Pandit Khairnar (PW 6) appears to have a
good experience of recording dying declarations.
Therefore, it appears that he was directed to
record the same. He has stated in his evidence as
under :-
..... .....
I have a good experience of recording
dying declarations. It is correct to
say that to record a dying
declaration is a responsible duty.
..... .....
In his evidence, he has stated that he himself
was satisfied that the patient was conscious, and
therefore, he recorded the statement of Sharda.
In absence of the doctor s endorsement about
the fitness, if the scribe himself is satisfied
that the patient is able to give statement, that
will not render the dying declaration as a waste
paper, in view of the decision of the
Constitutional Bench of the Hon ble Apex Court in
the matter of Laxman vs State of Maharashtra
[(2002) 6 SCC 710].
Reaching to the conclusion that the
patient is fit to give his/her statement by the
scribe is his subjective satisfaction. In order to
reach that subjective satisfaction, the scribe must
prove before the court clinchingly on what basis he
reached to that subjective satisfaction.
From the perusal of Exh.39, there is nothing
to show on what basis Police Head Constable Pandit
Khairnar (PW 6) reached to such subjective
satisfaction, nor in his substantive evidence
before the court, did he gave any indication as to
how he reached to the said conclusion. Merely that
the scribe is saying that he was satisfied himself,
in absence of any material on record, the court
should not readily accept his such unfounded
subjective satisfaction.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 607 OF 2011
1] Mahesh Vasant Salunke ...Appellant
VERSUS
1] The State of Maharashtra ...Respondent
CORAM : K.U.CHANDIWAL
AND
V.M.DESHPANDE, JJ.
Citation;2014 ALLMR(cri) 3882
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 3.4.2014
1] Appellant Mahesh (accused no.1) faced the
Sessions trial bearing Sessions Case No. 75 of 2011
before the learned Sessions Judge, Jalgaon, along
with his parents Vasant (accused no.2) and Latabai
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(accused no.3), for the offence punishable under
Sections 498A r/w 34 of the Indian Penal Code.
Appellant Mahesh was also charged for the
offence punishable under Section 302 of the Indian
Penal Code. The learned Sessions Judge, Jalgaon
vide judgment, dated 20.10.2011 was pleased to
acquit all of them in respect of the offence
punishable under Section 498A r/w 34 of the Indian
Penal Code. However, the learned Sessions Judge
was pleased to convict appellant Mahesh for the
offence punishable under Section 302 of the Indian
Penal Code and was directed to suffer imprisonment
for life and to pay fine of Rs.1,000/-, in default
of payment of fine, he was directed to undergo
further rigorous imprisonment for six months.
Appellant Mahesh-original accused no.1 is
taking exception to his this conviction and
sentence awarded to him by the learned Sessions
Judge, Jalgaon by preferring the present appeal.
2] The prosecution case, as it is, unfurled
during the trial, can be narrated as under :-
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Deceased Sharda was eldest daughter of
Vijayabai Patil (PW 4). Her marriage was performed
with appellant Mahesh on 20.4.2008. After
marriage, Sharda started cohabiting with Mahesh
along with her in-laws at village Khedgaon. Couple
resided there for a period of four months. Though
for initial period of 15 days of her marriage,
Sharda was nicely treated by Mahesh and his
parents, she started receiving taunts that her
parents have failed to give substantial gifts.
Taunts were followed by beating. Sharda used to
disclose this illtreatment to Vijayabai (PW 4) on
telephone.
3] After four months of residence at
Khedgaon, Mahesh and Sharda started residing at
Thane, wherein Mahesh was working in some school.
Telephonic disclosure to Vijayabai by Sharda from
Thane about her illtreatment remained to be
continued. In addition to that, it was disclosed
that Mahesh used to beat Sharda under the influence
of liquor.
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While residing at Thane, Sharda conceived.
During her pregnancy, Sharda was taken to Khedgaon,
though it was requested to send her to parental
house, her in-laws did not permit her to go to her
parental house. Sharda again went to Thane.
Father of deceased Sharda went to Thane and took
Sharda to their place at Navsari.
At parental house, Sharda disclosed that her
husband-Mahesh used to beat her in intoxicated
condition, complaints were also made against her
father-in-law and mother-in-law. The illtreatment
was for pursuing her to get valuable gifts from her
parents.
A baby girl was delivered by Sharda. After
1¼ month of the said delivery, sister-in-law of
Sharda and her husband came to Navsari to take
Sharda with them, and accordingly, Sharda went to
Khedgaon. Illtreatment was unabated at Khedgaon.
Therefore, father of Sharda along with father and
brother-in-law of Vijayabai (PW 4) went to Khedgaon
for giving Rs.10,000/- to the accused. The demand
of the accused persons was Rs.50,000/-
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4] On 25.11.2010, Vijayabai (PW 4) was at
Navsari. That time, she received a telephonic call
from her brother-in-law Bhalerao Patil (PW 10) and
it was disclosed to Vijayabai through said
telephonic call that Sharda was burnt and she was
admitted in hospital at Dhule. PW 10-Bhalerao
Patil is resident of Shirur, Taluka Amalner. He
came to know about the incident because of the
telephonic information given to him by the accused
persons.
5] On getting information, Vijayabai (PW 4)
along with her husband and other relatives reached
Dhule at mid night. They rushed to the hospital.
They could see Sharda, but could not talk with her,
since she was already dead. This is one part of
the prosecution case.
6] In the mean while, after getting burn
injuries on 25.11.2010, Sharda was brought to the
Casualty at Civil Hospital, Dhule. On getting the
information and request to record the statement of
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Sharda, Nilkanth Mule (PW 8), who at the relevant
time was Naib Tahsildar, reached to the hospital at
4.15 p.m. He met to Dr.Pallavi Mantri (PW 5). He
disclosed his identity to her and desired to record
the statement of burn patient. Accordingly, Dr.
Mantri (PW 5) pointed out to her the burn injured
patient. On the request of Naib Tahsildar, Dr.
Mantri examined the patient and found that she was
in a good condition. Accordingly, she reported to
Naib Tahsildar that he can record her statement.
Hence, Nilkanth Mule (PW 8) recorded statement of
Sharda. In her statement, it was disclosed to him
that on 25.11.2010 at about 12.30 p.m. when Sharda
was in her house, that time appellant Mahesh came
and asked money from her to consume liquor. Sharda
refused to pay for liquor, and therefore, Mahesh
got annoyed, sprinkled kerosene on her person and
put her on fire, due to which she suffered burns.
It was disclosed by Sharda in her statement to Naib
Tahsildar Mule (PW 8) that her husband admitted her
in Dhule hospital. After recording of the
statement, Mule (PW 8) read over the said statement
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to Sharda. She acknowledged the correctness of the
contents of her statement, and therefore, a thumb
impression was obtained on the said statement. The
said statement, which ultimately resulted in to the
Dying Declaration is at Exh. 49.
7] Pandit Atmaram Khairnar, a police Head
Constable, B.No.450 (PW 6) was on duty at Police
Station. He received written order from the
Officer Incharge of the police station to record
the statement of burn injured person by name
Sharda, who was admitted in Civil Hospital, Dhule.
In obedience to the said written order, Pandit
Khairnar (PW 6) had been to the Civil Hospital,
Dhule. He met Dr. Pallavi Mantri (PW 5) and
requested her that he shall record the statement
of Sharda, and therefore, she should examine the
patient and should report as to whether she is
conscious and able to give statement. Accordingly,
Dr. Mantri examined Sharda and asked Khairnar
(PW 6) to proceed with recording of the statement
of Sharda, as she was able to give her statement.
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Accordingly, he recorded statement of Sharda. The
said statement is at Exh. 39. This is another part
of the prosecution case.
