SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dwarkabai Laxman Shende And 2 … vs State Of Mah.Thr.Pso Wardha on 8 April, 2019

APPEAL.417.06
1

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

CRIMINAL APPEAL NO. 417/ 2006

1) Dwarkabai Laxman Shende
Aged about 50 years, occu: Labour

2) Pintu @ Shailesh Laxmanrao Shende
Aged about 20 years, occu: Labour

Both R/o Anand Nagar, Wardha
Tq. Dist. Wardha.

3) Sau. Laxmibai w/o Rahul Nikose
Aged about 22 years, occu: Labour
R/o Butibori, Dist.Nagpur. .. ..APPELLANTS

versus

The State of Maharashtra
Through Police Station Wardha (City).. ..RESPONDENT

…………………………………………………………………………………………………………………………..
Ms. S.H.Bhatia, Advocate for appellants
Mr. M.J.Khan, APP for respondent-State
……………………………………………………………………………………………………………………………

CORAM: MRS. SWAPNA JOSHI, J.
DATE OF RESERVING: 22/03/2019
DATE OF PROUNOUCEMENT: 08/04/2019
JUDGMENT:

1. Challenge in this Appeal is to the judgment and order dated 14 th July,

2006, delivered by learned 2nd Ad-hoc Additional Sessions Judge, Wardha in Sessions

Trial No.5/2006, convicting the appellants (hereinafter referred to as “the accused”)

for offence punishable under Sections 498A and 306 r/ws.34 of the IPC. For offence

punishable u/s 498A, the accused were sentenced to suffer R.I. for one year and to pay

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
2

a fine of Rs. 1000/-, in default, to suffer SI for 3 months; whereas for offence

punishable u/s. 306 IPC, they were sentenced to suffer R.I. for five years and fine of

Rs. 1000/-,in default, SI for three months. Both the sentences were directed to be run

concurrently.

2. The prosecution version as unfolded during the trial, can be

summarized as under :-

Deceased-Pramila Gautam Shende was married about 10 years prior

to the incident, with one Gautam Shende, who was the resident of same locality at

Wardha. After marriage, they started residing at Wardha along with her in- laws, who

are the appellants/accused herein. It is the case of the prosecution that the A1-

Dwarkabai, mother-in-law; A2-Shailesh, brother-in-law and A3-Laxmibai, sister-in-law

of deceased Pramila, used to ill-treat her, especially for about 3 /4 days prior to the

date of incident. On 10.8.2005, a quarrel took place amongst them at about 9.00am, in

which A2-Shailesh started quarelling and consequently abusing Pramila. A2 asked her

to leave the house and said that she is not required by other accused. Due to said

harassment, Pramila set herself ablaze. Pramila was taken to the hospital. She

succumbed to her injuries on 17.8.2005. The statement of Pramila was recorded in

the hospital by the Police who was on duty at the relevant point of time. On the basis

of the said statement, offence was registered u/ss. 498A , 306 r/ws. 34 of IPC against

the accused. The police visited the place of incident and recorded the spot

panchnama. They seized two bottles of kerosene as well as burnt pieces of clothes

of deceased along with a match box. The statement of witnesses were recorded by

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
3

police. So also, one more statement of deceased was recorded by the Executive

Magistrate- PW7 Sachin Gosavi. After completion of investigation, charge sheet came

to be filed in the court of CJM Wardha who committed the case to the Court of

Sessions. On analysis of the evidence and after hearing both sides, the learned trial

Judge convicted the accused, as aforesaid.

3. We have heard Ms.S.H.Bhatia, learned counsel (appointed) for the

accused and Mr.M.J.Khan, learned Additional Public Prosecutor for the respondent-

State. With their able assistance, I have carefully gone through the entire record and

proceedings of the case.

4. Learned counsel for the accused vehemently argued that the learned

trial Judge has not assessed the evidence led by the prosecution in its right

perspective and has erroneously convicted the accused. She contended that the case

is solely based on two varying dying declarations, one recorded by the police PW3-

Janardhan Raghunath and another recorded by Executive Magistrate, PW7-Sachin

Gosavi. She submitted that the first dying declaration cannot be relied upon as there

is no certificate in respect of fitness of the deceased issued by the Medical Officer in

writing. She further contended that even the second dying declaration recorded by

Executive Magistrate is not upto the mark inasmuch as the Medical Officer has not

certified that the patient was physically and mentally fit to give her statement. In the

backdrop of the above-referred facts, it is contended that both the dying declarations

cannot be relied upon and no conviction can be based on such inconsistent dying

declarations, which are not free from doubt. The learned counsel submitted that in the

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
4

circumstances, the accused are entitled for acquittal since there is no convincing and

cogent evidence on record to prove the guilt of the accused.

