Bombay High Court
The State Of Maharashtra vs Gautam Fulchand Shejawal & Os on 25 July, 2017
Bench: S.S. Shinde
239.2001 Cri.Appeal.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.239 OF 2001
The State of Maharashtra APPELLANT
[Orig. Informant]
VERSUS
1. Gautam Fulchand Shejawal,
Age 26 yrs.,
2. Fulchand Bandu Shejwal
[deceased]
3. Nanubai Fulchand Shejwal,
Age 52 yrs. [Deceased]
4. Bhimjyot Fulchand Shejwal,
Age 24 yrs.,
All residents of Nalandanagar,
Behind 7/8 Police Chowki,
Bhusawal, Dist. Jalgaon. RESPONDENTS
[Ori. Accused]
...
Mr.A.R.Borulkar, Advocate for the appellant -
State.
Mr.D.S.Pawar, Advocate holding for Mr.K.C.
Sant, Advocate for respondent Nos.1 and 4.
Respondent Nos.2 and 3 [died].
...
CORAM: S.S.SHINDE &
S.M.GAVHANE,JJ.
Reserved on : 03.07.2017
Pronounced on : 25.07.2017
239.2001 Cri.Appeal.odt
JUDGMENT: (Per S.S.Shinde, J.):
1. This Appeal is filed by the
appellant-State, challenging the judgment and
order of acquittal passed by the Sessions
Judge, Jalgaon, dated 28th February, 2001 in
Sessions Case No.321/1994, thereby acquitting
the respondent no.1 i.e. accused no.1, for
the offence punishable under Section 302 of
the Indian Penal Code, and also acquitting
the respondent nos.1, 3 and 4 i.e. accused
nos.1, 3 and 4, for the offence punishable
under Section 498-A r/w. 34 of the Indian
Penal Code.
2. The prosecution case in nutshell is
as under:
Vandana, daughter of Yamunabai
Namdeo Gangawane of Bhusawal, got married
with Gautam Fulchand Shejwal of Bhusawal, in
the year 1988. During her visit to her
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parents' house, Vandana [deceased] used to
tell her parents, and relative that her
husband and in-laws were ill-treating her as
she could not conceive. The parents and the
relatives of Vandana used to persuade and
console her. On 29th May, 1994, at about 2.00
p.m., one Arunabai Avhad informed Yamunabai,
mother of Vandana that Vandana had sustained
burn injuries and was admitted in the
Municipal Hospital, Bhusawal. When Yamunabai
had been to see Vandana at the Municipal
Hospital, Vandana told her that since morning
husband, father-in-law, mother-in-law, and
brother in law of Vandana started ill-
treating her and beating her as she could not
conceive, and wanted to give her divorce.
Vandana refused to put her signature on the
divorce papers; as such her husband Gautam
poured kerosene on her person and set her on
fire.
On 29th May, 1994, at about 1.30
239.2001 Cri.Appeal.odt
p.m., Pandit Chudaman Patil, A.S.I., City
Police Station, Bhusawal, received
information from the Medical Officer,
Municipal Hospital, Bhusawal that Vandana
Gautam Shejawal was admitted in the Hospital
as she has sustained burns. Mr.Patil made an
enquiry about the information in the station
diary, and directed ASI, Chaudhari to record
the statement of Vandana. He also wrote a
request letter to the Executive Magistrate
asking him to record the dying declaration of
Vandana.
ASI, Jagannath Tipu Chaudhari, on
receipt of the orders in respect of
recording of dying declaration of Vandana
from the Police Station, went to the
Municipal Dispensary, Bhusawal. He contacted
to the Medical Officer on duty, and asked him
whereabouts of Vandana. The Medical Officer
took ASI Chaudhari to Vandana. ASI,
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Chaudhari, asked the Medical Officer as to
whether Vandana is in a position to give
statement. When the Medical Officer answered
in the affirmative, ASI Chaudhary recorded
the statement of Vandana. Thereafter, he went
to the City Police Station and registered
Crime No.73/1994.
3. Jagannath Bhirud, an Executive
Magistrate, Bhusawal, on receipt of the
request letter from the City Police Station,
Bhusawal, went to the Municipal Hospital,
Bhusawal. He met Dr.Mahajan and informed him
that he has come to record the dying
declaration of Vandana. Dr.Mahajan took
Mr.Jagannath Bhirud to Vandana. The Medical
Officer informed Mr.Bhirud that Vandana was
conscious, and can give statement.
