{"id":272125,"date":"2011-06-22T00:00:00","date_gmt":"2011-06-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/keshav-laxman-chalke-vs-the-state-of-maharashtra-on-22-june-2011"},"modified":"2016-10-21T14:10:37","modified_gmt":"2016-10-21T08:40:37","slug":"keshav-laxman-chalke-vs-the-state-of-maharashtra-on-22-june-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/keshav-laxman-chalke-vs-the-state-of-maharashtra-on-22-june-2011","title":{"rendered":"Keshav Laxman Chalke vs The State Of Maharashtra on 22 June, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Keshav Laxman Chalke vs The State Of Maharashtra on 22 June, 2011<\/div>\n
Bench: Naresh H. Patil, Mridula Bhatkar<\/div>\n
                                                    1                         Crim.Appeal No.1228\/04\n\n    lgc\n                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                CRIMINAL APPELLATE JURISDICTION\n\n\n\n\n                                                                                                \n                                    CRIMINAL APPEAL NO.1228 OF 2004\n\n\n\n\n                                                                        \n          Keshav Laxman Chalke                                  ]\n          C.No.1413                                             ]\n          Kolhapur Central Prison,                              ]\n          Kalamba - 416007. Kolhapur                            ]... Appellant.\n\n\n\n\n                                                                       \n                           versus\n\n          The State of Maharashtra                              ]... Respondent.<\/pre>\n
          Mr.Abhaykumar Apte, Advocate appointed for the Appellant.
\n          Mr. P S Hingorani, APP, for the State\/Respondent.\n<\/p>\n
                                         CORAM :        NARESH H PATIL &\n                                                        MRS.MRIDULA R BHATKAR, JJ\n                                         DATE     :     22nd  JUNE 2011\n                                      \n          ORAL JUDGEMENT : [PER NARESH H PATIL, J]\n                \n\n\n          1                This   appeal   is   directed   against   judgment   and   order   dated \n             \n\n\n\n<\/pre>\n
          04\/06\/2001 passed by learned IInd Additional Sessions Judge, Satara in Sessions <\/p>\n
          Case   No.108   of   2000   by   which   the   Appellant   Keshav   Laxman   Chalke   was <\/p>\n
          convicted for the offence punishable under Section 302<\/a> of the Indian Penal Code <\/p>\n
          and was sentenced to suffer imprisonment for life and fine.\n<\/p>\n
          2                The Appellant was charged for the offence punishable under Section <\/p>\n
          302<\/a> of the Indian Penal Code along with two others i.e. original Accused Nos.2 <\/p>\n
          and 3 who were acquitted by the trial Court.  All the accused were related to each <\/p>\n
          other.     Acquitted   original   Accused   No.2   Yashwant   Laxman   Chalke   is   the   real <\/p>\n
          brother   of   present   Appellant   and   acquitted   original   Accused   No.3   Phulabai <\/p>\n
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\n                                                 2                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    Yaswant   Chalke   is   the   wife   of   original   Accused   No.2   Yashwant.     Incident   in <\/p>\n
    question took place on 10\/04\/2000.  The Appellant was residing along with his <\/p>\n
    deceased   wife   Taibai   and   three   sons.     The   prosecution   alleges   that   on <\/p>\n
    09\/04\/2000 in the evening deceased Taibai was sitting on ota along with her <\/p>\n
    children, at that time Appellant came to his house under the influence of liquor.\n<\/p>\n
    He started abusing Taibai. It is alleged that Appellant told deceased Taibai that <\/p>\n
    they should purchase bullocks belonging to his uncle but deceased Taibai rejected <\/p>\n
    the   said   suggestion,   in   stead   she   suggested   to   purchase   bullocks   from   open <\/p>\n
    market.     The   couple   started   quarreling.     Thereafter   Appellant   asked   his   wife <\/p>\n
    Taibai   to   serve   him  food.  They   all   went  inside  the   house.   It is  alleged   that  a <\/p>\n
    kerosene can was kept in the house.   Appellant poured kerosene from the said <\/p>\n
    can on the person of deceased Taibai and put the end i.e. the last portion of the <\/p>\n
