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C vs H on 3 April, 2014

Bombay High Court C vs H on 3 April, 2014Bench: K.U. Chandiwal

1 cra607.11 rt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD

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CRIMINAL APPEAL NO. 607 OF 2011 C

1] Mahesh Vasant Salunke …Appellant [Original Accused No.1]

VERSUS

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1] The State of Maharashtra …Respondent ig …..

Shri N.S.Ghanekar, advocate for the appellant Smt. B.B.Gunjal, A.P.P. for respondent/State H

…..

CORAM : K.U.CHANDIWAL AND

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V.M.DESHPANDE, JJ.

ba

DATE OF RESERVING

THE JUDGMENT : 20.3.2014 om

DATE OF PRONOUNCEMENT

OF THE JUDGMENT : 3.4.2014 B

J U D G M ENT : (Per V.M.Deshpande, J.) 1] Appellant Mahesh (accused no.1) faced the Sessions trial bearing Sessions Case No. 75 of 2011 before the learned Sessions Judge, Jalgaon, along with his parents Vasant (accused no.2) and Latabai ::: Downloaded on – 15/04/2014 22:28:45 ::: 2 cra607.11 rt

(accused no.3), for the offence punishable under Sections 498A r/w 34 of the Indian Penal Code. ou

Appellant Mahesh was also charged for the offence punishable under Section 302 of the Indian C

Penal Code. The learned Sessions Judge, Jalgaon vide judgment, dated 20.10.2011 was pleased to h

acquit all of them in respect of the offence ig

punishable under Section 498A r/w 34 of the Indian Penal Code. However, the learned Sessions Judge H

was pleased to convict appellant Mahesh for the offence punishable under Section 302 of the Indian y

Penal Code and was directed to suffer imprisonment ba

for life and to pay fine of Rs.1,000/-, in default of payment of fine, he was directed to undergo om

further rigorous imprisonment for six months. Appellant Mahesh-original accused no.1 is taking exception to his this conviction and B

sentence awarded to him by the learned Sessions Judge, Jalgaon by preferring the present appeal. 2] The prosecution case, as it is, unfurled during the trial, can be narrated as under :- ::: Downloaded on – 15/04/2014 22:28:45 ::: 3 cra607.11 rt

Deceased Sharda was eldest daughter of Vijayabai Patil (PW 4). Her marriage was performed ou

with appellant Mahesh on 20.4.2008. After marriage, Sharda started cohabiting with Mahesh C

along with her in-laws at village Khedgaon. Couple resided there for a period of four months. Though h

for initial period of 15 days of her marriage, Sharda was

ig

nicely treated by Mahesh and his parents, she started receiving taunts that her H

parents have failed to give substantial gifts. Taunts were followed by beating. Sharda used to y

disclose this illtreatment to Vijayabai (PW 4) on ba

telephone.

om

3] After four months of residence at Khedgaon, Mahesh and Sharda started residing at Thane, wherein Mahesh was working in some school. B

Telephonic disclosure to Vijayabai by Sharda from Thane about her illtreatment remained to be continued. In addition to that, it was disclosed that Mahesh used to beat Sharda under the influence of liquor.

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While residing at Thane, Sharda conceived. During her pregnancy, Sharda was taken to Khedgaon, ou

though it was requested to send her to parental house, her in-laws did not permit her to go to her C

parental house. Sharda again went to Thane. Father of deceased Sharda went to Thane and took h

Sharda to their place at Navsari. ig

At parental house, Sharda disclosed that her husband-Mahesh used to beat her in intoxicated H

condition, complaints were also made against her father-in-law and mother-in-law. The illtreatment y

was for pursuing her to get valuable gifts from her ba

parents.

A baby girl was delivered by Sharda. After om

1¼ month of the said delivery, sister-in-law of Sharda and her husband came to Navsari to take Sharda with them, and accordingly, Sharda went to B

Khedgaon. Illtreatment was unabated at Khedgaon. Therefore, father of Sharda along with father and brother-in-law of Vijayabai (PW 4) went to Khedgaon for giving Rs.10,000/- to the accused. The demand of the accused persons was Rs.50,000/- ::: Downloaded on – 15/04/2014 22:28:46 ::: 5 cra607.11 rt

4] On 25.11.2010, Vijayabai (PW 4) was at Navsari. That time, she received a telephonic call ou

from her brother-in-law Bhalerao Patil (PW 10) and it was disclosed to Vijayabai through said C

telephonic call that Sharda was burnt and she was admitted in hospital at Dhule. PW 10-Bhalerao h

Patil is resident of Shirur, Taluka Amalner. He ig

came to know about the incident because of the telephonic information given to him by the accused H

persons.

