{"id":160823,"date":"2009-11-03T00:00:00","date_gmt":"2009-11-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/2-maruti-vs-unknown-on-3-november-2009"},"modified":"2018-02-11T05:28:32","modified_gmt":"2018-02-10T23:58:32","slug":"2-maruti-vs-unknown-on-3-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/2-maruti-vs-unknown-on-3-november-2009","title":{"rendered":"2 Maruti vs Unknown on 3 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
2 Maruti vs Unknown on 3 November, 2009<\/div>\n
Bench: P.V. Hardas, A.V. Nirgude<\/div>\n
                                 1         Cri. Appeal No. 213\/2007.\n\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n                      BENCH AT AURANGABAD.\n\n\n\n\n                                                                    \n               CRIMINAL APPEAL NO.213 OF 2007\n\n\n\n\n                                            \n       1    Laxmibai   W\/o   Maruti   Satpute, \n            Age   65   years,Occup.Household, \n            R\/o  Supa,  Ta.  Parner   District \n            Ahmednagar\n\n\n\n\n                                           \n       2    Maruti   S\/o   Sitaram   Satpute, \n            Age   69   years,   Occup. \n            Agriculture, R\/o as above.\n       3    Arun S\/o Maruti Satpute,Age 32                 Appellants\n\n\n\n\n                                 \n            years,Occupation   Agriculture,               Ori.Accused \n            R\/o as above. \n                     ig                                   Nos.1 to 3.\n\n\n                       V E R S U S\n                   \n            The State of Maharashtra                       Respondent\n\n           \n             Smt.S.S.Jadhav,Advocate for appellants\n      \n\n             Mr. V.D.Godbharle, Assistant Public Prosecutor \n             for respondent.\n   \n\n\n\n                           ...\n                            CORAM  : P.V. HARDAS AND\n                                     A.V. NIRGUDE, JJ.\n<\/pre>\n
                                 DATE   : 3rd NOVEMBER, 2009<\/p>\n
     ORAL JUDGEMENT : (PER : A.V.NIRGUDE, J.)<\/p>\n
     1]    The   appellants   are   challenging   the   judgment <\/p>\n
     and order passed by the learned Adhoc Additional
\n     Sessions   Judge-2   Ahmednagar,   (henceforth   be
\n     referred   as   the   ld.   judge)   in   Sessions   Case   No.
\n     50 of 2006. The learned Judge, convicted all the
\n     appellants of the offence under section 498A read
\n     with   section   34   of   the   Indian   Penal   Code   and
\n     further convicted the appellant Nos. 1 and 2 for <\/p>\n
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\n                                   2         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     the offence   under section 302 read with section
\n     34 of the Indian Penal Code also.\n<\/p>\n
     2]     The   appellant   Nos.1   and   2   are   husband   and <\/p>\n
     wife and happened to be the parent-in-laws of the
\n     deceased Sangita,   the wife of acquitted accused
\n     namely   Rajendra.   The   appellant   No.3   is   another <\/p>\n
     son of the appellant Nos.1 and 2.\n<\/p>\n
     3]       The   facts   of   the   prosecution   in   nutshell <\/p>\n
     are as follows:\n<\/p>\n
            The deceased Sangita got married to accused <\/p>\n
     Rajendra   in   the   year   1995.     Initially,   this
\n     couple   resided   with   the   joint   family.   But,
\n     thereafter, the couple started living separately, <\/p>\n
     in   their   new   house.   The   appellant   Nos   1   and   2, <\/p>\n
     the parent-in-laws   of the deceased Sangita were
\n     staying   separately.   The   distance   between   two
\n     houses was about 2 K.M.  The relation between the <\/p>\n
     deceased Sangita and her husband Rajendra on one
\n     hand and appellant Nos. 1 and 2 were so strained,
\n     that they were not on talking terms.\n<\/p>\n
     4]   On   20thDecember,   2005,   the   deceased   Sangita
\n     was admitted in Khamkar’s Hospital at about 7.45
\n     P.M.   with   burn   injuries.     She   was   immediately
\n     shifted   to   Civil   Hospital   Ahmednagar,   by   her
\n     husband   accused   Rajendra.   At   the   time   of
\n     admission,   the   deceased   Sangita   was   not   in   a <\/p>\n
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\n                                  3         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     position   to   make   any   statement   as   she   had
\n     suffered   98%   burn   injuries.     On   21st  December, <\/p>\n
     2009,   the   Executive   Magistrate   recorded   her
\n     statement   at   about   3.00   P.M.   In   this   statement <\/p>\n
     she   alleged   that   at   about   8.00   P.M.,   on   the
\n     previous   night,   while   her   husband   Rajendra   was
\n     intoxicated condition, her brother-in-law and her <\/p>\n
     parent-in-laws   came   to   her   house,   picked-up
\n     quarrel and then set her on fire.   On the basis
\n     of this statement, Crime No. 283 of 2005 came to <\/p>\n
     be   recorded   at   Parner   Police   Station   for   the <\/p>\n
     offence   punishable   under   sections   498-A   and   307
\n     read   with   section   34   of   the   Indian   Penal   Code.\n<\/p>\n
     The   appellants   and   other   accused   were   arrested.
