Bombay High Court
State Of Maharashtra vs Vishnu Ziparu Aagavane on 4 August, 2017
Bench: S.S. Shinde
(1) crap223.99
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.223 OF 1999
The State of Maharashtra .. Appellant
Versus
Vishnu Ziparu Aagavane
Age-42 years,
R/o. Lane No.1, Macchibazar,
Machi wada, Moglai, Dhule .. Respondent
Mr.P.G. Borade, APP for the appellant
Mr.S.V. Dixit, Advocate for sole respondent
WITH
CRIMINAL REVISION APPLICATION NO.99 OF 1999
Kondaji Mahadu Jadhav .. Applicant
Age.69 years, Occ. Retired Police Patil,
R/o. Village Dahigaon, Tq. Kopargaon,
Dist. Ahmednagar.
Versus
1. The State of Maharashtra .. Respondents
2. Vishnu Ziparu Aagavane
Age. 43 years, R/o. Lane No.1,
Machli-Bazar, Mochi-Wada,
Moglai, Dhule.
Mr.Chaitanya Deshpande, Advocate for the applicant
Mr.P.G. Borade, APP for the respondent/State
Mr.S.V. Dixit, Advocate for respondent No.2
::: Uploaded on - 08/08/2017 ::: Downloaded on - 10/08/2017 01:59:04 :::
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CORAM :S.S. SHINDE &
S.M. GAVHANE,JJ.
RESERVED ON :08.06.2017
PRONOUNCED ON :04.08.2017
J U D G M E N T [PER: S.M. GAVHANE, J.]:-
. This appeal is directed against the judgment and
order dated 29.01.1999 in Sessions case No.17/1998 passed
by Additional Sessions Judge, Dhule, thereby acquitting
the respondent/accused of the offences punishable under
Section 302 and 498-A of the Indian Penal Code [for short
"the IPC"]. The father of the deceased - Shobhabai has
filed Criminal Revision Application No.99 of 1999 against
the above judgment and order of acquittal of the accused.
Therefore, both these proceedings are being disposed of
by this judgment.
2. The prosecution case as it appears from the
police papers, is as under:-
A] The deceased Shobhabai was married to accused in
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the year 1983. At the time of marriage the accused was in
service in Maharashtra State Electricity Board, Dhule.
Thereafter, accused was transferred to Parola, Dist.
Jalgaon and the deceased was also residing with him. The
deceased has daughters Sheetal (PW-4), Snehal and one
son. Nirmala Chandrakant Salunke (PW-6) is the sister of
the deceased and she resides at Dhule.
B] It is alleged that the deceased used to visit
house of Nirmala as well as her parents house at Dhule
from Parola and she was complaining to her parents and
Nirmala that the accused always used to come under
influence of liquor, used to suspect about her chastity
and used to beat her. So also, the accused was not
allowing her to wear good clothes and used to beat her
and ill-treat her. Because of the same Sheetal-daughter
of the deceased since her childhood was residing with
Nirmala. Moreover, Snehal - younger daughter of the
deceased was residing at her maternal uncle's house and
only the son of the deceased, was residing with her at
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Parola. Whenever the deceased used to visit Dhule to see
Sheetal, she was complaining against the accused. The
maternal uncle and father of the deceased convinced the
accused not to ill-treat the deceased, but there was no
improvement in his behavior.
C] Thereafter, the accused was transferred to
Nawapur from Parola just few days before the incident.
Then the accused and the deceased had shifted their
luggage and household articles to Dhule and they started
residing in Mogal area of Dhule and about 8 days prior to
the incident Sheetal the elder daughter of the deceased
started residing with the deceased and accused at Dhule.
The accused used to go to his place of service at Nawapur
and used to return every Saturday and Sunday to Dhule. It
is alleged that the accused used to return to the house
under influence of liquor and used to ill-treat and beat
the deceased as he was suspecting her chastity.
D] The prosecution has further alleged that on
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28.11.1997 the accused returned to Dhule from Nawapur
under influence of liquor and he abused and beat the
deceased. He left the house and again returned under
influence of liquor and abused and beat the deceased in
the night. On the next day i.e. on 29.11.1997 in the
morning Sheetal-deceased's daughter went to school early
in the morning. At that time Sheetal had noticed that her
father was under influence of liquor. It is alleged that
at about 07.30 to 08.00 am in the house accused had
severely beaten the deceased and poured kerosene on her
person and set her on fire, by lighting the paper on gas
stove. As a result she sustained 99% burn injuries. The
neighbourers put off the fire. Immediately at about
09.00 a.m. after the incident the deceased was admitted
in the Civil Hospital, Dhule in the casualty ward by
Chandrakant Salunke - husband of Nirmala.
E] Further it is the case of the prosecution that
after the deceased was admitted in the Civil Hospital,
Dhule on 29.11.1997, Shrawan Bagul (PW-3) Executive
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Magistrate, Dhule was called in the Civil Hopsital, Dhule
by giving him memo at about 09.30 am to record the
statement of the deceased. Accordingly, he alongwith
police went to casualty ward in the civil Hospital, Dhule
within two minutes. He enquired with the In-charge Dr.
Dagadu Pawar (PW-5) about the condition of the deceased
and told him that he has to record the statement/dying
declaration of the deceased (Patient). He requested Dr.
Pawar to examine the patient and to tell him whether the
patient is in a position to give statement. Thereafter,
at about 09.45 am. Dr.Pawar examined the patient
Shobhabai and found that she was fully conscious and then
he put his endorsement on the statement in the beginning.
Then PW-3-Executive Magistrate recorded dying declaration
of deceased regarding involvement of the accused in
pouring kerosene on her person and setting her on fire on
29.11.1997 at about 7.30 to 08.00 a.m. and about
harassment by the accused to her on suspecting her while
nobody else was in the house and that he ran away.
