Gajanan S/O Laxman Ghate Vs. State of Maharashtra, Through Police Station Officer - Court Judgment

Excerpt:
criminal - dying declaration - evidence by related witness - evidentiary value - section 302 of indian penal code, 1860 - appellant-husband of deceased started ill-treating deceased after birth of girl child - appellant poured kerosene on deceased and pushed her on burning lamp due to quarrel - executive magistrate recorded dying declaration of deceased - deceased succumbed to injuries - trial court on basis of evidence held appellant guilty for offence under section 302 of ipc - whether evidence sufficient to base conviction of appellant under section 302 of ipc - held, evidence given by prosecution witnesses to prove oral dying declaration of deceased free from material omissions and contradictions inspite of said witnesses being close relatives of deceased - testimonies of prosecution witnesses inspired confidence and also corroborated by medical evidence - ample material on record to demonstrate ill-treatment of deceased by appellant - dying declaration totally proved by evidence of executive magistrate and also corroborated by testimony of medical officer - dying declaration is independent, trustworthy and reliable piece of evidence and is sufficient to award conviction to appellant for offence of murder under section 302 of ipc - appeal dismissed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the marriage of appellant with sushila had taken place in 1993. till sushila gave birth to female child, the appellant treated her well. it was submitted that relations between the relatives of deceased sushila and appellant were not cordial in view of legal proceedings initiated by sushila against the appellant under section 97 of the code of criminal procedure as well as under section 125 of code of criminal procedure for maintenance and, therefore, these witnesses have falsely implicated the appellant in crime in question. it was submitted that prosecution has not examined any independent witness to support its case and all the witnesses, who were examined by the prosecution, were close relatives of deceased sushila, who were highly interested in success of the prosecution case and, therefore, it was unsafe to rely on their evidence. it was, therefore, contended that the said dying declaration is not reliable and needs to be discarded. their evidence is free from material contradictions and omissions and, therefore, is trustworthy and reliable. however, merely because these witnesses are closely related to deceased sushila, that by itself cannot be the ground to discard the evidence of such witnesses if testimonies of such witnesses are otherwise reliable, trustworthy and corroborated by other evidence. vilas, medical officer and, therefore, this piece of evidence, which is independent, trustworthy and reliable is sufficient to award conviction to the appellant for the offence of murder.d.d. sinha, j.1. heard shri badar, learned counsel for the appellant, and shri jichkar, learned additional public prosecutor for the respondent.2. the criminal appeal is directed against the judgment and order dated 2.12.2003 passed by the additional sessions judge, khamgaon in sessions case no. 12/2003 whereby the appellant was convicted for the offence punishable under section 302 of indian penal code and sentenced to suffer imprisonment for life and to pay fine of rupees two thousand and in default of payment of fine, to suffer simple imprisonment for six months. the appellant was acquitted for the offence punishable under section 498a of indian penal code.3. the prosecution case, in nutshell, is as follows:the appellant was a resident of motipura, ward no. 14, nandura, district buldana. he was the husband of deceased sushila. the marriage of appellant with sushila had taken place in 1993. till sushila gave birth to female child, the appellant treated her well. however, after she gave birth to a female child, appellant started ill-treating her under the influence of alcohol. the appellant did not allow her relatives to meet her. the proceedings were initiated under section 97 of the code of criminal procedure and thereafter deceased sushila was brought to her maternal house where she stayed for about two-three years. during her stay at her maternal house, she also filed application under section 125 of the code of criminal procedure for maintenance before magistrate. however, the dispute between her and the appellant was settled somehow and, therefore, she went back to appellant for cohabitation. it is the case of the prosecution that appellant again started ill-treating her. about fifteen days prior to the incident in question, sushila brought saree from her sister. on account of that, appellant got enraged and kept on abusing and beating her. on 3.11.2002, at about 4 a.m., as usual, sushila got up. the appellant also got up and again started abusing her on account of saree, which she had brought from her sister. appellant poured kerosene on her person and pushed her on burning lamp, due to which, her saree caught fire and she sustained burn injuries to the extent of 91.5%. sushila was admitted to the general hospital, khamgaon. the executive magistrate recorded dying declaration of sushila. initially offence under section 307 of indian penal code was registered against the appellant. the investigating officer visited the spot and conducted spot panchanama and seizure panchanama. sushila, on 7.11.2002, succumbed to burn injuries in the general hospital, khamgaon. the offence was converted into one under section 302 of indian penal