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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.243 OF 2004
Gajanan s/o Laxman Ghate,
aged about 27 years, r/o
Motipura, Ward No.14, Taluq
Nandura, District Buldana. ... Appellant
- Versus -
State of Maharashtra, through
Police Station Officer, Nandura,
District Buldana. ... Respondent
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Shri N.A. Badar, Advocate for the appellant.
Shri S.J. Jichkar, Additional Public Prosecutor for the
respondent.
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Date of reserving the judgment : 24/09/2009
Date of pronouncing the judgment : 30/09/2009
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CORAM : D.D.SINHA AND P.B. VARALE, JJ.
DATED : SEPTEMBER 30, 2009
JUDGMENT (PER D.D.SINHA, J.) :
Heard Shri Badar, learned Counsel for the
appellant, and Shri Jichkar, learned Additional Public
Prosecutor for the respondent.
2) The criminal appeal is directed against the
judgment and order dated 2.12.2003 passed by the
Additional Sessions Judge, Khamgaon in Sessions Case
No.12/2003 whereby the appellant was convicted for the
offence punishable under Section 302 of Indian Penal
Code and sentenced to suffer imprisonment for life and
to pay fine of rupees two thousand and in default of
payment of fine, to suffer simple imprisonment for six
months. The appellant was acquitted for the offence
punishable under Section 498-A of Indian Penal Code.
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3) The prosecution case, in nutshell, is as follows :
The appellant was a resident of Motipura, Ward
No.14, Nandura, District Buldana. He was the husband
of deceased Sushila. The marriage of appellant with
Sushila had taken place in 1993. Till Sushila gave birth
to female child, the appellant treated her well. However,
after she gave birth to a female child, appellant started
ill-treating her under the influence of alcohol. The
appellant did not allow her relatives to meet her. The
proceedings were initiated under Section 97 of the Code
of Criminal Procedure and thereafter deceased Sushila
was brought to her maternal house where she stayed for
about two-three years. During her stay at her maternal
house, she also filed application under Section 125 of
the Code of Criminal Procedure for maintenance before
Magistrate. However, the dispute between her and the
appellant was settled somehow and, therefore, she went
back to appellant for cohabitation. It is the case of the
prosecution that appellant again started ill-treating her.
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About fifteen days prior to the incident in question,
Sushila brought saree from her sister. On account of
that, appellant got enraged and kept on abusing and
beating her. On 3.11.2002, at about 4 a.m., as usual,
Sushila got up. The appellant also got up and again
started abusing her on account of saree, which she had
brought from her sister. Appellant poured kerosene on
her person and pushed her on burning lamp, due to
which, her saree caught fire and she sustained burn
injuries to the extent of 91.5%. Sushila was admitted to
the General Hospital, Khamgaon. The Executive
Magistrate recorded dying declaration of Sushila.
Initially offence under Section 307 of Indian Penal Code
was registered against the appellant. The Investigating
Officer visited the spot and conducted spot panchanama
and seizure panchanama. Sushila, on 7.11.2002,
succumbed to burn injuries in the General Hospital,
Khamgaon. The offence was converted into one under
Section 302 of Indian Penal Code against the appellant.
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On completion of formal investigation, charge-sheet was
filed for the offence punishable under Sections 498-A
and 302 of Indian Penal Code in the Court of Judicial
Magistrate, First Class against the appellant. The matter
was committed to the Court of Sessions, charge was
framed and explained to the appellant, who pleaded not
guilty and claimed to be tried. The trial Court on the
basis of evidence adduced by the prosecution held the
appellant guilty for the offence punishable under Section
302 of Indian Penal Code, however, acquitted the
appellant for the offence punishable under Section
498-A of Indian Penal Code. Being aggrieved by the said
judgment and order of conviction, the appellant has filed
the present criminal appeal.
4) Shri Badar, learned Counsel for the appellant,
submitted that though prosecution has adduced
evidence of PW 1 Santosh (brother of deceased Sushila),
PW 2 Anusaya (mother of deceased Sushila) and PW 3
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Mangala (sister of deceased Sushila) on the point of oral
dying declaration alleged to have been made by
deceased Sushila to them, however, their evidence is
that of interested witnesses since all of them are close
relatives of deceased Sushila and, therefore, trial Court
was not justified in accepting the same in absence of
independent corroboration. It was submitted that
relations between the relatives of deceased Sushila and
appellant were not cordial in view of legal proceedings
initiated by Sushila against the appellant under Section
97 of the Code of Criminal Procedure as well as under
Section 125 of Code of Criminal Procedure for
maintenance and, therefore, these witnesses have
falsely implicated the appellant in crime in question. It
was submitted that prosecution has not examined any
independent witness to support its case and all the
witnesses, who were examined by the prosecution, were
close relatives of deceased Sushila, who were highly
interested in success of the prosecution case and,
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therefore, it was unsafe to rely on their evidence.
