PRADIP RAMKRUSHNA SHEDMAKE (IN JAIL) vs THE STATE OF MAHARASHTRA, THROUGH P.S.O. P.S. KORCHI, GADCHIROLI

M.G. Giratkar, J

Appellant/accused assailed the judgment of conviction passed by Sessions Judge, Gadchiroli in Sessions Case No. 71/2014, by which he is convicted

for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life.

The case of the prosecution against the appellant (hereinafter referred to as 'accused') in short is as under.

(i) Deceased Seema married with accused/appellant 7 years before the incident. She was having two daughters. They were residing on rent in

the house of one Krushna Padoti. On 1Â6Â2014 at about 6.00 a.m., she was doing household work. There was quarrel between her and her

husband (accused). Her husband assaulted her by fist blows and threatened her to kill by burning. Accused, saying so, poured kerosene on her

person, ignited match stick and set her on fire. He closed the door and went in another room. She shouted loudly as “saveÂsaveâ€.Â

Neighbourers rushed there and extinguished the fire. She was immediately taken to Rural Hospital, Korchi and admitted there for treatment. Her

condition was critical, therefore, she was referred to General Hospital, Gadchiroli. On the way, she died.

(ii) N.P.C. Radheshyam Fulkawar went to Rural Hospital and recorded statement of deceased. Same was treated as report. Crime was

registered vide First Information Report, Exhibit 28. Police Inspector Tandale investigated crime. He issued letter to Executive Magistrate for

recording dying declaration. Executive Magistrate Shri Khandare (P.W. 3) recorded dying declaration of deceased Seema, Exhibit 19. Police

Inspector Shri Tandale recorded statements of witnesses and after complete investigation, filed chargeÂsheet before the Judicial Magistrate First

Class, Kurkheda who in turn committed the same to the Court of Sessions, Gadchiroli for trial.

(iii) Charge was framed at Exhibit 6 for offence punishable under Section 302 of the Indian Penal Code. Same was readover and explained to the

accused. He pleaded not guilty and claimed to be tried. Prosecution has examined 9 witnesses. After hearing the prosecution and defence,

learned trial Court convicted accused as stated above, hence, the present appeal.

Heard learned counsel Shri Sirpurkar for the accused. He has pointed out evidence of Executive Magistrate, P.W. 3 and submitted that he has

not recorded dying declaration, Exhibit 19. It was not dying declaration of Seema but may be stated by her relatives. His evidence shows that he

was not satisfied before recording dying declaration about the mental fitness of deceased.

Learned counsel Shri Sirpurkar has submitted that deceased sustained 100% burns. As per evidence of Medical Officer Dr. Wasnik, throat and

both palms were burnt. She had 100% burn injuries. He had given pain killer to her. Pain killer administered to patient affects nervous system

and goes to semiÂconscious stage. Condition of Seema was critical. Therefore, he referred her to District Hospital at Gadchiroli. He has given

instructions to police not to waste time in recording dying declaration of Seema. Hence, Seema was immediately taken to District Hospital,

Gadchiroli.Â

Learned counsel has submitted that this admission in the crossÂexamination of Medical Officer shows that Seema was not in a fit condition to

given statement. Therefore, her statement, Exhibit 27 recorded by P.W. 5 Radhesyam Fulkawar is not reliable. Exhibit 19 was recorded by

Executive Magistrate Shri Khandare. His evidence is doubtful because Medical Officer not stated that Executive Magistrate came to him and

requested to examine the patient. Learned counsel has submitted that both the dying declarations Exhibit 19 and Exhibit 27 are contradictory.Â

Oral evidence of P.W. 1 Manik Madavi and P.W. 2 Krushna Padoti show that door was locked from inside. Devidas and Mangal broke open the

door and taken out Seema. Both these witnesses not examined by the prosecution.

