Bombay High Court
Kashinath Bhata Dhangar vs The State Of Mah & Ors on 8 December, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.186 OF 2006
1. Kashinath Bhata Dhangar,
Age : 32 years,
2. Bhata Shrawan Dhangar, (abated)
Age : 57 years
3. Sanjay Bhata Dhangar,
Age : 29 years,
4. Rekhabai alias Chandrabhagabai
Chhotu Dhangar,
Age : 28 years,
5. Sou.Jijabai Bhata Dhangar,
Age : 54 years,
All occ. Agriculture and Labour .. Appellants
All r/o. Malpur, Tq. Shindkheda, (Ori. Accused.)
Dist. Dhule
Vs.
The State of Maharashtra .. Respondent
(Prosecution)
----
Mr.Chaitanya C. Deshpande, Advocate i/b.Mr.C.R.
Deshpande, Advocate for appellants
Mr.S.N.Morampalle, APP for respondent
----
AND
CRIMINAL APPEAL NO.591 OF 2006
The State of Maharashtra,
Through Police Station Officer,
Dondaicha, Dist. Dhule ..Appellant
(Prosecution)
::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:38 :::
2 cri.appeals.186 and 591-2006
Vs.
Kashinath Bhata Dhangar,
Age : 28 years, Occ. Agri.,
r/o. Malpur, Tq. Shindkheda,
Dist. Dhule .. Respondent
(Orig. accused no.1
----
Mr.S.N.Morampalle, APP for appellant
Mr.Chaitanya C. Deshpande, Advocate i/b.Mr.C.R.
Deshpande, Advocate for respondent
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : NOVEMBER 24, 2017
PRONOUNCED ON : DECEMBER 08, 2017
COMMON JUDGMENT (PER SANGITRAO S. PATIL, J.) :
Both of the above-numbered appeals have been
filed against the judgment and order dated 28.02.2006
passed in Sessions Case No.39 of 2002 by the learned
III Additional Sessions Judge, Dhule. Hence, they are
decided by this common judgment.
2. Criminal Appeal No.186 of 2006 has been
filed by original accused nos.1 to 5 challenging
their conviction and sentence for the offences
punishable under Sections 306 and 498-A read with 34
3 cri.appeals.186 and 591-2006
of the Indian Penal Code ("I.P.C.", for short), while
Criminal Appeal No.591 of 2006 has been filed by the
State/prosecution assailing acquittal of the accused
persons of the offence punishable under Section 302
of the I.P.C.
3. For the sake of convenience, the parties
i.e. the prosecution and the accused, have been
referred to by the same nomenclatures in this
judgment by which they were described before the
trial Court.
4. Accused no.1 is the husband, accused no.2 is
the father-in-law, accused no.3 is the brother-in-
law, accused no.4 is the sister-in-law, while accused
no.5 is the mother-in-law of the deceased Rekhabai.
5. The deceased Rekhabai and accused no.1 got
married prior to about 8 to 9 years of the incident
that took place on 21.11.2001 in which she sustained
burn injuries and died as a result thereof. She has
begotten a daughter namely, Rupali and a son namely,
Ravindra from this wedlock. The deceased Rekhabai
4 cri.appeals.186 and 591-2006
and accused no.1 were residing jointly with accused
nos.3 to 5. It is alleged that accused no.1 used to
pick up quarrels with the deceased Rekhabai to compel
her to give him money for playing cards and consuming
liquor. Therefore, she was residing at her maternal
home, which was in the same village where her
matrimonial home was i.e. Malpur, Tq. Shindkheda,
District Dhule, since before 2 to 3 months of the
incident.
6. On 21.11.2001, at about 12.00 noon, accused
no.1 went to the maternal home of the deceased
Rekhabai and took her to his house on the say that
his baniyan was not found. He then poured kerosene on
her person and accused no.2 set her on fire by
igniting a match-stick. The deceased Rekhabai raised
shouts. The other persons of the family and neighbors
extinguished the fire by pouring water. She was taken
to the hospital at Dondaicha, from where she was
referred to the Civil Hospital, Dhule. The statement
5 cri.appeals.186 and 591-2006
of the deceased Rekhabai was recorded by A.S.I.
