Bombay High Court
Kalabai Eknath Navle vs The State Of Maharashtra on 16 September, 2016
Bench: S.S. Shinde
1 A-criappeal-185-13.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL No.185 OF 2013
Kalabai w/o. Eknath Navle (Nawale),
Age : 55 years, Occ. Household,
r/o. Javkhede Khalsa, Tq.Pathrdi,
Dist. Ahmednagar ..Appellant
(Ori. Accused)
Vs.
The State of Maharashtra ..Respondent
--
Mr.V.D.Sapkal, Advocate instructed by Mr.A.B.
Jagtap, Advocate for appellant
Mr.M.M.Nerlikar, A.P.P. for respondent
--
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : AUGUST 23, 2016
PRONOUNCED ON : SEPTEMBER 16, 2016
JUDGMENT (PER SANGITRAO S. PATIL, J) :
The appellant (original accused no.2) has
challenged the vires of the judgment and order
dated 12.03.2013 delivered in Sessions Case No.163
of 2007 by the learned Addl. Sessions Judge,
Ahmednagar whereby, she has been convicted for the
2 A-criappeal-185-13.odt
offence punishable under Section 302 of the Indian
Penal Code ("I.P.C.", for short) and sentenced to
suffer imprisonment for life and to pay a fine of
Rs.1,000/- in default, to suffer simple
imprisonment for six months.
2. The admitted facts as disclosed from the
evidence produced before the Court are that the
deceased Lata married to one Adinath Baban Navle,
resident of Javkhede Khalsa hutment-area, Tq.
Pathardi, Dist. Ahmednagar in the year 2006. The
parents of Adinath had expired much prior to his
marriage. Accused no.1 Navnath Balaji Navle (since
deceased) was the uncle of the said Adinath. The
appellant Kalabai is the widow of the deceased
accused no.1 Navnath and as such, is aunt of
Adinath. Adinath is working as a tempo driver. The
deceased Lata and Adinath were residing separate
in a house situate to the south of the road
running east-west, while the deceased accused
3 A-criappeal-185-13.odt
Navnath and the appellant were residing in a room
situate to the north of the said road.
3. On 14.03.2007 at about 9.00 a.m., the
deceased Lata sustained burn injuries in her house
when Adinath had gone to Pathardi in connection
with his work as a driver. Lata was admitted in
the Civil Hospital at Ahmednagar on the same day
by the deceased accused Navnath and others at
about 11.30 a.m. The father of the deceased Lata
had got her discharged from the Civil Hospital and
got her admitted in Garud Hospital in Ahmednagar,
where she succumbed to her injuries on 20.04.2007
at about 6.55 p.m.
4. The case of the prosecution, in brief, is
that the deceased accused Navnath, the present
appellant, their daughter Asha and son namely,
Mahadev, who was a juvenile in conflict with law,
used to illtreat the deceased Lata frequently on
4 A-criappeal-185-13.odt
the some ground or other. On 14.03.2007 at about
9.00 a.m., Mahadev and the appellant caught hold
the deceased Lata, the deceased accused Navnath
poured kerosene from a drum on her person, the
appellant ignited a match-stick and set the
deceased Lata on fire. The deceased Lata raised
shouts, whereon the neighbors namely, Bilkis and
other persons came there. The deceased accused
Navnath extinguished the fire of the deceased Lata
by throwing water. She sustained injuries to her
face, abdomen, chest, hands, back and thigh. The
deceased accused Navnath and the husband of the
deceased Lata namely, Adinath took her to Civil
Hospital at Ahmednagar where, she was admitted for
treatment.
5. On that day, the deceased Lata orally
stated before her parents, her aunt and other
relatives as to how she sustained burn injuries.
5 A-criappeal-185-13.odt
6. After receiving a letter from Tophkhana
Police Station, Sharad Mandlik, the Naib
Tahsildar, Ahmednager, after verifying from the
Medical Officer that the deceased Lata was in a
fit state of mind to give statement, recorded her
statement on 14.03.2007 between 4.55 p.m. and 5.35
p.m. The said statement was sent by him to
Pathardi Police Station. After receiving the said
statement at about 11.00 p.m. on that day, Crime
No.35 of 2007 came to be registered against the
deceased Navnath, the present appellant, accused
no.3 and Mahadev. Since Mahadev was a juvenile, he
was referred to the Juvenile Justice Board.
7. P.S.I. Bhausaheb Kadam of Police Station,
Pathardi conducted investigation. He visited the
Civil Hospital at Ahmednagar on 15.03.2007. He
got confirmed from the Medical Officer that the
deceased Lata was in a fit condition to give
statement. He recorded her statement at 2.45 p.m.
