IN THE HON’BLE BOMBAY HIGH COURT
Under Section 374(2) of the Code of Criminal Procedure
IN THE MATTER OF
SOMNATH RAJIV SATPUTE.……….APPELLANT
V.
STATE OF BADARASHTRA………RESPONDENT
Submitted By Saloni Agrawal Shubham Kumar Sharma Karan Parihar
TABLE OF CONTENTS LIST OF ABBREVIATION……….……….……….………...iii INDEX OF AUTHORITIES.……….…….……….………...v SYNOPSIS OF FACTS……….……….……….………...x STATEMENT OF ISSUES………..……xii SUMMARY OF ARGUMENTS…...…….……….……….………..……..1-2 ARGUMENTS
ADVANCED………..3-[1] THE ACCUSED WAS RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC. [II] THE ACCUSED WAS UNJUSTLY ACQUITTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC. PRAYER..………..………44
LIST OF ABBREVIATIONS
S. No. Abbreviation Full Form
1. ¶ Paragraph
2. & And
3. ABR All India Reports-Bombay High Court
Reports
4. ACR Allahabad Criminal Rulings
5. Add. Additional
6. AIR All India Reporter
7. ALT Andhra Law Times
8. All. Allahabad
9. Anr. Another
10. BomCR Bombay Cases Reporter
11. BomLR Bombay Law Reporter
12. Cr.P.C. Code of Criminal Procedure
13. CriLJ Criminal Law Journal
14. DW Defense Witness 15. ed. Edition 16. Exh. Exhibit 17. Guj. Gujarat 18. Hon’ble Honourable 19. i.e. That is
20. IPC Indian Penal Code
21. KarLJ Karnataka Law Journal
22. Mohd. Mohammed
23. MPLJ M.P. Law Journal
24. NOC Notes on Cases
25. Ors. Others
26. PW Prosecution Witness
27. SC Supreme Court
28. SCC Supreme Court Cases
29. SCR Supreme Court Reporter
30. Sec. Section
31. ShimLC Shimla Law Cases
32. Sr. Senior
33. U.P. Uttar Pradesh
34. u/s Under Section
35. v. Versus
INDEX OF AUTHORITIES
JUDICIALDECISIONS
5. Bai Radha v. The State of Gujarat, AIR1970SC1396.
6. Balbir Singh and Anr. v. State of Punjab, 2006(3)ACR3053(SC). 7. Bhanubhai Shanabhai Zala v. State of Gujarat, 2008CriLJ3828. 8. Chinnapattu Nagan v. State of A.P,. 1999(2)ALT(CrI.)460(AP), 9. Emperor v. Mt. Dhirajia, AIR1940All486.
10. Fedders Lloyd Corporation (P.) Ltd. v. B.A.Lakshminarayana Swami, AIR1969Del26. 11. Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619, See also, G.V. Siddaramesh
v. State of Karnataka, (2010) 3 SCC 152 (158).IPC P3043.
12. Gopal Anjayya Falmari and Ors. v. The State of Maharashtra, (1995)1BomCR116. 13. Habib Usman v. State of Gujarat, 1979CriLJ708.
14. Hari Chunnilal v. State of Madhya Pradesh, 1977MPLJ321. 15. Kaliya v. State of Madhya Pradesh, 2013(3)ACR2871. 16. Kumbhar Narsi Bechar v. The State, AIR1962Guj77. 17. Mukanda and Ors. v. State, 1957CriLJ1187.
18. Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh, (2010)2SCC748.
19. Nallam Veera Stayanandam and Ors. v. The Public Prosecutor, High Court of A.P., 2004(2)ACR1282(SC).
20. Narpal Singh v. State of Haryana, AIR1977SC1066
21. Nemichand Jain v. Supt. of Central Excise and Customs, (1963) 2 CriLJ 22. Rajendra Singh v. State of Rajasthan, 1996CriLJ1560.
23. Ram Lal v. State of H.P., 2005(3)ShimLC67. 24. Ramawati Devi v. State of Bihar, 1983CriLJ221.
29. State of H.P.v. Sukh Ram, 2003CriLJ 219.
30. State of Madhya Pradesh v. Dal Singh and Ors., AIR2013SC2059. 31. State of Madhya Pradesh v. Ram Prasad, AIR1968SC881.
32. State of Maharashtra v. Rajendra Garbad Patil, AIR1994SC475. 33. State of Rajasthan v. Dhool Singh, AIR2004SC1264.
34. State v. Madhusudan Rao M (2008) 15 SCC 604.
35. Sunil Singha v. State of West Bengal, 2007CriLJ516(Cal).
36. Sunkappa Nagappa v. State of Maharashtra, 1995(2)BomCR665. 37. Tarachand Damu Sutar v. The State of Maharashtra, [1962]2SCR775. 38. Undavali Narayana Rao v. State of A.P., (2009) 14 SCC 588.
39. Urgen Sherpa v. State of Sikkim, 1985CriLJ1988.
40. Wazir Chand and Anr. v. State of Haryana, AIR 1989SC378. P 3047 IPC 41. Willie (William) Slaney v. The State of Madhya Pradesh, AIR1956SC116.
DIGESTS, LEXICONS
1. C.D. FIELD, COMMENTARY ON LAW OF EVIDENCE ACT, 1872, DELHI LAW HOUSE, VOL. 1 (13th ed. 2013).
2. D.N. SEN, THE CODE OF CRIMINAL PROCEDURE, 1973. PREMIER PUBLISHING CO., VOL. 2 (2nd ed. 2008).
3. DR. B.R. SHARMA, FORENSIC SCIENCE IN CRIMINAL INVESTIGATION AND TRIALS, UNIVERSAL LAW PUBLISHING CO. PVT. LTD. (4th ed. 2008).
4. DR. K. N. CHANDRASEKHARAN PILLAI, GENERAL PRINCIPLES OF CRIMINAL LAW, EASTERN BOOK COMPANY (1st ed. 2007).
5. DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S CRIMINAL PROCEDURE, EASTERN BOOK COMPANY (5th ed. 2011).
9. HALSBURY’S LAWS OF ENGLAND, CRIMINAL LAW, EVIDENCE AND PROCEDURE, LEXIS NEXIS BUTTERWORTHS, VOL. 11(4) (4th ed. 2006).
10. HALSBURY’S LAWS OF INDIA, CRIMINAL LAW-II, LEXIS NEXIS BUTTERWORTHS, VOL. 5(2) (2006).
11. HALSBURY’S LAWS OF INDIA, CRIMINAL PROCEDURE-II, LEXIS NEXIS BUTTERWORTHS, VOL. 33 (2007).
12. JUSTICE C.K. THAKKER & MRS. M.C. THAKKER, LAW OF EVIDENCE, WHYTES & CO., VOL. 1 (2013).
13. JUSTICE M.L. SINGHAL & SABIHA, AN ANALYTICAL AND EXHAUSTIVE COMMENTARY ON INDIAN PENAL CODE, 1860, PREMIER PUBLISHING CO., VOL. 1 (2nd ed. 2007).