8] Sampat Londhe (PW 9) was working as
police Sub-Inspector. He was attached to Mehunbare
police station. During his duty hours, police Head
Constable Kulkarni of Dhule police station came and
handed over a dying declaration. He read it and
informed the Assistant Police Inspector of
Mehunbare police station to register an offence.
9] Officer Incharge of the said police
station accordingly made endorsement in the margin
of the dying declaration having registered the
crime. The offence was registered in the night of
25.11.2010. In the morning of 26.11.2010, Sampat
Londhe (PW 9) went to the spot and drew spot
panchanama (Exh.28). During spot panchanama, he
seized a plastic can, a match box, some match
sticks which were partially burnt and some tinder
match sticks and pieces of clothes. The seized
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muddemal property was taken by him to the police
station and was deposited with the muddemal Clerk.
The muddemal receipt is at Exh. 52. Before
returning to the police station, he recorded
statements of neighbouring residents.
On 26.11.2010, Londhe (PW 9) received, a
provisional report of postmortem examination and
notes of inquest of deceased Sharda, from Dhule
City police station. The inquest panchanama is at
Exh.30. On 27.11.2010, Londhe (PW 9) sent
intimation to the court that Sharda died, and
therefore, the offence was converted into offence
punishable under Section 302 of the Indian Penal
Code.
Sampat Londhe (PW 9) summoned parents of
Sharda to the police station for recording their
statements, however, they refused by saying that
since their daughter has died, therefore, they will
give their statements after some time.
Accordingly, entry to that effect was made in the
station diary.
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On 15.12.2010, parents and uncle of deceased
came to the police station. Their statements were
recorded by Sampat Londhe (PW 9). On the basis of
the statements, so given by the parents and uncle
of deceased, he added Sections 498A r/w 34 of the
Indian Penal Code to the crime and submitted report
to the court of the Magistrate.
The muddemal property seized during
investigation was sent to the Chemical Analyser.
On completion of investigation, he submitted charge
sheet to the court.
Committal order was passed on 31.3.2011 by the
Judicial Magistrate, First Class, Chalisgaon. The
learned Sessions Judge framed charge on 4.6.2011
(Exh.17) against Mahesh and his parents for the
offences punishable under Sections 498A r/w 34 and
for offence punishable under Section 302 of the
Indian Penal Code against appellant Mahesh. All
the accused persons pleaded innocence and claimed
for trial.
10] The prosecution examined eleven witnesses
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to bring home the guilt of the accused persons to
face trial. After a full dressed trial, the
learned Sessions Judge, Jalgaon acquitted the
appellant Mahesh and his parents for the offence
under Section 498A of the Indian Penal Code,
however, the learned Sessions Judge found that the
prosecution was successful to bring home the guilt
of the appellant for the offence punishable under
Section 302 of the Indian Penal Code, and
therefore, he recorded the conviction against him
and sentenced him to suffer imprisonment for life.
11] We have heard Shri N.S.Ghanekar, learned
counsel appearing for the appellant and Mrs.
B.B.Gunjal, learned Additional Public Prosecutor
for the State. With their assistance, we have
minutely examined the entire record and the
evidence as brought on record during trial by the
prosecution.
12] Learned counsel for the appellant argued
with vehemence that the prosecution has failed to
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establish its case beyond shadow of doubt. It was
urged by the learned counsel that the dying
declaration recorded by Khairnar (PW 6) cannot be
made basis to record the finding of conviction
against the appellant for the offence punishable
under Section 302 of the Indian Penal Code. The
learned counsel submitted that the prosecution has
deliberately suppressed relevant documents from the
record. He has further submitted that Dr. Mantri
(PW 5) was on duty as a Casualty Medical Officer.
According to him, Dr. Mantri's evidence does not
disclose that Sharda was admitted in the burn Ward,
however, both the scribe i.e. Pandit Khairnar
Police Head Constable (PW 6) and Nilkanth Mule,
Naib Tahsildar (PW 8) claim that they went to Burn
Ward. According to the learned counsel for the
appellant, the doctor, who was attending the
patients in Burn Ward was not examined. According
to him, the nature of the examination of patient
Sharda, as claimed by Dr. Mantri (PW 5) is not
found anywhere. There is no endorsement on any of
the dying declaration that the patient was
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oriented. In that view of the matter, according to
him, Exhs. 36 and 37 the endorsements made by her
in respect of consciousness of the patient on Exh.
39 and Exh. 49 respectively are highly suspicious.
Hence, he submitted that the appellant deserves
acquittal in the present appeal.
13] Per contra, Mrs. Gunjal, learned
Additional Public Prosecutor strenuously urged
before us that Sharda died homicidal death and the
appellant is the author for the burn injuries on
the person of the deceased. According to her, the
dying declaration (Exh.39) recorded by Khairnar
(PW 6) inspires confidence and there are no
attending circumstances, by which it's truthfulness
and genuineness can be doubted. She, therefore,
submitted that the learned Sessions Judge was right
in his wisdom to convict the appellant on the basis
of dying declaration (Exh.39). Therefore, she
prayed for dismissal of the appeal.
14] On the basis of the postmortem report
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(Exh.59) conducted on the dead body of Sharda and
from the evidence of Dr. Sandip Patil (PW 11), who
conducted autopsy on the dead body, the conclusion
is irresistible that Sharda died on account of burn
injuries.
The question to be decided in the present
appeal is, whether Mahesh-the appellant, as claimed
by the prosecution, is the author for the burn
injuries found on the person of Sharda; or whether
Sharda alone is responsible for her death, since as
claimed by Mahesh in his statement recorded by the
learned trial court under Section 313 of the
Criminal Procedure Code that Sharda on her own
poured kerosene on her person and set herself
ablaze.
15] Admittedly, there is no ocular evidence
to the actual incident of burning. The case of the
prosecution was based on two written dying
declarations. One such was recorded by Nilkanth
Mule (PW 8) at Exh. 49, and another was reduced
into writing by Police Head Constable Pandit
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Khairnar (PW 6) at Exh.39. The prosecution also
relied upon the oral dying declaration, alleged to
have been made by Sharda to Bhalerao Patil (PW 10),
the uncle of Sharda.
16] While appreciating the truthfulness of
the afore said evidence, the learned Sessions Judge
found that the dying declaration (Exh.49) of Sharda
recorded by Nilkanth Mule (PW 8), Naib Tahsildar is
not free from suspicion. In that view of the
matter, it was held by the learned court below that
the said dying declaration (Exh.49) deserves to be
rejected and it was accordingly discarded. The
learned Sessions Judge has supplemented reasons,
for rejecting/discarding the dying declaration Exh.
49.
After reappreciation of the entire evidence of
the prosecution and on the close scrutiny of dying
declaration (Exh.49), we find that the learned
Sessions Judge has rightly rejected the dying
declaration (Exh.49). We affirm those findings.
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17] The learned Sessions Judge has also
rejected the oral dying declaration made by
deceased Sharda to her uncle PW 10. We subscribe
to the said opinion arrived at by the learned
Sessions Judge, and accordingly, on the
reappreciation of the evidence of Bhalerao Patil
(PW 10), we find, no reason to disturb the said
finding of the learned Sessions Judge.
18] That leaves us to consider the dying
declaration (Exh.39) recorded by Police Head
Constable Pandit Khairnar (PW 6), which according
to the learned Sessions Judge was free from all
suspicious circumstances, and therefore, on the
basis of the said document, the appellant was
convicted and sentenced to suffer imprisonment for
life.
19] Now, let us scrutinize the said dying
declaration (Exh.39) and the attending
circumstances as available on record in order to
reach to the conclusion as to whether the
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prosecution is able to bring its case beyond shadow
of doubt and could it be said that there is no iota
of truth in the statement of appellant recorded
under Section 313 of the Criminal Procedure Code.
