Before adverting to another crucial piece of evidence
in the form of dying declarations it would not be out of place to
mention here that examination-in-chief of PW-4 Akshada was
recorded on 8th April, 2011. As can be seen from deposition, on
the application of learned counsel for Accused her crossexamination
was adjourned till next date. She was crossexamined
on 16th April, 2011. Above adjournment granted by Trial
Court only discloses that Trial Court was oblivious of specific
stipulation containing in Section 309 of the Code of Criminal
Procedure which mandates requirement of sessions trial to be
carried on a day-to-day basis. No reason or special
circumstances have been assigned by the Trial Court to justify
grant of adjournment of eight days for cross-examination of a child
witness PW-4 Akshada.
16 In Raj Deo Sharma Vs. State of Bihar3
, the
Honourable Supreme Court directed all the High Courts to remind
all the Trial Court Judges of the need to comply with Section 309
of the Code of Criminal Procedure in letter and spirit. In fact, High
Courts were directed to take note of conduct of any particular Trial
Judge who violates above legislative mandate and to adopt such
3 1998 SCC (Cri) 1692
in the form of dying declarations it would not be out of place to
mention here that examination-in-chief of PW-4 Akshada was
recorded on 8th April, 2011. As can be seen from deposition, on
the application of learned counsel for Accused her crossexamination
was adjourned till next date. She was crossexamined
on 16th April, 2011. Above adjournment granted by Trial
Court only discloses that Trial Court was oblivious of specific
stipulation containing in Section 309 of the Code of Criminal
Procedure which mandates requirement of sessions trial to be
carried on a day-to-day basis. No reason or special
circumstances have been assigned by the Trial Court to justify
grant of adjournment of eight days for cross-examination of a child
witness PW-4 Akshada.
16 In Raj Deo Sharma Vs. State of Bihar3
, the
Honourable Supreme Court directed all the High Courts to remind
all the Trial Court Judges of the need to comply with Section 309
of the Code of Criminal Procedure in letter and spirit. In fact, High
Courts were directed to take note of conduct of any particular Trial
Judge who violates above legislative mandate and to adopt such
3 1998 SCC (Cri) 1692
administrative action against Judicial Officer as per law.
17 The above directions were reiterated once again in
case of State of U.P. Vs. Shambhu Nath Singh4
. Later in Akil
Alias Javed Vs. State (NCT of Delhi)5
in paragraph No.43 the
Honourable Apex Court expressed displeasure and observed
thus:
“43. It is unfortunate that in spite of the specific
directions issued by this Court and reminded once again
in Shambhu Nath such recalcitrant approach was being
made by the trial court unmindful of the adverse serious
consequences flowing therefrom affecting the society at
large. Therefore, even while disposing of this appeal by
confirming the conviction and sentence imposed on the
appellant by the learned trial Judge, as confirmed by the
impugned judgment of the High Court, we direct the
Registry to forward a copy of this decision to all the High
Courts to specifically follow the instructions issued by
this Court in the decision in Raj Deo Sharma and
reiterated in Shambhu Nath by issuing appropriate
circular, if already not issued. If such circular has
already been issued, as directed, ensure that such
directions are scrupulously followed by the trial courts
without providing scope for any deviation in following
the procedure prescribed in the matter of trial of
sessions cases as well as other cases as provided
4 (2001) 4 SCC 667
5 (2013) 7 Supreme Court Cases 125
under Section 309 CrPC. In this respect, the High17 The above directions were reiterated once again in
case of State of U.P. Vs. Shambhu Nath Singh4
. Later in Akil
Alias Javed Vs. State (NCT of Delhi)5
in paragraph No.43 the
Honourable Apex Court expressed displeasure and observed
thus:
“43. It is unfortunate that in spite of the specific
directions issued by this Court and reminded once again
in Shambhu Nath such recalcitrant approach was being
made by the trial court unmindful of the adverse serious
consequences flowing therefrom affecting the society at
large. Therefore, even while disposing of this appeal by
confirming the conviction and sentence imposed on the
appellant by the learned trial Judge, as confirmed by the
impugned judgment of the High Court, we direct the
Registry to forward a copy of this decision to all the High
Courts to specifically follow the instructions issued by
this Court in the decision in Raj Deo Sharma and
reiterated in Shambhu Nath by issuing appropriate
circular, if already not issued. If such circular has
already been issued, as directed, ensure that such
directions are scrupulously followed by the trial courts
without providing scope for any deviation in following
the procedure prescribed in the matter of trial of
sessions cases as well as other cases as provided
4 (2001) 4 SCC 667
5 (2013) 7 Supreme Court Cases 125
Courts will also be well advised to use their machinery
in the respective State Judiciary Academy to achieve
the desired result. We hope and trust that the
respective High Courts would take serious note of the
above directions issued in the decision in Raj Deo
Sharma which has been extensively quoted and
reiterated in the subsequent decision of this Court in
Shambhu Nath and comply with the directions at least in
the future years.”
18 Keeping various principles set out in above decisions
in mind when we examine situation that had occurred in present
case where PW-4 Akshada a crucial child witness was initially
examined on 8th April, 2011 and then without assigning any reason
cross-examined on 16th April, 2011 solely at the instance of
counsel for the Accused we disapprove the procedure followed by
the Trial Court Judge and direct the Registry to take serious note
and ensure compliance of the provisions of Section 309 of the
Code of Criminal Procedure in letter and spirit.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 585 OF 2012
Rajesh @ Raju s/o Nagnath @ Nivrutti
Sardiwal (Pardeshi),
BENCH AT AURANGABAD
APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 585 OF 2012
Rajesh @ Raju s/o Nagnath @ Nivrutti
Sardiwal (Pardeshi),
V
State of Maharashtra,
State of Maharashtra,
CORAM : A. B. CHAUDHARI &
INDIRA K. JAIN, JJ.
DATED : 09th September, 2015.
Citation:2016 ALLMR(CRI)2220
INDIRA K. JAIN, JJ.
DATED : 09th September, 2015.
