Bombay High Court
The State Of Mah vs Tukaram Kisan Wanve on 3 November, 2017
Bench: T.V. Nalawade
1 Cr Appeal 65 of 2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Appeal No. 65 of 2003
The State of Maharashtra
Through Police Station Officer
Police Station, Ashti,
Taluka Ashti, District Beed. .. Appellant.
Versus
Tukaram s/o Kisan Wanve,
Age 50 years,
Occupation : Agriculture,
R/o Wanvewadi, Taluka Ashti,
District Beed. .. Respondent.
----
Shri. S.J. Salgare, Additional Public Prosecutor, for
appellant.
Shri. V.M. Chate, Advocate, for respondent.
----
Coram: T.V. NALAWADE &
A.M. DHAVALE, JJ.
Date: 3 November 2017
JUDGMENT (Per T.V. Nalawade, J.):
1) The appeal is filed against the judgment and
order of Sessions Case No.3/2002 which was pending in
the Court of the learned 2nd Ad-hoc Additional Sessions
2 Cr Appeal 65 of 2003
Judge Beed. Present respondent Tukaram and his son
Vithal were tried for offences punishable under sections
302, 498-A, 504, 506, 509 read with 34 of the Indian
Penal Code. Both the accused are acquitted by the trial
Court. The appeal is filed against only present respondent
by the State. Both the sides are heard.
2) In short, the facts leading to the institution of
the present appeal are as under :
3) The deceased Ashabai was daughter of Gorakh
Andhale who is resident Andhlyachiwadi, District Beed.
She was given in marriage to Vithal, son of the
respondent, 3 to 4 months prior to the date of the incident
in question. It is the case of the prosecution that, the
respondent is addicted to liquor and after consuming
liquor he used to pick up quarrels with the deceased. The
deceased used to disclose about the behaviour of the
respondent to her parents during her visits to the house
of her parents. She was cohabiting with Vithal in Village
Wanvewadi, Tahsil Ashti, District Beed. The incident in
question took place at 7 to 8 p.m. of 30-9-2001 in the
3 Cr Appeal 65 of 2003
house of the husband of the deceased. The deceased
sustained burn injuries and she was shifted first to
Government Hospital Ashti and then to Civil Hospital
Ahmednagar. In the Civil Hospital Ahmednagar on 1-10-
2001 her statement came to be recorded by police of
Kotwali Police Station Ahmednagar in which she gave the
account of attempt of suicide. Her dying declaration came
to be recorded by the Special Executive Magistrate on 2-
10-2001 in Civil Hospital Ahmednagar. In this second
dying declaration she blamed the respondent Tukaram by
disclosing that he had set fire to her after pouring
kerosene on her person. She disclosed that both, her
husband and father-in-law were responsible for causing
her burn injuries. She disclosed the incident to her father
and mother. On the basis of the dying declaration
recorded by the Magistrate, the crime came to be
registered. She died in the hospital after about 4 days of
the incident. Post mortem was conducted on the dead
body and the doctor gave opinion about cause of death as
due to 90% burn injuries. Both, the husband and the
father-in-law came to be arrested. They had also sustained
burn injuries and they were referred for medical
4 Cr Appeal 65 of 2003
examination. After completion of investigation, charge
sheet came to be filed against both, the husband and the
father-in-law.
4) Charge was framed for the aforesaid offences
and plea was recorded. Both the accused pleaded not
guilty. The prosecution examined in all six witnesses. The
accused took defence of total denial. No defence evidence
is given.
5) The prosecution has produced on record the
two recorded dying declarations. The first dying
declaration dated 1-10-2001 at Exhibit 21 shows that she
gave account of attempt of suicide but she had blamed
present respondent by saying that on that evening after
taking liquor respondent had given abuses in filthy
language and so she had taken such step. However, she
had disclosed that the persons from the house of the
respondent had shifted her first to Ashti Government
Hospital and then to Civil Hospital Ahmednagar. She had
not blamed the husband for the incident. In the second
dying declaration which is proved in the evidence of the
5 Cr Appeal 65 of 2003
Magistrate, she disclosed that on that evening when she
was present in the house, respondent - Tukaram poured
kerosene on her person and set fire to her. She disclosed
that her husband was also there and so both of them are
responsible for the burn injuries.
