Bombay High Court
The State Of Mah.Thr. Pso Akola vs Sau.Kamlabai Ramdas Bhatkhade ... on 7 July, 2017
Bench: M. G. Giratkar
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THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 174 OF 2004
The State of Maharashtra,
Through Police Station Officer,
Police Station Barshitakli,
District Akola. ... Appellant
VERSUS
(1) Sau. Kamalabai Ramdas Bhatkhade,
Aged about 45 years.
(2) Vijay Ramdas Bhatkhade,
Aged about 25 years.
(3) Ramdas Pundlik Bhatkhade,
Aged about 65 years.
All R/o Barshitakli, Distt. Akola. ... Respondents
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Shri S. S. Doifode, A.P.P. for the State/appellant
None for the respondents
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CORAM : M. G. GIRATKAR, J.
Date of reserving judgment : 27/06/2017.
Date of pronouncing of judgment : 07/07/2017.
Judgment
By the present appeal, the appellant - State has challenged
the judgment of acquittal dated 7-11-2003 of respondents/accused,
passed by Additional Sessions Judge, Akola in Sessions Trial No.
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136/2001.
2. It is the case of prosecution/appellant that deceased Anita
was married with respondent/accused no. 2 Vijay on 29-1-2001.
Respondent/accused nos. 1 and 3 are mother-in-law and father-in-law
of deceased Anita. After the marriage, respondents/accused started ill-
treatment to the deceased. Her mother-in-law and father-in-law
directed her to bring Rs. 25,000/- from her parents. On that count, they
were ill-treating the deceased. There was meeting and in that meeting,
respondents/accused agreed not to give any ill-treatment, therefore,
she was sent to the matrimonial home on 30-3-2001. On the day of
incident, there was some religious program at the house of her
father/P.W. 1, he gave invitation to the accused. Accused not allowed
her to go to her parents house and threatened her to beat and,
therefore, she herself poured kerosene and set her on fire. On the
report of P.W. 1 vide Exhibit 21, crime was registered against the
accused by Police Station, Barshitakli, District Akola for the offences
punishable under Sections 498-A and 306 of the Indian Penal Code.
3. Deceased was admitted in the Government Hospital at
Akola. P.W. 5 Noor Ahamadkha Kalandarkha, Executive Magistrate
went to the Government Hospital and recorded dying declaration,
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Exhibit 47 in which she has stated that due to continuous harassment of
her mother-in-law, she has committed suicide.
4. Again on the same day, P.W. 11, A.P.S.I. Shantaram Tayade
recorded her dying declaration, Exhibit 67 in which she has stated that
due to continuous ill treatment of accused persons, she has committed
suicide. Investigating Officer, P.W. 7 Shri Sable recorded statements of
witnesses. P.W. 7 investigated the crime and after completion of
investigation, filed charge-sheet before the Judicial Magistrate First
Class, Barshitakli who in turn committed the same to the Court of
Sessions, Akola.
5. Learned Ad-hoc Sessions Judge framed charge at Exhibit 8
for the offences punishable under Sections 498-A and 306 read with
Section 34 of the Indian Penal Code. Prosecution has examined in all
total 11 witnesses. After hearing the prosecution and defence, trial
Court come to the conclusion that prosecution failed to prove the guilt
of accused beyond reasonable doubt, therefore, acquitted all the
accused for the offences charged against them. Being aggrieved by
judgment of acquittal, present appeal is filed by the State.
6. Heard Shri Doifode, learned Additional Public Prosecutor
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for the appellant-State. He has pointed out me evidence of P.W. 1,
P.W. 2, P.W. 3 and P.W. 4. Learned Additional Public Prosecutor has
submitted that evidence of P.W. 1 shows that there was ill-treatment by
the accused persons and, therefore, there was meeting. He has stated
that his daughter when visited to his house told him that her mother-in-
law and father-in-law told her to bring Rs. 25,000/- from her parents.
Learned Additional Public Prosecutor submitted that there was a
meeting on 28-3-2001. In the meeting, P.W. 2 and P.W. 3 were also
present. All accused undertook not to ill-treat the deceased, therefore,
she was sent back. Learned Additional Public Prosecutor submitted that
ingredients of Section 498-A of the Indian Penal Code are proved by the
prosecution.