Fulpagare, after getting it verified from the Medical
Officer that she was in a fit condition to give
statement. The said statement was treated as the
First Information Report (F.I.R.) and after her
demise, it assumed the character of dying
declaration.
7. On the basis of that F.I.R., Crime No.89 of
2001 was registered in Police Station, Dondaicha for
the offence punishable under Section 307 of the
I.P.C. On the same day, dying declaration of the
deceased Rekhabai was recorded by Ratnakar Vasaikar
(PW 5), who was working as Awal Karkoon in Tahsil
office. Rekhabai died in the hospital on the same day
at 5.00 p.m. Inquest panchnama of the body of the
deceased Rekhabai was prepared. Her body was sent to
the Medical Officer for post mortem. Dr.Pathak and
Dr.Ruikar, who conducted post-mortem, found 86% burns
on the body of the deceased Rekhabai. They opined
6 cri.appeals.186 and 591-2006
that she died due to shock following thermal burns
which were possible by pouring kerosene and setting
her ablaze. After demise of Rekhabai, the offence
under Section 307 of the I.P.C. came to be
substituted by the offence under Section 302 of the
I.P.C.
8. The statements of witnesses were recorded.
The burnt pieces of saree, petticoat and blouse of
the deceased Rekhabai were produced by her father,
which came to be seized under a panchnama. The spot
panchnama was prepared. A green coloured kerosene
can, a match box of Red Horse brand and two burnt
match-sticks came to be seized. Sample of kerosene
was taken from that can in a bottle. The seized
articles were sent to Chemical Analyst for analysis
and report. After completion of the investigation,
the accused came to be charge-sheeted in the Court of
the learned Judicial Magistrate F.C., Dondaicha. The
offence punishable under Section 302 of the I.P.C.
being exclusively triable by the Court of Session,
7 cri.appeals.186 and 591-2006
the learned Magistrate committed the case to the
Sessions Court.
9. The learned trial Judge framed Charges
against the accused for the offences punishable under
Sections 498-A, 323 and 302 read with 34 of the
I.P.C. and also for the offence punishable under
Section 4 of the Dowry Prohibition Act, 1961. The
learned trial Judge explained the contents of the
Charges to the accused persons to which they pleaded
not guilty and claimed to be tried. Their defence is
that of total denial and false implication.
According to them, the father of the deceased
Rekhabai had taken a loan of Rs.45,000/-. When
accused no.2 demanded back that amount, the father of
the deceased Rekhabai himself set her on fire with a
view to avoid repayment thereof.
10. The prosecution examined thirteen witnesses
to establish guilt of the accused persons. The
accused examined two witnesses in their defence.
8 cri.appeals.186 and 591-2006
After evaluating the evidence of the prosecution as
well as that of the accused, the learned trial Judge
came to conclusion that no offences punishable under
Sections 302 and 323 of the I.P.C. and Section 4 of
the Dowry Prohibition Act, 1961 have been established
against the accused. However, the learned trial
Judge found sufficient evidence on record to hold
them guilty for the offences punishable under
Sections 306 and 498-A read with 34 of the I.P.C.
Accordingly, he convicted them and sentenced each of
them to suffer rigorous imprisonment for 8 years and
to pay a fine of Rs.3,000/- in respect of the offence
under Section 306 of the I.P.C. and to suffer
rigorous imprisonment for 2 years and to pay a fine
of Rs.750/- in respect of the offence under Section
498-A of the I.P.C.
11. The learned Counsel for the accused submits
that there is neither the case of the prosecution nor
the Charge has been framed against the accused to the
effect that they abetted the deceased Rekhabai to
9 cri.appeals.186 and 591-2006
commit suicide and thereby committed an offence
punishable under Section 306 of the I.P.C. There is
absolutely no evidence to show that the accused
abetted the deceased Rekhabai to commit suicide.
