State Of Maharashtra vs Nagraj @ Nandu Bandu Patil And Ors
2017 Latest Caselaw 8502 Bom

                                                      Cri. Appeal No. 176/2003
                                        1


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

                           CRIMINAL APPEAL NO. 176 OF 2003

       The State of Maharashtra,
       Through Police Station,
       Nardana, Dist. Dhule.                     ....Appellant.

               Versus


1.     Nagraj alias Nandu Bandu Patil (Bhamre),
       Age 31 years, Occu. Service,

2.     Smt. Parvatabai w/o. Bandu Patil (Bhamre),
       Age 65 years, Occu. Household,

       Both resident of village Sarve,
       Tahsil Sindkheda, Dist. Dhule.

3.     Mrs. Sunanda w/o. Girdhar Patil
       (Bhamre), Age 40 years,
       Occu. Household,

4.     Girdhar Bandu Patil (Bhamre),
       Age 48 years, Occu. Service,

       Both resident of 28, Room No. 7,
       Mangesh Apartment, Dutta Colony,
       Deopur, Dhule.                                   ....Respondents.


Mr. V.S. Badakh, APP for appellant/State.


                                CORAM   :     T.V. NALAWADE AND
                                              ARUN M. DHAVALE, JJ.

                                DATED       : November 7, 2017


JUDGMENT : [PER T.V. NALAWADE, J.]

1)             The appeal is filed against judgment and order of

Sessions Case No. 45/2002, which was pending before the learned

Cri. Appeal No. 176/2003

IInd Additional Sessions Judge, Dhule. The Trial Court has acquitted

the present respondents of the offences punishable under sections

304-B, 306, 498-A and 34 of Indian Penal Code ('IPC' for short).

Both the sides are heard.

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

present proceeding can be stated as follows :-

Deceased Jayshri was daughter of Ratilal Patil, who is

resident of Sindkheda. She was given in marriage to accused No. 1

Nagraj on 17.12.1997 and after the marriage the deceased started

cohabiting with accused No. 1 in village Sarve, Tahsil Sindkheda.

Accused No. 2 Parvatibai is mother of accused No. 1, accused No. 4

is brother of accused No. 1 and accused No. 3 is wife of accused No.

4.

3) The incident in question took place on 16.12.2002 at

about 10.00 a.m. in the matrimonial house. The deceased set fire to

herself after pouring kerosene on her own person. After starting of

fire, the neighbourers gathered, but it is the husband who shifted

her to Government Hospital Dhule for the treatment. Her statement

was first recorded by police and then by Executive Magistrate. In the

statements, she blamed husband, mother in law, brother in law and

wife of brother in law by disclosing that there was illtreatment to her

Cri. Appeal No. 176/2003

and on that day, her husband and her mother in law had quarreled

with her and due to that, she had set fire to herself. On the basis of

dying declaration recorded by Executive Magistrate, the crime was

registered first in Dhule City Police Station at zero number. The

dying declaration was sent to Nardana Police Station where the

crime came to be registered at C.R. No. 72/2001 for the offences

punishable under sections 498-A, 324, 504, 34 etc. of IPC. She died

at about 7.00 a.m. on 17.12.2001 in Government Hospital.

4) The post mortem was conducted on the dead body. The

death took place due to burn injuries. The spot panchanama was

prepared and the statements of witnesses who include the father

and other relatives on the side of father came to be recorded.

Chargesheet was filed against all the respondents. Charge was

framed for aforesaid offences and all the accused pleaded not guilty.

Prosecution examined in all seven witnesses to prove the offences.

The accused took the defence of total denial. The Trial Court has not

believed the disclosures made by the deceased and has held that

there is discrepancy in the disclosures made by the deceased and

the evidence given by her father. The Trial Court has held that the

possibility that the deceased was not fit to give statement is there

and benefit of doubt is given to the respondents.

Cri. Appeal No. 176/2003

5) It is not disputed that the incident took place in the

house where the deceased was cohabiting with her husband. The

spot of incident was shown by accused No. 1 and the spot

panchanama at Exh. 23 is not seriously disputed by the defence.

