Bombay High Court
Shri Rajendra Madhukar Kadam vs The State Of Maharashtra on 19 March, 2014
Author: A.S. Gadkari
Bench: P. V. Hardas, A.S. Gadkari
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APEAL.512-2007.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 512 OF 2007
Shri Rajendra Madhukar Kadam,
R/o: 370, Bhavani Peth, Pune,
(At present lodged at Yerawada
Central Jail, Pune-6) ..Appellant
(Original Accused No.1)
Versus
The State of Maharashtra
(At the instance of Samarth Police
Station, Pune) ..Respondent.
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Mr. D.G. Khamkar, for Appellant.
Dr. F.R. Shaikh APP for Respondent-State.
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CORAM: P. V. HARDAS &
A.S. GADKARI, JJ.
March 19, 2014.
JUDGMENT (Per A.S. Gadkari, J.):
1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of which to suffer RI for two months, by the 2 nd Ad- Hoc Sessions Judge, Pune in ::: Downloaded on - 29/03/2014 18:57:53 ::: 2 APEAL.512-2007.sxw Sessions Case No.467 of 2004, by its judgment and order dated 11 April 2007, has questioned the correctness of his conviction and sentence by the present appeal. The appellant, the original accused no.1 was tried along with two other accused persons i.e. original accused no.2 Smt. Pushpa Kadam and original accused no.3 Dilip Kshirsagar. The said accused nos.2 and 3 were acquitted by the learned Trial Court from the offences charged against them.
2. The facts in brief which emerged from the record and which are necessary for deciding the present appeal can be summerised thus:
(i) PW-14- Police Inspector Shri Arvind Ramchandra Patil who was then attached to Samarth Police Station, Pune and was on duty on 29.2.2004 at Samarth police station. He received an information that the incident of burning of one lady at, 870, Bhavani Peth, Pune had taken place. He immediately went to the said address when he came to know that the said lady was already taken to the Sassoon hospital for medical treatment. He directed the police sub inspector and other staff to remain present at the spot of occurrence. PW-4 P.I. Shri Patil himself went to the concerned ward of the Sassoon hospital and made inquiry with the Doctor.
The Doctor stated to him that patient i.e. Smt. Prachi Rajendra Kadam is in proper condition to give her statement. He thereafter recorded the statement ::: Downloaded on - 29/03/2014 18:57:53 ::: 3 APEAL.512-2007.sxw of Prachi, the victim as per her say. The said statement was read over to the said victim Prachi. He thereafter obtained the thumb impression of the victim Prachi and also put his signature. The said statement i.e. the dying declaration of Prachi dated 29.2.2004 is at Exhibit 75. In pursuance of the said statement dated 29.2.2004 given by the victim Prachi, an offence bearing CR No.22 of 2004 under Section 307 of the Indian Penal Code was registered at Samarth police station, Pune. PW-14 P.I. Shri Patil thereafter undertook further investigation in the said crime.
(ii) During the course of investigation, PW-14 P.I. Shri Patil recorded the statements of the persons who had taken the victim Prachi to the hospital and of the persons who were residing adjacent to her house.
P.S.I. Shri Chavan who was deputed to the spot of occurrence had recorded the spot panchanama. The spot panchanama is at Exhibit 25 on record. PW-
14 P.I. Shri Patil got sketch of the scene of occurrence drawn by one Shri Bhosale under his own guidance. The said sketch of the spot of occurrence is at Exhibit 77.
(iii) On 29.2.2004 itself PW-14 P.I. Shri Patil arrested the appellant after effecting the arrest panchanama which is at Exhibit 78. He also recorded the statement of the relatives of the complainant and other persons. After two days, he went to Sassoon hospital as the complainant i.e. ::: Downloaded on - 29/03/2014 18:57:53 ::: 4 APEAL.512-2007.sxw the victim Prachi was intending to state something to him. He therefore met the concerned doctor when PW-14 P.I. Shri Patil was informed that the patient was in proper condition to make the statement. He then recorded the supplementary statement on 2.3.2004 of the victim Prachi. He obtained the toe impression on the said statement of the victim Prachi. The said supplementary statement dated 2.3.2004, which is in the form of dying declaration is at Exhibit 80. PW-14 P.I. Shri Patil sent the articles which were found at the scene of occurrence to the chemical analyzer. The victim Prachi succumbed to her injuries on 3.3.2004 in the hospital. The Asstt.
Sub-Inspector Shri Patel effected the Inquest Panchanama which is at Exhibit-8. Section 302 of the Indian Penal Code was added to the original CR No.22 of 2004 after the death of victim Prachi. During the course of investigation, PW-14 P.I. Shri Patil had received a report from the chemical analyzer which is at Exhibit 84. On completion of the investigation, PW-14 P.I. Shri Patil submitted chargesheet in the Court of competent jurisdiction.
