Gajanan vs The State of Maharashtra

P.V. Hardas, J—The appellant who stands convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 1,000/- and in default of which to undergo further R.I. for three months by the learned Additional Sessions Judge, Achalpur by judgment and order dated 31.8.2013 & 2.9.2013 in Sessions Trial No. 45/11 by which the appellant questions the correctness of his conviction and sentence.

The facts as are necessary for the decision of this appeal may briefly be stated thus:--

"PW.2 A.S.I. Ramesh Raut, who on 8.3.2011 was attached to Chandur Bazar Police Station and was on duty at the station-diary was handed over a dying declaration of injured Pratibha which had been recorded at the Irwin Hospital, Amravati. On the basis of the statement of Pratibha, he registered an offence vide Crime No. 45/11 under Section 307 of the Indian Penal Code. The printed proforma of the FIR is at Exh. 13."

PW.11 Umesh Khodake, who on 7.3.2011 was attached to the Tahsil office Bhatkuli as Naib Tahsildar-cum-Executive Magistrate received an intimation from the police at the Irwin Hospital asking him to record the dying declaration of a lady, who had been admitted with burns. PW.11 Umesh Khodake accordingly visited the Irwin Police Chowki and received the memorandum for recording the dying declaration of Pratibha. He contacted the Medical Officer on duty and requested him to ascertain if Pratibha was in a fit condition to give her statement. The Medical Officer PW.5 Dr. Avinash Pagdhune examined Pratibha and opined that she was in a fit condition to give her statement. Accordingly, PW.11 Umesh Khodake, Executive Magistrate recorded the dying declaration of Pratibha. In the said statement, Pratibha had disclosed that the appellant had returned from work after sunset and demanded money. Since Pratibha could not give the money as per the demand of the appellant, the appellant quarrelled with her and assaulted her with grinding stone. The appellant thereafter poured kerosene on Pratibha and set her ablaze. According to Pratibha, she was admitted to the hospital by her father-in-law. After the statement was recorded, the endorsement of the Medical Officer was obtained and thereafter thumb impression of Pratibha was obtained on the dying declaration. The dying declaration is at Exh. 24.

PW.10 PSI Maroti Jagtap, who was attached to the Chandur Bazar Police Station was entrusted with the investigation of Crime No. 45/11 under Section 307 of the Indian Penal Code. He visited Bramhanwada village where the accused was residing and accordingly arrested the appellant. He recorded the statements of witnesses. The clothes of the appellant were seized in the presence of panchas under seizure-memo at Exh. 41. An intimation was received that injured Pratibha had succumbed to her injuries on 16.3.2011 and accordingly Section 302 of Indian Penal Code was added. The seized articles were forwarded to the Chemical Analyser under requisition at Exh. 43. Further to the completion of the investigation, a charge-sheet against the appellant was filed.

On the case being committed to the Court of Sessions, the trial Court vide Exh. 6 framed charge against the appellant for offence punishable under Sections 498-A & 302 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined eleven witnesses. The defence of the appellant was of denial. The trial Court on appreciation of the evidence convicted and sentenced the appellant as aforestated while acquitting him for offence punishable under Section 498-A of the Indian Penal Code.

We have heard Mr. P.A. Rajurkar, the learned Counsel for the appellant and Mr. Niyush S. Khubalkar, learned Additional Public Prosecutor on behalf of the respondent State.

In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses.

The evidence of PW.3 Gitabai and PW.4 Avinash, mother and brother of deceased Pratibha respectively reveals that the deceased Pratibha was married to the appellant about six years prior to the incident. The appellant was addicted to liquor and after consuming liquor used to assault Pratibha. According to Gitabai and Avinash, on the day of the incident they had received a telephonic call from one Raju Amzare, who has been examined as PW.8. PW.8 Raju Amzare informed him that Pratibha had been admitted in the hospital with burns as the appellant had poured kerosene on her and had set her ablaze. Accordingly, PW.3 Gitabai and PW.4 Avinash went to the hospital and on reaching the hospital they noticed Pratibha admitted in the ward. They questioned Pratibha as to the cause of her burns and Pratibha disclosed that the appellant who had demanded money for consuming liquor on being refused by Pratibha assaulted Pratibha and poured kerosene on her and set her ablaze. Pratibha was admitted in the hospital for a period of about 9 days and thereafter succumbed to her injuries.

