1 apeal475.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 475 OF 2015
Shivdas @ Balya s/o Suryabhan Giradkar,
aged 27 years, Occ. Milk Vendor,
R/o. Gangapur Zopadpatti, Umrer,
Distt. Nagpur ...... APPELLANT
...VERSUS...
The State of Maharashtra, through
P.S.O. Police Station Officer
Umrer Police Station,
District - Nagpur ............ RESPONDENT
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Shri C.H.Jaltare, Advocate for appellant
Shri N.S.Rao, A.P.P. for Respondent State
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CORAM: R. K. DESHPANDE, AND
M.G.GIRATKAR, JJ.
st RESERVED ON : 1 NOVEMBER, 2017 .
th
PRONOUNCED ON : 6 NOVEMBER, 2017 .
JUDGMENT (Per R.K.Deshpande, J).
1] This appeal is preferred against the judgment
and order dated 07.12.2015 passed by the learned Additional Sessions Judge-1, Nagpur, in Sessions Trial No. 252 of 2013, convicting the appellant-accused for the offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 2 apeal475.15.odt pay fine of Rs.5,000/-, in default of which he is to further suffer rigorous imprisonment for a period of six months. 2] The accused was charged that, on 31.03.2013 at about 3 p.m. in the agricultural field of one Shri Zade, situated behind Mulak Engineering College, Umrer, District, Nagpur, he committed murder intentionally by pouring kerosene on the person of the deceased Smt. Chhayabai Ishwar Dahare and set her on fire and caused her death and thereby committed an offence punishable under Section 302 of Indian Penal Code.
3] The story of the prosecution is as under :-
The deceased Smt. Chhayabai Ishwar Dahare was residing with her husband in their own house situated at Kawarapeth, Umrer. They had three children in the age group of 7 to 15 years. The husband died in the year 2008. The accused was giving milk to the neighbourers of the deceased and started developing intimacy with the deceased. The accused used to visit the house of the deceased and they developed illicit physical relations. During the life time of the husband of the deceased, a loan ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 3 apeal475.15.odt was obtained from Shikshak Sahakari Bank, Umrer and in order to repay the said loan, the deceased sold the house in the year 2011 for total consideration of Rs.4,60,000/- and repaid the loan amount. The accused demanded hand loan of Rs.35,000/- from the deceased for transfer of agricultural land in his name and accordingly, the deceased paid the said amount to the accused. In spite of repeated demands, the accused failed to repay the said amount. 4] The case of the prosecution is that, on 31.03.2013 at about 11.30 a.m., the deceased made mobile call to the accused to demand an amount of Rs.35,000/-. At that time the accused was grazing cattle in the field of one Zade, situated on the back side of Mulak Engineering College. The accused, therefore, called her at that place. The deceased went to that place and demanded the amount from the accused. The quarrel took place between them. The accused then poured kerosene on the person of the deceased and ignited match stick and set her on fire. The accused ran away. The deceased herself extinguished the fire and came on main road from where some persons took her in auto-rickshaw in the Police Station. The deceased ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 4 apeal475.15.odt was sent to Rural Hospital, Umrer, where four dying declarations at Exh. 40, 64, 111 and 126-A were recorded. Though initially offence punishable under section 307 of I.P.C. was registered vide first information report at Exh. 68, upon the death of the deceased on 01.04.2013 at about 12.30 p.m., the offence punishable under Section 302 of I.P.C. was registered against the accused and the accused was arrested.