Therefore, according to him, the conviction of the
accused for the offence punishable under Section 306
of the I.P.C. is ex-facie illegal. Relying on the
judgment in the case of Sangaraboina Sreenu Vs. State
of Andhra Pradesh, LEX(SC) 1997 4 54, he submits that
the offence under Section 306 of the I.P.C. cannot be
said to be a minor offence in relation to the offence
under Section 302 of the I.P.C. within the meaning of
Section 222 of the Code of Criminal Procedure.
Therefore, in the absence of the Charge for the
offence under Section 306 of the I.P.C., the accused
could not have been convicted for the said offence.
The learned Counsel for the accused further submits
that the dying declarations of the deceased Rekhabai
recorded by A.S.I. Fulpagar and Awal Karkoon Ratnakar
Vasaikar are not believable. The said dying
10 cri.appeals.186 and 591-2006
declarations have been recorded at the instance of
the father of the deceased Rekhabai. He submits that
the house of the father of the deceased Rekhabai is
situate in the same village in which the accused are
residing. The deceased Rekhabai had gone to her
maternal home. She sustained burns at her maternal
home only. The burnt pieces of her clothes were
produced by her father since she had sustained burns
at his house. However, the accused have been falsely
implicated with a view to avoid repayment of
Rs.45,000/- to accused no.2, which was borrowed by
the father of the deceased Rekhabai. The learned
Counsel submits that the trial Court committed a
grave error in convicting the accused for the
offences punishable under Sections 306 and 498-A of
the I.P.C.
12. On the other hand, the learned A.P.P.
submits that the dying declarations of the deceased
Rekhabai were given by her voluntarily. They are
truthful. Therefore, the conviction of the accused
11 cri.appeals.186 and 591-2006
for the offence under Section 302 of the I.P.C. could
have been based on these dying declarations, even
without further corroboration. In support of this
contention, he relies on the judgment in the case of
Sakhari alias Shakuntala Mundala Nayak Vs. State of
Maharashtra, 2004(2) Mh.L.J.952. The learned A.P.P.
further submits that the learned trial Judge
committed mistake in convicting the accused for the
offence punishable under Section 306 of the I.P.C.,
when there is sufficient evidence to establish guilt
of the accused for the offence punishable under
Section 302 of the I.P.C. He, therefore, submits that
the accused may be convicted for the offence
punishable under Section 302 of the I.P.C. He
supports conviction of the accused for the offence
punishable under Section 498-A of the I.P.C.
13. In the case of Sakhari alias Shakuntala
Mundala Nayak (supra) cited by the learned A.P.P.,
after considering various judgments relating to the
dying declarations, it was observed in paragraph 29
12 cri.appeals.186 and 591-2006
of the judgment by the Division Bench of this Court,
that there is neither a rule of law nor a rule of
prudence which has hardened into a rule of law that a
dying declaration cannot be acted upon unless it is
corroborated. It is further observed that the dying
declaration can be accepted even if it is not
corroborated by other evidence and the Court must not
look for corroboration unless it suffers from any
infirmity and once the Court comes to the conclusion
that the declaration is a truthful version, there is
no question of further corroboration.
14. In the present case, the prosecution is
relying on the written as well as the oral dying
declarations of the deceased Rekhabai. Subhash (PW10)
(Exh.74), who resides at a distance of about 150 to
200 meters from the house of the accused persons,
deposes that on 21.11.2001 at about 12.00 noon, after
hearing shouts, he went to the house of the accused.
Many persons had gathered there. He found that the
deceased Rekhabai was burning. He tried to extinguish
13 cri.appeals.186 and 591-2006
the fire by sprinkling water with the help of the
other villagers. The parents of the deceased Rekhabai
came there. The father of the deceased Rekhabai i.e.