code against the appellant. on completion of formal investigation, charge-sheet was filed for the offence punishable under sections 498-a and 302 of indian penal code in the court of judicial magistrate, first class against the appellant. the matter was committed to the court of sessions, charge was framed and explained to the appellant, who pleaded not guilty and claimed to be tried. the trial court on the basis of evidence adduced by the prosecution held the appellant guilty for the offence punishable under section 302 of indian penal code, however, acquitted the appellant for the offence punishable under section 498-a of indian penal code. being aggrieved by the said judgment and order of conviction, the appellant has filed the present criminal appeal.4. shri badar, learned counsel for the appellant, submitted that though prosecution has adduced evidence of pw 1 santosh (brother of deceased sushila), pw 2 anusaya (mother of deceased sushila) and pw 3 mangala (sister of deceased sushila) on the point of oral dying declaration alleged to have been made by deceased sushila to them, however, their evidence is that of interested witnesses since all of them are close relatives of deceased sushila and, therefore, trial court was not justified in accepting the same in absence of independent corroboration. it was submitted that relations between the relatives of deceased sushila and appellant were not cordial in view of legal proceedings initiated by sushila against the appellant under section 97 of the code of criminal procedure as well as under section 125 of code of criminal procedure for maintenance and, therefore, these witnesses have falsely implicated the appellant in crime in question. it was submitted that prosecution has not examined any independent witness to support its case and all the witnesses, who were examined by the prosecution, were close relatives of deceased sushila, who were highly interested in success of the prosecution case and, therefore, it was unsafe to rely on their evidence.5. learned counsel shri badar further argued that pw 4 shrikrushna is uncle of deceased sushila, in whose presence, pw 13 api more has alleged to have recorded dying declaration of deceased sushila. it was contended that the said dying declaration (exh. 48) is lengthy and exhaustive dying declaration. it was contended that since sushila sustained 91.5% burn injuries, it was impossible for her to give such an exhaustive dying declaration. pw 13 api more did not obtain certificate of mental fitness from the doctor before and after recording the said dying declaration. it was submitted that pw 4 shrikrushna being uncle of deceased sushila also had an opportunity to influence the mind of deceased sushila since he was present during recording of dying declaration (exh. 48) by pw 13 api more. it was, therefore, contended that the said dying declaration is not reliable and needs to be discarded.6. shri badar, learned counsel for the appellant, submitted that so far as dying declaration (exh. 44) recorded by pw 11 vijay, executive magistrate is concerned, in the cross-examination pw 11 vijay has admitted that after recording of dying declaration, the doctor, without examining deceased sushila, gave a certificate that she was conscious during the course of recording of dying declaration. it was contended that this admission of executive magistrate makes the said dying declaration (exh. 44) doubtful.7. shri badar, learned counsel for appellant, further submitted that dw 1 kalpana is daughter of deceased sushila and appellant, who was, at the relevant time, ten years of age and has stated in her evidence that saree of her mother caught fire when she was preparing tea. at that time, this witness and appellant were asleep. they heard shouts and woke up and found that clothes of deceased sushila were on fire. the appellant tried to extinguish fire. sushila was taken to general hospital, khamgaon. it was submitted that evidence of dw 1 kalpana assumes importance because she is daughter of deceased sushila and would not allow perpetrator of the crime to go scot free. it was contended that taking into consideration the version of the defence witness and the untrustworthy prosecution evidence, the impugned judgment and order of conviction cannot be sustained in law.8. shri jichkar, learned additional public prosecutor for the respondent, on the other hand, supported the impugned judgment and order of conviction passed by the trial court. it was submitted that to prove the oral dying declaration of sushila, prosecution has examined pw 1 santosh, pw 2 anusaya and pw 3 mangala. their evidence is free from material contradictions and omissions and, therefore, is trustworthy and reliable. it was further contended that another piece of cogent evidence is dying declaration of deceased sushila recorded by pw 11 vijay, executive magistrate (exh. 44). it was contended that before recording dying declaration of sushila, certificate of pw 12 dr. jaiswal about her mental fitness was obtained by the executive magistrate and dying declaration was recorded only thereafter. it was submitted that dying declaration (exh. 44) is duly proved by the executive magistrate. it was contended that oral dying declaration given by deceased sushila to the other witnesses and the dying declaration of deceased sushila (exh. 44) recorded by pw 11 vijay, executive magistrate are corroborated by the medical evidence of pw 9 dr. vilas and, therefore, trial court was justified in convicting the appellant for the offence punishable under section 302 of indian penal code. it was submitted