Bombay High Court
Saderaj Baba Nagraj Baba Kapate (In ... vs State Of Maharashtra, Through P.S.O. ... on 8 July, 2016
Author: V.M.Deshpande
Bench: B.R.Gavai, V.M.Deshpande
apeal238.14 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.238 OF 2014.
APPELLANT: Saderaj Baba Nagraj Baba Kapate @
Anupam Padmakar Bodade, aged
about 35 years, R/o Riddhapur, Tq.
Morshi, Distt.Amravati.
: VERSUS :
RESPONDENT: State of Maharashtra,
through Police Station Officer,
Police Station, Shirkhed, Tq.Morshi,
Distt. Amravati.
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Mr.S.S.Dhengale, Advocate for the appellant.
Mr.N.B.Jawade, Addl.Public Prosecutor for the State.
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CORAM: B.R.GAVAI AND
V.M.DESHPANDE, JJ.
DATE: 8st JULY, 2016.
ORAL JUDGMENT (Per V.M.Deshpande, J.)
1. The appellant faced a Charge for the offence punishable under Section 302 of the Indian Penal Code for homicidal death of Sau.Nirmala. After a full fledged Trial in Sessions Trial No.35 of ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 2 2013, the learned Additional Sessions Judge - 4, Amravati found him guilty. Consequently, by the impugned judgment and order of conviction dated 13th of March, 2014, the appellant was directed to suffer imprisonment for life and also to pay a fine of Rs.10,000/- and in default of payment of fine to suffer further simple imprisonment for a period of three months. Hence, this appeal.
2. Such of the facts necessary for the decision of this appeal are as under :-
Deceased Nirmala used to reside with the present appellant. Though they were not married, they were in live-in-
relationship.
3. The incident is dated 10th of November, 2012 at about 6.00 p.m. at village Riddhapur. The place of the incident is a house of the appellant situated at Riddhapur. Incident of burning took place inside the said house, as it could be seen from spot ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 3 panchanama (Exh.29) duly proved by Pravin Jawarkar (PW 1).
4. The First Information Report (FIR) is recorded on the basis of Dying Declaration of Nirmala. The printed FIR is at Exh.53. The same was registered by Baburao Ghom (PW 9), Police Head Constable, attached to Police Station, Shirkhed. The FIR was registered on 11th of November, 2012. A Crime was registered for the offence punishable under Section 307 of the Indian Penal Code vide Crime No.118 of 2012.
5. The statement of Nirmala, on the basis of which the Crime was registered, was recorded by Ganesh Thakare (PW 10) API. On getting information that Nirmala was admitted in the hospital at Amravati, Ganesh Thakare, who was Police Station Officer of Police Station Shirkhed, reached to the hospital at Amravati. Since he was intending to record statement of Nirmala, he gave a requisition (Exh.37) to the Medical Officer, by which he requested the Medical Officer to examine Nirmala and to certify ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 4 whether she is able to give her statement. After obtaining the said Certificate, statement of Nirmala was recorded in which she implicated the appellant as a person who has caused her burn injuries.
6. PW 10 Ganesh Thakare, API, carried further investigation. He prepared Spot Panchanama. He seized simple as well as kerosene stained soils, burnt match-stick and burnt clothes of Nirmala from the spot under seizure Memo (Exh.30) in presence of panch Pravin Jawarkar (PW 1).
He arrested appellant on 12th of November, 2012 under Arrest Panchanama (Exh.27). On 14th of November, 2012 Nirmala died and therefore the offence was converted into the offence punishable under Section 302 of the Indian Penal Code. The Investigating Officer conducted inquest in presence of panch witnesses. The Inquest Panchanama is at Exh.7. Prior to the death of Nirmala, on 11th of November, 2012, the clothes of the appellant were seized under Seizure Memo (Exh.12) and they ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 5 were duly sealed. The Investigating Officer also gave a letter (Exh.60) to Sarpanch, Gram Panchayat, Riddhapur in respect of the issuance of the certificate of the house of the appellant. By the said, the ownership of the house whereat the incident took place was enquired. Exh.62 is the certificate from Sarpanch, Riddhapur, by which it was informed that the appellant is the resident of the house in question, however, it stands in the name of his father. The seized articles were sent to the Chemical Analyzer. After completion of the investigation, a Charge-sheet was filed in the Court of Judicial Magistrate (F.C.), Morshi. The learned Magistrate found that the offence is exclusively triable by the Court of Sessions and therefore, he committed the case to the Court of Session.
7. A Charge (Exh.3) was framed against the appellant in Session Trial No.35 of 2013 for the offences punishable under Section 302 of the Indian Penal Code. The appellant denied the charge and claimed for his trial. The prosecution examined in all ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 6 ten witnesses to prove the Charge and also relied upon various proved documents. The learned Judge of the Court below found that the appellant was guilty and therefore convicted him as mentioned in the opening paragraph of this judgment.