Citation:2016 ALLMR(CRI)2220
This appeal is preferred by Appellant – Accused
against the judgment and order dated 28th August, 2012, passed
by learned Additional Sessions Judge, Aurangabad, in Sessions
Case No.171 of 2010. By the said judgment and order, learned
Additional Sessions Judge convicted Appellant for the offence
punishable under Section 302 of the Indian Penal Code and
sentenced him to suffer imprisonment for life and fine of
Rs.2,000/-, in default, to suffer further rigorous imprisonment for
six months. Appellant was also convicted of the offence under
Section 506 part (2) of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for two years and to pay fine of
Rs.1,000/-, in default, to suffer further rigorous imprisonment for
two months.
2 Learned Additional Sessions Judge directed that both
the sentences of imprisonment shall run concurrently.
3 For the sake of convenience, we shall refer Appellant
in his original status as Accused as he was referred before the
Trial Court.
4 Prosecution case briefly stated is as under:
i. Deceased Sandhya was wife of Appellant. She
by learned Additional Sessions Judge, Aurangabad, in Sessions
Case No.171 of 2010. By the said judgment and order, learned
Additional Sessions Judge convicted Appellant for the offence
punishable under Section 302 of the Indian Penal Code and
sentenced him to suffer imprisonment for life and fine of
Rs.2,000/-, in default, to suffer further rigorous imprisonment for
six months. Appellant was also convicted of the offence under
Section 506 part (2) of the Indian Penal Code and sentenced to
suffer rigorous imprisonment for two years and to pay fine of
Rs.1,000/-, in default, to suffer further rigorous imprisonment for
two months.
2 Learned Additional Sessions Judge directed that both
the sentences of imprisonment shall run concurrently.
3 For the sake of convenience, we shall refer Appellant
in his original status as Accused as he was referred before the
Trial Court.
4 Prosecution case briefly stated is as under:
i. Deceased Sandhya was wife of Appellant. She
was married to Accused in the year 1999. Couple
was blessed with two daughters Akshada and Ekta.
ii. Incident occurred on 24th February, 2010. Sandhya
sustained burn injuries and she was admitted to
Government Hospital, Aurangabad. Police Head
Constable Mr. S. L. Chaudhari was on duty at the
hospital. He recorded statement of victim. In the
statement Sandhya stated that on 24th February,
2010 at about 08:00 to 08:30 p.m. she was cooking
food. That time due to bursting of stove she
received burn injuries. On recording statement of
Sandhya, Police Head Constable Chaudhari gave
information to Kranti Chowk Police Station,
Aurangabad. Station Diary Entry No.55 of 2010
was taken at the Police Station. Inquiry was
entrusted to Police Head Constable Pathan. On
receiving inquiry, Police Head Constable Pathan
sent a letter to Taluka Executive Magistrate for
recording dying declaration of victim. Accordingly,
Mr. K. H. Jagalwar, Naib Tahsildar, Aurangabad
went to hospital. He ascertained from Medical
was blessed with two daughters Akshada and Ekta.
ii. Incident occurred on 24th February, 2010. Sandhya
sustained burn injuries and she was admitted to
Government Hospital, Aurangabad. Police Head
Constable Mr. S. L. Chaudhari was on duty at the
hospital. He recorded statement of victim. In the
statement Sandhya stated that on 24th February,
2010 at about 08:00 to 08:30 p.m. she was cooking
food. That time due to bursting of stove she
received burn injuries. On recording statement of
Sandhya, Police Head Constable Chaudhari gave
information to Kranti Chowk Police Station,
Aurangabad. Station Diary Entry No.55 of 2010
was taken at the Police Station. Inquiry was
entrusted to Police Head Constable Pathan. On
receiving inquiry, Police Head Constable Pathan
sent a letter to Taluka Executive Magistrate for
recording dying declaration of victim. Accordingly,
Mr. K. H. Jagalwar, Naib Tahsildar, Aurangabad
went to hospital. He ascertained from Medical
Officer whether victim was in fit condition to make
her statement. Dr. Ashvin Borkar was on duty as
Medical Officer that time. He examined Sandhya
and certified that she was conscious and fit to give
her statement.
iii. Then Naib Tahsildar Mr. K. H. Jagalwar recorded
dying declaration of victim. In the said dying
declaration Sandhya disclosed that her husband
gave her threat of killing her brothers and herself.
He was under influence of liquor. He poured
kerosene on her person, set her on fire and ran
away. Naib Tahsildar then forwarded dying
declaration to Kranti Chowk Police Station.
iv. On the basis of dying declaration recorded by Naib
Tahsildar, Crime No.78 of 2010 came to be
registered under Sections 307 and 506 of the
Indian Penal Code against Accused.
v. P.I. Sunil Telure was attached to Kranti Chowk
Police Station. He received investigation of said
crime. On 25th February, 2010, he visited the spot
her statement. Dr. Ashvin Borkar was on duty as
Medical Officer that time. He examined Sandhya
and certified that she was conscious and fit to give
her statement.
iii. Then Naib Tahsildar Mr. K. H. Jagalwar recorded
dying declaration of victim. In the said dying
declaration Sandhya disclosed that her husband
gave her threat of killing her brothers and herself.
He was under influence of liquor. He poured
kerosene on her person, set her on fire and ran
away. Naib Tahsildar then forwarded dying
declaration to Kranti Chowk Police Station.
iv. On the basis of dying declaration recorded by Naib
Tahsildar, Crime No.78 of 2010 came to be
registered under Sections 307 and 506 of the
Indian Penal Code against Accused.
v. P.I. Sunil Telure was attached to Kranti Chowk
Police Station. He received investigation of said
crime. On 25th February, 2010, he visited the spot
and recorded scene of occurrence panchanama.
