Jagdish Kashiram Aakare vs The State Of Mah. Thr. … on 23 August, 2017

CRI.APPEAL.360.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 360/2003

Jagdish s/o Kashiram Aakare
Aged 50 years, R/o Lonkhairi
Tq.Kamptee, Dist. Nagpur .. APPELLANT

v e r s u s

State of Maharashtra
Through P.S.O, P. S. Saoner
Nagpur. .. RESPONDENT

……………………………………………………………………………………………………………
None for appellant
Mr. N.H. Joshi, Additional Public Prosecutor for respondent-State
…………………………………………………………………………………………………………….

CORAM: MRS.SWAPNA JOSHI, J.
DATED: 23rd August, 2017

ORAL JUDGMENT:

1. This Appeal has been directed against the judgment and order

dated 15th May,2003 in Sessions Trial No.629/2000 delivered by the learned

7th Ad-hoc Additional Sessions Judge, Nagpur, convicting the appellant/

( hereinafter referred to as ‘the accused’) under sections 498A and 306 of the

Indian Penal Code and sentencing him to suffer rigorous imprisonment for

seven years and a fine of Rs. 2000/- in default, to suffer further S.I. for

three months for offence punishable u/s. 306 IPC. The appellant was further

sentenced to suffer R.I. for two years and fine of Rs. 1000/- in default, S.I.

for two months for the offence punishable u/s. 498A of the IPC.

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2. I have heard Shri N.H.Joshi, the learned Additional Public

Prosecutor for the respondent-State, and with his assistance I have gone

through the entire record. The learned counsel for the appellant though

represented by Advocates, remained absent.

3. The prosecution case which can be gathered from the record of

the trial court is that on 9.10.2000 ASI, Avdeshsingh Thakur (PW 4) was on

duty at Khaparkheda Police Station. He received information from Head

Constable-Prabhakar attached to Mayo Hospital Booth, to the effect that Smt.

Nirmalabai w/o Jagdish Aakare was admitted in Mayo Hospital and she

succumbed to the burn injuries. The information in writing was given by Head

Constable Prabhakar was as under :

“On 5.10.2000 at 20.30 hours a quarrel took place between
Nirmalabai and her husband Jagdish Aakre. In anger, she poured
kerosene on her person and set herself on fire. She sustained 61%
burn injuries. She was admitted in Ward No.3 of Mayo Hospital for
treatment. However on 9.10.2000 at about 4.00 am, she was
declared dead by Dr. M R Kewale.”

On the basis of said information, ASI-Thakur, (PW4), registered

the offence, proceeded to the place of the incident and recorded the spot

panchnama (Exh.34). He collected the burnt clothes, kerosene can and a

match box from the place of incident under panchnama (Exh.35). He also

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recorded the statements of the witnesses. PW4 arrested the accused after

completion of investigation. The post-mortem was conducted on the dead body

of deceased-Nirmalabai and collected the PM notes (Exh.42). After completion

of investigation, PW4 filed the charge-sheet. The learned trial Judge after

framing the charge, recording the evidence and hearing both sides and mainly

relying upon the sole dying declaration of deceased Nirmalabai, recorded the

conviction of the appellant.

4. Mr.N.H.Joshi, the learned Additional Public Prosecutor

vehemently argued that the dying declaration of the deceased-Nirmala which

is recorded by the Special Judicial Magistrate, is a reliable piece of evidence

inasmuch as the Special Magistrate has taken care of obtaining the medical

certificate of the Medical Officer, with regard to the fitness of the deceased

prior to and after recording her statement. He submitted that the dying

declaration recorded by Special Magistrate is without any infirmity and

reliance can be placed on the said document.

5. After considering the arguments of learned APP, it would be

advantageous to go through the evidence led by the prosecution. In order to

bring home the guilt of the accused, the prosecution has examined in all five

witnesses. PW1-Dr. Mohan Kewale is the Medical Officer, PW 2-Anita Aakhare

is the daughter of the deceased, who turned hostile, PW3-Shankar Pawar is the

brother of the deceased, who also did not support the case of the prosecution,

PW4, ASI-Avdeshsingh Thakur is the Investigating officer, PW 5-Anil

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Pandhoria, is the Special Judicial Magistrate, who recorded the dying

declaration of deceased-Nirmala.

6. 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 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 considered, 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

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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 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.

7. In the present case, as per the prosecution case, in all three

dying declarations of deceased Nirmala were recorded. Out of those three

dying declarations, the prosecution relied upon only one, which was recorded

by Special Judicial Magistrate-Anil Padhoria (PW 5). According to PW5 on

6.10.2000 he was requisitioned from the Police Station Khaparkheda for

recording the statement of Nirmala Jagdish Aakhare who was admitted in

Mayo Hospital. At about 5.25 pm, PW5 reached Mayo Hospital in Ward

No.3. PW5 issued the requisition (Exh.24) to the Medical Officer enquiring

whether the patient is fit to give her statement. Dr. Mohan Kewale (PW1)

made an endorsement that the patient is fit to give her statement. The

endorsement was made at 5.30 pm (Exh.25). PW 5-Pandhoria then recorded

statement of Nirmala (Exh.45). After recording her statement he read over

the contents to her and she admitted it to be correct. Since both the arms and

fingers of Nirmala were burnt, PW5 obtained her left leg thumb impression.

