Bombay High Court
Dilip Dyaneshwar Hanwate vs The State Of Maharashtra, Through ... on 23 February, 2017
Author: B.R. Gavai
Bench: B.R. Gavai
Cri.Appeal Nos.423/2015 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.423 OF 2015
Dilip Dyaneshwar Hanwate,
Aged about 40 years, Occ : Labourer,
R/o Rahul Nagar, Shiwani,
Taluka Warud, District Akola. .... Appellant
-- Versus --
State of Maharashtra,
Through Police Station Officer,
Police Station Civil Lines, District Akola .... Respondent
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Shri R.D. Dhande, Advocate for the Appellant.
Shri M.J. Khan, A.P.P. for the Respondent.
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CORAM : B.R. GAVAI & KUM. INDIRA JAIN, JJ.
DATE : 23rd FEBRUARY, 2017.
ORAL JUDGMENT :- (Per Kum. Indira Jain, J.)
This appeal takes an exception to the judgment and order dated 28/08/2015 passed by the learned Sessions Judge, Akola in Sessions Trial No.128/2013. By the said judgment and order, the sole accused is convicted of the offences punishable under Sections 302 and 450 of the Indian Penal Code. He is ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 2 sentenced to suffer imprisonment for life and fine of Rs.50/- for the offence under Section 302 and rigorous imprisonment for five years and fine of Rs.50/-, in default, rigorous imprisonment for six months for the offence under Section 450 of the Indian Penal Code.
02] For the sake of convenience, we shall refer the appellant in his original status as accused, as he was referred before the trial Court.
03] Prosecution case in brief is as under :
(I) Deceased Alka Santosh Chopde was residing in a rented block at Malkapur, Akola. Her family was consisting of husband, a son and daughter Anjali. The husband of Alka was working elsewhere and he was visiting the house intermittently.
(II) Incident occurred on 08/05/2013 at around 10:00 p.m. That time, son and daughter of Alka went to sleep. She was watching T.V. Accused entered the house and raised quarrel with Alka on payment of money. ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 3 He was abusing her. On hearing shouts, Anjali woke up. Accused poured kerosene on the person of Alka and set her on fire. He fled away from the spot. Anjali raised alarm. She also informed her maternal uncle, who in turn informed Sangita (PW-1), elder sister of Alka on phone about the incident. Alka was then shifted to Government Hospital, Akola. An intimation of medico legal case was given to police station.
(III) PW-7 Shriram Ukarda Raut was the Executive Magistrate. On receiving memo, he rushed to the hospital and met the doctor. He requested the Medical Officer to examine the patient and certify whether she was in a position to make her statement. Accordingly, Alka was examined by the doctor, who certified that patient is conscious, oriented and fit to give her statement. Then Executive Magistrate Shriram Raut put certain preliminary questions to the patient and on his subjective satisfaction that she was fit to make her statement, recorded dying declaration ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 4 of Alka. This was the first dying declaration recorded between 11:10 and 11:35 p.m. In this dying declaration, Alka stated before the Executive Magistrate that on 08/05/2013 at 10:00 p.m., accused entered the house, abused and beat her and set her on fire by pouring kerosene on her person. She stated that she was to recover money from the accused and as she demanded money back, accused used to raise quarrel with her. After recording dying declaration of Alka, it was sealed and sent to Khadan Police Station. (IV) PW-8 PSI Kiran Ahire received the dying declaration.
He went to Government Hospital and on ascertaining from the Medical Officer on duty fitness of the patient to give her statement, recorded her dying declaration. She reiterated the same facts before PSI Ahire as she narrated to the Executive Magistrate Shriram Raut. (V) Thereafter, Crime No.81/2013 came to be registered against the accused for the offences punishable under Sections 307, 448 and 504 of the Indian Penal Code. PSI Ahire took over further investigation. He visited ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 5 the spot and recorded spot-panchnama. Articles like pieces of burnt saree and clothes, broken necklace, kerosene can and matchstick lying on the spot were seized at the time of drawing spot-panchnama. (VI) Alka succumbed to injuries on 20/05/2013. Then offence under Section 302 of the Indian Penal Code was added. Inquest-panchnama was drawn. Dead body was sent for postmortem. Dr. Gajanan Thokal (PW-11) was on duty. He performed postmortem on the dead body and noticed 91% burn injuries. The cause of death opined by the Medical Officer was due to septicaemia due to unnatural burns.
(VII) Accused was arrested on 26/06/2013 and sent for medical examination. Police custody remand of the accused was sought. Further investigation was handed over to PSI Thatkar (PW-9).
(VIII) On 03/07/2013, accused made a statement to discover his burnt clothes. Accordingly, memorandum of the accused was reduced to writing and in pursuant ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 6 to the memorandum statement, accused discovered his burnt clothes from a cupboard of his house. Discovery-panchnama of the clothes was drawn in the presence of panch-witnesses. Seized muddemal was sent to Forensic Laboratory. A request was made to Tahsildar to draw a sketch of the spot. Statements of witnesses were recorded during investigation and also under Section 164 of the Code of Criminal Procedure by the Magistrate.
(IX) On completing investigation, charge-sheet was submitted to the Court of Judicial Magistrate First Class, Akola, who in turn committed the case for trial to the Court of Sessions.
