cria234.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.234 OF 2013
Haribhau s/o Babaji @ Babasaheb Jawale,
Age-25 years, Occu:Agril.,
R/o-Kolhar (Kolhubaiche),
Tq-Pathardi, Dist-Ahmednagar.
...APPEALLANT
(Orig. Accused No.1)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. Rajendra S. Deshmukh Advocate h/f.
Mr. B.N. Palve Advocate for Appellant.
Mr. S.G. Karlekar, A.P.P. for Respondent/State.
...
CORAM: S.S. SHINDE AND
K.K. SONAWANE, JJ.
DATE OF RESERVING JUDGMENT : 15TH MARCH,2017 DATE OF PRONOUNCING JUDGMENT: 31ST MARCH, 2017 JUDGMENT [PER S.S. SHINDE, J.]:
1. This Criminal Appeal is filed by the ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 2 Appellant - original accused No.1 challenging the Judgment and order dated 16th May 2013 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No.235 of 2011, thereby convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life.
2. Facts of the prosecution case, in brief, are as under:
A) It is the case of the prosecution that Baban Aghav was residing at village Chinchale, Taluka-Rahuri along with his wife Vijabai, two sons and one daughter Ashwini, aged 20 years. Marriage of Ashwini came to be solemnized on 20th May, 2011, with Appellant - Haribhau, the son of Babaji Jawale, original accused No.2. Babaji was residing alongwith his wife Drupadabai and son Deepak in a residential house constructed in Gat No.771 at village Kolhar. After marriage, Ashwini ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 3 went to cohabit with Appellant Haribhau Jawale, but she received ill-treatment not only from her husband Haribhau but also from her mother-in-law Drupadabai as well father-in-law Babaji. From the very first day of her marriage, Ashwini was subjected to harassment on account of demand of money. Appellant Haribhau along with his father and mother, started making demand of Rs.80,000/- for purchasing a vehicle for Haribhau. On this count Ashwini was also beaten and abused. Ashwini was also told that she had brought very few articles and on this count her mother-in-law Drupadabai used to give abuses to Ashwini. Ashwini also did not receive proper treatment from her hsuband Haribhau. On the very second day of her marriage, she was subjected to forcible sexual intercourse against her own wishes, though she was having her menses. Appellant Haribhau was repeatedly committing forcible sexual intercourse with Ashwini and on this count also he was harassing her.
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cria234.13 4 B) On 22nd May, 2011 Baban, father of Ashwini, went to bring back Ashwini to her maternal home at village Chinchale. On the next day Babaji, father of Appellant Haribhau came to village Chinchale and took away Ashwini to her matrimonial house. After coming back to the matrimonial house, the marital life of Ashwini was not peaceful and she continued to receive harassment and ill-treatment at the hands of Appellant and his father and mother. On 27th May, 2011 in the night Appellant Haribhau forcibly committed sexual intercourse with Ashwini on three occasions against her wishes. Appellant Haribhau also assaulted Ashwini during that night. C) In the morning of 28th May, 2011 Aswini was folding her clothes in the house. At about 12.00 noon Appellant Haribhau again came inside the house and asked Ashwini to bring amount of Rs.80,000/- from the house of her parents, to ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 5 which Ashwini did not agree. Appellant Haribhau then gave a slap to Ashwini. Appellant Haribhau then took one bottle containing kerosene and poured kerosene over the body of Ashwini and set Ashwini on fire by igniting a match-stick. Due to the fire, the clothes of Ashwini started burning and Ashwini received burn injuries all over her body. In the mean time, father and mother of Appellant Haribhau also reached the house and extinguished the fire. Father and mother of Appellant Haribhau then rushed Ashwini to the Civil Hospital at Ahmednagar. Ashwini came to be admitted to Burns Ward as she had received burn injuries all over body to the extent of 80%. D) While Ashwini was in the Burns Ward and struggling for life, she expressed a desire to give a dying declaration. Police then summoned the Special Judicial Magistrate to record the dying declaration. During the course of recording of dying declaration, Ashwini stated that, her ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 6 husband i.e. Appellant Haribhau, had poured kerosene over her person and set her on fire. While