Bombay High Court
Rajendra S/O Shrihari Sarwade vs The State Of Maharashtra on 25 April, 2022
Author: S.G. Dige
Bench: Sadhana.S. Jadhav, S.G. Dige
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.91 OF 2015
Rajendra S/o Shrihari Sarwade
Age - 33 years, Occ : Labour,
R/o Katgaon, Latur,
Tq. & Dist. Latur
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. S.D. Kaldate h/f Mr.V.D. Gunale,
Advocate for Appellant.
Mr. S.P. Deshmukh, A.P.P. for Respondent.
...
CORAM: SMT.SADHANA.S. JADHAV AND
S.G. DIGE, JJ.
DATE OF RESERVING JUDGMENT : 16TH MARCH, 2022.
DATE OF PRONOUNCING JUDGMENT: 25TH APRIL, 2022.
(THROUGH V.C.)
JUDGMENT [PER S.G. DIGE, J.]:
. The appellant impugns a judgment and
order dated 29th December, 2014 passed in Sessions
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Case No.85 of 2013, whereby he is convicted for
the offence punishable under sections 302 of the
Indian Penal Code, 1860 (for short, "IPC"). The
appellant is sentenced to suffer life imprisonment
with fine of Rs.5000/-, in default, to suffer
rigorous imprisonment for three months.
. Brief facts are as under :
2. The appellant and deceased Chhaya (for
short, "Chhaya") was married 9 years prior to the
incident. They were residing at Mauje Katgaon,
Dist. Latur. On 5th April, 2013, at around 5.00
p.m., the appellant had poured kerosene on the
person of Chhaya and set her ablaze. The appellant
was alleged to have committed the said offence as
he was suspecting her character. Chhaya in bid to
save her life plunged into gutter in front of her
house. On hearing Chhaya's shout, her mother-in-
law Smt. Sitabai (PW-4) and grandmother Smt.
Sunanda (DW-1) came to the spot and tried to
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extinguish the fire, meanwhile villagers gathered
at the spot and arranged vehicle and brought
Chhaya to Civil Hospital, Latur. Chhaya was
admitted in Civil Hospital, Latur. During
treatment of Chhaya in Civil Hospital, she has
given two dying declarations. Chhaya succumbed to
the burn injuries on 12.04.2013. After her demise,
crime under section 302 of IPC came to be
registered against the appellant on the basis of
dying declaration of Chhaya. The appellant was
arrested on 19th April, 2013.
3. After completing the investigation, the
charge-sheet was filed against the appellant. The
case was committed to the Sessions Court. The case
was tried before learned Additional Sessions
Judge, Latur. The appellant abjured his guilt and
desired to face the trial. The prosecution in
support of its case examined twelve witnesses.
After completion of the prosecution evidence, the
statement of appellant under section 313 of the
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Code of Criminal Procedure, 1973 (for short
"Cr.P.C.") recorded. It is defence of the
appellant that the said incident was happened due
to inflammation of the stove and he was not
present in the house at the time of incident. The
defence has also examined one witness Smt. Sunanda
Mahadhu Sarode as (DW-1).
. Considering the evidence on record and
submissions made on behalf of both the parties,
the learned Trial Court by Judgment and order
convicted the appellant for the offence for which
he was tried. Against the said Judgment and Order,
this Appeal.
4. Heard learned Advocate for the appellant
and learned A.P.P. for respondent-State.
5. It is the contention of learned counsel
for the appellant Mr.S.D. Kaldate that the
prosecution case is based on the dying
declarations but these dying declarations are
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suspicious. There is delay in lodging the First
Information Report after recording the dying
declarations. Doctor, who has put endorsement on
the dying declarations, was not present while
recording the dying declarations. He further
submits that it has come on record that the
deceased was not in a position to give dying
declarations. There is no corroborative evidence
in respect of dying declarations. At the time of
admission, Chhaya had given history of her burn
injuries and stated that it was accidental but
said history is suppressed by prosecution. The
learned trial Court has erred while considering
the evidence on record. Hence requested to allow
the appeal.
6. It is the contention of learned A.P.P.
Mr.S.P. Deshmukh that two written dying
declarations are consistent. These are recorded by
the Police Constable and the Executive Magistrate
who are independent witnesses. There is no reason
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to them to depose against the appellant-accused.
