1 Cri.Appeal 583/2002
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.583 OF 2002
The State of Maharashtra
Through Police Station Bhokar,
At the instance of deceased
Krantibai w/o. Baban Bansode,
R/o. Mahatma Phule Nagar,
Bhokar, Tq. Bhokar,
Dist. Nanded … APPELLANT
(Ori. Complainant)
VERSUS
1. Baban s/o. Kishanrao Bansode,
Age:25 years, Occu.:Labour
R/o.Mahatma Phule Nagar,
Bhokar, Dist. Nanded
2. Chandrao S/o. Kishanrao Bansode,
Age: 28 years, Occu.:Labour,
R/o.Mahatma Phule Nagar,
Bhokar, Dist. Nanded
3. Ram s/o. Kishanrao Bansode,
Age: 24 years, Occu.:Labour,
R/o. Mahatma Phule Nagar,
Bhokar, Dist. Nanded .. RESPONDENTS
(Ori. Accused)
—–
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Shri. S.J.Salgare, APP for Appellant-State;
Shri. Angad L. Kanade, Adv.for Resp.Nos.1 to 3.
…
CORAM : SUNIL P.DESHMUKH
P.R.BORA, JJ.
DATE OF RESERVING JUDGMENT: 15
th
February,2018
DATE OF PRONOUNCING JUDGMENT:27
th
April, 2018
JUDGMENT (PER:- P.R.BORA,J.)
1) The State has preferred the present
appeal against judgment and order passed by Ad
hoc Additional Sessions Judge Nanded in Sessions
Case No.92/2001 decided on 26th June, 2002. The
Respondents were prosecuted in the aforesaid
Sessions Case for the offences punishable under
Sections 498A, 302 read with 34 of IPC. It was
alleged that in furtherance of their common
intention, respondents knowingly and
intentionally, caused the death of deceased
Kranti Baban Bansode by setting her on fire after
pouring kerosene on her person.
2) The alleged incident had occurred on 23rd
December, 2000 at about 3.00 p.m. at the
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residential house of the accused situated at
Mahatma Phule Nagar, Bhokar, Tq. Bhokar District
Nanded. Deceased Kranti was married with
Respondent No.1, about three years prior to the
alleged incident. Respondent Nos.2 and 3 are
real brothers of accused No.1. Respondent Nos.
1 to 3 are hereinafter referred to as accused
Nos.1 to 3.
3) According to the prosecution, all the
three accused were residing in the house situated
at Mahatma Phule Nagar. It was the case of the
prosecution that on 23rd December, 2000, deceased
Kranti had taken her son by name Vicky to the
doctor since he was ill, with the help of a
neighbouring boy, viz. Uttam Sarode. It was
alleged that after deceased Kranti returned from
the hospital, grievance was raised as about
accompaniment of Uttam Sarode with the
prosecutrix while going to the hospital. Some
ill intentions were attributed on part of
deceased Kranti in that regard by her father-in-
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law. Father-in-law of deceased Kranti was also
stated to have asked accused No.2 to keep watch
on the prosecutrix. Accused Nos.1 and 2 had
raised suspicion over the character of deceased
Kranti and some altercations had occurred on the
issue. Deceased Kranti thereafter cooked the
food and made arrangement for sending Tiffin of
accused no.1 and also served meals to accused
Nos.2 and 3. Accused No.1 was, however, stated
to have returned from the mid-way. It was
further alleged that Accused No.1 thereafter
poured kerosene on person of deceased Kranti and
set her on fire. Accused No.1 was also alleged
to have bolted the door of the room from outside.
Deceased Kranti engulfed in the flames, broke
open the door and came out. She then was
immediately removed to rural hospital at Bhokar.
From the said hospital deceased Kranti was
referred to Shri Guru Govind Singhji Memorial
Hospital, at Nanded. Deceased Kranti had
received extensive burn injuries. While in the
hospital, dying declaration of deceased Kranti
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was recorded on 24th December, 2000 by JMFC, viz.
Shri A.J.Telang. In the declaration given to
JMFC Shri Telang, deceased Kranti implicated the
accused persons to have poured kerosene on her
person and setting her ablaze. On the basis of
the declaration so given by the prosecutrix,
initially an offence under Section 498A and 307
of IPC was registered against the accused persons
at Police Station, Bhokar and the investigation
was set in motion. While undergoing treatment at
the civil hospital at Nanded, Kranti succumbed to
the burn injuries, whereupon the offence
initially registered under Section 307 of IPC was
converted into an offence under Section 302 of
IPC. The Investigating Officer in usual course
carried out spot panchanama, inquest panchanama
and also got done post mortem examination of the
dead body of victim Kranti. The statements of
the witnesses were also recorded. The accused
were arrested. Some recoveries were also made in
pursuance of the memorandum statements allegedly
given by the accused. After completing the
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investigation, charge sheet was filed in the
court of JMFC at Bhokar.
4) The learned JMFC, having regard to the
fact that the offence under Section 302 of IPC
was exclusively triable by the Court of Sessions,
committed the said case to the Sessions Court.
After committal, the learned Sessions Judge
framed charge against the accused persons, to
which the accused pleaded not guilty and claimed
to be tried.
5) In order to prove guilt of the accused,
the prosecution examined as many as 12 witnesses
and also relied upon certain documents. The
defence of the accused was of total denial and of
false implication. The learned Ad hoc Additional
Sessions Judge, after having assessed the oral
and documents evidence brought before him,
acquitted all the three accused of the charges
leveled against them. Aggrieved by, the State
has preferred the present appeal.
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6) Shri Salgare, learned APP appearing for
the State, criticized the impugned judgment on
various grounds. The learned APP submitted that
the learned Trial Court has rejected the
evidence brought on record by the prosecution in
the form of dying declaration of deceased Kranti
for erroneous reasons. The learned APP further
submitted that the dying declaration at Exh. 33
was recorded by the learned JMFC and before
recording the said statement, the learned
Magistrate has also obtained an opinion of the
Medical Officer whether deceased Kranti was in a
position to give her statement and only after
certification by the concerned medical officer
that she was fit to give her statement, the
statement was recorded by the learned JMFC.
