In the backdrop of the aforesaid evidence, it will be
useful to refer reported decision by the learned Single
Judge of this Court (R.C.Chavan, J) reported in 2006 (2)
Mh.L.J. (Cri) 1210, Sharad s/o. Namdeorao Shirbhate vs.
State of Maharashtra. In para 10 of the said reported Judgment, the learned
Single Judge found that Pundlik (PW1) has admitted that
the police had read over his statement to him and also told
him to tender the evidence as per his statement. The
learned Single Judge has observed thus :
“ There would indeed be nothing wrong in the witness
refreshing his memory, but that ought to be done
before the Court and not outside the Court. In order
to test the veracity of a witness, he would be required
to recollect the incident out of his own memory and
should he falter on some material aspect, he could be
allowed to refresh his memory with reference to the
contemporaneous records of the incident created by
the police. It would not be permissible for such
witness to stealthily refresh his memory before
entering the Court and deposing about the entire
evidence giving minute details as if he was reeling
them out from his memory. Therefore, the objection
to the reliability of evidence of PW2 Prabhakar taken
by learned Counsel for the appellant is valid.”
(emphasis is supplied by us).
We approve the dictum of the learned Single Judge in
that behalf.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.408 OF 2012
Suresh s/o. Purushottam Ashtankar,
// VERSUS //
The State of Maharashtra,
DATE : 31.10.2014.
CORAM : B. R. GAVAI &
V. M. DESHPANDE, JJ.
The appellant is convicted by the learned Additional
Sessions Judge4, Nagpur on 9.8.2012 in Sessions Trial
No.457 of 2011 whereby the learned Judge convicted the
appellant for the offence punishable under Section 302 of
the Indian Penal Code for committing murder of his wife
Megha and directed him to suffer imprisonment for life and
to pay a fine of Rs.500/ and in default to suffer further
rigorous imprisonment for one month.
2.
We have heard Mr.C.H.Jaltare, learned Counsel for
the Appellant, Mr.S.M.Uikey, learned A.P.P. for respondent
no.1/State and Mr.R.R.Vyas, learned Counsel for first
informant/respondent no.2. With their able assistance, we
have gone through the record and proceedings.
Deceased Megha was wife of the present appellant.
3.
The couple was having two daughters and one son. The
daughters are Ku.Sharyu (PW1) and Ku. Pranjali (PW3).
According to the prosecution case, upon the first
information report (Exh.16) filed by Sharyu (PW1), Crime
No.112 of 2011 was registered initially for the offence
punishable under Section 307 of the Indian Penal Code on
21.6.2011. Consequently, the offence was converted for
the offence punishable under Section 302 of the Indian
Penal Code upon death of Megha on 3.7.2011.
4.
According to the First Information Report, the first
informant Sharyu completed her education upto 12th Std.
at Porwal College and the process of her admission in
another college was in offing. Her mother deceased Megha
was working as a teacher at Primary School, Zilla Parishad,
Marartoli at Yerkheda and her father Suresh was not doing
any work and used to pick up quarrel with her mother
Megha on account of refusal to oblige the demand of
appellant for giving money for consumption of liquor.
5.
The First Information Report further reveals that, on
21.6.2011, at 5 O'clock in the evening, in the house all the
family members were present. The appellant was siting in
the outer room under the influence of liquor. The first
informant and her sister were in the kitchen. That time, the
appellant came in the kitchen and used abusive words to
the first informant and tried to make assault on her. Upon
that, mother Megha came in the kitchen and questioned the
appellant as to why he is beating their daughter. Upon
that, the appellant also tried to assault Megha and
demanded Rs.100/ for drinking liquor. Upon refusal by
Megha, appellant picked up a can kept in the kitchen.
Thereupon, Megha ran in the another room. She was
followed by the father/appellant and the appellant poured
kerosene in the hall upon the person of Megha and set her
ablaze. According to Sharyu, her mother was helped in
extinguishing fire by the first informant and people from
M.S.E.B. Megha was then taken to the Roy hospital.
Since the first information was disclosing commission
6.
of offence, crime was registered.