Both dying declarations are endorsed by the doctor
that the deceased was in fit state of mind to give
the dying declarations. There was burn injury on
the leg of the appellant, which proves that the
appellant was present at the time of incident.
Considering the evidence on record, learned trial
Judge has convicted the appellant. Hence, the
judgment and order passed by the learned trial
Judge is legal and valid.
7. We have considered the submissions of
both the learned Advocates. Perused the Judgment
and Order passed by the learned Trial Court.
8. Admittedly, prosecution case mainly
hinges on two dying declarations, which are
recorded by the PW-7- Bhagwan Bhaguram Kendre and
PW-11-Saudagar Uttam Kamble. PW-10-Dr.Suboor
Shakil Ahmed is the doctor, who has endorsed on
these dying declarations. Firstly, we would see
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evidence in respect of these dying declarations.
9. The first dying declaration is recorded by
PW-7 - Bhagwan Bhaguram Kendre-Police Constable.
He has deposed that on 5th April, 2013 from 8 am
till 8 am of next day, he was on duty at Police
Chowky at Civil Hospital, Latur. On that day, his
predecessor Shri Ranjhunjare handed over
Medicolegal Case (for short, "MLC") and letter of
opinion of Dr.Waghmare to him. This witness gave
letter to Dr.Shaikh - Medical Officer seeking
opinion as to whether the patient was in a
condition to give statement. It is at Exhibit-28.
Dr.Shaikh (PW-10) examined Chhaya and made
endorsement that Chhaya was in a position to give
statement. This witness explained Chhaya that he
was intending to record her statement. He had
recorded the statement in his own handwriting as
per say of Chhaya. He again requested doctor to
examine patient Chhaya and Dr.Shaikh certified
that the patient was in condition to give
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statement. Accordingly, the doctor put his
endorsement at the foot of said statement. The
same is marked as Exhibit-29. At the time of
recording statement, this witness, Dr.Shaikh and
deceased Chhaya were present. Chhaya narrated
before this witness that accused Rajendra used to
suspect her character and oftenly used to beat
her. She told this witness that the accused used
to abuse her saying that she belongs to lower
parentage family. She told this witness that
accused (appellant) told her that accused intends
to set her on fire and he brought kerosene Can and
poured it on her person and set her on fire by
igniting match-stick. She told that at the time of
said incident, beside she herself and accused,
nobody was present there. She told that she came
outside the house and in order to save her life
plunged into the gutter. On hearing Chhaya's
shout, her mother-in-law Smt. Sitabai and
grandmother Smt. Sunanda came to the spot and
tried to extinguish the fire, meanwhile villagers
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gathered at the spot and arranged vehicle and
brought Chhaya to Civil Hospital, Latur. This
witness further stated that he recorded the
statement of Chhaya as per her say. It was read
over to her and then obtained her right thumb
impression on it. It is at Exhibit-29.
10. This witness further stated that on the
same day, he immediately issued letter to the
Executive Magistrate/ Tahsildar, Latur requesting
to record statement of Chhaya as she was in a
condition to give statement. This witness sent
letter to Tahsildar through Police Constable
Mr.V.S. Gaikwad. It is at Exhibit-30. Thereafter,
this witness went to another ward for other work.
On 12th April, 2013, after death of Chhaya, doctor
issued another MLC, which is at Exhibit-31. This
witness sent the MLC to Gandhi Chowk Police
Station for recording Accidental Death.
Accordingly, Accidental death was recorded and for
preliminary inquiry it was handed over to this
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witness. Thereafter, in the presence of one male
and one female panch, he prepared inquest
panchanama of Chhaya, which is at Exhibit-18. The
dead body of deceased Chhaya was sent for
postmortem along with letter. Said letter was
accompanied with documents i.e. inquest
panchanama, information form of dead body, which
is at Exhibit-32. This witness collected documents
and sent it with covering letter to Gandhi Chowk
Police Station, which is at Exhibit-33. This
witness was directed to make preliminary inquiry
on registering Accidental Death. Accidental Death
certificate is signed by Police Station Officer -
Shri Shaikh, it is at Exhibit-34.