5] The prosecution examined 17 witnesses and relying upon the oral evidence of PW-2 Akash Sukhdeo Meshram, PW-3 Ashik Natthuji Ganvir and PW-13 Chandrashekhar Anandrao Dhomne, who were the labourers engaged in the construction work near the spot of incidence, the Sessions Court holds that their evidence corroborates with four dying declarations at Exh.40, 64, 111 and 126A recorded by different persons on the same day i.e. 31.03.2013. The Sessions Court holds that all the four dying declarations are consistent in respect of material facts and particulars. In all the dying declarations, there is a reference of giving a loan of Rs.35,000/- to the accused by the deceased and the repeated demands by the deceased for ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 5 apeal475.15.odt refund of this amount constituted the motive. The Sessions Court holds that all the dying declarations were recorded on the same day and there is no reason to disbelieve the same. The Sessions Court also relies upon the oral evidence of PW-2 Akash, PW-3 Ashik and PW-13 Chandrashekhar. 6] With the assistance of the learned counsels appearing for the parties, we have gone through the oral evidence of all the three witnesses relied upon by the Sessions Court. It is neither the finding of the Sessions Court, nor do we find anything in the deposition of these witnesses to have actually seen the accused pouring kerosene on the person of the deceased and igniting a match stick to set her on fire on the spot of incidence. None of these three witnesses can be said to be an eye witness. No doubt, all of them have spoken about the quarrel going on between the accused and the deceased at the place of incidence and to that extent we do not find anything to disbelieve their version. However, even if the oral evidence of all the three witnesses is accepted as it is, no finding of conviction of the accused for the offence under Section 302 fo I.P.C. can be recorded. In our view, it will not be wrong to ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 6 apeal475.15.odt say that in fact the accused can take benefit of the oral evidence of these witnesses to some extent. 7] Now, coming to all the four dying declarations relied upon by the Sessions Court to record the finding of conviction, we would like to reproduce the contents of such dying declarations in substance as deposed by the persons who recorded such dying declarations, which we find to be in conformity with the contents of such dying declarations.
(a) PW-5 Anandprakash Dixit has spoken about the dying declaration at Exh.40 recorded by him. The relevant portion of his evidence is reproduced below;
"....The statement of Chhayabai is at Exh.40. Chhayabai has stated in her statement that she was having love relationship with accused. Chhayabai has also stated that she has given Rs.35,000/- to accused for transferring in her name. Chhayabai was demanded back her amount from the accused, but accused was avoiding to repay the amount. Chhayabai has stated that on 31/3/2013, she has made a phone call to accused. She has made a phone call at about 11.30 a.m. Chhayabai has inquired from accused as to where he is and when he is going to refund of amount. Accused told Chhayabai on phone that he is grazing cattle in the back side of Engineering College at the field of one Zade. Then, Chhayabai went to above place for collecting woods. Chhayabai has stated that after meeting with accused, she has again demanded back amount from him. Chhayabai told that there was hot exchange of words between her and accused. Chhayabai told that accused told her that he is not having money and asked her to go out and threatened that if she does not go out, then he would put her on fire with the help of kerosene. Chhayabai told that when she was demanding money from accused at that time, accused poured kerosene on ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 7 apeal475.15.odt her body from a bottle and then ignited her. Chhayabai told that after she was burnt down, she herself extinguished the fire and them came on the road......."
(b) PW-8 Rafique Sheikh, Assistant Police Sub Inspector recorded the dying declaration at Exh.64 and the relevant portion from his deposition is reproduced below;
".... Chhayabai told that on 31/3/2013 at about 11.30 a.m., she has made a phone call to accused on his mobile and told him that she is required to pay money towards fees of her daughter in school and asked him to pay money today. Chhayabai told that, accused has threatened her on telephone that, if she visited for taking money then he would assault her and then burnt her down. Chhayabai told that, then she went in the back side of Mulak College for demanding money. Chhayabai told that, she has found the accused grazing the cattle at that place and hence, she went near accused. Chhayabai told that accused has picked up quarrel with her and abused her in filthy language. Chhayabai told that then accused told her that he will burnt her alive and then accused poured kerosene on her body and burnt her down by igniting a match stick. Chhayabai told that after she was burnt down, she came rushing at Nagpur-Umrer road after boarding an auto, she came to police station and from there police sent her to Govt. Hospital. Chhayabai told that, after taking medical treatment at Umrer, her medical treatment is presently going on at Medical College Hospital, Nagpur..."
