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2017 Supreme(Bom) 2327
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
B.R. GAVAI, INDIRA JAIN, JJ.
Dilip Dyaneshwar Hanwate – Appellant
Versus
State of Maharashtra, through Police Station Officer, Civil Lines – Respondent
Criminal Appeal No. 423 of 2015
Decided On : 23-02-2017
For the Appellant : Shri R.D. Dhande.
For the Respondent: Shri M.J. Khan.
Headnote:
Dying Declarations - Criminal Law - Indian Penal Code - Sections 302, 450 - The judgment discusses the reliability of dying declarations and the sufficiency of evidence to prove the guilt of the accused. The court emphasizes the importance of close scrutiny of dying declarations and the acceptance of child witness testimony. The key legal provisions discussed are the requirements for a dying declaration to be considered reliable and the evaluation of evidence from a child witness.
Fact of the Case:
The appellant was convicted of offenses under Sections 302 and 450 of the Indian Penal Code for setting the deceased on fire. The prosecution relied on written and oral dying declarations and the testimony of a child witness.
Finding of the Court:
The court found that the prosecution had proved the guilt of the accused beyond reasonable doubt based on the evidence of dying declarations and the consistent testimony of the child witness.
Issues: The issues revolved around the reliability of dying declarations, the sufficiency of evidence, and the credibility of the child witness.
Ratio Decidendi: The court emphasized the need for close scrutiny of dying declarations and the acceptance of child witness testimony if found to be truthful and free from tutoring.
Final Decision: The appeal was dismissed, and the accused's conviction was upheld based on the sufficiency of evidence provided by the dying declarations and the child witness testimony.
INDIRA JAIN, J.
1. This appeal takes an exception to the judgment and order dated 28.08.2015 passed by the learned Sessions Judge, Akola in Sessions Trial No. 128/2013. By the said judgment and order, the sole accused is convicted of the offences punishable under Sections 302 and 450 of the Indian Penal Code. He is sentenced to suffer imprisonment for life and fine of Rs. 50/- for the offence under Section 302 and rigorous imprisonment for five years and fine of Rs. 50/- in default, rigorous imprisonment for six months for the offence under Section 450 of the Indian Penal Code.
2. For the sake of convenience, we shall refer the appellant in his original status as accused, as he was referred before the trial Court.
3. Prosecution case in brief is as under:
(i) Deceased Alka Santosh Chopde was residing in a rented block at Malkapur, Akola. Her family was consisting of husband, a son and daughter Anjali. The husband of Alka was working elsewhere and he was visiting the house intermittently.
(ii) Incident occurred on 08.05.2013 at around 10:00 p.m. That time, son and daughter of Alka went to sleep. She was watching T.V. Accused entered the house and raised quarrel with Alka on payment of money. He was abusing her. On hearing shouts, Anjali woke up. Accused poured kerosene on the person of Alka and set her on fire. He fled away from the spot. Anjali raised alarm. She also informed her maternal uncle, who in turn informed Sangita (PW-1), elder sister of Alka on phone about the incident. Alka was then shifted to Government Hospital, Akola. An intimation of medico legal case was given to police station.
(iii) PW-7 Shriram Ukarda Raut was the Executive Magistrate. On receiving memo, he rushed to the hospital and met the doctor. He requested the Medical Officer to examine the patient and certify whether she was in a position to make her statement. Accordingly, Alka was examined by the doctor, who certified that patient is conscious, oriented and fit to give her statement. Then Executive Magistrate Shriram Raut put certain preliminary questions to the patient and on his subjective satisfaction that she was fit to make her statement, recorded dying declaration of Alka. This was the first dying declaration recorded between 11:10 and 11:35 p.m. In this dying declaration, Alka stated before the Executive Magistrate that on 08.05.2013 at 10:00 p.m. accused entered the house, abused and beat her and set her on fire by pouring kerosene on her person. She stated that she was to recover money from the accused and as she demanded money back, accused used to raise quarrel with her. After recording dying declaration of Alka, it was sealed and sent to Khadan Police Station.
(iv) PW-8 PSI Kiran Ahire received the dying declaration. He went to Government Hospital and on ascertaining from the Medical Officer on duty fitness of the patient to give her statement, recorded her dying declaration. She reiterated the same facts before PSI Ahire as she narrated to the Executive Magistrate Shriram Raut.
(v) Thereafter, Crime No. 81/2013 came to be registered against the accused for the offences punishable under Sections 307, 448 and 504 of the Indian Penal Code. PSI Ahire took over further investigation. He visited the spot and recorded spot-panchnama. Articles like pieces of burnt saree and clothes, broken necklace, kerosene can and matchstick lying on the spot were seized at the time of drawing spot-panchnama.
(vi) Alka succumbed to injuries on 20.05.2013. Then offence under Section 302 of the Indian Penal Code was added. Inquest-panchnama was drawn. Dead body was sent for postmortem. Dr. Gajanan Thokal (PW-11) was on duty. He performed postmortem on the dead body and noticed 91% burn injuries. The cause of death opined by the Medical Officer was due to septicaemia due to unnatural burns.
(vii) Accused was arrested on 26.06.2013 and sent for medical examination. Police custody remand of the accused was sought. Further investigation was handed over to PSI That
