Bombay High Court
Ashok Mahadeorao Gawande And ... vs The State Of Mah. Thr. Pso Yevda ... on 2 June, 2017
Bench: B.P. Dharmadhikari
Judgment apeal619.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NOs. 619 AND 635 OF 2003.
........
CRIMINAL APPEAL NO. 619 OF 2003.
1. Smt. Saraswatibai w/o Mahadeorao Gawande,
aged about 62 years, Occ - Household,
resident of Jainpur, Tahsil Daryapur,
District Amravati.
2. Babarao s/o Mahadeorao Gawande,
aged about 35 years, Occupation -
service, resident of Nehru Park Chowk,
Murtizapur road, Akola. ....APPELLANTS.
VERSUS
1. State of Maharashtra,
through P.S.O. Yevda. ....RESPONDENT
.
WITH
CRIMINAL APPEAL NO. 635 OF 2003.
1. Ashok Mahadeorao Gawande,
aged about 34 years, Occ - Cultivator,
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Judgment apeal619.03
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2. Rajkumar Mahadeorao Gawande,
aged about 32 years, Occupation -
Cultivator,
Both resident of Jainpur,
Tahsil Daryapur,
District Amravati. ....APPELLANTS.
VERSUS
State of Maharashtra,
through P.S.O. Yevda,
Tq. Daryapur, District
Amravati. ....RESPONDENT
.
-----------------------------------
Mr. A.S. Mardikar, Senior Advocate with Shri S.S. Joshi, Advocate
for Appellants.
Mr. N.R. Patil, A.P.P. for Respondent.
------------------------------------
CORAM : B.P. DHARMADHIKARI
AND Z.A. HAQ, JJ.
DATED : JUNE 02, 2017.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
By these appeals filed under Section 374 of Criminal Procedure
Code, accused convicted in Sessions Trial No. 79/1996 by the Additional
Judgment apeal619.03
Sessions Judge, Achalpur on 03.10.2003 for offence punishable under
Section 302 read with Section 34 of Indian Penal Code, seek acquittal. As
per charge sheet - Exh.21, there were total 5 accused. Janabai Debuji
Raibole aged about 75 years, expired during pendency of the proceedings
before the Trial Court and hence trial proceeded against only 4 accused
persons, who are appellants before this Court in these two appeals.
Sessions Court has acquitted all four of offence punishable under Section
498-A read with Section 34 of Indian Penal Code. They have been convicted
only under Section 302 read with Section 34 of Indian Penal Code.
2. According to prosecution, marriage of deceased Sharda wife of
accused Ashok took place on 23.02.1996, and she was burnt on 26.04.1996
at the house of accused persons at village Jainpur. To return a finding of
guilt, trial Court has relied upon dying declaration at Exh.46 along with oral
dying declaration given to P.W.2 - Chanda, who happens to be sister of
deceased. Trial Court has disbelieved claim of P.W.1 Kesharbai and P.W. 5
Sheshrao (parents of deceased) that they had witnessed the incident.
3. Senior Counsel Shri A.S. Mardikar, with Shri S.S. Joshi, learned
Counsel submits that evidence of P.W.1 and P.W 5 reveal that they brought
deceased Sharda a day earlier to the house of accused persons at village
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Jainpur. They wanted family of accused to accept deceased Sharda and to
cohabit with her. However, as Sharda was carrying pregnancy before her
marriage, accused persons were not ready and willing to do so. That next
day in the morning Sharda was to leave house of accused persons with her
parents, but, then she committed suicide. He has taken us through relevant
material on record to urge that this story is totally lost sight of by the
learned Sessions Court. He further adds that statement of P.W.2 Chanda
about oral dying declaration by Sharada is also not free from doubt. Dying
declaration at Exh.46 needed to be looked into independently and thereafter
only a proper finding could have been reached.
4. Learned A.P.P. has supported the conviction. According to him,
parents have shifted deceased to the hospital and their presence with the
accused persons at Jainpur is not in dispute. It is further submitted by him
that that only because of evidence of P.W.7- Dr. Bhalchandra Deshmukh,
dying declaration at Exh.46 cannot be disbelieved. The Trial Court has
rightly found corroboration therefor in deposition of P.W.2- Chanda. He has
also taken us through relevant deposition for this purpose.
We find it convenient to begin with Exh.46 i.e. dying declaration
on which the Sessions Court has placed reliance. This declaration is a
printed proforma and on it thumb impression appears in the margin and not
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below her alleged statement. Deceased had suffered burns to the extent of
92% or 93% and still the thumb impression carries ridges and curves. P.W.6
who has recorded this dying declaration was Naib Tahsildar and Executive
Magistrate. He accepts that he has not mentioned name of person putting
thumb impression below that impression. The dying declaration, at its top
on right hand side in handwriting mentions date 26.04.1996 and time 10.50
i.e. 10.50 a.m. Thereafter, there is requisition to Medical Officer to examine
her medically and to certify whether Sharda is conscious and her dying
declaration can be recorded. On this requisition on right hand side P.W.6
has placed his signature and mentioned same date and same time. On left
hand side, the endorsement by Doctor appears as Exh.52. Doctor has
certified that patient is fully competent/conscious to give statement. Doctor
has then put his signature and while mentioning date he has given time as
10.50 only. Thus, immediately after requisition, certificate was issued. At its
bottom there is actual statement. The requisition has been given Exh.46,
while the statement appears to have been recorded as Exh.47. In Exh.47,
there are three questions and against it entire statement has been recorded.
Exh.46, is on very same page on which Exh.47 has been recorded. The
mode and manner of recording shows that effort was to complete the same
in the space left on the page after requisition and certificate of Doctor.
