State Of Maha vs Pandit Waman Dadke & Ors
2017 Latest Caselaw 9446 Bom

                                                       Cri. Appeal No. 53/2003
                                            1


                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 53 OF 2003

       The State of Maharashtra,
       Through Police Station,
       District Parbhani.                       ....Appellant

               Versus

1.     Pandit s/o Waman Dadke,
       Age 26 years, Occu. Tailor.

2.     Sou. Sakhubai w/o Waman Dadke,
       Age 55 years, Occu. Household.

3.     Sou. Kamalbai w/o Waman Kausadikar,
       Age 30 years, Occu. Household.

4.     Sanjay s/o Waman Dadke,
       Age 20 years, Occu. Private Service.

5.     Dinesh s/o Waman Dadke,
       Age 19 years, Occu. Private Service.

6.     Waman s/o Ashroba Dadke,
       Age 62 years, Occu. Pensioner.

       All R/o Parbhani District Parbhani.
       At present All R/o Ahilyabai Holkar
       Nagar, Inside of MIDC, Koregaon Road
       canal, Opp. to school, Parbhani.                 ...Respondents.


Mr. V.S. Badakh, APP for appellant/state.
Mr. S.S. Rathi Advocate for respondent/State Nos.1 to 6
                                CORAM   :
                            T.V. NALAWADE AND
                            ARUN M. DHAVALE, JJ.

DATED : 08/12/2017 JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against the judgment and order of

Sessions Case No. 133/1999, which was pending in the Court of

Cri. Appeal No. 53/2003

learned 1st Ad-hoc Additional Sessions Judge, Parbhani. The Trial

Court has acquitted all the accused, present respondents of the

offences punishable under sections 498-A, 302 and 34 of Indian

Penal Code (hereinafter referred to as 'IPC' for short). Both the sides

are heard.

2) In short, the facts leading to the institution of the

present proceeding can be stated as follows :-

Deceased Savita was given in marriage to accused No. 1

Pandit about one an half years prior to the date of incident. She has

not left behind any issue from this marriage. Accused Nos. 2 and 6

are parents of accused No. 1. Accused No. 3 is sister of accused No.

1 and accused Nos. 4 and 5 are brothers of accused No. 1.

3) The incident in question took place on 27.10.1998 in the

matrimonial house of deceased Savita. She sustained burn injuries

in the house and she was shifted to Civil Hospital, Parbhani. When

the incident took place at about 12.00 noon, the first statement of

this lady came to be recorded on 27.10.1998 at about 2.50 p.m.

through Executive Magistrate, Parbhani. In that statement, she gave

account of burn injuries as accidental burns. Second statement of

Savita came to be recorded on 28.10.1998 at 15.35 hours in which

she blamed all the accused by disclosing that there was illtreatment

Cri. Appeal No. 53/2003

to her from accused persons. She disclosed that she was frustrated

due to illtreatment and so, she had set fire to herself by pouring

kerosene on her person. However, she disclosed that she was

admitted in the hospital by her husband. The second statement was

also recorded by the same Executive Magistrate, who had recorded

the first statement.

4) The third statement of Savita came to be recorded on

29.10.1998 and this statement came to be recorded by other

Executive Magistrate. In this statement, the deceased disclosed that

in the incident, her sister in law had held her, her mother in law also

held that, her brother in law had fetched the kerosene and other

brother in law was present to help him and then husband had set

fire to her by pouring kerosene on her person and the fire was

extinguished by neighbours and by her husband when she started

shouting.

5) Savita succumbed to injuries on 31.10.1998. On the

basis of statement dated 28.10.1998 the crime came to be

registered initially for the offence punishable under section 498-A of

IPC and after the death of Savita, in view of subsequent dying

declaration, the crime came to be registered for other offence like

offence punishable under section 302 of IPC also. Section 120-B of

Cri. Appeal No. 53/2003

IPC was also used. Inquest panchanama of the dead body was

prepared. The spot panchanama was prepared. The doctor, who

conducted the P.M. examination, gave opinion that the death took

place due to 100% burn injuries due to which septicemia was

developed. The death had taken place due to cardio-respiratory

failure.