P.W7 is Sugriv Verma, a Head Constable. On
21.6.2011, he was attached to Police Station, Kamptee. On
the said day, he received one MLC from Roy hospital,
Kamptee. Thereupon, he went to Roy hospital and gave a
letter to the Medical Officer asking him as to whether the
patient is fit to give statement. The said requisition is at
Exh.51. Sugriv Verma (PW7) thereafter recorded
statement of Megha. After completion of the said statement,
it was read over to Megha, who admitted its contents and
thereafter, he obtained right toe impression on the said
statement. It is at Exh.52.
7.
After completion of investigation, the Investigating
Officer Dilip Wadankar (PW9) was of opinion that
sufficient evidence was appearing against the appellant, the
charge sheet was filed. The learned Magistrate, in whose
Court the charge sheet was filed, found that the offence was
exclusively triable by the Court of Session and therefore, he
8.
passed the committal order.
The learned Additional Sessions JudgeI, Nagpur on
19.10.2011 framed charge against the appellant. The
Before the learned Court, the prosecution has
9.
appellant abjured his guilt and claimed that he be tried.
examined in all nine witnesses and also relied on the dying
declaration (Exh.52) of Megha. The appellant was
examined u/s. 313 of the Code of Criminal Procedure and
he also gave his Written Statement (Exh.61).
10.
The first question that has to be answered by this
Court is what is the nature of unnatural death of Megha.
Whether it is homicidal, as claimed by the prosecution or
whether it is suicidal in nature, as suggested by the
appellant through his line of crossexamination of witnesses
and his specific Written Statement u/s. 313 of the Code of
Criminal Procedure.
11.
From perusal of Exh.34 – post mortem report which
shows that Megha suffered 64 % burn injuries and cause of
death given by doctor in the said post mortem report i.e.
septicemia due to burn injuries, it is crystal clear that death
of Megha was unnatural one.
Now let us examine the respective claim of
In order to bring home the guilt of the appellant,
13.
prosecution as well as the appellant as suggested by him.
prosecution relies on a) written dying declaration (Exh.52)
recorded by Sugriv Verma (PW7), b) oral dying declaration
given by deceased Megha to Rajendra Naidu (PW2) and
eye witness account of Sharyu (PW1) and Pranjali (PW3).
14.
Sugriv Verma (PW7), upon receipt of MLC from Roy
hospital, visited the said hospital. He gave requisition to the
Medical Officer of Roy hospital in respect of fitness of
Megha since he was intending to record her statement. The
15.
said requisition is at Exh.51.
Dr. Ratan Sanjiv Roy (PW8) was present in his
hospital when Megha was brought to his hospital. He
intimation (Exh.50).
immediately informed the said fact to police by giving
Dr.Ratan Roy has admitted about issuance of letter
(Exh.51) to him and also his endorsement on Exh.51 that
the patient was fit to give her statement.
16.
Sugriv Verma (PW8) claims that he has recorded
statement of Megha and also asked Dr.Roy to sign the same
as he was present there.
Interestingly, Dr.Ratan Roy in his evidence before the
Court has stated as under :
statement of the patient. However, it bears my
signature. After recording the statement, I was
“I was not present at the time of recording of
asked to sign it. Therefore, I had signed on it. “
17.
In the light of evidence of Dr.Ratan Roy, it will be
unsafe to rely upon Exh.52, the dying declaration recorded
by the Head Constable. The Dying declaration can be
ig
recorded by any person. However, scribe Sugriv Verma
claims that Dr.Roy was present at the time of recording of
statement of Megha, which is falsified by evidence of
Dr.Roy who has flatly denied his presence at the time of
recording of statement of Megha. In that view of the
matter, there is no option but to keep aside Exh.52, the
written dying declaration of Megha and that cannot be the
basis for securing conviction of the appellant. Further it has
to be noted that Trilokkumar Nasare (PW4) who is brother
of deceased Megha immediately visited the Roy hospital.
His evidence would reveal that he asked his sister as to
what has happened. However, she did not disclose anything
to him. His evidence would reveal that, that time the
18.
thereafter when he was sitting with the doctor.
statement of Megha was not recorded and police came
Disclosure on the part of Megha to her brother
Trilokkumar would have been the most natural disclosure.
That was the first opportunity available to Megha to
disclose the act of the appellant to any third person. In that
view of the matter, Exh.52, written dying declaration has
Insofar as the oral dying declaration is concerned,
19.
no evidentiary value and it is, accordingly, rejected.
