Bombay High Court
State Of Mah.Thr.P.S.O.Umarkhed vs Gunabai Maroti Bitewad (Abated) & ... on 18 July, 2017
Bench: M. G. Giratkar
1 jg.apeal.335.02.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 335 OF 2002
State of Maharashtra,
Through Police Station Officer,
PS : Umarkhed, Dist. Yavatmal. ... Appellant
VERSUS
Appeal abated
as per Court's (1) Sau. Gunabai Maroti Bitewad,
order dated Aged about 50 years,
12-4-2017 as
against (2) Maroti Naganna Bitewad,
Respondent
Nos. 1 & 2
Aged about 65 years,
(3) Datta Maroti Bitewad,
Aged about 34 years
All residents of village Krushnapur
Tq : Umarkhed, Dist. Yavatmal. ... Respondents
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Shri S. S. Doifode, A.P.P. for the State/appellant
Shri D. R. Upadhyay, Advocate h/f Shri S. U. Nemade, Advocate for the
respondent no. 3
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CORAM : M. G. GIRATKAR, J.
Date of reserving judgment : 13/07/2017.
Date of pronouncing of judgment : 18/07/2017.
Judgment
The appellant - State has challenged the judgment of
acquittal of respondents/accused dated 4-2-2002 passed by 2 nd Ad-hoc
Additional Sessions Judge, Pusad in Criminal Case No. 42/1993.
2 jg.apeal.335.02.odt
2. The case of the appellant/prosecution in short is as under :
(i) Deceased Sindhu was married with son of the respondents/
accused nos. 1 and 2. As per the evidence of P.W. 1 and P.W. 8, parents
of deceased Sindhu, respondents/accused were ill-treating deceased.
Her father-in-law i.e. accused no. 2 suggested her father to transfer 10
acre agricultural land in the name of husband of deceased so that they
will get loan for tractor. P.W. 1 father of deceased refused to give 10
Acre land saying that he would be landless. On that count, accused
persons were ill-treating her and abusing her. Deceased along with her
husband left matrimonial place and started residing at Dhamangaon.
After some months, they returned back. On the day of incident,
deceased along with her co-sister went to the field for performing
agricultural operation.
(ii) It is the case of prosecution that accused nos. 1 to 3 abused
deceased. They also abused her parents. She could not tolerate,
returned to the house, poured kerosene on her person and set herself on
fire. She was admitted in the Government Hospital at Umarkhed.
Executive Magistrate recorded her dying declaration, Exhibit 63. P.W. 1
came to know about the incident, went to Umarkhed and asked her as
to how she burnt ? Then she told him that "she and her co-sister had
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gone to the field for performing agricultural operation. She also told
him that accused nos. 2 and 3 started abusing her without any reason.
She also told him that they were abusing that rw cnek'k vkgs] rw>h
vkbZ&cfg.k cnek'k vkgs] rw>k cki HkkM[kkÅ vkgs- She also told him that
she told accused that what they had to say they should say to her only
and they should not abuse her parents. Thereupon, accused no. 2 said
'shut up', rqeps [kkunku [kjkc vkgs- Thereupon she came back to house,
went inside the house and set herself on fire after pouring kerosene on
her."
(iii) Deceased was shifted to Government Hospital, Nanded
from Umarkhed. Again her dying declaration was recorded by A.S.I.
Sharma (Exhibit 60). Her parents went to Nanded. Her mother P.W. 8
inquired the deceased whereupon deceased told her that "accused
persons abused her parents, her brother and sister which was
beyond her tolerance, therefore, she set herself on fire". Statement of
her mother P.W. 8 was recorded by police. It was treated as report,
Exhibit 54. On the basis of report, crime was registered against the
accused/respondents.
(iv) During the treatment, Sindhu died. Post mortem was
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conducted by Dr. Bilolikar. As per the post mortem report, Sindhu died
due to burn injuries. Post mortem report is at Exhibit 53. After
complete investigation, charge-sheet was filed.
(v) Ad-hoc Additional Sessions Judge, Pusad framed charge
vide Exhibit 23. Prosecution has examined in all total 12 witnesses.
Statements of accused were recorded. They have denied the material
incriminating evidence against them. After hearing the prosecution and
defence, learned Ad-hoc Additional Sessions Judge acquitted all the
accused for the offences punishable under Sections 498-A, 306 read
with Section 34 of the Indian Penal Code. Being aggrieved by the
judgment of acquittal, State has filed present appeal.