(iv) After committal of the case to the Court of Sessions, the Trial Court framed charge below Exhibit 2 under Section 498-A and 302 of the Indian Penal Code. The contents of the said charge was read over to the accused persons in vernacular language to which they denied and claimed to be tried.
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3. The prosecution in support of its case, examined in all 14 witnesses. The learned Trial Court after conducting the trial was pleased to convict the appellant under Section 302 of the Indian Penal Code. The other accused persons namely accused nos.2 and 3 were acquitted from all the charges levelled against them by the Trial court by the impugned judgment.
4. We have heard Mr. D.G. Khamkar, the learned Counsel for the Appellant and Dr. F.R. Shaikh, the learned APP for Respondent-State. The learned Counsel for the appellant has submitted that the present case is based on multiple dying declarations i.e. three oral dying declarations as well as on two written dying declarations and that the said dying declarations suffer from legal infirmities and therefore same cannot be relied upon at all. He prayed that the present appeal may be allowed. On the other hand, the learned APP has supported the judgment of the Trial court and prayed that the present appeal be dismissed.
5. Before we proceed to scrutinize the evidence adduced by the prosecution in support of its case, it will be useful to refer to the judgment in the case of Suresh s/o Arjun Dodorkar (Sonar) Vs. State of Maharashtra [2005 ALL MR (Cri) 1599] to which one of us (Shri P.V. Hardas, J.) was a member, wherein while dealing with the issue of multiple dying ::: Downloaded on - 29/03/2014 18:57:53 ::: 6 APEAL.512-2007.sxw declarations, it has been held in para-9 that-
"in cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself."
It has been further held that-
"If in the dying declaration the truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. Merely because the overt act attributed to the accused is consistent in both the dying declarations would not make the dying declarations a reliable piece of evidence. The dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected."
Taking into consideration the aforesaid ratio laid down by the Division of this Court, we proceed to scrutinize the evidence adduced by the prosecution in support of its case.
6. In the present case there are two sets of dying declarations which are classified under two broad heads i.e. written dying declarations and oral dying declarations. The written dying declarations which are at Exhibit 75 and Exhibit 80 respectively are recorded by PW-14 P.I. Shri Patil and the other set of dying declarations are the oral dying declarations ::: Downloaded on - 29/03/2014 18:57:53 ::: 7 APEAL.512-2007.sxw made to PW-1 Surekha Sanjay Dhivar, PW-2 Mahendra Bhausaheb Gaikwad and PW-4 Sanjay Bhausaheb Gaikwad allegedly by the victim Smt. Prachi
7. As far as the written dying declaration at Exhibit 75 is concerned, the same is the first in point of time and which has been recorded by PW-14 P.I. Shri Patil on the day of incident i.e. on 29.2.2004 at about 5 pm. The mental and physical condition of the victim Prachi was certified by Dr. Sachin Balwantkar (PW-12). In the said dying declaration, the victim Prachi has stated that she was residing with the appellant at the address mentioned therein. He further stated that her mother-in-law, father-
in-law and brother-in-law were residing at Government Colony behind Central Building, Pune. She has stated that she married with the appellant on 7.12.2003 and from the date of marriage the appellant used to tell her that he does not like her and he will not cohabit with her. He loves some other girl. He stated to Prachi that his parents had forced him to marry with Prachi. She has further stated that on that count the appellant used to quarrel with her intermittently. She has further stated that today i.e. 29.2.2004 she was at her house at 870, Bhavani Peth, Pune when a quarrel took place between her and the appellant on some domestic reason. At that time in the fit of rage, the appellant poured kerosene on her person and ::: Downloaded on - 29/03/2014 18:57:53 ::: 8 APEAL.512-2007.sxw ignited the same by match-stick. She has that she started shouting loudly and also shouted for help. That somebody doused the fire and within very short time her brother namely Sanjay (PW-4) reached the spot of incident and he immediately brought her to the Sassoon hospital and admitted her in the ward no.25. The medical treatment was being administered to her. She has further stated that for the said incident she is having lawful complaint against her husband i.e. the appellant herein.
PW-12 Dr. Balwantkar in his evidence has stated that he had examined the patient namely Prachi before, during and after recording her dying declaration by the police which is at Exhibit 75. He had accordingly put his endorsement which is at Exhibit 68 on record.
