Sugriv Ashruba @ Asaram Kale vs The State Of Maharashtra
2017 Latest Caselaw 3963 Bom

                                      1                          APEAL260.2013

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                      BENCH AT AURANGABAD.

                      CRIMINAL APPEAL NO. 260 OF 2013

Sugriv S/o Ashruba @ Asaram Kale,
Age : 49 years, Occu. Agri.,
R/o. Manubai Jawala,Taluka Georai,
District Beed.                                               Appellant...
                                                         (Orig. accused No. 1)
              Versus

The State of Maharashtra,
Thrugh Police Station Officer,
Talwada Police Station, Talwada,
Taluka Georai, District Beed.                               Respondent...

                                  ..........
       Mr Joydeep Chatterji, Advocate i/b Mr S. G. Chapalgaonkar, 
                      Advocate for the appellant
               Mr S. R. Yadav, APP for respondent/State
                                .............


                                    CORAM  :  R. M. BORDE   &
                                              A. M. DHAVALE, JJ.

DATE : 04.07.2017

ORAL JUDGMENT (Per A. M. Dhavale, J.) :-

1. In Sessions Case No. 142 of 2011 of District & Sessions

Court, Beed, husband and mother-in-law of the deceased-bride were

prosecuted for committing her murder by pouring kerosene on her

person and setting her on fire. Mother-in-law was acquitted and the

husband was convicted u/s 302 of the IPC and was sentenced to

2 APEAL260.2013

suffer imprisonment for life and to pay fine of Rs. 5000/- in default to

suffer further rigorous imprisonment for three months. He was

acquitted u/s 498A of IPC. Aggrieved by the sentence and conviction,

husband - Sugriv has preferred this appeal.

2. Facts relevant for deciding this appeal may be stated as

follows:

On 20.04.2010, Lilawati Sugriv Kale, aged about 45 years,

R/o. Manubai Jawala, Tq. Georai was admited in Civil Hospital with

burn injuries. The Executive Magisrate, Beed was called and her

dying declaration was recorded, after taking certificate of Medical

Officer that the patients was conscious and oriented. The patient

disclosed that she had married to appellant -Sugriv about eight years

back. It was her second marriage. He had deserted his first wife but

had not divorced her. The said information was concealed by him

from her at the time of marriage. She, her husband Sugriv, mother in

law, brother in-law and brother-in-law's wife and their children were

residing together. She was not treated with love and affection.

There used to be regular quarrels and complaints and abusing. Her

husband did not allow her to have a child and she was forced to

undergo abortion twice about two-three years earlier. Once her

family members had pushed her into a well and that time her nephew

3 APEAL260.2013

had rescued her. On the earlier night, she was told by her husband

that she should not stay there, was assaulted, kerosene was poured

on her person and she was set on fire. That time, her mother in law

had instigated her husband to pour kerosene and set her ablaze

stating that nothing would happen. On sustaining burns, she raised

shouts. The neighbours gathered there. She removed her saree,

poured water on her person and extinguished the fire. Thereafter,

she was taken first to Government Hospital, Georai and thereafter to

Civil Hospital, Beed. She had 59% burns. Her husband and her

mother in law were responsible for the incident. She was threatened

that if she would disclose the said incident to anyone, she would be

killed. Hence, she had not disclosed their names earlier. She had

given such dying declaration without any pressure or influence. PW7

-Executive Magistrate read over the dying declaration and obtained

thumb impression of the patient. On the basis of the information,

C.R. No. 35/2010 was registered for offences u/s 498A, 307, 323,

504 r/w 34 of IPC at Talawada Police Station, Tq. Georai, Dist. Beed

and the crime was investigated into by PW9-PSI Pawar. He visited

the spot which is in house of the accused no. 1 having single room of

15x15 with verandah. Investigating Officer seized burnt pieces of

saree and a can of 5 ltrs smelling of kerosene and one match stick. He

recorded statements of material witnesses and arrested accused no. 1.