3. Heard Shri Doifode, learned Additional Public Prosecutor
for the State/appellant. He has submitted that prosecution has proved
the dying declarations, Exhibit 56, Exhibit 60 and Exhibit 63. In Exhibit
56, she has stated that her husband, mother-in-law, brother-in- law
resided together. Since there used to be frequent quarrel between her
mother-in-law, brother-in-law on one side and she herself and her
husband on other side, she along with her husband used to reside
separately. On the day of incident, her mother-in-law and brother-in-
law had a serious quarrel with her putting a blame on her that she
5 jg.apeal.335.02.odt
convinced her husband to reside separately. She could not tolerate the
gravity of quarrel, she went inside the house, poured kerosene on her
person and set herself on fire. When she raised shouts, her husband
extinguished fire by pouring water on her person. Learned Additional
Public Prosecutor Shri Doifode pointed out evidence of P.W. 1 and
P.W. 8 and at last, submitted that all evidence if considered is sufficient.
4. Shri D. R. Upadhyay, learned Advocate holding for Shri S.
U. Nemade, learned Advocate for the respondent no. 3 has strongly
supported the impugned judgment of trial Court. Shri Upadhyay,
learned Advocate has submitted that all the dying declarations, if taken
into consideration, then it is clear that prosecution has failed to prove
the guilt of accused beyond reasonable doubt, therefore, learned trial
Court has rightly acquitted the respondents.
5. First written dying declaration, Exhibit 63 was recorded by
the Executive Magistrate on 12-8-1992 at 8.20 p.m. She has stated in
her dying declaration, Exhibit 63 that "when she was preparing tea, the
stove flared up and her saree caught fire. She was alone at home.
Nobody set her on fire."
6. Second dying declaration, Exhibit 60 was recorded by ASI
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Shri Sharma at Umarkhed. In the second dying declaration/statement,
she has stated that, "she did not have issue, she was preparing tea on
the stove, it flared up and her clothes caught fire and she sustained
burns. Her husband was not at home. Her neighbours extinguished
fire. Nobody set her on fire. Her mother-in-law and father-in-law
resided with them but neither she had any trouble from them nor from
her husband. She burnt because of flaring up of a stove."
7. After recording second dying declaration, Exhibit 60, she
was shifted to hospital at Nanded. Third dying declaration, Exhibit 56
was recorded by Special Judicial Magistrate, Nanded at about 8.05 a.m.
on 13-8-1992. In this dying declaration, Exhibit 56, she has stated that
"one year back, she got married. She did not have any issue. Her
husband, mother-in-law Gunabai, brother-in-law Dutta and she resided
in her house. Since, there used to be frequent quarrel between her
mother-in-law, brother-in-law on one side and she on the other side,
they, husband and wife used to reside separately. Yesterday, her
mother-in-law and brother-in-law had serious quarrel with her, putting
a blame on her that she convinced her husband to reside separately. As
she could not tolerate the gravity of quarrel, she went inside the house,
poured kerosene on her person and set herself on fire. When she raised
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shouts, her husband came and extinguished her by pouring water on her
person."
8. In oral evidence, P.W. 1 has stated that father-in-law of
deceased suggested him to transfer 10 acres of agricultural land in the
name of his son. He refused saying that he would be landless, since
then accused nos. 1 to 3 started ill-treating his daughter/deceased. Due
to their ill-treatment, deceased with her husband started living
separately. They were residing at Dhamangaon. Few days before the
incident, they returned. He came to know about the incident and went
to the hospital at Umarkhed. He asked the deceased as to how she
burnt, then she told him that she along with her co-sister Kamal had
gone to field for agriculture work. Accused nos. 2 and 3 started abusing
her without any reason. They were abusing saying that " rw cnek'k vkgs]
rw>h vkbZ&cfg.k cnek'k vkgs] rw>k cki HkkM[kkÅ vkgs-" She told them
that whatever they had to say they should say to her only and should
not abuse her parents. Thereupon, accused no. 2 said 'shut up', rqeps
[kkunku [kjkc vkgs- Thereupon, Sindhu returned back to he house,
poured kerosene on her person and set herself on fire.
