Bombay High Court
Sanjay Ramkrushna Bhatkar And Another ... vs The State Of Maharashtra Thr. Police ... on 13 March, 2019
Author: Pushpa V. Ganediwala
Bench: Sunil B. Shukre, Pushpa V. Ganediwala
apeal364.18 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 364 OF 2018
1. Sanjay Ramkrushna Bhatkar,
aged about 35 years,
occupation - Agricultural
Labour,
2. Kiran Sukhdev Muley,
aged about 35 years,
occupation - Agriculturist,
Both residents of Wai, Tq. -
Murtizapur, District - Akola. ... APPELLANTS
Versus
The State of Maharashtra,
through Police Station Officer,
Police Station, Mana, Tq. -
Murtizapur, District - Akola. ... RESPONDENT
Shri S.V. Sirpurkar, Advocate for the appellants.
Shri A.V. Palshikar, APP for the respondent - State.
.....
CORAM : SUNIL B. SHUKRE &
PUSHPA V. GANEDIWALA JJ.
MARCH 13, 2019.
JUDGMENT :(PER PUSHPA V. GANEDIWALA, J.) Being aggrieved and dissatisfied with the judgment and order dated 11.05.2018 passed by the Additional Sessions Judge, Akola, in Sessions Trial No. 62 of 2013, for Crime No. 104 of 2012 registered at Police Station, Mana, Tahsil - Murtizapur, ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 2 District - Akola, the appellants challenge the same in this appeal.
2. Appellant No. 1 - Sanjay is convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and appellant No. 2 for the offence punishable under Section 302 read with Section 109 of the Indian Penal Code and sentenced both the appellants to suffer imprisonment for life and to pay fine of Rs.5,000/- each and in default, suffer further simple imprisonment (S.I.) for six months. Appellant No. 1 - Sanjay is also sentenced to suffer R.I. for three months and to pay fine of Rs.5,000/- and in default to suffer further S.I. for three months for the offence punishable under Section 498-A of the Indian Penal Code.
3. The prosecution story, in brief, is as under :
(i) The appellant - Sanjay Ramkrushna Bhatkar is the husband of the deceased Swati Sanjay Bhatkar. The couple married 6 to 7 years prior to the incident. They have one child out of the said wedlock. Appellant - Sanjay is habituated to consume liquor and subjected the deceased to cruelty under the influence of liquor.
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(ii) On 16.12.2012 at about 7.30 PM, appellant No. 1 -
Sanjay invited appellant No. 2 - Kiran at his house for dinner. Appellant No. 1 - Sanjay asked his wife Swati (deceased) to bring glasses and jar for consuming liquor. On that, the deceased raised objection and asked appellant No. 1, not to invite such persons at home who are habituated to consume liquor and she declined to bring the glasses and jar. On this, appellant No. 2 - Kiran provoked appellant No. 1 - Sanjay that, had the deceased been his wife, he would have killed her. Appellant No. 1 - Sanjay got provoked and assaulted the deceased. Then he poured kerosene on her person and set her ablaze with matchstick. The deceased was taken to the hospital at Murtizapur.
(iii) The information about this incident was reached to Police Station, Murtizapur. Immediately, ASI - Shri Rajkumar Khandare from P. S. Murtizapur rushed to the L.D. Hospital, Murtizapur where the victim was admitted. ASI - Shri Khandare met the Doctor and obtained his opinion about her fitness to give statement. The ASI - Shri Khandare recorded her statement according to her narration. As her hands and other parts of the body were burnt, her toe impression was taken on her statement. ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 4 The Medical Officer also put his endorsement.
(iv) On the basis of the statement of the injured - Swati, ASI Shri Khandare of P.S. Murtizapur registered Crime bearing No. 0 of 2012 against the appellants for the offence punishable under Section 307 read with Section 34 of IPC. As the spot of the incident was within the jurisdiction of Police Station, Mana, the police case file was transferred to Police Station, Mana. Police Head Constable (PHC) Shri Devandand Narayan Dandi received the same and registered Crime No. 104 of 2012 at Police Station, Mana. The initial investigation in this crime was conducted by the In-charge Police Inspector - Shri V.S. Ingle. Thereafter PI Shri Jagdish Gaikwad took over the charge of investigation. He recorded statements of witnesses. On 03.01.2013, he received information about death of the injured. He added Section 302 of the Indian Penal Code in the FIR against the appellants.