11. The second dying declaration is recorded
by Naib Tahsildar. PW-11-Saudagar S/o Uttam Kamble
deposed that on 6th April, 2013, he was working as
Naib Tahsildar at Tahsil office, Latur. On that
day, he received letter at 9.30 p.m. requesting to
record the dying declaration of injured Chhaya
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Rajendra Sarwade. It is at Exhibit-30.
Thereafter, he went to Burn Ward in Civil
hospital, Latur. He met Dr.Subur Shaikh (PW-10)
and asked to examine the patient and give the
opinion in respect of condition of the patient for
recording the dying declaration. Accordingly,
Dr. Shaikh examined injured Chhaya and opined that
the patient was in position to give statement.
Doctor put his signature by endorsing on the dying
declaration form given by this witness. This
witness introduced himself to injured Chhaya and
told her that he wanted to record her statement.
Accordingly, he put questions to the injured
Chhaya and she answered the same and it was
recorded accordingly. Chhaya stated before him
that on 5th April, 2013, at about 5.00 p.m., her
husband Rajendra Sarwade (appellant-accused)
started beating her saying that she was bad in
character, hence she was staying at her parental
house. She further told that the accused poured
kerosene from the plastic Can on her person saying
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that he would set her on fire, then the accused
lighted the matchstick and threw it on her person.
In order to extinguish fire on her person, she
herself roll over into the drainage. She further
stated that accused Rajendra used to quarrel with
her ofently prior to the incident. At the time of
incident, she and accused were at their house.
When this witness asked her, who is responsible
for the incident, Chhaya stated that her husband
Rajendra (appellant) is responsible for the
incident. After recording the statement, it was
read over to Chhaya and then obtained her thumb
impression on the dying declaration. Thereafter,
this witness also put his signature on the dying
declaration and asked the Doctor to again examine
Chhaya and opine about her condition. Accordingly,
Dr. Shaikh (PW-10) examined Chhaya and put the
endorsement at the bottom of the dying declaration
that she was in a position to give the statement
and also put his signature below it. The said
dying declaration is at Exhibit 47. This witness
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took the dying declaration to his office and
sealed it. On receiving letter from the Police,
this witness sent the sealed dying declaration to
the Police Station.
12. In cross examination, this witness
admitted that he did not issue any request letter
to Dr. Shaikh to examine the patient and give
opinion about condition of the patient. This
witness further admits that there is no
endorsement put by him on dying declaration
Exhibit-47 to the effect that it was read over to
Chhaya and she has admitted the contents of it.
13. The prosecution has examined Dr. Suboor
Shaikil Ahmed to prove that at the time of
recording dying declaration deceased Chhaya was in
fit state of mind. The said dying declarations
were recorded in presence of this witness.
14. PW-10-Dr. Suboor Shakil Ahmed deposed
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that on 6th April, 2013, he was working as Medical
Officer in Burn Ward, Civil Hospital, Latur. On
that day, Police Constable Kendre from Gandhi
Chowk Police Station, Latur came to the burn ward
for recording the statement of patient Chhaya
Rajendra Sarwade at 8.55 p.m. On that day, he
examined Chhaya and gave the endorsement that she
was physically and mentally fit for recording the
statement. Accordingly, the Constable Kendre
recorded the statement of Chhaya in his presence
and he put his signature on the said statement. It
is at Exhibit-29. He stated that on 6 th April,
2013, the Naib Tahsildar, Latur came to Burn Ward
at about 9.55 p.m., for recording the dying
declaration of patient Chhaya. At 9.55 p.m., he
examined patient Chhaya and put the endorsement at
10 p.m. on dying declaration form stating that
Chhaya was physically and mentally fit for
recording statement. Thereafter, Naib Tahsildar
recorded the dying declaration of Chhaya in his
presence. Thereafter also he examined Chhaya and
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found that she was physically and mentally fit
during recording of the statement. This witness
put his endorsement on the said dying declaration.
It is at Exhibit-47.
