Shivdas @ Balya S/O Suryabhan ... vs State Of Maharashtra, Through Pso ...
2017 Latest Caselaw 8441 Bom

                                                 1               apeal475.15.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR

                        CRIMINAL APPEAL NO. 475 OF 2015


            Shivdas @ Balya s/o Suryabhan Giradkar,
            aged 27 years, Occ. Milk Vendor,
            R/o. Gangapur Zopadpatti, Umrer,
            Distt. Nagpur                           ...... APPELLANT

                                    ...VERSUS...

            The State of Maharashtra, through
            P.S.O.  Police Station Officer 
            Umrer Police Station, 
            District - Nagpur               ............                    RESPONDENT

 -------------------------------------------------------------------------------------------
 Shri C.H.Jaltare, Advocate for appellant
 Shri N.S.Rao, A.P.P. for Respondent State
 -------------------------------------------------------------------------------------------
           CORAM: R. K. DESHPANDE, AND
                       M.G.GIRATKAR, JJ.

st RESERVED ON : 1 NOVEMBER, 2017 .

                                         th
           PRONOUNCED ON :  6    NOVEMBER, 2017 .

 JUDGMENT  (Per R.K.Deshpande, J).



            1]                 This  appeal  is preferred  against  the  judgment

and order dated 07.12.2015 passed by the learned Additional

Sessions Judge-1, Nagpur, in Sessions Trial No. 252 of

2013, convicting the appellant-accused for the offence

punishable under Section 302 of Indian Penal Code and

sentencing him to suffer rigorous imprisonment for life and to

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pay fine of Rs.5,000/-, in default of which he is to further

suffer rigorous imprisonment for a period of six months.

2] The accused was charged that, on 31.03.2013

at about 3 p.m. in the agricultural field of one Shri Zade,

situated behind Mulak Engineering College, Umrer, District,

Nagpur, he committed murder intentionally by pouring

kerosene on the person of the deceased Smt. Chhayabai

Ishwar Dahare and set her on fire and caused her death and

thereby committed an offence punishable under Section 302

of Indian Penal Code.

3] The story of the prosecution is as under :-

The deceased Smt. Chhayabai Ishwar Dahare

was residing with her husband in their own house situated at

Kawarapeth, Umrer. They had three children in the age

group of 7 to 15 years. The husband died in the year 2008.

The accused was giving milk to the neighbourers of the

deceased and started developing intimacy with the

deceased. The accused used to visit the house of the

deceased and they developed illicit physical relations.

During the life time of the husband of the deceased, a loan

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was obtained from Shikshak Sahakari Bank, Umrer and in

order to repay the said loan, the deceased sold the house in

the year 2011 for total consideration of Rs.4,60,000/- and

repaid the loan amount. The accused demanded hand loan

of Rs.35,000/- from the deceased for transfer of agricultural

land in his name and accordingly, the deceased paid the said

amount to the accused. In spite of repeated demands, the

accused failed to repay the said amount.

4] The case of the prosecution is that, on

31.03.2013 at about 11.30 a.m., the deceased made mobile

call to the accused to demand an amount of Rs.35,000/-. At

that time the accused was grazing cattle in the field of one

Zade, situated on the back side of Mulak Engineering

College. The accused, therefore, called her at that place.

The deceased went to that place and demanded the amount

from the accused. The quarrel took place between them.

The accused then poured kerosene on the person of the

deceased and ignited match stick and set her on fire. The

accused ran away. The deceased herself extinguished the

fire and came on main road from where some persons took

her in auto-rickshaw in the Police Station. The deceased

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was sent to Rural Hospital, Umrer, where four dying

declarations at Exh. 40, 64, 111 and 126-A were recorded.

Though initially offence punishable under section 307 of

I.P.C. was registered vide first information report at Exh. 68,

upon the death of the deceased on 01.04.2013 at about

12.30 p.m., the offence punishable under Section 302 of

I.P.C. was registered against the accused and the accused

was arrested.

