{"id":139971,"date":"2010-10-29T00:00:00","date_gmt":"2010-10-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-tanaji-bajirao-chawan-vs-the-state-of-maharashtra-on-29-october-2010"},"modified":"2018-05-25T13:20:44","modified_gmt":"2018-05-25T07:50:44","slug":"shri-tanaji-bajirao-chawan-vs-the-state-of-maharashtra-on-29-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-tanaji-bajirao-chawan-vs-the-state-of-maharashtra-on-29-october-2010","title":{"rendered":"Shri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Shri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010<\/div>\n
Bench: D.D. Sinha, A.P. Bhangale<\/div>\n
                                        1\n                                                              APEAL-253-05\n\n\n\n\n                                                                         \n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                \n                     CRIMINAL APPELLATE JURISDICTION\n\n\n                      CRIMINAL APPEAL NO.253 OF 2005\n\n\n\n\n                                               \n    Shri Tanaji Bajirao Chawan,        ]\n\n\n\n\n                                      \n    Convict No.C\/2368,                 ]\n    through Kolhapur Central\n                           ig          ]\n    Prison, Kalamba - 416 007.         ]     ..Appellant.\n                                             [Orig.Accused]\n                         \n          Versus\n    The State of Maharashtra,          ]\n    Medha Police Station,              ]\n      \n\n\n    Tq. Jaoli, District - Satara.      ]     ..Respondent.\n   \n\n\n\n                                   .........\n    Mr.D.G. Khamkar, Advocate for the Appellant.\n\n\n\n\n\n    Mrs.A.S. Pai,  A.P.P. for the State.\n                                        .........\n                                             \n                       CORAM :  D. D. SINHA  &  A. P. BHANGALE,  JJ.\n<\/pre>\n
                       DATE OF RESERVING      )   :     22.10.2010\n                       THE JUDGMENT           )\n\n                       DATE OF PRONOUNCING )   :    29.10.2010\n                       THE JUDGMENT           )\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 16:35:34 :::<\/span>\n                                             2<\/span>\n                                                                   APEAL-253-05\n\n\n\n\n                                                                              \n    ORAL JUDGMENT (PER A. P.  BHANGALE , J.) :\n\n\n\n\n                                                      \n<\/pre>\n
    1.      Present   Criminal  Appeal   arose   out   of   judgment   and   order <\/p>\n
    dated   07\/10\/2003   passed   by   learned     VIth   Additional   Sessions <\/p>\n
    Judge,   Satara,   who   found   the   appellant   guilty   of   the   offence <\/p>\n
    punishable under Section 302 of the Indian Penal Code and sentenced <\/p>\n
    him to suffer   rigorous imprisonment for life and to pay fine in the <\/p>\n
    sum of Rs 500\/- in default to suffer further rigorous imprisonment for <\/p>\n
    five months. The appellant was further found guilty of the offence <\/p>\n
    punishable   under   Section   498-A   of   the   Indian   Penal   Code,     the <\/p>\n
    appellant was sentenced to suffer S.I. for  3 years and  to pay fine in <\/p>\n
    the sum of Rs.400\/- in default to  suffer further S. I. for four months .\n<\/p>\n
    The appellant was also found guilty of the offence punishable under <\/p>\n
    Section 504 of IPC and sentenced to suffer R.I. for one year and to <\/p>\n
    pay fine in the sum of Rs.200\/- in default to undergo R. I. for two <\/p>\n
    months.\n<\/p>\n
    2.      The case of the prosecution briefly stated is as under:-\n<\/p>\n
              Sau   Lata   @   Ranjana   Tanaji   Chawan,   resident   of   Kalewadi <\/p>\n
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\n                                                                    APEAL-253-05<\/p>\n
    (Sartale)   Tauka-Jaoli,   District-Satara   (deceased)   was   wife   of   the <\/p>\n
    appellant. They were married on 03\/07\/1994. They had two sons –\n<\/p>\n
    Nitiraj & Rajiv out of the wedlock. The appellant is truck driver by <\/p>\n
    occupation. Lata died at Civil Hospital, Satara due to septicemia due <\/p>\n
