Bombay High Court
Sunil Bapurao Kadam And Others vs The State Of Maharashtra on 21 September, 2015
Bench: S.S. Shinde
111.14 Criappeal
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 111 OF 2014
1. Sunil S/o Bapurao Kadam
Age : 28 years, Occ : Agriculture,
2. Sandip Bapurao Kadam
Age ; 25 years, Occ : Student,
3. Bapurao Ganpatrao Kadam
4.
Age : 56 years, Occ : Agriculture
Shobhabai W/o Bapurao Kadam
Age : 50 years, Occ : Household,
All R/o Sirpur, Tq. Palam,
Dist. Parbhani.
5. Savita Santukrao Deshmukh
Age : 26 years, Occ : Nil,
R/o Chimangaon now at Parbhani.
..APPELLANTS
-VERSUS-
The State of Maharashtra
Through Police Station Officer,
Police Station, Palam,
Tq. Palam, Dist. Parbhani
..RESPONDENT
...
Advocate for Appellants : Mr. Rajendra Deshmukh
Advocate for Respondent/State : Mr. B.L. Dhas
...
CORAM : S.S. SHINDE &
A.I.S. CHEEMA, JJ.
RESERVED ON : August 13, 2015
PRONOUNCED ON : September 21st,2015
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JUDGMENT (PER S.S. SHINDE,J):-
This appeal is filed by the appellants-
original accused, who are convicted for the offence
punishable under Sections 498-A r/w 34, 302 r/w 34
of I.P. Code.
2. The brief facts of the prosecution case, are
as under :-
(i) Marriage of Kanopatra (now deceased) was
performed with accused no.1 on 11 th May, 2006. The
father of deceased Kanopatra was residing at village
Takali Kumbhakarna, Tq. Parbhani. He was serving in
Irrigation Department at Parbhani. After marriage, she
resided with accused persons at village Sirpur, Tq.
Palam. At the time of marriage, a dowry of
Rs.2,00,000/- was given. Initially, the accused persons
treated her properly. Thereafter, accused persons
subjected deceased Kanopatra to cruelty for their
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demand of Rs. 1,00,000/- for digging the well in their
field. Accused no.3 Bapurao, the father of accused no.1
was in government employment. Accused no.5 Savita
was residing with her husband at Parbhani. Deceased
Kanopatra had informed her parents and relatives
about physical and mental harassment from the
accused persons for their demand of Rs. 1,00,000/-.
Accordingly, father of deceased Kanopatra had given
understanding to the accused persons.
(ii) Govind Deshmukh, father of deceased
Kanopatra had brought her to village Takali
Kumbhakarna, for Diwali festival of the year 2008.
After about 10-15 days, Baban Deshmukh, the cousin
brother of Govind reached her to the house of accused
at Sirpur, Tq. Palam on 8th November, 2008. Accused
nos. 1 and 2 had beaten deceased Kanopatra for not
fulfilling the demand of Rs. 1,00,000/-. Accused no.5
Savita was also present at village Sirpur.
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(iii) On 9th November, 2008 at about 8.00 a.m.,
while deceased Kanopatra was washing her face, the
accused nos. 1 and 2 poured kerosene from two cans
on her person. Accused no.5 Savita caught hold her
and accused no.4 set her on fire by means of burning
stick. Deceased Kanopatra, while burning came out of
house. The neighbours and accused nos. 1 and 2
extinguished the fire. Initially, she was brought to sub-
district hospital Gangakhed. Thereafter, she was shifted
to Adhar hospital Nanded, for treatment.
(iv) Adhar hospital, Nanded, issued M.L.C.,
informing the admission of burn case to Shivaji Nagar
Police Station, Nanded. Upon which, PSI Phule, visited
the hospital and recorded statement of deceased
Kanopatra in presence of the doctor. A requisition was
also issued to the Special Judicial Magistrate Shri
Zungare, for recording statement of deceased
Kanopatra. He visited Adhar hospital, Nanded, and
recorded statement of deceased Kanopatra. PSI Phule,
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produced the statement of deceased Kanopatra at
Police Station Shivaji Nagar, Nanded. On the basis of
her statement, offence vide CR No. 0/2008 was
registered, for the offences punishable under Sections
498-A, 307, 323, 504 and 506 of I.P. Code. The MLC
issued by Adhar hospital, Nanded and the statement of
deceased Kanopatra recorded by PSI Phule, were sent
to police station, Palam, as alleged offences took place
within its jurisdiction. Accordingly, offence vide C.R.
No. 97/2008 for the above said alleged offences has
been registered at Police Station Palam on 9th
November, 2008 and API Kundankumar Waghmare
conducted further investigation.
(v) API Kundankumar Waghmare, visited the
house of accused at village Sirpur and conducted
panchanama of place of incident. He had collected two
plastic cans, burn pieces of saree and blouse, which
deceased Kanopatra was wearing. He also collected
earth mixed with kerosene and normal earth from the
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place of incident. He arrested accused nos. 3 and 4 on
10th November, 2008. He arrested the accused no.1 on
11th November, 2008 and accused nos. 2 and 5 on 14 th
December, 2008. He sent the muddemal articles to C.A.
Aurangabad, for chemical analysis.
(vi) While undergoing treatment, deceased
Kanopatra succumbed to the burn injuries on 29 th
November, 2008. Accordingly, Apollo Burns hospital
issued MLC to Vazirabad Police Station, Nanded, on
which the police effected inquest panchanama. Dead
body was sent for postmortem and after the
postmortem, dead body was handed over to the
relatives. Accordingly, the offence punishable under
section 307 of I.P. Code was converted to the offence
punishable under section 302 of I.P. Code. After
recording the statements of material witnesses and
collecting sufficient evidence against the accused
persons, charge sheet was filed in the Court of Judicial
Magistrate, First Class, Palam.
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(vii) The offence punishable under section 302 of
I.P. code is exclusively triable by the Court of Sessions,
therefore, by an order dated 19th September, 2009, the
Judicial Magistrate, First Class, Palam, committed the
case under section 209 of Code of Criminal Procedure
to the Court of Additional Sessions Judge, Gangakhed.
(viii) On appearance of the accused nos. 1 to 5
before the Additional Sessions Judge, Gangakhed, the
said Court framed charge against them for the offence
punishable under Sections 302, 498-A, 323, 504 and
506 read with 34 of I.P. Code. The accused pleaded not
guilty. Accordingly, their plea has been recorded.
(ix) The defence of the accused, which appears
from the manner in which the prosecution witnesses
has been cross examined and their statements under
section 313 of Cr.P.C., is denial and false implication.
As per the defence, at the time of incident the accused
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no.3 was serving at Jintur district Parhani. The
accused no.4 was residing with her husband accused
no.3. The accused no.2 was taking education at
Parbhani, and accused no.5 was residing at Parbhani,
with her husband and in laws. There was no demand
on the part of the accused persons. Deceased
Kanopatra sustained burn injuries, as her saree caught
fire on samovar ( a large vessel for heating water), while
heating the water. The accused no.1 with the help of
neighbours had admitted her at Adhar hospital,
Nanded. It is further defence of the accused that, the
relatives of deceased Kanopatra, in collusion with the
police officer and the Special Judicial Magistrate,
manipulated the dying declaration of deceased
Kanopatra.
3. The trial Court, after recording the evidence
and hearing the parties, convicted the appellants for
the offence punishable under section 498-A read with
34 of I.P. Code and sentenced to suffer rigorous
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imprisonment for 3 years and to pay fine of Rs.2,000/-
each, in default, to suffer rigorous imprisonment for
three months. The original accused nos. 1, 2, 4 and 5
are also convicted for the offence punishable under
section 302 read with 34 of I.P. Code and sentenced to
suffer imprisonment for life and to pay fine of
Rs.5000/- each, in default, to suffer rigorous
imprisonment for six months. The trial Court directed
that, out of fine amount, Rs. 20,000/- be paid to the
PW-1 Govind Deshmukh, as compensation under
Section 357(1) of Code of Criminal Procedure.
4. The learned counsel appearing for the
appellants submitted that, so far alleged demand of
Rs. 1,00,000/- is concerned, there are vague
allegations. There are no specific averments regarding
illtreatment on the part of any particular accused and
evidence is also lacking on that line. Accused nos. 2 to
5 are residing at different places. Accused no.2 was
residing at Parbhani at the relevant time for education
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purpose. Accused nos. 3 and 4 are residing at different
places, whereas accused no.5, who is married daughter
was residing at the relevant time in her matrimonial
house at Chimangaon. It is submitted that, there are
no definite findings recorded by the trial Court that,
there was harassment to Kanopatra (deceased) by the
accused. The trial Court has not properly considered
the dying declarations at Exhibit - 65 and Exhibit - 80.