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F] The carbon copy of the above said dying
declaration (Exh.18) of the deceased was brought in the
Police Station, Dhule by writer Head Constable on the
same day i.e. on 29.11.1997. Treating the said carbon
copy of the dying declaration as First Information Report
(FIR), Sudhakar Patil (PW-7) the Police Head Constable
(under suspension), registered crime No.211 of 1997 for
the offence punishable under Section 307 of the IPC
against the accused as per Exh.26. Then he handed over
the papers for further investigation to Assistant Police
Inspector - Mohan Zine (PW-8) attached to Dhule City
Police Station, who commenced the investigation in the
crime, after taking necessary entry in the station diary.
G] During the investigation API Zine, (PW-8) on the
same day i.e. on 29.11.1997 prepared panchanama (Exh.6)
between 12.30 to 13.00 p.m. about the condition of
accused who was in police station in presence of Panchas
Pandurang Gagle and Subhash Karnik. Then accused was
sent for medical examination in the Civil Hospital, Dhule
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and Dr. Prakash Patil (PW-2) had examined the accused and
issued certificate (Exh.15). API Zine visited the spot of
the incident i.e. house of deceased and prepared
Panchanama (Exh.9) in presence of panchas Raju Chaudhary
and Ejaj Ahmed Shaikh Ibrahim and sezied the white colour
plastic can containing kerosene and half burnt sari found
in front of room of the house under the same panchanama.
So also, he got prepared map of spot of incident from
Circle Inspector, City Division, Dhule as per Exh.11.
H] While the deceased was under treatment in the
Civil Hospital, she scummed to injuries on 29.11.1997 at
about 01.30 p.m. ASI Saudane prepared inquest panchanama
(Exh.7) in presence of two panchas Subhash Patait and
Smt. Kalabai Salunkhe. Thereafter postmortem was
conducted by Dr.Ajit Patil (PW-1). He noticed 99% burn
injuries on the person of the deceased. Accordingly he
issued postmortem notes (Exh.13) under his signature and
signature of Dr.R.G. Bhusale. According to him probable
cause of death was due to 99% thermal burns. Thereafter,
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as death of the deceased was caused offence under Section
302 of the IPC came to be added on 29.11.1997 in the
crime already registered against accused. On that day,
API Zine arrested the accused. Thereafter, he recorded
statements of some witnesses and mainly on 29.11.1997 he
recorded the statements of Sheetal (PW-4) and Nirmala
(PW-6) to whom the deceased made oral dying declaration
that the accused poured kerosene on her person and set
her on fire. API Zine sent the seized muddemal i.e.
burnt pieces of Sari and kerosene can to the Chemical
Analyzer for analysis and report.
I] After completion of the investigation Shri Zine
submitted the charge-sheet in the Court of Chief Judicial
Magistrate, Dhule, who then committed the case to the
Sessions Court, Dhule as the offence under section 302 of
the IPC was exclusively triable by the Court of Sessions.
J] The charge under Section 302 and 498-A of the
IPC was framed against the accused by the learned
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Additional Sessions Judge, Dhule to which the accused
pleased not guilty and claimed to be tried. His defence
is denial. According to him on the say of Nirmala (PW-6)
and her husband Chandrakant Salunke false case is filed
against him. In his written statement filed at the time
of statement under section 313 of Code of Criminal
Procedure, he stated that the deceased has given false
statement before the Executive Magistrate on the say of
Nirmala, his sister-in-law, and her husband Chandrakant.
His daughter Sheetal gave statement against him on
tutoring her by her maternal aunt Nirmala and maternal
aunt's husband - Chandrakant, as since five years of her
age, she resides with them. He never consumed liquor and
beat and illtreated his wife - the deceased. No witness
in defence is examined by the accused.
3. To prove the charge against the accused, the
prosecution has examined in all eight witnesses and it
has relied upon dying declaration (Exh.18), oral dying
declaration made to PWs.4 and 6 and panchanamas referred
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to above. On considering the evidence adduced by the
prosecution the trial Court held that the death of the
deceased is homicidal and that the prosecution has failed
to prove the offences under Section 302 and 498-A of the
IPC and acquitted the accused by the impugned judgment
and order. Therefore, this appeal against the acquittal
by the appellant/State.
4. We have heard learned APP appearing for the
appellant/State and learned advocate appearing for the
respondent/accused. Learned APP submitted that the trial
court has answered point No.1 about homicidal death of
the deceased in the affirmative. However, although there
is sufficient evidence, it has answered point No.2 and 3
in the negative. It has failed to appreciate the evidence
of dying declaration recorded by the Executive Magistrate
(PW-3). So also, it has failed to appreciate the oral
dying declaration made by the deceased to PWs. 4 and 6
and it has unnecessarily doubted genuineness of dying
declarations and held that dying declarations are not
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acceptable. It is submitted that the view taken by the
trial Court is not possible view and it ought to have
held that the prosecution has proved the offence against
the accused with which he was charged and ought to have
convicted him. Accordingly learned APP has prayed to
allow the appeal.
5. Learned advocate appearing for the
respondent/accused on the other hand supported the
impugned judgment and order. He submits that the trial
Court has rightly disbelieved the evidence in the form of
written and oral dying declarations and held that the
prosecution has failed to prove the offences alleged
against the accused. The learned advocate submits that
the view taken by the trial Court was a possible view and
there is absolutely no reason to interfere with the view
taken by the trial Court as submitted by the learned APP.
Accordingly learned advocate has prayed to dismiss the
appeal. He submits that this is an appeal against
acquittal and unless this Court finds that there is error
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committed by the trial Court in recording the findings
the order of acquittal cannot be reversed.
6. To support his submissions the learned advocate
for the respondent has relied upon the ratio laid down by
this Court in case of State of Maharashtra Vs Nanasaheb
Bhikaji Tambe (1992 Mh.L.J. 539), wherein it has been
held as under:-
"An acquitted accused should not be put in peril
of conviction save where substantial and
compelling ground exists for such a course. The
presumption of innocence embodied in our
criminal jurisprudence is reinforced by an order
of acquittal. Such an order should not be
appealed against in the following cases:
(i) Where the view taken by the trial Court is
reasonable and proper (1977) 2 SCC 99 and 124
Rel.
