Suman Kisan Tagad vs The State Of Maharashtra
2017 Latest Caselaw 8450 Bom

                                                          Cri. Appeal No. 405/2002
                                                1


                     IN THE HIGH COURT AT BOMBAY
                 APPELLATE SIDE, BENCH AT AURANGABAD

                               CRIMINAL APPEAL NO. 405 OF 2002

Suman w/o. Kisan Tagad,
Age 51 years, Occu. Household
and Agri., R/o. Sillegaon,
Tq. Rahuri, Dist. Ahmednagar.                       ....Appellant.

         Versus


The State of Maharashtra                            ....Respondent.


Mr. Ambar S. Barlota h/f. Mr. S.K. Barlota, Advocate for appellant.
Mr. S.J. Salgare, APP for respondent/State.
                                    CORAM   :
                            T.V. NALAWADE AND
                            ARUN M. DHAVALE, JJ.

DATED : November 6, 2017 JUDGMENT : [PER T.V. NALAWADE, J.]

1) The appeal is filed against judgment and order of

Sessions Case No. 8/2001, which was pending in the Court of learned

First Ad-hoc Additional Sessions Judge, Ahmednagar. The appellant is

convicted for the offence punishable under section 302 of Indian

Penal Code ('IPC' for short) and she is sentenced to suffer

imprisonment for life and to pay fine of Rs.3,000/-. In default of

payment of fine, she is sentenced to further undergo simple

imprisonment for six months. Both the sides are heard.

2) In short, the facts leading to the institution of the appeal

can be stated as follows :-

Cri. Appeal No. 405/2002

Deceased Surekha was daughter of Bhausaheb Ghule,

who is resident of village Lohgaon, Tahsil Newasa. She was given in

marriage to son of present appellant viz. Babasaheb. Babasaheb is

suffering from mental disease and he cannot even properly talk. The

deceased has left behind two issues.

3) The dispute had started between deceased on one hand

and appellant on other after the birth of first issue of Surekha. Due to

the dispute, Surekha had left the matrimonial house for the house of

his parents where she had lived for about two years. About three

years prior to the date of incident, she had returned to the

matrimonial house. After that the second son was born to her.

Deceased was living in joint family with the parents of her husband

and the family of brother of her husband.

4) The incident in question took place on 12.10.2000 at

about 9.30 p.m. in the matrimonial house of deceased. On that night,

there was some quarrel between the husband of the deceased and

father in law. Then there was quarrel between the deceased and the

present appellant, mother in law of the deceased. During quarrel the

appellant set fire to the Sari of deceased by using match stick from

match box. The fire was extinguished and then she was shifted to

Rahuri Hospital. From there, she was shifted to Pravara Hospital,

Cri. Appeal No. 405/2002

Loni. In both the hospitals, her statements came to be recorded as

dying declarations. She died on 30.11.2000 due to burn injuries and

the extent of burn injuries was 86%.

5) On the basis of her dying declaration recorded by police

crime was registered in Rahuri Police Station, District Ahmednagar at

C.R. No. 221/2000. During investigation, panchanama of the spot

where the incident had taken place was prepared. The statements of

relatives of husband came to be recorded and the statements of

relatives of parent's side of deceased also came to be recorded. After

the death of Surekha, chargesheet came to be filed for aforesaid

offence. The articles like pieces of partly burn Sari taken over on the

spot of offence were sent to C.A. Office and kerosene is detected on

these articles.

6) Prosecution examined in all eight witnesses to prove the

offence. Both the dying declarations are proved by the prosecution.

Bhausaheb (PW 5), father of deceased was examined to prove the

oral dying declaration made to him by the deceased in the hospital.

The doctors who gave certificates regarding fitness of Surekha at the

time of recording of dying declarations are also examined. The Trial

Court has based the conviction on dying declarations.

Cri. Appeal No. 405/2002

7) In the evidence of Ramesh Unde (PW 6), Police Head

Constable, who was attached to Rahuri Police Station, the first dying

declaration is proved as Exh. 34. In his evidence the document like

order given to Head Constable Unde to record the dying declaration is

proved as Exh. 33. The dying declaration was recorded in Rahuri

Hospital at 3.30 a.m. of 13.11.2000.

8) The evidence of Bhausaheb (PW 5), father of deceased

shows that intimation about the incident was given to him at about

11.00 p.m. on the day of incident and so, first he went to village

Sillegaon, the place of appellant/accused and then went to Rahuri

Hospital. The statement of Bhausaheb was recorded by police on

13.11.2000 itself and it shows that he and his wife had gone to

Rahuri Hospital to see the deceased where so called oral dying

declaration was made to them by the deceased. From the evidence, it

is not easy to ascertain as to whether Police Head Constable Unde

recorded the dying declaration first or whether the deceased made

the disclosure first to the father of deceased. However, it is certain

that immediately after the incident the relatives of the present

appellants had informed to the father of the deceased about the

incident.

