Dismissed

Raju Shankar Shete v. the State of Maharashtra.

Bombay HC8 Sept 2005APEAL/260/1996

Case brief

AI extract

What is this about?

The High Court of Bombay criminal appellate jurisdiction dismissed the appeal against conviction. The court held that three consistent dying statements made by the victim while conscious were sufficient to sustain a conviction for murder under Section 302 IPC, rendering additional corroboration unnecessary despite hostile prosecution witnesses.

What did the court decide?

The appeal was dismissed and the judgment of conviction and sentence passed by the Sessions Judge was confirmed. Bail bond was cancelled.

Raju Shankar Shete Vs the State of Maharashtra. — Murder and Culpable Homicide | Bombay HC (2005)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 260 OF 1996.

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Raju Shankar Shete,]
age: 27 years, Occupation: Hotel]
Business, resident of Dhalgaon,]
Taluka Kavathe, Mahankal,]
District : Sangli,]
(at present lodged in the Kolhapur]
District Prison, Kalamba, Kolhapur.) ] .. Appellant

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Versus

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The State of Maharashtra.] .. Respondent

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Mr.S.H. Ingawale for the appellant.

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Mr.D.R. More, A.P.P., for the respondent-State.

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CORAM:S.S. PARKAR &
ANOOP V. MOHTA, JJ.

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DATED: 8TH SEPTEMBER, 2005

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ORAL JUDGMENT. : [Per Anoop V. Mohta, J.]

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1.The appellant was charged, tried and has been
convicted under Section 302 of the Indian Penal Code
(for "IPC") by the judgment and order dated 30th March,
1996, passed by the Sessions Judge, Sangli, in Sessions
Case No.29 of 1993. Therefore, this Appeal.

¶12

2.The name of the deceased is Alka Bhise ("the

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: 2 :

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deceased"). The date of incident is 27th November, 1992
at 10.00 a.m. The deceased died on 30th November, 1992
because of 68% burn injuries. The appellant had illicit
relations with the deceased. After marriage, the
appellant refused to maintain the deceased. She,
therefore, started visiting the house of the accused and
lastly on 26th November, 1992, insisted for her
maintenance, as appellant used to provide her money and
grains before his marriage. The appellant refused the
same. During the quarrel, as she had also threatened,
as per prosecution, the appellant poured kerosene on the
body of the deceased. The deceased Alka, however, ran
away due to fear and went to her house. On 27th
November, 1992, at about 10.00 a.m., the appellant
visited the house of the deceased and immediately during
the quarrel, accused again poured kerosene on her body
from the bottle, which was lying in her house and set
her on fire. The deceased Alka shouted. PW4 Vidya
Bhosale, Shalan Chavan, after hearing the shouts reached
there. The accused, however, ran away. Nobody from the
locality helped the deceased. The deceased, therefore,
on her own in an injured condition, walked to the
Primary Health Centre (PHC), Dhalgaon for treatment.

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3.On 27th November, 1992, at about 13.30 p.m.,
she reached the room of Dr.More (PW6), Medical Officer,

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PHC, Dhalgaon. After treatment, she regained her
consciousness. Dr.More asked a health Officer, his
assistant Naik (PW11) to record the case history in his
presence, the same was recorded at Exhibit-19. Dr.More
took entry of medico-legal case bearing No.169/1992
dated 27th November, 1992, at 10.30 p.m. Exhibit-23 &
24. After intimation on phone, the Head Constable
Korabu made a entry No.18 in the Station Diary from
Kawathe Mahankal Police Station and further informed PSI
Shinde (PW12). PSI Shinde reached to the PHC Dhalgaon
at 5.00 p.m. On request through a letter Exhibit-20A by
PSI Shinde Dr.More gave a certificate about the
deceased’s mental condition to give a statement.
Accordingly, the statement was recorded by PSI Shinde
(PW12), Exhibit-20, in the presence of Dr. More and
obtained his endorsement on it. The deceased was fully
conscious.