7. Learned Additional Public Prosecutor has pointed out me
evidence of P.W. 4 and submitted that when deceased was burning in
the house, he saw accused no. 2 Vijay and asked him as to what
happened, on that, he did not talk with him. P.W. 4 along with one
Suresh Dagar opened the door and extinguished fire by pouring water
on her person. Suresh Dagar brought autorickshaw. P.W. 4, Suresh
Dagar and Madhukar Chatarkar had taken deceased to Government
Hospital, Akola. Learned Additional Public Prosecutor submitted that
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conduct of accused shows that he was silent at the time of incident,
without taking any effort to extinguish fire and, therefore, conduct of
accused is relevant as per Section 8 of the Indian Evidence Act.
8. Learned Additional Public Prosecutor has pointed out dying
declaration, Exhibit 47 recorded by P.W. 5 Executive Magistrate and
dying declaration, Exhibit 67 recorded by A.P.S.I. Tayade (P.W. 11). He
has submitted that in both the dying declarations, she has stated the
name of accused no. 1 who was responsible for her death. Therefore,
there is sufficient evidence against accused no. 1 for the offence
punishable under Section 306 of the Indian Penal Code.
9. Learned Additional Public Prosecutor has submitted that
death of deceased Anita was within 3-4 months from the date of
marriage, therefore, presumption under Section 113-A of the Indian
Evidence Act is against the accused. Accused have not given any
explanation in their statements under Section 313 of the Code of
Criminal Procedure. Learned Additional Public Prosecutor has
submitted that the evidence adduced by the prosecution are sufficient to
convict the accused for the offence punishable under Sections 498-A
and 306 of the Indian Penal Code. Learned Additional Public
Prosecutor has submitted that the impugned judgment of acquittal is
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perverse, illegal and liable to be quashed and set aside. At last, he
submitted that accused/respondents be convicted for the offences
punishable under Sections 498-A and 306 read with Section 34 of the
Indian Penal Code.
10. None appears for the respondents. Perused the evidence on
record. The case of the prosecution is based on dying declaration
recorded by P.W. 5 i.e. Exhibit 47 and Exhibit 67 recorded by P.W. 11
A.P.S.I. Tayade. The case of the prosecution is also based on oral dying
declaration stated by P.W. 1, P.W. 2 and P.W. 4.
11. Evidence of P.W. 1 before the Court shows that his
daughter Anita was married to accused no. 2 Vijay on 29-1-2001. After
marriage, she was residing with accused. After 15 days of the marriage,
Anita came to his house and told them that her mother-in-law and
father-in-law asking her to bring Rs. 20,000/- from him/parents. She
also told that her father-in-law was saying to press his legs and hands.
He gave understanding to his daughter and sent her back to
matrimonial home. P.W. 1 brought his daughter after 2-3 days. Again,
she told him that accused persons were ill-treating her. She resided at
his house for about 7-8 days. A meeting was called on 28-3-2001. In
that meeting, father-in-law and husband of deceased told them that
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hereinafter they would not ill-treat her, therefore, he sent his daughter
on 30-3-2001. He has further stated that on the day of incident, he
gave invitation to the father-in-law and husband of his daughter. He
told them that he will take his daughter to his residence, at that time,
accused not sent her with him. At 10.00 to 10.30 a.m., he came to
know about the incident. When they reached, he saw deceased in burnt
condition. Madhukar Chatarkar, Sunil Palaskar and others taken her in
autorickshaw in Government Hospital, Akola. He has further stated that
his daughter told him that her husband pressed her neck and her
mother-in-law beaten her and father-in-law abused her in filthy
language and prevented her to go to her parents house. Her husband
threatened her to cut her hands and legs and, therefore, she has
committed suicide.
12. From perusal of his cross-examination, material omissions
are brought on record. In the evidence of P.W. 2, P.W. 3 and P.W. 4
stated on the point of ill-treatment and harassment but those are also
material omissions. If the omissions are taken into consideration, then
it is clear that there is no evidence on the point of ill-treatment to
deceased on account of demand of dowry.
13. The evidence of prosecution is of full of omissions and
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contradictions. Prosecution has relied on oral as well as written dying
declarations, Exhibit 47 and Exhibit 67. From perusal of first written
dying declaration recorded by P.W. 5, it is clear that she has stated in
Exhibit 47 that on 5-4-2001, deceased herself poured kerosene on her
person and set herself on fire because her mother-in-law was abusing
her in filthy language and because of that harassment, she burned her.
