Bombay High Court
Dwarkabai Laxman Shende And 2 Others vs State Of Mah.Thr.Pso Wardha on 8 April, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
APPEAL.417.06
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 417/ 2006
1) Dwarkabai Laxman Shende
Aged about 50 years, occu: Labour
2) Pintu @ Shailesh Laxmanrao Shende
Aged about 20 years, occu: Labour
Both R/o Anand Nagar, Wardha
Tq. & Dist. Wardha.
3) Sau. Laxmibai w/o Rahul Nikose
Aged about 22 years, occu: Labour
R/o Butibori, Dist.Nagpur. .. ..APPELLANTS
versus
The State of Maharashtra
Through Police Station Wardha (City).. ..RESPONDENT
............................................................................................................................................
Ms. S.H.Bhatia, Advocate for appellants
Mr. M.J.Khan, APP for respondent-State
.............................................................................................................................................
CORAM: MRS. SWAPNA JOSHI, J.
DATE OF RESERVING: 22/03/2019
DATE OF PROUNOUCEMENT: 08/04/2019
JUDGMENT:
1. Challenge in this Appeal is to the judgment and order dated 14 th July, 2006, delivered by learned 2nd Ad-hoc Additional Sessions Judge, Wardha in Sessions Trial No.5/2006, convicting the appellants (hereinafter referred to as "the accused") for offence punishable under Sections 498A and 306 r/ws.34 of the IPC. For offence punishable u/s 498A, the accused were sentenced to suffer R.I. for one year and to pay ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 2 a fine of Rs. 1000/-, in default, to suffer SI for 3 months; whereas for offence punishable u/s. 306 IPC, they were sentenced to suffer R.I. for five years and fine of Rs. 1000/-,in default, SI for three months. Both the sentences were directed to be run concurrently.
2. The prosecution version as unfolded during the trial, can be summarized as under :-
Deceased-Pramila Gautam Shende was married about 10 years prior to the incident, with one Gautam Shende, who was the resident of same locality at Wardha. After marriage, they started residing at Wardha along with her in- laws, who are the appellants/accused herein. It is the case of the prosecution that the A1- Dwarkabai, mother-in-law; A2-Shailesh, brother-in-law and A3-Laxmibai, sister-in-law of deceased Pramila, used to ill-treat her, especially for about 3 /4 days prior to the date of incident. On 10.8.2005, a quarrel took place amongst them at about 9.00am, in which A2-Shailesh started quarelling and consequently abusing Pramila. A2 asked her to leave the house and said that she is not required by other accused. Due to said harassment, Pramila set herself ablaze. Pramila was taken to the hospital. She succumbed to her injuries on 17.8.2005. The statement of Pramila was recorded in the hospital by the Police who was on duty at the relevant point of time. On the basis of the said statement, offence was registered u/ss. 498A , 306 r/ws. 34 of IPC against the accused. The police visited the place of incident and recorded the spot panchnama. They seized two bottles of kerosene as well as burnt pieces of clothes of deceased along with a match box. The statement of witnesses were recorded by ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 3 police. So also, one more statement of deceased was recorded by the Executive Magistrate- PW7 Sachin Gosavi. After completion of investigation, charge sheet came to be filed in the court of CJM Wardha who committed the case to the Court of Sessions. On analysis of the evidence and after hearing both sides, the learned trial Judge convicted the accused, as aforesaid.
3. We have heard Ms.S.H.Bhatia, learned counsel (appointed) for the accused and Mr.M.J.Khan, learned Additional Public Prosecutor for the respondent- State. With their able assistance, I have carefully gone through the entire record and proceedings of the case.