(c) PW-14 Sau. Madhuri Satone, working as Assistant Superintendent, Home Department, Collector Office, Nagpur, came to record dying declaration, has deposed about Exh.111 as under;
".... I asked her as to how she sustained burns. She replied that, one Shepard Shivdas Giradkar, poured ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 8 apeal475.15.odt kerosene on her person within the campus of Mulak College and set her on fire. I asked her as to what time the incident took place. She replied that it took place at 3.00 p.m. on the same day. I asked her as to why this incident took place. She replied that, about 2 years back, Shri Giradkar had taken Rs.35,000/- from her and in spite of repeated demand, he did not return. She also stated before me that, today she made a phone call to him and he called her in the college premises at 3.30 p.m. and he will repay the amount. I now say that, he did not call me by giving specific time. She further stated before me that, she demanded her amount with him, but instead of giving amount, he poured kerosene on her person and set her on fire by igniting match stick. She also stated before me that, at that place some labourers and students were there and they came while running. She stated that, she then rolled on the ground....."
(d) PW-16 Baban Gopalrao Palaspagar, Head Constable attached to the Medical College Hospital Booth, Nagpur, recorded the dying declaration at Exh. 126-A and has stated in his deposition as under;
"......She further stated that on 31/03/2013 at about 11.30 a.m., she made a phone call from her mobile to the mobile of the accused and requested him to repay the amount as she had to deposit the school fees of her daughter, but he threatened her on her mobile that, in case she will come to demand the amount, he will assault her and by pouring kerosene on her person will set her on fire. She further stated before me that, when she went behind K.D.K.College and at that time, the accused was grazing the cattle and on seeing her, he got annoyed and came on her person to assault and beat her. She further stated that, she managed to escape from his clutches and that time, the accused went and brought the kerosene, poured the same on her person and set her on fire. She further stated that, when she shouted, the employees and the students of the college did not come to rescue her. She stated that anyhow she came on the road and by auto, she rushed to police station....."
8] A woven common thread flowing through all the above dying declarations consists of the following facts : ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 :::
9 apeal475.15.odt
(a) It was the deceased who called the accused on
mobile phone and went to him to demand refund of an amount of Rs.35,000/-.
(b) The accused was grazing the cattle in the field on the backside of Mulak Engineering College when the deceased called him on mobile phone and thereafter personally met him.
(c) There was exchange of words between the accused and the deceased on the spot of incident and a quarrel was picked up.
(d) The deceased herself extinguished the fire set on her.
9] Perusal of the contents of all the four dying declarations indicate the progressive and improved version of the deceased. In the dying declaration at Exhibit 64, she states that, "Chhayabai told that on 13-3-2013 at about 11.30 a.m. she has made a phone call to the accused on his mobile and told him that she is required to pay money towards fees of ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 10 apeal475.15.odt her daughter in the School and asked him to pay money today. Chhayabai told that, accused has threatened her on telephone that, if she visited for taking money, then he would assault her and then burn her down".
The underlying portion in Exhibit 64 is missing from the first dying declaration at Exhibit 40. 10] In the third dying declaration at Exhibit 111, PW 14 Sau. Madhuri states that the deceased also stated before her that, "today she made a phone call to him and he called her in the College premises at 3.30 p.m. and he will repay the amount".
The underlying portion is missing from both the earlier dying declarations.
11] In the fourth dying declaration at Exhibit 126-A, PW-16 Baban states as under :
"... She further stated that on 31-3-2013 at about 11.30 a.m., she made a phone call from her mobile to the mobile of the accused and requested him to repay he amount as she had to deposit the school fees of her daughter, but he threatened her on her mobile that, in ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 11 apeal475.15.odt case she will come to demand the amount, he will assault her and by pouring kerosene on her person will set her on fire."
PW 16 further states in his deposition as under :
"... She further states that, she managed to escape from his clutches and that time, the accused went and brought the kerosene, poured the same on her person and set her on fire."
The underlying portion above is missing from the earlier dying declarations.