Thereafter, Mr.Bhirud recorded the dying
declaration of Vandana.
Shri Pandit Chudaman Patil, ASI, has
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carried the investigation. During his
investigation, he went to the Hospital,
attached the clothes on the person of Vandana
under panchnama. Thereafter, he prepared the
spot panchnama. On 29th May, 1994 at about
11.45 p.m. Vandana expired. On 30th May, 1994,
he prepared the inquest panchnama and
referred the dead body for conducting
postmortem examination. Further investigation
has been carried out by the Police Inspector
Mr.Marathe. During his investigation, he has
referred the attached articles to the
Chemical Analyzer, Aurangabad. On receipt of
the postmortem report, and the report of
C.A., and on completion of investigation, he
has submitted charge-sheet in the Court.
4. The trial Court framed the charge.
Accused no.1 is charged for having committed
an offence punishable under Section 302 of
are charged for having committed an offence
239.2001 Cri.Appeal.odt
punishable under Section 498-A r/w. 34 of the
Indian Penal Code. The accused have denied to
have committed any offence and claimed to be
tried. Their defence is of total denial. The
prosecution examined in all 6 witnesses and
relied upon the dying declarations etc.
5. After full-fledged trial, the trial
Court acquitted the respondent no.1 i.e.
accused no.1, for the offence punishable
under Section 302 of the Indian Penal Code,
and also acquitted the respondent nos.1, 3
and 4 i.e. accused nos.1, 3 and 4, for the
offence punishable under Section 498-A r/w.
34 of the Indian Penal Code. Hence this
Appeal filed by the appellant-accused.
6. Heard the learned APP appearing for
the appellant-State, and the learned counsel
appearing for the respondents-accused.
Perused the notes of evidence. The
prosecution case rests upon three dying
239.2001 Cri.Appeal.odt
declaration of Vandana, and one oral dying
declaration, which was given by Vandana
[deceased] to her mother Yamunabai. The first
dying declaration written is at Exh.57. It is
the case paper prepared by PW-5 Dr.Mahajan
after Vandana was admitted in the Municipal
Dispensary, Bhusawal. Upon careful perusal of
the contents of dying declaration at Exh.57,
it appears that Vandana was admitted in the
Municipal Hospital at Bhusawal on 29th May,
1994, at about 1.45 p.m. There is also entry
at 1.45 p.m. on the said Exhibit that she
expired at 11.45 p.m. on the same day. There
is a note in the form of medical history,
which reads as under:
H/0 - Beaten and pour kerosene
of her husband at about 1 p.m.
0/E 1st to 4 degree burn all
over the body. Patient is 100%
burn. Abdomen partly 1st degree.
Burn 2% superficial. Patient is
conscious. Burning pain in body.
239.2001 Cri.Appeal.odt
P/R.82 P/M Police inform for
statement of dying declaration.
There is also entry at 2.45 p.m. that patient
is conscious. The statement recorded by the
Police. The patient is restless. Burning pain
in body. P/R.80 P/M. There is also entry at
4.50 p.m. that patient is semiconscious.
Condition same P/R 80 P/M. There is entry at
8.30 p.m. that patient is unconscious.
Condition is poor P/R 72 P/M. Lastly, there
is entry at 11.40 p.m. that patient condition
is poor. Gassing condition. Pulse not record-
able. Body is cold. Patient expired at about
11.45 p.m. In the another column, there is
description of prescribed medicine and
diet/food.
7. It appears that the aforesaid
history, at the time of admission of Vandana,
has been treated as written dying declaration
[Exh.57]. In order to prove the said dying
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declaration, the prosecution examined Pandit
Chudaman Patil [PW-3]. He has stated in his
evidence that in the year 1993-94 he was
attached to the Police Station Bhusawal as
Assistant Sub Inspector. On 29th May, 1994,
when he was on duty as Thane Amaldar in
between 8.00 a.m. to 2.00 p.m. at about 13.50
hours, he received the requisition of the
Medical Officer of Municipal Hospital,
Bhusawal, informing that one Vandana Gautam
Shejwal, resident of Bhusawal, has been
admitted in the Hospital for sustaining 100%
burns. Accordingly, he recorded the entry of
the said information in the station diary.
Then he issued memo to the ASI Chaudhari, and
he was asked ASI Chaudhari to record the
statement of Vandana Shejwal. He further
stated that even a requisition was issued to
the Executive Magistrate on the same day to
record her dying declaration. At about 3.30
p.m. he was entrusted the investigation in
239.2001 Cri.Appeal.odt
Crime No.73/1994 under Section 498-A, 306
r/w.34 of the IPC. He went to the Hospital.