7) The learned APP further submitted that
as has come on record in the evidence of PW 9 –
A.J.Telang – JMFC that he himself was satisfied
that deceased Kranti was in a position to give
her statement and only after ascertaining the
said fact that he recorded her statement. The
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learned APP further submitted that the learned
Magistrate relying upon the judgment of the
Hon’ble Apex Court in the case of Paparambaka
Rosamma Vs. State of A.P. – (1999) 7 SCC 695, has
declined to rely upon the dying declaration
recorded by PW 9 of deceased Kranti for the
reason that there is no specific certification
that deceased Kranti was in a fit state of mind
to give her statement.
8) The learned APP further submitted that
in the case of Laxman Vs. State of Maharashtra –
(2002) 6 SCC 710, the Constitution Bench of the
Hon’ble Apex Court has overruled the judgment in
the case of Paparambaka Rosamma Vs. State of A.P.
(cited supra). The learned APP further submitted
that the Constitution Bench of the Supreme Court
has ruled that, what is essentially required is
that the person, who records a dying declaration
must be satisfied that deceased was in a fit
state of mind. Where it is proved by the
testimony of the Magistrate that the declarant
was fit to make the statement even without
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9 Cri.Appeal 583/2002
examination by the doctor, the declaration can be
acted upon provided the Court ultimately holds
the same to be voluntary and truthful. The
Hon’ble Apex Court has further held that
certification by the doctor is essentially rule
of caution and, therefore, the voluntary and
truthful nature of the declaration can be
established otherwise.
9) The learned APP further submitted that
having considered the evidence on record and more
particularly the facts, as are revealed from the
dying declaration of deceased Kranti, the
prosecution has beyond reasonable doubt proved
the guilt of at least accused No.1. The learned
APP fairly submits that in so far as accused Nos.
2 and 3 are concerned, no such evidence has come
on record against them so as to hold them guilty
for the homicidal death of deceased Kranti.
10) The learned APP further submitted that
as has been stated by deceased Kranti in her
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dying declaration at Exh. 33, only because
deceased Kranti took the neighbouring boy viz.
Uttam along with her, when she had been to the
hospital for the treatment of her son, viz.
Vicky, her character was suspected by accused
No.1 and that has resulted in pouring kerosene by
him on person of deceased Kranti and to set her
on fire. The learned APP further submitted that
the dying declaration of deceased Kranti alone is
sufficient to prove the complicity of the accused
in commission of the alleged crime. The learned
APP, therefore, prayed for setting aside the
impugned judgment and order and consequently to
hold accused No.1 guilty for offence under
Section 302 of IPC and to adequately punish
accused No.1.
11) Learned Counsel appearing for the
respondents, while opposing the submissions
advanced by learned APP, supported the impugned
judgment. The learned Counsel submitted that
there are serious doubts whether deceased Kranti
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11 Cri.Appeal 583/2002
was in a condition to give her statement on 24th
December when it is said to have recorded by PW 9
– A.J.Telang. The learned Counsel pointed out
that on the earlier day, i.e. on 23rd December,
and on the subsequent days, i.e. on 25th, 26th,
27th and up to 28th December, the medical reports
show that deceased Kranti was not in a condition
to give her statement.
12) The learned Counsel submitted that since
deceased Kranti had received the burn injuries
to the extent of 98%, she was not in physical and
mental condition to give her statement
throughout, i.e. since her admission in the
hospital till her death. The learned Counsel
further submitted that the prosecution has also
not examined the medical officer, who is alleged
to have certified deceased Kranti to be fit for
giving her statement before it was recorded by PW
9 – A.J.Telang. The learned Counsel submitted
that non-examination of said medical officer also
creates doubt about the fitness of deceased
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Kranti for giving her statement.
13) The learned Counsel further submitted
that there were also allegations against the
accused persons that they had caused harassment
to deceased Kranti on account of some monetary
demands. However, the prosecution has failed in
bringing on record any cogent evidence in that
regard. The learned Counsel submitted that the
entire prosecution case was thus based on
falsehood and in the circumstances, the learned
Sessions Judge has rightly acquitted all the
accused from the offences charged against them.
The learned Counsel further submitted that even
in respect of the truthfulness of the facts
allegedly stated by deceased Kranti in her
statement at Exh. 33, there are serious doubts.
The learned Counsel pointed out that though
accused No.3 was not even present at the relevant
time, deceased Kranti had also tried to implicate
his name in the alleged dying declaration. The
learned Counsel further submitted that similarly,
though there was no role played by accused No.2,
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13 Cri.Appeal 583/2002
his name has also been implicated in the alleged
dying declaration of deceased Kranti, which also
creates doubts about the veracity of the said
dying declaration.
14) The learned counsel further submitted
that there are several lacunae, which are pointed
out by the learned Trial Court as about
attestation of the thumb impression; not
obtaining left hand thumb impression etc. The
learned Counsel further submitted that the
evidence of PW 4 – Chandrakala, who is an
independent witness, also clearly indicates
non-involvement of the accused persons in the
alleged incident. In the circumstances,
according to the learned Counsel, the learned
Sessions Judge has rightly acquitted the accused
persons and no interference is required in the
well-reasoned order so passed by the learned
Additional Sessions Judge. The learned Counsel,
therefore, prayed for dismissal of the appeal.
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14 Cri.Appeal 583/2002
15) We have given due consideration to the
submissions made by the learned APP appearing for
the appellant- State and the learned counsel
appearing for the respondents. We have also
perused the impugned judgment and the entire
evidence on record. It is not in dispute that
deceased Kranti died on 28.12.2000 as a result of
the burn injuries caused to her. PW 1 – Dr.