6 A-criappeal-185-13.odt
The spot panchnama was prepared. The burnt pieces
of the saree of the deceased Lata, a match box and
a plastic can of kerosene, came to be seized from
the spot of the incident. P.S.I. Kadam recorded
the statements of the neighbours and that of the
other persons who had been to the spot of the
incident after hearing shouts of the deceased
Lata.
8. On receiving intimation of the death of
Lata from Dr.Prakash Garud of Garud Hospital at
Ahmednagar, her dead body was brought from that
Hospital and referred to the Medical Officer for
post-mortem. Accordingly, the post-mortem of the
body of the deceased Lata was conducted by
Dr.Pathare and Dr. Sardesai on 21.04.2007 between
12.30 p.m. and 1.30 p.m. They noticed that the
deceased Lata had sustained 45.5% burn injuries on
various parts of her body. They opined that she
died of septicemia due to 45.5% of deep burns.
7 A-criappeal-185-13.odt
The seized articles were sent to the Chemical
Analyser for examination and report.
9. After completion of investigation, the
deceased accused Navnath, the present appellant
and accused no.3 came to be charge-sheeted in the
Court of the learned Judicial Magistrate F.C. at
Pathardi on 18.07.2007 for the offences punishable
under Sections 498-A and 302 read with Section 34
of the I.P.C. The case being exclusively triable
by the Court of Session, the learned Magistrate
committed it to that Court for trial.
10. The learned 5th Addl. Sessions Judge,
Ahmednagar framed charges against the deceased
accused Navnath, the present appellant and accused
no.3 for the above-mentioned offences vide Exhibit
23 on 21.02.2011 and explained the contents
thereof to them in vernacular. They pleaded not
guilty and claimed to be tried. Their defence is
8 A-criappeal-185-13.odt
that of total denial and false implication at the
instance of the parents of the deceased Lata.
11. During pendency of the trial, accused
Navnath died on 29.10.2011. Therefore, the
proceedings stood abated against him.
12.
The prosecution examined eight witnesses
to bring home the guilt of the appellant and
accused no.3. After scrutinizing the said
evidence, the learned trial Judge did not find
sufficient evidence to establish the guilt of the
accused persons for the offence punishable under
Section 498-A of the I.P.C. He further did not
find sufficient evidence to connect accused no.3
with the offence punishable under Section 302 of
the I.P.C. However, he found sufficient evidence
to establish the guilt of the appellant for the
offence punishable under Section 302 of the I.P.C.
9 A-criappeal-185-13.odt
13. In the result, the learned trial Judge
acquitted accused no.3 of the offences punishable
under Sections 498-A and 302 of the I.P.C. He
further acquitted the appellant of the offence
punishable under Section 498-A of the I.P.C.,
however, convicted her for the offence punishable
under Section 302 of the I.P.C. and sentenced her,
as stated above. The said conviction and sentence
have been challenged by the appellant in this
appeal.
14. The learned Counsel for the appellant
submits that there are two written dying
declarations and two oral dying declarations,
allegedly given by the deceased Lata. They are
inconsistent on material particulars and in
respect of the role attributed against the
appellant in commission of the alleged offence.
Therefore, according to him, independent
corroboration was essential to the alleged dying
10 A-criappeal-185-13.odt
declarations of the deceased Lata. Though it is
the case of the prosecution that one Bilkis, who
was neighbour of the deceased Lata, had gone to
the spot of the incident immediately after hearing
shouts of Lata, she has not been examined by the
prosecution. She was the most natural witness who
could have noticed as to how the deceased Lata got
burnt and what was her reaction after sustaining
the burns. She would have been the best witness to
hear from the deceased Lata about cause of her
injuries, immediately after the incident.
15. He further submits that many other
persons had helped the deceased accused Navnath in
extinguishing the fire of the deceased Lata,
however, none of the said witnesses has been
examined by the prosecution as witness. As such,
though the independent evidence was available, the
prosecution suppressed that evidence.
11 A-criappeal-185-13.odt
16. He then submits that the deceased Lata
and her husband Adinath were residing separate
from the appellant and her husband i.e. the
deceased accused Navnath. They were not parents of
Adinath. There was no reason for them to go to
the house of of Adinath and harass the deceased
Lata. The learned Counsel submits that the
deceased accused Navnath extinguished the fire and
took the deceased Lata to Civil Hospital,
Ahmednagar for treatment. He submits that the
appellant also accompanied the deceased Lata when
she was taken to Civil Hospital, Ahmednagar. Her
name was mentioned in the medical case record at
the time of admission of the deceased Lata in the
hospital, as the near relation of the deceased
Lata. These facts indicate innocence of the
appellant.
