Allowed

Navlabai S/O Gurubasappa Khajure and Others v. the State of Maharashtra

Bombay HC10 Jan 2019APEAL/497/2014

Case brief

AI extract

What is this about?

In this criminal appeal against life imprisonment and conviction for murder, the High Court held that the three dying declarations were grossly inconsistent and unreliable. The apex court allowed the appeal, quashed the lower court judgment, acquitted the appellants, and ordered their release.

What did the court decide?

Judgment of conviction set aside; appellants acquitted; defendants released on personal bonds of Rs.15,000 each.

Navlabai S/O Gurubasappa Khajure and Others Vs… — Murder and Culpable Homicide | Bombay HC (2019)

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Cri. Appeal No.497-2014.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.497 OF 2014

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1. Navlabai s/o. Gurubasappa Khajure,
 (Samudre), Age : 62 years,
 Occ. Agri., r/o. Belamb,
 Tq. Umarga, Dist. Osmanabad

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2. Gangabai Siddram Khajure
 (Samudre), Age : 32 years,
 Occ. Agriculturist
 r/o. As above

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3. Mallamabai d/o. Gurubasappa Khajure
 (Samudre), Age : 27 years,
 Occ. Agriculture,
 r/o. As above..Appellants
(Orig. accused
Nos.5,6 and 8)

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Vs.

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 The State of Maharashtra,
 through API Murud Police Station,
 Tq. Umerga, Dist. Oamanabad

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..Respondents

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Mr. S.B.Bhapkar, Advocate for appellants

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Mr. S.B.Joshi, APP for respondent

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 CORAM : S.S. SHINDE AND
 R.G. AVACHAT, JJ.
 DATE : JANUARY 10, 2019

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2 Cri. Appeal No.497-2014

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JUDGMENT (PER R.G. AVACHAT, J.) :-

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This appeal has been filed against the

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judgment and order dated 24.07.2014 passed by learned
Additional Sessions Judge, Omerga, whereby the
appellants herein were convicted for the offence
punishable under Section 302 read with Section 34 of
the Indian Penal Code and sentenced to suffer life
imprisonment and fine of Rs.10,000/- each. In default
of payment of fine amount, they were directed to
suffer rigorous imprisonment for one year. The
appellants herein were original accused nos.5, 6
and 8 before the Trial Court. Originally, there were
eight accused persons to face the trial. However, by
the impugned judgment and order, the other accused
persons have been acquitted. The State has not
preferred appeal against the order of acquittal.

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BRIEF FACTS :-

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2.Mahananada (deceased) was married to

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Dayanand (deceased) and was residing at Belamb, Tq.

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3 Cri. Appeal No.497-2014

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Omerga, Dist. Osmanabad. Dayanand passed away just
15 days before the fateful day i.e. 15.05.2011.
Appellant no.1 – Navlabai is mother-in-law of
deceased Mahananda. Appellant no.2 – Gangabai is
wife of brother-in-law of deceased Mahananda and
appellant no.3 is her sister-in-law.

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On 15.05.2011, Mahananda was rushed to rural

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hospital at Murum with more than 90% burn injuries.
PW 1 – Dr.Pravin, Medical Officer at Rural Hospital,
Murum, informed Murum Police Station about admission
of Mahananda to the hospital. The police personnel
rushed to the rural hospital. The relatives, who were
around Mahananda, were asked to leave for a while. PW
1 – Dr. Pravin medically examined Mahananada and
certified her to be conscious oriented to make a
statement. Since Mahananda did not understand Marathi

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language, the police officer called Mahananda's
maternal uncle for translating her statement in
Kannada language to Marathi. The Assistant Police
Inspector attached to Murum Police Station recorded

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4 Cri. Appeal No.497-2014

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Mahananda's statement (Exh.26) in question and answer

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form. Mahananda stated that she was set ablaze by the
appellants herein after having doused her with
kerosene. She further stated in her statement that
Jayabai (accused no.7), wife of Mahananda's brother-
in-law did not intervene to save her.