Ramesh Waghmare had conducted the post-mortem
examination on the dead body of Kranti. As was
deposed by Dr. Waghmare, deceased Kranti had
received the burn injuries to the extent of 98%.
As opined by Dr. Waghmare, death of deceased
Kranti was caused due to shock by burns. As
stated by him all the injuries were ante-mortem.
It is further not in dispute that the alleged
incident, wherein deceased Kranti is said to have
received burn injuries, happened at her house in
Mahatma Phule Nagar at Bhokar district Nanded on
23rd December, 2000. It is further not in
dispute that the said incident happened at about
3 p.m. in the afternoon.
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15 Cri.Appeal 583/200216) The question, which first falls for our
consideration is, whether death suffered by
deceased Kranti was homicidal or accidental or
suicidal. From the entire material on record it
is quite evident that it is nobody's case that
deceased Kranti committed suicide. The
possibility of suicidal death thus stands ruled
out.
17) Accused No.1 has raised the defense that
deceased Kranti got accidentally burnt. In his
statement under Section 313 of Cr.P.C., accused
No.1 has stated that deceased Kranti was
suffering from epilepsy and she used to receive
fits, whereupon she used to fall down. In the
cross-examination of the prosecution witnesses
also a suggestion was given by the accused that
deceased Kranti while cooking fell down due to
fits and got burnt. An attempt was also made by
the accused to bring on record in the cross-
examination of PW 4 - Chandrakalabai, the fact to
the effect that she came to know from the persons
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16 Cri.Appeal 583/2002gathered on the spot that deceased Kranti had
fallen due to fits while cooking and was
therefore, injured and received burn injuries.
However, the defense so raised by the accused has
been falsified by the declaration given by
deceased Kranti about the cause of her death.
Had deceased Kranti received the burn injuries in
the accident, there was no reason for her to
falsely implicate the accused at the verge of her
death. The circumstances on record also do not
support the plea taken by the accused. It has
come on record through the report of the Chemical
Analyzer that the kerosene residues were detected
on the half-burnt lahenga of the deceased, which
was seized from the spot of occurrence. On the
spot of occurrence, no kerosene stove was
noticed. On the contrary, the spot panchanama
reveals that there was a 'chul' (mud-stove) in
the room and half-burnt wooden log was found on
the spot. In the circumstances, if the defense
story has to be accepted, there was no reason for
detection of the kerosene residues on the half-
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17 Cri.Appeal 583/2002
burnt lehenga, which was recovered from the spot
of occurrence. The detection of the kerosene
residues on the said lehenga fortifies the
allegation made in the dying declaration by
deceased Kranti that accused No.1 poured kerosene
on her person and set her ablaze. In her dying
declaration Kranti had also narrated that she had
bought 1 ½ liters kerosene and it was kept in
the house. In pursuance of the memorandum
statement given by accused No.1, plastic canister
wherein kerosene was stored was recovered.
Though panch witnesses on memorandum did not
support, the recovery has been duly proved
through the evidence of Investigating Officer.
From the evidence on record, unhesitatingly it
can be held that deceased Kranti did not suffer
the accidental death.
18) According to the prosecution, deceased
Kranti suffered a homicidal death. It is the
case of the prosecution that accused No.1, joined
by accused Nos.2 and 3, poured kerosene on person
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18 Cri.Appeal 583/2002of deceased Kranti and set her ablaze. It is
also the case of the prosecution that accused
No.1 thereafter bolted the door of the room from
outside wherein deceased Kranti was set on fire.
It is also the case of the prosecution that
deceased Kranti anyhow opened the door and came
out of the house and was then removed to the
hospital where she ultimately died on 28th
December, 2000.
19) In order to prove that deceased Kranti
suffered a homicidal death, the thrust of the
prosecution is on the dying declaration of the
deceased recorded by the learned Judicial
Magistrate and the medical evidence on record.
The discussion made in the impugned judgment
reveals that the learned Trial Judge has rejected
the dying declaration of deceased Kranti on the
ground that the prosecution has failed to prove
that the said dying declaration was made by
deceased Kranti in a fit state of mind. While
rejecting the evidence in the form of dying
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19 Cri.Appeal 583/2002declaration, the learned trial Judge has accepted
the defence of the accused that deceased Kranti
sustained burn injuries accidentally while
preparing the food. Resultantly, the finding of
acquittal has been recorded by the learned Trial
Judge. In light of the evidence, which has been
brought on record, it has to be scrutinized
whether the conclusion recorded by the trial
judge can be sustained or deserves to be set
aside.
20) The material on record reveals that the
dying declaration of deceased Kranti was recorded
by PW 9 - Anilkumar Janbaji Telang on 24 th
December, 2000 when deceased Kranti was admitted
in the burns ward at SGGM Hospital at Nanded. PW
9 was at the relevant time working as Joint Civil
Judge, Junior Division and Judicial Magistrate
First Class at Nanded. As has been deposed by PW
9, on 23rd December, 2000, a requisition was
received to him for recording the dying
declaration of deceased Kranti, who was admitted
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20 Cri.Appeal 583/2002to SGGM Hospital, Nanded. PW 9 has further
deposed that he thereafter visited the SGGM
Hospital and requested the Medical Officer to
examine deceased Kranti. Accordingly, deceased
Kranti was examined by the said Medical Officer
and on such examination, he told to PW 9 that the
said patient, i.e. deceased Kranti was unable to
speak at that time. PW 9 has further deposed
that he then instructed the police to again call
him when the patient would come in a position to
speak. PW 9 has further deposed that on 24 th
December, 2000, he received the information from
the police that the concerned patient was able to
speak and he, therefore, should visit the
hospital to record her statement. PW 9 has
further deposed that he then reached to SGGM
hospital at about 11.55 A.M., met the Medical
Officer and visited the burn ward along with him.
