Allowed

Govind Motiram Salve v. the State of Maharashtra

Bombay HC18 Nov 2014APEAL/688/2014

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction and sentence under Section 302 IPC. The court quashed the conviction because dying declarations were unreliable due to lack of proof they were read over, and no other evidence established the nexus between the accused's injuries and the crime.

What did the court decide?

Conviction and sentence under Section 302 IPC quashed and set aside; Appellant acquitted and released forthwith.

Govind Motiram Salve Vs the State of Maharashtra — Murder and Culpable Homicide | Bombay HC (2014)

¶1

APEAL 688.14 Judt..sxw

¶2

¶3

JPP

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION

¶5

CRIMINAL APPEAL NO. 688 OF 2014

¶6

Govind Moiram Salve, age 45 yrs., Occu. - Labour, R/at Sathe Nagar, Near Sonawane College, Kalyan (W) Dist. Thane. (presently in Judicial Custody at Nashik Central Prison, Nashik).

¶7

... Appellant.

¶8

V/s.

¶9

The State of Maharashtra. (at the instance of Bajarpeth Police Station, Kalyan)

¶10

... Respondent.

¶11

Mr. Nitin Uttam Jadhav for the Appellant. Ms. U.V. Kejriwal, APP for the State.

¶12

CORAM : P.V. HARDAS &

¶13

G.S. KULKARNI, JJ.

¶14

NOVEMBER 18, 2014.

¶15

ORAL JUDGMENT (PER P.V. HARDAS, J.) :-

¶16

The Appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of

¶17

Rs.1,000/- in default of which to undergo further simple imprisonment for one month, by the Ad-hoc District Judge – 2

¶18

2 APEAL 688.14 Judt..sxw

¶19

and Additional Sessions Judge, Kalyan, by Judgment dated 11.7.2014 in Sessions Case No.221 of 2012, by this Appeal questions the correctness of his conviction and sentence.

¶20

Though this Appeal is of the year 2014, this Appeal was added to the final hearing board pursuant to the order passed by us in Criminal Application No.1164 of 2014 on 31.10.2014. Since we had found that the conviction was based on the two dying declarations and in the light of the infirmities which were brought to our notice, we considered it appropriate to direct the listing of the Appeal for final hearing after receipt of Record and Proceedings and dispensing with the preparation of formal paper-book. Pursuant to the said directions, the Appeal has been added to the final hearing board and since a fixed date was granted, Appeal is heard by us.

¶21

Facts in brief as are necessary for the decision of this Appeal may be stated thus.

¶22

PW-5 PSI Sachin Shirke, who was attached to the

¶23

3 APEAL 688.14 Judt..sxw

¶24

Bajarpeth Police Station and was on duty on 25.3.2012, received a MLC from the Rukminibai Hospital about the admission of an injured lady named Radha in the Hospital. On receipt of the MLC, PW-5 PSI Sachin Shirke alongwith the other police staff went to the Rukminibai Hospital and contacted the Medical Officer. He requested the Medical Officer to ascertain if the injured was in a fit condition to give her statement. The Medical Officer accordingly endorsed that injured Radha was in a fit condition to give her statement. PW-5 PSI Shirke then recorded the statement of Radha in which Radha had stated

¶25

that the Appellant had returned home in an inebriated condition and after quarreling with her took a can of kerosene and poured kerosene on Radha and set her ablaze. On sustaining the burns, Radha shouted loudly and the neighbours then brought her to the Hospital. PW-5 PSI Shirke obtained the thumb impression of Radha on the statement at Exhibit 19. On the basis of the statement of Radha at Exhibit 19, an offence vide Crime No. 76 of 2012 was registered under Section 307 of the Indian Penal Code. PW-5 PSI Shirke then drew the spot panchnama of the house at Exhibit 20. From the scene of the incident, he seized one plastic can,

¶26

4 APEAL 688.14 Judt..sxw

¶27

pieces of burnt saree and one match box. The Appellant was arrested by Police Constable Tayade and brought to the Police Station. The accused was referred for medical examination alongwith the requisition at Exhibit 21. The Appellant was examined by PW-10 Dr. Jivak Ghadge, who noticed burn injury on the ventral aspect of right forearm 4 cm x 2 cm. multiple burns ½ cm x ½ cm over right forearm with 4 superficial burns 1 cm x 1 cm over right ankle. He was accordingly advised application of an ointment on the injuries. The injury certificate is at Exhibit 44. The extract of the MLC register is at Exhibit 45. Statements of witnesses were recorded. The injured Radha was shifted to the Thane Civil Hospital and succumbed to her injuries on 10.4.2012. Inquest panchnama was drawn and Section 302 of the Indian Penal Code was added. On 21.6.2012, the seized property was referred for chemical examination under requisition at Exhibit 27. Further to the completion of investigation, a charge-sheet against the Appellant was filed.