14. JUSTICE Y V CHANDRACHUD & V R MANOHAR, RATANLAL & DHIRAJLAL THE INDIAN PENAL CODE, WADHWA NAGPUR (31st ed.
2007).
15. M.R. MALLICK, A.N. SAHA’S CRIMINAL REFERENCE, EASTERN LAW HOUSE (6th ed. 2009).
16. R.C. GOEL & RAJIV RAHEJA, HINTS AND TRICKS ON CRIMINAL LAW, CAPITAL (INDIA) (1st ed. 2010).
17. R.P. KATHURIA, LAW OF CRIMES AND CRIMINOLOGY, VINOD PUBLISHING (P) LTD. (3rd ed. 2014).
18. RAM JETHMALANI & D.S. CHOPRA, THE INDIAN PENAL CODE, THOMSON REUTERS, VOL. 1 (1st ed. 2014).
19. RATANLAL & DHIRAJLAL, LAW OF CRIMES, A COMMENTARY ON INDIAN PENAL CODE, 1860, BHARAT LAW HOUSE, VOL. 2 (27th ed. 2013).
20. S.C. SARKAR, COMMENTARY ON EVIDENCE, DWIVEDI LAW AGENCY, VOL. 1 (2nd ed. 2008).
21. S.C. SARKAR, COMMENTARY ON EVIDENCE, DWIVEDI LAW AGENCY, VOL. 2 (2nd ed. 2008).
22. S.C. SARKAR, COMMENTARY ON THE INDIAN PENAL CODE, 1860, DWIVEDI LAW AGENCY, VOL. 2, (3rd ed. 2012).
23. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS, OL. 2 (10th ed. 2014).
24. S.C. SARKAR, THE CODE OF CRIMINAL PROCEDURE, LEXIS NEXIS, VOL. 1 (11th ed. 2015).
VOL. 1 (2011).
28. SURYA NARAYAN MISRA, THE INDIAN PENAL CODE, CENTRAL LAW PUBLICATION (15th ed. 2007).
29. THE CODE OF CRIMINAL PROCEDURE, BARE ACT, PROFESSIONAL BOOK PUBLISHERS.
30. THE INDIAN EVIDENCES ACT, 1872, PROFESSIONAL BOOK PUBLISHERS.
31. THE INDIAN PENAL CODE, EASTERN BOOK COMPANY (34th ed. 2013).
32. VINAY SHARMA, DOWRY DEATHS, LEGAL PROVISIONS AND JUDICIAL INTERPRETATION, DEEP & DEEP PUBLICATIONS PVT. LTD. (2007).
33. VISHWAS SHRIDHAR SOHONI, THE INDIAN PENAL CODE, PREMIER PUBLISHING COMPANY, VOL. 1 (1st ed. 2011).
WEBSITES 1. www.bombayhighcourt.nic.in 2. www.delhihighcourt.nic.in 3. www.indiankanoon.org 4. www.manupatrafast.in 5. www.scconline.com 6. www.westlawindia.com OTHERAUTHORITIES
1. APPRECIATION OF EVIDENCE OF HOSTILE WITNESSES, MAHARASHTRA JUDICIAL ACADEMY, http://mja.gov.in/Site/Upload/GR/summary%20of %20second%20work%20shop%20criminal%20dated%2010-01-15.pdf, (last updated on Feb. 11, 2016).
2. JUSTICE C.K. THAKKER & M.C. THAKKER, ENCYCLOPAEDIC LAW LEXICON, ASHOKA LAW HOUSE, VOL. 1 (1st ed. 2010).
3. JUSTICE C.K. THAKKER & M.C. THAKKER, ENCYCLOPAEDIC LAW LEXICON, ASHOKA LAW HOUSE, VOL. 2 (1st ed. 2010).
SYNOPSIS OF FACTS
For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are summarized as follows:
1. On 24.09.2010 at around 7a.m., the deceased Manju Somnath Satpute asked her husband Somnath Rajiv Satpute to take her to hospital since she wasn’t feeling well from past 5-6 days.
2. But he told her that why she was troubling her, he’ll not take her to the hospital and she should die. Annoyed by this, she poured kerosene on herself and he ignited the match stick and set her on fire. She raised shouts on account of burns and came running out of the house, where the neighbors also came on hearing her and then extinguished the fire.
3. Kashinath Nemade, one of the neighbors, went to her maternal house and brought her mother there. After her arrival, Manju was shifted to Ambikapur hospital and admitted in burn ward no. 25 at around 1.1pm. She sustained 63% superficial to deep burn injuries. Thereafter, the police was informed about this by the hospital authority. 4. PHC Sharad Walunj, posted at Ambikapur Chowky rushed to the hospital where he
inquired with the doctor about Manju’s health condition. He then recorded the injured woman’s statement (Exh.22) after the doctor examined Manju and told him that she was in a position to give statement wherein she stated that she poured kerosene on herself and her husband set her on fire by igniting match stick.
5. At around 3pm, PHC Subhash was informed about the incident by Sr.Police Inspector of Mhadur Police Station and was instructed to record Manju’s statement. He acted as
498A and 3071 of IPC. (CR No. 309/2010) by PSO, Mhadur police station, followed
by the investigation procedure. The initial investigation was conducted by the police inspector, Mehere.
7. Charges were framed against the accused to which he pleaded not guilty and claimed to be tried. His statement was recorded under Section 3132 of Cr.P.C. which was of
total denial and false implication. In support of his defence, Ketan Nemade, one of the neighbors, was examined as defense witness (Exh. 61).
8. In order to prove the guilt of the accused, the prosecution (now the respondents) examined nine witnesses in all viz. Vijay Nemade (PW1), PHC Sharad Walunj (PW2), Rohan Pravin Chandra (PW3), PHC Subhash (PW4), Dr.Abhijeet Shelke (PW5), Dr.Pandit Swami(PW6), J.M. Gunjal (PW7), Atmaram Nemade (PW8), and Sr. P.I. Mehere (PW9).
1Section 307-Attempt to murder:Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
2 Section 313- Power to examine the accused: (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defense, question him generally on the case. (2) No oath shall be administered to the accused when he is examined under sub- section (1).(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
Dying Declaration, Inquest panchama), Arrest and seizure of accused’s clothes, Postmortem report, Indoor case papers of deceased, Spot panchanama.
10. The entire evidence on record was examined to decide the homicidal death of the deceased caused by her husband.
11. The trial court held that the prosecution had successfully established by adducing cogent evidence that the accused had committed the murder of his wife punishable under Section 302 of IPC and was convicted as per Section 235(2)3 of Cr.P.C.
