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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 420 OF 2003
AND
CRIMINAL APPEAL NO. 184 OF 2003
CRIMINAL APPEAL NO. 420 OF 2003
The State of Maharashtra
through P.SO., Yavatmal City,
Tq. & District - Yavatmal ... APPELLANT.
Versus
1. Ganesh s/o Shripat Pawar,
aged about 24 years.
2. Shripat s/o Bapurao Pawar ... (Abated)
3. Prashant s/o Shripat Pawar,
aged about 22 years.
4. Rekha w/o Santosh Thorat,
aged about 22 years.
5. Sau. Shashikalabai w/o Shripat
Pawar, aged about 42 years.
All r/o Talav Fail, Yavatmal, Tq. &
District - Yavatmal. ... RESPONDENTS
Shri S.S. Doifode, APP for the appellant.
.....
CRIMINAL APPEAL NO. 184 OF 2003
Ganesh s/o Shripat Pawar,
aged about 27 years, occupation
- Business, r/o Talav Fail, Yavatmal,
Tq. & District - Yavatmal. ... APPELLANT.
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apeal420.03 2
Versus
The State of Maharashtra
through P.SO., Yavatmal City,
Tq. & District - Yavatmal ... RESPONDENT
Shri S.S. Doifode, APP for the respondent.
.....
CORAM : B.P. DHARMADHIKARI &
V.M. DESHPANDE, JJ.
MARCH 30, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) The Sessions Judge, Yavatmal, has vide judgment delivered on 03.03.2003, in Sessions Trial No. 38 of 1999, acquitted all five accused for the offence punishable under Section 302 read with Section 34 of Indian Penal Code (I.P.C.). Except Accused No. 1 - Ganesh Shripat Pawar, other four accused have been acquitted of charges punishable under Section 498A read with Section 34 of Indian Penal Code also.
2. Ganesh has been convicted for the offence punishable under Section 498A of the Indian Penal Code and sentenced to suffer Rigorous Imprisonment (R.I.) for three years and to pay fine of Rs.3,000/- or in default to undergo R.I. ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 3 for six months.
3. The State Government has filed Criminal Appeal No. 420 of 2003 challenging acquittal of all accused for the offence under Section 302 and four accused for the offence punishable under Section 498A of the I.P.C. Accused No. 1 - Ganesh has challenged his conviction under Section 498A of the I.P.C.
4. We have heard Shri S.S. Doifode, learned APP for the State in both the appeals. Nobody has appeared for the respondents in Criminal Appeal No. 420 of 2003 and for the appellant in Criminal Appeal No. 184 of 2003.
5. The charge as framed against all five accused is common. The deceased Lata was wife of accused No.1 - Ganesh. Their marriage was performed on 15.05.1997 and she died of 100% burn injuries on 23.11.1998. The date of incident of burning is 21.11.1998. The father of Ganesh was accused No. 2, his mother was accused No. 5, his brother was accused No. 3 ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 4 and his sister was accused No. 4.
6. The material available on record, insofar as incident of burning is concerned, is in the shape of a Dying declaration (D.D.) dated 21.11.1998. This Dying declaration is followed by three oral Dying declarations and thereafter one more D.D. This last D.D. is at Exh. 50. It is recorded by the Investigating Officer (PW-8).
7. Shri Doifode, learned APP submits that narration of story in first dying declaration (Exh. 41) itself implicates accused No. 1 - Ganesh and, therefore, his acquittal from the offence under Section 302 of I.P.C. is unsustainable. He further points out that the trial Court has already convicted him under Section 498A of I.P.C. and very same evidence should have been used against his relatives to return the finding of guilt. The relatives, therefore, are also liable to be punished under that section. He has invited our attention to the prosecution witness Maltibai, Sheela and Sunil to urge that they have brought on record illegal demand by accused Nos. 1 to 5 from ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 5 Lata after her marriage. He submits that their evidence clearly establish common intention and ill-treatment to the deceased Lata. As the death has taken place within a span of seven years, the burden was upon the accused persons and that has not been discharged.
8. Exh. 41 is the first dying declaration in point of time. It is recorded on 21.11.1998 at 11.20 P.M. by the Executive Magistrate Shri Gandharwar (PW-6). In it, she has stated that her marriage was performed about two years back and there were frequent quarrels between her and her husband. In the afternoon on that day, her husband asked her to bring money from her mother. Her father has suffered paralytic attack. After quarrel, her husband poured kerosene on her person and ignited her. A perusal of Exh. 41 shows that its recording commenced at 11.20 P.M. and was over at 11.30 P.M.
9. At the top of Exh. 41, there is a certificate issued by Dr. Prashant Shelke that the patient is fit for dying declaration. ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 6 PW-9 Dr. Prashant has proved it at Exh. 55. Recording of dying declaration was over at 11.30 P.M. At the end on right hand side, PW-6 - Executive Engineer has placed his signature. He has, also on left hand side, put a remark that no one except doctor was present when dying declaration was recorded. Thereafter he has written that it was read over and admitted to be correct by Lata. The requisition to PW-6 to record D.D. is Exh. 43 on record. On the basis of statement at Exh. 41, Police Constable A.P. Mahajan has lodged the report. That First Information Report (FIR) has been marked as Exh. 45.
