Surendra Dhulappa Mane vs The State Of Maharashtra on 17 May, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 864 OF 1998

Surendra Dhulappa Mane )
age 38 years, R/o. Railway Colony )
Building No.4, Room No.103,Solapur. ) … Appellant
Vs. (Orig. Accused)
The State of Maharashtra … Respondent

Mr.Satyavrat Joshi, Court appointed Advocate for the appellant.
Mr. S.R.Agarkar,APP, for the State.

CORAM: SMT.SADHANA S.JADHAV, J.

DATE : 17th May, 2017.

ORAL JUDGMENT :

This is an appeal through jail. Advocate Ms. Sindha

Shreedharan had been appointed to espouse the case of the appellant. The

appeal is old. The appointed Advocate is not present and hence, this Court

has requested Advocate Mr. Satyavrat Joshi to go through the records and

espouse the case of the appellant. He has graciously accepted. Hence, this

Court proceeds to hear the appeal.

2. The appellant herein is convicted for the offence punishable

under section 498A of the Indian Penal Code and is sentenced to undergo

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R.I. for one year and fine of Rs.3,000/- in default R.I. for six months. He is

also convicted for the offence punishable under Section 306 of IPC and is

sentenced to undergo R.I. for three years and fine of Rs.10,000/- in default

further R.I. for six months by II Additional Sessions Judge, Solapur in

Sessions case No.32 of 1995 vide judgment and order dated 5.12.1995.

Such of the facts necessary for the decision of this appeal are as follows :-

That on 25.12.1994, Vimal, wife of the appellant, was admitted

in the hospital with history of burn injuries. Since it appeared to be a

medico-legal case, the hospital had informed the police about the same.

That on 25.12.1994 itself the father of Vimal had lodged a report at the

police station alleging therein that his daughter was married to the present

appellant 7 years prior to 25.12.1994. That he was working in the Railway

Department. That he was demanding money from Vimal and coercing her

to fetch money from her father who had retired. That his son-in-law was

adicted to alcohol. He used to assault and ill-treat his wife under the

influence of Alcohol. On 25.12.1994, in the afternoon at about 2.30 p.m.,

he was informed that his daughter Vimal had sustained burn injuries. he

rushed to the house of the appellant where he found that his daughter was

lying in burn condition and therefore, she was admitted in Civil Hospital.

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According to him, his daughter was fed up of the harassment and ill-

treatment meted out to her at the hands of the appellant and therefore she

had immolated herself. On the basis of the said report, Crime No.337 of

1994 was registered against the appellant at Sadar Bazar Police Station for

the offences punishable under Section 498A of IPC. In the hospital,

statement of the injured was recorded by the Executive Magistrate. She had

mentioned before the Magistrate that she was married to the appellant.

That she is mother of two sons. That her husband used to assault her under

the influence of alcohol. On the date of the incident, at about 2 p.m., he

came for lunch. There was a quarrel between th couple and at the end of

the quarrel, she had poured kerosene and set herself ablaze. According to

her, she was rescued by her neighbours and that she was taken to the

hospital by her neighbour. The said dying declaration is marked as Exhibit

21. It appears that the said dying declaration was recorded between 3.45

p.m. to 4 p.m. The injured Vimal had sustained 96% burn injuries. Vimal

had succumbed to the burn injuries on 27.12.1994. hence, after completion

of investigation, charge-sheet was filed against the accused for the offences

punishable under Sections 498A and 306 of IPC. The prosecution has

examined as many as 11 witnesses to bring home the guilt of the accused.

The prosecution has also examined the minor son of the accused-appellant

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as PW-6.

3. PW-1 Bharat Bagade happens to be the neighbour of the

appellant and the deceased. He has deposed before the Court that the

accused was addicted to alcohol and that was the cause of quarrel between

the couple. That PW-1 had intervened in their quarrels. He has further

deposed that on 25.12.1994, it was Sunday. He had heard cries from the

house of the accused. He saw the wife of the accused-appellant in flames.

The accused was also present. PW-1 attempted to save her. The accused

READ  S.Geetha Kumari-vs-The Inspector Of Police on 17 December, 2009

had extinguished flames by covering her with a quilt. At that time, the

relatives were also present. He has specifically deposed that he along with

the accused and relatives of Vimal had taken her inside the house. Upon

arrival by the parents, an Ambulance was called and Vimal was taken to the

hospital. He has admitted in the cross-examination that the accused had

received burn injuries in the course of attempting to save his wife. He has

admitted in the cross-examination that he was never present at the time

when there were quarrels between the deceased and the accused.

4. PW-1 was confronted with his statement. He has admitted the

omissions and contradictions. He has also admitted that he had no talk with

the accused.

5. PW-2 Bhimsha Bansode happens to be the father of the

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deceased Vimal. According to him, the accused was addicted to alcohol

and was demanding money and coercing Vimal to fetch money from him.

According to him, he had filed a complaint to the police station against the

accused on the earlier occasion and the police had warned him, that he may

lose his job. On 25.12.1994, he was informed that Vimal has sustained

burn injuries. Therefore, he rushed to the house.