However, the prosecution failed to prove the charge under Section 498A of IPC. Hence was acquitted for that offence. The period of detention undergone in jail by him was given as set off according to Section 4284 of Cr.P.C.
STATEMENT OF ISSUES
3 Section 235- Judgment of acquittal or conviction:(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence, and then pass sentence on him according to law
4 Section 428- Period of detention undergone by the accused to be set off against the sentence or imprisonment: Where an accused person has, on conviction, been sentenced to imprisonment for a term 1 , not being imprisonment in default of payment of fine], the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, any, of the term of imprisonment imposed on him.
The following issues have arisen for determination before the Hon’ble Court in
the instant matter:
1. WHETHER THE ACCUSED WAS RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC?
2. WHETHER THE ACCUSED WAS RIGHTLY ACQUITTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC?
SUMMARY OF ARGUMENTS
1. THE ACCUSED WAS RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
The counsels on behalf of the respondents humbly submit that the judgment passed by the Sessions Court is appropriate and the conviction of the accused under section 3025
of IPC is correct and as per the demands of justice.
To convict any accused under the aforementioned section, the requirements of section 3006 of IPC needs to be fulfilled. The instant case comes under the purview of clause
4th of this section since the accused has committed the act which he knew to be
imminently dangerous that it would, in all probability, cause death or such bodily injury as is likely to cause death and committed it without any excuse for incurring 5 Section 302. Punishment for murder:Whoever commits murder shall be punished with death, or
1[imprisonment for life], and shall also be liable to fine.
6Section 300 of IPC-Murder:Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death,
or--Secondly.--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused,
or--Thirdly.--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or—
Fourthly.--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
the risk of causing such death or injury as aforesaid. The accused committed the murder of his wife by setting her ablaze on fire.7 He had the knowledge that this act is
imminently dangerous to the extent that in all human probabilities it would lead to her death or at least cause her such bodily injuries which might lead to death. Moreover, he did not have any excuse for undertaking such a risk in the sense that it was necessary for him to do such an act at that very particular moment. This is an undisputed fact that his wife poured kerosene over herself on being annoyed by his behavior from the past 5-6 years.8 In such a situation, it is within all human
probabilities that a prudent man would take this into consideration that if he lights matchstick on her, it would lead to her death or at least cause her such bodily injuries which might lead to her death. Moreover, all the evidences (both documentary and oral) presented by the respondents during the trial have sufficiently proved the guilt of the accused. Therefore, the act committed by the accused was so grave and heinous in nature that his conviction under section 302 for the sentence of life imprisonment is appropriate and required in order to deliver justice to the deceased.
2. THE ACCUSED WAS NOT RIGHTLY ACQUITTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498A OF IPC.
It is humbly submitted before the Hon’ble Bench of this High Court that the judgment of acquittal of the accused under section 498A9 of IPC passed by the Sessions Court is
7 Paperbook on Criminal Appeal, 8th Lokmanya Tilak Appellate National Moot Court
Competition, 2016
not correct and the same issue is requested to be taken up again for its re-consideration.
The deceased during the recording of her dying declaration explicitly mentioned that her husband, i.e. the accused, since the solemnization of their marriage, has been ill-treating her by posing her to conditions of threat, abuse and harassment10. The reason
for such ill-treatment was the demand of money to be brought from her maternal house for which she never consented. Further, on the day of the incident, they had an argument with each other, wherein he abused and assaulted her when she asked him to take her to the hospital because she was sick.11
The concerned Sessions Court eliminated this charge of cruelty framed upon him, on the grounds that the respondents were not able to adduce any evidence in order to prove the accused guilty of such an offence. In this context, the counsels on behalf of the respondents would like to contend that the court was absolutely right in convicting 9 Section 498A. Husband or relative of husband of a woman subjecting her to cruelty:Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand
10 Supra Note 9
the accused for the offence punishable under section 302 of IPC mainly on the basis of the dying declaration of the deceased and now the same should also be considered as the basis for his conviction under section 498A as well. The admissibility and credibility of the dying declaration given by the deceased has been very well established by the respondents during the trial procedure by way of examining all the documentary evidences and oral witnesses presented therein.12 Therefore, it is again
humbly contended by the counsels that the reliability of the statement of the deceased should be considered to the extent of making the accused guilty for the offence punishable under section 498A as well.
ARGUMENTS ADVANCED
[I] THE ACCUSED WAS RIGHTLY CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC?
1. The counsels on behalf of the respondents humbly submits that the order passed by the Sessions Court of sentencing the accused for imprisonment for life for his offence committed under section 300 and punishable under section 302 of IPC is appropriate.
The conditions of section 300 of IPC have been satisfied
2. The accused has committed the offence of murder because act done by him falls under the definition of Murder as defined in Section 30013 of IPC. The present case comes under the 4th
clause of the said section. Clause 4 of the Section talks about a person committing any act and knowing that the act thus committed is so imminently dangerous that it will in all probability cause death or bodily injury as is likely to cause death and that person commits the act without any excuse for incurring the risk of causing death or such injury aforesaid.14
3. The essential ingredients of this clause are15 –
(a) The act must be imminently dangerous,
(b) The person committing the act must have knowledge that it is so imminently dangerous, As per the Oxford Dictionary, the word knowledge means: ‘Acquaintance with a fact, perception, or certain information of a fact matter; state of being award or informed; consciousness (of anything).’16
For practical and legal purposes, ‘knowledge’ means the state of mind entertained by a person with regard to existing facts which he has himself observed, or the existence of which has been communicated to him by persons whose veracity he has no reason to doubt.17
(c) That in all probability it will cause– either Death or Bodily injury as is likely to cause death and;
(d) Such imminently dangerous act should be done without any reason or justification for running the risk of causing death or such injury.
14 Ibid, clause 4.
15 K I VIBHUTE, PSA PILLAI’S CRIMINAL LAW, LEXIS NEXIS PUBLICATION, P-582
16 Justice C.K.Thakker, ‘Encyclopaedic Law Lexicon’, Volume II, Edn.2010, ASHOKA LAW HOUSE, p-2568
4. This present act of the accused of lighting the matchstick on her body drenched in kerosene shows that the person had the knowledge that the act is so imminently dangerous that in all probability it will cause death.18 Her wife poured kerosene on her person and he was also
aware of the same and had the knowledge about the act of lighting the matchstick that in all probability would cause the death of the accused and still doing the act fulfills the condition of the Clause 4 of Section 300 of IPC and brings the act of the accused under the definition of Murder.