Murlidhar (PW 11) asked her, as to how she got burnt,
whereon she told that accused no.1 and other accused
were demanding money for the business of she-goats
and as she did not bring that amount from her
parents, her husband i.e. accused no.1 and father-in-
law i.e. accused no.2 set her on fire.
15. Murlidhar (PW 11)(Exh.75), father of the
deceased Rekhabai, states that since accused nos.1 to
5 used to illtreat the deceased Rekhabai with a view
to compel her to bring Rs.50,000/- from him, he had
brought her to his house prior to about 2 months of
the incident. On 21.11.2001 at about 10.00 a.m.,
accused no.1 came to his house and asked the deceased
Rekhabai to search out his baniyan from his house.
She was not ready to go with accused no.1, however,
he forcibly took her to his house. Then at about
12.00 noon to 1.00 p.m., one Devidas Bagul came to
14 cri.appeals.186 and 591-2006
his house and informed that all the accused beat the
deceased Rekhabai, poured kerosene on her person and
set her on fire. When he went to the house of the
accused, he saw that the deceased Rekhabai was lying
on the ground in the house. Many persons had gathered
there. On being asked by him, the deceased Rekhabai
told that she was beaten by accused nos.1 to 5 for
money for the business of she-goats, playing cards
and drinking alcohol by accused no.1. Since the said
amount was not given to them, accused no.1 poured
kerosene on her person and accused no.2 set her on
fire.
16. A.S.I. Fulpagare (PW 9)(Exh.71) deposes that
after receiving the written order (Exh.72) from the
Police Station Officer of Dhule City Police Station,
he went to the Civil Hospital, Dhule and after
getting it verified from the Medical Officer about
fit condition of Rekhabai to give statement, he
recorded her statement (Exh.69) on 21.11.2001 between
5.10 p.m. and 5.30 pm. as per her say. He read over
15 cri.appeals.186 and 591-2006
the contents thereof to her and when she admitted
them to be correct, he obtained her left hand thumb
impression thereon. The Medical Officer again
examined her and opined that she was in a fit
condition to give the statement. The said statement
has been treated as F.I.R. and after her demise, it
assumed the character of dying declaration. In the
said dying declaration, the deceased Rekhabai
mentioned that on 21.11.2001 at about 12.00 noon,
accused no.1 came to her maternal home where she was
residing since before 2 to 3 months, because of the
quarrel with accused no.1. He asked her to search
out his baniyan from his house. He took her to his
house where he poured kerosene on her person and
accused no.2 set her ablaze by igniting a match-
stick. She states that accused nos.3 to 5 also were
present in the house. However, she did not allege
anything against them.
17. Ratnakar Vasaikar (PW 5)(Exh.49), who was
working as Awal Karkoon in the Tahsil Office, states
16 cri.appeals.186 and 591-2006
that the Tahsildar had empowered him to record dying
declarations. On 21.11.2001, he received a memorandum
from the police for recording dying declaration of
the deceased Rekhabai. Accordingly, he went to the
Civil Hospital, Dhule and after getting it verified
from the Medical Officer that Rekhabai was in a fit
condition to give statement, he recorded her
statement as per her say, read over the contents
thereof to her and when she admitted correctness
thereof, he obtained her left hand thumb impression
thereon. Thereafter also, the Medical Officer
examined her and opined that she was in a fit
condition to give statement. The said dying
declaration is at Exh.56. In that dying declaration,
the deceased Rekhabai states that accused no.1 used
to demand money from her for playing cards and for
consuming liquor, but since she was not giving money
to him, he sent her to her maternal home. She then
states that on 21.11.2001, accused no.1 came to her
maternal home and took her to his house on the say
17 cri.appeals.186 and 591-2006
that his baniyan was to be traced out. Accused no.1
poured kerosene on her person and set her ablaze. She
then refers to the fact that accused nos.2 to 5 were
present in the house.