¶28

It appears that PW-9 Jairam Pathare, who was conferred with the powers of Executive Magistrate, received a

¶29

5 APEAL 688.14 Judt..sxw

¶30

requisition from the Tahasildar for recording the dying declaration. He accordingly proceeded to the Civil Hospital, Thane and contacted Dr. Pingle and requested him to ascertain if Radha was in a fit condition to give her statement. Accordingly, he recorded the statement of Radha at Exhibit 40.

¶31

Postmortem on the dead body of deceased Radha was performed by PW-6 Dr. Sachin Rajput, who noticed that injured Radha had sustained 69% burns. He therefore opined that cause of death was due to burns. The Postmortem report is at Exhibit 29.

¶32

On the case being committed to the Court of Sessions, Trial Court framed charge against the Appellant for offence punishable under Section 302 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 10 witnesses. The defence of the Appellant was of denial. The Trial Court on appreciation of the evidence convicted and sentenced the Appellant as afore-stated.

¶33

APEAL 688.14 Judt..sxw

¶34

¶35

We have heard Mr. Nitin Jadhav, learned Counsel for the Appellant and the learned APP. In order to effectively deal with the submissions advanced before us by the learned Counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses.

¶36

Prosecution has examined PW-1 Kantabai on the point of Radha making an oral dying declaration to her. Prosecution has also examined PW-2 Anil and PW-3 Sandhya, panch witnesses to the spot panchnama as well as inquest panchnama. Prosecution has also examined PW-4 Pushpa on the point of oral dying declaration of Radha. PW-1 Kantabai, PW-2 Anil, PW-3 Sandhya and PW-4 Pushpa did not support the prosecution and therefore, no reliance can be placed on their testimony.

¶37

The case against the Appellant therefore rests on the two dying declarations at Exhibit 19 and Exhibit 40 recorded by PW-5 PSI Shirke and PW-9 Jairam Pathare respectively. In respect of the dying declaration at Exhibit 19

¶38

7 APEAL 688.14 Judt..sxw

¶39

as well as at Exhibit 40, we find that neither PW-5 PSI Shirke nor PW-9 Pathare have deposed that the contents of the dying declarations were read over to the declarant and the declarant had admitted the contents to have been correctly recorded. Thus, we find that in the dying declaration at Exhibit 19, there is no endorsement even on the dying declaration that the dying declaration had been read over to Radha. In the dying declaration at Exhibit 40, which is recorded in the printed proforma, there is an endorsement that it was read over to Radha. However, PW-9 Pathare does not depose about it. There is no presumption that merely because it was printed in the dying declaration, the dying declaration had been read over to the declarant.

¶40

The learned Counsel for the Appellant, who has ably argued the Appeal on behalf of the Appellant has urged before us that in the light of the Judgment of the Supreme Court in Shaikh Bakshu & Ors. v/s. State of Maharashtra (2008) 1 SCC (Cri.) 679 , which is referred to in the Division Bench Judgment of this Court in Abdul Riyaz Abdul Bashir v/s. State of Maharashtra (2012) All MR (Cri.) 2188, no

¶41

8 APEAL 688.14 Judt..sxw

¶42

reliance could be placed on the recitals of the two dying declarations for sustaining the conviction of the Appellant.

¶43

In the light of the ratio of the Judgments referred to above, in our opinion, no reliance whatsoever can be placed on the two dying declarations at Exhibits 19 and 40. If those two dying declarations are left out of consideration, we find that there is no evidence at all on the basis of which the conviction of the Appellant can be sustained. It appears that the son of the Appellant was an eye-witness to the incident but unfortunately, he has not been examined. The medical officer who had examined the Appellant has not deposed about the age of the injuries. Consequently, prosecution has not established the nexus between the injuries sustained by

¶44

the Appellant and the offence alleged to have been committed. Thus, we find that the Appellant is entitled to be given the benefit of doubt.

¶45

Accordingly, Criminal Appeal is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence

¶46

APEAL 688.14 Judt..sxw

¶47

¶48

with which he was charged and convicted. Fine, if paid by the Appellant, be refunded to him. Since the Appellant is in Jail, he be released forthwith if not required in any other case.

¶49

(G.S. KULKARNI, J.) (P.V. HARDAS, J.)

Govind Motiram Salve v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Govind Motiram Salve v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mahadev Dadu Aadsul Vs the State of Maharashtra

Ramprasad Vishwanath Gupta (Intervener) Vs the State of Maharashtra

Union of India Vs Nongawuza Pumla Caroline and Anr.

The State of Maharashtra Vs Shrikant Arjun Mardekar

Naresh Magan Patel and Ors. Vs the State of Maharashtra

Suhaib Abul Hasan Mulla Vs the State of Maharashtra and Ors.