    saree   of     deceased   (referred   as   “Padar”   in   Marathi   and   “Pallu”   in   Hindi)   on <\/p>\n
    hearth.  Taibai caught fire.  It is further alleged that the Appellant thereafter ran <\/p>\n
    away.   Due to burning sensation the deceased started shouting “save me, save <\/p>\n
    me”.     The   neighbourers   gathered   including   PW   No.2   Parubai   Chalke.     They <\/p>\n
    extinguished   the   fire.  PW  No.2   Parubai   Chalke   asked   deceased   as  to  how   the <\/p>\n
    incident took place to which the deceased answered that her husband poured <\/p>\n
    kerosene on her person and set her on fire.  On asking reasons for her husband to <\/p>\n
    do so, deceased Taibai informed PW No.2 Parubai that the husband did so on the <\/p>\n
    instigation of acquitted original Accused No.2 Yaswant and his wife Accused No.3 <\/p>\n
    Phulabai.   PW No.2-Parubai , Babanbhai, Housabai, Housabai, Kalabai and one <\/p>\n
    Patil   of   Thoseghar   brought   the   deceased   to   Civil   Hospital,   Satara.   Taibai   was <\/p>\n
    admitted   in   hospital   and   Medical   Officer   started   treatment   after   admission   of <\/p>\n
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\n                                                 3                         Crim.Appeal No.1228\/04<\/span><\/p>\n
    Taibai   in   hospital   between   2.00   to   2.30   a.m.   on   10\/04\/2000.     Prosecution <\/p>\n
    Witness No.6 Balasaheb Ganpatrao Jadhav issued a yadi to the policeman in the <\/p>\n
    hospital which is at Exhibit-34 on record.\n<\/p>\n
    3               According   to   the   prosecution,   one   constable   came   to   enquire <\/p>\n
    regarding condition of the patient.  The Medical Officer examined the patient and <\/p>\n
    expressed his opinion that she was in a position to give statement. According to <\/p>\n
    the Medical Officer the deceased was conscious and was in fit to give statement.\n<\/p>\n
    The constable  recorded  statement of Taibai. According  to  the  prosecution, the <\/p>\n
    Medical   Officer   made   an   endorsement   on   the   said   statement   regarding <\/p>\n
    consciousness   of   the   deceased.     The   endorsement   made   by   the   doctor   is   at <\/p>\n
    Exhibit-35.  Thereafter PSI Patil reached hospital. He too enquired regarding the <\/p>\n
    condition of the patient for recording statement.  PW No.6-Dr.Balasaheb Jadhav <\/p>\n
    examined the patient again and opined that she was fit to give statement.   PSI <\/p>\n
    Patil then recorded the statement of the patient. After recording the statement of <\/p>\n
    patient,   PW   No.6   Dr.Balasaheb   again   examined   the   patient   and   made   an <\/p>\n
    endorsement on the said statement that the patient was fit to give statement.  The <\/p>\n
    said   endorsement   is   at   Exhibit-36.   Thereafter   the   patient   was   shifted   to   burn <\/p>\n
    ward after giving first aid.\n<\/p>\n
    4               According   to   the   prosecution,   Executive   Magistrate   reached   the <\/p>\n
    hospital   at   around   4.30   a.m.   He   too   enquired   regarding   the   patient   and   her <\/p>\n
    condition to give statement. The Medical Officer again examined the patient and <\/p>\n
    opined that she was fit to give statement and an endorsement to that effect was <\/p>\n
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\n                                                   4                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    made   by   the   doctor   on   the   requisition   letter   which   is   at   Exhibit   28.       The <\/p>\n
    Executive   Magistrate   recorded  statement  of  the  deceased.  The  Medical  Officer <\/p>\n
    had put endorsement in respect of the consciousness of the deceased on the dying <\/p>\n
    declaration (Exhibit-29).\n<\/p>\n
    5                On the basis of  statements recorded, a crime was registered and the <\/p>\n
    police started investigation.  The police arrested original Accused Nos.2 Yashwant <\/p>\n
    and Accused No.3 Phulabai and obtained their remand.   Spot panchanama was <\/p>\n
    drawn   in   respect   of   the   spot   and   the   articles   were   seized   from   the   scene   of <\/p>\n
    offence.  The police recorded statements of the witnesses.  On the next day, the <\/p>\n
    seized articles were sent to the Chemical Analyzer for examination. According to <\/p>\n