5] The prosecution examined 17 witnesses and

relying upon the oral evidence of PW-2 Akash Sukhdeo

Meshram, PW-3 Ashik Natthuji Ganvir and PW-13

Chandrashekhar Anandrao Dhomne, who were the labourers

engaged in the construction work near the spot of incidence,

the Sessions Court holds that their evidence corroborates

with four dying declarations at Exh.40, 64, 111 and 126A

recorded by different persons on the same day i.e.

31.03.2013. The Sessions Court holds that all the four dying

declarations are consistent in respect of material facts and

particulars. In all the dying declarations, there is a reference

of giving a loan of Rs.35,000/- to the accused by the

deceased and the repeated demands by the deceased for

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refund of this amount constituted the motive. The Sessions

Court holds that all the dying declarations were recorded on

the same day and there is no reason to disbelieve the same.

The Sessions Court also relies upon the oral evidence of

PW-2 Akash, PW-3 Ashik and PW-13 Chandrashekhar.

6] With the assistance of the learned counsels

appearing for the parties, we have gone through the oral

evidence of all the three witnesses relied upon by the

Sessions Court. It is neither the finding of the Sessions

Court, nor do we find anything in the deposition of these

witnesses to have actually seen the accused pouring

kerosene on the person of the deceased and igniting a match

stick to set her on fire on the spot of incidence. None of

these three witnesses can be said to be an eye witness. No

doubt, all of them have spoken about the quarrel going on

between the accused and the deceased at the place of

incidence and to that extent we do not find anything to

disbelieve their version. However, even if the oral evidence

of all the three witnesses is accepted as it is, no finding of

conviction of the accused for the offence under Section 302

fo I.P.C. can be recorded. In our view, it will not be wrong to

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say that in fact the accused can take benefit of the oral

evidence of these witnesses to some extent.

7] Now, coming to all the four dying declarations

relied upon by the Sessions Court to record the finding of

conviction, we would like to reproduce the contents of such

dying declarations in substance as deposed by the persons

who recorded such dying declarations, which we find to be in

conformity with the contents of such dying declarations.

(a) PW-5 Anandprakash Dixit has spoken about

the dying declaration at Exh.40 recorded by him. The

relevant portion of his evidence is reproduced below;

"....The statement of Chhayabai is at Exh.40. Chhayabai has stated in her statement that she was having love relationship with accused. Chhayabai has also stated that she has given Rs.35,000/- to accused for transferring in her name. Chhayabai was demanded back her amount from the accused, but accused was avoiding to repay the amount. Chhayabai has stated that on 31/3/2013, she has made a phone call to accused. She has made a phone call at about 11.30 a.m. Chhayabai has inquired from accused as to where he is and when he is going to refund of amount. Accused told Chhayabai on phone that he is grazing cattle in the back side of Engineering College at the field of one Zade. Then, Chhayabai went to above place for collecting woods. Chhayabai has stated that after meeting with accused, she has again demanded back amount from him. Chhayabai told that there was hot exchange of words between her and accused. Chhayabai told that accused told her that he is not having money and asked her to go out and threatened that if she does not go out, then he would put her on fire with the help of kerosene. Chhayabai told that when she was demanding money from accused at that time, accused poured kerosene on

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her body from a bottle and then ignited her. Chhayabai told that after she was burnt down, she herself extinguished the fire and them came on the road......."

(b) PW-8 Rafique Sheikh, Assistant Police Sub

Inspector recorded the dying declaration at Exh.64 and

the relevant portion from his deposition is reproduced

below;

".... Chhayabai told that on 31/3/2013 at about 11.30 a.m., she has made a phone call to accused on his mobile and told him that she is required to pay money towards fees of her daughter in school and asked him to pay money today. Chhayabai told that, accused has threatened her on telephone that, if she visited for taking money then he would assault her and then burnt her down. Chhayabai told that, then she went in the back side of Mulak College for demanding money. Chhayabai told that, she has found the accused grazing the cattle at that place and hence, she went near accused. Chhayabai told that accused has picked up quarrel with her and abused her in filthy language. Chhayabai told that then accused told her that he will burnt her alive and then accused poured kerosene on her body and burnt her down by igniting a match stick. Chhayabai told that after she was burnt down, she came rushing at Nagpur-Umrer road after boarding an auto, she came to police station and from there police sent her to Govt. Hospital. Chhayabai told that, after taking medical treatment at Umrer, her medical treatment is presently going on at Medical College Hospital, Nagpur..."

