Bombay High Court
Ashok Dadarao Sable vs The State Of Maharashtra on 14 October, 2016
Bench: S.S. Shinde
cria216.13
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.216 OF 2013
Ashok s/o Dadarao Sable,
Age-26 years, Occu:Agri.,
R/o-Hivra (Khurd), Tq-Majalgaon,
Dist-Beed.
(At present Appellant is in jail)
...APPELLANT
(Ori. Accused No.1)
VERSUS
The State of Maharashtra
...RESPONDENT
(Prosecution)
...
Mr. R.N. Dhorde, Senior Counsel i/b. Mr. V.R.
Dhorde Advocate for Appellant.
Mr. S.W. Munde, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
DATE OF RESERVING JUDGMENT : 21ST SEPTEMBER, 2016
DATE OF PRONOUNCING JUDGMENT: 14TH OCTOBER, 2016
cria216.13
ORAL JUDGMENT [PER S.S. SHINDE, J.] :
1. This Appeal has been filed by the
original accused No.1 who has been convicted by
the Additional Sessions Judge, Majalgaon in
Sessions Case No.32 of 2012 on 1 st April 2013 under
Section 302 of the Indian Penal Code, 1860
("I.P.C." in short) and has been sentenced to
suffer life imprisonment with fine of Rs.5,000/-
and in default of payment of fine to suffer
rigorous imprisonment for three months. The
Appellant has also been convicted under Section
498-A of the I.P.C. and sentenced to suffer
rigorous imprisonment for three years with fine of
Rs.5000/- and in default of payment of fine to
suffer rigorous imprisonment for three months.
Both the sentences were directed to run
concurrently.
2. The prosecution case, in a nut-shell, is
as under:-
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A). Accused No.1 Ashok is the husband,
accused No.2 Dadarao is the father-in-law and
accused No.3 Sau. Shahubai is the mother-in-law of
the deceased Anita. The accused are residents of
village Hivra, Tq-Majalgaon, Dist-Beed. Accused
No.1 married to the deceased Anita ten years ago.
She begot three sons viz. Akash, Avinash and
Akshay, out of the said wed-lock. After the birth
of the youngest child viz. Akshay, accused No.1
started doubting the character of the deceased.
This culminated into ill-treatment, such as
abusing, beating and harassment by all the
accused. The deceased Anita left the house of the
accused in November 2010 and started residing with
her parents. Accused No.1 after sending legal
notices, filed a petition bearing H.M.P. No. 34 of
2011 for restitution of conjugal rights under
Section 9 of the Hindu Marriage Act in the Court
of Civil Judge (S.D.), Majalgaon on 29 th July 2011.
The deceased Anita filed her written statement in
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the said Hindu Marriage Petition. It appears that
since 17th December 2011 the deceased started
residing with the accused. On 3rd March 2012 in
view of the compromise-deed (Exh. 38) between the
deceased Anita and accused No.1, the said Hindu
Marriage Petition was disposed of.
B). It is the case of the prosecution that on
18th March 2012 at about 7.30 to 8.00 a.m. Anita
sustained burn injuries while she was residing at
along with the neighbours, extinguished the fire.
Accused Nos.2 and 3 shifted her to Rural Hospital,
Majalgaon. Anita was referred to Civil Hospital,
Beed on the same day. She died on 19th March 2012
at about 4.00 p.m. at Civil Hospital, Beed. This
was followed by drawing inquest panchnama
(Exh.17) and postmortem by Dr. Tak (PW-2). Anita
died on account of sustaining superficial to deep
injuries as a consequence of septicemia. The dying
declaration of Anita recorded by A.S.I. Shingare
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(PW-3) on 18th March 2012 (Exh. 28) came to be
treated as the F.I.R. and Crime No.34 of 2002 was
registered for the offences under Sections 307,
498-A read with Section 34 of the I.P.C. against
all the three accused. The accused were arrested
on the same day. After the death of Anita, the
offence under Section 302 came to be substituted
for the offence under Section 307 of the I.P.C.