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4.On 27th November, 1992, at about 6.00 p.m.,
Dr.More sent the deceased to the Civil Hospital, Sangli,
along with his forwarding letter Exhibit-22. PSI Shinde
registered Crime No.167/92 of Kawathe, Mahankal, on the
basis of the dying declaration of the deceased
(Exhibit-20) at Exhibit-21. The deceased was taken to
the Civil Hospital, Sangli by PC Chavan of Kawathe
Mahankal Police Station and was admitted on 27th

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November, 1992 at about 21.40 hours. Dr.Bali (PW13)
examined the deceased at about 22.00 hours and recorded
72% burns on her body and prepared the case papers at
Exhibit-50.

¶21

5.PW9 Head Constable Tukaram Ninappa Paithane,
on 27th November, 1992, at about 22.00 hours requested
by a letter (Exhibit-26) to the Special Executive
Magistrate (SEM) Mr.Jadhav (PW7), to record a dying
declaration. Dr.Mali (PW13), had informed about the
consciousness of the deceased and her fit state of mind
to give the statement. The SEM at 22.45 hours, after
disclosing his identity to the deceased, informed his
purpose of the visit. He had put requisite questions to
the deceased to which she replied and the SEM recorded
accordingly (Exhibit-27) in presence of Dr.Mali. After
completion of the declaration, the contents were read
over to the deceased. She admitted the contents to be
true, correct and as per her version. The SEM took her
thumb impression on the statement (Exhibit-27) and also
obtained the endorsement of Dr.Mali on it. The SEM gave
the sealed envelope in the name of the Judicial
Magistrate, First Class Kawathe-Mahankal and also
supplied the copy of the statement to the Head Constable
Paithane (PW9). The written report accordingly, was
submitted by Paithane (PW9), to the Market Yard Police

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Station.

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6.On 28th November, 1992, at about 2.00 p.m.,
PSI Shinde arrested the accused Raju Shankar Shete. On
28th November, 1992, at about 10.30 a.m., PSI Shinde
(PW12) visited the place of incident alongwith the two
Panchas viz. Shivaji Sutar (PW1) and Suresh Shingade.
One Anjana Bhosale, a witness, pointed out the spot of
incident. PSI Shinde drew Spot Panchanama and seized
burnt matchstick, matchbox, glass bottle, burnt pieces
of clothes. The deceased died on 30th November, 1992 at
about 5.15 p.m. at the Civil Hospital, Sangli. On 1st
December, 1992, Head Constable Paithane drew the Inquest
Panchanama of the dead body (Exhibit-7). Dr.Bhave
(PW10) and Dr.Mrs. Narkar examined the dead body and
submitted the Post Mortem Report on 1st December, 1992
(Exhibit-33). The probable cause of the death of the
deceased was shock due to 68% burns.

¶25

7.On 3rd December, 1992, PSI Shinde, after
receipt of the documents like Inquest Panchanama, Post
Mortem Report and dying declaration, registered the
offence under Section 302 IPC. After completion of the
investigation, the accused was chargesheeted. By an
order dated 18th January, 1993, the Judicial Magistrate,
First Class, committed the case to the Sessions Court,

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Sangli. The defence of the accused was of total denial
and false implication, apart from defence of immoral
character of the deceased.

¶28

8.The prosecution has, in all, examined 13
witnesses. The appellant did not examine any witness.
The prosecution witnesses are PW1-Shivaji Madhu Sutar, a
neighbour of the deceased and panch witness to the Spot
Panchanama; PW2-Rajakka Anna Bhosale, a neighbour,
declared hostile; PW3 Mubarak Kondaji Mujawar, a waiter
in the hotel of the accused, declared hostile; PW4-
Vidya Ashok Bhosale, a declared hostile neighbour; PW5-
Appa Gunda Bhise, the father of the deceased; PW6
-Dr.Ananda Nana More, a Medical Officer of the Primary
Health Centre, Dhalgaon, who examined and treated the
deceased and recorded the first dying declaration; PW7
-Ramchandra Dattatraya Jadhav, Special Executive
Magistrate (SEM) who also recorded the statement of the
deceased; PW8 Nirmala Namdeo Bhosale, a child neighbour
was also declared hostile; PW9-Tukaram Ninappa
Paithane, Head Constable; PW10-Dr.Sanjay Sudhir Bhave,
a Medical officer who performed the autopsy on the dead
body of the deceased; PW11-Achyut Arvind Naik, a Health
Assistant, PHC, Belankhi, who noted down the first dying
declaration of the deceased Alka; PW12-PSI Vithal
Ambadas Shinde, the Investigating Officer. PW13-Dr.Anil

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: 7 :

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Dhondiram Mali, a Medical Officer who examined and
treated the deceased at the Civil Hospital, Sangli.