5. Per contra, Mr. M.J. Khan, learned APP supported the impugned

judgment and contended that the certificate of the Medical Officer that the patient is fit

to give her statement is not required in order to prove the fitness of the patient and if

the Executive Magistrate is satisfied that the patient was fit to give her statement, is

sufficient to bring home the guilt of the accused. According to leaned APP, the

prosecution has proved its case beyond reasonable doubt.

6. In order to bring home the guilt of the accused, the prosecution has

examined as many as ten witnesses. The relevant witnesses are PW1-Prashant

Taksande, brother of the deceased PW2-Lalitabai Taksande, mother of the deceased,

and PW 3-Janardhan, Head Constable, who recorded the first dying declaration.

7. As far as the dying declaration is concerned, it is well-settled that

conviction can be based on the sole dying declaration of the deceased if the dying

declaration is found to be consistent, coherent and made in a conscious state of mind.

Time and again, the Hon’ble Apex Court has laid down guidelines to follow while

recording the dying declaration. It is expected that the Courts should be extremely

careful when they deal with the dying declaration as the maker thereof is not available

for cross-examination which poses a great difficulty to the accused person. The Court

has to examine the dying declaration scrupulously with a microscopic eye to find out

whether the dying declaration is voluntary, truthful, made in a conscious state of mind

and without being influenced by the relatives present or by the Investigating agency

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
5

who may be interested in the success of investigation or who may be negligent while

recording the dying declaration. It is also well settled that when there are more than

one dying declarations, it should not be that the dying declaration which supports the

prosecution case alone can be accepted while innocuous dying declarations have to

be rejected. While recording the dying declaration the Court has to see that, (i) the

examination of the patient by the doctor is conducted, before recording of his

statement and a certificate is obtained from the Doctor that the person is in a sound

mental state to give statement; (ii) the presence of the doctor near the patient during

recording of the statement; (iii) the relatives of the patient should not be near the

patient and if at all present should be removed from that place where the statement of

the patient is being recorded so that the patient should be in a position to make

voluntary statement, free from any influence or any tutoring; (iv) after recording the

statement it should be read over to that person and the contents thereof should be

explained. There should be confirmation from that person that the statement is

correctly recorded and it has true sense. No such guidelines are followed in the instant

case.

8. Keeping in mind the aforesaid guidelines, the dying declarations are to

be scrutinized carefully. The prosecution case mainly hinges on as many as two

inconsistent dying declarations. The prosecution heavily relied upon the dying

declaration made by Pramila; the first was made to the Police Head Constable PW3.

According to PW3 on 10.8.2005, he was on duty at General Hospital, Wardha

(outpost). He received information from the Medical Officer that one Pramila Gautama

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
6

Shende was admitted in the hospital in a burnt condition at 10.00 am. PW3 issued a

requisition to the Medical Officer, whether patient was fit to give her statement. The

Medical Officer orally informed that the patient was in a fit condition to give her

statement. PW3 then proceeded to record statement of Pramila. According to her, the

mother -in-law, sister- in-law and brother-in-law used to trouble her. On 10.8.2005

her brother-in- law A2-Shailesh abused and threw her utensils and asked her to

leave the house. Pramila therefore poured kerosene on her person and set herself

afire. According to her version, she was then admitted to the hospital. The statement

of Pramila was recorded by PW3 at Exh.34.

9. The testimony of PW3-Janardhan is difficult to rely, for the obvious

reason that there was no endorsement of the Medical Officer in writing that Pramila

was physically and mentally fit to giver her statement. In the absence of the certificate

of the Medical Officer in that regard, it would be difficult to believe that Pramila was in

a condition to give her statement. Thus, the first dying declaration (Exh.34) recorded

by PW3 is not found to be a trustworthy document.

10. Now coming to the second dying declaration of Pramila, which was

recorded by Executive Magistrate, PW7-Sachin Gosavi. PW7 deposed that on

10.8.2005, he received a requisition from the City Police Station, Wardha, to the

effect that that one patient was admitted in Sevagram Hospital and her statement

was to be recorded. He then proceeded to the Hospital and contacted the Medical

Officer and inquired whether the patient is mentally and physically fit to give her

statement. The Doctor examined and certified that patient was in a fit condition.

