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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.168 OF 2011
with
CRIMINAL APPEAL NO.1 OF 2011
1) CRIMINAL APPEAL NO.168 OF 2011 :
State of Maharashtra,
Through Police Station Officer,
Police Station, Pophali,
Tq.Umarkhed, Distt. Yavatmal. .......... APPELLANT
// VERSUS //
1. Sheshrao s/o. Deorao More,
Aged about 29 years,
2. Shobha Deorao More,
Aged about 49 years.
Both r/o. Harshi, Tq. Pusad,
Distt. Yavatmal. .......... RESPONDENTS
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____________________________________________________________
Mr.V.P.Gangane, A.P.P. for the Appellant.
Mr.None for the Respondents.
____________________________________________________________
2) CRIMINAL APPEAL NO.1 OF 2011 :
Shobha w/o. Deorao More,
Aged about 49 years, Occ. Agrilst.,
r/o. Harshi, Tq.Pusad, Distt.
Yavatmal. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O., Pophali,
Tq.Umarkhed, Distt. Yavatmal. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daga, Advocate for the Appellant.
Mr.V.P.Gangane, A.P.P. for the Respondent.
____________________________________________________________
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Date of reserving the Judgment : 6.11.2017.
Date of pronouncement of the Judgment : 17.11.2017.
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CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
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3 apeal168.11.odt ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. Criminal Appeal No.168 of 2011 is filed by the State to quash and set aside the Judgment dt.8.12.2010 passed by the Adhoc Additional Sessions Judge, Pusad in Sessions Trial No.59 of 2007 acquitting both the respondents/accused for the offences punishable under Sections 302, 304-B r/w. 34 of the Indian Penal Code and prayed to convict them for the said offences. Criminal Appeal No. 1 of 2011 is filed by appellant Shobha Deorao More challenging the said Judgment dt.8.12.2010 convicting her u/s.498-A r/w.34 of the Indian Penal Code and sentencing her to suffer rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default to suffer simple imprisonment for one month.
2. Both the accused herein (hereinafter referred to as "the accused") were prosecuted for committing murder of wife of accused no.1 namely Geeta More and dowry death. They are also tried for causing cruelty to the deceased. Learned trial Court, after recording the evidence, acquitted the accused of the offences punishable under Sections 302 and 304-B of the Indian Penal Code and convicted the ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 ::: 4 apeal168.11.odt accused for the offence punishable under Section 498-A of the Indian Penal Code.
3. Heard Mr.V.P.Gangane, learned A.P.P. for the State. He has submitted that the evidence adduced by the prosecution is sufficient to convict the accused for the offences punishable under Sections 302 and 304-B of the Indian Penal Code. Hence, appeal be allowed and they be convicted for the said offences.
4. Heard Mr.R.M.Daga, learned Counsel for Appellant Shobha. He has submitted that the trial Court has not relied on the Dying declarations of deceased (Exh.Nos. 45 and 52) and therefore, acquitted the accused for the offence punishable under Sections 302 and 304-B of the Indian Penal Code. Learned Counsel has submitted that the trial Court has wrongly taken into consideration some part of dying declaration (Exh.52) coupled with the oral evidence and wrongly convicted the appellant Shobha for the offence punishable under Section 498-A of the Indian Penal Code.
5. The evidence on record shows that the deceased was married with accused no.1 on 30.6.2005. Geeta died due to burn ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 ::: 5 apeal168.11.odt injuries on 17.6.2007. She was immediately taken to Government hospital at Pusad and thereafter, to Nanded. Her first dying declaration (Exh.45) was recorded by the Executive Magistrate. In her first dying declaration (Exh.52), she has stated that her husband/accused no.1 was only present in the house. She insisted for going to her parent's house and accused no.1 was not allowing her to go and therefore, he burnt her.
6. In the second dying declaration (Exh.45) recorded by Head Constable Ashok, she has stated that, on 12.7.2006, at about 3.00 p.m., her husband, mother-in-law and brother-in-law were present. Her mother-in-law and brother-in-law caught hold her hands and legs. Her mouth was shut. Her husband poured kerosene on her person and set her on fire.
7. The oral evidence was adduced by parents of deceased and her relatives making allegation that the accused persons were demanding money and therefore, they killed the deceased.
8. Learned trial Court has not relied on Exh. Nos. 52 and 45 being contradictory evidence. Therefore, the accused came to be ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 ::: 6 apeal168.11.odt acquitted for the offences punishable under Sections 302 and 304-B of the Indian Penal Code.
9. Learned trial Court has wrongly relied on some part of Exh.52 holding that the accused were demanding Rs.50,000/- and therefore, they were not allowing the deceased to go to her parent's house. It is pertinent to note that the learned trial Court has also recorded its findings that the deceased was not allowed to go to her parents' and therefore, in a fit of anger, she might have committed suicide.
10. Learned trial Court has not relied on the dying declarations (Exh. Nos. 45 and 52). At the same time, the learned trial Court wrongly relied on some part of the dying declaration (Exh.52). The approach of learned trial Court relying partly on the dying declaration which was not relied for the grave offence is nothing but wrong. When both the dying declarations of deceased are discarded by the trial Court, then it is clear that there is no evidence of deceased in respect of demand of dowry etc. ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 ::: 7 apeal168.11.odt
11. There are general allegations made by her parents about demand of Rs.50,000/- etc. It is pertinent to note that her marriage took place on 30.6.2005 and the incident took place on 17.6.2007. Nothing is brought on record to show that there was a demand of dowry at the time of marriage. Therefore, learned trial Court has wrongly convicted appellant Shobha for the offence punishable under Section 498-A of the Indian Penal Code.
12. In respect of appeal by State, it is clear from the evidence adduced by the prosecution that dying declarations (Exh. Nos.45 and
52) are not reliable because both the dying declarations are contradictory. In the first dying declarations, the deceased has only stated name of her husband. But, in her second dying declaration, she has implicated other accused also. The learned trial Court has rightly recorded its findings in respect of offences punishable under Sections 302 and 304-B of the Indian Penal Code.
13. Deceased has not stated name of her mother-in-law Shobha (appellant) in her first Dying declaration. She is wrongly convicted by trial Court for the offence u/s.498-A of the Indian Penal ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 ::: 8 apeal168.11.odt Code. Hence, she is entitled for acquittal. Hence, we pass the following order :
//ORDER// Criminal Appeal No.168 of 2011 filed by the State is dismissed.
Criminal Appeal No.1 of 2011 filed by the appellant Shobha Deorao More is hereby allowed. The appellant is acquitted of the offence punishable under Section 498-A r/w. 34 of the Indian Penal Code.
Fine amount paid by the appellant, be refunded to her.
Her Bail bonds shall stand cancelled.
Record and proceedings be sent back to the trial Court.
JUDGE JUDGE [jaiswal] ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 ::: 9 apeal168.11.odt ::: Uploaded on - 17/11/2017 ::: Downloaded on - 18/11/2017 02:06:56 :::