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9.The learned Sessions Judge, after considering
the material placed on the record, including the dying
declarations (Exhibits 19, 21 and 27) all dated 27th
November, 1992, at different times recorded by the
different persons, and the evidence of the hostile
witnesses referred above, has rightly convicted the
appellant.

¶32

10.The legal foundation, as declared by the Apex
Court’s Constitutional Bench in Laxman Vs. State of
Maharashtra(2002) 6 S.C.C., 710, is as under:

¶33

"Since the accused has no power of
cross-examination, the courts insists that the
dying declaration should be of such a nature
as to inspire full confidence of the court in
its truthfulness and correctness. The court,
however, has always to be on guard to see that
the statement of the deceased was not as a
result of either tutoring or prompting or a
produce of imagination. The court also must
further decide that the deceased was in a fit
state of mind and had the opportunity to
observe and identify the assailant. Normally,
therefore, the 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

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fitness of the mind of the declarant, the
dying declaration is not acceptable. A dying
declaration can be oral or in writing and any
adequate mind of communication whether by
words or by signs or otherwise will suffice
provided the indication is positive and
definite. In most cases, however, such
statements are made orally before death ensues
and is reduced to writing by someone like a
Magistrate or a doctor or a police officer.
When it is recorded, no oath is necessary nor
is the presence of a Magistrate absolutely
necessary, although to assure authenticity it
is usual to call a Magistrate, if available
for recording the statement of a man about to
die. There is no requirement of law that a
dying declaration must necessarily be made to
a Magistrate and when such statement is
recorded by a Magistrate there is no specified
statutory form for such recording.
Consequently, whet evidential value or weight
has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case. 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.
Where it is proved by the testimony of the
Magistrate that the declarant was fit to make
the statement even without examination by the
doctor the declaration can be acted upon
provided the court ultimately holds the same
to be voluntary and truthful. A certification
by the doctor is essentially a rule of caution
and therefore the voluntary and truthful
nature of the declaration can be established
otherwise."

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11.The Apex Court in Muthu Kutty & Anr. Vs.
State by Inspector of Police, Tamil Nadu2005 ALL MR

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(Cri) 1523 (SC)has further observed as under:

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"(ii) If the Court is satisfied that the dying
declaration is true and voluntary it can base
conviction on it, without corroboration. (See

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State of Uttar Pradesh Vs. Ram Sagar Yadav
and others (AIR 1985 SC 416) and Ramavati Devi
Vs. State of Bihar (AIR 1983 SC 164).

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(iii) The Court has to scrutinize the dying
declaration carefully and must ensure that the
declaration is not the result of tutoring,
prompting or imagination. The deceased had an
opportunity to observe and identify the
assailants and was in a fit state to make the
declaration. (See K. Ramachandra Reddy and
another Vs. The Public Prosecutor (AIR 1976
S.C. 1994)."

¶42

(xi) Where there are more than one statement
in the nature of dying declaration, one first
in point of time must be preferred. Of
course, if the plurality of dying declarations
could be held to be trustworthy and reliable,
it has to be accepted. (See Mohanlal Gangaram
Gehani Vs. State of Maharashtra (AIR 1982 SC
839).

¶43

12.In view of the above legal backdrop, in the
present case, there is consistency in the dying
declarations (Exhibits 19, 21 and 22) which have been
duly proved by PW6, PW7 and PW13 apart from the material
placed on the record by the prosecution through the
Police Officers which includes Post Mortem Report, Spot
Panchanama, Medical Certificates and surrounding
circumstances.

