Bombay High Court
Criminal Appeal No. 68 Of 1998 vs : on 15 October, 2010
Bench: A. H. Joshi, A. R. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 68 OF 1998
APPELLANT: State of Maharashtra
through P. I. , Ramnagar Police Station,
Chandrapur.
-: Versus :-
RESPONDENT :
ig Krushna S/o Raghunath Madavi,
aged about 35 yrs., R/o Chek Nimbala,
At present resident of Payli (Bhatali),
Police Station- Ramnagar, Chandrapur,
District - Chandrapur.
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Smt. B. P. Malduhre, Additional Public Prosecutor for the appellant.
None present for the respondent.
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CORAM : A. H. JOSHI & A. R. JOSHI, JJ.
DATED : 15TH OCTOBER, 2010.
ORAL JUDGMENT (Per A. R. Joshi, J.)
1. Present criminal appeal is preferred by the State of Maharashtra against
the impugned judgment and order dated 12/11/1997 passed by the Sessions Judge,
Chandrapur in Sessions Case No. 34 of 1997.
2. by the impugned judgment and order, learned Sessions Judge, Chandrapur
was pleased to acquit present respondent then accused for the offence punishable under
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Section 302 of the Indian Penal Code, however, convicted the said accused for the
offence punishable under Section 498-A IPC and sentenced him to undergo rigorous
imprisonment for two years and fine of Rs. 1,000/-, in default, further rigorous
imprisonment for three months. Apparently present respondent/accused was in custody
since 30/11/1996 and as such set off was given to the accused by the Sessions Court.
3. Being aggrieved by the acquittal of respondent/accused for the offence
punishable under Section 302 IPC, the State preferred the appeal after obtaining leave
by this Court.
4. The order dated 07/3/1988 passed by this Court present appeal was
admitted and action under Section 390 of the Code of Criminal Procedure was directed.
It appears that present respondent/accused had not challenged his conviction for the
offence punishable under Section 498-A of the Indian Penal Code.
5. When present criminal appeal was taken for final hearing before the earlier
Bench, process was issued against the respondent/accused for his presence. Bailable
warrant was directed to be issued vide order dated 13/8/2010. Thereafter a report was
produced by the Additional Public Prosecutor mentioning that bailable warrant could
not be served on the respondent/accused as his whereabouts at Mumbai were not
available with the police. As the present position stand, respondent/accused is on bail
and not available for answering the present appeal. In this circumstance, it was decided
by us to prima facie go to record and proceedings and the reasonings given by the
learned Sessions Judge, Chandrapur while recording the acquittal of
respondent/accused for the offence punishable under Section 302 IPC, and then to
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ascertain whether the present matter is worth proceeding further for securing the
presence of the respondent/accused by more stringent process of non bailable warrant.
On this premise, the matter is taken up on 15/10/2010 for final hearing and was
accordingly heard.
6. Accused married with the victim about 12 years prior to her death which
occured on 05/2/1996. Out of wedlock there were four children born of the ages
ranging from 10-11 years up to 3-4 years. Allegedly, accused was ill-treating the victim-
his wife, very often under the influence of liquor. At one instance, he had assaulted his
father-in-law who was staying in the neighbourhood and criminal case was lodged
against the accused. In that matter, the offence was compounded between the parties
and accused assured his father-in-law and his wife not to indulge in such type of
harassment and quarrel. Though such assurance was given, it was in vain as accused
against indulged in such activities and continued ill treatment to his wife.
7. On the fateful day i.e. On 04/2/1996 in the night time there was incident
in which the victim was allegedly set on fire by accused by pouring kerosene on her
person. Allegedly, that time, all the four children were at home. Three neighbourers by
name - Rukhmabai, Sindhu and Kamlabai allegedly witnessed the said incident and also
heard the quarrel between the accused and the victim. The victim sustained more than
98% burn injuries and succumbed to such injuries on the next day i.e. On 05/2/1996 in
the morning.
8. The eyewitnesses did not not support the case of prosecution when the
matter was put to trial.
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9. The dying declaration was recorded by Police Constable in which victim
has alleged against her husband-accused, of pouring kerosene over her and setting her
on fire.
10. Substantive evidence of P. W. Nos. 2, 3 & 4 is of much importance. P. W.-2
Rukhamabai stated that according to her deceased Indira told that she would not
survive and she would not be taken to hospital. According to P. W.-2, deceased did not
state anything more and deceased did not mention anything as to how she was burnt.
