Vijaysing Gulabsing Devre vs State Ofmah
2017 Latest Caselaw 9396 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                     CRIMINAL APPEAL NO. 270 OF 2006


Vijaysing Gulabsing Devre,
age : 25 years, Occup.: Labour, 
R/o Maharana Pratap Housing Society, 
Chalisgaon, Taluka Chalisgaon,
District Jalgaon                         PETITIONER
                                      (Accused No.1)

     VERSUS

The State of Maharashtra,
Through Public Prosecutor                                RESPONDENT 
                                                       (Prosecution)

                          ----
Mr.  Vijay Sharma, Advocate for the appellant
Mrs. A.V. Gondhalekar, Addl. Public Prosecutor for the 
respondents/State
                          ----

                                     CORAM : SUNIL P. DESHMUKH AND
                                             SANGITRAO S. PATIL, JJ.

                                     DATE  : 7th DECEMBER, 2017


JUDGMENT (PER : SANGITRAO S. PATIL, J.):

The appellant has challenged his conviction and

sentence for the offences punishable under Sections

498-A and 302 of the Indian Penal Code ("IPC", for

short), recorded by the learned 1 st Adhoc Additional

Sessions Judge, Jalgaon, in Sessions Case No.172 of 2004

on 22.03.2006.

2 criapl270-2006

2. The deceased - Ashabai and the appellant got

married prior to about six years of the incident, which

took place on 17.06.2004. The deceased - Ashabai has

begotten two daughters from this wedlock. The original

accused No.2 is the brother, accused No.3 is the

brother-in-law (husband of the sister), accused No.4 is

the mother, while accused No.5 is the sister of the

appellant (accused No.1).

3. It is the case of the prosecution that the

appellant and original accused Nos.2 to 5 subjected the

deceased - Ashabai to cruelty with a view to compel her

to bring cash amount from her maternal home for

purchasing agricultural land and motor vehicle. When the

deceased - Ashabai was preparing food inside her

matrimonial home on 17.06.2004 at about 10.00 a.m.,

quarrel took place between the appellant and the

deceased - Ashabai. The appellant was asking her to

bring Rs.6000/- from her maternal home for being paid to

his landlord. He started hurling abuses against her and

also threatening her. The deceased - Ashabai expressed

inability to bring cash amount from her brother on the

say that her father was no more and her brother was

3 criapl270-2006

anyhow maintaining his family. The appellant then

started beating her. He expressed that her being alive

would of no use and therefore, he would kill her. He

picked up kerosene can that was near the burning stove

and poured kerosene therefrom on her person. He pushed

her on burning stove. He, further ignited a match stick

and set fire to her Saari, due to which her clothes

started burning causing her burn injuries. The appellant

then ran away from the house. The deceased - Ashabai

also followed him and raised shouts. The neighbours came

and extinguished fire. Thereafter, the appellant also

sprinkled water on her person and took her to the

Municipal Hospital from where she was referred to the

private hospital of Dr. Devre.

4. After receiving intimation from the hospital of

Dr. Devre, PSI Ahir recorded the statement of the

deceased - Ashabai somewhere between 11.20 a.m. and

12.15 p.m. on 18.06.2004. The said statement was treated

as the First Information Report (for short, "FIR"). On

the basis of the FIR, Crime No.141 of 2014 came to be

registered against the appellant and accused Nos.2 to 5

for the offences punishable under Sections 307, 498-A,

4 criapl270-2006

504, 506 read with Section 34 of the IPC.

5. The investigation followed. Spot panchanama was

prepared. The kerosene stove, a plastic can smelling of

kerosene, the match stick box and burnt pieces of Saari

of the deceased - Ashabai came to be seized under the

same panchanama. Statements of the witnesses were

recorded. The deceased - Ashabai was referred to Civil

Hospital at Jalgaon from the hospital of Dr. Devre on

21.06.2004. She died there on 25.06.2004. The inquest

panchanama of the body of the deceased was prepared and

the dead body was referred to the Medical Officer for

postmortem. There were 87% burns on the body of the

deceased - Ashabai. The Medical Officer opined that she

died of septic shock due to burn injuries. Therefore,

the offence punishable under Sections 302 came to be

substituted for the offence punishable under Section 307

of the IPC. After completion of the investigation, the

appellant and accused Nos.2 to 5 came to be

chargesheeted for the offences punishable under Sections

302, 498-A, 504, 506 read with Section 34 of the IPC, in

the Court of the Judicial Magistrate, First Class at

Chalisgaon.