\n     On 22nd  December, 2005 at about 6.45 A.M. Sangita
\n     succumbed to the injuries, so Section 302 of the <\/p>\n
     Indian   Penal   Code   was   added   to   the   charge.   The <\/p>\n
     police   completed   the   investigation   and   submitted
\n     the   charge-sheet   against   the   accused\/appellants.
\n     Eventually,   the   case   was   committed   to   the   Court <\/p>\n
     of Sessions as Sessions case No. 50 of 2006. The
\n     prosecution   examined   in   all   09   (nine)   witnesses
\n     to   prove   their   case,   whereas   three   witnesses
\n     namely   Reshma,   Dr.   Khamkar   and     Snehal,   the <\/p>\n
     daughter   of   deceased   Sangita,   a   Child   witness,
\n     were   examined   as   court   witnesses.   After   perusal
\n     of the record and after hearing the ld. advocates
\n     following points arise for our consideration :-
\n       1   Whether   dying   declaration   Exh.44   is
\n           properly proved by the prosecution as
\n           to   use   it   as   ‘substantive’   evidence?\n<\/p>\n
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\n                                  4          Cri. Appeal No. 213\/2007.<\/span><\/p>\n
           Assuming   it   is   so   proved   can   it   be
\n           believed for the purpose of convicting
\n           the   appellant   Nos   1   and   2   for   the <\/p>\n
           offence   punishable   under   section   302
\n           read   with   section   34   of   the   Indian <\/p>\n
           Penal Code.?\n<\/p>\n
       2   Whether   testimony   of   “child   witness
\n           Snehal” is worthy of reliance ?\n<\/p>\n
       3   Whether   the   prosecution   proved   that,
\n           the   appellants   treated   deceased
\n           Sangita   with   cruelty   with   view   to <\/p>\n
           demand dowry ?\n<\/p>\n
     5]<\/p>\n
          Before   we   discuss   the   propriety   and
\n     trustworthiness     of   the   dying   declaration,   we <\/p>\n
     must   make   it   clear   that   admittedly,   deceased
\n     Sangita   sustained   burn   injuries   at   about   8.00
\n     P.M.   on   20th  December,2009,   while   she   was   in   her <\/p>\n
     house.   Besides,   Sangita’s   dying   declaration   and <\/p>\n
     the deposition of the Child witness-Snehal there
\n     is   one   more   deposition   on   record   to   throw   light
\n     on this ghastly incident.   This deposition is of <\/p>\n
     Sangita’s neighbour,  one Smt. Shaikh Reshma,  who
\n     was   examined   as   Court   witness.   She   said   in   the
\n     deposition   that   at   the   time   of   the   incident,   on <\/p>\n
     hearing shouts, she came out of the house and saw
\n     that accused Rajendra and   Sangita were going to
\n     the   Hospital.     She   further   stated   that   she   did
\n     not have any talk with them, and she did not know
\n     what had  happened on  that day, and  what was the
\n     quarrel between them or that she did not know how
\n     Sangita        sustained        burn       injuries.                 She <\/p>\n
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\n                                   5         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     categorically   admitted   that   she   did   not   see   the
\n     incident.   It is thus clear from this deposition <\/p>\n
     that immediately  after  the incident this  witness
\n     saw only accused Rajendra, in or about the scene <\/p>\n
     of  the incidence, the house of the  couple.   She
\n     did   not   see   the   appellants   there.   There   is   no
\n     other deposition on record on this point, beside, <\/p>\n
     as   said   above   the   dying   declaration   of   sangita
\n     and deposition of her daughter  Snehal.\n<\/p>\n
     6]     The   other   material   circumstance   as   said <\/p>\n
     above is the dying declaration of Sangita. P.W.5-
\n     Sharad   Atmaram   Mandlik,   Naib   Tahsildar,   who <\/p>\n
     recorded   the   dying   declaration   on   21st  December,
\n     2005   gave   graphic   details   as   to   how   he   went   to
\n     the Civil Hospital on that day, how he eventually <\/p>\n
     reached   near   deceased   Sangita   in   the   company   of <\/p>\n
