Bombay High Court
Shrimant Chandar Bansode vs The State Of Mah on 8 December, 2017
Bench: S.P. Deshmukh
1 920 J Cri A 730-08.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.730 OF 2008
Shrimant s/o Chandar
Bansode, Age : 21 years,
Occ.: Nil, R/o.: Nandurga
(Gogaon), Tq. & Dist. ... Petitioner.
Osmanabad. (Ori.Accused No.1)
Versus
The State of Maharashtra ..Respondent
(Prosecution)
-----
Mr. P.S. Chavan, Advocate for petitioner
Mr. P.K. Lakhotiya, A.P.P. respondent
-----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL,JJ.
RESERVED ON : 23-11-2017
PRONOUNCED ON: 08-12-2017
JUDGMENT (PER SANGITRAO S. PATIL, J.)
The appellant has challenged his
conviction and sentence for the offences
punishable under Sections 302 and 498-A of the
Indian Penal Code ("IPC" for short) recorded by
the Sessions Judge, Osmanabad in Sessions Case
2 920 J Cri A 730-08.odt
No.34 of 2008 on 26-11-2008.
2. The deceased Sheetal got married to the
appellant prior about one month of the incident
that took place on 14-06-2007. After marriage,
she started co-habiting with the appellant. It
is the case of the prosecution/State that the
deceased Sheetal was not liked by the appellant.
Therefore, he used to beat and illtreat her. She
was driven out of the house by the appellant.
Her parents took her to the appellant's house on
13-06-2007. They persuaded the appellant to
treat her properly. They stayed at the house of
the appellant in the night. In the morning of
14-06-2007, the father of the deceased Sheetal
namely Kisan Gyana Sonawate left for his
village, while the mother of the deceased
Sheetal namely Mangalbai stayed at the
matrimonial house of the deceased Sheetal
itself. It is alleged that the appellant
picked-up quarrel with the deceased Sheetal and
started beating her on the say that he did not
3 920 J Cri A 730-08.odt
need her. He further poured kerosene on her
person and set her ablaze by a matchstick. The
appellant did not allow her to come out of the
house. She fell down on the ground. After
sometime, her father-in-law viz.:- Chandar
(accused no.2) came back home and took her to
the Civil Hospital at Osmanabad for treatment.
She was admitted there. She had sustained 74%
burns on various parts of her body.
3. Police Head Constable ("PHC" for short)
Kamble recorded the statement of the deceased
Sheetal on the same day between 12.15 and 12.45
p.m. soon after getting it verified from the
Medical Officer that she was in a fit state of
mind to give statement. He produced that
statement in the police station Osmanabad, on
the basis of which CR No.I-66 of 2007 came to be
registered against the appellant and his father
Chandar for the offences punishable under
Sections 307, 498-A and 323 read with Section
34 of the IPC. On the same day, Sheetal died at
4 920 J Cri A 730-08.odt
about 03.45 p.m. After her death, the offence
punishable under Section 307 of the IPC came to
be substituted by the offence punishable under
Section 302 of the IPC.
4. The inquest panchanama of the dead body
of the deceased was prepared. The dead body of
the deceased Sheetal was referred to the Medical
Officer for post mortem ("PM" for short).
Accordingly, Dr.Kanade and Dr.Kamble conducted
PM on the same day between 09.00 p.m. and 10.00
p.m. They found 60% of burns on the body of the
deceased Sheetal. They opined that she died due
to shock of 65% superficial deep burns.
Accordingly, they prepared memorandum of the PM.
The spot panchanama was prepared. A plastic can
containing half liter of kerosene, the burnt
pieces of clothes of the deceased Sheetal and a
match-box came to be seized under the same
panchanama. The statements of witnesses were
recorded. After completion of the investigation,
the appellant and his father namely Chandar came
5 920 J Cri A 730-08.odt
to be prosecuted for the offences punishable
under Sections 302, 498-A and 323 read with
Section 34 of the IPC.
