1 920 J Cri A 730-08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.730 OF 2008
Shrimant s/o Chandar
Bansode, Age : 21 years,
Occ.: Nil, R/o.: Nandurga
(Gogaon), Tq. & Dist. ... Petitioner.
Osmanabad. (Ori.Accused No.1)
Versus
The State of Maharashtra ..Respondent
(Prosecution)
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Mr. P.S. Chavan, Advocate for petitioner
Mr. P.K. Lakhotiya, A.P.P. respondent
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CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL,JJ.
RESERVED ON : 23-11-2017
PRONOUNCED ON: 08-12-2017
JUDGMENT (PER SANGITRAO S. PATIL, J.)
The appellant has challenged his conviction and sentence for the offences punishable under Sections 302 and 498-A of the Indian Penal Code ("IPC" for short) recorded by the Sessions Judge, Osmanabad in Sessions Case ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 2 920 J Cri A 730-08.odt No.34 of 2008 on 26-11-2008.
2. The deceased Sheetal got married to the appellant prior about one month of the incident that took place on 14-06-2007. After marriage, she started co-habiting with the appellant. It is the case of the prosecution/State that the deceased Sheetal was not liked by the appellant. Therefore, he used to beat and illtreat her. She was driven out of the house by the appellant. Her parents took her to the appellant's house on 13-06-2007. They persuaded the appellant to treat her properly. They stayed at the house of the appellant in the night. In the morning of 14-06-2007, the father of the deceased Sheetal namely Kisan Gyana Sonawate left for his village, while the mother of the deceased Sheetal namely Mangalbai stayed at the matrimonial house of the deceased Sheetal itself. It is alleged that the appellant picked-up quarrel with the deceased Sheetal and started beating her on the say that he did not ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 3 920 J Cri A 730-08.odt need her. He further poured kerosene on her person and set her ablaze by a matchstick. The appellant did not allow her to come out of the house. She fell down on the ground. After sometime, her father-in-law viz.:- Chandar (accused no.2) came back home and took her to the Civil Hospital at Osmanabad for treatment. She was admitted there. She had sustained 74% burns on various parts of her body.
3. Police Head Constable ("PHC" for short) Kamble recorded the statement of the deceased Sheetal on the same day between 12.15 and 12.45 p.m. soon after getting it verified from the Medical Officer that she was in a fit state of mind to give statement. He produced that statement in the police station Osmanabad, on the basis of which CR No.I-66 of 2007 came to be registered against the appellant and his father Chandar for the offences punishable under Sections 307, 498-A and 323 read with Section 34 of the IPC. On the same day, Sheetal died at ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 4 920 J Cri A 730-08.odt about 03.45 p.m. After her death, the offence punishable under Section 307 of the IPC came to be substituted by the offence punishable under Section 302 of the IPC.
4. The inquest panchanama of the dead body of the deceased was prepared. The dead body of the deceased Sheetal was referred to the Medical Officer for post mortem ("PM" for short). Accordingly, Dr.Kanade and Dr.Kamble conducted PM on the same day between 09.00 p.m. and 10.00 p.m. They found 60% of burns on the body of the deceased Sheetal. They opined that she died due to shock of 65% superficial deep burns. Accordingly, they prepared memorandum of the PM. The spot panchanama was prepared. A plastic can containing half liter of kerosene, the burnt pieces of clothes of the deceased Sheetal and a match-box came to be seized under the same panchanama. The statements of witnesses were recorded. After completion of the investigation, the appellant and his father namely Chandar came ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 5 920 J Cri A 730-08.odt to be prosecuted for the offences punishable under Sections 302, 498-A and 323 read with Section 34 of the IPC.
5. The case being exclusively triable by the Court of Session, the learned Judicial Magistrate First Class, Osmanabad committed the case to the Sessions Court for trial.