04] On committal, charge was framed against the accused vide Exh.8. He pleaded not guilty and claimed to be tried. His defence was of total denial and false implication. 05] Prosecution examined in all 11 witnesses in support of its case. Accused did not examine himself on oath. He chose ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 7 not to examine any other witness to substantiate his defence. On going through the evidence and considering the submissions made on behalf of the parties, learned Sessions Judge convicted the accused as stated hereinabove. Being aggrieved thereof, present appeal has been preferred by the accused. 06] We have heard the learned counsel for the parties. On meticulous examination of evidence brought on record, arguments advanced by the learned Counsel for the parties and reasonings recorded by the trial Court for the below mentioned reasons, we are of the opinion that prosecution has proved the guilt of accused beyond reasonable doubt and the accused has been rightly convicted by the Sessions Court. 07] Prosecution case is mainly based on two written dying declarations, three oral dying declarations and ocular testimony of a child witness PW-6 Anjali, daughter of the deceased. The first dying declaration was recorded by Executive Magistrate PW-7 Shriram Raut. PW-10 Dr. Anant Pohare was the Medical Officer on duty. He certified the patient as fit to give her statement. Second dying declaration came to be recorded by PW-8 PSI Ahire immediately after receipt of first dying ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 8 declaration recorded by the Executive Magistrate. On oral dying declarations, prosecution relies upon the evidence of PW-1 Sangita Gayakwad, PW-2 Shekhar Pawar and PW-4 Murlidhar Katankar. As stated above, PW-6 Anjali is an eye-witness to the incident.
08] So far as dying declarations are concerned, law is well settled that in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny keeping in view the fact that statement has been made in the absence of accused who had no opportunity of testing the veracity of the statement by cross-examination. Once the court comes to a conclusion that dying declaration is the truthful version as to the circumstances of the death and the assailant of victim, no further corroboration is required to such a dying declaration. 09] Keeping in view the settled propositions of law, let us now consider the evidence of PW-7 Executive Magistrate Shriram Raut on the first dying declaration recorded on 08/05/2013 between 11:10 and 11:35 p.m. It is stated by the Executive Magistrate that he received a memo for recording dying declaration and went to Government Hospital, Akola. He met the ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 9 doctor and requested him to examine and certify whether patient was in a position to make her statement. The evidence of PW-7 Shriram Raut shows that Medical Officer examined the patient and certified that she was fit to make her statement. Then, he introduced himself to the patient, put certain questions to her and ascertained whether she was competent to give statement. Thereafter, he recorded her dying declaration. Alka disclosed in her dying declaration that on 08/05/2013 at about 10:00 p.m., while she was in the house, accused came there, abused and beat her and then poured kerosene on her and set her on fire. She stated that she had to recover money from the accused and as she was demanding money, accused used to raise quarrel with her. The dying declaration recorded by Executive Magistrate is proved at Exh.41. PW-10 Dr. Anant Pohare fully supports the testimony of PW-7 Shriram Raut and also states that patient was fit to give her statement when Executive Magistrate recorded the same.
10] On second dying declaration, evidence of PW-8 PSI Ahire is important. He was attached to Police Station Khadan. He received a sealed packet containing the dying declaration at ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 10 12:00 in the midnight. He opened the sealed packet and found that it was a dying declaration of Alka Santosh Chopade. He then rushed to the Government Hospital, met the Doctor, requested him to certify whether patient was fit to make her statement and then recorded dying declaration of Alka at 01:10 a.m. on 09/05/2013. In the second dying declaration, Alka narrated the same facts as she disclosed to PW-7 Executive Magistrate Raut. Dying declaration recorded by PSI Ahire is at Exh.43.
11] With the assistance of the learned Counsel for the parties, we have also gone through the evidence of PW-1 Sangita, PW-2 Shekhar and PW-4 Katankar. These three witnesses have categorically stated that Alka disclosed to them that accused poured kerosene on her person and set her on fire. Nothing substantial could be elicited in the cross-examination of PW-7 Executive Magistrate Shriram Raut, PW-10 Dr. Pohare, PW-8 PSI Ahire, PW-1 Sangita, PW-2 Pawar and PW-4 Katankar to disbelieve their evidence. Through their testimonies, prosecution has succeeded in proving both the written and three oral dying declarations against the accused.
::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 11 12] Another star witness in the case is PW-6 Anjali, a 12 years old daughter of deceased Alka. She is a child witness. So far as law on appreciation of evidence of child witness is concerned, it is an established principle that child witnesses are risky as they are liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of evidence of child witness, the Court comes to a conclusion that it is truthful and believable, totally free from tutoring then there is no obstacle in anyway not to rely upon the evidence of child witness. Keeping in view this settled legal principle, we now advert to the evidence of child witness examined in the case on hand. It is stated by Anjali that on 08/05/13, she, her brother and mother were at the house. Her mother was watching T.V. She and her brother had gone to sleep. She heard shout and abuses being hurled. She got up. That time, her mother was asking money from the accused. Accused also asked her mother about money. He then went inside, came with a kerosene can, poured kerosene on her mother and put her ablaze by igniting a matchstick. She states that accused thereafter ran away. They raised alarm. Murlidhar Kaka came running there. He extinguished fire. Alka was shifted ::: Uploaded on - 08/03/2017 ::: Downloaded on - 27/08/2017 17:46:53 ::: Cri.Appeal Nos.423/2015 12 to the Government Hospital and she died on 20 th. The evidence of Anjali is consistent throughout. Her evidence could not be shaken in cross-examination and we find no reason to doubt the truthfulness of the evidence of Anjali.
13] With the above voluminous evidence in the form of dying declarations and ocular testimony of Anjali, we are of the view that prosecution has succeeded in proving the guilt of accused beyond all reasonable doubt. Appeal is thus devoid of merits and substance. Hence, appeal stands dismissed. No costs.
(Kum. Indira Jain, J.) (B.R. Gavai, J)
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