STATE OF MAHARASHTRA Vs HEMANT KAWADU CHAURIWAL ETC
Bench: PINAKI CHANDRA GHOSE,R.K. AGRAWAL
Case number: Crl.A. No.-001828-001829 / 2013
Diary number: 8887 / 2013
Advocates: NISHANT RAMAKANTRAO KATNESHWARKAR Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1828 - 1829 OF 2013
STATE OF MAHARASHTRA ….. APPELLANTS
VERSUS
HEMANT KAWADU CHAURIWAL ETC. ….. RESPONDENTS
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These appeals, by special leave, have been directed against the
judgment and order dated 2.07.2012 passed by the High Court of
Judicature at Bombay, Nagpur Bench, Nagpur, in Criminal Appeal
Nos.53 of 2007 and 70 of 2007. Criminal Appeal No.53 of 2007 was
filed by accused No.1, who was husband of the deceased and Criminal
Appeal No.70 of 2007 was filed by accused No.4, who was the
mother-in-law of the deceased. Both these accused are respondents
herein. Apart from the above two accused, there were three other
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accused but they were acquitted by the Trial Court while the
respondents were convicted. In appeal by the convicted respondents,
the High Court quashed and set aside their conviction and sentence
and absolved them of all the charges.
2. The facts of the case, as disclosed by the prosecution, are that an
FIR was lodged on 21.06.2004 at Ghatanji Police Station after receipt
of dying declaration recorded on 20.06.2004, by Naib Tehsildar at
Yavatmal General Hospital. In the morning of 20.06.2004, deceased
Asha Hemant Chauriwal was brought to Ghatanji Hospital for
treatment of burn injuries. She was later shifted to Yavatmal Hospital
for further treatment. Her dying declaration was recorded by Naib
Tehsildar at around 5:45 PM on the same day, following which the
above said FIR was lodged. The deceased died on 22.06.2004 due to
septicemia as a result of 88% dermo epidermal infected burn injuries.
3. After investigation, charge-sheet was filed against five accused.
After considering the material on record and hearing the counsel for
the accused persons, they were charged for offences punishable under
Section 302 read with Section 34, Section 304-B read with Section 34
and also under Section 498A of the Indian Penal Code, 1860
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(hereinafter referred to as “IPC”). The charges were read over and
explained to them. All the accused persons pleaded not guilty and
claimed for trial.
4. The Trial Court by its judgment and order convicted accused
Nos.1 and 4. Accused No.1 was convicted for offences punishable
under Section 302 as well as Section 498-A read with Section 34 of
the IPC. However, accused No.4 was convicted only for the offence
punishable under Section 498-A of IPC. Upon appeal by the two
convicted respondents, the High Court by the impugned judgment and
order allowed both the appeals on the ground that the prosecution
failed to bring home the guilt of these accused beyond reasonable
doubt and as such, they were entitled for benefit of doubt. The High
Court quashed and set aside their conviction and sentence and
absolved them of all the charges. The State of Maharashtra is in
appeal before us, challenging their acquittal order.
5. The prosecution case as accepted by the Trial Court was based on
two important evidences: Firstly, the dying declaration made by the
deceased to the Naib Tehsildar based upon which the accused
husband was convicted for the murder of the deceased. Secondly, the
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Trial Court relied on the letters allegedly written by the deceased to
her father, which disclosed mental and physical cruelty imputed on
the deceased by her in-laws, based upon which the Trail Court
convicted accused husband and accused mother-in-law for the offence
of cruelty.
6. Learned counsel appearing for the appellant has made various
submissions on the basis of the Trial Court judgment. It was argued
that the dying declaration and the evidence of PW1 (Naib Tehsildar)
and PW5 (attending Doctor) along with the certificate of the doctor
leads to the conclusion that the dying declaration was truthful and
reliable and was correctly recorded. The said dying declaration was
contended to be consistent with the testimony of the witnesses of PW1
and PW5. As against the alleged letter the petitioner counsel
vehemently argued that the evidence of PW3 (father of the deceased)
and PW4 (mother of the deceased) corroborated the incidence of
cruelty committed upon the deceased. Further the evidence of PW3
proved that the alleged letters were written by the deceased in her own
handwriting.
7. Learned counsel appearing for the respondents/ accused made
various submissions countering the arguments put forward by the
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appellant. The FIR was contended to be delayed by about one full day.
