Allowed

Suresh S/O. Somaji Bhoyar v. the State of Maharashtra Thr. Its P.S.O., P.S. Gadchiroli

Bombay HC14 Jan 2022APEAL/613/2018

Case brief

AI extract

What is this about?

In an appeal against conviction and life imprisonment for murder under Section 302 IPC, the High Court set aside the conviction. The court found both dying declarations unreliable due to procedural defects, inconsistencies in the scribe's testimony, contradictions regarding who poured kerosene, and lack of proof regarding the victim's fitness to speak at the time of recording.

What did the court decide?

Conviction and sentence of life imprisonment quashed; appellant acquitted of Section 302 IPC; ordered for release if not required in other cases.

Suresh S/O. Somaji Bhoyar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2022)

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J-APPEAL-613-18.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

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CRIMINAL APPEAL NO. 613 OF 2018

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Suresh S/o Somaji Bhoyer,
Age 40 years, Occ.- Labourer,
R/o Khursa, Tah. Gadchiroli,
Distt. Gadchiroli.

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... APPELLANT
 (In Jail)

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V E R S U S

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The State of Maharashtra,
Through its Police Station Officer,
P. S. Gadchiroli, Distt. Gadchiroli. ... RESPONDENT

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Shri A. K. Sorde, Advocate for appellant.
Shri S. S. Doifode, Additional Public Prosecutor for respondent.

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CORAM : V. M. DESHPANDE AND
G. A. SANAP, JJ.
DATED : 14/01/2022

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ORAL JUDGMENT : (PER V. M. DESHPANDE, J.)

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1.This appeal is directed against the Judgment and order
of conviction passed by the learned Sessions Judge, Gadchiroli
dated 06/12/2017 in Sessions Case No.97/2015, whereby the
learned Sessions Judge convicted the appellant for the offence
punishable under Section 302 of the Indian Penal Code and
thereafter, imposed sentence that he shall suffer Rigorous
Imprisonment for life and to pay fine of Rs.500/- (Rs. Five
hundred), in default to suffer Rigorous Imprisonment for one
month.

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2 J-APPEAL-613-18.odt

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The prosecution case in a nutshell is as under :-

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2.One Suchela w/o Suresh Bhoyer was brought to the
Casualty Ward of Government Hospital, Gadchiroli on
14/06/2015. After she was admitted in the Ward, Dr. Bagraj s/o
Sukhdev Dhurve (PW-11) gave intimation to police (Exh.34) and
requested the police to record her dying declaration. Accordingly,
police came and her statement was recorded by Shri Anandrao s/o
Pandurang Tittarmare, Police Constable (PW-20).

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3.On 15/06/2015, Shri Anandrao Tittarmare (PW-20)
came to Police Station, Gadchiroli and handed over the statement
to Shri Sandip S/o Chandrakant Patil, PSI (PW-19) who was
attached to Police Station, Gadchiroli. On the basis of the
statement, he registered an offence vide Crime No.87/2015 for
the offence punishable under Section 307 of the Indian Penal
Code. The printed First Information Report is at Exh.67.

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4.After the registration of the crime, the investigation
was taken over by Shri Vaibhav s/o Savta Mali, Assistant Police
Inspector (PW-18). In presence of Panchas, Panchanama of spot
was drawn. It is at Exh.16, which was residential house of the

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3 J-APPEAL-613-18.odt

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appellant at Khursa. He also seized the clothes of the deceased
under Seizure Panchanama (Exh.17).

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5.On 17/06/2015, he received intimation about the
death of injured Suchela Bhoyer. He, thereafter went to the
hospital and in presence of panchas conducted Inquest and
prepared Inquest Panchanama (Exh.24). He also collected samples
of burnt skin, regular skin and blood sample of the deceased
under Seizure Panchanama (Exh.27). He, thereafter, recorded the
statement of the witnesses. He sent Muddemal to Chemical
Analyzer's Office through Head Constable - Shri Rajesh s/o
Beniram Chimankar (PW-16). He also gave letter to the Medical
Officer to conduct the post-mortem (Exh.50). Accordingly,
Dr. Nitesh s/o Rekchand Wankar (PW-17) conducted the
post-mortem over the dead body. At the time of conducting
post-mortem, he noticed the following external injuries:-

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i] Burn injuries on lower side chest, whole abdomen, ii] Whole back side of the chest,

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iii]Both lower limbs and waist,
iv]Whole left upper limb and

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v] On right elbow.

