Bombay High Court
Shakuntalabai Wd/O Khairuprasad Joshi vs * The State Of Maharashtra on 6 January, 2011
Author: A.P. Bhangale
Bench: A. H. Joshi, A.P. Bhangale
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO: 125 /1997
1) Shakuntalabai wd/o Khairuprasad Joshi
Aged about 65 years, occu: Nil
2)
Manoj s/o Khairuprasad Joshi
Aged about 23 years, occu: Labourer
Both Residents of Yerkheda, Kamptee
Tah. Kamptee Dist. Nagpur.
(At present in custody at Central Jail
Nagpur.) ... ...APPELLANTS
v e r s u s
* The State of Maharashtra
Through PSO Kamptee Police Station
Dist. Nagpur. .. ...RESPONDENT
________________________________________________________________
Mr. E. W. Nawab, Advocate for appellants
{Appeal abated against appellant no.1 as per Court's order
dated 20.9. 2010}
Mr. T. A. Mirza, Addl. Public Prosecutor for Respondent-State
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2
CORAM: A.H. JOSHI & A.P
. BHANGALE , JJ.
th
DATED : 6 January, 2011
JUDGMENT :(PER A.P. BHANGALE, J.):
1. This Appeal is directed against judgment and order dated 15-04-1997 passed by 2nd Additional Sessions Judge, Nagpur in Sessions Case No. 464 of 1992 whereby the appellant was convicted for offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life. While the Appeal remained pending, appellant no 1 died and, therefore, Appeal has abated as against the Appellant no 1.
2. Case of the prosecution in brief, is that the appellant is bother of Birju Joshi, who is the husband of deceased Mrs. Prabhabai Joshi. The deceased had married with Birju Joshi about 7 years prior to the incident since 22-02-1985. Telephonic message was received by PSO Lanjewar, Head Constable of Kamptee Police Station on 4-6-1992 that Mrs Prabhabai was admitted in Ward No. 3 of Mayo Hospital , Nagpur in a burnt condition. Shri Lanjewar (PW-7) went to Mayo Hospital and recorded Statement of Prabhabai. She stated that she had sustained injuries as she was preparing tea on a Stove. Thereafter, ::: Downloaded on - 09/06/2013 16:44:43 ::: 3 Police Head Constable had called one Executive Magistrate (PW-8) who recorded dying declaration (Ex 64). Police Head Constable further recorded statement of Prabhabai and registered an offence under section 307 read with section 34 of the Indian Penal Code, upon accusations that the Appellant no 2 had caught hold of the deceased while Appellant no 1 had poured kerosene on Prabhabai and set her on fire. After death of Prabhabai the offence was converted to section 302 read with section 34 of the Indian Penal Code. Appellants and paternal aunt of of appellant no 2 were charge-sheeted upon completion of investigation before the JMFC (7th Court), Nagpur, and then case was committed to the court of Sessions, Nagpur.
3. Charge was framed on 18-11-1996 to which the appellant and other accused pleaded not guilty and claimed trial.
4. In order to prove the case, the prosecution examined 8 witnesses. The defence of the appellant is of denial. Defence evidence was led consisting of two witnesses. In his statement recorded under Section 313 Criminal Procedure Code, the appellant chose to defend prosecution case by advancing a plea that he was falsely involved by the parents of the deceased.::: Downloaded on - 09/06/2013 16:44:43 ::: 4
5. Learned counsel for the appellant submitted that the plea raised by the appellant may be considered as probable under the circumstances. According to learned counsel for the appellant, dying declarations relied upon by the prosecution ought to be disbelieved on the ground that the death of Prabha may be accidental and such probability can not be excluded in the present case. According to the learned counsel for the appellant, benefit of reasonable doubt be granted in favour of the appellant.
6. Learned A.P.P. for the State, on the other hand, contended that there was evidence beyond all reasonable doubts to establish guilt of the appellant in this case and the appellant no 1 had poured kerosene on the person of Prabha and Appellant no.2 had caught hold of her.
According to learned A.P.P., the witnesses examined by the prosecution do throw light upon the incident of murder as it had occurred and there is ample evidence to bring home guilt of the appellant beyond reasonable doubts.
