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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)