(ii) Where there are valid reasons and
consistencies on which the trial Court has based
an acquittal. (1976) SCC 210 Rel.
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(iii) Where the view taken by the trial Court is
both reasonable and possible, even though a
different view on facts is permissible. (1076) 3
SCC 465 & 564 Rel.
(iv) Where it is not possible to offset all the
reasons given by the trial Court for recording a
verdict of acquittal and it is merely argued
that one or some of them are debatable. (1976) 1
SCC 614 Rel.
(v) When after holding one or more accused
individually responsible for their acts, there
being no justification for assailing the
acquittal of the co-accused.
(vi) Where there is no evidence connecting the
accused with the offence and the reasons given
by the trial Court in support of an acquittal
are sufficiently compelling and an appeal
proceeds on the ground that the serious incident
has taken place and an impression should not be
created in the public mind that nobody has been
punished. (1970) 3 SCC 678 Rel.
(vii) Where, undoubtedly, another view is
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possible, but where it is impossible to indicate
any serious infirmity in the trial Court's
appreciation of evidence. (1976) 3 SCC 465 Rel.
(viii) Where a judgment of the trial Court is a
generally well-considered one and at least two
views are possible, an appeal would be
unjustified. (1975) 4 SCC 186 Rel.
(ix) Where the important or integral fact, such
as identity of the accused, was not fully
established (1976) 4 SCC 405 Rel.
A mechanical appeal against an order of
acquittal would not be permissible.
The occasions when an appeal against an order of
acquittal would be permissible are as under:-
(i) Where the view of the trial Court was
palpably wrong and all the reasons for the
acquittal given by it could be dispelled. (1976)
2 SCC 206 Rel.
(ii) Where the trial Court's verdict is both
factually and legally erroneous. (1976) 4 SCC
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590 Rel.
(iii) Where the trial Court has simulated "mere
frivolities" as reasons for rejecting the
Prosecution case. (1976) 4 SCC 351 Rel.
(iv) Where the trial Court had rejected the
evidence on flimsy grounds and on the ground of
trifling contradictions. (1976) 4 SCC 311 Rel.
(v) In case of patent infirmities in the trial
Court's approach of the case and its
appreciation of evidence. (1975) 3 SCC 742 Rel.
(vi) Where the trial Court rejected the
testimony of the eye-witnesses without at all
considering the evidence in its intrinsic merit,
but on the basis of sweeping observations and
inherent improbabilities. (1975) 4 SCC 257 Rel.
(vii) Where the trial Court has overlooked
several important aspects of the case, or in a
situation where the law has been misapplied.
(1976) 2 SCC 191 Rel."
7. Since the appeal is against the acquittal before
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examining the evidence adduced by the prosecution it is
necessary to see whether the acquittal of the accused is
proper and the view taken by the trial Court was
reasonable and probable or otherwise it is necessary to
bear in mind the principle in this respect laid down by
the Apex Court in the case of Murlidhar alias Gidda and
another Vs State of Karnataka, 2014(4)Mh.L.J.(Cri)353
wherein in para No.12 the Apex Court has held thus:
"12. The approach of the appellate Court in
the appeal against acquittal has been dealt with
by this Court in Tulshiram Kanu
Vs State, AIR
1954 SC 1, Madan Mohan Singh Vs State of U.P.,
AIR 1954 SC 637, Atley Vs State of U.P., AIR
1955 SC 807, Aher Raja Khima Vs State of
Saurashtra, AIR 1956 SC 217, Balbir Singh Vs
State of Punjab, AIR 1957 SC 216, M.G. Agrawal
Vs State of Maharashtra, AIR 1963 SC 200, Noor
Khan Vs State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs State of Bihar, (1970) 2 SCC
450, Shivaji Sahabrao Bobade Vs State of
Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs
State of Bihar, (1973) 2 SCC 424, Khem Karan Vs
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State of U.P., (1974) 4 SCC 603, Bisan Singh Vs
State of Punjab, (1974) 3 SCC 288, Umedbhai
Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228,
K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC
355, Tota Singh Vs State of Punjab, (1987) 2 SCC
529, Ram Kumar Vs State of Haryana, 1995 Supp
(1) SCC 248, Madan Lal Vs. State of J & K,
(1997) 7 SCC 677, Sambasivan Vs State of Kerala,
(1998) 5 SCC 412, Bhagwan Singh Vs State of
M.P., (2002) 4 SCC 85, Harijana Thirupala Vs
Public Prosecutor, High Court of A.P., (2002) 6
SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003)
1 SCC 1, State of Karnataka Vs K. Gopalkrishna,
(2005) 9 SCC 291,
State of Goa Vs Sanjay
Thakran, (2007) 3 SCC 755 and Chandrappa,
Chandrappa Vs State of Karnataka, (2007) 4 SCC
415. It is not necessary to deal with these
cases individually. Suffice it to say that this
Court has consistently held that in dealing with
appeals against acquittal, the appellate Court
must bear in mind the following : (i) There is
presumption of innocence in favour of an accused
person and such presumption is strengthened by
the order of acquittal passed in his favour by
the trial Court, (ii) The accused person is
entitled to the benefit of reasonable doubt when
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it deals with the merit of the appeal against
acquittal, (iii) Though, the power of the
appellate Court in considering the appeals
against acquittal are as extensive as its powers
in appeals against convictions but the appellate
Court is generally loath in disturbing the
findings of fact recorded by the trial Court. It
is so because the trial Court had an advantage
of seeing the demeanor of the witnesses. If the
trial Court takes a reasonable view of the facts
of the case, interference by the appellate Court
with the judgment of acquittal is not justified.
Unless, the conclusions reached by the trial
Court are palpably wrong or based on erroneous
view of the law or if such conclusions are
allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of
the appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re-
appreciation and re-evaluation of the evidence
is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
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interference by the appellate Court in the
judgment of the trial Court."
