Bombay High Court High Court

Shri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010

Bombay High Court
Shri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010
Bench: D.D. Sinha, A.P. Bhangale
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                                                              APEAL-253-05




                                                                         
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                
                     CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO.253 OF 2005




                                               
    Shri Tanaji Bajirao Chawan,        ]




                                      
    Convict No.C/2368,                 ]
    through Kolhapur Central
                           ig          ]
    Prison, Kalamba - 416 007.         ]     ..Appellant.
                                             [Orig.Accused]
                         
          Versus
    The State of Maharashtra,          ]
    Medha Police Station,              ]
      


    Tq. Jaoli, District - Satara.      ]     ..Respondent.
   



                                   .........
    Mr.D.G. Khamkar, Advocate for the Appellant.





    Mrs.A.S. Pai,  A.P.P. for the State.
                                        .........
                                             
                       CORAM :  D. D. SINHA  &  A. P. BHANGALE,  JJ.
                       DATE OF RESERVING      )   :     22.10.2010
                       THE JUDGMENT           )

                       DATE OF PRONOUNCING )   :    29.10.2010
                       THE JUDGMENT           )




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    ORAL JUDGMENT (PER A. P.  BHANGALE , J.) :




                                                      

1. Present Criminal Appeal arose out of judgment and order

dated 07/10/2003 passed by learned VIth Additional Sessions

Judge, Satara, who found the appellant guilty of the offence

punishable under Section 302 of the Indian Penal Code and sentenced

him to suffer rigorous imprisonment for life and to pay fine in the

sum of Rs 500/- in default to suffer further rigorous imprisonment for

five months. The appellant was further found guilty of the offence

punishable under Section 498-A of the Indian Penal Code, the

appellant was sentenced to suffer S.I. for 3 years and to pay fine in

the sum of Rs.400/- in default to suffer further S. I. for four months .

The appellant was also found guilty of the offence punishable under

Section 504 of IPC and sentenced to suffer R.I. for one year and to

pay fine in the sum of Rs.200/- in default to undergo R. I. for two

months.

2. The case of the prosecution briefly stated is as under:-

Sau Lata @ Ranjana Tanaji Chawan, resident of Kalewadi

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(Sartale) Tauka-Jaoli, District-Satara (deceased) was wife of the

appellant. They were married on 03/07/1994. They had two sons –

Nitiraj & Rajiv out of the wedlock. The appellant is truck driver by

occupation. Lata died at Civil Hospital, Satara due to septicemia due

to 76% burns. Madhukar Pawar (father of the deceased) had died

about 9 months prior to the date of the incident. It is case of the

prosecution that the deceased Lata was ill-treated by the appellant on

the ground that she should get transferred her share in her father’s

property in his name in respect of the agricultural land belonging to

her father but she was not ready because the appellant was addicted

to liquor and to satisfy his lust, he was likely to sell the land. As Lata

had refused, the appellant started harassing her by abusing and

assaulting her. On 01/05/2002 at about 11 a.m., the appellant had

brought dry wood and had asked Lata to prepare egg curry. While

Lata was cutting onion for that purpose, the appellant started abusing

her on the ground that she was not getting her share transferred in

his name. The appellant threatened to kill her and abused. He

removed the lid of the bottle containing kerosene and spread it on

her person and set her on fire with the help of lighted matchstick, due

to which Lata’s saree started burning. The appellant then pushed her

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to Padvi of the house. Lata shouted. The relatives i.e brother of the

appellant and his wife, who were nearby, had rushed to the scene.

The appellant had poured water on the person of Lata and

extinguished the fire. Then the appellant with the help of his brother

Shivaji, his wife Mangal had brought Lata to Civil Hospital Satara at

about 3.05 p.m. It is case of the prosecution that while Lata was

brought by the rickshaw, the appellant had insisted and influenced

Lata to tell falsely that she had caught fire due to flickering of the

stove accidentally and threatened her that otherwise he will kill her

brother and her mother.

3. On 03/05/2002 A.S. I. Narendra Shankar Jagtap (PW-7) who

went to Civil hospital, Satara had recorded the statement of Lata at

Exh.37 in presence of Dr.Ravindra Ghongade (PW-9) and had

registered the offence as C.R. No.25 of 2002 at Kudal police station.