20] On 25.11.2010, Dr. Pallavi Mantri (PW 5)
was on her duty at Civil Hospital, Dhule as
Casualty Medical Officer. During her duty hours,
at about 3.00 p.m. to 3.30 p.m., Sharda a female
patient with burn injuries was brought to the
Casualty. She immediately admitted patient as an
indoor patient and started the treatment.
Pandit Khairnar (PW 6) was on duty at police
station Dhule and his duty hours were 8.00 a.m. to
8.00 p.m. On the said date, Officer Incharge of
the police station gave him a written order that a
burn patient by name Sharda is admitted in the
Civil Hospital at Dhule, and therefore, he should
proceed to record her statement.
As directed, Pandit Khairnar (PW 6) went to
the Civil Hospital, Dhule at about 3.30 p.m. At
the hospital, he met Medical Officer Dr. Mantri
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(PW 5) and requested her to examine Sharda, since
he was intending to record her statement. This
fact finds corroboration from the evidence of Dr.
Mantri (PW 5).
21] From the evidence of Pandit Khairnar
(PW 6), it is crystal clear that he was not
attached to police chowky at the hospital. On
25.11.2010, he was at police station. The Officer
Incharge of police station gave him a written order
to record the statement of burn injured patient
Sharda. Now, it was the bounden duty of the
prosecution to explain, how the information was
received in the police station from the hospital
that burn patient Sharda is admitted. One thing
is sure that such information was received by
police station, Dhule and then only a written order
was given by the Police Station Officer to Pandit
Khairnar (PW 6). The information received from the
hospital must have been reduced into writing at
police station, Dhule. Now, what was that
intimation, which must have been reduced in to
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writing by the police authorities, is not coming
forward from the prosecution on record. In that
behalf, we are at pains to reproduce version of Dr.
Pallavi Mantri, in order to appreciate the
truthfulness of the entire prosecution case. Dr.
Pallavi Mantri (PW 5) has stated in paragraph 6 of
her evidence as under :-
..... ..... .....
It is correct to say that at the
time the patient Sharda was admitted to
hospital, she was conscious. It is
correct that at the time of admitting
the patient, I took from her the
history and the cause of the burns. At
that time, Police Head Constable
V.V.Salunke, B.No.221 was on duty in
the hospital. The history disclosed by
the patient is required to be mentioned
in the case-papers and accordingly a
mention has been made by me in the
case-papers. In the case-papers, I
have also made a mention of the
percentage of burns suffered by
Shardabai. It is correct to say that I
told the Head Constable of the history
the patient gave and also of the
percentage of burns suffered by her and
then, asked him to go to Police Station
and inform.
..... ..... .....
22] From the afore said part of the evidence
appearing in the testimony of Dr. Pallavi Mantri
(PW 5), six clinching facts are established.
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(i) when Sharda was admitted in hospital she
was conscious.
(ii) At the time of admitting her, Dr. Mantri
took her history from her and cause of burns.
(iii) That time Police Head Constable
V.V.Salunke B.No.221 was on duty in the
hospital.
(iv) Dr. Mantri was under obligation to
mention the history disclosed by the patient in
the case papers and accordingly she has
mentioned the same in the case papers.
(v) She told Head Constable Salunke about
the history which was given to her by the
patient.
(vi) Dr. Mantri asked Salunke to go to the
police station and inform about the said fact.
23] From the afore said analysis of the
testimony of Dr.Mantri, it is clear that Police
Head Constable Salunke, who was on duty at
hospital, was directed to intimate the fact of the
admission of the patient and the history disclosed
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to him by Dr. Mantri, and accordingly, in fact, he
must have carried the same with him to the police
station and he must have reported the said
information to the police station. That is the
only source of receipt of the information about the
admission of burn patient Sharda in the hospital to
the police station. That information necessitated
the police station officer to direct Khairnar
(PW 6) to record the statement of Sharda.
Now, what was that history narrated by patient
Sharda to Dr. Mantri and what the information that
was reduced into writing at police station, was one
of the primary piece of evidence in the present
case. The said primary piece of evidence is not
coming on record from the prosecution side. The
said primary piece of evidence appears to have been
withheld by the prosecution. In view of the fact
that there is no explanation for the same, this
court is required to draw an adverse inference
against the prosecution case.
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24] Exh.40 is the written order given by
police station officer, Dhule to Police Head
Constable Pandit Khairnar (PW 6). The said order
is reproduced herein below.
Exhibit No.40
धुळे शहर पोलीस सटेशन
आदेश
पो.हे.कॉ./450/पंिित आतमाराम खैरनार,
धुळे शहर पोलीस सटेशन, धुळे
िॉ. मंती मॅिम पो.हे.कॉ./221/वही.बी.साळंुखे
पेशंट : - १) शारदाबाई महेश साळंुखे , उ.व.-२२,
रा. खेिगाव , ता. ४०गाव, िि. िळगाव.
२) महेश वसंत साळंुखे , उ.व.-२८,
रा. खेिगाव , ता. ४०गाव, िि. िळगाव.
आि िदनांक २५/११/२०१० रोिी १२.३०
वािाचया सुमारास सवतःचे राहते घरी ितचा नवरा महेश
वसंत साळंुखे यांचयासोबत काहीतरी कुिबुि झालयाने
तीन सवतःचया अंगावर रॉकेल ओतून घेतले व नव -यास
धाक दाखवू लागली. मी पेटवून घेईन असे सांगत
होती. व आगपेटीचे कािीने पेटवून घेतले . तयात ती १००%
भािली गेली. व महेश वसंत साळंुखे हा २५ % भािला
आहे. तयांना १५.०० वा. सासरा वसंत यशवंत साळंुखे
यांनी दखल केले . D.D.ची गरि आहे.
सटे.िा.ई.न. ३८ सही/-
वेळ १५ .३० वा. पोलीस ठाणे अंमलदार
तारीख : २५/११/२०१० धुळे शहर पोलीस सटेशन ”
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Thus from Exh.40, it is clear that appellant
Mahesh has also received burn injuries to the
extent of 25%. It is an admitted position on
record that Mahesh was also indoor patient from
25.11.2010 to 7.1.2011. It is also clear that he
received the said burn injuries in the said
incident.
In that view of the matter, the prosecution
was under obligation to explain as to how the said
burn injuries are appearing on the person of
appellant Mahesh.
25] As found in the preceding paragraph, Dr.
Mantri has recorded the history in the case papers.
At the time of her evidence, in spite of specific
instructions in the summons that she should attend
the court with all relevant papers, she failed to
bring with her the hospital case papers of patient
Sharda. Her evidence was recorded on 2.7.2011. She
received the summons for giving evidence on
29.6.2011. She was on duty as a Medical Officer at
Dhule even on 30.6.2011 and 1.7.2011. The
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prosecuting agency has not explained, in spite of
summons with a direction to bring the original case
papers of Sharada, why her case papers were not
produced before the court. This also leads us to
draw an adverse inference against the case of the
prosecution.
26] The crime is registered at Mehunbare
police station. Interestingly, after recording
dying declaration, in pursuance to the order (Exh.
40), Pandit Khairnar (PW 6) has reported compliance
to the police station, Dhule vide Exh.41. It is as
under :-
स. सादर िक, आदेशापमाणे आदेशातील नमूद िळीत
सीचा िबाब घेता ितने ितचया पती िवरद तकारी िबाब
िदलयाने सदर िबाब आणून हिर केला आहे तरी पढु ील
काययवाही होऊन पकरण मारवाि पो.सटे.ला पाठिवनेस
िवनतं ी आहे.