5 criapl270-2006

6. The offence punishable under Section 302 of the

IPC being exclusively triable by the Court of Session,

the learned Judicial Magistrate, First Class committed

it to the Additional Sessions Court at Jalgaon for

trial. The learned Trial Judge framed charges against

the appellant and accused Nos.2 to 5 for the offences

punishable under Sections 498-A read with Section 109

and under Section 302 read with Section 34 of the Indian

Penal Code, vide Exh.12 and explained the contents

thereof to them in vernacular. The appellant and accused

Nos. 2 to 5 pleaded not guilty and claimed to be tried.

Their defence is that of total denial and false

implication. According to them, the deceased Ashabai

sustained burns accidentally, as a result of which she

died.

7. The prosecution examined five witnesses to

establish the guilt of the appellant and accused Nos.2

to 5 for the above-mentioned offences. The learned Trial

Judge evaluated the said evidence and found that there

was sufficient and dependable evidence to hold the

appellant only guilty for the offences punishable under

6 criapl270-2006

Sections 498-A and 302 of the IPC. He, therefore,

convicted the appellant for the said offences and

sentenced him to suffer rigorous imprisonment for two

years and pay a fine of Rs.1000/- in respect of the

offence punishable under Section 498-A of the IPC and to

suffer imprisonment for life and pay a fine of Rs.1000/-

in respect of the offence punishable under Section 302

of the IPC. The learned Trial Judge did not find

sufficient evidence to connect accused Nos.2 to 5 with

the above-mentioned offences. He, therefore, acquitted

accused nos.2 to 5. The judgment of acquittal of accused

Nos.2 to 5 has not been challenged by the prosecution

and as such, attained finality.

8. The learned counsel for the appellant submits

that the deceased - Ashabai sustained burns accidentally

when she was preparing food. After hearing her shouts,

the appellant and his friend Chhotu, who were sitting

out of the house, extinguished fire from her person and

took her to the hospital of Dr. Devre for treatment.

After receiving intimation from the hospital of

Dr. Devre, an Assistant Sub-Inspector (ASI), of Police

Station Chalisgaon, recorded the statement of the

7 criapl270-2006

deceased Ashabai on 17.06.2004 at about 3.00 p.m. The

Executive Magistrate also recorded her statement on the

same day at about 3.20 p.m., after getting it verified

from Dr. Devre that she was in a fit condition to give

statement. In both of these statements the deceased -

Ashabai consistently stated that when she was preparing

food, her Saari was caught by fire accidentally due to

which she sustained burn injuries and that the appellant

extinguished fire from her person and took her to the

hospital of Dr. Devre for treatment. However, the

prosecution had suppressed both of these dying

declarations. He then submits that the brother of the

deceased Ashabai attended the hospital on the day of the

incident at about 1.00 p.m. He tutored and influenced

Ashabai to falsely involve the appellant and accused

Nos.2 to 5 in the incident and therefore, the third

dying declaration came to be recorded at the instance of

the brother of the deceased - Ashabai. He submits that

the third dying declaration allegedly recorded on

18.06.2004 is not at all voluntary and truthful.

However, the learned Trial Judge wrongly believed that

dying declaration and wrongly convicted the appellant.

He submits that since there are inconsistent statements

8 criapl270-2006

made by the deceased - Ashabai, the earlier two dying

declarations which are voluntary and depicting the

factual position, ought to have been relied on by the

learned Trial Judge. He submits that the evidence on

record is not at all sufficient and believable to hold

the appellant guilty for the above-mentioned offences.