    to 76% burns.  Madhukar Pawar (father of  the  deceased) had died <\/p>\n
    about 9 months prior to the date of the incident. It is case of the <\/p>\n
    prosecution that the deceased Lata was ill-treated by the appellant on <\/p>\n
    the ground that she should get transferred her share in her father’s <\/p>\n
    property in his name in respect of the agricultural land belonging to <\/p>\n
    her father but she was not ready because the appellant was addicted <\/p>\n
    to liquor and to satisfy his lust, he was likely to sell the land. As Lata <\/p>\n
    had   refused,   the   appellant   started   harassing   her   by   abusing   and <\/p>\n
    assaulting her. On 01\/05\/2002 at about 11 a.m., the appellant had <\/p>\n
    brought dry wood   and had asked Lata to prepare egg curry. While <\/p>\n
    Lata was cutting onion for that purpose, the appellant started abusing <\/p>\n
    her on the ground that she was not getting her share transferred in <\/p>\n
    his   name.   The   appellant   threatened   to   kill   her   and   abused.   He <\/p>\n
    removed the lid of the bottle containing kerosene and spread it on <\/p>\n
    her person and set her on fire with the help of lighted matchstick, due <\/p>\n
    to which Lata’s saree started burning. The appellant then pushed her <\/p>\n
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    to Padvi of the house.  Lata shouted. The relatives i.e brother of the <\/p>\n
    appellant and his wife, who were nearby, had rushed to the scene.\n<\/p>\n
    The   appellant   had   poured   water   on   the   person   of   Lata   and <\/p>\n
    extinguished the fire. Then the appellant with the help of his brother <\/p>\n
    Shivaji, his wife Mangal had brought Lata to Civil Hospital Satara at <\/p>\n
    about   3.05   p.m.   It   is   case   of   the   prosecution   that   while   Lata   was <\/p>\n
    brought by the rickshaw, the appellant had insisted and influenced <\/p>\n
    Lata to tell falsely that she had caught fire due to flickering of the <\/p>\n
    stove accidentally and threatened her that otherwise he will kill her <\/p>\n
    brother and her mother.\n<\/p>\n
    3.      On 03\/05\/2002 A.S. I.  Narendra Shankar Jagtap  (PW-7) who <\/p>\n
    went  to Civil hospital, Satara  had recorded the statement of Lata at <\/p>\n
    Exh.37   in   presence   of   Dr.Ravindra   Ghongade   (PW-9)   and   had <\/p>\n
    registered the offence as C.R. No.25 of 2002 at Kudal police station.\n<\/p>\n
    During   the   investigation   the   panchnama   regarding   the   scene   of <\/p>\n
    offence was drawn, burnt pieces of clothes and one stove was seized.\n<\/p>\n
    Statement of witnesses were recorded. On 07\/05\/2002 a requisition <\/p>\n
    letter   was   sent   to   Special   Judicial   Magistrate   Sanjay   Anant   Mulik <\/p>\n
    (PW-1) to record dying declaration of Lata, which was recorded on <\/p>\n
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\n                                                                  APEAL-253-05<\/p>\n
    the same day between 10.40 p.m. to 11.40 p.m. by PW-1 in presence <\/p>\n
    of Dr.Anil Shinde (PW-10). Ultimately   Lata   had succumbed to her <\/p>\n
    burn   injuries.   Her   dead   body   was   referred   for   the   postmortem <\/p>\n
    examination and memorandum of postmortem   (Exh.17) was issued.\n<\/p>\n
    In the course of investigation, the glass bottle and a match stick  were <\/p>\n
    recovered at the instance of the accused (appellant).\n<\/p>\n
    4.      Upon completion of investigation, on 22\/08\/2002 the accused <\/p>\n
    was charge sheeted before the learned Judicial Magistrate,  First Class <\/p>\n
    at Medha. On 26\/08\/2002 the case was committed to the Court of <\/p>\n
    Sessions, Satara.\n<\/p>\n
    5.      The   charge   below   Exh.10   was   framed   on   21\/06\/2003.   The <\/p>\n
    appellant\/accused pleaded not guilty and claimed trial. Accordingly <\/p>\n
    plea of the accused was recorded below Exh.11.\n<\/p>\n
    6.      The prosecution examined ten witnesses and closed evidence <\/p>\n
    in the trial Court. The defence evidence of two witnesses was led by <\/p>\n
    the accused.\n<\/p>\n
    7.      We have heard learned advocate for the appellant and learned <\/p>\n