5. The case being exclusively triable by
the Court of Session, the learned Judicial
Magistrate First Class, Osmanabad committed the
case to the Sessions Court for trial.
6. The learned Sessions Judge framed
charges against the appellant and his father for
the offences punishable under Sections 498-A and
302 read with Section 34 of the IPC vide Exh.8
and explained the contents thereof to them in
vernacular. They pleaded not guilty and claimed
to be tried. Their defence is that of total
denial and false implication. According to the
appellant, the deceased Sheetal herself was not
interested in cohabiting with him. She wanted to
marry with one Amol from her maternal village.
She had run away twice from house of the
appellant on the say that he was not liked by
her. Her parents reached her to his house
6 920 J Cri A 730-08.odt
against her wish. On the day of the incident,
the parents of the deceased Sheetal started to
go back to their village, leaving the deceased
Sheetal at the house of the appellant. She was
crying. He then went to his field. Thereafter,
he was informed that she sustained burns and
was admitted in the hospital. The father of the
appellant stated that he had gone to the bus
stand with the father of the deceased Sheetal to
see him off and the mother of the deceased
Sheetal also was away from the house. The
deceased Sheetal was alone inside the house.
When he was coming back to his house from the
bus stand, he heard the shouts of the deceased
Sheetal. The mother of the deceased then ran
towards the house. He also followed her. He saw
that the deceased Sheetal had set herself on
fire. The deceased was taken to the hospital for
treatment.
7. The prosecution examined eight
witnesses to substantiate its case. The
7 920 J Cri A 730-08.odt
appellant examined one Gowardhan Bansode in his
defence. After scrutinizing the evidence on
record, the learned Trial Judge did not find any
evidence to convict the father of the appellant
for the above mentioned offences. Therefore, the
learned Trial Judge acquitted the father of the
appellant of the said offences. The learned
Trial Judge found sufficient evidence to hold
the appellant guilty of the above mentioned
offices. He, therefore, convicted the appellant
and sentenced him to suffer imprisonment for
life and to pay a fine of Rs.2,000/- in respect
of the offence punishable under Section 302 of
the IPC and to suffer rigorous imprisonment for
one year and to pay a fine of Rs.500/- in
respect of the offence punishable under Section
498-A of the IPC.
8. The prosecution has not challenged the
acquittal of original accused No.2 i.e. the
father of the appellant. As such, the judgment
and order acquitting him has attained finality.
8 920 J Cri A 730-08.odt
9. The prosecution is mainly relying on
the evidence of Kisan (PW-2) and Mangalbai
(PW-3) who are the parents of the deceased
Sheetal and her dying declaration (Exh.31)
recorded by PHC Kamble (PW-5) to connect the
appellant with the above mentioned offences.
10. The learned counsel for the appellant
submits that the alleged dying declaration of
the deceased Sheetal is not at all believable.
The medical case papers of the Civil Hospital,
Osmanabad show that the deceased Sheetal had
sustained 74% of burns when she was admitted
there for treatment. Her upper limbs had
sustained 18% of burns. That means her fingers
were totally burnt. She was not in a position to
put thumb mark. However, the dying declaration
(Exh.31) bears a thumb mark having clear curves
and ridges. The said thumb mark has not been
attested by anybody. Therefore, according to
him, the thumb mark on the dying declaration
(Exh.31) cannot be said to be that of the
9 920 J Cri A 730-08.odt
deceased Sheetal.
11. He then submits that the deceased
Sheetal was admitted in the hospital at about
12.55 p.m. The endorsement made at 01.45 p.m. on
the medical papers (Exh.60) shows that Mangalbai
(PW-3), the mother of the deceased Sheetal, was
given to understand that physical condition of
the deceased Sheetal was critical. She was being
extended medical treatment. Therefore, the case
of the prosecution that she was in a fit
condition to give statement (Exh.31) between
12.15 p.m. and 12.45 p.m. cannot be believed.