27] It is curious to note the evidence of
Pandit Khairnar (PW 6) about this Marwad police
station, which is as under :-
(Witness volunteers : I made a
mention of Marwad Police Station in my
report only because there are several
villages of the same name as Marwad.)
It is correct to say that within the
jurisdiction of Chalisgaon tahsil
there is no village by name Marwad nor
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any police station by that name.
We are pointing out this only to show the
casual approach of Pandit Khairnar (PW 6).
28] According to scribe Police Head
Constable, after examination, Dr. Mantri reported
that the patient was conscious and was capable of
giving statement and accordingly he recorded
statement (Exh.39). He obtained endorsement to
that effect from Dr.Mantri in the margin of the
paper before proceeding to record statement of
Sharda. This part of the evidence appearing in the
testimony of Pandit Khairnar (PW 6) is not
corroborated by Dr. Pallavi Mantri (PW 5), the
author of the said endorsement. It will be useful
to reproduce the relevant portion from her
examination-in-chief itself, which reads thus :-
..... ..... .....
As requested by police, I examined
the patient to find out whether she
was conscious and was able to give
her statement. I having found the
patient conscious and able to give
her statement, reported the same to
police and accordingly, the police
recorded the statement of burn
injured Shardabai.
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..... ..... .....
The plain reading of the afore said evidence
clearly establishes that Dr.Mantri did not put her
endorsement on the margin of Exh.39 about the
consciousness and the fitness prior to recording of
her dying declaration. Further Exh.36, the
endorsement made by Dr. Mantri in the left hand
column of document Exh.39, clearly establishes the
said fact. Exh.36, the endorsement is in two
parts. The first part reads as under :-
Pt conscious able to give statement
Sd/-
Medical Officer,
S.B.H.G.C. & Hospital,
Dhule
What is important here to note in the first
part is that there is no timing as to when this
endorsement was made by Dr. Pallavi Mantri.
The evidence of Dr. Pallavi Mantri would show
that after the police recorded statement, she again
examined patient and found her to be still
conscious and oriented, and accordingly, she made
endorsement on the sheet of paper. Both these
endorsements were marked as Exh. 36.
The second part of the endorsement (Exh.36)
reads as under :-
Statement Start at 4.50 pm on
25.11.10 End at 5.05 pm on 25.11.10
Sd/-
Medical Officer,
S.B.H.G.C.& Hospital,
Dhule
Thus a valid doubt is created in the mind, as
to whether both the acts, examining the patient
prior to recording of her statement and putting the
endorsement, were simultaneous.
29] Pandit Khairnar (PW 6) appears to have a
good experience of recording dying declarations.
Therefore, it appears that he was directed to
record the same. He has stated in his evidence as
under :-
..... .....
I have a good experience of recording
dying declarations. It is correct to
say that to record a dying
declaration is a responsible duty.
..... .....
In his evidence, he has stated that he himself
was satisfied that the patient was conscious, and
therefore, he recorded the statement of Sharda.
In absence of the doctor s endorsement about
the fitness, if the scribe himself is satisfied
that the patient is able to give statement, that
will not render the dying declaration as a waste
paper, in view of the decision of the
Constitutional Bench of the Hon ble Apex Court in
the matter of Laxman vs State of Maharashtra
[(2002) 6 SCC 710].
30] Reaching to the conclusion that the
patient is fit to give his/her statement by the
scribe is his subjective satisfaction. In order to
reach that subjective satisfaction, the scribe must
prove before the court clinchingly on what basis he
reached to that subjective satisfaction.
From the perusal of Exh.39, there is nothing
to show on what basis Police Head Constable Pandit
Khairnar (PW 6) reached to such subjective
satisfaction, nor in his substantive evidence
before the court, did he gave any indication as to
how he reached to the said conclusion. Merely that
the scribe is saying that he was satisfied himself,
in absence of any material on record, the court
should not readily accept his such unfounded
subjective satisfaction.
31] PW 3 is Nirmala Kothawade. She is
neighbour of appellant. On 25.11.2010 in between
11.30 a.m. to 12.00 noon she was in her kitchen.
Her presence during that time at her residence is
most natural one. At that time, she heard
commotion (आरडा ओरडा). Therefore, she came out of
her house. That time, she found many people were
gathered in front of her house and the house of the
appellant. Her evidence would further reveal that
she entered in the house of the appellant. That
time, she found Sharda in burning condition and
appellant was pouring water on her person.
Her evidence would further reveal that
appellant Mahesh was in temporary service at Thane.
Deceased was on the visiting terms with this
witness. She used to talk her freely. It was
disclosed to her by Sharda that she was born and
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brought up in town like Navsari and she does not
like living in village Khedgaon. As per the
evidence of this lady, Sharda used to tell that she
is asking her husband that they shall live in the
city like Thane. However, her husband was not
ready to live at Thane, and therefore, there were
differences between them.
32] Even from the evidence of Vijayabai
(PW 4) the mother of deceased Sharda, for some
period the couple was residing at Thane, since
Mahesh was working there. From the evidence of
Vijayabai (PW 3) it is clear that his job at Thane
was of temporary nature and after that job was
over, Mahesh was required to return to his village.
It was just impossible for Mahesh to return to
Thane, a big city, as an unemployed.
33] Sharda s disclosing her mind to Nirmala,
a neighbour, appears to be most natural one. The
mother of Sharda was residing at Navsari, which is
situated far away from Khedgaon. Therefore, if
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Sharda is narrating her uneasiness for staying at
village Khedgaon to Nirmala, merely because that
was not disclosed to mother Vijayabai, it will not
lose its credence. The learned Trial Judge has
rejected the evidence of Nirmala (PW 3) that there
was no reason for the deceased to disclose such
facts to her. As observed above, the mother was
residing at Navsari, Sharda was born and brought up
at Navsari, and therefore, it is not impossible
that a person, accustomed to live in big city, will
find it difficult to residing in the village. In
that view of the matter, in such situation, Sharda
narrating her mind to Nirmala, as claimed by
Nirmala, cannot be doubted.
34] In this background, the defence of Mahesh
before the court below was that on the date of the
incident, as usual, Sharda picked up an argument
with him that she is unable to reside in village
and threatened him that she will do something.
Thereafter, he went and sat in another room. That
time, he heard the cries of Sharda and when he went
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inside house, he found her burning, and therefore,
he tried to extinguish the fire and in that
process, he received burn injuries. This part of
his defence is substantially corroborated by the
prosecution vide document Exh.40, which is already
reproduced in the preceding paragraph of this
judgment.
35] In that view of the matter and
considering the fact that the prosecution has not
brought on record the history recorded by Dr.
Pallavi Mantri, which she directed to the Police
Head Constable Salunke to intimate the police
station and non-examination of said Salunke clearly
brings the case of the prosecution in the shadow of
doubt.
36] It is a cardinal principle of criminal
jurisprudence that the prosecution is under
obligation to prove its case beyond reasonable
doubt. If there is a doubt, then the accused is
entitled for the benefit of said doubt.
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37] In the totality of the circumstances, we
are of the view that the prosecution has failed to
establish its case beyond reasonable doubt
requiring us to extend the said benefit in favour
of appellant Mahesh. Consequently, we pass
following order.
O R D E R
(i) The judgment and order of
conviction, passed by the learned
Sessions Judge, Jalgaon, on 20.10.2011,
in Sessions case No. 75 of 2011,
convicting the appellant Mahesh for the
offence punishable under Section 302 of
the Indian Penal Code is hereby quashed
and set aside.
(ii) The appellant be set at liberty
forthwith, if not required in any other
case.
(iii) The fine amount, if any, paid by
the appellant be refunded to him.
(iv) Appeal allowed.
(V.M.DESHPANDE, J.) (K.U.CHANDIWAL, J.)
dbm/cra607.11
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Print Page
good experience of recording dying declarations.