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5] On getting information, Vijayabai (PW 4) ba

along with her husband and other relatives reached Dhule at mid night. They rushed to the hospital. om

They could see Sharda, but could not talk with her, since she was already dead. This is one part of the prosecution case.

B

6] In the mean while, after getting burn injuries on 25.11.2010, Sharda was brought to the Casualty at Civil Hospital, Dhule. On getting the information and request to record the statement of ::: Downloaded on – 15/04/2014 22:28:46 ::: 6 cra607.11 rt

Sharda, Nilkanth Mule (PW 8), who at the relevant time was Naib Tahsildar, reached to the hospital at ou

4.15 p.m. He met to Dr.Pallavi Mantri (PW 5). He disclosed his identity to her and desired to record C

the statement of burn patient. Accordingly, Dr. Mantri (PW 5) pointed out to her the burn injured h

patient. On the request of Naib Tahsildar, Dr. ig

Mantri examined the patient and found that she was in a good condition. Accordingly, she reported to H

Naib Tahsildar that he can record her statement. Hence, Nilkanth Mule (PW 8) recorded statement of y

Sharda. In her statement, it was disclosed to him ba

that on 25.11.2010 at about 12.30 p.m. when Sharda was in her house, that time appellant Mahesh came om

and asked money from her to consume liquor. Sharda refused to pay for liquor, and therefore, Mahesh got annoyed, sprinkled kerosene on her person and B

put her on fire, due to which she suffered burns. It was disclosed by Sharda in her statement to Naib Tahsildar Mule (PW 8) that her husband admitted her in Dhule hospital. After recording of the statement, Mule (PW 8) read over the said statement ::: Downloaded on – 15/04/2014 22:28:46 ::: 7 cra607.11 rt

to Sharda. She acknowledged the correctness of the contents of her statement, and therefore, a thumb ou

impression was obtained on the said statement. The said statement, which ultimately resulted in to the C

Dying Declaration is at Exh. 49. h

7] Pandit Atmaram Khairnar, a police Head ig

Constable, B.No.450 (PW 6) was on duty at Police Station. He received written order from the H

Officer Incharge of the police station to record the statement of burn injured person by name y

Sharda, who was admitted in Civil Hospital, Dhule. ba

In obedience to the said written order, Pandit Khairnar (PW 6) had been to the Civil Hospital, om

Dhule. He met Dr. Pallavi Mantri (PW 5) and requested her that he shall record the statement of Sharda, and therefore, she should examine the B

patient and should report as to whether she is conscious and able to give statement. Accordingly, Dr. Mantri examined Sharda and asked Khairnar (PW 6) to proceed with recording of the statement of Sharda, as she was able to give her statement. ::: Downloaded on – 15/04/2014 22:28:46 ::: 8 cra607.11 rt

Accordingly, he recorded statement of Sharda. The said statement is at Exh. 39. This is another part ou

of the prosecution case.

C

8] Sampat Londhe (PW 9) was working as police Sub-Inspector. He was attached to Mehunbare h

police station. During his duty hours, police Head ig

Constable Kulkarni of Dhule police station came and handed over a dying declaration. He read it and H

informed the Assistant Police Inspector of Mehunbare police station to register an offence. y

ba

9] Officer Incharge of the said police station accordingly made endorsement in the margin om

of the dying declaration having registered the crime. The offence was registered in the night of 25.11.2010. In the morning of 26.11.2010, Sampat B

Londhe (PW 9) went to the spot and drew spot panchanama (Exh.28). During spot panchanama, he seized a plastic can, a match box, some match sticks which were partially burnt and some tinder match sticks and pieces of clothes. The seized ::: Downloaded on – 15/04/2014 22:28:46 ::: 9 cra607.11 rt

muddemal property was taken by him to the police station and was deposited with the muddemal Clerk. ou