17. He submits that the mother and aunt of
the deceased Lata claim to have heard the deceased
12 A-criappeal-185-13.odt
Lata narrating the involvement of the appellant in
the incident in question, on the day of the
incident itself. However, both them did not state
about that fact to the police, though the police
visited the Civil Hospital in their presence.
This unexplained delay shows that these witnesses
falsely stated about the so-called oral dying
declaration of the deceased Lata by way of
afterthought. He submits that these witnesses
tutored the deceased Lata for involving the
appellant and her family members in the incident
in question and accordingly, the dying
declarations came to be recorded. He submits that
the alleged dying declarations cannot be said to
have been given by the deceased Lata voluntarily.
The husband of the deceased Lata had no strained
relations with her. She would have stated the
factual position to him. However, he has not been
examined by the prosecution. The parents of the
deceased Lata were with her in the hospital. She
13 A-criappeal-185-13.odt
gave the dying declarations at their instance and
not at her own will. There is no evidence to
establish the truthfulness of the said dying
declarations. The Naib Tahsildar as well as the
P.S.I., who recorded the dying declarations of the
deceased Lata, did not satisfy themselves, whether
the deceased Lata was in a condition to give
statement. The evidence of the Medical Officer,
who is alleged to have examined the deceased Lata,
is not believable. He submits that there was
absolutely no reason for the appellant to think of
committing murder of the deceased Lata.
18. He then submits that no burns were
noticed on the back of the deceased Lata. All the
injuries were on the front portion of her body.
This fact indicates that the injuries sustained by
the deceased Lata were either suicidal or
accidental. He points out to the medical evidence,
indicating possibility of accidental death of
Lata.
14 A-criappeal-185-13.odt
19. He submits that the evidence on record is
not cogent, consistent and believable, to come to
the conclusion that the appellant committed murder
of the deceased Lata. In support of his
contentions, he relied on certain judgments, which
would be considered in the later part of the
judgment. He submits that the learned trial Judge
did not consider the evidence on record in its
proper perspective and wrongly held the appellant
guilty of the offence of committing murder of
Lata. He submits that the impugned judgment may be
set aside and the appellant may be acquitted.
20. On the other hand, the learned A.P.P.
submits that the written dying declarations as
well as the oral dying declarations of Lata are
quite consistent so far as the role of the
appellant is concerned. The said dying
declarations were made by the deceased Lata when
15 A-criappeal-185-13.odt
she was in fit condition to give statements. There
is absolutely no reason to disbelieve the said
dying declarations. The said dying declarations
clearly establish that the appellant set the
deceased Lata on fire by igniting a match stick.
He submits that the learned trial Judge has
rightly convicted and sentenced the appellant. He,
therefore, supports the impugned judgment and
order.
21. The case of the prosecution is based on
the alleged dying declarations of the deceased
Lata. The learned Counsel for the appellant cited
the judgment in the case of Jose and others Vs.
State of Kerala, 1994 Supp.(3) SCC 1, wherein it
has been observed that it is well settled that the
conviction can be based on the dying declaration
itself provided that it is satisfactory and
reliable and if there are infirmities of such
nature warranting further assurance, then the
16 A-criappeal-185-13.odt
courts have to look for corroboration. He further
cited the judgment in the case of Smt. Meerabai
Rangnath Shriram Vs. State of Maharashtra, 2006
All.M.R.(Cri.)138, and particularly paragraph 16
wherein, paragraph 17 of the judgment in the case
of State of Maharashtra Vs. Sanjay D. Rajhans 2005
All MR (Cri) 211 (S.C.) has been reproduced, which
reads as under :-
"Thus, the version of homicide set up by
the prosecution as well as the version of
suicide set up by the accused appear to be
highly improbable and do not inspire
confidence in the mind of the Court to
believe either version. In this state of
things, when two incredible versions
confront the Court, the Court has to give
benefit of doubt to the accused and it is
not safe to sustain the conviction. The
contradictions in the two dying
declarations coupled with the high degree
of improbability of the manner of
occurrence as depicted by the prosecution
case leaves the Court with no option but
to attach little wight to these dying
declarations. It is not the plurality of
the dying declarations that adds weight to
the prosecution case, but their
qualitative worth is what matters. It has
been repeatedly pointed out that the dying
declaration should be of such nature as to
17 A-criappeal-185-13.odt
inspire full confidence of the Court in
its truthfulness and correctness (vide the
observations of Five Judge Bench of Laxman
Vs. State of Maharashtra (2002)6 SCC 710).
