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Sunday, April 12, 2015

We have perused the entire record including the dying declarations. In our view dying declaration Ext. 96 as recorded by the Executive Magistrate is the most crucial document. Said document itself records the appropriate satisfaction and certification by the medical professional namely PW7 Dr. Vijay Kalne before and after recording of the dying declaration. PW7 Dr. Vijay Kalne clearly stated in his deposition that he had examined Sadhana and found her pulse and Blood Pressure normal, that she was well oriented and that she was mentally fit. He further stated that he was all the time present while the statement recorded. In the circumstances the dying decalration Ext. 96 is absolutely reliable. On the point that Pradip had set Sadhana ablaze, there is no inconsistency in any of the dying declarations and they in unison point the finger at him. Even with respect to the role of Pravin the declarations Exts. 96 and 98 are quite consistent. There may be some exaggeration on part of PW 1 Suryakanata and PW 5 Narmadabai, but the supplementary statement of Sadhana dated 7.11.1995 put the matter completely beyond any doubt. 12. The dying declaration Ext.96, in our view is definitely trustworthy. It also stands corroborated on material aspects by other declaration Ext.98. If some exaggeration on part of PW1 Suryakanta and PW5 Narmadabai is eschewed, their oral testimonies also lend full support. Whether Sadhana was able to speak coherently is a matter which stands dealt with by PW7 Dr. Vijay Kalne, and we have no hesitation in placing reliance on dying declaration Ext.96. The High Court was in error in discarding said dying declaration. The view which weighed with the High Court was not even a possible view. We, therefore hold that the charges under Sections 302 and 354 as against Pradip and Pravin respectively stand fully proved. We affirm the acquittal of Pradip with regard to charge under Section 498A of the IPC. 13. In the circumstances we allow these appeals and set aside the judgment and order of acquittal recorded by the High Court. The respondent Pradip is convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.1,000/-. Respondent Pravin is convicted under Section 354 IPC and sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.500/-, in default whereof to suffer further rigorous imprisonment for one month. Both the respondents Pradip and Pravin be taken in custody forthwith to undergo the sentence awarded to them.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOs.2071-2072 of 2008


State of Maharashtra Etc.                             .... Appellant


                       Vs.

Pravin Mahadeo Gadekar  Etc.                          .... Respondents




                       JUDGMENT




Uday Umesh Lalit, J.


1.    These appeals by Special Leave are directed against the  judgment  and
order dated 7.12.2007 passed by the High  Court  of  Judicature  at  Bombay,
Bench at Nagpur in Crl. Appeal Nos. 255 of 2001 and 306 of 2004.

2.    Deceased  Sadhana,  daughter  of  PW  5  Narmadabai,  was  married  to
respondent Pradip four to five years prior to the date of  incident.   After
marriage, Sadhana was residing with Pradip in  the  matrimonial  home  where
the other inmates  were  Parwatabai  mother-in-law  and  respondent  Pravin,
brother-in-law. After the marriage, Sadhana  was  subjected  to  cruelty  by
Pradip and other in laws and she was constrained to  leave  her  matrimonial
home.  A report was lodged by Sadhana on the  basis  of  which  these  three
persons were prosecuted.  However the dispute was settled  and  she  started
co-habiting with Pradip.

3.    It is the case of  prosecution  that  in  the  morning  of  6.11.1995,
deceased Sadhana suffered burn injuries.  Her husband Pradip  also  suffered
burn injuries.  Both were rushed to Distt. Hospital,  Akola  for  treatment.
One Shelke gave information to police on telephone.  PW1 Suryakanta,  friend
of Sadhana and PW5 Narmadabai, mother of Sadhana visited her  separately  in
the hospital and Sadhana is  stated  to  have  disclosed  that  her  husband
Pradip poured kerosene on her and kept pallu of her  saree  on  the  lighted
cooking gas setting her ablaze.