    A.P.P. for the State.\n<\/p>\n
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                                                                        APEAL-253-05<\/p>\n
    8.      The   inquest   panchnama   (Exh.15)   and   post-mortem     notes <\/p>\n
    were admitted  by the defence and  were exhibited.  Medical officer <\/p>\n
    Dr.S. Kasar who had conducted postmortem examination of the dead <\/p>\n
    body   of   the   victim   Lata   (   Exh.17),   found   76%   antemortem   burn <\/p>\n
    injuries and opined that the deceased died due to septicaemia due to <\/p>\n
    76% burns.\n<\/p>\n
    9.      PW-1   Sanjay   Mulik,   a   Special   Judicial   Magistrate   was <\/p>\n
    requisitioned   by   the   police   to     visit   Civil   Hospital,   Satara   and   to <\/p>\n
    record dying declaration. He met Dr. Shinde – Medical officer,   and <\/p>\n
    inquired as to whether Lata was conscious. Medical officer certified <\/p>\n
    that she was conscious and well oriented to give her statement under <\/p>\n
    the endorsement Exh.24. Then PW-1 proceeded to record the dying <\/p>\n
    declaration   (Exh.25),   put   her   some   questions     and     after   answers <\/p>\n
    assessing her fitness, recorded dying declaration as per her version.\n<\/p>\n
    After the statement was read over to her she had affixed her signature <\/p>\n
    below the statement. PW-1 also affixed his signature (vide Exh.25).\n<\/p>\n
    Lata   emphasized  that   her   first   dying  declaration   was  given   due   to <\/p>\n
    threat   given   by   her   husband   Tanaji   who   had   carried   her   by   the <\/p>\n
    rickshaw and who insisted upon her to state falsely that she received <\/p>\n
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\n                                                                       APEAL-253-05<\/p>\n
    burns accidentally due to flickering of the flames of the stove and had <\/p>\n
    threatened her that otherwise he will kill  her brother and others from <\/p>\n
    her   parental   family.   According   to   her,   her   husband   had   brought <\/p>\n
    domestic firewood   which was kept arranged on the loft inside the <\/p>\n
    house. Then her husband asked her to prepare eggs-curry. She had <\/p>\n
    cut   the   onion   for   that   purpose.   At   that   time   her   husband   started <\/p>\n
    abusing her for her failure despite telling her repeatedly to get the <\/p>\n
    land of her share from her father’s property transferred to her name.\n<\/p>\n
    Her   husband   threatened   to   kill   her   and   abused   her.   He   poured <\/p>\n
    kerosene upon her from the bottle-lamp and lighted a matchstick and <\/p>\n
    set her on fire. Her  Saree  caught fire and soon her body was   up in <\/p>\n
    flames. Her husband pushed her to the side of Padvi in the house. She <\/p>\n
    shouted, which attracted the attention of her brother-in-law Shivaji <\/p>\n
    and his wife Mangal who came rushing. At that time her husband <\/p>\n
    poured   water   upon   her   person   and   extinguished   the   fire.   Shivaji, <\/p>\n
    Mangal and her husband (appellant) had carried her to the hospital.\n<\/p>\n
    10.      At  the  hearing  of the  appeal,  the learned Advocate  for the <\/p>\n
    appellant assailed the findings recorded by the trial Court which in <\/p>\n
    this case are based on the two documents Exh.25 and Exh.37 (which <\/p>\n
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\n                                                                        APEAL-253-05<\/p>\n
    incidentally has been treated by the investigating authorities as the <\/p>\n
    F.I.R) as against the very first statement of the deceased Lata at Exh.\n<\/p>\n
    51 as deposed by DW-1 & DW-2 recorded earlier on 1\/5\/2002 and <\/p>\n
    the   second  statement   or   dying  declaration   which   was  recorded   on <\/p>\n
    3\/5\/2002  and which is  at Exh. 37. The first head of attack proceeds <\/p>\n
    on the footing that these documents (Exh.25 and Exh.37) essentially <\/p>\n
    contradict   with   the   earlier   document   Exh.51.   What   the   learned <\/p>\n
    Advocate emphasizes is that at the earliest point of time, deceased <\/p>\n