Inasmuch as the correctness of dying
declaration cannot be tested by cross-
examination of its maker, "great caution
must be exercised in considering the
wright to be given to this species of
evidence." When there is more than one
dying declaration genuinely recorded, they
must be tested on the touchstone of
consistency and probabilities. They must
also be tested in the light of other
evidence on record."
Keeping in mind the observations made in the above
referred judgments, the alleged dying declarations
of the deceased Lata will have to be scrutinised in
order to see, whether they are made voluntarily,
truthful and worth relying.
22. The first dying declaration Exhibit-43 has
been recorded by Mandlik (PW 3) (Exh.41), the Naib
Tahsildar. He deposes that after receiving the
letter (Exh.42) from Tophkhana Police Station, he
went to Civil Hospital, Ahmednagar and met the
18 A-criappeal-185-13.odt
Medical Officer. He gave a letter to the Medical
Officer with a request to ascertain whether the
deceased Lata, who was admitted there as an indoor
patient, was in a condition to give statement. He
states that the Medical Officer examined the
deceased Lata and endorsed on a paper that the
deceased Lata was in a condition to depose. He
himself also verified and found that the deceased
Lata was in a position to depose. Accordingly, he
recorded the dying declaration of the deceased Lata
between 5.00 p.m. and 5.30 p.m. as per her say.
After recording the dying declaration, the contents
thereof were read over by him to the deceased Lata
and she admitted the same to be correct. He again
asked the Medical Officer to examine the deceased
Lata. Accordingly, the Medical officer examined her
and endorsed on the paper at about 5.30 p.m. that
she was oriented and conscious. Since both the
thumbs of the deceased Lata had got burnt, he
obtained her left toe impression on the dying
19 A-criappeal-185-13.odt
declaration. The said dying declaration is at
Exhibit-43.
23. Dr.Bharti (PW 7) (Exh.68), who was working
as a Medical Officer in Civil Hospital, Ahmednagar,
states that on 14.03.2007 when she was on her duty,
Mandlik (PW 3), gave a letter to her asking whether
the deceased Lata was in a condition to state. She
then went to the ward concerned with Mandlik (PW 3)
and examined the deceased Lata. The deceased Lata
was oriented, conscious and was in a condition to
give statement. Accordingly, she put her remark on
the statement (Exh.43) and signed it. Thereafter,
Mandlik (PW 3) started recording statement of the
deceased Lata. After her statement was recorded,
she again examined the deceased Lata and put her
remark with her signature at (Exh.43) that she was
conscious and oriented throughout. After completion
of recording of statement (Exh.43) of the deceased
Lata, Mandlik (PW 3), obtained her left toe
20 A-criappeal-185-13.odt
impression thereon since both of her thumbs had got
burnt. Dr.Bharti (PW 7), produced the medical case
papers of the deceased Lata. She states that she
had taken entries in the said case papers about
examination of the deceased Lata and about her
condition to give statement. The said endorsements
are at Exhibit 72.
24.
In the dying declaration (Exh.43), the
deceased Lata is stated to have said that the
appellant - mother-in-law, Navnath - father-in-law,
Mahadev - brother-in-law and Asha - sister-in-law
used to illtreat and beat her on various grounds.
On 13.03.2007, all of them quarreled with her and
beat hear. On 14.03.2007 at about 9.00 a.m. when
she was doing household work inside her house, her
father-in-law poured kerosene on her person, the
brother-in-law and the mother-in-law caught hold of
her and the mother-in-law ignited a match stick and
set her on fire. She raised shouts. The neighbours
21 A-criappeal-185-13.odt
rushed to her house. At that time, her father-in-
law and other villagers extinguished the fire and
reached her in the Civil Hospital, Ahmednagar. She
stated that at the time of the incident, her
husband had gone to Pathardi. She stated that she
had no grievance whatsoever against her husband.
25.
The letter (Exh.50) as well as the dying
declaration (Exh.51) bear endorsements of the
Medical Officer under his signatures made on
15.03.2007 on 2.45 p.m. that the deceased Lata was
in a condition to give statement. P.S.I. Kadam
admits that after completion of recording of the
statement, he had not obtained remark of the
Medical Officer about the condition of the deceased
Lata.