There are material improvement in the subsequent
dying declaration, and therefore, benefit of doubt ought
to have been given to the appellants. There are
omissions in respect of visit of Kanopatra (deceased) at
the time of her first Diwali to the house of her parents.
The investigation is totally doubtful on the ground in
respect of admission or referral of patient from
government hospital Gangakhed to `Adhar' Hospital
Nanded. It is submitted that, in dying declaration
recorded by PW-11 PSI Phule Exhibit-64, Kanopatra
(deceased) has categorically stated that, her father-in-
law had been to Pandharpur for pilgrimage, whereas in
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dying declaration at Exhibit - 80 recorded by the
Special Judicial Magistrate PW-13, she improves
statement stating some overt act by father-in-law. It is
therefore, stated that, in absence of the father-in-law,
accusation of overt act is only with a view to rope total
family in the offence.
It is submitted that, no findings are
recorded on the aspect that, cruelty and harassment
was soon before the death of Kanopatra (deceased). It
is submitted that, the relatives of Kanopatra (deceased)
were present at the time of visit of PW-11 PSI Phule,
and therefore, there is every possibility of tutoring
Kanopatra (deceased) by her relatives. It is submitted
that, the trial Court in para 61 of the judgment
observed that, nothing is before the Court to conclude
when he returned to Shirpur from his pilgrimage.
Therefore, there is reasonable doubt about the presence
of accused no.3 on the day of incident. The learned
counsel further submits that, evidence of the
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prosecution witnesses suffers from improvements,
omissions and contradictions, and therefore, the same
is not believable. It is submitted that, when the benefit
of doubt is given to accused no.3, other accused ought
to have been given benefit of doubt.
In order to demonstrate that, there are
inconsistency in two dying declarations, the learned
counsel appearing for the appellants made following
submissions:-
a) 1st dying declaration recorded by PW-11, PI
Phule on 09.11.2008 at Exhibit-64 wherein the
recording of the said dying declaration has
commenced at 03.20 p.m.
b) That there is an endorsement on the left hand
side it reveals that there is even the stamp of Dr.
Sanjay Kadam on left side of the dying declaration
and the stamp of the said Doctor also comes on the
part and overwriting on the part of dying declaration,
to demonstrate the fact and submission of the
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appellant that the said endorsement is put after
completion of recording of dying declaration. Thus, it
becomes doubtful as to whether the deceased /
declarant was in a conscious state to give statement.
c) That there is no endorsement of the Doctor at
the end of the said dying declaration, as to whether
the patient / declarant / deceased was conscious
during the recording of the dying declaration.
d) That it is not mentioned as to at what time the
recording of the 1st dying declaration was completed
and concluded, which creates doubt as to whether it
was from the mouth of the declarant or not and raises
a shadow of doubt on the entire prosecution case.
e) That on the said dying declaration it is
mentioned that Station Diary No.40 at 15.30, part-5,
C.R.No.0/2008 under Section 498-A, 307, 323, 504,
506, 34 of IPC, and whereas the Station Diary Entry
No.40 is made at 15.30 on the basis of the 1st dying
declaration would reveal that the recording of the said
dying declaration was started at 03:20 p.m. That in
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the absence of timing of conclusion and the station
diary entry immediately within 10 mins itself creates
doubt on the entire prosecution case. Further, it has
come in the evidence of PW-11 that the said dying
declaration was written / recorded by writer, which
creates doubt about the recording of the said dying
declaration by PW-11 and benefit of doubt lies in
favour of the appellants.
f) That the said dying declaration bears the
signature of the declarant / deceased, when it reveals
from record, inquest panchanama and the impugned
order dated 10.02.2014 passed by the learned
Additional Sessions Judge, Gangakhed in S.T.No.
21/2009 that, at para no.36, the Judge observes that
the hands of the deceased were burnt and admittedly
the deceased / declarant had sustained 72% burn
injuries.
g) That the declarant states that father-in-law,
Appellant No.3, Mr. Bapurao Ganpatrao Kadam had
gone to Pandharpur.
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h) That material witness Sarubai, whose statement
under Section 161 of the Code of Criminal Procedure,
1973 was recorded and the said statement is reflected
in charge-sheet and who was the prime and star
witness of the prosecution was not examined by the
prosecution. That it is stated by deceased that, the
said Sarubai told her not to change her clothes of
kerosene till her father comes.
i) That in 1st dying declaration the declarant
states that, her husband, brother-in-law, villagers like
Sutar Raju, Bapurao Deshmukh, Nagu Bhau,
Motiram had all extinguished fire and brought her to
Hospital in an Autorikshaw.
j) That none of the above independent witnesses
have been examined by the prosecution when their
statements were recorded and finds place in charge-
sheet.
k) That in 1st dying declaration the declarant
states that by using a match-stick she was set on fire
and whereas, in 2nd dying declaration she states that,
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(Vatanatil Jalati Parat) farlace for heating hot water
was thrown on her person to set her on fire. That the
2nd dying declaration are recorded on the very same
day, in the presence of her parents and relatives.
Thus, in the above mentioned background, it is
material discrepancy and inconsistency in the 2nd
dying declaration in material particulars.
l)
ig That in 2nd dying declaration, father-in-law is
introduced whereas, in 1st dying declaration it is
mentioned that he was at Pandharpur being the
month of Shrawan.
m) That the declarant was taken to Civil Hospital,
Gangakhed and first aid was given. That the said
Doctor from Civil Hospital, Gangakhed is not
examined by the prosecution and further, no evidence
about medical record / history pertaining to the
treatment advanced at Civil Hospital, Gangakhed
brought on record by the prosecution.
n) Further, she states that whatever transpired
pertaining alleged conflict and confrontation on 8th
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November, 2008 was listened by neighbors. But, not
even a single neighbor examined by the prosecution,
who would had been independent witness.
The learned counsel appearing for the
appellants, in support of his contention that, when
there are inconsistency in the dying declarations, then
the benefit of doubt should be given to the accused,
pressed into service the following expositions of the
Bombay High Court and also the Supreme Court in the
case of State of Maharashtra Vs. Uttam Karbhari Dhage
& another1, Sunil Kashinath Raimale Vs. State of
Maharashtra2, Abdul Riyaz Abdul Bashir Vs. State of
Maharashtra3, Burakhbee Vs. State of Maharashtra 4,
Thurukanni Pompiah & anr. Vs. State of Mysore 5, Dada
Machindra Chaudhar & Ors. Vs. State of Maharashtra 6,
Shivkumar Maruti Umardand Vs. State of Maharashtra 7,
1 1997 Cri.L.J.2513
2 2006 Cri.L.J.589
3 2012 Cri.L.J.3277
4 2006 Cri.L.J.3128
5 1965 (2) Cri.L.J. 31 (Vol.71, C.N.6)
6 1999 Bom.C.R. (Cri.) 601
7 2009 Cri.L.J. 2549
111.14 Criappeal
Shakuntalabai Khairuprasad Joshi and Anr. Vs. State of
Maharashtra8, Shaikh Bakshu & Ors. Vs. State of
Maharashtra9, Mohan Lal & Ors. Vs. State of Haryana 10,
Dandu Lakshmi Reddy Vs. State of A.P. 11, The State of
Maharashtra Vs. Raghunath Ramchandra Sable in
Criminal Appeal No.154 of 1996 decided on 29 th June,
2015, Anusaya Atmaram Kasbe Vs. The State of
Maharashtra in Criminal Appeal No.1536 of 2011
decided on 13th October, 2014, Dhanraj Jairam Patil
Vs. The State of Maharashtra in Criminal Appeal
No.589 of 2009 decided on 23rd February, 2011,
Tukaram Dashrath Padhen & Ors. Vs. State of
Maharashtra12, Vilas Vikramsingh Deshmukh & Ors.
Vs. The State of Maharashtra13 and Kushal Rao Vs.
State of Bombay14. Therefore, the learned counsel
appearing for the appellants submits that, the appeal
may be allowed.