that so far as dying declaration recorded by pw 13 more, api is concerned, the trial court has not placed any reliance on the said dying declaration. similarly, so far as evidence of dw 1 kalpana is concerned, same has been rejected by the trial court on the ground that at the time of arrest of appellant, no injuries were noticed on either palms of the appellant or on any other part of the appellant. it was, therefore, contended that the impugned judgment and order passed by the trial court is sustainable in law.9. we have considered the rival contentions canvassed by the learned counsel for the parties and carefully scrutinized the prosecution evidence. in the instant case, the prosecution has examined pw 1 santosh, pw 2 anusaya and pw 3 mangala to prove oral dying declaration given by deceased sushila to them that appellant poured kerosene on her person and pushed her on the lamp, which was burning. the evidence of these witnesses is free from material omissions and contradictions. it is no doubt true that all these witnesses are close relatives of deceased sushila. however, merely because these witnesses are closely related to deceased sushila, that by itself cannot be the ground to discard the evidence of such witnesses if testimonies of such witnesses are otherwise reliable, trustworthy and corroborated by other evidence. in the instant case, the testimonies of these witnesses not only inspire confidence, but are also corroborated by the medical evidence.10. it is pertinent to note that there is ample material on record to demonstrate that appellant was ill-treating his wife. however, the appellant is acquitted for the offence punishable under section 498-a of indian penal code and the state has not preferred any appeal against the same and, therefore, we do not want to observe anything in this regard. at the same time, the fact remains that close relatives of deceased sushila settled the differences between her and appellant and persuaded her to go back to her matrimonial house. if there would have been any kind of animosity on the part of close relatives of deceased sushila against the appellant, they would not have permitted deceased sushila to go back and cohabit with the appellant. all these circumstances go to show that allegation made by the defence that appellant is falsely implicated in the crime in question is unfounded.11. in the instant case, the important piece of evidence is of dying declaration of deceased sushila (exh. 44), which was recorded and proved by the pw 11 vijay, executive magistrate. in his examination-in-chief, he has stated that on 3.11.2002 he had received a message that he was required to visit general hospital, khamgaon for recording of dying declaration of a lady, who was admitted in the hospital and, therefore, he went to general hospital, khamgaon where he met asi umbarkar, who gave him a letter requesting him to record statement of deceased sushila admitted in the hospital for treatment of burn injuries. it has come in the examination-in-chief of the executive magistrate that he met medical officer, who was in-charge of the burn injury ward and requested him to give certificate about fitness of the patient. the executive magistrate himself asked the name of patient, age of patient, address of the patient and after that asked her how the incident had occurred. to this question, sushila answered that her husband beat her, poured kerosene on her and pushed her on the lamp. she also stated that her husband was under the influence of alcohol. the executive magistrate has disclosed in his evidence that after recording her statement, same was read over to her and she admitted the same to be correct. her thumb impression was also obtained. the said statement was also signed by the executive magistrate. it is no doubt true that in the cross-examination, the executive magistrate has stated that the medical officer before making last endorsement did not make enquiry with the patient and did not examine her. however, that admission by itself, in our view, does not destroy the credibility of the dying declaration made by deceased sushila nor evidentiary value of testimony of executive magistrate since the incident had taken place on 3.11.2002 and sushila died on 7.11.2002. the dying declaration (exh. 44), in our view, stands totally proved by the evidence of executive magistrate, which is completely corroborated by the testimony of pw 9 dr. vilas, medical officer and, therefore, this piece of evidence, which is independent, trustworthy and reliable is sufficient to award conviction to the appellant for the offence of murder. however, there is also an oral dying declaration, which is proved by the testimonies of other witnesses, which also supports the material particulars of the prosecution case given in the dying declaration (exh. 44) made by deceased sushila.12. the trial court has already discarded the other dying declaration, i.e. exh. 48 recorded by pw 13 api more and, therefore, it is not necessary for us to express anything in this regard. similarly, so far as testimony of dw 1 kalpana is concerned, same cannot be accepted since at the time of arrest of appellant, no injuries were found on the palms or any other part of the appellant. if the appellant tried to extinguish fire, in that event, he ought to have received some burn injuries in the process. however, in absence of any injury on any part of the appellant, story put by dw 1 kalpana appears to be untrustworthy.13. for the reasons stated hereinabove, the criminal appeal suffers from lack of merit and hence, the same is dismissed.