Mesu Dhondiba Vidhate Vs. State of Maharashtra
EmailAppeal: Crl. Appeal No. 572 of 1999
Petitioner: Mesu Dhondiba Vidhate
Respondent: State of Maharashtra
Apeal: Crl. Appeal No. 572 of 1999
Judges: M.B. SHAH & D.P. MOHAPATRA, JJ.
Date of Judgment: Aug 02, 2001
Head Note:
CRIMINAL LAW
Evidence Act, 1872
a) Section 32(1) – Dying declaration – First statement made to father who arrived on hearing the news of hut being on fire – On his arrival, hut found chained from outside – Deceased making statement just before being removed to hospital – Then another statement made to doctor – In both the statements deceased indicting the accused – Then statement also recorded by Special Executive Magistrate – At both times, maker certified to be conscious and oriented. Held that there was no reason to disbelieve at least the totally independent witness i.e. doctor and to rely upon said dying declaration. Conviction proper. (Paras 3 to 6)
b) Section 32(1) – Dying declaration – Statement recorded by Special Executive Magistrate through police officer as his hand was injured – Statement dictated to police officer – Certified by doctor. Held that statement would not be inadmissible. (Para 7)
JUDGEMENT:
ORDER
1. Being aggrieved and dissatisfied by the judgment and order dated 24.7.1998 passed by the High Court of Bombay in Criminal Appeal No. 104/1985 reversing the acquittal order passed by the Addl. Sessions Judge, Pune, acquitting the appellant and convict-ing him for the offence punishable under Section 302 IPC, the accused has preferred this appeal.
2. Learned Counsel for the appellant submitted that the High Court committed an error in relying upon the dying declarations oral as well as written made by the deceased Shashikala and in any set of circumstances, the High Court ought not to have inter-fered with a well-reasoned acquittal order passed by the trial court.
3. For appreciating the said contention, we would first refer to the prosecution version and the dying declarations made by the deceased. It is the prosecution story that deceased Shashikala, daughter of Dagadu A. Kamble (PW-1), was married to the appellant, 9 to 10 months prior to the date of incident. After the marriage she was residing at the house of the appellant situated at Indira Nagar Jhopadpatti, Pune. During Diwali days she came to the house of her father and after Diwali her father sent her back with some clothes for the appellant. The appellant came at the house of PW-1 and threw those clothes. Apprehending that Shashikala would be beaten, PW-1 brought her at his place at Khed. Thereafter, she was with him for a week and the appellant along with his father came and both of them apologised and promised that they will not ill-treat the deceased. Consequently, Shashikala was sent to her matrimonial house. Thereafter, PW-1 also came to stay in a hut situated about 100 ft. away from the appellant’s hut. It is the prosecution version that on 28.3.1984 at about 8.00 p.m., Shashi-kala came to her father’s house and told him that when she asked accused not to gamble, he inflicted fist blows on her stomach and threw away the cooked food. Consequently, PW-1 with Shashikala came to the house of the appellant and protested. At the house of the accused, when PW-1 asked about this, he replied that he would continue with gambling and his only obligation was to provide food and clothing to Shashikala. PW-1 returned to his hut and thereafter within few minutes he was informed by an old woman, named Parvatibai that appellant had burnt Shashikala and their hut was burning. On hearing that PW-1 ran to Shahsikala’s house along with his sister Hirabai (PW-2) and they saw the respondent standing near the hut at the entrance door, which was chained from outside. When he (PW-1) peeped into the house, he saw Shashikala lying on the ground in burnt condition. When he called Shashikala by her name, she informed him that accused has inflicted fist blows on her stomach and thereafter poured kero-sene oil on her person and set fire to her sari with kerosene lamp. Thereafter, he along with his sister Hirabai and Vitthal Ballal lifted Shashikala, took her in a rickshaw to Sasoon Hospi-tal, where she was admitted in ward no. 27.
4. It is the prosecution version that Dr. Sahebrao Savale, PW-5 was on duty at about 8.45 p.m. on the day of incident. On examin-ing her, he found that Shashikala had sustained 100% burns. It is the say of this witness (PW-5) that at the relevant time she was fully conscious and well-oriented. He asked about the history and the case history is produced as Ext. 19 which reveals dying declaration of Shahsikala to the effect that accused had poured kerosene on her, set her on fire with a lamp because deceased was protesting and asking the accused not to indulge in gambling. That case history is exhaustively reproduced in the judgment of the High Court which is not required to be re-narrated here. Thereafter on the information being received, PSI Somnath Salunke (PW-9) also reached the Sasoon Hospital and informed the PSO Mohammed Mulani (PW-10) about the necessity of recording a dying declaration. Thereafter, Special Executive Magistrate, Laxman Dhondinba Shelar (PW-7) was contacted and called in the hospital. After verifying the conditions of the deceased, he dictated the dying declaration as stated by the deceased. However, as per the version of the Special Executive Magistrate, he was having injury on his hands therefore he had asked PSI Salunke (PW-9) to record the said statement as per his dictation that is endorsed by Dr. Sahebrao Savale (PW-5) with an endorsement that the said state-ment was taken in his presence and the patient was in a condition to give the statement.
