Radhakisan Dhondiba Bhalekar Vs State of Maha — Murder and Culpable Homicide | Bombay HC (2018)

Radhakisan Dhondiba Bhalekar Vs State of Maha — Murder and Culpable Homicide | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.710 OF 2002

Radhakisan s/o Dhondiba Bhalekar,
Age-32 years, Occu:Labourer,
R/o-Ranjangaon,

Tq. & Dist-Aurangabad.

...APPELLANT

 VERSUS

The State of Maharashtra

...RESPONDENT

 ...
 Mr.A.K. Bhosle Advocate for Appellant.
 Mr.S.M. Ganachari, A.P.P. for Respondent-State.

...

WITH

 CRIMINAL APPEAL NO.100 OF 2003

1) Ramabai w/o Govindrao Shirsath, Age-50 years, Occu:Labour,

 R/o-Ranjangaon,

 Tq. & Dist-Aurangabad,

2) Mayabai w/o Ananda Salve, Age-32 years, Occu:Household,

 R/o-As Above.

...APPELLANTS

 VERSUS

The State of Maharashtra

...RESPONDENT

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...

 Mr.A.K. Bhosle Advocate h/f. Mr. S.K. Barlota
 Advocate for Appellants.
 Mr.S.M. Ganachari, A.P.P. for Respondent-State.

...

CORAM: S.S. SHINDE AND
 S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 23RD FEBRUARY, 2018

 DATE OF PRONOUNCING JUDGMENT: 27TH FEBRUARY, 2018

JUDGMENT [PER S.S. SHINDE, J.]:

1. As both these Criminal Appeals are

arising out of one and the same Judgment and order
passed by the trial Court, both these Appeals are
heard together and being decided by this common
Judgment.

2.Both these Appeals are directed against
the Judgment and order dated 10th December, 2002

passed by the III Ad-hoc Additional Sessions
Judge, Aurangabad in Sessions Case No.331 of 2000
thereby convicting accused No.1 - Radhakishan s/o
Dhondiba Bhalekar, accused No.2 - Ramabai w/o

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Govindrao Shirsat and accused No.3 Mayabai w/o
Ananda Salve for the offence punishable under
Section 302 read with 34 of the Indian Penal Code
(for short "I.P. Code") and sentencing them to
undergo imprisonment for life. Accused No.1 is
directed to pay fine of Rs.2000/- and in default
to undergo three months simple imprisonment.
Accused Nos.2 and 3 are directed to pay fine of
Rs.500/- each and in default to undergo one month
simple imprisonment. Criminal Appeal No.170 of
2002 is filed by accused No.1 - Radhakishan s/o
Dhondiba Bhalekar and Criminal Appeal No.100 of
2003 is filed by accused No.2 - Ramabai w/o
Govindrao Shirsat and accused No.3 - Mayabai w/o
Ananda Salve.

3.The prosecution case, in brief, is as

under:-

A)On 7th October, 2000, at 9.00 hours,
there was report of MLC No.13084 from Ghati

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Hospital to Police Station, Jawaharnagar. It
appears that PSI Nikam was directed to inquire and
record statement of the injured and accordingly he
went to Ghati Hospital and recorded the statement
of Shakuntalabai Radhakishan Bhalekar. The said
statement was treated as her complaint and on the
basis of the same, Crime No.229 of 2000 was
registered, under Section 307 read with 34 of the
I.P. Code.

B)In the said statement Shakuntalabai has
stated that she is staying with her husband, two
sons, namely Ajay aged 11 years and Vijay aged 8
years. The husband does agriculture work and deals
in plots business. The character of the husband
was not good and he was bringing women at home.
When she was trying to prohibit, her husband used
to beat her. She had told this fact to her parents
and brothers and they had persuaded the husband,
but his relations with them became strained and
they were not allowed to come in the house of her

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husband.