6) Police recorded statements of close relatives of deceased

on parents' side. Articles taken over during investigation were sent

to C.A. office and the chargesheeet was filed for aforesaid offences.

The charge was framed for aforesaid offences. The accused pleaded

not guilty. The prosecution examined in all nine witnesses. In view of

the multiplicity of dying declarations mentioned above and as they

were inconsistent with each other, the Trial Court has not placed

reliance on the record of dying declarations. Some witnesses

examined by the prosecution to give direct evidence are also not

believed by the Trial Court.

7) The defence has not disputed that the death took place

due to septicemia which was developed due to 100% burn injuries.

The P.M. report at Exh. 31 is admitted by the defence. When the

death takes place due to burn injuries, it can be accidental, suicidal

or homicidal. Thus, only due to the cause of death in the present

Cri. Appeal No. 53/2003

matter, it is not possible to infer that it is the case of homicide or

suicide.

8) In the first dying declaration dated 27.10.1998, the

deceased had disclosed that her clothes had caught fire due to

flames of stove and all the persons from the house, accused

extinguished the fire and in that incident, even her husband had

sustained some burn injuries. She had disclosed that the husband

and relatives of husband had shifted her to Government Hospital for

treatment and she had no complaint against anybody. As against

this first disclosure, in the second disclosure she made allegations of

illtreatment against the husband and parents of the husband. She

disclosed that her husband was asking her to bring ornaments from

her parents and they were teasing her that she was not even able to

do the household work. She disclosed that the husband and in laws

used to give beating to her. Even when sister in law was not residing

there, she made allegations against her that she was instigating her

husband to give illtreatment. The name Manisha, other sister in law

was taken, but fortunately, she was not made accused by police. She

disclosed that her both brothers in law were giving illtreatment and

they had assaulted her on 2-3 occasions. She disclosed that on

27.10.1998 due to pressure of husband and in laws she had not

given correct account of the incident. She disclosed that on

Cri. Appeal No. 53/2003

27.10.1998 she had entered in bathroom and after pouring kerosene

on her own person she had set fire to herself. However, she admitted

that she was taken to the hospital by her husband and her in laws

for treatment.

9) In the third dying declaration dated 29.10.1998 the

deceased gave altogether different account. She first disclosed that

she had not correctly described the incident on previous two

occasions due to pressure of accused. She disclosed that in the

incident her two sisters in law like Kamlabai and Manisha had held

her legs, her mother in law had held her hands, her one brothers in

law Sanjay tied her hands by using rope and other brother in law

Dinesh had fetched can of kerosene, her husband had taken her to

bathroom where kerosene was poured on her person and then her

husband had set fire to her in bathroom. She disclosed that to

prevent her from raising shouts, she was gagged by putting cloth in

her mouth by her mother in law. She disclosed that after seeing the

flames, her neighbours had rushed there and then the fire was

extinguished by her husband. Thus, the third disclosure was totally

different and totally inconsistent with the first disclosure. Thus, all

the three disclosures are inconsistent with each other.

10) The spot panchanama at Exh. 62 is admitted by the

Cri. Appeal No. 53/2003

defence. This document shows that it was prepared on 27.10.1998,

on the day of incident between 14 hours and 14.30 hours. This

document shows that the house consist of four rooms and the room

from backside was being used as kitchen. It was having R.C.C.

construction. The kitchen was having size of 10 ft. x 10 ft., having

floor of tiles. In the kitchen, pieces of partly burnt Sari of deceased

were lying. In the courtyard, there was bathroom and one hand

pump. The fire had reached up to leaves and stems of the tree and

some pieces of Sari were lying there also. No piece of Sari was lying

inside of the bathroom. From the kitchen one kerosene stove was

collected and the pieces of partly burn Sari were also collected. The

circumstances mentioned in the spot panchanama show that the

incident had started inside of the kitchen and probably the deceased

was taken outside of the kitchen to extinguish the fire. These

circumstances are not consistent with the subsequent two

declarations made by the deceased, but they are consistent with the

first disclosure made on 27.10.1998.