6. The learned Sessions Judge framed charges against the appellant and his father for the offences punishable under Sections 498-A and 302 read with Section 34 of the IPC vide Exh.8 and explained the contents thereof to them in vernacular. They pleaded not guilty and claimed to be tried. Their defence is that of total denial and false implication. According to the appellant, the deceased Sheetal herself was not interested in cohabiting with him. She wanted to marry with one Amol from her maternal village. She had run away twice from house of the appellant on the say that he was not liked by her. Her parents reached her to his house ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 6 920 J Cri A 730-08.odt against her wish. On the day of the incident, the parents of the deceased Sheetal started to go back to their village, leaving the deceased Sheetal at the house of the appellant. She was crying. He then went to his field. Thereafter, he was informed that she sustained burns and was admitted in the hospital. The father of the appellant stated that he had gone to the bus stand with the father of the deceased Sheetal to see him off and the mother of the deceased Sheetal also was away from the house. The deceased Sheetal was alone inside the house. When he was coming back to his house from the bus stand, he heard the shouts of the deceased Sheetal. The mother of the deceased then ran towards the house. He also followed her. He saw that the deceased Sheetal had set herself on fire. The deceased was taken to the hospital for treatment.
7. The prosecution examined eight witnesses to substantiate its case. The ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 7 920 J Cri A 730-08.odt appellant examined one Gowardhan Bansode in his defence. After scrutinizing the evidence on record, the learned Trial Judge did not find any evidence to convict the father of the appellant for the above mentioned offences. Therefore, the learned Trial Judge acquitted the father of the appellant of the said offences. The learned Trial Judge found sufficient evidence to hold the appellant guilty of the above mentioned offices. He, therefore, convicted the appellant and sentenced him to suffer imprisonment for life and to pay a fine of Rs.2,000/- in respect of the offence punishable under Section 302 of the IPC and to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- in respect of the offence punishable under Section 498-A of the IPC.
8. The prosecution has not challenged the acquittal of original accused No.2 i.e. the father of the appellant. As such, the judgment and order acquitting him has attained finality. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 :::
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9. The prosecution is mainly relying on the evidence of Kisan (PW-2) and Mangalbai (PW-3) who are the parents of the deceased Sheetal and her dying declaration (Exh.31) recorded by PHC Kamble (PW-5) to connect the appellant with the above mentioned offences.
10. The learned counsel for the appellant submits that the alleged dying declaration of the deceased Sheetal is not at all believable. The medical case papers of the Civil Hospital, Osmanabad show that the deceased Sheetal had sustained 74% of burns when she was admitted there for treatment. Her upper limbs had sustained 18% of burns. That means her fingers were totally burnt. She was not in a position to put thumb mark. However, the dying declaration (Exh.31) bears a thumb mark having clear curves and ridges. The said thumb mark has not been attested by anybody. Therefore, according to him, the thumb mark on the dying declaration (Exh.31) cannot be said to be that of the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 9 920 J Cri A 730-08.odt deceased Sheetal.
11. He then submits that the deceased Sheetal was admitted in the hospital at about 12.55 p.m. The endorsement made at 01.45 p.m. on the medical papers (Exh.60) shows that Mangalbai (PW-3), the mother of the deceased Sheetal, was given to understand that physical condition of the deceased Sheetal was critical. She was being extended medical treatment. Therefore, the case of the prosecution that she was in a fit condition to give statement (Exh.31) between 12.15 p.m. and 12.45 p.m. cannot be believed. He submits that Dr.Kamble (PW-6) has not made endorsement on the dying declaration (Exh.31) about fitness of the deceased Sheetal to give statement prior to recording thereof. His endorsement shows that it was given after recording of the alleged dying declaration (Exh.31). The medical case papers (Exh.60) do not show that she was examined by Dr.Kamble (PW-6) on that day between 12.15 p.m. and 12.45 ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 10 920 J Cri A 730-08.odt p.m. He, therefore, submits that considering the extent of burns sustained by the deceased Sheetal and her critical condition, it was not possible for her to give such a detailed and long dying declaration (Exh.31). He submits that the dying declaration (Exh.31) is not truthful and has been recorded at the instance of the mother of the deceased Sheetal. It cannot be said to be a statement voluntarily given by the deceased Sheetal. Therefore, it cannot be relied on it.
12. He further submits that no independent witness has been examined by the prosecution to connect the appellant. On the contrary, the defence witness Gowardhan (DW-1, Exh.55) probabalized the defence of the appellant that the deceased Sheetal herself was not interested in cohabiting with appellant since she was compelled to marry with him against her wish. When her parents insisted upon her to reside at the house of the appellant, she committed ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 11 920 J Cri A 730-08.odt suicide by setting herself ablaze.