5. Held since no special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person it is obvious that the accused must have known that he was running the risk of causing the death of the victim or such bodily injury as was likely to cause her death. As he had no excuse for incurring that risk, the offence must be taken to fall within 4th clause of section 300, Penal Code. In in other words, his offence
was culpable homicide amounting to murder even if he did not intend causing the death. He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death.19
6. In the case of State of M.P. v. Ram Prasad the Hon’ble Supreme Court held that this was the case where it was difficult to find the intention of the accused. But then the Supreme Court observed that in respect of the clause 1-3 of Section 300 of IPC, the question would rise as what was the intention of the accused, the nature of injuries he intended to cause etc. Then the Supreme Court opined that it would be simpler to place reliance on Clause 4 because it contemplates only ‘knowledge’ and no intention. In this case, when the accused poured kerosene and set fire to his wife, he must have known that the act would result in 18 Supra Note 9
her death.20 This knowledge is sufficient to bring the act of the accused under the Clause 4,
Section 300.
7. In the case of Hari v. State of M.P. accused poured the kerosene and set the deceased on fire and the deceased sustained second and third degrees burn injuries. The burn injuries were sufficient in the ordinary course of nature to cause death though the deceased died after 25 days of injuries. But the Hon’ble court convicted the accused under section 300(4) of the IPC.21 As the accused had the knowledge that doing this act is imminently
dangerous and it will lead to either the death or such bodily injuries which may lead to death of the victim then it sufficiently fits in the scene and provides a ground to convict the accused.
8. Another authority which can be used in this case is Ram Lal v. State of H.P. In this case the deceased poured kerosene on her person and the accused lighted a matchstick and set her on fire. The Supreme Court held that his act was so imminently dangerous that in all probability it was bound to cause death or such bodily injury as it was likely to cause death and he can legitimately be presumed to have been in the knowledge of this fact because the deceased had poured kerosene on her person within his view. Thus the Court was of the view that this was a case covered by Clause Fourth.22
20 AIR 1968 SC 881
21 Hari Chunnilal v. State of Madhya Pradesh 1977MPLJ321
9. In the case of Urgen Sherpa v. State of Sikkim, court held that if the act of burning done with the intention to cause death or the accused knew that the act was so imminently dangerous that it must cause death or such bodily injurious as were likely to cause death. Then the case would be covered under the fourth clause of section 300.23
10. If the case where there is no probability or the possibility of the deceased to commit suicide or accidental death and the same is also not coming forth from the evidences. The accused is also silent on the same contention in his statement given under Section 31324 of
CrPC, then the burden of proof shifts on the accused to establish the cause of death and to prove he is not guilty of the act.25
11. The numbers of injuries only doesn’t matter; it is also the nature of the injuries and part of body where it is caused.26 If the injuries are sufficient enough to cause death then they
could be anything irrespective of the number of injuries. In the present case the deceased had sustained 63% burn injuries and they were sufficient to cause the death. In one of the 23 Urgen Sherpa v. State of Sikkim 1985CriLJ1988
24 Supra Note 3
25Ameer Jan v. State of Karnataka, 2004(3)KarLJ149
case Court held that having the knowledge of the act wouldn’t prima facie make it murder but another essential ingredient for an act to be murder is that there shouldn’t be any excuse and it is to be wholly inexcusable when even a risk of gravest possibly character, which must normally result in death, is incurred.27
12. If there was no intention to kill, then it can be murder only if –
a) The accused knew that the injury inflicted would be likely to cause death or b) That it would be sufficient in the ordinary course of nature to cause death or c) That the accused knew that the act must in all probability cause death.28
13. In this case the accused had intention to kill as well as accused knew that the act must in all probability cause death, so he doesn’t have any chance to run from his liability. Both knowledge and intention can be seen here in the mind of accused by the act he has done.
14. In order to hold a person responsible for having caused the death, it is not necessary that his act should be the immediate cause of death, in the medical sense. If accused has caused injuries then he is liable for murder.29 And in the present case the accused
had caused sufficient injuries to hold him responsible for the act. Intention of Accused
15. “In the present analysis of the mental element in crime, the word ‘intention’ is used to denote the mental attitude of a man who has resolved to bring about certain result if
27 Emperor v. Mt. Dhirajia, AIR1940All486.
28Willie (William) Slaney v. The State of Madhya Pradesh, AIR1956SC116.
he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims.” 30
16. On 24/10/2010, there were only 3 people present in the house, Somanth, Manju and their daughter Pratiksha. At around 7 am she said to her husband that she had been ill from last 5 to 6 days and on that account asked Somnath to take her to hospital and to this he refused to take her to hospital and said she should die.31 The admitted facts
here are that the appellant and the deceased were not having good relations and they often quarreled with each other. This clearly shows that as the husband was not happy with the relations and his demand of getting money from her maternal home was not being fulfilled so can do anything in that order.
17. From the circumstances of the case we can infer that the accused was the only person who could kill Manju because at the time of the commission of offence only husband and her daughter were present in the house.32 Also there was no probability of
someone else being there. When she got burnt there were only three people present Manju, Somnath and 14 months old girl pratiksha. So the present circumstances clearly show that the act of killing her has been commissioned by the accused.
30 Russell on Crime (12th Edition at page 41) mentioned in Justice C.K.Thakker’s,
Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-2381
31 Supra Note 9
18. The deceased was burnt inside the four walls of her house by her own husband and as such, there could not be any eye witness to the incident so Court can rely on the dying declaration given by her.
Actus Reus of Accused –
19. Actus Reus means a ‘wrongful act’ and is a legal maxim.33
The term may be so defined as to include accts of omission as well as acts of commission, and a person may incur criminal liability for failing to do that which the law enjoins as much as by doing that which the law proscribes.34
The admitted facts in this case are that the appellant and the deceased were not having good relations and they often quarreled with each other. On the fateful day also they had a quarrel. On that particular day she asked Somnath to take her to hospital since she wasn’t feeling well from past 5-6 days. But he told her that why she was troubling her, he’ll not take her to the hospital and she should die. The deceased, already fed up with the regular tense atmosphere at home and more annoyed by this poured kerosene on her and the accused ignited the matchstick and set her on fire. She started shouting on account of burns and came running out of the house. When the neighbors heard the shouts they also came and extinguished the fire.35
20.In the instant case, when Manju poured kerosene on herself, Somnath had the knowledge that if he lights the matchstick and sets her on fire there’s a high probability that it would lead to Manju’s death as a consequence of his imminently dangerous act and he still committed the act.
33 Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141
34 Justice C.K.Thakker’s, Encyclopaedic Law Lexicon, Volume II, Edn.2010, p-141. See
21. The accused would be liable for the offence of murder though there was not pre-meditation of the act. So the act of murder would be punishable under the section of 302 36of IPC.