He submits that Dr.Kamble (PW-6) has not made
endorsement on the dying declaration (Exh.31)
about fitness of the deceased Sheetal to give
statement prior to recording thereof. His
endorsement shows that it was given after
recording of the alleged dying declaration
(Exh.31). The medical case papers (Exh.60) do
not show that she was examined by Dr.Kamble
(PW-6) on that day between 12.15 p.m. and 12.45
10 920 J Cri A 730-08.odt
p.m. He, therefore, submits that considering the
extent of burns sustained by the deceased
Sheetal and her critical condition, it was not
possible for her to give such a detailed and
long dying declaration (Exh.31). He submits
that the dying declaration (Exh.31) is not
truthful and has been recorded at the instance
of the mother of the deceased Sheetal. It cannot
be said to be a statement voluntarily given by
the deceased Sheetal. Therefore, it cannot be
relied on it.
12. He further submits that no independent
witness has been examined by the prosecution to
connect the appellant. On the contrary, the
defence witness Gowardhan (DW-1, Exh.55)
probabalized the defence of the appellant that
the deceased Sheetal herself was not interested
in cohabiting with appellant since she was
compelled to marry with him against her wish.
When her parents insisted upon her to reside at
the house of the appellant, she committed
11 920 J Cri A 730-08.odt
suicide by setting herself ablaze.
13. According to him, the learned Trial
Judge did not appreciate the evidence on record
properly and wrongly convicted the appellant for
the above mentioned offences. In support of his
contentions, he relied on certain judgments,
which would be referred to in the later part of
this judgment.
14. As against this, the learned APP
submits that the dying declaration (Exh.31) has
been made by the deceased Sheetal voluntarily.
It inspires great confidence. The contents
thereof are corroborated by the evidence of
Mangalbai (PW-3), who is an eye-witness to the
incident. According to him, there was no reason
for the deceased Sheetal to commit suicide. She
died at her matrimonial house under unnatural
circumstances. The explanation given by the
appellant is not at all plausible. The dying
declaration (Exh.31) has been rightly believed
by the learned Trial Judge and the appellant has
12 920 J Cri A 730-08.odt
been rightly convicted for the above mentioned
offences.
15. PHC Kamble (PW-5 - Exh.29) of Police
Station, Osmanabad deposes that MLC intimation
letter (Eh.30) was received in the Police
Station from the Duty Medical Officer ("DMO" for
short) of Civil Hospital, Osmanabad on
14-06-2007 at about 12.00 noon about having
admitted the deceased Sheetal in that hospital
for treatment in burn's ward. After receiving
that letter, he went to the hospital and met
Dr.Kamble (PW-6). He requested Dr.Kamble
(PW-6) to accompany him to the burn's ward, as
he wanted to record the statement of the
deceased Sheetal. Accordingly, Dr.Kamble (PW-6)
and himself went to the deceased Sheetal.
Dr.Kamble (PW-6) examined her and opined that
she was able to give statement. Accordingly, PHC
Kamble (PW-5) recorded her statement (Exh.31) as
per her say. After reading over the contents
thereof to her, he obtained her thumb impression
13 920 J Cri A 730-08.odt
thereon. Thereafter, Dr.Kamble (PW-6) again
examined the deceased Sheetal and opined that
she was able to give statement. He then,
endorsed on the statement (Exh.31) accordingly.
16. Dr.Kamble (PW-6) supports the version
of PHC Kamble (PW-5). It has come in the
evidence of PHC Kamble (PW-5) and Dr.Kamble
(PW-6) that at the time of recording the dying
declaration (Exh.31), except the deceased
Sheetal and themselves, no other person was
present there.