    Investigating Officer, the Appellant was not traceable though he was searched at <\/p>\n
    various places.   On 15\/04\/2000, Taibai expired.   The police conducted inquest <\/p>\n
    panchanama   and   the   Medical   Officer   conducted   autopsy.     An   offence   under <\/p>\n
    section 302<\/a> of the Indian Penal Code was registered against the Appellant and the <\/p>\n
    police recorded supplementary statements of some persons.  After completion of <\/p>\n
    investigation, a charge-sheet was filed. The Appellant-accused pleaded not guilty <\/p>\n
    to the charge levelled against him on 06\/04\/2001 by the trial Court.\n<\/p>\n
    6                The prosecution examined as many as nine witnesses.  The defence <\/p>\n
    too examined Sachin Keshav Chalke – the son of  Appellant as defence witness.\n<\/p>\n
                     In the evidence of PW No.1 Santosh Keshav Chalke – the son of <\/p>\n
    Appellant, who was 10 years old at the time of his examination before the Court <\/p>\n
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\n                                                   5                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    and PW No.2 Parubai Chalke,  it has come that the Appellant poured kerosene on <\/p>\n
    the person of  deceased and set her on fire by putting the last portion of the end <\/p>\n
    of her saree on hearth (“Chul” in Marathi).   Before the incident in question the <\/p>\n
    Appellant had a quarrel with his wife on the issue of purchasing bullocks. The <\/p>\n
    Appellant was stated to be under influence of liquor.  The father of deceased PW <\/p>\n
    No.4 – Kisan Maruti Kadam was examined by the prosecution. He stated that <\/p>\n
    after  he  received  intimation, he met his daughter in hospital at around 10 to <\/p>\n
    10.30 am on 10\/04\/2000. He deposed before Court that the deceased was in <\/p>\n
    ward   No.9   and   after   he   met   her,   she   told   him   that   her   husband   had   poured <\/p>\n
    kerosene on her person and put the end of her saree on hearth and thereafter ran <\/p>\n
    away.     He   deposed   before   Court   that   the   deceased   was   prompted   by   original <\/p>\n
    Accused Nos. 2 and 3 Yashwant and Phulabai respectively.\n<\/p>\n
    7                Prosecution Witness No.1 is Santosh Keshav Chalke, was of a very <\/p>\n
    young   age   when   he   was   examined   by   the   prosecution.     After   putting   certain <\/p>\n
    questions, oath was administered to this child witness. He has deposed in respect <\/p>\n
    of the act of the accused due to which the deceased suffered burn injuries and <\/p>\n
    ultimately died.  An omission has been brought on record by the defence in the <\/p>\n
    evidence of this witness. He claims to have told the police that he along with his <\/p>\n
    mother, father and brother had gone inside the house.  On behalf of the defence it <\/p>\n
    was submitted that this witness failed to make a statement before police to that <\/p>\n
    effect,   and   therefore,   it   was   not   possible   for   him   to   witness   the   incident   of <\/p>\n
    pouring kerosene by the Appellant on the deceased.\n<\/p>\n
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\n                                                 6                         Crim.Appeal No.1228\/04<\/span><\/p>\n
    8               Prosecution   Witness   No.2   Parubai   Shivram   Chalke,   –   the <\/p>\n
    neighbourer of the deceased,  who immediately reached to the spot of incident.\n<\/p>\n
    She stated that she heard a commotion, therefore she came out of her house and <\/p>\n
    went to the house of Appellant. She saw the Appellant running out of his house.\n<\/p>\n
    She stated that she and the son of Appellant poured water on the person of the <\/p>\n
    deceased and tried to extinguish the fire.  The other persons also gathered there.\n<\/p>\n
    She   further   stated   that   the   deceased   disclosed   her   the   role   played   by   the <\/p>\n
    Appellant in the incident and blamed the Appellant for causing burn injuries to <\/p>\n
    her.  In  the   cross  examination  PW  No.2  Parubai   stated   that  when  she   reached <\/p>\n
    Taibai’s house she was brought on ota of the house. Taibai was asking for water.\n<\/p>\n
    This witness PW No.2 is the relative of one Pandurang Chalke and the Appellant <\/p>\n
    is distantly related to her.\n<\/p>\n