The muddemal receipt is at Exh. 52. Before returning to the police station, he recorded C

statements of neighbouring residents. On 26.11.2010, Londhe (PW 9) received, a h

provisional report of postmortem examination and ig

notes of inquest of deceased Sharda, from Dhule City police station. The inquest panchanama is at H

Exh.30. On 27.11.2010, Londhe (PW 9) sent intimation to the court that Sharda died, and y

therefore, the offence was converted into offence ba

punishable under Section 302 of the Indian Penal Code.

om

Sampat Londhe (PW 9) summoned parents of Sharda to the police station for recording their statements, however, they refused by saying that B

since their daughter has died, therefore, they will give their statements after some time. Accordingly, entry to that effect was made in the station diary.

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On 15.12.2010, parents and uncle of deceased came to the police station. Their statements were ou

recorded by Sampat Londhe (PW 9). On the basis of the statements, so given by the parents and uncle C

of deceased, he added Sections 498A r/w 34 of the Indian Penal Code to the crime and submitted report h

to the court of the Magistrate. The

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muddemal property seized during investigation was sent to the Chemical Analyser. H

On completion of investigation, he submitted charge sheet to the court.

y

Committal order was passed on 31.3.2011 by the ba

Judicial Magistrate, First Class, Chalisgaon. The learned Sessions Judge framed charge on 4.6.2011 om

(Exh.17) against Mahesh and his parents for the offences punishable under Sections 498A r/w 34 and for offence punishable under Section 302 of the B

Indian Penal Code against appellant Mahesh. All the accused persons pleaded innocence and claimed for trial.

10] The prosecution examined eleven witnesses ::: Downloaded on – 15/04/2014 22:28:46 ::: 11 cra607.11 rt

to bring home the guilt of the accused persons to face trial. After a full dressed trial, the ou

learned Sessions Judge, Jalgaon acquitted the appellant Mahesh and his parents for the offence C

under Section 498A of the Indian Penal Code, however, the learned Sessions Judge found that the h

prosecution was successful to bring home the guilt ig

of the appellant for the offence punishable under Section 302 of the Indian Penal Code, and H

therefore, he recorded the conviction against him and sentenced him to suffer imprisonment for life. y

ba

11] We have heard Shri N.S.Ghanekar, learned counsel appearing for the appellant and Mrs. om

B.B.Gunjal, learned Additional Public Prosecutor for the State. With their assistance, we have minutely examined the entire record and the B

evidence as brought on record during trial by the prosecution.

12] Learned counsel for the appellant argued with vehemence that the prosecution has failed to ::: Downloaded on – 15/04/2014 22:28:46 ::: 12 cra607.11 rt

establish its case beyond shadow of doubt. It was urged by the learned counsel that the dying ou

declaration recorded by Khairnar (PW 6) cannot be made basis to record the finding of conviction C

against the appellant for the offence punishable under Section 302 of the Indian Penal Code. The h

learned counsel submitted that the prosecution has ig

deliberately suppressed relevant documents from the record. He has further submitted that Dr. Mantri H

(PW 5) was on duty as a Casualty Medical Officer. According to him, Dr. Mantri’s evidence does not y

disclose that Sharda was admitted in the burn Ward, ba

however, both the scribe i.e. Pandit Khairnar Police Head Constable (PW 6) and Nilkanth Mule, om

Naib Tahsildar (PW 8) claim that they went to Burn Ward. According to the learned counsel for the appellant, the doctor, who was attending the B

patients in Burn Ward was not examined. According to him, the nature of the examination of patient Sharda, as claimed by Dr. Mantri (PW 5) is not found anywhere. There is no endorsement on any of the dying declaration that the patient was ::: Downloaded on – 15/04/2014 22:28:46 ::: 13 cra607.11 rt

oriented. In that view of the matter, according to him, Exhs. 36 and 37 the endorsements made by her ou

in respect of consciousness of the patient on Exh. 39 and Exh. 49 respectively are highly suspicious. C

Hence, he submitted that the appellant deserves acquittal in the present appeal. h

