Niranjan Singh Rahi vs Narendrasingh B. Divan, ...
2003 Latest Caselaw 663 Bom

JUDGMENT

J.G. Chitre, J.

1. Heard the counsel for the parties at length.

2. The State of Maharashtra did not challenge the judgment and order passed by the 2nd Additional Sessions Judge, Thane in Sessions case No. 822 of 1982 by which the learned Judge acquitted respondent Nos. 1 to 4 (original accused) of the charge framed against them for offences punishable under Section 498-A, 304-B and 302 read with Section 34 of IPC alongwith charge for committing offences punishable under Section 4 of Dowry Prohibition Act. Therefore, the present petitioners filed this revision application for assailing the said judgment and order of acquittal. It has been admitted for final hearing.

3. The prosecution case in brief can be mentioned as mentioned hereinunder.

4. The deceased Gurujeetkaur was the daughter of Niranjansing. She was married with Respondent No. 1 in the year 1992. In the month of June, some days prior to incident in question "Gauna" ceremony was performed and deceased Gurujeetkaur started living with accused No. 1 in the house where accused Nos. 2, 3 and 4 were residing with them. On 17.6.1992, as per prosecuting case, in the beginning accused No. 1 came to the house from work and was chitachatting with accused No. 4. Gurujeetkaur got angry and went to bed. Accused No.l 3 requested her to take supper. But she did not get up. In the morning on the next day she got up at 6.00 a.m. and went to answer the call of nature. Then she cleaned the house and again went to bed. It is alleged that at that time accused No. 1 awakened her. Thereafter accused Nos. 1 and 3 caught her and accused No. 4 poured kerosene on her person and accused No. 3 ignited the match stick and set her to fire. Gurujeetkaur could not shout as accused No. 1 had gagged her mouth. On seeing fumes, the neighbouring persons gathered there. They took her inside the house. After that accused Nos. 1 and 2 called the police. Then she was removed to I.G.M. Hospital, Bhiwandi from where she was transferred to Civil Hospital, Thane.

5. It is the prosecution case that all the accused, the respondents in the present revision application, set here to fire that way because accused No. 1 had demanded fridge and scooter from father of Gurujeetkaur named Niranjansing. Niranjansing did not give those articles at the time of marriage but promised to give them after Gauna was performed. As those articles were not given to accused No. 1 by Niranajansing, Gurujeetkaur was illtreated by the accused and lastly she was set to fire as mentioned above.

6. It is the prosecution case that two dying declarations of Gurujeetsingkaur were recorded on by police and another by Executive Magistrate PW-3 wherein Gurujeetkaur blamed all the respondent for causing her death by setting her to fire by means of kerosene and match stick.

7. In the hospital, Gurujeetkaur was medically treated by the Doctor at Bhiwandi. She was also admitted in Thane Civil Hospital where she died. The post mortem examination was performed by Dr. B.C. Temki Patil. Dr. Ghawate had given her medical treatment and had issued a certificate to that effect. PSI Sonawane had recorded one dying declaration of the deceased and another dying declaration was recorded by Executive Magistrate Sitaram Yadav.

8. The learned trial Judge examined the credence of both the dying declarations and refused to accept them for basing the conviction. She pointed out that the evidence of PSI Ghawate showed that he did not depute PSI Sonawane for recording dying declaration of Gurujeetkaur when it was so claimed by PSI Sonawane. The learned trial Judge pointed out that PSI Sonawane had no cause to record her dying declaration when PW Sitaram Yadav was present for that cause. She pointed out that it has come in the evidence of PW Sitaram Yadav that he was summoned for recording the dying declaration at 5.00 or 5.30 a.m. when the incident in question took place at 7.00 p.m. of the same day. She pointed out that before endorsing the said dying declaration by endorsing that at the time of recording the said dying declaration the victim was alive, the concerned medical officer had not medically examined the said victim before endorsing that way and, therefore, the prosecution evidence on that point becomes doubtful. She pointed out that the prosecution case that both the statements are consistent with each other gets no credence on account of the infirmities present in the prosecution evidence. She pointed out that the dying declaration recorded by Shri Yadav is in Hindi while the dying declaration recorded by PSI Sonawane is in Marathi. It should not have been the case had the prosecution evidence been true. She pointed out further that both these dying declarations have been falsified by the evidence of defence witness Vijaya Raut who happened to be the neighbourer of the said family and stated in her evidence that after seeing the flames from the verandah of respondent Nos. 1 to 4 she called respondent No. 3 from the well who was bathing near it. According to her evidence, respondents extinguished the fire by pouring water and thereafter deceased was taken to Bhiwandi hospital by accused No. 1 for medical treatment. The learned Judge while discussing the evidence elaborately formed an opinion that there was no reason for the defence witness Vijaya to speak falsehood. On the contrary, her evidence gets corroborated from the spot panchanama of the verandah of the house of respondent Nos. 1 to 4.

9. The learned trial Judge dismissed the prosecution case on the point of demand of dowry. She pointed out that the list of articles which was to be given by Niranjansing to accused Narendrasing, the husband of Gurujeetkaur, was reduced into writing in the form of a list and that list did not indicate that PW Niranjansingh was to give a fridge and a scooter to Narendrasing, respondent No. 1 - accused No. 1.