11) The prosecution has examined one Manik Kute (PW 2), a

boy living in the vicinity. He has tried to say that by chance, he was

present on the terrace of the house on one Jamdadebai and from

there, he saw that the legs and hands of Savita were being tied in

bath room and he had seen Dinesh, Sanjay, Kamlabai, Shakuntala,

Cri. Appeal No. 53/2003

Pandit and Manisha tying the limbs of the deceased. He has deposed

that he saw that kerosene was poured by husband in the bathroom,

then she was taken outside and then Pandit had set fire to the

deceased. He has deposed that when the incident was taking place,

Jamdadebai was taking bath in her house. His police statement was

recorded on 29.10.1998.

12) Kalawati Jamdade (PW 4) has given evidence that at

about 12.30 p.m. on that day when she was taking bath, she saw

fire through the door of bath room and so, she came out of bath

room and she saw that Savita was in flames. She has deposed that

nobody was extinguishing the fire and so, she raised shouts. She has

deposed that Pandit, Dinesh, Sakhubai, Manisha, Kamal were

watching from their house that Savita was burning. However, she

has tried to say that husband was pushing the deceased towards the

side of hand pump. She has given evidence that her son Vishnu

extinguished the fire. Vishnu is not examined. Her police statement

was recorded on 29.10.1998.

13) There is no explanation from these two witnesses or

police as to why the statements of these two witnesses were not

recorded immediately. Further, their versions are not explaining as to

how the pieces of partly burnt Sari were found in the kitchen. Due to

Cri. Appeal No. 53/2003

these circumstances, this Court holds that these two witnesses

cannot be believed.

14) The prosecution has examined other witnesses like

Suresh Ingale (PW 3), brother of he deceased, Radhabai (PW 5)

mother of the deceased and they have given evidence on the

illtreatment against the accused. They have given evidence that on

trivial grounds, the accused were harassing the deceased and they

were saying that the deceased was not able to do even household

work. The mother has tried to say that the conduct of the accused

showed that they were not satisfied with the dowry of Rs.50,000/-

given to the accused at the time of marriage. The evidence of

mother, however, shows that the deceased used to visit the house of

her parents on the occasions of festivals and the husband used to

take back the deceased without complaining of anything.

15) In the first disclosure, the deceased had specifically

mentioned that she had no complaint against anybody. In the

second disclosure, she had made complaint against the accused that

they were harassing her by saying that she did not know the

household work. She had disclosed that husband was saying that her

parents were not giving ornaments and money to him but that is not

the case of close relatives of deceased in direct evidence. The

Cri. Appeal No. 53/2003

statements of these witnesses were not recorded immediately and

they gave statements on 29.10.1998. If they had really some

grievance against the accused of aforesaid nature, they would have

given complaint to police immediately on 27 th. It can be said that

only after their arrival, the third disclosure dated 29.10.1998 was

recorded by police. There is clear possibility of tutoring from the

close relatives and due to that, the third disclosure of aforesaid

nature was made. Due to these circumstances, this Court holds that

close relatives of the deceased cannot be believed. The conduct of

the accused persons was not consistent with the guilt. Even when

one sister in law, who was made accused was not living there, she

was made accused and there is no convincing evidence to show that

she had come to the house of parents on that day. In dying

declaration, allegations were made even against second sister in law,

but she is not made accused and no reason is given for the same by

the prosecution. In view of these circumstances, this Court holds

that the view taken by the Trial Court is a possible view and it is not

possible to interfere in the decision given by the Trial Court in favour

of the accused persons. In the result, the appeal stands dismissed.

       [ARUN M. DHAVALE, J.]           [T.V. NALAWADE, J.]



ssc/