13. According to him, the learned Trial Judge did not appreciate the evidence on record properly and wrongly convicted the appellant for the above mentioned offences. In support of his contentions, he relied on certain judgments, which would be referred to in the later part of this judgment.
14. As against this, the learned APP submits that the dying declaration (Exh.31) has been made by the deceased Sheetal voluntarily. It inspires great confidence. The contents thereof are corroborated by the evidence of Mangalbai (PW-3), who is an eye-witness to the incident. According to him, there was no reason for the deceased Sheetal to commit suicide. She died at her matrimonial house under unnatural circumstances. The explanation given by the appellant is not at all plausible. The dying declaration (Exh.31) has been rightly believed by the learned Trial Judge and the appellant has ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 12 920 J Cri A 730-08.odt been rightly convicted for the above mentioned offences.
15. PHC Kamble (PW-5 - Exh.29) of Police Station, Osmanabad deposes that MLC intimation letter (Eh.30) was received in the Police Station from the Duty Medical Officer ("DMO" for short) of Civil Hospital, Osmanabad on 14-06-2007 at about 12.00 noon about having admitted the deceased Sheetal in that hospital for treatment in burn's ward. After receiving that letter, he went to the hospital and met Dr.Kamble (PW-6). He requested Dr.Kamble (PW-6) to accompany him to the burn's ward, as he wanted to record the statement of the deceased Sheetal. Accordingly, Dr.Kamble (PW-6) and himself went to the deceased Sheetal. Dr.Kamble (PW-6) examined her and opined that she was able to give statement. Accordingly, PHC Kamble (PW-5) recorded her statement (Exh.31) as per her say. After reading over the contents thereof to her, he obtained her thumb impression ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 13 920 J Cri A 730-08.odt thereon. Thereafter, Dr.Kamble (PW-6) again examined the deceased Sheetal and opined that she was able to give statement. He then, endorsed on the statement (Exh.31) accordingly.
16. Dr.Kamble (PW-6) supports the version of PHC Kamble (PW-5). It has come in the evidence of PHC Kamble (PW-5) and Dr.Kamble (PW-6) that at the time of recording the dying declaration (Exh.31), except the deceased Sheetal and themselves, no other person was present there.
17. The dying declaration (Exh.31) in Marathi is as under:-
"tckc fn- [email protected]@2007-
eh f'kry Hkz- Jhear culksMs o; 20 o"ksZ] /kank ?kjdke] jk- ukanqxkZ ¼xksxkao½ rk- mLekukckn-
le{k ljdkjh nok[kkuk mLekukckn ;sFks vkS"k/kmipkj ?ksr vlrkauk fopkjyso#u tckc fygwu nsrs dh] eh ojhy xkoph jkg.kkjh vlwu ek>s ekgsj ukanqxkZ ¼ns'keq[k½ ;sFkhy vkgs- eyk vkbZ] oMhy vlwu eyk lkljk panj vlk vlwu eyk lklw ukgh- ek>s yXu xsY;k ,d efgU;kiwohZ Jhear culksMs ;kaps cjkscj ckS/n Ik/nrhuss ukanqxkZ ¼xksxkao½ ;sFks >kysys vkgs- yXukr ek>s vkbZ&oMhykauh ek>s uo&;kl cksyY;kizek.ks 5][email protected]& #-pk gqaMk nsowu loZ ekuiku fnysyk vkgs- ek>s yXu ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 14 920 J Cri A 730-08.odt >kysiklwu ek>k uojk Jhear gk usgeh eyk Eg.kr vkls dh] rqb;k vkbZ&oMhykauh rq>s yXu cGp ek>scjkscj ykowu fnysys vkgs] rw eyk ilar ukghl vls Eg.kwu usgeh ekjgk.k d#u viekuLin okx.kwd nsr vls- rlsp lkljk panj gki.k eyk usgeh rw yodj >ksisrwu mBwu dke/kank djhr ukghl vls Eg.kwu viekuLin cksywu =kl nsr vls-