During the investigation the panchnama regarding the scene of

offence was drawn, burnt pieces of clothes and one stove was seized.

Statement of witnesses were recorded. On 07/05/2002 a requisition

letter was sent to Special Judicial Magistrate Sanjay Anant Mulik

(PW-1) to record dying declaration of Lata, which was recorded on

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the same day between 10.40 p.m. to 11.40 p.m. by PW-1 in presence

of Dr.Anil Shinde (PW-10). Ultimately Lata had succumbed to her

burn injuries. Her dead body was referred for the postmortem

examination and memorandum of postmortem (Exh.17) was issued.

In the course of investigation, the glass bottle and a match stick were

recovered at the instance of the accused (appellant).

4. Upon completion of investigation, on 22/08/2002 the accused

was charge sheeted before the learned Judicial Magistrate, First Class

at Medha. On 26/08/2002 the case was committed to the Court of

Sessions, Satara.

5. The charge below Exh.10 was framed on 21/06/2003. The

appellant/accused pleaded not guilty and claimed trial. Accordingly

plea of the accused was recorded below Exh.11.

6. The prosecution examined ten witnesses and closed evidence

in the trial Court. The defence evidence of two witnesses was led by

the accused.

7. We have heard learned advocate for the appellant and learned

A.P.P. for the State.

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8. The inquest panchnama (Exh.15) and post-mortem notes

were admitted by the defence and were exhibited. Medical officer

Dr.S. Kasar who had conducted postmortem examination of the dead

body of the victim Lata ( Exh.17), found 76% antemortem burn

injuries and opined that the deceased died due to septicaemia due to

76% burns.

9. PW-1 Sanjay Mulik, a Special Judicial Magistrate was

requisitioned by the police to visit Civil Hospital, Satara and to

record dying declaration. He met Dr. Shinde – Medical officer, and

inquired as to whether Lata was conscious. Medical officer certified

that she was conscious and well oriented to give her statement under

the endorsement Exh.24. Then PW-1 proceeded to record the dying

declaration (Exh.25), put her some questions and after answers

assessing her fitness, recorded dying declaration as per her version.

After the statement was read over to her she had affixed her signature

below the statement. PW-1 also affixed his signature (vide Exh.25).

Lata emphasized that her first dying declaration was given due to

threat given by her husband Tanaji who had carried her by the

rickshaw and who insisted upon her to state falsely that she received

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burns accidentally due to flickering of the flames of the stove and had

threatened her that otherwise he will kill her brother and others from

her parental family. According to her, her husband had brought

domestic firewood which was kept arranged on the loft inside the

house. Then her husband asked her to prepare eggs-curry. She had

cut the onion for that purpose. At that time her husband started

abusing her for her failure despite telling her repeatedly to get the

land of her share from her father’s property transferred to her name.

Her husband threatened to kill her and abused her. He poured

kerosene upon her from the bottle-lamp and lighted a matchstick and

set her on fire. Her Saree caught fire and soon her body was up in

flames. Her husband pushed her to the side of Padvi in the house. She

shouted, which attracted the attention of her brother-in-law Shivaji

and his wife Mangal who came rushing. At that time her husband

poured water upon her person and extinguished the fire. Shivaji,

Mangal and her husband (appellant) had carried her to the hospital.

10. At the hearing of the appeal, the learned Advocate for the

appellant assailed the findings recorded by the trial Court which in

this case are based on the two documents Exh.25 and Exh.37 (which

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incidentally has been treated by the investigating authorities as the

F.I.R) as against the very first statement of the deceased Lata at Exh.

51 as deposed by DW-1 & DW-2 recorded earlier on 1/5/2002 and

the second statement or dying declaration which was recorded on

3/5/2002 and which is at Exh. 37. The first head of attack proceeds

on the footing that these documents (Exh.25 and Exh.37) essentially

contradict with the earlier document Exh.51. What the learned

Advocate emphasizes is that at the earliest point of time, deceased

Lata has stated that she had received burns as a result of accident due

to flickering of the flames of the stove. Two days later she has

virtually altered the version to the extent that she has stated that her

husband poured kerosene on her person and set her on fire.