C). As per the prosecution case, accused No.1
committed murder of his wife by pouring kerosene
on her person on 18th March 2012 pursuant to
subjecting her to cruelty by doubting her
chastity. As against accused Nos.2 and 3, it is
alleged that they also resorted to ill-treat the
deceased.
3. The prosecution claims homicidal death of
Anita, whereas as per the case of the accused, it
was accidental. The case of the prosecution rests
upon two dying declarations, one recorded by
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A.S.I. Shingare (PW-3) on 18th March 2012 (Exhibit
28) and another dying declaration (Exhibit 23)
recorded by Naib- Tahsildar Gore (PW-1). As per
the prosecution case, there was oral dying
declaration by the deceased to her father
Machhindra (PW-5). In support of its case, the
prosecution also examined Medical Officers Dr. Tak
(PW-2) and Dr. Dhoot (PW-7). The prosecution also
examined Police Head Constable Bombale (PW-4),
Police Inspector Kurumkar (PW-6). In their
defence, the accused examined Dr.Wagh (DW-1).
4. The defence taken by the accused is that
due to sudden flaring of the local earthen oven
while pouring kerosene in it, the deceased
sustained burn injuries accidentally.
5. The learned trial Judge, after
scrutinizing the evidence and hearing the parties,
convicted accused No.1 only for offences
punishable under Sections 302 and Section 498-A of
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IP.C. and passed sentence, as stated above.
However, he acquitted accused Nos.2 and 3 of these
offences.
6. The learned senior counsel appearing for
the Appellant submits that there are no specific
averments regarding ill-treatment on the part of
the Appellant and evidence also is lacking on that
point. There are material variance in the dying
declarations recorded by Investigating Officer and
Naib-Tahsildar. The Medical Officers Dr. Dhoot
(PW-7) and Dr. Wagh (DW-1) have deposed that Anita
herself had given history of accidental burns when
she was admitted in the hospital. The spot
panchnama shows that the room, where the incident
is alleged to have been taken place, was having no
door and therefore statement of Anita that after
the incident her husband went out of the room and
closed the door from out-side, cannot be believed.
The learned senior counsel further submits that
the benefit of doubt ought to have been given to
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the Appellant. In support of his submissions,
regarding accidental death, he placed reliance on
the following reported cases:
i) Paneerselvam vs. State of Tamil Nadu,
(2008) 17 S.C.C. 190,
ii) Vilas Vikramsingh Deshmukh and others
vs. The State of Maharashtra, 2013 ALL
M.R. (Cri)3145.
7. In support of his submissions that when
there is variance in dying declarations, there
should be corroborative evidence to the dying
declarations, the learned senior counsel for
Appellant placed reliance on the following
reported cases:
i) State of Rajasthan vs. Shravan Ram and
another, 2013 ALL M.R. (Cri)2254 (S.C.),
ii) Surinder Kumar vs. State of Haryana,
2012 ALL M.R. (Cri) 696(S.C.),
cria216.13
iii) Girdhar Shankar Tawade vs. State of
Maharashtra, A.I.R. 2002 S.C. 2078,
iv) Sarnadhan Dhudaka Koli vs. State of
Maharahstra, A.I.R. 2009 S.C. 1059,
8. In support of his submission that the
benefit of doubt ought to be given to the
Appellant, he placed reliance on the Judgment in
the case of Sanjay vs. State of Maharashtra,
(2007) 9 S.C.C. 148. In support of his submissions
regarding tutoring to victim and suppression of
documents, the counsel for Appellant placed
reliance on the following reported cases:
i) Banarasi Dass and others vs. State of
Haryana, (2014) 15 S.C.C. 485,
ii) Samadhan Dhudaka Koli vs. State of
Maharashtra, 2009 ALL M.R. (Cri) 229(S.C.)
