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2017 Supreme(Bom) 1773
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
R.K. DESHPANDE, M.G. GIRATKAR, JJ.
Ajay s/o Digamber Deogade - Appellant
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 304 of 2005
Decided On : 23-11-2017
Advocate Appeared:
For the Appellant : Shri R.M. Daga
For the Respondent: Shri V.P. Gangane
The central legal point established in the judgment is the requirement for close scrutiny of dying declarations and the burden of proof on the prosecution to establish guilt beyond reasonable doubt.
Headnote:
Murder - Indian Penal Code - Section 302, Section 304B - The court discussed the evidence of dying declarations, oral and written, and the reliability of witnesses. The judgment highlighted the legal principles for considering dying declarations and the burden of proof on the prosecution.
Fact of the Case:
The appellant was charged with the murder of his wife, Vishakha, by setting her on fire. The prosecution relied on oral and written dying declarations and witness testimonies.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the accused beyond reasonable doubt for the offence punishable under Section 302 of the Indian Penal Code. The appeal was allowed, and the appellant was acquitted of the offence.
Issues: The key issues included the reliability of dying declarations, the burden of proof on the prosecution, and the credibility of witness testimonies.
Ratio Decidendi: The court emphasized the need for close scrutiny of dying declarations and the requirement for reliability. It also highlighted the burden of proof on the prosecution to establish guilt beyond reasonable doubt.
Final Decision: The appeal was allowed, the impugned judgment was quashed and set aside, and the appellant was acquitted of the offence punishable under Section 302 of the Indian Penal Code.
M.G. Giratkar, J.
Appellant was chargesheeted for committing murder of his wife. Learned Additional Sessions Judge, Chandrapur acquitted the appellant for the offence punishable under Section 304B of the Indian Penal Code and convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs. 1,000/- in default to suffer further simple imprisonment for three months. Being aggrieved by the judgment of conviction in Sessions Case No. 119/2004 dated 12-4-2005, appellant has filed the present appeal.
2. The case of the prosecution against the appellant in short is as under.
(i) The appellant married with deceased Vishakha on 19-3-2004. After the marriage, appellant was demanding Rs. 50,000/- from her parents. On the day of incident i.e. on 18-4-2004, in evening, appellant came to house and asked his wife Vishakha as to why she did not serve food to his mother. Therefore, there was quarrel between them. He taken her in the bathroom, poured kerosene on her person and set her on fire. Vishakha started burning. She caught the appellant. Appellant also sustained burn. Neighbours extinguished fire. They were admitted in the Government Hospital, Chandrapur in the night at about 10.00 p.m.
(ii) On 19-4-2004, Executive Magistrate Sirsam recorded statement/ dying declaration of Vishakha. She has stated that appellant quarreled with her saying as to why she did not serve food to his mother and on that count, there was quarrel. Appellant poured kerosene and set her on fire. She has also stated that she caught the appellant and appellant also sustained burn. On 22-4-2004, during medical treatment in the hospital, Vishakha died.
(iii) PSI Khamankar registered the crime on 26-4-2004 after receipt of dying declaration. Thereafter he went to spot of incident and prepared spot panchanama, seizure panchanama. He has recorded statements of witnesses. Further investigation was carried out by PSI Solanki. PSI Solanki seized video recording, arrested accused and after complete investigation, filed chargesheet before the Judicial Magistrate First Class, Bhadrawati. Offences under Sections 302 and 304B of the Indian Penal Code are exclusively triable by the Sessions Court, therefore, the Judicial Magistrate First Class, Bhadrawati committed the case to Sessions Court for trial.
(iv) Charge was framed by the trial Court at Exhibit 5 for the offences punishable under Sections 304B and 302 of the Indian Penal Code. The same was readover and explained to the appellant to which he pleaded not guilty and claimed to be tried.
(v) Trial Court has examined in all total following 11 witnesses.
(1) P.W. 1 Hemant Madhukar Meshram (Exhibit 12)
(2) P.W. 2 Mahadeo Shankar Narayane (Exhibit 15)
(3) P.W. 3 Ashish Vilasrao Nagarale (Exhibit 16)
(4) P.W. 4 Rajesh Gajananrao Alone (Exhibit 32)
(5) P.W. 5 Imtiyas Mumtaz Siddiqui (Exhibit 33)
(6) P.W. 6 Vilas Nathuji Nagarale (Exhibit 36)
(7) P.W. 7 Raghunath Ramchandra Khamankar (Exhibit 39)
(8) P.W. 8 Chandrakant Motiramji Sirsam (Exhibit 41)
(9) P.W. 9 Gulabsingh Gayansingh Solanki (Exhibit 47)
(10) P.W. 10 Dr. Rafiq Ramjan Ali Mawani (Exhibit 51) and
(11) P.W. 11 Dr. Seema Madhukar Shegaonkar (Exhibit 54)
Statement of accused/appellant was recorded under Section 313 of Code of Criminal Procedure. He has denied material incriminating evidence against him.
(vi) After hearing the prosecution and defence, learned trial Court discarded the evidence in respect of dowry death for the offence punishable under Section 304B of the Indian Penal Code. Learned trial Court relied on the evidence of P.W. 2 and P.W. 6 in respect of oral dying declaration stated by deceased and convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code holding that appellant poured kerosene on the person of his wife Vishakha and set her on fire.
3. Prosecution mainly relied on the written dying declaration, Exhibit 43 recorded by P.W. 8