11. The learned Advocate submitted that in a case where there

are only very minor variations that a Court may either reconcile them

or may also overlook them provided it does not essentially affect or

alter the main thrust of the accusations. He submitted that in this case

the deceased Lata has swung from the first and earliest theory of the

accident to homicide and with such grave and material accusations

against her husband that no Court can rely on either of the dying

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declarations. Learned Advocate invited our attention to the following

rulings :-

           i)       Smt Kamla Vs. State of Punjab  
                    [ 1993 Cri. L J. 68(SC) ]

           ii)      Kishan Lal Sethi  Vs. Jagan Nath & another 




                                                           
                    [ AIR 1990 SC 1357]

iii) Mohanlal Gangaram Gehani Vs. State of Maharashtra

[ 1982 SCC (Cri) 334 ]

12.

We do not need to mention the settled proposition that if

there are multiple dying declarations and the deceased has given

different versions at different times, then a Court will be left with no

option except to hold that it is unsafe to rely upon any of the

particular statement to the exclusion of the others.

13. The learned Advocate therefore submitted that in a case

where it is not possible to reconcile the diametrically opposing

versions then it would be totally unsafe for the Court to base a

conviction purely on incriminating material. On the other hand, the

learned Additional Public Prosecutor submitted that if a particular

statement, be it the version at the earliest point of time or the one

which emerges later when the deponent was in a better position to

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tell the truth, which inspires the judicial mind and confidence of the

Court, then it is certainly open for the Court to accept that part of the

evidence to the exclusion of the other given under the undue

influence, coercion or threat from the husband. What Learned A.P.P.

states that undoubtedly at the earliest point of time Lata indicated

that her Saree caught fire due to flickering of the flames of the stove.

But, the learned APP states that it is one of the rare and unusual cases

in which at a later point of time the deponent has very clearly

explained and indicated why she had put forward something other

than the truth at an earlier stage. The learned A.P.P. submits that the

explanation ought to be accepted as quite plausible so that the

subsequent dying declaration must really be treated as voluntary, true

and acceptable in the light of circumstances under which earliest

statement was made.

14. Deceased Lata has clearly pointed out the reasons why she

could not tell the truth in her first statement which was recorded

earlier. It is this submission for which there is supportive evidence in

this case from the oral evidence of the prosecution witnesses,

particularly, PW-3 Suman and PW-5 Murlidhar, PW-7 A.S.I.

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Narendra, PW-9 Dr Ravindra, and PW-10 Dr Anil Shinde. All these

witnesses have supported the view that Exh.25 which is the dying

declaration recorded on 07/5/2002 is in fact a reliable document, as

true and voluntary.

15. We may mention in brief that PW-3 Suman Pawar (mother of

Lata), PW-6 Hemant Pawar (brother of Lata), and PW-5 Murlidhar

Pawar (uncle of Lata) are quite categorical about the generality of the

accusations and in particular Lata’s charge that she was being ill-

treated by her husband for purposes of extorting her share in her

father’s (ancestral) property. The evidence even indicates that accused

had gone to the extent of telling the deceased that the purpose of

getting rid of her was her failure to get the share in her father’s

property in the name of the appellant. The learned A.P.P. submitted

that this evidence has got to be looked at in the light of Lata’s candid

explanation that she was threatened by the accused that if she

implicated him in the incident of burning, he would kill her brother

and others and this was the reason why she was compelled under the

circumstances to put forward the accident theory. The submission

proceeded on the line that the explanation by Lata ought to be

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considered as a valid and correct one, and reliable to the effect of

nullifying the earlier version (Exh.51) put forward by her under the

threat and undue influence of her husband for upholding the truth

which appears mentioned in Exh.37 and Exh.25.