22. The Seizure Report37 and Chemical Analyzer Report38 along with the statement of
Rohan Pravin Chandra proves that the kerosene was found on the clothes of the accused this proves that he was present inside the house at the time of pouring of the kerosene and he himself lighted the matchstick on her.39 This proves he has committed
the offence of the Murder. The burn injury on his hand also supports the fact that he himself lighted the matchstick and killed the wife.40
23. For the act done by the accused he must be punished. The act committed by the accused comes under the Section 30241 of Indian Penal Code. The said section
prescribes the punishment for murder. In the present case, Somnath has committed the murder of his wife Manju (as proved above) and for this he is liable under Section 35 Supra Note 8, p-5
36Supra note 17.
37 These are the methods used to detect and punish crime that includes searching and taking property and data that can be used by the prosecution of the criminal.
302. In the Section 302 the punishment prescribed is either death sentence or life imprisonment. Here, as the case doesn’t fall under the purview of rarest of the rare case, so death penalty cannot be imposed, hence the option left is life imprisonment.42
Life imprisonment to the accused is completely justified if we go as per the grounds mentioned above.
Documentary evidences-
24. All the documentary evidences are sufficient enough to prove the guilt of the accused. These works as circumstantial evidences to support the story of the dying declaration. Dying Declaration43
-25. On dying declaration, the Hon’ble Supreme Court has said that the dying declaration can be the conclusive evidence for the conviction of the accused without corroboration.44
39 Supra Note 8, pp-18, 4, 16
40 Supra Note 8, p-50
41 Supra Note 6
One dying declaration which is on record is said to have been recorded by the police officer. According to his version as soon as he received information regarding the offence in question, he rushed to the hospital and recorded the statement of the deceased under Section 161, CrPC which is admissible in evidence under Section 32 of the Evidence Act45. In the statement made to police she said that accused poured
kerosene on her and the husband set her fire. These are all the evidences led by the prosecution to establish the guilt of the accused.46 And this evidence is fully
supporting the conviction.
26. In the present case there are two dying declaration taken by two different police constables. Both dying declaration are consistent to each other and saying the same thing and pointing out the guilt of the accused.47 In both the dying declarations she
43 Statements made by a person who is lying at the point of
death, and is conscious of his approaching dissolution, in reference to the manner in which he received the injuries of which he is dying, or other immediate cause of his death, and in reference to the person who inflicted such injuries or the connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial for homicide where the killing of the declarant is the crime charged to the defendant.
44
Aijaz Ahmad v. State of U.P. Para 10 2004(2)ACR1596 45
Supra Note, pp-7, 12 46
told that on 24/9/2010 around 7-8 am, she told to her husband that as she is feeling ill from last 5-6 days so she asked him to took her hospital but he replied why are you shrieking, I will not take you to hospital and instead of taking her to hospital he assaulted her and also said that you should die. Therefore she got annoyed with this and also from the continuous cruelty and harassment that she was subjected to from the day by her husband and he is forcing her to take money from her mother house and poured kerosene on her and then accused said that I will kill you and then lighted the matchstick.48 After she shouted neighbor and brother in law came and
extinguished the fire and admitted her in the Ambikapur hospital.
27. In this case, both dying declaration are consistent, she has mentioned the same thing and she was aware about the situation and she was in the fit state of mind to give the statement that’s why both statement are not contradictory in nature and are true and voluntary.49
28. “In the case of the multiple dying declarations, each dying declaration will have to be considered independently on its own merit as to its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there are more than one dying declaration, it is the duty of the Court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs.”50
Supra Note 9 48
Ibid 49
29. “A dying declaration can be accepted though not recorded by the Magistrate, if other facts and circumstances of the case reflected its truthfulness and authenticity and in such circumstances there is no legal impediment to make it the basis of conviction.”51
30. In the case of wife burning, accused has to prove the factum of death. The appellant and his family member were under a legal obligation to explain the nature and manner of the injuries received on her body. If accused failed to prove the cause of death, it will go against the accused because it is statutory duty of accused.52
31. “It is settled law by series of judgments of this Court that the dying declaration, if after careful scrutiny the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, is no legal impediment to form such dying declaration the basis of conviction, even if there is no corroboration vide.”53
50
Nallam Veera Stayanandam and Ors. v. The Public Prosecutor, High Court of A.P. 2004(2)ACR1282(SC)
51
Santosh Dadu Sapkale v. State of Maharashtra 2009(111)BOMLR4435
52
Sunkappa Nagappa v. State of Maharashtra, 1995 (1) B Cr C 468 at 764: 1995 (2) Bom CR 665 (Bom), mentioned in Sarkar’s Commentary on The Law of Evidence, Volume 1, p-1050 53
32. In the case of State of Maharashtra v. Rajendra Garbad Patil, “the dying declaration recorded within an hour of the occurrence and made by the injured without being influenced by others was held reliable and conviction could be ordered on that basis alone.”54
33. In the case of Ameer Jan v. State of Karnataka, the statement of the deceased initially recorded as a Statement before the death but after the death, the statement changed its characteristics to the Dying Declaration under the section 32(1) of the Indian Evidence Act. In these types of cases or circumstances, the fitness certificate of doctor is not required. The dying declaration can be relied upon in the absence of the fitness certificate also. Dying declaration is the statement where deceased explain his/her cause of the event which led her/his to this condition and there should be the nexus between the statement of victim and cause of his/her death.55
34. It is not necessary to record the dying declaration by the Magistrate and it is not the ground to discard the entire prosecution case. We cannot doubt on the reliability of such declaration unless the statements are inconsistent and contradictory. 56
35. The law related to dying declaration is, it does not require any prescribed form, format, procedure etc. and no where it is mention that who will take the declaration. The only thing as person who take such declaration is satisfied that maker of the
54
State of Maharashtra v. Rajendra Garbad Patil, AIR1994SC475.
55
Supra note 18. 56
declaration is in the fit state of mind and is capable of making such a statement. It is not necessary to take fitness certificate in every case.57
36. "Mere marginal variations in statements of witness cannot be dubbed as improvements, as same may be elaborations of statement made by witness at earlier stage." 58
37. It was held in Jaswant Singh v. State (Delhi Administration) that though “a dying declaration which is not recorded by a Magistrate has to be scrutinized closely, yet if the Court is satisfied that on a close scrutiny of the dying declaration that it is truthful, it is open to the Court to convict the accused on its basis without any independent corroboration. In that case, the dying declaration recorded by a Sub- Inspector in the presence of the duty doctor, who also verified its genuineness, was held to be truthful and convincing”.59
38. Similarly, it was held in Ramawati Devi v. State of Bihar that “there is no requirement of law that dying declaration must be made to a Magistrate and its evidentiary value has to be attached to such statement, must depend on the facts and circumstances of each case. In this case, it was recorded by an A.S.I. and was held to be reliable for the purpose of convicting the accused”.60
39. Under Section 32(1) dying declaration can be taken as sole basis for conviction. It not necessarily required to be supported by evidences and its validity depends upon case 57
Kaliya v. State of Madhya Pradesh, 2013(3)ACR2871.