17. The dying declaration (Exh.31) in
Marathi is as under:-
"tckc fn- [email protected]@2007-
eh f'kry Hkz- Jhear culksMs o; 20 o"ksZ] /kank ?kjdke] jk-
ukanqxkZ ¼xksxkao½ rk- mLekukckn-
le{k ljdkjh nok[kkuk mLekukckn ;sFks vkS"k/kmipkj ?ksr
vlrkauk fopkjyso#u tckc fygwu nsrs dh] eh ojhy xkoph jkg.kkjh
vlwu ek>s ekgsj ukanqxkZ ¼ns'keq[k½ ;sFkhy vkgs- eyk vkbZ] oMhy vlwu
eyk lkljk panj vlk vlwu eyk lklw ukgh- ek>s yXu xsY;k ,d
efgU;kiwohZ Jhear culksMs ;kaps cjkscj ckS/n Ik/nrhuss ukanqxkZ ¼xksxkao½ ;sFks
>kysys vkgs- yXukr ek>s vkbZ&oMhykauh ek>s uo&;kl cksyY;kizek.ks
5][email protected]& #-pk gqaMk nsowu loZ ekuiku fnysyk vkgs- ek>s yXu
14 920 J Cri A 730-08.odt
>kysiklwu ek>k uojk Jhear gk usgeh eyk Eg.kr vkls dh] rqb;k
vkbZ&oMhykauh rq>s yXu cGp ek>scjkscj ykowu fnysys vkgs] rw eyk
ilar ukghl vls Eg.kwu usgeh ekjgk.k d#u viekuLin okx.kwd nsr
vls- rlsp lkljk panj gki.k eyk usgeh rw yodj >ksisrwu mBwu
dke/kank djhr ukghl vls Eg.kwu viekuLin cksywu =kl nsr vls-
vkt fn- [email protected]@07 jksth ldkGh 0830 ok- ps lqekjkl eh o
ek>k uojk Jhear ?kjkr vlrkauk uojk Jhear ;kus eyk rq>h xjt ukgh
vls cksywu HkkaM.ks lq# dsyh o eyk ykFkk&cqDD;kus ekjgk.k dsyh
o ?kjkrhy jkWdsyP;k MC;krhy jkWdsy ek>s vaxkoj vksrwu dkMh isVhus
isVowu fnys R;keqGs ek>s vaxkojhy diM;kus isV ?ksryk R;kosGh uojk
Jhear toGp mHkk gksrk R;kl eh <dywu ?kjkckgsj tk.;kpk iz;Ru dsyk
ijarq uo&;kus ?kjkckgsj tkow fnys ukgh- R;kuarj eh [kkyh tfeuhoj
iMys- R;kuarj FkksM;k osGkus lkljk panj gk ?kjh vkyk o R;kus eyk
vkS"k/k mipkjklkBh ljdkjh nok[kkuk mLekukckn ;sFks nk[ky dsys vkgs-
ek>s uo&;kus ek>s vaxkoj jkWdsy Vkdwu dkMh isVhus isVowu fnY;kusp
ek>s vaxkojhy diM;kus isV ?ksowu R;kr ek>k psgjk xGk] eku] nksUgh
gkr] nksUgh ik;] iksV] ikB] Nkrh fVpj] bR;knh Hkkx Hkktysyk vlwu
xqIr Hkkxkl gk; ykxysyh vkgs-
l/;k ek>soj l-n- mLekukckn ;sFks vkS"k/kksipkj pkyw vlwu eh
iw.kZi.ks 'kq/nhoj vkgs-
rjh ek>k uojk Jhear o lkljk panj ;kapsoj dk;ns'khj dk;Zokgh
dj.;kr ;koh-
ek>k ojhy tckc ek>s lkax.ks izek.ks fygyk] okpwu nk[koyk
cjkscj o [kjk vkgs-
le{k%& fu-va-
[email protected]&
iksfyl pkSdh vaeynkj]
ftYgk 'kkldh; #X.kky;]
mLekukckn- iksfyl Bk.ks] mLekukckn-"
15 920 J Cri A 730-08.odt
18. The dying declaration (Exh.31) is not
recorded in question answer form. It is in a
narrative form. It is quite exhaustive. The
medical case papers (Exh.60) of the deceased
Sheetal show that she was admitted in Civil
Hospital at Osmanabad at about 12.55 p.m.