4. Learned counsel for the accused vehemently argued that the learned trial Judge has not assessed the evidence led by the prosecution in its right perspective and has erroneously convicted the accused. She contended that the case is solely based on two varying dying declarations, one recorded by the police PW3- Janardhan Raghunath and another recorded by Executive Magistrate, PW7-Sachin Gosavi. She submitted that the first dying declaration cannot be relied upon as there is no certificate in respect of fitness of the deceased issued by the Medical Officer in writing. She further contended that even the second dying declaration recorded by Executive Magistrate is not upto the mark inasmuch as the Medical Officer has not certified that the patient was physically and mentally fit to give her statement. In the backdrop of the above-referred facts, it is contended that both the dying declarations cannot be relied upon and no conviction can be based on such inconsistent dying declarations, which are not free from doubt. The learned counsel submitted that in the ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 4 circumstances, the accused are entitled for acquittal since there is no convincing and cogent evidence on record to prove the guilt of the accused.
5. Per contra, Mr. M.J. Khan, learned APP supported the impugned judgment and contended that the certificate of the Medical Officer that the patient is fit to give her statement is not required in order to prove the fitness of the patient and if the Executive Magistrate is satisfied that the patient was fit to give her statement, is sufficient to bring home the guilt of the accused. According to leaned APP, the prosecution has proved its case beyond reasonable doubt.
6. In order to bring home the guilt of the accused, the prosecution has examined as many as ten witnesses. The relevant witnesses are PW1-Prashant Taksande, brother of the deceased PW2-Lalitabai Taksande, mother of the deceased, and PW 3-Janardhan, Head Constable, who recorded the first dying declaration.
7. As far as the dying declaration is concerned, it is well-settled that conviction can be based on the sole dying declaration of the deceased if the dying declaration is found to be consistent, coherent and made in a conscious state of mind. Time and again, the Hon'ble Apex Court has laid down guidelines to follow while recording the dying declaration. It is expected that the Courts should be extremely careful when they deal with the dying declaration as the maker thereof is not available for cross-examination which poses a great difficulty to the accused person. The Court has to examine the dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the Investigating agency ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 5 who may be interested in the success of investigation or who may be negligent while recording the dying declaration. It is also well settled that when there are more than one dying declarations, it should not be that the dying declaration which supports the prosecution case alone can be accepted while innocuous dying declarations have to be rejected. While recording the dying declaration the Court has to see that, (i) the examination of the patient by the doctor is conducted, before recording of his statement and a certificate is obtained from the Doctor that the person is in a sound mental state to give statement; (ii) the presence of the doctor near the patient during recording of the statement; (iii) the relatives of the patient should not be near the patient and if at all present should be removed from that place where the statement of the patient is being recorded so that the patient should be in a position to make voluntary statement, free from any influence or any tutoring; (iv) after recording the statement it should be read over to that person and the contents thereof should be explained. There should be confirmation from that person that the statement is correctly recorded and it has true sense. No such guidelines are followed in the instant case.
8. Keeping in mind the aforesaid guidelines, the dying declarations are to be scrutinized carefully. The prosecution case mainly hinges on as many as two inconsistent dying declarations. The prosecution heavily relied upon the dying declaration made by Pramila; the first was made to the Police Head Constable PW3. According to PW3 on 10.8.2005, he was on duty at General Hospital, Wardha (outpost). He received information from the Medical Officer that one Pramila Gautama ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 6 Shende was admitted in the hospital in a burnt condition at 10.00 am. PW3 issued a requisition to the Medical Officer, whether patient was fit to give her statement. The Medical Officer orally informed that the patient was in a fit condition to give her statement. PW3 then proceeded to record statement of Pramila. According to her, the mother -in-law, sister- in-law and brother-in-law used to trouble her. On 10.8.2005 her brother-in- law A2-Shailesh abused and threw her utensils and asked her to leave the house. Pramila therefore poured kerosene on her person and set herself afire. According to her version, she was then admitted to the hospital. The statement of Pramila was recorded by PW3 at Exh.34.
9. The testimony of PW3-Janardhan is difficult to rely, for the obvious reason that there was no endorsement of the Medical Officer in writing that Pramila was physically and mentally fit to giver her statement. In the absence of the certificate of the Medical Officer in that regard, it would be difficult to believe that Pramila was in a condition to give her statement. Thus, the first dying declaration (Exh.34) recorded by PW3 is not found to be a trustworthy document.