     the   Medical   Officer   on   duty   and   how   he   obtained
\n     the Medical Officer’s certificate about Sangita’s
\n     position   to   give   statement.     He   categorically <\/p>\n
     stated   that,   after   asking   all   relatives   of
\n     deceased   Sangita   to   leave   the   room,   he   recorded
\n     the   statement   of   sangita.   He   said,   he   asked
\n     Sangita   about   the   incident.   He   said,   he   asked <\/p>\n
     questions as per a formate for recording a dying
\n     declaration.   He   then   said,   deceased   Sangita
\n     answered his question and he noted them as dying
\n     declaration   as   per   her   narration.     He   also
\n     stated,   the   dying   declaration   was   read   over   to
\n     sangita   and   she   admitted   it   be   correct.   He <\/p>\n
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\n                                  6         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     further   stated,     after   recording   of   the   dying
\n     declaration   he   again   asked   the   duty   Medical <\/p>\n
     Officer   to   certify   about   fitness   of   Sangita   for
\n     giving the statement.  He then produced the dying <\/p>\n
     declaration   on   record.     The   learned   Judge   then
\n     exhibited it as Exh.44. There is one more witness
\n     for   dying   declaration.     It   is   P.W.8   Dr.   Sanjay <\/p>\n
     Pathare. He said that on 21st December,2005 he was
\n     assigned Causal Duty as C.M.O. and that   on that
\n     day,   P.W.5-   Sharad   Mandlik   came   to   him   for <\/p>\n
     recording   dying   declaration   of   the   deceased <\/p>\n
     Sangita,   who   was   admitted   in   ‘burn   ward’.  He
\n     said,   he   then     accompanied   P.W.5   to   the   ‘burn <\/p>\n
     ward’.  He said the patient was conscious and was
\n     speaking   properly.     He   also   said   that   he   issued
\n     such certificate. He further added that when the <\/p>\n
     statement   was   being   recorded,   he   was   present   by <\/p>\n
     the side of the patient. He said, after recording
\n     of   the   statement,   he   again   certified   that   the
\n     patient was conscious and oriented.  The question <\/p>\n
     is   whether   the   depositions   of   P.W.5   Sharad   and
\n     P.W.8   Dr.   Sanjay   Pathare     are   sufficient   to
\n     exhibit   the   dying   declaration   at   Exh.44?   The
\n     answer   to   this   question   is   in   the   negative.   As <\/p>\n
     noticed   earlier,   none   of   these   witnesses   stated
\n     as   to   how   the   incident   had   occurred   as   per
\n     narration   of   Sangita.     They   did   not   utter   a
\n     single word as to what Sangita told them, how she
\n     described   the   incident;   who   were   the   offenders,
\n     who   had   poured   the   kerosene   on   her   person,   who <\/p>\n
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\n                                  7         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     had   set   on   her   fire   and   in   what   matter.   Both
\n     these witnesses are silent about these important <\/p>\n
     aspects and proof of Sangita’s dying declaration.\n<\/p>\n
     7]   The question as to how a dying declaration is
\n     proved before the court is discussed in a recent
\n     judgment of Our High Court in the case Deorao S\/o <\/p>\n
     Sonbaji   Bhalerao   and   another   Vs.   State   of
\n     Maharashtra reported in   2008 ALL MR (Cri.) 1921.\n<\/p>\n
     The facts and situation in the reported case was
\n     almost similar.  It was similar urged before that <\/p>\n
     court   that   the   dying   declaration   was   proved   and
\n     it was not necessary for the witnesses to depose <\/p>\n
     exact   word   spoken   by   the   declarator\/deceased
\n     uttered about the persons who poured kerosene on
\n     her person and set her on fire, because there was <\/p>\n
     presumption of genuineness attached to such dying <\/p>\n
     declaration   as   per   section   80   of   the   Evidence
\n     Act,   it   being   a   record   of   evidence   given   by   a
\n     witness   to   a   Magistrate   authorised   by   Law.     The <\/p>\n
     Division   Bench   of   our   High   Court   then   discussed
