Ananda And Anr. vs State Of Maharashtra
2006 Latest Caselaw 252 Bom

JUDGMENT

Kshitij R. Vyas, C.J.

1. This appeal is preferred by appellants (original accused Nos. 1 and 3) challenging the Judgment and order of conviction and sentence dated 6th August 2004, passed by the learned ad hoc Additional Sessions Judge, Latur, in Session Case No. 58 of 2002, convicting them for the offence, punishable under Section 302, read With Section 34 of Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life and to pay fine of Rs. 500/- each, in default, to undergo rigorous Imprisonment for six months. The learned Judge, however, acquitted the appellants for the offences, punishable under Section 498-A read with Section 34 of Indian Penal Code. The learned Judge however, acquitted the original accused No. 2 Mahav Ananda Gaikwad, for the offences punishable under Sections 498-A and 302, read with Section 34 of the Indian Penal Code.

2. The facts of the prosecution case briefly be stated as under:

Deceased, Aruria married the appellant No. 1, Ananda about nine years, before the incident, which took place on 28-6-2000. After the marriage, she gave birth to one son and two daughters. The accused were alleging that the children born to deceased, are not begotten from her husband. It is the prosecution case that, prior to one day of the incident, accused called the parents of the deceased, Aruna. The accused insisted the parents of the deceased to take their daughter with them. In fact, deceased also requested her parents to take her to the parental home. However, the parents of the deceased did not oblige and returned back to their home.

On the day of the incident, the accused asked deceased to leave their house and threw her luggage out of the house. As she refused to leave the house, accused set her on fire. However, accused No.2, Madhav, the father-in-law of the deceased extinguished the fire with the help of quilt and took her to the civil hospital, Latur. Dr. Choudhari Abdul Hamid, PW-12, the Medical Officer of Civil Hospital, Latur, who first examined the deceased in a burnt condition and after admitting the deceased in the hospital, informed Gandhi Chowk Police Station. Ramdas Rajaram Mohite, the Head Constable, attached to the Gandhi Chowk Police Station, Latur, on getting the information from the Medical Officer, Choudhari, when to the hospital and recorded the statement (Exh. 38) of deceased at about 1.45 P.M. He also gave a letter to Taluka Executive Magistrate, for recording the dying declaration. Uttam Dudhale, PW-6, Naib Tahsildar, Latur, reached hopital at about 2.30 p.m. and recorded the dying declaration (Exh. 60) of the deceased. A.P.I., Rajendrasinha Prabhusinha Gaur of Gandhi Chowk Police Station, registered the offence against the accused. After registering the offence, he started usual investigation. Deceased Aruna succumbed to injuries in the hospital on the next day, i.e. on 29-6-2000, at about 11.00 am. On completion of investigations, Investigating Officer filed charge-sheet in the Court of learned Judicial Magistrate, First Class, Amhedpur who, in turn, committed the case to the Court of Session, as the case was exclusively triable by the Court of Session.

3. The learned Additional Sessions Judge framed the charge (Exh.4) against all the accused, for the offences, punishable under Sections 498-A, 302 read with Section 34 of the Indian Penal Code.

The accused pleaded not guilty to the charge and claimed to be tried. Their defence is of total denial. The learned trial Judge at the end of trial, after appreciating the evidence on record and the statements of the witnesses, recorded under Section 313 of Cr. P.C., passed Judgment and Order, as stated in earlier paragraph of the Judgment.

4. We have heard learned Counsel, Mr. Dhorde, appearing for the appellants as well as Mr. Patil, the learned Additional Public Prosecutor, appearing for the State, at length. We have also gone through the entire record of the trial Court.

5. Learned Counsel for the appellants submitted that the trial Court has committed a error by placing reliance on the dying declarations (Exh. 38 and Exh. 60). The learned Counsel submitted that there are inherent discrepancies and inconsistencies in both the dying declarations and, therefore, according to the learned Counsel, without there being any corroboration to the same, by other evidence, the learned Judge ought not to have relied upon the same. Learned Counsel also criticised the evidence of other prosecution witnesses by submitting that their evidence is required to be rejected, as they are relatives and partial witnesses. Learned additional prosecutor, on the other hand, supported the reasoning of the learned trial Judge in toto.