8. We have carefully considered the submissions
made by the learned APP appearing for the appellant/State
and learned Advocate appearing for the respondent and
with their able assistance we have perused the evidence
adduced by the prosecution. So also, we have gone through
the impugned judgment and order. Bearing in mind the
principle laid down in the cases of State of Maharashtra
cited (Supra) and Murlidhar alias Gidda cited (supra) we
shall proceed to consider whether the view taken by the
trial Court acquitting the accused is possible or
otherwise?
9. Case of the prosecution is that death of the
deceased is homicidal. To prove the same it has relied
upon the evidence of Dr. Ajit Patil (PW-1) and postmortem
notes (Exh.13). In his evidence Dr. Ajit Patil has stated
that on 29.11.1997 a dead body of the deceased was
brought by the police constable in the hospital and he
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found external superficial deep burn injuries of 99% on
the person of the deceased as mentioned in column No. 17
of PM notes and they were ante mortem. Accordingly, he
issued the postmortem notes (Exh.13) which bears his
signature and signature of Dr. Bhusale. According to him
probable cause of death was due to 99% thermal burns. In
the cross-examination his evidence regarding sustaining
99% burns to the deceased and cause of death has not been
challenged. There is no suggestion to him or other
prosecution witnesses that the deceased sustained burns
accidentally or that the deceased committed suicide.
Even in his statement under Section 313 of the Code of
Criminal Procedure accused has not stated that the
deceased sustained burns accidentally. Postmortem notes
(Exh.13) also show that probable cause of death of the
deceased was shock due to 99% thermal burns. For the
above reasons on the basis of above evidence we hold that
the prosecution has proved that the death of the deceased
was homicidal. The trial Court on properly appreciating
the evidence held that death of the deceased was
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homicidal. We find no fault with the said finding of the
trial Court.
10. Now it is to be seen whether the accused is
responsible for death of the deceased. Admittedly there
is no direct evidence to show the same. To connect the
accused with the death of deceased the prosecution has
mainly relied upon the evidence of following categories.
i. The evidence of Sheetal (PW-4) and
Nirmala (PW-6) respectively daughter and sister
of the deceased on cruelty allegedly caused by
the accused to the deceased i.e. motive to
commit murder.
ii. Written dying declaration (Exh.18)
dated 29.11.1997 recorded by the Shrawan Bagul,
Executive Magistrate (PW-3) in presence of Dr.
Pawar (PW-5).
iii. Oral dying declaration made by the
deceased to Sheetal (PW-4) and Nirmala (PW-6).
iv. Certificate Exh.15 issued by Dr. Patil
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(PW-2) regarding condition of the accused.
11. Now we shall consider the evidence of PWs.4 and
6 on cruelty to the deceased. Sheetal (PW-4) daughter of
the deceased stated that prior to the incident the
accused her father was serving as Clerk in M.S.E.B. at
Parola. He was transferred to Nawapur from Parola prior
to one month. However, her parents were residing in
Moglai, Dhule. While her father was serving at Parola she
(witness) was staying at Dhule with her maternal Aunt.
While the accused was residing at Parola she used to go
to Parola to meet her parents in Diwali vacation. In her
presence accused-her father used to beat her mother. He
was suspecting chastity of her mother. He was addicted
to liquor. Her father used to harass her mother on
consuming the liquor. Therefore, on Monday in the morning
while the accused was sleeping she, her mother the
deceased, her brother and sister went to her maternal
uncle's house at Dahegaon, Tq. Kopargaon, Dist.
Ahmednagar. At that time her mother told the grand
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parents that her husband is harassing her on consuming
liquor. Her grand parents convinced her mother.
Thereafter, she (witness) came to Dhule with her maternal
aunt and her mother stayed there. Thereafter, accused
came to her and told her to call her mother from the
house of her maternal uncle and to bring the household
articles at Dhule because he was transferred. Thereafter,
her mother was shifted to Dhule and started residing with
her (witness's) grand father. Further, she stated that
she resided with her parents in Moglai, Dhule for 8 to 15
days. During that period also her father the accused used
to assault her mother. She has further stated that one
day prior to the incident i.e. on 28.11.1997 her father
had come to house at 07.00 am from Nawapur consuming
liquor and assaulted her mother. Thereafter, he went out
and again came to house consuming liquor and again
assaulted her mother. Thereafter, she went to school at
about 11.00 am. She returned to home from school at 5.00
to 05.30 pm. At that time her father was at home and he
assaulted her mother and brother. Thereafter, they went
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to sleep. In the morning she woke up early. At that time
her father had consumed liquor and there was quarrel
between her mother and father. In the morning she went to
school. Thereafter one Pinki came to school at about
08.30 am to call her and she was informed that her mother
the deceased is serious and that she should go to her
house.
12. In the cross-examination PW-4 has stated that
she is elder daughter of the accused. Since her childhood
she is residing with her maternal aunt Nirmala (PW-6).
Her sister Sonali is residing at Dahegaon with her
maternal uncle. Even after the incident she has been
residing with maternal aunt at Dhule. The deceased her
mother and she (witness) used to tell her maternal aunt
and maternal aunt's husband Chandrakant about dispute of
her parents and they were saying her father accused not
to quarrel and in their presence accused used to say that
he would not repeat the same in future. But, there was no
change in his behavior. So also, she stated that
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thereafter she and her mother used to go to her maternal
aunt and used to complaint that there is no change in the
behavior of the accused and that he used to harass
deceased. She admitted that as the accused was not paying
heed to the say of her maternal aunt and maternal aunt's
husband they had stopped convincing him. She stated that
after Diwali her father/accused had gone to Navapur for
service and he used to come to Dhule on every Saturday
and Sunday. But, if he consumed the liquor then at any
time he used to come to Dhule. Her evidence that the
accused used to assault the deceased on consuming liquor
while he was residing at Parola on suspecting her
chastity, that on 28.11.1997 on the earlier day of the
incident the accused had come to Dhule from Nawapur on
consuming liquor and assaulted deceased and her son has
gone unchallenged in the course of her cross-examination
by the accused.
