Bombay High Court
Shoba W/O Deorao More vs The State Of Maharashtra Thr Pso ... on 17 November, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.168 OF 2011
with
CRIMINAL APPEAL NO.1 OF 2011
1) CRIMINAL APPEAL NO.168 OF 2011 :
State of Maharashtra,
Through Police Station Officer,
Police Station, Pophali,
Tq.Umarkhed, Distt. Yavatmal. .......... APPELLANT
// VERSUS //
1. Sheshrao s/o. Deorao More,
Aged about 29 years,
2. Shobha Deorao More,
Aged about 49 years.
Both r/o. Harshi, Tq. Pusad,
Distt. Yavatmal. .......... RESPONDENTS
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____________________________________________________________
Mr.V.P.Gangane, A.P.P. for the Appellant.
Mr.None for the Respondents.
____________________________________________________________
2) CRIMINAL APPEAL NO.1 OF 2011 :
Shobha w/o. Deorao More,
Aged about 49 years, Occ. Agrilst.,
r/o. Harshi, Tq.Pusad, Distt.
Yavatmal. .......... APPELLANT
// VERSUS //
The State of Maharashtra,
Through P.S.O., Pophali,
Tq.Umarkhed, Distt. Yavatmal. .......... RESPONDENT
____________________________________________________________
Mr.R.M.Daga, Advocate for the Appellant.
Mr.V.P.Gangane, A.P.P. for the Respondent.
____________________________________________________________
************
Date of reserving the Judgment : 6.11.2017.
Date of pronouncement of the Judgment : 17.11.2017.
************
CORAM : R.K.DESHPANDE
AND
M.G.GIRATKAR, JJ.
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ORAL JUDGMENT (Per M.G.Giratkar, J) :
1. Criminal Appeal No.168 of 2011 is filed by the State to
quash and set aside the Judgment dt.8.12.2010 passed by the Adhoc
Additional Sessions Judge, Pusad in Sessions Trial No.59 of 2007
acquitting both the respondents/accused for the offences punishable
under Sections 302, 304-B r/w. 34 of the Indian Penal Code and
prayed to convict them for the said offences. Criminal Appeal No. 1
of 2011 is filed by appellant Shobha Deorao More challenging the
said Judgment dt.8.12.2010 convicting her u/s.498-A r/w.34 of the
Indian Penal Code and sentencing her to suffer rigorous
imprisonment for two years and to pay a fine of Rs.5,000/-, in
default to suffer simple imprisonment for one month.
2. Both the accused herein (hereinafter referred to as "the
accused") were prosecuted for committing murder of wife of accused
no.1 namely Geeta More and dowry death. They are also tried for
causing cruelty to the deceased. Learned trial Court, after recording
the evidence, acquitted the accused of the offences punishable under
Sections 302 and 304-B of the Indian Penal Code and convicted the
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accused for the offence punishable under Section 498-A of the Indian
Penal Code.
3. Heard Mr.V.P.Gangane, learned A.P.P. for the State. He
has submitted that the evidence adduced by the prosecution is
sufficient to convict the accused for the offences punishable under
Sections 302 and 304-B of the Indian Penal Code. Hence, appeal be
allowed and they be convicted for the said offences.
4. Heard Mr.R.M.Daga, learned Counsel for Appellant
Shobha. He has submitted that the trial Court has not relied on the
Dying declarations of deceased (Exh.Nos. 45 and 52) and therefore,
acquitted the accused for the offence punishable under Sections 302
and 304-B of the Indian Penal Code. Learned Counsel has submitted
that the trial Court has wrongly taken into consideration some part
of dying declaration (Exh.52) coupled with the oral evidence and
wrongly convicted the appellant Shobha for the offence punishable
under Section 498-A of the Indian Penal Code.
5. The evidence on record shows that the deceased was
married with accused no.1 on 30.6.2005. Geeta died due to burn
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injuries on 17.6.2007. She was immediately taken to Government
hospital at Pusad and thereafter, to Nanded. Her first dying
declaration (Exh.45) was recorded by the Executive Magistrate. In
her first dying declaration (Exh.52), she has stated that her
husband/accused no.1 was only present in the house. She insisted
for going to her parent's house and accused no.1 was not allowing
her to go and therefore, he burnt her.
6. In the second dying declaration (Exh.45) recorded by
Head Constable Ashok, she has stated that, on 12.7.2006, at about
3.00 p.m., her husband, mother-in-law and brother-in-law were
present. Her mother-in-law and brother-in-law caught hold her
hands and legs. Her mouth was shut. Her husband poured kerosene
on her person and set her on fire.
7. The oral evidence was adduced by parents of deceased
and her relatives making allegation that the accused persons were
demanding money and therefore, they killed the deceased.
8. Learned trial Court has not relied on Exh. Nos. 52 and 45
being contradictory evidence. Therefore, the accused came to be
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acquitted for the offences punishable under Sections 302 and 304-B
of the Indian Penal Code.
9. Learned trial Court has wrongly relied on some part of
Exh.52 holding that the accused were demanding Rs.50,000/- and
therefore, they were not allowing the deceased to go to her parent's
house. It is pertinent to note that the learned trial Court has also
recorded its findings that the deceased was not allowed to go to her
parents' and therefore, in a fit of anger, she might have committed
suicide.
10. Learned trial Court has not relied on the dying
declarations (Exh. Nos. 45 and 52). At the same time, the learned
trial Court wrongly relied on some part of the dying declaration
(Exh.52). The approach of learned trial Court relying partly on the
dying declaration which was not relied for the grave offence is
nothing but wrong. When both the dying declarations of deceased
are discarded by the trial Court, then it is clear that there is no
evidence of deceased in respect of demand of dowry etc.
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11. There are general allegations made by her parents about
demand of Rs.50,000/- etc. It is pertinent to note that her marriage
took place on 30.6.2005 and the incident took place on 17.6.2007.
Nothing is brought on record to show that there was a demand of
dowry at the time of marriage. Therefore, learned trial Court has
wrongly convicted appellant Shobha for the offence punishable
under Section 498-A of the Indian Penal Code.
12. In respect of appeal by State, it is clear from the evidence
adduced by the prosecution that dying declarations (Exh. Nos.45 and
52) are not reliable because both the dying declarations are
contradictory. In the first dying declarations, the deceased has only
stated name of her husband. But, in her second dying declaration,
she has implicated other accused also. The learned trial Court has
rightly recorded its findings in respect of offences punishable under
Sections 302 and 304-B of the Indian Penal Code.
13. Deceased has not stated name of her mother-in-law
Shobha (appellant) in her first Dying declaration. She is wrongly
convicted by trial Court for the offence u/s.498-A of the Indian Penal
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Code. Hence, she is entitled for acquittal. Hence, we pass the
following order :
//ORDER//
Criminal Appeal No.168 of 2011 filed by the State is
dismissed.
Criminal Appeal No.1 of 2011 filed by the appellant
Shobha Deorao More is hereby allowed. The appellant is
acquitted of the offence punishable under Section 498-A
r/w. 34 of the Indian Penal Code.
Fine amount paid by the appellant, be refunded to
her.
Her Bail bonds shall stand cancelled.
Record and proceedings be sent back to the trial
Court.
JUDGE JUDGE
[jaiswal]
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