(v) The inquest panchnama was conducted on the dead body and clothes of the deceased were seized during the said panchnama. The dead body was sent for autopsy. After collecting post mortem and Chemical Analyser's report, P.I. Shri ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 5 Gaikwad filed charge sheet before the Court of Judicial Magistrate First Class, Murtizapur. The Court of Magistrate, Murtizapur, in its turn, committed the case to the Court of Sessions at Akola vide committal order dated 23.03.2013 as the offence punishable under Sections 302 and 307 of the IPC, are exclusively triable by the Court of Sessions.
4. The Additional Sessions Judge, Akola, framed charge against Appellant No. 1 for the offence punishable under Sections 302 and 498-A of the IPC and against appellant No. 2 for the offences punishable under Section 302 read with Section 109 of IPC. The charge was read over to both the accused in their vernacular and they denied the charges and claimed to be tried. ASJ, Akola recorded their pleas.
5. The prosecution examined in all 13 witnesses and brought on record certain relevant documents. The details of the witnesses are as under:
PW1- Kamlabai Sukhdeorao Barabde, mother of the deceased.
PW-2 - Rajendra Shamraoji Barabde, maternal uncle of ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 6 the deceased.
PW-3 - Sangita Vinod Bhatkar, sister of the deceased. PW-4 - Nandkishor Pundlik Bhatkar, brother-in-law of the deceased.
PW-5 - Arun Marotrao Bajad, Panch witness.
PW-6 - Pradeep Shriram Bajad, Panch witness PW-7 - Ajay Ashokrao Gawande, Panch witness. PW-8 - Sachin Ajabrao Gawande, Panch witness, PW-9 - Sanghpal Anandrao Kokane, Panch witness. PW-10 Rajkumar Mahadeo Khandare, ASI, Murtizapur, who recorded Dying Declaration.
PW-11 Devandand Narayan Dandi, Police Head Constable PW-12 Dr. Ramcharan Gopalsingh Rathod, Medical Officer PW-13 Jagdish Bhanudas Gaikwad, PI, Police Station, Kuhi.
6. The Additional Sessions Judge, Akola, put questions to the appellants relating to the incriminating material came against them in the testimony of the witnesses and recorded their answers under Section 313 of Criminal Procedure Code. The ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 7 defence of both the appellants is of false implication. The learned Additional Sessions Judge, on the basis of material available on record, found both the accused guilty of the offence charged against them and recorded their conviction. Being aggrieved by the judgment and order of the learned Additional Sessions Court, Akola, both the accused preferred the present Appeal.
7. We have heard Shri S.V. Sirpurkar, learned counsel appearing for the appellants and Shri A.V. Palshikar, learned APP for the respondent - State.
8. Shri Sirpurkar, learned counsel appearing for the appellants submitted that all the material witnesses in this case have turned hostile. There is no incriminating material against both the appellants. The conviction was recorded on the basis of sole dying declaration, allegedly recorded by the Police Officer and which is not free from doubts and infirmities. The learned counsel pressed for acquittal of both the appellants.
9. On the contrary, Shri Palshikar, learned APP, appearing on behalf of the State, supported the impugned judgment and ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 8 order and submitted that the dying declaration of the deceased was recorded on the same day of the incident with doctor's endorsement about the fitness of the victim to give statement. It was attested by the signature of sister of the deceased. There is no rule of law that conviction cannot be recorded on the basis of dying declaration. It is regarded as the substantive piece of evidence, if it inspires confidence of the court.