    9               Prosecution Witness No.3 is Maruti Krishna Chate, who acted  as a <\/p>\n
    panch in respect of the spot of incident.  He stated that there was a hearth near <\/p>\n
    the western wall of the house. He deposed that they found ash and burnt wood <\/p>\n
    lying   in the   hearth   and  also   found   pieces  of   burnt   cloth   and   a  blue   coloured <\/p>\n
    kerosene can.   According to this witness, all these articles were seized under a <\/p>\n
    panchanama   which   was   proved   by   the   prosecution.     It   was   recorded   in   the <\/p>\n
    panchanama that half burnt saree was also found on the scene of offence which <\/p>\n
    was smelling of Kerosene. There was a smell of kerosene in the room. The police <\/p>\n
    seized all these articles i.e. plastic can of kerosene, half burnt pieces of saree, <\/p>\n
    sample of soil lying on the floor, ash from the hearth.\n<\/p>\n
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\n                                                  7                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    10              Prosecution   Witness   No.4   is   Kisan   Maruti   Kadam   –   the   father   of <\/p>\n
    deceased, who deposed before the Court and blamed the Appellant.  In his cross <\/p>\n
    examination he stated that Taibai was illiterate. He did not make any complaint <\/p>\n
    to   the   police   or   police   patil   about   the   ill-treatment   given   to   Taibai   by   the <\/p>\n
    Appellant.  Taibai was using kerosene even for the purpose of electricity.\n<\/p>\n
    11              Prosecution Witness No.5 is Dilip Bhikaji Jadhav who is one of the <\/p>\n
    material   witnesses   in   this   case.   He   was   at   the   relevant   time   working   as   an <\/p>\n
    Executive   Magistrate.     He   deposed   before   Court   that   he   received   a   call   from <\/p>\n
    police for recording dying declaration of one Chalke.  After receiving intimation <\/p>\n
    he   reached   the   civil   hospital   and   contacted   Medical   Officer.   On   enquiry,   the <\/p>\n
    doctor opined that the patient was conscious and was able to give statement. Yadi <\/p>\n
    received by this witness from police is at Exhibit-28.  This witness clearly deposed <\/p>\n
    before   Court   that   when   he   reached   the   patient,   other   persons   near   her   were <\/p>\n
    asked to leave the place. The Medical Officer was with him. Thereafter he put <\/p>\n
    certain   questions   to   the   deceased   in   respect   of   her   name,   place   of   residence, <\/p>\n
    address, age etc.  After getting answers from the deceased, this witness recorded <\/p>\n
    her statement as per her version. Thereafter the said statement was read over to <\/p>\n
    the deceased and her thumb impression was obtained by him. He identified his <\/p>\n
    signature and the statement which is at Exhibit-29.  In the cross examination, this <\/p>\n
    witness stated that he expressed his   identity to the patient. Certain questions <\/p>\n
    regarding   percentage     of   burn   injuries   suffered   by   the   deceased,   physical <\/p>\n
    condition of the deceased were put to the witness. The witness denied that the <\/p>\n
    patient was unconscious. The witness, after recording  statement of the deceased, <\/p>\n
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\n                                                8                         Crim.Appeal No.1228\/04<\/span><\/p>\n
    attested the thumb impression put by the deceased on the statement. This witness <\/p>\n
    fairly admitted that he did not call independent witnesses to attest the thumb <\/p>\n
    impression after completion of recording of statement.\n<\/p>\n
    12              Prosecution Witness No.6 is Dr.Balasaheb Ganpatrao Jadhav – the <\/p>\n
    Medical   Officer   who   has   supported   the   prosecution   case   in   respect   of   giving <\/p>\n
    opinion   about  the  condition   of  the  deceased   for   making   statement  before   the <\/p>\n
    police and Executive Magistrate.  The witness had proved his endorsements made <\/p>\n
    on the statements of the deceased recorded by the prosecution witnesses.   He <\/p>\n
    opined that the deceased suffered 95% burn injuries which were superficial and <\/p>\n
    deep.  Face of the deceased was burnt to the extent of 8%.  He opined that the <\/p>\n
    injuries suffered  by the  deceased  were  not possible  by  accident.   The   witness <\/p>\n