vkt fn- [email protected]@07 jksth ldkGh 0830 ok- ps lqekjkl eh o ek>k uojk Jhear ?kjkr vlrkauk uojk Jhear ;kus eyk rq>h xjt ukgh vls cksywu HkkaM.ks lq# dsyh o eyk ykFkk&cqDD;kus ekjgk.k dsyh o ?kjkrhy jkWdsyP;k MC;krhy jkWdsy ek>s vaxkoj vksrwu dkMh isVhus isVowu fnys R;keqGs ek>s vaxkojhy diM;kus isV ?ksryk R;kosGh uojk Jhear toGp mHkk gksrk R;kl eh <dywu ?kjkckgsj tk.;kpk iz;Ru dsyk ijarq uo&;kus ?kjkckgsj tkow fnys ukgh- R;kuarj eh [kkyh tfeuhoj iMys- R;kuarj FkksM;k osGkus lkljk panj gk ?kjh vkyk o R;kus eyk vkS"k/k mipkjklkBh ljdkjh nok[kkuk mLekukckn ;sFks nk[ky dsys vkgs- ek>s uo&;kus ek>s vaxkoj jkWdsy Vkdwu dkMh isVhus isVowu fnY;kusp ek>s vaxkojhy diM;kus isV ?ksowu R;kr ek>k psgjk xGk] eku] nksUgh gkr] nksUgh ik;] iksV] ikB] Nkrh fVpj] bR;knh Hkkx Hkktysyk vlwu xqIr Hkkxkl gk; ykxysyh vkgs-
l/;k ek>soj l-n- mLekukckn ;sFks vkS"k/kksipkj pkyw vlwu eh iw.kZi.ks 'kq/nhoj vkgs-
rjh ek>k uojk Jhear o lkljk panj ;kapsoj dk;ns'khj dk;Zokgh dj.;kr ;koh-
ek>k ojhy tckc ek>s lkax.ks izek.ks fygyk] okpwu nk[koyk cjkscj o [kjk vkgs-
le{k%& fu-va-
[email protected]& iksfyl pkSdh vaeynkj] ftYgk 'kkldh; #X.kky;] mLekukckn- iksfyl Bk.ks] mLekukckn-" ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 :::
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18. The dying declaration (Exh.31) is not recorded in question answer form. It is in a narrative form. It is quite exhaustive. The medical case papers (Exh.60) of the deceased Sheetal show that she was admitted in Civil Hospital at Osmanabad at about 12.55 p.m. Mangalbai (PW-3) has put her thumb mark under the endorsement made at page 2 of the said case papers on that day at about 01.45 p.m., whereby she was given to understand that physical condition of the deceased Sheetal was critical. The deceased Sheetal was gasping at 03.30 p.m. and expired at 03.45 p.m. as seen from the medical case papers (Exh.60).
19. Dr.Kamble (PW-6) specifically states that the deceased Sheetal was admitted in the hospital at Osmanabad at about 12.00 noon. He states that he intimated to the Police Station about admission of the deceased Sheetal in the hospital in burn's ward at about 12.00 noon on 14-06-2007 vide letter (Exh.30). The said letter ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 16 920 J Cri A 730-08.odt contains outward No.MLC/TJK/3443/01 dated 14-06-2007 at 12.00 p.m. In the letter obviously TJK stands for Tushar Jalindar Kamble, i.e. the full name of PHC Kamble (PW-6). In that letter, Dr.Kamble (PW-6) mentioned that the deceased Sheetal admitted in burn's ward for treatment as she had sustained 74% of burns. However, the case papers (Exh.60) show that she was admitted in burn's Ward at about 12.55 p.m. It is not explained by the prosecution as to where she was from 12.00 noon to 12.55 p.m. When the deceased Sheetal was not actually admitted in the burn's ward till 12.55 p.m., the evidence of PHC Kamble (PW-5) and Dr.Kamble (PW-6) that the dying declaration (Eh.31) was recorded between 12.15 p.m. and 12.45 p.m., when the deceased Sheetal was admitted in the burn's ward becomes doubtful.