6) Gorakh (PW 2), father, has given evidence that
when he made inquiry with the deceased in the Civil
Hospital Ahmednagar she disclosed that on that evening
respondent Tukaram returned home and he was under
influence of liquor. He has deposed that the deceased
disclosed that Tukaram picked up quarrel as the deceased
had asked him to request her mother-in-law for serving
the food. He has deposed that during quarrel the
respondent virtually caught hold of the deceased and gave
thereat that he would pour kerosene on her and he would
even take sexual intercourse with her and then he poured
kerosene on her person and set fire to her. Thus,
according to him, the deceased did not disclose that her
husband was present in the house at the time of the
incident. Similar version is given by Gayabai (PW 3),
mother of the deceased. Both of them tried to say that
6 Cr Appeal 65 of 2003
respondent Tukaram had evil eye on the deceased.
7) In the dying declarations recorded by police
and the Executive Magistrate the deceased had not
disclosed that Tukaram had evil eye on her. Her grievance
was that respondent was giving her abuses after taking
liquor. There is evidence of the investigating officer (PW
5) Shankar on one of the dying declarations but the so
called dying declaration recorded by this witness is not
produced on the record. His evidence on the last dying
declaration is similar to the evidence given by PW 2 and
PW 3.
8) In view of the aforesaid inconsistencies in the
evidence given by the prosecution witnesses, the spot
panchanama needs to be seen.
9) The spot panchanama (Exhibit 23) is proved in
the evidence of panch witness Garje (PW 1). His evidence
and the document show that the incident took place in a
room where there were all household articles. In that
room there was kerosene stove which was in use and
there was a match box. The fire had reached to almost
7 Cr Appeal 65 of 2003
everything which was there in the room. There were
pieces of partly burnt saree and they were taken over. By
the side of this room some arrangement was made for
cooking the food. By the side of this place there was place
of one Dnyandeo Wanve. Unfortunately the pieces of the
saree which were taken over by police under panchanama
were not sent to CA office to ascertain as to whether there
was kerosene on the pieces. Bed-head ticket of the
hospital is produced on record which was prepared in the
hospital. The father-in-law had given history that the
clothes had caught fire due to flames of the stove.
10) The evidence of the father of the deceased
shows that present respondent had come with a jeep to
take him to the hospital after the incident. This conduct
of the accused person was not consistent with the guilt.
Further, the evidence on the record shows that both the
accused had sustained burn injuries. The extent of burn of
present respondent was 10% and the extent of burn of the
husband was 2%. The burn injuries were mainly on the
hands and face. It is not disputed that these persons had
shifted the deceased first to Ashti Government Hospital
8 Cr Appeal 65 of 2003
and then to Civil Hospital Ahmednagar. This conduct was
also not consistent with the guilt.
11) No evidence is adduced on motive and there
may be many reasons for Indian lady to commit suicide.
There are inconsistent versions on the disclosures made
by the deceased. Evidence on the record does not make
out case of ill-treatment as defined under section 498-A of
Indian Penal Code. There was charge for offence of
murder and the evidence on the record shows that there
are other probabilities also. Due to all these
circumstances the trial Court has given benefit of doubt
in favour of the respondent. The circumstance that when
in the dying declaration recorded by the Executive
Magistrate the deceased had blamed both the husband
and the father-in-law but the State preferred to file
appeal only against the father-in-law cannot be ignored.
Due to all these circumstances also this Court holds that
the appeal cannot be allowed. In the result, the appeal
stands dismissed.
Sd/- Sd/-
(A.M. DHAVALE, J.) (T.V. NALAWADE, J.)
rsl