26. The learned Counsel for the appellant
submits that recording of the dying declaration
(Exh.43) of the deceased Lata between 4.45 p.m. and
22 A-criappeal-185-13.odt
5.30 p.m. itself is doubtful. According to him, the
endorsement at page 2 of the medical case papers
(Exh.71) of the deceased Lata, made by the father
of the deceased Lata namely, Kundlik Laxman
Bichkul, itself shows that he was apprised by the
Doctor that physical condition of the deceased Lata
was critical. Furthermore, at page 6 of the case
papers (Exh.72), the father of the deceased Lata
had made another endorsement on 14.03.2007 at 4.45
p.m. under his signature that he was taking away
the deceased Lata at house due to some domestic
difficulties at his own risk. He has put the time
as 5.10 p.m. under his signature. If that be so,
there was no scope for recording the dying
declaration (Exh.43) between 4.45 p.m. and 5.30
p.m. on 14.03.2007.
27. We find substance in the above contention.
The dying declaration (Exh.43) is shown to have
been recorded between 4.45 p.m. and 5.30 p.m. on
23 A-criappeal-185-13.odt
14.03.2007, while the endorsement of the even date
made by the father of the deceased Lata at page 2
of case papers (Exh.71) clearly shows that the
Doctor had apprised him that the physical condition
of the deceased Lata was critical. In the
circumstances, it is difficult to accept that she
would have been in a fit condition to give
statement on that day. Moreover, the time of making
endorsement by the father of the deceased Lata at
page 6 of case papers (Exh.72), is overlapping with
the time of recording the dying declaration
(Exh.43). When the father of the deceased Lata was
completing the formalities of making endorsement
under his signature between 4.45 p.m. and 5.10 p.m.
on 14.03.2007 for taking away the deceased Lata to
his own house, it is difficult to accept the case
of the prosecution that at the same time, her dying
declaration (Exh.43) was being recorded by Mandlik
(PW 3).
24 A-criappeal-185-13.odt
28. At page 2 of the case papers (Exh.71),
after endorsement dated 14.03.2007 made by the
father of the deceased Lata, there is next entry
about her state of health made on 15.03.2007. Thus,
there was no entry about examination of the
deceased Lata by Dr.Bharati (PW 7), on 14.03.2007
below the endorsement made by the father of the
deceased Lata and prior to the entry dated
15.03.2007. In the circumstance, the entries taken
by Dr.Bharati (PW 7), at page 5 of the same case
papers (Exh.72), again showing entry dated
14.03.2007 below entry dated 15.03.2007 at page 2,
becomes doubtful. It exhibits that the said entries
have been taken subsequently after the entry dated
15.03.2007 was taken. The entries about the state
of health of the deceased Lata taken by Dr.Bharati
(PW 7) at page 5 of the case papers (Exh.72) should
have been in continuation of the entries dated
14.03.2007 prior to the entry dated 15.03.2007
shown at page 2. Thus, the entries which are shown
25 A-criappeal-185-13.odt
to have been taken by Dr.Bharati (PW 7) at page 5
of the case papers about fitness of the deceased
Lata to give statement between 4.45 p.m. and 5.30
on 14.03.2007 do not inspire confidence.
29. The second dying declaration (Exh.51) of
the deceased Lata has been recorded by P.S.I. Kadam
(PW 5) (Exh.49) on 15.03.2007 at 2.45 p.m. P.S.I.
Kadam (PW 5) states that he gave a letter (Exh.50)
to the Medical Officer seeking his opinion as to
the fitness of the deceased Lata to give statement.
The Medical Officer gave remark on that letter that
the deceased Lata was in a condition to give
statement. Then he went to the deceased Lata along
with the Medical Officer and recorded her statement
(Exh.51) as per her say. Thereafter, he obtained
left toe impression of the deceased Lata as both of
her thumbs were burnt. Then he read over the
contents thereof to the deceased Lata wherein she
admitted them to be correct. Then he signed it. The
26 A-criappeal-185-13.odt
Medical Officer also put his remark under his
signature that the deceased Lata was able to speak.
In the dying declaration (Exh.51), the deceased
Lata is alleged to have stated that her cousin
father-in-law Navnath, the appellant and Mahadev
used to illtreat her on some ground or other. Her
sister-in-law Asha also used to illtreat her
whenever she used to come to her maternal home.
She then stated that on 14.03.2007 at about 7.00
a.m., her husband Adinath left the house for his
job on a tempo. Then, at about 9.00 a.m., when she
was inside the house, Mahadev and the appellant
caught hold of her hands, her father-in-law -
Navnath poured kerosene from a drum on her person
and the appellant set her on fire by igniting a
match-stick. She raised shouts whereon her
neighbour Bilkis, other neighbours and father-in-
law - Navnath extinguished the fire. Her father-in-
law - Navnath and her husband Adinath reached her
to the hospital. In that statement also, she
27 A-criappeal-185-13.odt
specifically mentioned that she had no grievance
against her husband Adinath.