PW 9 has further deposed that he asked all the
nearby persons and all other strangers to go out
of the burn ward and secured isolation of the
patient whose statement he was to record. PW 9
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21 Cri.Appeal 583/2002has further deposed that on his request the
Medical Officer examined deceased Kranti and
certified that she was able to give her
statement. PW 9 has further deposed that he did
put 2-3 questions to deceased Kranti in order to
verify whether she was able to understand import
of the question. PW 9 has further deposed that
from the answers given by said patient to his
question, he gathered that she was able to speak
and understand the questions. Prior to that, it
was also deposed by PW 9 that the patient was
conscious at the relevant time. PW 9 has also
deposed that after his personal satisfaction, he
started recording the dying declaration of
deceased Kranti in question and answer form. PW
9 has further deposed that after the recording
was completed, he read out the statement so
written to the declarant, i.e. deceased Kranti
and she admitted the contents of the statement so
recorded to be correctly scribed. PW 9 has
further deposed that the Medical Officer was
throughout present when he recorded the statement
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22 Cri.Appeal 583/2002of deceased Kranti. P/W 9 has also deposed that
he took the impression of toe of her right foot,
because her both the hands were burnt. PW 9 has
also deposed that the Medical Officer again
examined deceased Kranti and gave opinion that
she was conscious throughout recording of her
statement. PW 9 has also deposed that he
attested the statement so recorded. During the
course of his evidence before the Court, the
statement so recorded by PW 9 came to be
exhibited as Exhibit-33.
21) In his cross-examination, PW 9 has
admitted that he did not see the medical papers
(Bed-head tickets) on 24th December, 2000 nor he
enquired with the Medical Officer about the
treatment and medicines etc.
22) Perusal of the impugned judgment reveals
that the learned trial Judge has declined to rely
upon the dying declaration of deceased Kranti
recorded by PW 9 mainly on the ground that the
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23 Cri.Appeal 583/2002Medical Officer nowhere mentioned in the two
endorsements made by him on the dying declaration
at Exh. 33 that the declarant during recording of
her statement was in a fit state of mind. The
learned Trial Judge has observed that the
endorsement, which has been made is about
'conscious' state of declarant. Then, relying
upon the judgment of the Hon'ble Apex court in
the case of Paparambaka Rosamma Vs. State of A.P.
- (1999) 7 SCC 695, the learned Trial Judge has
ultimately recorded the conclusion that in
absence of any such certification by the Medical
Officer that deceased Kranti was in a fit state
of mind, no reliance can be placed on the dying
declaration allegedly given by deceased Kranti to
PW 9. The learned Trial Judge has referred to
some more judgments of the Hon'ble Apex court as
well as of this Court and ultimately recorded its
conclusion in para 18 of the impugned judgment.
I deem it appropriate to reproduce the entire
said para, which reads thus, -
"18. In the light of the above
legal position, in the instant case,::: Uploaded on - 27/04/2018 28/04/2018 01:44:44 :::
24 Cri.Appeal 583/2002I have no alternative but to reject
the dying declaration as it is made
in a fit state of mind of the
patient is not proved beyond
reasonable doubt by the
prosecution."We reiterate that the conclusion, as aforesaid,
recorded by the learned trial Judge was based on
the decision of the Hon'ble Apex court in the
Paparambaka Rosamma's case (cited supra).
23) As has been argued by the learned APP,
the Constitution Bench of the Hon'ble Apex court
in the case of Laxman Vs. State of Maharashtra -
(2002) 6 SCC 710, has overruled the judgment in
Paparambaka Rosamma's case. In Paparambaka
Rosamma's case, the dying declaration in question
had been recorded by a Judicial Magistrate and
the Magistrate had made a note that on the basis
of the answers elicited from the declarant to the
questions put, he was satisfied that the deceased
is in a fit disposing state of mind to make
declaration. The doctor had appended a
Certificate to the effect that the patient was
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25 Cri.Appeal 583/2002conscious while recording the statement; yet the
Court came to the conclusion that it would not be
safe to accept the dying declaration as true and
genuine and was made when the injured was in a
fit state of mind since the certificate of the
doctor was only to the effect that the patient is
conscious while recording the statement.
24) The learned Trial Judge in the impugned
judgment in para 14 has reproduced some portion
in the judgment of Paparambaka Rosamma's case,
which reads thus, -
"In the absence of medical
certification that the injured was
in a fit state of mind at the time
of making the declaration, it would
be very much risky to accept the
subjective satisfaction of a
Magistrate who opined that the
injured was in a fit state of mind
at the time of making a
declaration."25) As has been observed by the Hon'ble Apex
court in the case of Laxman Vs. State of
Maharashtra (cited supra), in the later decision
of the Hon'ble Apex court in Koli Chunilal Savji
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26 Cri.Appeal 583/2002Vs. State of Gujrat - (1999) 9 SCC 562, it was
held that the ultimate test is whether the dying
declaration can be held to be a truthful one and
voluntarily given. It was further held that
before recording the declaration, the officer
concerned must find that the declarant was in a
fit condition to make the statement in question.
The Hon'ble Apex court in the case of Laxman Vs
State of Maharashtra (cited supra), has further
referred to the earlier decision of the Hon'ble
Apex court in Ravi Chander Vs. State of Punjab -
(1998) 9 SCC 303, wherein it had been observed
that, for not examining by the doctor, the dying
declaration recorded by the Executive Magistrate
and the dying declaration earlier made, need not
be doubted. The Magistrate being a disinterested
witness and a responsible officer and there being
no circumstances or material to suspect that the
Magistrate had any animus against the accused or
was in any way interested for fabricating the
dying declaration, question of doubt on the
declaration, recorded by the Magistrate does not
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27 Cri.Appeal 583/2002arise. We deem it appropriate to reproduce
herein below para 5 of the judgment in the case
of Laxman Vs. State of Maharashtra (cited supra),
wherein the Hon'ble Apex court has recorded its
conclusions, which reads thus, -
"5. The court also in the aforesaid case
relied upon the decision of this court in
Harjeet Kaur VS. State of Punjab 1999(6)
SCC 545 case wherein the magistrate in his
evidence had stated that he had
ascertained from the doctor whether she
was in a fit condition to make a statement
and obtained an endorsement to that effect
and merely because an endorsement was made
not on the declaration but on the
application would not render the dying
declaration suspicious in any manner. For
the reasons already indicated earlier, we
have no hesitation in coming to the
conclusion that the observations of this
court in Paparambaka Rosamma Ors. vs.
