Bombay High Court
The State Of Maharashtra vs Madhukar Baliram Surwase on 22 December, 2014
Bench: S.S. Shinde
Criappeal110.96
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 110 OF 1996
The State of Maharashtra
..APPELLANT
-VERSUS-
1. Madhukar Baliram Survase
Age : 43 years, R/o Wadi Bamni,
Tq. & Dist. Osmanabad.
2. Subabai W/o Pandhari Kamble
Age : 46 years, R/o Wadi Bamni,
Tq. & Dist. Osmanabad.
..RESPONDENTS
...
APP for Appellant : Mr. S.A. Ambad
Advocate for Respondents : Mr. N.B. Ghute Patil h/f Mr.
B.S. Ghute Patil
...
CORAM : S.S. SHINDE &
N.W. SAMBRE, JJ.
RESERVED ON : December 18, 2014
PRONOUNCED ON : December 22, 2014
...
JUDGMENT (PER S.S. SHINDE,J):-
1. This appeal is filed by the State of
Maharashtra, aggrieved by judgment and order passed
by the 2nd Additional Sessions Judge, Osmanabad on
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7th December, 1995 in Sessions Case No. 97/1993,
thereby acquitting the Respondents for the offence
punishable under sections 498A and 302 r/w 34 of I.P.
Code and also acquitting the Respondent no.2 i.e.
accused no.2 for the offence punishable under section
452 of I.P. Code.
2.
igThe case of the prosecution, in brief, is as
under :-
(i) Indubai daughter of PW-1 Murlidhar Dhargude
r/o Mangrul was married with accused No.1 prior to 7 years
before her death. Indubai died on 12.05.1993. The house
of accused No.1 and 2 are adjacent to each other. They
were having illicit relations. Indubai was knowing about the
said fact. On said count, there use to be quarrel between
the spouse. Accused No.1 was asking Indubai to give
divorce as he was intending to perform second marriage.
Indubai was not ready for it. Indubai narrated this fact to
her father. Lastly, Indubai met with her father on
25.04.1993 along with accused No.1 at village Dhekari,
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where all of them went for marriage and there Indubai
complained to her father that accused No.1 is threatening to
kill her by putting on fire and he is asking her to sign
divorce deed. At that time, her father told her that, he will
come to their village after 5-6 days and will settle the
matter. On 29.04.1993, Indubai came to her home from the
field. She cooked food. Having worked for whole day in the
field, she was tired and was taking rest as such went to
sleep. At this time, accused No.2 entered in her house, took
bottle of kerosene, poured it on the body of Indubai and set
her on fire. Indubai got awaken and started hue and cry.
Accused No.1 and neighbours gathered there and they
extinguished the fire. She was taken to Civil Hospital,
Osmanabad immediately by rickshaw. In the hospital,
Dr.Janapurkar examined and admitted her. Doctor
informed this matter to the Police. On this report, Head
Constable Choure recorded statement of Indubai, after
consulting Doctor. In that dying declaration, she narrated
detail story of incident. This dying declaration was sent to
Police Station Bembli under whose jurisdiction village of
accused falls. On the basis of this dying declaration, Crime
No.29/1993 was registered, u/sec. 307 of I.P.C. against the
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accused. Its investigation was done by PSI Kondare.
During the investigation, he found articles No.1 to 8 at the
place of incident. He searched house of accused No.2 where
photographs of accused No.1 and 2 taken together, articles
Nos. 9 to 11 was found. These photographs were seized vide
panchanama. After the investigation was over, charge sheet
was submitted against accused No.1 and 2 u/sec. 498-A,
302 r/w. 34 and 452 of the I.P.C.
(ii) Lower Court by its order dated 13.08.1993
committed this matter to the Court of Sessions. After
appearance of accused before trial Court, charge was framed
against them at Exhibit 7. Charge against accused No.1
and 2 was put u/sec. 498-A and 302 read with 34 of the
I.P.C. and charge u/sec. 452 of IPC was also framed against
the accused No.2. Both of them pleaded not guilty. During
trial, prosecution examined in all 11 witnesses. Statements
of accused recorded u/sec. 313 of Cr.P.C. in which they
denied evidence of prosecution.
(iii) On committal, the trial Court framed
charges and after full fledged trial, the accused are
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acquitted. Hence this Appeal by the State of
Maharashtra against the order of acquittal.
3. The learned Additional Public Prosecutor
invited our attention to the Dying Declaration of
Indubai (now deceased) and submits that, it is
specifically stated in the Dying Declaration that,
accused Subabai Pandhari Kamble came to the house
of Indubai and poured kerosene from the kerosene
bottle available in her house and set her on fire. It is
submitted that, the said Dying Declaration is proved
through the Police Officer, who recorded the same and
also through the Medical officer, General Hospital,
Osmanabad. The learned Additional Public Prosecutor
also invited our attention to the evidence of other
witnesses, spot panchanama, postmortem report and
submits that, the appeal deserves to be allowed.