    denied that morphine injection was given to the patient.\n<\/p>\n
    13              Prosecution Witness No.7 is  Ajay Purshottaam Gosavi who was the <\/p>\n
    carrier of articles to the Chemical Analyzer.\n<\/p>\n
    14              Prosecution Witness No.8 is Sambhaji Achutrao Patil, who was the <\/p>\n
    Investigating Officer in this case.\n<\/p>\n
    15              The learned counsel appearing for the Appellant submitted that the <\/p>\n
    dying declarations were not recorded in the manner in which they ought to have <\/p>\n
    been recorded. The Medical Officer failed to give his opinion of deceased being fit <\/p>\n
    to   make   statements   prior   to   recording   of   her   statements.   The   opinions   and <\/p>\n
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\n                                                  9                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    endorsements  made  by  the   Medical   Officer  were  procured   after   recording   the <\/p>\n
    statement.     In  the   light  of   the   fact  that  the   deceased   had   suffered   95%   burn <\/p>\n
    injuries,   she   must   not   have   been   in   a   position   to   make   statement   before   the <\/p>\n
    Investigating   Officer   and   Executive   Magistrate.   The   deceased   had   suffered <\/p>\n
    injuries to her face to the extent of 8% and therefore she must not have been in a <\/p>\n
    position to make statement.  Recording of dying declarations is surrounded with <\/p>\n
    suspicion,  prompting,  tutoring.  Therefore   it  would   be   improper   to   convict  the <\/p>\n
    Appellant   and   confirm   the   conviction   and   sentence   awarded   against   the <\/p>\n
    Appellant. The learned counsel further submits that the dying declarations were <\/p>\n
    recorded one after the another which itself causes serious doubt.  The evidence of <\/p>\n
    PW No.1 Santosh, who is the son of the Appellant and deceased was also not <\/p>\n
    worthy of credence.  According to the learned counsel, there is material omission <\/p>\n
    brought on record in respect of entering the house by Santosh. He further submits <\/p>\n
    that the Appellant is in jail since 11 years and considering the quality of evidence <\/p>\n
    on record, he be acquitted of the charge.\n<\/p>\n
    16              The   learned   APP   for   the   State\/Respondent   submits   that   the <\/p>\n
    prosecution has placed cogent and reliable evidence on record.  The prosecution <\/p>\n
    witnesses   have   not   exaggerated   the   sequence   of   events   of   the   incident.     The <\/p>\n
    conduct of husband is suspicious. He ran away soon after his wife suffered burn <\/p>\n
    injuries. He was not traced out for many days by the police.  There is no evidence <\/p>\n
    to show that the Appellant was tried to extinguish the fire or he suffered burn <\/p>\n
    injuries to his hands, fingers in saving  life of his wife.  The learned APP submits <\/p>\n
    that the dying declarations recorded by the police and Executive Magistrate are <\/p>\n
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\n                                               10                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    recorded in a natural course and they are consistent.  The infirmities tried to be <\/p>\n
    pointed out by the  defence  in the evidence in respect of consciousness of the <\/p>\n
    deceased   are   insignificant.   It   was   submitted   that   there   was   nothing   wrong   in <\/p>\n
    doctor’s making endorsement after recording dying declaration. The doctor was <\/p>\n
    present when the statement was recorded. He supported the prosecution case. He <\/p>\n
    had   examined   the   deceased   whenever   the   prosecution   witnesses   reached   the <\/p>\n
    hospital for recording dying declarations. The dying declarations are voluntary <\/p>\n
    and truthful, according to the learned APP.  PW No.2 Parubai, though related to <\/p>\n
    the Appellant distantly, is the independent witness in the sense that she reached <\/p>\n
    the spot of incident, tried to extinguish the fire, took the deceased to hospital and <\/p>\n
    before whom the deceased narrated that the Appellant had poured kerosene on <\/p>\n
    her person and set her on fire.\n<\/p>\n
    17              The Medical Officer, after conducting post mortem opined that the <\/p>\n