18. Dr.Rajput (PW 8)(Exh.68) deposes that
firstly A.S.I. Fulpagare (PW 9) approached him with a
request to examine the deceased Rekhabai and opine
whether she was in a fit condition to give statement.
Accordingly, he examined her and found that she was
in a fit condition to give statement. A.S.I.
Fulpagare (PW 9) recorded her dying declaration
(Exh.69) in his presence. He again examined her and
found that she was in fit condition to give
statement. The dying declaration (Exh.69) bears his
endorsement to that effect, which has been made at
5.30 p.m. on 21.11.2001. Dr.Rajput (PW 8) further
states that on the same day at about 5.30 p.m., dying
declaration (Exh.56) was recorded by the Executive
Magistrate. At that time also, he examined the
deceased Rekhabai and found that she was conscious to
18 cri.appeals.186 and 591-2006
give statement. Accordingly, he made endorsement
under his signature on that dying declaration. The
Executive Magistrate then recorded the dying
declaration of the deceased Rekhabai. He then again
examined her and opined that she was conscious to
give statement. Accordingly, he made endorsement on
the dying declarations. The dying declaration
(Exh.56) bears the endorsement to that effect given
by Dr.Rajput (PW 8) prior to and after recording it
i.e. at 5.30 p.m. and 5.45 p.m. respectively on
21.11.2001.
19. The deceased Rekhabai was initially admitted
in Cottage Hospital, Dondaicha, from where she was
referred to Civil Hospital, Dhule. Dr.Rajput (PW 8)
(Exh.68) deposes that the deceased Rekhabai was
admitted in Civil Hospital, Dhule at 4.10 p.m. on
21.11.2001. She had sustained 88% of burn injuries.
When she was admitted, she told him that she was
burnt by her husband i.e. accused no.1 by pouring
kerosene at about 12.00 noon. It has come in
19 cri.appeals.186 and 591-2006
paragraph 4 of his cross-examination that he asked
history of the incident to the deceased Rekhabai when
she was admitted in the hospital. He scribed that
history, as stated by the deceased Rekhabai, at page
9 of the case papers and obtained her left hand thumb
impression thereon. It has further come in his cross-
examination that the deceased Rekhabai told him that
she sustained burn injuries due to pouring of
kerosene by her husband on 21.11.2001 at 12.00 noon.
After recording the history of the incident in
writing, Dr.Rajput (PW8) obtained thumb mark of the
deceased Rekhabai thereunder. This evidence has not
only remained unchallenged, but has been got
confirmed by the learned Counsel for the accused in
the cross-examination of Dr.Rajput (PW 8). There is
nothing in the cross-examination of Dr.Rajput (PW 8)
suggesting that the above-mentioned history of the
incident was given by the deceased Rekhabai either at
the instance of her father Murlidhar (PW 11) or
anybody else. As such, the deceased Rekhabai was not
20 cri.appeals.186 and 591-2006
influenced by anybody at the time of giving the said
statement. Since the said statement pertains to the
cause of injuries sustained by her leading to her
death, it is admissible under Section 32(1) of the
Evidence Act, being the dying declaration. This dying
declaration has been given by the deceased Rekhabai
voluntarily. The contents thereof have not been
challenged. There is no reason to raise suspicion
about truthfulness thereof. As such, it is not only
voluntary but truthful as well.
20. As stated above, there are multiple dying
declarations which are inconsistent with reference
to the roles attributed against accused no.2 as also
against accused nos.3 to 5. Therefore, it will have
to be considered as to which of these dying
declarations is believable.
21. Here reference may be made with convenience
to the judgment in the case of Raju Devade Vs.
State of Maharashtra AIR 2016 SC 3209, wherein it has
21 cri.appeals.186 and 591-2006
been held that 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.
22. 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
22 cri.appeals.186 and 591-2006
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.
