Bombay High Court
State Of Mah. Thr. P.S.O., P.S. Warud vs Arun Devaji Ghormade And Anr on 30 August, 2018
Author: Swapna Joshi
Bench: P.N. Deshmukh, Swapna Joshi
APPEAL.333.11
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 333/2011
* State of Maharashtra
Through Police Station Officer
Police Station, Warud, Dist.Amravati. .. ..APPELLANT
v e r s u s
1) Arun Devaji Ghormade
Aged about 38 years
2) Babarao Devaji Ghormade
Aged about 56 years
Both R/o Dhaga, Tq.Warud
Dist. Armavati. .. RESPONDENTS
..................................................................................................................
Ms. H.N. Jaipurkar, Additional Public Prosecutor for appellant
Mr. R.M. Daga, Advocate for respondents
...................................................................................................................
CORAM : P.N. DESHMUKH &
MRS.SWAPNA JOSHI,
JJ.
DATED: 30th August, 2018
JUDGMENT:(PER MRS.SWAPNA JOSHI, J.)
1. The instant Appeal takes exception to the judgment and order dated 21st January, 2011 delivered by learned Additional Sessions Judge, Amravati, in Sessions Trial Case No.135/2008 acquitting the respondents (hereinafter referred to as "the accused") of the offences ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 2 punishable under section 498-A and 302 read with Section 34 of the Indian Penal Code.
2. The prosecution case can be summarized as under :
Lata was the wife of accused no.1-Arun; whereas accused no.2-Babarao, is the brother of the accused no.1. The marriage between Lata and accused no.1-Arun was solemnized just three months prior to the incident. After marriage Lata started residing with accused nos.1 and 2, at village Dhaga, Tq.Warud, Dist.Amravati. On the date of incident i.e. 8.5.2008 at about 6.00 pm, accused no.1 returned home from his work and asked Lata as to in whose house in the village she had gone? He further asked Lata to go to her parents' house. At the relevant time, accused no.2-Babarao was also present in the house. He asked accused no.1 either to reach Lata to her parents' house or set her ablaze. Thereafter, accused no.1 poured kerosene on the person of Lata and with the help a matchstick, set her ablaze; whereas accused no.2 caught hold of her hands. Due to the said act, Lata received hundred percent bun injuries. At the relevant time, Police Head Constable-Manohar Nandane (not examined), who was attached to Police Station Warud, on receipt of information about the incident in question, reached the place of the incident. He then took Lata to Rural Hospital at Warud and admitted her in the said hospital. ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 :::
APPEAL.333.11 3
3. Head Constable-Manohar Nandane recorded the dying declaration of Lata. On the basis of the said dying declaration, PW9- Head Constable-Arun Pethe registered the offence vide Cr. No. 43/2008. PW10-PSI Devidas Chavan arrested the accused persons on 9.5.2018 and on that day itself, he visited the place of incident and recorded the spot panchnama (Exh.83). The articles lying on the spot were taken charge under separate seizure panchnama (Exh.84). PW10 recorded the statements of witnesses on that day as well as on the next day. PW10-PSI Chavan took charge of the clothes of accused no.2-Babarao under seizure panchnama (Exh.86). He also took charge of the clothes of accused no.1-Arun under seizure Panchanama (Exh.86). On 9.5.2018 itself, PW10 sent the seized articles for analysis to Chemical Analyser's office. After completion of investigation, charge-sheet was filed in the Court of learned Judicial Magistrate,First Class,Warud. The case was committed to the Court of Sessions. On analysis of the evidence on record and hearing both sides the learned trial Judge acquitted the accused. The said judgment and order is impugned in the present Appeal.
4. Mrs. H.N.Jaipurkar, learned APP for appellant-State ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 4 vociferously contended that the impugned order is illegal and perverse inasmuch as the learned trial Judge has not considered the dying declaration recorded by the Executive Magistrate and even has not considered the oral dying declaration made by the deceased before the relevant witnesses. She submitted that the impugned judgment is erroneous and, as such, the accused are liable for conviction. Per cotnra, Shri R.M.Daga, learned counsel for the accused supported the impugned judgment and canvassed that since Head Constable-Manohar Nandane who registered the first information report has not been examined and the FIR is not proved by the prosecution is fatal to the prosecution case. The alleged dying declaration recorded by the Executive Magistrate is not found to be a reliable document; so also the witnesses before whom the deceased has made oral dying declarations are not found to be trustworthy. He submits that the learned trial Judge has rightly acquitted the accused.