8 2011 Cri.L.J. 1819
9 2007 AIR SCW 4120
10 AIR 2007 SC (Supp.) 1139
11 AIR 1999 SC 3255
12 2012 All MR (Cri.) 2754
13 2013 All MR (Cri.) 3145
14 AIR 1958 SC 22 (1)
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5. On the other hand, the learned Additional
Public Prosecutor appearing for the Respondent/State
invited our attention to the contents of the dying
declaration at Exhibit - 65 and Exhibit -80 and
submits that, both dying declarations are consistent
with each other and there are no material
contradictions, and therefore, the trial Court has rightly
believed the dying declarations and convicted the
appellants. It is further submitted that, the evidence of
PW-1 and PW-2 and other relatives of the deceased
unequivocally indicates about the illegal demand and
alleged illtreatment and harassment at the hands of the
accused, and therefore, the accused are rightly
convicted by the trial Court under Sections 498-A and
302 r/w 34 of the I.P. Code. It is submitted that, apart
from two dying declarations, there is oral dying
declaration given by Kanopatra (deceased) with PW-1
and PW-2. Therefore, he submits that, the appeal may
be dismissed.
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6. We have heard the learned counsel
appearing for the appellants and the learned Additional
Public Prosecutor appearing for the Respondent/State
at length. With their able assistance, we have perused
the entire notes of evidence as to re-appreciate the
evidence.
7.
The prosecution examined father of
deceased as PW-1. In his deposition before the Court,
he stated that, the marriage of Kanopatra (deceased)
was performed with accused no.1 Sunil on 11 th May,
2006 at village Takali Kumbhakarna. Rs. 2,00,000/-
was given as dowry. After marriage, his daughter went
to reside at village Shirpur, Tq. Palam along with
husband and his family members. For period of six
months, she was treated well. He further stated that,
thereafter accused started harassing his daughter.
They used to say deceased that, at the time of marriage,
pendol was not properly erected, her father is beggar
and dowry was paid less and deceived them and on
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that count they used to illtreat her. Husband of
deceased used to beat her at the instance of other
accused. After first Diwali festival, she was brought to
their house and at that time, she told PW-1 and his
family members about the illtreatment and harassment
by the appellants. After convincing her, they sent her
back to Shirpur and thereafter all the accused said
whatever had happened should be forgotten and PW-1
should give Rs.1,00,000/- for digging well in their field.
PW-1 went to Shirpur after one month and he said
accused that, he performed marriage of his daughter by
taking loan and he was not having money and
thereafter he came back. Thereafter, he brought his
daughter to Takli Kumbhakarna for her delivery. She
begotten a daughter. Kanopatra (deceased) told that,
accused used to beat and illtreat her so she
apprehends. When, Kanopatra (deceased) was reached
to her in-laws house, her brother-in-law accused
Sandeep bet her by throwing Radio. Accused Sandeep
abused and bet her saying "Tumchi Khandan Awara
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Aahe, Tumhi Halkat Lok Aahet, Tumhi Pratistith Lok
Nahi.". Mother-in-law and sister-in-law were used to
insult deceased and at their instance, husband of
deceased used to beat her. He used to visit house of
deceased after intervals of one month, therefore, he
came to know about illtreatment and harassment by
the appellants to the deceased. He brought his
daughter for Diwali of the year 2007. She stated that,
her husband used to beat her and used to give threat to
kill her, and therefore, she told him not to sent her
back to matrimonial house. However, after convincing
her they sent her to matrimonial house. It is also stated
that, in the year 2008, he invited father-in-law,
brother-in-law and husband of her daughter for
Kandori. Husband and father-in-law of accused Savita
had also come for Kandori. At that time, accused no.1
asked him about money and he told that, he would pay
Rs. 50,000/- after selling cotton in this year and in
next year he would pay remaining amount of
Rs. 50,000/- and thereafter, the appellants left the
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house of PW-1. Her daughter was brought for festival of
Diwali in the year 2008 at Takli Kumbhakarna. After 10
to 15 days, they sent her back with Baban Deshmukh,
who is cousin brother of Kanopatra. In the night,
accused no.1 bet deceased. On 09.11.2008, PW-1
received mobile call from Pralhad Kishanrao Deshmukh
that, his daughter is burnt and asked to come to Takli
Kumbhakarna. They went to Takli Kumbharkna, along
with nephew Ashok Deshmkh and his other relatives.
Thereafter, they went to Gangakhed and there it was
informed that, Kanopatra (deceased) is admitted in
Adhar Hospital at Nanded. They reached at Adhar
Hospital, Nanded but Police did not allow them to enter
in the hospital. After about half hours, they were called
in a room where her daughter was admitted. They saw
her both hands, legs, back were burned. After about
half hour, her daughter told that, her husband had
beaten her in night. In the morning when she awoke,
her husband and brother-in-law poured kerosene from
two Cans on her person, sister-in-law caught hold her
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hands and mother-in-law threw a burning match-stick.
At that time, father-in-law had gone to Pandharpur.
She stated that, there was attempt to kill her.
8. PW-1 was cross-examined at length by the
Advocate for the accused. In his cross-examination, he
admitted that, when he made enquiry before marriage,
at the relevant time father-in-law of the deceased was
serving at Zilla Parishad, Parbhani and thereafter he
served at Jintur. At that time, the accused were having
18 acres of land. There was one well and work of other
well was going on. For two times, he visited their land.
One land was shown to him. He denied that, he was
having knowledge that, there were two wells in the field
of accused. He further stated that, father-in-law of
deceased is pious person (Malkari). He admitted that,
marriage of accused no.5 Savita is performed prior to
marriage of his daughter. Savita resides at Parbhani.
Her husband Santuk is originally resident of
Chimangaon, Tq. Sailu. Father of Santuk Deshmukh is
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serving at P.D.C.C. Bank at Parbhani. Xerox center of
husband of Savita is near his office and her residence is
behind his office. Since last 7 to 8 years, there is xerox
center near his office. He know husband of accused
No.5 - Savita since marriage of his daughter. He visited
their house once along with his wife and daughter.
After birth of Vaishnavi daughter of Kanopatra, he had
been to house of accused No.5. He did not know for
what purpose, deceased had come to house of accused
no.5. He further stated that, since 11 th May, 2006 to 8th
November, 2010, he did not lodge any complaint
against the accused. He admitted that, within half and
hour, it is possible to reach to Nanded from Basmath
and his brothers and accused reached Nanded at about
10 to 10.30 a.m. It appears that, suggestion was given
to PW-1 that, when they all reached to Nanded, his
daughter told that, her Sari caught fire in the morning
when she was alighting furnace for hot water. He
further stated that, accused no.1 had deposited
Rs.15,000/- in the private hospital soon she was
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admitted. Since the time of incident till 19 th November,
2008, he did not lodge any complaint either to Palam or
Nanded Police Station. He further stated that, accused
no.5 was residing with her husband at Parbhani.
However, he denied suggestion that, on the day of
incident, she was at Parbhani. He further stated that,
since 9th November, 2008 upto 29th November, 2008,
Kanopatra was alive. During that period, he did not go
to the house of the accused and did not ascertain the
place of incident and when and where incident
occurred. Suggestion was given to him that, since it
was accidental death, therefore, he did not ascertain
about the incident, is denied by him. On 19 th
November, 2008, his statement was recorded by the
Police from Palam Police Station. He denied that, he
stated before the Police that, when Kanopatra was
brought to the house, she disclosed about illtreatment
and after convincing her, she was sent back to the
house of the accused. He further stated that, he did not
tell the Police that, after every month, he used to visit
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house of accused and deceased used to tell about
illtreatment. He did not tell that, deceased disclosed
that her husband used to beat her and give threats to
kill Kanopatra so she apprehends danger to her life and
told not to send her back to in-laws house. He denied
the suggestion that, Kanopatra never told him about
the incident of illtreatment and harassment.
9. Ashok Jagnnathrao Deshmukh was
examined as PW-2. In his deposition, he stated that,
Kanopatra was her cousin sister. So far allegations of
harassment and illtreatment are concerned, in his
examination-in-chief, he has made similar allegations
like PW-1. Sum and substance of his allegations is
that, all accused used to illtreat and subject Kanopatra
to mental and physical harassment. They used to
illtreat her for the reasons that, no proper arrangement
was done at the time of marriage. Dowry was paid less.
They used to say that, relatives of deceased were not of
standard status as like accused. Accused used to tell
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deceased that, her relatives of Takli are beggars. There
was demand of Rs. 1 Lakh. He has also stated that,
Kanopatra told them about the incident happened on
09.11.2011.
10. During his cross-examination, he admitted
that, Bapurao Kadam, father of accused no.1 was
serving at Jintur at the time of incident and he was
serving at Parbhani at the time of marriage. He did not
know whether accused Sandip was taking education of
D.Ed. course in the year 2008. Accused no.5 Savita
resides at Parbhani. He further stated that, he did not
know the place of residence of her in-laws.