Therefore, it appears that he was directed to
record the same. He has stated in his evidence as
under :-
..... .....
I have a good experience of recording
dying declarations. It is correct to
say that to record a dying
declaration is a responsible duty.
..... .....
In his evidence, he has stated that he himself
was satisfied that the patient was conscious, and
therefore, he recorded the statement of Sharda.
In absence of the doctor s endorsement about
the fitness, if the scribe himself is satisfied
that the patient is able to give statement, that
will not render the dying declaration as a waste
paper, in view of the decision of the
Constitutional Bench of the Hon ble Apex Court in
the matter of Laxman vs State of Maharashtra
[(2002) 6 SCC 710].
Reaching to the conclusion that the
patient is fit to give his/her statement by the
scribe is his subjective satisfaction. In order to
reach that subjective satisfaction, the scribe must
prove before the court clinchingly on what basis he
reached to that subjective satisfaction.
From the perusal of Exh.39, there is nothing
to show on what basis Police Head Constable Pandit
Khairnar (PW 6) reached to such subjective
satisfaction, nor in his substantive evidence
before the court, did he gave any indication as to
how he reached to the said conclusion. Merely that
the scribe is saying that he was satisfied himself,
in absence of any material on record, the court
should not readily accept his such unfounded
subjective satisfaction.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL APPEAL NO. 607 OF 2011
1] Mahesh Vasant Salunke ...Appellant
VERSUS
1] The State of Maharashtra ...Respondent
CORAM : K.U.CHANDIWAL
AND
V.M.DESHPANDE, JJ.
Citation;2014 ALLMR(cri) 3882
DATE OF PRONOUNCEMENT
OF THE JUDGMENT : 3.4.2014
1] Appellant Mahesh (accused no.1) faced the
Sessions trial bearing Sessions Case No. 75 of 2011
before the learned Sessions Judge, Jalgaon, along
with his parents Vasant (accused no.2) and Latabai
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(accused no.3), for the offence punishable under
Sections 498A r/w 34 of the Indian Penal Code.
Appellant Mahesh was also charged for the
offence punishable under Section 302 of the Indian
Penal Code. The learned Sessions Judge, Jalgaon
vide judgment, dated 20.10.2011 was pleased to
acquit all of them in respect of the offence
punishable under Section 498A r/w 34 of the Indian
Penal Code. However, the learned Sessions Judge
was pleased to convict appellant Mahesh for the
offence punishable under Section 302 of the Indian
Penal Code and was directed to suffer imprisonment
for life and to pay fine of Rs.1,000/-, in default
of payment of fine, he was directed to undergo
further rigorous imprisonment for six months.
Appellant Mahesh-original accused no.1 is
taking exception to his this conviction and
sentence awarded to him by the learned Sessions
Judge, Jalgaon by preferring the present appeal.
2] The prosecution case, as it is, unfurled
during the trial, can be narrated as under :-
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Deceased Sharda was eldest daughter of
Vijayabai Patil (PW 4). Her marriage was performed
with appellant Mahesh on 20.4.2008. After
marriage, Sharda started cohabiting with Mahesh
along with her in-laws at village Khedgaon. Couple
resided there for a period of four months. Though
for initial period of 15 days of her marriage,
Sharda was nicely treated by Mahesh and his
parents, she started receiving taunts that her
parents have failed to give substantial gifts.
Taunts were followed by beating. Sharda used to
disclose this illtreatment to Vijayabai (PW 4) on
telephone.
3] After four months of residence at
Khedgaon, Mahesh and Sharda started residing at
Thane, wherein Mahesh was working in some school.
Telephonic disclosure to Vijayabai by Sharda from
Thane about her illtreatment remained to be
continued. In addition to that, it was disclosed
that Mahesh used to beat Sharda under the influence
of liquor.
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While residing at Thane, Sharda conceived.
During her pregnancy, Sharda was taken to Khedgaon,
though it was requested to send her to parental
house, her in-laws did not permit her to go to her
parental house. Sharda again went to Thane.
Father of deceased Sharda went to Thane and took
Sharda to their place at Navsari.
At parental house, Sharda disclosed that her
husband-Mahesh used to beat her in intoxicated
condition, complaints were also made against her
father-in-law and mother-in-law. The illtreatment
was for pursuing her to get valuable gifts from her
parents.
A baby girl was delivered by Sharda. After
1¼ month of the said delivery, sister-in-law of
Sharda and her husband came to Navsari to take
Sharda with them, and accordingly, Sharda went to
Khedgaon. Illtreatment was unabated at Khedgaon.
Therefore, father of Sharda along with father and
brother-in-law of Vijayabai (PW 4) went to Khedgaon
for giving Rs.10,000/- to the accused. The demand
of the accused persons was Rs.50,000/-
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4] On 25.11.2010, Vijayabai (PW 4) was at
Navsari. That time, she received a telephonic call
from her brother-in-law Bhalerao Patil (PW 10) and
it was disclosed to Vijayabai through said
telephonic call that Sharda was burnt and she was
admitted in hospital at Dhule. PW 10-Bhalerao
Patil is resident of Shirur, Taluka Amalner. He
came to know about the incident because of the
telephonic information given to him by the accused
persons.
5] On getting information, Vijayabai (PW 4)
along with her husband and other relatives reached
Dhule at mid night. They rushed to the hospital.
They could see Sharda, but could not talk with her,
since she was already dead. This is one part of
the prosecution case.
6] In the mean while, after getting burn
injuries on 25.11.2010, Sharda was brought to the
Casualty at Civil Hospital, Dhule. On getting the
information and request to record the statement of
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Sharda, Nilkanth Mule (PW 8), who at the relevant
time was Naib Tahsildar, reached to the hospital at
4.15 p.m. He met to Dr.Pallavi Mantri (PW 5). He
disclosed his identity to her and desired to record
the statement of burn patient. Accordingly, Dr.
Mantri (PW 5) pointed out to her the burn injured
patient. On the request of Naib Tahsildar, Dr.
Mantri examined the patient and found that she was
in a good condition. Accordingly, she reported to
Naib Tahsildar that he can record her statement.
Hence, Nilkanth Mule (PW 8) recorded statement of
Sharda. In her statement, it was disclosed to him
that on 25.11.2010 at about 12.30 p.m. when Sharda
was in her house, that time appellant Mahesh came
and asked money from her to consume liquor. Sharda
refused to pay for liquor, and therefore, Mahesh
got annoyed, sprinkled kerosene on her person and
put her on fire, due to which she suffered burns.
It was disclosed by Sharda in her statement to Naib
Tahsildar Mule (PW 8) that her husband admitted her
in Dhule hospital. After recording of the
statement, Mule (PW 8) read over the said statement
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to Sharda. She acknowledged the correctness of the
contents of her statement, and therefore, a thumb
impression was obtained on the said statement. The
said statement, which ultimately resulted in to the
Dying Declaration is at Exh. 49.
7] Pandit Atmaram Khairnar, a police Head
Constable, B.No.450 (PW 6) was on duty at Police
Station. He received written order from the
Officer Incharge of the police station to record
the statement of burn injured person by name
Sharda, who was admitted in Civil Hospital, Dhule.
In obedience to the said written order, Pandit
Khairnar (PW 6) had been to the Civil Hospital,
Dhule. He met Dr. Pallavi Mantri (PW 5) and
requested her that he shall record the statement
of Sharda, and therefore, she should examine the
patient and should report as to whether she is
conscious and able to give statement. Accordingly,
Dr. Mantri examined Sharda and asked Khairnar
(PW 6) to proceed with recording of the statement
of Sharda, as she was able to give her statement.
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Accordingly, he recorded statement of Sharda. The
said statement is at Exh. 39. This is another part
of the prosecution case.
