AI Structured Summary
Not yet generated for this judgment
Judgment
Appellant has assailed the Judgment of conviction
awarded by Sessions Judge, Yavatmal in Sessions Trial No.37 of
2004 for the offence punishable under Section 302 of the Indian
Penal Code and sentenced him to suffer imprisonment for life and to
pay a fine of Rs.500/-, in default to suffer rigorous imprisonment for
15 days. He is also convicted for the offence punishable under
Section 498-A of the Indian Penal Code and sentenced to suffer
imprisonment for two years and to pay a fine of Rs.400/-, in default
to suffer rigorous imprisonment for 10 days.
The case of prosecution against the appellant, in short, is
as under :
Deceased Vanita was married with the appellant in the
year 1992. After marriage, appellant was ill-treating his wife.
Deceased delivered two daughters and one son. At the time of
incident, her daughters were aged about 12 years and 19 years and
son was aged about 7 years. Before the incident, there was criminal
proceeding instituted on the report of deceased. Appellant was
prosecuted for the offence punishable under Section 498-A of the
Indian Penal Code. There was compromise. Deceased started
residing with the appellant. On the day of incident, there was
religious program at the house of parents of appellant. Daughters of
the appellant had been to the house of his father. Appellant had also
gone for the said program. He returned back, beat his deceased wife,
poured kerosene and set her on fire. Neighbours of appellant rushed
to the spot and extinguished the fire. Deceased was admitted in the
hospital.
Information was given to the father and relatives of
deceased. They reached to the hospital. In the night, police informed
Naib-Tahsildar Shrihari Kanhuji Thamke (PW-5) to record dying
declaration. He went to the hospital at about 11.30 p.m., obtained
certificate of fitness from Medical Officer Dr.Mahadeo Maroti Zalke
(PW-10) and recorded the statement of deceased (Exh.50). In the
same night, at about 1.00 p.m., deceased died in the hospital. After
receipt of dying declaration, crime was registered against the
appellant and his relatives for the offences punishable under Sections
302, 498-A r/w. 34 of the Indian Penal Code .
Investigating Officer Mohan Vithalrao Bakade (PW-9)
investigated the crime, went to the spot of incident, prepared spot
panchanama (Exh.52), recorded statements of witnesses, seized
clothes etc. and sent seized property to the Chemical Analyser. After
complete investigation, filed charge sheet before the Judicial
Magistrate, First Class. As the offence punishable under Section 302
of the Indian Penal Code was exclusively triable by the Sessions
Court; therefore, case was committed to the Court of Session for
trial.
Trial Court framed charge against the appellant and
other accused i.e. his parents, brother and sister for the offences
punishable under Sections 498-A and 302 r/w. Section 34 of the
Indian Penal Code.
Prosecution has examined following witnesses :
a. Pundlik Marotrao Badwaik (PW-1) (Exh.32).
b. Uddeshan Nanaji Patil (PW-2) (Exh.33).
c. Amar Pundlikrao Badwaik (PW-3) (Exh.37).
d. Dr.Manjusha Suryakant Chintalwar (PW-4)(Exh.45).
e. Shrihari Kanhuji Thamke (PW-5) (Exh.47).
f. Dayanand Champat Sahare (PW-6) (Exh.51).
g. Atmaram Waghuji Waghmare (PW-7) (Exh.54).
h. Sanjay Pundlikrao Talmale (PW-8) (Exh.59).
I. Mohan Vithalrao Bakade (PW-9) (Exh.60).
j. Dr.Mahadeo Maroti Zalke (PW-10) (Exh.77).
Statements of accused were recorded under Section 313
of the Code of Criminal Procedure. Accused have denied material
incriminating evidence against them. After hearing prosecution and
defence, learned trial Court acquitted the parents (relatives of the
appellant) of the offence punishable under Section 498-A r/w. 34 of
the Indian Penal Code . The appellant is convicted for the offences
punishable under Section 302 and 498-A of the Indian Penal Code
and sentenced, as aforesaid.
Learned trial Court mainly relied on the dying
declaration (Exh.50) recorded by the Naib-Tahsildar Shrihari
Thamke (Exh.47) and the oral dying declaration stated by her father
and brother.