In cross-examination of both these witnesses, an admission has been obtained that their statements were recorded on 10.3.2011, i.e. three days after the incident. It may incidentally be stated that the offence had already been registered on 7.3.2011 on the basis of the dying declaration of injured Pratibha. The claim of Gitabai that Pratibha had disclosed to her about the incident stands fully falsified in the light of portion marked ''A'' from her previous statement wherein she has admitted that Pratibha when admitted in the hospital was not in a position to talk. Even otherwise, since the contents of the dying declaration were known to PW.3 Gitabai and PW.4 Avinash, it was easy for them to have introduced the oral dying declarations in their statements which were recorded three days after the incident. These witnesses have admitted that immediately on being informed they had not taken any steps of informing the police.

In our opinion, therefore, implicit reliance cannot be placed on the oral dying declarations alleged to have been made by Pratibha to PW.3 Gitabai and PW.4 Avinash.

The pivot of the prosecution case is the dying declaration recorded by PW.11 Umesh Khodake, Naib Tahsildar. It appears that neither in the evidence of PW.11 Umesh Khodake nor in the dying declaration at Exh. 24 is there any endorsement that the dying declaration had been read over to Pratibha and Pratibha had admitted the contents to have been correctly recorded. A reference may usefully be made to the judgment of the Division Bench of this Court in Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, (2012) BomCR(Cri) 329 : (2012) CriLJ 3277 . The Division Bench of this Court to which one of us (P.V. Hardas, J.) was a member, by relying on the judgment of the Supreme Court in Shaikh Bakshu and Others Vs. State of Maharashtra as well as by relying on the Division Bench judgment of this Court in Shivaji Tukaram Potdukhe.vs. State of Maharashtra reported in 2004 ALL MR (Cri) 3220 held that unless there was evidence that the dying declaration had been read over to the declarant and declarant has admitted the contents to have been correctly recorded, no reliance could be placed on the dying declaration so recorded.

In the present case, dying declaration at Exh. 24 suffers from the same infirmity. PW.11 Umesh Khodake, Executive Magistrate does not depose that the dying declaration had been read over to the declarant. Similarly, in the dying declaration at Exh. 24 there is no endorsement that the dying declaration had been read over to Pratibha and Pratibha had admitted the contents to have been correctly recorded.

A dying declaration is primarily admissible as an exception to the general rule of hearsay evidence. The declarant is not available before the Court for cross-examination. Unless and until the Court is of the firm opinion that the dying declaration is free from doubts in respect of recording of the same and that the contents of the dying declaration are an unalloyed truth, a conviction cannot be based on a dying declaration.

In the present case, since the dying declaration suffers from the infirmity that it was not read over by the declarant, in our opinion, implicit reliance cannot be placed on the dying declaration. The said dying declaration at Exh. 24 will have to be left out of consideration. Resultantly, we find that there is no evidence whatsoever in respect of the charge under Section 302 of Indian Penal Code. The appellant thus in our opinion is entitled to be given the benefit of doubt.

The Criminal Appeal is allowed.

The conviction and sentence awarded to the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code vide judgment and order dated 2.9.2013 passed by Additional Sessions Judge, Achalpur in Sessions Trial No. 45/11 are quashed and set aside and the appellant/accused is acquitted of the offence with which he was charged and convicted. The fine amount, if paid, be refunded to the accused.

The order passed by the learned trial Judge in so far as disposal of property is concerned, is maintained. Since the appellant/accused is in jail, he is ordered to be released and set at liberty forthwith if not required in any other case.