\n     the law on this subject, laid down by the various
\n     judgments.     The   Division   Bench   high-lighted   the
\n     law   which   required   proper   proof   for   dying <\/p>\n
     declaration. It said there are three reasons for
\n     not   admitting   the   statement   without   proof   under
\n     section 80 of the Evidence Act. They are (i) the
\n     Magistrate   who   recorded   such   statement   was   not
\n     committing     Magistrate,(ii)   the   accused   was   not
\n     present   when   such   statement   was   recorded   and <\/p>\n
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\n                                      8           Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     (iii)   accused   had   no   liberty   of   cross-examining
\n     the   dead   person   who   made   statement.   After <\/p>\n
     considering other judgments on these points,  the
\n     Division Bench of Our High Court held thus:\n<\/p>\n
      19   The   question     which   arises   for   our
\n           consideration   is   whether   a   dying  <\/p>\n
           declaration   is   admissible   without
\n           proof, under section 80 of the Evidence
\n           Act?   It   would   be   useful   to   reproduce
\n           the said provision.\n<\/p>\n
           ” S. 80 Presumption as to documents produced as record of
\n           evidence:-\n<\/p>\n
           Whenever any document is produced before any Court,<\/p>\n
           purporting to be a record or memorandum of the evidence,
\n           or of any part of the evidence, given by a witness in a
\n           judicial proceeding or before any officer authorized by law<\/p>\n
           to take such evidence, or to be a statement or confession by
\n           any prisoner or accused person, taken in accordance with
\n           law, and purporting to be signed by any Judge or Magistrate,
\n           or by any such officer as aforesaid, the Court shall presume-\n<\/p>\n
           that the document is genuine: that any statements as to the
\n           circumstances under which it was taken, purporting to be<\/p>\n
           made by the person signing it, are true, and that such
\n           evidence, statement or confession was duly taken.\n<\/p>\n
           Since   there   are   a   number   of   ‘and’   and  <\/p>\n
           ‘or’   in   order   to   avoid   any   ambiguity,
\n           this Section can be separated in three
\n           parts   to   arrive   at   a   plain
\n           interpretation. S.80 applied to –
\n           (1)   any   document   produced   before   any
\n           Court,   purporting   to   be  record   of <\/p>\n
           memoranda of evidence or of any part of
\n           the   evidence   given   by   a   witness   in   a
\n           judicial proceedings,or\n<\/p>\n
           (ii)   to   a   document   purporting   to   be   a
\n           record   or   memo   of   evidence   given   by   a
\n           witness   before   any   officer   authorised
\n           to take such evidence, or\n<\/p>\n
           (iii)   to   a   statement   or   confession   by
\n           any prisoner or accused person taken in
\n           accordance     with   law     and     purporting  <\/p>\n
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\n                                 9          Cri. Appeal No. 213\/2007.<\/span><\/p>\n
          to   be   signed   by   any   Judge   or
\n          Magistrate,   or   any   such   officer   as
\n          aforesaid ( i.e. authorised by law). To <\/p>\n
          put it in another way, it would be-\n<\/p>\n
          (a)   such   document   is   memoranda   of  <\/p>\n
          evidence;\n<\/p>\n
          (b)   the   evidence   was   given   by   a
\n          witness; and\n<\/p>\n
          (c)   it   was   given   in   a   judicial <\/p>\n
          proceedings,   or   before   an   officer
\n          authorised by law to take it.”\n<\/p>\n
     20. The   words.’by   any   prisoner   or   accused
\n         person’   govern   also   the   word
\n         ‘statement’   because   if   they   governed  <\/p>\n
         only   the   word   ‘confession’   the   word
\n         ‘statement’ would be left all alone and <\/p>\n
         would   be   too   vague   to   make   any   sense.