Mangalbai (PW-3) has put her thumb mark under
the endorsement made at page 2 of the said case
papers on that day at about 01.45 p.m., whereby
she was given to understand that physical
condition of the deceased Sheetal was critical.
The deceased Sheetal was gasping at 03.30 p.m.
and expired at 03.45 p.m. as seen from the
medical case papers (Exh.60).
19. Dr.Kamble (PW-6) specifically states
that the deceased Sheetal was admitted in the
hospital at Osmanabad at about 12.00 noon. He
states that he intimated to the Police Station
about admission of the deceased Sheetal in the
hospital in burn's ward at about 12.00 noon on
14-06-2007 vide letter (Exh.30). The said letter
16 920 J Cri A 730-08.odt
contains outward No.MLC/TJK/3443/01 dated
14-06-2007 at 12.00 p.m. In the letter obviously
TJK stands for Tushar Jalindar Kamble, i.e. the
full name of PHC Kamble (PW-6). In that letter,
Dr.Kamble (PW-6) mentioned that the deceased
Sheetal admitted in burn's ward for treatment as
she had sustained 74% of burns. However, the
case papers (Exh.60) show that she was admitted
in burn's Ward at about 12.55 p.m. It is not
explained by the prosecution as to where she was
from 12.00 noon to 12.55 p.m. When the deceased
Sheetal was not actually admitted in the burn's
ward till 12.55 p.m., the evidence of PHC Kamble
(PW-5) and Dr.Kamble (PW-6) that the dying
declaration (Eh.31) was recorded between 12.15
p.m. and 12.45 p.m., when the deceased Sheetal
was admitted in the burn's ward becomes
doubtful.
20. The dying declaration (Exh.31) does not
bear endorsement of Dr.Kamble (PW-6) prior to
it's recording, certifying that the deceased
17 920 J Cri A 730-08.odt
Sheetal was in a fit state of mind to give
statement. Dr.Kamble (PW-6) has made endorsement
about the condition of the deceased Sheetal to
give statement after recording dying declaration
(Exh.31), wherein he has mentioned that she was
conscious and oriented. He mentioned the time as
"12.15 to 12.45 p.m." below his signature. Such
type of endorsement was not expected of a
responsible person like Medical Officer. He
should have specifically mentioned that the
deceased Sheetal was in a fit condition to give
statement prior to it's recording and even
thereafter by mentioning specific times in his
endorsements. There is no mention in the case
papers (Exh.60) that Dr.Kamble (PW-6) examined
the deceased Sheetal on 14-06-2007 either at
12.15 p.m. or 12.45 p.m.
21. As stated above, Mangalbai (PW-3) was
given to understand at 01.45 p.m. that physical
condition of the deceased Sheetal was critical.
She was being extended necessary treatment. If
18 920 J Cri A 730-08.odt
that be so, it was not natural and probable on
the part of the deceased Sheetal to give such an
exhaustible statement as scribed in Exh.31,
prior to about one hour thereof.
22. The deceased Sheetal was an illiterate
woman. The language used and the manner in which
the dying declaration (Exh.31) has been recorded
creates a grave doubt that an illiterate woman
would use such language and narrate the events
in such a manner.
23. Dr.Kanade (PW-1)(Exh.15), who conducted
PM of the body of the deceased Sheetal, states
that right and left upper extremities of the
deceased Sheetal were burnt to the extent of 9%
each. As such, her fingers were totally burnt.
In the circumstances, it would not have been
possible for the deceased Sheetal to give her
thumb impression with clear curves and ridges.
There is no mention whether this was a thumb
mark of right hand or left hand. It has not been
attested by anybody. These circumstances also
19 920 J Cri A 730-08.odt
create suspicion about genuineness of the thumb
impression of the deceased Sheetal on dying
declaration (Exh.31).
24. The leaned counsel for the appellant
cited the case of State of Punjab Vs. Gian Kaur
and another, AIR 1998 SC 2809, wherein the
deceased wife had sustained 100% of burn
injuries and both of her thumbs were burnt.