From the spot a plastic can, match stick, match box
and burn pieces of clothes were seized. On 27th
February, 2010 P.I. Telure went to hospital. He
inquired from Medical Officer whether victim was fit
to give her statement. After Medical Officer
certified that victim was able to make her
statement, P.I. Telure recorded statement of victim
Sandhya. In the said statement, victim disclosed
that she has given her statement before Police on
24th February, 2010 in frightened condition. Before
P.I. Telure, she disclosed the manner of incident in
the same way as was stated before Naib Tahsildar.
vi. Sandhya succumbed to burn injuries on 2nd March,
2010 at about 16:55 hours. Inquest panchanama
was drawn. Dead body was sent to Government
Medical College and Hospital, Aurangabad for
postmortem. During postmortem examination,
Medical Officers noticed 100% burns on the dead
body. They opined cause of death as septicemia
shock due to burns.
From the spot a plastic can, match stick, match box
and burn pieces of clothes were seized. On 27th
February, 2010 P.I. Telure went to hospital. He
inquired from Medical Officer whether victim was fit
to give her statement. After Medical Officer
certified that victim was able to make her
statement, P.I. Telure recorded statement of victim
Sandhya. In the said statement, victim disclosed
that she has given her statement before Police on
24th February, 2010 in frightened condition. Before
P.I. Telure, she disclosed the manner of incident in
the same way as was stated before Naib Tahsildar.
vi. Sandhya succumbed to burn injuries on 2nd March,
2010 at about 16:55 hours. Inquest panchanama
was drawn. Dead body was sent to Government
Medical College and Hospital, Aurangabad for
postmortem. During postmortem examination,
Medical Officers noticed 100% burns on the dead
body. They opined cause of death as septicemia
shock due to burns.
vii. After death of victim offence was converted to
Section 302 of the Indian Penal Code.
Investigating Officer recorded statements of several
witnesses. On completing investigation chargesheet
was filed before Chief Judicial Magistrate,
Aurangabad, who in turn committed the case for
trial to the Court of Sessions.
5 Charge came to be framed against Appellant under
Sections 302 and 506 of the Indian Penal Code. Appellant
pleaded not guilty to the charge and claimed to be tried. His
defence was of total denial and false implication. He submitted
that victim sustained burns at the time of cooking due to bursting
of stove and died.
6 Prosecution examined in all 11 witnesses to
substantiate the guilt of Accused. On going through evidence
adduced by prosecution, learned Additional Sessions Judge
convicted and sentenced Appellant as stated in paragraph No.1
above. Being aggrieved, Accused has preferred this appeal.
7 We have heard learned counsel for Appellant and
Section 302 of the Indian Penal Code.
Investigating Officer recorded statements of several
witnesses. On completing investigation chargesheet
was filed before Chief Judicial Magistrate,
Aurangabad, who in turn committed the case for
trial to the Court of Sessions.
5 Charge came to be framed against Appellant under
Sections 302 and 506 of the Indian Penal Code. Appellant
pleaded not guilty to the charge and claimed to be tried. His
defence was of total denial and false implication. He submitted
that victim sustained burns at the time of cooking due to bursting
of stove and died.
6 Prosecution examined in all 11 witnesses to
substantiate the guilt of Accused. On going through evidence
adduced by prosecution, learned Additional Sessions Judge
convicted and sentenced Appellant as stated in paragraph No.1
above. Being aggrieved, Accused has preferred this appeal.
7 We have heard learned counsel for Appellant and
learned APP for State. Considering the facts and circumstances
of the case, submissions made on behalf of parties, reasonings
recorded by Trial Court and evidence on record, for the below
mentioned reasons we are of the opinion that Appellant poured
kerosene on his wife Sandhya and set her on fire.
8 Conviction of Appellant is mainly based on ocular
evidence of PW-4 Akshada, PW-6 Ekta daughters of Appellant
and deceased and two written dying declarations Exhibits 36 and
44.
9 So far as evidence of PW-6 Ekta is concerned, at the
outset, it is to be mentioned here that her testimony does not
inspire confidence as she has admitted that her sister Akshada
told her that her father killed their mother. In the light of admission
given by Ekta in her examination-in-chief we find it appropriate to
keep her evidence out of consideration.
10 PW-4 Akshada is a child witness. Incident occurred
on 24th February, 2010. Evidence of Akshada was recorded in the
Court on 8th April, 2011. That time she was 9 years old studying in
3rd standard.
of the case, submissions made on behalf of parties, reasonings
recorded by Trial Court and evidence on record, for the below
mentioned reasons we are of the opinion that Appellant poured
kerosene on his wife Sandhya and set her on fire.
8 Conviction of Appellant is mainly based on ocular
evidence of PW-4 Akshada, PW-6 Ekta daughters of Appellant
and deceased and two written dying declarations Exhibits 36 and
44.
9 So far as evidence of PW-6 Ekta is concerned, at the
outset, it is to be mentioned here that her testimony does not
inspire confidence as she has admitted that her sister Akshada
told her that her father killed their mother. In the light of admission
given by Ekta in her examination-in-chief we find it appropriate to
keep her evidence out of consideration.
10 PW-4 Akshada is a child witness. Incident occurred
on 24th February, 2010. Evidence of Akshada was recorded in the
Court on 8th April, 2011. That time she was 9 years old studying in
3rd standard.
11 On appreciation of evidence of child witness, learned
counsel for Appellant vehemently contended that evidence of child
witness should be accepted with great caution and general
principle is that a person only be convicted if the Court is sure that
guilt has been established. In support thereof, learned counsel for
Appellant placed strong reliance on–
(i) Vitthal s/o Gyanba Gaikwad Vs. State of
Maharashtra1
and
(ii) Anton Luis Piedade Fernandes Vs. State2
counsel for Appellant vehemently contended that evidence of child
witness should be accepted with great caution and general
principle is that a person only be convicted if the Court is sure that
guilt has been established. In support thereof, learned counsel for
Appellant placed strong reliance on–
(i) Vitthal s/o Gyanba Gaikwad Vs. State of
Maharashtra1
and
(ii) Anton Luis Piedade Fernandes Vs. State2
12 We have gone through the above authorities. Though
it is an established principle that child witnesses are risky as they
are liable to be influenced easily, shaped and moulded, but it is
also an accepted norm that if after careful scrutiny of evidence of
child witness the Court comes to a conclusion that it is truthful and
believable, totally free from tutoring there is no obstacle in any
way not to rely upon the evidence of child witness.