5. 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 ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 5 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 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 ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 6 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.
6. It is not disputed that deceased Lata died due to 100 per cent burn injuries, on the next day of the incident i.e. 9.5.2008. In order to consider the rival contentions of both sides, it would be beneficial to go through the evidence led by the prosecution. The prosecution has mainly relied upon the testimony of PW2-Dr.Pramod Poddar which shows that on 8.5.2018 at about 9.15 pm, he received the requisition from Executive Magistrate to examine the patient, namely, Lata and certify her fitness or otherwise to record her dying declaration. PW2 found that the patient was fit to make her statement. He accordingly issued certificate below the requisition(Exh.46). According to PW2, the Executive Magistrate recorded statement of Lata (Exh.74) and after that, he again examined the patient and found that the patient was fully conscious. Accordingly, he issued post recording fitness certificate (Exh.47). PW2 stated that his first certificate was issued at about 9.20 pm. and the second post recording certificate was issued at about 9.50 ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 7 pm. During the cross-examination, PW2 admitted that in the certificate it is not mentioned that he had examined the patient before issuing the certificate. PW2 denied that the fitness of the patient was not at all certified before and after recording of those certificates and the same were issued subsequently to oblige the police. The testimony of PW2 does not, in any manner, show that the patient was physically as well as mentally fit to give her statement, particularly when the patient had received 100 per cent burn injuries and that he was all throughout present while recording the statement of Lata.
7. Now coming to the testimony of Executive Magistrate-PW8- Ramdas Borwar, who allegedly recorded the dying declaration of the deceased. According to him, on 8.5.2008 at about 9.15 pm, he visited the Primary Health Centre, Varud. He requested the Medical Officer in writing to give opinion whether the patient was in a fit condition to give her statement. Accordingly, he gave requisition (Exh.46). The Medical Officer examined the patient and issued the certificate. PW8, Medical Officer and one of the relatives of the patient namely, PW 12-Dipak Ghormade were present. PW12 informed him that he is a military man and requested to allow him to remain present near the patient. According to PW8, he allowed PW 12-Dipak to remain present near the ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 8 patient. PW8 then started recording the statement of Lata. Thereafter PW8 recorded the statement of Lata and obtained her thumb impression. Dipak also signed on the said statement endorsing that the statement was correct and recorded in his presence (Exh.74). Lata informed PW8 that Arun and his brother-Babarao burnt her. After recording the statement of Lata, PW8 requested the Medical Officer to examine Lata. Accordingly, he examined and opined that she was in a conscious condition. The entire process of recording dying declaration started from 9.15 to 9.50 pm. During the cross-examination, PW8 admitted that on the statement ( Exh.74) as well as requisition, there is no stamp of the office of Naib Tahsildar; even below the signature the name, surname and designation is not mentioned. PW8 further admitted that whenever the thumb impression is obtained on the dying declaration, it is required to be mentioned as to which thumb impression has been obtained. PW8 admitted that he had not mentioned below the dying declaration as to which thumb impression of the patient was obtained. He further admitted that he obtained signature of Dipak when entire process of recording the dying declaration was over. He further admitted that on the front page of the dying declaration there is no endorsement of the Medical Officer about after recording the dying declaration; he again examined the patient and found fit for recording ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 9 statement. He stated that the said endorsement is on the reverse side of the dying declaration. He however admitted that he has not put his signature on the reverse side page. On careful scrutiny of the testimony of PW8 it is noticed that PW8 although has stated that the patient was in a fit condition to give her statement, has not mentioned in his certificate that he has examined the patient and found her physically and mentally fit to give her statement. Admittedly, Lata had sustained 100 per cent burn injuries. In these circumstances, it was incumbent on PW8 to mention about the fact of physical as well as mental fitness of Lata while making her dying declaration. Similarly, in a situation, where Lata had received 100 per cent burn injuries, it is not clear as to how PW8 obtained the thumb impression of Lata on the dying declaration, particularly when PW8 had not clarified on the dying declaration as to of which thumb, the impression was obtained on the dying declaration. It is thus doubtful whether the thumb impression of Lata was obtained by PW8 on the dying declaration. It is further doubtful whether the said dying declaration was of Lata and Lata had made such dying declaration before PW8. Although PW8 stated that after the dying declaration also he examined the patient and found her fit for recording her statement, there is no such endorsement on front page of the dying declaration though there was ample space. It is worthwhile to note that there was ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 10 no need for PW8 to allow PW12-Dipak to remain present while recording the dying declaration. Admittedly PW8 was related to the deceased. In these circumstances, there is every likelihood that Lata was tutored by PW12-Dipak while making her statement before PW8. Thus, PW8 is not found to be a trustworthy and reliable witness and his testimony does not inspire confidence.