C)On 7th October, 2000, at 9.00 a.m., her

husband brought one Shirsatbai along with one
Mayabai, whose full name was not known to
Shakuntalabai. She had asked the husband why those
ladies were brought. Whereupon her husband abused

her and said that for the earlier night he was in
the house of those two ladies and she can do
whatever she like. Husband also gave threat that
if she came in his way and talks something, he
would murder her. Getting annoyed, those two
ladies and her husband, poured kerosene on the
person of Shakuntalabai and all the three accused

threw burning match sticks on her. She shouted,
but no one extinguished the fire. The neighbours
got knowledge and the husband and the neighbours
brought Shakuntalabai in the vehicle of her
husband to the hospital.

D)Raghunath Nikam, PSI himself took the

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investigation in his hand. He drew the spot

panchnama, and plastic can, plastic bottle, one
used match stick were attached. He arrested the

accused No.1 first, recorded statement of
witnesses. He later on arrested accused Nos.2

and 3. On 12th October, 2000 Shakuntalabai
expired. Her inquest was drawn, post-mortem notes
were collected, crime was converted to offence
under Section 302 of the I.P. Code. After

completion of investigation, on 13th December,
2000 the charge-sheet was submitted. Learned
Judicial Magistrate, First Class, Aurangabad, by

his order dated 13th December, 2000, committed the
case for trial to the Court of Sessions.

E)A charge under Section 498-A, 302 read

with 34 of the I.P. Code was framed against

accused No.1 and charge under Section 302 read
with 34 was framed against accused Nos.2 and 3,

and the same was explained to them. The
accused pleaded not guilty and claimed to be

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tried. The defence of accused No.1 is that, for
grudge with the PSI, he being the social worker,
at the instance of his opponents, the false case
has been filed.

4. After recording the evidence and

conducting full fledged trial, the trial Court
convicted accused No.1 - Radhakishan s/o Dhondiba
Bhalekar, accused No.2 - Ramabai w/o Govindrao
Shirsat and accused No.3 Mayabai w/o Ananda Salve
for the offence punishable under Section 302 read
with 34 of the I.P. Code and sentenced them to
undergo imprisonment for life and to pay fine, as
afore-stated. Hence both these Appeals are
preferred by accused Nos.1, 2 and 3 challenging
the conviction and sentence.

5.Heard learned counsel appearing for the
Appellants in both the Appeals. Mr. Bhosale,
learned counsel submits that the trial Court has
not considered the evidence in its proper

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perspective. It is submitted that the trial Court
has given much more importance to the suggestions

and has held that defence has not given
suggestions that incident is either suicidal or
accidental. Learned counsel further submits that

the prosecution has not proved that accused No.1
was having illicit relations with accused Nos.2
and 3. The Prosecution has failed to establish
that accused Nos.2 and 3 were present at the spot

when the alleged incident took place. It is
submitted that the prosecution has relied upon two
dying declarations, one recorded by the Special

Executive Magistrate and another recorded by
investigating officer, PSI Nikam. Trial Court
itself discarded the evidence of Special Executive
Magistrate, who turned hostile. It is submitted
that the other witnesses to the spot panchnama,
neighbours and even the brother of the deceased
turned hostile and they did not support the
prosecution case. The only evidence against the
accused is of the investigating officer, which is

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not sufficient to record the conviction. It is
submitted that it is highly improbable that all
the three accused poured kerosene and all of them
threw match stick and set Shakuntalabai on fire.
Thus both the dying declarations are unbelievable

and far from truth and the same are not
corroborated by circumstantial evidence as spot
panchnama reveals that only one match stick and
only one can was found on the spot. Even though it
is alleged in dying declaration that both sons of
deceased extinguished the fire, they were not
examined by the prosecution. On both the dying
declaration there is no endorsement of the doctor
that the patient was well oriented and was
physically and mentally fit. There is no timing on
both the dying declaration as to when the same
were recorded, when recording was started and when

it was completed. It is admitted position that
Shakuntalabai received 92% burns and therefore it

goes without saying that she was not conscious and
was unable to speak. In support of his

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submissions, learned counsel placed reliance upon
the exposition of law in the case of Uka Ram vs.
State of Rajasthan1, Panchdeo Singh vs. State of
Bihar2, Ram Nath Madhoprasad and others vs. State
of M.P.3 . Learned counsel submits that Special
Executive Magistrate admitted in his examination
in chief that he produced Photostat copy of the
dying declaration recorded by him and original was
not produced by him. Learned counsel submits that

when original dying declaration was available,
Photostat copy of the same cannot be relied upon.
In support of his submissions, he placed reliance

upon the exposition of law in the case of
Brundaban Moharana and another vs. State of
Orissa4. Therefore, learned counsel submits that
both the Appeals deserve to be allowed.