13 In the present case before recording evidence of PW-
4 Akshada, learned Additional Sessions Judge ascertained that
witness understands the meaning of oath and thereupon
1 2005 (4) BOM.L.R. 1454
2 2012 ALL MR (CRI) 2446
it is an established principle that child witnesses are risky as they
are liable to be influenced easily, shaped and moulded, but it is
also an accepted norm that if after careful scrutiny of evidence of
child witness the Court comes to a conclusion that it is truthful and
believable, totally free from tutoring there is no obstacle in any
way not to rely upon the evidence of child witness.
13 In the present case before recording evidence of PW-
4 Akshada, learned Additional Sessions Judge ascertained that
witness understands the meaning of oath and thereupon
1 2005 (4) BOM.L.R. 1454
2 2012 ALL MR (CRI) 2446
administered her oath. It is stated by Akshada that she was
studying in 2nd standard when her mother Sandhya died. She
stated that her mother was beaten by her father. That time she
was present in the house. Her father returned home in drunken
condition. Hence quarrel had taken place between her mother
and father in the night at 08:00 p.m. She stated that her father
poured kerosene on person of her mother and set her on fire.
Before setting her on fire, her father beat her mother.
14 Commenting upon the evidence of child witness
Akshada learned counsel for Appellant vehemently contended that
in view of dying declaration Exhibit 36 recorded by Naib Tahsildar,
presence of Akshada in the house is doubtful. He further
submitted that victim stated in dying declaration Exhibit 36 that no
one was present in the house. We do not find force in the
submission of learned counsel for Appellant for the simple reason
that it is the Accused who brought in the cross-examination of
Akshada that she was watching T.V. at the relevant time in the
house. In the piercing cross-examination of Akshada nothing
could be elicited to disbelieve her testimony. She stood the test of
rigorous cross-examination. There is no reason whatsoever to
disbelieve her testimony.
studying in 2nd standard when her mother Sandhya died. She
stated that her mother was beaten by her father. That time she
was present in the house. Her father returned home in drunken
condition. Hence quarrel had taken place between her mother
and father in the night at 08:00 p.m. She stated that her father
poured kerosene on person of her mother and set her on fire.
Before setting her on fire, her father beat her mother.
14 Commenting upon the evidence of child witness
Akshada learned counsel for Appellant vehemently contended that
in view of dying declaration Exhibit 36 recorded by Naib Tahsildar,
presence of Akshada in the house is doubtful. He further
submitted that victim stated in dying declaration Exhibit 36 that no
one was present in the house. We do not find force in the
submission of learned counsel for Appellant for the simple reason
that it is the Accused who brought in the cross-examination of
Akshada that she was watching T.V. at the relevant time in the
house. In the piercing cross-examination of Akshada nothing
could be elicited to disbelieve her testimony. She stood the test of
rigorous cross-examination. There is no reason whatsoever to
disbelieve her testimony.
15 Before adverting to another crucial piece of evidence
in the form of dying declarations it would not be out of place to
mention here that examination-in-chief of PW-4 Akshada was
recorded on 8th April, 2011. As can be seen from deposition, on
the application of learned counsel for Accused her crossexamination
was adjourned till next date. She was crossexamined
on 16th April, 2011. Above adjournment granted by Trial
Court only discloses that Trial Court was oblivious of specific
stipulation containing in Section 309 of the Code of Criminal
Procedure which mandates requirement of sessions trial to be
carried on a day-to-day basis. No reason or special
circumstances have been assigned by the Trial Court to justify
grant of adjournment of eight days for cross-examination of a child
witness PW-4 Akshada.
16 In Raj Deo Sharma Vs. State of Bihar3
, the
Honourable Supreme Court directed all the High Courts to remind
all the Trial Court Judges of the need to comply with Section 309
of the Code of Criminal Procedure in letter and spirit. In fact, High
Courts were directed to take note of conduct of any particular Trial
Judge who violates above legislative mandate and to adopt such
3 1998 SCC (Cri) 1692
in the form of dying declarations it would not be out of place to
mention here that examination-in-chief of PW-4 Akshada was
recorded on 8th April, 2011. As can be seen from deposition, on
the application of learned counsel for Accused her crossexamination
was adjourned till next date. She was crossexamined
on 16th April, 2011. Above adjournment granted by Trial
Court only discloses that Trial Court was oblivious of specific
stipulation containing in Section 309 of the Code of Criminal
Procedure which mandates requirement of sessions trial to be
carried on a day-to-day basis. No reason or special
circumstances have been assigned by the Trial Court to justify
grant of adjournment of eight days for cross-examination of a child
witness PW-4 Akshada.
16 In Raj Deo Sharma Vs. State of Bihar3
, the
Honourable Supreme Court directed all the High Courts to remind
all the Trial Court Judges of the need to comply with Section 309
of the Code of Criminal Procedure in letter and spirit. In fact, High
Courts were directed to take note of conduct of any particular Trial
Judge who violates above legislative mandate and to adopt such
3 1998 SCC (Cri) 1692
administrative action against Judicial Officer as per law.