5) Learned Counsel Shri Badar further argued that
PW 4 Shrikrushna is uncle of deceased Sushila, in whose
presence, PW 13 API More has alleged to have recorded
dying declaration of deceased Sushila. It was contended
that the said dying declaration (Exh. 48) is lengthy and
exhaustive dying declaration. It was contended that
since Sushila sustained 91.5% burn injuries, it was
impossible for her to give such an exhaustive dying
declaration. PW 13 API More did not obtain certificate of
mental fitness from the Doctor before and after
recording the said dying declaration. It was submitted
that PW 4 Shrikrushna being uncle of deceased Sushila
also had an opportunity to influence the mind of
deceased Sushila since he was present during recording
of dying declaration (Exh. 48) by PW 13 API More. It
was, therefore, contended that the said dying
declaration is not reliable and needs to be discarded.
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6) Shri Badar, learned Counsel for the appellant,
submitted that so far as dying declaration (Exh. 44)
recorded by PW 11 Vijay, Executive Magistrate is
concerned, in the cross-examination PW 11 Vijay has
admitted that after recording of dying declaration, the
Doctor, without examining deceased Sushila, gave a
certificate that she was conscious during the course of
recording of dying declaration. It was contended that
this admission of Executive Magistrate makes the said
dying declaration (Exh. 44) doubtful.
7) Shri Badar, learned Counsel for appellant,
further submitted that DW 1 Kalpana is daughter of
deceased Sushila and appellant, who was, at the
relevant time, ten years of age and has stated in her
evidence that saree of her mother caught fire when she
was preparing tea. At that time, this witness and
appellant were asleep. They heard shouts and woke up
and found that clothes of deceased Sushila were on fire.
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The appellant tried to extinguish fire. Sushila was taken
to General Hospital, Khamgaon. It was submitted that
evidence of DW 1 Kalpana assumes importance because
she is daughter of deceased Sushila and would not allow
perpetrator of the crime to go scot free. It was
contended that taking into consideration the version of
the defence witness and the untrustworthy prosecution
evidence, the
impugned judgment and order of
conviction cannot be sustained in law.
8) Shri Jichkar, learned Additional Public
Prosecutor for the respondent, on the other hand,
supported the impugned judgment and order of
conviction passed by the trial Court. It was submitted
that to prove the oral dying declaration of Sushila,
prosecution has examined PW 1 Santosh, PW 2 Anusaya
and PW 3 Mangala. Their evidence is free from material
contradictions and omissions and, therefore, is
trustworthy and reliable. It was further contended that
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another piece of cogent evidence is dying declaration of
deceased Sushila recorded by PW 11 Vijay, Executive
Magistrate (Exh. 44). It was contended that before
recording dying declaration of Sushila, certificate of
PW 12 Dr. Jaiswal about her mental fitness was obtained
by the Executive Magistrate and dying declaration was
recorded only thereafter. It was submitted that dying
declaration (Exh. 44) is duly proved by the Executive
Magistrate. It was contended that oral dying declaration
given by deceased Sushila to the other witnesses and
the dying declaration of deceased Sushila (Exh. 44)
recorded by PW 11 Vijay, Executive Magistrate are
corroborated by the medical evidence of PW 9 Dr. Vilas
and, therefore, trial Court was justified in convicting the
appellant for the offence punishable under Section 302
of Indian Penal Code. It was submitted that so far as
dying declaration recorded by PW 13 More, API is
concerned, the trial Court has not placed any reliance on
the said dying declaration. Similarly, so far as evidence
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of DW 1 Kalpana is concerned, same has been rejected
by the trial Court on the ground that at the time of
arrest of appellant, no injuries were noticed on either
palms of the appellant or on any other part of the
appellant. It was, therefore, contended that the
impugned judgment and order passed by the trial Court
is sustainable in law.