However, the dying declaration was bearing thumb
impression with clear ridges and curves.
Therefore, her dying declaration was not
believed. In the present case also, both the
upper extremities of the deceased Sheetal were
fully burnt i.e. to the extent of 9% each. The
prosecution has not explained as to how her
thumb impression could bear clear ridges and
curves.
25. The learned counsel for the appellant
further cited the case of K. Ramachabndra Reddy
and another Vs. The Public Prosecutor, AIR 1976
SC 1994, wherein the test of reliability of a
20 920 J Cri A 730-08.odt
dying declaration has been given in para 6 as
under:
"The dying declaration is
undoubtedly admissible under
s.32 of the Evidence Act and not
being a statement on oath so
that its truth could be tested
by cross-examination, the Courts
have to apply the strictest
scrutiny and the closest
circumspection to the statement
before acting upon it. While
great solemnity and sanctity is
attached to the words of a dying
man because a person on the
verge of death is not likely to
tell lies or to concoct a case
so as to implicate an innocent
person yet the Court has to be
on guard against the statement
of the deceased being a result
of either tutoring, prompting or
a product of his imagination.
The Court must be satisfied that
the deceased was in a fit state
of mind to make the statement
after the deceased had a clear
opportunity to observe and
identify his assailants and that
he was making the statement
without any influence or
rancour. Once the Court is
satisfied that the dying
declaration is true and
voluntary it can be sufficient
to found the conviction even
without any further
corroboration".
21 920 J Cri A 730-08.odt
In the present case, as stated above, there are
a number of circumstances, creating doubt about
the fact of giving the dying declaration
(Exh.31) by the deceased Sheetal voluntarily.
The dying declaration (Exh.31) has not been
recorded by an independent officer. PHC Kamble
(PW-5) belongs to investigating wing. There is
no explanation as to why request was not made to
any Special Judicial Magistrate to record dying
declaration of the deceased Sheetal. In the
circumstances, the dying declaration (Exh.31)
cannot form the basis of conviction without
further corroboration.
26. The prosecution examined Kisan (PW-2)
(Exh.19) and Mangalbai (PW-3) (Exh.20), who are
the parents of the deceased Sheetal, to
corroborate the dying declaration (Exh.31).
Admittedly, Kisan (PW-2) was not present at the
time of the incident. As such his evidence is
would be of no help to the prosecution to lend
corroboration to the contents of dying
22 920 J Cri A 730-08.odt
declaration (Exh.31) in respect of the cause of
her death.
27. Mangalbai (PW-3) claims that she was
present in the house of the appellant at the
time of the incident. It is not disputed that
Mangalbai (PW-3) and Kisan (PW-2) had been to
the house of the appellant in the night prior to
the incident. Kisan (PW-2) had left for his
village in the morning of 14-06-2007. According
to Mangalbai (PW-3), Kisan (PW-2) left for his
village asking her to stay at the matrimonial
home of the deceased Sheetal for 2-3 days. The
appellant started quarreling with the deceased
Sheetal. He started beating her with fists and
kicks. She tried to intervene but the appellant
pushed her and slapped her twice. She fell down
on the ground and again tried to intervene.
However, the appellant poured kerosene on the
person of the deceased Sheetal and set her on
fire by means of a matchstick. The deceased
Sheetal and herself raised shouts. The villagers
23 920 J Cri A 730-08.odt
gathered and extinguished fire. They called a
jeep and took the deceased Sheetal and herself
to Civil Hospital, where, she was admitted for
treatment.
28. The learned counsel for the appellant
submits that the dying declaration (Exh.31) does
not whisper about presence of Mangalbai (PW-3)
inside the house at the time of the incident of
burning. He submits that Mangalbai (PW-3) also
had gone to the bus stand to see Kisan (PW-2)
off. When she was coming back from the bus
stand along with the father of the appellant
i.e. original accused no.2, they heard the cries
and rushed to the house of the appellant. At
that time, they found the deceased Sheetal alone
burning inside the house. The father of the
appellant extinguished fire and took her to the
Civil Hospital at Osmanabad for treatment. Thus
according to him, the appellant was not present
in the house at the time of the incident.