20. The dying declaration (Exh.31) does not bear endorsement of Dr.Kamble (PW-6) prior to it's recording, certifying that the deceased ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:12 ::: 17 920 J Cri A 730-08.odt Sheetal was in a fit state of mind to give statement. Dr.Kamble (PW-6) has made endorsement about the condition of the deceased Sheetal to give statement after recording dying declaration (Exh.31), wherein he has mentioned that she was conscious and oriented. He mentioned the time as "12.15 to 12.45 p.m." below his signature. Such type of endorsement was not expected of a responsible person like Medical Officer. He should have specifically mentioned that the deceased Sheetal was in a fit condition to give statement prior to it's recording and even thereafter by mentioning specific times in his endorsements. There is no mention in the case papers (Exh.60) that Dr.Kamble (PW-6) examined the deceased Sheetal on 14-06-2007 either at 12.15 p.m. or 12.45 p.m.
21. As stated above, Mangalbai (PW-3) was given to understand at 01.45 p.m. that physical condition of the deceased Sheetal was critical. She was being extended necessary treatment. If ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 18 920 J Cri A 730-08.odt that be so, it was not natural and probable on the part of the deceased Sheetal to give such an exhaustible statement as scribed in Exh.31, prior to about one hour thereof.
22. The deceased Sheetal was an illiterate woman. The language used and the manner in which the dying declaration (Exh.31) has been recorded creates a grave doubt that an illiterate woman would use such language and narrate the events in such a manner.
23. Dr.Kanade (PW-1)(Exh.15), who conducted PM of the body of the deceased Sheetal, states that right and left upper extremities of the deceased Sheetal were burnt to the extent of 9% each. As such, her fingers were totally burnt. In the circumstances, it would not have been possible for the deceased Sheetal to give her thumb impression with clear curves and ridges. There is no mention whether this was a thumb mark of right hand or left hand. It has not been attested by anybody. These circumstances also ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 19 920 J Cri A 730-08.odt create suspicion about genuineness of the thumb impression of the deceased Sheetal on dying declaration (Exh.31).
24. The leaned counsel for the appellant cited the case of State of Punjab Vs. Gian Kaur and another, AIR 1998 SC 2809, wherein the deceased wife had sustained 100% of burn injuries and both of her thumbs were burnt. However, the dying declaration was bearing thumb impression with clear ridges and curves. Therefore, her dying declaration was not believed. In the present case also, both the upper extremities of the deceased Sheetal were fully burnt i.e. to the extent of 9% each. The prosecution has not explained as to how her thumb impression could bear clear ridges and curves.
25. The learned counsel for the appellant further cited the case of K. Ramachabndra Reddy and another Vs. The Public Prosecutor, AIR 1976 SC 1994, wherein the test of reliability of a ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 20 920 J Cri A 730-08.odt dying declaration has been given in para 6 as under:
"The dying declaration is undoubtedly admissible under s.32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration".::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 :::
21 920 J Cri A 730-08.odt In the present case, as stated above, there are a number of circumstances, creating doubt about the fact of giving the dying declaration (Exh.31) by the deceased Sheetal voluntarily.
The dying declaration (Exh.31) has not been recorded by an independent officer. PHC Kamble (PW-5) belongs to investigating wing. There is no explanation as to why request was not made to any Special Judicial Magistrate to record dying declaration of the deceased Sheetal. In the circumstances, the dying declaration (Exh.31) cannot form the basis of conviction without further corroboration.
26. The prosecution examined Kisan (PW-2) (Exh.19) and Mangalbai (PW-3) (Exh.20), who are the parents of the deceased Sheetal, to corroborate the dying declaration (Exh.31). Admittedly, Kisan (PW-2) was not present at the time of the incident. As such his evidence is would be of no help to the prosecution to lend corroboration to the contents of dying ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 22 920 J Cri A 730-08.odt declaration (Exh.31) in respect of the cause of her death.