\n         Let us put to test the submission made
\n         on   behalf   of   the   State   that   dying  <\/p>\n
         declaration   recorded   by   a   Magistrate
\n         would fall under section 80 of Evidence
\n         Act.   S.80   of   Evidence   Act   deals   with
\n         presumptions   to   be   attached   to   one  <\/p>\n
         important   class   of   judicial   documents
\n         viz   depositions   of   witnesses     in   a  <\/p>\n
         judicial   proceedings   or   documents
\n         recorded   by   an   officer   necessarily
\n         means in some previous proceedings. The
\n         reason   is,   evidence   recorded   in   open <\/p>\n
         court in judicial proceedings or by an
\n         Officer authorised to take evidence by
\n         observance   of   certain   prescribed   rules
\n         and   formalities   afford   sufficient
\n         guarantee   for   presumption   that   it   was
\n         correctly   done.   The   rule   is,Omnia <\/p>\n
         praesumuntur   rite   et   solemniter   esse
\n         acta   donec   probetur   in   contrarium-
\n         everything   is   presumed   to   be   rightly
\n         and   duly   performed   until   the   contrary
\n         is   shown;   and   that   the  records   of   a
\n         Court   of   justice   have   been   correctly
\n         made. For recording a dying declaration
\n         by   a   Magistrate,   no   particular
\n         procedure   is   prescribed   by   statutory
\n         law nor evidence of such a dying man is  <\/p>\n
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\n                            10          Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     recorded   in   the   presence   of   the
\n     accused,nor   the   accused   had   any
\n     opportunity   of   cross   examining   the <\/p>\n
     dying   man.   The   dying   declaration   is
\n     recorded   either   before   investigation <\/p>\n
     begins   or   after   and,   therefore,   it
\n     cannot   be   said   that   the   same   even   if
\n     treated   as   ‘evidence   given   by   a
\n     witness’   is   not   recorded   during   any  <\/p>\n
     previous   judicial   proceedings   or   any
\n     proceedings   before   an   officer
\n     authorised   by   law   to   take   such
\n     evidence. As Taylor, J. in the case of
\n     King Emperor Vs. Mathura Thakur, supra,  <\/p>\n
     rightly   observed   that   what   is   made
\n     admissible   by   S.32(1)   of   the   Evidence  <\/p>\n
     Act is the verbal statement made by the
\n     dying man to the Magistrate and not the
\n     document   prepared   by   the   Magistrate.\n<\/p>\n
     The   document   made   by   the   Magistrate
\n     does   not   amount   to   a   deposition   or
\n     record of evidence so as to attract the
\n     presumption   under   section   80   of
\n     Evidence   Act.   Therefore,   what   is  <\/p>\n
     admissible in evidence is the statement
\n     made   by   the   dying   man   as   to   who   was  <\/p>\n
     responsible   for   causing   his   death   and
\n     not   the   paper   on   which   dying
\n     declaration   is   recorded.   For   these
\n     reasons therefore, S.80 of the Evidence <\/p>\n
     Act   cannot   be   invoked   in   respect   of
\n     presumption   to   be   drawn   in   respect   of
\n     dying   declaration   recorded   by   a
\n     Magistrate   or   even   an   officer
\n     authorised   by   a   law   to   take   evidence.\n<\/p>\n
     As   a   sequel   or   our   fining   about
\n     inapplicability it or presumption under
\n     Sec.80 of Evidence Act, we further hold
\n     that   the   Magistrate   or   the   person   who
\n     records   a   dying   declaration   will   have
\n     to   testify   and   prove   who   was   named   as
\n     offender   by   the   dying   person   before
\n     Court   where   trial   proceedings   against
\n     accused   are   held.   In   the   case   of
\n     Smiruddin,supra the Calcutta High Court  <\/p>\n
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\n                                    11            Cri. Appeal No. 213\/2007.<\/span><\/p>\n
          held that the statement must have been
\n          proved in ordinary way by a person who
\n          heard   it   made.   If   for   any   reason   the <\/p>\n
          Magistrate is not available, any other
\n          person who heard it when made can also  <\/p>\n
          testify   and   they   being   at   liberty   to
\n          refresh   memory   by   referring   to   the
\n          document   as   provided   by   Sections   159
\n          and 160 of Evidence Act.\n<\/p>\n