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::

APPEAL.417.06
7

Thereafter, PW7 recorded the statement of Pramila. Pramila stated before PW7 that

she was residing along with her husband, mother-in-law, brother-in-law at Anand

Nagar, Wardha. She told that her sister-in- law was residing at Butibori. Two days

prior to the recording of her statement, her sister-in-law had come to Anandnagar

Wardha. She further stated that there is trouble from her mother-in-law and brother-

in-law since the date of marriage and her sister-in-law is instigating the other accused

against her. She informed that on the date of incident, there was quarrel in the

morning, inasmuch as A2-Shailesh asked her to go out of the house else he would set

her on fire. PW7 then obtained her thumb impression on the statement. According to

him, only the Medical Officer was present at the time of recording her statement. The

Doctor made an endorsement at the bottom of the statement of Pramila (Exh.50).

11. On careful scrutiny of the second declaration made by Pramila, it is

noticed that there is difference in the contents of the second dying declaration when it

is compared with the first dying declaration. Significantly, the version of Pramila that on

the day of incident, her brother-in-law A2 Shailesh asked her to go out of the house

or else he would set her on fire, does not appear in the first dying declaration. So

also, both the dying declarations do not throw any light on the aspect of alleged ill-

treatment at the hands of the accused. It is not clear as to what sort of harassment

was done by the accused with Pramila, driving her to commit suicide. Even the

testimony of near relatives of Pramila is silent on this aspect. So far as the second

dying declaration is concerned below the thumb impression of Pramila, it is not

mentioned by Executive Magistrate whether the thumb impression belongs to Pramila.

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::

APPEAL.417.06
8

It is worthwhile to note that the Medical Officer did not issue a specific certificate with

regard to the physical and mental fitness of Pramila to give her statement. In the

cross-examination, PW7 does not make it clear as to in what manner he got himself

satisfied that Pramila was in a fit condition to give her statement. In this regard, the

testimony of Medical Officer PW 9-Dr.Hemant Dhamat, reveals that on 10.8.2005, he

informed the Police about admission of Pramila in the hospital with 45% burn injuries.

On making enquiry by the police, he examined the patient, whether she was in a fit

condition to give her statement. Thereafter, the Executive Officer recorded the

statement made by the police (Exh.34). PW9 however, admitted that he had not issued

a written certificate regarding fitness of the patient. He further clarified that there is

difference between physical and mental condition of the patient. He also admitted that

he had administrated pain-killer to the patient. In these circumstances, when PW9

failed to issue certificate with regard to the fitness of Pramila, the first dying declaration

cannot be relied upon.

12. The Medical Officer, PW 10 Dr.Anand Thawkie, who examined Pramila

on 10.8.2005, stated that he received a memo at 14.10 p.m. and was asked whether

patient was in a fit condition to give her statement, on which he made an endorsement

(Exh.57). PW10 fairly submitted during his cross-examination that the endorsement

with regard to the fitness of patient on Exh.50 was at 7.25 pm. In this context, it is

significant to note that dying declaration (Exh.50) recorded by Executive Magistrate

shows the endorsement of the Medical Officer that the patient was fit to give her

statement, at 7.25 pm. It is worthwhile to note that the Executive Magistrate has not

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
9

categorically mentioned as to at what particular time he enquired with the Doctor

regarding the fitness of Pramila and at what time the Medical Officer made an

endorsement about the fitness of Pramila and when the dying declaration was

recorded. So also there is no convincing evidence on record to show that the

Executive Magistrate was convinced and satisfied that the deceased was in a fit state

to give her statement. There is absolutely no evidence on record to show that the

Executive Magistrate put questions to the deceased and from the answers elicited

he was satisfied that the patient was in a fit state of mind and thereafter he recorded

the dying declaration.

