{"id":240336,"date":"2009-09-30T00:00:00","date_gmt":"2009-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nandura-vs-state-of-maharashtra-on-30-september-2009"},"modified":"2018-08-24T03:15:52","modified_gmt":"2018-08-23T21:45:52","slug":"nandura-vs-state-of-maharashtra-on-30-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nandura-vs-state-of-maharashtra-on-30-september-2009","title":{"rendered":"Nandura vs State Of Maharashtra on 30 September, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Nandura vs State Of Maharashtra on 30 September, 2009<\/div>\n
Bench: D.D. Sinha, Prasanna B. Varale<\/div>\n
                                      1\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                          \n                    NAGPUR BENCH : NAGPUR\n\n\n\n\n                                                  \n               CRIMINAL APPEAL NO.243 OF 2004\n\n\n\n\n                                                 \n    Gajanan s\/o Laxman Ghate,\n    aged about 27 years, r\/o\n\n\n\n\n                                           \n    Motipura, Ward No.14, Taluq\n                          \n    Nandura, District Buldana.              ...         Appellant\n\n             - Versus -\n                         \n    State of Maharashtra, through\n    Police Station Officer, Nandura,\n        \n\n\n    District Buldana.                       ...         Respondent\n     \n\n\n\n                        -----------------\n\n\n\n\n\n    Shri N.A. Badar, Advocate for the appellant.\n    Shri S.J. Jichkar, Additional Public Prosecutor for the\n    respondent.\n                        ----------------\n\n\n\n\n\n             Date of reserving the judgment           : 24\/09\/2009\n\n             Date of pronouncing the judgment : 30\/09\/2009\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 15:08:24 :::\n                                2\n\n\n              CORAM : D.D.SINHA AND P.B. VARALE, JJ.\n\n\n\n\n                                                                   \n           DATED : SEPTEMBER 30, 2009\n\n\n\n\n                                           \n    JUDGMENT (PER D.D.SINHA, J.) :\n<\/pre>\n
              Heard Shri Badar, learned Counsel for the<\/p>\n
    appellant, and Shri Jichkar, learned Additional Public<\/p>\n
    Prosecutor for the respondent.\n<\/p>\n
    2)        The criminal appeal is directed against the<\/p>\n
    judgment and order dated 2.12.2003 passed by the<\/p>\n
    Additional Sessions Judge, Khamgaon in Sessions Case<\/p>\n
    No.12\/2003 whereby the appellant was convicted for the<\/p>\n
    offence punishable under Section 302 of Indian Penal<\/p>\n
    Code and sentenced to suffer imprisonment for life and<\/p>\n
    to pay fine of rupees two thousand and       in default of<\/p>\n
    payment of fine, to suffer simple imprisonment for six<\/p>\n
    months.    The appellant was acquitted for the offence<\/p>\n
    punishable under Section 498-A of Indian Penal Code.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                 3<\/span><\/p>\n
    3)      The prosecution case, in nutshell, is as follows :\n<\/p>\n
            The appellant was a resident of Motipura, Ward<\/p>\n
    No.14, Nandura, District Buldana. He was the husband<\/p>\n
    of deceased Sushila.    The marriage of appellant with<\/p>\n
    Sushila had taken place in 1993.   Till Sushila gave birth<\/p>\n
    to female child, the appellant treated her well. However,<\/p>\n
    after she gave birth to a female child, appellant started<\/p>\n
    ill-treating her under the influence of alcohol.               The<\/p>\n
    appellant did not allow her relatives to meet her. The<\/p>\n
    proceedings were initiated under Section 97 of the Code<\/p>\n
    of Criminal Procedure and thereafter deceased Sushila<\/p>\n
    was brought to her maternal house where she stayed for<\/p>\n
    about two-three years. During her stay at her maternal<\/p>\n
    house, she also filed application under Section 125 of<\/p>\n
    the Code of Criminal Procedure for maintenance before<\/p>\n
    Magistrate. However, the dispute between her and the<\/p>\n
    appellant was settled somehow and, therefore, she went<\/p>\n
    back to appellant for cohabitation. It is the case of the<\/p>\n
    prosecution that appellant again started ill-treating her.\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                     4<\/span><\/p>\n