14. In the second dying declaration recorded by P.W. 11, she
has stated that "there was programme/ceremony at the residence of her
father on 5-4-2001, she told her husband that she wanted to go to her
parental home for the same. Her husband Vijay told her that if she goes
for the said ceremony, he would cut her hands and legs. Her father-in-
law and mother-in-law were giving harassment to her and were also
abusing and since she was not allowed to go to her father's residence for
the said ceremony, therefore, she went in a room of her house and
poured kerosene on her person and set herself on fire by igniting a
match stick."
15. Oral dying declaration stated by P.W. 1 that "she told him
that her husband had pressed her neck and her mother-in-law beaten
her. And her father-in-law had abused her in filthy language and her
husband had threatened her that if she goes to her parental home, he
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would cut her hands and legs. Therefore, she has committed suicide."
16. Dying declaration recorded by P.W. 5 i.e. Exhibit 47 and
dying declaration recorded by P.W. 11 Exhibit 67 and oral dying
declaration stated by the witnesses are not reliable because P.W. 1
himself has stated in his examination-in-chief that when he saw his
daughter after burning, her voice was not coming from the mouth. She
was completely burnt, entire body of his daughter was burnt. In his
cross-examination, he stated that her face was burnt, tongue was also
burnt and her eyes came out. This shows that she was not in a position
to tell anything. Exhibit 60 is the history stated by deceased at the
time of admission in the hospital. She has stated in her history that
'she was accidentally burnt'. At the time of admission of deceased, she
was found having 100% burnt. Cross-examination of P.W. 5 shows
that his evidence is not reliable. He has stated that entire body of
deceased was burnt. He has not mentioned that thumb impression
of deceased was attested. He has stated that he has not mentioned
that statement, Exhibit 47 was read over to the deceased. Exhibit 60
proved by Dr. Mankar (P.W. 8) clearly show that she was accidentally
burnt. This Exhibit 60 is first dying declaration.
17. Evidence of P.W. 11 shows that he went to the hospital and
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recorded the statement of deceased at about 3.50 p.m. She has stated
that there was ceremony at the house of her parents. Her husband not
allowed her to go her parent's house and threatened her if she goes, he
would cut her legs and hands. Her father-in-law and mother-in-law
were giving harassment to her and were also abusing. Since she was
not allowed to go to her father's residence for the said ceremony,
therefore, she went in a room, poured kerosene and set herself on fire.
18. Evidence of P.W. 11 is also not reliable because condition of
patient was very serious. She had 100% burns. As per evidence of
P.W. 1, her mouth, tongue etc. were burnt, therefore, evidence of
Doctor that she was in a position to give a statement is not reliable.
Moreover, evidence on record shows that she died at 4.30 p.m. i.e.
within a short period after recording of dying declaration, Exhibit 67.
19. Evidence on record shows that on the point of dying
declaration i.e. Exhibit 47 and Exhibit 67 and oral dying declaration
stated by the witnesses are contradictory. In dying declaration,
Exhibit 47, she has only stated name of mother-in-law. She has not
stated any other name of accused whereas in dying declaration,
Exhibit 67, she has stated that if she go to the house of her parent,
then her husband threatened her that he would cut her hands and
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legs. Her mother-in-law and father-in-law were abusing, therefore, she
was not allowed to go to her parents house and, therefore, she
committed suicide. Whereas P.W. 1 has stated that his daughter told
him that accused no. 2 pressed her neck, accused nos. 1 and 3 beaten
her and abused her, therefore, she has committed suicide. History
(dying declaration) Exhibit 60 in hospital show that she burnt
accidentally.
20. Dying declaration is the last statement of deceased.
Conviction can be based on dying declaration provided that it should
inspire confidence of the Court. In the present case, written dying
declaration and oral dying declaration are contradictory. On the other
hand in first dying declaration, she has only named her mother-in-law
whereas in second dying declaration, Exhibit 67, she has roped accused
nos. 1 to 3. In the oral dying declaration, deceased had stated different
version. Moreover, in Exhibit 60, history stated by deceased at the time
of admission shows that she sustained burn injuries accidentally.