    cause of death is  “Septicaemia shock due to 95% Burns”. The deceased suffered <\/p>\n
    95% burn injuries.   The deceased   died after six days i.e. on 15\/04\/2000.   We <\/p>\n
    have carefully scrutinized the case papers relating to the treatment provided to <\/p>\n
    the deceased which are placed on record at Exhibit 38.  The endorsements of the <\/p>\n
    Medical Officer in respect of the treatment provided to the deceased during her <\/p>\n
    admission in the hospital are available.   On 10\/04\/2000 case papers show that <\/p>\n
    the   deceased   was   conscious.   Even   on   11\/04\/2000   she   was   conscious   and <\/p>\n
    oriented. On 12\/03\/2000 the endorsement on the case papers shows that she was <\/p>\n
    conscious and oriented. On 13\/04\/2000 there was an endorsement that she was <\/p>\n
    gasping and pulse was feeble.  On 14\/04\/2000 she was conscious and oriented.\n<\/p>\n
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\n                                                 11                           Crim.Appeal No.1228\/04<\/span><\/p>\n
    On   15\/04\/2000   she   was   conscious,   but   at   10.20   pm   her   condition   started <\/p>\n
    deteriorating, BP not recordable,  pupils dilated, fixed, not reaching to light and <\/p>\n
    she succumbed to her injuries.\n<\/p>\n
    18              Normally     we   notice   that   the   Medical   Officer   puts   endorsement <\/p>\n
    before   starting   recording   of   dying   declaration   in   respect   of   the   condition   of <\/p>\n
    patient to make statement and after recording statement too the Medical Officer <\/p>\n
    puts his endorsement in respect of the condition of patient. This is done to make <\/p>\n
    sure that the patient was conscious and well oriented through out the time during <\/p>\n
    which   the   dying   declaration   was   being   recorded.     But   there   is   no   statutory <\/p>\n
    provision or mandatory rule in respect of endorsement of the Medical Officer in <\/p>\n
    specific words at the time of recording of dying declaration or completion of the <\/p>\n
    same.     No   doubt   such   endorsement   in   given   facts   of   the   case   would   lend <\/p>\n
    credibility   to   recording   of   the   dying   declaration   if   on   other   counts   the   dying <\/p>\n
    declaration is found to be voluntary and truthful. The purpose is that recorder of <\/p>\n
    dying declaration must be satisfied that the maker of the dying declaration is <\/p>\n
    conscious and well oriented to understand as to what statement he\/she is giving <\/p>\n
    and whether the statement is voluntary and truthful and not out of vengeance <\/p>\n
    and result of imagination.  It depends  on the facts of  each case to appreciate as <\/p>\n
    to whether the dying declaration is voluntary and truthful.   In the facts of the <\/p>\n
    present case we find that earlier oral dying declaration was made by the deceased <\/p>\n
    before PW No.2-Parubai.  The presence of PW No.2 at the scene of offence  soon <\/p>\n
    after the incident in question took place cannot be denied so also her attempts to <\/p>\n
    extinguish the fire and taking the deceased to hospital along with others.   We <\/p>\n
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\n                                                 12                          Crim.Appeal No.1228\/04<\/span><\/p>\n
    have no doubt to observe that the deceased before her admission in hospital must <\/p>\n
    be in a fit state of body and mind to narrate the incident before PW No.2 Parubai.\n<\/p>\n
    The deceased clearly blamed the Appellant in respect of burn injuries caused to <\/p>\n
    her.   Even before PW No.4 Kisan Maruti Kadam, who is the father of deceased, <\/p>\n
    the   deceased   had   blamed   the   Appellant   for   the   burn  injuries  suffered   by   her.\n<\/p>\n
    Considering the evidence on record we are not inclined to accept the statement <\/p>\n
    recorded   by   police   constable   Tate   as   dying   declaration   as   the   same   is   not <\/p>\n
    exhibited  and  proved.  The  endorsements at Exhibits  – 35  and  36  are  proved.\n<\/p>\n
    Constable Tate has not been examined by the prosecution.\n<\/p>\n
    19              We   do   not   find   any   infirmity   in   recording   the   statement   of   the <\/p>\n
    deceased by the PSI.  There is no provision in law that the police officer cannot <\/p>\n
