1 Cri. Appeal No. 213/2007.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.213 OF 2007
1 Laxmibai W/o Maruti Satpute,
Age 65 years,Occup.Household,
R/o Supa, Ta. Parner District
Ahmednagar
2 Maruti S/o Sitaram Satpute,
Age 69 years, Occup.
Agriculture, R/o as above.
3 Arun S/o Maruti Satpute,Age 32 Appellants
years,Occupation Agriculture, Ori.Accused
R/o as above.
ig Nos.1 to 3.
V E R S U S
The State of Maharashtra Respondent
Smt.S.S.Jadhav,Advocate for appellants
Mr. V.D.Godbharle, Assistant Public Prosecutor
for respondent.
...
CORAM : P.V. HARDAS AND
A.V. NIRGUDE, JJ.
DATE : 3rd NOVEMBER, 2009
ORAL JUDGEMENT : (PER : A.V.NIRGUDE, J.)
1] The appellants are challenging the judgment
and order passed by the learned Adhoc Additional
Sessions Judge-2 Ahmednagar, (henceforth be
referred as the ld. judge) in Sessions Case No.
50 of 2006. The learned Judge, convicted all the
appellants of the offence under section 498A read
with section 34 of the Indian Penal Code and
further convicted the appellant Nos. 1 and 2 for
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the offence under section 302 read with section
34 of the Indian Penal Code also.
2] The appellant Nos.1 and 2 are husband and
wife and happened to be the parent-in-laws of the
deceased Sangita, the wife of acquitted accused
namely Rajendra. The appellant No.3 is another
son of the appellant Nos.1 and 2.
3] The facts of the prosecution in nutshell
are as follows:
The deceased Sangita got married to accused
Rajendra in the year 1995. Initially, this
couple resided with the joint family. But,
thereafter, the couple started living separately,
in their new house. The appellant Nos 1 and 2,
the parent-in-laws of the deceased Sangita were
staying separately. The distance between two
houses was about 2 K.M. The relation between the
deceased Sangita and her husband Rajendra on one
hand and appellant Nos. 1 and 2 were so strained,
that they were not on talking terms.
4] On 20thDecember, 2005, the deceased Sangita
was admitted in Khamkar’s Hospital at about 7.45
P.M. with burn injuries. She was immediately
shifted to Civil Hospital Ahmednagar, by her
husband accused Rajendra. At the time of
admission, the deceased Sangita was not in a
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position to make any statement as she had
suffered 98% burn injuries. On 21st December,
2009, the Executive Magistrate recorded her
statement at about 3.00 P.M. In this statement
she alleged that at about 8.00 P.M., on the
previous night, while her husband Rajendra was
intoxicated condition, her brother-in-law and her
parent-in-laws came to her house, picked-up
quarrel and then set her on fire. On the basis
of this statement, Crime No. 283 of 2005 came to
be recorded at Parner Police Station for the
offence punishable under sections 498-A and 307
read with section 34 of the Indian Penal Code.
The appellants and other accused were arrested.
On 22nd December, 2005 at about 6.45 A.M. Sangita
succumbed to the injuries, so Section 302 of the
Indian Penal Code was added to the charge. The
police completed the investigation and submitted
the charge-sheet against the accused/appellants.
Eventually, the case was committed to the Court
of Sessions as Sessions case No. 50 of 2006. The
prosecution examined in all 09 (nine) witnesses
to prove their case, whereas three witnesses
namely Reshma, Dr. Khamkar and Snehal, the
daughter of deceased Sangita, a Child witness,
were examined as court witnesses. After perusal
of the record and after hearing the ld. advocates
following points arise for our consideration :-
1 Whether dying declaration Exh.44 is
properly proved by the prosecution as
to use it as ‘substantive’ evidence?
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4 Cri. Appeal No. 213/2007.
Assuming it is so proved can it be
believed for the purpose of convicting
the appellant Nos 1 and 2 for the
offence punishable under section 302
read with section 34 of the Indian
Penal Code.?
2 Whether testimony of “child witness
Snehal” is worthy of reliance ?