8. We have heard Shri S.S.Dhengale, the learned counsel for the appellant and Shri N.B.Jawade, the learned Additional Public Prosecutor for the State in extenso. According to the learned counsel for the appellant, nobody has seen the appellant pouring kerosene on deceased and setting her ablaze. He submitted that the Dying Declaration recorded by the Executive Magistrate as well as the Police Officer cannot be relied upon. He further submitted that the oral Dying Declarations made to Sonali Salkar (PW 3) and Kasturabai Kapate (PW 4) are highly suspicious. He submitted, therefore, that the benefit of doubt should be extended to the appellant and he be released from Jail.
Per Contra, the learned Additional Public Prosecutor ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 7 submitted that the reasoning of the learned Judge of the Court below is justified on the basis of the available evidence on record.
He submitted that there is no reason to disbelieve the written Dying Declarations as well as the oral Dying Declarations made to the prosecution witnesses and therefore, he submitted that the appeal be dismissed.
9. The burn injuries can also be caused either accidentally or if an attempt is made to commit suicide. From the line of cross-examination and from the statement of the appellant recorded under Section 313 of the Code of Criminal Procedure, it was not even remotely suggested that the deceased suffered burn injuries accidentally and/or she tried to commit suicide.
Therefore, these two eventualities are completely ruled out.
10. It was the defence of the appellant before the Court below that the house where the incident has occurred was standing in the name of his father. A compromise was arrived at ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 8 in between him and deceased Nirmala in presence of panch witnesses, one of whom was examined by the appellant as a defence witness namely; Govindrao Bidkar (DW 1). It is the further defence of the appellant in his statement recorded under Section 313 of the Code of Criminal Procedure that the deceased was insisting him that the house should be transferred in her name and also he should do the marriage of her daughter. Since the house was not transferred in her name nor he has taken any step for marriage of her daughter, he has been falsely implicated.
11. The deceased was initially married with Keshavrao Salkar. PW 3 Sonali Salkar is daughter of deceased from Keshavrao Salkar. Subsequently, deceased embraced 'Mahanubhav' sect therefore she was deserted by Keshavrao. Another daughter of deceased is Bhavna and she is residing in 'Mahanubhav Ashram' at Aurangabad.
After taking 'Diksha' of Mahanubhav sect, the deceased ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 9 started residing with the appellant, who also was from 'Mahanubhav' sect, at Riddhapur.
12. The deceased suffered 78% burn injuries as it could be seen from Exh.9.
13. The case of the prosecution is based on two Dying Declarations recorded by Ganesh Thakare (PW 10), Assistant Police Inspector, and a Dying Declaration recorded by Shri Narayan Mankar (PW 6), Executive Magistrate. These two Dying Declarations are at Exhs.59 and 47, respectively. The prosecution also relies upon the two oral Dying Declarations made by deceased Nirmala to her daughter Sonali (PW 3) and her mother Kasturabai (PW 4).
14 Dying Declaration recorded by PW 6 Narayan Mankar, Executive Magistrate, is at Exh.47. He received an information from Police Station Chowki at Irwin Hospital, Amravati for ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 10 recording the statement of Nirmala. Therefore, he went to Irwin Hospital and visited Ward No.4 where Nirmala was admitted. He met Dr.Shama Shajiya (PW 5), who was present in the Burn Ward.
He requested Dr.Shama to examine the patient and to certify whether patient is in a condition to give her statement.
Accordingly, Dr.Shama examined Nirmala and certified that Nirmala is in a condition to give her statement. The Certificate given by Dr.Shama is a Exh.44. After obtaining such certificate Narayan Mankar, Executive Magistrate, proceeded to record her statement. It was disclosed by Nirmala to Executive Magistrate Shri Narayan Mankar that on 10th of November, 2012 the appellant insisted that the deceased should bring her daughters but since the girls have failed to come, therefore he poured kerosene on her and set her ablaze.
After recoding of the statement of Nirmala, Dr.Shama again examined her and gave Certificate (Exh.45) to the effect that while recording her statement declarent was fully conscious ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 11 and was able to give her statement.
15. We see some force in the submissions of the learned counsel for the appellant that this Dying Declaration (Exh.47) cannot be the basis for conviction. The perusal of Dying declaration (Exh.47) would reveal that after recording the said Dying Declaration it was not read over to the declarent and there is no endorsement that the declarent admitted the contents of the same as true. Further, even from the witness box it is not deposed by PW 6 Narayan Mankar that statement recorded by him was read over to the declarent. Further, Dr.Shama has also not deposed in her evidence that said statement was read over to the declarent.