Ashwini was admitted in the Burns Ward, she again gave a dying declaration, which came to be recorded by P.S.I. attached to Topkhana Police Station, Ahmednagar. On the basis of the dying declaration recorded by the Special Judicial Magistrate, offence came to be registered by Pathardi Police Station vide Crime No.209 of 2011 under Sections 307, 376 and 323 read with 34 of the Indian Penal Code. Police then started investigation. Police went to the spot of the incident located in the house of Appellant Haribhau Jawale at village Kolhar and Spot Panchnama was prepared in the presence of Panchas. During the course of investigation, police also arrested the original accused Nos.1 to 4. In the mean time Ashwini succumbed to the burn injuries. Police then prepared Inquest Panchnama over the dead body of Ashwini in the presence of Panchas and dead body was sent for postmortem. Medical ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 7 officer attached to Civil Hospital, Ahmednagar conducted postmortem over the dead body of Ashwini. Medical officer gave opinion that death of Ashwini was due to burn injuries to the extent of 80%. Medical officer also gave opinion that death was due to septicemia due to 80% burns. Police seized clothes of deceased Ashwini. Thereafter Investigating Officer conducted the remaining investigation. Police took sample of blood of deceased Ashwini as well as that of accused. Police also seized the articles from the spot viz. one plastic bottle, match box and match- stick and prepared Seizure Panchnama. Muddemal Articles were sent to the office of Chemical Analyzer. Report of Chemical Analyzer was also duly received. After completion of investigation, charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, Pathardi. As the offence under Section 302 of the Indian Penal Code (for short "I.P. Code") was found to be triable exclusively by the Court of Sessions, the case ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 8 was committed to the Court of Sessions, Ahmednagar on 23rd September 2011.
3. The accused Nos.1 to 4 appeared before the Court of Sessions. The charges were framed against accused Nos.1 to 4 for the offence punishable under Sections 302, 376 and 498-A read with 34 of the Indian Penal Code. Contents of charge were read over and explained to the accused in vernacular. Accused pleaded not guilty and claimed to be tried. The defence of the accused is that of total denial and false implication. In order to prove charges, the prosecution examined as many as nine witnesses.
4. In Sessions Case No.235 of 2011 before the trial Court, there were four accused. The trial Court considered the oral and documentary evidence. Trial Court acquitted accused Nos.2 to 4 from all the offences with which they were charged. The trial Court discarded the defence of ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 9 accused No.1 i.e. present Appellant and holding him guilty, convicted the Appellant - accused no.1 for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer life imprisonment, as afore stated. Hence this Appeal.
5. The learned counsel appearing for the Appellant submits that there is inconsistency in both the dying declarations, in as much as in the first dying declaration there is no mention of demand of Rs.80,000/- by the Appellant or his family members, however in the second dying declaration it is stated that the Appellant and his family members demanded Rs.80,000/- and on that count they were causing harassment to Ashwini. It is submitted that if there is inconsistency in two dying declarations, in that case both the dying declarations deserve to be discarded. All the accused are acquitted from the offence punishable under Section 498-A read with ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 10 34 of the I.P. Code and therefore the prosecution has not brought on record any motive for commission of offence by the accused. Even the Appellant is acquitted from the offence punishable under Section 376 of the I.P. Code. It is submitted that the Appellant has raised the probable defence and the same ought to have been accepted by the trial Court. It is submitted that there was no reason for the accused to cause ill- treatment or harassment soon after the marriage. Deceased Ashwini was having love affair with one Raju Shaikh and she wanted to perform marriage with him. On 27th May, 2011 Shaikh Raju visited the matrimonial home of Ashwini and presented one Aptron Television Set to Ashwini. There was quarrel between