4. On the other hand, the learned counsel
appearing for the respondents submits that, so far
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accused no.1 is concerned, no any overt act is
attributed in the Dying Declaration. It is further
submitted that, though the overact is attributed to
accused no.2 - Subabai, whether Subabai entered in
the house of Indubai at the relevant time, is not stated
by any other prosecution witnesses except Indubai. It is
submitted that, it is not clear from the Dying
Declaration that, whether Indubai saw Subabai
entering in the house and pouring kerosene and setting
her on fire since she was in sleep. The learned counsel
further submits that, Dying Declaration alone cannot
form basis for conviction in absence of corroboration to
the version in the Dying Declaration. The learned
counsel placed reliance on the judgment of this Court
in the case of Ramesh S/o Rangrao Walsange and
others V/s The State of Maharashtra1 and submits
that, the prosecution has not proved beyond reasonable
doubt the Dying Declaration of Indubai, and therefore,
the benefit of doubt should be given to the accused. He
further placed reliance on the judgment of this Court in
1. 2012 ALL MR (Cri) 1861
Criappeal110.96
the case of Shakuntalabai wd/o. Khairuprasad Joshi
and anr. V/s The State of Maharashtra 2 and submits
that, the Dying Declaration itself cannot form basis for
conviction without corroboration. He further submits
that, the motive for commission of offence by the
accused no.2 has not been established by the
prosecution, and therefore, the accused are entitled for
benefit of doubt and the trial Court has rightly
acquitted them.
5. We have heard the learned Additional Public
Prosecutor for the State and the learned counsel
appearing for the original accused. With their able
assistance, we have perused the entire evidence so as
to find out whether the findings recorded by the trial
Court are in consonance with the evidence on record or
otherwise. It appears that, the Dying Declaration of
Indubai at Exhibit - 23 is the main piece of evidence
brought on record by the prosecution. So far actual
incident of pouring the kerosene and setting Indubai on
2. 2012 ALL MR (Cri) 1970
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fire is concerned, no specific role or overt act has been
attributed to the accused no.1 - Madhukar. It appears
that, the alleged incident had taken place on 29 th April,
1993 at about 9.30 p.m., as stated by Indubai in her
Dying Declaration. Upon careful reading of Dying
Declaration at Exhibit - 23, it appears that, Indubai
stated that, she was residing along with her mother-in-
law and husband separately from brother-in-law. On
29th April, 1993 after completing housework she went
to agricultural field for picking up remains of Hybrid
crops. Her husband had gone to Tuljapur for the
purpose of Bazaar. After completing the work in the
agricultural field at about 5.30 p.m., she returned to
the house. She cooked food for dinner. Husband
returned back from Tuljapur at about 7.30 p.m. He had
dinner and went outside. Thereafter, she decided to
take dinner after some time as she felt exhausted on
account of working for whole day as such, she slept in
the house. At about 9.30 p.m. Subabai Pandhari
Kamble residing in adjoining house of Indubai came to
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her house and poured kerosene on Indubai from
kerosene bottle, which was available there in the house
and set her on fire. Due to burns she got up and
started making hue and cry and at that time, she saw
Subabai W/o Pandhari Kamble running out of her
house. The relevant and most crucial version from the
Dying Declaration reads thus :-
"jk=hpk Lo;aikd dsyk ek>k uojk rqGtkiwjgwu cktkj d:u
ijr ?kjh jk=h lkMslkr oktkrs vkys- Lo;aikd >kY;kuarj ekydkus
tso.k dsys o ckgsj xsys- eh uarj FkksM;k osGkus tso.k dfju Eg.kwu
o fnolHkj dke dsY;kus Fkdok vkY;kus ?kfjp >ksiys- vankts um
lkMsum okt.;kps lqekjkl ekb;k [kkyr ek>s ?kjkps jkg.kkjh
'kstkfj.k lqekckbZ ia<jh dkacGs fg ek>s ?kfj ;sowu ?kjkr ek>s ?
kjkrhy dkpsps ckVyhrhy jkWdsy ek>s vaxkoj vksrwu dk<h vks<wu
isVfoys eyk iksGw ykxY;kus eh vkjMr vksjMr mBys R;kosGh eyk
lqHkkckbZ ia<jh dkacGs gs ekb;k ?kjkrwu iGwu tkr vlysys fnlrs- "
6. Upon careful reading of Dying Declaration at
Exhibit - 23, it appears that, Indubai has not alleged or
attributed anything against her husband so far as act
of pouring kerosene and setting her on fire is
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concerned. If the Dying Declaration of Indubai is
carefully perused, it is not clear that, whether Indubai
really saw Subabai Pandhari Kamble entering in her
house, lifting the kerosene bottle available there and
actually pouring kerosene and setting Indubai ablaze.