PW5-Pandhoria, again, enquired from the Doctor whether Nirmala was fit to

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give her statement during recording her statement. The requisition is at Exh.

46. On this, the Medical Officer issued the certificate on the statement itself

that the patient is fit during recording her statement. The said endorsement

was given at 5.45 p.m. PW5-Pandhoria, then issued his certificate on the said

statement to the effect that the statement was recorded in the language of the

patient. It was read over to the patient and she admitted it to be correctly

recorded, at 5.45 p.m.

8. The Medical Officer,Dr.Mohan Kewale (PW1), deposed that on

6.10.2000 he was working as residential doctor at Indira Gandhi Hospital

Nagpur. On requisition of police, he issued a certificate that Nirmala Jagdish

Aakhare is fit to give her statement (Exh.23). PW1-Kewale further stated that

he also received a requisition from Special Judicial Magistrate for giving

fitness certificate of Nirmala to the effect that she is able to give her

statement. Accordingly, he issued it. Exh.24 is the requisition and Exh.25 is

the endorsement of PW1. According to PW1-Dr.Kewale, he made the

endorsement that the patient is fit to give her statement prior to the statement

recorded by Special Judicial Magistrate and even after the statement recorded

by him (Exh.26). PW1-Dr.Kewale, however, specifically stated during his

cross-examination that his certificate was not obtained by the police after

recording the statement of Nirmala. Significantly, the statement recorded by

the police of Nirmala has not been proved by the prosecution. In view thereof,

it is not clear as to why the prosecution has suppressed the dying declaration

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recorded by police and what was the exact statement given by Nirmala to the

Police at that particular time. It is pertinent to note here that the requisition

made by the police as well as the requisition made by the Special Judicial

Magistrate was at the same time i.e. 5.30 pm. It appears that both the

statements i.e. statements recorded by the police as well as the Special Judicial

Magistrate were recorded at the same time and this must be the reason as to

why the the statement recorded by the police was not proved by the

prosecution. In these circumstances, adverse inference can be drawn that the

dying declaration recorded by police at the same time, was not supporting

the case of the prosecution. Pertinently, in the cross-examination, PW1-

Dr.Kewale has stated in clear terms that at the time of recording the

statement by Magistrate he was not present. The said version of PW1 makes

amply clear that at the time of recording the statement by Special Judicial

Magistrate, PW1 all though out was not present near the deceased. In that

case, it creates a serious doubt about the mental as well physical fitness of

Nirmala while her statement was recorded by Spl. Judicial Magistrate. As

already discussed above, the dying declaration should be voluntary, it should

not be prompted and the physical as well as mental fitness of its maker is

required to be proved by the prosecution. The Medical Officer although has

denied that the patient was not in semi conscious condition, particularly when

he administered the medicines, analgesic and intravenous to the patient.

However, it appears that due to consumption of these medicines, the patient

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may not be that fit so far as the mental fitness is concerned, at the time of

recording her statement. Significantly, the dying declaration runs into 2 and ½

pages and it appears that it was recorded in just 15 minutes as the time

mentioned in the requisition of the Medical Officer indicates as 5.30 pm, and

the second endorsement about the fitness of the patient after statement,

depicts the time as 5.45 p.m. It is surprising that the dying declaration of 2

and ½ pages was recorded in 15 minutes by the Spl.Judl. Magistrate. In view

of the above facts and circumstances, the dying declaration does not inspire

confidence and no reliance can be placed upon the sole document relied upon

by the prosecution. 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.

9. It is worthwhile to note that the daughter of deceased, PW2

Anita Aakhare as well as PW 3-Shanklar Pawar, brother of the deceased,

turned hostile and did not support the case of the prosecution. PW2-Anita

specifically denied that her father used to come to her house under the

influence of liquor and used to quarrel with her mother and bother. She also

denied that her father used to beat her mother. PW2-Anita denied about her

presence at the place of the incident. She also denied that there was some

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altercation between her father and mother and thereafter her mother set

herself on fire by pouring kerosene on her body. PW2 stated that her father

tried to extinguish the fire by putting a quilt (wakar).

10. So far as the testimony of PW3-Shankar Pawar is concerned

he stated that Nirmala never made any complaint against her husband. PW3

denied that Nirmala committed suicide due to the ill-treatment at the hands of

her husband. The prosecution has failed to examine the neighbours of the

deceased Nirmala although their statements were recorded.

11. In this view of the matter, I am of the opinion that the

prosecution has miserably failed to prove its case beyond reasonable doubt.

The learned trial Judge has passed an illegal order by relying upon the dying

declaration. As such, the impugned order needs to be quashed and set aside.

Hence the following order:

ORDER

i) Criminal Appeal No.360/2003 is allowed.

ii) The impugned judgment and order dated 15.5.2003 in Sessions Trial

Case No.629/2000 passed by the learned 7th Ad-hoc Additional Sessions

Judge, Nagpur is set aside.

iii) The appellant/accused is acquitted of the offence punishable under

sections 498-A and 306 of the IPC.

iv) The fine amount if paid by the appellant be refunded to him.

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v) The bail bond of the appellant stands cancelled.

JUDGE

sahare

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