Learned counsel has pointed out decision in the case of Narendra Ramdas Meshram and ors. Vs. State of Maharashtra reported in 2017 ALL MR

(Cri) 214. Learned counsel has submitted that except dying declarations which are contradictory and doubtful,, there is no other evidence by the

side of prosecution. Learned trial Court wrongly convicted the accused, hence, prayed to allow the appeal and acquit the accused.

Heard learned Additional Public Prosecutor Mrs. Joshi for the State/respondent. She has strongly supported the impugned judgment. Â

Learned Additional Public Prosecutor has submitted that accused was in the house when Seema was taken out. He had not made any attempt to

save his wife. This itself shows that accused burnt deceased. Dying declarations are corroborated, therefore, learned trial Court rightly convicted

the accused, hence, appeal is liable to be dismissed.

P.W. 1 Manik Madavi has stated in his evidence that at about 6.30 a.m., he saw smoke coming from the house of accused. He heard shouts of

Seema, that time, Mangal kicked the door. He saw Seema was burning. They extinguished fire. Thereafter Seema was referred to

Government Hospital.

P.W. 2 Krushna Padoti has stated that he had seen villagers gathered in front of house of accused. House of accused was closed from inside.Â

His son Devidas and Mangal kicked the door of house and opened the same. They had seen Seema burning in the house. They tried to extinguish

fire, however, she was burnt. When he had gone to the house of accused, he had seen accused sitting in his house.

Evidence of P.W. 1 shows that door was closed from inside. He has not stated about the presence of accused whereas P.W. 2 stated the

presence of accused. His evidence is not reliable because those material witnesses namely, Devidas and Mangal who kicked the door and opened it

not examined by the prosecution.

P.W. 3 Punjaram Khandare, Executive Magistrate has stated that on 1Â6Â2014, he went to Rural Hospital, Korchi. He requested Medical

Officer that he wanted to record dying declaration and requested him to certify about her condition. Medical Officer had given opinion that Seema

Shedmake was in fit condition to give her statement. Thereafter he has recorded the statement/dying declaration of Seema, Exhibit 19.

From the perusal of Exhibit 19, it appears that there is no endorsement of Medical Officer to show that before recording dying declaration, he

examined the patient and found fit to give the statement. There is also no endorsement to show that after recording the dying declaration, he examined

the patient and found fit during recording the statement. From the perusal of Exhibit 19, there is only endorsement of Medical Officer that she was

capable of giving statement (c;k.k ns.;kl l{ke vkgs).

In dying declaration, Exhibit 19, deceased has stated that there was quarrel between her and her husband on account of fetching of water.Â

Thereafter accused threatened her to kill by burning and saying so, poured kerosene and ignited match stick. He closed the door and went out.Â

This particular dying declaration is contradictory to the dying declaration stated to P.W. 5 N.P.C. Fulkawar. P.W. 5 recorded dying declaration,

Exhibit 27 in which she has stated that her husband poured kerosene and set her on fire, closed the room and went to another room.

Evidence of P.W. 3 Executive Magistrate is not reliable because in his crossÂ​examination, he has admitted as under :

“I had taken certificate of M.O. before recording dying declaration of Sima. However, the endorsement is not written prior to the dying

declaration of Sima. I had not taken medical certificate of M.O. after completion of dying declaration of Sima. I had obtained certificate of M.O.

from him in his chamber and thereafter I had gone for recording dying declaration of Sima. After recording dying declaration of Sima, I had not met

M.O. again. In dying declaration of Sima, I had not mentioned at what time I started the same and at what time I finished the same and on what

date I recorded the same. After recording dying declaration of Sima, I had not taken endorsement on her dying declaration that contents of the

same were read over to Sima and she admitted contents of the same.â€​

Medical Officer, P.W. 6 Dr. Pradip Wasnik not stated in his evidence that P.W. 3 requested him to examine the patient and certified about the

condition. He has not stated a single word about the recording of dying declaration by P.W. 3. Therefore, evidence of P.W. 3 is not reliable.Â

His evidence does not show that patient was mentally fit to give the statement. P.W. 3 has not stated in his evidence that he asked some questions

to the patient and after his satisfaction that she was mentally fit to give statement, he has recorded dying declaration. Therefore, dying declaration

recorded by P.W. 3, Exhibit 19 is not reliable.

P.W. 4 Gopal Chimurkar has stated in his evidence that on 1Â​6Â​2014 at about 6.00 a.m., he was fetching water. There was quarrel in between

accused and wife. After sometime, he saw smoke. By that time, persons of locality had gathered there. Someone had opened the door. He

had seen Seema lying inside the house in burnt condition. At that time accused was sitting in his house. People gathered there and taken Seema

to the hospital. What he has stated about the quarrel between the deceased and accused and presence of accused in his house are the material

omissions brought on record in his crossÂ​examination. Therefore, his evidence is not reliable.

P.W. 5 Radheshyam Fulkawar has stated that he went to Rural Hospital, Korchi after receipt of information and requested Medical Officer

whether Seema was in a position to give her statement. Medical Officer given endorsement on letter, Exhibit 25 that Seema was in a position to give

statement. Thereafter he has recorded her statement vide Exhibit 27. She has stated in her statement, Exhibit 27 that her husband quarreled with

her. He beat her, threatened to kill her and poured kerosene on her person and set her on fire. After closing the door, he went in another room.Â

Thereafter, she shouted as “saveÂsave†(okpok& okpok). Neighbours rushed there and admitted her in the hospital. This particular

statement, Exhibit 27 appears to be doubtful because P.W. 5 not stated that he had asked any question to Seema and thereafter he satisfied about the

mental fitness of deceased. There is no evidence to show that deceased was mentally fit to give the statement. CrossÂexamination of P.W. 5

shows that Seema was having 100% burn. He had given letter to Medical Officer in his cabin.

Medical Officer Dr. Wasnik (P.W. 6) has stated in his crossÂ​ examination as under:

“Seema was admitted in the hospital at about 7Â00 a.m. She had received 100% burn injuries. Her throat and both palms had burnt. When I

started giving medical treatment to Seema, I had given pain killer to her. Pain killer administered to patient affects his nervous system and he goes

to semiÂconscious stage. As the condition of Seema was critical, I had referred her to District Hospital, Gadchiroli. Accordingly I had given

directions to police. I had also directed police not to waste time in recording dying declaration of Seema. Hence, Seema was immediately taken

to District Hospital, Gadchiroli. On that day, I received information that however Seema died while taking to District Hospital, Gadchiroli. Hence,

it confirmed to me that her condition was critical. It is not correct to say that I had given my endorsement on Exh. 25 and 27 subsequently. In my

endorsement at Exh. 32, I had not mentioned date and time when I had given the same. Accordingly I had also not mentioned date and time in my

endorsement at Exh. 27. Police had obtained my endorsement at Exh. 32 when I was present in my chamber.â€​

CrossÂexamination of Medical Officer shows that condition of Seema was critical. Her throat and both palms were burnt. She was given

pain killer and, therefore, nervous system goes to semiÂconscious stage. She was in a critical condition, therefore, he referred her to District

Hospital, Gadchiroli. He directed police not to waste time in recording dying declaration. Police had obtained his endorsement at Exhibit 32 (on

Exhibit 25) when he was present in his chamber. This particular evidence of Medical Officer shows that he did not examine the patient before

recording dying declaration, Exhibit 27. From the plain reading of Exhibit 27, it is clear that endorsement only shows that Exhibit 27 was recorded in

presence of Medical Officer (ekÖ;k le{k c;k.k ?ksrys). Except this endorsement, there is no any endorsement to show that before recording dying

declaration and after recording dying declaration, patient was examined by Medical Officer. Therefore, Exhibit 27 appears to be doubtful.

From the evidence on record, it is clear that dying declaration recorded by P.W. 3 Naib Tahsildar Shri Khandare appears to be doubtful because

his evidence in crossÂexamination shows that endorsement on dying declaration was not written prior to recording Exhibit 25 this itself shows that

there is no such endorsement before and after recording dying declaration. Moreover, Exhibit 19 was not read over to deceased. Medical Officer

not stated about the recording of dying declaration, Exhibit 19 by P.W. 3. Whatever P.W. 5 has stated about dying declaration is not reliable in view

of the evidence of Medical Officer. Evidence of Medical Officer shows that patient was not in a mentally fit condition to give statement. She

was in a critical condition, therefore, immediately referred to the District Hospital, Gadchiroli. On the way to Gadchiroli, patient died.

Father of deceased, namely, P.W. 7 Hiralal Kulsange has stated in his evidence that when he reached to the hospital at Korchi, Seema was in

burn condition. She was not in a position to talk. This evidence creates doubt about the contents of dying declaration, Exhibit 19 and Exhibit 27.Â

Without any corroboration, dying declaration cannot be relied on.

In the case of Khushal Rao vs. State of Bombay reported in AIR 1958 SC 22, Hon'ble Supreme Court has observed as under:Â​

“In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in  view the fact that the

statement has been made in the  absence of the accused who had no opportunity of testing the veracity of the statement by crossÂexamination.

But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the  circumstances of the death and the

assailants of the victim, there is no question of further corroboration.

If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not

reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for

corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the

fact that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or

from such other infirmities as may be disclosed in evidence in that case.â€​

The Division Bench of this Court in the case of Narendra Ramdas Meshram and ors. Vs. State of Maharashtra (cited supra) has observed as

under: Â​

Conviction of inÂlaws on basis of dying declaration. Husband, brotherÂinÂlaw and motherÂinÂlaw of deceased allegedly set her ablaze.Â

Evidence of two written and one oral dying declaration brought on record. As regards first declaration, doctor who gave endorsement as to fitness

of deceased not examined by prosecution.  Even the scribe failed to state that he was satisfied as to fitness of deceased. Whereas in the second

declaration, there is no endorsement that after recording statement of deceased, it was read over to her which she admitted to be true. Further,

parents of deceased claimed that deceased made oral dying declaration to them upon which they lodged complaint. Said version of parents not

supported by Police Officer. Making of oral declaration itself is doubtful. Conviction set aside.

In the present case, oral evidence in respect of presence of accused stated by P.W. 2 and P.W. 4 are not reliable. Dying declarations, Exhibit

19 and Exhibit 27 are contradictory. Evidence of P.W. 7, father of deceased shows that Seema was not in a position to talk. CrossÂexamination of

Medical Officer shows that condition of deceased was critical, therefore, he immediately referred her to District Hospital, Gadchiroli.

It is now well settled law that conviction can be based only on the basis of dying declaration, provided that, it should be free from doubts and

inspires the confidence of the Court. Evidence adduced by the prosecution i.e. Exhibit 19 and Exhibit 27 â€" statements/dying declarations recorded

by Executive Magistrate and N.P.C. are contradictory to each other. There is no evidence to show that deceased was in mentally fit condition.Â

On the other hand, crossÂexamination of Medical Officer shows that deceased was not in mentally fit condition. P.W. 7 father of deceased also

stated that she was not in a position to talk, therefore, Exhibit 19 and Exhibit 27 appear to be doubtful. Learned trial Court not considered the evidence

properly and wrongly convicted the accused.Â

In view of the aforesaid discussion, we have no hesitation in mind that accused is entitled for acquittal. Accordingly, we pass the following

order.

(i) The appeal is allowed.

(ii) Conviction and sentence awarded to the appellant/accused for the offence punishable under Section 302 of the Indian Penal Code by the Sessions

Judge, Gadchiroli in Sessions Case No. 71/2014 is hereby quashed and set aside.Appellant/accused is acquitted of the offence charged against him.

(iii) Appellant is on bail. His bail bond stands cancelled.

(iv) Fine amount, if any, paid by the appellant be refunded to him.

(v) R & P be sent back to the trial Court.