23. The the case papers (Exh.70) show that
Murlidhar (PW 11) had brought the deceased Rekhabai
to the Civil Hospital at Dhule. There is every
possibility of his influencing the deceased Rekhabai
to involve the names of the other accused persons and
particularly, that of accused no.2 in the incident of
burning. There is no mention in her dying declaration
recorded by Dr.Rajput (PW 9) himself at page 9 of the
case papers (Exh.70) as well as in the dying
declaration (Exh.56) recorded by Vasaikar (PW 5),
that accused no.2 actually set her ablaze by igniting
a match-stick. Therefore, the oral dying declaration
of the deceased Rekhabai given before Subhash (PW 10)
and Murlidhar (PW 11) involving accused nos.2 to 5 as
well as the written dying declaration (Exh.69)
23 cri.appeals.186 and 591-2006
recorded by A.S.I. Fulpagare (PW 9) involving accused
no.2 or other accused persons, in the incident of
burning, being not consistent with her dying
declaration recorded at page 9 of the case papers
(Exh.70) and dying declaration (Exh.56), will have to
be discarded from consideration.
24. All the dying declarations are consistent in
respect of the role played by accused no.1. The dying
declaration (Exh.70) and the dying declaration
(Exh.56) clearly and clinchingly disclose that
accused no.1 poured kerosene on her person and set
her ablaze. These dying declarations create a great
confidence to the extent of the role played by
accused no.1 in the incident of burning the deceased
Rekhabai. So far as accused nos.2 to 5 are concerned
the dying declarations of the deceased Rekhabai are
not consistent to prove their involvement in the
incident in question. There is no sufficient and
dependable evidence to connect them with the said
incident.
24 cri.appeals.186 and 591-2006
25. Dr.Pathak (PW 6)(Exh.62) conducted post-
mortem of the body of the deceased Rekhabai on
23.11.2001 between 10.30 a.m. and 11.30 a.m.. He
found the following external injuries :-
Superficial to deep thermal burns on -
Front of trunk - 15%
Right upper limb - 9%
Left upper limb - 9%
Right lower limb - 18%
Left lower limb - 18%
Back - 18%
External genitals
and perineum - 1%
Total - 86%
He states that the said injuries were ante-mortem.
He opined that Rekhabai died due to shock following
thermal burns. He states that the said injuries were
possible by pouring kerosene and setting the deceased
Rekhabai ablaze. According to him, the said injuries
were sufficient to cause death of a person in the
ordinary course of nature.
25 cri.appeals.186 and 591-2006
26. Murlidhar (PW 11) states that he produced
the pieces of burnt saree, petticoat and blouse of
the deceased Rekhabai in Dondaicha Police Station.
The said burnt clothes were seized under panchnama
(Exh.48) by P.S.I. Shukla (PW 13). Though Rama (PW 3)
(Exh.46) and Jatan (PW 4)(Exh.47), who happened to be
the panchas to the seizure panchnama (Exh.48), turned
hostile, the evidence of Murlidhar (PW 11) and P.S.I.
Shukla (PW 13) coupled with the contents of panchnama
(Exh.48), sufficiently prove that the said clothes
were produced by Murlidhar (PW 11) and the same were
seized by P.S.I. Shukla (PW 13). The said clothes
were sent for chemical analysis with the letter
(Exh.67) with Police Constable Sonawane (PW7). Borse
(PW 12)(Exh.83), the Chemical Analyst, who examined
the said clothes, found residues of kerosene thereon.
Accordingly, he prepared report (Exh.86). It is,
thus, clear that the deceased Rekhabai sustained
burns due to pouring of kerosene on her person.
26 cri.appeals.186 and 591-2006
27. Popat (PW 1) is the panch to the spot of the
incident from where a green coloured kerosene can, a
match-box of Red Horse brand and two burnt match-
sticks were seized. However, the sample of kerosene
that was taken in a glass-bottle from the kerosene
can was actually sent to the Chemical Analyst. Though
the match-box of 'Red Horse' brand was seized under
panchnama (Exh.43), the match-box of 'Super' brand
was actually sent for chemical analysis. The
prosecution has not explained this anomaly.
