Criminal Appeal No. 292 of 2006. Case: Manik Vanaji Gawali Vs State of Maharashtra. High Court of Bombay (India)

Case NumberCriminal Appeal No. 292 of 2006
CounselFor Appellant: Joydeep Chatterji, holding, for R. S. Shinde, Adv. and For Respondents: Mrs. V. A. Shinde, A.P.P.
JudgesA. H. Joshi, J. and Sunil P. Deshmukh , J.
IssueEvidence Act (1 of 1872) - Sections 32, 45
Citation2013 CriLJ 972
Judgement DateDecember 21, 2012
CourtHigh Court of Bombay (India)


A. H. Joshi, J.

  1. Appellant herein was charged in Sessions Case No. 3 of 2004 by 4th ad hoc Additional Sessions Judge, Dhule, for pouring kerosene on his wife Sangita, setting her fire on 10.10.2003, at 4.15 p.m. and murdering her under Section 302 of the Indian Penal Code.


  2. The story as was put forward by prosecution:-

    On 10.10.2003 victim Sangita and accused Manik were present in their house. Accused had arrived at his house in a drunken state. Over some quarrel the accused got enraged due to the expression of the wife Sangita. He poured kerosene on her person and ignited her by a match stick. Sangita shouted. The accused poured water on her and extinguished the fire. Due to shouts of Sangita neighbours came up. One woman amongst the neighbours called Sangita's mother who arrived soon. One woman and Sangita's mother took Sangita to hospital. Sangita was admitted, examined and was treated by the Dr. Rahul Hatorkar the Medical Officer. Sangita gave oral dying declaration to her brother Nitin Patil. Police Officer and Executive Magistrate have recorded dying declarations. Sangita succumbed to those injuries. Medical Officer Dr. Mr. Rahul Hatorkar had opined that Sangita was fit to make the dying declaration.

    Accused had also suffered burn injuries, he was admitted in the hospital on 10.10.2003 and was discharged on 19.10.2003. He was arrested after discharge from hospital.

  3. Accused pleaded not guilty and claimed to be tried.


  4. Prosecution has examined in all eight witnesses as follows:-

    (a) For dying declarations:-

    - P.W.6 Rajesh Bhagwat - Assistant Sub-Inspector

    - P.W.1 Suresh Koli - Executive Magistrate

    (b) Medical witnesses:-

    - P.W.3 Dr.Rahul Hatorkar to prove the admission of Sangita in the hospital in Burn Ward, treatment, and her fitness to give dying declaration.

    - P.W.2 Dr. Ajit Patil - to prove post-mortem

    examination, the extent of burn injuries and cause of death.

    (c) For oral dying declarations:

    -P.W.7 Nitin Patil

    (d) Panch witnesses:

    -P.W.4 Prabhakar Wagh,

    - P.W.5 Kamlabai Navgire for spot panchnama and inquest panchnama, respectively.

    (e) Investigating Officer:

    -P.W.8 - Ukhardu Dhobi, P.I.

  5. The trial has ended in conviction towards the charge for murder and the sentence for life imprisonment, etc.

  6. Spot panchnama and inquest panchnama are not amongst the disputed facts.

  7. P.W.3 Dr.Rahul Hatorkar has proved the medical case papers Exh.29 showing that Sangita's mother had admitted her to the hospital, she was kept in Burn Ward. P.W.3 Dr. Hatorkar has recorded the background of the case. Relevant portion reads as follows:-

    (Vernacular matter omitted.... Ed.)

    at about 3 pm today."

    (quoted from paper-book page No. 66)

  8. It is seen that dying declaration, recorded as such which is first in point of time was recorded by P.W.6 Assistant Sub-Inspector Rajesh Bhagwat. He had arrived at the spot some time at 5.45 p.m. Medical Officer P.W.3 Dr. Rahul has certified that Sangita was conscious, fully composed, well oriented and in fit mental condition to give the statement. This dying declaration is Exh. 40.

  9. The version contained in the dying declaration Exh.40 when translated, would mean as follows:-

    (a) On 10.10.2003 Manik her husband arrived in the house at 16.15 hours. He was already drunk.

    (b) Sangita told the accused that people had arrived at the house to demand the repayment of loans taken by him and he should pay the loan immediately.