9. On the other hand, the learned A.P.P. submits

that the earlier two dying declarations were given by

the deceased - Ashabai under the pressure of the

appellant. Nobody was in the hospital from the side of

her maternal home to encourage her to state factual

position. However, subsequently, she gathered courage to

state the factual position. Accordingly, she gave the

third dying declaration involving the appellant in the

incident in question. It was truthful and voluntary. It

inspires great confidence. This dying declaration gets

corroboration from the evidence of the brother of the

deceased - Ashabai. According to the learned A.P.P., the

theory of accidental burning, setup by the appellant, is

not natural, proper and believable. The prosecution

established guilt of the appellant for the above-

mentioned offences beyond reasonable doubt. The learned

9 criapl270-2006

A.P.P. therefore supports the impugned judgment and

order.

10. It has come in the evidence of Dr. Devre (PW1)

(Exh.43) that the deceased - Ashabai was admitted in his

hospital by the appellant on 17.06.2004 at about 12.14

p.m. She had sustained 82% burn injuries. It has come in

his cross-examination that he had informed about the

admission of Ashabai in his hospital to the police

station on 17.06.2004. One ASI, of Police Station,

Chalisgaon came to his hospital on that day at about

3.00 p.m. and asked whether Ashabai was in a fit

condition to give statement. After he opined that she

was in a fit mental condition to give statement, the

said ASI recorded her statement (Exh.47). His

endorsement shows fitness of the deceased - Ashabai to

give statement. He states that the said ASI recorded the

statement (Exh.47) of the deceased - Ashabai. It has

further come in his cross-examination that on the same

day, the Executive Magistrate of Chalisgaon also

recorded the statement (Exh.49) of the deceased -

Ashabai at about 3.20 p.m. It also bears his endorsement

about fitness of Ashabai to give statement. He deposes

10 criapl270-2006

that the deceased - Ashabai put her thumb impressions on

the statements at Exhs. 47 and 49.

11. PSI Ahir (PW5) (Exh.71), who conducted the

investigation, states that an ASI of Police Station,

Chalisgaon, recorded dying declaration (Exh.47) and

Executive Magistrate recorded dying declaration (Exh.49)

of the deceased - Ashabai. However, the prosecution has

not examined both of these witnesses. The execution of

the dying declarations Exhs.47 and 49 has been proved by

Dr. Devre (PW1) before whom they were recorded and the

deceased - Ashabai put her thumb impressions thereon.

The appellant admitted the contents of the said dying

declarations.

12. In the dying declarations (Exh. 47 and 49), the

deceased - Ashabai specifically stated that on

17.06.2004 at about 10.00 a.m., she ignited kerosene

stove for preparing food when she was leaning while

sitting down, a part of her Saari (called padar)

accidentally fell down on the flames of the burning

stove, due to which she was caught by fire. She raised

shouts. The appellant was sitting outside the house

11 criapl270-2006

alongwith one Chhotu. Both of them came towards her

immediately, extinguished fire from her person and

admitted her in the hospital of Dr. Devre for treatment.

She specifically stated that she neither set herself on

fire nor anybody set her on fire. From the dying

declarations (Exh.47 and 49), it is clear that the

deceased - Ashabai sustained burns accidentally.

13. Dr. Devre (PW1) deposes that on 17.06.2004 at

about 9.00 p.m., the deceased - Ashabai expressed her

desire to again give statement in respect of the

incident. Therefore, he informed the police vide letter

(Exh.46) at about 9.20 p.m. From the endorsement made on

the letter (Exh.46), it is clear that it was received in

the Police Station at about 9.45 p.m. on 17.06.2004. PSI

Ahir (PW5) states that after receiving letter (Exh.46),

he had deliberations with his higher authority on

18.06.2004 at 11.45 a.m. Thereafter, he visited Dr.

Devre's hospital. He requested Dr.Devre (PW1) to opine

as to whether Ashabai was in a fit mental condition to

give statement. Accordingly, Dr. Devre examined her and

opined that her statement could be recorded. Thereafter,

he recorded the statement (Exh.45) of the deceased -

12 criapl270-2006

Ashabai as per her say in the presence of Dr. Devre

(PW1) and one of the members of Mahila Dakshata

Committee. He read over the contents of the said

statement to the deceased - Ashabai which she admitted

to be correct and thereafter, he obtained her thumb

impression thereon. The Member of Mahila Dakshata

Committee and himself put their signatures thereon. Dr.

