Bombay High Court Dnyaneshwar S/O Anandrao Rahate vs The State Of Maharashtra Through … on 2 July, 2002Equivalent citations: (2003) 105 BOMLR 104 Author: V Kanade Bench: R Batta, V Kanade

JUDGMENT

V.M. Kanade, J.

1. Criminal Appeal No. 329/97 has been filed by the original accused No. 1 challenging the Judgment and Order passed by the Additional Sessions Judge, Wardha in Sessions Trial No. 140/96 dtd. 7.7.1997 whereby he has been convicted by the Trial Court under Section 302 and is sentenced to undergo R.I. for life and further to pay a fine of Rs. 2500/- in default to suffer R.I. for 6 months. Criminal Appeal No. 355/97 has been filed by the State of Maharashtra challenging the order of acquittal passed by the same Judge in Sessions Trial No. 140/96 whereby he acquitted the original accused No. 2 in the said trial. Since the Judgment delivered by the Trial Court, in both these appeals, is common, we propose to hear and dispose of both these appeals by a common Judgment.

2. The appellant in Criminal Appeal No. 329/97 Dnyaneshwar Anandrao Rahate, the original accused No. 1 in Sessions Trial No. 140/96 and the respondent in Criminal Appeal No. 355/97 Sau. Anjanabai, original accused No. 2 both were charged under Sections 498A, 302 read with Section 34 of the Indian Penal Code for having committed murder of Suman who was the first wife of accused No. 1 Dnyaneshwar on 21.7,1996. The appellant Dnyaneshwar and respondent Anjanabai are hereinafter referred to, for the sake of convenience, as original accused Nos. 1 and 2 respectively.

3. The case of the prosecution, in nutshell, is that the original accused No. 1 Dnyaneshwar had two wives. Deceased Suman was the first wife and Anjanabai the original accused No. 2 was the second wife. It. is the case of the prosecution that since deceased Suman was allegedly infertile, the accused No. 1 had married accused No. 2 Anjanabai and both wives were staying in the same house with original accused No. 1. It is the case of the prosecution that on 20.7.1996 the accused No. 1 had a quarrel with deceased Suman and that he did not give food to her in the evening. It is the further case of the prosecution that in the early morning the accused quarrelled with deceased Suman and thereafter poured kerosene on her person and set her ablaze as a result of which Suman received 93% burn injuries. Accused No. 1 took up Suman to Cottage Hospital, Hinganghat at about 7 a.m. where Dr. Parate admitted her in the Hospital and informed the Police P.S.I. Dhaberao to come to the Hospital to ascertain as to whether Suman was in a proper condition in order to give statement, P.S.I. Dhaberao, after having ascertained from Dr, Parate that she was in a fit state and conscious to make a statement, her statement was recorded as F.I.R. In the said statement, Suman stated that, accused No. 1 had poured kerosene on her person and had set on fire. After the said statement was recorded as F.I.R., the said P.S.I. Dhabekar registered the offence against the accused. Thereafter, requisition was sent to the Executive Magistrate for recording dying declaration and accordingly the dying declaration was recorded by the Executive Magistrate who first obtained a certificate from Dr. Parate that the patient was in a fit condition to make a statement. After having recorded the endorsement of Dr. Parate that the patient was in a fit condition to give statement, her statement was recorded by the Executive Magistrate in a question and answer form. It is the case of the prosecution that the dying declaration was read over to her and her thumb impression was obtained on the dying declaration.

4. It is the case of the prosecution that on 21.7.1997 Suman was declared to be dead and thereafter the Investigating Officer recorded the statement of the witnesses and also prepared the spot panchanama and her dead body was referred to Sevagram Hospital for post-mortem. In the postmortem which was performed by Dr. Agrawal he had given his opinion that the death was caused due to extensive burn injuries on the body which were sufficient in the ordinary course of nature to cause death. Accordingly, the charge-sheet was filed against both the accused. The charge was framed by the Trial Court under Section 498A, Section 302 read with Section 34 of the I.P.C. against both the accused who pleaded not guilty to the said charge. The defence of the accused No. 1 was that deceased Suman was mentally retarded. Accused No. 2 took a specific defence that Suman had committed suicide.