However, P. W.-2 further stated that when Police Patil arrived, deceased told him that
she was set ablaze by her husband. P.W.-3 Sindhubai deposed as to deceased telling
her to the effect that whatever was to happen had happened and she was burnt. This
witness has changed her version in examination-in-chief and also in cross-examination
and as such was treated as untrustworthy witness by the learned Sessions Judge and
rightly so, in our opinion. P.W.-4 Kamlabai deposed as to deceased telling her "I have
suffered a lot and now I cannot suffer any more, therefore I have burnt". This evidence of
P.W.-4 is taken by the learned Sessions Judge as suggestive of deceased setting herself
on fire due to lot of suffering. The learned Sessions Court has therefore disbelieved the
evidence of alleged eye witnesses i.e. three ladies named above. In our opinion, it was
rightly so disbelieved considering the nature of evidence given by them before the Court
during the trial as they did not support the case of prosecution and even changing
version very often during the examination-in-chief and during the cross examination.
11. There is another piece of evidence as to oral dying declaration before
P.W.-8 Kisan, then Sarpanch of village. According to the prosecution, deceased
informed him that she was burnt by her husband. However, this witness did not
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support the case of prosecution and was declared hostile. During cross-examination
taken by learned A.P.P., he tried to answer that deceased had stated before police at the
General Hospital, Chandrapur that she was burnt by her husband. This evidence of
P.W.-8 was scanned by the learned Sessions Judge in juxta-position of the evidence of
P.W.-9 Ganpat, Head Constable and P.W.-10 Dr. Muthal. According to P.W.- 9 and
P.W.-10, Head Constable Ganpat recorded the dying declaration of the deceased after
ascertaining her condition from P.W.-10 Dr. Muthal. According to these witnesses,
nobody else was present at the time of recording of dying declaration. A reasoning is
given by the learned Sessions Judge by taking shelter of the evidence of P.W.-9 and
P.W.-10 to rule out the possibility of P.W.-8 Kisan, overhearing the talk between
deceased and the Police Constable.
12. The evidence of dying declaration (Exh.38-A) is also discussed by the
learned Sessions Judge, again in the light of the evidence of P.W.-14 P.S.I. Bhaurao. It
appears that after the deceased having more than 98% burn injuries was admitted in
the hospital, her father P.W.-1 Laxman went to Ramnagar Police Station and lodged his
report. Immediately offence was registered by P.W.-14 P.S.I. Bhaurao Farande and he
then attended the hospital, and gave memorandum to the Medical Officer whether the
patient was fit to make any statement. The Medical Officer certified at 3.50 a.m. That
patient was not fit to make any statement and his certificate is at Exh. 51. It further
appears that in spite of such situation, P.W.-14 P.S.I. Farande deputed Police Head
Constable (P.W.-13) to call the Executive Magistrate. However, presence of Executive
Magistrate could not be procured and at about 6.00 a.m. on the same day, injured
succumbed to the injuries and died. As such, according to the prosecution, there was an
attempt made by the investigating agency to record the statement of victim through the
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Executive Magistrate, but the patient was not fit as per the medical certificate.
According to the prosecution, this attempt was made in spite of earlier recorded
statement by Police Head Constable Ganpat Bhoyar (P.W.-9). The said statement (Exh.
38-A) was allegedly recorded at 1.50 a.m. And that time there was an endorsement of
the attending Dr. Muthal (P.W.-10) that patient was conscious and fit to give statement.
It appears that because of such evidence, learned Sessions Judge did not accept the case
of prosecution as to authenticity of the recorded dying declaration (Exh.38-A).
13.
Lastly, the reasoning given by the learned Sessions Judge, Chandrapur so
far as failure to examine the probable eye witnesses, is considered by us. On this
aspect it was observed by the learned Sessions Judge that out of four children of the
respondent and the deceased, at least two children, who were of the age of
understanding, could have been examined by the prosecution. It is observed by the
learned Sessions Judge that ages of said two children were probably ten years and
seven years or so, and as such, they could have been the best witnesses considering the
case of the prosecution that they were present during the incident of burning. It is a
factual position that even their statements were not recorded during the investigation
and as such there was no question of they being brought before the Court for leading
evidence. This aspect has been taken as a mitigating circumstance of the prosecution by
the learned Sessions Judge.
14. Considering the effect of substantive evidence as led before the learned
Sessions Judge, we are in agreement with the reasoning given by the said Court and as
such there is nothing to take a different view than that taken by the learned Sessions
Judge while acquitting the respondent/accused for the offence punishable under
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Section 302 of the Indian Penal Code.
15. In the result, there is no merit in the present appeal preferred by the State
and hence same is disposed of as dismissed.
JUDGE JUDGE
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