    About fifteen days prior to the incident in question,<\/p>\n
    Sushila brought saree from her sister.            On account of<\/p>\n
    that, appellant got enraged and kept on abusing and<\/p>\n
    beating her.    On 3.11.2002, at about 4 a.m., as usual,<\/p>\n
    Sushila got up.    The appellant also got up and again<\/p>\n
    started abusing her on account of saree, which she had<\/p>\n
    brought from her sister. Appellant poured kerosene on<\/p>\n
    her person and pushed her on burning lamp, due to<\/p>\n
    which, her saree caught fire and she sustained burn<\/p>\n
    injuries to the extent of 91.5%. Sushila was admitted to<\/p>\n
    the   General    Hospital,    Khamgaon.          The         Executive<\/p>\n
    Magistrate     recorded      dying   declaration        of     Sushila.\n<\/p>\n
    Initially offence under Section 307 of Indian Penal Code<\/p>\n
    was registered against the appellant. The Investigating<\/p>\n
    Officer visited the spot and conducted spot panchanama<\/p>\n
    and seizure panchanama.              Sushila,     on 7.11.2002,<\/p>\n
    succumbed to burn injuries in the General Hospital,<\/p>\n
    Khamgaon. The offence was converted into one under<\/p>\n
    Section 302 of Indian Penal Code against the appellant.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                 5<\/span><\/p>\n
    On completion of formal investigation, charge-sheet was<\/p>\n
    filed for the offence punishable under Sections 498-A<\/p>\n
    and 302 of Indian Penal Code in the Court of Judicial<\/p>\n
    Magistrate, First Class against the appellant. The matter<\/p>\n
    was committed to the Court of Sessions,              charge was<\/p>\n
    framed and explained to the appellant, who pleaded not<\/p>\n
    guilty and claimed to be tried.     The trial Court on the<\/p>\n
    basis of evidence adduced by the prosecution held the<\/p>\n
    appellant guilty for the offence punishable under Section<\/p>\n
    302 of Indian Penal Code, however, acquitted the<\/p>\n
    appellant for the offence punishable under Section<\/p>\n
    498-A of Indian Penal Code. Being aggrieved by the said<\/p>\n
    judgment and order of conviction, the appellant has filed<\/p>\n
    the present criminal appeal.\n<\/p>\n
    4)      Shri Badar, learned Counsel for the appellant,<\/p>\n
    submitted   that   though      prosecution      has       adduced<\/p>\n
    evidence of PW 1 Santosh (brother of deceased Sushila),<\/p>\n
    PW 2 Anusaya (mother of deceased Sushila) and PW 3<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                  6<\/span><\/p>\n
    Mangala (sister of deceased Sushila) on the point of oral<\/p>\n
    dying declaration alleged to have been made by<\/p>\n
    deceased Sushila to them, however, their evidence is<\/p>\n
    that of interested witnesses since all of them are close<\/p>\n
    relatives of deceased Sushila and, therefore, trial Court<\/p>\n
    was not justified in accepting the same in absence of<\/p>\n
    independent     corroboration.   It   was    submitted           that<\/p>\n
    relations between the relatives of deceased Sushila and<\/p>\n
    appellant were not cordial in view of legal proceedings<\/p>\n
    initiated by Sushila against the appellant under Section<\/p>\n
    97 of the Code of Criminal Procedure as well as under<\/p>\n
    Section   125   of   Code   of   Criminal     Procedure             for<\/p>\n
    maintenance     and, therefore, these witnesses have<\/p>\n
    falsely implicated the appellant in crime in question. It<\/p>\n
    was submitted that prosecution has not examined any<\/p>\n
    independent witness to support its          case and all the<\/p>\n
    witnesses, who were examined by the prosecution, were<\/p>\n
    close relatives of deceased Sushila, who were highly<\/p>\n
    interested in success of the prosecution case and,<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                        7<\/span><\/p>\n
    therefore, it was unsafe to rely on their evidence.\n<\/p>\n
    5)        Learned Counsel Shri Badar further argued that<\/p>\n
    PW 4 Shrikrushna is uncle of deceased Sushila, in whose<\/p>\n
    presence, PW 13 API More has alleged to have recorded<\/p>\n