10. Now coming to the second dying declaration of Pramila, which was recorded by Executive Magistrate, PW7-Sachin Gosavi. PW7 deposed that on 10.8.2005, he received a requisition from the City Police Station, Wardha, to the effect that that one patient was admitted in Sevagram Hospital and her statement was to be recorded. He then proceeded to the Hospital and contacted the Medical Officer and inquired whether the patient is mentally and physically fit to give her statement. The Doctor examined and certified that patient was in a fit condition. ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 :::
APPEAL.417.06 7 Thereafter, PW7 recorded the statement of Pramila. Pramila stated before PW7 that she was residing along with her husband, mother-in-law, brother-in-law at Anand Nagar, Wardha. She told that her sister-in- law was residing at Butibori. Two days prior to the recording of her statement, her sister-in-law had come to Anandnagar Wardha. She further stated that there is trouble from her mother-in-law and brother- in-law since the date of marriage and her sister-in-law is instigating the other accused against her. She informed that on the date of incident, there was quarrel in the morning, inasmuch as A2-Shailesh asked her to go out of the house else he would set her on fire. PW7 then obtained her thumb impression on the statement. According to him, only the Medical Officer was present at the time of recording her statement. The Doctor made an endorsement at the bottom of the statement of Pramila (Exh.50).
11. On careful scrutiny of the second declaration made by Pramila, it is noticed that there is difference in the contents of the second dying declaration when it is compared with the first dying declaration. Significantly, the version of Pramila that on the day of incident, her brother-in-law A2 Shailesh asked her to go out of the house or else he would set her on fire, does not appear in the first dying declaration. So also, both the dying declarations do not throw any light on the aspect of alleged ill- treatment at the hands of the accused. It is not clear as to what sort of harassment was done by the accused with Pramila, driving her to commit suicide. Even the testimony of near relatives of Pramila is silent on this aspect. So far as the second dying declaration is concerned below the thumb impression of Pramila, it is not mentioned by Executive Magistrate whether the thumb impression belongs to Pramila. ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 :::
APPEAL.417.06 8 It is worthwhile to note that the Medical Officer did not issue a specific certificate with regard to the physical and mental fitness of Pramila to give her statement. In the cross-examination, PW7 does not make it clear as to in what manner he got himself satisfied that Pramila was in a fit condition to give her statement. In this regard, the testimony of Medical Officer PW 9-Dr.Hemant Dhamat, reveals that on 10.8.2005, he informed the Police about admission of Pramila in the hospital with 45% burn injuries. On making enquiry by the police, he examined the patient, whether she was in a fit condition to give her statement. Thereafter, the Executive Officer recorded the statement made by the police (Exh.34). PW9 however, admitted that he had not issued a written certificate regarding fitness of the patient. He further clarified that there is difference between physical and mental condition of the patient. He also admitted that he had administrated pain-killer to the patient. In these circumstances, when PW9 failed to issue certificate with regard to the fitness of Pramila, the first dying declaration cannot be relied upon.
12. The Medical Officer, PW 10 Dr.Anand Thawkie, who examined Pramila on 10.8.2005, stated that he received a memo at 14.10 p.m. and was asked whether patient was in a fit condition to give her statement, on which he made an endorsement (Exh.57). PW10 fairly submitted during his cross-examination that the endorsement with regard to the fitness of patient on Exh.50 was at 7.25 pm. In this context, it is significant to note that dying declaration (Exh.50) recorded by Executive Magistrate shows the endorsement of the Medical Officer that the patient was fit to give her statement, at 7.25 pm. It is worthwhile to note that the Executive Magistrate has not ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 9 categorically mentioned as to at what particular time he enquired with the Doctor regarding the fitness of Pramila and at what time the Medical Officer made an endorsement about the fitness of Pramila and when the dying declaration was recorded. So also there is no convincing evidence on record to show that the Executive Magistrate was convinced and satisfied that the deceased was in a fit state to give her statement. There is absolutely no evidence on record to show that the Executive Magistrate put questions to the deceased and from the answers elicited he was satisfied that the patient was in a fit state of mind and thereafter he recorded the dying declaration.