12] PW 2 Akash describes the quarrel between the accused and the deceased as "household dispute" and claims to have witnessed the burning of the deceased and her crying saying "wachwa wachwa, pani dya". The witness fails to identify the accused in the Court, and in the cross- examination, he states that after the quarrel, the lady and the man were sitting by the side of compound and then the person went back. This witness is not declared hostile. 13] PW 3 Ashik reiterates the above version of PW 2 and states that the person, who was quarreling with the lady, went away and then the lady was burnt. The witness was declared hostile, and in the cross-examination by the accused, he states that "It is true that the man went away and 5 to 10 ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 12 apeal475.15.odt minutes thereafter we say the lady burning." 14] PW 13 Chandrashekhar states that he heard the noise of quarrel and there was also scuffle between one lady and a person. After the lady was burning, he saw that the person was going and he was at a long distance. In the cross- examination, he states that the distance between him and the spot was 200 to 300 ft. and he saw it from the fourth floor. He further states that the said person was leaving that place and a lady was dragging him, but the person managed to rescue himself and ran away at a long distance. He says that it is after about five minutes, he heard the shouts "wachwa wachwa". The witness is not declared as hostile. 15] The accused in his statement under Section 313 of Cr.P.C. has admitted that only once he had illicit physical relationship with the deceased. The deceased insisted for marriage and, therefore, the accused started avoiding her and subsequently also rejected the proposal for marriage. It is his stand that the deceased started giving him threats and she was well aware that on 16-4-2013, the marriage of the accused was fixed with one Vaishali. ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 :::
13 apeal475.15.odt It is his stand that on 31-3-2013 between 12 and 12.30 in the noon, the deceased approached him while he was grazing the cattle in the field. The deceased came and started pressurizing him for cancellation of marriage with Vaishali and to marry with her. The deceased showed a bottle containing kerosene and threatened to commit suicide and falsely implicate the accused. It is his stand that "upon looking her ferocious appearance, I was frightened and ran away from the spot and from the long distance, I saw that the deceased set herself on fire and I had no courage to go to her and extinguish the fire." It is his stand that the deceased has falsely implicated him in the offence. 16] What we find from the aforesaid evidence on record can be summed up as under :
None of the witnesses relied upon by the Sessions Court to record the findings of conviction have spoken against the accused in any manner. On the contrary, the evidence of all these witnesses can be read in support of the defence of the accused, which we find consistent and ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 14 apeal475.15.odt probable. In none of the dying declarations, the deceased had stated that she tried to save herself from pouring of kerosene and setting her ablaze by the accused. There is no evidence of such resistance. The deceased would have made a ferocious attempt to prevent the accused from pouring kerosene and setting her ablaze. Instead of going to the hospital, she went to the police station with an anxiety to book the accused in the crime. Such conduct of the deceased is contrary to the normal behaviour of a person in such a situation. The dying declarations in succession display progressive version of the deceased. The improbabilities in the dying declarations are glaring. We find that the statements in the dying declarations are not truthful and fail to inspire confidence. We find that there is an effort by the deceased to implicate the accused in a false case. It is, therefore, not safe to base conviction of the accused on these dying declarations.
17] Though a small bottle was seized from the spot of incident containing some kerosene, the Sessions Court has disbelieved the theory of fingerprints of the accused on the said bottle. The Sessions Court has held that ::: Uploaded on - 06/11/2017 ::: Downloaded on - 07/11/2017 02:01:17 ::: 15 apeal475.15.odt specimen of fingerprints of the accused were not taken in presence of witnesses and therefore, it has kept such evidence out of consideration. There is absolutely nothing to connect the accused with such a crime.
18] In the result, this appeal is allowed. The judgment and order dated 07.12.2015 passed by the learned Additional Sessions Judge-1, Nagpur, in Sessions Trial No. 252 of 2013, convicting the appellant-accused for the offence punishable under Section 302 of I.P.C., is quashed and set aside. The accused is acquitted of such offence. The fine amount, if any, paid be refunded to him. The appellant- accused be released forthwith if not required in any other offence.
Record & proceeding be sent back.
JUDGE JUDGE
Rvjalit
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