Therefore, the C.A. report in respect of the sample
of kerosene and match-box would not be helpful to the
prosecution. However, even after discarding the said
evidence, there would be no adverse effect on the
case of the prosecution in view of the above-referred
concrete evidence to connect accused no.1 with the
incident in question.
28. The defence of accused no.1 is not at all
consistent and belivable. In answer to question
27 cri.appeals.186 and 591-2006
no.22, accused no.1 states in his examination under
Section 313 of the Code of Criminal Procedure that
accused no.2 had lent Rs.45,000/- to Murlidhar (PW11)
for purchasing she-goats. Accused no.2 demanded back
that amount from Murlidhar (PW 11), but he refused to
pay the same. According to accused no.1, Murlidhar
(PW 11) took the deceased Rekhabai to his house and
set her on fire and filed a false case. However,
Gopichand (DW 1)(Exh.104) examined by accused no.1 in
his defence, states that on the day of the incident
at about 12.00 noon, one boy from the lane of accused
persons, came to his house and informed that Rekhabai
was burnt. Therefore, he went to the house of
accused no.1 along with accused nos.1, 3 and 5 and
saw that the deceased Rekhabai was lying on the
ground in the house of the accused. This evidence
shows that the deceased Rekhabai was not at the
house of Murlidhar (PW11) at the time of the
incident. The defence of accused no.1 that Murlidhar
(PW11), who is none other than the father of the
28 cri.appeals.186 and 591-2006
deceased Rekhabai, himself set her on fire is totally
false and baseless.
29. From the above facts of the case as well as
the evidence on record, it is clear that accused no.1
took the deceased Rekhabai to his house from the
house of Murlidhar (PW 11) on 23.11.2001 and then set
her on fire after pouring kerosene on her person at
about 12.00 noon. There is absolutely no evidence to
suggest that the deceased Rekhabai committed suicide.
There is no evidence to indicate that the accused
persons in any manner abetted the deceased Rekhabai
to commit suicide. In paragraph 52 of the impugned
judgment, the learned trial Judge observed that there
are inconsistencies in the dying declarations of the
deceased Rekhabai and therefore, the prosecution
failed to establish beyond doubt, that the accused
set the deceased Rekhabai on fire by pouring kerosene
on her person. He then observed that, on the
contrary, in his opinion, possibility of committing
suicide by the deceased Rekhabai by pouring kerosene
29 cri.appeals.186 and 591-2006
on her person and setting herself on fire, cannot be
ruled out and the death of Rekhabai is suicidal
death. It is neither the case of the prosecution that
the deceased Rekhabai committed suicide nor is there
any evidence indicating that she committed suicide.
Thus, the opinion of the learned trial Judge is
totally contrary to the evidence. It is not only
strange and baseless but perverse as well.
30. The evidence of Dr.Pathak (PW 6) shows that
the injuries sustained by the deceased Rekhabai were
sufficient in the ordinary course to cause death.
Accused no.1 being husband of the deceased Rekhabai
was under an obligation to take care and caution for
safety of the deceased Rekhabai. Instead of caring
for her safety, he set her ablaze causing her serious
injuries, to which, ultimately, she succumbed on
22.11.2001 at 5.00 p.m. He did not try to extinguish
fire from her person. He did not take her to the
hospital for treatment. It is, thus, clear that
accused no.1 set the deceased Rekhabai on fire with
30 cri.appeals.186 and 591-2006
intent to cause her death. As such, the prosecution
established that accused no.1 committed culpable
homicide as defined under Section 300 punishable
under Section 302 of the I.P.C.
31. So far as the offence under Section 498-A of
the I.P.C. is concerned, the evidence on record is
not sufficient to prove guilt of the accused for the
said offence. As per the evidence of Murlidhar
(PW11), the deceased Rekhabai was residing at his
house since before two months of the incident in
question. Nobody had complained against accused no.1
including Rekhabai, prior to the date of the
incident, about having subjected her to cruelty on
any count. The dying declarations of the deceased
Rekhabai simply refer to the quarrels between accused
no.1 and herself on the count of his demand for money
from her for playing cards and for consuming liquor.