    Lata has stated that she had received burns as a result of accident due <\/p>\n
    to   flickering   of   the   flames   of   the   stove.   Two   days   later   she   has <\/p>\n
    virtually altered the version to the extent that she has stated that her <\/p>\n
    husband poured kerosene on her person and set her on fire.\n<\/p>\n
    11.       The learned Advocate submitted that in a case where there <\/p>\n
    are only very minor variations that a Court may either reconcile them <\/p>\n
    or may also overlook them provided it does not essentially affect or <\/p>\n
    alter the main thrust of the accusations. He submitted that in this case <\/p>\n
    the deceased  Lata has swung from the first and earliest  theory of the <\/p>\n
    accident to homicide and with such grave and material accusations <\/p>\n
    against her husband that no Court can rely on either of the dying <\/p>\n
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\n                                                                         APEAL-253-05<\/p>\n
    declarations. Learned Advocate invited our attention to the  following <\/p>\n
    rulings :-\n<\/p>\n
           i)       Smt Kamla Vs. State of Punjab  \n                    [ 1993 Cri. L J. 68(SC) ]\n\n           ii)      Kishan Lal Sethi  Vs. Jagan Nath & another \n\n\n\n\n                                                           \n                    [ AIR 1990 SC 1357]\n\n<\/pre>\n
           iii)  Mohanlal Gangaram  Gehani Vs. State of Maharashtra  <\/p>\n
                   [ 1982 SCC  (Cri) 334 ]<\/p>\n
    12.<\/p>\n
                 We   do   not   need  to  mention   the   settled   proposition   that   if <\/p>\n
    there   are   multiple   dying   declarations   and   the   deceased   has   given <\/p>\n
    different versions at different times, then a Court will be left with no <\/p>\n
    option   except   to   hold   that   it   is   unsafe   to   rely   upon   any   of   the <\/p>\n
    particular statement to the exclusion of the others.\n<\/p>\n
    13.         The   learned   Advocate   therefore   submitted   that   in   a   case <\/p>\n
    where   it   is   not   possible   to   reconcile   the   diametrically   opposing <\/p>\n
    versions   then   it   would   be   totally   unsafe   for   the   Court   to   base   a <\/p>\n
    conviction purely on incriminating material. On the other hand, the <\/p>\n
    learned Additional Public Prosecutor   submitted that if a particular <\/p>\n
    statement, be it the version at the earliest point of time or the one <\/p>\n
    which emerges later when the deponent was in a better position to <\/p>\n
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\n                                                                        APEAL-253-05<\/p>\n
    tell the truth, which inspires the  judicial mind and confidence of the <\/p>\n
    Court, then it is certainly open for the Court to accept that part of the <\/p>\n
    evidence   to   the   exclusion   of   the   other   given   under   the   undue <\/p>\n
    influence, coercion or threat from the husband. What Learned A.P.P.\n<\/p>\n
    states that undoubtedly at the earliest point of time Lata indicated <\/p>\n
    that her Saree caught fire due to flickering of the flames of the stove.\n<\/p>\n
    But, the learned APP states that it is one of the rare and unusual cases <\/p>\n
    in   which   at   a   later   point   of   time   the   deponent   has   very   clearly <\/p>\n
    explained and indicated why she had put forward something other <\/p>\n
    than the truth at an earlier stage. The learned A.P.P. submits that the <\/p>\n
    explanation   ought   to   be   accepted   as   quite   plausible   so   that   the <\/p>\n
    subsequent dying declaration must really be treated as voluntary, true <\/p>\n
    and   acceptable   in   the   light   of   circumstances   under   which   earliest <\/p>\n
    statement was made.\n<\/p>\n
    14.       Deceased Lata  has clearly  pointed out the reasons why she <\/p>\n
    could not tell the truth in her first   statement which was recorded <\/p>\n
    earlier. It is this submission for which there is supportive evidence in <\/p>\n
    this   case   from   the   oral   evidence   of   the   prosecution   witnesses, <\/p>\n