He attached the garments of Vandana before
the panchas. He carried out further
investigation. He stated that on 29th May,
1994, Vandana succumbed at 23.45 hours, and
accordingly, on 30th May, 1994, the inquest
panchnama was prepared.
8. The prosecution examined Dr.Sudhakar
Maruti Mahajan as PW-5. He stated in his
deposition that he is attached to the
Municipal Hospital, Bhusawal, since last 25
years. He stated that after patient of burn
injuries admitted in the Hospital, he
recorded his statement in the form of case
history. He made note of the same on the case
paper. He further stated that on 29th May,
1994, at about 1.00 p.m. Vandana Gautam
Shejwal was brought in his Hospital. She was
brought by some persons. He told those
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persons, who brought Vandana, to stay
outside. He himself, sister, Aaya and patient
were only in the room. He asked Vandana as to
how she sustained injuries. She told him that
she was beaten and kerosene was poured on her
person by her husband. Accordingly, he has
made a note of it on the case paper. He
informed the Police to record the dying
declaration of Vandana. Thereafter, the
police came and recorded the statement of
Vandana in his presence. He himself, Vandana
and the Police were in the room when her
statement was recorded by the Police. When
Vandana gave her statement, she was in a
position to talk and was fully conscious. The
Police obtained his signature on the
statement of Vandana. He further stated that
the Executive Magistrate also recorded the
dying declaration of Vandana, at that time
also Vandana was conscious. He put his
endorsement and signed it. Vandana continued
239.2001 Cri.Appeal.odt
under his treatment after her statement were
recorded. Vandana expired on the same day at
about 11.45 p.m.
PW-5, Dr.Mahajan, was cross examined
by the defence. During his cross examination,
he stated that while making a note of case
history on the case paper he has written
"beaten and poured kerosene by her husband at
about 1.00 p.m.". He stated that the portion
bracketed as statement given before him by
Vandana appearing in Exh.59, does not appear
in Exh.57. The original of Exh.59 is in the
Dispensary. He will not be in a position to
produce the same. He stated that there is
difference in Exh.57 and Exh.59. He does not
intend to give any explanation as to why
there is difference between Exh.57 and Exh.
59. However, he denied that Exh.57 is a
fabricated document prepared by him. He
further stated that whenever patient in a
serious condition is admitted, pulse rate of
239.2001 Cri.Appeal.odt
patient, heartbeat and anal temperature has
to be recorded. He has recorded the same in
the instant case [in Exh.57]. He again said
that he has not recorded heartbeat and anal
temperature on any paper. In Exh.57, it is
mentioned that Police recorded the statement
of Vandana at 2.45 p.m. but there is no such
entry in it to show that the Executive
Magistrate recorded her statement. He does
not wish to give any explanation in that
behalf. He denied that as the Executive
Magistrate did not record the statement of
Vandana in his presence, there is no entry
about the same in Exh.57. He had asked
Vandana as to who burn her. In Exh.57, it is
not mentioned that Vandana told him that her
husband burnt her. He denied that as Vandana
did not tell him who burnt her, he did not
record it in Exh.57.
9. When Exh.49 was shown to him, he
stated that the bracketed timing with red ink
239.2001 Cri.Appeal.odt
is not in his hand writing. The endorsement
at the top of Exh.49 does not mention the
time. The time given under the endorsement
made at the foot of Exh.49 is in his hand
writing. He does not know who has put the
timing 2.30 which appears above on his
endorsement in Exh.49. He was shown Exh.54.
He stated that the time 2.25 appearing under
his endorsement on it, is the time when the
statement of Vandana was concluded. He did
not put any question to Vandana to ascertain
as to whether she was mentally alert and fit
to give such dying declaration.
It appears from perusal of his
statement that even while recording the dying
declaration at Exh.57 and Exh.54 also, he had
given endorsement. It is also clear from his
evidence that in respect of mentioning time
of recording of dying declarations there is
lot of confusion, and also about the time of
239.2001 Cri.Appeal.odt
endorsements given by PW-5 Dr.Mahajan on the
said dying declaration.