58
State of Madhya Pradesh v. Dal Singh and Ors AIR2013SC2059 59
to case. If it is completely reliable then there is no requirement for the corroboration.61
Section 32(1) of the Indian Evidence Act is the exception of the general rule that Hearsay statement is not admissible. Statement made under section 32(1) of Indian Evidence Act explains that the maker of such statement must explain the cause of death or the circumstances which led to such condition of the maker and it is admissible evidence according to the Indian Evidence Act. The hearsay evidence are not admissible unless is tested by cross examination.62
40. In State of Assam v. Mafijuddin Ahmed, the Hon’ble Supreme Court has reiterated the law on dying declarations as under:- "Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration, provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner."63
60
1983CriLJ221 61
Habib Usman v. State of Gujarat 1979CriLJ708 , 62
Rajendra Singh v. State of Rajasthan 1996CriLJ1560 63
41. Habib Usman v. State of Gujarat, in this case it was observed that merely because some friends or relatives happened to be present with the deceased before his statement was recorded, the statement cannot be thrown out as tutored.64
42. Exhibit no. 23 is the Inquest Panchnama65 and it is taken by Sharad Walunj and taken
in the hospital in the presence of 2 independent witness and they checked the complete body and found the burn injuries on the different parts of deceased body. Entire skin of deceased was burnt and turned into reddish, black and whitish.66 They
also found the ink mark on the left thumb. The thumb impression shows that she made the impression on the First dying declaration. This proves the authenticity of the first dying declaration.
After examination the body they send the body to forensic department for the post mortem along with the police report.67
64
Supra note 41. 65
The judicial inquiry made by a jury summoned for the purpose is called an "in- quest." The finding of such men, upon an investigation is also called an "inquest."
66
Supra Note 8, p-13 67
43. The object of the section 17468 of CrPC is to find whether the person is died under the
mysterious circumstances or died due to the unnatural circumstances and if it is so then try to find the apparent cause of the death.69 The aim of the report made by the
officer is to support the prosecution case and it is statutory function of the police. It is very important report which needs to be prepared spontaneously at the site and give it to the doctor along with the dead body, when body has to send for the post mortem examination.70
44. The inquest report cannot be substantive evidence,71 but it may be used for
corroboration of the evidence given by the police officer making the report.72
The inquest report is made just to indicate the injuries found on the body of the decease, and it is not necessary to record the statements of the witness or to get the 68
Section 174. Police to enquire and report on suicide, etc.:(1) When the officer in charge of a police station or some other police officer specially empowered by the State Government in that behalf receives information that a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some other person has committed an offence, he shall immediately give intimation thereof to the nearest Executive Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub- divisional Magistrate, shall proceed to the place where the body of such deceased person is, and there, in the presence of two' or more respectable inhabitants of the neighborhood, shall make an investigation, and draw up a report of the apparent cause of death, describing such wounds, fractures, bruises, and other marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any); such marks appear to have been inflicted.
69
DR. K. N. CHANDRASEKHARAN PILLAI, R.V. KELKAR’S CRIMINAL PROCEDURE, EASTERN BOOK COMPANY, Edn.6th, 2014, p-198
statement signed and incorporated 73 inquest report is primarily to find out nature and
apparent cause of death, whereas post mortem contain details of injuries through scientific examination.74
In this case by the inquest report made by the police shows that deceased has dies due to the burn injuries. The burning marks on Manju body show that the injuries are serious in nature.
“If a document is admitted and corroborated by other evidence, it has to be given an exhibit number then court can rely on this”.75
45. Exhibit no.29 is the police report which is send to the district surgeon for post mortem.76 In the report it is already mentioned the cause of the death is the burn
injuries. Post mortem also explains the seriousness of the burn injuries. in post mortem report, doctor found the blue ink mark on thumb as well as great toe. This
71
Adi Bhumiani v. State, 1957CriLJ1152.
72
Mukanda and Ors. v. State, 1957CriLJ1187.
73
Narpal Singh v. State of Haryana, AIR1977SC1066. 74
again proves the veracity of the dying declarations which were taken by the 2 different constables.
46. Exhibit no. 32 Arrest and cloth seizure – it was taken by the Asst.Police Inspector J.M. Gunjal77. He arrested accused on 28/09/2010 at around 5 pm. Police also called
two independent witnesses to prepare seizure panchnama. Police seized one white shirt and one blue cotton pant and packed, sealed and labeled the cloth and send it to the Chemical Analyzer. The accused himself told that he wore that cloth on the day of the incidence. Independent witnesses were also present and smelled the cloth and found the cloth smelling of the kerosene. Moreover he didn’t refuse to wear the same cloth in the statement taken under the Section 31378 of CrPC.
75
S.C.Sarkar, The Code of Criminal Procedure (2012 edtion), Volume 1, Lexis Nexis Butterworths Wadhwa Nagpur.
76
Supra Note 8, p-15 77
Supra Note 8, p-18 78
“The wide power given to a police officer to seize property under this section should be availed only in those cases where he has power to investigate into offences conferred by the code or by other law”.79
47. Exhibit no. 15 that is C.A. report proves that the accused cloth was having the traces of kerosene.
Both report and statement of Rohan pravin Chandra proves that the kerosene was there on the cloth of the accused that proves that he was present inside the house at the time of pouring of the kerosene and he himself lighted the matchstick on her80.
48. Exhibit No. 38 Post mortem report81 and Exhibit No. 45 Indoor Case Papers82 -both Exhibit clearly shows that this is the case of burn injuries and deceased got 63% burn injuries83. From these burn injuries she died.
79
Nemichand Jain v. Supt. of Central Excise and Customs, (1963) 2 CriLJ 80
Supra Note 8, pp-4, 16 81
After death. A term generally applied to an autopsy or examination of a dead body, to ascertain the cause of death, or to the inquisition for that purpose by the coroner.
The post mortem report said that there was ink mark on the left thumb and right toe of the deceased that shows police constable came and took the statement of the deceased and the she also made the thumb impression on the dying declarations. That makes the dying declaration more reliable.
49. Exhibit No. 51, medical officer of the rural hospital Mhadur found the burnt injuries on the hand of the accused84. This shows that the accused burned her wife and in this
process he got this burnt injuries.
50. Spot panchnama – this was done by the API Gunjal in the presence of the Atmaram and Avinash (2 independent witness)85.