17 The above directions were reiterated once again in
case of State of U.P. Vs. Shambhu Nath Singh4
. Later in Akil
Alias Javed Vs. State (NCT of Delhi)5
in paragraph No.43 the
Honourable Apex Court expressed displeasure and observed
thus:
“43. It is unfortunate that in spite of the specific
directions issued by this Court and reminded once again
in Shambhu Nath such recalcitrant approach was being
made by the trial court unmindful of the adverse serious
consequences flowing therefrom affecting the society at
large. Therefore, even while disposing of this appeal by
confirming the conviction and sentence imposed on the
appellant by the learned trial Judge, as confirmed by the
impugned judgment of the High Court, we direct the
Registry to forward a copy of this decision to all the High
Courts to specifically follow the instructions issued by
this Court in the decision in Raj Deo Sharma and
reiterated in Shambhu Nath by issuing appropriate
circular, if already not issued. If such circular has
already been issued, as directed, ensure that such
directions are scrupulously followed by the trial courts
without providing scope for any deviation in following
the procedure prescribed in the matter of trial of
sessions cases as well as other cases as provided
4 (2001) 4 SCC 667
5 (2013) 7 Supreme Court Cases 125
17 The above directions were reiterated once again in
case of State of U.P. Vs. Shambhu Nath Singh4
. Later in Akil
Alias Javed Vs. State (NCT of Delhi)5
in paragraph No.43 the
Honourable Apex Court expressed displeasure and observed
thus:
“43. It is unfortunate that in spite of the specific
directions issued by this Court and reminded once again
in Shambhu Nath such recalcitrant approach was being
made by the trial court unmindful of the adverse serious
consequences flowing therefrom affecting the society at
large. Therefore, even while disposing of this appeal by
confirming the conviction and sentence imposed on the
appellant by the learned trial Judge, as confirmed by the
impugned judgment of the High Court, we direct the
Registry to forward a copy of this decision to all the High
Courts to specifically follow the instructions issued by
this Court in the decision in Raj Deo Sharma and
reiterated in Shambhu Nath by issuing appropriate
circular, if already not issued. If such circular has
already been issued, as directed, ensure that such
directions are scrupulously followed by the trial courts
without providing scope for any deviation in following
the procedure prescribed in the matter of trial of
sessions cases as well as other cases as provided
4 (2001) 4 SCC 667
5 (2013) 7 Supreme Court Cases 125
under Section 309 CrPC. In this respect, the High
Courts will also be well advised to use their machinery
in the respective State Judiciary Academy to achieve
the desired result. We hope and trust that the
respective High Courts would take serious note of the
above directions issued in the decision in Raj Deo
Sharma which has been extensively quoted and
reiterated in the subsequent decision of this Court in
Shambhu Nath and comply with the directions at least in
the future years.”
18 Keeping various principles set out in above decisions
in mind when we examine situation that had occurred in present
case where PW-4 Akshada a crucial child witness was initially
examined on 8th April, 2011 and then without assigning any reason
cross-examined on 16th April, 2011 solely at the instance of
counsel for the Accused we disapprove the procedure followed by
the Trial Court Judge and direct the Registry to take serious note
and ensure compliance of the provisions of Section 309 of the
Code of Criminal Procedure in letter and spirit.
19 We now advert to dying declarations Exhibits 36 and
44 on which prosecution has placed strong reliance. PW-8 Kalyan
Jagalwar was Naib Tahsildar at Aurangabad. On 25th February,
2010, he received a letter from Kranti Chowk Police Station for
Courts will also be well advised to use their machinery
in the respective State Judiciary Academy to achieve
the desired result. We hope and trust that the
respective High Courts would take serious note of the
above directions issued in the decision in Raj Deo
Sharma which has been extensively quoted and
reiterated in the subsequent decision of this Court in
Shambhu Nath and comply with the directions at least in
the future years.”
18 Keeping various principles set out in above decisions
in mind when we examine situation that had occurred in present
case where PW-4 Akshada a crucial child witness was initially
examined on 8th April, 2011 and then without assigning any reason
cross-examined on 16th April, 2011 solely at the instance of
counsel for the Accused we disapprove the procedure followed by
the Trial Court Judge and direct the Registry to take serious note
and ensure compliance of the provisions of Section 309 of the
Code of Criminal Procedure in letter and spirit.
19 We now advert to dying declarations Exhibits 36 and
44 on which prosecution has placed strong reliance. PW-8 Kalyan
Jagalwar was Naib Tahsildar at Aurangabad. On 25th February,
2010, he received a letter from Kranti Chowk Police Station for
recording statement of Sandhya. Copy of letter is at Exhibit 34.
On receiving letter Mr. Kalyan Jagalwar reached Ghati Hospital at
about 02:00 pm. He sought opinion of Medical Officer as to
whether patient was able to make her statement or not. Medical
Officer on duty PW-11 Dr. Ashvin Borkar examined Sandhya and
found her conscious and in fit state of mind to give statement.
Accordingly, doctor made endorsement on letter Exhibit 55.
Thereafter, PW-8 Jagalwar made certain queries to victim to
ensure whether she was able to give her statement. She
answered the queries satisfactorily. Then he recorded dying
declaration of Sandhya.
20 In the said dying declaration victim stated that incident
occurred on 24th February, 2010 at about 08:00 pm. Her husband
came to house under influence of liquor. She stated that he
poured kerosene on her person and set her on fire. He then ran
away. Neighbours came on hearing shouts. They admitted her in
hospital.
21 After recording dying declaration, it was read over to
victim. She admitted its correctness. Then Mr. Jagalwar obtained
her thumb mark on dying declaration. Said dying declaration is
On receiving letter Mr. Kalyan Jagalwar reached Ghati Hospital at
about 02:00 pm. He sought opinion of Medical Officer as to
whether patient was able to make her statement or not. Medical
Officer on duty PW-11 Dr. Ashvin Borkar examined Sandhya and
found her conscious and in fit state of mind to give statement.
Accordingly, doctor made endorsement on letter Exhibit 55.
Thereafter, PW-8 Jagalwar made certain queries to victim to
ensure whether she was able to give her statement. She
answered the queries satisfactorily. Then he recorded dying
declaration of Sandhya.
20 In the said dying declaration victim stated that incident
occurred on 24th February, 2010 at about 08:00 pm. Her husband
came to house under influence of liquor. She stated that he
poured kerosene on her person and set her on fire. He then ran
away. Neighbours came on hearing shouts. They admitted her in
hospital.
21 After recording dying declaration, it was read over to
victim. She admitted its correctness. Then Mr. Jagalwar obtained
her thumb mark on dying declaration. Said dying declaration is
proved at Exhibit – 36 by Naib Tahsildar.
22 It is apparent from evidence of PW-8 Jagalwar that at
the time of recording dying declaration he had removed relatives
of victim outside the ward. When dying declaration was recorded
Mr. Jagalwar and Medical Officer were present.