13] Per

igcontra, Mrs. Gunjal, learned Additional Public Prosecutor strenuously urged H

before us that Sharda died homicidal death and the appellant is the author for the burn injuries on y

the person of the deceased. According to her, the ba

dying declaration (Exh.39) recorded by Khairnar (PW 6) inspires confidence and there are no om

attending circumstances, by which it’s truthfulness and genuineness can be doubted. She, therefore, submitted that the learned Sessions Judge was right B

in his wisdom to convict the appellant on the basis of dying declaration (Exh.39). Therefore, she prayed for dismissal of the appeal. 14] On the basis of the postmortem report ::: Downloaded on – 15/04/2014 22:28:46 ::: 14 cra607.11 rt

(Exh.59) conducted on the dead body of Sharda and from the evidence of Dr. Sandip Patil (PW 11), who ou

conducted autopsy on the dead body, the conclusion is irresistible that Sharda died on account of burn C

injuries.

The question to be decided in the present h

appeal is, whether Mahesh-the appellant, as claimed ig

by the prosecution, is the author for the burn injuries found on the person of Sharda; or whether H

Sharda alone is responsible for her death, since as claimed by Mahesh in his statement recorded by the y

learned trial court under Section 313 of the ba

Criminal Procedure Code that Sharda on her own poured kerosene on her person and set herself om

ablaze.

15] Admittedly, there is no ocular evidence B

to the actual incident of burning. The case of the prosecution was based on two written dying declarations. One such was recorded by Nilkanth Mule (PW 8) at Exh. 49, and another was reduced into writing by Police Head Constable Pandit ::: Downloaded on – 15/04/2014 22:28:46 ::: 15 cra607.11 rt

Khairnar (PW 6) at Exh.39. The prosecution also relied upon the oral dying declaration, alleged to ou

have been made by Sharda to Bhalerao Patil (PW 10), the uncle of Sharda.

C

16] While appreciating the truthfulness of h

the afore said evidence, the learned Sessions Judge ig

found that the dying declaration (Exh.49) of Sharda recorded by Nilkanth Mule (PW 8), Naib Tahsildar is H

not free from suspicion. In that view of the matter, it was held by the learned court below that y

the said dying declaration (Exh.49) deserves to be ba

rejected and it was accordingly discarded. The learned Sessions Judge has supplemented reasons, om

for rejecting/discarding the dying declaration Exh.

49.

After reappreciation of the entire evidence of B

the prosecution and on the close scrutiny of dying declaration (Exh.49), we find that the learned Sessions Judge has rightly rejected the dying declaration (Exh.49). We affirm those findings. ::: Downloaded on – 15/04/2014 22:28:46 ::: 16 cra607.11 rt

17] The learned Sessions Judge has also rejected the oral dying declaration made by ou

deceased Sharda to her uncle PW 10. We subscribe to the said opinion arrived at by the learned C

Sessions Judge, and accordingly, on the reappreciation of the evidence of Bhalerao Patil h

(PW 10), we find, no reason to disturb the said ig

finding of the learned Sessions Judge. H

18] That leaves us to consider the dying declaration (Exh.39) recorded by Police Head y

Constable Pandit Khairnar (PW 6), which according ba

to the learned Sessions Judge was free from all suspicious circumstances, and therefore, on the om

basis of the said document, the appellant was convicted and sentenced to suffer imprisonment for life.

B

19] Now, let us scrutinize the said dying declaration (Exh.39) and the attending circumstances as available on record in order to reach to the conclusion as to whether the ::: Downloaded on – 15/04/2014 22:28:46 ::: 17 cra607.11 rt

prosecution is able to bring its case beyond shadow of doubt and could it be said that there is no iota ou

of truth in the statement of appellant recorded under Section 313 of the Criminal Procedure Code. C

20] On 25.11.2010, Dr. Pallavi Mantri (PW 5) h

was on her duty at Civil Hospital, Dhule as ig

Casualty Medical Officer. During her duty hours, at about 3.00 p.m. to 3.30 p.m., Sharda a female H

patient with burn injuries was brought to the Casualty. She immediately admitted patient as an y

indoor patient and started the treatment. ba

Pandit Khairnar (PW 6) was on duty at police station Dhule and his duty hours were 8.00 a.m. to om

8.00 p.m. On the said date, Officer Incharge of the police station gave him a written order that a burn patient by name Sharda is admitted in the B

Civil Hospital at Dhule, and therefore, he should proceed to record her statement. As directed, Pandit Khairnar (PW 6) went to the Civil Hospital, Dhule at about 3.30 p.m. At the hospital, he met Medical Officer Dr. Mantri ::: Downloaded on – 15/04/2014 22:28:46 ::: 18 cra607.11 rt

(PW 5) and requested her to examine Sharda, since he was intending to record her statement. This ou

fact finds corroboration from the evidence of Dr. Mantri (PW 5).