    particularly,     PW-3   Suman   and   PW-5   Murlidhar,     PW-7   A.S.I.\n<\/p>\n
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                                                                           APEAL-253-05<\/p>\n
    Narendra, PW-9 Dr Ravindra,   and PW-10 Dr Anil Shinde.   All these <\/p>\n
    witnesses  have  supported  the  view  that   Exh.25   which  is  the  dying <\/p>\n
    declaration recorded on 07\/5\/2002 is in fact a reliable document, as <\/p>\n
    true and voluntary.\n<\/p>\n
    15.       We may mention in brief that  PW-3 Suman Pawar (mother of <\/p>\n
    Lata),   PW-6 Hemant Pawar (brother of Lata), and PW-5 Murlidhar <\/p>\n
    Pawar (uncle of Lata) are quite categorical about the generality of the <\/p>\n
    accusations   and   in   particular   Lata’s   charge   that   she   was   being   ill-\n<\/p>\n
    treated   by   her   husband  for   purposes   of   extorting   her   share   in   her <\/p>\n
    father’s (ancestral) property. The evidence even indicates that accused <\/p>\n
    had gone to the extent of telling the deceased that the purpose of <\/p>\n
    getting   rid   of   her   was   her   failure   to   get   the   share   in   her   father’s <\/p>\n
    property in   the name of the appellant. The learned A.P.P. submitted <\/p>\n
    that this evidence has got to be looked at in the light of Lata’s candid <\/p>\n
    explanation   that   she   was   threatened   by   the   accused   that   if   she <\/p>\n
    implicated him in the incident of burning, he would kill her brother <\/p>\n
    and others and this was the reason why she was compelled under the <\/p>\n
    circumstances   to put  forward  the  accident   theory.    The  submission <\/p>\n
    proceeded   on   the   line   that   the   explanation   by   Lata   ought   to   be <\/p>\n
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    considered as a valid and correct one, and   reliable to the effect of <\/p>\n
    nullifying the earlier version  (Exh.51)  put forward by her under the <\/p>\n
    threat and undue influence of her husband for upholding the truth <\/p>\n
    which appears mentioned in Exh.37 and Exh.25.\n<\/p>\n
    16.       We have very carefully assessed the evidence of PW-3 Suman <\/p>\n
    Pawar,   PW-5   Murlidhar   Pawar     and   PW-6   Hemant   Pawar.     PW-3 <\/p>\n
    Suman’s evidence does support the view that deceased-Lata was ill <\/p>\n
    treated constantly since two years prior to the incident. The accused <\/p>\n
    was   insisting   upon   Lata     to   get   her   share   in   her   ancestral   land <\/p>\n
    transferred in her name, he used to assault her and that Lata told her <\/p>\n
    about   the   ill-treatment   when   Lata   had   come   to   her   house.   The <\/p>\n
    accused   used   to   create   disputes   under   the   influence   of   liquor   and <\/p>\n
    hence relatives were not giving any land to him. PW-3 Suman went to <\/p>\n
    the hospital with her son at about 10.30 p.m., when the accused was <\/p>\n
    present. In his presence, Lata was not prepared to disclose anything <\/p>\n
    as   to   how   she   was   burnt.   But   Lata   told   her   mother   that   she   will <\/p>\n
    disclose after 2   days. Later on next day itself, Lata disclosed to her <\/p>\n
    mother that her husband Tanaji sprinkled kerosene on her person and <\/p>\n
    set her on fire since she did not ask for share in her father’s estate.\n<\/p>\n
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                                                                     APEAL-253-05<\/p>\n
    Lata also disclosed to her mother that the accused, his brother and his <\/p>\n
    wife had brought her to the hospital and the accused had threatened <\/p>\n
    her in the rickshaw that she shall not disclose that the accused had <\/p>\n
    set her on fire, otherwise he will kill her. Her husband thus wanted <\/p>\n
    Lata to disclose that she got burnt   accidentally due to flickering of <\/p>\n
    the flames of the stove. Thus the fact which is established is that Lata <\/p>\n
    had received ill-treatment at the hands of the accused and lastly the <\/p>\n
    fact that the deceased Lata was pressurized into putting forward an <\/p>\n
    incorrect version of the incident at the earliest point of time due to <\/p>\n