(c) PW-14 Sau. Madhuri Satone, working as

Assistant Superintendent, Home Department, Collector

Office, Nagpur, came to record dying declaration, has

deposed about Exh.111 as under;

".... I asked her as to how she sustained burns. She replied that, one Shepard Shivdas Giradkar, poured

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kerosene on her person within the campus of Mulak College and set her on fire. I asked her as to what time the incident took place. She replied that it took place at 3.00 p.m. on the same day. I asked her as to why this incident took place. She replied that, about 2 years back, Shri Giradkar had taken Rs.35,000/- from her and in spite of repeated demand, he did not return. She also stated before me that, today she made a phone call to him and he called her in the college premises at 3.30 p.m. and he will repay the amount. I now say that, he did not call me by giving specific time. She further stated before me that, she demanded her amount with him, but instead of giving amount, he poured kerosene on her person and set her on fire by igniting match stick. She also stated before me that, at that place some labourers and students were there and they came while running. She stated that, she then rolled on the ground....."

(d) PW-16 Baban Gopalrao Palaspagar, Head

Constable attached to the Medical College Hospital

Booth, Nagpur, recorded the dying declaration at Exh.

126-A and has stated in his deposition as under;

"......She further stated that on 31/03/2013 at about 11.30 a.m., she made a phone call from her mobile to the mobile of the accused and requested him to repay the amount as she had to deposit the school fees of her daughter, but he threatened her on her mobile that, in case she will come to demand the amount, he will assault her and by pouring kerosene on her person will set her on fire. She further stated before me that, when she went behind K.D.K.College and at that time, the accused was grazing the cattle and on seeing her, he got annoyed and came on her person to assault and beat her. She further stated that, she managed to escape from his clutches and that time, the accused went and brought the kerosene, poured the same on her person and set her on fire. She further stated that, when she shouted, the employees and the students of the college did not come to rescue her. She stated that anyhow she came on the road and by auto, she rushed to police station....."

8] A woven common thread flowing through all the

above dying declarations consists of the following facts :

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                    (a)        It was the deceased who called the accused on

mobile phone and went to him to demand refund of an

amount of Rs.35,000/-.

(b) The accused was grazing the cattle in the field

on the backside of Mulak Engineering College when

the deceased called him on mobile phone and

thereafter personally met him.

(c) There was exchange of words between the

accused and the deceased on the spot of incident and

a quarrel was picked up.

(d) The deceased herself extinguished the fire set

on her.

9] Perusal of the contents of all the four dying

declarations indicate the progressive and improved version of

the deceased. In the dying declaration at Exhibit 64, she

states that, "Chhayabai told that on 13-3-2013 at about 11.30

a.m. she has made a phone call to the accused on his mobile

and told him that she is required to pay money towards fees of

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her daughter in the School and asked him to pay money

today. Chhayabai told that, accused has threatened her on

telephone that, if she visited for taking money, then he would

assault her and then burn her down".

The underlying portion in Exhibit 64 is missing

from the first dying declaration at Exhibit 40.

10] In the third dying declaration at Exhibit 111, PW

14 Sau. Madhuri states that the deceased also stated before

her that, "today she made a phone call to him and he called

her in the College premises at 3.30 p.m. and he will repay the

amount".

The underlying portion is missing from both the

earlier dying declarations.

11] In the fourth dying declaration at Exhibit 126-A,

PW-16 Baban states as under :

"... She further stated that on 31-3-2013 at about 11.30 a.m., she made a phone call from her mobile to the mobile of the accused and requested him to repay he amount as she had to deposit the school fees of her daughter, but he threatened her on her mobile that, in

11 apeal475.15.odt

case she will come to demand the amount, he will assault her and by pouring kerosene on her person will set her on fire."

PW 16 further states in his deposition as under :

"... She further states that, she managed to escape from his clutches and that time, the accused went and brought the kerosene, poured the same on her person and set her on fire."

The underlying portion above is missing from the earlier dying

declarations.