6.On the other hand, learned A.P.P. submits

that though the case of the prosecution is based

1 2001 AIR (SC) 1814

2 2002 AIR (SC) 526

3 1953 AIR (SC) 420

4 (2010) 13 SCC 381

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on the circumstantial evidence, the chain of

circumstances has been established beyond
reasonable doubt by the prosecution. The
prosecution has proved that accused No.1 was
having illicit relations with accused Nos.2 and 3

and as the deceased Shakuntalabai was opposing for
such relations, all the accused in furtherance of
their common intention, poured kerosene on the
person of Shakuntalabai and set her on fire. He
further submits that after considering the entire
evidence brought on record the trial Court has
convicted all the three accused and the findings
recorded by the trial Court are in consonance with
the evidence brought on record. He therefore,
submits that both the Appeals may be dismissed.

7.Admittedly in the present case there is

no eye witness to the incident and the case is
based upon the circumstantial evidence. To prove

its case, the prosecution has examined five
witnesses. PW-1 Sahebrao s/o Anna Ware is a panch

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witness to the spot panchnama Exhibit-18. This
witness turned hostile and did not support the
prosecution and therefore his evidence is not
useful to the prosecution case.

8. PW-2 Ankush s/o Keshavrao Bhise is a

Special Executive Magistrate who recorded dying
declaration Exhibit-20. He deposed that during
relevant time he was appointed as Special
Executive Magistrate. He is shown the statement
and it was recorded by him. It is the dying
declaration of Shakuntalabai Radhakishan dated 7th
October, 2000. It was recorded in Ghati Hospital.
After taking down the statement he had taken right
foot thumb mark of the lady and he had signed it
(Exhibit 20). Phule constable from Jawaharnagar
police station had given him written letter. Said
constable had taken the witness to Ghati Hospital.
He further deposed that he went to Burn Ward. He

had asked the doctor as to who was the patient and
doctor pointed out the patient. He had orally

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asked the doctor whether the patient was in a
condition to make the statement and doctor gave
affirmative reply. The doctor had given it to him
in writing also. The said endorsement is on the
letter given to him by the police. He has not
brought that letter. Then he recorded the
statement of the lady. He had given the copy of
that statement to head constable Phule and
retained original with him which is at his house.

.During the course of cross-examination,

PW-2 Ankush stated that the relatives of the

patient were sitting by her side. He had asked the
relatives to go out. The patient was on saline. He
admits that due to pains she was crying. It was
happened that when he was putting the questions,
she was keeping quiet and giving abrupt reply.

Some wording were clear and some were unclear. The
constable had given him the information about the

incident. What words wre not legible on the
strength of information I utilized those words. I

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had taken only one thumb mark of the lady after
recording the statement. After his last question,
she had gone in coma.

9.Thus, PW-2 Ankush admitted in his cross-

examination that Shakuntalabai was crying because
of severe pains, she did not answer the questions
put to her promptly, she answered the questions
abruptly, some wordings were clear and some were
not clear. PW-2 Ankush has not clarified which
portion of her dying declaration was clear and
audible and which portion of her dying declaration

was not audible. He further stated that after he
asked last question, the patient has gone in coma.
Thus explicit reliance cannot be placed on the
oral testimony of this witness.

10.We have carefully perused the dying
declaration, Exhibit 20, recorded by PW-2 Ankush.
Though PW-2 has deposed that before recording
dying declaration, he asked the doctor to examine

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whether the patient is well oriented and
physically and mentally fit to give dying
declaration, there is no such endorsement on the
dying declaration Exhibit 20. It is also pertinent
to note that in all three thumb impressions are
appearing on the dying declaration Exhibit 20.

