STATE OF MAHARASHTRA ETC. Vs PRAVIN MAHADEO GADEKAR ETC.
Bench: PINAKI CHANDRA GHOSE,UDAY UMESH LALIT
Case number: Crl.A. No.-002071-002072 / 2008
Diary number: 9214 / 2008
Advocates: ASHA GOPALAN NAIR Vs
KAILASH CHAND
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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)