C

21] From the evidence of Pandit Khairnar h

(PW 6), it is crystal clear that he was not ig

attached to police chowky at the hospital. On 25.11.2010, he was at police station. The Officer H

Incharge of police station gave him a written order to record the statement of burn injured patient y

Sharda. Now, it was the bounden duty of the ba

prosecution to explain, how the information was received in the police station from the hospital om

that burn patient Sharda is admitted. One thing is sure that such information was received by police station, Dhule and then only a written order B

was given by the Police Station Officer to Pandit Khairnar (PW 6). The information received from the hospital must have been reduced into writing at police station, Dhule. Now, what was that intimation, which must have been reduced in to ::: Downloaded on – 15/04/2014 22:28:46 ::: 19 cra607.11 rt

writing by the police authorities, is not coming forward from the prosecution on record. In that ou

behalf, we are at pains to reproduce version of Dr. Pallavi Mantri, in order to appreciate the C

truthfulness of the entire prosecution case. Dr. Pallavi Mantri (PW 5) has stated in paragraph 6 of h

her evidence as under :-

ig

….. ….. …..

It is correct to say that at the time the patient Sharda was admitted to H

hospital, she was conscious. It is correct that at the time of admitting the patient, I took from her the history and the cause of the burns. At that time, Police Head Constable y

V.V.Salunke, B.No.221 was on duty in the hospital. The history disclosed by ba

the patient is required to be mentioned in the case-papers and accordingly a mention has been made by me in the case-papers. In the case-papers, I om

have also made a mention of the percentage of burns suffered by Shardabai. It is correct to say that I told the Head Constable of the history the patient gave and also of the B

percentage of burns suffered by her and then, asked him to go to Police Station and inform.

….. ….. …..

22] From the afore said part of the evidence appearing in the testimony of Dr. Pallavi Mantri (PW 5), six clinching facts are established. ::: Downloaded on – 15/04/2014 22:28:46 ::: 20 cra607.11 rt

(i) when Sharda was admitted in hospital she was conscious.

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(ii) At the time of admitting her, Dr. Mantri took her history from her and cause of burns. C

(iii) That time Police Head Constable V.V.Salunke B.No.221 was on duty in the h

hospital.

(iv) Dr.

igMantri was under obligation to mention the history disclosed by the patient in H

the case papers and accordingly she has mentioned the same in the case papers. y

(v) She told Head Constable Salunke about ba

the history which was given to her by the patient.

om

(vi) Dr. Mantri asked Salunke to go to the police station and inform about the said fact. B

23] From the afore said analysis of the testimony of Dr.Mantri, it is clear that Police Head Constable Salunke, who was on duty at hospital, was directed to intimate the fact of the admission of the patient and the history disclosed ::: Downloaded on – 15/04/2014 22:28:46 ::: 21 cra607.11 rt

to him by Dr. Mantri, and accordingly, in fact, he must have carried the same with him to the police ou

station and he must have reported the said information to the police station. That is the C

only source of receipt of the information about the admission of burn patient Sharda in the hospital to h

the police station. That information necessitated the police

ig

station officer to direct Khairnar (PW 6) to record the statement of Sharda. H

Now, what was that history narrated by patient y

Sharda to Dr. Mantri and what the information that ba

was reduced into writing at police station, was one of the primary piece of evidence in the present om

case. The said primary piece of evidence is not coming on record from the prosecution side. The said primary piece of evidence appears to have been B

withheld by the prosecution. In view of the fact that there is no explanation for the same, this court is required to draw an adverse inference against the prosecution case. ::: Downloaded on – 15/04/2014 22:28:46 ::: 22 cra607.11 rt

24] Exh.40 is the written order given by police station officer, Dhule to Police Head ou

Constable Pandit Khairnar (PW 6). The said order is reproduced herein below.