11.PW-3 Bhikanrao s/o Kondbaji Muneshwar, is

neighbour of accused No.1. He also turned hostile
and did not support the prosecution. Though he was
cross-examined by the learned A.P.P. nothing
useful to the prosecution has been elicited from
him.

12.PW-4 Bhausaheb s/o Gangadhar Bhosle is a
brother of deceased Shakuntalabai. Even he did not
support the prosecution and turned hostile. Though
he was cross-examined at length by the learned
A.P.P. with the prior permission of the trial

Court, he denied all the suggestions put to him.

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13.PW-5 Raghunath s/o Ambuji Nikam, is the

investigating officer and he has also recorded
second dying declaration Exhibit 27. He deposed
that on 7th October, 2000 when he was attached to
Jawaharnagar police station, Aurangabad, he was
directed to record statement of Shakuntala by
visiting Ghati Hospital in the MLC. Accordingly,
he went to Ghati Hospital. In writing he requested

the doctor to give endorsement whether
Shakuntalabai was in a position to make the
statement. Examining the patient the doctor
endorsed that patient was in a position to make

the statement. He disclosed his identity to the
patient and as stated by her, recorded her
statement. He had taken foot thumb mark of the

lady on her statement and he had also signed. He
has proved the dying declaration Exhibit-27. He

deposed that the very statement was brought to the

police station and under the guidance of the

superior, crime was registered. He further deposed
about the manner in which he has carried out the

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investigation.

.PW-5 Nikam further deposed that he had

recorded statement of Bhikanrao, PW-3. He further
deposed what PW-3 Bhikanrao stated before him.
Admittedly, PW-3 Bhikanrao turned hostile and did
not support his statement given before the police.
PW-5 Nikam further deposed that he had recorded
statement of Bhausaheb, PW-4 and also deposed what

PW-4 stated before him. Admittedly, this witness
PW-4 Bhausaheb also turned hostile.

.During the course of cross-examination,

PW-5 Nikam admitted that he was given the earlier
dying declaration and after reading it he had gone

to Ghati Hospital to record the statement of the
patient. The doctor has given oral permission to
record the statement. He was wearing uniform. The
lady did not speak in village language. The lady

was shouting, crying due to pains. Various
questions were put to the lady. He had only taken

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down the answers. This witness specifically admits
that on the dying declaration no time is given
when it was recorded and when it was completed.

14.Thus on conjoint reading the evidence of

Special Executive Magistrate PW-2 Ankush and
investigating officer PW-5 Nikam, it is clear that
both of them have not put timings on the dying
declarations as when the recording was started and
when it was completed. But one thing is clear that
first dying declaration was recorded by PW-2
Ankush, Special Executive Magistrate and then
second was recorded by investigating officer
Nikam. PW-2 Ankush specifically stated in his
cross-examination that after last question was put
by him, the patient had gone in coma. Thereafter,
as per the version of PW-5 Nikam, he has recorded
the dying declaration. When PW-2 states that after
he recorded dying declaration patient had gone in

coma, then it is difficult to believe that
thereafter second dying declaration was recorded

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by the investigating officer.

15.As stated above, on both the dying

declarations there is no endorsement put by the
doctor that the patient was well oriented and
physically and mentally fit to give such
declaration. In this behalf learned counsel

appearing for the Appellants has rightly placed
reliance on the exposition of law in the case of
Panchdeo Singh vs. State of Bihar, cited supra.
Para 11 of the Judgment reads as under:

"11. Before so doing, a look at the
decision of this Court in Rosamma
(Paparambaka Rosamma and others v. State of
A.P., 1999(4) RCR(Cri.) 104 (SC): 1999(7)
SCC 695) would be of some relevance wherein
this Court observed that where conviction
is solely based on the dying declaration
there is an obligation on the part of the
Court to consider with extreme care and
caution both the dying declaration as also
the evidence of the witnesses supporting
it. In Rosamma (supra) the doctor was also