30. So far as the dying declaration (Exh.51)
recorded by the P.S.I. Kadam (PW 5), is concerned,
it may be noted that the case papers (Exhs.71 and
72) do not at all show any entry in the handwriting
of the Medical Officer concerned that the deceased
Lata was examined on 15.03.2007 at 2.55 p.m. and
was found fit to give statement. The Medical
Officer, who is shown to have given remark about
fitness of the deceased Lata on the letter (Exh.50)
and the dying declaration (Exh.51) on 15.03.2007 at
2.55 p.m., has not been examined by the
prosecution. In the absence of the evidence of the
Medical Officer concerned, it is difficult to hold
that the Medical Officer actually examined the
deceased Lata and found her in a fit state of mind
to give statement. Even P.S.I. Kadam (PW 5) does
not state that the Medical Officer examined the
28 A-criappeal-185-13.odt
deceased Lata and then gave remark that she was in
a condition to give statement. He does not state
that he himself examined her and got himself
satisfied about her fitness to give statement.
When the father of the deceased Lata himself was
informed on 14.03.2007 about the critical condition
of the deceased Lata, it is difficult to accept the
version of the P.S.I. Kadam (PW 5), which has
remained to be corroborated for want of examination
of the Medical Officer concerned, that she was in a
condition to give the statement when dying
declaration (Exh.51) was said to have been
recorded.
31. The prosecution is relying on the oral
dying declarations of the deceased Lata made before
her mother - Mathura (PW 1) (Exh.37) and aunt -
Dwarkabai (PW 4) (Exh.44). From the evidence of
both of these witnesses, it is clear that the
alleged oral dying declaration was given by the
29 A-criappeal-185-13.odt
deceased Lata when both of them were present.
Mathura (PW 1), states that the deceased Lata
stated that when she was working in the house, the
deceased accused Navnath caught hold of her,
Kalabai (i.e. the appellant) and Mahadev poured
kerosene on her person and set her on fire by means
of a match-stick. On the other hand, Dwarkabai (PW
4) states that the deceased Lata stated that her
father-in-law poured kerosene on her person,
mother-in-law and brother-in-law caught hold of her
and then, the mother-in-law set her on fire by a
match-stick.
32. The statements of Mathura (PW 1) and
Dwarkabai (PW 4) about the roles played by the
deceased accused Navnath and the appellant, as to
who out of them caught hold and who poured kerosene
on the person of the deceased Lata, are not
consistent. When the deceased Lata disclosed the
cause of her injuries in the presence of both these
30 A-criappeal-185-13.odt
witnesses at one and the same time, their evidence
should have been consistent as to the roles played
by the culprits. Mathura (PW 1) states that the
father-in-law had caught hold the deceased Lata,
while Dwarkabai (PW 4), attributes that role to the
mother-in-law and the brother-in-law of the
deceased. Mathura (PW 1), states that the appellant
poured kerosene on the person of the deceased Lata,
while Dwarkabai (PW 4) states that Navnath (i.e.
father-in-law) poured kerosene on her person. There
is material inconsistency in the evidence of these
witnesses as to the roles attributed to the
appellant and the other accused persons. Therefore,
it becomes doubtful whether the deceased Lata
really gave any dying declaration before these
witnesses. This doubt gets strengthened through the
conduct of these witnesses. It has come in the
cross-examination of Mathura (PW 1), that the
deceased Lata disclosed before her about the cause
of her injuries at about 1.00 p.m. on the day of
31 A-criappeal-185-13.odt
the incident and that her husband was also present
at that time. However, she did not feel it
necessary to lodge a report against the culprits
immediately after knowingly the cause of the
injuries of the deceased Lata. She further states
that the police visited the hospital on 14.03.2007.
However, neither her husband nor herself made any
grievance before the police on the basis of the
statement made by the deceased Lata as to the cause
of her injuries. She states that her statement was
recorded by the police on the next day of the
incident.
33. It has come in the cross-examination of
Dwarkabai (PW 4) that when the deceased Lata
narrated about the incident, her parents were
present there. She was in the hospital for about
one hour on that day. She did not advise the father
of the deceased Lata to lodge report to the police.
The police recorded her statement on the next day
32 A-criappeal-185-13.odt
of the incident. She specifically states that she
had not stated about the oral dying declaration of
the deceased Lata to anybody till recording of her
statement by the police.