4 APEAL260.2013

The investigation revealed that, before recording of dying declaration

by the Executive Magistrate, another dying declaration (marked

Exh.70) was recorded on the same day at 11:30 am by Police Officer

attending Police Chowki in the Civil Hospital, Beed. The patient was

admitted at 9:10 am with history of accidental burns. Her dying

declaration before police officer revealed that, in the night the

deceased was sleeping in the house with a kerosene lamp on. Due to

dash by a cat, the kerosene lamp fell on her back and she sustained

burns. She raised shouts. Her husband woke up and extinguished

the fire and her husband, niece Savita and nephew Dada brought her

to Government Hospital at Talwada. She had sustained injuries to

her back and legs. She had received no ill-treatment of any sort from

her in-laws. On 16.05.2010, the injured Lilawati died in the hospital.

Thereafter, inquest panchanama and post-mortem were conducted.

Post-mortem notes revealed that, she had sustained 48% burns on

her back and legs. Her mother-in-law was aged 114 years at the time

of incident. After completion of investigation, charge-sheet was

submitted in the court. In due course, the case was committed to the

court of Sessions.

3. The learned Addl. Sessions Judge, Beed framed charge at

Exh. 22 u/s 498A, 302 r/w 34 of the IPC. The Judgment shows that,

5 APEAL260.2013

accused No. 2 due to extreme old age was unable to attend the court

and the learned Sessions Judge could not even record her statement

u/s 313 of Cr.P.C. The prosecution examined nine witnesses.

Defence of the accused is 'death by accident' as disclosed in her dying

declaration before the police. On the basis of evidence on record, the

Sessions Judge discarded the defence mainly on the ground that no

kerosene lamp was found in the house at the time of spot

panchanama which was admitted by the defence and the dying

declaration implicating the accused was recorded by Executive

Magistrate after following the due procedure. He found that accused

No. 2 Narmadabi was too old aged 110 years, and was unable to

move. He found the evidence of abetment by accused No. 2 doubtful

and acquitted accused No. 2. He also discarded evidence of previous

ill-treatment led by brothers of deceased PW4 Ashok @ Asaram and

PW6 Limbaji. Relying on the evidence, he convicted the appellant

u/s 302 of IPC and sentenced him as referred above. Hence this

appeal.

4. Mr Joydeep Chatterji, learned counsel for the accused has

taken us through the evidence on record. He relied on the earlier

dying declaration recorded by police officer which is admitted and

marked as Exh. 71. It is totally consistent with the defence raised by

6 APEAL260.2013

the appellant. He argued that, the dying declaration at Exh. 62

recorded by the Executive Magistrate cannot be relied upon as there

is clear attempt to falsely implicate accused No. 2. PW1 has admitted

that accused No. 2 was sick, bed ridden and was even unable to talk.

He relied on Thurukanni Pompiah Vs. State of Mysore AIR 1965

SC 939. Gaffar Badshaha Pathan Vs. State of Maharashtra

(2004) 10 SCC 589. Mohamed Hanif Ansari Vs. State of

Maharashtra 2008 ALL MR (Cri) 2083 & Tukaram Dashrath

Padhen Vs. State of Maharashtra 2012 All MR (Cri) 2754. Relying

on these rulings, he submitted that, when a conviction is to be based

solely on dying declaration, it should be wholly reliable and if any

integral portion of the deceased's version of the occurrence is found

to be untrue, it is unsafe to rely upon the dying declaration. The

evidence with regard to dying declaration should be of sterling

quality and should inspire the confidence before it can be acted upon.

In the present case, it is not so.

5. Learned Addl. Public Prosecutor - Mr. S. R. Yadav relied on

dying declaration (Exh. 73) recorded by Special Executive Magistrate

(PW7). He argued that, all the safeguards are followed before

recording dying declaration. Certificate of Medical Officer was

obtained. PW7-Mhaske has himself verified that the patient was

7 APEAL260.2013

conscious and oriented to give statement. The dying declaration was

recorded on 20.04.2010 and Lilawati has died on 16.05.2010. She

had only 48% burns. Hence, the dying declaration is reliable. Earlier

dying declaration before police officer was given under fear. Hence,

there is no reason to interfere with the conviction and sentence

passed against the appellant.

The points for our determination & finding thereon are as follows :-

              Points                                             Findings

 1.  Whether deceased-Lilawati met with 
      Homicidal death?                                           Not proved.

 2.  Whether accused No.1-the appellant 
      committed murder of Lilawati?                              Not proved.

 3.  What order?                                 The sentence & conviction of 
                                                 the appellant are set aside.   
                                                 The appellant is acquitted.   
                                                 He be set at liberty.