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examined and the doctor appended a
certificate at the end of the declaration
that the patient is "conscious while
recording the statement". It is on this,
this Court observed that the question that
needs to be considered is as to whether the
Magistrate could have come to a definite
conclusion that the injured was in a fit
state of mind to make the declaration in
the absence of a certificate by the doctor
certifying the state of the mind that
existed before recording the dying
declaration and this Court opined that in
the absence of a medical certificate that
the injured was in a fit state of mind at
the time of making that declaration, it
would be very risky to accept the
subjective satisfaction of the Magistrate,
who opined that the injured was in a fit
state of mind at the time of making a
declaration. In Rosamma (supra) noting of
the state of mind of the declarant before
making the statement by the doctor has been
stated to be an essential requirement for
the prosecution to prove - incidentally -
mere certification by even a doctor at the
end of the declaration that the patient is
conscious while recording the statement was
stated to be not sufficient - this is so by
reason of the factum of the dying

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declaration being only the circumstance for
conviction and sentence of the accused.
Presently, however, there is not even a
doctor's certification as regards the state
of the condition of the declarant. It is
only the Judicial Magistrate, who has
stated from the witness box that the
declarant was in a fit condition to make
the statement and he was otherwise
satisfied in regard thereto. The doctor was
available since the Magistrate named him as
Dr. Raman Shanker Prasad but unfortunately
there is neither any certification nor even
a signature of the doctor in the
declaration.

12.As noticed above, declaration
itself can be treated as a substantive
piece of evidence and can be the basis of
an Order of conviction and sentence without
there being any corroboration, provided,
however, the same brings forth sense of
confidence and trustworthiness in the mind
of the Court - why did not the doctor
certify the fitness of the person making
the statement or even append his signature,
there is no answer to the same. The
Magistrate also did not recollect as to
whether the deceased did put his signature
or not but since there is no mention of

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"L.T.I." before "Ram Singh" obviously left
thumb impression is not there on the dying
declaration. This is the declaration which
happened to be the only material piece of
evidence on the basis of which the trial
Court came to a conclusion that the
appellant herein ought to be found guilty
under Section 302 Indian penal Code
warranting sentence of life imprisonment.
The decision of this Court in Rosamma
(supra) directly runs counter to the
judgment under appeal. In our view it is
not otherwise a very safe piece of evidence
to rely upon for conviction under Section
302 Indian Penal Code. The declaration must
be such so as to evoke confidence in the
factual context. However, we are unable to
record our confidence on such a declaration
so as to lend support and concurrence to
the judgment under appeal. As noticed
above, Rosamma (supra) decides counter and
we do record our respectful agreement,
apart from being a larger Bench judgment
which should act as a binding precedent,
with the observations and findings and on
the wake of the aforesaid we are of the
view that the High Court fell into a
manifest error. The judgment under appeal
thus cannot be sustained. The appeal is
thus allowed. The appellant be released

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forthwith, if not wanted in any other
case."

16.As stated above, in the present case also

there is no eye witness and the case is based on
circumstantial evidence. The trial Court has based
the conviction on the two dying declarations, one

recorded by the Special Executive Magistrate and
another recorded by the investigating officer. As
observed earlier, on both the dying declarations,
there is no endorsement of the doctor certifying
that the patient was well oriented and physically

and mentally fit to give such declaration.
Therefore, it would be unsafe to base the

conviction of the Appellants on such dying
declarations.

17.If the dying declaration Exhibit 27,

recorded by the investigating officer PW-5 Nikam
is perused, it starts with the sentence that:-

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" le{k fopkjys o:u fygwu nsrs dh] "

 [as asked, I am giving in writing]

.It means that dying declaration was

written by the patient herself. Learned A.P.P.
submits that by mistake the above-said words were
written in the dying declaration. In this respect,

reference can be made to the exposition of law by
the Supreme Court in the case of Ram nath
Madhoprasad and others vs. State of M.P., cited
supra, wherein in Para 16 of the Judgment it is
held that:

"In the case of a dying declaration
where the exact words stated by a
deceased matter and are of importance,
a suggestion of the kind that the
deceased might have said something by a
mistake cannot be entertained."

18.

Taking overall view of the matter,

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admittedly, it is brought on record that
Shakuntalai received 92% burns, therefore it is
difficult to accept that she was in a position to
give dying declaration. The panch to spot
panchnama turned hostile and the spot panchnama is

not proved. Though it is stated that incident had
taken place at 9.00 a.m., the spot panchnana was
prepared in the evening. The prosecution has not
brought on record any evidence to establish that
accused No.1 was having illicit relations with
accused Nos.2 and 3. The prosecution has not
proved that accused Nos.2 and 3 were present at

the spot when the alleged incident took place.
Though the contents of the first dying declaration
recorded by the Special Executive Magistrate
discloses cognizable offence, the said dying
declaration was not treated as F.I.R. or no F.I.R.

was registered on the basis of said dying
declaration. It is only after the second dying
declaration was recorded by the investigating
officer, the F.I.R. was registered. As observed

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earlier, it is stated by the Special Executive
Magistrate that after he asked last question, the
patient went in coma, and it is a matter of record
that investigating officer stated that thereafter
he recorded the dying declaration. Learned counsel
appearing for the Appellants invites our attention
to the post-mortem notes and in particular, column
No.20 thereof, wherein it is endorsed that walls
of Thorax were partly burnt. Therefore, we find
considerable force in the arguments of learned
counsel appearing for the Appellant that when
Shakuntalabai was admitted in hospital, she was
not in a condition to speak and therefore no
reliance can be placed on the dying declarations
to base the conviction of the Appellants.

19.The Constitution Bench of the Supreme
Court in the case of Laxman V/s State of
Maharashtra5in para no. 3 held thus :-

“... There is no requirement of law that a

2002 Cri.L.J. 4095

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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, what 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."

Underlines added.

20.In the present case, upon careful perusal
of both the dying declarations, it is clear that
both, PW-2 Special Executive Magistrate and PW-5
investigating officer who recorded the dying

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declarations, have not satisfied themselves, by
asking certain questions to the patient, that she

was in a fit state of mind to give such
declaration. Therefore both the dying declarations
are not trustworthy and reliable and conviction
cannot be based upon such dying declarations,
where there is no corroborative evidence.

21.In the light of discussion in foregoing

paragraphs, we are of the considered view that the
entire prosecution case rests upon the
circumstantial evidence and the evidence brought

on record by the prosecution is not cogent,
sufficient and convincing so as to prove the

offence against the Appellants beyond reasonable
doubt. Therefore, an inevitable conclusion is that
the Appellants are entitled for the benefit of
doubt. Hence, we pass following order:

O R D E R

(I) Both the Criminal Appeals are

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allowed.

(II) The impugned Judgment and order
dated 10th December, 2002 passed by the
III Ad-hoc Additional Sessions Judge,
Aurangabad in Sessions Case No.331 of
2000 convicting and sentencing accused
No.1 - Radhakishan s/o Dhondiba
Bhalekar, accused No.2 - Ramabai w/o
Govindrao Shirsat and accused No.3
Mayabai w/o Ananda Salve for the
offence punishable under Section 302
read with 34 of the Indian Penal Code,
is quashed and set aside.

(III) Appellants - Radhakishan s/o
DhondibaBhalekar,Ramabaiw/o
Govindrao Shirsat and Mayabai w/o
Ananda Salve are acquitted of the
offence punishable under Section 302
read with 34 of the Indian Penal Code.
Fine amount, if deposited as per the
impugned Judgment and order, be
refunded to the Appellants.

(IV) The Appellants are released on
bail during the pendency of these

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Appeals. The bail bond of the
Appellants shall stand cancelled.

(V) Appellants - Radhakishan s/o
DhondibaBhalekar,Ramabaiw/o
Govindrao Shirsat and Mayabai w/o
Ananda Salve shall furnish the fresh
personal bonds of Rs.15,000/- each and
surety of like amount each under
Section 437-A of the Code of Criminal
Procedure, before the concerned trial
Court at Aurangabad.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/FEB18