9) We have considered the rival contentions
canvassed by the learned Counsel for the parties and
carefully scrutinized the prosecution evidence. In the
instant case, the prosecution has examined PW 1
Santosh, PW 2 Anusaya and PW 3 Mangala to prove oral
dying declaration given by deceased Sushila to them
that appellant poured kerosene on her person and
pushed her on the lamp, which was burning. The
evidence of these witnesses is free from material
omissions and contradictions. It is no doubt true that all
these witnesses are close relatives of deceased Sushila.
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However, merely because these witnesses are closely
related to deceased Sushila, that by itself cannot be the
ground to discard the evidence of such witnesses if
testimonies of such witnesses are otherwise reliable,
trustworthy and corroborated by other evidence. In the
instant case, the testimonies of these witnesses not only
inspire confidence, but are also corroborated by the
medical evidence.
10) It is pertinent to note that there is ample
material on record to demonstrate that appellant was
ill-treating his wife. However, the appellant is acquitted
for the offence punishable under Section 498-A of Indian
Penal Code and the State has not preferred any appeal
against the same and, therefore, we do not want to
observe anything in this regard. At the same time, the
fact remains that close relatives of deceased Sushila
settled the differences between her and appellant and
persuaded her to go back to her matrimonial house. If
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there would have been any kind of animosity on the part
of close relatives of deceased Sushila against the
appellant, they would not have permitted deceased
Sushila to go back and cohabit with the appellant. All
these circumstances go to show that allegation made by
the defence that appellant is falsely implicated in the
crime in question is unfounded.
11) In the instant case, the important piece of
evidence is of dying declaration of deceased Sushila
(Exh. 44), which was recorded and proved by the PW 11
Vijay, Executive Magistrate. In his examination-in-chief,
he has stated that on 3.11.2002 he had received a
message that he was required to visit General Hospital,
Khamgaon for recording of dying declaration of a lady,
who was admitted in the Hospital and, therefore, he
went to General Hospital, Khamgaon where he met
ASI Umbarkar, who gave him a letter requesting him to
record statement of deceased Sushila admitted in the
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hospital for treatment of burn injuries. It has come in
the examination-in-chief of the Executive Magistrate that
he met Medical Officer, who was in-charge of the burn
injury Ward and requested him to give certificate about
fitness of the patient. The Executive Magistrate himself
asked the name of patient, age of patient, address of the
patient and after that asked her how the incident had
occurred. To this question, Sushila answered that her
husband beat her, poured kerosene on her and pushed
her on the lamp. She also stated that her husband was
under the influence of alcohol. The Executive Magistrate
has disclosed in his evidence that after recording her
statement, same was read over to her and she admitted
the same to be correct. Her thumb impression was also
obtained. The said statement was also signed by the
Executive Magistrate. It is no doubt true that in the
cross-examination, the Executive Magistrate has stated
that the Medical Officer before making last endorsement
did not make enquiry with the patient and did not
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examine her. However, that admission by itself, in our
view, does not destroy the credibility of the dying
declaration made by deceased Sushila nor evidentiary
value of testimony of Executive Magistrate since the
incident had taken place on 3.11.2002 and Sushila died
on 7.11.2002. The dying declaration (Exh. 44), in our
view, stands totally proved by the evidence of Executive
Magistrate, which is completely corroborated by the
testimony of PW 9 Dr. Vilas, Medical Officer and,
therefore, this piece of evidence, which is independent,
trustworthy and reliable is sufficient to award conviction
to the appellant for the offence of murder. However,
there is also an oral dying declaration, which is proved
by the testimonies of other witnesses, which also
supports the material particulars of the prosecution case
given in the dying declaration (Exh. 44) made by
deceased Sushila.
12) The trial Court has already discarded the other
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dying declaration, i.e. Exh. 48 recorded by PW 13 API
More and, therefore, it is not necessary for us to express
anything in this regard. Similarly, so far as testimony of
DW 1 Kalpana is concerned, same cannot be accepted
since at the time of arrest of appellant, no injuries were
found on the palms or any other part of the appellant. If
the appellant tried to extinguish fire, in that event, he
ought to have received some burn injuries in the
process. However, in absence of any injury on any part
of the appellant, story put by DW 1 Kalpana appears to
be untrustworthy.
13) For the reasons stated hereinabove, the
criminal appeal suffers from lack of merit and hence, the
same is dismissed.
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khj
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