6. The prosecution has examined 9 witnesses and relied upon

documents which can be conveniently grouped as follows:

Previous ill-treatment & Oral Dying PW4/Ashok Jadhav & PW6 Limbaji, Declaration : brothers of the deceased.

 Spot Panchanama                            : Panchas   1   &   2   and   sketch   map 
                                              drawn by PW3.  
 Medical Evidence                             : Dr.   C.   S.   Wagh   (PW5)   who 
                                                conducted post-mortem.
 Dying-Declaration                            :  PW7-Tahsildar   Mhaske   &   PW8-Dr. 
                                                 Prakash Rasal.
                                                 Dying Declaration (Exh. 73). 
 Investigating Officer                        : PW9 - PSI Pawar.





                                      8                           APEAL260.2013

 As to Points No. 1 & 2 :

7. The evidence of PW5-Dr. Wagh shows that, on 16.05.2010,

he conducted post-mortem on the dead body of deceased-Lilawati.

She had 48% burns and she died due to septisemic shock due to 48%

deep burns. His post-mortem notes are at Exh. 53. He had issued

provisional death Certificate at Exh. 54. He opined that burn injuries

were possible if somebody is set on fire after sprinkling kerosene.

The post-mortem notes show that there were 16% burns on the back

and 16% on right lower extremity & 16% on left lower extremity.

Dr. Wagh admitted that there were no injuries on face, hair & chest

etc and kerosene if poured and a person is set on fire, the fire will

spread over the entire body.

8. PW1 Ganpat is neighbour of the accused. He stated that

the incident took place inside the house of the accused. Accordingly

spot panchanama Exh. 41 was drawn. Burn pieces of saree were

found inside the house. One can smelling of kerosene was also found

in the house. One match-stick was also seized. PW4 has admitted

that, Lilawati in burnt condition was brought by the accused first to

Georai and then to Civil Hospital at Beed. The evidence on record

shows that Lilawati died due to severe burn injuries. These burns can

be possible accidentally or by suicide or by homicide. Therefore, the

9 APEAL260.2013

evidence on point Nos. 1 & 2 is common and the finding on point No.

1 is dependent on finding on point no. 2.

9. The prosecution mainly relied on dying declaration

recorded by PW7-Mhaske/Executive Magistrate on 20.04.2010 (Exh.

73).

10. It is necessary to record the previous background of the

deceased and the accused. PW2 Asaram @ Ashok and PW4 Limbaji

are brothers of deceased - Lilawati. They were residing at Pusali, Tq.

Badnapur. PW6 stated that she married to the appellant in 1997. It

was second marriage of both Sugriv & deceased-Lilawati. Accused

No. 1 Sugriv was previously married and has either divorced or

deserted his first wife. While Lilawati was married to one Madan

Bhojane and thereafter they had separated. PW6 admitted that

Lilabai was having one daughter from Bhojane who was residing with

her father but PW4 denied this fact. Lilawati had no issue from the

accused. Both PW4 & PW6 have made vague allegations about the

ill-treatment. PW4 stated that Lilawati was ill-treated as she could

not conceive a child and there is also evidence that there was

demand of money by the appellant for installation of pipeline. The

date, time and amount of demand of dowry claimed is not disclosed.

10 APEAL260.2013

PW6 has also deposed about ill-treatment to Lilawati by the accused.

The allegations regarding the ill-treatment are as vague as those

could be. Such vague evidence is of no help. Both of them deposed

that, once the accused had pushed Lilawati into well in the year 2009

or thereabout but there is no complaint lodged about the said

incident. There is even no evidence that Lilawati thereafter started

residing at her maternal house and was persuaded to resume

cohabitation. There is no evidence that PW4 & PW6 were worried

about the life of Lilawati and made efforts to save her from ill-

treatment at the hands of the accused. PW4 had stated that, Lilawati

was residing along with her husband Sugriv and mother-in-law

Narmada, while her brother Babarao and his wife were residing

separately. There is similar evidence of PW6 Limbaji. PW1 Ganpat

has stated that Narmadabai (accused No. 2) was residing with

Babarao. This is material to consider the truthfulness of the

statements given by Lilawati in the dying declaration. There is also

vague allegation that the appellant compelled Lilawati to undergo

one or two abortions against her wish. There is no reliable evidence

to accept their allegations. The subsequent conduct of PW4 & PW6

does not support these allegations. There are no details whatsoever

about these incidents. Hence, the evidence of PW4 & PW6 with

regard to ill-treatment, forced abortions and attempt by the accused

11 APEAL260.2013

to kill Lilawati by pushing her into well cannot be believed.