16. We have very carefully assessed the evidence of PW-3 Suman

Pawar, PW-5 Murlidhar Pawar and PW-6 Hemant Pawar. PW-3

Suman’s evidence does support the view that deceased-Lata was ill

treated constantly since two years prior to the incident. The accused

was insisting upon Lata to get her share in her ancestral land

transferred in her name, he used to assault her and that Lata told her

about the ill-treatment when Lata had come to her house. The

accused used to create disputes under the influence of liquor and

hence relatives were not giving any land to him. PW-3 Suman went to

the hospital with her son at about 10.30 p.m., when the accused was

present. In his presence, Lata was not prepared to disclose anything

as to how she was burnt. But Lata told her mother that she will

disclose after 2 days. Later on next day itself, Lata disclosed to her

mother that her husband Tanaji sprinkled kerosene on her person and

set her on fire since she did not ask for share in her father’s estate.

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Lata also disclosed to her mother that the accused, his brother and his

wife had brought her to the hospital and the accused had threatened

her in the rickshaw that she shall not disclose that the accused had

set her on fire, otherwise he will kill her. Her husband thus wanted

Lata to disclose that she got burnt accidentally due to flickering of

the flames of the stove. Thus the fact which is established is that Lata

had received ill-treatment at the hands of the accused and lastly the

fact that the deceased Lata was pressurized into putting forward an

incorrect version of the incident at the earliest point of time due to

fear from her husband. This, in our view, is reinforced by the evidence

of PW-5 Murlidhar (who is uncle of Lata). He deposed that he had

received a telephone message at about 8.30 p.m. on 1/5/2002 at

Mumbai from the neighbourer that Lata was burnt and admitted in

hospital at Satara. He returned to the native place and then went to

the Civil Hospital at Satara. PW-5 inquired as to how Lata was burnt

and she disclosed that her husband had sprinkled kerosene upon her

and set her on fire with the help of match-stick. She also disclosed

about the fact that her husband had insisted that she should say that

she was burnt by flickering of the stove otherwise her relatives would

be finished off.

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17. PW-6 Hemant Pawar (brother of the deceased) also deposed

that Lata was telling him that she was harassed by the accused who

insisted upon her to demand share in the property of her father and

used to assault her . The accused-Tanaji had also visited the house of

Hemant to demand share of Lata (his wife) which the witness says

that he assured the accused that it will be given, if he treat his sister

properly.

18.

PWs-3 & 5 had visited the hospital and had occasion to talk

to the deceased Lata. Unless the deceased had in fact told them about

the harassment and the subsequent incident of setting her on fire by

accused, it is most unlikely that they would fabricate the false story

against the accused with whom they had neither any kind of adverse

relationship nor any axe to grind. If the accused was not in any way

responsible for the death of Lata, it would be difficult to understand

as to why there would be any need for him to threaten her while he

had carried her by the rickshaw. Lata being a simple, an least

educated girl could not come up the factual story of the incident, due

to fear and pressure of her husband. However, as soon as she got the

first opportunity she had disclosed the factual incident. In totality,

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therefore, there is a perfectly plausible and acceptable explanation

coming from the victim herself, well supported by other evidence on

record which is self explanatory to clear off the divergence between

the two different versions in dying declarations.

19. In the reported cases cited by learned Advocate for the

appellant, there was no such explanation on record and there was no

material evidence to support such an explanation. This is an unusual

case, but, it also furnishes a novel angle of the law in so far as it leads

us to a conclusion that where there are two divergent versions in

statements by the deceased which are capable of being fully and

totally reconciled, then the Court need not reject them merely

because prima facie they appear different. The position that emerges

is, therefore, that the Court will have to momentarily put itself into

the shoes of the deceased and if this is done, the whole picture

becomes clear. The deceased, after sustaining the burns was taken to

the hospital by the accused by rickshaw. He had threatened Lata with

dire consequences to her and her brother and if she implicates the

accused in the act of burning and she, therefore, was compelled to

make her initial statement in this background to DW-2 Dr.Smeeta and

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to DW-1 Chitrasain. The learned Trial Judge was, therefore, justified

in his view to record conviction on the basis of the documents Exh.25

and Exh.37. They can validly form the basis of a conviction

considering the evidence as to why and how the first statement (Exh.

51) was made.