State of Andhra Pradesh 1999 (7) SCC 695
to the effect that "in the absence of a
medical certification that the injured was
in a fit state of mind at the time of
making the declaration, it would be very
much risky to accept the subjective
satisfaction of a magistrate who opined
that the injured was in a fit state of
mind at the time of making a declaration"
has been too broadly stated and is not the
correct enunciation of law. It is indeed a
hyper-technical view that the
certification of the doctor was to the
effect that the patient is conscious and
there was no certification that the
patient was in a fit state of mind
specially when the magistrate
categorically stated in his evidence::: Uploaded on - 27/04/2018 28/04/2018 01:44:44 :::
28 Cri.Appeal 583/2002indicating the questions he had put to the
patient and from the answers elicited was
satisfied that the patient was in a fit
state of mind where-after he recorded the
dying declaration. Therefore, the judgment
of this court in Paparambaka Rosamma
Ors. vs. State of Andhra Pradesh 1999 (7)
SCC 695 must be held to be not correctly
decided and we affirm the law laid down by
this court in Koli Chunilal Savji vs.
State of Gujarat 1999(9) SCC 562 case."26) In view of the law laid down by the
Constitution Bench of the Hon'ble Apex court in
the case of Laxman Vs. State of Maharashtra
(cited supra), the conclusion recorded by the
learned Trial Judge, that he had no alternative
but to reject the dying declaration, as it is not
proved beyond reasonable doubt by the prosecution
that it was made by the deceased 'in a fit state
of mind', has to be turned down.
27) We have carefully perused the testimony
of PW 9 Shri A.J.Telang. We have noted herein
above that PW 9, before recording the statement
of deceased Kranti, had taken all care to remove
the persons around the deceased, may be her
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29 Cri.Appeal 583/2002relatives or friends or others and had also
requested the Medical officer to examine the
declarant and to give his opinion whether she was
able to give her statement. As has been deposed
by Shri Telang (PW 9), the doctor certified
deceased Kranti to be fit for giving her
statement. PW 9 has specifically deposed that
initially he put 2-3 questions to deceased Kranti
in order to verify whether she was able to
understand the import of questions. has further
deposed that he gathered that deceased Kranti was
able to speak and understand the questions. More
importantly, PW 9 Shri Telang, in no uncertain
words, has further deposed that after his
personal satisfaction that deceased Kranti was
fit to give her statement, he started recording
her dying declaration. It is further the matter
of record that PW 9 had recorded the dying
declaration of the deceased in question and
answer form. It has also come on record that
after the recording of the statement was
completed, PW 9 read over the said statement to
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30 Cri.Appeal 583/2002deceased Kranti and she admitted the contents of
the statement to have been correctly scribed. PW
9 has also deposed that the Medical officer was
throughout present during the course of his
recording the statement of deceased Kranti. It
has also come on record through the testimony of
PW 9 that he took the impression of toe of right
foot of deceased Kranti because her both the
hands were burnt. PW 9 has also deposed that he
appended the certificate over-leaf the dying
declaration and put his signature below it. It
has also come on record in his evidence that he
gave one copy of the said dying declaration to
the police and sent one copy in a sealed envelope
to the Chief Judicial Magistrate, Nanded. During
the course of his evidence before the Court,
original copy of dying declaration was placed on
record by him and he testified that it was
recorded in his own hand-writing, was bearing
endorsement of the medical officer and the
impression of the right foot toe of deceased
Kranti and his attestation.
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31 Cri.Appeal 583/200228) It is thus quite evident that PW 9
recorded the dying declaration of deceased Kranti
by following due procedure and by observing all
the mandatory requirements.
29) The learned Counsel for the respondents
sought to contend that the prosecution must have
examined the medical officer, who had certified
deceased Kranti to be fit for giving her
statement recorded by PW 9 - Shri A.J.Telang. The
learned Counsel further submitted that non-
examination of the said medical officer has
created serious doubts about the so-called
endorsement alleged to have been made by the said
Medical Officer. The learned Counsel further
submitted that the prosecution has not assigned
any reason as to why it has not examined the said
medical officer. We are, however, not at all
impressed with the submissions so made. Firstly,
PW 9 has, in many words, deposed in his testimony
before the court about examination of deceased
Kranti by the medical officer and certifying
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32 Cri.Appeal 583/2002deceased Kranti to be fit for giving her
statement. PW 9 had also deposed that in his
presence, endorsement was made by the medical
officer and he has also put his signature below
the said statement. It was also deposed by PW 9
that the said medical officer was throughout
present during the course of recording of the
statement by him of deceased Kranti. Apparently,
there appears no reason for doubting the facts,
as are deposed by PW 9, who is a responsible
officer holding the post of JMFC. He was a
disinterested witness and as such, we do not find
any reason to disbelieve the facts, as above,
deposed by the said witness. In the
circumstances, merely because the said Medical
Officer has not been examined or on the ground
that PW No.9 was unable to state name of the said
medical officer, the facts so deposed by PW 9
cannot be discarded or disbelieved. Further, we
reiterate that Shri A.J.Telang - JMFC himself had
ascertained the condition of deceased Kranti for
giving her statement and only after his
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33 Cri.Appeal 583/2002satisfaction that deceased Kranti was in a
position to give her statement that he recorded
the statement of the deceased.