3 Whether the prosecution proved that,
the appellants treated deceased
Sangita with cruelty with view to
demand dowry ?
5]
Before we discuss the propriety and
trustworthiness of the dying declaration, we
must make it clear that admittedly, deceased
Sangita sustained burn injuries at about 8.00
P.M. on 20th December,2009, while she was in her
house. Besides, Sangita’s dying declaration and
the deposition of the Child witness-Snehal there
is one more deposition on record to throw light
on this ghastly incident. This deposition is of
Sangita’s neighbour, one Smt. Shaikh Reshma, who
was examined as Court witness. She said in the
deposition that at the time of the incident, on
hearing shouts, she came out of the house and saw
that accused Rajendra and Sangita were going to
the Hospital. She further stated that she did
not have any talk with them, and she did not know
what had happened on that day, and what was the
quarrel between them or that she did not know how
Sangita sustained burn injuries. She
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5 Cri. Appeal No. 213/2007.
categorically admitted that she did not see the
incident. It is thus clear from this deposition
that immediately after the incident this witness
saw only accused Rajendra, in or about the scene
of the incidence, the house of the couple. She
did not see the appellants there. There is no
other deposition on record on this point, beside,
as said above the dying declaration of sangita
and deposition of her daughter Snehal.
6] The other material circumstance as said
above is the dying declaration of Sangita. P.W.5-
Sharad Atmaram Mandlik, Naib Tahsildar, who
recorded the dying declaration on 21st December,
2005 gave graphic details as to how he went to
the Civil Hospital on that day, how he eventually
reached near deceased Sangita in the company of
the Medical Officer on duty and how he obtained
the Medical Officer’s certificate about Sangita’s
position to give statement. He categorically
stated that, after asking all relatives of
deceased Sangita to leave the room, he recorded
the statement of sangita. He said, he asked
Sangita about the incident. He said, he asked
questions as per a formate for recording a dying
declaration. He then said, deceased Sangita
answered his question and he noted them as dying
declaration as per her narration. He also
stated, the dying declaration was read over to
sangita and she admitted it be correct. He
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6 Cri. Appeal No. 213/2007.
further stated, after recording of the dying
declaration he again asked the duty Medical
Officer to certify about fitness of Sangita for
giving the statement. He then produced the dying
declaration on record. The learned Judge then
exhibited it as Exh.44. There is one more witness
for dying declaration. It is P.W.8 Dr. Sanjay
Pathare. He said that on 21st December,2005 he was
assigned Causal Duty as C.M.O. and that on that
day, P.W.5- Sharad Mandlik came to him for
recording dying declaration of the deceased
Sangita, who was admitted in ‘burn ward’. He
said, he then accompanied P.W.5 to the ‘burn
ward’. He said the patient was conscious and was
speaking properly. He also said that he issued
such certificate. He further added that when the
statement was being recorded, he was present by
the side of the patient. He said, after recording
of the statement, he again certified that the
patient was conscious and oriented. The question
is whether the depositions of P.W.5 Sharad and
P.W.8 Dr. Sanjay Pathare are sufficient to
exhibit the dying declaration at Exh.44? The
answer to this question is in the negative. As
noticed earlier, none of these witnesses stated
as to how the incident had occurred as per
narration of Sangita. They did not utter a
single word as to what Sangita told them, how she
described the incident; who were the offenders,
who had poured the kerosene on her person, who
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had set on her fire and in what matter. Both
these witnesses are silent about these important
aspects and proof of Sangita’s dying declaration.
7] The question as to how a dying declaration is
proved before the court is discussed in a recent
judgment of Our High Court in the case Deorao S/o
Sonbaji Bhalerao and another Vs. State of
Maharashtra reported in 2008 ALL MR (Cri.) 1921.