Heard Mr.A.S.Manohar, learned Counsel for the
appellant. He has pointed out Exh. No. 48 (dying declaration
dt.21.2.2004) and Exh. No.49 (Requisition Letter to Medical Officer
by Executive Magistrate, Yavatmal). Learned Counsel has submitted
that the Medical Officer Dr.Mahadeo Zalke (PW-10) was not present
at the time of recording dying declaration. It appears that he signed
the Certificate casually without examining the patient. Exh.48 shows
that Medical Officer Dr.Mahadeo Zalke was busy in Casualty Ward at
about 11.30 p.m. and there is a specific endorsement in that respect
(Exh.48). Learned Counsel has submitted that the dying declaration
recorded by Naib-Tahsildar Shrihari Thamake (PW-5) is not reliable.
Patient had sustained 96 % burns. Her condition was serious.
Learned Counsel pointed out evidence of Dr.Manjusha
Suryakant Chintalwar (PW-4) and submitted that, in her cross-
examination, she has specifically stated that, in case of burns of 96
%, congestion of vital organs starts. General condition of patient at
the time of admission was poor. Learned Counsel pointed out cross-
examination of Amar Pundlikrao Badwaik (PW-3). In his cross-
examination, he has admitted that, because of burns, Vanita was
moaning. In such a situation, she was not in a position to state
anything to her father Pundlik Marotrao Badwaik (PW-1) and
brother Amar Pundlikrao Badwaik (PW-3).
Mr.A.S.Manohar, Learned Counsel has pointed out cross-
examination of Investigating Officer Mohan Bakade (PW-9). He has
admitted in his cross-examination that, during the investigation, it
was revealed that deceased Vanita was alone at her house. His cross-
examination further shows that neighbours extinguished the fire and
admitted deceased in the hospital. Their statements were recorded,
but not filed on record.
Learned Counsel Mr.Manohar has vehementally argued
that dying declaration (Exh.50) and oral dying declaration stated by
Pundlik Badwaik (PW-1) and Amar Badwaik (PW-3) are not free
from doubt. The dying declaration do not inspire any confidence and
therefore, conviction cannot be awarded on the basis of dying declaration. There is no corroboration in respect of dying
declaration. Hence, the conviction awarded by the trial Court is
illegal and liable to be quashed and set aside.
Heard Ms H.N.Jaipurkar, learned A.P.P. for the
respondent/State. She has submitted that evidence of Pundlik
Badwaik (PW-1) and Amar Badwaik (PW-3) show that appellant was
always beating and ill-treating his deceased wife Vanita. He is
prosecuted on the report of deceased Vanita. She had filed
Maintenance Petition. There was settlement. All this evidence shows
that appellant always caused cruelty to deceased.
Ms H.N.Jaipurkar learned A.P.P. has submitted that
immediately after receipt of information, Pundlik Badwaik (PW-1)
and Amar Badwaik (PW-3) went to General Hospital, Yavatmal.
Deceased disclosed them that appellant beat her, poured kerosene
and set her on fire. Learned A.P.P. has pointed out evidence of Amar
Badwaik (PW-5), Naib-Tahsildar Shrihari Thamke (PW-5) and
submitted that, at about 11.30 p.m., Thamke went to hospital and
requested Dr.Mahadeo Zalke (PW-10) to examine the patient and
certify about her fitness. Dr.Mahadeo Zalke examined deceased
Vanita and certified vide Exh.78 that she was fit to give statement.
Thereafter, Shrihari Thamake (PW-5) recorded statement of
deceased, in which she has stated specifically that, one day before
the incident, appellant beat her. Since then he was in a fit of anger.
She has stated that, on the day of incident, at about 3 O''clock in the
afternoon, her husband Vilas poured kerosene on her person and set
her on fire by lighting match stick. Since her marriage, she was
suffering harassment at the hands of her husband. Her husband used
to consume liquor. When the incident took place, they both i.e. her
husband and herself were at home. Whenever her husband was
returning home after visiting his parents, brother and his wife, he
used to beat her.
Learned A.P.P. Ms Jaipurkar has submitted that written
dying declaration (Exh.50) is well corroborated by the dying
declaration stated by Pundlik Badwaik (PW-1) and Amar Badwaik
(PW-3). Learned trial Court has rightly convicted the appellant for
the offences punishable under Sections 302 and 498-A of the Indian
Penal Code. At last, submitted that the appeal is devoid of merits and
liable to be dismissed.