9. On the other hand, the learned A.P.P.
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appearing for the prosecution submits that there
are two dying declarations, one recorded by the
Investigating Officer and the other by the Naib
Tahsildar. Moreover, the deceased Anita had given
oral dying declaration before her father
Machhindra. In all the three dying declarations,
she has stated in specific words that Appellant
poured kerosene on her person and set her on fire.
All the dying declarations are consistent,
reliable and there is no variance at all as
regards the role attributed to the Appellant. The
learned A.P.P. supports the reasonings recorded by
the trial Court. He submits that the trial Court
has discussed in detail the entire evidence and
thereafter recorded the cogent findings which need
no interference. In support of his submissions,
the learned A.P.P. placed reliance on the judgment
in the case of Shaikh Juned Shaikh Moti Mansuri
and another vs. State of Maharashtra and another,
2014(2) Mh.L.J. (Cri.) 131.
cria216.13
10. The dying declaration recorded by A.S.I.
Shingare (PW-3) is treated as the F.I.R.
(Exh.28). In the said dying declaration, Anita
stated that her marriage with accused No.1 Ashok
was solemnized in the year 2007. She started
residing with her husband since then. Initially,
she was treated well for one year, however,
thereafter her husband started suspecting her
chastity. He used to abuse and assault her. She
used to inform her parents on phone about ill-
treatment given to her by the appellant, however
the parents used to advise her to ignore such
incidents. She further stated that the accused as
a part of ill-treatment, on some occasions, did
not give her food. Therefore, she left the
matrimonial house and went to the house of her
parents and started residing there. She received
three notices through Majalgaon Court and as a
response of third notice sent by her husband, the
amicable settlement was brought about and she went
to the matrimonial home just eight days prior to
cria216.13
the date of incident. However, the appellant
continued the ill-treatment. The appellant used to
abuse and beat her.
11. On 18th March 2012, at about 7.30 to 8.00
a.m. when the appellant and his parents were in
the house, the appellant started quarreling with
her by suspecting her chastity. At that time her
father-in-law and mother-in-law were sitting in
Varandha (courtyard). The appellant started
beating her. She started shouting. The appellant
took kerosene can from the house and poured
kerosene on her person, ignited match-stick and
set her ablaze. The appellant closed the door from
outside and went away. Thereafter the father-in-
law and mother-in-law, who were sitting in
Varandha, opened the door and came inside. Even
Yashodabai, who was the neighbour also came with
them. They tried to extinguish the fire by pouring
water and also putting clothes on person of the
deceased. Thereafter, appellant arrived at home.
cria216.13
The appellant and his parents took her to Civil
Hospital, Majalgaon where she was treated and
thereafter as per the advice of the doctor, she
was taken by a private vehicle to Civil Hospital,
Beed where she was taking treatment. She stated
that she was conscious. Once again she stated that
the appellant suspected her chastity, abused her
and beat her and thereafter poured kerosene on her
person and set her ablaze. In the said incident
both the hands, breast, stomach, face and both
legs of the deceased Anita were burnt. Therefore,
she complained against all the accused persons.
12. To prove the said dying declaration, the
prosecution examined A.S.I. Shingare (PW-3) at
Exh.27. He states that on 18th March 2012 he was
in-charge of Police Out-Post, Civil Hospital,
Beed. He came to know that a patient namely Anita
Ashok Sable was admitted in Civil Hospital, Beed
and the M.L.C. thereof was sent to the out-post.
He, therefore, informed Dr. Dhoot, Medical Officer
cria216.13
that he wanted to record the statement of the
patient Anita. A.S.I. Shingare (PW-3) along with
Dr. Dhoot (PW-7) went to the Burns Ward. According
to him, Dr. Dhoot (PW-7) examined Anita and then
put endorsement that she was conscious and in a
condition to give oral statement. Thereafter
A.S.I. Shingare (PW-3) recorded the statement of
Anita as per version as incorporated in the dying
declaration (Exh.28). The deceased Anita
stated that on 18th March 2012 at about 7.00 to
7.30 a.m. the appellant Ashok picked up a quarrel
with her by doubting her chastity and assaulted
her. She, therefore, raised hue and cry.