The facts and situation in the reported case was
almost similar. It was similar urged before that
court that the dying declaration was proved and
it was not necessary for the witnesses to depose
exact word spoken by the declarator/deceased
uttered about the persons who poured kerosene on
her person and set her on fire, because there was
presumption of genuineness attached to such dying
declaration as per section 80 of the Evidence
Act, it being a record of evidence given by a
witness to a Magistrate authorised by Law. The
Division Bench of our High Court then discussed
the law on this subject, laid down by the various
judgments. The Division Bench high-lighted the
law which required proper proof for dying
declaration. It said there are three reasons for
not admitting the statement without proof under
section 80 of the Evidence Act. They are (i) the
Magistrate who recorded such statement was not
committing Magistrate,(ii) the accused was not
present when such statement was recorded and
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8 Cri. Appeal No. 213/2007.
(iii) accused had no liberty of cross-examining
the dead person who made statement. After
considering other judgments on these points, the
Division Bench of Our High Court held thus:
19 The question which arises for our
consideration is whether a dying
declaration is admissible without
proof, under section 80 of the Evidence
Act? It would be useful to reproduce
the said provision.
” S. 80 Presumption as to documents produced as record of
evidence:-
Whenever any document is produced before any Court,
purporting to be a record or memorandum of the evidence,
or of any part of the evidence, given by a witness in a
judicial proceeding or before any officer authorized by law
to take such evidence, or to be a statement or confession by
any prisoner or accused person, taken in accordance with
law, and purporting to be signed by any Judge or Magistrate,
or by any such officer as aforesaid, the Court shall presume-
that the document is genuine: that any statements as to the
circumstances under which it was taken, purporting to be
made by the person signing it, are true, and that such
evidence, statement or confession was duly taken.
Since there are a number of ‘and’ and
‘or’ in order to avoid any ambiguity,
this Section can be separated in three
parts to arrive at a plain
interpretation. S.80 applied to –
(1) any document produced before any
Court, purporting to be record of
memoranda of evidence or of any part of
the evidence given by a witness in a
judicial proceedings,or
(ii) to a document purporting to be a
record or memo of evidence given by a
witness before any officer authorised
to take such evidence, or
(iii) to a statement or confession by
any prisoner or accused person taken in
accordance with law and purporting
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9 Cri. Appeal No. 213/2007.
to be signed by any Judge or
Magistrate, or any such officer as
aforesaid ( i.e. authorised by law). To
put it in another way, it would be-
(a) such document is memoranda of
evidence;
(b) the evidence was given by a
witness; and
(c) it was given in a judicial
proceedings, or before an officer
authorised by law to take it.”
20. The words.’by any prisoner or accused
person’ govern also the word
‘statement’ because if they governed
only the word ‘confession’ the word
‘statement’ would be left all alone and
would be too vague to make any sense.
Let us put to test the submission made
on behalf of the State that dying
declaration recorded by a Magistrate
would fall under section 80 of Evidence
Act. S.80 of Evidence Act deals with
presumptions to be attached to one
important class of judicial documents
viz depositions of witnesses in a
judicial proceedings or documents
recorded by an officer necessarily
means in some previous proceedings. The
reason is, evidence recorded in open
court in judicial proceedings or by an
Officer authorised to take evidence by
observance of certain prescribed rules
and formalities afford sufficient
guarantee for presumption that it was
correctly done. The rule is,Omnia
praesumuntur rite et solemniter esse
acta donec probetur in contrarium-
everything is presumed to be rightly
and duly performed until the contrary
is shown; and that the records of a
Court of justice have been correctly
made. For recording a dying declaration
by a Magistrate, no particular
procedure is prescribed by statutory
law nor evidence of such a dying man is
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recorded in the presence of the
accused,nor the accused had any
opportunity of cross examining the
dying man. The dying declaration is
recorded either before investigation
begins or after and, therefore, it
cannot be said that the same even if
treated as ‘evidence given by a
witness’ is not recorded during any
previous judicial proceedings or any
proceedings before an officer
authorised by law to take such
evidence. As Taylor, J. in the case of
King Emperor Vs. Mathura Thakur, supra,
rightly observed that what is made
admissible by S.32(1) of the Evidence
Act is the verbal statement made by the
dying man to the Magistrate and not the
document prepared by the Magistrate.