5. In support of the prosecution case, the prosecution examined in all 8 witnesses out of which P.W. 1 Dr. Sunil, who has performed the postmortem, was examined to prove the post-mortem notes, to state that the injuries which were found on the person of the deceased and also to give his opinion regarding the cause of death. P.W. 2 Bahrain Daberao is the Police Sub-Inspector who recorded the first dying declaration of the deceased which is treated as First Information Report initially on the basis of which the complaint was lodged and the investigation was initiated. P.W. 3 Dr. Shrikant has been examined to prove that there were no injuries on the person of the accused. P.W. 4 Anandrao is the Executive Magistrate who recorded the dying declaration of the deceased. P.W. 5 Madhukar is the pancha witness to the spot panchanama. However, he turned hostile. P.W. 6 also is a panch to the spot panchanama. However, he also turned hostile. P.W. 7 Dr. Prakash Parate had examined deceased Suman when she was admitted in the hospital and has given certificate that she was in a fit condition to make statement as recorded by P.S.I. Dhataekar and also as recorded by P.W. 4 Anandrao, Executive Magistrate. P.W. 8 Kheinraj is the Police Inspector attached to Hinganghat Police Station who deposed in place of the Investigating Officer Shri Chauhan and he has proved the seizure memo and the requisition dtd. 30.7.1996 which was under the signature of P.I. Chauhan. The Trial Court, on the basis of this evidence, held that the charge against the original accused No. 1 was proved in respect of offence under Section 302 and the Trial Court, therefore, convicted him only under Section 302 of the Indian Penal Code and sentenced him to suffer R.I. for life and to pay fine of Rs. 2500/- i/d to further R.I. for 6 months. The Trial Court, however, acquitted the accused No. 2 from the charge under Sections 498-A, 302 read with Section 34 of the Indian Penal Code.

6. The appellants have challenged the said Judgment and Order in these appeals.

7. We have heard Shri M.R. Daga, learned Counsel appearing 011 behalf of the appellant/original accused No. 1 in Appeal No. 329/97, Shri Loney, learned A.P.P., appearing on behalf of the State in Criminal Appeal No. 329/ 97 and also in Criminal Appeal No. 355/97 and Shri K. R. Lambal, learned Counsel for the original accused No. 2 in Criminal Appeal No. 355/97.

8. Learned Counsel appearing on behalf of the accused has taken us to the record, deposition and also the judgment and order of the Trial Court.

9. Shri Daga, learned Counsel appearing on behalf of the appellant/ original accused No. 1 has submitted that so far as two dying declarations are concerned recorded by P.W. 2 P.S.I., Dhaberao and the Executive Magistrate P.W. 4 Anandrao which are at Exh. 24 and 28 respectively, there is a patent inconsistency in the said dying declarations and as a result of which no reliance can be placed on the said dying declarations. It is submitted that in the first dying declaration Exh. 24 which is recorded as F.I.R. by P.S.I., Dhaberao, deceased Suman had made a statement that the accused No. 1 had poured kerosene on her person and set her on fire, whereas according to him in the second dying declaration which is at Exh. 28 she has implicated both the accused. In view of this discrepancy, no reliance can be placed on her dying declaration. He submitted that it was apparent that deceased Suman had tried to implicate accused No. 2 in the second dying declaration which indicated that her statement in the dying declaration was unreliable. Shri Loney, the learned A.P.P., however, submitted that both these dying declarations Exh. 24 and 28 have been recorded within the time span of about 5 minutes and that the deceased had given a detailed statement before the Executive Magistrate who recorded the dying declaration in question and answer form. He submitted that in the first statement which she had made before the P.S.I., Dhaberao, she has mentioned about the presence of accused No. 2 also. He submitted that, therefore, the material fact was mentioned in First Information Report and that material particulars have been given in the second dying declaration which has been recorded in question and answer form. He submitted that, therefore, the dying declaration was sufficient evidence to convict both the accused. He submitted that it is a settled position in law that once the evidence has been adduced that the deceased was fit and conscious to make the statement, the accused could be convicted solely on the basis of the dying declaration and no further corrotaoration is necessary.