21. P.W. 5 and P.W. 11 have stated that nobody was present at
the time of recording dying declaration. P.W. 4 has stated in his cross-
examination that he was sitting near Anita in the hospital till her
death. This itself shows that dying declaration is not reliable. Those
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dying declarations might be stated by other person like P.W. 4 because
the condition of deceased as stated in the medical papers shows that she
was in critical condition. She had 100% burns. Her father P.W. 1 has
stated that her whole body was burnt even her tongue was burnt. In
such situation, she was not in a position to talk. Even P.W. 1 has stated
that deceased was not in a position to talk. Therefore, dying
declarations recorded by P.W. 5 and P.W. 11 are not reliable.
Moreover, there is material infirmities brought on record in their
cross-examination. Oral dying declarations are stated differently by
P.W. 1, P.W. 2 and P.W. 4.
22. It appears from the dying declaration, Exhibit 67 that
deceased was sensitive. She has stated in the last paragraph of
Exhibit 67 that there was religious ceremony at the house of her
parents. She was not allowed to go to the house of her parents and,
therefore, she has committed suicide. This might be the reason for
committing suicide. Moreover, it has brought on record in the cross-
examination of P.W. 1 that his elder daughter had come to his residence
one day before day of incident. Deceased was not allowed to go to her
parents house. She did not meet her sister and, therefore, in hit of
anger, she might have committed suicide. This possibility cannot be
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ruled out. Hence, oral dying declaration stated by the witnesses and
written dying declaration, Exhibit 47 and Exhibit 67 are not reliable.
Exhibit 60 clearly shows that she burnt accidentally.
23. There is no dispute that death of deceased was suicidal but
prosecution has failed to prove that she was abetted by accused nos. 1
to 3 to commit suicide. Therefore, offence punishable under Section
306 of the Indian Penal Code against the accused is not proved by the
prosecution.
24. Prosecution has failed to prove the ingredients of Section
498-A of Indian Penal Code. P.W. 1 has stated about the demand of
Rs. 20,000/- by the accused persons but deceased herself not stated in
any of her dying declaration that accused were ill-treating her on
account of demand of money. Therefore, material ingredients of
Section 498-A of Indian Penal Code are not proved by the prosecution.
25. Learned Additional Public Prosecutor has submitted that
conduct of accused is relevant because he has not taken any steps to
extinguish fire though he was present. It is pertinent to note that
prosecution has to prove its case beyond reasonable doubt. Thereafter
burden shifts on the accused. Learned Additional Public Prosecutor has
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also submitted that accused have not explained in their Statements
under Section of 313 of Code of Criminal Procedure as to why deceased
has committed suicide. It is settled law that prosecution has to prove its
case beyond reasonable doubt. Prosecution has failed to prove its
burden, therefore, burden cannot shift on the accused to give any
explanation. Therefore, conduct as stated by the P.W. 4 is not relevant.
Moreover, his evidence is not corroborated by any other witness to show
that accused no. 2 was present at the time of incident and not taken any
action to extinguish fire.
26. Learned Additional Public Prosecutor has submitted that
deceased Anita was married with accused no. 2 on 29-1-2001 and she
died on 5-4-2001, therefore, presumption arise under Section 113-A of
the Indian Evidence Act. It is pertinent to note that though there is a
presumption under Section 113-A, but that ipso facto is not sufficient to
convict the accused. It is for the prosecution to prove the guilt, then
burden shift on the accused to rebut the presumption. Prosecution has
utterly failed to prove the guilt of accused beyond reasonable doubt. On
the other hand, Exhibit 67 dying declaration recorded by P.W. 11 shows
that there was religious ceremony at the house of her parents. She was
not allowed to go and, therefore, she has committed suicide might be
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the only reason to commit suicide. Hence presumption under Section
113-A of the Indian Evidence Act is not attracted.
27. Learned trial Court rightly appreciated the evidence on
record and came to the right conclusion that prosecution has failed to
prove any of the ingredients of Sections 498-A and 306 of the Indian
Penal Code and, therefore, acquitted all the accused for the offences
charged against them. There is no perversity or illegality in the
impugned judgment. Hence, appeal is liable to be dismissed,
accordingly, it is dismissed.
Bail bonds of accused/respondents stand cancelled.
R & P be sent back to trial Court.
JUDGE
wasnik