The document made by the Magistrate
does not amount to a deposition or
record of evidence so as to attract the
presumption under section 80 of
Evidence Act. Therefore, what is
admissible in evidence is the statement
made by the dying man as to who was
responsible for causing his death and
not the paper on which dying
declaration is recorded. For these
reasons therefore, S.80 of the Evidence
Act cannot be invoked in respect of
presumption to be drawn in respect of
dying declaration recorded by a
Magistrate or even an officer
authorised by a law to take evidence.
As a sequel or our fining about
inapplicability it or presumption under
Sec.80 of Evidence Act, we further hold
that the Magistrate or the person who
records a dying declaration will have
to testify and prove who was named as
offender by the dying person before
Court where trial proceedings against
accused are held. In the case of
Smiruddin,supra the Calcutta High Court
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held that the statement must have been
proved in ordinary way by a person who
heard it made. If for any reason the
Magistrate is not available, any other
person who heard it when made can also
testify and they being at liberty to
refresh memory by referring to the
document as provided by Sections 159
and 160 of Evidence Act.
21 Section 273 of Criminal Procedure Code
reads thus:
” S.273 Except as otherwise expressly provided, all
evidence taken in the course of the trial or other proceeding
shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the present of is
pleader.”
A dying declaration recorded by a
Magistrate is not recorded in the
presence of the accused. But Sec. 32(1)
of the Evidence Act makes the same
relevant and can be proved by evidence
and sanctity given to its embodied in
the maxim nemo moriturus praesumitur
mentire, i.e. A man will not meet his
maker with lie in his month. That is
why tests of oath and cross-examination
are dispensed with. But then relevancy
in evidence and proof by evidence are
different things. Where accused is
called upon to defend a charge under
Sec. 302, I.P.C., the burden of proof
in the absence or presumption of law
never shifts into him. It ever remains
on the prosecution which has to prove
the charge beyond all reasonable doubt.
The said traditional legal concept
remains unchanged even now. In such a
case the accused can wait till the
prosecution evidence is over and then
show that the prosecution has not
proved particular material facts
through its prosecution witness who
failed to describe the names and role
of the accused in the offence of murder
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as told by the dying man to such a
witness or a Magistrate who recorded
the dying declaration by merely
exhibiting the documents of dying
declaration its contents and in
particular the names of the offender’s
and the role played by them in
committing the offence of murder is not
proved unless such witness or
Magistrate vouchsafes before the trial
Court as to whom did the dying person
named offenders. In Narbada Devi Gupta
vs. Birendra Kumar-AIR 2004 SC 175:
[2004(5)ALL MR (S.C.)51], the apex
court in paragraph 16 held thus:
“The legal position is not in dispute that mere production
and marking of a document as exhibit by the Court cannot
be held to be a due proof of its contents. Its execution has to
be proved by admissible evidence that is by the ‘evidence of
those persons who can vouchsafe for the truth of the facts in
issue’. The situation is, however, different where the
documents are produced, they are admitted by the opposite
party, signatures on them are also admitted and they are
marked thereafter as exhibits by the Court.”
In Dandu Lakshmi Reedy Vs. State of
A.P.1999 ALL MR(Cri) 1784,Supra, the
apex Court in para 3 held as under:
“There can be a presumption that testimony of a competent
witness given on oath is true, as the opposite party can use
the weapon of cross examination, inter alia, for rebutting the
presumption but a dying declaration is not a deposition in
Court. It is neither made on oath nor in the presence of an
accused. Its credence can not be tested by cross-
examination. Those inherent weaknesses attached to a dying
declaration would not justify and initial presumption to be
drawn that the dying declaration contains only the truth.’
8] In view of the law discussed above, the
document Exh. 44, the so-called dying declaration
can not be said to be proved as required by law.
We, therefore, hold that the prosecution has
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failed to prove this basic circumstance in
support of its case.
9] The value of this dying declaration is
diluted further because prosecution also placed
reliance on two oral dying declarations, which
are not in consonance with the written one. The
prosecution witness No.1 Bhausaheb stated that
the deceased Sangita had told him that accused
Rajendra, his brother and parents had set her on
fire. This certainly is different than the dying
declaration recorded by the prosecution witness
P.W.5 Sharad Mandlik. Another P.W.(2) Jyoti, the
sister of the deceased, stated that deceased
Sangita had narrated the incident to her saying
that the accused poured kerosene on her person
and set her on fire. This version is also
different from the the one recorded in writing.