11. Meera Govindrao Deshmukh, mother of
Kanopatra was examined as PW-3. In her examination-
in-chief, more or less similar allegations of illtreatment
and harassment are stated by her like PW-1 and PW-2.
She also stated that, Kanopatra narrated the incident
dated 09.11.2011. However, during her cross-
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examination, she admitted that, none of them lodged
the police complaint for harassment and illtreatment
earlier. She further admitted that, their statement was
recorded after 10 days by the Police. So far Savita is
concerned, she stated that, Savita had son of about 4
years. She used to reside at Parbhani.
12.
One Baban Ganeshrao Deshmukh was
examined as PW-4. In his examination-in-chief, he
stated that, deceased Kanopatra was his nice. He has
also stated that, Kanopatra used to tell about
illtreatment and harassment at the hands of the
accused, as stated by PW-1 to PW-3. One day before
the day of incident, he went along with Kanopatra to
her in-laws house. He went their on 8th date and after
leaving Kanopatra to matrimonial house, he left the
said house on the same day and on the next day
morning at 9 a.m., he came to know about the alleged
incident of burning Kanopatra. He also admits in his
cross-examination that, earlier no complaint was
111.14 Criappeal
lodged about illtreatment or harassment. He stated
that, he did not tell before the Police that, deceased told
to her father that her in laws were demanding money
and her father told them that, he was not having money
as he had performed marriage of her daughter. He did
not tell to police that, on next day at 9.00 a.m. in
morning, he came to know that, Kanopatra was set on
fire and that, her parents had been to Basmath. It
appears that, the portion mark `A' from the police
statement was read over to him and he stated that, he
cannot assign any reason as to why the police have
written the said portion in his police statement.
13. The evidence of PW-1 to PW-4 is to the effect
that, Kanopatra whenever visited the house of her
parents or when somebody from her parental house
went to her house, told about illtreatment and
harassment caused to her at the hands of accused
persons. However, all the witnesses have stated that,
prior to date of incident, no single complaint is filed
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about the illtreatment or harassment to Kanopatra.
PW-1 to PW-4 all have stated that, Savita i.e. sister of
husband Sunil Kadam is already married and residing
at Parbhani and have four years child. It appears that,
the Police have recorded their statements almost after
10 days from the date of incident. It also appears from
the evidence of PW-1 that, he never made attempt to
lodge the complaint at the earlier stage though the
alleged incident had taken place on 09.11.2008. It is
only when recording of the statements by the police,
they have disclosed about the illtreatment, harassment
and manner in which the incident had taken place as
narrated by Kanopatra. It has also come on record
through the evidence of PW-1 that, family of the
accused persons possesses 18 acres of land and
already there is one well situated in the agricultural
land. PW-1 has categorically stated that, his statement
was recorded by police at the hospital at Nanded on
19.11.2008. Police of Palam recorded his statement on
the said date. The prosecution has not placed on record
111.14 Criappeal
any reasons for not recording the statement of PW-1 to
PW-4 and other relatives till 19.11.2008 though alleged
incident had taken place on 09.11.2008.
14. There are two officially recorded written
dying declarations of Kanopatra. The statement at
Exhibit-64 is recorded on 09.11.2008 at about 11.15
p.m. Upon careful perusal of the said statement, it
appears that, there is endorsement of medical officer
that, patient is in a conscious state to give the
statement. The said statement was recorded by P.S.I.
Police Station, Shivajinagar, Nanded. It appears that,
crime was registered on the basis of the said statement.
It further appears that, so far alleged incident is
concerned, there is Station Diary entry at Sr. No.40 at
15.30 hours and offence was registered under Sections
498A, 307, 323, 504, 506, 34 of the I.P. Code against
the accused. It further appears that, subsequently
when Kanopatra was died, Section 302 of I.P. Code was
added by the Investigating Officer.
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15. Upon careful perusal of the dying
declaration, it appears that, the marriage of Kanopatra
was performed with Sunil Bapurao Kadam accused
no.1 on 11th May, 2006. According to her version, the
amount of Rs. 2 Lakh was given as a dowry as per
customs. She begotten one daughter Vaishnavi from
their wedlock, whose age was one year at the relevant
time. She was carrying pregnancy of three months on
the date of incident. Her father Govindrao
Vishwanathrao Deshmukh was serving in Irrigation
Department at Parbhani. She alleged that, since the
date of marriage, accused persons started demanding
Rs. 1 Lakh so as to dig well in their land and on that
count they used to mentally and physically illtreat and
harass her. Whenever, she used to visit house of her
parents, she used to tell them about the illtreatment
and harassment at the hands of the accused persons.
She has specifically stated that, before Dipawali,
husband Sunil and brother-in-law Sandeep abused her
and assaulted her. Thereafter, she went to the house of
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her parents at Takali Kumbhakarna.
16. She further stated that, on 08.11.2008, her
cousin uncle Babanrao Ganeshrao Deshmukh
accompanied her to come to Shirpur. He left her in her
matrimonial house at about 6 p.m. At the relevant time,
mother-in-law Shobha, sister-in-law Savita were
present in the house. Father-in-law Bapurao went to
Pandharpur for Darshan. Husband Sunil was not
present at that time and he had gone to agricultural
field. Brother-in-law Sandip was in the village. In the
evening at about 7 p.m., husband Sunil came in the
house and asked Kanopatra that, why her father has
not come to accompany with her to matrimonial house.
How the maternal uncle came and whether, she has
brought Rs. 1 Lakh for digging well. Sunil started
assaulting her. At about 10 p.m., brother-in-law
Sandeep came to the house and started abusing her.
He asked her to vacate the house along with child.
Neighbours were knowing about the quarrel which has
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been taken place.
17. So far actual incident is concerned, she
stated that, on 09.11.2008, Sunday, at about 7 a.m.,
she woke up from the sleep, and came to ground floor
from the first floor of the house. Nobody from the
matrimonial side was talking to her. After some time,
husband and brother-in-law started abusing her in
filthy language. Husband stated that, he will kill her by
pouring kerosene and brother-in-law was instigating
her husband to pour kerosene on her. Husband as well
as brother-in-law poured kerosene from two different
white Cans on her person. At that time, wife of Ganya,
Sarubai came there. Husband and brother-in-law went
outside. Sarubai mentioned that, sari of Kanopatra was
smelling kerosene. Then Kanopatra told her that, said
kerosene is poured by the husband and brother-in-law.
Sarubai said, do not change her sari till her father
arrives. Again husband and brother-in-law came in
house and asked the sister-in-law Savita and mother-
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in-law Shobha to set her ablaze by enlightening match-
stick. Sister-in-law Savita caught hold her and mother-
in-law Shobha set her on fire by enlightening the
match-stick. She started crying and ran away. At that
time, husband, brother-in-law and other persons from
village namely Raju, Bapurao Deshmukh, Nagubhau
and Motiram came and tried to extinguish the fire. In
that, her entire back portion, both hands, portion below
waist have been burnt and she was admitted initially in
Government hospital, Gangakhed and thereafter she
was taken to Adhar hospital, Nanded for further
treatment. She was in Burn Ward B-1 wherein she was
being treated. The said incident had happened at 8
a.m. in the matrimonial house and her husband,
brother-in-law, mother-in-law and sister-in-law have
abused her by saying that, as to why Rs. 1 Lakh have
not been brought from the parents for digging well, and
as to why father of Kanopatra did not come for
dropping her. Husband, brother-in-law have poured
kerosene on her person, sister-in-law caught hold her,
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mother-in-law set her on fire by enlightening
matchstick and tried to kill her. The official translation
of Dying declaration at Exhibit - 64 dated 09.11.2008
is as under :-
EXH.64 Adhar Hospital Nanded
S.T.21/09 Date : 09-11-2008.
Art."B"
ig STATEMENT
I, Sow.Kanhopatra W/o Sunilrao Kadam, age:24
years, Occup. household, r/o Shirpur, Taluka Palam, Police
Station Palam, Dist.Parbhani on asking personally give this
statement in writing that I am resident of aforesaid place. My
marriage has been solemnized with Sunil Bapurao Kadam at
my matrimonial home at village Takli Kumbhkarn on dated
11-05-2006 by giving rupees two lakh as dowry according to
the custom. I have a daughter namely Vaishnavi who is one
year old. Presently I am conceiving three months' pregnancy.
My father Govindrao Vishwanathrao Deshmukh is serving in
Irrigation Department at Parbhani.