    dying declaration of deceased Sushila. It was contended<\/p>\n
    that the said dying declaration (Exh. 48) is lengthy and<\/p>\n
    exhaustive dying declaration.             It was contended that<\/p>\n
    since Sushila sustained 91.5% burn injuries, it was<\/p>\n
    impossible for her to give such an exhaustive dying<\/p>\n
    declaration. PW 13 API More did not obtain certificate of<\/p>\n
    mental    fitness     from   the       Doctor   before      and       after<\/p>\n
    recording the said dying declaration. It was submitted<\/p>\n
    that PW 4 Shrikrushna being uncle of deceased Sushila<\/p>\n
    also had an opportunity to influence the mind of<\/p>\n
    deceased Sushila since he was present during recording<\/p>\n
    of dying declaration (Exh. 48) by PW 13 API More.                           It<\/p>\n
    was,     therefore,    contended         that   the      said        dying<\/p>\n
    declaration is not reliable and needs to be discarded.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                 8<\/span><\/p>\n
    6)      Shri Badar, learned Counsel for the appellant,<\/p>\n
    submitted that so far as dying declaration (Exh. 44)<\/p>\n
    recorded by PW 11 Vijay, Executive Magistrate is<\/p>\n
    concerned, in the cross-examination PW 11 Vijay has<\/p>\n
    admitted that after recording of dying declaration, the<\/p>\n
    Doctor, without examining deceased Sushila, gave a<\/p>\n
    certificate that she was conscious during the course of<\/p>\n
    recording of dying declaration.    It was contended that<\/p>\n
    this admission of Executive Magistrate makes the said<\/p>\n
    dying declaration (Exh. 44) doubtful.\n<\/p>\n
    7)      Shri   Badar,   learned   Counsel      for appellant,<\/p>\n
    further submitted that DW 1 Kalpana is daughter of<\/p>\n
    deceased Sushila and appellant, who was, at the<\/p>\n
    relevant time, ten years of age and has stated in her<\/p>\n
    evidence that saree of her mother caught fire when she<\/p>\n
    was preparing tea.      At that time, this witness and<\/p>\n
    appellant were asleep. They heard shouts and woke up<\/p>\n
    and found that clothes of deceased Sushila were on fire.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                   9<\/span><\/p>\n
    The appellant tried to extinguish fire. Sushila was taken<\/p>\n
    to General Hospital, Khamgaon.         It was submitted that<\/p>\n
    evidence of DW 1 Kalpana assumes importance because<\/p>\n
    she is daughter of deceased Sushila and would not allow<\/p>\n
    perpetrator of the crime to go scot free.                     It was<\/p>\n
    contended that taking into consideration the version of<\/p>\n
    the defence witness and the untrustworthy prosecution<\/p>\n
    evidence,   the<\/p>\n
                       impugned       judgment     and        order        of<\/p>\n
    conviction cannot be sustained in law.\n<\/p>\n
    8)      Shri      Jichkar,   learned     Additional             Public<\/p>\n
    Prosecutor for the respondent, on the other hand,<\/p>\n
    supported   the    impugned       judgment      and       order        of<\/p>\n
    conviction passed by the trial Court.        It was submitted<\/p>\n
    that to prove the oral dying declaration of Sushila,<\/p>\n
    prosecution has examined PW 1 Santosh, PW 2 Anusaya<\/p>\n
    and PW 3 Mangala. Their evidence is free from material<\/p>\n
    contradictions    and    omissions     and,       therefore,            is<\/p>\n
    trustworthy and reliable. It was further contended that<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                 10<\/span><\/p>\n
    another piece of cogent evidence is dying declaration of<\/p>\n
    deceased Sushila recorded by PW 11 Vijay, Executive<\/p>\n
    Magistrate (Exh. 44).     It was contended that before<\/p>\n
    recording dying declaration of Sushila, certificate of<\/p>\n
    PW 12 Dr. Jaiswal about her mental fitness was obtained<\/p>\n
    by the Executive Magistrate and dying declaration was<\/p>\n
    recorded only thereafter.   It was submitted that dying<\/p>\n
    declaration (Exh. 44) is duly proved by the Executive<\/p>\n
    Magistrate. It was contended that oral dying declaration<\/p>\n
    given by deceased Sushila to the other witnesses and<\/p>\n
    the dying declaration of deceased Sushila (Exh. 44)<\/p>\n