said Raju Shaikh and father of deceased Ashwini and on account of that her mental condition was disturbed and as a result, she committed suicide on 28th May, 2011. He invites our attention to the evidence of father and mother of deceased Ashwini i.e. PW-1 Baban Bhagaji Aghav ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 11 and PW-3 Vijabai Baban Aghav and submits that their evidence suffers from exaggeration, omissions, improvements and contradictions and therefore, deserves to be discarded in its entirety. PW-3 Vijabai has admitted in her evidence that one Babasaheb, who is their relative, is in police department. The dying declarations were result of tutoring by PW-1 Baban and PW-3 Vijabai and also the other witnesses who are in blood relation of PW-1 and PW-3. Ashwini sustained burns up-to 80% and even the burns to hands, palm and also to the fingers and therefore it was impossible to obtain the thumb impression. The endorsement given by the medical officer is not in the concerned Ward, but he had given the said endorsement sitting in his chamber. The attestation to thumb impression is in different handwriting and the writing on backside of the dying declaration is in different handwriting. Thus, the said dying declaration cannot be relied upon. The trial Court has not properly considered ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 12 the evidence of PW-4 Laxmi Nanasaheb Tandale, wherein she stated that Ashwini had told her that Ashwini herself set her on fire as she was not happy with her marriage with the Accused No.1 - Appellant. The prosecution did not examine the independent witnesses who have immediately rushed to the house of the Appellant after the alleged incident. In support of his contention that if two dying declarations are inconsistent with each other on material particulars, in that case no implicit reliance can be placed upon the said dying declarations, the learned counsel for Appellant placed reliance on the reported Judgment in the case of State of Maharashtra vs. Uttam Karbhari Dhage and another1. The learned counsel for the Appellant, in support of his submissions, also placed reliance on the unreported Judgment of the Bombay High Court, Bench at Aurangabad in the case of Sunil s/o Bapurao Kadam and others vs. The State of Maharashtra (Criminal Appeal No.111 of 1 1997 CRI. L.J. 2513 ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 13 2014, decided on 21st September 2015).
6. On the other hand, learned A.P.P. appearing for the State, relying upon the findings recorded by the trial Court, submits that those are in consonance with the evidence brought on record. He submits that though the accused are acquitted from the offence punishable under Section 498-A read with 34 of the I.P. Code, nevertheless the prosecution has proved the motive of causing harassment to Ashwini by demanding money and also excessive sexual harassment by the Appellant. In respect of appreciation of the evidence in the form of dying declaration, the learned A.P.P. placed reliance on the reported Judgments in the case of Khushal Rao vs. State of Bombay2, Laxman vs. State of Maharashtra3, Sayarabano @ Sultanabegum vs. State of Maharashtra4, Jaishree Anant Khandekar vs. State 2 1958 A.I.R. (S.C.) 22 3 2002 A.I.R. (S.C.) 2973 4 2007(12) S.C.C. 562 ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 14 of Maharashtra5 and Naresh Eknath Naik vs. State of Maharashtra6.
7. We have heard the learned counsel appearing for the Appellant and learned A.P.P. appearing for the State at length, with their able assistance perused the grounds taken in the Appeal Memo, annexures thereto and also the entire evidence so as to find out the correctness of the findings recorded by the trial Court. It is true that the trial Court has acquitted all the accused from the offence punishable under Section 498-A read with 34 of the I.P. Code on the ground that there is evidence of only PW-1 Baban and PW-3 Vijabai. Nevertheless, the allegation of demand is not only stated by PW-1 Baban and PW-3 Vijabai but also by deceased Ashwini in her dying declaration at Exhibit 58. Be that as it may, since the State has not filed any appeal challenging the acquittal of other accused or the acquittal of the Appellant 5 2009(11) S.C.C. 647 6 2013(2) Bom.C.R.