6. There is no disputes on the point that Aruna died of homicidal death. Post mortem report (Exh.45) supports this fact. The Medical Officer, General Hospital, Latur has opined that the cause of death of the deceased was shock due to 100% superficial to deep burn. Learned Counsel for the appellants submitted that the defence has suggested to the witnesses about probability of the suicide having been committed by the deceased. While trying to substantiate the same, by suggesting that the appellant No. 1 as well as deceased were happily living in their married life since nine years and it is because of the incident of quarrel, having been taken place a day, previous to the incident in question, the deceased, might have taken the extreme step of committing suicide. In absence of any suggestion, having been put to the Doctor, who had treated the deceased and in absence of any explanation given by the appellants in their further statements under Section 313 of Cr.P.C., it is not possible for us to accept the theory of suicide, suggested by the learned Counsel. Surprisingly, the appellant No. 1, who himself sustained burn injuries, was admitted in the hospital for treatment, has kept total silence about he manner in which the incident has taken place. In fact, not a word is uttered suggesting that the deceased has committed suicide. In view of this state of affairs, we have to rule out the theory of suicide, suggested by learned Counsel for the appellants.

7. The question that arise for consideration, is whether the prosecution has established the fact that the deceased was burnt to death by the appellants. To establish the same, the prosecution has placed reliance on the evidence of PW-1, Karuna Kamble, sister (Exh.29), PW-2, Kalubai (Exh.31), the mother, PW-3, Nivarti Kamble (Exh.35), the uncle of the deceased. The prosecution has also examined PW-7, Eknath and PW-8, Dagdu Pathan, the neighbours. However, their evidence do not throw light over the incident, as they have not supported the prosecution. PW-1, P-2 and P-3 though they are near relatives of the deceased, have been examined to establish that a day, prior to the incident, quarrel had taken place between deceased and the appellants. The accused wanted these prosecution witnesses to take deceased with them. In fact, deceased also wanted to leave her matrimonial home. It appears that these prosecution witnesses were reluctant to take the deceased with them and they just returned home. In their evidence, they have also involved accused of causing harassment and torturing the deceased. In fact, PW-2 and P-3 have alleged that appellant No. 1 used to beat the deceased on one pretext or other. In fact, appellant No. 1 was doubting the chastity of the deceased. Since there is no sufficient evidence about harassment and mental torture, the accused are rightly acquitted by the learned trial Judge. Learned Counsel for the appellants submitted that their evidence is not believable, as they are totally inconsistent about the timings of their arrival at Latur hospital. It was submitted that as per evidence of PW-3, he reached General Hospital, Latur between 11.30 a.m. to 12.00 hrs. on the day of the incident, while as per the say of PW-1 and PW-2, they reached to the hospital at about 7.00 p.m. in the evening. It was submitted that if as per the say of all the prosecution witness, they have reached the General Hospital at a time and they were present before the dying declaration was recorded, there are all possibilities that they must have tutored the deceased. We see no substance in these sub-missions and the submissions are required to be rejected in view of the fact that from the evidence on record, it is clear that they could not have reached, before the dying declaration was recorded. It is the say of PW-2 that on receiving the message from the police station and after informing PW-1, she, in the company of PW-3, reached General Hospital, Latur at 7.00 p.m. From the evidence of PW-4, Constable Mohite, it is clear that the police station sent messages to the relatives after 1.45 p.m. It has come in evidence that second dying declaration (Exh.60) was come in evidence that second dying declaration (Exh.60) was recorded between 2.40 to 2.50 p.m. In view of this, the claim made by PW-3 that he reached Latur hospital at or around 12.30 p.m., does not sound good. Therefore, the claim made by PWs-1 and 2 that they reached Latur hospital at 7.00 p.m. with PW-3, appears to be more probable and believable. Under the circumstances, we hold that the PWs-1, 2 and 3 were not present at the time of recording of second dying declaration (Exh.60) and, therefore, the question of tutoring the deceased does not arise. The next question, which is required to be considered, is of genuineness of both the dying declarations (Exh.38 and Exh.60). Dying declaration (Exh.38) is in the form of the statement, recorded by PW-4, Mohite, the Police Constable of Gandhi Chowk Police Station; while dying declaration (Exh.60) is recorded by PW-6, Dudhale, the Naib Tahsildar, which is recorded on printed form. Learned Counsel for the appellants submitted that both the dying declarations are inconsistent with each other and, therefore, do not inspire confidence. It was submitted that dying declaration (Exh.60), recorded by the Naib Tahsildar is required to be ignored for the simple reason that the same being a printed one, wherein it has been printed that whether the patient is conscious or not and the Naib Tahslldar, without verifying the said fact, simply filled in the blanks. The learned Counsel pointed out the following discrepancies in both the dying declarations.