C

Exhibit No.40

धु ळे शहर पोलीस सटे श न

h

आदे श

ig

पो.हे .कॉ./450/पं ि ित आतमाराम खै र नार, धु ळे शहर पोलीस सटे श न, धु ळे H

िॉ. मं त ी मॅ ि म पो.हे .कॉ./221/वही.बी.साळुं खे पे शं ट : – १) शारदाबाई महे श साळुं खे , उ.व.-२२, y

रा. खे ि गाव , ता. ४०गाव, िि. िळगाव. ba

२) महे श वसं त साळुं खे , उ.व.-२८, रा. खे ि गाव , ता. ४०गाव, िि. िळगाव. om

आि िदनां क २५/११/२०१० रोिी १२.३० वािाचया सु म ारास सवतःचे राहते घरी ितचा नवरा महे श वसं त साळुं खे यां च यासोबत काहीतरी कुि बु ि झालयाने तीन सवतःचया अं ग ावर रॉकेल ओतू न घे त ले व नव -यास धाक दाखवू लागली. मी पे ट वू न घे ई न असे सां ग त होती. व आगपे ट ीचे कािीने पे ट वू न घे त ले . तयात ती १००% B

भािली गे ल ी. व महे श वसं त साळुं खे हा २५ % भािला आहे . तयां न ा १५.०० वा. सासरा वसं त यशवं त साळुं खे यां न ी दखल केले . D.D.ची गरि आहे . सटे .िा.ई.न. ३८ सही/- वे ळ १५ .३० वा. पोलीस ठाणे अं म लदार तारीख : २५/११/२०१० धु ळे शहर पोलीस सटे श न ” ::: Downloaded on – 15/04/2014 22:28:46 ::: 23 cra607.11 rt

Thus from Exh.40, it is clear that appellant Mahesh has also received burn injuries to the ou

extent of 25%. It is an admitted position on record that Mahesh was also indoor patient from C

25.11.2010 to 7.1.2011. It is also clear that he received the said burn injuries in the said h

incident.

ig

In that view of the matter, the prosecution was under obligation to explain as to how the said H

burn injuries are appearing on the person of appellant Mahesh.

y

ba

25] As found in the preceding paragraph, Dr. Mantri has recorded the history in the case papers. om

At the time of her evidence, in spite of specific instructions in the summons that she should attend the court with all relevant papers, she failed to B

bring with her the hospital case papers of patient Sharda. Her evidence was recorded on 2.7.2011. She received the summons for giving evidence on 29.6.2011. She was on duty as a Medical Officer at Dhule even on 30.6.2011 and 1.7.2011. The ::: Downloaded on – 15/04/2014 22:28:46 ::: 24 cra607.11 rt

prosecuting agency has not explained, in spite of summons with a direction to bring the original case ou

papers of Sharada, why her case papers were not produced before the court. This also leads us to C

draw an adverse inference against the case of the prosecution.

h

26] The

ig

crime is registered at Mehunbare police station. Interestingly, after recording H

dying declaration, in pursuance to the order (Exh. 40), Pandit Khairnar (PW 6) has reported compliance y

to the police station, Dhule vide Exh.41. It is as ba

under :-

स. सादर िक, आदेशापमाणे आदश े ातील नमूद िळीत सीचा िबाब घेता ितने ितचया पती िवरद तकारी िबाब om

िदलयाने सदर िबाब आणून हिर केला आहे तरी पुढील काययवाही होऊन पकरण मारवाि पो.सटे.ला पाठिवनेस ं ी आहे.