11. PW4 Ashok had stated that he had visited Manubai Jawala

and had persuaded accused to behave well with Lilawati and the

accused No. 1 had agreed to do so. But, later on he had given

admission that after Lilawati's marriage he never visited Manubai

Jawala till death of Lilawati. PW1 Ganpat has stated that, Lilawati

was residing with her husband and her mother-in-law was residing in

the house of Babarao, brother of accused No. 1, which is abutting to

the house of accused No. 1-Sugriv. Accused No. 1 Sugriv was having

4-5 acres of irrigated land. The evidence on record shows that, from

the date of marriage till the date of incident no complaint of ill-

treatment was reported to the police. There is no evidence that,

Lilawati was constrained to leave her matrimonial house and reside

at her maternal house at any point of time. There is no evidence

that, her brothers were required to visit the house of accused No. 1

and to persuade the appellant to behave properly with Lilawati. The

evidence on record shows that, in the night intervening 19.04.2010 &

20.04.2010 Lilawati sustained burn injuries inside her house when

she and her husband were inside the house. It is not clear whether

Narmada was also inside the house. PW4 has admitted that his sister

told him that she was brought by her husband first to Hospital at

12 APEAL260.2013

Georai and then to Civil Hospital at Beed. PW6 has admitted that

Narmadabi was more than 100 years old. Her election card shows

that she was aged 110 years in the year 2006. It is claimed that she

was 114 years old at the time of the incident. Accused No. 1 was

aged 47 years at the time of the incident. It is difficult to believe that

she would have given birth to accused No. 1 at the age of 67 years.

The evidence regarding age of accused No.2 - Narmadabai is

exaggerated, still she must be pretty old. PW1 -Ganpat who is a

panch has supported the defence story. He stated that accused No. 2

was residing in the house of brother of accused No. 1 -Sugriv by

name Babarao. She was sick and bedridden and was unable to talk.

She was unable to move without help.

12. The Sessions Judge had framed charge and that time plea

of Narmadabai was recorded but her statement u/s 313 could not be

recorded. He has recorded in para 8 of the impugned judgment that

"accused no. 2 could not be produced and, therefore, her statement

u/s 313 could not be recorded as she was bedridden".

13. The Medical certificate admitted by the defence at Exh. 81

shows that, the patient was admitted at 9:10 am in Sub-Divisional

Hopsital, Georai with history of accidental burns. When Lilawati was

13 APEAL260.2013

admitted in Hospital, her dying declaration seems to be recorded by a

police attending the Police Chowki at Civil Hospital, Beed after taking

medical certificate that the patient was conscious and oriented to give

statement. It was recorded at 11:30 am. It was filed by the

prosecution and the defence has admitted it and same has been

exhibited.

14. In our opinion, this dying declaration could not have been

exhibited on admission. It was not produced with application under

294 of the Cr.P.C. in the prescribed format for admission of

document. It means the prosecution was not relying upon it.

Therefore, mere admission of such document cannot prove the

contents of the document.

15. This dying-declaration discloses that, Lilawati sustained

burns due to accident. She and her husband were sleeping in the

house. One kerosene lamp was kept on a plank fitted on the wall.

Due to dash of a cat, it fell on her back and her saree caught fire.

