Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 701

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
VIBHA KANKANWADI, Y.G. KHOBRAGADE, JJ.
Parmeshwar S/o Sadashiv Sanap – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No.463 of 2016
Decided on : 03-05-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Satej S. Jadhav Advocate
For the Respondent: Mr. R.D. Sanap, Adv

The admissibility and reliance on dying declarations, the need for meticulous scrutiny of evidence, and the burden of proof on the prosecution to establish the offence beyond reasonable doubt.

Headnote:
Dying Declaration - Murder - Indian Penal Code - Section 302, 342 read with Section 34 - Summary of the acts and sections referenced and discussed by the court: The court discussed the prosecution's reliance on two dying declarations, Exhibit-76 and Exhibit-102, to prove the offence of murder against the accused. The court scrutinized the admissibility and reliability of the dying declarations, highlighting inconsistencies and lack of corroboration. The court also emphasized the principles governing the admissibility and reliance on dying declarations, citing relevant case laws such as Paniben vs. State of Gujarat, Laxman vs. State of Maharashtra, and Jagbir Singh vs. State (NCT of Delhi). The court ultimately held that the dying declarations were unsafe to rely on and acquitted the accused of the offence punishable under Section 302 of the Indian Penal Code.
Fact of the Case:

The case involved the murder of Dipali, with the husband accused of setting her on fire. The prosecution relied on two dying declarations to prove the guilt of the accused. The father of the deceased challenged the acquittal of the mother-in-law from the offence, invoking the provisions of Section 372 of the Code of Criminal Procedure.
Finding of the Court:

The court found that the dying declarations were unsafe to rely on and highlighted inconsistencies and lack of corroboration. The court emphasized the need for meticulous scrutiny of evidence in cases involving dying declarations and held that the prosecution failed to prove the offence beyond reasonable doubt. As a result, the court set aside the conviction of the accused and acquitted him of the offence punishable under Section 302 of the Indian Penal Code. The appeal challenging the acquittal of the mother-in-law was dismissed at the threshold.
Issues: The key issues revolved around the admissibility and reliability of the dying declarations, the scrutiny of evidence, and the burden of proof on the prosecution to establish the offence beyond reasonable doubt.
Ratio Decidendi: The court emphasized the principles governing the admissibility and reliance on dying declarations, citing relevant case laws such as Paniben vs. State of Gujarat, Laxman vs. State of Maharashtra, and Jagbir Singh vs. State (NCT of Delhi). The court highlighted the need for meticulous scrutiny of evidence in cases involving dying declarations and the burden of proof on the prosecution to establish the offence beyond reasonable doubt.
Final Decision: The court set aside the conviction of the accused and acquitted him of the offence punishable under Section 302 of the Indian Penal Code. The appeal challenging the acquittal of the mother-in-law was dismissed at the threshold.

JUDGMENT :

VIBHA KANKANWADI, J.

1. Both the Appeals arise out of the Judgment and order passed by the learned Additional Sessions Judge, Aurangabad in Sessions Case No.191 of 2008 dated 8th July 2016 and therefore the same are proposed to be disposed of by this common Judgment.

2. Criminal Appeal No. 463 of 2016 is filed by original accused No.1 challenging his conviction after holding him guilty of committing offence under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs.1000/- and in default of payment of fine, to suffer simple imprisonment for one month. It is alleged that accused No.1 has committed murder of his wife.

3. Appellant in Criminal Appeal No. 595 of 2016 is the father of deceased Dipali, who challenges acquittal of original accused No.2 i.e. mother-in-law of Dipali from the offence punishable under Sections 302, 342 read with Section 34 of the Indian Penal Code, by invoking the provisions of Section 372 of the Code of Criminal Procedure.

4. The prosecution story, in short, is that Dipali and accused No.1 Parmeshwar (hereinafter referred to as “accused”) got married in November 2004 and they had a son – Shubham, aged about 1½ years on 28th August 2007. Parents of Dipali used to reside at Baramati whereas her matrimonial home was at Raimoha, Tq-Shirur, District-Beed, but accused was running a grocery shop at Isarwadi, Taluka-Paithan, District-Aurangabad. The in-laws used to reside at Raimoha whereas accused, Dipali and son Shubham used to reside at Isarwadi.

5. It is the further prosecution story that Dipali had caught fire and was admitted to Bembde Hospital, Aurangabad on 28th August 2007 and her dying declaration Exhibit-76 came to be recorded by the Executive Magistrate Krushna Shinde around 2.10 p.m. and then it was treated as First Information Report (for short “FIR”). Offence vide Crime No.61 of 2007 was registered with M.I.D.C. Police Station, Paithan, for the offence punishable under Sections 307, 342 read with Section 34 of the Indian Penal Code against husband as well as mother-in-law. It is further prosecution story that on the same day even PW-8, the then API Jivan Mundhe also recorded dying declaration Exhibit-102 when Dipali was admitted in Bembde Hospital and thereafter the investigation was taken up. Panchnama of the spot was executed and certain articles were seized from the spot. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. Dipali succumbed to the injuries on 3rd September 2007. The inquest panchnama was prepared and dead body was sent for postmortem. Provisional postmortem report was initially collected and later on final postmortem report has also been collected. Supplementary statements were recorded. Later on accused persons came to be arrested. The clothes on the person of the accused were also seized. Seized articles were sent for chemical analysis and after completion of the investigation, charge-sheet was filed before the learned Judicial Magistrate First Class, Paithan.

6. After committal of the case, charge was framed against both the accused under Section 302, 342 read with Section 34 of the Indian Penal Code, at Exhibit-28. Both the accused pleaded not guilty. Trial was conducted. Prosecution has examined in all eight witnesses to bring home guilt of the accused. After the incriminating evidence had come, statements of the accused persons under Section 313 of the Code of Criminal Procedure have been recorded. The defence of the original accused No.2 was of total denial. The defence of accused No.1 was that Dipali was short tempered. There was house warming ceremony at Raimoha and they had gone to that place. Parents-in-law stayed there. Accused came to Isarwadi on 27th August 2007 and on the next day i.e. on 28th August 2007 Dipali had come without informing her parents-in-law. Paternal uncle of Dipali was residing at Paithan and Dipali had gone to her said uncle’s place and then phone