Thereafter the appellant poured kerosene on her
person and set her on fire. She further stated
that thereafter appellant went outside the house
and shut the door from outside. Upon hearing her
hue and cry, accused Nos.2 and 3 opened the door.
Along with the neighbours, they extinguished the
fire. Then they took her to Rural Hospital,
Majalgaon where she received first aid and
cria216.13
thereafter, as per the advice of the doctor, she
was taken to the Civil Hospital, Beed for further
treatment. After recording the dying declaration,
Dr. Dhoot (PW-7) endorsed that the patient was
conscious and fit to give oral statement. A.S.I.
Shingare (PW-3) made entry in the inward register
about recording of the dying declaration of
Anita. Copy of the same was forwarded to the
Police Station, Beed (City) along with report
dated 19th March 2012. The same was then registered
as F.I.R. (Exh.28).
13. In his cross-examination, A.S.I. Shingare
(PW-3) denied the suggestion that Dr. Dhoot (PW-7)
told him to record the dying declaration. He
denied the suggestion that the parents and aunt of
the deceased Anita were known to him prior to the
incident. He further stated that the police
constable Potdar was accompanying him while
recording the dying declaration. It appears that
while replying the question, whether he handed
cria216.13
over the copy of the dying declaration to Mr.
Gore, Naib-Tahsildar, in one breath he stated that
he did hand over copy of the dying declaration to
Naib Tahsildar Gore (PW-1). However, he again
stated that he did not handover the copy of dying
declaration to Naib Tahsildar Gore (PW-1). He
denied the suggestion that he supplied the form
for recording dying declaration to Naib Tahsildar
Gore (PW-1).
14. The dying declaration (Exh.23) has been
recorded by Naib-Tahsildar Gore (PW-1). The said
dying declaration is in question-answer form. So
far as the main incident dated 18th March 2012 is
concerned, Anita stated that on the said date in
between 7.30 and 8.00 a.m. the appellant started
quarreling with her suspecting her chastity and
assaulted her. Thereafter he poured kerosene from
the kerosene can, ignited a match-stick and set
her ablaze. Thereafter he closed the door from
outside. Her father-in-law and mother-in-law
cria216.13
opened the door, came inside and tried to
extinguish fire and thereafter they took her to
Majalgaon Government Hospital. Thereafter she was
referred to the Government Hospital, Beed. When
she was asked as to who were responsible for the
said incident, she stated that her husband,
father-in-law and mother-in-law were responsible
for the said incident and she had grievance
against them.
15. To prove the dying declaration (Exh. 23),
prosecution examined Naib Tahsildar Gore (PW-1) at
Exh.20. He deposed that on 18th March 2012 he was
working in the capacity of Naib-Tahsildar at Beed.
As per the request of police officer, he went to
the hospital and recorded the statement (Exh.23)
of Anita as per her say as mentioned in the above
paragraph.
16. Naib Tahsildar Gore (PW-1) stated that
Dr. Tak examined Anita before recording the
cria216.13
statement. In fact the said statement is
incorrect. There are endorsements of Dr. Dhoot
(PW-7) and not that of Dr. Tak (PW-2) as stated by
him. It further appears from his evidence that the
original dying declaration was maintained in
sealed envelope which was kept in the record-room.
However when he brought the said envelope, there
was no receipt of handing over the said envelope
containing statement (Exh.23) of Anita to show
that the same was brought from the custody of the
record-room keeper. He further admits in his
cross-examination that he is not aware that
original dying declaration needs to be deposited
in the Court of J.M.F.C. He further admits that he
did not go through the treatment papers of Anita
before recording her statement. If his evidence is
considered in its entirety, it appears that there
is no proper recording of dying declaration and
even he is not aware which Medical Officer was
present during recording of dying declaration
(Exh.23).