When she raised shouts, her husband woke up. Her saree was

removed and she was drenched in water and the fire was

extinguished. Her husband and nephew took her in a rickshaw at

hospital in Talwada and thereafter to Civil Hospital at Beed. Thus

14 APEAL260.2013

this dying declaration totally supports the defence case. In Nallam

Veera Stayanandam & Ors vs The Public Prosecutor, High Court

of Andhra Pradesh (AIR 2004 SC 1708), it is held "In the case of

multiple dying declarations each dying declaration will have to be

considered independently on its own merit as to its evidentiary value

and one cannot be rejected because of the contents of the other. In

cases where there are more than one dying declaration, it is the duty

of the court to consider each of them in its correct perspective and

satisfy itself which one of them reflects the true state of affairs. In

Sanjay vs The State Of Maharashtra (AIR 2007 SC 1368), it is held

that "in case of inconsistency, the accused would be entitled to

benefit of doubt and acquitted". In Amol Singh vs State of M.P

(2008 (5) SCC 468), it is held "if the deceased had several

opportunities of making such dying declarations, that is to say, if

there are more than one dying declaration they should be consistent.

However, if some inconsistencies are noticed between one dying

declaration and the other, the court has to examine the nature of the

inconsistencies, namely, whether they are material or not. While

scruitinizing the contents of various dying declaration, in such a

situation, the court has to examine the same in the light of the

various surrounding facts and circumstances. Where there were

several discrepancies in two dying declarations, one recorded by

15 APEAL260.2013

Executive Magistrate and another by A.S.I. and said dying

declarations were discarded and the conviction under Section 302 of

the Indian Penal Code was found not proper". Since there is no

evidence of the person who recorded this dying declaration, mere

marking it as exhibit on admission cannot prove the contents. But,

PW4 & PW6 have stated that this dying declaration was given by

Lilawati due to pressure and threats by accused No. 1. The

prosecution did not examine any witness to bring on record the fact

of recording first dying declaration and that it was given under fear

or pressure.

16. At the relevant time, PW7-Mhaske was Naib Tahsildar at

Beed. On 20.04.2010, he received request letter Exh. 61 from police

to record dying declaration. He deposed that, he came to Civil

Hospital, Beed and contacted Dr. Gavhane and requested him to

examine Lilawati (name of the deceased is shown as Nilawati and at

some places it is shown as Lilawati @ Nilawati). Lilawati was in a

position to give statement. Then they came to burn ward. PW7

removed all the relatives outside the ward. Doctor PW8 examined

the patient and gave certificate that she was conscious and oriented

to give statement. He accordingly made written endorsement. He

stated that, he himself put one or two questions to patient to confirm

16 APEAL260.2013

her condition but the same was not recorded in writing. He

thereafter recorded dying declaration. He deposed that, Lilawati told

him that she was married with one Sugriv about 8 years back. Sugriv

had suppressed the factum of his earlier marriage from her. She

stated that, she, her mother-in-law, her husband, brother in-law, his

wife and their children were residing together. (This statement is

factually not correct). Deceased Lilawati further told him that there

were constant disputes going on with husband and in-laws. She told

him that, her husband and in-laws were not allowing her to deliver a

child and she was subjected to undergo abortions 2-3 times. Besides,

she was once pushed into a well by her husband and in-laws but her

nephew rescued her. She stated that on the day of incident she had a

quarrel with her husband. Her husband poured kerosene on her

person and set her on fire. At that time, her mother-in-law had

abetted the crime by telling accused No. 1 Sugriv, to set her on fire

and nothing would happen. Lilawati raised shouts and the

neighbours gathered there. Her saree was removed and fire was

extinguished by pouring water on her person. Then she was brought

to hospital at Georai. She had suffered 59% burns. She told him that

she did not disclose the names of accused earlier as she was

threatened by the accused. She stated that her husband and mother

in law were responsible for the same. She had given statement

17 APEAL260.2013

without any pressure. It was read over to her and she admitted it to

be correct and thereafter her thumb impression was obtained.

17. Mr Joydeep Chatterji, has relied on Thurukanni Pompiah

Vs State of Mysore AIR 1965 SC 939 wherein it is held that, if the

court finds that the declaration is not wholly reliable and a material

and integral portion of the deceased's version of the entire occurrence

is untrue, the court may, in the circumstances of the case, consider it

unsafe to convict the accused on the basis of the declaration alone

without further corroboration. In that case, the Hon'ble Apex Court

found integral portion of the deceased's version of the entire

occurrence as unreliable, hence it was held that truthfulness of the

dying declaration as a whole was not free from doubt.