Rajendra Naidu (PW2)claims that it was made to him by
deceased Megha. Rajendra resides in front of house of the
appellant. He claims that, on 21.6.2011, in the evening, he
was sitting in front of house with his wife and 23 other
persons. That time, he noticed Megha coming out of her
house in completely burnt condition. Therefore, he and his
wife rushed towards her. He claims that, that time one
Mr.Rode and Jayendra Naidu, the employee of M.S.E.B.
also came there and they extinguished fire. It is claim of
Rajendra (PW2) that, that time it was disclosed to him by
Megha that Suresh i.e. the appellant poured kerosene on
her and set her on fire. He further claims that he disclosed
that there was some quarrel in between them. However,
she did not assign any reason about the subject of quarrel.
Even, the oral dying declaration, if it inspires
20.
confidence, can be the basis for conviction. Now let us
examine as to whether the evidence of Rajendra Naidu
(PW2) can be accepted in respect of oral dying declaration.
Rajendra Naidu is also panch on spot panchanama
(Exh.19) and seizure of some articles Exh.20. These two
documents are dt.21.6.2011.
21.
Though Rajendra Naidu has claimed that his
statement by police is recorded immediately on the same
day, the record reveals that his statement is recorded on
22.6.2011 and not on the same day.
Prosecution has not examined said Mr. Rode or
22.
Jayant Naidu who were present at the time of oral dying
declaration made to Rajendra. Their examination before
the Court would have been a corroborated piece of
evidence in respect of oral dying declaration made to
Rajendra Naidu. It assumes importance in view of the fact
that the claim of Rajendra Naidu that the statement was
recorded by the police immediately on the same day was
found to be incorrect on the said factual aspect. Therefore,
according to us, it will be hazardous to secure conviction of
such uncorroborated evidence of Rajendra (PW2).
Accordingly, we cannot keep any reliance on the statement
of Rajendra.
23.
That leaves us with the evidence of Sharyu (PW1)
and Pranjali (PW3) who are daughters of the appellant and
deceased Megha. They claimed that they have witnessed
the attrocities committed on their mother at the hands of
their father by setting her ablaze on pouring kerosene.
Merely because the witnesses are coming forward and
24.
deposed against a particular person, the Court should not
rush to accept their version unless their evidence is properly
scanned and evaluated in true perspective.
25.
Sharyu (PW1) claims that her father was not doing
any work. Her claim in that behalf appears to have been
falsified by her maternal uncle Trilokkumar Nasare (PW4)
who has admitted in his evidence that, prior to some day of
incident, the appellant had purchased Indigo Car for taxi
business. It is to be noted that the appellant lost his job due
to closure of Spinning Mill.
26.
Further, according to Sharyu, on the day and time of
the incident, the appellant was under the influence of
liquor. She and her sister were working in the kitchen. That
time, the appellant came in kitchen and assaulted on her.
Therefore, she raised cries and her mother Megha came
there and the questioned the appellant as to why he is
beating Sharyu and on that account, there was exchange of
words between them and that time, her father demanded
Rs.100/ for consuming liquor, which was refused by her
mother. Hence, her father raised kerosene can and poured
the same on her mother. There is variance in the first
information report lodged by Sharyu and her evidence to
the effect that her evidence is silent that, at that time, the
27.
Megha ran in the hall.
appellant tried to assault upon Megha and, therefore,
From the evidence of Sharyu (PW1), the first
information report (Exh.16) and the evidence of Pranjali
(PW3), it is clear that kerosene was poured upon Megha in
hall near TV and there, she was set ablaze.
28.
Exh.19 is the spot panchanama which was drawn
immediately on 21.6.2011.
Thus, Exh.19 a
contemporaneous document to the incident. The said
panchanama does not reveal that, at the time of drawing
the said panchanama, panchas or the Investigating Officer
noticed any kerosene residues either on the floor of the said
hall or on any article including TV. The said panchanama is
also completely silent about said aspect. Even panch
Rajendra Naidu (PW2) or the Investigating Officer Dilip
Wadankar (PW9) did not smell of kerosene in the said hall
when they visited the spot of occurrence.
Further, it is not the case of prosecution that the
29.
appellant was not having habit of smoking. If the entire
evidence of Sharyu (PW1) and Pranjali (PW3) is scanned,
then it is clear that, from the hall, the appellant entered in
the kitchen and picked up quarrel with Sharyu (PW1).
