Dwarkabai Kashiram Pitlewad And ... vs The State Of Maharashtra
2018 Latest Caselaw 1005 Bom

                                   1    CRI. APPEAL - 43-2002-JUDGMENT




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO. 43 OF 2002


01. Dwarkabai W/o Kashiram Pitalewad,
    Age : 60 years, Occu. Household,

      [Appeal abated against appellant no.1
      vide Court's order dated 20-11-2017]

02. Kishor S/o Kashiram Pitlewad,
    Age : 30 years, Occu. Labour,

      Both R/o Deshmukh Galli, Bhokar,
      Tq. Bhokar, Dist. Nanded                     .. Appellants

            VERSUS

The State of Maharashtra                           .. Respondent


                                ---
Mr. G.D. Jain, Advocate (appointed) for appellants

Mrs. Vaishali S. Choudhary, A.P.P. for respondent-State
                                 ---


                                 CORAM : SUNIL P. DESHMUKH &
                                         P.R. BORA, JJ.
                                 DATE : 25-01-2018


JUDGMENT (PER - SUNIL P. DESHMUKH, J.) :

1. First information report was recorded on 20-11-1998 by

Bhimashankar Laxmanrao Bharti - the Assistant Police Inspector of

Bhokar Police Station, District - Nanded, referring to that a medico-

2 CRI. APPEAL - 43-2002-JUDGMENT

legal case had been registered on 14-11-1998 at Government

Hospital, Bhokar requesting to record statement of one Savita

Kishor Pitlewad, aged about 24 years, resident of Bhokar suffering

90% burns. As such, Police Head Constable Budhewad had been to

Government Hospital at Bhokar and had taken down her statement

and, thereafter, for medical treatment, the injured had been sent to

Government Hospital at Nanded.

2. A wireless communication for recording her dying

declaration had been sent to Police Station, Vazirabad, Nanded.

Police Constable Gangadhar Nagorao Bhalerao had presented

documents at Police Station, Bhokar and from the same, the FIR

had been recorded.

3. It is recorded, Mrs. Savita Kishor Pitlewad in the

statement before death, had stated that husband had set her on

fire by pouring kerosene, upon having been told by her mother-in-

law, since they were suspecting her character. Further in the

statement of her mother - Kevalabai Ganpatrao Nagalwad aged 45

years resident of Mukramabad, before Police Head Constable in the

hospital as well as at Vazirabad stated that Savita had been

questioned by her husband and mother-in-law - Dwakrabai, as to

why she had not brought motorcycle from her parents and they had

3 CRI. APPEAL - 43-2002-JUDGMENT

set her on fire by pouring kerosene on her person igniting by

match-stick and she was completely burnt and she died while

receiving treatment in Government Hospital, Nanded on 19-11-

1998 around 12.20 p.m. and action be taken against them in

accordance with law.

4. It was thus recorded that Savita had been set on fire by

Kishor - her husband and Dwarkabai - her mother-in-law,

suspecting her character and as she did not bring motorcycle from

her parental house, by pouring kerosene on her person and lighting

her by match-stick. She died while being treated in hospital at

Nanded and, therefore, offence was alleged against aforesaid two

persons.

5. Statement of Savita had been recorded at Bhokar on

14-11-1998 with endorsements presumably of the doctor, in the

beginning and at the end of the recording of statement, that patient

had been conscious to give statement, that after returning from

parental house - Mukramabad on 04-11-1998, husband and

mother-in-law had been abusing her, asking as to why she had

stayed in parental house for two months. On 14-11-1998 around

3.00 p.m., there had been quarrel between husband - Kishor and

her for the stay at parental house and thereafter, husband - Kishor

4 CRI. APPEAL - 43-2002-JUDGMENT

went out and around 5.30 p.m., she had poured kerosene on her

person and had ignited herself by lighting match-stick from the box.

At that time, her mother-in-law was not at home and, thereafter, lot

of people from the lane had poured water on her person and had

taken her to Hospital in an auto-rickshaw and treatment to her was

being given.