8. PW-14 P.I. Shri Patil in his deposition has stated that after two days he went to Sassoon hospital as the complainant/victim Prachi was intending to state something more. He therefore met the concerned doctor and after verifying the condition of the patient, he recorded her statement as per her say and obtained her toe impression on the said statement. The said statement is at Exhibit 80 on record. It is pertinent to note here that in her supplementary statement dated 2.3.2004 the victim Prachi has stated that on 29.2.2004 she has given a statement to the police about the incident dated 29.2.2004 and she further stated that on 29.2.2004 she and her ::: Downloaded on - 29/03/2014 18:57:53 ::: 9 APEAL.512-2007.sxw husband i.e. the appellant herein were called for lunch by her in-laws at their residence at Central Building Quarters, Pune. She has stated that as she wanted to go to the house of her in-laws and with a view to prepare herself, she went to the bathroom at 2.30 pm for washing her face and hands. At that time her husband i.e. the appellant came behind her and closed the door of the room and bolted it from inside. The appellant thereafter tied her hands and put a handkerchief in her mouth and told her that as the she is regularly complaining about him i.e. appellant with her uncle and aunt, he will now finish her. The appellant thereafter poured kerosene from the can on her person which was penetrated in her eyes and the gause put in her mouth. The appellant thereafter ignited her by match-
stick and therefore she had sustained burns to her body. The said statement was read over to the victim Prachi and PW-14 P.I. Shri Patil thereafter took the left leg toe impression of Prachi on the said statement. The said dying declaration is at Exhibit 80.
9. Thus, after reading the two dying declarations which are recorded by PW-14 P.I. Shri Patil, it is clear that deceased Prachi has given a complete go-by to her first dying declaration and has put up a totally changed version of the facts about the same incident dated 29.2.2004. The Exhibit 80 which is supplementary statement/dying declaration dated ::: Downloaded on - 29/03/2014 18:57:53 ::: 10 APEAL.512-2007.sxw 2.3.2004 clearly shows an introduction of a totally new case. It is pertinent to note here that Prachi was admitted in the hospital by PW-Sanjay Gaikwad, her cousin brother, and PW-1 Surekha Dhivar in her evidence has stated that she was near Pachi during the period i.e. till the death of Prachi in the hospital. Likewise, PW-2 Mahendra and PW-4 Sanjay were also with the victim at that relevant time and therefore the possibility of tutoring the victim Prachi cannot be ruled out.
10. As has been held in the case of Suresh s/o Arjun Dodorkar (supra) by the Division Bench of this court, all the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations, in respect of the names and the number of accused, the prelude to the incident and the incident itself. While reiterating the position of law as held in the aforesaid judgment, we hold that if in the dying declaration truthfulness of the narration itself is rendered doubtful, no reliance whatsoever can be placed on the dying declaration. That dying declaration has to pass all the tests of reliability as the declarant is not available for cross-examination. In cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. In our opinion, therefore, no reliance can be placed on the dying ::: Downloaded on - 29/03/2014 18:57:53 ::: 11 APEAL.512-2007.sxw declarations at Exhibits 75 and 80.
11. This takes us to oral dying declaration alleged to have been made by Prachi to PW-1 Surekha Dhivar, PW-2 Mahendra Gaikwad and PW-4 Sanjay Gaikwad. PW-1 Surekha Dhivar in her testimony has stated that Prachi was her niece i.e. daughter of her brother. The marriage of Prachi was performed on 7.12.2003 at Hadapsar, Pune with the appellant.
She has stated that after marriage, Prachi cohabited with the appellant. She has stated that after the marriage itself, the appellant came to the house under the influence of liquor and stated that he did not like Prachi. The appellant further stated that he loves another girl and his marriage with Prachi was foisted upon him by his parents. Prachi told her that on various occasions the appellant had ill-treated Prachi. The relatives of Prachi tried to explain the appellant and requested him not to ill-treat Prachi. PW-1 Surekha in her testimony has further stated that on 29.2.2004 she received a phone message of one Gaikwad informing her that the appellant has poured kerosene on the person of Prachi and set her ablaze. Prachi thereafter has been admitted in Sassoon hospital. She has further stated that she immediately went to the Sassoon hospital at burn-ward. She saw Prachi and asked her about the incident. PW-1 Surekha has further stated that Prachi told her that when she went near the bathroom, the appellant closed ::: Downloaded on - 29/03/2014 18:57:53 ::: 12 APEAL.512-2007.sxw the door of the bathroom and tied her hands and kept piece of cloths in her mouth and poured kerosene on her person and set her ablaze. PW-1 Surekha in her testimony has nowhere referred or mentioned about the presence of PW-2 Mahendra and PW-4 Sanjay at the hospital.