10. We have considered the submissions made on behalf of both the sides. At the outset, PW-1 - Smt. Kamlabai Sukhdeorao Barabde, mother of the deceased, PW-2 - Rajendra Shamraoji Barabde, maternal uncle of the deceased, Sangita Vinod Bhatkar, real sister of the deceased, PW-4 -Vinod Bhatkar, brother-in-law of the deceased, all these witnesses, the near relatives of the deceased, preferred not to support the prosecution case.
11. On perusal of testimony of all these witnesses, nothing has come on record about the ill-treatment at the hands of appellant No. 1 to the deceased. There is absolutely nothing on record that appellant No. 1, the husband of the deceased subjected the deceased to cruelty as contemplated under section ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 9 498-A of the Indian Penal Code. The marital cord between appellant No. 1 and the deceased lasted for about 6 to 7 years but not a single incident is brought on record about any ill treatment meted out to the deceased at the hands of appellant No. 1. Therefore, no conviction can be recorded against appellant No. 1 for the offence punishable under Section 498-A of the IPC.
12. As regards charge of murder, admittedly, all the aforesaid witnesses did not witness the incident of burning. Their testimony also do not reflect anything about the conversation between these witnesses and the deceased during the period of treatment of the deceased in the hospital, incriminating the appellants. There is hardly any assistance to the prosecution from these witnesses to prove its case against the appellants.
13. All the panch witnesses in this case also preferred not to support the prosecution case. Though the learned APP was permitted to ask the questions, those may be asked in the cross examination to all these witnesses, however, nothing incriminating against the accused could be brought on record except marking of the portions in their statements recorded u/s ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 10 161 of the Code of Criminal Code and exhibiting the same through the testimony of the Investigation Officer.
14. PW-10 - ASI Shri Khandare, who claimed to have recorded the statement of the deceased in the hospital and the Medical Officer PW 13, who claimed to have given his opinion about her fitness, are the only witnesses on the basis of which the learned Additional Sessions Judge recorded conviction against the appellants. It is therefore, necessary to have a closure scrutiny of such evidence.
15. For ready reference the relevant para of the deposition of ASI Shri Khandare PW-10 reads as under:
"After receiving letter from LDH, Murtizapur, I went there and met with concerned doctor and informed him about recording statement of Swati Sanjay Bhatkar. Thereafter, doctor examined Swati Sanjay Bhatkar and opined that she is fit to give statement. Then I have recorded the statement of Swati Sanjay Bhatkar, as per her narration. She stated that her husband is in habit of liquor, out of which he always give ill-treatment to her. On 16.12.2012 at about 7.30 P.M. her husband Sanjay Bhatkar had invited Kiran Muley to home for ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 11 having dinner. As her husband and Kiran Muley were under the influence of liquor, she asked Sanjay not to invite person, who consume liquor. On that count, Kiran Muley instigated her husband that had she been his wife, he would have killed her. Thereafter, Sanjay Bhatkar assaulted her. He poured kerosene on her person and set her ablaze with matchstick. In such manner I have recorded her statement in handwriting. I have read over the said statement to her and she admitted the same as true and correct. As her hands and other part of body was burnt, she was unable to sign. Hence, I have taken her leg toe impression on her statement and put my signature. The M.O. put his signature and certified it."
16. Now, it is to be seen how far this part of the evidence is sufficient and inspires confidence to justify conviction under Section 302 of the IPC against the appellants, for which the minimum sentence is imprisonment for life.
17. The law as regards the dying declaration is well settled. The Apex Court in the catena of judgments reiterated the general principals governing dying declaration. The Apex Court in the case of Paniben vs. State of Gujarat, ( (1992) 2 SCC 474) in ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 12 paragraph 18, while summarizing the general principles governing dying declaration, observed that though a dying declaration is entitled to a great weight, it is worthwhile to note that the accused has no power of cross examination and, therefore, the Court insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly it can base its conviction without any further corroboration. The Apex court further said that It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.
18. The general principles which have been laid down in several judgments of the Hon'ble Apex Court are summed up in the said judgment, which are as under :
"(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P., reported at (1976) 3 SCC 104).
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(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, reported at (1985) 1 SCC 552; Ramawati Devi v.
State of Bihar, reported at (1983) 1 SCC 211).