13. As referred earlier it has come in the evidence
of PW-4 that her mother had disclosed about ill-treatment
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to her by the accused, to her brother i.e. maternal uncle
of this witness from Dahegaon. Admittedly brother of the
deceased has not been examined by the prosecution. So
also, it has come in the evidence of PW-4 that the
deceased used to disclose about alleged cruelty to her by
the accused to her parents i.e. grand parents of PW-4 and
they have convinced the deceased. But they have also not
been examined by the prosecution.
14. It is clear from the evidence of PW-4 that since
her childhood she has been residing with her aunt Nirmala
(PW-6) and she resided with her parents only for 8 to 15
days when they shifted to Dhule from Parola. Therefore,
when she has not specifically stated about the day and
date when her father accused assaulted her mother at
Parola on suspecting her chastity, when the deceased was
married to accused in the 1983 prior to 14 years of the
incident, the deceased has three children from the
accused and she never made a complaint to the police
prior to the incident in respect of the alleged cruelty
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to her by the accused, before accepting or rejecting the
evidence of PW-4 about cruelty to her mother the deceased
by the accused other evidence on record is to be
considered.
15. The next evidence on cruelty is of Nirmala(PW-6)
who is elder sister of the deceased. She stated that the
deceased was married to accused in 1983 and at that time
the accused was serving in MSEB, Dhule. After one and
half year of the marriage he was transferred to Parola,
Dist. Jalgaon. He was staying there with the deceased.
The deceased used to visit her house (house of the
witness at Dhule) from Parola. At that time the deceased
was complaining that her husband used to beat her and
also suspect her character and not allowing her to wear
good clothes. She stated that the deceased has begotten
two daughters and one son from the wedlock with accused.
And the elder daughter is Sheetal (PW-4). She has further
stated that since 1989 Sheetal was residing with her for
education purpose. Further she deposed that the deceased
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used to visit her house to meet her daughter frequently
and at that time she was complaining that her husband the
accused used to beat her under influence of liquor and
also used to suspect about her character. She and her
relatives tried to convince the accused not to give ill-
treatment to the deceased, but there was no improvement
in his behavior. Prior to one and half year of death of
the deceased the luggage and household articles of the
deceased were shifted to Dhule from Parola. The accused
used to go on his duty from Dhule to Parola. The accused
remained absent. Therefore, the department issued him
notice. Then again deceased went to Parola with some
luggage and stayed at Parola with accused. Then accused
was transferred to Nawapur from Parola. Then they had
shifted their luggage from Parola to Dhule.
16. In the cross-examination PW-6 stated that since
childhood Sheetal (PW-4) was with her and prior to 8 to
10 days she had been to her parents house. After the
incident Sheetal is residing with her. Two daughters and
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one son of the deceased are staying with her and with her
parents. She stated that she has not stated in her
statement before police that after 1989 Sheetal (PW-4)
was residing with her and deceased Shobhabai used to come
to her. So also, she stated that deceased never
complained to her that her husband was assaulting her
under influence of liquor. Thus, there is material
omission in the statement before police of PW-6 in
respect of above facts and said amounts to improvement
while deposing before the Court. Another aspect to be
noted is that this witness has no direct knowledge of the
alleged cruelty to the deceased by the accused and
whatever this witness has deposed about cruelty to the
deceased by the accused is hear say in nature. Even this
witness has also not stated particular date and time when
the deceased had told her that the accused was harassing
her on suspecting her chastity. In fact, she should have
specifically stated in that respect. Thus, the evidence
of this witness regarding cruelty to the deceased by the
accused being vague in nature is not believable and is of
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no help to the prosecution to infer that the accused
caused cruelty to the deceased, within the meaning of
cruelty defined under section 498-A of the IPC.
Therefore, the uncorroborated evidence of PW-4 on cruelty
to deceased is also not believable.
17. Before appreciating the evidence in the form of
written and oral dying declarations, it is necessary to
refer principles regarding appreciation of evidence in
the form of dying declarations laid down by the Apex
Court and this Court, in the following decisions.
" (a) In the case of J and Another Vs State
of Maharashtra (2013) 2 Supreme Court Cases 224,
it was held that in case of multiple dying
declarations, they can be believed and each
dying declaration has to be separately assessed
and evaluated and assessed independently on its
own merit as to its evidentiary value and one
cannot be rejected solely because of certain
variations in another declaration.
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(b) In the case of Anwar Shah Babu Shah
Fakir and others Vs The State of Maharashtra
2012 All MR (Cri)2774, it was held that in case
of more dying declarations, each dying
declaration needs to be considered separately
and it becomes duty of the Court to find out,
whether the other evidence is consistent with
the dying declarations. If the other evidence is
consistent with one dying declaration, that
dying declaration can be safely accepted and
relied upon and other dying declaration can be
discarded.
(c) In the case of Sudhakar Vs State of
Madhya Pradesh (2012) Supreme Court Cases 569,
it was held that where multiple dying
declarations made by the deceased are either
contradictory or at variance with each other to
a large extent, test of common prudence would be
to first examine which dying declaration is
corroborated by other prosecution evidence.
Moreover, attendant circumstances condition of
deceased at the time of making of each statement
concerned, medical evidence, voluntariness and
genuineness of statement made by deceased,
physical and mental fitness of deceased and
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possibility of deceased being tutored are some
of the factors which would guide exercise of
judicial discretion by Court in such matters.
(d) In the case of Rajkumar Shivnath Yadav
Vs Union Territory of Daman & Diu & another 2016
ALL MR (Cri)392, it was held that endorsement of
doctor on dying declaration is not sine qua non
or must. Essential requirement is satisfaction
of person recording it that deceased was in fit
condition to give statement. It is not necessary
that dying declaration should be recorded in
question and answer form only.
(e) In the case of Sk. Biban @ Chunnu S/o.