8. As regards the oral dying declaration made by deceased- Lata immediately after the incident , the prosecution has heavily relied upon the testimony of PW3-Subhash Ghormade, PW4-Baban Kale and PW5-Babarao Ghormade.
9. The testimony of PW3-Subhash Ghormade shows that he is the neighbour of accused no.1. According to him, 15 days prior to the date of occurrence the accused no.1 and his wife Lata had been to his house for baking snacks. However, nothing transpired in that connection thereafter. On the date of incident, he noticed that smoke was coming out of the house of accused. He rushed to the house of the accused to see as to what had happened. He noticed something was amidst the flames. He could not notice the thing which was in flames as it was dark. He tried to extinguished the fire. He further stated that accused ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 11 no.2- Babarao also came to the said spot and extinguished the fire. PW3 further stated that Lata said that she be taken to the hospital and accused nos.1 and 2 had set her ablaze. He further stated that Lata informed him that accused no.2-Babarao had caught hold of her hands and accused no.1 poured kerosene on her person and set her on fire. Lata was taken to Varud in a police vehicle which had come to the spot. Lata died on the next day. In the cross-examination PW3 admitted that there was no quarrel between the deceased and accused prior to the incident and they were his neighbours. He stated that they were residing happily . He categorically stated that the Police did not make make enquiry with him on the date of the occurrence so also the police never recorded his statement. He further admitted that he did not disclose to police, on the day of the occurrence, about the statement made by the deceased. PW3 admitted that a bundle of thatched sticks had caught fire and villagers were extinguishing the fire which broke out in the house of the accused. It is worthwhile to note that during the re-examination by the learned APP, PW3 was asked whether he had deposed on the strength of reading of the alleged statement before police or whether after witnessing the incident personally, to which PW3 replied that he had deposed on the strength of the police papers. The said version of PW3 makes it clear that he had deposed ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 12 on the basis of strength of police papers and he did not depose before the court as to what he had recollected after witnessing the incident. The version of PW3 further shows that the deceased had lost her consciousness. Thus, the testimony of PW3 does not inspire confidence at all and it is doubtful whether PW3 had witnessed the incident personally.
10. The testimony of PW4-Baban Kale, who is the neighbour of the accused persons, indicates that he reached the place of incident after the incident was over. According to him, he learned from the persons who had gathered at the place of the incident, that the wife of the accused no.1-Arun had suffered burn injuries. He stated that accused nos.1 and 2 brought wife of accused no.1 out of the house of accused no.1 and put her into the police vehicle. According to PW4, the wife of accused no.1 was shouting at that time, that accused nos.1 and 2 had set her on fire. It is pertinent to note that during the cross- examination, PW4 admitted that he did not inform the police that he had heard the shouts raised by the deceased that accused nos.1 and 2 had set her ablaze. Thus, PW 4 had tried to improve his version and his testimony therefore does not inspire confidence at all. ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 :::
APPEAL.333.11 13
11. The evidence of PW5-Babarao Ghormade, who is also the neighbour of accused, shows that on 8.5.2008 at about 6.00 pm he noticed that a fire had broken out in the house of accused. He went to see whether the house had caught fire. He saw the deceased Lata amidst flames in the house of accused no.1. He picked up a pot filled up with water and tried to extinguish the fire. At that time, accused nos.1 and 2 were present in the house; so also persons from the locality had gathered at that place. According to PW5, he enquired with Lata as to how she caught fire. On this, Lata told him that her brother-in-law had caught hold of her hands and her husband had set her on fire. Significantly, during the cross-examination the said version was pointed out as an improvement made by PW 5. PW5 admitted that he had not stated before the police on the very day of occurrence that he was present and had extinguished the fire by splashing water on the person of the deceased and he enquired with the deceased as to how she caught fire and she replied that the accused no.2 had caught hold of her hands and accused no.1 had set her on fire.