Since my marriage, my in-laws i.e. (1) Bapurao
Ganpatrao Kadam - father-in-law, (2) Shobhabai W/o
Bapurao Kadam - mother-in-law (3) Sunil Bapurao Kadam -
husband, (4) Sandeep Bapurao Kadam - brother-in-law, (5)
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Savita W/o Santukrao sister-in-law have started torturing
mentally and physically by saying to bring Rs. one lac from
my parents for digging a well in their field. Whenever I use to
come to my maternal home, I use to say it to my parents. On
the eve of last Diwali festival my husband Sunil and brother-
in-law Sandeep had abused and assaulted me for the above
reason. When Diwali festival about to 8 days away my father
Govindrao Vishwanathrao Deshmukh came to my matrimonial
Kumbhkarn.
home at Shirpur and he took me to my maternal home at Takli
And my uncle named Babanrao Ganeshrao
Deshmukh has left me yesterday on 08-11-2008 at Shirpur at
my matrimonial home at 06.00 p.m. approximately and went
away. At that time my mother-in-law Shobha and my sister-in-
law Savita were present. Father-in-law - Bapurao had gone
to Pandharpur for darshana. Husband Sunil had gone to field
and brother-in-law Sandeep was in village. At about 7.00 p.m.
husband Sunil came to home and told me that my father ought
to have come to leave you here. As to how your uncle came ?
By asking "Did you bring one lakh rupees for digging a well in
the field and started abusing and assaulting. "At about 10.00
p.m. brother-in-law Sandeep came and he too abused and told
me not to sleep in the house and told to go out. Therefore, I,
taking my little baby went on the first floor of the house but I
could not get sleep. However, the incident taken place at
night and the assault received by me came into the knowledge
of our neighbors.
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Today on Sunday dated 09-11-2008 I woke up at 7.00
a.m., step down from the first floor, nobody from my in-laws
were talking with me. After sometime, my husband Sunil and
brother-in-law came there and started abusing. Husband told
me that I would be burnt alive by pouring kerosene and I
would be killed. Brother-in-law was also saying him to pour
kerosene on my person. They both took kerosene from the
white plastic can and poured it on my person.
meanwhile wife of Ganya - Sarubai came there, then husband
In the
and brother-in-law went away. She asked me saying that there
is a smell of kerosene coming from my saree. I told her that it
was poured by my husband and brother-in-law. She told me
not to change my saree till my father come and thereafter she
went away. Thereafter again husband and brother-in-law
came in the house and they asked Savita - sister-in-law and
Shobha mother-in-law to set the fire stick on me. Thereupon
sister-in-law Savita caught me and mother-in-law Shobha set
me on fire. I was crying and running. At that time, husband,
brother-in-law and persons of village viz. carpenter Raju,
Bapurao Deshmukh, Nagubhau, Motiram came there and
tried to extinguish the fire. Wherein my entire back, both
hands and complete portion below my waist have been burnt.
They took me initially to the Govt. Hospital, Gargakhed and
thereafter for further treatment admitted me at Adhar Hospital
which is located in the Shivaji Nagar area at Nanded. My
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treatment is going on there in the Burn Ward B/1. Said
incident has taken place approximately at 08-00 a.m. in the
house at Shirpur.
Therefore today on dated 09-11-2008 at about 08-
00 a.m. in the house at Shirpur my husband Sunil Bapurao
Kadam, (2) brother-in-law Sandeep Bapurao Kadam, (3)
mother-in-law Shobhabai W/o Bapurao Kadam, (4) sister-in-
law Savita W/o Santukrao all these persons have abused by
saying that as to why rupees one lakh for digging a well have
not brought from your parents, and as to why your father did
not come with you for dropping me. Husband Sunil Bapurao
Kadam, brother-in-law Sandeep Bapurao Kadam both have
poured kerosene on my person, sister-in-law Savita W/o
Santukrao caught me, mother-in-law Shobhabai W/o Bapurao
Kadam burnt fire stick at me and set me on fire and tried to
kill me alive.
My aforesaid statement is written as per my
narration, read over to me which is true and correct
Before me. Sd/-
Sd/- Kanhopatra
Police Sub Inspector,
Police Station, Shivaji Nagar,
Nanded.
Date : 09-11-2008
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Police Station Entry No.40, time : 1530 recorded.
Part 5, C.R. No.0/08 U/Sec. 498-A, 307, 323, 504, 506, 34 IPC
have been registered and since the incident took place in the
jurisdiction of Police Station Palam, it was referred to that
Police Station.
Sd/-
( B.J.Phule )
Police Sub Inspector,
Police Station Shivaji Nagar,Nanded.
18. The second Dying declaration was recorded
on 09.11.2008 by the Special Judicial Magistrate,
Nanded. In this dying declaration, role is assigned even
to the father-in-law. The specific allegations have been
made against him. However, in earlier dying declaration
at Exhibit-64, she stated that, father-in-law had gone
to Pandharpur for Darshan.
So far incident dated 08.11.2008 is
concerned, when Kanopatra reached to matrimonial
house on said date, she stated that, her uncle went to
their farm to meet her husband and told him that, he
has brought Kanopatra, and went away. It is further
111.14 Criappeal
stated that, in the evening, when her husband
returned, he started beating her inhumanly saying why
she had returned and that, she should go away. He
held her hair and started hitting her head on the wall.
When she replied that, child is having fever, husband
said that, he is nothing to do with child. He does not
care if the child dies. She further stated that, after
some time, her father-in-law, mother-in-law, brother-
in-law and sister-in-law returned home. Her father-in-
law Bapurao said to her husband that, as to why he
take her inside the home and other accused started
saying the same thing to her husband. That time,
father-in-law, brother-in-law, mother-in-law and sister-
in-law said that, they will do away with her and will
come out of jail by bribing. By saying this, they started
beating her and throughout night her father-in-law,
mother-in-law and sister-in-law were whispering and
troubling her. This is what Kanopatra has stated about
the incident of ill-treatment and harassment to her on
08.11.2008 in dying declaration recorded at Exhibit-80.
111.14 Criappeal
However, when the dying declaration at Exhibit-64 was
recorded, she attributed role to only husband and
brother-in-law. It is stated that, the husband asked her
why her father was not accompanied with her to leave
her to matrimonial home and asked her to leave the
house. He asked her, whether she has brought one
lakh rupees, for digging a well in the field, and started
abusing and assaulting. Thereafter, brother-in-law
came at 10 p.m. and abused her. Therefore, even about
the allegations, which relates to alleged incident dated
08.11.2008 during the evening/night is concerned,
there is substantial variance in her version/in two
dying declarations.
19. So far actual incident on 09.11.2008 is
concerned, in dying declaration recorded at Exhibit-64,
she has not attributed the role to father-in-law and she
stated that, on that day, father-in-law went to
Pandharpur for Dharshan. As alleged in the said dying
declaration, the husband said that, she will be burnt
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by pouring kerosene and husband and brother-in-law
poured kerosene on her person from two separate white
plastic Cans and meanwhile, one Sarubai came there
and then Kanopatra had conversation with her, and
then Sarubai left and thereafter again husband and
brother-in-law came in the house and asked Savita -
sister-in-law and Shobha mother-in-law to set her on
fire. Thereafter, sister-in-law Savita caught hold her
and mother-in-law Shobha set her on fire. However, in
dying declaration at Exhibit-80, she stated that, she
got up on 09.11.2008 in the morning and sat down
with child. No family member was talking to her. She
stated that, her father-in-law asked husband and
brother-in-law to caught hold her and get her inside.
Father-in-law held her hand, brother-in-law and
husband poured kerosene on her person from two
plastic cans and out of fear of people suspecting father-
in-law, husband and brother-in-law went outside the
house. She started going outside the house to save
herself, but at that time, her sister-in-law caught her
111.14 Criappeal
tightly and mother-in-law took out a burning stick from
the kiln and put it on her. Her whole body was on fire.
Then she went outside the house. Thereafter, people
rushed to the house and tried to extinguish the fire on
her body. Thereafter, husband, brother-in-law and the
neighbours took her to Gangakhed Government
Hospital by a goods tempo/auto and admitted there.
Thereafter she was shifted to hospital at Nanded for
treatment. The official translation of dying declaration
at Exhibit-80 dated 09.11.2008 is as under:-
Exh.80
Dying declaration of Sou.Kanhopatra W/o Sunil Kadam,
age:24 years, R/o Shirpur, Taluka Gangakhed, District Parbhani
admitted in Aadhar Hospital, Nanded referred by H.C. Madrewar, B/N.