34. The conduct of the above-named two
witnesses in keeping silence, despite the visit of
the police to the hospital on 14.03.2007, and
disclosing about what the deceased Lata had
narrated before them to the police on the next day
only, creates doubt about making of any statement
by the deceased Lata before them on 14.03.2007 as
to the cause of injuries sustained by her as stated
by them.
35. As stated above, recording of the dying
declarations (Exhs. 42 and 51) by Mandlik (PW 3)
and P.S.I. Kadam (PW 5) respectively, itself is
doubtful. The evidence of Mathura (PW 1) and
Dwarkabai (PW 4) that the deceased Lata narrated
before them about the cause of her injuries
33 A-criappeal-185-13.odt
involving the appellant in the incident in
question, does not inspire any confidence. The
written as well as the oral dying declarations
cannot be said to be consistent. In the
circumstances, in the absence of any independent
corroboration, it would not be desirable to rely on
the said dying declarations, as held in the case of
Meerabai Rangnath Shriram (supra).
36. As seen from the statement of the deceased
Lata, she had no grievance against her husband
Adinath. Her husband Adinath and the cousin father-
in-law - Navnath took her to the Civil Hospital at
Ahmednagar after the incident. The husband of the
deceased Lata would have been the proper person to
whom, in all probabilities, the deceased Lata would
have disclosed the facts leading her to sustain
burn injuries. Adinath would have been the best
witness to throw light on the relations between the
deceased Lata on one hand and the appellant and her
34 A-criappeal-185-13.odt
family members on the other. Had the appellant and
her family members been ill-treating the deceased
Lata, she certainly would have disclosed it to her
husband Adinath, against whom she had no grievance
at all. However, the prosecution has not examined
Adinath and suppressed his evidence without
assigning any reason. Therefore, adverse inference
will have to be drawn and accordingly drawn, that
had he been examined, he would not have supported
the case of the prosecution.
37. Indisputably, the deceased accused Navnath
extinguished the fire from the person of the
deceased Lata. This fact itself indicates that he
had no intention to kill her. If Navnath and the
appellant were actually involved in the incident in
question, as alleged by the prosecution, they would
have certainly tried to make their escape good
immediately after the incident and would not have
shown the courage to stay at their house, which was
just near the house of the deceased Lata.
35 A-criappeal-185-13.odt
38. Mathura (PW 1) who is the mother of the
deceased Lata, admits in her evidence that when she
reached near the deceased Lata in the hospital, her
in-laws i.e. the deceased Navnath and the appellant
were present there. Page No.1 of the medical case
papers (Exh.71) contains the name of the appellant
as an immediate relative of the deceased Lata. If
the appellant really had tried to set the deceased
Lata on fire, she would not have accompanied her
while going to the Civil Hospital at Ahmednagar and
stayed with her for her treatment.
39. As seen from the evidence of Dwarkabai (PW
4) the deceased accused Navnath was the uncle of
Adinath and that the parents of Adinath had expired
much prior to the marriage of the deceased Lta with
Adinath. In paragraph 4 of her cross-examination,
Dwarkabai (PW 4) admits that Adinath was having a
separate room in a separate area since before his
36 A-criappeal-185-13.odt
marriage. She admits that Adinath and the deceased
Lata were staying in that room, while the deceased
accused Navnath and the appellant were residing in
the room located behind it. It is, thus, clear that
the deceased Lata and Adinath were residing
separate. The appellant and the deceased accused
Navnath were not real in-laws of the deceased Lata.
In the circumstances, the story put forth by the
prosecution that the appellant and her family
members used to ill-treat and beat the deceased
Lata on some ground or other and in continuation of
that ill-treatment, they set her on fire on the day
of the incident, does not stand to reason. There
was absolutely no reason for the appellant and her
family members to interfere in the family affairs
of the deceased Lata and to beat or illtreat her.
Thus, the motive to kill the deceased Lata on the
part of the appellant and her family members is
totally absent.
37 A-criappeal-185-13.odt
40. Though one Bilkis is stated to have rushed
to the house of the deceased Lata immediately on
hearing her shouts, the said Bilkis has not been
examined by the prosecution without assigning any
reason. She would have been the best witness to
state about the first reaction of the deceased
Lata. Had the deceased Lata been set on fire by the
appellant and her family members, she would have
immediately disclosed the said fact to Bilkis or
any other person who rushed to the spot of the
incident immediately after the incident. The
prosecution has not examined any independent
witness to prove as to what was the first version
of the deceased Lata after the incident.