(Cri.) 97 ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 15 for the offence punishable under Section 498-A read with 34 of the I.P. Code and Section 376 of I.P. Code, we will not go into the greater details of the reasons assigned by the trial Court while acquitting the accused from the said offences. However, the fact remains that in both the dying declarations, Ashwini has categorically stated about excessive sexual assault by the Appellant from 21st May, 2011 till 27th May 2011. While acquitting the Appellant from the offence punishable under Section 376 of the I.P. Code, two principal reasons are assigned by the trial Court, firstly that, Ashwini was married with the Appellant and secondly, her age was 20 years and therefore it cannot be said that the Appellant committed the offence punishable under Section 376 of the I.P. Code. But to appreciate both the dying declarations, this Court will have to bear in mind the prelude to the dying declarations wherein Ashwini categorically stated about excessive sexual assault by the Appellant, which cannot be ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 16 ignored. In second dying declaration, Exhibit 58, Ashwini stated that, on the very second day of her marriage she was subjected to forcible sexual intercourse against her wishes, though she was having her menses. Upon careful perusal of the dying declaration at Exhibit 54, so far as the main incident in relation to Appellant is concerned, it is stated thus:-
"vkt ldkGh mBwu ?kjkrhy loZ dkes dsyh- lklw] fnj ckgsj gksrs- eh o uojk ?kjkr gksrs- eh diM;kaP;k ? kM;k ?kkyhr gksrs- uo&;kus eyk ,d >kiM ekjyh o f'kO;k fnY;k- nqikjh 12 ok- njE;ku vkEgh nks?ks ?kjkr vlrkuk uo&;kus ckVyhrhy jkWdsy ekÖ;k MksD;koj vksrys- [kkyh vaxkoj jkWdsy vks?kGys- ckVyh Vkdwu fnyh o R;kus dkMsisVh ?ksmu dkMh vks<wu ek Ö;k lkMhyk fu&;ktoG ykowu eyk isVowu fnys- ekÖ;k vksjM.;kpk vkokt ,sdwu lklw] fnj o 'kstkjP;k ck;k vkY;k- lklwus] nhjkus eyk fo>foys- lkljk] uojk ;kauh eyk nok[kkU;kr vk.kys----------" (Underlines added)
8. In fact the statement at Exhibit 58, is recorded as supplementary statement. It appears ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 17 that the father of Ashwini i.e. PW-1 Baban filed one application with the Investigating Officer which was exhibited as Exhibit 56, wherein he raised concern about not properly recording dying declaration at Exhibit 54 and therefore the supplementary statement of Ashwini at Exhibit 58 in the form of further dying declaration was recorded by Investigating Officer PW-9 Buddhiraj Dnyanoba Sukale. Upon careful perusal of the contents of the said dying declaration, Ashwini stated that on 28th May, 2011 she gave dying declaration before the Special Executive Magistrate. While recording said dying declaration, no relative was present. But father- in-law told Ashwini not to tell their names in earlier dying declaration and therefore, their names were not mentioned. It is true that in further statement at Exhibit 58, first time Ashwini stated that the husband and other accused started demanding Rs.80,000/- since second day of marriage and on that count they abused her. So far ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 18 as main incident is concerned, in Exhibit 58, Ashwini stated thus :-
"eh fnukad 28/05/2011 jksth fo'ks"k U;k; naMkf/kdkjh ;kapsleksj fnysyk e`R;wiwoZ tckc eyk iksyhlkauh okpwu nk[kfoyk rks cjkscj vkgs- lnjpk tckc ?ksrsosGh ek>s ekgsjps vkbZ oMhy vxj dks.khgh ekgsjps yksd uOgrs o eyk ek>s lkl&;kus vkeph ukos lkaxw udks vls EgVY;keqGs eh R;kaph ukos lkafxryh uOgrh- vkrk eh iw.kZ 'kq/nhoj vlwu lkaxrs dh yXukps nql&;k fno'khp ekÖ;k uo&;kus ¼gfjHkkÅus½ eyk ikGh vlrkuk lq/nk ek>soj ek>s bPNsfo:/n frunk tcjnLrhus cykRdkj dsysyk vkgs- rlsp fnukad 27/05/2011 jksth lq/nk jk=Hkj ek>soj cykRdkj dsyk vkgs- ek>s lkljs ckcqth egknso tkoGs] lklq nzksinkckbZ ckckth tkoGs] nhj fnid ckckth tkoGs gs loZtu yXukps nqljs fnolkiklwu eyk ßrq>s ekgs:u xkMh ?ks.;klkBh 80,000 :i;s ?ksowu ;sÞ vls Eg.kwu eyk usgeh f'kohxkG o ekjgk.k djhr gksrs- fn-28/05/2011 jksth nqikjh 12.00 ok- ps njE;ku eh o ek>s irh gfjHkkÅ vls nks?ks ?kjh vlrkuk uo&;kus eyk ßrq>s ekgs:u 80,000 :i;s vk.kÞ vls Eg.kkyk rsOgk eh R;kyk ßukgh vk.k.kkjÞ vls Eg.kkys vlrk uo&;kus fclysjh ¼ik.;kP;k½ ckVyhrhy jkWdsy ek>s vaxkoj Vkdys] MksD;koj Vkdys o dkMh isVhrhy dkMh vks<wu eyk isVowu fnys- eh vksjMY;kpk vkokt ,sdwu lklw] nhj iGr ?kjkr vkys o eyk fo>foys o ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 19 nok[kkU;kr vk.kys-"
(Underlines added) . Therefore, upon careful perusal of the version from two dying declarations in relation to main incident of pouring kerosene on the person of Ashwini and setting her ablaze by the husband Haribhau i.e. Appellant, stated by Ashwini, is consistent.