10. Upon conjoint reading of the
contents of the dying declarations, and the
evidence of PW-5 Dr.Mahajan, it appears that
PW-5, Dr.Mahajan, could not produce the
original of Exh.59, and also it further
appears from reading of contents of dying
declaration at Exh.57, that in history it is
mentioned as 'beaten and poured kerosene of
her husband at 1.00 p.m.'. However, there is
no allegation that husband ignited matchstick
and set Vandana ablaze. PW-5, Dr.Mahajan, was
not able to explain, as to why the entry to
the effect that, the Executive Magistrate
recorded her statement is absent, in Exh.57.
11. The prosecution examined Jagannath
Tipu Chaudhari as PW-4. He was working as ASI
at the relevant time. He stated in his
evidence that he went to the Municipal
239.2001 Cri.Appeal.odt
Dispensary Bhusawal at 2.00 p.m. on 29th May,
1994, so as to record the statement of
Vandana. He met the Medical Officer and asked
him as to whether Vandana is in a position to
talk. The Medical Officer told him that
Vandana is in a position to talk.
Thereafter, he recorded the statement of
Vandana. Initially, he asked her name and
address etc., and thereafter, he asked her
about how the incident had taken place. He
recorded the statement of Vandana. The same
was read over to her. Thereafter, he obtained
her thumb mark on her statement. He stated
that the Medical Officer had put endorsement
in the margin of the statement. He attested
the said statement. Thereafter, he went to
the City Police Station and registered Crime
No.73/1994.
During his cross examination, he
stated that he took about one and half hour
239.2001 Cri.Appeal.odt
to record the statement of Vandana i.e. from
contacting him by the Medical Officer till
obtaining the thumb impression of Vandana. He
stated that Vandana was talking for about 30
to 45 minutes. She gave statement without
taking any pause. He recorded statement of
Vandana as it was narrated by her. He stated
that he was in the Municipal Dispensary
during the period from 2.15 p.m. to 3.15 p.m.
Vandana gave her statement during the period
from 2.30 p.m. till 3.15 p.m. It did not
happen that during the aforesaid period, the
Executive Magistrate also recorded statement
of Vandana. He cannot remember whether Shri
Jagannath Narayan Bhirud was the Executive
Magistrate, Bhusawal, in May 1994. He stated
that the Medical Officer has made an
endorsement on the dying declaration at
Exh.54 in his presence. The Medical Officer
has made endorsement after the statement of
Vandana was recorded. He has put the
239.2001 Cri.Appeal.odt
endorsement at about 3.30 p.m. It did not
happen that the Medical Officer has made his
endorsement at 2.25 p.m. The portion "at 1.00
noon" in Exh.54 has been inserted lateron. He
stated that it did not happen that Vandana
did not give the time when the incident has
taken place while narrating the incident,
she gave the time subsequently, and hence the
said portion of mentioning time of recording
dying declaration has been written
subsequently. Vandana did not utter words
'Navra Gautam' on four occasions while
narrating the incident. In second breath, he
again stated that Vandana uttered four times
"Navra Gautam". He had asked Vandana as to
where the incident took place; Vandana told
him that the incident had taken place in the
house. When he asked Vandana as to which
neighbour extinguished fire, Vandana did not
give the names of those neighbourers. He did
not ask Vandana that, as to whether any other
239.2001 Cri.Appeal.odt
person has recorded her statement or not. The
Medical Officer did not tell him that, the
Executive Magistrate had recorded the
statement of Vandana. He denied that Exh.54
is not the statement of Vandana and the thumb
impression thereon is not that of Vandana. He
further stated that the portion 'at 1.00
noon' in Exh.54 was written by him while
recording the statement of Vandana.
12. Upon careful perusal of the evidence
of PW-4 Jagannath Chaudhari, it is not
mentioned that when the recording of the
dying declaration was commenced and what time
it was concluded. Vandana stated in the said
dying declaration that Bhimjyot was in the
house, husband Gautam has poured kerosene on
her person and had set her ablaze at 1.00
p.m. and then they went out of the house.
Then she stated that mother-in-law, father-
in-law and husband did not approve her and
hence her husband poured kerosene on her
239.2001 Cri.Appeal.odt
person and burnt her. The endorsement of the
Medical Officer at Exh.54 shows that it was
made at 2.25 p.m. Time 1.00 p.m. appearing
in Exh.54 was inserted subsequently as has
been admitted by the ASI Chaudhari. He
deposed that he was in the Municipal
Dispensary during the period from 2.15 p.m.
to 3.15 p.m. According to him, Vandana gave
statement during the period from 2.30 p.m.
till 3.15 p.m. It was specifically suggested
to him as to whether during aforesaid period
the Executive Magistrate recorded the
statement of Vandana or not, however, he
denied the same. He further stated in his
cross examination that the Medical Officer
has made endorsement after the statement of
Vandana was recorded and that the Medical
Officer made endorsement at about 3.30 p.m
and denied that the Medical Officer made his
endorsement at 2.25 p.m.