Devre (PW1) corroborates the version of PSI Ahir (PW5)

and states that PSI Ahir (PW5) recorded dying

declaration (Exh.47) of the deceased - Ashabai, when she

was in a fit condition to give statement.

14. In the dying declaration (Exh.45) the deceased

- Ashabai states as under:- "

"nsojs gkWLihVy pkGhlxkao [email protected]@2004

tckc % lkS- vk'kkckbZ fot;kflax ikVhy o; 22 /kank & ?kjdke jk- egkjk.kk gkSlhax lkslk- IykWV ua-106 pkGhlxkao-

le{k fopkjys o:u iwUgk fygqu nsrs dh ek>k ;kiwohZ dky [email protected]@04 jksth iksyhlkadMsl fnysyk tckc tGkys ckcrpk ek>k uojk le{k gtj vlY;kus o ek>s ekgsjps dks.khgh gtj ulY;kus eh tckckr lkaxhrysyh gdhxr uo&;kps nckck[kkyh lkaxhryh gksrh rh eyk ekU; ulqu eh vkrk lnj /kDD;krqu FkksMh lkojY;kus eyk lR; ijhLFkhrh lkaxko;kph vkgs rh [kkyhy izek.ks-

13 criapl270-2006

ojhy fBdk.kh eh irh fot;flax ikVhy o nksu eqyhalg jkgrs- lnj fBdk.kh vkEgh 1 o"kkZiklqu HkkM;kus jkgkrks uojk vkeph ekjksrh dkj u- MH-20 U 6726 gh izoklh HkkM;koj pkyforks o R;koj vkEgh mnjfuokZg djrks-

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;kiwohZ ek>k irh lklq fla/kqckbZ xqykc nsojs u.kan lkS- eaxykckbZ lqesjflax uanksbZ lqesjflax f=flax ikVhy o tsB egsanzflax xqykc nsojs gs Ik.k osGksosGh Hkkm o vkbZ ;kapsdMwu 'ksrh o xkMh lkBh iSls vk.kkos Eg.qku eyk

14 criapl270-2006

ekjBksd djhr gksrs Eg.kqu ek>h ojhy yksdkaps fo:/n fQ;kZn vkgs-

ek>h ojhy fQ;kZn eyk okpqu nk[kfoyh rh ek>s lkax.ks izek.ks cjkscj fyfgyh vkgs-

                  le{k                              gs fygqu fnys lgh
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15. The contents of dying declaration (Exh.45) show

that on 17.06.2004 at about 10.00 a.m., when Ashabai was

preparing food, the appellant picked up quarrel with her

and asked her to bring Rs.6000/- from her maternal home

for being paid to his landlord. When she expressed

inability to bring the amount from her brother, the

appellant said that her being alive was of no use and

that he would kill her. Thereafter, he poured kerosene

on her person and pushed her on burning stove. He

further ignited a match stick and set her Saari on fire

due to which she sustained burns on various parts of her

body. He ran away from the house. The neighbours

extinguished fire from her person. Then the appellant

also sprinkled water on her person and took her

initially to the Municipal Hospital for treatment and

then to the hospital of Dr. Devre. As such, the deceased

15 criapl270-2006

Ashabai blamed the appellant for setting her ablaze.

16. PSI Ahir (PW5), who recorded dying declaration

(Exh.45) admits in his cross-examination that he was

aware that the dying declaration (Exh.45) was not the

first statement that was given by the deceased -

Ashabai. He denies that the deceased - Ashabai told him

that prior to recording of her dying declaration

(Exh.45), two authorities had recorded her statements.

However, the first paragraph of dying declaration

(Exh.45) makes it clear that she had specifically stated

that her statement was recorded by the police on

17.06.2004. When it is the case of the PSI Ahir (PW5)

that the said fact was not stated by the deceased -

Ashabai before him, a strong doubt gets created about

the authorship of the statement of the deceased -

Ashabai. The first paragraph seems to have been

incorporated in the dying declaration (Exh.45) at the

instance of somebody else than the deceased - Ashabai.