    fear from her husband. This, in our view, is reinforced by the evidence <\/p>\n
    of PW-5 Murlidhar (who is uncle of Lata). He deposed that he had <\/p>\n
    received   a   telephone   message   at   about   8.30   p.m.   on   1\/5\/2002   at <\/p>\n
    Mumbai from the neighbourer that Lata was burnt and admitted in <\/p>\n
    hospital at Satara. He returned to the native place and then went to <\/p>\n
    the Civil Hospital at Satara. PW-5 inquired as to how Lata was burnt <\/p>\n
    and she disclosed that her husband had sprinkled kerosene upon her <\/p>\n
    and set her on fire with the help of match-stick. She also disclosed <\/p>\n
    about the fact that her husband had insisted that she should say that <\/p>\n
    she was burnt by flickering of the stove otherwise her relatives would <\/p>\n
    be finished off.\n<\/p>\n
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                                                                        APEAL-253-05<\/p>\n
    17.       PW-6 Hemant Pawar (brother of the deceased) also deposed <\/p>\n
    that Lata was telling him that she was harassed by the accused who <\/p>\n
    insisted upon her to demand share in the property of her father  and <\/p>\n
    used to assault her . The accused-Tanaji had also visited the house of <\/p>\n
    Hemant to demand share of   Lata (his wife) which the witness says <\/p>\n
    that he assured the accused that it will be given, if he treat his sister <\/p>\n
    properly.\n<\/p>\n
    18.<\/p>\n
              PWs-3 & 5 had  visited the hospital and  had occasion to talk <\/p>\n
    to the deceased Lata. Unless the deceased had in fact told them about <\/p>\n
    the harassment and the subsequent incident of setting her on fire by <\/p>\n
    accused, it is most unlikely that they would fabricate the false story <\/p>\n
    against the accused with whom they had neither any kind of adverse <\/p>\n
    relationship nor any axe to grind. If the accused was not in any way <\/p>\n
    responsible for the death of Lata, it would be difficult to understand <\/p>\n
    as to why there would be any need for him to threaten her while he <\/p>\n
    had   carried   her   by   the   rickshaw.   Lata   being   a   simple,   an   least <\/p>\n
    educated girl could not come up the factual story of the incident, due <\/p>\n
    to fear and pressure of her husband. However, as soon as she got the <\/p>\n
    first   opportunity   she   had   disclosed   the   factual   incident.   In   totality, <\/p>\n
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    therefore,   there   is   a   perfectly   plausible   and  acceptable   explanation <\/p>\n
    coming from the victim herself, well supported by other evidence on <\/p>\n
    record which is self explanatory to clear off the divergence between <\/p>\n
    the two  different versions in dying declarations.\n<\/p>\n
    19.       In   the   reported   cases   cited   by   learned   Advocate   for   the <\/p>\n
    appellant, there was no such explanation on record and there was no <\/p>\n
    material evidence to support such an explanation. This is an unusual <\/p>\n
    case, but, it also furnishes a novel angle of the law in so far as it leads <\/p>\n
    us   to   a   conclusion   that   where   there   are   two   divergent   versions   in <\/p>\n
    statements   by   the   deceased   which   are   capable   of   being   fully   and <\/p>\n
    totally   reconciled,   then   the   Court   need   not   reject   them   merely <\/p>\n
    because prima facie they appear different. The position that emerges <\/p>\n
    is, therefore, that the Court will have to momentarily put itself into <\/p>\n
    the   shoes   of   the   deceased   and   if   this   is   done,   the   whole   picture <\/p>\n
    becomes clear. The deceased, after sustaining the burns was taken to <\/p>\n
    the hospital by the accused by rickshaw. He had threatened  Lata with <\/p>\n
    dire consequences to her and her brother and if she implicates the <\/p>\n
    accused in the act of   burning and she, therefore, was compelled to <\/p>\n
    make her initial statement in this background to DW-2 Dr.Smeeta and <\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 16:35:35 :::<\/span>
\n                                                16<\/span>