13. Coming to the prosecution witnesses, PW1-Prashant Taksande, brother

of the deceased, stated that there always used to be quarrels of Pramila with her

sister-in-law and mother-in-law. According to him, the A2-Shailesh had not done

anything to his sister. The testimony of PW2-Lalitabai, mother of deceased, shows that

the accused used to quarrel with Pramila. On the date of incident, A2 asked Pramila to

leave his house and also threw her utensils. The testimony of PW2 does not show

that Pramila informed her mother that due to the alleged ill-treatment at the hands of

the accused, she set herself on fire. During cross-examination, an improvement was

pointed out in the testimony of PW2 in respect of the accused beating Pramila. PW2

admitted that her daughter was residing separately from the accused. She further

admitted that husband of Pramila (who is not the accused before the Court) was doing

the scrap business and was consuming liquor and, therefore, there was quarrel

between her daughter and her son-in-law. Her daughter used to say that she would

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
10

commit suicide so also her son-in-law too used to say that he would also commit

suicide. According to PW2, due to the behaviour of her son-in-law, the nature of her

daughter had become irritating and her mental condition was not proper. The

testimony of PW2 does not inspire confidence with regard to the fact that there used to

be quarrel between the accused and Pramila and they used to ill treat her. Thus, there

is no convincing and cogent evidence on record of the near relatives of Pramila to

show that Pramila was ill-treated by the accused and the cruelty was of such a

nature that she was driven to commit suicide.

14. On the point of inconsistent dying declaration, an useful reference of

the judgment relied upon by the learned counsel can be made, in case of Bhadragiri

Venkata Ravi vs. Public Prosecutor, High Court of Andhra Pradesh, reported in (2013)

14 SCC 145. Para Nos. 22,23, and 24 read thus :

“22, It is a settled legal proposition that in case there
are apparent discrepancies in two trying declarations, it would be
unsafe to convict the accused. In such a fact-situation, the accused
gets the benefit of doubt. (vide Sanjay v. State of Maharashtra:
(2007) 9 SCC 148; and Heeralal v.State of Madhya Pradesh,
(2009) 12 SCC 671).

23 In case of plural./multiple dying declarations, the
court has to scrutinise the evidence cautiously and must find out
whether are is consistency particularly in material particulars
therein. In case there are inter-se discrepancies in the depositions
of the witnesses given in support of one of the dying declarations, it
would not be safe to rely upon the same. In fact it is not the

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
11

plurarity of the dying declarations but the reliability thereof that
adds weigh to the prosecution case. If the dying declaration is
found to be voluntary, reliable and made in a fit mental condition, it
can be relied upon without any corroboration. But the statements
should be consistent throughout.

24. In case of inconsistencies, the court has to examine
the nature of the same i.e. whether they are material or not and
while scrutinising the contents of various dying declaratios, the
court has to examine the same in the light of the various
surrounding facts and circumstances, In case of dying declaration,
as the accused does not have right to cross-examine the maker
and not able to elicit the truth as happens in the case of other
witnesses, it would not be safe to rely if the dying declaration does
not inspire full confidence of the court about its correctness, as it
may be result of tutoring, prompting or product of imagination. The
court has to be satisfied that the maker was in a fit state of mind
and had a clear opportunity to observe and identify the
assailant(s).”

15. Learned counsel further relied upon judgment, in case of Samadhan

Dhudaka Koli vs.State of Maharashtra, reported in (2008) 16 SCC 705, on the point of

inconsistent dying declaration. Para nos.15,16,18 read thus:-

“15 Evidently, there are a few inconsistent and contradictory
dying declarations. The court while appreciating evidence on the basis
of such dying declarations is required to take into consideration

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
12

inconsistencies between two statements. In this case, the learned
Sessions Judge and the High Court proceeded on the basis that out of
the three dying declarations, in two of them the deceased did not
make any allegation against her husband.

16. A judgment of conviction can be recorded on the basis of
a dying declaration alone, but the court must have been satisfied that
the same was true and voluntary. Indisputably, for ascertaining the
truth as regards the voluntariness of making such a dying declaration,
the court is entitled to look into the other circumstances but the
converse may not be true.

18. Consistency in the dying declaration, therefore, is a very
relevant factor. Such a relevant factor cannot be ignored. When a
contradictory and inconsistent stand is taken by the deceased herself
in different dying declarations, they should not be accepted on their face
value. In any event, as a rule of prudence, corroboration must be
sought from other evidence brought on record. In Mehiboobsab
Abbasabi Nadaf vs.State of Karnataka (2007 (9) SCALE 473) where
four dying declarations were record,this court opined :

“6. Conviction can indisputably be based on a dying
declaration. But, before it can be acted upon, the same
must be held to have been rendered voluntarily and
truthfully. Consistency in the dying declaration is the
relevant factor for placing full reliance thereupon. In this
case, the deceased herself had taken contradictory and
inconsistent stand in different dying declarations. They,

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
13

therefore, should not be accepted on their face value.
Caution,in this behalf, is required to be applied.”