Perused the evidence on record. There is no dispute that
there is no eye witness of the incident. Case of prosecution is solely
based on written dying declaration (Exh.50) and the oral dying
declaration stated by victim''s father Pundlik Badwaik (PW-1) and
brother Amar Badwaik (PW-3). Whether the dying declaration stated
by deceased is reliable, cogent and can form the basis for conviction
is to be decided.
Now it is well settled law that conviction can be awarded
on the basis of dying declaration provided that dying declaration
shall inspire confidence of the Court. Dying declaration (Exh.50) and
oral dying declaration stated by Pundlik Badwaik (PW-1) and Amar
Badwaik (PW-3) is to be scrutinized so as to test about truthfulness
of the dying declaration and its reliability.
There is no dispute that deceased died due to burn
injuries. She had sustained 96 % burn injuries. As per the evidence of
Investigating Officer Mohan Bakade (PW-9), neighbours of appellant
extinguished fire and admitted deceased in the hospital. As per the
admission of Investigating Officer Mohan Bakade (PW-9), statements
of neighbours were recorded, but not filed on record.
Condition of the patient is to be seen when she was
admitted in the hospital. Dr.Manjusha Chintalwar (PW-4) has stated
in her evidence that, on 22.4.2004, she conducted post mortem on
the dead body of deceased Vanita. Vanita had sustained 96 % burns
as per her opinion, cause of death was shock due to burns.
Accordingly, she issued Post Mortem report (Exh.46).
In the cross-examination, Medical Officer Manjusha has
specifically stated as under :
"It is correct that the general condition of the patient at the time of admission was poor. It is correct that general condition means physical condition as-well-as mental condition. "
From the perusal of evidence of Dr.Manjusha Chintalwar
(PW-4), she has specifically admitted in her cross-examination that,
in case of 96% burns, congestion to vital organs starts. General
condition of patient (deceased) at the time of admission was poor.
Her physical and mental condition was poor. This admission also
supports the admission given by Amar Badwaik (PW-3) (brother of
deceased). In the cross-examination, Amar (PW-3) has stated that
Vanita sustained burns all over her body. Her body was covered till
her shoulder. Deceased Vanita was moaning because of burns. This
admission clearly shows that deceased Vanita was not in a position to
talk as she was having severe pain. In such a situation, oral dying
declaration stated by Pundalik Badwaik (PW-1) and Amar Badwaik
(PW-3) are not reliable.
In respect of dying declaration (Exh.50), Naib Tahsildar
Shrihari Thamke (PW-5) has stated in his evidence that, at about
11.30 p.m., he went to burn ward. He requested Medical Officer
present there to examine the patient. Medical Officer examined the
patient and given certificate (Exh.49) that the patient was fit to give
statement. Thereafter, he started recording Exh.50. Again Medical
Officer certified on the said dying declaration. Doctor was present at
the time of recording the statement.
The dying declaration is to be scrutinized very carefully
because dead person cannot be called for cross-examination. Dying
declaration (Exh.50) appears to be doubtful because Dr.Mahadeo
Zalke (PW-10) has given specific endorsement on Exh.48 i.e. on the
request letter issued by Lady Police Head Constable as "busy in
casualty". Time is mentioned as 11.30 p.m. on 21.2.2004. Therefore,
whether the Medical Officer was present at the time of recording
dying declaration is doubtful. Moreover, the evidence of Shrihari
Thamke (PW-5) show that. after recording the dying declaration,
Medical Officer certified on the said dying declaration.
From the perusal of evidence of Dr.Mahadeo Zalke (PW-
10), it is clear that he issued Certificate Exh.78. He only endorsed of
fitness of patient for giving dying declaration. After recording dying
declaration, he issued Certificate (Exh.79). He certified that "dying
declaration is taken in my presence." This Certificate (Exh.79) does
not show that the patient was well-oriented during the time of
recording dying declaration. Record of hospital not produced before
the Court. It is clear from the evidence on record that, immediately
thereafter at about 1.00 a.m., deceased died.