There is no mention that she was beaten by accused
no.1 at any point of time so severely as to cause
grave injury or danger to her life, limb or health or
31 cri.appeals.186 and 591-2006
acted in such a manner that she was likely to be
driven to commit suicide. The evidence on record in
respect of the alleged illtreatment prior to the date
of the incident being hearsay, would not be
admissible under Section 32(1) of the Evidence Act,
since it does not pertain to the cause of death of
Rekhabai or any of the circumstances of the
transaction which resulted in her death. In the
circumstances, the conviction of accused no.1 and
that of accused nos.2 to 5 for the offence punishable
under Section 498-A of the I.P.C. cannot be said to
be legal and sustainable.
32. In view of the aforesaid discussion, we hold
accused no.1 only guilty for the offence punishable
under Section 302 of the I.P.C. The judgment
convicting accused nos.1 to 5 for offences punishable
under Sections 306 and 498-A of the I.P.C. is liable
to be quashed and set aside. Criminal Appeal No.186
of 2006 filed by the accused is liable to be allowed
to the extent of holding the accused persons guilty
32 cri.appeals.186 and 591-2006
for the offences punishable under Sections 306 and
498-A read with 34 of the I.P.C. However, Criminal
Appeal No.591 of 2006 filed by the prosecution is
liable to be allowed partly, since the prosecution
established guilt of the respondent/accused no.1 only
for the offence punishable under Section 302 of the
I.P.C. only. The said appeal is liable to be
dismissed against accused no.1 for the remaining
offences and against the remaining accused for all
the offences.
33. Though accused no.1 is liable to be
convicted and sentenced for the offence punishable
under Section 302 of the I.P.C., this being not the
rarest of rare case, capital punishment is not
warranted. Consequently, the only alternate
punishment, i.e. imprisonment for life, will have to
be inflicted against accused no.1 besides fine. In
our view, accused no.1 should be sentenced to pay a
fine of Rs.25,000/- so that some amount could be
awarded to the father of the deceased Rekhabai as
33 cri.appeals.186 and 591-2006
compensation. In the result, we pass the following
order :-
(1) The impugned judgment and order convicting
accused nos.1 to 5 for the offences
punishable under Sections 306 and 498-A read
with Section 34 of the Indian Penal Code are
quashed and set aside. They are acquitted of
the said offences. Instead, accused no.1
alone is convicted for the offence
punishable under Section 302 of the Indian
Penal Code.
(2) Accused no.1 is sentenced to suffer
imprisonment for life and to pay a fine of
Rs.25,000/- (Rupees Twenty Five Thousand),
in default to suffer rigorous imprisonment
for six months for the offence punishable
under Section 302 of the Indian Penal Code.
(3) Accused no.1 shall surrender to his bail
bonds by appearing before the trial Court
34 cri.appeals.186 and 591-2006
within a period of two weeks from today for
suffering the sentence passed against him by
this order.
(4) In case accused no.1 fails to appear before
the trial Court within a period of two weeks
from today, the trial Court shall issue
coercive process against him for securing
his presence.
(5) If the fine amount is recovered, an amount
of Rs.20,000/- (Rupees Twenty Thousand) be
paid to Shri.Murlidhar Baliram Bagul, r/o.
Malpur, Tq.Shindkheda, Dist. Dhule, as
compensation.
(6) Criminal Appeal No.591 of 2006 is dismissed
against accused nos.3 to 5. They are
acquitted of all the offences.
(7) Bail bonds of accused nos.3 to 5 are
cancelled. They are set at liberty.
35 cri.appeals.186 and 591-2006
(8) Both the Criminal Appeals are accordingly
disposed of.
[SANGITRAO S. PATIL, J.] [SUNIL P. DESHMUKH, J.]
kbp