9) In the dying declaration recorded by Unde (PW 6), the

Cri. Appeal No. 405/2002

deceased disclosed as under :-

i) The incident took place at 9.30 p.m. of 12.11.2000

inside of the house.

ii) The mother in law, present appellant set fire to Sari of

deceased by using burning match stick.

iii) After starting fire, the deceased stood in the same

position for some time (she did not make any attempt to

extinguish the fire).

iv) When the extent of fire increased, the deceased

started raising hue and cry to call others to save her.

v) After hearing hue and cry, her neighbours like

Ramkisan Mhase, her relatives Meerabai, Mandabai,

Chandrabhaga and Sunita rushed there and they

extinguished the fire.

vi) Her father in law was present at the time of incident,

but husband was not present.

vii) Her son Vilas was sleeping in other room.

viii) Her brother in law and wife of brother in law were

present in other room where there is the fire place for

cooking food.

10) Vithal Parbhane (PW 1), Executive Magistrate recorded

the dying declaration at about 1.00 a.m. of 13.11.2000. He has

Cri. Appeal No. 405/2002

produced the requisition letter given to him which is at Exh. 19. This

document shows that after receipt of letter this witness had visited

the hospital from Rahuri, but the patient was not there as patient was

already referred to Pravara Hospital Loni. That was done at about

10.30 a.m. of 13.11.2000. Thus, it was not possible for this witness

to record the dying declaration on that night. He recorded the dying

declaration at 1.00 p.m. of 13.11.2000 in Pravara Hospital Loni. The

requisition letter which was given to him by police shows that it was

informed to him that there was history given that when the deceased

was cooking food on kerosene stove, there was explosion of kerosene

stove and due to that she had sustained burn injuries. Her father in

law Kisan Tagad had admitted her in Vivekanand Nursing Home

Rahuri Hospital. Police had received this information at 00.10 hours of

the night between 12th and 13th November 2000 and the letter was

sent after that to Executive Magistrate. It needs to be mentioned here

that the record of bed head ticket is not produced by the prosecution.

11) The dying declaration recorded by Vithal (PW 1) is proved

in his evidence as Exh. 20. In the dying declaration, following things

were disclosed by the deceased.

i) The incident took place at about 9.30 p.m. of

12.11.2000 inside of the house.

ii) Mother in law set fire by using matchstick to Sari of

Cri. Appeal No. 405/2002

deceased.

iii) At the relevant time, in the house the accused

(mother in law), father in law were present.

iv) One son of deceased was sent to her parent's house,

but the other son was sleeping in the house.

v) When fire started, she shouted loudly and then

became unconscious and due to that she does not know as

to who extinguished the fire.

           vi)      On      that   day,   mother   in      law     had      come       from

           Pandharpur.

           vii)     On that day, there was quarrel between her husband

           and father in law.

           viii)    After returning from Pandharpur her mother in law

           picked up quarrel and set fire to her.

           ix)      After the incident her father in law and mother in law

had warned her not to disclose the incident to anybody, but

she was not feeling well and she was disclosing the incident.

12) Bhausaheb (PW 5), father of deceased has given evidence

on the disclosure made to him as follows :-

i) There was quarrel between the deceased and the

present appellant.

ii) During quarrel, mother in law set her on fire by using

Cri. Appeal No. 405/2002

matchstick.

iii) Mother in law used to ask the deceased to leave the

house and she used to give beating to her.

13) In the dying declaration recorded by police and by

Executive Magistrate, no motive was given by the deceased. The

father of deceased has, however, tried to give motive for the crime.

The evidence of the father that after the birth of son, the deceased

had lived in his house for about two years and after that she was sent

back to the matrimonial house shows that the family of the accused

persons had accepted the deceased back in the matrimonial house. It

is the case of prosecution that after resumption of cohabitation,

second son was born to the deceased. When the husband of the

deceased was affected mentally, there was no reason for the family of

the appellant to ask the deceased to leave the matrimonial house.

She was of help to the family and she was taking care of two sons.

Thus, the evidence given by the father of deceased on motive does

not appear to be probable in nature. On the contrary, the evidence

given by father creates probability that due to mental ill health of

husband, the deceased had returned to parent's house, but ultimately

she was required to return to the matrimonial house.

14) In the dying declaration recorded by police which was first

Cri. Appeal No. 405/2002

in time, she disclosed that even after starting of fire, the deceased

did not attempt to extinguish the fire and she raised hue and cry only

when the extent of fire increased. This disclosure cannot be taken

that lightly. In all the three dying declarations mentioned above, the

deceased did not disclose that appellant/accused had poured

kerosene on her person before setting fire to her clothes. Though

C.A. report is not exhibited by the Trial Court, C.A. report is on record

which ought to have been exhibited by the Trial Court. Surprisingly,

the Trial Court has not considered the C.A. report in evidence. The

C.A. report shows that kerosene was detected on the pieces of Sari

recovered from the spot of offence under spot panchanama by police.