Evidence of Dr.Manjusha Chintalwar (PW-4) clearly
shows that when deceased was admitted in the hospital, her physical
and mental condition was poor. Her further admission in the cross-
examination shows that, in case of 96% burns, vital organs of body
start congestion The incident took place in the afternoon at about
3.00 p.m. The dying declaration (Exh.50) was recorded at about
11.30. She died at about 1 a.m. in the same night. As per the
admission of Amar Badwaik (PW-3), deceased was moaning because
of severe burn injuries. Endorsement of Medical Officer Zalke on
Exh.48 shows that he was busy in Casualty at 11.30 p.m. In such a
situation, it is doubtful as to whether deceased was in a condition to
give statement before the Naib-Tahsildar Shrihari Thamke (PW-5)
and to state about the incident to her father Pundalik Badwaik (PW-
1) and brother Amar Badwaik (PW-3).
Doubt is also created in respect of the incident stated in
the dying declaration. Investigating Officer Mohan Bakade (PW-9)
has specifically stated as under :
"It is correct that during the statements of witnesses it was
revealed that at the time of incident of burns, Vanita was
alone at her house."
He has further admitted as under :
"It is correct that during enquiry it was revealed that after
the incident of fire to Vanita, the neighbouring persons
gathered, extinguished the fire and had then brought her
at Burn Ward at Yavatmal. I have recorded the statements
of all those persons who had brought Vanita to hospital at
Yavatmal and also of driver of the vehicle who had
brought Vanita to the hospital at Yavatmal. It is correct
that the statements of all these persons recorded by me are
not filed with the charge-sheet of this case. "
From the cross-examination of Investigating Officer
Mohan Bakade (PW-9), it is clear that, at the time of incident, Vanita
was alone at her house. When neighbours noticed fire, they rushed
to the house of Vanita, extinguished fire and took her to the hospital.
Admission of Investigating Officer Mohan Bakade (PW-
9) clearly shows that he had recorded statements of all those
persons/neighbours including driver who had taken deceased Vanita
to the General hospital, Yavatmal. Those statements are not filed on
record. Inference can be drawn u/s.114 of the Indian Evidence Act,
1872, which reads as under :
"114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. "
If those statements would have been filed on record, those
statements would have supported the defence of appellant.
Prosecution suppressed the material fact from the Court.
Investigating Agency has not filed the statements of
material witnesses who immediately rushed to the spot of incident
and thereby suppressed the material evidence from the Court.
Evidence of Pundlik Badwaik (PW-1) and Amar Badwaik (PW-3) are
not reliable because condition of patient was of such a nature that
she was not in a position to talk properly. Amar Badwaik (PW-3) has
specifically admitted in his cross-examination that deceased was
moaning. Evidence of Dr.Manjusha Chintalwar (PW-4) clearly shows
that when deceased was admitted in the hospital, her physical and
mental condition was poor. Endorsement of Medical Officer Zalke
on the requisition letter (Exh.48) clearly shows that he was busy in
the Casualty room. Therefore, he did not accept the request to
examine the patient. Evidence of Naib-Tahsildar Shrihari Thamke
(PW-5) and Dr.Mahadeo Zalke (PW-10) are also not credit-worthy
because the Certificate (Exh.79) issued by Dr.Mahadeo Zalke (PW-
10) after recording of dying declaration only shows that dying
declaration is taken in his presence. This Certificate does not show
that the patient was well-oriented and mentally fit at the time of
recording of dying declaration (Exh.50). Exh.78 also does not
specifically state that deceased Vanita was physically and mentally fit
to give statement.
Evidence of Dr.Manjusha Chintalwar (PW-4), admission
of Amar Badwaik (PW-3), admission of Investigating Officer Mohan
Bakade and evidence of Dr.Mahadeo Zalke (PW-10) create doubt
about statement made by the deceased vide Exh.50 or oral
statement/dying declaration stated to Pundlik Badwaik (PW-1) and
Amar Badwaik (PW-3). Therefore, conviction cannot be awarded on
such dying declaration which is not reliable. Hence, we pass the
following order.
// ORDER //
The appeal is hereby allowed.
The impugned Judgment of conviction is hereby
quashed and set aside.
Appellant is hereby acquitted of the offences
punishable under Sections 302 and 498-A of the Indian
Penal Code.
Appellant is on bail. Hence, his bail bonds shall
stand cancelled.
Seized property be destroyed after lapse of appeal
period.
Record and proceedings be sent back to trial Court.