4.     In the night intervening 6.11.1995 and 7.11.1995  while  Sadhana  was
undergoing treatment, arrangements were made to record her statement.    PW8
Vijay Singh Pawar who was working as Naib Tehsildar, Akola was requested  to
record her statement.  He therefore went to the  Distt.  Hospital,  met  PW7
Dr. Vijay Kalne, Medical Officer  Distt.  Hospital  and  asked  vide  Ext.95
whether Sadhana was in a position to make a statement.  PW7 Dr. Vijay  Kalne
examined Sadhana and vide Ext.  92  certified  that  she  was  conscious  to
record Dying Declaration.  After such certification PW 8 Vijay  Singh  Pawar
proceeded to record the statement Ext.96 of Sadhana.   In  response  to  the
question how the incident had occurred she stated  inter  alia  that  Pravin
had attempted to commit rape on her few days  back  and  when  she  narrated
this to Pradip after he came back, Pradip poured kerosene  on  her  and  set
her ablaze.  At the end  of  the  statement,  mark  of  her  right  toe  was
appended vide Ext. 96 as  her  hands  had  sustained  burn  injuries.  After
conclusion of the statement, endorsement was made by PW7 Dr. Vijay Kalne  at
3.25 am vide Ext.93 that the patient  was  conscious  to  record  the  dying
declaration.

5.     Pursuant  to  the  aforesaid  statement,  FIR  was  registered  under
Sections 498A, 307, 354 read with 34 IPC in city  Kotwalli  Police  Station,
Akola  against  Pradip,  Pravin  and  their  mother   Parvatabai.     In   a
supplementary statement recorded on 7.11.1995  Sadhana  clarified  that  her
brother-in-law Pravin had come to rape her on Monday, that he  had  molested
her but had not committed any rape on her and that upon her  raising  shouts
he had gone away.

6.    Her statement under Section 161 Cr.P.C.  was  recorded  by  police  on
8.11.1995 where she stated that  in  the  night  intervening  2.11.1995  and
3.11.1995 Pravin had held her in his arms and outraged her modesty and  that
when Pradip came back from Nagpur on 5.11.1995,  she  complained  about  the
incident.  She further stated  how  Pradip  set  her  ablaze  on  6.11.1995.
Sadhana succumbed to her burn injuries on 10.11.1995 and the  offence  under
Section 302 IPC was registered against the  accused.   The  post-mortem  was
conducted on the same  day  by  PW6  Dr.  Prashant  Waichal  in  the  Distt.
Hospital at Akola who found second degree burn injuries  to  the  extent  of
96% spread over head, neck and  face.    After  investigation  police  filed
charge-sheet against  Pradip,  Pravin  and  Parwatabai  for  offences  under
Sections 498A, 302 read with 34 IPC.  Pravin was  additionally  charged  for
offence under Section 354 IPC.

7.    The prosecution examined nine witnesses.  PW 7 Dr. Vijay Kalne in  his
deposition stated that the  Executive  Magistrate  had  made  a  request  in
writing to certify if Sadhana was  conscious  and  fit  to  give  her  dying
declaration.   The witness stated that he examined  the  patient  and  found
that her pulse and Blood Pressure were normal, that she  was  well  oriented
and was mentally fit.  After having so examined he gave a  certificate  vide
Ext. 92.  He further stated that after the statement was recorded, he  again
examined the patient and gave a certificate that  she  was  conscious  while
the dying declaration was recorded. His later certification  was  marked  as
Ext. 93.   He further stated that  he  was  present  all  throughout.    PW8
Vijay Singh Pawar stated how he had  requested  PW  7  Dr.  Vijay  Kalne  to
examine Sadhana and that during the entire course  of  declaration  she  was
completely conscious. He stated that he had faithfully  recorded  the  dying
declaration as stated by Sadhana.   The trial  court  by  its  judgment  and
order dated 4.0.2001 in Sessions Case No. 113 of 1996 convicted  Pradip  for
the offence punishable under  Section  498A  and  sentenced  him  to  suffer
rigorous imprisonment for two years and payment  of  fine  of  Rs.500/-,  in
default whereof to suffer further rigorous imprisonment for six months.   He
was also convicted under Section 302 IPC and sentenced to life  imprisonment
and payment of fine of Rs.1,000/-, in default  whereof  to  suffer  rigorous
imprisonment for two years.  Pravin and Parwatabai  were  acquitted  of  the
offences under Sections  498A  and  302  read  with  34  IPC.   Pravin  was,
however, convicted for offence  under  Section  354  IPC  and  sentenced  to
suffer rigorous imprisonment for one year and payment of fine  of  Rs.500/-,
in default  whereof  to  suffer  further  rigorous  imprisonment  for  three
months.