As already observed, Indubai herself stated that, since
she worked throughout the day, she was tired and
therefore, she slept in the house. Upon careful perusal
of the entire evidence placed on record by the
prosecution, there is no single witness, who stated that,
he/she saw Subabai Pandhari Kamble entering in the
house of Indubai or going out of the house. According
to Indubai, Subabai poured kerosene from the kerosene
bottle, which was available in the house and set her on
fire. However, there is no evidence on record showing
any finger prints of Subabai on said bottle or any
kerosene residues on the clothes of Subabai, so as to
corroborate the version of Indubai that Subabai
Pandhari Kamble entered in her house and poured
kerosene from the kerosene bottle and set her ablaze
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and she ran away from her house. It appears from the
version in Dying Declaration that, Indubai due to
tiredness was in sleep at the relevant time, and
therefore, same creates doubt as to whether Indubai
really saw Subabai Pandhari Kamble entering in the
house, pouring kerosene on the person of Indubai and
setting her ablaze. There is no corroboration to the
version of Indubai from any other evidence brought on
record by the prosecution.
7. The motive of alleged commission of offence
as has been stated by Indubai is that, accused no.1
Madhukar Baliram Survase had illicit relations with
Subabai Pandhari Kamble and he wanted to perform
second marriage. No satisfactory evidence has been
placed on record by the prosecution that, really there
were illicit relations between said Subabai and accused
no.1.
8. It is true that, relatives of Indubai stated
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that, accused no.1 - Madhukar Survase used to harass
and illtreat Indubai on account of illicit relations with
accused no.2, however, there is no convincing and
sufficient evidence brought on record to prove the said
illicit relations. It is true that, Investigating Officer
recovered three photographs from the house of accused
no.2, which were seized vide Article 9 to 11. Its
panchanama at Exhibit - 25 was drawn. The statement
of adjacent house owners were also recorded. The
prosecution did not examine father of Indubai on
illtreatment though he stated in his evidence that,
accused no.1 i.e. husband was asking her to give
divorce. However, upon careful perusal of the Dying
Declaration, no where it is stated by Indubai that,
accused no.1 was involved in pouring kerosene on
Indubai and setting her ablaze. There are no allegations
of harassment and/or illtreatment at the hands of
husband. PW-1 admitted in his evidence that, Indubai
did not tell him that, accused no.1 i.e. husband poured
kerosene on her person and set her on fire. If there was
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illtreatment or harassment by the accused no.1 to
Indubai, at least, cursory reference of such illtreatment
or harassment ought to have been stated by Indubai in
her Dying Declaration. It appears that, PW-6 was
examined by the prosecution to establish illicit
relationship between accused nos. 1 and 2. PW-6 was a
witness to spot panchanama at Exhibit - 21. In his
cross examination he stated that, accused no.1 and
Indubai were living happily, therefore, the trial Court
has rightly drawn inference that, the prosecution has
failed to establish that the accused no.1 was illtreating
Indubai.
9. It is admitted position that, though Indubai
survived for more than 12 days after the date of
incident, Investigating Officer has not taken any steps
to record her statement before Executive Magistrate.
The trial Court observed that, the Dying Declaration
was recorded at about 1.30 a.m. There were 60% burn
injuries and in that condition, Indubai gave two pages
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Dying Declaration is also difficult to believe, and
therefore, the trial Court observed that, it creates doubt
about truthfulness of Exhibit - 23. The trial Court also
observed that, from the evidence on record, it is not
clear whether the death of Indubai was homicidal,
accidental or suicidal. Upon careful perusal of the
entire evidence on record, we are of the opinion that,
the view taken by the trial Court is in consonance with
the evidence brought on record. It is not necessary for
us to elaborate on the evidence when we are in
agreement with the findings recorded by the trial Court.
Even if, it is assumed that, the Police Constable, who
recorded the Dying Declaration at Exhibit - 23 and also
the Medical Officer, who endorsed the same, were
examined by the prosecution, there is doubt as to
whether Indubai had really seen the accused no.2
entering in the house, pouring the kerosene from the
kerosene bottle and setting her ablaze, and therefore,
the view taken by the trial Court is a possible view.
There is no other evidence brought on record by the
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prosecution except the Dying Declaration that,
somebody saw Subabai entering inside the house of
Indubai and going out.
10. Therefore, taking overall view of the matter,
the view taken by the trial Court appears to be in
consonance with the evidence on record. No case is
made out for interference in the appeal. Hence appeal
stands dismissed.
Sd/- Sd/-
( N.W. SAMBRE, J. ) ( S.S. SHINDE, J. )
sga/-