15. The relevant contents of the statement
made by this witness in cross-examination are as
under:-
"I treated Chhaya since 05.04.13 till
12.04.13. I had a talk with patient on
05.04.13 and her history was recorded at
the time of admission. The patient has
not stated about the homicidal burn
injuries sustained by her. She has also
not stated in history that her husband
poured kerosene and set her on fire. It
is true that without any request in
writing from Police or the Tahasildar,
we did not examine the patient regarding
his/her capability to give statement. It
is true that there is no letter on
record issued by the Tahasildar. If the
patient is not able to speak and is also
not mentally sound, these can be the
reasons for giving the opinion that the
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patient is not fit for giving statement.
Witness volunteers that there may be
other reasons. It is true that before
examining the patient, on 6th while
recording the statement, the patient was
examined by me and I gave the opinion in
writing that the patient was not fit for
recording statement. It is true that
since 5th of April, 2013, till 12th of
April, 2013, the relative of patient
used to meet her. It is true that I
cannot state the contents of the
statement recorded Exhibit-29 and 47 as
I did not listen the statement
carefully."
16. It is contention of learned counsel for
appellant that history given by Chhaya at the time
of admission in respect of accidental burn injury
is absent. Dying declarations are not corroborated
by other circumstances.
17. It is settled principle of law that the
conviction can be based on the sole dying
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declaration of the deceased if the dying
declaration found to be consistent, coherent and
made in a conscious state of mind. Keeping this
principle in mind, we would scrutinize the
evidence came on record point wise.
18. (1) History of Incident :-
Generally victim or the person, who
brought the victim to the hospital gives history
of incident about injuries caused to the victim.
The nature of injury can be classified into three
classes namely homicidal, suicidal and accidental.
In present case, it is prosecution's case that
burn injuries of Chhaya were homicidal. Appellant
poured kerosene on her person and set her ablaze.
It has come in evidence of PW-10-Dr. Suboor, who
has treated Chhaya. On 05.04.2013, he had recorded
history of Chhaya regarding her burn injuries at
the time of admission. This witness in cross-
examination admitted that Chhaya has not stated
about homicidal burn injuries sustained by her.
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She has not stated in history that her husband
(appellant) poured kerosene and set her on fire.
Prosecution has not produced document of history
given by Chhaya along with charge-sheet. The
evidence of this witness creates doubt about
prosecution's case about homicidal death of
Chhaya. This witness is independent witness. The
cases which are based upon evidence of dying
declarations, what history is narrated by deceased
to doctor is evidence of primary nature. The
history given by victim at the time of admission
in hospital can be used as corroborative evidence
where dying declarations are suspicious.
(2) Fit state of mind :-
At the time of recording dying
declaration fitness of that person i.e. state of
health and mind is very important, whether a
declarant is in fit state of mind is a question of
fact. The fact is to be proved by the person who
has given opinion of it. The opinion must be based
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on a person having special skill or knowledge in
the medical science. In present case, PW-10 Dr.
Suboor made endorsement on both dying declarations
stating that Chhaya is fit for giving statement.
In cross-examination, this witness admitted that
before examining the patient on 06.04.2013 while
recording the statement the patient was examined
by him and he gave opinion in writing that patient
was not fit for recording the statement. The said
report is not produced by prosecution. PW-12 -
Investigating Officer Shri Vishnu Gapat in cross
examination admitted that letter Exhibit-33
(letter given to Gategaon Police Station) was
received by him. The annexure at Sr. No.10 of
Exhibit-33 is opinion about condition of patient
not in a position to give statement. The said
opinion letter is not on record. This witness
stated that he can not assign any reason as to why
the said report is not submitted with charge-
sheet. It has come on record that Chhaya gave two
consecutive dying declarations spanning to one
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hour i.e. Exhibit-29 - dying declaration before
PW-7 Shri Kendre from 9 p.m. to 9.30 p.m. and
PW-11 Shri Kamble from 10.00 p.m. to 10.30 p.m.
PW-9- Dr.Dharmaraj Dudde, who has conducted
postmortem of Chhaya's dead body in cross
examination admitted that due to burn flames and
super heated airs, the bronchioles and trachea
were blacken due to carbon particles. He further
admitted that soothing particles were seen in
trachea. It is possible that vocal cord may damage
due to soothing, if vocal cord is damaged the
speaking capacity is impaired. The Chhaya was
having 66% burn injuries. If cross-examination of
PW-10 and PW-9, as well as not producing
certificate given by PW-10 that Chhaya was not fit
to give statement considered, it creates doubt
about prosecution story that for one hour deceased
Chhaya was giving dying declarations and she was
in fit state of mind at the time of giving dying
declarations.