12. The spot panchnama (Exh.83) shows the place of the incident was an open space in the courtyard near the kitchen. A kerosene can was lying on the spot. The turtya ( dried stalk of tur) was ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 14 lying near it and the same was also burnt.
13. It is worthy to note, as discussed above, the prosecution has failed to examine the key witness Head Constable-Manohar who had allegedly recorded the dying declaration of deceased first in point of time and on the basis of which the investigating agency had registered the offence and was set into motion. The prosecution has suppressed the said document and consequently, the true genesis of the crime. Thus, it is doubtful whether deceased-Lata had made her dying declaration before the Executive Magistrate as well as before HC- Manohar when she had already sustained 100 per cent burn injuries. Even assuming that Lata was in a condition to make her statement despite receiving 100 per cent burns, as discussed above, there is no inspiring evidence on record of the Medical officer to show that Lata was in conscious condition and she was physically as well as mentally fit to make her statement before the Executive magistrate. No plausible explanation comes forth from prosecution for non-examination of Head Constable-Manohar who recorded the first information report. The dying declaration recorded by the Executive Magistrate, as discussed above, does not mention the date and time as to when the dying declaration was recorded. This Court is unable to fathom as to when ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 ::: APPEAL.333.11 15 Lata had sustained 100 per cent burn injuries, how her thumb impression was obtained by the Executive Magistrate below her dying declaration. Similarly, it is not clear as to of which finger the thumb impression was obtained, that is to say, right thumb or left thumb. There is no convincing evidence on record to show that all throughout recording the dying declaration, Lata was in fit state of mind. There is no clear endorsement as such on the dying declaration. This Court in the case of Sanjay Saosakde vs. The State of Maharashtra, reported in MANU/MH/3207/2015 has, in similar circumstances, held that dying declaration should be voluntary and should not be prompted and physical well as mental fitness of maker was to be proved by the prosecution. It is further held that the prosecution has miserably failed to prove material aspect beyond reasonable doubt.
14. Pertinently, a charge under section 498-A of IPC was framed against the accused. However in order to substantiate the said charge, there is absolutely no evidence on record to show that deceased- Lata was subjected to cruelty by the accused persons. Surprisingly enough, parents of Lata were not examined by the prosecution for the reasons best known to them. Thus, the learned trial Judge has rightly assessed the evidence on record and acquitted the accused persons. ::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 :::
APPEAL.333.11 16
15. In the case of Mahendra Pratap Singh .vs. State of Uttar Pradesh, reported in (2009) 11 SCC 334, the Hon'ble Apex Court has given a rule of prudence that if on appraisal of evidence and on considering relevant attending circumstances, it is found that two views are possible, one for acquitting accused and other for convicting accused, in such a situation, rule of prudence should guide High Court not to disturb the order of acquittal made by the trial court, unless conclusions of trial court drawn on evidence on record are found to be unreasonable and perverse or unsustainable, High Court should not interfere with the order of acquittal. In the case of Harbeer Singh .vs. Sheeshpal and others, reported in (2016) 16 SCC 418, it is observed by the Hon'ble Supreme Court on the same facts that another view could also have been taken on the evidence on record, is not a ground for reversing an order of acquittal. In view of the aforesaid facts and circumstances, no interference is warranted with the order of acquittal. Hence, the following order :
ORDER Criminal Appeal No.333/2011 is dismissed.
JUDGE JUDGE
sahare
::: Uploaded on - 06/09/2018 ::: Downloaded on - 06/09/2018 23:07:35 :::