(iii) This Court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy vs. Public Prosecutor, reported at (1976) 3 SCC 618).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg vs. State of M.P., reported at (1974) 4 SCC
264).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh vs. State of M.P., reported at 1981 Supp. SCC 25.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (Ram Manorath vs. State of U.P., reported at (1981) 2 SCC 654.
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(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu, reported at 1980 Supp. SCC 455).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar, reported at 1980 Supp. SCC 769).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram vs. State of M.P., reported at 1988 Supp. SCC 152).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan, reported at (1989) 3 SCC 390."
19. In a celebrated judgment of the Constitution Bench of the Hon'ble Apex Court on dying declaration in the case of Kushal Rao vs. State of Bombay, reported in AIR 1958 SC 22, the Hon'ble ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 15 Apex Court has laid down the following test of reliability of the dying declaration :
"(i) that it can not be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;
(ii) that each case must be decided on its own facts keeping in view the circumstances in which the dying declaration was made;
(iii) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other piece of evidence;
(iv) that dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;
(v) that a dying declaration which has been recorded by a competent Magistrate in a proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character;
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(vi) that in order to test circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light, if the crime was committed at night, whether the capacity of the man to remember the facts had not been impaired at the time he was making the statement, by circumstances beyond his control;
(vii) that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it;
(viii) that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."
20. To the material brought on record in the present case, in our opinion, the principle i.e. "where dying declaration is suspicious and suffers from infirmity cannot form the basis for conviction" would be applicable. The errors, infirmities and inconsistencies in the evidence of the prosecution witnesses, which we have noticed with the assistance of the learned advocate for the appellants, can be enumerated as under : ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 17
( i) First and foremost, the deceased was admitted in the hospital for 15 days and got discharge and then was taken to her matrimonial house where she died after 4 days. There is nothing on record as to whether she was discharged against the medical advice or whether she was out of danger or cured and, therefore, got discharge. The actual cause of her death is not brought on record. It is also not proved that the victim has died as a result of the burn injuries received in the incident. Though the autopsy was performed on the dead body to find out the cause of death and the Post Mortem report is also a part of the charge sheet showing her death due to septicemia, however, the same is not proved by examining the medical officer who conducted autopsy on the dead body. Therefore, in our opinion, until and unless, the cause of death of the victim is proved to be due to the burn injuries received during the incident, the sole, unaffirmed, uncorroborated and untested statement of the deceased i.e. pouring of kerosene by her husband on her body at the instigation of his friend Kiran and set her ablaze, cannot be read into evidence under section 32 of the Evidence Act for fixing the offence of murder on the appellants. Our view is further supported by the view of the larger bench of Apex Court in the ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 18 case of Moti Singh vs. State of U.P., AIR 1964 SC 900, wherein it is held that when the victim is not proved to have died as a result of the injuries received in the incident, his dying declaration cannot be said to be the statement as to the cause of his death or as to the circumstances of the transactions which resulted into his death.
To put it differently, the Apex Court in the said case of Sharad Sarda vs. State of Maharashtra, AIR 1984 SC 1622, laid down a test of proximity and held that there must be some proximate relation to the occurrence, if the statement is to be admitted as a dying declaration. In the instant case, as per PW-10 her statement was recorded on the day of the incident. Evidently, she died after 19 days of the incident in her matrimonial house. Of course, the length of the period between the DD and the death would be irrelevant, if the proximity between the occurrence and the death is established. In the instant case, the cause of her death due to burn injuries has not been established, therefore, her statement that the accused poured kerosene and set her ablaze assumes insignificance as the prosecution fails to satisfy the test of proximity .
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(ii) Secondly, PW-1, the mother of the deceased deposed that in the hospital she inquired with her daughter as to how was she burnt, her daughter was unable to speak. The injury certificate shows 47% burn injuries towards upper body. The inquest panchanama inter alia reveals burning of lips, nose and neck of the deceased. The medical officer PW-12 in his cross examination also admits that if the lips are completely burnt, the person is unable to speak. In such circumstances, the recording of dying declaration is highly doubtful and improbable.