9. Prosecution examined Dr. Vaidyanath Shriniwas Gurwale as PW-5, who conducted post- mortem on the dead body of Ashwini. He deposed that he was posted in the Civil Hospital at Ahmednagar since last two and half years. He further deposed that he had conducted autopsy over the dead body of deceased Ashwini Jawale. He further deposed that he conducted the post-mortem and noted the following:
"Column No.17 - Superficial to deep burns over body parts ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 20 Head, neck, face : 5% Chest abdomen : 18% Right upper limb : 8% Left upper limb : 8% Right lower end : 18% Left lower limb : 18% Back : 5%
-------------
: 80%
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. PW-5 Dr. Vaidyanath Gurwale further deposed that, in his opinion death of Ashwini had taken place due to septicemia shock due to 80% burn.
10. Prosecution examined Dr. Jaydeep Bhanudas Deshmukh as PW-6, who examined the patient Ashwini before recording dying declaration by PW-8 Gorakshanath. PW-6 Dr. Deshmukh deposed that Shri Ghugarkar (PW-8) told him that he wants to record dying declaration of Ashwini. He then went alongwith Shri Ghugarkar to the Burns Ward where Ashwini was admitted. He then examined the patient ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 21 Ashwini. He found that Ashwini was in fully conscious condition to give her statement. He then put his endorsements on the dying declaration.
11. The dying declaration Exhibit 54 was recorded by Special Executive Magistrate PW-8 Gorakshanath Dashrath Ghugarkar, who deposed that before recording dying declaration of Ashwini, he asked Dr. Deshmukh (PW-6) to examine the patient Ashwini and to issue the certificate. Dr. Deshmukh then examined the patient Ashwini and issued a certificate on the dying declaration. He further deposed that Dr. Deshmukh also put the timing below the certificate. PW-8 Gorakshanath then asked the police as well as relatives to go outside the cabin of patient Ashwini. PW-8 then asked some preliminary questions to Ashwini. PW-8 Goraskshanath further deposed that patient Ashwini told him that from the second day of her marriage her husband started harassing her and started compelling her to have sexual intercourse with ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 22 him. He further deposed that Patient Ashwini told that her husband was compelling her to have sexual intercourse with her on three occasions in the night. About the main incident, PW-8 Gorakshanath deposed that Ashwini told him that in the afternoon at 12.00 noon her husband had beaten her and then poured kerosene over her person from a bottle and lighted a match-stick and then set her saree on fire.
12. So far as evidence of PW-1 Baban Bhagaji Aghav and PW-3 Vijabai Baban Aghav is concerned, they have fairly stated in their evidence that they arrived at the hospital at 6.00 p.m. Upon perusal of the dying declaration Exhibit 54, it appears that the said dying declaration was recorded at 4.35 p.m. on 28th May, 2011. Therefore, possibility of tutoring to Ashwini by her parents i.e. PW-1 and PW-3 is completely ruled out.
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13. So far as evidence of PW-4 Laxmi Nanasaheb Tandale is concerned, she has reciled from the statement made before the police and the Investigating Officer PW-9 Buddhiraj Dnyanoba Sukale, in his evidence, has stated that, portion marked "A" from police statement of PW-4 Laxmi was stated by her. PW-4 Laxmi Nanasaheb Tandale was declared hostile and therefore her evidence is of no use to the defence.