538, P.S.Shivaji Nagar, Nanded in M.L.C. No.22/SSK/08 dated 09-11-
2008.
===========================================
Dying Declaration. Identification is given by Dr.Sanjay Kadam
that patient is ready to deliver Dying
Declaration.
D.D. started on 09-11-2008 @ 16=30 p.m.
Patient is conscious and
mentally fit to give
statement.
Sd/-
09-11-08 at 4.30 p.m.
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Q.1 : Do you know that I am a Magistrate ?
Ans : Yes.
Q.2 : What is your name ? Age ? Where are you from ?
Ans : Sou.Kanhopatra Sunil Kadam, age:24 resident of Shirpur,
Tal.Gangakhed, Dist.Parbhani.
Q.3 : When and where did the incident took place ?
Ans : The incident taken place on 09-11-2008 approximately in
the morning between 8.00 to 8.30 at Shirpur at my
residence.
Q.4 : How did the incident take place ? You may tell whatever
you want to say regarding the incident ?
Ans : From the time of my marriage I was
harassed by my in-laws. I had always been beaten by my
husband and his brother. At the time of last Diwali my
father and my maternal uncle came to take me to my
maternal home. My father-in-law, my husband and my
brother-in-law quarrelled with my father. I told my father
that I could understand that my husband could beat me or
abuse me sometimes but as to why my brother-in-law beats
me and abuses me. That time my father-in-law
replied that they have one time returned from jail. We are
not afraid of going to jail again. What will you do if, we
get your daughter killed from a contract killer. My father
took retreat, requested them and brought me and my child
to my maternal home. After Diwali, I told my father that I
am afraid of my in-laws. There is a threat to my life. That
111.14 Criappeal
time consoling me and asking me not to worry and telling
that they will not do anything I was sent with my uncle,
Babanrao to my home at Shirpur yesterday on date 08-11-
2008. My uncle went to our farm, met my husband, told
him that he has brought Kanhopatra and went away. In
the evening when my husband returned, he started beating
me inhumanly saying why I have returned and that I
should go away. He held my hair and started beating
against the wall. He started saying that I should go away
from the house. I said I will not go I told him that my child
is having fever. My husband said what do I have to do with
it. I do not care if the child dies go outside the
house and do not come in. I went on the upper floor
and sat there with the child. After some time my father-in-
law, mother-in-law, brother-in-law, sister-in-law returned
home. My father-in-law Bapurao said to my husband as to
why did he take me inside the home. Brother-in-law
Sandip, mother-in-law Sau.Shobha and sister-in-law
Savita Santosh all of the above started saying the same
thing to my husband. That time my husband said what
happen if I have taken her inside, it is in our hands to do
away with her. That time my father-in-law, brother-in-
law, mother-in-law and sister-in-law said that we will
do away with her and will come out of jail by
bribing. By saying this they started beating me. After
continuous beating they went on to one side. I took my
child and laid down with my child. All the night my
mother-in-law, father-in-law, brother-in-law, sister-in-law
were whispering I was scared of them and could not sleep
all the night. I got up at 7-00 in the morning and sat
111.14 Criappeal
down with the child after washing my face / brushing. No
one was taking to me. My father-in-law said to my
husband and brother-in-law, clutch her and get her inside.
Father-in-law held my hand, brother-in-law and husband
poured all the kerosene on me from two plastic cans and
for the fear of people suspecting father-in-law, husband
and brother-in-law went and stood outside the house. I
started going outside the house to save myself. But at that
time my sister-in-law caught me tightly and mother-in-law
took out a burning stick from the kiln and put it on me. My
whole body was on fire. Apprehending danger to them,
and that they also could catch fire mother-in-law and
sister-in-law ran outside. People came running and tried
to extinguish the fire on my body. My husband, brother-in-
law and the neighbors took me to the Gangakhed Govt.
hospital by a goods tempo / auto and admitted there.
From there they took me to this hospital in Nanded and
admitted me there and started the treatment.
Q.5 Do you want to tell anything else ?
Ans My father-in-law, husband, brother-in-law,
mother-in-law, sister- in-law have set me on fire by the
motive of burning me alive.That is why they should be
given maximum punishment. So that no one should do
such type of injustice. This is what I have to say. My
abovesaid statement has been noted as told by me. It has
been read over to me. It is true and correct.
Sd/-
(Mrs.Kanhopatra Sunil Kadam )
R/o Shirpur, Tal.Gangakhed.
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D/D is recorded as per say of patient. It is
read over to her. She admitted that contents
of D.D. are true and correct. I believe that
D.D. is given voluntarily, it is true and
correct on 09-11-2008 @ 17=40 P.M.
Sd/-
P.N.Zhunjare,
Spl.Judicial Magistrate
Nanded.
20. As already discussed, upon perusal of the
contents of both the dying declarations, there is
inconsistency and also variance. In the second dying
declaration, father-in-law is introduced, whereas in the
first dying declaration, it was mentioned that, he was at
Pandharpur being the month of Shrawan for Darshan.
21. The prosecution examined Dr.Avinash
Digamber Puri, the medical Officer, Government
Medical College, Nanded. During his cross-
examination, he stated that, no cause of burning is
mentioned in the inquest. He has not mentioned age of
injuries in memorandum of P.M. He did not call details
about when patient was admitted and for how much
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period she was indoor patient in the Apollo hospital. As
per his report, there were no injuries on the head, neck
and face and only 2% injuries were on chest and
abdomen. Lower extremities and back were having
more percentage of burn injuries. He has given specific
admission that, if a woman from rural area burnt while
setting fire to furnace used for hitting water, such type
of injuries are possible, due to accidental burn. If two
persons caught hold a lady, poured kerosene on her
person and set fire, 100% injuries may or may not be
possible. He has given specific admission in his cross-
examination that, he could not differentiate the burn as
homicidal, suicidal or accidental. It may or may not be
possible that, head, neck, face of a lady remained
unburnt, if she is caught hold of two or more persons
and set on fire by pouring kerosene on her persons.
Direction of flame of burning of a person, is usually to
upper side.
22. Therefore, upon careful perusal of the cross-
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examination of PW-5, it is abundantly clear that, he
could not differentiate the burn as homicidal, suicidal
or accidental. Further he opined that, if deceased was
caught hold by two or more persons and set on fire by
pouring kerosene on her person, the direction of flame
of burning of a person is usually to upper side.
However, in the present case, it is abundantly clear
that, as per report of PW-5, there was no injuries on
head, neck and face and only 2% injuries were on chest
and abdomen. Therefore, the allegation that, brother-
in-law and husband poured kerosene from different
Cans and then she was set on fire appears to be
improbable, in the sense that, if two cans of kerosene is
poured on the body and if person is set on fire,
certainly there would be injuries on neck, head, face
and also on chest and abdomen due to flame of burning
of a person, is usually to upper side.
23. PW-5, further stated in the cross-
examination that, all burnt patients are treated by
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Surgeon. He further stated that, he did not call any
opinion from Surgeon, in order to ascertain age of
injury. He feel that, it is not necessary to call opinion
from the Surgeon. He further stated that, he did not
know whether it is necessary to mention the age of
injuries in P.M. report as per directions of medical
Board.
24. So far opinion expressed by PW-5 that, he
cannot differentiate the burn as homicidal, suicidal or
accidental, the Bombay High Court while considering
the prosecution case based upon dying declaration, in
the case of Shakuntalabai (supra) held that, the burn
injuries received by the deceased could be accidental,
suicidal or homicidal, the prosecution is required to
establish homicidal death by bringing positive evidence
on record. Therefore, in the present case also, it was
necessary for the prosecution to bring on record the
positive evidence so as to establish the homicidal death.
As already discussed about the dying declaration at
111.14 Criappeal
Exhibit-64, Kanopatra stated that, father-in-law went
to Parbhani. It means he was not present on the date of
incident in the house. However, in dying declaration
Exhibit-80, she attributed specific role to father in law.