    recorded by PW 11 Vijay, Executive Magistrate are<\/p>\n
    corroborated by the medical evidence of PW 9 Dr. Vilas<\/p>\n
    and, therefore, trial Court was justified in convicting the<\/p>\n
    appellant for the offence punishable under Section 302<\/p>\n
    of Indian Penal Code.    It was submitted that so far as<\/p>\n
    dying declaration recorded by PW 13 More, API is<\/p>\n
    concerned, the trial Court has not placed any reliance on<\/p>\n
    the said dying declaration. Similarly, so far as evidence<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                    11<\/span><\/p>\n
    of DW 1 Kalpana is concerned, same has been rejected<\/p>\n
    by the trial Court on the ground that at the time of<\/p>\n
    arrest of appellant, no injuries were noticed on either<\/p>\n
    palms of the appellant or on any other part of the<\/p>\n
    appellant.    It was, therefore, contended               that the<\/p>\n
    impugned judgment and order passed by the trial Court<\/p>\n
    is sustainable in law.\n<\/p>\n
    9)       We   have       considered   the   rival    contentions<\/p>\n
    canvassed by the learned Counsel for the parties and<\/p>\n
    carefully scrutinized the prosecution evidence.               In the<\/p>\n
    instant case, the prosecution has examined PW 1<\/p>\n
    Santosh, PW 2 Anusaya and PW 3 Mangala to prove oral<\/p>\n
    dying declaration given by deceased Sushila to them<\/p>\n
    that appellant poured kerosene on her person and<\/p>\n
    pushed her on the lamp, which was burning.                         The<\/p>\n
    evidence of these witnesses is free from material<\/p>\n
    omissions and contradictions. It is no doubt true that all<\/p>\n
    these witnesses are close relatives of deceased Sushila.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                 12<\/span><\/p>\n
    However, merely because these witnesses are closely<\/p>\n
    related to deceased Sushila, that by itself cannot be the<\/p>\n
    ground to discard the evidence of such witnesses if<\/p>\n
    testimonies of such witnesses are otherwise reliable,<\/p>\n
    trustworthy and corroborated by other evidence. In the<\/p>\n
    instant case, the testimonies of these witnesses not only<\/p>\n
    inspire confidence, but are also corroborated by the<\/p>\n
    medical evidence.\n<\/p>\n
    10)     It is pertinent to note that there is ample<\/p>\n
    material on record to demonstrate that appellant was<\/p>\n
    ill-treating his wife. However, the appellant is acquitted<\/p>\n
    for the offence punishable under Section 498-A of Indian<\/p>\n
    Penal Code and the State has not preferred any appeal<\/p>\n
    against the same and, therefore, we do not want to<\/p>\n
    observe anything in this regard. At the same time, the<\/p>\n
    fact remains that close relatives of deceased Sushila<\/p>\n
    settled the differences between her and appellant and<\/p>\n
    persuaded her to go back to her matrimonial house. If<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                13<\/span><\/p>\n
    there would have been any kind of animosity on the part<\/p>\n
    of close relatives of deceased Sushila against the<\/p>\n
    appellant, they would not have permitted deceased<\/p>\n
    Sushila to go back and cohabit with the appellant.              All<\/p>\n
    these circumstances go to show that allegation made by<\/p>\n
    the defence that appellant is falsely implicated in the<\/p>\n
    crime in question is unfounded.\n<\/p>\n
    11)     In the instant case, the important piece of<\/p>\n
    evidence is of dying declaration of deceased Sushila<\/p>\n
    (Exh. 44), which was recorded and proved by the PW 11<\/p>\n
    Vijay, Executive Magistrate. In his examination-in-chief,<\/p>\n
    he has stated that on 3.11.2002 he had received a<\/p>\n
    message that he was required to visit General Hospital,<\/p>\n
    Khamgaon for recording of dying declaration of a lady,<\/p>\n
    who was admitted in the Hospital and, therefore, he<\/p>\n
    went to General Hospital, Khamgaon where he met<\/p>\n
    ASI Umbarkar, who gave him a letter requesting him to<\/p>\n
    record statement of deceased Sushila admitted in the<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                14<\/span><\/p>\n