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3. As the condition of Mahananda was critical,
on advise of PW 1 – Dr. Prvain, she was shifted to
Civil Hospital, at Solapur. PW 6 - Dr.Suchita was
Casualty Medical Officer at the Civil Hospital, at
Solapur. She gave emergent treatment and certified
Mahananda to be conscious oriented to give a
statement. PW 3 – Anant was Awal Karkun serving with
Tahsil office at Solapur. The Tahsildar/Executive
Magistrate had directed him to rush to the Civil
Hospital for recording Mahananda's statement. PW 3 –
Anant recorded Mahananda's statement-cum-dying
declaration (Exh.34), wherein original accused nos.1,
3 to 5 and 8 were stated to be responsible to set her
on fire.

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5 Cri. Appeal No.497-2014

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4.On the following day, Mahananda succumbed to

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burn injuries. PW 8 – Sharanbasappa, brother of

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Mahananda, lodged the FIR (Exh.69), wherein he
claimed Mahananda to have made him oral dying
declaration stating that all accused nos.1 to 8 were
responsible for setting her ablaze. Pursuant to the

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FIR (Exh.69), crime vide C.R. No.56 of 2011 was

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registered. PW 10 – Santosh, the In-charge Police
Station Officer was entrusted with the investigation.
He visited the scene of offence and drew panchnama of

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situs (Exh.48), and inquest panchnama (Exh.76).
Post-mortem on Mahananda's dead body were conducted.

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Her clothes were seized. The accused persons were

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arrested. The statements of the persons acquainted

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with the facts and circumstances of the case, were
recorded. Seized articles were sent to the Regional
Forensic Laboratory, Aurangabad, for analysis and
report thereof. On completion of the investigation,

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Charge-sheet was filed before the Court of the
Judicial Magistrate, First Class, Omerga. Learned

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6 Cri. Appeal No.497-2014

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Judicial Magistrate, First Class, committed the case
to the Court of learned Additional Sessions Judge for
trial in accordance with law. Learned Trial Judge
framed Charge (Exh.6). The appellants pleaded not
guilty and claimed to be tried. It was the defence of
the accused persons that Mahananda set herself
ablaze.

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5.To bring home the Charge, the prosecution

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examined ten witnesses and tendered in evidence some
documents. The accused persons examined one witness
in their defence. On appreciation of the evidence,
learned Additional Sessions Judge convicted the
appellants herein and acquitted the other accused
persons.

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SUBMISSION :-

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6.Learned Counsel appearing for the appellants
would submit that the dying declarations have not
been duly proved. Mahananda did not understand
Marathi. A close relative of Mahananda interpreted

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7 Cri. Appeal No.497-2014

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her dying declaration. However, he has not been
examined. The condition of Mahananda was so critical

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that she was not conscious oriented to make a
statement. Learned counsel took us through the cross-
examination of PW-1 – Dr. Pravin and other Medical
Officers examined as witnesses in the case. According
to learned counsel, if the dying declarations held to
have been proved, they are mutually exclusive. None

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of the dying declarations relied upon by the
prosecution, would inspire confidence. In view of
learned counsel, the trial court ought not to have
relied upon such a peace of evidence to convict the
appellants herein. He, ultimately, urged to allow
the appeal.

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7.Learned A.P.P. would, on the other hand,
submit that the dying declarations have been duly
proved. The Trial Court did not err in holding the
appellants guilty of the offence. Learned APP,
ultimately, urged for maintaining the impugned
judgment and order.

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8 Cri. Appeal No.497-2014

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8.Two panch witnesses (PW 4 and PW 5) and
neighbor (PW 7) did not stand by the prosecution.
There is evidence of three medical officers, three
police personnel and one revenue officer.

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9.The case is based on two written dying

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declarations and oral one. This being appeal from
conviction, we are supposed to re-appreciate the
entire evidence. Before examining the evidence on
record, it is desirable to refer to the position of
law as regards evidenciary value of the dying
declarations and appreciation of evidence in the
nature multiple dying declarations.