8] Sampat Londhe (PW 9) was working as
police Sub-Inspector. He was attached to Mehunbare
police station. During his duty hours, police Head
Constable Kulkarni of Dhule police station came and
handed over a dying declaration. He read it and
informed the Assistant Police Inspector of
Mehunbare police station to register an offence.
9] Officer Incharge of the said police
station accordingly made endorsement in the margin
of the dying declaration having registered the
crime. The offence was registered in the night of
25.11.2010. In the morning of 26.11.2010, Sampat
Londhe (PW 9) went to the spot and drew spot
panchanama (Exh.28). During spot panchanama, he
seized a plastic can, a match box, some match
sticks which were partially burnt and some tinder
match sticks and pieces of clothes. The seized
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muddemal property was taken by him to the police
station and was deposited with the muddemal Clerk.
The muddemal receipt is at Exh. 52. Before
returning to the police station, he recorded
statements of neighbouring residents.
On 26.11.2010, Londhe (PW 9) received, a
provisional report of postmortem examination and
notes of inquest of deceased Sharda, from Dhule
City police station. The inquest panchanama is at
Exh.30. On 27.11.2010, Londhe (PW 9) sent
intimation to the court that Sharda died, and
therefore, the offence was converted into offence
punishable under Section 302 of the Indian Penal
Code.
Sampat Londhe (PW 9) summoned parents of
Sharda to the police station for recording their
statements, however, they refused by saying that
since their daughter has died, therefore, they will
give their statements after some time.
Accordingly, entry to that effect was made in the
station diary.
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On 15.12.2010, parents and uncle of deceased
came to the police station. Their statements were
recorded by Sampat Londhe (PW 9). On the basis of
the statements, so given by the parents and uncle
of deceased, he added Sections 498A r/w 34 of the
Indian Penal Code to the crime and submitted report
to the court of the Magistrate.
The muddemal property seized during
investigation was sent to the Chemical Analyser.
On completion of investigation, he submitted charge
sheet to the court.
Committal order was passed on 31.3.2011 by the
Judicial Magistrate, First Class, Chalisgaon. The
learned Sessions Judge framed charge on 4.6.2011
(Exh.17) against Mahesh and his parents for the
offences punishable under Sections 498A r/w 34 and
for offence punishable under Section 302 of the
Indian Penal Code against appellant Mahesh. All
the accused persons pleaded innocence and claimed
for trial.
10] The prosecution examined eleven witnesses
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to bring home the guilt of the accused persons to
face trial. After a full dressed trial, the
learned Sessions Judge, Jalgaon acquitted the
appellant Mahesh and his parents for the offence
under Section 498A of the Indian Penal Code,
however, the learned Sessions Judge found that the
prosecution was successful to bring home the guilt
of the appellant for the offence punishable under
Section 302 of the Indian Penal Code, and
therefore, he recorded the conviction against him
and sentenced him to suffer imprisonment for life.
11] We have heard Shri N.S.Ghanekar, learned
counsel appearing for the appellant and Mrs.
B.B.Gunjal, learned Additional Public Prosecutor
for the State. With their assistance, we have
minutely examined the entire record and the
evidence as brought on record during trial by the
prosecution.
12] Learned counsel for the appellant argued
with vehemence that the prosecution has failed to
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establish its case beyond shadow of doubt. It was
urged by the learned counsel that the dying
declaration recorded by Khairnar (PW 6) cannot be
made basis to record the finding of conviction
against the appellant for the offence punishable
under Section 302 of the Indian Penal Code. The
learned counsel submitted that the prosecution has
deliberately suppressed relevant documents from the
record. He has further submitted that Dr. Mantri
(PW 5) was on duty as a Casualty Medical Officer.
According to him, Dr. Mantri's evidence does not
disclose that Sharda was admitted in the burn Ward,
however, both the scribe i.e. Pandit Khairnar
Police Head Constable (PW 6) and Nilkanth Mule,
Naib Tahsildar (PW 8) claim that they went to Burn
Ward. According to the learned counsel for the
appellant, the doctor, who was attending the
patients in Burn Ward was not examined. According
to him, the nature of the examination of patient
Sharda, as claimed by Dr. Mantri (PW 5) is not
found anywhere. There is no endorsement on any of
the dying declaration that the patient was
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oriented. In that view of the matter, according to
him, Exhs. 36 and 37 the endorsements made by her
in respect of consciousness of the patient on Exh.
39 and Exh. 49 respectively are highly suspicious.
Hence, he submitted that the appellant deserves
acquittal in the present appeal.
13] Per contra, Mrs. Gunjal, learned
Additional Public Prosecutor strenuously urged
before us that Sharda died homicidal death and the
appellant is the author for the burn injuries on
the person of the deceased. According to her, the
dying declaration (Exh.39) recorded by Khairnar
(PW 6) inspires confidence and there are no
attending circumstances, by which it's truthfulness
and genuineness can be doubted. She, therefore,
submitted that the learned Sessions Judge was right
in his wisdom to convict the appellant on the basis
of dying declaration (Exh.39). Therefore, she
prayed for dismissal of the appeal.
14] On the basis of the postmortem report
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(Exh.59) conducted on the dead body of Sharda and
from the evidence of Dr. Sandip Patil (PW 11), who
conducted autopsy on the dead body, the conclusion
is irresistible that Sharda died on account of burn
injuries.
The question to be decided in the present
appeal is, whether Mahesh-the appellant, as claimed
by the prosecution, is the author for the burn
injuries found on the person of Sharda; or whether
Sharda alone is responsible for her death, since as
claimed by Mahesh in his statement recorded by the
learned trial court under Section 313 of the
Criminal Procedure Code that Sharda on her own
poured kerosene on her person and set herself
ablaze.
15] Admittedly, there is no ocular evidence
to the actual incident of burning. The case of the
prosecution was based on two written dying
declarations. One such was recorded by Nilkanth
Mule (PW 8) at Exh. 49, and another was reduced
into writing by Police Head Constable Pandit
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Khairnar (PW 6) at Exh.39. The prosecution also
relied upon the oral dying declaration, alleged to
have been made by Sharda to Bhalerao Patil (PW 10),
the uncle of Sharda.
16] While appreciating the truthfulness of
the afore said evidence, the learned Sessions Judge
found that the dying declaration (Exh.49) of Sharda
recorded by Nilkanth Mule (PW 8), Naib Tahsildar is
not free from suspicion. In that view of the
matter, it was held by the learned court below that
the said dying declaration (Exh.49) deserves to be
rejected and it was accordingly discarded. The
learned Sessions Judge has supplemented reasons,
for rejecting/discarding the dying declaration Exh.
49.
After reappreciation of the entire evidence of
the prosecution and on the close scrutiny of dying
declaration (Exh.49), we find that the learned
Sessions Judge has rightly rejected the dying
declaration (Exh.49). We affirm those findings.
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17] The learned Sessions Judge has also
rejected the oral dying declaration made by
deceased Sharda to her uncle PW 10. We subscribe
to the said opinion arrived at by the learned
Sessions Judge, and accordingly, on the
reappreciation of the evidence of Bhalerao Patil
(PW 10), we find, no reason to disturb the said
finding of the learned Sessions Judge.
18] That leaves us to consider the dying
declaration (Exh.39) recorded by Police Head
Constable Pandit Khairnar (PW 6), which according
to the learned Sessions Judge was free from all
suspicious circumstances, and therefore, on the
basis of the said document, the appellant was
convicted and sentenced to suffer imprisonment for
life.
19] Now, let us scrutinize the said dying
declaration (Exh.39) and the attending
circumstances as available on record in order to
reach to the conclusion as to whether the
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prosecution is able to bring its case beyond shadow
of doubt and could it be said that there is no iota
of truth in the statement of appellant recorded
under Section 313 of the Criminal Procedure Code.