The Bombay High Court in the case of State of
Maharashtra V/s Uttam Karbhari Dhage (supra) in
para no.14 held thus :-
"14. We would like to emphasize that, where an integral part
of the dying declaration is false, the residual part cannot be
accepted, on the principle that, falsus uno falsus omnibus is
not a rule applicable to our country. The rationale behind this
is that, unlike ocular evidence, a dying declaration cannot be
tested on the anvil of cross-examination. Once the Court is
convinced that, an integral part of the dying declaration is false
inasmuch as, an accused person has been falsely named
therein, the principle that, truth sits on the lips of the dying
man on which is founded the rationale of accepting a dying
declaration cannot be pressed into service for salvaging the
residual portion of the dying declaration. In other words, the
same dying declaration cannot be accepted against a co-
accused. We are fortified in our view by the observations
contained in para 9 of the judgment of the Apex Court
reported in AIR 1965 SC 939 (1965(2) Cri. LJ 31): Thurukanni
Pompiah V/s Stat of Mysore, which read thus :
"............ If the Court finds that the declaration is not wholly
reliable and a material and integral portion of the deceased's
version of the entire occurrence is untrue, the Court may, in
all the circumstances of the case, consider it unsafe to convict
the accused on the basis of the declaration alone without
further corroboration ............"
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25. In the case of Dada Machindra (supra), it is
held that, in case based upon the dying declarations
i.e. the dying declarations recorded by the Executive
Magistrate and by Police Officer, discrepancies and
variations found in both dying declarations regarding
number of persons pouring kerosene and the number
of persons setting deceased on fire, the evidence
showing deceased might have been tutored or her
faculties were impaired and conviction of accused on
the basis of the said dying declarations, is not proper.
The Supreme Court in the case of Mohan Lal (supra) in
para 9 has laid down law in respect of appreciation of
evidence when the prosecution case is based on dying
declaration. The para 9 of the said judgment is as
under :-
"9. This is a case where the basis of conviction of the
accused is the dying declaration. The situation in which a
person is on his death-bed, being exceedingly solemn, serene
and grave, is the reason in law to accept the veracity of his
statement. It is for this reasont hat the requirements of oath
and cross-examination are dispensed with. Besides, should the
dying declaration be excluded it will result in miscarriage of
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justice because the victim being generally the only eye-witness
in a serious crime, the exclusion of the statement would leave
the Court without a scrap of evidence."
In the said case, the Supreme Court has in para
11 further held thus :-
"11. In the instant case, it is to be noted that the evidence of
PW-3 and doctor clearly show that before the dying declaration
was recorded the relatives of the deceased including PWs-7 and
8 were present with her and were subsequently asked to leave
the room where the dying declaration was recorded. Though
much was made of the dowry demand by the courts below there
is only a vague reference to it in the dying declaration. The
statement of PWs 7 and 8 that they had told the Investigating
officer about the dowry demand is not correct. They had not said
so before the Investigating Officer. It is also significant that prior
to the death, neither the deceased nor her parents had
complained to the police or told anyone else about any alleged
dowry demand. In the circumstances, the dying declaration itself
was clearly the result of tutoring and was not a free and
voluntary one. The courts below ere therefore not justified in
placing reliance on the same. Additionally, there was only a
vague reference of dowry demand to the police which in any
event has not been established and also was not told during
investigation. Once the dying declaration is excluded, there is
nothing to implicate the accused-appellants with the death."
26. In the present case, though the evidence of
PW-1 to PW-4 suggest that, they went to see Kanopatra
in the hospital at Nanded and they were not allowed to
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enter in the hospital upto 5 p.m., but it has come in the
evidence of Investigating Officer Babu Jyotibarao Phule,
PW-11 that, when he went towards the patient, her
parents and other relatives were present. PW-11 has
recorded the dying declaration of Kanopatra at
Exhibit-64. Therefore, the said dying declaration may
be result of tutoring. The Bombay High Court in the
case of Sunil Raimale (supra) as already observed in
para 11 that, in case of presence of relatives, possibility
of tutoring cannot be ruled out and in that case, the
dying declaration cannot be free from doubt. In the
facts of the present case, as stated by PW-1, PW-4 and
PW-10 in their statements, there was demand of Rs. 1
Lakh from the accused persons after 5-6 months from
the marriage. However, they did not lodge any
complaint about illtreatment and harassment. Even
their statements are recorded by the police after 10
days from the date of incident. It has come on record
from the evidence of PW-1 that, he did not go to
complain but police on their own recorded their
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statements. On the day of incident, out of wedlock of
Sunil and Kanopatra one child was begotten and
Kanopatra was carrying pregnancy of 3-4 months.
PW-1 to PW-4 and PW-10, in their evidence stated
about illtreatment and harassment on account of not
erecting good pendol in the marriage. However, those
allegations deserve no consideration, since no attempt
was made by the prosecution witnesses to lodge any
complaint, and therefore, such belated attempt to make
such allegations has no substance. So far demand of
Rs. 1 Lakh is concerned, it has come in the evidence of
PW-1 that, family of the accused owns 18 acres of land
and already there is one well. According to defence,
there are already two wells. It has come on record that,
PW-3 was serving in Zilla Parishad, Parbhani and
thereafter he served at Jintur. It further appears from
the evidence on record that, the land belongs to the
accused to some extent is irrigated. Therefore, the
demand of Rs. 1 Lakh is difficult to believe and accept.
PW-1 to PW-4 have admitted in their evidence that,
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accused no.5 Savita got married even before the
marriage of Sunil and Kanopatra and she is staying at
Parbhani. Therefore, it is difficult to fathom that, on the
date of incident, as alleged by Kanopatra, Savita played
active role i.e. caught holding her and then mother-in-
law set her on fire. It has come on record that, Savita is
having child and settled in Parbhani and her husband
is having business of photo-copy Center at Parbhani.
27. The prosecution examined Dr. Sanjay
Sahebrao Kadam, Medical Practitioner, who was
working in Adhar Hospital at Shivaji Nagar, Nanded on
09.11.2008. He stated that, Kanopatra was admitted in
the hospital from 09.11.2008 and thereafter she was
referred to Civil Hospital, Parbhani on 21st November,
2008. Patient was 72% burnt. He has stated that,
Police Officer and Special Judicial Magistrate have also
came to him and asked him for giving opinion about
condition of the patient for giving statement. During his
cross-examination, he stated that, upper limbs of
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Kanopatra was completely burnt. He did not receive any
letter from police or Magistrate, having request to
record statement of patient. Therefore, the learned
counsel appearing for the appellants is justified in
arguing that, when the upper limbs of Kanopatra were
completely burnt, signing of both dying declaration by
Kanopatra was not possible. The Bombay High Court in
case of Abdul Riyaz (supra) in para 9, in the facts of
that case held that, when the doctor has admitted in
the cross-examination that, both hands were nearly
completely burnt, the post mortem notes would show
that all four limbs were extended and fingers were semi
flexed, it cannot be believed that in such condition, the
patient would be able to sign the document so
assertively. The Supreme Court in the case of
Thurukanni Pompial (supra) while considering the
case of the prosecution based upon dying declaration in
para 9 held thus :-
"Under Clause (1) of Section 32 of the Indian Evidence Act,
1872, a statement made by a person who is dead, as to the
cause of his death or as to any of the circumstances of the
111.14 Criappeal
transaction which resulted in his death is a relevant fact in
cases in which the cause of that person's death comes into
question, and such a statement is relevant whether the
person who made it was or was not, at the time when it was
made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death
comes into question. The dying declaration of Eranna is,
therefore, relevant and material evidence in the case. A
truthful and reliable dying declaration may form the sole
basis of conviction, even though it is not corroborated. But
the Court must be satisfied that the declaration is truthful.
The reliability of the declaration should be subjected to a
close scrutiny, considering that it was made in the absence
of the accused who had no opportunity to test its veracity by
cross-examination. If the Court finds that the declaration is
not wholly reliable and a material and integral portion of the
deceased's version of the entire occurrence is untrue, the
Court may, in all the circumstances of the case, consider it
unsafe to convict the accused on the basis of the declaration
alone without further corroboration. The law on this subject
is stated by Sinha, J. in Khusal Rao v. State of Bombay,
thus:
"Hence, in order to pass the test of reliability, a dying
declaration has to be subjected to a very close scrutiny,
keeping in view the fact that the statement has been
made in the absence of the accused who had no
opportunity of testing the veracity of the statement by
cross-examination. But once the Court has come to the
conclusion that the dying declaration was the truthful
version as to the circumstances of the death and the
assailants of the victim, there is no question of further
corroboration. If, on the other hand, the Court after
examining the dying declaration in all its aspects, and
testing its veracity, has come to the conclusion that it is
not reliable by itself, and that it suffers from an infirmity,
then, without corroboration it cannot form the basis of a
conviction."