In Exhibit 38, the deceased has stated as under:

On 28-6-2000, my husband threw the luggage on the road. My husband, father-in-law and mother-in-law threw the Utensils from the house. My mother-in-law told me to leave the place. My husband was standing near me. My mother-in-law asked my husband as to why he was standing there; pour the kerosene on the person of his wife and set her on fire. My mother-in-law brought the kerosene tin and gave it in the hands of my husband. My husband poured kerosene on my person. My mother-in-law instigated him to set fire on my person. My husband ignited match stick and set me ablaze at about 10.00 a.m.

In Exhibit 60, she has narrated the incident as under.

My mother-in-law and father-in-law asked me and my husband to go out of the house. I was telling them that I should be sent at my parental house. My husband and my mother-in-law poured kerosene on my person from the oil tin and set me ablaze.

Having minutely examined the contents of both the dying declarations, we hardly see any discrepancy in both the dying declarations. The deceased has elaborated the incident by giving all minor details in Exh.38, while in dying declaration (Exh.60), she narrated the incident briefly. It is to be appreciated that the tension was prevailing in the family a day, previous to the incident. A dispute, it appears, was prevailing whether the deceased should leave her matrimonial house alone or in the company of her husband. Even though, the relatives where called on the previous day, there was no immediate settlement. Therefore, it continued on the next day. On the next day, in the morning, it has taken a serious turn and, therefore, the appellant No. 1, who till the time, was not so active, was made to take a lead in the matter. Therefore/in the first dying declaration, while narrating the incident. in detail, deceased has said that her mother-in-law instigated her husband as to why he is not doing anything. By this, appellant No. 3 instigated and provoked appellant No. 1 to get fid of the deceased that has been done by appellant No. 1 by pouring kerosene and igniting the lighted match stick on her person. She has not given such description, in the second dying declaration (Exh.60), when she stated that she was burnt to death by the accused. Merely because she has not given other details and particulars, as stated in dying declaration (Exh.38), that will not necessarily lead Us to believe that both the dying declarations are not consistent to each other. It may be appreciated that there was a time gap between two dying declarations. As per the evidence of Medical Officer, Dr. Choudhary deceased had 100% burns and was restless and her condition was fast deteriorating. Therefore, it is quite natural on her part riot to give elaborate version in the dying declaration, Exh.60. In any case, in our opinion, there are no material inconsistencies in both the dying declarations, which would make both the dying declarations unnatural and unbelievable. The learned trial Judge, in his well reasoned judgment, has accepted both the dying declarations as truthful and reliable. There is no reason for us to take a different view in the matter. Needless, to say that we are in total agreement with the reasoning and the conclusion reached by the learned trial Judge, as far as the conviction and sentence part is concerned. No other contentions are raised.

In the result, we see no substance in the appeal, the same is dismissed.