    record the statement\/dying declaration.  Normally as of rule of caution Executive <\/p>\n
    Magistrate   is   called   to   record   a   dying   declaration.   In   the   instant   case   the <\/p>\n
    prosecution   had   taken   much   precaution   in   sending   requisition   to   Executive <\/p>\n
    Magistrate to record dying declaration and accordingly PW No.5 – Dilip Jadhav <\/p>\n
    recorded the dying declaration of the deceased.   From the evidence of PW No.5, <\/p>\n
    it   reveals   that   before   recording   the   dying   declaration   he   got   himself   satisfied <\/p>\n
    about the condition of patient and thereafter recorded the same.  We find that the <\/p>\n
    evidence of PW No.5 is worthy of credence.  He enquired with the Medical Officer <\/p>\n
    before recording the dying declaration and even after completion of recording the <\/p>\n
    dying declaration. The same was read over to the deceased and thereafter her <\/p>\n
    thumb impression was obtained on it.\n<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 17:23:05 :::<\/span>
\n                                               13                         Crim.Appeal No.1228\/04<\/span><\/p>\n
    20              The submission of the learned counsel for the defence is that an <\/p>\n
    independent witness should have attested the thumb impression of the deceased <\/p>\n
    and as the independent witnesses were not called to attest the thumb impression <\/p>\n
    of   the   deceased,   the   statement   of   the   deceased   cannot   be   taken   into <\/p>\n
    consideration. Considering the facts of case and quality of evidence brought on <\/p>\n
    record, we do not find that the statement of the deceased recorded by PW No.5 is <\/p>\n
    to be brushed aside on the plea raised by the defence.  The evidence of PW No.5 <\/p>\n
    is worth reliable. He is an independent witness.   Nothing is brought on record <\/p>\n
    that   he   is   unnecessarily   interested   in   prosecution   or   his   conduct   was   blame <\/p>\n
    worthy from any angle.\n<\/p>\n
    21              The conduct of the Appellant was focused by the prosecution.  Even <\/p>\n
    according to the Investigating Officer he was not available to the police. He ran <\/p>\n
    away from the house and was not traceable.  There is nothing on record to show <\/p>\n
    that he tried to extinguish fire or suffered any burn injury while trying to save <\/p>\n
    life of his wife.   The defence witness Sachin Chalke, who is another son of the <\/p>\n
    Appellant, was examined in support of the plea of the Appellant. We do not find <\/p>\n
    that his evidence is of any help to the Appellant.\n<\/p>\n
    22              The   Appellant   is   claiming   innocence.     In   his   statement   recorded <\/p>\n
    under Section 313<\/a> of the Criminal Procedure Code the Appellant failed to explain <\/p>\n
    the circumstances brought on record against him.  In the said statement he stated <\/p>\n
    that a false case was filed against him.   The Appellant lost best opportunity to <\/p>\n
    explain these circumstances in respect of occurrence of incident.   The Appellant <\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 17:23:05 :::<\/span>
\n                                              14                            Crim.Appeal No.1228\/04<\/span><\/p>\n
    ought to be aware that the deceased was his wife. She was under his care and by <\/p>\n
    simply denying the charge or questions put by the Court, the Appellant was not <\/p>\n
    exhibiting his innocence.\n<\/p>\n
    23           The learned counsel appearing for the Appellant placed reliance on <\/p>\n
    the judgment of the Apex Court in the case of  Godhu and anr. v\/s. State of  <\/p>\n
    Rajasthan reported in AIR 1974 SC 2188 on the issue relating to appreciation of <\/p>\n
    dying declaration.   In respect of appreciation or suspicious circumstances while <\/p>\n
    recording dying declaration, the learned counsel for the Appellant also placed <\/p>\n
    reliance on the judgment of the Apex Court in the case of Rasheed Beg v\/s State  <\/p>\n
    of M.P. reported in AIR 1974 SC 332.\n<\/p>\n
    24           The   learned   APP   appearing   for   the   State\/Respondent   placed <\/p>\n
    reliance on the judgment of the Apex Court in the case of Munnawar and others  <\/p>\n
    v\/s. State of Uttar Pradesh and others, reported in (2010) 5 SCC 451.  In the <\/p>\n