239.2001 Cri.Appeal.odt
13. It appears that third dying
declaration at Exh.49 was recorded by the
PW-2, Executive Magistrate, Jagannath Bhirud.
In his evidence, he stated that on 29th May,
1994, he received requisition of the Police
Station, Bhusawal, to record a dying
declaration of one Vandana Gautam Shejwal.
He received the said letter at 2.15 p.m. He
then rushed to the Municipal Hospital
Bhusawal. He met Dr.Mahajan. He apprised him
that, he has come to record dying
declaration/statement of Vandana Shejwal. The
Medical Officer then took him to Vandana
Shejwal, who was lying alone on one cot in
special room of the Hospital. PW-2,
Mr.Bhirud, asked the Medical Officer whether
Vandana is able to speak. The Medical Officer
told him that she is conscious and can make a
statement. Then he started recording her
dying declaration. He first asked her name,
occupation and address. She told her name,
239.2001 Cri.Appeal.odt
age and address. Then he asked her how she
got burnt, in turn Vandana started to give
statement. Then he read over the contents of
the said statement to Vandana and then he put
his signature thereon. Dr.Mahajan also put
his signature. He stated that the said dying
declaration was kept in one sealed envelope
and it was kept in almari. On the date of
recording of his evidence, he brought the
said sealed envelope. The said sealed
envelope was open during the course of
recording of his evidence before the Court.
During his cross examination he stated that
the figure '20.30' appearing on the said
dying declaration about time of recording of
the said dying declaration is in his
handwriting, however, he denied those figure.
He did not ask her at which place kerosene
was poured on her person. However, she told
that a can of kerosene was in the latrine. In
the end of recording dying declaration, when
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he asked Vandana whether she wants to say
anything more. She stated that, she has
suspicion on her mother-in-law and husband
put her on fire.
14. Upon careful perusal of the evidence
of PW-2 Mr.Bhirud, it appears that Vandana
did express her suspicion that her mother-in-
law and her husband burnt her. In fact, if
her statement at Exh.57 is perused, she only
indicated orally that her husband poured
kerosene on her person, however, in dying
declaration at Exh.49, she implicated mother-
in-law. In fact, there is considerable
confusion about recording of three dying
declarations from 1.45 p.m. till 3.30 p.m. In
respect of the time of recording of dying
declarations, and the endorsements put by the
Medical Officer, there appears no clarity. It
appears that dying declarations at Exh.54 and
49 came to be recorded within a span of 5 to
10 minutes. If the evidence of PW-4
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Mr.Chaudhari is perused carefully, he had
shown ignorance about the dying declaration
recorded by the Special Executive Magistrate.
Not only that, it appears that even he was
not aware that Jagannath Narayan Bhirud is
working as Executive Magistrate at the
relevant time. If the contents of the dying
declaration at Exh.57 are compared with the
dying declaration at Exh.54 and Exh.49, it
will have to be held that the versions stated
in the three dying declarations are different
in material particulars. As already observed,
while giving medical history i.e. dying
declaration at Exh.57, Vandana stated that
her husband beaten and poured kerosene on her
person at 1.00 p.m. In Exh.54, she stated
that since she was unable to conceive child,
her mother-in-law and husband did not like
her, and her husband and mother in law
continued to ill-treat her. Then she
stated that on the date of incident her
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father-in-law, mother-in-law and husband and
also brother-in-law Bhimjyot quarreled with
her, and abused her and expressed that they
did not like her, and they were insisting to
take divorce. She stated that father-in-law
and mother-in-law went outside the house, and
inside the house husband in the afternoon at
1.00 p.m. poured kerosene and set her ablaze,
and thereafter, brother-in-law Bhimjyot went
outside the house. Upon careful perusal of
the original dying declaration at Exh.54, it
appears that, "nqikjh&1 oktrk" is inserted and
added subsequently. However, there are no
initials/counter signature of PW-4 Dr.Mahajan
after adding such portion. It further appears
that there is an endorsement of Dr.Mahajan at
2.25 p.m. In concluding part of the dying
declaration, Vandana stated that her mother-
in-law, father-in-law, brother-in-law and
husband did not like her, and therefore, her
husband poured kerosene on her person and set
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her ablaze. It appears that there is thumb
impression on the said dying declaration, but
there is no attestation to the said thumb
impression.