     21   Section 273 of Criminal Procedure Code
\n          reads thus:\n<\/p>\n
            ” S.273 Except as otherwise expressly provided, all
\n          evidence taken in the course of the trial or other proceeding<\/p>\n
          shall be taken in the presence of the accused, or, when his
\n          personal attendance is dispensed with, in the present of is
\n          pleader.”\n<\/p>\n
          A   dying   declaration   recorded   by   a
\n          Magistrate   is   not   recorded   in   the  <\/p>\n
          presence of the accused. But Sec. 32(1)
\n          of   the   Evidence   Act   makes   the   same
\n          relevant and can be proved by evidence
\n          and   sanctity   given   to   its   embodied   in <\/p>\n
          the   maxim   nemo   moriturus   praesumitur
\n          mentire,   i.e.   A   man   will   not   meet   his  <\/p>\n
          maker   with   lie   in   his   month.   That   is
\n          why tests of oath and cross-examination
\n          are dispensed with. But then relevancy
\n          in   evidence   and   proof   by   evidence   are <\/p>\n
          different   things.   Where   accused   is
\n          called   upon   to   defend   a   charge   under
\n          Sec.   302,   I.P.C.,   the   burden   of   proof
\n          in   the   absence   or   presumption   of   law
\n          never shifts into him. It ever remains
\n          on   the   prosecution   which   has   to   prove <\/p>\n
          the charge beyond all reasonable doubt.
\n          The   said   traditional   legal   concept
\n          remains unchanged   even now. In such a
\n          case   the   accused   can   wait   till   the
\n          prosecution   evidence   is   over   and   then
\n          show   that   the   prosecution   has   not
\n          proved   particular   material   facts
\n          through   its   prosecution   witness     who
\n          failed   to   describe   the   names   and   role
\n          of the accused in the offence of murder <\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:15:48 :::<\/span>
\n                                     12            Cri. Appeal No. 213\/2007.<\/span><\/p>\n
          as   told   by   the   dying   man   to   such   a
\n          witness   or   a   Magistrate   who   recorded
\n          the   dying   declaration   by   merely  <\/p>\n
          exhibiting   the   documents   of   dying
\n          declaration   its   contents   and   in  <\/p>\n
          particular the names of the offender’s
\n          and   the   role   played   by   them   in
\n          committing the offence of murder is not
\n          proved   unless   such   witness   or  <\/p>\n
          Magistrate   vouchsafes   before   the   trial
\n          Court   as   to   whom   did   the   dying   person
\n          named offenders. In Narbada Devi Gupta
\n          vs.   Birendra   Kumar-AIR<\/a>   2004   SC   175:
\n          [2004(5)ALL   MR   (S.C.)51],   the   apex <\/p>\n
          court in paragraph 16 held thus:\n<\/p>\n
          “The legal position is not in dispute that mere production<\/p>\n
          and marking of a document as exhibit by the Court cannot
\n          be held to be a due proof of its contents. Its execution has to
\n          be proved by admissible evidence that is by the ‘evidence of<\/p>\n
          those persons who can vouchsafe for the truth of the facts in
\n          issue’. The situation is, however, different where the
\n          documents are produced, they are admitted by the opposite
\n          party, signatures on them are also admitted and they are
\n          marked thereafter as exhibits by the Court.”\n<\/p>\n
          In   Dandu   Lakshmi   Reedy   Vs.   State   of <\/p>\n
          A.P.1999   ALL   MR(Cri)   1784,Supra,   the
\n          apex Court in para 3 held as under:
\n          “There can be a presumption that testimony of a competent
\n          witness given on oath is true, as the opposite party can use<\/p>\n
          the weapon of cross examination, inter alia, for rebutting the
\n          presumption but a dying declaration is not a deposition in
\n          Court. It is neither made on oath nor in the presence of an
\n          accused. Its credence can not be tested by cross-
\n          examination. Those inherent weaknesses attached to a dying<\/p>\n
          declaration would  not justify and initial presumption to be
\n          drawn that the dying declaration contains only the truth.’ <\/p>\n
     8]   In   view   of   the   law   discussed   above,   the
\n     document Exh. 44, the so-called dying declaration
\n     can not be said to be proved as required by law.