िवनत

27] It is curious to note the evidence of B

Pandit Khairnar (PW 6) about this Marwad police station, which is as under :- (Witness volunteers : I made a mention of Marwad Police Station in my report only because there are several villages of the same name as Marwad.) It is correct to say that within the jurisdiction of Chalisgaon tahsil there is no village by name Marwad nor ::: Downloaded on – 15/04/2014 22:28:46 ::: 25 cra607.11 rt

any police station by that name. We are pointing out this only to show the ou

casual approach of Pandit Khairnar (PW 6). C

28] According to scribe Police Head Constable, after examination, Dr. Mantri reported h

that the patient was conscious and was capable of giving

ig

statement and accordingly he recorded statement (Exh.39). He obtained endorsement to H

that effect from Dr.Mantri in the margin of the paper before proceeding to record statement of y

Sharda. This part of the evidence appearing in the ba

testimony of Pandit Khairnar (PW 6) is not corroborated by Dr. Pallavi Mantri (PW 5), the om

author of the said endorsement. It will be useful to reproduce the relevant portion from her examination-in-chief itself, which reads thus :- B

….. ….. …..

As requested by police, I examined the patient to find out whether she was conscious and was able to give her statement. I having found the patient conscious and able to give her statement, reported the same to police and accordingly, the police recorded the statement of burn injured Shardabai.

::: Downloaded on – 15/04/2014 22:28:46 ::: 26 cra607.11 rt

….. ….. ….. The plain reading of the afore said evidence ou

clearly establishes that Dr.Mantri did not put her endorsement on the margin of Exh.39 about the C

consciousness and the fitness prior to recording of her dying declaration. Further Exh.36, the h

endorsement made by Dr. Mantri in the left hand ig

column of document Exh.39, clearly establishes the said fact. Exh.36, the endorsement is in two H

parts. The first part reads as under :- Pt conscious able to give statement y

Sd/-

Medical Officer,

ba

S.B.H.G.C. & Hospital,

Dhule

What is important here to note in the first om

part is that there is no timing as to when this endorsement was made by Dr. Pallavi Mantri. B

The evidence of Dr. Pallavi Mantri would show that after the police recorded statement, she again examined patient and found her to be still conscious and oriented, and accordingly, she made endorsement on the sheet of paper. Both these endorsements were marked as Exh. 36. ::: Downloaded on – 15/04/2014 22:28:46 ::: 27 cra607.11 rt

The second part of the endorsement (Exh.36) reads as under :-

ou

Statement Start at 4.50 pm on 25.11.10 End at 5.05 pm on 25.11.10 C

Sd/-

Medical Officer,

S.B.H.G.C.& Hospital,

Dhule

h

Thus a valid doubt is created in the mind, as ig

to whether both the acts, examining the patient H

prior to recording of her statement and putting the endorsement, were simultaneous. y

29] Pandit Khairnar (PW 6) appears to have a ba

good experience of recording dying declarations. Therefore, it appears that he was directed to om

record the same. He has stated in his evidence as under :-

B

….. …..

I have a good experience of recording dying declarations. It is correct to say that to record a dying declaration is a responsible duty. ….. …..

In his evidence, he has stated that he himself was satisfied that the patient was conscious, and ::: Downloaded on – 15/04/2014 22:28:46 ::: 28 cra607.11 rt

therefore, he recorded the statement of Sharda. In absence of the doctor s endorsement about ou

the fitness, if the scribe himself is satisfied that the patient is able to give statement, that C

will not render the dying declaration as a waste paper, in view of the decision of the h

Constitutional Bench of the Hon ble Apex Court in the matter

ig

of Laxman vs State of Maharashtra [(2002) 6 SCC 710].

H

30] Reaching to the conclusion that the y

patient is fit to give his/her statement by the ba

scribe is his subjective satisfaction. In order to reach that subjective satisfaction, the scribe must om

prove before the court clinchingly on what basis he reached to that subjective satisfaction. From the perusal of Exh.39, there is nothing B

to show on what basis Police Head Constable Pandit Khairnar (PW 6) reached to such subjective satisfaction, nor in his substantive evidence before the court, did he gave any indication as to how he reached to the said conclusion. Merely that ::: Downloaded on – 15/04/2014 22:28:46 ::: 29 cra607.11 rt

the scribe is saying that he was satisfied himself, in absence of any material on record, the court ou

should not readily accept his such unfounded subjective satisfaction.