PW-1 Surekha was cross-examined by the appellant at length, wherein various omissions have been elicited from her. A suggestion was put to this witness that Prachi committed suicide by pouring kerosene and setting herself on fire as Prachi was having love-affair with one Siddharth Jadhav. What is important to note here is that PW-1 Sreukha is silent about the presence of PW-2 Mahendra and PW-4 Sanjay any time at the hospital.
12. PW-2 Mahendra Gaikwad in his testimony has stated that Prachi was his cousin. He has further narrated about the ill-treatment given by the appellant to victim Prachi. He has stated that on 29.2.2004, he received a message on telephone of his brother Sanjay (PW-4) that Prachi was burnt by her husband i.e. the appellant. He then went to Sassoon hospital. He stated that Prachi was conscious. He had asked Prachi about the incident when Prachi told him that at about 2.30 pm when she was in bathroom, the appellant tied her hands and poured kerosene on her person and set her ablaze.
In cross-examination, PW-2 Mahendra has admitted that on ::: Downloaded on - 29/03/2014 18:57:53 ::: 13 APEAL.512-2007.sxw 29.2.2004 PW-4 Sanjay gave a phone call to him at about 3.15 pm. At about 4 pm he went to Sassoon hospital and had a talk with Prachi in Sassoon hospital. He has further admitted that his brother Sanjay (PW-4), Surekha (PW-1), husband of Surekha, grand-mother of Prachi were present in Sassoon hospital at that relevant time. In his cross-examination, a suggestion was put to this witness that Prachi committed suicide as she was having love-affair with one Siddharth Jadhav and on the ground that the appellant was ill-treating her.
13. PW-4 Sanjay Gaikwad in his testimony has stated that Prachi was his cousin and on 29.2.2004 after receipt of information about burning of Prachi, he immediately went to her house and observed that Prachi was sitting near bathroom in burnt condition. Prachi shouted after seeing him and requested him to save her. Prachi also told him that her husband i.e. the appellant burnt her. He thereafter gave a phone call on number-100 to police and called an ambulance. As the ambulance did not come to the spot immediately, he hired one rickshaw and took Prachi to the hospital after wrapping her in a blanket.
In cross-examination, a suggestion was put to this witness that Prachi had committed suicide by setting herself on fire as Prachi was having love affair with one Siddharth Jadhav and also the appellant was ::: Downloaded on - 29/03/2014 18:57:53 ::: 14 APEAL.512-2007.sxw harassing and ill-treating Prachi on various counts. It is pertinent to note here that this witness in his testimony has nowhere stated that PW-1 Surekha and PW-2 Mahendra were present in Sassoon hospital on 29.2.2004.
14. Thus on combined reading of the testimonies of the aforesaid three witnesses, it reveals that PW-2 Mahendra has admitted in his cross-
examination that PW-1 Surekha and PW-4 Sanjay were present in the hospital on 29.2.2004, whereas PW-1 Surekha in her testimony has not stated about the presence of PW-2 Mahendra and PW-4 Sanjay. Likewise, PW-4 Sanjay in his testimony does not refer about the presence of PW-1 Surekha and PW-2 Mahendra. PW-4 in his testimony does not mention about the exact words mentioned by Prachi to him about the incident of burning in the oral dying declaration.
15. Thus apart from the fact of presence of the witnesses PW-1 Surekha , PW-2 Mahendra and PW-4 Sanjay on 29.2.2004 in the hospital which creates doubt about there presence, there is variance in the oral dying declaration given by Prachi to these witnesses. There is no consistency at all about the oral dying declaration given by Prachi to these witnesses and hence in our opinion no reliance can be placed on these three dying declarations. As stated hereinabove, in cases where there are multiple ::: Downloaded on - 29/03/2014 18:57:53 ::: 15 APEAL.512-2007.sxw dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations have to be necessarily rejected. Here in the present case, the presence of PW-1 Surekha, PW-2 Mahendra and PW-4 Sanjay in the hospital itself creates doubt and possibility of tutoring the victim Prachi cannot be ruled out.
16. After scrutinizing the entire evidence available on record, we are of the opinion that the possibility of suicide by Prachi cannot be ruled out on the ground that the appellant used to ill-treat Prachi on account of his foisted marriage with Prachi by his parents upon him and Prachi herself told witnesses that the appellant did not like Prachi and being frustrated because of the said ill-treatment, there is a probability that Prachi might have committed suicide. Taking into consideration the aforesaid facts, the appellant is entitled to be given the benefit of doubt.
17. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.
(A.S. GADKARI,J.) (P. V. HARDAS,J.) ::: Downloaded on - 29/03/2014 18:57:53 ::: 16 APEAL.512-2007.sxw ::: Downloaded on - 29/03/2014 18:57:53 :::