Deceased mentions that there was some difference between husband and
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wife since 15 days and her brother in law Baburao (accused no.4), was
asking her husband not to cohabit with her. The deceased insisted her
parents to take her to her husband's house and accordingly they brought her
there. There accused persons poured kerosene and ignited her. Door was
closed. At that time her parents have gone to attend natures call. After
return, they tried to extinguish the fire. After this statement, signature of
P.W.6 appears on right hand side at the bottom of the age. On left hand side
there is an endorsement by doctor which states that the statement of patient
was recorded in his presence and patient was conscious. This endorsement
is Exh.53. In margin, there is an endorsement that it was read over and
after ascertaining that it was true, thumb was put. As already noted above,
name of person putting thumb does not appear on this endorsement.
5. P.W.7 - Dr. Bhalchandra Deshmukh states that before giving
certificate at Exh.52 he medically examined Sharda. After recording
statement he again examined her and then gave certificate at Exh.53. In
cross-examination he states that deceased had suffered 93% burns and her
treatment had already began. Sedatives are administered to such person
and patient is drowsy. For medical examination of such patient half an hour
is required. He stated that he received requisition from Executive Magistrate
at 10.50 a.m. and gave certificate of fitness at 10.50 a.m. only. He accepted
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that he did not mention time below later certificate at Exh.53. He further
stated that without seeing bed ticket he can tell as to how many injections of
sedatives were given to Sharda. He accepted that both the hands of Sharda
were burnt.
6. If half an hour is required to examine such a patient, Exh.52 could
not have been issued at 10.50 a.m. only. P.W.6 Gulabrao Ingole (Executive
Magistrate) has not mentioned the time at which he started recording dying
declaration or time of its completion. He speaks of certificate obtained by
him from P.W.7. However, he stated that P.W.7 did not examined Sharda in
his presence. He also accepted that her entire body was burnt. In chief, he
has stated that the Medical Officer examined Sharda and gave certificate
that she was fit to give dying declaration. Thereafter he again asked name
of Sharda to ascertain if she was in a position to give dying declaration.
Thus, this person has contradicted himself.
7. Mode and manner in which dying declaration Exh.46/47 has been
written and evidence adduced by P.W.6 and P.W.7 makes the document
doubtful.
8. Trial Court has relied upon the evidence of P.W.2 to hold that the
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story in Exh.47 is corroborated by her. However, her cross-examination
reveals that the fact of accused Babarao pouring kerosene on person of
Sharda, as communicated by Sharda to her, accused Ashok and Rajkumar
catching hold of her hands and accused Saraswatibai igniting, are all missing
in her police statement and she could not explain reason therefor. It cannot
be therefore be said that P.W.2 proves any dying declaration or then her
version corroborates narration in Exh.47.
9. Perusal of evidence of P.W.1 and P.W.5 (parents) reveals that they
were not present at the time of alleged incident. Sharda also states so in her
dying declaration. Because of their absence at the time of incident, Trial
Court has not relied upon their oral evidence.
10. Deposition of P.W.1 - Kesharbai who happens to be mother of the
deceased Sharda reveals that 15 days after marriage she met Sharda by
visiting house of Sharda. Accused Babarao was expressing that accused
Ashok should not cohabit with Sharda, and therefore, she had asked Sharda
to return to her house. Sharda was not ready to return. In paragraph no.2
of her deposition in which she states that at the time of death Sharda she
was present at the house of Sharda along with her husband and accused
persons were saying that they should take back Sharda with them. As it was
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evening time, they halted there and agreed to go back on next day. In the
night there was quarrel between Sharda and accused persons. In the
morning Sharda was ready to go with her.
11. This narration therefore, shows substance in defence of the
accused persons that as Sharda was already carrying, they were not ready
and willing to stay with her. In post mortem, carried on the body of
deceased Sharda, foetus of 8 to 10 weeks is recorded against column no.21.
P.W.1 accepted that Ashok alleged that Sharda was pregnant since before
marriage. Portion marked as "A" in her police statement was denied by her.
She accepted that when Ashok alleged pregnancy, it was agreed that Sharda
and her parents would go to their house and settle the dispute. P.W.5
Sheshrao has attempted to give entirely different version of the matter.
Paragraph no.3 of his cross-examination brings on record improvements
made by him. He could not explain why fact of accused persons demanding
divorce from Sharda appeared in his police statement. When other part of
his police statement, which runs contrary to his deposition before Court was
put to him, he could not explain why police had written those facts in his
statement. He denied that he had asked his son-in-law to condone the
mistake of Sharda. He also denied that Ashok had asked him to go to house
of Sahebrao at Akola to settle the dispute.
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12. This material on record shows that deceased Sharda was pregnant
at the time of her marriage. Death has taken place within two months of her
marriage. Sharda was with her parents since 15 days prior to the incident.
With parents she came to house of accused persons. Accused persons
declined to cohabit with Sharda. Sharda and her family were to return to
her native place in the morning. The facts therefore, rule out any motive
with accused persons to kill Sharda.
13. Trial Court therefore has erred in placing reliance upon dying
declaration Exh.47 and oral dying declaration to P.W.2 Chanda. The finding
of guilt and conviction recorded by the trial Court is therefore,
unsustainable. Hence, we proceed to pass the following order.
ORDER
(1) Criminal Appeals are allowed.
(2) Judgment dated 03.10.2003 delivered by the Additional
Sessions Judge, Achalpur in Sessions Trial No.79/1996,
convicting the appellants for the offence punishable
under Section 302 read with Section 34 of Indian Penal
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Code is quashed and set aside and they are acquitted of
the said offence.
(3) Bail bonds furnished by them are cancelled.
(4) The muddemal property be dealt with, as directed by
the trial Court, after the appeal period is over.
JUDGE JUDGE
Rgd.