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10.In the case of Khushal Rao Vs. State of

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Bombay, AIR 1958 SC 22, the Hon'ble Supreme Court
made following observations :-

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“16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to

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Cri. Appeal No.497-2014

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the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with

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reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test

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Cri. Appeal No.497-2014

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the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

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17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by crossexamination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration. If, on

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11 Cri. Appeal No.497-2014

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the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case.”

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In the case of State of Gujarat Vs. Jayrajbhai

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Punjabhai Varu, AIR 2016 SC 3218,ithasbeen

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observed thus :-

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“ Courts have to be extremely careful when they deal with a dying declaration as the maker thereof is not available for the cross-examination

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Cri. Appeal No.497-2014

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which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there, is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of

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investigation or which may be negligent while recording the dying declaration. The Court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the Court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The Courts must bear in mind that each criminal trial is an individual aspect. It may differ from the other trials in some or the

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13 Cri. Appeal No.497-2014

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other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.”

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In case of more than one dying declaration, plurality
thereof does not add weight to the prosecution case

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but it is their qualitative worth. The dying
declaration, which are mutually exclusive or grossly
inconsistent with each other, would not form basis
for conviction.

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11.Let us examine the evidence in the present
case in the light of the aforesaid legal position.
Exhibit 26 is the statement/dying declaration of
Mahananda, recorded first in point of time. It was
recorded by none other than the A.P.I., Murum Police
Station. The same should have, therefore, been
treated as FIR. It is the case of the prosecution
that Mahananda had married Dayanand two years before

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May 2011. Mahananda would reside along with her
husband and in-laws at village Belamb. Dayanand died

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14 Cri. Appeal No.497-2014

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of kidney failure about three weeks before
15.05.2011. Mahananda was residing in a tin-shed
raised adjoining to her matrimonial home. Since
Dayanand had passed-away, Mahananda's father, brother
and some other relatives were scheduled to visit
Mahananda's matrimonial home to reason with her in-
laws and to ensure that Mahananda would be treated
well. That was not to happen. Mahananda suffered more
than 90% of burn injuries. She succumbed thereto, is
a fact not in dispute. The post-mortem report
(Exh.29) states that Mahananda died due to shock due
to 97% burn injuries. The question is whether
Mahananda met with homicidal death or was it an
accident or case of suicide.

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When Mahananda was rushed to Rural Hospital
at Murum, PW-1 Dr. Pravin was on duty. On her medical
examination, he found her to be conscious and
oriented to make statement (Exh.26). Although, PW 1
– Dr. Pravin testified that Mahananda was in great
pains and agonies, she was groaning too, his evidence

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15 Cri. Appeal No.497-2014

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would further indicate that Mahananda's condition was

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critical and therefore, he advised to rush her to

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civil hospital, at Solapur. PW 1 – Dr. Pravin
further maintained that Mahananda was mentally fit
to make a statement. It is further in his evidence

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that A.P.I. Recorded Mahananda's statement (dying
declaration Exh.26) in his presence. It is further in
his evidence that Mahananda did not understand
Marathi. She gave her statement in Kannada language.
Since none was present there who could understand
Kannada language, Mahananda's maternal uncle,
Shivyogi Birajdar was called as an interpretor to
translate Mahananda's statement to Marathi language,
being recorded by the Police Officer. Uncle of
Mahananda has not been examined as witness. Learned
Counsel appearing for the appellants may, therefore,

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have reason to submit that the dying declaration
(Exh.26) has not been duly proved. On close scrutiny
of the evidence on record, we are, however, of the
view that within minutes of the incident, PW 1 – Dr.

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16 Cri. Appeal No.497-2014

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Pravin and the concerned police Officer did not have
reason to scribe an imaginary statement. We,
therefore, do not subscribe to the submission made by
learned Counsel for the appellants that the dying
declaration (Exh.26) has not been proved.