Can containing kerosene and two partly burnt matchsticks were lying

on the spot. The pieces of partly burnt clothes of deceased were

lying in the kitchen where the incident had taken place. The spot

panchanama shows that the fire had started inside of the kitchen,

but the deceased was taken outside of the kitchen. There was smell

of kerosene inside of the kitchen and outside of the kitchen, the

platform situated outside of the kitchen.

6) Even if other things are ignored regarding fitness of

deceased to give statements, bare reading of the two dying

declarations which are at Exhs. 31 and 37 shows that there are

inconsistencies on many points in the two dying declarations.

Ramesh Fulpagare (PW 6) recorded the first dying declaration after

receiving information from the hospital. He was directed by P.S.O. to

go to the hospital and that direction is produced at Exh. 36. In his

evidence, the statement of deceased is proved as Exh. 37. He has

deposed that before recording statement, he had requested the

doctor to remain in his company and doctor had come with him to

the place where the deceased was kept. He has given evidence that

Cri. Appeal No. 176/2003

after obtaining permission of doctor that the deceased was fit to give

statement, he recorded the dying declaration. On Exh. 37, there is

no such endorsement of doctor and no doctor is examined to prove

that his opinion, certificate was obtained by Fulpagare (PW 6) for

recording dying declaration. Exh. 37 does not bear the time of

recording of dying declaration. In Exh. 37, the deceased had

disclosed that on that day at about 10.30 a.m. there was quarrel

which was picked up by her husband and mother in law with her.

She disclosed that there was illtreatment to her as she had not

conceived even after four years of the marriage. She disclosed that

as she became angry due to the quarrel, she poured kerosene on

her person and set fire to herself. She disclosed that after starting of

fire, the husband and mother in law ran out and the neighbourers

extinguished the fire. However, she disclosed that her husband

admitted her in Civil Hospital Dhule for the treatment. In the

disclosure, even when there was no allegation made with regard to

the incident and with regard to the illtreatment against accused Nos.

3 and 4, she mentioned their names as the persons against whom

she had complaint. She disclosed that all the accused were living in

joint family.

7) The second dying declaration is proved in the evidence of

Sardar (PW 4), Executive Magistrate. The requisition letter at Exh.

Cri. Appeal No. 176/2003

29 was given to him by police and it was received at 1.40 p.m. He

has deposed that he took doctor with him in the ward where Jayshri

was admitted. He has deposed that doctor found that patient was

conscious and in fit condition to give statement and he gave such

certificate on the statement. He has deposed that he also verified

that Jayshri was in fit condition to give the statement. In his

evidence the statement recorded by him is proved as Exh. 31. The

time of recording statement is shown as 2.05 p.m.

8) The contents of Exh. 31 show that the deceased

disclosed that accused Nos. 3 and 4 were giving instigation to her

husband to give illtreatment to her and due to that, the husband

was not discharging his marital obligations. She disclosed that she

had not conceived even after five years of the marriage. She

disclosed that on the day of incident in the morning time the

husband and mother in law picked up quarrel with her and beating

was given to her. She disclosed that due to this quarrel, she became

frustrated and then she poured kerosene on her own person and set

fire to her at about 10.00 a.m. She disclosed that her mother in law,

husband ran away when fire started and the neighbourers had

gathered there when she started shouting. She disclosed that her

husband admitted her in the hospital.

Cri. Appeal No. 176/2003

9) The common thing in the two dying declaration appears

to be circumstance that she had not conceived even after many

years of the marriage. In the first dying declaration, she had not

disclosed that the husband was not discharging marital obligations,

but in the second dying declaration she made such allegation against

the husband. In the first dying declaration, she had not made

specific allegation against accused Nos. 3 and 4, but in the second

dying declaration, she made specific allegations against accused

Nos. 3 and 4.