23 Another dying declaration Exhibit 44 was recorded by
PW-10 P.I. Sunil Telure. On 27th February, 2010, he had been to
Ghati Hospital. He gave a letter Exhibit 43 to Medical Officer and
sought his opinion as to whether victim was able to make her
statement or not. PW-11 Borkar was Medical Officer on duty. He
examined patient and opined that she was conscious and fit to
make her statement. Then P.I. Telure recorded statement of
victim. In this dying declaration victim narrated the incident almost
in the same way as she disclosed to PW-8 Naib Tahsildar. PW-10
P.I. Telure has proved the dying declaration at Exhibit 44.
24 Evidence of PW-8 Naib Tahsildar Jagalwar and PW-10
P.I. Telure is fully corroborated by Medical officer PW-11 Dr.Ashvin
Borkar. Nothing substantial could be elicited in cross-examination
of PW-8 Naib Tahsildar Jagalwar, PW-10 P.I. Telure and PW-11
Dr.Ashvin Borkar.
22 It is apparent from evidence of PW-8 Jagalwar that at
the time of recording dying declaration he had removed relatives
of victim outside the ward. When dying declaration was recorded
Mr. Jagalwar and Medical Officer were present.
23 Another dying declaration Exhibit 44 was recorded by
PW-10 P.I. Sunil Telure. On 27th February, 2010, he had been to
Ghati Hospital. He gave a letter Exhibit 43 to Medical Officer and
sought his opinion as to whether victim was able to make her
statement or not. PW-11 Borkar was Medical Officer on duty. He
examined patient and opined that she was conscious and fit to
make her statement. Then P.I. Telure recorded statement of
victim. In this dying declaration victim narrated the incident almost
in the same way as she disclosed to PW-8 Naib Tahsildar. PW-10
P.I. Telure has proved the dying declaration at Exhibit 44.
24 Evidence of PW-8 Naib Tahsildar Jagalwar and PW-10
P.I. Telure is fully corroborated by Medical officer PW-11 Dr.Ashvin
Borkar. Nothing substantial could be elicited in cross-examination
of PW-8 Naib Tahsildar Jagalwar, PW-10 P.I. Telure and PW-11
Dr.Ashvin Borkar.
25 On appreciation of evidence of these witnesses and
both the dying declarations Exhibits 36 and 44 learned counsel for
Appellant strenuously submitted that on 24th February, 2010, first
dying declaration was recorded. It is at Exhibit 9. In this
statement victim stated that she sustained burns due to bursting
of stove.
26 It is pertinent to note that Accused admitted the
statement of victim and so it was exhibited as Exhibit 9. The
crucial question here would be whether Exhibit 9 can be treated
as dying declaration of victim. We have examined the record. It is
apparent that notice under Section 294(1) of the Code of Criminal
Procedure was not given by prosecution. Document was admitted
without there being a list under Section 294(2) and without formal
proof thereof. There was no compliance of Section 294 of the
Code of Criminal Procedure and Criminal Manual Chapter VI
paragraph 32 which prescribes the format and list. The Division
Bench of this Court to which one of us was a Member (A. B.
Chaudhari, J) in State of Maharashtra Vs. Ajay Dayaram
Gopnarayan and another6
had an occasion to deal with such
situation. In paragraph Nos.29 and 30 this Court observed thus–
6 2014(1) Mh.L.J. (Cri.) 293
both the dying declarations Exhibits 36 and 44 learned counsel for
Appellant strenuously submitted that on 24th February, 2010, first
dying declaration was recorded. It is at Exhibit 9. In this
statement victim stated that she sustained burns due to bursting
of stove.
26 It is pertinent to note that Accused admitted the
statement of victim and so it was exhibited as Exhibit 9. The
crucial question here would be whether Exhibit 9 can be treated
as dying declaration of victim. We have examined the record. It is
apparent that notice under Section 294(1) of the Code of Criminal
Procedure was not given by prosecution. Document was admitted
without there being a list under Section 294(2) and without formal
proof thereof. There was no compliance of Section 294 of the
Code of Criminal Procedure and Criminal Manual Chapter VI
paragraph 32 which prescribes the format and list. The Division
Bench of this Court to which one of us was a Member (A. B.
Chaudhari, J) in State of Maharashtra Vs. Ajay Dayaram
Gopnarayan and another6
had an occasion to deal with such
situation. In paragraph Nos.29 and 30 this Court observed thus–
6 2014(1) Mh.L.J. (Cri.) 293
“29. This Court has observed in large number of
Sessions Trials having perused the original records of
the cases that the notice under section 294 (1) is given
by the prosecutors before the Court in a format
prepared by them as per their whims. It is also found
that such applications are also tendered handwritten
and lists are submitted to the Court and the Court has
been accepting the said lists mechanically and going
ahead with the hearing and orders on Section 294 (1)
application. Thus, both the prosecutor as well as
Presiding Officer of the Court, ministerial staff and in
cases where counsel for the accused gives such
application, none cares to see that the format of list
under Section 294(2) has been prescribed. In Criminal
Manual Chapter VI para 32, such a form is prescribed
which reads thus:
“Admission of certain documents directly in
evidence without formal proof.
32. Attention of the Magistrates and Judges is
invited to Section 294 of the Code of Criminal
Procedure, 1973, according to which the
particulars of the documents filed before the Court
shall be included in a list, in the prescribed form
given below, and the prosecution or the accused,
as the case may be, or the pleader for the
prosecution or the accused, if any, shall be called
upon to admit or deny the genuineness of each
such documents and if the genuineness of any
document is not disputed such document may be
read in evidence in any inquiry, trial or other
Sessions Trials having perused the original records of
the cases that the notice under section 294 (1) is given
by the prosecutors before the Court in a format
prepared by them as per their whims. It is also found
that such applications are also tendered handwritten
and lists are submitted to the Court and the Court has
been accepting the said lists mechanically and going
ahead with the hearing and orders on Section 294 (1)
application. Thus, both the prosecutor as well as
Presiding Officer of the Court, ministerial staff and in
cases where counsel for the accused gives such
application, none cares to see that the format of list
under Section 294(2) has been prescribed. In Criminal
Manual Chapter VI para 32, such a form is prescribed
which reads thus:
“Admission of certain documents directly in
evidence without formal proof.