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4 J-APPEAL-613-18.odt

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On internal examination, the Autopsy Surgeon could
not notice any fracture. All injuries were ante-mortem. In the
opinion of the Autopsy Surgeon, death caused due to hypo-volmic
shock due to burn injuries. He proved the post-mortem report. It is
at Exh.51.

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6.After the death of injured Sulecha Bhoyer, the offence
under Section 302 of the Indian Penal Code was added. Under
Seizure Memo (Exh.62), the appellant was arrested on
16/06/2015 itself. After completion of other usual investigation,
the Investigating Officer filed charge sheet in the Court of learned
Jurisdictional Magistrate. The learned Jurisdictional Magistrate
thereafter committed the case to the Court of Sessions, it being
exclusively triable by the Sessions Court.

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7.After the case was committed to the Court of Sessions,
it was registered as Sessions Case No.97/2015. The learned
Sessions Judge below Exh.7 framed charge against the appellant
for the offence punishable under Section 302 of the Indian Penal
Code. The appellant abjured his guilt and claimed for trial.

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8.In order to bring home the guilt of the appellant, the
prosecution has examined in all 20 witnesses and also relied upon

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5 J-APPEAL-613-18.odt

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various documents including two dying declarations given by the
victim as per the prosecution.

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9.After appreciation of the entire prosecution case, the
learned Sessions Judge on 06/12/2017 passed the impugned
Judgment and order of conviction and sentence. Hence, this
appeal.

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10.In this appeal, we have heard Shri A. K. Sorde, learned
counsel for the appellant and Shri S.S. Doifode, learned Additional
Public Prosecutor for the respondent-State. Both the learned
counsels vehemently argued their respective briefs and claimed
for reliefs in their favour. With the assistance of both the learned
counsel, we have gone though the notes of evidence and various
documents, which were duly proved during the course of trial.

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11.In view of the evidence of Dr. Nitesh Wankar (PW-17)
and the post-mortem report (Exh.51), there cannot be any dispute
that Suchela Bhoyer died unnatural death due to burn injuries. It
is not the prosecution case that she committed suicide. According
to the prosecution case, the appellant is responsible for the burn
injuries which were caused to Suchela Bhoyer resulting into her
death. Thus, according to the prosecution, the appellant is the

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6 J-APPEAL-613-18.odt

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author for the burn injuries resulting into the death of Suchela
Bhoyer. On the contrary, the defence of the appellant is that he is
falsely implicated in the crime and the accidental death cannot be
completely ruled out.

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12.The prosecution has examined Shri Bhaskar s/o
Baburao Bhoyar (PW-1), nephew of the deceased Shevanta
Baburao Bhoyar (PW-2), sister-in-law of the accused, Leelabai w/o
Eknath Meshram (PW-3) for proving the oral dying declaration.
Sundera Meshram (PW-4), Ramchandra Nilekar (PW-5) a Panch,
Abdul Shafi s/o Gaffar Sheikh (PW-6), who has proved Inquest
Panchanama (Exh.24), Manoj Urkude (PW-7) for oral dying
declaration. Balu Govardhan (PW-8), a panch on seizure of burnt
skin and simple skin of the deceased, Prashant Ramteke (PW-9),
Santosh Nadarge (PW-10), a photographer, Dr. Bagraj Dhurve
(PW-11), Ku.Alka Bhoyar (PW-12), daughter of deceased, Ku.
Reshma Bhoyar (PW-13), daughter of appellant and deceased.
Sudhir Meshram (PW-14) brother of the deceased. Shri Nileshwar
Bhurse, Executive Magistrate (PW-15) who recorded dying
declaration. Shri Rajesh Chimankar (PW-16) who took muddemal
to Chemical Analyzer's Office. Dr. Nitesh Wankar (PW-17) who
conducted post-mortem, Shri Vaibhav Mali, Investigating Officer

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7 J-APPEAL-613-18.odt

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(PW-18) who has filed charge sheet, Shri Sandip Patil (PW-19)
who registered offence initially and Shri Anandrao Tittarmare
(PW-20) who has recorded the dying declaration.