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12.The dying declaration (Exh.26) has been
recorded in question and answer form. Mahananda
stated therein that her father, brother and some
others were scheduled to visit her matrimonial house
for requesting her in-laws to take her care. Just 10-
15 minutes before their arrival by 06.30 p.m.,
Gangabai (appellant no.2) had doused her with
kerosene. Mallamabai (appellant no.3) lit a match-
stick and set her ablaze. Mahananda further stated
that her mother-in-law – Navlabai (appellant no.1)
was also involved in setting her ablaze. Mahananda
was categoric in stating in her evidence that no male
members were present at home while she was set
ablaze.

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17 Cri. Appeal No.497-2014

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13.Then comes the second dying declaration
(Exh.34). It was recorded at Civil Hospital, Solapur.
Admittedly, Mahananda was shifted to civil hospital
at Solapur, as her condition was critical. At the
civil hospital, PW 6 - Dr.Suchita medically examined
her and gave treatment. Although PW 6 - Dr.Suchita
was subjected to a searching cross-examination as
regards medical fitness of Mahananda to make a
statement, PW 6 - Dr. Suchita was categoric to state
that Mahananda was conscious and oriented to make a
statement. PW 6 – Dr. Suchita accordingly certified
in writing on dying declaration (Exh.34).

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14.PW 3 – Anant claimed to have recorded dying

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declaration (Exh.34). It is in his evidence that he
rushed to the civil hospital in response to the
requisition of the police and direction given by the
Tahsildar/Executive Magistrate. It is further in his
evidence that he recorded Mahananda's statement in

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question and answer form. Mahananda did not
understand Kannada language. True, there is

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18 Cri. Appeal No.497-2014

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inconsistency between the evidence of PW 1 – Dr.
Pravin and PW 3 – Anant as regards Mahananda's
understanding about Marathi language. The dying
declaration (Exh.34) is in Marathi language. There is
evidence to indicate that the brother and father of
Mahananda also did not understand Marathi. Mahananda

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must not be knowing Marathi. Be that as it may, the
dying declaration (Exh.34) came to be admitted in
evidence. We assume it to have been duly proved,
more so, when it does not run counter to the interest
of the appellants. In the dying declaration (Exh.34),
Mahananda stated to have suffered burns as she was
set ablaze. When she was questioned as against whom,
she had a complaint of setting her ablaze, she gave
the names of Siddram Gurubasappa Khajure, Navla
Gurubasappa Khajure, Mallama Gurubasappa Khajure,
Ravi Gurubasappa Khajure and Shivanand Gurubasappa
Khajure.

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15.It then takes us to oral dying declaration
made by Mahananda to her brother, PW 8 –

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19 Cri. Appeal No.497-2014

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Sharanbasappa. It is in his evidence that he had
been to the matrimonial house of Mahananda along with
his father and others on the fateful day, to reason
with Mahananda's in-laws. It is further in his
evidence that while they reached Mahananda's house,
they saw her in flames. He, therefore, questioned
Mahananda what had happened. Mahananda told him that
her mother-in-law (appellant no.1) caught hold her
hands, Gangabai (appellant no.2) poured kerosene on
her person and Mallamabai (appellant no.3) lit a
match-stick and set her ablaze. Jayabai (original
accused no.7) kept watching. PW 8 – Sharanbasappa
testified that Mahananda had also told him that male
members of her family were also involved in setting
her ablaze.

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16. PW 8 – Sharanbasappa had lodged the report

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(FIR Exh.69) with the police. In legal parlance, the
statement of Mahananda (Exh.26) is the FIR. Be that
as it may, let us scrutinise all the three dying
declarations, to find out whether any of them is

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20 Cri. Appeal No.497-2014

¶108

found to be truthful, to find basis for conviction of
the appellants.

¶109

17.In the first dying declaration, no male
person of the family of Mahananda has been named.
Mahananda was categoric to state that none of the
male members of the family was present while the
incident occurred. In her first part of the
statement, she stated that the appellants herein
jointly set her ablaze. While describing role of
each of the appellants, she stated that Gangabai
(appellant no.2) poured kerosene on her person and
Mallamabai (appellant no.3) set her ablaze. Here, she
ruled out involvement of her mother-in-law, Navlabai
(appellant no.1). As such, the contents of the dying
declaration (Exh.26) are found to be inconsistent
inter-se.