27. Mangalbai (PW-3) claims that she was present in the house of the appellant at the time of the incident. It is not disputed that Mangalbai (PW-3) and Kisan (PW-2) had been to the house of the appellant in the night prior to the incident. Kisan (PW-2) had left for his village in the morning of 14-06-2007. According to Mangalbai (PW-3), Kisan (PW-2) left for his village asking her to stay at the matrimonial home of the deceased Sheetal for 2-3 days. The appellant started quarreling with the deceased Sheetal. He started beating her with fists and kicks. She tried to intervene but the appellant pushed her and slapped her twice. She fell down on the ground and again tried to intervene. However, the appellant poured kerosene on the person of the deceased Sheetal and set her on fire by means of a matchstick. The deceased Sheetal and herself raised shouts. The villagers ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 23 920 J Cri A 730-08.odt gathered and extinguished fire. They called a jeep and took the deceased Sheetal and herself to Civil Hospital, where, she was admitted for treatment.
28. The learned counsel for the appellant submits that the dying declaration (Exh.31) does not whisper about presence of Mangalbai (PW-3) inside the house at the time of the incident of burning. He submits that Mangalbai (PW-3) also had gone to the bus stand to see Kisan (PW-2) off. When she was coming back from the bus stand along with the father of the appellant i.e. original accused no.2, they heard the cries and rushed to the house of the appellant. At that time, they found the deceased Sheetal alone burning inside the house. The father of the appellant extinguished fire and took her to the Civil Hospital at Osmanabad for treatment. Thus according to him, the appellant was not present in the house at the time of the incident.
29. The appellant examined Gowardhan (DW-1) ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 24 920 J Cri A 730-08.odt (Exh.55), who is his neighbour. He states that the deceased Sheetal was not interested in cohabiting with the appellant. She herself had run away twice from the house of the appellant. He requested Kisan (PW-2) and Mangalbai (PW-3) to persuade the deceased Sheetal not to run away from the house of the appellant. They assured him that they would persuade the deceased Sheetal accordingly. He further states that Kisan (PW-2) and Mangalbai (PW-3) stayed at the house of the appellant in the night. Kisan (PW-2) left the house for his village in the morning. Mangalbai (PW-3) also had accompanied him while going to the bus stand to see him off. At that time, the appellant went towards agricultural land for bringing fodder. He then states that at about 09.00 a.m., he heard shouts of the deceased Sheetal and noticed that smoke was coming out from the house of the appellant. He rushed towards the house of the appellant. One Devidas Bansode also came there. He noticed that the deceased Sheetal was burning. Nobody ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 25 920 J Cri A 730-08.odt was present inside the house at that time. He sent somebody to the bus stand to call Mangalbai (PW-3) and the father of the appellant. According to him, they came to the house of the appellant. At that time, Mangalbai (PW-3) asked the deceased Sheetal to implicate the appellant and his father in the incident of fire.
30. It has come in the cross-examination of Gowardhan (DW-1) that his house is situate at the distance of 5 ft. from the house of the appellant. There is only one house in between the house of the appellant and that of himself. It has further come in his cross-examination that he had personally seen the deceased Sheetal running away from her matrimonial home. Once, the deceased Sheetal had gone towards the bus stand, which was at the distance of about half k.m. from their locality. He went there along with the appellant. He requested the deceased Sheetal to come back to cohabit with the appellant, however, she did not listen to him. ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 :::
26 920 J Cri A 730-08.odt He states that the deceased Sheetal had beaten the appellant at the bus stand itself in his present. He further deposes that on the next day of that incident, the father of the appellant went to the village of Kisan (PW-2) and informed him about the conduct of the deceased Sheetal. This evidence, which has been brought in the cross-examination of Gowardhan (DW-1) shows that the deceased Sheetal was not interested in cohabiting with the appellant.
31. The appellant states in his statement under Section 313 of the Code of Criminal Procedure that the deceased Sheetal was not interested in cohabiting with him. She had run away from his house with one Amol after beating him. On the day of the incident, her parents started going back to their village. At the time, the deceased Sheetal was insisting her father to take her with him. She was crying. He then went to his village and thereafter, the incident of burning took place.
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32. The defence of the appellant got corroboration from the evidence of Gowardhan (DW-1), which was brought in his cross- examination.