18. Mr Joydeep Chatterji relied on Gaffar Badshaha Pathan

Versus State of Maharashtra (2004) 10 SCC 589 (on the point of

burden on the accused) it is held that, it is one thing for an accused

to attack a dying declaration in a case where the prosecution seeks to

rely on a dying declaration against an accused but it is altogether

different where an accused relies upon a dying declaration in support

of the defence of accidental death. The burden on the accused

is much lighter. He has only to prove reasonable probability.

18 APEAL260.2013

The High Court erred in holding that the recording of the dying

declaration and story stated therein apparently appears to be false

and concocted. In the instant case, the fact as to whether the dying

declaration is false and concocted has to be established by the

prosecution. It is not for the accused to prove conclusively that the

dying declaration was correct and the story therein was not

concocted. Further, mere presence of the matchbox and the kerosene

tin in the kitchen is not a circumstance which by itself will connect

the accused with the commission of crime. It is but natural that a

kerosene tin with kerosene and matchbox would find place in the

kitchen.

. In Mohd. Hanif Ansari vs. State of Maharashtra reported

in 2008 ALLMR (Cri) 2083, the Division Bench of this Court held

that, the Courts are therefore required to caution themselves that a

dying declaration is not to be believed merely because no possible

reason can be given for accusing the accused falsely. It can only be

certainly believed if there are no grounds for doubting it at all.

. In Tukaram Dashrath Padhen Vs. State of Maharashtra

reported in 2012 ALL MR (Cri) 2754, it is held that, when the court

is called upon to appreciate the evidence of written dying declaration,

the court has to be extremely cautious and examine with meticulous

care the evidence regarding recording of the dying declaration.

19 APEAL260.2013

Merely because witnesses came forward and depose about the

recording of the dying declaration, it should not impel the Court to

immediately accept the dying declaration. It has to be remembered

that the declarant is not available for cross examination and,

therefore, the prosecution must prove apart from the truthfulness of

the contents, the factum of the recording of the dying declaration as

well as the fact that the declarant was in a fit mental condition to

give the statement. Once suspicious circumstances are found in the

evidence, the Court should be extremely slow in placing implicit

reliance on the dying declaration. It is to be remembered that the

conviction can be recorded on the dying declaration alone if the court

finds the dying declaration to be wholly reliable.

19. After carefully considering the evidence on record, we find

that the dying declaration (Exh 73) recorded by PW7 is not free from

doubt for following reasons.

(i) Deceased-Lilawati had given a dying declaration of accidental burns to a police officer on the same day about two hours earlier. (Exh. 70). The prosecution did not lead evidence to show that it was false.

(ii) The most material part is that accused No. 2 aged about 100 years has been implicated for abetment of the crime. Evidence of PW1 shows that, she was totally bed ridden, unable to walk and to talk. This evidence of PW1 is not

20 APEAL260.2013

challenged by ld. Additional Public Prosecutor by cross- examining her. This fact raises a grave doubt about the truthfulness of this dying-declaration.

(iii) Dying declaration shows that her mother in law, brother-in-

law Babarao, brother-in-law's wife Raibai and their children were residing together but admitted evidence on record shows that she was residing with her husband only. At the most husband's mother might be residing with them. PW1 stated that accused No. 2 was not residing in said house.

(iv) Dying declaration shows that, she was subjected to forced abortion twice and once she was tried to be killed by pushing into the well but as earlier stated, these allegations are not substantiated by any evidence or past conduct of PW4 & PW6 or of the deceased.

(v) Surprisingly, it was put in the mouth of burn patient Lilawati that she had sustained 59% burns. This is not a language of a burnt patient.

(vi) Dying declaration shows that her neighbours had gathered there and had rescued her but not a single neighbour has been examined. On the contrary the evidence shows that her husband brought her to the hospital at Georai and then at Beed. The dying declaration is silent in this regard.

(vii) Below the thumb impression, the name Nirmalabai is recorded. It is name of accused No. 2. Deceased Lilawati would not have disclosed her name as Nirmalabai.

21 APEAL260.2013

(viii)We find that many integral parts of the dying declaration are found to be not trustworthy and therefore the dying declaration as a whole is not trustworthy and reliable.