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13.All relative witnesses of deceased and appellant have
turned hostile. They have not supported the prosecution case at
all. Even according to the learned Additional Public Prosecutor,
the fate of this appeal looms on appreciation of two dying
declarations. He submitted that if the dying declarations are kept
aside for any reason then there is no case in favour of the
prosecution.

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14.In view of aforesaid, let us examine two dying
declarations.

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15.The first dying declaration is recorded by Shri
Anandrao Tittarmare (PW-20).

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16.The evidence of Dr. Bagraj Dhurve (PW-11) would
show that after the injured was admitted in the hospital,
immediately he gave intimation to the police (Exh.34) and
thereafter, police came. The evidence of Anandrao Tittarmare
(PW-20) would show that he has recorded the statement of

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8 J-APPEAL-613-18.odt

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injured Suchela Bhoyer. His evidence would show that prior to
recording of her statement, he obtained permission from doctor
and doctor informed him that she was fit to give her statement. In
that behalf, perusal of evidence of Dr. Bagraj Dhurve would show
that after police came, they asked him whether the deceased was
in a position to speak. His evidence would show that he stated that
the patient was in a position to speak. He accordingly proved the
endorsement which is at Exh.35. On deeper scrutiny of evidence
of Dr. Bagraj Dhurve would reveal that his evidence is completely
silent that before making endorsement Exh.35 that the patient was
fit to give statement, he examined the patient. Further, Exh.35
does not show the timing when the said endorsement was put by
him. According to the evidence of Anandrao Tittarmare (PW-20),
thereafter, he recorded the statement of Suchela Bhoyer. The
statement is at Exh.69. His evidence would show that he obtained
thumb impression and before obtaining her thumb impression, he
read over the statement.

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17.Reading of Exh.69 would show that on 14/06/2015,
the deceased and the appellant were in their house and right from
morning, the appellant was demanding amount for drinking liquor
which was refused and therefore, she was assaulted and

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9 J-APPEAL-613-18.odt

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thereafter, he poured kerosene on her and put her ablaze resulting
into injuries. Thereafter, on her shouts, Shevanta Bhoyar (PW-2)
came. She doused the fire and thereafter, she was taken to the
hospital.

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18.Perusal of Exh.69 would show that after recording of
the dying declaration, there is no endorsement of the doctor that
during recording of dying declaration, doctor was present and for
that time during the course of recording of her dying declaration,
the patient was conscious. In addition to that, even Dr. Bagraj
Dhurve also does not state that after recording statement Exh.69,
he put his endorsement that entire statement was recorded in his
presence.

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19.Apart from the aforesaid, we are of the view that
Exh.69 cannot be made the basis for recording conviction because;

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1) In the Examination-in-chief itself, Shri Anandrao
Tittarmare, the scribe has stated as under :-

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"Before recording her statement, I obtained
permission from doctor. The doctor told me that she
was fit to give statement. She was burnt from
stomach to legs. Her both hands were also burnt. She
gave statement that in a quarrel, she poured

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10 J-APPEAL-613-18.odt

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kerosene on her person and accused lighted the
match stick." (Emphasis supplied).

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2]During the course of investigation, Dr. Bagraj
Dhurve (PW-11) has stated as under :-

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"When I put endorsement Exh.35, the paper was
written completely".