32. Attention of the Magistrates and Judges is
invited to Section 294 of the Code of Criminal
Procedure, 1973, according to which the
particulars of the documents filed before the Court
shall be included in a list, in the prescribed form
given below, and the prosecution or the accused,
as the case may be, or the pleader for the
prosecution or the accused, if any, shall be called
upon to admit or deny the genuineness of each
such documents and if the genuineness of any
document is not disputed such document may be
read in evidence in any inquiry, trial or other
proceedings, without proof of the signature of the
person to whom it purports to be signed which,
however, the Court may in List of documents filed
before …...... Court
*Prosecution
By the *accused.
Sr.
No.
Particulars of
the
documents
with dates
Pages Whether
original
certified
copy
By
whom
prepared
Names of
attesting
persons
whether they
are cited as
witnesses
Remarks
if any
30. We are not only amazed but are anxious since
the said format prescribed by para 32 quoted above is
not at all being used either by prosecution or by
accused or by the Presiding Officer of the Court and that
is the reason why the prosecution or the counsel for the
accused have been preparing format and the list
contemplated by Section 294(1) as per their own whims.
We deprecate such a practice since according to us the
format provided by para 32 is prescribed with precision
and none of the parties should be allowed to have the
format of their own. We also deprecate the practice of
exhibiting the documents not included in the list under
Section 294 (2) and in this case Exhs.-87and 88 which
were not included in the list Exh.-22 contemplated by
Section 294(2), Criminal Procedure Code.
We direct the Registry to send the copy of paras
27 to 29 with cover page of this judgment to the
Registrar General for being circulated to the Magistrates
and the trial Judges. We also direct the Registry to send
person to whom it purports to be signed which,
however, the Court may in List of documents filed
before …...... Court
*Prosecution
By the *accused.
Sr.
No.
Particulars of
the
documents
with dates
Pages Whether
original
certified
copy
By
whom
prepared
Names of
attesting
persons
whether they
are cited as
witnesses
Remarks
if any
30. We are not only amazed but are anxious since
the said format prescribed by para 32 quoted above is
not at all being used either by prosecution or by
accused or by the Presiding Officer of the Court and that
is the reason why the prosecution or the counsel for the
accused have been preparing format and the list
contemplated by Section 294(1) as per their own whims.
We deprecate such a practice since according to us the
format provided by para 32 is prescribed with precision
and none of the parties should be allowed to have the
format of their own. We also deprecate the practice of
exhibiting the documents not included in the list under
Section 294 (2) and in this case Exhs.-87and 88 which
were not included in the list Exh.-22 contemplated by
Section 294(2), Criminal Procedure Code.
We direct the Registry to send the copy of paras
27 to 29 with cover page of this judgment to the
Registrar General for being circulated to the Magistrates
and the trial Judges. We also direct the Registry to send
the copy thereof to the Principal Secretary, Law and
Judiciary, Mantralaya, Mumbai who may supply the
printed format of list under section 294 (2), Criminal
Procedure Code to the prosecutors in the courts of
Magistrates and the Judges, also by putting on
website.”
27 In the present case for want of compliance of Sections
294(1) and (2) and para 32 of Chapter VI of Criminal Manual
document Exhibit 9 will have to be ignored.
28 There is one more reason to keep document Exhibit 9
out of consideration. Needless to state that mere exhibition of
document does not make it admissible in evidence. It is a settled
principle of law that to prove truthfulness of dying declaration
person who recorded it must be examined before the Court.
Prosecution has not examined Head Constable S. L. Chaudhari
who recorded dying declaration Exhibit 9. But same was placed
on record alongwith charge-sheet. It was for the Accused to
examine Head Constable Chaudhari if at all he wanted to rely
upon statement Exhibit 9. Accused did nothing. A simple
endorsement is made on the document that it is admitted. In the
absence of legal evidence Exhibit 9 cannot be read in evidence.
As Exhibit 9 is not duly proved, it does not come to rescue to
Judiciary, Mantralaya, Mumbai who may supply the
printed format of list under section 294 (2), Criminal
Procedure Code to the prosecutors in the courts of
Magistrates and the Judges, also by putting on
website.”
27 In the present case for want of compliance of Sections
294(1) and (2) and para 32 of Chapter VI of Criminal Manual
document Exhibit 9 will have to be ignored.
28 There is one more reason to keep document Exhibit 9
out of consideration. Needless to state that mere exhibition of
document does not make it admissible in evidence. It is a settled
principle of law that to prove truthfulness of dying declaration
person who recorded it must be examined before the Court.
Prosecution has not examined Head Constable S. L. Chaudhari
who recorded dying declaration Exhibit 9. But same was placed
on record alongwith charge-sheet. It was for the Accused to
examine Head Constable Chaudhari if at all he wanted to rely
upon statement Exhibit 9. Accused did nothing. A simple
endorsement is made on the document that it is admitted. In the
absence of legal evidence Exhibit 9 cannot be read in evidence.
As Exhibit 9 is not duly proved, it does not come to rescue to
Accused. If Exhibit 9 is ignored in its entirety then both the written
dying declarations Exhibits 36 and 44 tilt totally in favour of
prosecution and sole reliance can be placed on each of these
dying declarations.
29 A futile attempt was made on behalf of Appellant to
submit that there are material contradictions in both the dying
declarations and therefore, no reliance can be placed on the
same. According to Accused in Exhibit 36, victim stated that no
one was present in the house whereas in Exhibit 44 she stated
that she was in the house with her two daughters. Attacking on
this contradiction learned counsel for Appellant urged that both the
dying declarations are not worth to be believed and no reliance be
placed on the same. In respect of two contradictory dying
declarations learned counsel relied upon–
(i) Sanjay Sakharam Ahire Vs. The State of
Maharashtra7
(ii) Sou. Radhabai Fattesing Pawar & ors Vs. The
State of Maharashtra8
(iii) Uttam Prabhkar Bagul & Anr Vs. The State of
7 2014 ALL MR (Cri) 5162
8 2014 ALL MR (Cri) 4364
dying declarations Exhibits 36 and 44 tilt totally in favour of
prosecution and sole reliance can be placed on each of these
dying declarations.
