination-in-chief also says
that at the time of admission she has 100% burn injuries, but he
has not bifurcated it limb-wise, then whether she was in a
position to speak, was she conscious, oriented etc., all appears
to be the guess work of PW-8 Ramteke on the day of his
deposition only on the basis of Exhibit-31 i.e. dying declaration,
because he was not supported with case papers. The
investigating officer has not collected the case papers from the
hospital. Therefore, the testimony of PW-8 Dr. Ramteke is not
inspiring confidence. It appears that merely because the police
official was asking for an endorsement, it appears that he has
given the same. Further from the bare perusal of dying
declaration Exhibit-31, it can be seen that the upper
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endorsement is written afterwards, that means after the
statement was recorded, and therefore there is overlapping.
Further, the endorsement at the end has erasers. Word " होता "
has been scored and added with " आहे ". It is also overlapping to
the signature. The end endorsement originally appears to be
"certified that the patient was in conscious state at the end of
the statement" and now after scoring, the word " होता ", it reads,
"certified that patient is in conscious state at the end of the
statement". Therefore, it appears that the mistake was
thereafter realized and the scoring has been done. There is
absolutely no explanation taken by the prosecution from PW-8
Dr. Ramteke as to why the earlier word was scored.
14. PW-5 police head constable Sardar has stated that he was
attached to medical police chowki at Civil Hospital, Jalna on 17 th
September 2013. He received MLC pertaining to Kavita and then
he met to doctor in burn patients ward. Doctor put endorsement
that the patient is in a condition to give statement. Thereafter,
he recorded the statement. According to him, Kavita told before
him that her husband, in-laws, husband's brother and his wife
were suspecting her character since long. On the day of incident,
she was sleeping at about 11.00 a.m. on 17 th September 2013
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and then her husband poured kerosene on her person
whereupon she got annoyed and abused her husband. Thereafter
her husband got annoyed and set her to fire with the help of
match stick. Her mother-in-law and brother-in-law came and
they extinguished fire by pouring water on her person and then
she was taken to Mantha Hospital and then to Civil Hospital,
Jalna. He says that the statement was read over to Kavita and
thereafter she had put her right thumb impression. He had then
signed it and after the conclusion the doctor had again put his
remark and signature. It is to be noted that in his cross-
examination, PW-5 has stated that he will not be able to state
the time when Kavita was referred to Civil Hospital, Jalna.
Medical treatment has started to Kavita when he was near her.
Kavita had sustained burn injuries all over her body. She was in
pains. PW-5 police head constable Sardar has not explained as to
why he had taken right thumb impression of Kavita on
Exhibit-31. In fact it is always the practice to take thumb
impression of left hand on any document and if it is not possible
for some reason to take the thumb impression of left hand then
only the thumb impression of the right hand would be taken and
for this purpose it was necessary on the part of the prosecution
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to prove as to what had happened to the left hand of Kavita
when she was admitted to Civil Hospital, Jalna.
15. Another fact that is required to be considered from Exhibit-
31 is that there is only one statement that accused Nos.1 to 5
were raising suspicion over the character of Kavita since long. As
aforesaid, Kavita's relatives i.e. father and brother are not
supporting to this statement. Her marriage had taken place nine
years ago and she had two children. In this background, as to
what had happened for the accused persons to raise suspicion
over her character at such a late stage itself, is a question and
prosecution has not tried to give answer to the same. This
statement cannot lead us to conclude that there was a motive
for appellant to commit the crime. Another thing that is
surprising is that Kavita's maternal home, Pimparkheda appears
to be a small village and it is hard to believe that she has been
allowed to sleep till 11.00 a.m. She says that she was sleeping
at about 11.00 a.m. when appellant poured kerosene on her
person. It is not her statement or words that as she was sleeping
till 11.00 a.m., husband got annoyed and then poured kerosene
on her person. Why she was sleeping even in that odd hours
taking into consideration the village background, cannot be
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gathered. Further, if she was sleeping, then prior to that nothing
had happened. It has not been brought on record by the
prosecution that something had happened in the morning and
therefore she was sleeping, which annoyed the appellant. What
was the reason for appellant to pour kerosene on her person, is
a question. In the entire evidence led by the prosecution, we are
unable to get answer to this question. Prosecution has not
examined Kavita's children, who were expected to be at home in
the normal course, provided they would have gone to attend the
school etc. Another factor that appears to have not been
considered by the trial Court is that in her dying declaration
Kavita has stated that after the husband poured kerosene on her
person she got annoyed and abused the husband, then husband
got annoyed and then set her on fire. The trial Court has not
gone into the aspect as to whether the deceased had provoked
accused - appellant. We need not go into that aspect for the
simple reason that the dying declaration itself is not inspiring
confidence. It does not appear to be true and it is also not
supported by the case papers, of which details were necessary,
as to whether the sedative was started, what was the position of
the left hand of Kavita etc.
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16. Though the dying declaration can be the sole basis of
conviction, yet as this dying declaration Exhibit-31 fails to
comply the yardsticks, it is not reliable. Even after considering
the ratio in Ganpat Bakaramji Lad vs. The State of
Maharashtra (supra), the dying declaration in the present case
is not inspiring confidence. Further, part of it has been, in a way
rejected by the trial Court itself while acquitting the present
accused as well as other accused for the offence punishable
under Section 498-A of the Indian Penal Code. Such bifurcation
or acceptance in part only, cannot be allowed. The dying
declaration will have to be read in its entirety. At the cost of
repetition, it can be said that since there are over writings also
and the aforesaid unexplained facts leads us to conclude that
Exhibit-31, dying declaration is a concocted document or a
prepared document and it ought to have been discarded outright
by the learned Additional Sessions Judge. The conviction based
on the erroneous findings cannot be allowed to be sustained and
therefore, the Appeal deserves to be allowed by holding that the
prosecution had failed to prove the guilt of the accused beyond
reasonable doubt. Under such circumstance, following order is
passed:-
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ORDER
(I) Appeal stands allowed. (II) The conviction awarded to the appellant - original accused
No.1 - Sandip Prakash Rathod in Sessions Case No.24 of 2014 on 2nd March 2015 by the learned Additional Sessions Judge, Jalna by holding him guilty of committing offence punishable under Section 302 of the Indian Penal Code, stands set aside.
(III) The appellant be set at liberty, if not required in any other case.
(IV) It is clarified that there is no change in the rest of the order passed by the learned Additional Sessions Judge, Jalna.
[RAJESH S. PATIL] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/DEC22
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