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20.From the oral evidence, in examination-in-chief itself,
scribe Shri Anandrao Tittarmare deposed before the Court on oath
that a statement was made by Suchela Bhoyer that in quarrel, she
poured kerosene on her herself and thereafter, accused lighted
match stick. However, perusal of Exh.69, the statement which is
sought to be pressed into service as dying declaration of Suchela
Bhoyer shows that it is the appellant who has poured kerosene
and set her ablaze. When the scribe Shri Anandrao Tittarmare
(PW-20) was in the witness box, no attempt was made by the
prosecution side to reexamine him on the point of the injured
about pouring kerosene by herself. Thus, it is crystal clear that the
Exh.69 is not the correct reproduction of the statement made by
the deceased herself, as it could be seen in the light of the
evidence of the scribe himself.

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11 J-APPEAL-613-18.odt

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21.Further in cross-examination, Dr. Bagraj Dhurve has
candidly admitted that he put endorsement (Exh.35) after the
paper was written completely. Thus, the important aspect of
fitness of patient was written down by the doctor after the entire
exercise of reducing the version of patient on paper was over.
According to Shri Anandrao Tittarmare (PW-20) after recording
dying declaration, he obtained her thumb impression. We are of
the view that if we peruse the cross-examination of Shri Sandip
Patil, PSI (PW-19), who recorded crime shows that he has
subsequently obtained thumb impression of the deceased. It
would be useful to reproduce his version in the cross-examination
in vernacular as under :-.

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" iksfyl gokynkj frrjekjs gs erdkps tokc ?ksowu la/;kdkGh vankts 5-30 oktrk vkys gksrs- eh lk;adkGh 5-35 uarj lkekU; #X.kky;kr tk;yk iksfyl LVs’ku lksMys- eh tGhr <u>okMkZr xsyks gksrks- rks okMZ lkekU; #X.kky;kP;k ifgY;k ekG;koj gksrk- eh erdkpk Mkos gkrkps vaxB;kpk Blk ?ksryk gksrk- "( Emphasis supplied ).

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22.In the aforesaid, we are of the considered view that
Exh.69 cannot be accepted as the statement made by Suchela
Bhoyer to Shri Anandrao Tittarmare (PW-20). Therefore, we have
no doubt in our mind to reject the said dying declaration.

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12 J-APPEAL-613-18.odt

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23.Insofar as the second dying declaration is concerned, it
is recorded by Shri Nileshwar Bhurse (PW-15). This prosecution
witness in June, 2015 was the Executive Magistrate at Gadchiroli.
On 14/06/2015, Police Station, Gadchiroli gave him a letter to
record statement of Vandana @ Suchela Bhoyar. Accordingly, he
went to General Hospital on same day. He made enquiry about
Suchela Bhoyer where she was admitted. As per his evidence,
doctor shown him the ward where patient was admitted and he
accompanied him. According to version of the Executive
Magistrate, doctor gave him certificate that she is able to give
statement and thereafter, he recorded statement. Exh.41 is the
statement of injured Suchela Bhoyer recorded by Shri Nileshwar
Bhurse (PW-15). Perusal of the said document would show that it
was recorded on 14/06/2015 at 6.10 p.m. According to the said
dying declaration, the appellant used to demand money daily for
drinking liquor and on 14/06/2015 when she refused to give
money, he poured kerosene on her and set her ablaze. The column
No.11 of Exh.41 would show that the exercise of writing of dying
declaration was completed at 6.15 p.m. Thus, it is clear that
within a period of 5 minutes, entire exercise of writing was over.

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13 J-APPEAL-613-18.odt

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24.Though Shri Nileshwar Bhurse (PW-15) stated that
doctor gave certificate that she was able to give statement. That
statement is not proved at all by any doctor. In the cross-
examination, Shri Nileshwar Bhurse stated that he met Dr. Kuthe.
Thereafter, he stated that Dr. Bagraj Dhurve was present when the
statement was recorded. Exh.41 is having two unproved
endorsements. One is on the top and another is on the bottom.
Perusal of Exh.41 would show that there is no mention of
Dr. Kuthe but endorsement appears to have been made by
Dr. Bagraj Dhurve.

