The Supervising Officers shall guide all the Investigating
Officers that in the course of investigation, they shall necessarily
collect the medical case papers and include them in the chargesheet.
This order be circulated to the Commissionerate area in Mumbai City
as well as at district levels. Copy be forwarded to the Secretary,
Home Department.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1695 OF 2013
Mrs. Mudrika Dutta Bhadre.
Versus
The State of Maharashtra.
CORAM : SMT. SADHANA S. JADHAV, J
DATE : OCTOBER 10, 2013
Heard the learned Counsel for the applicant and the learned
APP for State. Perused the papers.
This is an application under Section 439 of the Code of Criminal
Procedure, 1973. The applicant is arrested on 7th February, 2013 in
Crime No. I42 of 2013, registered at Wagale Estate Police Station for
offence punishable under Section 302 r/w Section 34, 307, 452,143,
147, 323, 504, 506 of the Indian Penal Code.
3
It is the case of prosecution that on 7th February, 2013 Raibai
Karbhari Mhaske was admitted in a Civil Hospital, Thane with history
of burn injuries. Her statement was recorded by PSI of Wagale Estate
Police Station. The injured Raibai had disclosed that she was having
illicit relations with the husband of the present applicant for almost
10 years prior to the incident. The present applicant was annoyed
with the said fact and she had quarrel with the deceased. 3 days prior
to the incident Dutta was staying at the house of Raibai. On
7/2/2013 Dutta had left the house. At about 12 to 12.30 in the
afternoon, the present applicant, brother of Dutta Shivaji, Venu i.e.
the sister in law of Dutta, his nephew Shashikant and Shashikant
came to her house and they raised quarrel with Raibai. After quarrel
Shivaji, Venu and Shrikant had left the house. It is alleged that the
present applicant had poured kerosene on Raibai. It is also alleged
that she had instigated her to light the match stick, if she has some
honour and love for herself. At that juncture Shashikant had abated
the present applicant to light the match stick. Thereafter, the present
applicant took the match stick and ignited Raibai. Upon hearing her
cries, the neighbours came to the spot to extinguish the fire and had
taken her to the hospital.
The Investigation is completed and chargesheet is filed on 2 nd
May, 2013. The papers of investigation show that the spot
panchanama reveals that the room in which Raibai sustained burn
injuries was latched from inside. The statement of the neighbours
would reveal that they had seen flames emanating from the said room
and therefore, they had broke open the door. Raibai was found in
the room in fully burned condition. The Counsel for the applicant
submits that even assuming that the applicant along with her relatives
had visited the house of the deceased, it appears to be a case of
suicide since the door was latched from inside and the same is
corroborated by the statement of the neighbours.
5
It is pertinent to note that the medical case papers of Raibai do
not find place in the chargesheet. It is a matter of record that she
had expired at about 7.15 p.m. on the same day i.e. 7/2/2013. The
statement is recorded at 5 p.m. According to the deceased, she was
taken to the hospital by the neighbour. Although the dying
declaration shows that she was admitted in the hospital by the
neighbour, there is no statement to corroborate the said fact. As a
matter of fact, the papers of investigation reveal that Balaji Kambale
had informed fire brigade that flames are emanating from the house
of Raibai. The Fire Brigade had reached the site. The neighbours had
broke open the door in which burnt lady was lying unconscious in the
house. Dutta Bhadre had accompanied the police when Raibai was
taken to the hospital. There is nothing on record to indicate that she
was conscious when she was admitted in the hospital. In the absence
of medical case papers, it is not possible to ascertain as to when she
had regained consciousness.
It is seen that in most of the cases in which the nature of
evidence is circumstantial in nature or that the case rests upon the
dying declaration, the chargesheet does not include the medical case
papers, the papers showing the treatment given to the injured in the
hospital or the admission papers, in the absence of which it is
difficult to ascertain the state of mind of the deponent. The Courts
are constrained to observe that dying declaration is recorded in
suspicious circumstances and therefore, the ultimate benefit goes to
the accused. When this difficulty was pointed to the learned APP, she
fairly submits that this is a curable difficulty and necessary directions
need to be given to the Investigating Officers to include the medical
case papers in the compilation of the chargesheet. Most of the times,
the said papers are produced on record in the course of recording of
evidence and therefore, it would not be a fair trial. In case of a dying
declaration, the deponent is not available for recording of evidence.