10. Exh. 50 is the dying declaration recorded by A.P.I. Udaysingh Rathor on 22.11.1998. This has been recorded on next day after parents of the deceased Lata visited her. In margin, doctor has certified that patient was fit for giving D.D. After statement was recorded at 9.35 PM, there is another endorsement just below first one that statement has been recorded in his presence. In this D.D., Lata has stated that she was married with Ganesh about 1½ years back and then her father had given dowry of Rs.6,000/- to her father-in-law. ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 7 Despite this, Ganesh always used to beat her, asking her to bring more money from her parents. On 21.11.1998, in the afternoon, for said reason, her husband beat her. At about 1630 hours when she was alone, her husband, mother-in-law, sister-in-law, younger brother-in-law, father-in-law, all came. She has also given their names with relation. Ganesh poured kerosene on her person while other four caught hold of her. Ganesh set her on fire. She has also added that on 22.11.1998, she told name of her husband only to Tahsildar as her mother- in-law, father-in-law, sister-in-law and brother-in-law had threatened and told her that otherwise there will be nobody to look after her.
11. Three oral dying declarations are to relatives of Lata when they visited her. Trial Court has considered the same in paragraph 18 of its judgment. It appears that earlier paragraph has been given No. 17 while later paragraph is also given paragraph No. 17. When dying declaration was already recorded by the Executive Magistrate on 21.11.1998 and on that basis FIR was also registered, it is apparent that there was ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 8 no need to again record second D.D. The trial Court has found that Exh. 50 was prepared without any satisfactory reason. Lata was suffering from 100% burns and few hours before her death, Exh. 50 came to be recorded. Oral dying declarations to PW-1, PW-2 and PW-3 is when they all met together Lata in the hospital. We, therefore, find trial Court right in holding that D.D. at Exh. 50 contains improvements after relatives/ parents of Lata met her and could not have been relied upon to implicate accused persons.
12. Insofar as Exh. 41 is concerned, therein Lata does not point out any time gap between quarrel and incident of burning. If Exh. 50 is true, other accused persons were not present at the time of quarrel. However, hypothecation cannot be resorted to in such matters.
13. A perusal of evidence of PW-9 - Dr. Prashant shows that he was not a Doctor treating Lata. Some other Doctor was supervising that treatment. He gave certificate without reading case papers of said patient (Lata). He claims that he inquired ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 9 from Lata about her name, place of incident and when she gave proper answers, he came to the conclusion that patient was in fit condition to give statement. Earlier he has accepted that due to pain, pain killer is administered to such patients and some pain killers also contain sedative. The fact that he put some questions and ascertained whether Lata was conscious and well oriented is not recorded by him anywhere. What is important is, he was not aware of history of treatment and still proceeded to issue certificate. The D.D. at Exh. 41 does not show any other certificate on same lines.
14. PW-6 - Executive Magistrate - Gandharwar deposes that after obtaining certificate from doctor, doctor examined the patient and gave certificate. He then ascertained that no relative was present near Lata. He then asked her name and disclosed his identity and purpose of visit. He gathered therefrom that patient was in a position to talk and in good condition. He then recorded her statement. He deposes that he then read over that statement to patient and she admitted the same to be correct. Thereafter he obtained her thumb ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 10 impression, put his own signature. He also states that at the end of process, as Doctor was present throughout her statement, he obtained certificate of Doctor again. Thus, after inquiring name from the patient, PW-6 claims that he could gather that the patient Lata was in a position to talk and in good condition. He has not recorded this observation anywhere in Exh. 41.
15. A perusal of Exh. 41 reveals that it is recorded in Marathi language and on its back side, which in fact appears to be the beginning of printed form, at the top intimation by Police Station Officer appears. This intimation thereafter notes that the recipient - Executive Magistrate had gone to Hospital (Yavatmal Government Hospital) on 21.11.1998 at 11.00 P.M. He reached there at 11.10 P.M. When he contacted Lata Ganesh Pawar for recording her dying declaration and gave her notice thereof, 2 - 3 questions were put to patient. Line thereafter in printed proforma is "proper answers were given/ not given". Thus, the option applicable is to be retained and the other is to be scored off. In this case, both the options appear ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 11 and none is cancelled. Then below this, there is requisition to the Medical Officer and at the bottom is Exh. 55 where PW-9 has certified that "patient is fit for D.D.". This is the material on first page. On reverse i.e. second page, after D.D., on left hand side, thumb of Lata appears and at the bottom, there is again certificate by the Medical Officer. Time placed below signature shows that it is issued at 11.30 P.M. He has issued certificate "D.D. is taken in presence of me." This endorsement is marked as Exh. 56. In printed proforma of D.D. in Exh. 41, there is a column for mentioning time at which the recording of D.D. was over. That time has been mentioned as 11.30 P.M. However the figure ".30" appears to have been overwritten and substituted for some other figure.