9. P.W. 8 mother of deceased stated that there was ill-
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treatment to her daughter on account of demand of 10 acre agriculture
land. Her daughter and son-in-law started residing separately. Few
days before the incident, they returned back to Krisanpur. Her husband
brought Sindhu, then she told them about the ill-treatment. Her son-in-
law taken her back saying that they would live separately. Thereafter
deceased and her husband were living separately.
10. P.W. 8, mother of deceased came to know about the
incident. She went to hospital at Nanded and asked her duaghter as to
how she burnt. Then she told that "accused persons abused her parent,
her brother and her sister which was beyond her tolerance, because of
which she set herself on fire.
11. Dying declaration, Exhibit 60 and Exhibit 63 not implicated
any of the accused. In both the dying declarations i.e. Exhibit 60 and
63, she has stated that she was preparing tea on stove, stove flared up
and her clothes caught fire, therefore, she sustained burn injuries. Last
dying declaration, Exhibit 56 was recorded after arrival of her relatives.
There is material substance in the defence of accused that it was
recorded as per the say of her parents. This defence is supported by
cross-examination of P.W. 2 and P.W. 6 (Police Patil). P.W. 2 is nearest
relative of deceased and her father P.W. 1 Narayan, who is husband of
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his wife's sister. Therefore, his evidence is material. He has stated in
his cross-examination that accused nos. 1 and 2 were residing separately
in the field. Deceased and her husband (accused no. 3) were residing in
the village. He has further stated that accused no. 2 had gone to
Maregaon on the day of incident. This witness had gone to Nanded. He
had talk with deceased in the hospital at Nanded. That time, she told
him that she was burnt because of explosion of stove.
12. P.W. 6 Kashirao Kadam, Police Patil of village has stated in
his evidence that he came to know about the incident, therefore, he
lodged report about the incident. In the cross-examination, he has
stated that accused nos. 1 and 2 used to live in farm house. Deceased
and her husband used to reside in the house in front of flour mill. He
learnt at the time of lodging report that Sindhu was burnt due to
explosion of stove. P.W. 7 has stated in his cross-examination that
deceased told him that accused no. 2 was not present on the day of
incident. There is material omission brought in his evidence in respect
of ill-treatment made by the accused.
13. Now, it is settled law that accused can be convicted only on
the basis of dying declaration provided that dying declaration should
inspire confidence of the Court. In the present case, first and second
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dying declaration, Exhibit 60 and Exhibit 63 clearly show that deceased
was preparing tea on stove, due to flaring up of stove, her cloths caught
fire and she sustained burn injuries. Exhibit 60 and Exhibit 63 are
corroborated by evidence of P.W. 2 and P.W. 6 (Police Patil). P.W. 2
has specifically stated that when he asked deceased about the burns,
then she replied that she was preparing tea on stove, she caught fire and
burned. P.W. 6 has stated in his cross-examination that while lodging
the report, he came to know that deceased was preparing tea on stove,
she caught fire because of flaring up of stove.
14. Dying declaration, Exhibit 56 was recorded after arrival of
her parents. There is every possibility of tutoring her. Exhibit 56 itself
not implicated accused no. 3. P.W. 2 and P.W. 7 admitted that accused
no. 2 was not present at the time of incident.
15. During the trial, accused/respondent nos. 1 and 2 died,
therefore, the appeal abated against them vide order dated 12-4-2017.
The appeal is pending against only accused/respondent no. 3. From
perusal of evidence of P.W. 1 and P.W. 8, the material allegations
appears to be against accused nos. 1 and 2. Oral dying declarations and
dying declaration, Exhibit 56 are not reliable and trustworthy.
11 jg.apeal.335.02.odt
16. The burden to prove guilt of accused beyond reasonable
doubt is on the prosecution whereas burden to prove the defence is
very lesser. Accused has to prove his defence by preponderance of
probability. The defence of accused that deceased was preparing tea on
stove and while preparing tea on stove, she caught fire and sustained
burn injuries and died. The probable defence is proved by the accused
persons. Therefore, learned trial court has rightly given its finding
holding that prosecution has failed to prove the guilt of accused.
Findings recorded by trial Court are perfectly legal and correct. There is
no perversity or illegality in the impugned judgment. Hence, appeal
deserves to be dismissed, accordingly, it is dismissed.
Bail bond of accused/respondent no. 3 stands cancelled.
R & P be sent back to the trial Court.
JUDGE
wasnik