15. The dying declaration at Exh.49 was
recorded by the Executive Magistrate. We have
already discussed about said dying
declaration. The time of endorsement given by
the Medical Officer is written as 2.45 p.m.,
however, afterwards some figure is encircled
by red ink. It appears that initially time of
recording of said dying declaration was
mentioned as 20.30 p.m. As already observed,
when the dying declaration at Exh.54 was
recorded, the Medical Officer has mentioned
the time as 2.25 p.m. If the Medical Officer
was present while recording the dying
declaration at Exh.54, then while recording
of the dying declaration at Exh.49, recording
of which was begun at 2.30 p.m., there is
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serious doubt about the presence of the
Medical Officer Dr.Mahajan. In the said dying
declaration [Exh.49], Vandana stated that on
29th May, 1994, her mother-in-law Nanubai,
father-in-law Fulchand, brother-in-law
Bhimjyot, and husband Gautam started abusing
her, and were asking to take divorce. It is
also mentioned that prior to 7 days of the
incident she went to the house of her mother
and something was brought and given to the
husband. Then she stated that her husband
poured kerosene on her person at 1.00 p.m.
and set her ablaze and then he ran away from
the house. Thereafter, she started shouting
and came outside the house. She stated that a
Can containing kerosene was kept in the
toilet. Then she said that she has doubt on
her mother-in-law and husband has burnt her.
It appears that the said alleged dying
declaration was concluded at 2.45 p.m. Upon
careful perusal of the said dying
239.2001 Cri.Appeal.odt
declaration, there are two thumb impressions;
one thumb impression is immediately after
concluding the dying declaration, and
thereafter, it is mentioned that the
statement is read over and the same is
correct. Thereafter, another thumb impression
is taken. Name of Vandana is written and on
the said name itself thumb impression is
taken. Upon careful perusal of the contents
of the said dying declaration, it is apparent
that there is a lot of improvement in her
version. She stated that her husband poured
kerosene on her person and set her ablaze,
and thereafter, she stated that about the
said incident she had doubt on her mother-in-
law and husband that her mother-in-law and
husband burnt her. If the portion of dying
declaration at Exh.49 i.e. "lnj ?kVusckcr eyk ek>h
lklw o uojk ;kauh tkGys cnny la'k; vkgs" read carefully,
it indicated the state of mind of Vandana at
the relevant time was that, she was not in a
239.2001 Cri.Appeal.odt
mentally and physically fit condition and
conscious, to give such dying declaration.
16. Be that as it may, upon comparison
of the contents of three dying declarations
and also about timing of recording of the
said dying declarations, and the timing of
the endorsement made by the Medical Officer,
all three dying declarations create serious
doubt, whether the said dying declarations
were given voluntarily by Vandana, and about
it's truthfulness. Therefore, it is not safe
to place reliance on the said dying
declarations.
17. As per the prosecution case,
Vandana orally told Yamunabai PW-1, mother of
Vandana, that accused used to ill-treat her
as she could not give birth to child, and
therefore, they were annoyed. According to
prosecution case, PW-1, Yamunabai, persuaded
239.2001 Cri.Appeal.odt
the accused for better future of her
daughter. PW-1, Yamunabai, stated that she
went to the Hospital, she saw that Vandana
has sustained extensive burn injuries.
Vandana told her that, since morning her
husband Gautam, father-in-law Fulchand,
mother-in-law Nanubai, and brother-in-law
Bhimjyot started ill-treating her and beating
her as she was not able to conceive child,
and wanted her to give divorce. Vandana
refused to put her signature on the papers,
hence, her husband poured kerosene on her
person and put her on fire, and then Vandana
succumbed to the burn.
It is relevant to note that in first
three dying declarations, it is not mentioned
that the accused were asking her signature on
paper so as to give divorce, and upon refusal
of giving such signature her husband Gautam
poured kerosene on her person and put her on
fire.
239.2001 Cri.Appeal.odt
18. During the cross examination of PW-1
Yamunabai, she admitted that at the time of
incident, Ravindra, brother of Yamunabai, was
the Vice President of the Municipal Council,
Bhusawal. He had come in the Hospital at 4.30
to 5.00 p.m. She stated that since beginning
Vandana was not leading a happy life,
however, she did not take her complaints
seriously. She never visited the house of
accused. The accused never came to her house.