10. She pointed out that the prosecution had conceded that it had no evidence to prove demand of dowry on account of the infirmities in the prosecution evidence. She finally held that the charge also failed on this count like the failure of the charge on the main point of setting Gurujeetkaur to fire by means of kerosene and match stick.

11. In the matter of Shivaji Genu Mohite v. State of Maharashtra, , the Supreme Court held that under the code of Criminal Procedure the High Court has full power to review at large the evidence upon which an order of acquittal has been passed by the Sessions Court and to reach the conclusion that upon that evidence the order of acquittal should be reversed. However, in exercising that power and before reaching its conclusion upon facts, the High Court should give proper weight and consideration to such matters, as the views of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, the right of the accused to the benefit of any doubt and the slowness of the appellant court in disturbing a finding of fact arrived at by the judge who had the advantage of seeing the witnesses.

12. Thus, the conclusion drawn by the trial Court after appreciating the evidence on record has to be put to scrutiny by this Court in view of the principle enunciated by the Supreme Court by its judgment in Shivaji Genu Mohite's case (supra). While dealing with the challenge put to the judgment and order of acquittal recorded by the trial Court this Court would be examining the approach adopted by the trial Court while assessing the evidence adduced by the prosecution and defence, if any. At that time, this Court would be seeing as to how the trial Court has discussed the evidence, assessed the evidence and drawn the conclusions. It would be surely seeing whether the conclusions drawn by the trial Court are borne out by the evidence on record or are inconsistent with it. For that, this Court would be perusing the evidence as it is necessary, would be probing it if it finds necessary, for the purpose of reaching an appropriate conclusion for keeping the course of administration of justice flawless. It would be the duty of this Court to appreciate the contentions raised by the prosecution as well as by the defence qua evidence on record and in that context an appropriate weight would be given to the conclusions drawn by the trail court who had the advantage of seeing the demeanour of the witnesses while recording it.

13. The reasons given by the trial Court for discarding the dying declarations both, are consistent with the evidence on record and the infirmities exhibited by it. The trial Court is right in drawing those conclusions. In addition to that, importance has to be given to the evidence of Dr. Ghawate who stated in his cross examination that in case of kerosene burns it is correct to say that due to fumes if consumed by the patient, his or her capacity to talk gets impaired. It means that whether deceased Gurujeetkaur was able to speak or not gets involved in doming of doubt. Unfortunately, this aspect was not elaborated further. Leaving aside that, if this aspect is seen with the infirmity of the prosecution case that before endorsing on the dying declaration the concerned medical officer Shri Ghawate did not examine victim Gurujeetkaur. One does not get satisfied that deceased Gurujeetkaur was able to speak clearly. He should have medically examined her for the purpose of ascertaining whether Gurujeetkaur was able to speak in an understandable way or not. It was necessary for PSI Sonawane to request the Executive magistrate Yadav to go for recording dying declaration when he was available there. At this juncture the statement made by PW Yadav that he was requested for recording the dying declaration at 5.00 or 5.30 a.m. gets appropriate importance. Prosecution was unable to examine the unnaturalness of its evidence on this point. It is pertinent to note that the said endorsement doe snot bear the time also. Had Dr. Ghawate been alert enough to record the time of his endorsement, some explanation could have been sought. But, unfortunately on that point also the prosecution failed. Thus, the trial Judge was correct and justified in discarding both the dying declarations.

14. So far as demand of dowry is concerned, when the list was prepared, had there been a demand of fridge or scooter, that would have been enlisted in the said list but it was not so. There may be cases in which a greedy husband or his kith and kin may not demand an article or articles at the time of settling the marriage but would prefer to demand it on later occasions. But in such cases there would be some evidence available for bringing such demands on record. It may come on record through the mouth of some witnesses conversant with the affair in question or there may be some documentary evidence in the nature of exchange of letters. It is possible in some cases that such demands may be skillfully devised and may not come on record. But even in such cases in which such demands are made in a schemed way, some witnesses would be there to depose to about them. They would be indicated by the exchange of letter sin respect of demand, delay or denial of that. By producing and proving those letters, the prosecution can bring such evidence on record. But, in this case, two letters were exchanged but none of them speaks of such demand, delay or denial. Even the evidence of PW Niranjansing exposes the inability of the prosecution to prove it. Therefore, the prosecutor conducting the prosecution might have conceded on that point.

15. Thus, there is nothing on record to come to conclusion that the learned trial Judge had committed the error of passing the said judgment and order of conviction which has been impugned by this revision application. Refusal of the State of Maharashtra to file the appeal against acquittal will have to be given credence because by examining the evidence on record the State of Maharashtra might have chosen not to file appeal against acquittal.

16. This Court does not find any ground to allow this revision application and set aside the said order of acquittal which has been assailed by this revision application. Though the learned counsel for the petitioner argued that vehemently which was repelled by the same sort of argument from the Advocate for respondent Nos. 1 to 4 and an appropriate justification by the Additional Public Prosecutor for the State. Dismissed.

17. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.