A Dying Declaration is a sacrosanct document. The maker of such document is not available for cross-examination for its veracity. Therefore, the Dying Declaration should be absolutely free from all doubts. Insofar as Dying Declaration (Exh.47) is concerned, there is nothing available on record to ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 12 show that the scribe read over its contents to Nirmala and it was admitted by Nirmala that the contents are true. Therefore, in our view, the said Dying Declaration cannot be the basis for maintaining conviction.
16. For securing or maintaining conviction, multiple Dying Declarations are not necessary. A singular Dying Declaration, if it is free from all doubts, can be the basis for such conviction.
17. The another Dying Declaration, which is available in the present case is at Exh.59. This Dying Declaration is recorded by Shri Ganesh Thakare (PW 10), API. He visited Irwin Hospital at Amravati which is also known as District General Hospital, Amravati. There, he met Medical Officer Dr.Manish Rathi (PW 2). He gave a requisition to the Medical Officer for examining Nirmala and to certify as to whether she is able to give her statement. Accordingly, Dr.Manish Rathi examined Nirmala at 0.05 hrs. on 11th of November, 2012. He found that Nirmala is ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 13 in a condition to give her statement and accordingly, on Exh.37 itself, he gave Certificate. After getting such Certificate, Shri Ganesh Thakare, API, proceeded to record her Dying Declaration.
In her Dying Declaration she stated that she resides with the appellant though she is not married with him. She further stated that on 10th of November, 2012 at 6 O'clock when she and the appellant were present in the house that time the appellant picked up quarrel with her on account of bringing her daughter at Riddhapur. During that quarrel he poured kerosene and set her ablaze and left the house.
After recording Dying Declaration Dr.Manish Rathi again gave a Certificate that the Dying Declaration was recorded in his presence and the patient was fully conscious and well oriented during recording of her Dying Declaration. The said Certificate is at Exh.38.
Dying Declaration (Exh.59) recites that after recording of the Dying Declaration the said was read over to the declarent ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 14 and she admitted it to be true. Even from the witness box scribe Shri Ganesh Thakare, API, deposed that the statement was read over to the declarent. Even Dr.Manish Rathi (PW 2) corroborates that Dying Declaration was recorded as per say of Nirmala.
Dying Declaration (Exh.59) recorded by Police Officer Shri Ganesh Thakare compliances with all the prerequisites for accepting such statement as a Dying Declaration. The evidence of Dr.Manish Rathi (PW 2) and evidence of scribe Shri Ganesh Thakare (PW 6) is not shattered at all and therefore, the said Dying Declaration (Exh.59) can safely be accepted. The submission of the learned counsel for the appellant that since the Dying Declaration (Exh.59) is recorded by Police Officer it should be discarded, is highly misconceived.
18. Insofar as oral Dying Declarations are concerned, those are given to Sonali (PW 3), the daughter of deceased Nirmala, and Kasturabai (PW 4), the mother of deceased Nirmala.
The evidence of Sonali (PW 3) and Kasturabai (PW 4) ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 15 shows that on 10th of November, 2012 at about 7 pm. Kasturabai received a mobile call from Nirmala who informed Kasturabai that they should come immediately as she will not survive because appellant poured kerosene on her and set her ablaze.
The evidence of Sonali shows that she used to reside with the appellant and with her mother at Riddhapur. She stayed there for about nine months. However, since the appellant was having a evil eye on her, therefore, her mother sent her to other village by name Jalicha Dev where Kasturabai used to reside. The evidence of these two ladies shows that the appellant used to insist upon Nirmala that she should bring Sonali at Riddhapur and on that count he used to pick up quarrel and used to beat her.
After reaching to hospital at Amravati, when these two ladies met Nirmala, that time it was disclosed to them by Nirmala that the appellant was insisting for bringing Sonali at Riddhapur and since she refused to bring her, therefore, he picked up quarrel ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 16 and poured kerosene on her and set her ablaze. The evidence of these two ladies withstood the searching cross-examination.
These two oral Dying Declarations also show that it is the appellant who has poured kerosene on Nirmala and set her ablaze.
19. After the arrest, the clothes of the appellant were seized under seizure Memo (Exh.14), which were emitting smell of kerosene. Those were duly sealed by the Investigating Officer.
The Chemical Analyzer's report (Exh.32) shows that the clothes of the appellant namely; full shirt and Dhoti, show the detection of kerosene residues and the soil, which was seized from the spot, was also having the residues of kerosene.
20. We, therefore, on the re-appreciation and reevaluation of the entire prosecution case, reach to the conclusion that the verdict given by the learned Judge of the Court below convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code and its consequent sentence need not be ::: Uploaded on - 11/07/2016 ::: Downloaded on - 11/07/2016 23:59:58 ::: apeal238.14 17 interfered. Consequently, we pass the following order.
-ORDER-
Appeal stands dismissed.
JUDGE ig JUDGE
chute
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