Shaikh Nizam Vs State of Maharashtra 2010 ALL MR
(Cri) 779 (Bombay High Court) it has been held
that merely stating that the dying declaration
was recorded as per the narration of the injured
would not amount to proving the contents of the
dying declaration."
18. Bearing in mind the above principles regarding
appreciation of evidence we proceed to scan evidence on
record to see whether dying declaration (Exh.18) and oral
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dying declarations made by deceased to PWs. 4 and 6 are
truthful, voluntary and free from any tutoring and that
they are reliable.
. The dying declaration (Exh.18) is recorded by
Executive Magistrate, Dhule (PW-3) in presence of Dr.
Dagadu Pawar (PW-5) in the casualty ward in the Civil
Hospital, Dhule between 09.45 am to 09.55 am on the day
of incident i.e. on 29.11.1997. Executive Magistrate,
(PW-3) has deposed that on that day one Police from Dhule
City Police Station came to his residence at about 09.30
am with memo (Exh.17). Then he alongwith said police went
to the casualty ward in the Civil Hospital, Dhule and
reached in the hospital within two minutes. Then he
enquired with the In-charge Doctor and disclosed his
identity to him. He also showed the memo to the In-charge
Doctor, he pointed out the patient admitted in the
casualty ward, he requested the Medical officer that he
wanted to record the dying declaration of the patient and
therefore, he should examine the patient and verify if
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the patient is in conscious state of mind or not. Then
the Medical Officer examined the patient and put his
endorsement that the patient is conscious and also put
his signature below it. He further stated that, he made
preliminary enquiry with the patient about the name and
age of the person. Then he started recording dying
declaration at abut 09.45 am. Then she (patient) narrated
the incident to him and as per her version he recorded
her statement. Then he read over the contents of the said
statement to the patient and she admitted all the
contents of the said statement. She also told him that
she sustained burns to her hand, so she can put her thumb
mark, then accordingly he obtained her thumb mark below
her statement and attested the same. He completed said
statement at about 9.55 am. Then at the end of the said
statement also he obtained the endorsement of the Doctor
that while giving the statement the patient was fully
conscious and the Doctor also put his endorsement and put
his signature at the end of it. He gave carbon copy of
the said statement/dying declaration (Exh.18) to police.
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19. In the cross-examination PW-3 stated that his
statement was not recorded by the Investigating Officer.
From the memo it was transpired that one Chandrakant had
brought the patient in the hospital at about 08.40 am on
29.11.1997 and that the patient had sustained 99% burn
injuries. There were other patients in the said ward
where the injured was kept. He, Constable and the Medical
Officer were near the patient. When he reached near the
patient he asked the relatives of the patient to go out
of the ward. Before recording the statement Doctor orally
told him that the patient is in a condition to give
statement. Whole body of the patient was covered with the
clothes and he does not remember whether the saline was
injected or not. He stated that, he has not recorded her
statement in question and answer form. In the dying
declaration (Exh.18) the word "ek>k uoj;kus" is written after
recording the dying declaration and it is written as per
her say, after reading over the contents of the same to
the patient. He stated that at the time of recording her
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statement the patient was demanding water. There was
severe pains to the patient. During the statement she was
taking pause and she gave her statement intermittently.
He stated that he returned to office and sealed the
original statement in his office. He has denied that
while recording the statement, the condition of the
patient mentally and physically was not fit.
20. Dr. Pawar (PW-5) in whose presence dying
declaration (Exh.18) was recorded has stated that on
29.11.1997 he was on duty as Casualty Medical Officer in
Civil Hopsital, Dhule. One Shobhabai /deceased was
admitted in the casualty ward. At about 9.35 am. the
Executive Magistrate (PW-3) came to him and requested him
that he has to record the statement of injured and asked
him to examine the patient, as to whether she is in a
position to give the statement. Accordingly at about 9.45
a.m. he examined the patient Shobhabai and found that she
was fully conscious and accordingly I put endorsement on
the statement in the beginning. Then in his presence the
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Executive Magistrate recorded the statement of said
injured and after completion of the same he again
examined and found that patient was fully conscious while
giving the statement. He also at the end of the statement
made his endorsement and put his signature below the
statement with date and time i.e. 09.55 am.
21. In the cross-examination PW-5 stated that the
deceased sustained 99% burns. It is not necessary to
mention that the patient is mentally as well as
physically fit, in the endorsement. He has only mentioned
that she was fully conscious to give the statement. He
has denied that in a primary shock the patient may not
express the things properly which took place. He stated
that in the said condition patient may ask for water. He
stated that he had not heard conversation which took
place between the patient and the Executive Magistrate.
He stated that before examining the patient and recording
her statement he put some questions to her regarding her
name and thereafter he asked the Executive Magistrate to
( 39 ) crap223.99
record the statement. According to him at the time of
recording the statement condition of the patient was
critical and he did not find that she was taking interval
and stopping while giving her statement. According to him
the mental fitness and physical fitness are the same. He
has denied that both the endorsements on dying
declaration (Exh.18) were put by him after recording the
dying declaration. So also, he has denied that at the
time of recording the statement he was not present near
the patient and as a routine course he put the
endorsements on the dying declaration. Thus nothing was
found in favour of the accused in the cross-examination
of PW5-Doctor.
22. On careful consideration of evidence of both the
PWs. 3 and 5 it is clear that on the day of incident
after the incident the deceased was admitted in the civil
hospital at about 9.30 am in injured condition as she
sustained 99% burns and thereafter in presence of Doctor
(PW-5) the Executive Magistrate (PW-3) started recording
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her statement/dying declaration at 09.45 a.m. and
completed the same at about 9.55 am as per Exh.18 and at
that time she was fully conscious and in a position to
make statement. Moreover, it is clear from their evidence
that to ascertain whether the deceased was conscious and
in a position to make statement both have made
preliminary enquiry with the deceased regarding her name
etc. as referred earlier. Therefore, when both of them
have satisfied about the condition of the deceased and
the fact that she was conscious to make statement simply
because she sustained 99% burns and she was demanding
water, and PW-5 has stated that condition of deceased was
critical, it cannot be said that she was not mentally fit
or conscious to make statement. Therefore, it can be said
that while the deceased was conscious her dying
declaration (Exh.18) was recorded by PW-3 in presence of
Doctor (PW-5).