10] The next circumstance is the deposition of
child witness Snehal. This witness as said above
is examined as ‘Court witness’. Her deposition
is quite cryptic. She described the incident in
very few words. She said the appellant No.1
poured kerosene on her mother and the appellant
No.2 set her on fire by striking match stick.
Saying this, she identified the appellant Nos. 1
and 2 as the perpetrators. She has not given
other details as to what had happened prior to
the actual incident, what was her mother’s
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reaction to the act allegedly done by the
appellant Nos 1 and 2 etc. In the cross
examination, she admitted that, her maternal
uncle and maternal grand-father kept on telling
her, what she should depose in the Court. The
question is whether this witness was tutored?
There was strong possibility of tutoring of this
witness. The incident took place in December,
2005, and since then till her deposition was
recorded in the month of May-2007, the child had
been residing with her mother’s relatives namely
her maternal uncle and maternal grand father. Her
age at the time of incident was merely three
years and she was only five years old when her
deposition was recorded. The child of this tender
age is prone to tutoring. The Law on the
subject, as to how to appreciate the evidence of
‘child witness’, is discussed in various judgment
of the Supreme Court. One of them is the judgment
in the case of Panchhi and others Vs. State of
U.P. reported in AIR 1988 SUPREME COURT,2726. The
Hon’ble Supreme Court held thus-
11 Shri R. K. Jain, learned Senior
Counsel, contended that it is very
risky to place reliance on the
evidence of P.W.1 being a child
witness. According to the learned
counsel,evidence of child witness is
generally unworthy of credence. But
we do not subscribe to the view that
the evidence of child witness would
always stand irretrievably
stigmatized. It is not the law that
if a witness is a child his evidence
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shall be rejected, even if it is
found reliable. The law is that
evidence of a child witness must be
evaluated more carefully and with
greater circumspection because a
child is susceptible to be swayed by
what others tell them and thus a
child witness is an easy prey to
tutoring.
Courts have laid down that evidence
of a child witness must find adequate
corroboration before it is relied on.
It is more a rule of practical wisdom
than of law. (emphasis provided by
12 us)
11] It is thus clear that the deposition of
child witness is evaluated very carefully and
with greater circumspection. As said above this
child was certainly susceptible to be tutoring
and must have followed the instructions, which
she had received from her relatives. We,
therefore, discard this piece of evidence. In
view of this, the case of prosecution would fail
so far as it relates to charge under section 302
read with section 34 of the Indian Penal code
against the appellant Nos.1 and 2.
12] The remaining question is whether the
prosecution proved the offence punishable under
section 498A of the Indian Penal Code against the
appellants. The answer is in the negative. The
prosecution witness Nos. 1-Bhausaheb and 2 Jyoti,
the father and sister of the deceased Sangita are
the witnesses on this point. Both these witnesses
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made rather vague and omnibus statements saying
that deceased Sangita used to tell them that, all
accused used to say to her that she should bring
money from her father; all accused used to ill
treat her, used to beat her and used to sent her
to her father’s house. P.W.2 Jyoti, in addition
to this, also stated that the deceased Sangita
used to tell her that her husband ill treated her
suspecting her fidelity. We find that, the
material on record is insufficient to convict the
appellants under section 498-A of the Indian
Penal Code. The appeal therefore, succeeds.
13] This Criminal Appeal is allowed and the
conviction of the appellants is hereby quashed
and set aside and they are acquitted of the
offences with which they were charged and
convicted.
Appellant No.1 Laxmibai Maruti Satpute and
Appellant No.2 Maruti Sitaram satpute are said to
be in jail since the date of the incident and
they be released forthwith, if not wanted in any
other case. Bail bonds of appellant No. 3 Arun
Maruti Satpute stand cancelled. Fine,if paid by
the appellants be refunded to them.
(A.V.NIRGUDE, J.) (P.V.HARDAS, J.)
MTK./
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