7. The first question is as to whether deceased Prabha with homicidal death or accidental death ?
::: Downloaded on - 09/06/2013 16:44:43 ::: 5Learned counsel for the appellant criticized finding recorded in this regard on the ground that the Medical Officer who may have performed the autopsy over the dead body was not examined by the prosecution. It is submitted that the doctor who performed the post mortem examination over the dead body ought to have been examined to show positively that the victim met with homicidal death. According to learned counsel for the appellant, doctor's evidence on oath is necessary to establish the nature of injuries received by the victim. It is true that the burn injuries received by the deceased may be accidental, suicidal or homicidal. The prosecution is, therefore, required to establish the homicidal death by bringing such positive evidence on record. Trial Judge can not decide by mere probabilities. Injuries must be attributable to the accused. We, therefore, feel that the findings recorded by the trial court below point no.1 were not based on sufficient legal and proper evidence beyond reasonable doubts in this regard. The defense witnesses were examined to bring on record the evidence that the victim Prabha was lighting the stove, and she sustained burns injuries and died as a result of accident.
8. Learned counsel for the appellant invited our attention to the evidence led before the trial court. PW 1 who acted as a Pancha ::: Downloaded on - 09/06/2013 16:44:43 ::: 6 witness for the spot Panchnama admitted that the police have seized Stove pin from the spot. He had seen the articles i.e. tea cups, sugar, tea leaves, milk in the pot. Admittedly, the incident happened during summer. It is submitted that PW 2 who is Head Constable drawing spot and the inquest Panchnamas is unable to remember as to when he received papers for the investigation. His evidence appears casual and would not advance the case for the prosecution. In order to establish the case against the Appellant the prosecution has placed strong reliance upon evidence of the relatives of the deceased. PW 3 and 4 are parents of Prabha and PW5 is her brother. Their evidence is criticized as got up and interested. PW 3 Liladhar, father of Prabha, deposed thus:-
"On 4-6-92 persons told me that Prabha was set on fire.
Then I went to Mayo Hospital and saw Prabha. I asked Prabha who set her on fire. She replied that accused Manoj caught her hands, accused Rampyari poured Kerosene on her body and accused Shakuntala set her on fire"
The evidence indicate that PW 3 had assumed that somebody had set Prabha on fire. Such evidence is unsafe and risky to rely upon.
::: Downloaded on - 09/06/2013 16:44:43 ::: 7PW 4 Mrs Tijia, mother of Prabha, however, who also had been to Mayo Hospital, says that Prabha was crying as 'Mother, Mother', but did not speak with her anything. Subhash (alleged eye witness) did not disclose to her anything. We cannot overlook her evidence which appears contrary to what PW 3 claimed/assumed.
PW 5 Subhash who deposed as an eye witness was studying in 7 th standard at the time of the incident. He admits of material omissions in his statement portion marked 'B' to the effect that he did not state that accused Rampyari poured kerosene and accused Shakuntala set her on fire and closed door; omission of material nature in evidence of crucial witness in his previous statement excluding that accused Rampyari poured kerosene and accused Shakuntala set fire and closed the door. The omissions admitted by PW5 in his previous statement indicate as how his evidence suffers from material improvements. His evidence thus can not inspire confidence in judicial mind. PW 8 confirmed the fact that Subhash (PW 5) did not state the Portion 'A' &' B' (Ex 65 and 66) before him.
PW 6 is the Investigating Officer Shri Pandey who though recorded statements of neighbourers of the accused did not bother to file the same in the charge sheet/case. He did not bother to seize the clothes of the accused. These are lapses of Investigating Officer which ::: Downloaded on - 09/06/2013 16:44:43 ::: 8 affects merits of the prosecution version, at least to create doubt as to veracity of evidence led.
DW 1 Santosh, neighbourer of the accused deposed about the accident as a result of which Prabha got burns injuries while appellant Manoj was sleeping in the courtyard. According to DW 1 was told by Prabha that she was about to start the stove and due to flames of the stove she was burnt. DW 2 also reiterated the accident theory.
Bearing in mind the defence that the parents of Prabha falsely involved the accused in the case, we have to appreciate the contentions on behalf of the appellant, with reference to rulings on the subject of written dying declarations.