14. Investigating Officer PW-9 Buddhiraj Dnyanoba Sukale, in his deposition before the Court, deposed that in the month of May, 2011 he was attached to Pathardi police station as P.S.I. He further deposed that on 29th May, 2011 head constable Shekde registered an offence vide Crime No.I-209 of 2011 and handed over the investigation to PW-9. He further deposed that he went to the spot of the incident and prepared spot panchnama. He further deposed that he seized one saree, a bottle having smell of kerosene of Blue Vita ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 24 Company, one match-stick and a match-box. He then recorded statement of Laxmi Nana Tandale as per her say. He further deposed that he then issued letter to the Medical Officer to conduct examination of the victim from the angle of rape. He also issued another letter to the Medical Officer to conduct physical examination of victim Ashwini for issuing certificate. He then recorded statement of the complainant. Prior to that he made inquiry from Medical Officer whether victim was in a fit condition to give a statement. He further deposed that Medical Officer then examined Ashwini and issued the certificate. He then recorded statement of Ashwini. He further deposed that Ashwini told him that on 28th May, 2011 she was with her husband Haribhau. At that time Haribhau demanded amount of Rs.80,000/- and on that count had subjected her to harassment. Ashwini also told that from the second day of her marriage, her in-laws and brother-in-law were subjecting her to harassment for bringing more ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 25 money. He further deposed that Medical Officer then gave certificate on the same. He further deposed that he then recorded statements of Baban Aghav, Vijabai and others. He further deposed that on 3rd June, 2011 victim Ashwini died. He further deposed that inquest was prepared. Subsequently, the offence under Section 302 of the I.P. Code came to be registered. He thereafter arrested the accused and prepared arrest Panchnama. He then sent Muddemal Articles to the Chemical Analyzer. Reports of Chemical Analyzer were received. He further deposed that he also sent viscera of deceased Ashwini to B.J. Medical College, Pune. He further deposed that he then submitted charge- sheet.
15. In view of the exposition by the Supreme Court in the case of Khushal Rao vs. State of Bombay, cited supra, the dying declaration recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 26 and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character. In the present matter, the dying declaration Exhibit 54 is recorded by PW-8 Gorakshanath Ghugarkar, the Special Executive Magistrate, and therefore the same stands on a much higher footing. The second dying declaration Exhibit 58, recorded by PW-9 Investigating Officer Buddhiraj Sukale is a supplementary statement, in continuation of earlier dying declaration.
16. As already observed, so far the allegations about sexual assault/ harassment by the Appellant, the same could have been stated only by Ashwini and none else. Apart from it, while appreciating truthfulness of the contents of both the dying declarations, in both the dying declarations Ashwini has consistently stated that ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 27 other family members, except husband, were outside the house at the time of main incident and upon pouring kerosene on her person by the husband and setting her ablaze, she shouted and mother-in-law and brother-in-law immediately came there and tried to extinguish the fire on her person and she was taken to the hospital. If Ashwini wanted to rope in all the accused, she could have easily done it by ascribing role to them. However, in both the dying declarations Ashwini has attributed role to the Appellant only. It would have been different matter if there was an attempt on the part of the Appellant to extinguish the fire when the Appellant and Ashwini were only in the house and incident had taken place at about 12.00 noon. The size of the house is also not big and therefore, if it would have been the case of suicide by Ashwini, certainly the Appellant ought to have made efforts to extinguish the fire. However, there is nothing on record to suggest that, as a matter of fact, Appellant tried to ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 ::: cria234.13 28 extinguish the fire. The defence taken by the Appellant is rightly rejected by the trial Court since the Appellant and Ashwini both were only in the house and it was for the Appellant to offer true explanation under which circumstances the incident had taken place. The feeble attempt to suggest that since Raju Shaikh presented Television set and there was love affair between said Raju Shaikh and Ashwini and therefore she committed suicide by pouring kerosene on herself and setting her ablaze, that too at 12.00 noon, is impossible to accept, and rightly discarded by the trial Court.
17. Therefore, upon considering the evidence in its entirety, we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record and therefore, we do not think it necessary to cause interference in the findings recorded by the trial Court.
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18. Hence, the Appeal is devoid of any merit. The Criminal Appeal stands dismissed. [K.K. SONAWANE, J.] [S.S. SHINDE, J.] asb/MAR17 ::: Uploaded on - 31/03/2017 ::: Downloaded on - 01/04/2017 01:07:18 :::