    hospital for treatment of burn injuries.     It has come in<\/p>\n
    the examination-in-chief of the Executive Magistrate that<\/p>\n
    he met Medical Officer, who was in-charge of the burn<\/p>\n
    injury Ward and requested him to give certificate about<\/p>\n
    fitness of the patient. The Executive Magistrate himself<\/p>\n
    asked the name of patient, age of patient, address of the<\/p>\n
    patient and after that asked her how the incident had<\/p>\n
    occurred. To this question, Sushila answered that her<\/p>\n
    husband beat her, poured kerosene on her and pushed<\/p>\n
    her on the lamp. She also stated that her husband was<\/p>\n
    under the influence of alcohol. The Executive Magistrate<\/p>\n
    has disclosed in his evidence that after recording her<\/p>\n
    statement, same was read over to her and she admitted<\/p>\n
    the same to be correct. Her thumb impression was also<\/p>\n
    obtained. The said statement was also signed by the<\/p>\n
    Executive Magistrate.   It is no doubt true that in the<\/p>\n
    cross-examination, the Executive Magistrate has stated<\/p>\n
    that the Medical Officer before making last endorsement<\/p>\n
    did not make enquiry with the patient and did not<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                 15<\/span><\/p>\n
    examine her. However, that admission by itself, in our<\/p>\n
    view, does not destroy the credibility of the dying<\/p>\n
    declaration made by deceased Sushila nor evidentiary<\/p>\n
    value of testimony of Executive Magistrate since the<\/p>\n
    incident had taken place on 3.11.2002 and Sushila died<\/p>\n
    on 7.11.2002.   The dying declaration (Exh. 44), in our<\/p>\n
    view, stands totally proved by the evidence of Executive<\/p>\n
    Magistrate, which is completely corroborated by the<\/p>\n
    testimony of    PW 9 Dr. Vilas, Medical Officer and,<\/p>\n
    therefore, this piece of evidence, which is independent,<\/p>\n
    trustworthy and reliable is sufficient to award conviction<\/p>\n
    to the appellant for the offence of murder.          However,<\/p>\n
    there is also an oral dying declaration, which is proved<\/p>\n
    by the testimonies of other witnesses, which also<\/p>\n
    supports the material particulars of the prosecution case<\/p>\n
    given in the dying declaration      (Exh. 44) made by<\/p>\n
    deceased Sushila.\n<\/p>\n
    12)     The trial Court has already discarded the other<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>
\n                                    16<\/span><\/p>\n
    dying declaration, i.e. Exh. 48 recorded by PW 13 API<\/p>\n
    More and, therefore, it is not necessary for us to express<\/p>\n
    anything in this regard. Similarly, so far as testimony of<\/p>\n
    DW 1 Kalpana is concerned, same cannot be accepted<\/p>\n
    since at the time of arrest of appellant, no injuries were<\/p>\n
    found on the palms or any other part of the appellant. If<\/p>\n
    the appellant tried to extinguish fire, in that event, he<\/p>\n
    ought to have received some burn injuries in the<\/p>\n
    process. However, in absence of any injury on any part<\/p>\n
    of the appellant, story put by DW 1 Kalpana appears to<\/p>\n
    be untrustworthy.\n<\/p>\n
    13)     For   the    reasons        stated   hereinabove,            the<\/p>\n
    criminal appeal suffers from lack of merit and hence, the<\/p>\n
    same is dismissed.\n<\/p>\n
                              ____________<\/p>\n
    khj<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:08:24 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Nandura vs State Of Maharashtra on 30 September, 2009 Bench: D.D. Sinha, Prasanna B. Varale 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO.243 OF 2004 Gajanan s\/o Laxman Ghate, aged about 27 years, r\/o Motipura, Ward No.14, Taluq Nandura, District Buldana. … Appellant – […]<\/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-240336","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nNandura vs State Of Maharashtra on 30 September, 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\/nandura-vs-state-of-maharashtra-on-30-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nandura vs State Of Maharashtra on 30 September, 2009 - 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