9. It is necessary for the recording officer to ascertain fitness of the state of mind of the patient /victim to make a dying declaration. The patient must be in a position to understand and answer the questions put to him/her. The preliminary questions put by the recording officer and answers given by the patient assumes importance for to rely upon the same in order to record conviction. In other words, sufficient evidence is necessary to make the dying declaration worthy of reliance.
In Panchadeo Singh Vs. State of Bihar: 2002 SCC (Cri) 211, the Apex Court dealt with the issue as to whether a dying declaration by itself ::: Downloaded on - 09/06/2013 16:44:43 ::: 9 would be tantamount to substantial evidence against the Appellant warranting the conviction and the sentence .It is observed as follows:-
"10. Before so doing, a look at the decision of this Court in Rosamma (Paparambaka Rosamma and others vs. State of A.P.(1999) 7 SCC 695) would be of some relevance wherein this Court observed that where conviction is solely based on the dying declaration there is an obligation on the part of the Court to consider with extreme care and caution both the dying declaration as also the evidence of the witnesses supporting it. In Rosamma (supra) the doctor was also examined and the doctor appended a certificate at the end of the declaration that the patient is "conscious while recording the statement". It is on this, this Court observed that the question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of the mind that existed before recording the dying declaration and this Court opined that in the absence of a medical certification that the injured was in a fit state of mind at the time of making that declaration, it would be very risky to accept the subjective satisfaction of the Magistrate, ::: Downloaded on - 09/06/2013 16:44:43 ::: 10 who opined that the injured was in a fit state of mind at the time of making a declaration. In Rosamma (supra) noting of the state of mind of the declarant before making the statement by the doctor has been stated to be an essential requirement for the prosecution to prove incidentally mere certification by even a doctor at the end of the declaration that the patient is conscious while recording the statement was stated to be not sufficient ig this is so by reason of the factum of the dying declaration being only the circumstance for conviction and sentence of the accused. Presently, however, there is not even a doctor's certification as regards the state of the condition of the declarant. It is only the Judicial Magistrate, who has stated from the witness box that the declarant was in a fit condition to make the statement and he was otherwise satisfied in regard thereto. The doctor was available since the Magistrate named him as Dr.Raman Shanker Prasad but unfortunately there is neither any certification nor even a signature of the doctor in the declaration."
10 . As noticed above, declaration itself can be treated as a substantive piece of evidence and can be the basis of an order of conviction and sentence without there being any corroboration provided, ::: Downloaded on - 09/06/2013 16:44:43 ::: 11 however, the same shall bring forth a sense of confidence and trustworthiness in the mind of the Court. The question as to why doctor did not certify the fitness of the person making the statement or even append his signature, there is no answer for the same. In our view, the evidence led in the trial Court was not otherwise a very safe and reliable evidence it for to record conviction under Section 302 read with section 34 of IPC. The declaration must be such so as to evoke confidence in the factual context.
11. In Dilip Mulchand Vs. State of Maharashtra 1996 Cri.L.J. 1911, the Division Bench of this Court observed that in case of written dying declaration the most important requirement is the satisfaction of the officer /authority that the declarant is fit and conscious to give the declaration.
12. In Gulshanbi Ayubsha Vs. State of Maharashtra reported in 2010 ALL MR (cri) 3514 the Division Bench of this Court to which one of us (Ambadas H. Joshi J.) were party observed thus:-
"21. This Court would not get adversely influenced barely due to the deficiencies in certificate, i.e., lack of certification of fitness. An ::: Downloaded on - 09/06/2013 16:44:43 ::: 12 omission in the Certificate may otherwise be bridged, had the Executive Magistrate himself recorded satisfaction and proved it.
22. The deficiency of the Doctor s Certificate as to fitness would have become insignificant, had the Magistrate, before recording the statement of Rizwanbee, put her some questions and ascertained her fitness of state of mind for making a Dying Declaration, on the basis of questions and answers.
23. Considering law as relied upon and on re-appreciation of evidence, this Court finds that in both the Dying Declarations, the condition precedent that the person recording statement is satisfied that the person making the statement, i.e., Rizwanbee, was in a fit state of mind to make the statement is absent."