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Dr. Bagraj Dhurve is examined as PW-11. His evidence
is completely silent that Shri Nileshwar Bhurse, Executive
Magistrate met him on 14/06/2015 and at his behest, he
examined injured and put two endorsements as appearing on the
top and bottom of Exh.41, thus these two endorsements are
remained to be proved. Not only that in the cross-examination,
Dr. Bagraj Dhurve has stated as under :-

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"I had put only one endorsement Exh.35 on 14th day.
That day, beside police, nobody has recorded
statement of deceased in hospital".

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14 J-APPEAL-613-18.odt

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This evidence of Dr. Bagraj Dhurve clearly shows that
except Exh.35, he has not given any endorsement to anybody. Not
only that on 14/06/2015, nobody recorded statement of patient
except recorded by police.

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25.This Court is well aware that merely because the
certificate of fitness given by the doctor is not proved, it cannot be
the reason for rejecting the dying declaration. In that behalf, the
law is well crystallized in view of the authoritative pronouncement
of Constitution Bench of Hon'ble Apex Court in the case of Laxman
Vrs. State of Maharashtra, reported in AIR 2002 SC 2973.In view
of the law laid down by the Hon'ble Apex Court, it is clear that if
the scribe himself is satisfied about the fitness of the person, who
is intending to give statement is sufficient compliance inasmuch as
the certification by doctor is rule of caution. In the backdrop,
evidence of Shri Nileshwar Bhurse (PW-15) is totally silent that
before recording statement of Suchela Bhoyer, he himself was
satisfied about her fitness and his satisfaction that she is able to
give her statement. If that be so, in absence of anything on record
to show that at the time of recording statement of Suchela Bhoyer,
there is nothing on record to show that she was fit.

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15 J-APPEAL-613-18.odt

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26.In view of aforesaid, we have no hesitation in our mind
even to discard the dying declaration Exh.41 recorded by Shri
Nileshwar Bhurse (PW-15).

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27.In this case, three is no scientific evidence against the
appellant.

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28.During the course of investigation, the Investigating
Officer has seized various articles. The muddemal articles were
sent to Chemical Analyzer's Office, Nagpur by the Investigating
Officer and the duty was entrusted to Shri Rajesh Chimankar (PW-
16). His evidence would show that he carried seven sealed
parcels. The duty pass Exh.44 was given to him to carry seven
parcels to Chemical Analyzer. The articles given by the
Investigating Officer to Chemical Analyzer is at Exh,.45. Those
contain seven muddemal properties. Exh.45 does not show that
the clothes of the appellant were sent to the Chemical Analyzer.
Resultantly, there is no scientific evidence to show the presence of
the appellant at the time of incident, so there is no C. A. report in
respect of clothes of appellant.

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29.The conspectus of all the above discussion leads us to
record a finding that the prosecution has utterly failed to prove its

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16 J-APPEAL-613-18.odt

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case against the appellant beyond reasonable doubt to show that it
was the appellant was author for the burn injuries due to which
Suchela Bhoyer succumbed. Resultantly, we pass the following
order :-

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ORDER

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i] The appeal is allowed.

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ii]The Judgment and order of conviction passed by
the learned Sessions Judge, Gadchiroli dated
06/12/2017 in Sessions Case No.97/2015 is hereby
quashed and set aside.

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iii]The appellant stands acquitted of the offence
punishable under Section 302 of the Indian Penal Code.

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iv]The appellant, who is in jail shall be released
forthwith, if his presence is not required in any other
case.

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 (G. A. SANAP, J.) (V. M. DESHPANDE, J.)

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Choulwar

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VITHALMAROTRAO Digitally signed by VITHALMAROTRAO CHOULWARDate: 2022.01.17 16:13:42 CHOULWAR +0530

Suresh S/O. Somaji Bhoyar v. the State of Maharashtra Thr. Its P.S.O., P.S. Gadchiroli

Case brief

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Suresh S/O. Somaji Bhoyar v. the State of Maharashtra Thr. Its P.S.O., P.S. Gadchiroli

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