12] PW 2 Akash describes the quarrel between the

accused and the deceased as "household dispute" and claims

to have witnessed the burning of the deceased and her crying

saying "wachwa wachwa, pani dya". The witness fails to

identify the accused in the Court, and in the cross-

examination, he states that after the quarrel, the lady and the

man were sitting by the side of compound and then the person

went back. This witness is not declared hostile.

13] PW 3 Ashik reiterates the above version of PW

2 and states that the person, who was quarreling with the lady,

went away and then the lady was burnt. The witness was

declared hostile, and in the cross-examination by the accused,

he states that "It is true that the man went away and 5 to 10

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minutes thereafter we say the lady burning."

14] PW 13 Chandrashekhar states that he heard

the noise of quarrel and there was also scuffle between one

lady and a person. After the lady was burning, he saw that the

person was going and he was at a long distance. In the cross-

examination, he states that the distance between him and the

spot was 200 to 300 ft. and he saw it from the fourth floor. He

further states that the said person was leaving that place and

a lady was dragging him, but the person managed to rescue

himself and ran away at a long distance. He says that it is

after about five minutes, he heard the shouts "wachwa

wachwa". The witness is not declared as hostile.

15] The accused in his statement under Section

313 of Cr.P.C. has admitted that only once he had illicit

physical relationship with the deceased. The deceased

insisted for marriage and, therefore, the accused started

avoiding her and subsequently also rejected the proposal

for marriage. It is his stand that the deceased started giving

him threats and she was well aware that on 16-4-2013,

the marriage of the accused was fixed with one Vaishali.

13 apeal475.15.odt

It is his stand that on 31-3-2013 between 12 and 12.30 in

the noon, the deceased approached him while he was grazing

the cattle in the field. The deceased came and started

pressurizing him for cancellation of marriage with Vaishali

and to marry with her. The deceased showed a bottle

containing kerosene and threatened to commit suicide

and falsely implicate the accused. It is his stand that "upon

looking her ferocious appearance, I was frightened and

ran away from the spot and from the long distance, I saw that

the deceased set herself on fire and I had no courage to

go to her and extinguish the fire." It is his stand that the

deceased has falsely implicated him in the offence.

16] What we find from the aforesaid evidence on

record can be summed up as under :

None of the witnesses relied upon by the

Sessions Court to record the findings of conviction have

spoken against the accused in any manner. On the contrary,

the evidence of all these witnesses can be read in support of

the defence of the accused, which we find consistent and

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probable. In none of the dying declarations, the deceased

had stated that she tried to save herself from pouring of

kerosene and setting her ablaze by the accused. There is no

evidence of such resistance. The deceased would have

made a ferocious attempt to prevent the accused from

pouring kerosene and setting her ablaze. Instead of going to

the hospital, she went to the police station with an anxiety to

book the accused in the crime. Such conduct of the

deceased is contrary to the normal behaviour of a person in

such a situation. The dying declarations in succession display

progressive version of the deceased. The improbabilities in

the dying declarations are glaring. We find that the

statements in the dying declarations are not truthful and fail to

inspire confidence. We find that there is an effort by the

deceased to implicate the accused in a false case. It is,

therefore, not safe to base conviction of the accused on these

dying declarations.

17] Though a small bottle was seized from the

spot of incident containing some kerosene, the Sessions

Court has disbelieved the theory of fingerprints of the accused

on the said bottle. The Sessions Court has held that

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specimen of fingerprints of the accused were not taken in

presence of witnesses and therefore, it has kept such

evidence out of consideration. There is absolutely nothing to

connect the accused with such a crime.

18] In the result, this appeal is allowed. The

judgment and order dated 07.12.2015 passed by the learned

Additional Sessions Judge-1, Nagpur, in Sessions Trial No.

252 of 2013, convicting the appellant-accused for the offence

punishable under Section 302 of I.P.C., is quashed and set

aside. The accused is acquitted of such offence. The fine

amount, if any, paid be refunded to him. The appellant-

accused be released forthwith if not required in any other

offence.

Record & proceeding be sent back.

                                JUDGE                              JUDGE


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