C

31] PW 3 is Nirmala Kothawade. She is h

neighbour of appellant. On 25.11.2010 in between ig

11.30 a.m. to 12.00 noon she was in her kitchen. Her presence during that time at her residence is H

most natural one. At that time, she heard commotion (आरडा ओरडा). Therefore, she came out of y

her house. That time, she found many people were ba

gathered in front of her house and the house of the appellant. Her evidence would further reveal that om

she entered in the house of the appellant. That time, she found Sharda in burning condition and appellant was pouring water on her person. B

Her evidence would further reveal that appellant Mahesh was in temporary service at Thane. Deceased was on the visiting terms with this witness. She used to talk her freely. It was disclosed to her by Sharda that she was born and ::: Downloaded on – 15/04/2014 22:28:46 ::: 30 cra607.11 rt

brought up in town like Navsari and she does not like living in village Khedgaon. As per the ou

evidence of this lady, Sharda used to tell that she is asking her husband that they shall live in the C

city like Thane. However, her husband was not ready to live at Thane, and therefore, there were h

differences between them.

ig

32] Even from the evidence of Vijayabai H

(PW 4) the mother of deceased Sharda, for some period the couple was residing at Thane, since y

Mahesh was working there. From the evidence of ba

Vijayabai (PW 3) it is clear that his job at Thane was of temporary nature and after that job was om

over, Mahesh was required to return to his village. It was just impossible for Mahesh to return to Thane, a big city, as an unemployed. B

33] Sharda s disclosing her mind to Nirmala, a neighbour, appears to be most natural one. The mother of Sharda was residing at Navsari, which is situated far away from Khedgaon. Therefore, if ::: Downloaded on – 15/04/2014 22:28:46 ::: 31 cra607.11 rt

Sharda is narrating her uneasiness for staying at village Khedgaon to Nirmala, merely because that ou

was not disclosed to mother Vijayabai, it will not lose its credence. The learned Trial Judge has C

rejected the evidence of Nirmala (PW 3) that there was no reason for the deceased to disclose such h

facts to her. As observed above, the mother was ig

residing at Navsari, Sharda was born and brought up at Navsari, and therefore, it is not impossible H

that a person, accustomed to live in big city, will find it difficult to residing in the village. In y

that view of the matter, in such situation, Sharda ba

narrating her mind to Nirmala, as claimed by Nirmala, cannot be doubted.

om

34] In this background, the defence of Mahesh before the court below was that on the date of the B

incident, as usual, Sharda picked up an argument with him that she is unable to reside in village and threatened him that she will do something. Thereafter, he went and sat in another room. That time, he heard the cries of Sharda and when he went ::: Downloaded on – 15/04/2014 22:28:46 ::: 32 cra607.11 rt

inside house, he found her burning, and therefore, he tried to extinguish the fire and in that ou

process, he received burn injuries. This part of his defence is substantially corroborated by the C

prosecution vide document Exh.40, which is already reproduced in the preceding paragraph of this h

judgment.

ig

35] In that view of the matter and H

considering the fact that the prosecution has not brought on record the history recorded by Dr. y

Pallavi Mantri, which she directed to the Police ba

Head Constable Salunke to intimate the police station and non-examination of said Salunke clearly om

brings the case of the prosecution in the shadow of doubt.

B

36] It is a cardinal principle of criminal jurisprudence that the prosecution is under obligation to prove its case beyond reasonable doubt. If there is a doubt, then the accused is entitled for the benefit of said doubt. ::: Downloaded on – 15/04/2014 22:28:46 ::: 33 cra607.11 rt

37] In the totality of the circumstances, we are of the view that the prosecution has failed to ou

establish its case beyond reasonable doubt requiring us to extend the said benefit in favour C

of appellant Mahesh. Consequently, we pass following order.

h

O R D E R

ig

(i) The judgment and order of H

conviction, passed by the learned Sessions Judge, Jalgaon, on 20.10.2011, in Sessions case No. 75 of 2011, y

convicting the appellant Mahesh for the ba

offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set aside.

om

(ii) The appellant be set at liberty forthwith, if not required in any other case.

(iii) The fine amount, if any, paid by B

the appellant be refunded to him. (iv) Appeal allowed.

(V.M.DESHPANDE, J.) (K.U.CHANDIWAL, J.) dbm/cra607.11

::: Downloaded on – 15/04/2014 22:28:46 ::: 34 cra607.11 rt

ou

C

h

ig

H

y

ba

om

B

::: Downloaded on – 15/04/2014 22:28:46 :::

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