    facts of the said case, the Apex Court in Paras 15 and 16 has observed as under :-\n<\/p>\n
                 “15.            In K.Ramchandra Reddy case, this Court again,
\n                 on   an   appreciation   of   the   circumstances   leading   to   the
\n                 recording of the dying declaration, held that it could not be
\n                 relied   upon.   It   is,   therefore,   obvious   that   the   fact   as   to <\/p>\n
                 whether a dying declaration is reliable or not would depend
\n                 upon the facts of the case and the evidence produced by the
\n                 prosecution and no hard and fast rule by way of precedent
\n                 can ever be adopted.\n<\/p><\/blockquote>\n
                 16.            As   already   observed   by   us,   there   are   no
\n                 suspicious   circumstances   whatsoever   with   regard   to   the
\n                 dying declaration recorded by Rajdev Singh and endorsed by
\n                 Dr.Trivedi and no substantial reason has been spelt out by
\n                 Mr.SushilKumar as to why these officers would be a party in
\n                 favour of the prosecution. It is also extremely relevant that <\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 17:23:05 :::<\/span>
\n                                                15                         Crim.Appeal No.1228\/04<\/span><\/p>\n
                    in both the cited cases, the primary argument was based on
\n                    the physical condition of the maker of the dying declaration
\n                    i.e. deceased.  In the present case, however, the fact that the <\/p>\n
                    deceased had remained alive for a long period of time after
\n                    the   incident   and   died   several   days   later   of   septicaemia
\n                    brought about by the gunshot injury clearly shows that his <\/p>\n
                    condition   was   not   overly   critical   or   precarious   when   the
\n                    dying declaration had been recorded.”\n<\/p><\/blockquote>\n
    25              In the light of the facts and the evidence brought on record we find <\/p>\n
    that the prosecution has established its case beyond reasonable doubt. Two dying <\/p>\n
    declarations i.e. oral dying declaration given to PW. No.2 Parubai and the written <\/p>\n
    dying   declaration   recorded   by   PSI   Patil   and   PW   No.5   Dilip   Jadhav   Executive <\/p>\n
    Magistrate,   are   reliable.   They   are   voluntary   in   nature   and   provide   truthful <\/p>\n
    account of the incident. The deceased survived for 5 to 6 days after the incident.\n<\/p>\n
    Her   stand   in   respect   of   Appellant’s   involvement   in   the   incident   is   consistent <\/p>\n
    through out in spite of the fact that she survived for 5 to 6 days. More so in the <\/p>\n
    light  of  the   fact  that  she   was having  three   small   children,   she   continued   and <\/p>\n
    maintained her stand that Appellant had poured kerosene on her person and set <\/p>\n
    her on fire.  We do not find that out of vengeance the deceased had blamed the <\/p>\n
    appellant.\n<\/p>\n
    26              For the reasons stated above, we find no merit in the appeal. The <\/p>\n
    impugned Judgment and Order dated 04\/06\/2001 passed by the learned Iind <\/p>\n
    Additional Sessions Judge, Satara in Sessions Case No.108 of 2000 is confirmed.\n<\/p>\n
    The appeal is dismissed.\n<\/p>\n
    (MRS.MRIDULA R BHATKAR J.)                                       (NARESH H PATIL, J.)\n\n\n\n\n                                                                    ::: Downloaded on - 09\/06\/2013 17:23:05 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Keshav Laxman Chalke vs The State Of Maharashtra on 22 June, 2011 Bench: Naresh H. Patil, Mridula Bhatkar 1 Crim.Appeal No.1228\/04 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1228 OF 2004 Keshav Laxman Chalke ] C.No.1413 ] Kolhapur Central Prison, ] Kalamba – 416007. Kolhapur […]<\/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-272125","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKeshav Laxman Chalke vs The State Of Maharashtra on 22 June, 2011 - 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\/keshav-laxman-chalke-vs-the-state-of-maharashtra-on-22-june-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Keshav Laxman Chalke vs The State Of Maharashtra on 22 June, 2011 - 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