The Trial Court has not considered this circumstance in proper

perspective. This circumstance creates serious doubt about the so

called three versions given by the deceased.

15) In the first dying declaration, the deceased had disclosed

that her neighbours and relatives had extinguished the fire, who

include Sunita Devere. Her brother in law and wife of brother in law

were present in the house and no allegations are made against them.

Some other neighbours had also rushed to the spot, but these

neighbours are not examined. In the second dying declaration, it was

disclosed by the deceased that she was warned not to disclose the

incident to anybody by mother in law and father in law. It does not

Cri. Appeal No. 405/2002

look probable that after the incident the neighbours had not made

inquiry with her. Such inquiry must have been made even by doctor

who admitted her in the hospital from Rahuri. Dr. Madhav (PW 8) has

given evidence that the deceased was admitted in the hospital at

about 11.45 p.m. by in laws of deceased. He has given evidence that

in laws have given history about burn injuries that they were

sustained due to outburst of stove. In the examination in chief, he

has again given evidence that the history was not only given by in

laws, but also by the said woman, by the deceased. This evidence of

Dr. Madhav (PW 8) cannot be ignored. This evidence and aforesaid

circumstances like presence of kerosene on the partly burn pieces of

Sari of deceased create two probabilities like the explosion, the

flames of stove causing fire and an attempt of suicide by deceased

due to her quarrel with present appellant. The evidence of father of

deceased is sufficient to infer that there was some dispute between

the appellant and the deceased and due to that dispute, the deceased

had lived with her parents for around two years. Thus, there was the

reason for deceased to implicate the present appellant.

16) The spot panchanama at Exh. 41 shows that it was

prepared on 13.11.2000 between 8.30 a.m. and 9.30 a.m. In the

spot panchanama, it is mentioned that there was a stove in this room

and there were pieces of partly burn Sari. Partly burn pieces of Sari

Cri. Appeal No. 405/2002

and match box were taken over, but the stove was not taken over.

The spot panchanama does not show that kerosene smell was there

in the room or kerosene was found on the floor of the room. There is

no explanation with the prosecution for not sending kerosene stove or

match box to expert when there was the first disclosure of aforesaid

nature. The absence of kerosene on the floor also creates doubt

about the other circumstantial evidence. Somebody must have

extinguished the fire. But, no sign of such incident of extinguishing of

the fire was seen in the house. The spot panchanama does not show

that the fire had reached to other articles. The deceased was wearing

nylon Sari and kerosene was detected on Sari. These circumstances

need to be kept in mind. In the first disclosure, she disclosed that she

did not even make an attempt to extinguish the fire and only after

some time when the extent of fire increased, she shouted. This

creates probability that she had made an attempt to set fire to herself

to create fear in the mind of her in laws, but due to circumstance that

she was wearing nylon Sari, the things went out of control. In

ordinary course, she would have resisted if appellant wanted to set

fire to her and if that was done after pouring the kerosene on the

person of deceased. Thus, the version given in the dying declaration

appears to be improbable in nature. No injury was found on the

person of appellant showing that she was there when the fire started.

There was no damage caused to any other articles from the room. No

Cri. Appeal No. 405/2002

article like container of kerosene was taken over even when there

was kerosene stove present in the room where partly burn pieces of

Sari were found. These circumstances show that investigation was

not made fairly.

17) Prosecution did not examine any independent witness.

The neighbours could have given evidence on the immediate

disclosure which the deceased must have made to them as they had

rushed there to extinguish the fire. This circumstance also cannot be

ignored.

18) There is evidence of doctors who gave certificates on

fitness of deceased when her dying declarations were recorded.

There is no need of discussion of that evidence. There is clear

probability that father reached the hospital immediately and only

after that her first dying declaration was recorded by police in Rahuri

Hospital. Admittedly, the family of the accused spent on the

treatment which was for more than 15 days. The conduct of the

accused was not consistent with the guilt, but it was consistent with

innocence. It can be said that the deceased had dispute only with the

appellant, mother in law and probably due to the dispute, the incident

took place and the deceased implicated the appellant. As there are

other possibilities, this Court holds that it is not safe to convict the

Cri. Appeal No. 405/2002

appellant on the basis of aforesaid dying declarations. The Trial Court

has not touched the C.A. report in respect of pieces of Sari and the

other probabilities are not considered by the Trial Court. Aforesaid

circumstances are not touched by the Trial Court. This Court holds

that the judgment and order of the Trial Court cannot sustain in law.

The appellant is entitled to benefit of doubt.

19) In the result, the appeal is allowed. The judgment and

order of the Trial Court convicting the appellant/accused for offence

punishable under section 302 of IPC is hereby set aside.

Appellant/accused stands acquitted of the offence punishable under

section 302 of IPC. The fine amount deposited, if any, is to be

returned to the appellant. The bail bonds of the appellant stand

cancelled.

       [ARUN M. DHAVALE, J.]                  [T.V. NALAWADE, J.]



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