Her husband or son Rahul never used to visit
house of the accused. Fulchand died after the
incident. Nobody had interrogated Vandana in
the Hospital in her presence.
19. We have discussed in detail about
the contents of the dying declaration at
Exhibits 49, 54 and 57, and also the oral
dying declaration given by Vandana to PW-1
Yamunabai. We have discussed in detail about
the variance in the version of Vandana in the
239.2001 Cri.Appeal.odt
aforesaid three dying declarations and one
oral dying declaration.
20. The Supreme Court in the case of
State of Punjab Vs. Parveen Kumar1, while
appreciating the evidence in the form dying
declaration held that, while appreciating the
credibility of the evidence produced before
the Court, the Court must view evidence as a
whole and come to a conclusion as to its
genuineness and truthfulness. The mere fact
that two different versions are given but one
name is common in both of them cannot be a
ground for convicting the named person. The
court must be satisfied that the dying
declaration is truthful. If there are two
dying declarations giving two different
versions, a serious doubt is created about
the truthfulness of the dying declaration.
It may be that if there was any other
reliable evidence on record, this Court could
1 AIR 2005 SC 1277
239.2001 Cri.Appeal.odt
have considered such corroborative evidence
to test the truthfulness of the dying
declarations. The two dying declarations,
however, in the instant case stand by
themselves and there is no other reliable
evidence on record by reference to which
their truthfulness can be tested. It is well
settled that one piece of unreliable evidence
cannot be used to corroborate another piece
of unreliable evidence. The High Court while
considering the evidence on record has
rightly applied the principles laid down by
this Court in Thurukanni Pompiah and another
V. State of Mysore, AIR 1965 SC 939, and
Khusal Rao V. State of Bombay, 1958 SCR 552.
In the case of Khushal Rao Vs. State of
Bombay2 held that in order to pass the test
of reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has been
made in the absence of the accused who had no
2 AIR 1958 SC 22 [1]
239.2001 Cri.Appeal.odt
opportunity of testing the veracity of the
statement by cross-examination.
21. It appears that the Court examined
Pradeep Sakharam Pawar and Savita Shridhar
Shejwal as Court witnesses. Their evidence is
at Exhibits 74 and 75 respectively. It
appears that their statements were recorded
by the Police, however, the prosecution did
not examine them, and therefore, the trial
Court thought it fit to examine them. It
appears that CW-1, Pradeep Pawar, stated that
his house is on the backside of the house of
the accused. On 29th May, 1994, at about 12.00
or so, he heard shouts coming from the house
of accused. He went there. There was crowd. A
lady was shouting for help. He took the said
lady in a rickshaw. He admitted her in the
Municipal Dispensary at Bhusawal. Then he
came back to his house. However, during his
cross examination, he could not tell the name
239.2001 Cri.Appeal.odt
of the said lady, who was shouting. He did
not enquire with the persons in the crowd as
to what was happened. He stated that when the
incident had taken place one of the accused
namely Fulchand was not alive. Therefore, it
appears that though he took Vandana to the
Hospital, she did not tell anything to him.
Savita Shridhar Shejwal was examined
as CW-2. She stated that the incident took
place on 29th May, 1994, in between 1.00 to
1.30 p.m. At that time she was in the house
of her grandmother Nanubai. She herself and
her brother had gone to the house of her
grandmother to watch movie on T.V. Her aunt
Vandana and she herself and his brother were
in the house. Vandana was inside the kitchen.
After a while Vandana came out ablaze from
kitchen. When Vandana went out of the house,
she herself and his brother followed her.
Bhimjyot came with his rickshaw. Bhimjyot
239.2001 Cri.Appeal.odt
extinguished the fire by pouring water on the
person of Vandana. After the fire was
extinguished, she was taken to the Dispensary
in the rickshaw, and thereafter, she does not
know as to what happened thereafter as she
was in the house. CW-2, Savita, was cross
examined at length by the Public Prosecutor.
However, nothing useful to prosecution was
elicited from her cross examination.