(iii) Thirdly, undisputedly, both the hands of accused No. 1 also got burnt during extinguishing of the fire, which in our opinion, supports the stand of Accused No.1 in his 313 Cr. P.C. statement that he was standing outside his house and when his mother shouted, he rushed and saw Swati was burning, he extinguished the fire and took her to the hospital. These facts reflect positive act and natural conduct on the part of accused No. 1 which together with other facts and circumstances discussed herein, nullifies the theory of intention and knowledge to commit murder.
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(iv) Fourthly, the incident is of 16.12.2012 and the death of the deceased was on 03.01.2013. As stated earlier, there was a gap of around 19 days between the incident and the death. She was admitted in the hospital for about 15 days. During this period, the Investigation Officer did not find it necessary to record dying declaration through the Executive Magistrate by following due procedure to avoid any doubt about its truthfulness. The DD that was recorded by him was not in the language and in the words of the declarant nor did the Investigation officer record it in question - answer form. As has been held in the case of Kushal Rao vs. State of Bombay, (supra) a dying declaration which has been recorded by a competent Magistrate in a proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing.
(v) Fifthly, in cross examination, PW-10 - ASI Shri Khandare deposed that one lady relative of the patient was present at the time of recording of the statement of the injured while PW-12 - Medical Officer, who gave endorsement about her fitness, deposed that no one except he himself and Police Officer ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 21 were present near the patient while recording her statement.
(vi) Sixthly, the dying declaration Exh. 59 shows attestation by Sangita, the sister of the deceased who is married to the brother of appellant No. 1 but the testimony of Sangita (PW3) is silent on this point. Even if it is presumed that her sister Sangita was present, the possibility of tutoring would then arise, and would have to be ruled out by the prosecution. But, no evidence to rule out such possibility has been brought on record.
(vii) As rightly pointed out by the learned counsel for the appellants that the mother of appellant No. 1 was not examined.
As her presence in the house at the time of the incident is not disputed, she could have thrown some light as regards the incident.
(viii) The spot and seizure panchanama, which is considered to be an important evidence in the case of bride burning, is not proved by the prosecution.
(ix) The Constitution Bench of the Hon'ble Apex Court in the ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 22 case of Laxman vs. State of Maharashtra, reported in (2002) 6 SCC 710 in paragraph 3 observed that the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion, but where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. The Hon'ble Apex Court is of the opinion that what evidentiary value or weight has to be attached to such statement, necessarily depends on the facts and circumstances of each particular case and what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind.
In the instant case, the recorder PW-10 did not record his satisfaction nor did he depose before the court about his satisfaction for the fitness of the victim to give statement.
21. The aforementioned facts are more than sufficient to say without any hesitation that in the instant case the dying ::: Uploaded on - 02/04/2019 ::: Downloaded on - 31/03/2020 12:00:14 ::: apeal364.18 23 declaration could not pass the test of reliability and proximity and does not inspire the confidence of the court to convict the appellants for the charge of murder. The prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt and, therefore, they are entitled to be acquitted. The learned Additional Sessions Judge committed an error in convicting the appellants. Therefore, the impugned judgment and order needs to be quashed and set aside and the same is accordingly quashed and set aside and the appeal is allowed. We pass the following order :
(i) Criminal Appeal is allowed. Impugned judgment and order dated 11th May 2018 rendered by the Additional Sessions Judge, Akola, in Sessions Trial No. 62 of 2013 are hereby quashed and set aside.
(ii) Appellant No. 1 (accused No. 1) is hereby acquitted of the offences punishable under Sections 302 and 498-A of the Indian Penal Code.
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(iii) Appellant No. 2 (accused No. 2) is hereby acquitted of the offence punishable under Section 302 read with Section 109 of the Indian Penal Code.
(iv) Fine amounts, if paid, shall be refunded to the appellants.
(v) Muddemal property be disposed of in terms of the impugned judgment and order.
(vi) Criminal Appeal stands disposed of accordingly.
JUDGE JUDGE
*******
*GS.
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