This Court noticed that as the deceased attributed the acts primarily on
her parents-in-law and they having been acquitted, it was difficult to hold that appellant
alone was responsible for causing her death.”

16. In the instant case, there are material inconsistencies in the above

-referred two dying declarations and as such, it is difficult to rely upon the

inconsistent dying declarations.

17. On the point of fitness of the person making the dying declaration, the
learned counsel further relied upon the judgment, in the case of Manik Vanaji Gawali
vs.State of Maharashtra; reported in 2013 CRI. L.J. 972, more particularly para nos.31
and 46 which read thus:

31. Whether a declarant is in fit state of mind is a question of
fact. That fact is to be proved by the person who has received,
listened, drawn memorandum or leaves in his memory. He has to
prove the fact of state of health and mind of the declarant. Whenever
such person proves that the declarant was in fit state of mind, it is his
own opinion based on judgment as to said state derived from facts.

46. Even if a certificate by an expert about fitness of state of
health is placed on record, such certificate by itself will not prove the
fact represented therein, rather it will have to be proved by the medical
witness by stepping into witness box. This aspect is ruled, inter alia, in
Malay Kumar Ganguly vs. Dr.sukumar Mukherjee ors., (2009 ) 9

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
14

Suypreme Court Cases 221 at paragraph 34 by placing reliance on
State of H.P. vs,. Jai Lal (supra)

Paragraph 34 of the said judgment is quoted below for ready reference:

“34. Medical evidence is difficult one. The court for the purpose
of arriving at a decision on the basis of the opinions of experts
must take into consideration the difference between an “expert
witness” and an”ordinary witness.”

The opinion must be based on a person having special skill or
knowledge in medical science. It could be admitted or denied.
Whether such an evidence could be admitted or how must weight
should be given thereto, lies within the domain of the court. The
evidence of an expert should, however, be interpreted like any
other evidence. This Court in State of H.P. vs. Jai Lal held as
under ; (SCC pp.2285286, paras 17-10)”

18. An expert is not a witness of fact. His evidence is really of
an advisory character.

The duty of an expert witness is to furnish the Judge with
the necessary scientific criteria for testing the accuracy of the
conclusion so as to enable the judge to form his independent
judgment by the application of this criteria to the facts proved by
the evidence of the case. The scientific opinion evidence, if
intelligible, convincing and tested becomes a factor and often an

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
15

important factor for consideration along with the other evidence of
the case. The credibility of such a witness depends on the reasons
stated in support of his conclusions and the date and material
furnished which form the basis of his conclusion.

19. The report submitted by an expert does not go in evidence
automatically. He is to be examined as a witness in court and has
to face cross-examination. This Court in Haji Mohammad
Ekramul Haq vs.State of W.B. (2003) 8 SCC 752 concurred with
the find of the High Court in not placing any reliance upon the
evidence of an expert witness on the ground that his evidence was
merely an opinion unsupported by any reasons.”

18. In the instant case, the dying declarations relied upon by the

prosecution are inconsistent on material aspects which creates a serious doubt about

the manner in which the incident had taken place. Similarly, it is not proved by the

prosecution that the deceased was physically and mentally fit to give the statement.

There is no cogent and convincing evidence on record to prove the case against the

accused that he treated the deceased with cruelty, so much so that she was driven to

commit suicide. The prosecution has failed to prove that the accued aided and

abetted the deceased to commit suicide. There is no mens rea on the part of the

accused that the deceased should commit suicide. The learned trial Judge ought to

have considered the aforesaid facts and circumstances of the case in its proper

perspective. As such, I am of the considered view that the prosecution has miserably

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::
APPEAL.417.06
16

failed to prove its case beyond reasonable doubt. Hence, the following order :-

ORDER

(a) Criminal Appeal No. 417/2006 is allowed.

(b) The impugned judgment and order dated 14.07.2006 in Sessions Trial
No.5/2006 passed by learned 2nd Ad-hoc Additional Sessions Judge, Wardha is set
aside.

(c) The appellants/accused are acquitted of the offence punishable u/ss. 498A,
306 r/ws.34 of the IPC.

(d) The fine amount if paid, shall be refunded to the accused.

(e) The appellants are on bail. Their bail bonds shall stand cancelled.

(f) The professional fees of the learned Advocate (appointed) for the appellants
are quantified at Rs.5,000/-.

JUDGE
sahare

::: Uploaded on – 08/04/2019 09/04/2019 04:52:45 :::

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation