Sanjay Kalapa Bansode vs The State of Maharashtra

P.V. Hardas, J.—The appellant, who stands convicted for offence punishable u/s 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 1000/-, in default of which to undergo further RI for six months, by the 6th Ad-hoc Additional Sessions Judge, C.R. No. 6, Sewree, Mumbai, by judgment dated 30/07/2005, in Sessions Case No. 860 of 2004, by this appeal questions the correctness of his conviction and sentence. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus:-

PW 6 - PSI Anil Patil, who, on 13/7/2004, was attached to the Dahisar Police Station, received message from the Bhagwati Hospital about admission of injured Geeta, wife of the appellant, in the hospital with burns. PW 6 - PSI Anil Patil, accordingly, informed PI More about the receipt of the message and along with PI More and another constable and Special Executive Officer PW 3 - Sheela Yadav, proceeded to the Bhagwati Hospital. Injured Geeta was admitted in Ward No. 4 in the Bhagwati Hospital. PW 3 - Special Executive Officer Sheela Yadav recorded the dying declaration of injured Geeta at Exh. 13. Thereafter, PW 6 - PSI Anil Patil recorded the statement of injured Geeta at Exh. 17. In the statement recorded at Exh. 17, Geeta had stated that the appellant had poured kerosene on her and had set her ablaze. Accordingly, offence vide Crime No. 216 of 2004 was registered u/s 307 of the IPC against the appellant. The printed FIR is at Exh. 18. PW 6 - PSI Anil Patil, thereafter, proceeded to the scene of the incident and in the presence of the panchas, drew the scene of the incident panchanama at Exh. 10. From the scene of the incident, pieces of burnt clothes, burnt paper, a steel pot, lighter and stove were seized under panchanama at Exh. 10. Statements of witnesses were recorded. The appellant was arrested on the same day and further investigation was thereafter handed over to PW 8 - PI More.

PW 8 - PI More, who was also attached to the Dahisar Police Station, had accompanied PW 6 - PSI Anil Patil to the Bhagwati Hospital, where statement of injured Geeta was recorded. On the basis of the statement of Geeta, an offence vide Crime No. 216 of 2014 was registered u/s 307 of the IPC against the appellant. PW 8 - PI More telephoned the parents of Geeta, who were residing in Uttar Pradesh and informed them about the incident. Further investigation was, thereafter, handed over to PW 10 - PI Narayan Patil.

PW 10 - PI Narayan Patil, who was also attached to the Dahisar Police Station, was entrusted with the investigation of Crime No. 216 of 2004. On 22/7/2004 he forwarded the seized articles to the Chemical Analyzer under requisition at Exh. 31. On 29/7/2004, injured Geeta succumbed to her injuries. The dead body was, thereafter, referred for postmortem examination. A message has been given to the relatives of deceased Geeta in Uttar Pradesh. Since they did not come to Mumbai, PSI Narayan Patil was sent to Uttar Pradesh and accordingly statements of the parents and other relatives of Geeta were recorded. Further to the completion of investigation, a charge-sheet against the appellant was submitted.

Postmortem on the dead body of deceased Geeta was performed by PW 9 - Dr. Ghotekar, who noticed that Geeta had sustained 90% burns. He, therefore, opined that cause of death was septicemic shock due to 90% mixed (Dermo-epidermal thick) burns. The postmortem report is at Exh. 28.

On committal of the case to Court of Sessions, trial court, vide Exh. 3, framed charge against the appellant for offence punishable u/s 302 of the IPC. The appellant denied his guilt and claimed to be tried. Prosecution, in support of its case, examined 10 witnesses. The defence also examined 10 witnesses. The trial court, upon appreciation of the evidence of the witnesses examined during the trial, came to the conclusion that the prosecution had proved the offence against the appellant beyond reasonable doubt and accordingly convicted and sentenced the appellant.

In order to effectively deal with the submissions advanced before us by Mr. Nitin Sejpal, learned counsel for the appellant and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

PW 1 - Mahadev Harshe, a neighbour of the accused, did not support the prosecution and was declared hostile. Nothing of substance has been elicited in his cross-examination. Prosecution has examined PW 3 - Special Executive Officer Sheela Yadav, who has recorded the dying declaration of Geeta at Exh. 13. PW 3 - Sheela Yadav deposes that she was working as a SEO since 17/8/2001 and on 14/7/2004 was called by the Police at the Bhagwati Hospital for recording the statement of Geeta. PW 3 - Sheela Yadav, accordingly, proceeded to the Bhagwati Hospital at about 11.30 p.m. Geeta was identified by the Nurse, who was present there. Other relatives were also present near injured Geeta and, therefore, she requested them to withdraw themselves from the Ward. She thereafter questioned Geeta as to what had happened and Geeta had stated that the appellant had poured kerosene on her and had set her ablaze. PW 3 - Sheela Yadav deposes that she accordingly recorded the statement of Geeta at Exh. 13. She further deposes that after the statement of Geeta was recorded, PW 6 - PSI Anil Patil, who was standing outside, also recorded the statement of Geeta. PW 3 - Sheela Yadav deposes that she was present when the statement of Geeta was recorded by PW 6 - PSI Anil Patil.

In cross-examination, PW 3 - Sheela Yadav has admitted that she did not feel it necessary to call the Medical Officer to verify whether Geeta was mentally and physically in a position to give her statement. She has admitted that Geeta had deposed in Marathi, which was translated into English by PW 3 - Sheela Yadav. She deposes that she had read over and explained the contents of the statement to Geeta and thereafter had taken her signature. She has admitted as true that in the dying declaration there was no mention that the statement of Geeta was read over and explained to her. She has also admitted that she could have recorded the statement of Geeta in Marathi.

Prosecution has examined PW 6 - PSI Anil Patil, who has recorded the statement of Geeta at Exh. 17. PW 6 - PSI Anil Patil deposes that he along with PI More, one constable and PW 3 - Sheela Yadav, had gone to the Bhagwati Hospital. Initially, dying declaration of Geeta was recorded by PW 3 - Sheela Yadav and thereafter PW 6 - Anil Patil recorded the statement of Geeta. He deposes that thereafter an offence, vide Crime No. 216 of 2004, was registered u/s 307 of the IPC. He has admitted that he had taken PW 3 - Sheela Yadav along with him at the time when he had gone to the hospital. According to him Geeta had sustained 55 to 66 percent burn injuries. He could not state the time when they had reached the Bhagwati Hospital.

Prosecution has examined PW 7 - Dr. Jayant Chavan, who was Medical Officer working in the Bhagwati Hospital as a Casualty Medical Officer. He deposes about admission of Geeta on 14/7/2004. According to him, Geeta had sustained superficial burns on the face, neck, chest, abdomen, inguinal region, right thigh, left thigh. According to him Geeta had sustained about 57% burns. He further deposes that she was admitted in the hospital till 19/7/2004 and was then discharged against the medical advise. He has produced the medical case papers at Exhs. 20 and 21.

Learned counsel for the appellant has urged before us that there is no evidence that the dying declarations at Exhs. 13 and 17 were read over to Geeta before her signature was obtained and Geeta had admitted the contents to have been correctly recorded. The submission, therefore, is that no reliance at all can be placed on the dying declarations at Exhs. 13 and 17. The learned APP has supported the findings recorded by the trial court.

In respect of dying declaration at Exh. 13, we find that there is no endorsement whatsoever that the dying declaration had been read over to Geeta and Geeta had admitted the contents to have been correctly recorded. We further find another infirmity in the dying declaration, namely, that it has not recorded in the language of the declarant. According to PW 3 -Sheela Yadav, injured Geeta had stated the recitals of Exh. 13 in Marathi, which were translated into English by PW 3 - Sheela Yadav. In respect of the dying declaration at Exh. 17, the evidence of PW 6 - PSI Anil Patil does not indicate that the contents of the dying declaration had been read over to injured Geeta and Geeta had admitted the contents to have been correctly recorded.

A reliance in this behalf may usefully be made to the judgment of the Division Bench of this court in Manohar Dadarao Landge Vs. State of Maharashtra . The Division Bench, at paragraph 15 of the said judgment, has held thus:-

The prosecution ought to have specifically brought on record that Savita had heard the statement recorded by the Executive Magistrate and she admitted it to be true and correct. This is not mere formality but an essential part while recording the dying declaration. Because the person who cannot be examined afterwards, must at least, at that time, should have confirmed correctness of the statement. But that has not happened in this case. Mere formality of recording the statement might have been done by the executive Magistrate. But that by itself is not sufficient to hold that this is a dying declaration on which conviction can be based.

A reference may also be made to the judgment of the Division Bench of this Court in Shivaji Tukaram Potdukhe vs. State of Maharashtra [2004 ALL MR (Cri) 3220]. The Division Bench of this Court in the said case has held that since the dying declaration had not been read over to the deceased, the dying declaration could not be made the foundation for sustaining conviction of the accused.

A reference may also be made to the Division Bench judgment of this Court in Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, . The Division Bench, at paragraph 8 of the judgment, has come to the conclusion that since the statement of the injured was never read over to the injured and there was no endorsement to that effect, the dying declaration could not be a foundation for sustaining the conviction and merely mentioning in the printed proforma that the statement was read over to the deponent, it could not be presumed that the actual exercise of reading over the statement and getting it endorsed to be correct, was actually followed. Reliance was placed by the Division Bench on the judgment of the Supreme Court in Shaikh Bakshu and Others Vs. State of Maharashtra , wherein the Supreme Court has held that in the absence of a mentioning that dying declaration was read over and explained to the deceased, it could not be presumed that it had been read over and explained to the deceased.

On this ground i.e. that there is no evidence the dying declarations at Exhs. 13 and 17 had been read over to Geeta and Geeta had admitted the contents to have been correctly recorded, the dying declarations will have to be left out of consideration. Additionally, we find that the dying declarations at Exh. 13 suffers from another infirmity i.e. it is not in the exact words of the deceased as whatever was stated by the deceased to PW 3 - Sheela Yadav was translated into English by PW 3 - Sheela Yadav and in the absence of evidence that the contents had been admitted by the deceased to have been correctly recorded, no reliance could be placed on the same. The two dying declarations, therefore, will have to be left out of consideration.

The prosecution has relied upon the history which is recorded in the medical case papers. Prosecution has examined PW 7 - Dr. Chavan, who does not depose that he had recorded the history on the history being narrated by injured Geeta. There is no evidence as to who had actually recorded the history and who had narrated the facts, which were so recorded. In the absence of such evidence, the recitals in the medical case papers cannot be made use of.

Prosecution has examined PW 4 - Rajaram Yadav, father of deceased Geeta. PW 4 - Rajaram deposes that after the husband of Geeta left the house, Geeta was residing with the appellant. Geeta had performed a second marriage with the appellant. He further deposes that Geeta had given birth to one child during the subsistence of marriage with the appellant. According to PW 4 - Rajaram, the appellant used to torture Geeta and used to assault her and Geeta was made to starve. The appellant was addicted to liquor. He deposes that he had received a message that Geeta had sustained burns, but could not go to Bombay. Subsequently, he learnt that Geeta had died due to the burns. He has admitted that his statement was recorded by the police. In cross-examination, he has admitted that the marriage of Geeta and the appellant was against his wishes. He has admitted not to have gone to the house of the appellant after the solemnization of the marriage with Geeta. He has admitted that he had not lodged a complaint against the appellant when the appellant had assaulted Geeta in his house.

Prosecution has also examined PW 5 - Ishrajidevi, mother of deceased Geeta. PW 5 - Ishrajidevi deposes that the accused used to quarrel with Geeta and assault her and also used to starve Geeta.

The evidence of PW 4 - Rajaram and PW 5 - Ishrajidevi does not assist the prosecution in advancing its case further in respect of the offence punishable u/s 302 of the IPC. Admittedly, the accused was not charged for an offence punishable u/s 498A of the IPC. The evidence of PW 4 - Rajaram and PW 5 - Ishrajidevi would, at the most, suggest that the relations between the appellant and his deceased wife Geeta were strained. However, the evidence in respect of the alleged ill-treatment is so cryptic and so vague that no reliance whatsoever can be placed on the said evidence.

The accused, in his defence, has examined DW 1 - Swapnil. Swapnil deposes that on the day of the incident, his mother, deceased Geeta was alone in the house and he had heard the cry of his mother Geeta, calling loudly to the appellant. He had noticed Geeta was engulfed by flames and, therefore, accordingly had called his father, the appellant, who was outside the house. He deposes that the appellant had then poured water and had extinguished the flames. This witness was cross-examined by the learned APP. In the cross-examination nothing has been elicited, which would in any manner affect his credibility.

In respect of the appreciation of the evidence of the defence witness, the Supreme Court in State of Punjab Vs. Sanjiv Kumar @ Sanju and Others, has observed at paragraph 23 as under:-

It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witness must be held to be untruthful, merely because they support the case of the accused.............

Supreme Court, in Dudh Nath Pandey Vs. State of Uttar Pradesh, has held that defence witnesses are entitled to equal treatment with those of the prosecution and the courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.

In the present case, since we have recorded a finding that no reliance can be placed on the two dying declarations at Exhs. 13 and 17 and there is no other evidence which would prove the offence against the appellant beyond reasonable doubt and as the prosecution has failed to prove the offence against the appellant beyond reasonable doubt, according to us, it is not necessary to examine if the accused has been able to probabilise his defence. The prosecution, according to us, has utterly failed to prove the offence against the appellant beyond reasonable doubt. In that light of the matter, therefore, according to us, the appellant is entitled to be given the benefit of doubt. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.