22. The trial Court, upon appreciation
of the entire evidence in its proper
perspective, found that it is not safe to
rely upon the dying declarations, and other
evidence brought on record by the
prosecution, and benefit of doubt was given
in favour of the accused. We have also
discussed in detail the evidence brought on
record by the prosecution in the foregoing
paragraphs. However, we find that the
findings of acquittal recorded by the trial
239.2001 Cri.Appeal.odt
Court are in consonance with the evidence
brought on record by the prosecution. There
is no perversity as such. The possible view
is taken by the trial Court. The Supreme
Court in the case of Muralidhar alias Gidda
and another Vs. State of Karnataka3 in para
12 held thus:-
12. The approach of the
appellate Court in the appeal
against acquittal has been dealt
with by this Court in Tulsiram
Kanu Vs.State, AIR 1954 SC 1,
Madan Mohan Singh Vs. State of
U.P., AIR 1954 SC 637, Atley Vs.
State of U.P., AIR 1955 SC 807,
Aher Raja Khima Vs. State of
Saurashtra, AIR 1956 SC 217,
Balbir Singh Vs. State of
Punjab, AIR 1957 SC 216,
M.G.Agarwal Vs. State of
Maharashtra, AIR 1963 SC 200,
Noor Khan Vs. State of
Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs. State of Bihar,
3. 2014 [4] Mh.L.J.[Cri.] 353
239.2001 Cri.Appeal.odt
[1970] 2 SCC 450, Shivaji
Sahabrao Bobade Vs. State of
Maharashtra, [1973] 2 SCC 793,
Lekha Yadav Vs. State of Bihar,
[1973] 2 SCC 424, Khem Karan Vs.
State of U.P., [1974] 4 SCC 603,
Bishan Singh Vs. State of
Punjab, [1974] 3 SCC 288,
Umedbhai Jadavbhai Vs. Sate of
Gujarat, [1978] 1 SCC 228,
K.Gopal Reddy Vs. State of A.P.,
[1979] 1 SCC 355, Tota Singh Vs.
State of Punjab, [1987] 2 SCC
529, Ram Kumar Vs. State of
Haryana, 1995 Supp [1] SCC 248,
Madan Lal Vs. State of J & K,
[1997] 7 SCC 677, Sambasivan Vs.
State of Kerala, [1998] 5 SCC
412, Bhagwan Singh Vs. State of
M.P. [2002] 4 SCC 85, Harijana
Thirupala Vs. Public Prosecutor,
High Court of A.P., [2002] 6 SCC
470, C. Antony Vs. K.G.Raghavan
Nair, [2003] 1 SCC 1, State of
Karnataka Vs. K.Gopalakrishna,
[2005] 9 SCC 291, State of Goa
Vs. Sanjay Thakran, [2007] 3 SCC
755 and Chandrappa Vs. State of
239.2001 Cri.Appeal.odt
Karnataka, [2007] 4 SCC 415. It
is not necessary to deal with
these cases individually.
Suffice it to say that this
Court has consistently held that
in dealing with appeals against
acquittal, the appellate Court
must bear in mind the following:
(i) There is presumption of
innocence in favour of an
accused person and such
presumption is strengthened by
the order of acquittal passed in
his favour by the trial court,
(ii) The accused person is
entitled to the benefit of
reasonable doubt when it deals
with the merit of the appeal
against acquittal, (iii) Though,
the powers of the appellate
Court in considering the appeals
against acquittal are as
extensive as its powers in
appeals against convictions but
the appellate Court is generally
loath in disturbing the finding
of fact recorded by the trial
court. It is so because the
239.2001 Cri.Appeal.odt
trial Court had an advantage of
seeing the demeanor of the
witnesses. If the trial court
takes a reasonable view of the
facts of the case, interference
by the appellate Court with the
judgment of acquittal is not
justified. Unless, the
conclusions reached by the trial
court are palpably wrong or
based on erroneous view of the
law or if such conclusions are
allowed to stand, they are
likely to result in grave
injustice, the reluctance on the
part of the appellate Court in
interfering with such
conclusions is fully justified;
and (iv) Merely because the
appellate Court on re-
appreciation and re-evaluation
of the evidence is inclined to
take a different view,
interference with the judgment
of acquittal is not justified if
the view taken by the trial
Court is a possible view. The
evenly balanced views of the
239.2001 Cri.Appeal.odt
evidence must not result in the
interference by the appellate
Court in the judgment of the
trial Court.
[Underlines supplied]
23. In that view of the matter, we are
of the opinion that, there is no merit in the
appeal, hence appeal stands dismissed. The
bail bonds executed by the accused, if any,
shall stand cancelled.
[S.M.GAVHANE] [S.S.SHINDE]
JUDGE JUDGE
DDC