6. It is pertinent to note that PW-2 has categorically admitted that

when he reached the house of the accused, Vimal was unconscious. He

called for an Ambulance and took her to a hospital. According to him, his

daughter had regained consciousness at about 5 to 6 p.m. The witness has

stated that Vimal was admitted in the hospital by him at about 2.15 to 2.20

p.m. The doctor started treatment and then she started speaking. The

statement of Vimal was recorded by the Constable and soon thereafter a

lady Magistrate had recorded the statement of Vimal. According to him,

the constable had recorded his statement in the premises of Civil Hospital.

The contents of the said statement are true. It is marked as Exhibit 19.

According to him, in the evening his daughter requested him to look after

her children and informed him that being fed up of the harassment, she had

taken this extreme step. There are inconsistencies in the statement of PW-2.

He has admitted that he had not filed a complaint in writing to the police

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station. He had also not stated to the police that his daughter started

speaking, instead the police had informed him that he intends to record her

statement. He has admitted in the cross-examination that the police had not

recorded his statement and made any enquiry with him after 25.12.1994.

That police had recorded his statement at 6 p.m. in the evening. He has

also admitted that his daughter had asked him to look after her children on

27th prior to her death. However, he has not informed about the same to the

police. It is reiterated in the cross-examination in the following words :-

“It is not true that I am deposing falsely that my
daughter regained consciousness at about 5.00 to 6.00 p.m.
and started speaking thereupon police and a lady magistrate
recorded her statement in our absence.”

7. This Court has perused the deposition of PW-2. The above

portion is correctly recorded. The Court has recorded the observation that

throughout recording of substantive evidence, the witness was found to be

in a belligerent mood and the Court as well as the APP had to intervene to

pacify the witness and direct him to give proper answers.

8. PW-3 Bhagirathi Mhamane is the Special Executive Magistrate who

had recorded the statement of Vimal on 25.12.1994. She has deposed

before the Court that the police had issued a request letter to her to record

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the statement of Vimal. Accordingly, she had been to Civil Hospital. The

doctor had informed her that Vimal is in a position to give statement and

has also endorsed accordingly. She has recorded the statement of Vimal in

question and answer form. She has stated tha she had read over the

statement of Vimal and after she had admitted the contents thereof, she had

obtained her thumb impression. In the course of examination, she has

specifically admitted as follows :-

“It is correct to say that both hands of Vimal had received
burn injury. Vimal had not stated before me anything
especially that the4 accused used to harass her under
influence of liquor, as well as on that day at about 2.00
p.m. accused beat hr hence she had put herself on fire.”

She has also admitted that she had got printed the form of dying declaration

READ  Ashok vs The State Of Madhya Pradesh on 4 July, 2017

in question and answer form. The dying declaration is at Ex.21.

9. It is to be noted that the dying declaration was recorded between 3.45

to 4.00 p.m. on 25.12.1994 in the Burn Ward. The endorsement is typed on

the dying declaration as recorded between “3.45 to 4 p.m”. On perusal of

the original dying declaration, it is seen that the thumb impression of Vimal

is not attested by the Executive Magistrate. All the ridges and curves of the

hand can be seen.

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One cannot be oblivious of the fact that the post-mortem notes show that

she had sustained 96% burn injuries, including 100% burns on her hands,

palms and fingers.

10. PW-4 Arunkumar Deshmukh is the Registrar of General

Hospital. he had given the endorsement of consciousness on the dying

declaration. he has identified his signature on the dying declaration. Zhe

has categorically admitted in the cross-examination that “fingers are burns

impression of the said is not possible”

11. It would be pertinent to note that the Special Executive

Magistrate has not deposed before the Court the contents of the dying

declaration in the words of the deceased Vimal. Hence, all that is that a

statement was recorded. This aspect will have to be in consonance with the

deposition of PW-2 who has specifically stated that his daughter had

regained consciousness between 5 to 6 p.m., whereas the dying declaration

was recorded between 3.45 p.m. to 4 p.m. Questions Nos. 26, 27 and 28

pertain to Exhibit 21 and no question was put as to whether Vimal has

disclosed to the Executive Magistrate that because of the ill0treatment

meted out to her at the hands of the accused, she had committed suicide. In

question No.41, the question that is framed is about disclosure made by

Vimal to the Executive Magistrate. It appears that the learned Sessions

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Judge had read the statement in evidence and admitted it.

12. PW-5 is Shrikant Bansode who happens to be the brother of the

deceased Vimal. He has denied the suggestion as to whether the accused

had also sustained burn injuries in the said incident.

13. PW-6 Premsagar mane happens to be the son of the appellant. He

has specifically stated that his father used to drink liquor after coming from

work in the evening. That he has admitted that his father aloong with the

neighbours had extinguished flames by covering Vimal with a quilt and

that his father sustained burn injuries. He has further stated before the

Court that he is staying with his grandparents. His paternal grandparenets

are also residing in the same area. However, he was not allowed to meet

them. He has also admitted that his father used to love him very mujch, but

his mother used to be angry. He did not know the meaning of `retired’. He

has stated that he had not seen liquor nor he knew what was meant by

liquor. He has specifically admitted that his mother used to raise quarrel.