30) In V. Paripurnachary Vs. State of Adhara
Pradesh - AIR 1998 SC 2680, the Hon'ble Apex
court has held that, -
"Judicial Magistrate recording dying
declaration - Doctor's certificate
regarding fitness not available, -
Where the dying declaration recorded
by Judicial Magistrate contained a
detailed narration of the incident -
the Magistrate had put questions to
her and the questions and answers
were recorded by him - there was
doubt about the authenticity of the
dying declaration in absence of the
doctor's certificate regarding the
fitness or otherwise of the person
making the declaration, it was held
that the Magistrate himself deposed
in Court in categorical terms that
he had satisfied himself that the
deceased was in a fit condition to
make the statement - the dying
declaration could be relied upon for::: Uploaded on - 27/04/2018 28/04/2018 01:44:44 :::
34 Cri.Appeal 583/2002conviction of the accused."
31) In the instant matter, we have no doubt
about the genuineness of the facts deposed by PW
9 in his testimony before the court that deceased
Kranti was examined by the same medical officer,
who was at the relevant time, present in the Burn
Ward and has certified her to be fit for giving
her statement. We, therefore, do not find any
substance in the objection so raised.
32) It was then contended by the learned
Counsel for the respondents that considering the
fact that deceased Kranti had received extensive
burn injuries to the extent of 98%, it was highly
improbable that she could have given any
statement to PW 9.
33) Learned APP was prompt enough in
bringing to our notice the evidence of Dr.Ramesh
Waghmare (PW 1), who had conducted the post
mortem examination on dead body of deceased
Kranti. The learned APP pointed out that a
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35 Cri.Appeal 583/2002suggestion was given to PW 1 Dr. Waghmare in his
cross-examination that deceased Kranti was unable
to speak because of internal damage; however, Dr.
Waghmare denied the said suggestion. The
evidence of Dr. Waghmare further reveals that he
had also denied the suggestion that the upper jaw
and lower jaw of deceased Kranti were totally
burnt. It has also come on record through
evidence of Dr. Waghmare that tongue of the
patient, i.e. deceased Kranti, was not paralyzed
due to burning. Referring to the fact that the
hands and fingers of deceased Kranti were burnt
and her skin was also peeled at some places, a
suggestion was given to Dr.Waghmare that she was
unable to understand and was mentally unfit.
Dr.Waghmare has denied the said suggestion also.
Further suggestion that due to such burn, the
capacity of deceased Kranti to think and
understand was also impaired, was also denied by
Dr. Waghmare. In sum and substance, though the
accused heavily attempted to bring on record that
deceased Kranti was not in a position to give her
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36 Cri.Appeal 583/2002statement because of her physical as well as
mental condition, they could not bring any such
evidence or circumstance on record.
34) The learned Counsel for the respondents
then invited our attention to the fact that
deceased Kranti was not certified to be fit for
giving her statement on 23rd December, 2000. The
learned Counsel further submitted that even on
25th December, and then on 26th and 27th December,
also, there are the endorsements showing that the
patient, i.e. deceased Kranti, was unable to give
her statement. The learned Counsel submits that
in the facts, as above, serious doubts are raised
whether on 24th December, 2000, deceased Kranti
was really in a condition to give her statement.
35) We are not convinced with the
submissions so made. There appears no reason to
disbelieve the testimony of PW 9 that deceased
Kranti was in a fit condition when he recorded
her statement. Only because one day before
recording her statement and from next day
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37 Cri.Appeal 583/2002thereafter deceased Kranti was said to be not in
a condition to give her statement, does not mean
that she was not in a condition to give her
statement on 24th December, 2000. PW 9 Shri
Telang has testified that in his presence the
Medical officer in the ward examined deceased
Kranti and certified her to be fit for giving her
statement. As has been noted earlier, the said
medical officer was throughout present during the
course of recording of the statement by PW 9 and
he had certified deceased Kranti to be in a
conscious state even after recording of the
statement.
36) Further, as has been observed by the
Hon'ble Apex court in the case of Ravi Chander
Vs. State of Punjab (cited supra), PW 9 Shri
Telang, who was at the relevant time, working as
JMFC, being a disinterested witness and a
responsible officer of the court and there being
no circumstances or material to suspect that the
Magistrate had any animus against the accused or
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38 Cri.Appeal 583/2002was in any way interested for fabricating the
dying declaration, question of doubt on
declaration recorded by the Magistrate does not
arise.
37) In the aforesaid circumstances, we have
no hesitation in relying upon the dying
declaration recorded of deceased Kranti by PW 9
Shri Telang.
38) We deem it appropriate to reproduce
herein below the entire dying declaration of
deceased Kranti recorded by JMFC, which is at
Exhibit-33 in the record of the trial court.
First we will reproduce the vernacular version
and then its translation in English.
Vernacular version of dying declaration
lanHkZ % R.M.L.C.No.3243/DNH
fn- 23@12@2000
iks-gs-dkW- ds-ds- cks[kkjs c-ua- 1196
iks-LVs- othjkckn ;kaps i fn-23-12-2000e`R;qiwoZ tckc Ex.33
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39 Cri.Appeal 583/2002iz'u 1 yk % rweps ukao dk; ?
mRrj % Økarh Hkz- ccu culksMs
Patient is o; 20 oÔ]Z jk- Hkksdj] rk- Hkksdj] ft- ukansM
able to
givestatement iz'u 2 jk % ?kVuk d'kh ?kMyh ?