20. In three Judge Bench decision of the Supreme Court in

Panneerselvam Vs. State of Tamil Nadu, (2008) 17 SCC 190 and

also the principles governing the dying declaration are summed up in

Paniben Vs. State of Gujarat , (1992) 2 SCC 474. The analysis of

the above decisions clearly shows that :

(i) Dying declaration can be the sole basis of conviction if it

inspires the full confidence of the Court;

(ii) The Court should be satisfied that the deceased was in a fit

state of mind at the time of making the statement and that it

was not the result of tutoring, prompting or imagination;

(iii) Where the Court is satisfied that the declaration is true and

voluntary, it can base its conviction without any further

corroboration;

(iv) It cannot be laid down as an absolute rule of law that the

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dying declaration cannot form the sole basis of conviction

unless it is corroborated. The rule requiring corroboration is

merely a rule of prudence;

(v) Where dying declaration is suspicious, it should not be acted

upon without corroborative evidence;

(vi) A dying declaration which suffers from infirmity such as the

deceased was unconscious and could never make any

statement cannot form the basis of conviction;

(vii) Merely because a dying declaration does not contain all the

details as to the occurrence, it is not to be rejected;

(viii) Even if it is a brief statement, it is not to be discarded;

(ix) When the eye-witness affirms that the deceased was not in a

fit and conscious state to make the dying declaration,

medical opinion cannot prevail;

(x) If after careful scrutiny, the Court is satisfied that it is true

and free from any effort to induce the deceased to make a

false statement and if it is coherent and consistent, there

shall be no legal impediment to make it basis of conviction,

even if there is no corroboration.

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21. In the case in hand, the learned Additional Sessions Judge

has found the dying declaration (Exh.25) credit worthy and has held

the same to have been made by the deceased in a fit mental state to

depose. The English translation of the relevant portion of the dying

declaration, recorded in Marathi as made by the deceased Lata to

PW-1 is thus:-

“On 1/5/2002 at 11 a.m. while I was at my house, my

husband Tanaji returned by Truck from Mahu, he had
brought burning wood which I and my husband had kept

arranged on the loft. After that my husband Tanaji said to
cook eggs curry, therefore I had cut the onion. At that time,
my husband started abusing me and said that he had at

several times told me to get the share in the land from your

parental property falling to your share, but you are not
getting it transferred in your name therefore I will not leave

you alive. That time I went to Pardi and after a short while
returned to the house at that time my husband again
started abusing me and said again that I will not leave you

alive and immediately poured kerosene from the bottle
lamp on my person and took a match box lying nearby and
lighted one match stick from the box and put the same on
my person therefore my Saree caught fire and my body was
engulfed by big flame. Seeing this he pushed me towards

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Padvi . At that time I shouted and hearing the shouts my
brother-in-law and his wife came running. At that time my

husband poured water and extinguished the fire. Thereafter

my brother-in-law Shivaji, his wife Mangal, my Husband
Tanaji carried me to this Hospital by rickshaw. While
bringing me to the hospital by rickshaw, my husband told

me that I shall tell that I got burns due to flickering flames
of the stove otherwise he will not leave her, her brother and

members from her parental family alive. Therefore I had
told a lie in my earlier dying declaration that I got burns

due to flickering of flames from the stove. The statement I
am giving is genuine and true.”

In our opinion, the dying declaration must be accepted as true

and voluntary in the facts and circumstances of the case.

22. The plea of the accused in his defence that he had carried

Lata by the Truck to the Hospital appears a blatant lie as the evidence

clearly indicated that Lata was taken to the hospital by a rickshaw.

The appellant’s conduct to threaten Lata and cause deliberate delay

for taking her to the Civil Hospital, Satara and his not informing the

mother and brother of Lata of the incident till late in the evening

although the incident occurred in the morning at about 11:00 a.m.,

more so, when there is telephone connection at his house, is further

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incriminatory circumstance furnishing links against the appellant to

make the chain complete against him. The learned trial Judge has

considered the entire evidence in detail to arrive at the only logical

and correct conclusion, in the facts and circumstances of the case.

23. No ground is made out to interfere with the findings of guilt,

recorded by the trial court. In the result, Criminal Appeal is

dismissed.

(D. D. SINHA, J.)

(A. P. BHANGALE, J.)

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