However, the evidence of Sharyu (PW1) shows that the
match box was kept near the window. There was no reason
for availability of matchbox in the hall. Thus, presence of
match box in the hall itself creates doubt.
30.
In the crossexamination, Sharyu (PW1) has
admitted as under :
“ It is true that, today, I have read my statement. It is
true that police had given the same to me. It is true that
the said police Officer is sitting in the Court hall. ”
31.
In the backdrop of the aforesaid evidence, it will be
useful to refer reported decision by the learned Single
Judge of this Court (R.C.Chavan, J) reported in 2006 (2)
Mh.L.J. (Cri) 1210, Sharad s/o. Namdeorao Shirbhate vs.
In para 10 of the said reported Judgment, the learned
32.
State of Maharashtra.
Single Judge found that Pundlik (PW1) has admitted that
the police had read over his statement to him and also told
him to tender the evidence as per his statement. The
learned Single Judge has observed thus :
“ There would indeed be nothing wrong in the witness
refreshing his memory, but that ought to be done
before the Court and not outside the Court. In order
to test the veracity of a witness, he would be required
to recollect the incident out of his own memory and
should he falter on some material aspect, he could be
allowed to refresh his memory with reference to the
contemporaneous records of the incident created by
the police. It would not be permissible for such
witness to stealthily refresh his memory before
entering the Court and deposing about the entire
evidence giving minute details as if he was reeling
them out from his memory. Therefore, the objection
to the reliability of evidence of PW2 Prabhakar taken
ig
by learned Counsel for the appellant is valid.”
(emphasis is supplied by us).
We approve the dictum of the learned Single Judge in
that behalf.
33.
From the aforesaid evidence of Sharyu, it is clear that
her statement was supplied to her by police and it was read
by her stealthily and not in the presence of the Court.
Further, presence of the police Officer, who has given her
statement in the Court hall at the time of evidence, clearly
shows that Sharyu (PW1) was under the thumb of the
Police Officer.
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18
Nodoubt it is true that the Investigating Officer or the
34.
apeal408.12.odt
Police Officer should take care and steps in order to see that
the culprit is brought home to his guilt; however, at the
same time, the Police Officer should not show unnecessary
interest which would unnecessarily create doubt about the
Police Officer. In view of the fact that Sharyu (PW1) has
read her previous statement supplied to her by Police
ig
Officer who was present in the Court hall before entering
into witness box, loses her reliability as a witness. It is to be
noted that dying declaration ( Exh.52) by the Police Officer
is recorded at 6.50 hours. From the evidence of
Trilokkumar (PW4) it is clear that Sharyu (PW1), Pranjali
(PW3) and son Kaustub were present in the hospital.
Exh.17 is the printed F.I.R. It shows that the first
information report is recorded at 19.00 hours, which clearly
shows that the F.I.R. lodged by Sharyu (PW1) is after
recording of Exh.52, the dying declaration of Megha.
35.
Insofar as the evidence of Pranjali (PW3) is
concerned, she has corroborated the version of Sharyu on
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19
apeal408.12.odt
all material aspects. Not only that, she has also in clinching
words stated that kerosene was poured on her mother near
TV in the hall. Pranjali was present in the hospital. She has
seen the police first time in the hospital. She has admitted
that, on the day of incident, she did not disclose to the
police that she has seen that her father has set her mother
on fire. Belated disclosure to police, though opportunity
ig
was there, coupled with the fact that the claim of this
witeness about pouring of kerosene in the hall near TV
belied by contemporaneous document (Exh.19), creates
serious doubt about her testimony.
36.
Now let us examine the theory as suggested by the
appellant about suicide by Megha herself through the line
of crossexamination of Sharyu (PW1) and Pranjali (PW3)
and Written Statement of the appellant u/s. 313 of the
Code of Criminal Procedure. According to the appellant, it
was brought to his notice that Sharyu (PW1) used to
wander with some boys. Therefore, on the day of incident,
when that fact was brought to his notice, when he returned
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20
apeal408.12.odt
to the house, Sharyu was in the kitchen. That time,
appellant questioned Sharyu in respect of her behaviour.