Section 10086- Persons in charge of closed place to allow search. (4)Before making a
search under this chapter, the officer or other person about to make it call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is sitauate or of any other locality if no such inhabitant of the said localitities is available or is willing to be a witness to the search, to attend and
Supra Note 8, pp-29, 40 84 Supra Note 8, pp-49, 50 85 Supr Note 8, p-45 86
witness the search, to attend and witness the search and many issue an writing to them or any of them so to do.
In this case 5 things are seized by the Mhadur police station87, they are –
a. Bluish liquid in a plastic can b. Match stick containing match sticks c. Partly burnt saree and blouse d. T-shirt wrapped in paper. e. Full pant wrapped in paper
51. Supreme Court said that if the discovery of a fact is otherwise reliable its evidentiary value is not diminished by reason of non-compliance of section 100(4) and (5).88
Mere non-compliance of the provisions in the code would not by itself vitiate the prosecution.89 It has been observed that non-compliance with the provision of section
and 165 of the code will not vitiate the trial or make evidence of the search officer
87
Supra Note 8, p-4 88
Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh, (2010)2SCC748.
inadmissible in evidence.90 The Provisions are sometimes considered to be directory
only.91
52. Though there is nothing in law that prohibits searches being carried out during night, it has been held that, when not inconvenient, they should be conducted during daytime so as avoid any compliant on the part of the accused that there was room for unfair practice like ‘planting’ articles.92 That’s why in this case the spot panchanama
is prepared on 25th October Morning.
53. With a view to ensuring that the witnesses for the search are disinterested persons, the word ‘independent’ has been inserted in sub-section (4).93
The non-compliance of the condition in clause of section 100 of crpc does not affect the validity of the search on conviction.94
At the highest regularity in the search and recovery in so far as the terms of section 100(4), Crpc, 1973 have not been fully complied with, does not affect the legality of 90
A.P. Kuttan Panicker and Ors. v. State of Kerala, (1963)CriLJ669. 91
Fedders Lloyd Corporation (P.) Ltd. v. B.A.Lakshminarayana Swami, AIR1969Del26 92
Supra note 55. 93
the proceedings. It only affects the weight of evidence which is matter for the court to decide.95
Oral Evidences (Witness
Testimonies)-54. All the witnesses presented by the respondents at the time of the trial are true to their submission and support the allegations posed on the appellants and thereby convict him for the said offences. The court defined interested witnesses as relative, friend or person having relations called interested witness.96
PW1, Vijay Nemade
55. He is the neighbor of the accused and deceased. On the date of the incident at around 8am he was unloading sand from the trolley of tractor near his house when he heard the shouts of the deceased and saw her coming out of house engulfed in fire97.
Immediately, he along with four others rushed towards her to extinguish fire. After extinguishing fire they took her to Ambikapur hospital where she was admitted. After his chief examination the APP requested the court to cross examine the witness since he had completely resiled from the contents of his statement. Permission was 94
Bai Radha v. The State of Gujarat, AIR1970SC1396.
95
State of H.P.v. Sukh Ram, 2003CriLJ 219.
granted for the same98. In his statements before the court he said that the deceased had
not stated anything to him about the incident, but when his statement was taken by the police two years prior to the trial, there he mentioned the deceased had told him about the entire incident, and then later before the court he says that he cannot assign any reason as to why it was there in his statement and that it is not correct99. This act of the
witness shows that he had turned hostile and now it is upon the court to not give reliance to his statement and discard his testimony altogether. Although the trial court accepted that the witness has turned hostile but it did not discard his testimony thereby committing an error in this matter. His testimony should be discarded in the sense that it contradicts his statements and there are no corroborative evidences to support the same.
56. Meaning of Hostile Witness in English Law- A witness id said to be hostile, if he exited manifest antipathy, by his demeanor, answers & attitude, to cause party calling him by making contradictory statement inconsistent with his previous statement.100
97 Supra Note 8, p-5 98 Supra Note 98 99 Supra Note 8, pp-5, 6
According to Oxford dictionary “'contradiction' means to offer the contrary. If a witness deposes in the court that a certain fact existed but he has not stated accordingly in his statement before the police, it is a case of conflict between the deposition in court and statement before the police. Therefore statement before the police can be used to contradict his deposition before the court.”101
“If a witness has deposed in the examination in chief a certain thing which he has omitted to state before the police in his statement it is called omission. If the said omission is on minor points, it is not contradiction and court will not take cognizance of those omissions. Court will take cognizance of those omissions which are on material point and which are called contradictions by way of omissions.102
57. In the Indian context, the principles dealing with the treatment of hostile witnesses are encompassed in Section 154 of the Indian Evidence Act, 1872 , defined hostile witness as one “who is not desirous of telling the truth at the instance of one party calling him.” 103
Justice C.K.Thakker, Law of Evidence, Volume 1, 2013 Edition, Whytes & Co., p-76.
101
Maharashtra Judicial Academy http://mja.gov.in/Site/Upload/GR/summary%20of%20second%20work%20shop %20criminal%20dated%2010-01-15.pdf, last accessed on 2/16/2016, 23:15
102
Ibid 103
Hostile witness is a witness who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth, to the court.104
Hostile witness means the statement who makes statements adverse to the party calling and examining him, and who may, with the permission of the court, be cross examined by that party.105
Before giving permission it is usual for a judge to look into the police to see whether the witnesses the witness was actually resiling from the taken during the investigation.106
58. In Sat Paul v. Delhi Administration, the Hon’ble Supreme Court held that, It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of is testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally
104
Justice C.K. Thakker, Encyclopaedic Law Lexicon, Volume 2, p-2172. 105
Praphulla Kumar Sarkar v. Emperor AIR1931Cal401
discredited, the Judge should, as a matter of prudence, discard his evidence in totality.107
59. In the instant case, Vijay Nemade resiled from the police statement, which he gave during the investigation. He is not telling the truth to the court and he is also not desirous of telling the truth. So court cannot rely on the statement of Vijay Nemade because he already changed his statement once. Moreover his present statement to the court is not corroborating with any of the evidences produced. So we have to discard the testimony of Vijay Nemade.
DW1, Ketan Nemade
60. After cross examining this witness it was apparent that he was merely an interested witness whose testimony cannot be relied upon. He had visiting terms to the house of the accused and also had close relations with him. Most importantly, in his statement he mentioned that he does not know what actually happened in the house of the accused, and that he only saw pieces of burnt saree lying outside the house of the accused108. All these facts make him an interested witness and not an independent one.
