Judgment apeal619.03
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOs. 619 AND 635 OF 2003.
........
CRIMINAL APPEAL NO. 619 OF 2003.
1. Smt. Saraswatibai w/o Mahadeorao Gawande,
aged about 62 years, Occ - Household,
resident of Jainpur, Tahsil Daryapur,
District Amravati.
2. Babarao s/o Mahadeorao Gawande,
aged about 35 years, Occupation -
service, resident of Nehru Park Chowk,
Murtizapur road, Akola. ....APPELLANTS.
VERSUS
1. State of Maharashtra,
through P.S.O. Yevda. ....RESPONDENT
.
WITH
CRIMINAL APPEAL NO. 635 OF 2003.
1. Ashok Mahadeorao Gawande,
aged about 34 years, Occ - Cultivator,
::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 :::
Judgment apeal619.03
2
2. Rajkumar Mahadeorao Gawande,
aged about 32 years, Occupation -
Cultivator,
Both resident of Jainpur,
Tahsil Daryapur,
District Amravati. ....APPELLANTS.
VERSUS
State of Maharashtra,
through P.S.O. Yevda,
Tq. Daryapur, District
Amravati. ....RESPONDENT
.
-----------------------------------
Mr. A.S. Mardikar, Senior Advocate with Shri S.S. Joshi, Advocate
for Appellants.
Mr. N.R. Patil, A.P.P. for Respondent.
------------------------------------
CORAM : B.P. DHARMADHIKARI
AND Z.A. HAQ, JJ.
DATED : JUNE 02, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J) By these appeals filed under Section 374 of Criminal Procedure Code, accused convicted in Sessions Trial No. 79/1996 by the Additional ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 3 Sessions Judge, Achalpur on 03.10.2003 for offence punishable under Section 302 read with Section 34 of Indian Penal Code, seek acquittal. As per charge sheet - Exh.21, there were total 5 accused. Janabai Debuji Raibole aged about 75 years, expired during pendency of the proceedings before the Trial Court and hence trial proceeded against only 4 accused persons, who are appellants before this Court in these two appeals. Sessions Court has acquitted all four of offence punishable under Section 498-A read with Section 34 of Indian Penal Code. They have been convicted only under Section 302 read with Section 34 of Indian Penal Code.
2. According to prosecution, marriage of deceased Sharda wife of accused Ashok took place on 23.02.1996, and she was burnt on 26.04.1996 at the house of accused persons at village Jainpur. To return a finding of guilt, trial Court has relied upon dying declaration at Exh.46 along with oral dying declaration given to P.W.2 - Chanda, who happens to be sister of deceased. Trial Court has disbelieved claim of P.W.1 Kesharbai and P.W. 5 Sheshrao (parents of deceased) that they had witnessed the incident.
3. Senior Counsel Shri A.S. Mardikar, with Shri S.S. Joshi, learned Counsel submits that evidence of P.W.1 and P.W 5 reveal that they brought deceased Sharda a day earlier to the house of accused persons at village ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 4 Jainpur. They wanted family of accused to accept deceased Sharda and to cohabit with her. However, as Sharda was carrying pregnancy before her marriage, accused persons were not ready and willing to do so. That next day in the morning Sharda was to leave house of accused persons with her parents, but, then she committed suicide. He has taken us through relevant material on record to urge that this story is totally lost sight of by the learned Sessions Court. He further adds that statement of P.W.2 Chanda about oral dying declaration by Sharada is also not free from doubt. Dying declaration at Exh.46 needed to be looked into independently and thereafter only a proper finding could have been reached.
4. Learned A.P.P. has supported the conviction. According to him, parents have shifted deceased to the hospital and their presence with the accused persons at Jainpur is not in dispute. It is further submitted by him that that only because of evidence of P.W.7- Dr. Bhalchandra Deshmukh, dying declaration at Exh.46 cannot be disbelieved. The Trial Court has rightly found corroboration therefor in deposition of P.W.2- Chanda. He has also taken us through relevant deposition for this purpose.
We find it convenient to begin with Exh.46 i.e. dying declaration on which the Sessions Court has placed reliance. This declaration is a printed proforma and on it thumb impression appears in the margin and not ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 5 below her alleged statement. Deceased had suffered burns to the extent of 92% or 93% and still the thumb impression carries ridges and curves. P.W.6 who has recorded this dying declaration was Naib Tahsildar and Executive Magistrate. He accepts that he has not mentioned name of person putting thumb impression below that impression. The dying declaration, at its top on right hand side in handwriting mentions date 26.04.1996 and time 10.50 i.e. 10.50 a.m. Thereafter, there is requisition to Medical Officer to examine her medically and to certify whether Sharda is conscious and her dying declaration can be recorded. On this requisition on right hand side P.W.6 has placed his signature and mentioned same date and same time. On left hand side, the endorsement by Doctor appears as Exh.52. Doctor has certified that patient is fully competent/conscious to give statement. Doctor has then put his signature and while mentioning date he has given time as 10.50 only. Thus, immediately after requisition, certificate was issued. At its bottom there is actual statement. The requisition has been given Exh.46, while the statement appears to have been recorded as Exh.47. In Exh.47, there are three questions and against it entire statement has been recorded. Exh.46, is on very same page on which Exh.47 has been recorded. The mode and manner of recording shows that effort was to complete the same in the space left on the page after requisition and certificate of Doctor. Deceased mentions that there was some difference between husband and ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 6 wife since 15 days and her brother in law Baburao (accused no.4), was asking her husband not to cohabit with her. The deceased insisted her parents to take her to her husband's house and accordingly they brought her there. There accused persons poured kerosene and ignited her. Door was closed. At that time her parents have gone to attend natures call. After return, they tried to extinguish the fire. After this statement, signature of P.W.6 appears on right hand side at the bottom of the age. On left hand side there is an endorsement by doctor which states that the statement of patient was recorded in his presence and patient was conscious. This endorsement is Exh.53. In margin, there is an endorsement that it was read over and after ascertaining that it was true, thumb was put. As already noted above, name of person putting thumb does not appear on this endorsement.