5. From the aforesaid evidence, the High Court considered that there were three dying declarations made by the deceased, Ist dying declaration to her father (PW-1); 2nd dying declaration to Dr. Savale (PW-5); and 3rd dying declaration to the Special Executive Magistrate who got it recorded through PSI Somnath Salunke (PW-9). After considering the aforesaid dying declara-tions as well as the contentions raised by the learned Counsel for the appellant-accused, the High Court arrived at the conclu-sion that the reasons given by the trial court in acquitting the accused are unjustified. The High Court arrived at the conclusion that even though PW-1 to some extent is an interested witness, his evidence is required to be appreciated and if found truthful, can be relied upon. The Court held that in the present case there is nothing to the record to indicate that PW-1 was in any way interested in falsely involving that appellant-accused in the crime. The High Court also relied upon the evidence of Hirabai (PW-2) who is the sister of PW-1 and residing in the same locali-ty that when they reached near the hut of the accused, Shashikala was lying in an injured condition and the hut had been locked with a chain from outside and appellant was standing there. The Court, therefore, held that in such a situation it was not possi-ble for anyone to tutor deceased Shashikala and, therefore, the trial court erroneously rejected the oral dying declaration made to PW-1.
6. Further, in our view, in the present case, there is no reason to disbelieve the evidence of totally independent witness Dr. Savale (PW-5) who had recorded the case history which is produced as Ext. 19 on record. The dying declaration recorded by him in the case history is complete and is recorded within 1 and 1/2 hours of the incident. In our view, there was no reason for the trial court not to rely upon the said dying declaration recorded by a totally independent person.
7. Apart from the dying declaration recorded by the doctor, there is evidence of Special Executive Magistrate, Laxman D. Shelar (PW-7). It is his say that on the date of incident at midnight he was contacted by the police and asked to accompany the police to the hospital. He was taken to ward no. 27 where PSI Salunke informed him to record the statement of Shashikala and thereafter he went near her and satisfied himself that she was the woman named by PSI. After making inquiry he questioned her and recorded her statement in question-answer form. The record of declaration was written by PSI Salunke as he had undergone an accident and was having injuries on his hands. It is true that normally Execu-tive Magistrate is expected to record the dying declaration in the absence of investigation officer or the police officer. But in the present case it has been pointed out that PW-7 was the only Executive Magistrate in the area and he was having injuries on his right hand. Therefore, he took the assistance of the con-cerned PSI in recording the dying declaration. This would not make the dying declaration inadmissible. It was recorded in the presence of Executive Magistrate and Dr. Savale has certified that the deceased was in a condition to give the statement. There is no reason to disbelieve the evidence of Executive Magistrate coupled with the evidence of Dr. Savle (PW-5) who recorded the entire dying declaration. Further, in this case, the plea of alibi raised by the accused is found to be false. It is the version of (PW-1) and his sister Hirabai that accused was present near the hut at the time of the incident, so also PW-4 Vitthal A. Ballal who was an independent witness.
8. In this view of the matter, there is no substance in this appeal. It is dismissed accordingly.
1. Being aggrieved and dissatisfied by the judgment and order dated 24.7.1998 passed by the High Court of Bombay in Criminal Appeal No. 104/1985 reversing the acquittal order passed by the Addl. Sessions Judge, Pune, acquitting the appellant and convict-ing him for the offence punishable under Section 302 IPC, the accused has preferred this appeal.
2. Learned Counsel for the appellant submitted that the High Court committed an error in relying upon the dying declarations oral as well as written made by the deceased Shashikala and in any set of circumstances, the High Court ought not to have inter-fered with a well-reasoned acquittal order passed by the trial court.
3. For appreciating the said contention, we would first refer to the prosecution version and the dying declarations made by the deceased. It is the prosecution story that deceased Shashikala, daughter of Dagadu A. Kamble (PW-1), was married to the appellant, 9 to 10 months prior to the date of incident. After the marriage she was residing at the house of the appellant situated at Indira Nagar Jhopadpatti, Pune. During Diwali days she came to the house of her father and after Diwali her father sent her back with some clothes for the appellant. The appellant came at the house of PW-1 and threw those clothes. Apprehending that Shashikala would be beaten, PW-1 brought her at his place at Khed. Thereafter, she was with him for a week and the appellant along with his father came and both of them apologised and promised that they will not ill-treat the deceased. Consequently, Shashikala was sent to her matrimonial house. Thereafter, PW-1 also came to stay in a hut situated about 100 ft. away from the appellant’s hut. It is the prosecution version that on 28.3.1984 at about 8.00 p.m., Shashi-kala came to her father’s house and told him that when she asked accused not to gamble, he inflicted fist blows on her stomach and threw away the cooked food. Consequently, PW-1 with Shashikala came to the house of the appellant and protested. At the house of the accused, when PW-1 asked about this, he replied that he would continue with gambling and his only obligation was to provide food and clothing to Shashikala. PW-1 returned to his hut and thereafter within few minutes he was informed by an old woman, named Parvatibai that appellant had burnt Shashikala and their hut was burning. On hearing that PW-1 ran to Shahsikala’s house along with his sister Hirabai (PW-2) and they saw the respondent standing near the hut at the entrance door, which was chained from outside. When he (PW-1) peeped into the house, he saw Shashikala lying on the ground in burnt condition. When he called Shashikala by her name, she informed him that accused has inflicted fist blows on her stomach and thereafter poured kero-sene oil on her person and set fire to her sari with kerosene lamp. Thereafter, he along with his sister Hirabai and Vitthal Ballal lifted Shashikala, took her in a rickshaw to Sasoon Hospi-tal, where she was admitted in ward no. 27.