    (c) Getting angry with the talk, accused told her that she should engage herself in business (DHANDA KAR) and make the payment and abused Sangita with filthy language. He opened the can containing kerosene, poured it on her person and ignited with a match stick.

    (d) Her clothes caught fire. The fire became unbearable. She started shouting.

    (e) Neighbours arrived, saw her position.

    (f) Seeing that Sangita had caught fire, the accused Manik Gawali took her to hospital at 16.45 hours.

    (g) Her husband has second wife and Sangita's relations with second wife are good and she is not involved in the offence.

    (h) She has a complaint against her husband.

  10. Oral evidence of P.W.6 Rajesh Bhagwat is at Exh. 39.

  11. Second dying declaration is recorded by P.W.1 Suresh Koli an Executive Magistrate. It is Exh.21, and is at page 38.

  12. The contents of this dying declaration Exh.21 recorded by the Executive Magistrate are translated as follows:-

    (a) Accused arrived at home and asked for food, and she began to serve.

    (b) While taking food, accused demanded that she should bring from her home (parents) amount of Rs.50,000/- for paying interest bearing loans incurred by him. 10th day of month was nearing and the creditors were pursuing him for repayment.

    (c) Sangita declined.

    (d) Accused picked up the container of kerosene and poured the kerosene on her, lit a match stick and threw it on her person, in spite that she had objected.

    (e) She started shouting. Accused poured water on her and extinguished the fire.

    (f) Women in the lane telephoned her mother, who came and admitted her in the hospital.

    (g) Her husband has another wife and she stays in the area known as "Moglai" with whom her relations are good. Second wife is not involved in the commission of offence.

  13. Oral evidence of Executive Magistrate Shri Suresh Koli P.W.1 is at Exh.17.

  14. Prosecution has also relied upon oral dying declaration made by Sangita to P.W.7 Nitin Patil Sangita's brother whose oral evidence

    is at Exh.48. P.W.7 has deposed that the prosecutrix Sangita had revealed to him that she had committed suicide. Thus this witness has not supported the prosecution. He was declared hostile and was cross-examined. Nothing useful for prosecution was elicited in the cross-examination.

  15. The defence has emphasized following submissions:-

    (a) Prosecution has not proved that Sangita was in fit state of mind and health to give the dying declaration.

    (b) P.W.1 Executive Magistrate, P.W.6 Rajesh Bhagwat both who have recorded the dying declaration as well Exh.26 or Medical Officer Dr. Rahul Hatorkar the P.W.3 either, have not proved the device i.e. the questions put to Sangita and answers thereto given by her for ascertaining the state of her mind and health of Sangita to be fit for making the dying declaration.

    (c) The questions on the basis of which effort if any was made by the witnesses to ascertain the fitness based on questions and answers thereto, constitutes the material leading to opinion as to fact of the fitness of the declarant.

    (d) The statement that Sangita was fit to give dying declaration is an opinion by Medical Officer. In absence of proof of questions and answers between the doctor and the declarant it turns out to be subjective.

    In absence of proof of such questions and answers, it cannot be said that the prosecution has proved the basis of "opinion" as to fitness of the person to make said declaration.

    (e) Proof of questions and answers by the person recording the dying declaration too could make up deficiency in that regard on the part of the doctor. In present case P.W.1 Suresh Koli and P.W.6 Rajesh Bhagwat too did not reveal before the Court and did not prove that any questions for exploring the state of health and fitness were asked by them and outcome thereof if any i.e. answers were heard by them.

    (f) The version which is common in both the dying declarations is that the accused poured kerosene on her and set her to fire.

    (g) The circumstances immediately preceding and the reason of quarrel, which is the basic circumstance leading to reason of quarrel as disclosed in both dying declarations is at gross variance.

    (h) These variations are over the matters which are related to the cause of enragement of accused and are of crucial nature.

    (i) Both the dying declarations vary in material particulars.

    (j) The dying declaration is a statement as to cause of death, made by a person who could not be offered for and cannot be tested by cross-examination. Such statement therefore has to be proved to be free from all doubts.

    (k) Therefore, it will be extremely unsafe to believe such statement (as in present case) it being on the face of it shrouded with anomalies and doubts.

    (l) The version of P.W.7 Nitin Patil that oral dying declaration is as to suicide needs appropriate weight.


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