cria216.13
17. Apart from the two dying declarations
referred to above, the prosecution examined
Machhindra (PW-5), the father of the deceased
Anita to prove oral dying declaration. He stated
that the appellant sent two notices through his
Advocate to Anita. Thereafter the third notice was
sent and in response to the said notice, they
attended the proceedings before the Court at
Majalgaon. The appellant then promised to treat
Anita properly, hence he sent Anita with the
appellant on his giving undertaking to that effect
before the Court. The incident occurred 2-3 months
after the appellant had taken Anita with him from
the Court to his house. He stated that on 18 th
March 2012 accused No.2 phoned him and told that
Anita sustained burn injuries and she was admitted
in Rural Hospital, Majalgaon. On receiving that
information, he himself, his wife, sister and
brother-in-law went to the Rural Hospital,
Majalgaon. They came to know that Anita was
cria216.13
shifted to Civil Hospital, Beed and then they
reached Civil Hospital, Beed at about 4.00 p.m.
All the three accused were present there. They,
however, fled away from the hospital after seeing
them. They met Anita in the hospital. They saw
that she had sustained burn injuries. Anita stated
that the appellant poured kerosene on her person
and set her ablaze by igniting a match-stick,
then went outside the house and closed the door.
After hearing her hue and cry, accused Nos.2 and 3
entered the house and they extinguished the fire
by pouring water on her person. Accused Nos.2
and 3 then took her to Rural Hospital, Majalgaon
and then to Civil Hospital, Beed and admitted her
there.
18. During his cross-examination, Machhindra
(PW-5) stated that Anita married to appellant ten
years prior to the incident. Three children have
been born out of the said wed-lock. He denied the
suggestion that he reached at Civil Hospital, Beed
cria216.13
at about 9.00 a.m. on 18th March 2012. He
reiterated that he reached the Civil Hospital,
Beed at about 4.00 p.m. and the accused then fled
away from there upon noticing him and others. He
denied the suggestion that Anita told him that she
caught fire while igniting the local oven
accidentally. He specifically denied the
suggestion that he himself and his wife tutored
Anita to give such dying declaration.
19. Dr. Dhoot (PW-7) stated that he had
examined the deceased Anita prior to and after
recording of her statements by A.S.I. Shingare
(PW-3) and Naib Tahsildar Gore (PW-1) and found
her to be conscious and fit to give statements.
Accordingly, he made endorsements under his
signature. In his cross-examination Dr. Dhoot
(PW-7) fairly stated that through-out recording of
the dying declarations he was not present. He
stated that the deceased Anita was administered
injections Rantac, Dyclophin and Aciloc. He stated
cria216.13
that the injection Fortwin is sedative. This fact
shows the state of mind of the deceased Anita at
the time of giving the statements (Exh.28 and 23).
20. Dr. Dhoot (PW-7) stated that the deceased
Anita Ashok Sable was referred to Civil Hospital,
Beed by Rural Hospital, Majalgaon. She had given
history of accidental burns. There is specific
mention on the first page of the case papers
(Exh.45) of the deceased Anita about the history
of accidental burns given by her at the time of
her admission.
21. The prosecution ought to have examined
Dr. Wagh (DW-1) who was attached as Medical
Officer to Rural Hospital, Majalgaon where the
deceased Anita was admitted immediately after the
incident. The appellant has examined him in his
defence. He stated that on 18.03.2012, at about
8.45 a.m. Anita Ashok Sable was admitted in the
hospital. She was brought in the hospital by the
cria216.13
appellant. At the time of admission, she told the
history of accidental burns due to flames of the
local oven while pouring kerosene in it. She was
conscious at the time of admission.