29. The appellant examined Gowardhan (DW-1)
24 920 J Cri A 730-08.odt
(Exh.55), who is his neighbour. He states that
the deceased Sheetal was not interested in
cohabiting with the appellant. She herself had
run away twice from the house of the appellant.
He requested Kisan (PW-2) and Mangalbai (PW-3)
to persuade the deceased Sheetal not to run away
from the house of the appellant. They assured
him that they would persuade the deceased
Sheetal accordingly. He further states that
Kisan (PW-2) and Mangalbai (PW-3) stayed at the
house of the appellant in the night. Kisan
(PW-2) left the house for his village in the
morning. Mangalbai (PW-3) also had accompanied
him while going to the bus stand to see him off.
At that time, the appellant went towards
agricultural land for bringing fodder. He then
states that at about 09.00 a.m., he heard shouts
of the deceased Sheetal and noticed that smoke
was coming out from the house of the appellant.
He rushed towards the house of the appellant.
One Devidas Bansode also came there. He noticed
that the deceased Sheetal was burning. Nobody
25 920 J Cri A 730-08.odt
was present inside the house at that time. He
sent somebody to the bus stand to call Mangalbai
(PW-3) and the father of the appellant.
According to him, they came to the house of the
appellant. At that time, Mangalbai (PW-3) asked
the deceased Sheetal to implicate the appellant
and his father in the incident of fire.
30. It has come in the cross-examination of
Gowardhan (DW-1) that his house is situate at
the distance of 5 ft. from the house of the
appellant. There is only one house in between
the house of the appellant and that of himself.
It has further come in his cross-examination
that he had personally seen the deceased Sheetal
running away from her matrimonial home. Once,
the deceased Sheetal had gone towards the bus
stand, which was at the distance of about half
k.m. from their locality. He went there along
with the appellant. He requested the deceased
Sheetal to come back to cohabit with the
appellant, however, she did not listen to him.
26 920 J Cri A 730-08.odt
He states that the deceased Sheetal had beaten
the appellant at the bus stand itself in his
present. He further deposes that on the next
day of that incident, the father of the
appellant went to the village of Kisan (PW-2)
and informed him about the conduct of the
deceased Sheetal. This evidence, which has been
brought in the cross-examination of Gowardhan
(DW-1) shows that the deceased Sheetal was not
interested in cohabiting with the appellant.
31. The appellant states in his statement
under Section 313 of the Code of Criminal
Procedure that the deceased Sheetal was not
interested in cohabiting with him. She had run
away from his house with one Amol after beating
him. On the day of the incident, her parents
started going back to their village. At the
time, the deceased Sheetal was insisting her
father to take her with him. She was crying.
He then went to his village and thereafter, the
incident of burning took place.
27 920 J Cri A 730-08.odt
32. The defence of the appellant got
corroboration from the evidence of Gowardhan
(DW-1), which was brought in his cross-
examination.
33. The version of Mangalbai (PW-3) that
she was present at the time of incident inside
the house of the appellant itself is not
believable. The deceased Sheetal herself has not
whispered about her presence in the dying
declaration (Exh.31). Had Mangalbai (PW-3) been
inside the house at the time of the incident,
the deceased Sheetal certainly would have made
every attempt to rush towards her to save
herself. Mangalbai (PW-3) would not have awaited
until kerosene was poured on the person of the
deceased Sheetal by somebody else and certainly
would have resisted that person from doing so.