6. On 15-11-1998, around 9.00 p.m., statement of Savita

was recorded by Special Judicial Magistrate of Nanded that around

6.00 p.m. on 13-11-1998, her husband Kishor had poured kerosene

on her person and had set her on fire while her mother-in-law was

telling to set her on fire. Husband had set her on fire since he was

suspecting her character. The Doctor had endorsed that till the

completion of the statement, the patient had been conscious.

7. On 19-11-1998, statement of Kevalabai Ganpatrao

Nagalwad - mother of deceased - Savita had been recorded at

Hospital Police Chowki, Vazirabad, Nanded. She has stated that she

had three daughters, namely, Bharti, Savita, Shanta, all of whom

are married. Savita had been married to Kishor Kashiram Pitlewad

of Bhokar seven years before as per customs and traditions and

from the wedlock, she had four year old daughter and had been

pregnant for about five months. Her further statement is that one

5 CRI. APPEAL - 43-2002-JUDGMENT

Sanjay - younger brother of her son-in-law - Devidas Alnurwad of

Mukhed told in the evening of 15-11-1998 that her daughter Savita

had caught fire and she has been admitted in Government Hospital

at Nanded according to the information received from her other

son-in-law - Kishor. Thereafter, she along with one daughter and

quite a few other persons had been to Nanded in the night and had

asked Savita, as to what had happened. Savita had said to her that

she had promised to give motorcycle to her husband and had not

given the same to him and, therefore, they had left her at parental

home and had taken her back promising a good treatment,

however, after coming at matrimonial house, mother-in-law -

Dwarkabai and husband - Kishor used to abuse and beat her, asking

as to why her mother had not given motorcycle. She was being

mentally and physically tortured and they were suspecting her

character. For said reasons, on last Saturday i.e. 13-11-1998, in

the evening around 6.00 p.m., her husband had poured kerosene

on her person and mother-in-law had told him to put her on fire by

igniting match-stick. In the circumstances, her limbs, chest,

stomach had been burnt. Thereafter, said persons had taken her

for treatment to Government Hospital, Bhokar and after giving

primary treatment there, she had been admitted to Nanded

Government Hospital and while her daughter was being treated,

she died on 19-11-1998 around 12.20 p.m.

6 CRI. APPEAL - 43-2002-JUDGMENT

8. Inquest panchanama appears to have been drawn on

19-11-1998 in the presence of witnesses, one of which was Devidas

Govindrao Adgulwar - the other son-in-law of Kevalabai - mother of

deceased Savita.

9. PW1 - Devidas had been examined at Exhibit-21. In his

cross-examination, he purports to refer to that he had been to the

hospital in the next morning after admission of Savita in

Government hospital and that he along with relatives had been

there for about 4-5 days and that after the incident of fire, accused

Kishor had brought Savita to hospital at Nanded and that her

funeral was performed at Mukaramabad.

10. PW 2 - Mohd. Yousuf is panch witness of the spot.

11. PW 3 - Kevalabai - mother of deceased Savita examined

at Exhibit-25, has deposed that since the performance of marriage,

accused no. 2 - husband - Kishor used to beat Savita demanding

motorcycle and for arranging employment and used to give threat

of life to her. Savita used to inform about the ill-treatment and

demand of money. After Pola till Diwali, accused no. 2 - husband -

Kishor had compelled Savita to stay in the parental house, however,

7 CRI. APPEAL - 43-2002-JUDGMENT

after Diwali, accused no. 2 came to take Savita with him and, 9 days

thereafter, the news of burning of Savita and admission and

hospitalization at Nanded had come. In the hospital, she had asked

Savita, as to how burning took place and she had told that accused

no. 2 had beaten her and poured kerosene on her person and that

he had done so because of non-fulfillment of the demand of money.

In her cross-examination, she stated that accused no. 1 i.e.

mother-in-law of Savita had given a telephonic message to Devidas

about her hospitalization at Nanded and, thereafter, she and

Devidas and her brother Maroti had been to Government hospital at

Nanded and they were there for about 5-6 days till death of Savita.

During their stay in hospital, no police official from Police Station,

Bhokar had come for enquiry. She purports to state that her

brother Maroti and son-in-law were not present with Savita when

she had informed her about beating and pouring kerosene on her.