\n                                                                         APEAL-253-05<\/p>\n
    to DW-1 Chitrasain. The learned Trial Judge was, therefore, justified <\/p>\n
    in his view to record conviction on the basis of the documents Exh.25 <\/p>\n
    and   Exh.37.   They   can   validly   form   the   basis   of   a   conviction <\/p>\n
    considering the evidence  as to why and how the first statement (Exh.\n<\/p>\n
    51) was made.\n<\/p>\n
    20.      In   three   Judge   Bench   decision   of   the   Supreme   Court   in <\/p>\n
    Panneerselvam Vs. State of Tamil Nadu, (2008) 17 SCC 190  and <\/p>\n
    also the principles governing the dying declaration are summed up in <\/p>\n
    Paniben Vs. State of Gujarat , (1992) 2 SCC 474.   The analysis of <\/p>\n
    the above decisions clearly shows that :\n<\/p>\n
    (i)    Dying   declaration   can   be   the   sole   basis   of   conviction   if   it <\/p>\n
           inspires the full confidence of the Court;\n<\/p>\n
    (ii)   The Court should be satisfied that the deceased was in a fit <\/p>\n
           state of mind at the time of making the statement and that it <\/p>\n
           was not the result of tutoring, prompting or imagination;\n<\/p>\n
    (iii) Where the Court is satisfied that the declaration is true and <\/p>\n
           voluntary,   it   can   base   its   conviction   without   any   further <\/p>\n
           corroboration;\n<\/p>\n
    (iv) It cannot be laid down as an absolute rule of law that the <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:35:35 :::<\/span>
\n                                               17<\/span>
\n                                                                       APEAL-253-05<\/p>\n
          dying   declaration   cannot   form  the  sole   basis   of  conviction <\/p>\n
          unless it is corroborated. The rule requiring corroboration is <\/p>\n
          merely a rule of prudence;\n<\/p>\n
    (v)   Where dying declaration is suspicious, it should not be acted <\/p>\n
          upon without corroborative evidence;\n<\/p>\n
    (vi) A dying declaration which suffers from infirmity such as the <\/p>\n
          deceased   was   unconscious   and   could   never   make   any <\/p>\n
          statement cannot form the basis of conviction;\n<\/p>\n
    (vii) Merely because a dying declaration does not contain all the <\/p>\n
          details as to the occurrence, it is not to be rejected;\n<\/p>\n
    (viii) Even if it is a brief statement, it is not to be discarded;\n<\/p>\n
    (ix) When the eye-witness affirms that the deceased was not in a <\/p>\n
          fit   and   conscious   state   to   make   the   dying   declaration, <\/p>\n
          medical opinion cannot prevail;\n<\/p>\n
    (x)   If after careful scrutiny, the Court is satisfied that it is true <\/p>\n
          and free from any effort to induce the deceased to make a <\/p>\n
          false   statement   and   if   it   is   coherent   and   consistent,   there <\/p>\n
          shall be no legal impediment to make it basis of conviction, <\/p>\n
          even if there is no corroboration.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:35:35 :::<\/span>
\n                                              18<\/span><\/p>\n
                                                                      APEAL-253-05<\/p>\n
    21.       In the case in hand, the  learned Additional Sessions Judge <\/p>\n
    has found the dying declaration (Exh.25) credit worthy and has held <\/p>\n
    the same to have been made by the deceased in a fit mental state to <\/p>\n
    depose. The English translation of the relevant portion of the dying <\/p>\n
    declaration, recorded in Marathi as made by the deceased Lata   to <\/p>\n
    PW-1 is thus:-\n<\/p>\n
            “On   1\/5\/2002   at   11   a.m.   while   I  was  at   my  house,   my <\/p>\n
          husband   Tanaji   returned   by   Truck   from   Mahu,   he   had
\n          brought burning wood which I and my husband had kept <\/p>\n
          arranged on the loft. After that my husband Tanaji said to
\n          cook eggs curry, therefore I had cut the onion.  At that time,
\n          my   husband  started   abusing   me   and  said   that   he   had  at <\/p>\n