111.14 Criappeal
28. The Bombay High Court in the case of
Shivkumar Umardand (supra) held that, in case the
prosecution case is dependent upon dying declaration
and if the death of wife is due to burn injuries and two
dying declarations implicating her husband were at
variance on two crucial aspects i.e. the manner in
which incident took place and location of incident, in
first dying declaration wife mentioning that, husband
extinguished fire, said credit given to husband was
withdrawn in subsequent dying declaration, the
husband also sustaining burn injuries in incident, in
such situation the accused is entitled for benefit of
doubt. In the present case also, as already observed,
there is variance in two dying declarations recorded at
Exhibit-64 and Exhibit-80.
29. PW-11 Babu S/o Jyotibarao Phule,
Investigating officer in his cross examination stated
that, he did not see the case papers of Kanopatra or
number of ward where she was kept. He did not give
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any letter to concerned medical officer showing that, he
was directed to record statement of injured Kanopatra.
He did not mention about the time when he
commenced recording of statement. He did not make
note on the statement that, he meet doctor, who
examined the patient and stated about her fit condition
for recording statement. The contents of the statement
vide Exhibit-64 were written by his writer. He cannot
tell the name of his writer. Patient was 70% burnt. He
cannot tell which part of patient was burnt and which
was not burnt. He did not feel it necessary to make
inquiry about treatment or medicines given to the
patient. When he went towards patient, her parents
and other relatives were present. He cannot tell
whether both the hands of the patient were burnt.
Therefore, aforementioned admission given by the
Investigating officer in the cross-examination is dent to
the prosecution case, inasmuch as he stated that,
when he went to patient her relatives were present and
also he did not give letter to doctor for examining the
111.14 Criappeal
patient. He does not remember even whether both the
hands of Kanopatra were burnt or not. He did not
remember the name of the writer.
30. It appears that, PW-12 Balasaheb Vithalrao
Dudhate, witness to the spot panchanama stated that,
his signatures were taken on blank papers on
10.11.2008. Therefore, his evidence is of no assistance
to the prosecution case. It appears that, Kundlik S/o
Nagorao Zunzare was examined as PW-13, who
recorded the dying declaration at Exhibit-80. Upon
reading his evidence about the actual incident narrated
by Kanopatra, she stated that, her father-in-law caught
hold of her hands, her husband and brother-in-law
poured kerosene from plastic cans on her person.
Therefore, as already observed in dying declaration
recorded at Exhibit-64, Kanopatra stated that, father-
in-law went to Pandharpur on the date of incident.
During his cross-examination, he stated that, he
recorded the dying declaration of the deceased on
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working day. He did not receive any intimation for
recording dying declaration. He did not remember the
phone number from which, he received the phone call
for recording the statement of deceased. He further
stated in cross-examination that, he has not made
entry in the register at the reception counter in respect
of his visit. An entry is taken at the reception in respect
of the indoor patient O.P.D. Consultancy etc., and
special visitors. He did not mention in the statement of
the witness as to on which floor she was, when her
statement was recorded. He does not maintain the
register or diary for noting the date of statements of the
witnesses recorded by him. He did not ask the doctor
as to what treatment he had given to the patient. He
did not mention in the statement that, the witness was
able to talk. He did not noted the presence of the doctor
in the statement. He did not seen the bed head ticket of
the patient. He did not see history of the patient as per
the bed head ticket. He did not noted on the bed head
ticket of the patient in respect of recording her
111.14 Criappeal
statement. He delivered the statement of the witness
with his forwarding letter at the office of C.J.M. Nanded
on 9th July, 2009. On 9th July, 2009, the statement
was with him. He did not mention that, he had retained
the carbon copy and the original is sent to the C.J.M.
However, he further admits that, the dying declaration
is to be sealed immediately and is to be delivered to the
C.J.M., however, the said dying declaration was with
him for 7 to 8 months. Therefore, his evidence in cross-
examination makes it clear that, the copy of the dying
declaration Exhibit-80 was not sent to C.J.M. for 8 to 9
months.
31. The prosecution examined Kundankumar
Bapurao Waghmare, who was working as Police
Inspector in Special Security Department, Nanded as
PW-16. He stated that, on 10th November, 2008, he
visited the place of incident at village Shirpur, Tq.
Palam and conducted panchanama. The place of
incident is at the house of complainant Kanopatra at
111.14 Criappeal
village Shirpur. He arrested the accused by separate
panchanama on 10th November, 2008. During the
course of treatment, the complainant Kanopatra died
accordingly the offence punishable under Section 302
of the I.P. Code was added. He has stated other details
about sending articles to C.A. During his cross-
examination, he stated that, the house number is not
mentioned in the panchanama Exhibit-106. He did
record the statement of the neighbours of the place of
incident and they did not disclose about the
illtreatment to deceased Kanopatra from the accused
persons. He stated that, the place of incident is a house
consisting of compound wall and court yard. The main
road of the village is in front of the house. On the
northern side of the court yard, towards left of the
entrance, there is fire place for hitting water etc. It is
adjacent to the bathroom. There is projection in the
wall for keeping articles such as kerosene lamp etc. A
kerosene lamp was kept in it. The kerosene lamp can
be used for igniting the fire place. He stated that, on
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10th November, 2008, he recorded the statement of
witnesses at village Shirpur. He recorded the
statements of Kailash Deshmukh, Raju Panchal,
Nagnath Deshmukh, Subhashrao Deshmukh,
Balasaheb Deshmukh and Moiram Bachate. None of
the witnesses stated in respect of seizure of any articles
from the place of incident or road in front of the house.
From the statements of the above persons, he
ascertained that, the incident took place at about 8
a.m. on 9th November, 2008. He also ascertained from
the statements of the above witnesses that, at the time
of incident, they were sitting near the temple on the
road and some were in front of the house of deceased.
They stated before him that, deceased Kanopatra came
running on the road with burnt clothes on person and
accused Sunil Kadam and Sandeep Kadam had
extinguished the fire. None of the witnesses has
disclosed about any quarrel in the house of the
accused on the night prior to the incident. He stated
that, he did not collect injury certificates of accused
111.14 Criappeal
nos. 1 and 2. He denied the suggestion that, he
concealed the fact that, accused nos. 1 and 2 were on
the road at the time of incident and they had
extinguished the fire of the deceased, in which they
sustained burnt injuries, therefore, he did not file the
injury certificates of both the accused. He stated that,
all the witnesses have stated that, marriage of Savita
accused no.5 was performed with Santukrao
Deshmukh of Chimangaon, Tq. Jintur and she was
residing with her husband at Lokmanya Nagar,
Parbhani since many years. None of the witness made
statement to show that, on the day of incident accused
no.5 Savita was at village Shirpur.
32. Upon reading the entire evidence of this
witness, it appears that, though he recorded the
statements of various persons in the said village, none
of the witness is examined.
33. Therefore, taking into consideration the
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entire evidence placed on record by the prosecution
and upon re-appreciating the said evidence, it does not
inspire confidence so as to sustain the conviction of the
accused. It is true that, PW-1 to PW-4 and PW-10
stated that, Kanopatra orally told them about the
manner in which the incident had taken place and role
played by the accused persons. However, when the
officially recorded two dying declarations at Exhibit-64
and Exhibit-80 does not inspire confidence and not
believable for having material inconstancies and
variance, and when the accused had no opportunity to
cross-examine the declarant, both the dying
declarations, therefore, deserve to be discarded.
34. In the light of discussion hereinabove, both
the dying declarations at Exhibit-64 and Exhibit - 80
deserve to be disbelieved. The Supreme Court in the
case of Dandu Reddy (supra) in para 16 held thus :-
"16. Thus the High Court has sidelined such a
noticeable discrepancy looming large as between the two
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different statements made by the same person. When the
sphere of scrutiny of dying declaration is a restricted
area, the Court cannot afford to sideline such a material
divergence relating to the very occasion of the crime.
Either the context spoken to one was wrong or that in
the other was wrong. Both could be reconciled with each
other only with much strain as to relates to the
opportunity for the culprit to commit the offence.
Adopting such a strain to the detriment of the accused in
a criminal case is not a feasible course."
35.
In the light of discussion in the foregoing
paragraph, the appellants deserve to be given benefit of
doubt. Accordingly the following order :-
ORDER
Accordingly Criminal Appeal is allowed. The
conviction and sentence of the appellants is hereby quashed
and set aside and the appellants are acquitted of the offences
with which they were charged and convicted. Fine, if any,
paid by the appellants be refunded to them. Since the
appellants are in jail, they be released forthwith, if not
required in any other case.
Sd/- Sd/-
( A.I.S. CHEEMA, J. ) ( S.S. SHINDE, J. )
sga/-