17. Zumbarsing (PW7) (Exh.57) is the brother of the

deceased - Ashabai. He states that on the day of the

incident at about 10.00 a.m., he came to know from his

16 criapl270-2006

younger brother Mahendrasing that he received telephonic

message from Munna Patil that the deceased Ashabai

sustained burns and was admitted in Devre hospital at

Chalisgaon. He went to Devre hospital at Chalisgaon

alongwith his relatives at about 12.35 p.m. to 1.00 p.m.

He met her in Intensive Care Unit (ICU). On being

enquired by him, she told that on that day in the

morning quarrel took place between the appellant and

herself on the ground of demand of money for discharging

the debts incurred for purchasing of vehicle. She was

preparing food on kerosene stove. The appellant came

there and poured kerosene on her person and pushed her

on the burning stove, due to which she was caught by

fire. He further states that the appellant set her

ablaze by means of burning match stick.

18. The prosecution has relied on the evidence of

Zumbarsing (PW2) to prove the above mentioned oral dying

declaration of the deceased - Ashabai. He states that he

was present in Devre hospital, after reaching there on

17.06.2004 at about 1.00 p.m. till she was discharged

from that hospital and admitted in the civil hospital at

Jalgaon on 21.06.2004. He states in paragraph No.6 of

17 criapl270-2006

the cross-examination that in response to the intimation

given to the police from Dr. Devre's hospital, police

reached that hospital on 17.06.2004 at about 3.00 p.m.

However, he shows ignorance as to whether the police and

Executive Magistrate recorded the statements of the

deceased - Ashabai on that day on 3.00 p.m. and 3.20

p.m. respectively. The evidence of Dr.Devre (PW1)

clearly shows that the dying declarations Exh.47 and 49

were recorded by an ASI and the Executive Magistrate on

17.06.2004 at about 3.00 p.m. and 3.20 p.m.

respectively, in his hospital. It is, thus, clear that

Zumbarsing (PW2) tried to feign ignorance about the fact

of recording dying declarations (Exh.47 and 49) by

police personnel and the Executive Magistrate, since

they were disclosing that the deceased - Ashabai

sustained burns accidentally.

19. The evidence of Zumbarsing (PW2) that the

deceased Ashabai gave oral dying declaration before him

as stated above, itself does not inspire confidence. If

the deceased - Ashabai had given such oral dying

declaration before him at about 1.00 p.m. on that day,

Zumbarsing (PW2) certainly would have complained against

18 criapl270-2006

the appellant to the Police Station or at-least before

the police personnel who visited the hospital at about

3.00 p.m. He did not whisper about the oral dying

declaration until his statement was recorded by police.

He states that his statement was recorded by the police

about 15 days of the day of incident. He specifically

states that he did not make any complaint until his

statement was recorded by the police. However, he adds

that on the day of incident, he had gone to the Police

Station, Chalisgaon and lodged the report but police

told that the deceased - Ashabai had already given

statement. The version of this witness about having

approached the Police Station to lodge report against

appellant, has not at all been corroborated. It seems

that after he came to know that the deceased - Ashabai

stated before the police personnel as well as before the

Executive Magistrate that she sustained burns

accidentally, he tried to influence the deceased -

Ashabai by insisting upon her to involve the appellant,

his family members and other relations in the incident

in question. It seems that he succeeded in implicating

the appellant and accused Nos.2 to 5 at about 9.00 p.m.

and therefore, the deceased - Ashabai seems to have

19 criapl270-2006

expressed that she wanted to give one more statement and

accordingly, her statement i.e. dying declaration

(Exh.45) came to be recorded by PSI Ahir (PW5) on

18.06.2004 around 12.00 noon.

20. It is well settled that when there are multiple

dying declarations or inconsistent dying declarations,

each dying declaration has to be considered

independently with respect to the facts of the case and

the other attending circumstances. In this regard a

reference may conveniently be made to paragraphs 13 and

14 of the judgment in the case of Raju Devade Vs. State

of Maharashtra AIR 2016 SC 3209, in which it has been

held as follows:

"13. When there are multiple dying declarations, each dying declaration has to be considered independently on its own merits so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In the cases where there are more than one dying declarations, it is the duty of the Court to consider each one of them in its correct perspective and satisfy itself that which one of them reflects the true state of affairs.