33. The version of Mangalbai (PW-3) that she was present at the time of incident inside the house of the appellant itself is not believable. The deceased Sheetal herself has not whispered about her presence in the dying declaration (Exh.31). Had Mangalbai (PW-3) been inside the house at the time of the incident, the deceased Sheetal certainly would have made every attempt to rush towards her to save herself. Mangalbai (PW-3) would not have awaited until kerosene was poured on the person of the deceased Sheetal by somebody else and certainly would have resisted that person from doing so. She would have immediately raised shouts, seeking help of the neighbours to save the life of the deceased Sheetal. She would have tried to extinguish fire from the person of the deceased ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 28 920 J Cri A 730-08.odt Sheetal. She would have sustained burns while attempting to extinguish fire from the person of the deceased Sheetal. In the natural course, the deceased Sheetal also would have tried to embrace Mangalbai (PW-3) for help or for saving herself from being burnt. No injury has been sustained by Mangalbai (PW-3). These facts are sufficient to indicate that Mangalbai (PW-3) was not actually present inside the house at the time of the alleged incident of burning. Therefore, her version would not be helpful to the prosecution to implicate the appellant in the incident of burning.
34. It has come in the cross-examination of PSI Maindad (PW-8) (Exh.41) that he recorded the statements of Kisan (PW-2) and Mangalbai (PW-3) on 16-06-2017. The incident took place in the morning on 14-06-2007. Mangalbai (PW-3) was with the deceased Sheetal after occurrence of the incident till her death. PSI Maindad (PW-8) recorded the statement of five witnesses on ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 29 920 J Cri A 730-08.odt 15-06-2007. Neither Kisan (PW-2) nor Mangalbai (PW-3) made any allegations against the appellant on 14-06-2007 and 15-06-2007 about having set the deceased Sheetal on fire. Mangalbai (PW-3) could have lodged report against the appellant immediately after the incident. Kisan (PW-2) and Mangalbai (PW-3) would not have kept silence for two days after the incident, though they had sufficient opportunity to complain against the appellant to the police, when they were in the Civil Hospital, Osmanabad and even thereafter. No explanation is given by the prosecution for the delay in recording the statements of Kisan (PW-20) and Mangalbai (PW-3). In the circumstances, the evidence of Mangalbai (PW-3) that she was present at the time of the incident and that the appellant set the deceased Sheetal on fire in her presence cannot be believed.
35. From the facts and circumstances of the case, the defence of the appellant that the ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 30 920 J Cri A 730-08.odt deceased Sheetal herself was not interested in cohabiting with him and when her parents insisted upon her to reside at the house of the appellant, she set herself on fire, which is supported by the evidence of Gowardhan (DW-1), appears to be natural and probable. In the circumstance, the evidence of the witnesses Kisan (PW-2) and Mangalbai (PW-3) that the deceased Sheetal was not liked by the appellant and therefore, he used to beat and illtreat her and ultimately, set her on fire causing her death being not free from doubt cannot be relied on to hold the appellant guilty for the above mentioned offences.
36. As held in the case of Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 cited by the learned counsel for the appellant, it is well settled that where the evidence shows two views are possible, one which goes in favour of the prosecution and the other which benefits an accused, the accused is ::: Uploaded on - 14/12/2017 ::: Downloaded on - 15/12/2017 01:10:13 ::: 31 920 J Cri A 730-08.odt undoubtedly entitled to the benefit of doubt. In the present case, the possibility of the appellant setting the deceased Sheetal on fire is surrounded by a grave suspicion. On the contrary the defence of the appellant that she set herself on fire since she was not interested in cohabiting with the appellant is quite probable. Therefore, it cannot be said that the prosecution has established the guilt of the appellant for the above mentioned offences beyond all reasonable doubts.
37. The learned Trial Judge did not appreciate the facts and circumstances of the case as well as the evidence on record in proper perspective and wrongly convicted the appellant for the above mentioned offences. In view of the above discussion, the findings of the learned Trial Judge cannot be said to be sustainable. The impugned judgment and order are liable to quashed and set aside. In the result, we pass the following order.
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32 920 J Cri A 730-08.odt
Order
(i) The appeal is allowed.
(ii) The impugned judgment and order
are quashed and set aside.
(iii) The fine amount, if deposited by
the appellant in the Trial Court, be refunded to him.
(iv) The bail bonds of the appellant are cancelled.
(v) He is set at liberty.
(iv) The appeal is accordingly
disposed of.
[SANGITRAO S. PATIL] [SUNIL P. DESMUKH]
Judge Judge
nbs/920-23
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