That time, Sharyu not only gave evasive replies, but also
counter questioned the appellant. Therefore, he gave two
slaps to Sharyu. That time, Megha came in the kitchen and
asked as to why he has slapped Sharyu. Upon that, he
disclosed the behaviour of Sharyu and alleged that Megha
ig
has no control over the children. Upon that, Megha picked
up quarrel with him and gave threats that she will set her
ablaze. Upon that, the appellant came in the front room,
removed short and was sitting there. That time, Megha
came running from the kitchen in a burning condition. The
appellant tried to extinguish fire with a towel. In that
process, he also received burn injuries on his abdomen. In
the meanwhile, Megha was taken to the Roy hospital.
Therefore, while he was to visit Roy hospital, near Roy
hospital, he was apprehended by police.
37.
From the evidence of Sharyu (PW1), it is clear that,
on the day of incident, she and her sister were working in
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21
apeal408.12.odt
the kitchen. According to her, that time, the appellant
came in the kitchen and assaulted on her. She has not
attributed any reason for assault on her. No father will
unnecessarily try to assault a grown up daughter. In that
behalf, the explanation given by the appellant about giving
The appellant has claimed that he tried to extinguish
ig
38.
slaps to Sharyu appears to be plausible one.
fire of Megha with the help of the towel. It is to be noted
that Rajendra (PW2), who has extinguished fire with the
help of Mr. Rode and Jayendra Naidu, has stated that his
wife has brought blankets and extinguished fire. There is
no reference to any towel in the entire prosecution case
except in the statement of the appellant u/s.313 of the
Code of Criminal Procedure. In that behalf, it will be unfair
to the appellant if the seizure memo (Exh.20) is not
noticed. Exh.20 is the seizure memo which is duly proved
by Rajendra Naidu (PW2). Under the said seizure memo,
plastic can of kerosene, match stick, match box and burnt
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22
apeal408.12.odt
saree pieces are seized. What is important to note is the
following :
“Towel chowkdi santrya rangacha tyala saadicha
tukda jalalelya chikatlela”.
Seizure of this towel from the spot, to which the
ig
burnt saree piece was stuck, shows that the appellant has
Deonand Ganvir (PW5) was attached as an ASI to
39.
tried to extinguish fire with the help of said towel.
the Police Station, Kamptee and was on duty as a Day
Officer on 21.6.2011. He registered the first information
report (Exh.16). His evidence would reveal that the police
party learnt that the appellant was wandering in Bazaar
square and therefore, he went there and brought him.
Investigating Officer Dilip Wadankar (PW9) arrested him.
Deonand Ganvir (PW5) has admitted as under :
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apeal408.12.odt
“ Bazaar chowk is near main road. It is near Roy
hospital. “
Further, the Investigating Officer Dilip Wadankar
(PW9) has stated in his evidence, which is reproduced
hereinunder :
ig
“It is true that when I had arrested the accused, there
were burn marks on his stomach and he was referred
to the hospital. I had not inquired with anybody as to
how the accused had sustained burn injuries. “
The arrest form of the appellant is at Exh.59. It is
40.
dt.21.6.2011 i.e. on the day of incident itself. It shows that
the appellant was having burn injuries to his stomach.
Though the appellant was referred for his medical
examination in the hospital, his medical report is not
coming on record. This assumes importance because, as per
the claim of eye witnesses, at the time of incident, the
appellant was under the influence of liquor. If that be so,
when the appellant was referred for his medical
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24
apeal408.12.odt
examination, that would have been noticed in his medical
examination. Hence, suppression on the part of the
prosecution in respect of the medical report of the appellant
clearly tends to give weightage to his defence, as appearing
in his statement u/s.313 of the Code of Criminal Procedure.
On evaluation of the evidence brought on record, as
41.
ig
done in the preceding paragraphs, it is absolutely clear and
there is no doubt in our mind that the prosecution has
utterly failed to prove that Megha died homicidal death. On
the contrary, the circumstances, as appearing in the
prosecution case, clearly show and suggest that there is a
grain of truth in the defence of the appellant. That leads us
to pass the following order.
O R D E R
The Appeal is allowed.
The Judgment and Order of conviction and
sentence dated 9th August, 2012 passed by the learned
Additional Sessions Judge4, Nagpur in Sessions Case
No.457 of 2011 is quashed and set aside.
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apeal408.12.odt
The appellant is acquitted of the offence
punishable under Section 302 of the Indian Penal
Code.
The appellant/accused be set at liberty
forthwith, if not required in any other case.
Fine amount, if any, paid by the appellant, be
JUDGE
ig
JUDGE
refunded to him.
jaiswal
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