8.    While holding Pradip guilty under Section 302  IPC,  the  trial  court
principally relied upon dying declaration Ext. 96 recorded by the  Executive
Magistrate i.e. PW 8 Vijay Singh Pawar.   It was  observed  that  the  dying
declaration  did  not  suffer  from  any  infirmity  nor  were   there   any
circumstances to show that it was not  truthful.    As  regards  oral  dying
declaration as deposed to by PW 1 Suryakanta  and  PW5  Narmadabai,  it  was
observed  that  though  there  were   inconsistencies,   their   depositions
completely supported the dying declaration Ext. 96.   As  regards  the  burn
injuries suffered by Pradip it was observed that while putting saree  border
on the lighted burner of the cooking gas, the  flames  might  have  engulfed
Pradip as well.

9.    Respondents Pravin and Pradip preferred Crl. Appeals No. 255  of  2001
and 307 of 2004 respectively in the High Court challenging their  conviction
and  sentence.  The  High  Court  observed  that  there  were   four   dying
declarations on record.   The  first  being  the  oral  declaration  to  PW1
Suryakanta, the second being as deposed to by PW5 Narmadbai, the  third  was
Ext. 96 as recorded by the Executive Magistrate and the last  was  Ext.  98,
i.e. her statement as recorded by  the  police  under  Section  161  Cr.P.C.
which now  could  be  treated  as  dying  declaration.    According  to  PW1
Suryakanta, Sadhana was raped by Pravin while PW5 Narmadbai stated  that  he
had outraged her modesty.  At the same time the dying  declaration  recorded
by the Executive Magistrate stated that there was an attempt to commit  rape
and the statement recorded by the police again stated that he  outraged  her
modesty.  These inconsistencies and difference in conversations referred  to
in  such  declarations,  according  to  the  High  Court  made   all   dying
declarations unreliable.  It was observed that  Pradip  had  also  sustained
burn injuries in the same transaction which were not explained at  all.   It
was further observed that the  evidence  produced  by  the  prosecution  was
inadequate to bring home the  charge  under  Section  498A  of  IPC  against
Pradip. The High Court thus acquitted Respondents Pradip and Pravin  of  all
the charges.

10.   Shri A.P. Mayee, learned advocate appearing for  the  State  submitted
that in so far as the assertion that said Sadhana was set  afire  by  Pradip
who had poured kerosene on her, there was  no  inconsistency  amongst  dying
declarations.    The  dying  declaration  Ext.  96  recorded  by   PW8   had
undoubtedly stated that Pravin had attempted to commit rape on her few  days
earlier. The statement recorded by the police Ext. 98 and the  supplementary
statement had put the matter in clear perspective when Sadhana  stated  that
Pravin had come to rape her but had not  succeeded  and  had  molested  her.
Mr. Sanjay Jha, learned advocate appearing  for  the  respondents  submitted
that a person who had suffered 96% burn injuries would not be in a  position
to think and speak  coherently  and  as  such  the  dying  declarations  are
completely suspect.  He further submitted that  such  a  patient  must  have
been given  sedatives,  which  again  would  make  it  impossible  to  think
coherently.

11.   We have perused the entire record including  the  dying  declarations.
In our  view  dying  declaration  Ext.  96  as  recorded  by  the  Executive
Magistrate is the most crucial document. Said document  itself  records  the
appropriate satisfaction  and  certification  by  the  medical  professional
namely PW7  Dr.  Vijay  Kalne  before  and  after  recording  of  the  dying
declaration. PW7 Dr. Vijay Kalne clearly stated in his  deposition  that  he
had examined Sadhana and found her pulse and  Blood  Pressure  normal,  that
she was well oriented and that she was mentally fit. He further stated  that
he was  all  the  time  present  while  the  statement  recorded.    In  the
circumstances the dying decalration Ext. 96 is absolutely reliable.  On  the
point that Pradip had set Sadhana ablaze, there is no inconsistency  in  any
of the dying declarations and they in unison point the finger at him.   Even
with respect to the role of Pravin the declarations  Exts.  96  and  98  are
quite  consistent.   There  may  be  some  exaggeration  on  part  of  PW  1
Suryakanata and PW 5 Narmadabai, but the supplementary statement of  Sadhana
dated 7.11.1995 put the matter completely beyond any doubt.


