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The State Of Maharashtra vs Baban Kishanrao Bansode & Ors on 27 April, 2018

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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2 Cri.Appeal 583/2002

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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7 Cri.Appeal 583/2002

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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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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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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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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16) 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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gathered 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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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 583/2002

of 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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declaration, 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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to 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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has 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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of 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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Medical 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,

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I 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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conscious 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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Vs. 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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arise. 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

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28 Cri.Appeal 583/2002

indicating 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 583/2002

relatives 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 583/2002

deceased 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 583/2002

28) 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 583/2002

deceased 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 583/2002

satisfaction 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

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34 Cri.Appeal 583/2002

conviction 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 583/2002

suggestion 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 583/2002

statement 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 583/2002

thereafter 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 583/2002

was 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- [email protected]@2000
iks-gs-dkW- ds-ds- cks[kkjs c-ua- 1196
iks-LVs- othjkckn ;kaps i fn-23-12-2000

e`R;qiwoZ tckc Ex.33

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39 Cri.Appeal 583/2002

iz'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
give

statement 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 583/2002

JR 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 nwikj

CERTIFICATE

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
Nanded

English 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 statement

sd/-

     J.R.II  12 p.m.
24/12

DYING 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 583/2002

Answer - 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 583/2002

Chandrao 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
door with force.

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                                           43                 Cri.Appeal 583/2002

It 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 statement

sd/-

Medical Officer
M-II 12.35 p.m.
24.12.00

39) 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 583/2002

ablaze. 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 583/2002

alleged 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 583/2002

complicity 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 583/2002

fulfillment 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 583/2002

of 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 583/2002

passed, -

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 583/2002

Trial Court to undergo the sentence imposed upon

him.

(P.R.BORA) (SUNILL P.DESHMUKH)
JUDGE JUDGE

bdv/
fldr 26.2.18

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