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18.In the second dying declaration (Exh.34),
Mahananda named all male members of her family along
with her mother-in-law, Navlabai (appellant no.1),

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21 Cri. Appeal No.497-2014

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Gangabai (appellant no.2) and Mallamabai (appellant
no.3). In the first dying declaration, she was
categoric to state that none of the male members of
the family was present at home. Navlabai (appellant

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no.1) did play no role in setting her ablaze. As
such, the dying declarations are grossly inconsistent
with each other, much less mutually exclusive to a
great extent. None of these dying declarations
inspire confidence.

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19.Same is the case of the oral dying

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declaration made to PW 8 – Sharanbasappa. In the

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FIR, PW 8 – Sharanbasappa has named all the

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appellants herein and Jayabai (original accused no.7)
as the persons, who set Mahananda ablaze. He gave

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their names in the FIR as was told to him by

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Mahananda. After two days of registration of the FIR,

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he gave supplementary statement stating that

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Mahananda had also told him that male members of the

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family were also involved in setting her ablaze.

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22 Cri. Appeal No.497-2014

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20.Had Mahananda really made oral dying

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declaration to her brother, PW 8 – Sharanbasappa, he
would have been the first to report the same to the
concerned police officials or name them in the
history that was given at the time of admission of
Mahananda to rural hospital at Murum. The evidence
of PW 8 – Sharanbasappa as regards the oral dying
declaration of Mahananda found to be self-contrary,
attempting to make it consistent with the first two
dying declarations. The same does not inspire
confidence.

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21.After considering the evidence and legal
position, we are of the opinion that the evidence
available on record do not inspire confidence, in our
mind, to make all the three dying declarations or any
one of them the basis for conviction of the
appellants. We do not propose to refer to the other
evidence on record since the same does not further
the prosecution case. Instead of critically examining

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23 Cri. Appeal No.497-2014

¶128

the impugned judgment, suffice it to say that the
trial Court, in the given facts and circumstances of
the case, ought not to have reached the conclusion
holding the appellants guilty of the offence in
question.

¶129

22.For the reasons given herein-above, the
appeal succeeds. Hence, we pass the following order:-

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(i)Criminal Appeal is allowed.

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(ii)The judgment and order dated 25th July, 2014,
passed by the Additional Sessions Judge, Omerga in
Sessions Case No. 7 of 2012, thereby convicting and
sentencing the appellants for the offence punishable
under Section 302 read with Section 34 of the Indian
Penal Code, is quashed and set aside.

¶132

(iii)The appellants/original accused Nos.5,
6 and 8 namely, Navlabai s/o Gurubasappa Khajure
(Samudre), Gangabai Siddram Khajure (Samudre) and

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24 Cri. Appeal No.497-2014

¶134

Mallamabai d/o Gurubasappa Khajure (Samudre),
respectively are acquitted of the offence punishable
under Section 302 read with Section 34 of the Indian
Penal Code. Fine amount, if deposited by these
appellants as per the impugned judgment and order, be
refunded to them.

¶135

(iv)The appellant No.1/original accused No.5
namely Navlabai s/o Gurubasappa Khajure (Samudre) has
already been released on bail during the pendency of
this appeal. Her bail bonds shall stand cancelled.

¶136

(v)Appellant Nos.2 and 3/original accused Nos.6
and 8 namely, Gangabai Siddram Khajure (Samudre) and
Mallamabai d/o Gurubasappa Khajure (Samudre),
respectively be released forthwith, unless required
in any other case.

¶137

(vi)The appellants/original accused Nos.5,6 and
8 shall furnish Personal Bond of Rs.15,000/- each and
sureties each in the like amount, under Section 437-A

¶138

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Cri. Appeal No.497-2014

¶140

of the Code of Criminal Procedure, before the Court

¶141

of Additional Sessions Judge, Omerga.

¶142

[R.G. AVACHAT, J.][S.S. SHINDE, J.]

¶143

kbp

Navlabai S/O Gurubasappa Khajure and Others v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Navlabai S/O Gurubasappa Khajure and Others 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

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