She would have immediately raised shouts,
seeking help of the neighbours to save the life
of the deceased Sheetal. She would have tried to
extinguish fire from the person of the deceased
28 920 J Cri A 730-08.odt
Sheetal. She would have sustained burns while
attempting to extinguish fire from the person of
the deceased Sheetal. In the natural course, the
deceased Sheetal also would have tried to
embrace Mangalbai (PW-3) for help or for saving
herself from being burnt. No injury has been
sustained by Mangalbai (PW-3). These facts are
sufficient to indicate that Mangalbai (PW-3) was
not actually present inside the house at the
time of the alleged incident of burning.
Therefore, her version would not be helpful to
the prosecution to implicate the appellant in
the incident of burning.
34. It has come in the cross-examination of
PSI Maindad (PW-8) (Exh.41) that he recorded the
statements of Kisan (PW-2) and Mangalbai (PW-3)
on 16-06-2017. The incident took place in the
morning on 14-06-2007. Mangalbai (PW-3) was with
the deceased Sheetal after occurrence of the
incident till her death. PSI Maindad (PW-8)
recorded the statement of five witnesses on
29 920 J Cri A 730-08.odt
15-06-2007. Neither Kisan (PW-2) nor Mangalbai
(PW-3) made any allegations against the
appellant on 14-06-2007 and 15-06-2007 about
having set the deceased Sheetal on fire.
Mangalbai (PW-3) could have lodged report
against the appellant immediately after the
incident. Kisan (PW-2) and Mangalbai (PW-3)
would not have kept silence for two days after
the incident, though they had sufficient
opportunity to complain against the appellant to
the police, when they were in the Civil
Hospital, Osmanabad and even thereafter. No
explanation is given by the prosecution for the
delay in recording the statements of Kisan
(PW-20) and Mangalbai (PW-3). In the
circumstances, the evidence of Mangalbai (PW-3)
that she was present at the time of the incident
and that the appellant set the deceased Sheetal
on fire in her presence cannot be believed.
35. From the facts and circumstances of the
case, the defence of the appellant that the
30 920 J Cri A 730-08.odt
deceased Sheetal herself was not interested in
cohabiting with him and when her parents
insisted upon her to reside at the house of the
appellant, she set herself on fire, which is
supported by the evidence of Gowardhan (DW-1),
appears to be natural and probable. In the
circumstance, the evidence of the witnesses
Kisan (PW-2) and Mangalbai (PW-3) that the
deceased Sheetal was not liked by the appellant
and therefore, he used to beat and illtreat her
and ultimately, set her on fire causing her
death being not free from doubt cannot be relied
on to hold the appellant guilty for the above
mentioned offences.
36. As held in the case of Sharad
Biridhichand Sarda Vs. State of Maharashtra, AIR
1984 SC 1622 cited by the learned counsel for
the appellant, it is well settled that where the
evidence shows two views are possible, one which
goes in favour of the prosecution and the other
which benefits an accused, the accused is
31 920 J Cri A 730-08.odt
undoubtedly entitled to the benefit of doubt. In
the present case, the possibility of the
appellant setting the deceased Sheetal on fire
is surrounded by a grave suspicion. On the
contrary the defence of the appellant that she
set herself on fire since she was not interested
in cohabiting with the appellant is quite
probable. Therefore, it cannot be said that the
prosecution has established the guilt of the
appellant for the above mentioned offences
beyond all reasonable doubts.
37. The learned Trial Judge did not
appreciate the facts and circumstances of the
case as well as the evidence on record in proper
perspective and wrongly convicted the appellant
for the above mentioned offences. In view of
the above discussion, the findings of the
learned Trial Judge cannot be said to be
sustainable. The impugned judgment and order are
liable to quashed and set aside. In the result,
we pass the following order.
32 920 J Cri A 730-08.odt
Order
(i) The appeal is allowed.
(ii) The impugned judgment and order
are quashed and set aside.
(iii) The fine amount, if deposited by
the appellant in the Trial Court,
be refunded to him.
(iv) The bail bonds of the appellant
are cancelled.
(v) He is set at liberty.
(iv) The appeal is accordingly
disposed of.
[SANGITRAO S. PATIL] [SUNIL P. DESMUKH]
Judge Judge
nbs/920-23