10. In our view, the submissions made by Shri Daga, learned Counsel appearing on taehali of original accused No. 1, cannot be accepted. It is an admitted position that Dr. Parate (P.W. 7) has stated in his evidence that he was present in the Hospital when Suman was admitted and he had immediately started treating her. He had stated that he had informed the Police after deceased Suman was admitted in the Hospital and P. Section 1. Dhaberao had taken a certificate from him that the deceased was fit and conscious to make the statement and after the said certificate was given by him, P.S.I., Dhaberao had recorded the First Information Report. P.W. 7 Dr. Parate has also further stated that P.S.I., Dhaberao had summoned the Executive Magistrate P.W. 4 Anandrao Thote and after his arrival the said P.W. 4 Anandrao also had taken his endorsement regarding the condition of the patient before recording the dying declaration. P.W. 7 Dr. Parate had reiterated in the second certificate which he had given that the patient was in a fit condition to make a statement. The endorsement of the Doctor has been recorded in both these dying declarations Exh. 24 and 28 respectively. Dr. Parate has further clarified that he was present through out during the recording of the first and second dying declaration at Exh. 24 and 28 respectively. P.W. 4 Anandrao who is the Executive Magistrate had also deposed in his evidence that he had recorded the dying declaration Exh. 28 in question and answer form and that deceased had answered all the questions which were put by him in a proper manner. In our view, therefore, it is difficult to discard these two dying declarations Exh. 24 and 28. It is a well settled position in law that the accused can be convicted solely on the basis of dying declaration which was recorded by the Executive Magistrate and no further corroboration is necessary. The said position has been upheld by the Apex Court in the case of Khushalrao v. State of Maharashtra . This position has been reiterated by the Apex Court in the subsequent Judgment. In the present case, there is no dispute that the dying declaration has been recorded in presence of the Doctor who has given certificate about the fitness and the competency of the deceased to give statement and further the said dying declaration was recorded by the Executive Magistrate (P.W. 4) who is an independent responsible officer. In our view, therefore, under these circumstances, there is no reason whatsoever to disbelieve the statement of the deceased so far as original accused No. 1 is concerned. Under the circumstances, therefore we do not see any reason to interfere with the findings recorded by the Trial Court in respect of the original accused No. 1 and, therefore, his conviction is hereby confirmed.

11. However, so far as the original accused No. 2 is concerned, we do not agree with Shri Loney, the learned A.P.P., in Cri. Appeal No. 355/97 who has challenged the order of acquittal of accused No. 2 passed by the Sessions Court. So far as accused No. 2 is concerned, deceased Suman has not stated in the First Information Report that accused No. 2 had participated in the commission of the said offence. It is no doubt true that deceased Suman has categorically taken the name of accused No. 2 in the second dying declaration at Exh. 28. However, it appears that the inclusion of the name of the accused No. 2 in the second dying declaration is obviously an afterthought. Considering the circumstances on record that deceased Suman was the first wife of original accused No. 1 Dnyaneshwar and that he had married accused No. 2 because deceased Suman did not have any issue, there was obviously a jealousy between the two wives. It is, therefore, probable that, in the second dying declaration she has tried to implicate accused No. 2. The view taken by the Trial Court, therefore, in our view is correct and there is no reason to take another view in the matter. It is a settled position in law that where two views are possible, the view which is in favour of the accused should be considered as the accused is entitled to get that benefit of doubt. Under these circumstances, we do not see any reason to interfere with the order of acquittal passed by the learned Trial Court and in this view of the matter Criminal Appeal No. 355/97 filed by the State is dismissed,

12. In the result, Criminal Appeal No. 329/97 filed by the appellant Dnyaneshwar original accused No. 1 is hereby rejected and the sentence passed by the Sessions Court is confirmed.

Criminal Appeal No. 355/97 filed by the State of Maharashtra against the acquittal of accused No. 2 Anjanabai is dismissed.