20. The Ld. Sessions Judge was impressed with the fact that no

Chimney (Kerosene Lamp) was found at the time of spot

panchanama which was admitted by the defence but, panch witness

PW1 has admitted that there was one chimney. Besides this,

panchanama was drawn four days after the incident. If PW4 & PW6

could give false evidence against the accused, they could have

removed chimney (kerosene lamp) from the spot as well. There is no

evidence to show that the spot was well protected from 19.04.2010

to 24.04.2010.

21. PW4 Ashok has stated that he came at 12:00 noon along

with PW6. PW6 stated that they came at 3:00 PM. PW4 stated that

Lilawati was unconscious when they came and she regained

unconsciousness after 4-5 hours. PW6 did not state anything about

consciousness. Dying declaration Exh. 73 is recorded by PW7 at

about 2:00 pm when according to PW4-Ashok, Lilawati was

unconscious.

22 APEAL260.2013

22. PW6 stated that, his statement was not recorded whereas;

PW4 has given admissions that major part of his material evidence is

by way of contradictions. He admitted as follows:

"I did not state to police that accused had caused abortion of Lilawati for 2-3 times. I did not state before police that, at the time of incident, Babarao wa standing on the spot but he did not try to extinguish the fire. I did not tell the police at the time of statement Lilawati told me that earlier dying declaration was falsely given by her under the pressure of the accused".

23. Statement of PW4 Asaram was recorded on 29.04.2010 i.e.

after 9 days from the incident. PW6 stated that police did not make

inquiry with him. PW4 & 6 had stated that, PW4 had lodged

complaint before the police on the same day but the said complaint is

not produced and proved. The evidence of PW4 & PW6 as well as

dying declaration does not disclose the nature of dispute between

Lilawati & her husband. When husband and wife are quarreling they

are always face to face. If the accused would have poured kerosene

on his wife, she would be drenched from front side from top to

bottom. But Lilawati has not sustained any burns on the front side

and on the upper part on the back side. She had sustained burns

only on back and legs. The accused himself had taken his wife

23 APEAL260.2013

Lilawati to Hospital first at Georai and then at Beed. He attempted to

save her life. He immediately reported the incident to the maternal

relations of Lilawati. His conduct is consistent with his innocence.

As per spot panchanama, Rahibai had first heard the quarrel which

led to the incident. She was not examined. Lilawati stated that she

was saved by neighbours. Evidence of PW3 shows that, the house of

the appellant is surrounded by several houses but no independent

neighbour has been examined as witness. Considering this evidence,

we find that the dying declaration recorded by PW7 - Naib Tahsildar

cannot be relied upon. We find that the oral dying declarations

allegedly made by deceased Lilawati before her two brothers PW4 &

6 are also not reliable. Either Lilawati might not have given dying

declaration before Executive Magistrate or she might have been

tutored.

24. It is a case of custodial death. The accused has given

proper explanation which is supported by dying declaration (Exh. 70)

recorded by police officer immediately after admission. The

prosecution has not shown that it was false. PW1 Ashok has given

material admission supporting the defence story. The appellant has

made his defence probable. Merely because the spot panchanama

does not disclose the presence of kerosene lamp, the defence story

24 APEAL260.2013

cannot be discarded as totally improbable. PW1 Ashok has orally

stated about the presence of kerosene lamp on the spot. We

therefore do not agree with the findings recorded by learned trial

Judge and hold that the accused has given proper explanation and

has probabalized it from the prosecution evidence itself.

25. As the dying declaration is found not reliable and as there

is no other evidence, the appellant deserves to be acquitted. We

record findings to that effect on points no. 1 & 2 and pass the

following order.

ORDER

1. The appeal presented by appellant Sugriv Ashruba @ Asaram Kale is allowed.

2. The order of conviction and sentence recorded in Sessions Case No. 142/2011 on 24th May, 2013, convicting the accused/appellant for offence punishable under section 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs. 5,000/ in default, to suffer rigorous imprisonment for three months stands quashed and set aside. Accused shall be set at liberty forthwith.

              [ A. M. DHAVALE ]                                   [ R. M. BORDE ]
                        JUDGE                                             JUDGE


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