13. Coming to the prosecution witnesses, PW1-Prashant Taksande, brother of the deceased, stated that there always used to be quarrels of Pramila with her sister-in-law and mother-in-law. According to him, the A2-Shailesh had not done anything to his sister. The testimony of PW2-Lalitabai, mother of deceased, shows that the accused used to quarrel with Pramila. On the date of incident, A2 asked Pramila to leave his house and also threw her utensils. The testimony of PW2 does not show that Pramila informed her mother that due to the alleged ill-treatment at the hands of the accused, she set herself on fire. During cross-examination, an improvement was pointed out in the testimony of PW2 in respect of the accused beating Pramila. PW2 admitted that her daughter was residing separately from the accused. She further admitted that husband of Pramila (who is not the accused before the Court) was doing the scrap business and was consuming liquor and, therefore, there was quarrel between her daughter and her son-in-law. Her daughter used to say that she would ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 10 commit suicide so also her son-in-law too used to say that he would also commit suicide. According to PW2, due to the behaviour of her son-in-law, the nature of her daughter had become irritating and her mental condition was not proper. The testimony of PW2 does not inspire confidence with regard to the fact that there used to be quarrel between the accused and Pramila and they used to ill treat her. Thus, there is no convincing and cogent evidence on record of the near relatives of Pramila to show that Pramila was ill-treated by the accused and the cruelty was of such a nature that she was driven to commit suicide.
14. On the point of inconsistent dying declaration, an useful reference of the judgment relied upon by the learned counsel can be made, in case of Bhadragiri Venkata Ravi vs. Public Prosecutor, High Court of Andhra Pradesh, reported in (2013) 14 SCC 145. Para Nos. 22,23, and 24 read thus : "22, It is a settled legal proposition that in case there are apparent discrepancies in two trying declarations, it would be unsafe to convict the accused. In such a fact-situation, the accused gets the benefit of doubt. (vide Sanjay v. State of Maharashtra:
(2007) 9 SCC 148; and Heeralal v.State of Madhya Pradesh, (2009) 12 SCC 671).
23 In case of plural./multiple dying declarations, the court has to scrutinise the evidence cautiously and must find out whether are is consistency particularly in material particulars therein. In case there are inter-se discrepancies in the depositions of the witnesses given in support of one of the dying declarations, it would not be safe to rely upon the same. In fact it is not the ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 11 plurarity of the dying declarations but the reliability thereof that adds weigh to the prosecution case. If the dying declaration is found to be voluntary, reliable and made in a fit mental condition, it can be relied upon without any corroboration. But the statements should be consistent throughout.
24. In case of inconsistencies, the court has to examine the nature of the same i.e. whether they are material or not and while scrutinising the contents of various dying declaratios, the court has to examine the same in the light of the various surrounding facts and circumstances, In case of dying declaration, as the accused does not have right to cross-examine the maker and not able to elicit the truth as happens in the case of other witnesses, it would not be safe to rely if the dying declaration does not inspire full confidence of the court about its correctness, as it may be result of tutoring, prompting or product of imagination. The court has to be satisfied that the maker was in a fit state of mind and had a clear opportunity to observe and identify the assailant(s)."
15. Learned counsel further relied upon judgment, in case of Samadhan Dhudaka Koli vs.State of Maharashtra, reported in (2008) 16 SCC 705, on the point of inconsistent dying declaration. Para nos.15,16,18 read thus:-
"15 Evidently, there are a few inconsistent and contradictory dying declarations. The court while appreciating evidence on the basis of such dying declarations is required to take into consideration ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 12 inconsistencies between two statements. In this case, the learned Sessions Judge and the High Court proceeded on the basis that out of the three dying declarations, in two of them the deceased did not make any allegation against her husband.
16. A judgment of conviction can be recorded on the basis of a dying declaration alone, but the court must have been satisfied that the same was true and voluntary. Indisputably, for ascertaining the truth as regards the voluntariness of making such a dying declaration, the court is entitled to look into the other circumstances but the converse may not be true.
18. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record. In Mehiboobsab Abbasabi Nadaf vs.State of Karnataka (2007 (9) SCALE 473) where four dying declarations were record,this court opined :
"6. Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon. In this case, the deceased herself had taken contradictory and inconsistent stand in different dying declarations. They, ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 13 therefore, should not be accepted on their face value. Caution,in this behalf, is required to be applied."
This Court noticed that as the deceased attributed the acts primarily on her parents-in-law and they having been acquitted, it was difficult to hold that appellant alone was responsible for causing her death."
16. In the instant case, there are material inconsistencies in the above
-referred two dying declarations and as such, it is difficult to rely upon the inconsistent dying declarations.
17. On the point of fitness of the person making the dying declaration, the learned counsel further relied upon the judgment, in the case of Manik Vanaji Gawali vs.State of Maharashtra; reported in 2013 CRI. L.J. 972, more particularly para nos.31 and 46 which read thus:
31. Whether a declarant is in fit state of mind is a question of fact. That fact is to be proved by the person who has received, listened, drawn memorandum or leaves in his memory. He has to prove the fact of state of health and mind of the declarant. Whenever such person proves that the declarant was in fit state of mind, it is his own opinion based on judgment as to said state derived from facts.
46. Even if a certificate by an expert about fitness of state of health is placed on record, such certificate by itself will not prove the fact represented therein, rather it will have to be proved by the medical witness by stepping into witness box. This aspect is ruled, inter alia, in Malay Kumar Ganguly vs. Dr.sukumar Mukherjee & ors., (2009 ) 9 ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 14 Suypreme Court Cases 221 at paragraph 34 by placing reliance on State of H.P. vs,. Jai Lal (supra) Paragraph 34 of the said judgment is quoted below for ready reference:
"34. Medical evidence is difficult one. The court for the purpose of arriving at a decision on the basis of the opinions of experts must take into consideration the difference between an "expert witness" and an"ordinary witness."
The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how must weight should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence. This Court in State of H.P. vs. Jai Lal held as under ; (SCC pp.2285=286, paras 17-10)"
18. An expert is not a witness of fact. His evidence is really of an advisory character.
The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 15 important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the date and material furnished which form the basis of his conclusion.
19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in Haji Mohammad Ekramul Haq vs.State of W.B. (2003) 8 SCC 752 concurred with the find of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons."
18. In the instant case, the dying declarations relied upon by the prosecution are inconsistent on material aspects which creates a serious doubt about the manner in which the incident had taken place. Similarly, it is not proved by the prosecution that the deceased was physically and mentally fit to give the statement. There is no cogent and convincing evidence on record to prove the case against the accused that he treated the deceased with cruelty, so much so that she was driven to commit suicide. The prosecution has failed to prove that the accued aided and abetted the deceased to commit suicide. There is no mens rea on the part of the accused that the deceased should commit suicide. The learned trial Judge ought to have considered the aforesaid facts and circumstances of the case in its proper perspective. As such, I am of the considered view that the prosecution has miserably ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 ::: APPEAL.417.06 16 failed to prove its case beyond reasonable doubt. Hence, the following order :-
ORDER
(a) Criminal Appeal No. 417/2006 is allowed.
(b) The impugned judgment and order dated 14.07.2006 in Sessions Trial No.5/2006 passed by learned 2nd Ad-hoc Additional Sessions Judge, Wardha is set aside.
(c) The appellants/accused are acquitted of the offence punishable u/ss. 498A, 306 r/ws.34 of the IPC.
(d) The fine amount if paid, shall be refunded to the accused.
(e) The appellants are on bail. Their bail bonds shall stand cancelled.
(f) The professional fees of the learned Advocate (appointed) for the appellants are quantified at Rs.5,000/-.
JUDGE sahare ::: Uploaded on - 08/04/2019 ::: Downloaded on - 09/04/2019 04:52:45 :::