13. In our opinion, the certificate of Doctor when given, to be worthy of reliance, must indicate that the patient was in fit state of mind and conscious to make a statement in the nature of dying declaration. Mental and physical fitness of the declarant and his capacity to make a statement in his full consciousness and senses is an essential factor. Thus when the patient is in the Hospital receiving medical ::: Downloaded on - 09/06/2013 16:44:43 ::: 13 treatment, the certificate is needed from the attending doctor in respect of written dying declaration to the effect that the patient was fit and conscious to make statement before recording it and throughout the time taken for recording it. It is unsafe to rely upon the dying declaration if the veracity of it is doubtful.
14. In Deorao s/o Sonbaji Bhalerao & another vs. State of Maharashtra reported in 2008 ALL M R(Cri) 1921, Division Bench of this Court held that presumption under Sec.80 of Evidence Act is inapplicable to the dying declaration and, further, held that the Magistrate or the person who records a dying declaration will have to testify and prove the fact as to who was named as offender by the dying person. Such evidence must be brought forth before the Court where trial proceedings against accused are held.
15. Samiruddin, (1882)8 Cal.
In the case of The Empress Vs 211, the Calcutta High Court held that the statement must have been proved in the ordinary way by a person who heard it made. If for any reason the Magistrate is not available, any other person who heard it when made can also testify and they being at liberty to refresh memory by referring to the document as provided by Sections 159 and 160 of ::: Downloaded on - 09/06/2013 16:44:44 ::: 14 Evidence Act.
16. After making reference to the rulings on the subject, in Ramilaben Hasmukhbhai and another Vs. State of Gujrat 2002 SCC (cri.) 1575 in para 28 it is observed by the Apex Court thus-
"Under the law, dying declaration, can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of questions and answers and the answers be written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon, without any corroboration."
17. One more important aspect of the fair and impartial ::: Downloaded on - 09/06/2013 16:44:44 ::: 15 criminal trial is that If the investigating officer has recorded the statement of witnesses under section 161 of the Criminal Procedure Code, then it is duty of the investigating officer to produce such statements along with the charge sheet, or else benefit of adverse inference arising from non -production shall go to the defense if such contention is raised on the basis of evidence led. We are fortified in this view by the observations made by the Apex court in para 18 of the ruling in Pratapsingh and another Vs. State of M. P. (2006) 2 SCC (cri) 284. Furthermore, the Investigating Officer is expected to contact the witnesses acquainted with facts of the commission of cognizable offence to record their statements as early as possible. Delay if unusual and long in recording the statement belatedly of the witnesses,it has to be explained by the prosecution.
18. In Ganesh Bhavan Patel Vs. State of Maharashtra AIR 1979 SC 135, it is observed by the Apex court in para 15 " ...delay of a few hours, simpliciter, in recording the statements of eyewitnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the ::: Downloaded on - 09/06/2013 16:44:44 ::: 16 shape to be given to the case and the eyewitnesses to be introduced."
19. It is also submitted by the learned Advocate for the Appellant that the improvement by the prosecution witnesses over the statement made during the investigation can not be relied upon.
Reliance is placed upon the ruling in Yudhisteer Vs. State of Madhya Pradesh 1971 SCC (Cri) 684 to argue that when a particular fact deposed by a witness does not find mention in the previous statement in FIR or in statement made under section 161 of the Cr.P. Code, the improvement made in evidence can not be considered. The rule of evidence is that if the trial court do not want to reject evidence of a witness as false, it has to search for corroboration by other independent evidence or the other circumstances. But if evidence of such witness is rejected as false or unacceptable, there is no scope for to find corroboration by other independent evidence or circumstances.
20. Looking in to the evidence and submissions advanced on behalf of the appellant we must conclude that the evidence led in this case is not wholly reliable, finding of guilt can never rest on assumption or presumption in a murder case, benefit of the doubt as to guilt of the appellant has to be given in favour of the appellant. The Appeal is ::: Downloaded on - 09/06/2013 16:44:44 ::: 17 therefore, allowed . The impugned Judgment, order and sentence as against the appellant shall stand set aside. The appellant shall be set free if not required in any other case. His Bail bonds, if any, shall stand discharged.
JUDGE JUDGE
sahare
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