Sd/- mRrj % eks uoÚ;k'kh HkkaM.k kys eks uoÚ;k'kh HkkaM.k
JR II gks.;kps nksurhu fnol vkf/k ekk ewyxk fodh ;kph y?koh
24/12 can kyh gksrh- eh 'kstkjP;k ewyklkscr ekÖ;k ewykl
12 p.m. nok[kk.;kr ?ksmu xsys- ekk nsj jke gk ?kjkr ukpr gksrk- eh
ekÖ;k nsjkl lkaxhrys fd eh mRreyk ?ksmu nok[kk.;kr tkr
vkgs- ekb;k lklÚ;kus mRre lkscr tkrkuk eyk ikghys- ekÖ;k
lklÚ;kus ekÖ;k nsjkl lkaxhrys dh fg ewyxh mRreP;k eksB;k
Hkkokl ?ksmu fu?kwu xsyh o nsjkl lkaxhrys fd rw R;kaP;k ekxs
tk o rhyk ?ksmu ;s- nsj vkyk ukgh rks Eg.kyk 'kstkj /keZ
Eg.kwu usys rj dk; kys ? eh nok[kk.;krwu ijr vkys o
ekÖ;k uoÚ;kl Eg.kys ewykl ?ksmu xsys rj dk; kys- lkljk
Eg.kkyk fd gh R;kP;k eksB;k Hkkoklkscr xsyh eh uoÚ;kl
Eg.kkys lkljk vlk Eg.kkY;keqGs rqEgkl [kjs okV.kkj ukgh dk;
? vls EgVY;kus ekÖ;k Hkk;k pkanjko o uoÚ;kl jkx vkyk-
uojk Eg.kkyk rqyk ckbZ lksMwu iq:Ô lkscr ikghts- uoÚ;kyk
Eg.kkyk rwÖ;k ekol cghuhl tkGwu ekjys R;kps dks.kh dk;
dsys- eh rwyk tj tkGwu ekjys rj eks dk; djrhy- eh
Lo;aikd d:u uoÚ;kl MCck Hk:u fnyk o Hkk;kl tsou
okys- ekk uojk v/;kZ okVsrwu okil vkyk- eh ?kjh fnM
fyVj jkWdsy ?ksowu Bsoys gksrs- ekÖ;k uoÚ;kus gkrkr
jkWdsy ?ksrys o eks vaxkoj vksrys- eyk dkMh ykoyh o eh
tGkys- eyk tkG.;kr ekk nsj jke] Hkk;k pkanjko ;kapk i.k
gkr vkgs- ?kVusP;k osGsl jke gk ?kjh uOgrk rks MkSj ;k xkoh
xsyk gksrk- ekk uojk lk[kGh ckgs:u ykowu fu?kwu xsyk-iz'u 3 jk % dk; kys ?
mRrj % eh tGkys uarj nkj tks;kr yksVys nkj m?kMys
eh vksjMys- 'kstkjh o yksd tek kys eks Hkk;k pkanjko o
Patient was
R;kpk fe lkbZukFk o ldqckbZ rhP;k eqykus eyk nok[kkU;kr
conscious
vkuys-throughout
ekh tckuh ekb;k lkax.;kizek.ks fygwu ?ksryh vkgs rh [kjh
statement
vkgs o cjkscj vkgs- tckuh nwikjh ckjk oktrk lq: d:u 12-35
oktrk laiyh-Sd/-
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40 Cri.Appeal 583/2002JR II 12.35
p.m. fn- 24-12-2000 Økarh Hkz- ccu culksMs
24.12.2000 osG 12-00 nwikj rs fgps mtos ik;kpk vaxBk
12-35 nwikjCERTIFICATE
Certified that the above statement is recorded
as per say of patient after she is identified by doctor
concerned and after obtaining endorsement that she is
conscious and capable of making statement.Statement is started at 12.00 noon and
composited at 2.35 p.m.Dt. 24.12.2000 Sd/-
24.12.2000
at Guru Govindsingh A.J. Telang,
Memorial Hospital, Jt. J.M.F.C. Nanded
NandedEnglish Translation of
Dying declaration"Reference - RMLC No.3243/DNH Dt.23.12.2000
Police Head Constable - K.K.Borware, B.No.1996
Police Station Vajirabad's letter dt. 23.12.2000.Patient is able
to give statementsd/-
J.R.II 12 p.m.
24/12DYING DECLARATION
Question 1- What is your name ?
Answer - Kranti w/o Baban Bansode.
Age 20 Yrs., R/o Bhokar,
Tq.Bhokar, Dist. Nanded.Question 2- How the incident happened ?
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41 Cri.Appeal 583/2002Answer - Quarrel occurred between me and
my husband.2-3 days prior to the said quarrel
with my husband my son Vicky
was not able to pass Urine.I took my son in the dispensary
along with a neighbouring boy.My brother-in-law was dancing in
the house.I informed my brother-in
law that taking Uttam with me I am
going to the dispensary.My father-in-law also saw me when I
was proceeding along with Uttam.My father-in-law told to my brother
in law that this girl left along
with the elder brother of Uttam
and asked him to follow me and to
fetch me back.Brother-in-law however did not
follow me. He told that what was
wrong in that if the neighbouring
boy was taken with.I returned from the dispensary and
told my husband " what had gone
wrong if I took me with the
neighbouring boy."Father-in-law said that she went
along with his elder brother.I told to my husband whether he will
not believe what I have stated
since my father-in-law had stated
something different.Thereupon, my elder brother-in-law
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42 Cri.Appeal 583/2002Chandrao and my husband suspected.
My husband said you require the
company of a man and not of a
woman.The husband said Your cousin sister
was burnt to death. What happened to
that ?If I burn you to death what wrong
you will do to me ?I cooked food, filled the tiffin for
my husband and served the food to my
brother-in-law.My husband returned home from the
half-way.I had purchased 1 ½ liters of
kerosene and had kept the same
in the house.My husband took the kerosene in his
hands and poured it on my person.He ignited the match-stick and I got
burnt.My brother-in-laws Rama and Chandrao
are also involved in burning me.When the alleged incident happened,
Ram was not at house. He had gone
to village Daur.My husband chained the door from
outside and went away.Question 3 - What happened ?
Answer - After I was burnt, I pushed the
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43 Cri.Appeal 583/2002It was opened.
I shouted.
Neighbours and the public gathered.
My brother-in-law Chandrao and his
friends Sainath, Sakhubai and her
son brought me in the hospital.My statement is recorded as it was
narrated by me.The contents thereof are true and
correct.Recording of the complaint was commenced
at 12.00 noon and was completed at 12.35.Dt.24.12.2000 impression of right
Time 12.00 noon toe of Kranti w/o
to 12.35 noon. Baban Bansode
patient was conscious
throughout the statementsd/-
Medical Officer
M-II 12.35 p.m.