In case of Laxman v/s. State of Maharashtra (2002) 6 SCC 710, the
Hon'ble Apex Court has observed as follows :
“Notwithstanding the same, great caution must be exercised in
considering the weight to be given to this species of evidence on
account of the existence of many circumstances which may
affect their truth. The situation in which a man is on death bed
is so solemn and serene, is the reason in law to accept the
veracity of his statement. It is for this reason the requirements
of oath and crossexamination are dispensed with. Since the
accused has no power of crossexamination, the court insist that
the dying declaration should be of such a nature as to inspire
full confidence of the court in its truthfulness and correctness.
... The court also must further decide that the deceased was in
a fit state of mind and had the opportunity to observe and
identify the assailant.”
In the case of State of Maharashtra v/s. Sanjay s/o Digambarrao
Rajhans AIR (SCW) 2004 6320 the Hon'ble apex Court observed that
“Thus, the version of homicide set up by the prosecution as well
as the version of suicide set up by the accused appear to be
highly improbable and do not inspire confidence in the mind of
the Court to believe either version. In this state of things, when
two incredible versions confront the Court, the Court has to
give benefit of doubt to the accused and it is not safe to sustain
the conviction.”
The Hon'ble Apex Court has laid down 3 conditions to be
considered for placing implicit reliance upon a dying declaration.
The conditions are that the statement of the deceased should appear
to be voluntary, truthful and should inspire the confidence of the
Court. In order to arrive at a just decision the Courts would scrutinise
the dying declaration on the basis of certain corroborative evidence.
No doubt that the conviction can be recorded on the basis of the
dying declaration provided it inspires the confidence of the Court. It
is therefore, necessary that the investigation is carried out in a fair
manner. In the present case, for example, the statement of the fire
brigade officer shows that when he visited the room of Raibai she was
severely burnt, was unable to move and was almost halfdead. The
medical case papers would show her condition at the time of
admission in the hospital and therefore, the Court could appreciate
as to whether the doctor who admitted her, had recorded history, the
nature of treatment given to her and whether she was really in a
position to give a valid statement which would inspire the confidence
of the Court. The Supervising Officers shall guide all the Investigating
Officers that in the course of investigation, they shall necessarily
collect the medical case papers and include them in the chargesheet.
This order be circulated to the Commissionerate area in Mumbai City
as well as at district levels. Copy be forwarded to the Secretary,
Home Department.
The learned APP submits that the observations of the Hon'ble
Apex Court in the case of State of Maharashtra v/s. Sanjay Rajhans
(supra) are made in an appeal against acquittal and therefore, the
same cannot be considered at the stage of grant of bail. The learned
Counsel appearing for the applicant however, submits that after filing
of the chargesheet the Court should consider the prima facie
evidence at the stage of grant of bail. There are many Sessions Cases
pending where there are under trial prisoner. The Counsel submits
that the number of under trial prisoner as on 15/9/2013 whose cases
are pending before the Court at Thane are 2912. The Counsel
submits that the trial may not ensue in the near future and therefore,
further incarceration of the accused/applicant who happens to be a
woman would be unwarranted and unjustified. The learned Counsel
further submits that at the prima facie stage, the Court shall consider
the compilation of the chargesheet where it is doubtful as to whether
she committed suicide or has died the homicidal death. The
and therefore the Counsel prays for bail.
circumstances in which the dying declaration is recorded is doubtful
The learned APP submits that except the present applicant all
other accused are enlarged on bail.
Counsel for the applicant submits that the applicant is a woman
and that she would be covered by the proviso to Section 437 of the
Code of Criminal Procedure, 1973. In any case, the investigation is
completed and chargesheet is filed. Hence, the applicant has made
out a prima facie case for grant of bail.
The observations made hereinabove are prima facie in nature.
Hence the following order :
ORDER
(i)
The application is allowed. The applicant be enlarged on bail
on furnishing P.R. bond in the sum of Rs. 15,000/ and one or two
sureties in the like amount.
The applicant shall not tamper with the evidence.
12 The Application is disposed of on the above terms.
(ii)
(SMT. SADHANA S. JADHAV, J)
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