PW2, Sharad Walunj
61. He is the head police constable who recorded the first dying declaration and was posted to Ambikapur Chowky109. His testimony is reliable and trustworthy, firstly
107
1976CriLJ295
108
because he had no personal interest of his own in order to convict the accused and secondly, he performed his duty according to the due procedure and correctly recorded the dying declaration of the deceased. As soon as he got the information about the incident from the police station, he rushed to the hospital to take the necessary steps. He confirmed about the physical and mental condition of the deceased with the medical officer on duty and then started to record her statement wherein she stated the whole incident to him that as to what happened on the date of the incident and how the accused had caused her burn injuries by setting her ablaze and since their marriage he was harassing and ill-treating her by abusing, threatening and assaulting her in order to get amount from her mother, and therefore, she has a legal complaint against him110.
Moreover, minute inconsistencies in the procedure do not tend to discard the testimony altogether and cannot supersede the most important aspect of delivering justice by convicting the accused for the offence he committed.
PW3, Rohan Pravin Chandra
62. He is a panch witness who was called by the police in Mhadur police station for panchanama111. His testimony is reliable in the sense that firstly, he had no personal
connections with the Mhadur police prior to this incident and except this case he had not worked as a panch witness for them. Secondly, the police had seized the clothes of the accused in his presence, which smelled of kerosene, and their smell was verified
Supra Note 8, p-7 110
Supra Note 8, pp-7, 8 111
by the chemical analyzer report wherein the tests of the results were found to be positive112. He also smelled the clothes and confirmed the smell of kerosene on the
clothes113.
Hence this is corroborative evidence sufficient enough to prove the guilt of the accused.
PW4, Subhash Shivaji Awhad
63. He is the Police Head Constable who recorded the second dying declaration of the deceased and was posted at Mhadur police station. He got information from Senior Police Inspector, Mr.Mehere about the said incident and was instructed to record the patient’s statement114. He rushed to the hospital as per the instructions and after the
confirmation given by the doctor with respect to the physical and mental state of the deceased, he went to record her statement. She disclosed to him the entire incident as to what argument they had in the morning, how he set her ablaze and that since marriage he was harassing, threatening, and assaulting her over demand for money to be brought from her maternal house115. His testimony is admissible and reliable to the
extent that he abided by the legal formalities and carried out the procedure with utmost responsibility by taking the statement, handing over the statement in the police 112
Supra Note 8, pp-4,16 113
Supra Note 112 114
station on the basis of which the crime was registered, station diary entry was made and finally the investigation handed over to the Police Inspector116.
PW5, Dr. Abhijeet Bala Shelke
64. He is the autopsy surgeon who received the corpse of the deceased along with the inquest for autopsy examination117. He conducted the post mortem of the body of the
deceased and after that he was of the opinion that the reason for her death was the injuries caused to her which gave her tremendous shock, ultimately leading to her death. His opinion is verified by the documentary evidence of the post mortem report which bears his signature as well118.
Hence, this corroborates with the other evidences as well I order to prove the guilt of the accused thereby convicting him for the said offence.
PW6, Dr. Pandit Swami 115 Supra Note 8, pp-20,23 116 Supra Note 8, p-21 117 Supra Note 8, p-24 118
65. He is the doctor who treated the deceased till her death119. His testimony is admissible
and reliable in the sense that there isn’t any kind of inconsistency between the ocular evidence and the medical evidence. He examined her when she was admitted in the hospital and found that she sustained 63% superficial to deep burn injuries. He prepared Indoor case papers (Medico Legal Certificate) for the same by making day to day entry of regarding her condition and signed them at the end120. He performed
his duty reasonably by first examining the patient’s condition before the recording of her statement could be done by the police and took note of the same by making endorsement at the end, thereby stating it to be true and correct. Both the ocular and the medical evidence are of the same view that the death was homicidal in nature121.
PW8, Atmaram Devidas Nemade
66. He is the panch witness who was there in the house of the accused for spot panchanama122. In his presence, the police seized the articles, ie., burnt pieces of saree,
plastic can and matchbox found in the house of the accused and prepared the panchanama on which he signed at the end after the contents were read over to him and he ascertained them to be correct123. Hence, his testimony corroborates with other
evidences in order to bring home the guilt of the accused. 119
Supra Note 8, p-33 120
Ibid 121
PW9, Vasudeo Shridhar Pote
67. He is the Police Inspector, attached to the Mhadur police station, in the instant case who conducted the initial investigation and prepared the spot panchanama in the presence of two panchas124. His testimony is admissible since he completed his duties
as a matter of procedural requirement and did not leave any scope for discrepancies. He mentioned in his statement that he himself seized the plastic can containing kerosene, match box and half burnt pieces of saree, drew the panchanama, put his signature on the same after he was satisfied that the contents read over to him were correct125. Thereafter, he handed over the investigation to the Assistant Police
Inspector.
PW7, Jayesh Manohar Gunjal 122 Supra Note 8, p-51 123 Ibid 124 Supra Note 8, pp-52,53 125
68. He is the Assistant Police Inspector who was handed the latter part of the investigation process to be completed126. After the spot panchanama was prepared, he recorded
statements of few witnesses. Later he arrested the accused and seized his clothes under the arrest and seizure panchanama which bears his signature as well as of the panchas. As a matter of procedural requirement, after completion of the investigation process, he filed the charge-sheet against the accused before JMFC of Mhadur and then presented the accused before the court127. His testimony is of chief importance
since it appropriately backs the entire investigation process which is a crucial part of the case, and thus holds credibility and reliability which cannot be denied.
[II] THE ACCUSED WAS UNJUSTLY ACQUITTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 498 OF IPC.
69. The counsels on behalf of the respondents humbly submit before this Hon’ble Court that the accused Somnath Rajiv Satpute is also guilty for the offence punishable under Section 498A128 of IPC. The Sessions Court had wrongly acquitted the accused of the
126
Supra Note 8, pp-45,46 127
Ibid 128
charges under Section 498A of IPC. The act by accused satisfies the conditions mentioned in Section 498A of IPC. The Explanation (b) of the said section talks about cruelty/harassment done on a woman so as to coerce her or any person related to her to meet any unlawful demand for any property or valuable security and may also harass her or any person related to her on failure of meeting such demand.
70. The accused had harassed his wife and this can be easily deduced from the facts of the case. The facts of the case say that the deceased Manju Somnath Satpute was being harassed by the accused from a long time as he wanted her to ask her parents to give some money129. As she was not bringing any money in that respect so he subjected her
to cruelty by harassing and ill-treating her both physically and mentally. He made illegal demand for money by abusing her130. These facts clearly shows us that she was
abused, threatened and harassed by the accused and which accounts to cruelty and comes under Explanation (b) of Section 498A of IPC.
71. The same can also be seen in the dying declarations by the deceased. The deceased made two dying declaration and both of them are consistent on the same matter. In the first dying declaration she told the officer that her husband asked her to get money from her mother and on that account used to abuse, threaten and beat her131. In the
second dying declaration (which also has been treated as complaint statement in the 129
Supra Note 9 130
Ibid 131
