Investigating Officers shall include medical case papers in the chargesheet

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)