5. P.W.7 - Dr. Bhalchandra Deshmukh states that before giving certificate at Exh.52 he medically examined Sharda. After recording statement he again examined her and then gave certificate at Exh.53. In cross-examination he states that deceased had suffered 93% burns and her treatment had already began. Sedatives are administered to such person and patient is drowsy. For medical examination of such patient half an hour is required. He stated that he received requisition from Executive Magistrate at 10.50 a.m. and gave certificate of fitness at 10.50 a.m. only. He accepted ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 7 that he did not mention time below later certificate at Exh.53. He further stated that without seeing bed ticket he can tell as to how many injections of sedatives were given to Sharda. He accepted that both the hands of Sharda were burnt.
6. If half an hour is required to examine such a patient, Exh.52 could not have been issued at 10.50 a.m. only. P.W.6 Gulabrao Ingole (Executive Magistrate) has not mentioned the time at which he started recording dying declaration or time of its completion. He speaks of certificate obtained by him from P.W.7. However, he stated that P.W.7 did not examined Sharda in his presence. He also accepted that her entire body was burnt. In chief, he has stated that the Medical Officer examined Sharda and gave certificate that she was fit to give dying declaration. Thereafter he again asked name of Sharda to ascertain if she was in a position to give dying declaration. Thus, this person has contradicted himself.
7. Mode and manner in which dying declaration Exh.46/47 has been written and evidence adduced by P.W.6 and P.W.7 makes the document doubtful.
8. Trial Court has relied upon the evidence of P.W.2 to hold that the ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 8 story in Exh.47 is corroborated by her. However, her cross-examination reveals that the fact of accused Babarao pouring kerosene on person of Sharda, as communicated by Sharda to her, accused Ashok and Rajkumar catching hold of her hands and accused Saraswatibai igniting, are all missing in her police statement and she could not explain reason therefor. It cannot be therefore be said that P.W.2 proves any dying declaration or then her version corroborates narration in Exh.47.
9. Perusal of evidence of P.W.1 and P.W.5 (parents) reveals that they were not present at the time of alleged incident. Sharda also states so in her dying declaration. Because of their absence at the time of incident, Trial Court has not relied upon their oral evidence.
10. Deposition of P.W.1 - Kesharbai who happens to be mother of the deceased Sharda reveals that 15 days after marriage she met Sharda by visiting house of Sharda. Accused Babarao was expressing that accused Ashok should not cohabit with Sharda, and therefore, she had asked Sharda to return to her house. Sharda was not ready to return. In paragraph no.2 of her deposition in which she states that at the time of death Sharda she was present at the house of Sharda along with her husband and accused persons were saying that they should take back Sharda with them. As it was ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 9 evening time, they halted there and agreed to go back on next day. In the night there was quarrel between Sharda and accused persons. In the morning Sharda was ready to go with her.
11. This narration therefore, shows substance in defence of the accused persons that as Sharda was already carrying, they were not ready and willing to stay with her. In post mortem, carried on the body of deceased Sharda, foetus of 8 to 10 weeks is recorded against column no.21. P.W.1 accepted that Ashok alleged that Sharda was pregnant since before marriage. Portion marked as "A" in her police statement was denied by her. She accepted that when Ashok alleged pregnancy, it was agreed that Sharda and her parents would go to their house and settle the dispute. P.W.5 Sheshrao has attempted to give entirely different version of the matter. Paragraph no.3 of his cross-examination brings on record improvements made by him. He could not explain why fact of accused persons demanding divorce from Sharda appeared in his police statement. When other part of his police statement, which runs contrary to his deposition before Court was put to him, he could not explain why police had written those facts in his statement. He denied that he had asked his son-in-law to condone the mistake of Sharda. He also denied that Ashok had asked him to go to house of Sahebrao at Akola to settle the dispute.
::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 :::
Judgment apeal619.03 10
12. This material on record shows that deceased Sharda was pregnant at the time of her marriage. Death has taken place within two months of her marriage. Sharda was with her parents since 15 days prior to the incident. With parents she came to house of accused persons. Accused persons declined to cohabit with Sharda. Sharda and her family were to return to her native place in the morning. The facts therefore, rule out any motive with accused persons to kill Sharda.
13. Trial Court therefore has erred in placing reliance upon dying declaration Exh.47 and oral dying declaration to P.W.2 Chanda. The finding of guilt and conviction recorded by the trial Court is therefore, unsustainable. Hence, we proceed to pass the following order.
ORDER
(1) Criminal Appeals are allowed.
(2) Judgment dated 03.10.2003 delivered by the Additional
Sessions Judge, Achalpur in Sessions Trial No.79/1996, convicting the appellants for the offence punishable under Section 302 read with Section 34 of Indian Penal ::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 ::: Judgment apeal619.03 11 Code is quashed and set aside and they are acquitted of the said offence.
(3) Bail bonds furnished by them are cancelled.
(4) The muddemal property be dealt with, as directed by
the trial Court, after the appeal period is over.
JUDGE JUDGE
Rgd.
::: Uploaded on - 08/06/2017 ::: Downloaded on - 09/06/2017 00:12:04 :::