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2019 Supreme(Bom) 635
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
SUNIL B. SHUKRE, PUSHPA V. GANEDIWALA, JJ.
Sanjay Ramkrushna Bhatkar - Appellant
Vs.
State Of Maharashtra - Respondent
Criminal Appeal No. 364 of 2018
Decided on : 13-03-2019
Advocate Appeared:
S.V. Sirpurkar, Adv., A.V. Palshikar, Adv.
Headnote:
Indian Penal Code, 1860 – Sections 498, 109, 302 – Criminal Procedure Code, 1973 – Section 313 – Offence of Murder and Cruelty – Order of Conviction – Appellant No. 1 - Sanjay is convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and appellant No. 2 for the offence punishable under Section 302 read with Section 109 of the Indian Penal Code and sentenced both the appellants to suffer imprisonment for life and to pay fine of Rs.5,000/- each and in default, suffer further simple imprisonment (S.I.) for six months. Appellant No. 1 is also sentenced to suffer R.I. for three months and to pay fine of Rs.5,000/- and in default to suffer further S.I. for three months for the offence punishable under Section 498-A of the Indian Penal Code. – Held, Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion, but where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. – Hon’ble Apex Court is of the opinion that what evidentiary value or weight has to be attached to such statement, necessarily depends on the facts and circumstances of each particular case and what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. – Recorder PW-10 did not record his satisfaction nor did he depose before the court about his satisfaction for the fitness of the victim to give statement – Facts are more than sufficient to say without any hesitation that in the instant case the dying declaration could not pass the test of reliability and proximity and does not inspire the confidence of the court to convict the appellants for the charge of murder. – Prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt and, therefore, they are entitled to be acquitted. – Additional Sessions Judge committed an error in convicting the appellants. – Therefore, the impugned judgment and order needs to be quashed and set aside and the same is accordingly quashed and set aside – Appeal Allowed.
PUSHPA V. GANEDIWALA, J.
1. Being aggrieved and dissatisfied with the judgment and order dated 11.05.2018 passed by the Additional Sessions Judge, Akola, in Sessions Trial No. 62 of 2013, for Crime No. 104 of 2012 registered at Police Station, Mana, Tahsil - Murtizapur, District - Akola, the appellants challenge the same in this appeal.
2. Appellant No. 1 - Sanjay is convicted for the offence punishable under Sections 302 and 498-A of the Indian Penal Code and appellant No. 2 for the offence punishable under Section 302 read with Section 109 of the Indian Penal Code and sentenced both the appellants to suffer imprisonment for life and to pay fine of Rs.5,000/- each and in default, suffer further simple imprisonment (S.I.) for six months. Appellant No. 1 - Sanjay is also sentenced to suffer R.I. for three months and to pay fine of Rs.5,000/- and in default to suffer further S.I. for three months for the offence punishable under Section 498-A of the Indian Penal Code.
3. The prosecution story, in brief, is as under :
(i) The appellant - Sanjay Ramkrushna Bhatkar is the husband of the deceased Swati Sanjay Bhatkar. The couple married 6 to 7 years prior to the incident. They have one child out of the said wedlock. Appellant - Sanjay is habituated to consume liquor and subjected the deceased to cruelty under the influence of liquor.
(ii) On 16.12.2012 at about 7.30 PM, appellant No. 1 - Sanjay invited appellant No. 2 - Kiran at his house for dinner. Appellant No. 1 - Sanjay asked his wife Swati (deceased) to bring glasses and jar for consuming liquor. On that, the deceased raised objection and asked appellant No. 1, not to invite such persons at home who are habituated to consume liquor and she declined to bring the glasses and jar. On this, appellant No. 2 - Kiran provoked appellant No. 1 - Sanjay that, had the deceased been his wife, he would have killed her. Appellant No. 1 - Sanjay got provoked and assaulted the deceased. Then he poured kerosene on her person and set her ablaze with matchstick. The deceased was taken to the hospital at Murtizapur.
(iii) The information about this incident was reached to Police Station, Murtizapur. Immediately, ASI - Shri Rajkumar Khandare from P. S. Murtizapur rushed to the L.D. Hospital, Murtizapur where the victim was admitted. ASI - Shri Khandare met the Doctor and obtained his opinion about her fitness to give statement. The ASI - Shri Khandare recorded her statement according to her narration. As her hands and other parts of the body were burnt, her toe impression was taken on her statement. The Medical Officer also put his endorsement.
(iv) On the basis of the statement of the injured - Swati, ASI Shri Khandare of P.S. Murtizapur registered Crime bearing No. 0 of 2012 against the appellants for the offence punishable under Section 307 read with Section 34 of IPC. As the spot of the incident was within the jurisdiction of Police Station, Mana, the police case file was transferred to Police Station, Mana. Police Head Constable (PHC) Shri Devandand Narayan Dandi received the same and registered Crime No. 104 of 2012 at Police Station, Mana. The initial investigation in this crime was conducted by the In-charge Police Inspector - Shri V.S. Ingle. Thereafter PI Shri Jagdish Gaikwad took over the charge of investigation. He recorded statements of witnesses. On 03.01.2013, he received information about death of the injured. He added Section 302 of the Indian Penal Code in the FIR against the appellants.
(v) The inquest panchnama was conducted on the dead body and clothes of the deceased were seized during the said panchnama. The dead body was sent for autopsy. After collecting post mortem and Chemical Analyser’s report, P.I. Shri Gaikwad filed charge sheet before the Court of Judicial Magistrate First Class, Murtizapur. The Court of Magistrate, Murtizapur, in its turn, committed the case to the Court of Sessions at Akola vide committal order dated 23.03.2013 as the offence punishable under Sec