22. Under the above circumstances, it will
have to be seen how far the dying declarations of
the deceased Anita are consistent and whether they
are believable. The comparative chart of her dying
declarations is as under:-
Dying Declaration Dying Declaration Deposition of
recorded by Mr. recorded by PW-5 Machhindra
Gore (Exh. 23) A.S.I. Shingare Dhumal
at 2.00 p.m. on (Exh.28) at 12.10
18th March 2016 p.m. on 18th
March 2016
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cria216.13
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23. If the contents of dying declarations at
Exh.23 and Exh.28 are compared, there is a
variance. In dying declaration Exh.23, Anita has
stated that she had grievance against her mother-
in-law, father-in-law and husband and they all had
cria216.13
burnt her. In dying declaration Exh.28 Anita had
not stated specifically that mother-in-law and
father-in-law also are responsible for her burn
injuries. Because of the said statement, the
father-in-law and mother-in-law of Anita had to
face trial for her murder. The persons, who
actually extinguished fire from her person, also
were involved by her in the incident of setting
her on fire. This shows that either she was
tutored by somebody to involve them or had no
regards for truth. In the circumstances, the dying
declarations of the deceased Anita cannot be said
to be made voluntarily or truthful.
24. We have carefully perused the original
case papers (Exh.53) in respect of treatment of
Anita at Rural Hospital, Majalgaon wherein the
history of burns is mentioned as accidental burns
while igniting Chulha by pouring kerosene in it.
The case papers (Exh.45) of the deceased Anita
prepared at District Hospital, Beed also contain
cria216.13
history of accidental burns by her. Dr.Dhoot
(PW-7) and Dr.Wagh (DW-1), who are the Medical
Officers and independent witnesses, have stated in
their statements before the Court that Anita had
given the history of accidental burns and at the
time of giving such statement, she was conscious
and oriented. It is true that the accused persons
had accompanied Anita, however the evidence of
Medical Officers Dr. Dhoot (PW-7) and Dr. Wagh
(DW-1) cannot be ignored. Considering the variance
in the dying declarations referred to above and
the history of burns given by the deceased Anita
at the time of her admission in the hospitals, we
are not inclined to believe the case of the
prosecution that the appellant set her ablaze.
25. We have also carefully perused the Spot
Panchnama. It appears that spot of the incident is
shown inside small room without door. Upon reading
the contents of the said Spot Panchnama, it is
stated that inner room is having door. However,
cria216.13
there is confusion about the spot of the incident.
The contents of the Spot Panchnama show the spot
of incident inside the inner room, however in the
map the spot of the incident is shown in the outer
room without door. Therefore, we find force in the
arguments of the learned senior counsel that when
the spot of incident is outer room without door,
there was no question of closing the door from
outside by the appellant as stated by Anita. There
is no Varandha outside the said room where accused
Nos.2 and 3 were sitting as stated by Anita.
Nothing incriminating has been found from the spot
of the incident. It is true that Spot Panchnama is
carried out on the next day of the incident i.e.
on 19th March 2012. However except a Chulha in the
outer room, the Investigating Officer and Panchas
did not notice kerosene can, smell of kerosene
from anything, blackening of articles, clothes,
etc. which would lead one to the conclusion that
such incident, either accidental or otherwise, had
taken place at the spot subject matter of the
cria216.13
Panchanama.
26. The evidence of the prosecution creates
doubt about homicidal death of Anita. The benefit
of doubt deserves to be extended to the appellant.
In view of the appreciation of dying declarations
of the deceased Anita and the inferences drawn
therefrom, we are not inclined to subscribe to the
inferences drawn by the learned Trial Judge. The
impugned judgment of conviction, in the above
circumstances, cannot be upheld. It is liable to
be quashed and set aside. Hence the following
order:-
O R D E R
(I) Criminal Appeal is allowed.
(II) The conviction and sentence of the
appellant is hereby quashed and set aside
and the appellant is acquitted of the
offences punishable under Sections 302 and
cria216.13
498-A of the Indian Penal Code.
(III) Fine, if any, deposited by the
appellant be refunded to him.
(IV) Since the appellant is in jail, he be
released forthwith, if not required in any
other case.
(V) The appellant shall furnish personal
bond in the sum of Rs.10,000/- with a
surety in the like amount before the trial
Court vide Section 437-A of the Code of
Criminal Procedure.
[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]
asb/SEP15