24.12.0039) In her dying declaration at Exh. 33,
deceased Kranti had specifically alleged that
accused No.1-Baban poured kerosene on her person
and set her on fire. She has also deposed that
her husband, i.e. accused No.1, bolted the door
of the room from outside wherein she was set
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44 Cri.Appeal 583/2002ablaze. From the facts, as were stated by
deceased Kranti in her dying declaration it is
revealed that her husband was suspecting her
character. Accompanying of Uttam, a neighbouring
boy when deceased Kranti had taken her son to the
doctor, was taken in an ill spirit by the
accused. Even father in law of deceased Kranti
had made a very bitter comment.
40) The dying declaration of deceased Kranti
also reveals that accused No.1 had challenged her
that even if he burns her alive, she won't be
able to take any action against him. It is
further revealed that accused no.1 had given an
example that cousin sister of deceased Kranti was
also burnt to death and nothing wrong happened to
the perpetrator of the crime.
41) Though we have referred to all the facts
as are revealing from the dying declaration of
deceased Kranti, the fact which has material
bearing is that, deceased Kranti has specifically
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45 Cri.Appeal 583/2002alleged that it as accused No.1, who poured
kerosene on her person and set her on fire. We
do not see any reason to disbelieve the facts so
stated by deceased Kranti in her dying
declaration. The law is well settled that the
dying declaration of deceased can be the sole
basis for convicting the accused. We are fully
satisfied that the declaration given by deceased
Kranti, vide at Exh. 33, is her voluntary
statement given in a fit state of her mind. From
her dying declaration it is quite evident that
the accused was suspecting her character. It is
also discernible that accompaniment of a
neighbouring boy viz. Uttam Sarode with deceased
Kranti when she had taken her son to the doctor
for his treatment, ultimately become the cause
for her death. In her dying declaration though
deceased Kranti has stated that accused Nos. 2
and 3 were also involved in causing her death,
she has not attributed any specific role to them.
From the entire evidence on record also, no such
fact or circumstance has come on record showing
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46 Cri.Appeal 583/2002complicity of accused Nos. 2 and 3 either in
pouring kerosene on person of deceased Kranti or
in setting her ablaze. In absence of any such
evidence against them, they have been rightly
acquitted by the learned Sessions Judge. We do
not see any reason to cause any interference in
the finding of acquittal recorded by the learned
Sessions Judge in favour of the said accused.
42) It has to be further stated that in view
of the statement given by the relatives of
deceased Kranti from her maternal side, the
charge under Section 498A was also framed against
the accused persons. As has been deposed by
mother of deceased Kranti as well as her maternal
grand-father, accused No.1 had demanded an amount
of Rs.20,000/- from deceased Kranti and her
family members and due to non-fulfillment of the
said demand, deceased Kranti was subjected to
cruelty. Deceased Kranti however in her dying
declaration has not even whispered about any such
monetary demand and harassment to her for non
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47 Cri.Appeal 583/2002fulfillment of the said demand. In the
circumstances, the learned Trial Judge has
correctly acquitted the accused persons from the
charge under Section 498A of IPC. There seems no
reason to meddle with the finding so recorded.
However, we cannot accept the argument advanced
on behalf of the accused that on the count of
inconsistency between the facts stated by mother
of the deceased and deceased Kranti taking to the
allegation of monetary demand by the accused
persons, the entire evidence and more
particularly the dying declaration of deceased
Kranti also has to be rejected.
43) The dying declaration of deceased Kranti
(Exh.33) cannot be rejected or even doubted on the
ground that it does not contain the fact stated by PW
2 - Anusayabai, her mother and PW 3 - Mahadu, her
maternal grand-father, that an amount of Rs.20,000/-
was demanded by the accused and for non-fulfillment
of the said demand, deceased was subjected to
cruelty. What we could gather from the narration in
the dying declaration is the fact that, accompaniment
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48 Cri.Appeal 583/2002of neighbouring boy Uttam with deceased Kranti was
the proximate cause for the accused and more
particularly accused No.1 to take a gruesome step of
pouring kerosene on person of deceased Kranti and to
burn her alive. While on the death-bed, deceased
Kranti was not likely to state anything false which
had not happened.
44) After having considered the entire
evidence on record, and more particularly the
dying declaration of deceased Kranti at Exh. 33,
there has remained no doubt that learned Trial
court has manifestly erred in acquitting accused
No.1. The impugned order to that extent,
therefore, deserves to be quashed and set aside.
We reiterate that the prosecution has, beyond
reasonable doubt, proved that accused No.1
knowingly and intentionally caused the death of
deceased Kranti by pouring kerosene on her person
and setting her ablaze. We, therefore, hold
accused No.1 guilty for the offence punishable
under Section 302 of IPC.
45) In the result, following order is
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49 Cri.Appeal 583/2002passed, -
ORDER
i) Criminal Appeal No.583/2002 is partly
allowed;
ii) The judgment passed in Sessions Case No.
92/2001 by Ad hoc Additional Sessions Judge,
Nanded on 26th June, 2002 stands quashed and set
aside to the extent it relates to acquittal of
accused No.1 from the offence punishable under
Section 302 of IPC;
iii) Accused No. 1 - Baban s/o Kishanrao
Bansode is held guilty for the offence punishable
under Section 302 of IPC and is sentenced to
suffer imprisonment for life and to pay fine of
Rs.1,000/-, in default to suffer R.I. for six
months;
iv) Accused No.1 shall be entitled to the
set off under Section 428 of Code of Criminal
Procedure of the period of imprisonment already
undergone by him against the substantive sentence
imposed upon him;
v) Accused No.1 shall surrender before the
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50 Cri.Appeal 583/2002Trial Court to undergo the sentence imposed upon
him.
(P.R.BORA) (SUNILL P.DESHMUKH)
JUDGE JUDGEbdv/
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