He has lastly admitted that he has deposed before the Court at the instance

of his maternal uncle that his father used to drink liquor, beat mother and

demand money. It is, therefore, clear that he is a tutored witrness.

14. PW-7 Vasant Patil was attached to Sadar Bazar Police Station.

He was on duty at Civil Hospital as Entry Hawaldar from 2.00 p.m. to 9.00

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p.m. He was informed by CMO Shri Yadav that Vimal had been admitted

to Civil Hospital with 96% burn injuries. He had immediately deputed

constable to request the Executive magistrate since he found that the

partient ws in a serious condition but he proceeded to record her statement

after taking an endorsement from the doctor. He had recorded the statement

in question and answer form. He had obtained her thumb impression. The

statement was recorded between 2.45 to 3 p.m. and is marked as Ex.26. He

has admitted in the cross that he has not recorded statement of the victim. It

is clear that the statement is recorded on a printed proforma which is similar

to Ex.21. He has also denied that he has not attested the thumb impression.

15. Upon perusal of the statement at Ex.26, it is clear that it is the

READ  State Of Maharashtra vs Ashok Narayan Dandalwar on 27 April, 2000

same proforma which is used by Special Executive Magistrzte.16. PW-8

Shrirang Chougule is the Police Officer who was on duty at Sadar Bazar

Police Station. He had referred the matter for investigation to PSI Patil.

The witness was confronted with the station diary entry No.42 dated

25.12.11994 which shows that the accused had given information to the

police. His notes were taken and the accused had shown the notes to the

police. The station diary is duly proved and is marked as Ex.35. He has

also admitted that he had no communication with PSI Patil at the relevant

time. he had informed his senior about the incident at 7.00 to 7.30 p.m.

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He has admitted that PSI Patil had not come to the police station but had

gone directly to the Civil Hospital.

16. PW-9 Dr. Sunil Yadav. He is M.C.H. in neuro surgery at Civil

Hospital. According to him, he had recorded the statement of the victim at

the time of admission and she has reported that she was being harassed and

therefore she had immolated herself. He has admitted that however there is

overwriting as far as the time is concerned.

17. PW-10 Pandurang Patil is the PSI. According to him, while he

was on the road, he had seen a mob at the house of the accused. He learnt

about the incident and had also learnt that the patient is admitted in the

hospital and therefore had proceeded to the Hospital directly. He has

admitted that he has stated about the incident on the basis of his memory.

He has proved the omissions and contradictions of the witnesses.

18. PW-11 Babasaheb Shaikh had completed the investigation and

filed charge sheet. he had recorded the statement of PW-6 Premsagar in the

house of PW-2 on 12.1.1995 as the children were out of station.

19. The case rests upon two dying declarations which are at

Exhibits 21 and 26. Needless to reiterate that both the dying declarations

are recorded on similar proformas which are kept with the Special

Executive Magistrate.

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20. It is pertinent to note that PW-2 has categorically admitted

before the Court that Vimal had regained consciousness at about 5.00 to

6.00 p.m., whereas the first dying declaration is recorded between 2.45 to 3

p.m. and the second dying declaration which is at Ex.21 is recorded

between 3.45 to 4.00 p.m.

21. The learned appointed Advocate rightly submits that both the

dying declarations are clear and similar. both the thumb impressions were

not attested by the persons who recorded the statements. All this is to be

read in consonance with the fact that when Vimal was shifted to the

hospital, she was unconscious. It is incumbent upon the prosecution to

bring on record, on the basis of the medical case papers as to when the

victim had regained consciousness. PW-2 has admitted that she had

regained consciousness at about 5 to 6 p.m. Hence, it is clear that the very

recording of dying declaration is shrouded with mystery.

22. To place implicit reliance upon a dying declaration it should

necessarily be truthful, voluntary and should inspire confidence of the

Court. Since the deponent is not alive, the said statement cannot be

subjected to cross-examination and therefore, the evidence in the form of

dying declaration necessarily has to be of a sterling nature.

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23. It is in these circumstances and for the reasons mentioned

above, the Appeal deserves to be allowed.

ORDER

(i) The Appeal is allowed.

(ii) The conviction and sentences under Sections 498A and 306 of

the Indian Penal Code are quashed and set aside. The appellant is acquitted

of all the charges levelled against him.

(iii) Bail bonds stand cancelled.

24. Mr. Satyavrat Joshi, Advocate appointed for the appellant has

graciously submitted that he would request the office to pay his legal

remuneration to the Advocates Library in the Bombay High Court.

Accordingly, his legal remuneration be paid by the office to the Advocates

Library within six months from the date of this order.

25. This Court cannot part with this Judgment without recording

appreciation of sincere efforts taken by Shri Joshi, Advocate.

26. Office to inform the appellant about this Judgment and order

forthwith.

(SMT. SADHANA S.JADHAV, J.)

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