She further refers to that Savita had told her that accused no. 2 -

husband had rushed her to hospital at Bhokar. She went on to

state that Police at Bhokar had recorded her statement 4 days after

funeral of Savita had taken place. The complaint had been lodged

in Police Station after her death. None of the relatives viz. herself,

her brother Maroti and son-in-law Devidas had lodged complaint

against accused 1 and 2. Accused no. 1 had been a retired

employee and had received huge amount by way of pensionary

8 CRI. APPEAL - 43-2002-JUDGMENT

benefits. She referred to that Bharatbai, her daughter had many

occasions to talk to Savita before her death in the hospital. She

purports to deny that while police were recording her statement,

Bharatbai had requested her to refrain from making any allegations

about cruelty by the accused. It has been elicited in the cross-

examination that accused no. 2 had stayed for over 2 days at

Mukaramabad in parental house of Savita. In her further cross-

examination, she claims that Savita had sent to her a postcard,

however, the postcard has been missing for long and that before

they could read the postcard, they had rushed to Nanded, as the

incident had occurred.

12. PW4 is the Medical Officer Dr. Satyanarayan B. Punpale

has been examined at Exhibit-28. He endorsed the post-mortem

report about death due to 90% burns.

13. PW5 - Bhimashankar Bharati examined at Exhibit-30 is

Police Inspector, L.C.B., Nanded, who refers to having lodged FIR on

behalf of the State and also that he had investigated the crime.

Spot panchanama had been drawn. Burnt pieces of clothes of

deceased and match-box from the spot had been seized.

Mudemmal articles were sent to chemical analysis and chargesheet

had been sent to the Court. The investigation revealed that there

9 CRI. APPEAL - 43-2002-JUDGMENT

had been commission of offence punishable under sections 498-A

and 306 r/w. section 34 of the Indian Penal Code. In the cross-

examination, he stated that from 14-11-1998 to 19-11-1998,

Bhokar Police Station had not received any complaint from the

relatives of deceased Savita and further that witnesses Mohd.

Haroon and Sk. Chand had told him that Savita had set herself on

fire by pouring kerosene. The cross-examination further discloses

that the Investigating Officer had not visited the hospital at Nanded

during 14-11-1998 to 19-11-1998 and had not visited

Mukaramabad, although he purports to deny that he had not

recorded statement of Kavalabai.

14. PW6 - Nivratti Piraji Shahdeo is the Special Executive

Magistrate, who had recorded statement of Savita on 15-11-1998

on being requested by Vazirabad Police Station. He has stated that

he had recorded statement of Savita after verification of her

condition and about she being conscious. The recorded statement

had been read over to patient Savita, who admitted the same to be

true and correct and her right hand thumb impression had been

taken on the statement. Statement was recorded in the presence

of Doctor. The recording was during 9.00 pm. to 9.30 pm. In his

cross-examination, it has been elicited that he directly went to the

ward where the patient had been admitted and went to the patient

10 CRI. APPEAL - 43-2002-JUDGMENT

with identification from sister on duty in the hospital and then the

Doctor had been called. He purports to explain in the cross-

examination that scoring while answering the third question is due

to his mistake and not for the reason that patient was making a

feeble statement.

15. PW 7 - Maroti Mangilwad, who is examined at Exhibit-48

happens to be maternal uncle of deceased Savita purports to

support the statement made by Kevalabai - his sister. He, however,

in his statement referred to that while he had arrived in the

Government hospital at Nanded, sister - Keavalabai asked Savita as

to what had happened to her and purports to state that it had been

stated by Savita to them that accused was suspecting her character

and poured kerosene on her and told that both the accused had lit

her. In his cross-examination, he stated that Savita led a happy

married life till she had given birth to child. He also stated to be

ignorant about financial condition of Kishor.

16. DW 1 - Mohd. Haroon is examined at Exhibit - 52, who

appears to be the landlord and the accused were his tenants. He

claims in his statement that Savita had closed door of house and

burnt herself by pouring kerosene and stated that Savita and Kishor

were leading happy married life till the incident. Savita had not

11 CRI. APPEAL - 43-2002-JUDGMENT

spoken anything to persons gathered after the incident and also

purports to state that he had reached the spot 15 minutes after the

incident. His cross-examination he dithered over. While once he

said that there were quarrels and on the other, he says that there

were no quarrels.