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(3) Consistency in dying declarations :-
When there are more dying declarations,
consistency is a very relevant factor. In
(Exhibit-47) second dying declaration, Chhaya has
stated that prior to setting her on fire accused
beated her whereas in first dying declaration
(Exhibit-29) Chhaya has not stated about beating
by accused prior to incident of setting her on
fire.
(4) Corroboration to the dying declaration :-
There is no doubt in accepting evidence
of dying declaration for conviction, if such dying
declaration is not suspicious or needs no
corroboration from other evidence. As prosecution
case is that Chhaya was burnt alive by appellant
as he was suspecting her character, it is
necessary to see corroborative evidence. Deceased
Chhaya in her dying declarations stated that
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appellant would oftenly used to abuse and beat
her, suspecting her character. Prosecution has
examined, PW-3- Dhanaji Gaikwad (father of
Chhaya), PW-4 Sitabai Sarode(mother-in-law of
Chhaya), PW-5 - Smt. Vijayabai Gaikwad (mother of
Chhaya) to prove that Chhaya was abused and beaten
by appellant suspecting her character, but, these
witnesses did not support prosecution case. There
is no corroboration to dying declaration of Chhaya
that appellant used to suspect her character and
would abuse and beat her.
(5) Delay in lodging F.I.R. :-
Admittedly, the incident is happened on
05.04.2013 around 5.40 p.m. Two dying declarations
are recorded on 06.04.2013. When these dying
declarations are recorded on 06.04.2013 about
homicidal burn injuries, F.I.R. is registered on
13.04.2013 at 2 p.m. at Gategaon Police Station.
There is no explanation about 7 day's delay in
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lodging F.I.R. The F.I.R. ought to have been
registered under section 307 of the I.P.C. after
recording of two dying declarations Exhibit-29 and
Exhibit-47. PW-12 Shri Vishnu Gapat Investigating
Officer in cross examination admitted that he did
not make enquiry in respect of receiving the dying
declarations after seven day's of recording it.
The Officer's who recorded dying declarations of
Chhaya did not intimate this witness about reason
for sending dying declarations late. The learned
trial Judge in judgment has observed that dying
declarations were recorded at Civil hospital,
Latur which falls under jurisdiction of Gandhi
Chowk Police Station whereas incident was happened
under the jurisdiction of Gategaon Police Station,
Taluka Latur, hence delay was caused and it is
justifiable. We are unable to understand the
reason given by the learned trial Court for delay
in lodging F.I.R. being different Police Stations,
as these Police Stations are in same taluka,
information could have been given to Gategoan
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Police Station through mobile phone, E-mail or
other method. The persons who have recorded dying
declarations are not layman. They are aware about
seriousness of incident. P.W.-7 is Police
Constable whereas P.W-11 is Niab Tahsildar.
Considering the seriousness of the act, Police
ought to have registered offence immediately on
the same day or next day, but there is seven day's
delay and no explanation is given why these dying
declarations were kept by PW-7 and PW-10 with
themselves, when there were allegations of
homicidal burn injuries. It is significant to note
that after death of Chhaya, her death was recorded
as accidental death and investigation of it was
given to PW-7 Shri Kendre, who had recorded
Chhaya's first dying declaration. Then also PW-7
remain silent about homicidal burn injuries of
Chhaya, After death of Chhaya, MLC was given by
Kendre to Gandhi Chowk Police Station, at that
time he could have informed to Police Station that
he had recorded dying declaration of Chhaya, but
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it was not done and accidental death was recorded,
it creates doubt about prosecution case. Though,
F.I.R. is registered on 13.04.2013, it was sent to
Magistrate on 17.04.2013, after gap of four days.
It should have been sent immediately to the
Magistrate as it was cognizable offence, but it
was not done. There is no explanation of said
delay is given by prosecution.