41. The learned Counsel for the appellant
cited the judgments in the cases of (i) Chandan
Debnath Vs. State of Assam, 2015(3)GauLJ 494 and
(ii) State of Rajasthan Vs. Hakam Singh, AIR 2012
SC (Supp) 122, wherein it is observed that while
38 A-criappeal-185-13.odt
the accused himself takes the deceased to the
hospital or makes arrangement for medical treatment
of the deceased, that fact indicates that he had no
intention to commit any crime. In the present case
also, the husband of the the appellant i.e. the
deceased accused Navnath, tried to extinguish fire
on the person of the deceased Lata. The appellant
and the deceased accused Navnath were with the
deceased Lata while taking her to the Civil
Hospital, Ahmednagar and further, they were with
her when she was being extended medical treatment.
The appellant and the deceased accused Navnath are
not the real in-laws of the deceased Lata. The
above-mentioned facts clearly indicate that the
appellant had no intention to kill the deceased
Lata.
42. The learned Counsel for the appellant
pointed to the evidence of Dr.Sardesai (PW 8)
(Exh.74), who conducted post mortem of the body of
39 A-criappeal-185-13.odt
the deceased Lata on 21.03.2007 between 12.30 p.m.
and 1.30. p.m. and prepared a memorandum of the
post mortem (Exh.75). He found the following
external injuries on the body of the deceased Lata,
which have been noted in Clause 17 of the
memorandum (Exh.75) :-
Right upper limb :- 9%
Left upper limb
Chest
RLL
:- 4.5%
:- 18%
:- 2.5%
LLL :- 2.5%
Face :- 9%
------
TOTAL BURNS :- 45.5%
------
He states that the cause of death of the deceased
Lata was septicemia due to 45.50% deep burns. In
the cross-examination, he states that there was
non-uniformity in the injuries mentioned in Clause
17 of the memorandum (Exh.75) of the post mortem.
He accepts that the nature, extent and non-
uniformity of the burns of the deceased are
suggestive of accidental death. He admits that the
40 A-criappeal-185-13.odt
burn injuries are possible in accidental, suicidal
or homicidal circumstances. On the strength of this
evidence, the learned Counsel for the appellant
submits that the possibility of sustaining injuries
by the deceased Lata accidentally, cannot be ruled
out. He states that there were no injuries on the
back of the deceased Lata. He submits that had the
kerosene been poured on her person by somebody
else, it would have gone even on the back of the
deceased Lata. According to him, these facts
strengthen the possibility of sustaining accidental
burn injuries by the deceased Lata.
43. Considering the injuries sustained by the
deceased Lata, which are almost on the front
portion of her body and not on her back and the
evidence of Dr.Sardesai (PW 8), we are of the
opinion that the alternative possibility suggested
by the learned Counsel for the appellant about
cause of the injuries of the deceased Lata i.e.
accidental, cannot be ruled out.
41 A-criappeal-185-13.odt
44. As stated above, the evidence produced by
the prosecution on the point of giving dying
declarations by the deceased Lata involving the
appellant in the incident in question, does not
inspire confidence. There is no independent
corroboration to the contents of the dying
declarations involving the appellant in that
incident. The prosecution did not produce any
independent witness, though available. The
prosecution did not examine even the husband of the
deceased Lata against whom she had no grievance at
all and who would have been the best witness to
throw light on the relations between the deceased
Lata on one hand and the appellant on the other.
The medical evidence suggests possibility of
sustaining burns by the deceased Lata accidentally.
No motive has been established on the part of the
appellant, which would have prompted her to set
the deceased Lata on fire. In the circumstances,
42 A-criappeal-185-13.odt
it cannot be said that the prosecution established
beyond reasonable doubt guilt of the appellant for
the offence of committing murder of the deceased
Lata. The learned trial Judge did not appreciate
the facts of the case as well as the evidence on
record in their proper perspective and has wrongly
held the appellant guilty of the offence punishable
under Section 302 of the Indian Penal Code.
45. For the reasons recorded above, we are not
inclined to uphold the findings recorded by the
learned trial Judge against the appellant. They are
liable to be set aside. The Appeal is liable to be
allowed. In the result, we pass the following
order:-
(i) The Appeal is allowed.
(ii) The appellant - Kalabai w/o. Eknath Navle
is acquitted of the offence punishable under
Section 302 of the Indian Penal Code.
43 A-criappeal-185-13.odt
(iii) The appellant be set at liberty, if not
required in any other case.
(iv) The appellant shall furnish before the
trial Court personal bond of Rs.10,000/- (Rs.Ten
Thousand) with a surety in the like amount vide
Section 437-A of the Code of Criminal Procedure.
(v) The fine amount, if deposited by the
appellant, be refunded to her.
[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]
kbp