4. It is the prosecution version that Dr. Sahebrao Savale, PW-5 was on duty at about 8.45 p.m. on the day of incident. On examin-ing her, he found that Shashikala had sustained 100% burns. It is the say of this witness (PW-5) that at the relevant time she was fully conscious and well-oriented. He asked about the history and the case history is produced as Ext. 19 which reveals dying declaration of Shahsikala to the effect that accused had poured kerosene on her, set her on fire with a lamp because deceased was protesting and asking the accused not to indulge in gambling. That case history is exhaustively reproduced in the judgment of the High Court which is not required to be re-narrated here. Thereafter on the information being received, PSI Somnath Salunke (PW-9) also reached the Sasoon Hospital and informed the PSO Mohammed Mulani (PW-10) about the necessity of recording a dying declaration. Thereafter, Special Executive Magistrate, Laxman Dhondinba Shelar (PW-7) was contacted and called in the hospital. After verifying the conditions of the deceased, he dictated the dying declaration as stated by the deceased. However, as per the version of the Special Executive Magistrate, he was having injury on his hands therefore he had asked PSI Salunke (PW-9) to record the said statement as per his dictation that is endorsed by Dr. Sahebrao Savale (PW-5) with an endorsement that the said state-ment was taken in his presence and the patient was in a condition to give the statement.
5. From the aforesaid evidence, the High Court considered that there were three dying declarations made by the deceased, Ist dying declaration to her father (PW-1); 2nd dying declaration to Dr. Savale (PW-5); and 3rd dying declaration to the Special Executive Magistrate who got it recorded through PSI Somnath Salunke (PW-9). After considering the aforesaid dying declara-tions as well as the contentions raised by the learned Counsel for the appellant-accused, the High Court arrived at the conclu-sion that the reasons given by the trial court in acquitting the accused are unjustified. The High Court arrived at the conclusion that even though PW-1 to some extent is an interested witness, his evidence is required to be appreciated and if found truthful, can be relied upon. The Court held that in the present case there is nothing to the record to indicate that PW-1 was in any way interested in falsely involving that appellant-accused in the crime. The High Court also relied upon the evidence of Hirabai (PW-2) who is the sister of PW-1 and residing in the same locali-ty that when they reached near the hut of the accused, Shashikala was lying in an injured condition and the hut had been locked with a chain from outside and appellant was standing there. The Court, therefore, held that in such a situation it was not possi-ble for anyone to tutor deceased Shashikala and, therefore, the trial court erroneously rejected the oral dying declaration made to PW-1.
6. Further, in our view, in the present case, there is no reason to disbelieve the evidence of totally independent witness Dr. Savale (PW-5) who had recorded the case history which is produced as Ext. 19 on record. The dying declaration recorded by him in the case history is complete and is recorded within 1 and 1/2 hours of the incident. In our view, there was no reason for the trial court not to rely upon the said dying declaration recorded by a totally independent person.
7. Apart from the dying declaration recorded by the doctor, there is evidence of Special Executive Magistrate, Laxman D. Shelar (PW-7). It is his say that on the date of incident at midnight he was contacted by the police and asked to accompany the police to the hospital. He was taken to ward no. 27 where PSI Salunke informed him to record the statement of Shashikala and thereafter he went near her and satisfied himself that she was the woman named by PSI. After making inquiry he questioned her and recorded her statement in question-answer form. The record of declaration was written by PSI Salunke as he had undergone an accident and was having injuries on his hands. It is true that normally Execu-tive Magistrate is expected to record the dying declaration in the absence of investigation officer or the police officer. But in the present case it has been pointed out that PW-7 was the only Executive Magistrate in the area and he was having injuries on his right hand. Therefore, he took the assistance of the con-cerned PSI in recording the dying declaration. This would not make the dying declaration inadmissible. It was recorded in the presence of Executive Magistrate and Dr. Savale has certified that the deceased was in a condition to give the statement. There is no reason to disbelieve the evidence of Executive Magistrate coupled with the evidence of Dr. Savle (PW-5) who recorded the entire dying declaration. Further, in this case, the plea of alibi raised by the accused is found to be false. It is the version of (PW-1) and his sister Hirabai that accused was present near the hut at the time of the incident, so also PW-4 Vitthal A. Ballal who was an independent witness.
8. In this view of the matter, there is no substance in this appeal. It is dismissed accordingly.