20 criapl270-2006

14. In the case of Shudhakar Vs. State of M.P. AIR 2012 SC 3265, it is observed that in the cases involving multiple dying declarations, for determining which of the various dying declarations should be believed by the Court, the test of common prudence would be to first examine which of the dying declarations is corroborated by other prosecution evidence. Further, the attendant circumstances, the condition of the deceased at the relevant time, the medical evidence, the voluntariness and genuineness of the statement made by the deceased, physical and mental fitness of the deceased and possibility of the deceased being tutored are some of the factors which would guide the exercise of judicial discretion by the Court in such matters."

21. In view of the above cited judgment of the

Hon'ble Apex Court, the judgment in the case of Shri

Rajendra Madhukar Kadam Vs. The State of Maharashtra,

2016 ALL MR (Cri) 1022; Govind Narain and another Vs.

State of Rajasthan, AIR 1993 SC 2457 and Sunder Gounder

Vs. State of Goa, 2015 ALL MR (Cri) 698, cited by the

learned counsel for the appellant, wherein it has been

observed that where there are multiple dying

21 criapl270-2006

declarations and acceptance of one dying declaration

falsifies the other, the dying declarations have to be

necessarily rejected, would not be helpful to the

appellant to seek rejection of all the dying

declarations of the deceased - Ashabai referred to

above.

22. In view of the above-mentioned legal position

in respect of multiple dying declarations, it will have

to be considered with respect to the evidence on record

as to whether dying declaration (Exh.45) is believable.

In the opening paragraph of dying declaration (Exh.45),

the deceased Ashabai is stated to have mentioned that

when her dying declaration was recorded on 17.06.2004 by

the police, the appellant was present there and none

from her maternal home was present. Therefore, she

stated before the police under the pressure of the

appellant. As stated above, PSI Ahir (PW5) himself

states that the said statement was not made before him

and that her statement was recorded previously by two

authorities. From the evidence of Zumbarsing (PW2), it

is clear that he was present in Dr.Devre hospital right

from 1.00 p.m. on 17.06.2004 till 21.06.2004, when the

22 criapl270-2006

deceased Ashabai was shifted to the Civil Hospital at

Jalgaon from Dr. Devre's hospital. Thus, the contents of

this paragraph that nobody from her maternal home was

present in the hospital cannot be believed. From the

evidence of Dr. Devre (PW1), it is clear that the

appellant was not present when the dying declarations

(Exh.45 and 49) were recorded by the police and the

Executive Magistrate. If that be so, the dying

declarations (Exh.45 and 49) cannot be said to have been

given by the deceased Ashabai under the pressure of the

appellant.

23. In the dying declaration (Exh.45), the deceased

- Ashabai stated to have alleged that the appellant was

asking her to bring Rs.6000/- from her maternal home for

being paid to his landlord. However, Zumbarsing (PW2)

states that the deceased Ashabai told him that on the

day of the incident, in the morning, quarrel took place

between the appellant and herself on account of demand

of money to satisfy the debt of purchase of vehicle.

Thus the reasons for demanding money stated in the dying

declaration (Exh.45) and the alleged oral dying

declaration given before Zumbarsing (PW2), are not

23 criapl270-2006

consistent. As such, the evidence of Zumbarsing (PW2)

does not corroborate the contents of the dying

declaration (Exh.45) in respect of the reason for demand

of money which was the very cause of the alleged quarrel

between the appellant and the deceased Ashabai.

24. The contents of the dying declaration (Exh.45)

that the appellant pushed the deceased Ashabai on a

burning stove and again set her ablaze by igniting a

matchstick, suffer from inherent improbability. If a

person is pushed on a burning stove after pouring

kerosene, he immediately would be caught by fire.

Thereafter, it would not be natural and probable on the

part of the person setting the victim on fire to again

to pick-up matchstick and ignite it to set the victim on

fire.

25. The dying declaration (Exh.45) shows that the

neighbours came and extinguished fire from her person

and the appellant had sprinkled water on her person.

However, none of the said neighbours has been examined

by the prosecution. The evidence of the neighbours

certainly would have made the position clear as to what

24 criapl270-2006

was the reaction of the deceased Ashabai and that of the

appellant after she was caught by fire. The prosecution

suppressed the evidence of these material witnesses,

which creates strong doubt of truthfulness of the

contents of the dying declaration (Exh.45).