23. Now it is to be seen whether the dying
declaration Exh.18 recorded by PW-3 was recoded as per
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say of the deceased. As referred earlier PW-3 has only
stated that he started recording dying declaration at
about 09.45 am. Then the deceased narrated the incident
to him and as per her version he recoded her statement.
Then he read over the contents of the statement to the
patient and she admitted all the contents of the said
statement. PW-3 has not stated about actual incident
narrated to him by the deceased as mentioned in the dying
declaration Exh.18. In fact, he should have stated about
the statement actually made by the deceased as recorded
in Exh.18 which runs as under:-
"tckc fygwu nsrs dh ekÖ;k jkgkR;k ?kjh ldkGh lqekjs 7 rs 8 oktsP;k
lwekjkl ek>k vaxkoj ekÖ;k uojk;kus IyWLVhdP;k fMCchrhy jkWdsy
vksrys eh vkjksGh ekjyh ?kjkr dks.khgh uOgrs xWl lq: gksrk R;kpsoj
dkxn isVohyk o ekÖ;k vaxkyk ykowu fnyk o eh f'kyxys eyk
isVohys vk.kh iGwu xsyk ekÖ;koj la'k; ?ksrks eyk dks.kk'khgh cksyw nsr
ukgh ck;ka'kh lq/nk cksyw nsr ukgh ek>h ek>h tehuhoj yksGyh o
fo>yh ekÖ;k uo&;kps iq.kZ ukao fo".kw f>i: vkxo.ks vkgs- ,e-,l-bZ-ch-
( 42 ) crap223.99
cksMkZr ,y-Mh-lh- Eg.kwu uksdjhl vkgs- ekÖ;k uo&;kusp eyk ftokfu'kh
Bkj ekj.kslkBh tkGys eh okpys i.k eyk dk; ftokpk Hkjkslk ukgh-"
24. In the above circumstances when PW-3 has not
specifically stated that the deceased stated as above
before him at the time of recording the dying declaration
the evidence of PW-3 that he recorded dying declaration
as per narration of the injured would not amount to
proving the contents of the dying declaration, as held in
the case of Sk.Biban @ Chunnu S/o. Shaikh Nizam (Supra)
by the Bombay High Court. Apart from this even PW-5
Doctor Pawar in whose presence PW-3 recorded dying
declaration Exh.18 has also not stated that the deceased
narrated the incident in detail as referred above.
Therefore, we hold that the prosecution has failed to
prove the contents of the dying declaration Exh.18 and
truth of the said contents. Therefore, the evidence of
PWs.3 and 5 and dying declaration Exh.18 are of no use to
the prosecution to state that the accused poured kerosene
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on the person of the deceased in his house and set her on
fire as alleged.
25. Now coming to the oral dying declaration
allegedly made by the deceased to her daughter Sheetal
(PW-4) and her sister Nirmala (PW-6), the evidence of
PW-4 is that on the date of incident early in the morning
her father was under the influence of liquor, quarrel was
going on. Then she left for the school early in the
morning as it was Saturday. At about 8.45 a.m. one Pinki
came to her school for calling her. She informed that her
mother - deceased is serious. Then she went to the house
of her maternal aunt Nirmala (PW-6) in Phansi Pool
locality of Dhule. She noticed that door of her aunt's
house was locked. Then the neighbourers told that her
mother sustained burn injuries, she was admitted in the
hospital and that she was also called in the hospital.
She further stated that her mother was admitted in the
hospital in the accidental ward and she sustained burn
injuries all over her body. Then she enquired with her
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mother that how she sustained the burn injuries. At that
time her mother told her that her father (accused) poured
kerosene on her person and set her on fire. She stated
that on the same day, her mother succumbed to injuries.
26. In the cross-examination PW-4 has stated that
after she went to the Civil Hospital, her aunt
accompanied her to that ward. Her mother only told her
that her father poured kerosene on her person and set her
on fire and she kept mum. She stated that police came to
the cot of her mother and she was also there. Then her
statement was recorded by the police in the evening after
death of her mother. She stated that she did not tell to
police that her mother told her that her father (accused)
poured kerosene on her person and then set her on fire.
Police made enquiry with her mother and her mother could
not talk. She has denied that on the say of her uncle
and aunt she is giving false evidence and she gave false
statement before police. From the above evidence of
PW-4, it is clear that her evidence regarding oral dying
( 45 ) crap223.99
declaration to her by the deceased is material omission
in her statement before police and improvement while
deposing before the Court. Therefore, her evidence that
the deceased made statement to her regarding pouring
kerosene on her person and setting her on fire by the
accused is not believable. Moreover, from the evidence
of PW-4 it appears that immediately after the alleged
dying declaration to this witness by the deceased, she
kept mum and when the police made enquiry with the
deceased, the deceased could not talk. Therefore, it is
doubtful whether the deceased was in a position to make
oral dying declaration to this witness.
27. The evidence of PW-6-Nirmala - sister of the
deceased, is that the incident took place on 29.11.1997.
At about 7.30 am to 7.45 am two persons came to her house
and informed her that her sister is burnt and she was
taken to Civil Hospital, Dhule. So, immediately she
rushed to the hospital. She saw her sister and noticed
that she sustained burn injuries on all over her body.
( 46 ) crap223.99
Then she enquired to her how it was happened. She told
her that one day before her husband beat her severely and
in the morning poured kerosene on her person and set her
on fire. She stated that on the very day at about 1.30
p.m. her sister succumbed to the injuries.