20] On 25.11.2010, Dr. Pallavi Mantri (PW 5)
was on her duty at Civil Hospital, Dhule as
Casualty Medical Officer. During her duty hours,
at about 3.00 p.m. to 3.30 p.m., Sharda a female
patient with burn injuries was brought to the
Casualty. She immediately admitted patient as an
indoor patient and started the treatment.
Pandit Khairnar (PW 6) was on duty at police
station Dhule and his duty hours were 8.00 a.m. to
8.00 p.m. On the said date, Officer Incharge of
the police station gave him a written order that a
burn patient by name Sharda is admitted in the
Civil Hospital at Dhule, and therefore, he should
proceed to record her statement.
As directed, Pandit Khairnar (PW 6) went to
the Civil Hospital, Dhule at about 3.30 p.m. At
the hospital, he met Medical Officer Dr. Mantri
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(PW 5) and requested her to examine Sharda, since
he was intending to record her statement. This
fact finds corroboration from the evidence of Dr.
Mantri (PW 5).
21] From the evidence of Pandit Khairnar
(PW 6), it is crystal clear that he was not
attached to police chowky at the hospital. On
25.11.2010, he was at police station. The Officer
Incharge of police station gave him a written order
to record the statement of burn injured patient
Sharda. Now, it was the bounden duty of the
prosecution to explain, how the information was
received in the police station from the hospital
that burn patient Sharda is admitted. One thing
is sure that such information was received by
police station, Dhule and then only a written order
was given by the Police Station Officer to Pandit
Khairnar (PW 6). The information received from the
hospital must have been reduced into writing at
police station, Dhule. Now, what was that
intimation, which must have been reduced in to
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writing by the police authorities, is not coming
forward from the prosecution on record. In that
behalf, we are at pains to reproduce version of Dr.
Pallavi Mantri, in order to appreciate the
truthfulness of the entire prosecution case. Dr.
Pallavi Mantri (PW 5) has stated in paragraph 6 of
her evidence as under :-
..... ..... .....
It is correct to say that at the
time the patient Sharda was admitted to
hospital, she was conscious. It is
correct that at the time of admitting
the patient, I took from her the
history and the cause of the burns. At
that time, Police Head Constable
V.V.Salunke, B.No.221 was on duty in
the hospital. The history disclosed by
the patient is required to be mentioned
in the case-papers and accordingly a
mention has been made by me in the
case-papers. In the case-papers, I
have also made a mention of the
percentage of burns suffered by
Shardabai. It is correct to say that I
told the Head Constable of the history
the patient gave and also of the
percentage of burns suffered by her and
then, asked him to go to Police Station
and inform.
..... ..... .....
22] From the afore said part of the evidence
appearing in the testimony of Dr. Pallavi Mantri
(PW 5), six clinching facts are established.
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(i) when Sharda was admitted in hospital she
was conscious.
(ii) At the time of admitting her, Dr. Mantri
took her history from her and cause of burns.
(iii) That time Police Head Constable
V.V.Salunke B.No.221 was on duty in the
hospital.
(iv) Dr. Mantri was under obligation to
mention the history disclosed by the patient in
the case papers and accordingly she has
mentioned the same in the case papers.
(v) She told Head Constable Salunke about
the history which was given to her by the
patient.
(vi) Dr. Mantri asked Salunke to go to the
police station and inform about the said fact.
23] From the afore said analysis of the
testimony of Dr.Mantri, it is clear that Police
Head Constable Salunke, who was on duty at
hospital, was directed to intimate the fact of the
admission of the patient and the history disclosed
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to him by Dr. Mantri, and accordingly, in fact, he
must have carried the same with him to the police
station and he must have reported the said
information to the police station. That is the
only source of receipt of the information about the
admission of burn patient Sharda in the hospital to
the police station. That information necessitated
the police station officer to direct Khairnar
(PW 6) to record the statement of Sharda.
Now, what was that history narrated by patient
Sharda to Dr. Mantri and what the information that
was reduced into writing at police station, was one
of the primary piece of evidence in the present
case. The said primary piece of evidence is not
coming on record from the prosecution side. The
said primary piece of evidence appears to have been
withheld by the prosecution. In view of the fact
that there is no explanation for the same, this
court is required to draw an adverse inference
against the prosecution case.
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24] Exh.40 is the written order given by
police station officer, Dhule to Police Head
Constable Pandit Khairnar (PW 6). The said order
is reproduced herein below.
Exhibit No.40
धुळे शहर पोलीस सटेशन
आदेश
पो.हे.कॉ./450/पंिित आतमाराम खैरनार,
धुळे शहर पोलीस सटेशन, धुळे
िॉ. मंती मॅिम पो.हे.कॉ./221/वही.बी.साळंुखे
पेशंट : - १) शारदाबाई महेश साळंुखे , उ.व.-२२,
रा. खेिगाव , ता. ४०गाव, िि. िळगाव.
२) महेश वसंत साळंुखे , उ.व.-२८,
रा. खेिगाव , ता. ४०गाव, िि. िळगाव.
आि िदनांक २५/११/२०१० रोिी १२.३०
वािाचया सुमारास सवतःचे राहते घरी ितचा नवरा महेश
वसंत साळंुखे यांचयासोबत काहीतरी कुिबुि झालयाने
तीन सवतःचया अंगावर रॉकेल ओतून घेतले व नव -यास
धाक दाखवू लागली. मी पेटवून घेईन असे सांगत
होती. व आगपेटीचे कािीने पेटवून घेतले . तयात ती १००%
भािली गेली. व महेश वसंत साळंुखे हा २५ % भािला
आहे. तयांना १५.०० वा. सासरा वसंत यशवंत साळंुखे
यांनी दखल केले . D.D.ची गरि आहे.
सटे.िा.ई.न. ३८ सही/-
वेळ १५ .३० वा. पोलीस ठाणे अंमलदार
तारीख : २५/११/२०१० धुळे शहर पोलीस सटेशन ”
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Thus from Exh.40, it is clear that appellant
Mahesh has also received burn injuries to the
extent of 25%. It is an admitted position on
record that Mahesh was also indoor patient from
25.11.2010 to 7.1.2011. It is also clear that he
received the said burn injuries in the said
incident.
In that view of the matter, the prosecution
was under obligation to explain as to how the said
burn injuries are appearing on the person of
appellant Mahesh.
25] As found in the preceding paragraph, Dr.
Mantri has recorded the history in the case papers.
At the time of her evidence, in spite of specific
instructions in the summons that she should attend
the court with all relevant papers, she failed to
bring with her the hospital case papers of patient
Sharda. Her evidence was recorded on 2.7.2011. She
received the summons for giving evidence on
29.6.2011. She was on duty as a Medical Officer at
Dhule even on 30.6.2011 and 1.7.2011. The
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prosecuting agency has not explained, in spite of
summons with a direction to bring the original case
papers of Sharada, why her case papers were not
produced before the court. This also leads us to
draw an adverse inference against the case of the
prosecution.
26] The crime is registered at Mehunbare
police station. Interestingly, after recording
dying declaration, in pursuance to the order (Exh.
40), Pandit Khairnar (PW 6) has reported compliance
to the police station, Dhule vide Exh.41. It is as
under :-
स. सादर िक, आदेशापमाणे आदेशातील नमूद िळीत
सीचा िबाब घेता ितने ितचया पती िवरद तकारी िबाब
िदलयाने सदर िबाब आणून हिर केला आहे तरी पढु ील
काययवाही होऊन पकरण मारवाि पो.सटे.ला पाठिवनेस
िवनतं ी आहे.