¶44

13.Exhibit-19, is the first declaration/statement
of the deceased dated 27th November, 1992, which was
produced and proved by PW6 Dr.Ananda More, who had
treated the deceased and got the case history recorded

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through his Assistant A.A. Naik (PW11). Mr. Naik had
obtained the thumb impression of the deceased apart from
her signature. As per PW6, the deceased was conscious
and in a fit state of mind to give statement. PW6 had
also endorsed the said statement and corroborated its
contents being correct as per the version of the
deceased. The basic extract of the said statement, as
relevant, is reproduced as under:

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"Today in the morning in my room (In the room
of Shri Namdeo Bhosale) he threatened to me
and told me to get and set fire. I say that
if you want to set fire you yourself do it.
Shri Raju Shete poured kerosene on my person
and set fire and again by pouring water he ran
away from the room. All persons (from the
lane) though saw me, none came to my help. I
went alone to the Hospital for treatment."

¶48

The above statement of the deceased is further found in
Exhibit-21 dated 27th November, 1992, and again proved
through PW6, as it was recorded as per the version of
the deceased which is marked as Exhibit-21. PSI Shinde
has further corroborated that the deceased was conscious
and the said statement was recorded in his presence.
The said statement (Exhibit-21) was further endorsed and
signed by PSI Shinde. The fit mental condition of the
deceased was also recorded and proved through Exhibit-20
by PW6 and Exhibit-20A by PW12. In Exhibit-21 the
deceased had given an elaborated history and the

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background that resulted into the incident in question.
She was in no way disturbed and/or had not given
distorted version of the dying declaration (Exhibit-19)
as reproduced above. There is material to justify the
prosecution case and as declared by the deceased in her
statement that after the incident no neighbour or anyone
else helped her. She was lying in the house for a long
time from 10.00 a.m. onwards. She got herself
hospitalised at the PHC, Dhalgaon, at about 1.00 to 1.30
p.m. This further supports that even in such injured
condition i.e. 68% burns, the deceased was fully
conscious and was able to reach to the hospital. The
deceased had also confessed about her illicit

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relationship with the appellant since more than two
years. She had further stated that after the appellant
got married, he stopped maintaining her. There was
constant quarrel between the two on that issue. This
also means that there was a motive to commit the crime
in question in order to get rid of the deceased.

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14.The next relevant Exhibit-27, further supports
the prosecution case which was duly proved by PW7 SEM
Sangli. On the requisition of the Head Constable
Paithane (PW9) at about 10.45 p.m., he reached to the
Civil Hospital, Sangli, to record the dying declaration
in question. After completing all the formalities,

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including the verification of the mental state of the
patient, as confirmed by Dr. More, the SEM, after
recording the statement, also got the thumb impression
of the deceased. The SEM had completed all the
formalities by disclosing his identity and reason for
recording such a statement. The SEM has also stated
that the deceased was conscious and was in the fit state
of mind to give the statement. This last statement
which was recorded at about 11.00 p.m. in the night of
27th November, 1992, by the SEM, also corroborates her
original statement (Exhibit-19). The extract is as
under:

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"thereon he poured the kerosene oil in the
bottle from my room on my person; that time,
I was crying then immediately lighted match
stick by abusing and set fire to my body. At
that time there was tericot saree, hence, it
got fired and also my body fired. I feared
and shouted. At that time my paramour Raju
Shete poured water for extinguish to me and he
ran away from the room. Then I myself went by
walk to the Government Hospital at Dhalgaon.
I am taken treatment there. And then at about
6.00 P.M. Kavathe-Mahankar police sent to
Civil Hospital, Sangli, for further
treatment."