(6) Endorsement of reading over dying
declaration to victim :-
. Before recording dying declaration
Exhibit-47, PW-11 Shri Kamble has not given letter
to PW-10 Dr.Suboor to specify mental condition of
Chhaya for recording her dying declaration. P.W.-
11 states that he had read over the dying
declaration to Chhaya after recording it, but
Exhibit-47 shows that there is no endorsement put
by PW-11 that after recording the statement of
deceased Chhaya, it was read over to deceased and
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she had admitted that, it is written as per say.
It proves that it was not read over to Chhaya.
(7) Presence of witnesses and sign or thumb
impression of victim :-
It is prosecution case that both dying
declarations are recorded in the presence of PW-10
Dr.Suboor, but in cross-examination this witness
admitted that, he cannot state the contents of
Exhibit-29 and Exhibit-47 as he did not listen the
statements carefully. From version of this
witness, it becomes doubtful that he was really
present at the time of recording dying
declarations Exhibit-29 and Exhibit-47. The thumb
impression on Exhibit-47 is having dark ink
impression. Whereas other dying declaration
Exhibit-29, which was recorded prior to half an
hour, thumb impression of Chhaya is not clearly
visible on it. PW-9 - Dr. Dharmaraj Dattarao
Dudde, who has done postmortem of deceased Chhaya,
in cross examination admitted that he has not
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noticed any colour on the palm of Chhaya, the
question remains if deceased had given thumb
impression then colour of ink must have been
appeared on her thumb of right hand. It was not
noticed at the time of postmortem. After recording
dying declaration normally thumb impression is
taken but on perusal of the Exhibit-47, it appears
that thumb impression is adjusted while writing
last questions answer. It shows thumb impression
was taken first and then last question's answer is
written.
(8) Evidence of defence witness :-
PW-12 - Investing Officer, Shri Gapat has
deposed that he has recorded statement of one
Smt.Sunanda. She has stated before this witness
that she tried to extinguish fire on the person of
Chhaya. From this evidence, it is clear that
Smt.Sunanda Sarvade was present on day of
incident, when Chhaya had caught fire, therefore,
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her evidence is of material nature. She has not
been examined by prosecution as witness but she
has examined by defence as defence witness.
Smt. Sunanda (DW-1) (Exh.64) deposed that deceased
Chhaya was her grand daughter. She was residing
near house of this witness. Chhaya died due to
inflammation of stove, at the time of incident,
this witness was sitting in front of her door, on
hearing shouts she went to the spot and tried to
extinguish fire on Chhaya. At that time, accused
was not available at the spot. He was at bus
stand, Chhaya told this witness that while
preparing tea on the stove her sarree caught fire.
Accused on returning home tried to extinguish fire
on Chhaya. This witness and others took Chhaya to
hospital. This witness stayed with Chhaya in
hospital for three days. This witness further
stated that only on first day of incident, Chhaya
was conscious thereafter she was unconscious.
Nothing elicited in cross examination of this
witness to shake her evidence. Testimony of this
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witness is not considered by learned trial Court
as she is relative of appellant.
19. If we consider the evidence of defence
witness and history given by Chhaya at the time of
admission to PW-10, it proves that burn injuries
caused to Chhaya were accidental and not
homicidal. DW-1 was first person who met Chhaya
after incident and taken her to hospital, so there
is no reason to disbelieve her testimony.
20. Considering above reasons, we are of the
view that the prosecution failed to prove beyond
reasonable doubt that Chhaya's burn injuries were
homicidal and appellant set her on fire. There is
no corroboration to these dying declarations.
History given by Chhaya at the time of admission
to Civil Hospital is not produced with charge-
sheet. There is unexplained delay of lodging FIR.
Hence, we pass following order :
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O R D E R
(I) Criminal Appeal is allowed. (II) The judgment and order of conviction of the appellant for the offence punishable under section 302 of the Indian Penal Code in Sessions Case No.85 of 2013 passed by the learned Additional Sessions Judge-2, Latur is hereby set aside.
(III) The appellant be released forthwith, if not required in any other offence.
(IV) Fine amount, if paid, be refunded. [S.G. DIGE, J.] [SMT.SADHANA.S. JADHAV, J] sga ::: Uploaded on - 27/04/2022 ::: Downloaded on - 27/04/2022 23:51:47 :::