The learned counsel pointed out various lapses and contended that
the prosecution failed to materially explain few facts. For instance,
there was no explanation as to why there was delay in lodging the FIR;
the dying declaration reached the police station late by about one full
day; the material witness were not examined as to explain such delay;
material recovery at the spot was not conducted. Another fact which
was not explained by the prosecution was as to why no action or
investigation was initiated when the police officers came to know
about the death of a person on 20.06.2004 in the Yavatmal
Government Hospital itself. The respondents' counsel also argued that
the alleged letters were not proved by the prosecution to be in the own
handwriting of the deceased.
8. In our considered opinion, two main arguments have been
advanced before this Court and we shall now examine each and every
contention in light of the arguments adduced before us. It is a settled
law that dying declaration can be the sole basis of conviction and it
does not require any corroboration. But it is equally true that dying
declaration goes against the cardinal principle of law that 'evidence
must be direct'. Thus, dying declaration must be judged and
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appreciated in light of the surrounding circumstances and its weight
determined by reference to the principle governing the weighing of
evidence. In the present case, dying declaration was recorded by the
Naib Tehsildar after she was informed vide a Memo by the police
authorities. However, it is on record that the said police official who
delivered the Memo was never produced or examined before the Court.
The Naib Tehsildar deposed before the Court that fitness certificate as
to mental capacity of the deceased was taken from the doctor.
However, the certificate nowhere states that the deceased was in a fit
and stable mental condition at the time of making the statement. The
dying declaration was recorded on 20.06.2004 i.e. the same day of
incident but the same was recorded at 5:45 PM and it is undisputed
that the incident occurred in the morning at 8:00 AM. The Naib
Tehsildar specifically deposed that she ordered the blood relation of
the deceased to be removed from the ward. The dying declaration was
signed by the Naib Tehsildar PW1, the doctor PW5 and thumb
impression of the deceased was taken at about 5:55 PM. The dying
declaration then formed the basis of the FIR on 21.06.2004 at
Ghatanji Police Station, however, there is no explanation as to in
whose custody the said crucial piece of evidence was placed for one
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full day. The prosecution did not give any evidence to explain the said
delay.
9. The second issue which is of paramount consideration is the
alleged letters written by the deceased to her father, which were
argued to be in her own handwriting. PW3 himself deposed that he
only produced a few letters which helped his case. Further, he himself
testified that the letters were written by the deceased in her own
handwriting as was known to him. The prosecution, however, had a
duty to establish the veracity of such an important piece of evidence.
The prosecution explained that it was unable to find the handwriting
of the deceased by any other means. However, it is not explained as to
what steps were taken to investigate the said evidence in the case.
Another important fact which is on record is that while recording the
dying declaration, Naib Tehsildar deposed that the deceased was
illiterate and the dying declaration was read over and explained to her.
These two facts are self-contradictory and severely detrimental to the
prosecution case which ought to have been explained by the
prosecution.
10. Apart from the above two pivotal facts, the testimonies of
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PW3 (father of the deceased), PW4 (mother of the deceased) and PW5
(investigating officer) are worth considering. PW3 and PW4 both
deposed that the deceased used to narrate about the incidents of
cruelty committed upon her. Physical beating after the 12 th day of the
marriage was deposed, the taunt which the deceased used to face for
not cooking well, the rationing on edible items, etc.. However, when
the cross-examination was made, these witnesses have not stated
these facts to the police and it was only before the Court that such
material improvements were made to support the prosecution case.
11. The Investigating Officer seemed to have deliberately or
negligently erred in investigating the case. The case was of burn
injuries, there ought to have effect of the incident in the house, the
place of occurrence was an important fact, the seizure of surrounding
material was also important. However, no such efforts were made.
Even the handwriting of the deceased was not investigated. In the
light of the above, the defence deposed before the Court that the
deceased locked herself in the bathroom, poured kerosene and set
herself on fire. It was further stated that the accused had to break
open the door and then the deceased was taken to the hospital. The
Investigating Officer could have easily located the place of occurrence
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or even a broken door or lock. The probability here, tilts in favour of
the accused that possibility of suicide being committed by the
deceased cannot be ruled out completely.
12. In our opinion, the two pivotal evidence i.e. dying declaration
and the alleged letters having not been proved, strikes at the very root
of the prosecution case. We are, therefore, of the view that the High
Court rightly pointed out the lacunae in the shabby investigation of
the case. Moreover, the prosecution failed to stand its ground and
bring home its case.
13. Thus, in the light of the above discussion, we find no
compelling and substantial reasons to interfere with the judgment
passed by the High Court. The appeals are, accordingly, dismissed.
…....................................J (Pinaki Chandra Ghose)
…...................................J (R.K. Agrawal)
New Delhi; December 16, 2015.