12.  The dying declaration Ext.96, in our view  is  definitely  trustworthy.
It also  stands  corroborated  on  material  aspects  by  other  declaration
Ext.98.  If some exaggeration on part of PW1 Suryakanta and  PW5  Narmadabai
is eschewed,  their  oral  testimonies  also  lend  full  support.   Whether
Sadhana was able to speak coherently is a matter which stands dealt with  by
PW7 Dr. Vijay Kalne, and we have no hesitation in placing reliance on  dying
declaration Ext.96.  The High Court was in error in  discarding  said  dying
declaration.  The view which weighed with the High  Court  was  not  even  a
possible view.  We, therefore hold that the charges under Sections  302  and
354 as against Pradip  and  Pravin  respectively  stand  fully  proved.   We
affirm the acquittal of Pradip with regard to charge under Section  498A  of
the IPC.






13.         In the circumstances we allow these appeals and  set  aside  the
judgment and order of acquittal recorded by the High Court.  The  respondent
Pradip  is  convicted  under  Section  302  IPC  and  sentenced  to  undergo
imprisonment for life and to pay fine of  Rs.1,000/-.     Respondent  Pravin
is convicted  under  Section  354  IPC  and  sentenced  to  suffer  rigorous
imprisonment for six months and to pay fine of Rs.500/-, in default  whereof
to  suffer  further  rigorous  imprisonment  for  one  month.     Both   the
respondents Pradip and Pravin be taken in custody forthwith to  undergo  the
sentence awarded to them.



                                       .............................J.
                                       (Pinaki Chandra Ghose)


                                       ...........................J.
                                       (Uday Umesh Lalit)
New Delhi,
April 10, 2015
ITEM NO.1B               COURT NO.13               SECTION IIA

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                   Criminal Appeal  No(s).  2071-2072/2008

STATE OF MAHARASHTRA ETC.                          Appellant(s)

                                VERSUS

PRAVIN MAHADEO GADEKAR ETC.                        Respondent(s)



Date : 10/04/2015      These appeals were called on for pronouncement
            of judgment today.

For Appellant(s) Mr. Aniruddha P. Mayee, Adv.
                       Mr. Charudatta Mahindrakar, Adv.
                       Mr. A. Selvin Raja, Adv.
                       Ms. Asha Gopalan Nair, Adv. (N.P.)

For Respondent(s)      Mr. Sanjay Jha, Adv.
                       Mr. R.D. Rathore, Adv.
                       Mr. Amit S., Adv.
                       Dr. Kailash Chand, Adv. (N.P.)

      Hon'ble Mr. Justice Uday Umesh  Lalit  pronounced  the  non-reportable
judgment of the Bench comprising Hon'ble Mr. Justice  Pinaki  Chandra  Ghose
and His Lordship.

      The  appeals  are  allowed  in  terms  of  the  signed  non-reportable
judgment as follows:-

"In the circumstances we allow these appeals and set aside the judgment  and
order of acquittal recorded by the High  Court.  The  respondent  Pradip  is
convicted under Section 302 IPC and sentenced to  undergo  imprisonment  for
life and to pay fine of Rs.1,000/-.  Respondent Pravin  is  convicted  under
Section 354 IPC and  sentenced  to  suffer  rigorous  imprisonment  for  six
months and to pay fine of Rs.500/-, in default  whereof  to  suffer  further
rigorous imprisonment for one  month.    Both  the  respondents  Pradip  and
Pravin be taken in custody forthwith to  undergo  the  sentence  awarded  to
them."



      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
        (Signed non-reportable judgment is placed on the file)

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