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15.In view of the above background, the Sessions
Judge committed no error in convicting the appellant
under Section 302 of the IPC, even though the other
witnesses and basically the neighbours were declared

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hostile. We are also convinced that there is no force
in the contentions as raised by the counsel appearing
for the appellant on the ground of non mentioning of the
time on the first dying declaration and absence of
endorsement about the mental condition of the patient.
PW6 Dr. More was present when the dying declaration was
recorded by PSI Shinde on the same day, wherein there
was positive statement and endorsement about the
conscious and fit mental condition of the deceased. The
endorsement at the top or at the bottom of the statement
is immaterial. The evidence of PW6 read with the
evidence of PW12 PSI Shinde, remained undisturbed
insofar as the contents of the dying declaration made by
the deceased. There are no serious infirmities of any
kind in the dying declarations in question. The SEM who
had recorded the dying declaration at 11.45 p.m., even
though not in question-answer form, still, in view of
the law laid down by the Apex Court as referred above
and in the facts and circumstances of the case, the last
dying declaration recorded by the SEM further supports
the prosecution case fully. There is no force in the
contention raised by the learned counsel appearing for
the appellant that the deceased was not conscious and
she was unfit to make such statements. On the contrary,
there is sufficient material to justify the prosecution
case that the deceased was conscious and in the fit

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mental condition to make such statements. All the
declarations/statements made by the deceased were
consistent and clear against the appellant. There is
nothing brought on the record to justify the defence
case of any influence or probability of tutoring during
this period. The deceased died on 30th November, 1992.
The declarations, as recorded, remained the same till
her death. There is no discrepancy or contradiction in
the respective three reliable and trustworthy dying
declarations of the deceased (see Muthu Kutty) (supra) .

¶61

16.The evidence of PW12 read with the evidence of
PW9 and PW11 proved beyond reasonable doubt, the
genuineness of the prosecution case including the dying
declarations in question. The second dying declaration
recorded by PSI Shinde was treated as a first
information report. The contents of the dying
declaration of the deceased, insofar as illicit
relations with the appellant are further corroborated
and reflected in the evidence of PW5, the father of the
deceased.

¶62

17.The appellant, in his statement under Section
313 of the Criminal Procedure Code, even though denied
the illicit relation with the deceased, was quite sure
about her alleged immoral character. No defence witness

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was examined.

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18.Merely because no other independent witness,
including the neighbours supported the case of the
prosecution, in the facts and circumstances and in view
of the three consistent declarations made by the
deceased, we are also convinced that the appellant and
no one else had committed the crime. As recorded above,
such consistent dying declarations of the deceased are
sufficient to convict the accused, even though not
supported by any other independent witness. See Muthu
Kutty (supra).

¶66

19.PW6 Dr.More was unable to make out a case of
any trace of the water truly on the person of the
deceased as reflected in the above dying declarations,
but that by itself is no reason to accept the case of
the defence that the appellant was not present at the
site, at the relevant time. The delay in reaching the
hospital which was 2 Kms. away from her house, as she
reached the hospital at about 1.30 p.m. as the incident
took place at about 10.00 a.m. itself is no reason to
disturb the prosecution case. There is uncontradicted
material on the record to show that the deceased, in an
injured condition reached the hospital on her own by
walking. There is no material to support the defence

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case that her condition had deteriorated during these
five hours as she was without any treatment.

¶69

20.For the above reasons and also for the reasons
recorded by the learned Sessions Judge, we are also of
the view that the prosecution has proved beyond
reasonable doubt by clinching and reliable evidence of
dying declarations as referred above, that the
appellant-accused had the motive and intention and
accordingly, by pouring kerosene on the person of the
deceased, set her on fire, which resulted into her
death. Therefore, the order of conviction under Section
302 as passed by the Sessions Judge is correct and
proper and it is within the framework of law, as well
as, the record.

¶70

21.Taking all the factors into account, the
Appeal is dismissed. The judgment and order dated 30th
March, 1996, passed in Sessions Case No.26 of 1993 is
confirmed. The bail bond stands cancelled. Appeal is
accordingly disposed of. Accused shall surrender within
four weeks.

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[S.S. PARKAR, J.]

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[ANOOP V. MOHTA, J.]

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[srpasha@hc]

Raju Shankar Shete v. the State of Maharashtra.

Case brief

What is this about?

What did the court decide?

Raju Shankar Shete v. the State of Maharashtra.

Case brief

What is this about?

What did the court decide?

What the court decided

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