27] It is curious to note the evidence of
Pandit Khairnar (PW 6) about this Marwad police
station, which is as under :-
(Witness volunteers : I made a
mention of Marwad Police Station in my
report only because there are several
villages of the same name as Marwad.)
It is correct to say that within the
jurisdiction of Chalisgaon tahsil
there is no village by name Marwad nor
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any police station by that name.
We are pointing out this only to show the
casual approach of Pandit Khairnar (PW 6).
28] According to scribe Police Head
Constable, after examination, Dr. Mantri reported
that the patient was conscious and was capable of
giving statement and accordingly he recorded
statement (Exh.39). He obtained endorsement to
that effect from Dr.Mantri in the margin of the
paper before proceeding to record statement of
Sharda. This part of the evidence appearing in the
testimony of Pandit Khairnar (PW 6) is not
corroborated by Dr. Pallavi Mantri (PW 5), the
author of the said endorsement. It will be useful
to reproduce the relevant portion from her
examination-in-chief itself, which reads thus :-
..... ..... .....
As requested by police, I examined
the patient to find out whether she
was conscious and was able to give
her statement. I having found the
patient conscious and able to give
her statement, reported the same to
police and accordingly, the police
recorded the statement of burn
injured Shardabai.
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..... ..... .....
The plain reading of the afore said evidence
clearly establishes that Dr.Mantri did not put her
endorsement on the margin of Exh.39 about the
consciousness and the fitness prior to recording of
her dying declaration. Further Exh.36, the
endorsement made by Dr. Mantri in the left hand
column of document Exh.39, clearly establishes the
said fact. Exh.36, the endorsement is in two
parts. The first part reads as under :-
Pt conscious able to give statement
Sd/-
Medical Officer,
S.B.H.G.C. & Hospital,
Dhule
What is important here to note in the first
part is that there is no timing as to when this
endorsement was made by Dr. Pallavi Mantri.
The evidence of Dr. Pallavi Mantri would show
that after the police recorded statement, she again
examined patient and found her to be still
conscious and oriented, and accordingly, she made
endorsement on the sheet of paper. Both these
endorsements were marked as Exh. 36.
The second part of the endorsement (Exh.36)
reads as under :-
Statement Start at 4.50 pm on
25.11.10 End at 5.05 pm on 25.11.10
Sd/-
Medical Officer,
S.B.H.G.C.& Hospital,
Dhule
Thus a valid doubt is created in the mind, as
to whether both the acts, examining the patient
prior to recording of her statement and putting the
endorsement, were simultaneous.
29] Pandit Khairnar (PW 6) appears to have a
good experience of recording dying declarations.
Therefore, it appears that he was directed to
record the same. He has stated in his evidence as
under :-
..... .....
I have a good experience of recording
dying declarations. It is correct to
say that to record a dying
declaration is a responsible duty.
..... .....
In his evidence, he has stated that he himself
was satisfied that the patient was conscious, and
therefore, he recorded the statement of Sharda.
In absence of the doctor s endorsement about
the fitness, if the scribe himself is satisfied
that the patient is able to give statement, that
will not render the dying declaration as a waste
paper, in view of the decision of the
Constitutional Bench of the Hon ble Apex Court in
the matter of Laxman vs State of Maharashtra
[(2002) 6 SCC 710].
30] Reaching to the conclusion that the
patient is fit to give his/her statement by the
scribe is his subjective satisfaction. In order to
reach that subjective satisfaction, the scribe must
prove before the court clinchingly on what basis he
reached to that subjective satisfaction.
From the perusal of Exh.39, there is nothing
to show on what basis Police Head Constable Pandit
Khairnar (PW 6) reached to such subjective
satisfaction, nor in his substantive evidence
before the court, did he gave any indication as to
how he reached to the said conclusion. Merely that
the scribe is saying that he was satisfied himself,
in absence of any material on record, the court
should not readily accept his such unfounded
subjective satisfaction.
31] PW 3 is Nirmala Kothawade. She is
neighbour of appellant. On 25.11.2010 in between
11.30 a.m. to 12.00 noon she was in her kitchen.
Her presence during that time at her residence is
most natural one. At that time, she heard
commotion (आरडा ओरडा). Therefore, she came out of
her house. That time, she found many people were
gathered in front of her house and the house of the
appellant. Her evidence would further reveal that
she entered in the house of the appellant. That
time, she found Sharda in burning condition and
appellant was pouring water on her person.
Her evidence would further reveal that
appellant Mahesh was in temporary service at Thane.
Deceased was on the visiting terms with this
witness. She used to talk her freely. It was
disclosed to her by Sharda that she was born and
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brought up in town like Navsari and she does not
like living in village Khedgaon. As per the
evidence of this lady, Sharda used to tell that she
is asking her husband that they shall live in the
city like Thane. However, her husband was not
ready to live at Thane, and therefore, there were
differences between them.
32] Even from the evidence of Vijayabai
(PW 4) the mother of deceased Sharda, for some
period the couple was residing at Thane, since
Mahesh was working there. From the evidence of
Vijayabai (PW 3) it is clear that his job at Thane
was of temporary nature and after that job was
over, Mahesh was required to return to his village.
It was just impossible for Mahesh to return to
Thane, a big city, as an unemployed.
33] Sharda s disclosing her mind to Nirmala,
a neighbour, appears to be most natural one. The
mother of Sharda was residing at Navsari, which is
situated far away from Khedgaon. Therefore, if
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Sharda is narrating her uneasiness for staying at
village Khedgaon to Nirmala, merely because that
was not disclosed to mother Vijayabai, it will not
lose its credence. The learned Trial Judge has
rejected the evidence of Nirmala (PW 3) that there
was no reason for the deceased to disclose such
facts to her. As observed above, the mother was
residing at Navsari, Sharda was born and brought up
at Navsari, and therefore, it is not impossible
that a person, accustomed to live in big city, will
find it difficult to residing in the village. In
that view of the matter, in such situation, Sharda
narrating her mind to Nirmala, as claimed by
Nirmala, cannot be doubted.
34] In this background, the defence of Mahesh
before the court below was that on the date of the
incident, as usual, Sharda picked up an argument
with him that she is unable to reside in village
and threatened him that she will do something.
Thereafter, he went and sat in another room. That
time, he heard the cries of Sharda and when he went
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inside house, he found her burning, and therefore,
he tried to extinguish the fire and in that
process, he received burn injuries. This part of
his defence is substantially corroborated by the
prosecution vide document Exh.40, which is already
reproduced in the preceding paragraph of this
judgment.
35] In that view of the matter and
considering the fact that the prosecution has not
brought on record the history recorded by Dr.
Pallavi Mantri, which she directed to the Police
Head Constable Salunke to intimate the police
station and non-examination of said Salunke clearly
brings the case of the prosecution in the shadow of
doubt.
36] It is a cardinal principle of criminal
jurisprudence that the prosecution is under
obligation to prove its case beyond reasonable
doubt. If there is a doubt, then the accused is
entitled for the benefit of said doubt.
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37] In the totality of the circumstances, we
are of the view that the prosecution has failed to
establish its case beyond reasonable doubt
requiring us to extend the said benefit in favour
of appellant Mahesh. Consequently, we pass
following order.
O R D E R
(i) The judgment and order of
conviction, passed by the learned
Sessions Judge, Jalgaon, on 20.10.2011,
in Sessions case No. 75 of 2011,
convicting the appellant Mahesh for the
offence punishable under Section 302 of
the Indian Penal Code is hereby quashed
and set aside.
(ii) The appellant be set at liberty
forthwith, if not required in any other
case.
(iii) The fine amount, if any, paid by
the appellant be refunded to him.
(iv) Appeal allowed.
(V.M.DESHPANDE, J.) (K.U.CHANDIWAL, J.)
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