          several times told  me to get the share in the land from your <\/p>\n
          parental   property   falling   to   your   share,   but   you   are   not
\n          getting it transferred in your name therefore I will not leave <\/p>\n
          you alive. That time I went to Pardi and after a short while
\n          returned   to   the   house   at   that   time   my   husband   again
\n          started abusing me  and said again that I will not leave you <\/p>\n
          alive   and   immediately   poured   kerosene   from   the   bottle
\n          lamp on my person and took a match box lying nearby and
\n          lighted one match stick from the box and put the same on
\n          my person therefore my Saree caught fire  and my body was
\n          engulfed by   big flame. Seeing this he pushed me towards <\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:35 :::<\/span>
\n                                             19<\/span>
\n                                                                    APEAL-253-05<\/p>\n
          Padvi . At that time I shouted and hearing the shouts my
\n          brother-in-law and his wife came running. At that time my <\/p>\n
          husband poured water and extinguished the fire. Thereafter <\/p>\n
          my   brother-in-law   Shivaji,   his   wife   Mangal,   my   Husband
\n          Tanaji   carried   me   to   this   Hospital   by   rickshaw.   While
\n          bringing me to the hospital by rickshaw, my husband told <\/p>\n
          me that I shall tell that I got burns due to flickering flames
\n          of the stove otherwise he will not leave her, her brother and <\/p>\n
          members   from   her   parental   family   alive.   Therefore   I   had
\n          told a lie in my earlier dying declaration that I got burns <\/p>\n
          due to flickering of flames from the stove. The statement I
\n          am giving is genuine and true.”<\/p><\/blockquote>\n
             In our opinion, the dying declaration must be accepted as true <\/p>\n
    and voluntary in the facts and circumstances of the case.\n<\/p>\n
    22.      The plea of the accused in his defence that he had carried <\/p>\n
    Lata by the Truck to the Hospital appears a blatant lie as the evidence <\/p>\n
    clearly indicated that Lata was taken to the hospital by a rickshaw.\n<\/p>\n
    The appellant’s conduct to threaten Lata and cause deliberate delay <\/p>\n
    for taking her to the Civil Hospital, Satara and his not informing the <\/p>\n
    mother and  brother of Lata of the  incident  till  late  in  the  evening <\/p>\n
    although  the incident occurred in the morning at about 11:00 a.m., <\/p>\n
    more so, when there is telephone connection at his house, is further <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 16:35:35 :::<\/span>
\n                                             20<\/span>
\n                                                                      APEAL-253-05<\/p>\n
    incriminatory circumstance furnishing links against the appellant to <\/p>\n
    make the chain  complete against him.  The learned  trial Judge  has <\/p>\n
    considered the entire evidence in detail to arrive at the only logical <\/p>\n
    and correct conclusion, in the facts and circumstances of the case.\n<\/p>\n
    23.      No ground is made out to interfere with the findings of guilt, <\/p>\n
    recorded   by   the   trial   court.   In   the   result,   Criminal   Appeal   is <\/p>\n
    dismissed.\n<\/p>\n
                                                           (D. D. SINHA, J.)<\/p>\n
                                                          (A. P. BHANGALE, J.)<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 16:35:35 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Shri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010 Bench: D.D. Sinha, A.P. Bhangale 1 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 – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-139971","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nShri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-tanaji-bajirao-chawan-vs-the-state-of-maharashtra-on-29-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Tanaji Bajirao Chawan vs The State Of Maharashtra on 29 October, 2010 - 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