\n     We,   therefore,   hold   that   the   prosecution   has <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:15:48 :::<\/span>
\n                                  13         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     failed   to   prove   this   basic   circumstance   in
\n     support of its case.\n<\/p>\n
     9]     The   value   of   this   dying   declaration   is <\/p>\n
     diluted   further   because   prosecution   also   placed
\n     reliance   on   two   oral   dying   declarations,   which
\n     are   not   in   consonance   with   the   written   one.   The <\/p>\n
     prosecution   witness   No.1   Bhausaheb   stated   that
\n     the   deceased   Sangita   had   told   him   that   accused
\n     Rajendra, his brother and parents had set her on <\/p>\n
     fire. This certainly is different than the dying <\/p>\n
     declaration   recorded   by   the   prosecution   witness
\n     P.W.5 Sharad  Mandlik. Another P.W.(2) Jyoti,  the <\/p>\n
     sister   of   the   deceased,   stated   that   deceased
\n     Sangita   had   narrated   the   incident   to   her   saying
\n     that   the   accused   poured   kerosene   on   her   person <\/p>\n
     and   set   her   on   fire.   This   version   is   also <\/p>\n
     different from the the one recorded in writing.\n<\/p>\n
     10]   The   next  circumstance   is  the  deposition   of <\/p>\n
     child witness Snehal.  This witness as said above
\n     is   examined   as  ‘Court   witness’.     Her   deposition
\n     is quite cryptic.   She described the incident in
\n     very   few   words.   She   said   the   appellant   No.1 <\/p>\n
     poured   kerosene   on   her   mother   and   the   appellant
\n     No.2   set   her   on   fire   by   striking   match   stick.
\n     Saying this, she identified the appellant Nos. 1
\n     and   2   as   the   perpetrators.     She   has   not   given
\n     other   details   as   to   what   had   happened   prior   to
\n     the   actual   incident,   what   was   her   mother’s <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 15:15:48 :::<\/span>
\n                                  14          Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     reaction   to   the   act   allegedly   done   by   the
\n     appellant   Nos   1   and   2   etc.   In   the   cross <\/p>\n
     examination,   she   admitted   that,   her   maternal
\n     uncle   and   maternal   grand-father   kept   on   telling <\/p>\n
     her,   what   she   should   depose   in   the   Court.   The
\n     question   is   whether   this   witness   was   tutored?
\n     There was strong possibility of tutoring of this <\/p>\n
     witness.   The   incident   took   place   in   December,
\n     2005,   and   since   then   till   her   deposition   was
\n     recorded in the month of May-2007, the child had <\/p>\n
     been residing with  her mother’s relatives namely <\/p>\n
     her maternal uncle and maternal grand father. Her
\n     age   at   the   time   of   incident   was   merely   three <\/p>\n
     years   and   she   was   only   five   years   old   when   her
\n     deposition was recorded. The child of this tender
\n     age   is   prone   to   tutoring.     The   Law   on   the <\/p>\n
     subject, as to how to appreciate the evidence of <\/p>\n
     ‘child witness’, is discussed in various judgment
\n     of the Supreme Court. One of them is the judgment
\n     in the case of   Panchhi and others Vs. State of <\/p>\n
     U.P. reported in AIR 1988 SUPREME COURT,2726. The
\n     Hon’ble Supreme Court held thus-
\n      11   Shri   R.   K.   Jain,   learned   Senior
\n           Counsel,   contended   that   it   is   very  <\/p>\n
           risky   to   place   reliance   on   the
\n           evidence   of   P.W.1   being   a   child
\n           witness.   According   to   the   learned
\n           counsel,evidence   of   child   witness   is
\n           generally   unworthy   of   credence.   But
\n           we do not subscribe to the view that
\n           the   evidence   of   child   witness   would
\n           always         stand           irretrievably
\n           stigmatized.   It   is   not   the   law   that
\n           if a witness is a child his evidence  <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 15:15:48 :::<\/span>
\n                                 15         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
           shall   be   rejected,   even   if   it   is
\n           found   reliable.  The   law   is   that
\n           evidence   of   a   child   witness   must   be  <\/p>\n
           evaluated   more   carefully   and   with
\n           greater   circumspection   because   a <\/p>\n
           child is susceptible to be swayed by
\n           what   others   tell   them   and   thus   a
\n           child   witness   is   an   easy   prey   to
\n           tutoring.\n<\/p>\n
           Courts   have   laid   down   that   evidence
\n           of a child witness must find adequate
\n           corroboration before it is relied on.