16. In Dying declaration at Exh. 50, the Investigating Officer Udaysingh Rathod has recorded everything on one page only. It is in the shape of statement and it is not recorded anywhere that Lata was informed about its nature. The narration of events therein reveals that there were two incidents. First one in the afternoon when she was beaten by ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 12 Ganesh. Thereafter at 1630 hours when the incident of burning occurred. Time has been mentioned by the Medical Officer below his second certificate as 9.35 P.M. This certificate reads "statement recorded in my presence". It appears that this certificate on Exh. 50 or certificate just above it, which reads "patient fit for D.D." is not by PW-9. The Medical Officer who may have given it, has not been examined.
17. This evidence about Exh. 41 is also not very satisfactory. We cannot at this stage compare Exh. 41 and Exh. 50 and embark upon the exercise of finding out which one appears to be correct. Once the fact that Lata has not spoken correctly in Exh. 41 emerges on record, Exh. 41 and Exh. 50 both cannot be relied upon. Not only this, if after quarrel Ganesh did not pour kerosene and ignite her but came back at 4.30 P.M. and then ignited her, narration of story in Exh. 41 itself becomes doubtful. We, therefore, find trial Court justified in not placing reliance upon any D.D.
18. The trial Court has found that Investigating Officer ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 13 could have recorded statements of others who immediately came to spot and extinguished fire on the person of Lata by pouring water. Spot panchnama Exh. 24 shows water. There was some investigation as to who extinguished that fire. But then these persons were not examined before the Court. These persons could have thrown light on the events which took place. They could have also pointed out presence of one or more of the accused persons on the spot at the time of burning or their running away. That has not been brought on record. We, therefore, find nothing wrong with the acquittal of all accused persons for the offence punishable under Section 302 of I.P.C.
19. In paragraph 24, the trial Court has looked into evidence of PW-1 mother - Maltibai, PW-2 sister - Sheela, PW- 3 brother - Sunil. These persons spoke about money paid to Ganesh/ his family and ill-treatment extended to Lata. If Exh. 41 is correct, money was only demanded by Ganesh. In this situation, exoneration of accused Nos. 2 to 5 from the offence punishable under Section 498A of the I.P.C. cannot be said to ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 14 be perverse.
20. The trial Court had to find out commission of offence under Section 498A read with Section 34 of I.P.C. and, therefore, framed the point as under :
POINT FINDING Does prosecution prove that on or before Proved only against 21.11.1998, accused nos. 1 to 5 in furtherance accused no. 1. of their common intention subjected deceased Lata to cruelty by wilful conduct which was of such a nature as was likely to drive her to commit suicide and that accused nos. 1 to 5 harassed deceased Lata by giving physical & mental torture on account of demand of money to purchase weilding machine and thereby committed an offence punishable under Section 498A r/w 34 of I.P. Code ?
The trial Court has convicted Ganesh only.
However, there is no express finding that the harassment was of such a nature as is likely to drive Lata to commit suicide.
21. In this respect, the discussion by the trial Court in paragraph 22 of its judgment also needs to be looked into. The trial Court has found material on record insufficient to prove homicidal death of Lata. It has expressly observed that possibility of its suicidal or accidental nature cannot be ruled ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 15 out.
22. There is no eye witness to the incident. If Exh. 41 or Exh. 50 cannot be relied upon, then finding of the trial Court that death may be suicidal or accidental assumes importance. The trial Court could have only said that prosecution failed to prove that death was not homicidal. There is nothing on record to gather that at any time in past Lata had expressed any concern about her life or any wish to end it. The narration by her in Exh. 50 shows some time gap in alleged quarrel and the incident. In this situation, if the death is not accidental, point as formulated by the trial Court could not have been answered by it against accused No. 1 - Ganesh. We find that prosecution did not prove death to be homicidal or suicidal.
23. In the absence of eye witnesses, only circumstantial material needs to be looked into. There is no independent evidence of any harassment or demand. Lata in Exh. 41 blames her husband only. In Exh. 41 she speaks of quarrel while in Exh. 50 she claims that her husband physically assaulted her. ::: Uploaded on - 03/04/2017 ::: Downloaded on - 04/04/2017 00:41:11 ::: apeal420.03 16 In Exh. 41, quarrel and burning form part of the same event while in Exh. 50, both become two distinct events. In Exh. 50, Lata gives more details of her harassment. Prosecution has produced only relative witnesses who may have contributed to Exh. 50 also. In this situation, merely by relying upon a statement in Exh. 41, we are not inclined to hold accused No. 1
- Ganesh guilty even under Section 498A of the I.P.C. The prosecution has failed to bring on record any cogent and convincing material for this purpose.
24. In view of this discussion, we proceed to pass the following order :
(i) Criminal Appeal No. 420 of 2003 filed by the State Government seeking conviction of all accused under Sections 302 and 498A of the Indian Penal Code is dismissed.
(ii) Criminal Appeal No. 184 of 2003 filed by accused No. 1 - Ganesh Shripat Pawar is allowed. His conviction under Section 498A of the Indian Penal Code is quashed and set aside.
(iii) Bail bonds furnished by Ganesh Shripat Pawar are cancelled.
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(iv) Muddemal property be dealt with as directed by the trial Court.
JUDGE JUDGE
******
*GS.
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