28. In the cross-examination PW-6 has stated that
within 5-10 minutes she reached in the hospital after
receiving message. Her husband Chandrakant met her in
the hospital. She enquired with her husband as to how it
has happened and he told that she (deceased) sustained
burn injuries and the persons from the locality took her
in the Civil Hospital, Dhule. Further, she stated that
it was the only talk took place between her and her
husband, when she reached in the hospital. She stated
that she does not know whether her husband shifted the
deceased in the hospital or not. In-fact, it has come in
the evidence of API-Zine (PW-8), the Investigating
Officer that Chandrakant Salunke admitted injured
Shobhabai in the hospital. Moreover, PW-6 stated that
( 47 ) crap223.99
when she received the message of sustaining burns to the
deceased, her husband Chandrakant was not present in the
house. Thus, it is clear that Chandrakant Salunke had
taken the deceased in injured condition in the hospital.
But, his wife PW-6 is suppressing the said fact. When he
had taken the deceased in the hospital in injured
condition, it was natural for the deceased to disclose to
him as to how she sustained burn injuries and her natural
conduct would have been that she would have disclosed the
incident as alleged by the prosecution to him. But as
stated above PW-6 states that her husband Chandrakant did
not tell her anything except the fact that the deceased
sustained injuries and the persons in the locality
brought her in the hospital. Moreover, it is pertinent
to note that it has come in the evidence of PW-6 that
after deceased was shifted in the casualty ward, then
only she (witness) was allowed to see her and she was
shifted to burn ward after 11.30 am. There is no evidence
to show that at what time exactly the deceased made
statement to PW-6 that her husband (accused) poured
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kerosene on her person and set her on fire. In-fact,
PW-6 should have stated specifically in that respect.
There is nothing on record to show that when this witness
met the deceased in the hospital, the deceased was
conscious and in a position to make statement. Therefore,
the evidence of this witness regarding oral dying
declaration by the deceased to her is not trustworthy.
29. It has come in the evidence of API Zine (PW-8),
the Investigating Officer that it was transpired that
Chandrakant Salunke admitted injured in the hospital. He
recorded his statement. So also it has come in his
evidence that Rajiyabeg Shaikh and Sharifabi, both the
ladies were residing adjacent to the house of accused and
their statements were recorded on the day of incident
i.e. on 29.11.1997. So also, Sindhubai Ramchandra Satput
also resides near the house of the accused. He stated
that from the statements of two ladies it was transpired
that when fire was put off by the neighbours, the accused
was not present at the spot of incident. Admittedly,
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the above witnesses have not been examined by the
prosecution. In-fact, they should have been examined by
the prosecution. Because it was possible for the
deceased when she was taken in the hospital in injured
condition, she must have disclosed something about the
incident to the said witnesses. So also when as per the
statements of said witnesses, the accused was not present
at the spot of incident when fire was put off, the
presence of the accused at the spot of incident is
doubtful and not established by the prosecution.
Naturally, therefore, it cannot be said beyond doubt that
the accused poured kerosene on the person of the deceased
and set her on fire as alleged.
30. The next piece of evidence relied upon by the
prosecution is the Certificate Exh.15 issued by Dr. Patil
(PW-2) regarding condition of the accused. It has come
in the evidence of PW-2 that on the date of incident at
2.15 pm accused was brought by police for medical
examination in the hospital and he examined the accused.
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It was found that there was smelling of alcohol, speech
was regular, gaits were steady, pupils were dilated and
behaviour was normal. In his opinion the accused had
consumed alcohol but he was not under influence of
alcohol. Accordingly, he issued Certificate Exh.15.
Thus, it is clear from the evidence of PW-2 and Exh.15
that the accused had consumed liquor, but that does not
mean that in the morning on the above said date the
accused had consumed alcohol and at about 7.30 to 7.45 am
accused poured kerosene on the person of his wife
(deceased) and set her on fire as alleged by the
prosecution.
31. Thus, on close scrutiny of the evidence referred
to above adduced by the prosecution, we are of the
opinion that the evidence adduced by the prosecution is
not sufficient to infer that the accused was responsible
for death of the deceased. The Trial Court in para 8 of
the judgment elaborately discussed the evidence of PW-3
who recorded dying declaration (Exh.18) in presence of
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Dr. Pawar (PW-5), as well as evidence of PW-4 and PW-6 to
whom allegedly the deceased made oral dying declaration
and on ultimate analysis rightly held that the
prosecution has failed to prove that the accused was
responsible for the death of the deceased. Similarly,
the Trial Court has properly considered the evidence
adduced by the prosecution in respect of the cruelty
allegedly caused by the accused to the deceased and held
that the prosecution has failed to prove that the accused
caused cruelty to the deceased. Thus, the Trial Court on
proper appreciation of the evidence rightly held that the
prosecution has failed to prove the offences under
section 302 and 498-A of the IPC against the accused.
32. For the reasons discussed above, we hold that
the view taken by the Trial Court acquitting the accused
for the offences with which he was charged was a
reasonable and possible view, on the basis of evidence
adduced by the prosecution. There is nothing on record to
suggest that there is serious infirmity in the Trial
( 52 ) crap223.99
Court's appreciation of evidence or to say that both
factually or legally the Trial Court's verdict is
erroneous. Therefore, there is no reason to interfere
with the impugned judgment and order passed by the Trial
Court. In this view of the matter, we hold that the
appeal deserves to be dismissed. Accordingly, we dismiss
the same. Bail bond, if any, of the accused stands
cancelled.
. In view of dismissal of Criminal Appeal,
Criminal Revision Application No.99 of 1999 filed by
Kondaji Mahadu Jadhav - father of deceased Shobhabai
against impugned judgment and order, stands disposed of.
33. The respondent/accused to furnish personal bond
of Rs.15,000/- (Rupees Fifteen Thousand) with surety in
like amount as per section 437(A) of the Code of Criminal
Procedure before the Trial Court, within one week from
today.
( 53 ) crap223.99
34. Shri Dixit, learned Advocate appointed to
represent the respondent/accused assisted us to arrive at
the proper conclusion in the matter. We quantify his fees
at Rs.6000/-.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
VishalK/crap223.99