26. There is a specific mention in the dying

declaration (Exh.45) that the appellant also poured

water on the person of the deceased Ashabai and admitted

her initially in the Municipal Hospital and then in the

hospital of Dr. Devre for treatment. Dr. Devre (PW1)

also states that the appellant admitted the deceased

Ashabai in his hospital. Had the appellant set the

deceased - Ashabai on fire and wanted to kill her, he

would not have tried to extinguish fire by pouring water

on her person and further would not have taken her to

any hospital for treatment.

27. It has come in the evidence of Zumbarsing (PW2)

that the deceased - Ashabai had been to his house for

the second delivery and that she stayed there for 30 to

35 days. He states that the appellant had been to his

house to take the deceased Ashabai to his house, when

25 criapl270-2006

her newly born daughter was 15 days old. He further

states that the incident took place about 3 days

thereafter. Thus prior to about 3 days of the incident,

the deceased Ashabai and the appellant were at his

house. There is no mention in his evidence to show that

during the said visit, the appellant asked for money

from him on any count either personally or through the

deceased Ashabai. He does not state that the deceased -

Ashabai was reluctant to go with the appellant on any

count.

28. Zumbarsing (PW2) states that the deceased -

Ashabai stated him that the accused persons (appellant

and accused Nos.2 to 5) used to demand money, as they

were indebted due to purchase of vehicle and on that

count, she was being subjected to cruelty. However, it

has come in the evidence of PSI Ahir (PW5) that

Zumbarsing (PW2) has not stated the said fact before him

when his statement was recorded. As such, this is the

material omission in the version of Zumbarsing (PW2). It

is, thus, clear that he has tried to add something more

for the first time before the Court, which is not even

stated before the police.

26 criapl270-2006

29. There is absolutely no evidence on record to

show that the appellant ever ill-treated on any

particular occasion, the deceased - Ashabai on any

count. As such, the contents of dying declaration

(Exh.45) do not find corroboration. Moreover, for the

reasons mentioned above, dying declaration (Exh.45)

seems to have been recorded at the instance of

Zumbarsing (PW2) with a view to involve the appellant

and his other relatives, i.e. accused Nos.2 to 5, by way

of an afterthought.

30. The evidence on record shows that the appellant

himself tried to extinguish fire from the person of the

deceased - Ashabai. He himself took her to the hospital

for treatment. There was no reason for him to set the

deceased Ashabai on fire. In the circumstances, dying

declarations (Exh.47 and 49) cannot be said to have been

recorded at the instance of the appellant or under his

pressure. The dying declarations (Exh.47 and 49) seem to

be voluntary and truthful. The dying declaration

(Exh.45) does not inspire confidence for the reasons

mentioned above. The dying declarations (Exh.47 and 49)

27 criapl270-2006

show that the decased-Ashahabi sustained burns

accidentally.

31. In view of the above facts and circumstances of

the case, it cannot be said that the prosecution

established that the appellant subjected the deceased -

Ashabai to cruelty and ultimately committed her murder

by setting her on fire. The learned Trial Judge did not

appreciate the evidence on record correctly, properly

and wrongly convicted the appellant relying on the dying

declaration (Exh.45) and the evidence of Zumbarsingh

(PW2), which, in fact, does not inspire confidence. The

impugned judgment and order convicting and sentencing

the appellant, are not sustainable. They are liable to

be quashed and set aside. In the result, we pass the

following order:-

O R D E R

(1) The appeal is allowed.

(2) The impugned judgment and order are quashed and

set aside.

                                       28                      criapl270-2006


(3)              The   appellant   is   acquitted   of   the   offences 

punishable under Sections 498-A and 302 of the

Indian Penal Code.

(4) The bail bonds of the appellant are cancelled.

He is set at liberty.

(5) Fine amount, if deposited by the appellant, be

refunded to him.

(6) Appeal is accordingly disposed of.

                Sd/-                               Sd/-
        [SANGITRAO S. PATIL]               [SUNIL P. DESHMUKH]
                JUDGE                              JUDGE


sam/criapl270-2006