10) The record shows that the husband admitted her in the

hospital at 12.15 p.m. of 16.12.2001 and at that time, she was

unconscious. Exh. 29 is the correspondence made by police with

Executive Magistrate for recording dying declaration in which there is

specific mention that deceased was unconscious. The bed head

ticket at Exh. 23 shows that vague disclosure was made that due to

harassment of the husband, she had set fire to herself. Thus, in

three documents which contain dying declarations, the versions were

different. The bed head ticket does not show that she was

unconscious when she was admitted and on the contrary, it shows

that she was conscious when she was admitted. In the first

disclosure, which can be seen in bed head ticket, she blamed only to

husband, but in subsequent disclosures she added other persons as

Cri. Appeal No. 176/2003

accused. She died within 24 hours of her admission in the hospital

and these circumstances need to be kept in mind for giving finding

on her mental condition. The Trial Court has given finding that she

was not probably fit.

11) Ratilal (PW 1), father of the deceased has given different

version on motive. He has deposed that at the time of marriage, the

husband had demanded two wheeler from him and he had agreed to

give two wheeler. He has deposed that as he could not meet the

demand, illtreatment was given to the deceased by husband of the

deceased. His evidence shows that the disclosures were made by the

deceased mainly against husband that he used to abuse her and he

used to give beating to her. He has given evidence that after

learning about the incident, he visited the hospital and made inquiry

with the deceased. He has deposed that she disclosed that on that

day, her husband and mother in law picked up quarrel with her, they

had assaulted her and due to that she had set fire to herself. His

evidence shows that accused Nos. 3 and 4 were living at different

place, Dhule as accused No. 4 was in service there. Thus, there was

no reason for deceased to implicate accused Nos. 3 and 4, but in

both the dying declarations recorded by police and Executive

Magistrate, she blamed them also for the incident.

Cri. Appeal No. 176/2003

12) If the evidence of father of deceased and other relatives

like Motilal Patil (PW 3), brother of Ratilal (PW 1) is compared with

each other, it can be said that Motilal has given different version

than Ratilal and he has given evidence that the deceased used to

disclose about the illtreatment and she used to make complaint

against all the four accused. He has, however, deposed that the

husband had demanded motorcycle from the parents of the

deceased and on that count, illtreatment was given. He has given

evidence on oral dying declaration also by deposing that in the

hospital the deceased disclosed that on the day of incident there was

quarrel between the husband and the deceased and after the

quarrel, she had set fire to herself.

13) When there is dying declaration, in case like present one,

the motive plays important role. It is admitted that she could not

conceive even after four years of the marriage. It is also admitted

that it is the husband who had admitted her in the hospital when she

sustained burn injuries. Though the deceased disclosed that her

neighbours extinguished fire in one dying declaration, no such

neighbour is examined by the prosecution. It is clear that it is the

husband who extinguished the fire and who shifted the deceased to

the hospital. There is possibility that the deceased set fire to herself

to commit suicide, but the reason given by her is not true. For

Cri. Appeal No. 176/2003

convicting the accused under section 306 or 304-B of of IPC, it was

necessary for prosecution to prove that there was 'illtreatment' as

defined in section 498-A of IPC or there was demand of 'dowry' as

defined under Dowry Prohibition Act and on that count, there was

illtreatment to the deceased. The contents of the dying declarations

and the versions given by the two close relatives of deceased on

parent side show that there was probably no demand of dowry or

any gift article. Thus, there was no question of convicting any

accused for offence punishable under section 304-B of IPC.

Allegations of cruel treatment are very vague. The allegations which

can be found in dying declaration show that there was probably

some dispute as the deceased had not conceived even after four

years of the marriage. There is also probability that she was not

happy with the life as she did not conceive. In view of these

circumstances, this Court holds that the prosecution has not proved

the offence punishable under section 498-A of IPC. Due to these

circumstances, it is not possible to draw presumption under section

113-A or 113-B of Evidence Act.

14) The circumstance that the deceased probably tried to

falsely implicate accused Nos. 3 and 4 creates probability that she

wanted to implicate others as she was not happy in the life as she

had not conceived. In one dying dying declaration, she disclosed that

Cri. Appeal No. 176/2003

out of anger she set fire to herself. Due to all these circumstances,

this Court holds that the prosecution has failed to prove any offence

for which charge was framed against the accused. This Court holds

that the Trial Court has not committed any error in acquitting all the

accused. In the result, the appeal stands dismissed.

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




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