29 A futile attempt was made on behalf of Appellant to
submit that there are material contradictions in both the dying
declarations and therefore, no reliance can be placed on the
same. According to Accused in Exhibit 36, victim stated that no
one was present in the house whereas in Exhibit 44 she stated
that she was in the house with her two daughters. Attacking on
this contradiction learned counsel for Appellant urged that both the
dying declarations are not worth to be believed and no reliance be
placed on the same. In respect of two contradictory dying
declarations learned counsel relied upon–
(i) Sanjay Sakharam Ahire Vs. The State of
Maharashtra7
(ii) Sou. Radhabai Fattesing Pawar & ors Vs. The
State of Maharashtra8
(iii) Uttam Prabhkar Bagul & Anr Vs. The State of
7 2014 ALL MR (Cri) 5162
8 2014 ALL MR (Cri) 4364
Maharashtra9
Above authorities relate to contradictory dying
declarations wherein in one story of accidental or suicidal fire was
disclosed by deceased and in another she stated that her
husband poured kerosene and set her on fire.
30 In the case on hand as discussed above statement
Exhibit 9 is to be kept out of consideration in its entirety as it was
not duly proved. If statement Exhibit 9 is ignored then we find no
material contradiction in dying declaration Exhibits 36 and 44. So
far as presence of two daughters as stated by victim in second
dying declaration is concerned, in view of evidence of PW-4
Akshada and suggestion given to her in cross-examination that
she was watching T.V. that cannot be also termed as major
variance or contradiction in the statement of deceased.
31 Referring to postmortem report Exhibit 8 learned
counsel for Appellant submitted that deceased sustained 100%
burn injuries and so it is impossible to believe that she was
mentally fit to give her statement. Postmortem report shows
100% burns sustained by victim. There is no absolute rule that in
9 2014 ALL MR (Cri) 3008
Above authorities relate to contradictory dying
declarations wherein in one story of accidental or suicidal fire was
disclosed by deceased and in another she stated that her
husband poured kerosene and set her on fire.
30 In the case on hand as discussed above statement
Exhibit 9 is to be kept out of consideration in its entirety as it was
not duly proved. If statement Exhibit 9 is ignored then we find no
material contradiction in dying declaration Exhibits 36 and 44. So
far as presence of two daughters as stated by victim in second
dying declaration is concerned, in view of evidence of PW-4
Akshada and suggestion given to her in cross-examination that
she was watching T.V. that cannot be also termed as major
variance or contradiction in the statement of deceased.
31 Referring to postmortem report Exhibit 8 learned
counsel for Appellant submitted that deceased sustained 100%
burn injuries and so it is impossible to believe that she was
mentally fit to give her statement. Postmortem report shows
100% burns sustained by victim. There is no absolute rule that in
9 2014 ALL MR (Cri) 3008
case patient sustained 100% burns she would not be mentally fit
to give statement. We have considered evidence of Medical
Officer who examined patient and made endorsement on both the
dying declarations that patient was conscious and fit to give her
statement.
32 PW-8 Naib Tahsildar Jagalwar, PW-10 P.I. Telure and
PW-11 Dr. Borkar were independent witnesses and they had no
reason to falsely implicate the Accused. There is nothing on
record to show that investigation was dishonest, guided or
defective investigation. In such a case both the dying declarations
Exhibits 36 and 44 being found voluntary, truthful and trustworthy
will have to be relied upon and there is no reason to discard the
same.
33 It is then submitted by Accused that he had sustained
burn injuries in an attempt to extinguish fire and in such a case it
cannot be said that he has intention to cause death of his wife
Sandhya. It is not disputed that Appellant sustained some burn
injuries. However, there is no evidence on record to show that
burn injuries were sustained by Appellant when he tried to
extinguish fire. Sandhya had not stated so in both her dying
to give statement. We have considered evidence of Medical
Officer who examined patient and made endorsement on both the
dying declarations that patient was conscious and fit to give her
statement.
32 PW-8 Naib Tahsildar Jagalwar, PW-10 P.I. Telure and
PW-11 Dr. Borkar were independent witnesses and they had no
reason to falsely implicate the Accused. There is nothing on
record to show that investigation was dishonest, guided or
defective investigation. In such a case both the dying declarations
Exhibits 36 and 44 being found voluntary, truthful and trustworthy
will have to be relied upon and there is no reason to discard the
same.
33 It is then submitted by Accused that he had sustained
burn injuries in an attempt to extinguish fire and in such a case it
cannot be said that he has intention to cause death of his wife
Sandhya. It is not disputed that Appellant sustained some burn
injuries. However, there is no evidence on record to show that
burn injuries were sustained by Appellant when he tried to
extinguish fire. Sandhya had not stated so in both her dying
declarations. Nor there is other evidence on record to show that
burn injuries were sustained by Appellant while extinguishing fire.
On the other hand Sandhya stated that her husband ran away,
neighbours had come and extinguished fire. It negatives defence
of Accused that he sustained burn injuries while extinguishing fire
and he had no intention to cause death of his wife.
34 In the light of above and on going through the record,
we are of the opinion that there is sufficient evidence to prove
beyond reasonable doubt that Appellant poured kerosene on his
wife Sandhya and set her on fire which resulted in her death. We
find no merit in the appeal. Hence, appeal is dismissed.
[ INDIRA K. JAIN, J.] [ A. B. CHAUDHARI, J.]
burn injuries were sustained by Appellant while extinguishing fire.
On the other hand Sandhya stated that her husband ran away,
neighbours had come and extinguished fire. It negatives defence
of Accused that he sustained burn injuries while extinguishing fire
and he had no intention to cause death of his wife.
34 In the light of above and on going through the record,
we are of the opinion that there is sufficient evidence to prove
beyond reasonable doubt that Appellant poured kerosene on his
wife Sandhya and set her on fire which resulted in her death. We
find no merit in the appeal. Hence, appeal is dismissed.
[ INDIRA K. JAIN, J.] [ A. B. CHAUDHARI, J.]
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