\n           It is more a rule of practical wisdom
\n           than   of   law.   (emphasis   provided   by  <\/p>\n
      12   us)<\/p>\n
     11]     It   is   thus   clear   that   the   deposition   of
\n     child   witness   is   evaluated   very   carefully   and <\/p>\n
     with greater  circumspection.  As said above this
\n     child   was   certainly   susceptible   to   be   tutoring
\n     and   must   have   followed   the   instructions,   which <\/p>\n
     she   had   received   from   her   relatives.   We, <\/p>\n
     therefore,   discard   this   piece   of   evidence.   In
\n     view of this, the case of prosecution would fail
\n     so far as it relates to charge under section 302 <\/p>\n
     read   with   section   34   of   the   Indian   Penal   code
\n     against the appellant Nos.1 and 2.\n<\/p>\n
     12]     The   remaining   question   is   whether   the
\n     prosecution   proved   the   offence   punishable   under
\n     section 498A of the Indian Penal Code against the
\n     appellants.   The   answer   is   in   the   negative.     The
\n     prosecution witness Nos. 1-Bhausaheb and 2 Jyoti,
\n     the father and sister of the deceased Sangita are
\n     the witnesses on this point. Both these witnesses <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:15:48 :::<\/span>
\n                                  16         Cri. Appeal No. 213\/2007.<\/span><\/p>\n
     made   rather   vague   and   omnibus   statements   saying
\n     that deceased Sangita used to tell them that, all <\/p>\n
     accused used to say to her that she should bring
\n     money   from   her   father;   all   accused   used   to   ill <\/p>\n
     treat her, used to beat her and used to sent her
\n     to   her   father’s   house.   P.W.2   Jyoti,   in   addition
\n     to   this,   also   stated   that   the   deceased   Sangita <\/p>\n
     used to tell her that her husband ill treated her
\n     suspecting   her   fidelity.     We   find   that,   the
\n     material on record is insufficient to convict the <\/p>\n
     appellants   under   section   498-A   of   the   Indian <\/p>\n
     Penal Code. The appeal therefore, succeeds.\n<\/p>\n
     13]     This   Criminal   Appeal   is   allowed   and   the
\n     conviction   of   the   appellants   is   hereby   quashed
\n     and   set   aside   and   they   are   acquitted   of   the <\/p>\n
     offences   with   which   they   were   charged   and <\/p>\n
     convicted.\n<\/p>\n
            Appellant   No.1   Laxmibai   Maruti   Satpute   and <\/p>\n
     Appellant No.2 Maruti Sitaram satpute are said to
\n     be   in   jail   since   the   date   of   the   incident   and
\n     they be released forthwith, if not wanted in any
\n     other   case.   Bail   bonds   of   appellant   No.   3   Arun <\/p>\n
     Maruti   Satpute   stand   cancelled.   Fine,if   paid   by
\n     the appellants be refunded to them.\n<\/p>\n
          (A.V.NIRGUDE, J.)       (P.V.HARDAS, J.)<\/p>\n
     MTK.\/<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 15:15:48 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court 2 Maruti vs Unknown on 3 November, 2009 Bench: P.V. Hardas, A.V. Nirgude 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 […]<\/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-160823","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\n2 Maruti vs Unknown on 3 November, 2009 - 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\/2-maruti-vs-unknown-on-3-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"2 Maruti vs Unknown on 3 November, 2009 - 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