17. There is no eye witness and the case is based on the

statements, stated to have made and are considered to be dying

declarations at Exhibits 32 and 35.

18. Evidence shows that Savita had been to her parental

house at Mukramabad during Pola to Diwali and had come back to

her matrimonial house around 04-11-1998. Savita had been burnt

to the extent of 90% in the incident that had taken place around

6.00 pm. on 14-11-1998.

19. Soon thereafter, she had been moved to hospital at

Bhokar and with the endorsement of Doctor that she is conscious to

give statement, statement had been recorded, which does not

impute any allegation against husband or mother-in-law.

20. In her subsequent statement on the next day in the

evening, she has referred to that accused had set her on fire,

12 CRI. APPEAL - 43-2002-JUDGMENT

suspecting her character. She had not stated anything about her

harassment and torture over demand of motorcycle or money

therefor. Her said statement had been recorded by Special Judicial

Magistrate.

21. In the third statement claimed to have been made to

her mother, Kevalabai, however, a reference about non-fulfillment

of demand of motorcycle and harassment over the same as well as

character suspicion have appeared.

22. Statements of Savita were recorded on 14-11-1998 and

15-11-1998 and Kevalabai's statement has been recorded after her

death on 19-11-1998.

23. All the statements give different versions and attribute

different allegations. Multiple dying declarations with different

versions create doubt about truthfulness of the declarations and, as

such, must undergo a very close scrutiny.

24. First dying declaration made at Bhokar does not impute

allegation against any person. Second one recorded by the Special

Judicial Magistrate refers to character suspicion. The third one,

however, makes reference to harassment over motorcycle and

13 CRI. APPEAL - 43-2002-JUDGMENT

passingly character suspicion. It would be required to be taken into

account that the third statement imputes harassment over

motorcycle all through from marriage. The three statements are

not consistent.

25. Decision by Division Bench of this Court, in the case of

Subhash Ratan Chavan and anr. Vs. State of Maharashtra reported in 2016(2)

Bom.C.R. (Cri.) 412, may well have to be taken into account while

considering the efficacy of inconsistent dying declarations.

26. In the present matter, the person who has recorded

dying declaration on 14-11-1998 and the Doctor with whose

endorsement, the same had been taken down, none are not

examined nor any investigation appears to have been made with

them.

27. The deceased had initially made statement at Bhokar

taking the blame upon herself, however, at Nanded, her version

underwent change. By then, it appears that quite a few relatives

had already seen and met her, yet, there is no reference to

harassment over money for motorcycle in her statement at Nanded.

However, the version underwent further alteration and improvement

as claimed by Kevalabai.

14 CRI. APPEAL - 43-2002-JUDGMENT

28. The witness - other son-in-law of Kevalabai - PW 1, has

not supported the prosecution and has not stated anything about

the cause of death or for that matter, any statement having been

made to him or that him being aware of harassment caused to

Savita.

29. As a matter of fact, third dying declaration, if is to be

considered as one, allegedly made to her mother by deceased

Savita, is also doubtful on one more count. Kevalabai, to whom the

statement had been made by deceased Savita, stated that while

statements were made, other than herself and Savita, nobody had

been present whereas, Kevalabai's brother, however, states that in

his presence, statement had been made by Savita.

30. Bharti, the other daughter, who had been along with

Kevalabai in the hospital for over 4-5 days, her statement has not

been recorded in support of the version of Kevalabai, who could

have thrown light corroborating evidence by Kevalabai. It appears

that she has not been examined, for in cross, it has emerged

Bharti was trying to contain Kevalabai from making statements

against the accused.

15 CRI. APPEAL - 43-2002-JUDGMENT

31. Apart from the inconsistencies in the dying declarations

and in the evidence, there is stark absence of examination of

proper persons during the course of investigation as well as in the

court. None of the neighbouring persons, who may have been

immediately present on the scene after the incident, has been

examined. Savita in her statements had referred to that the

neighbouring persons had poured water on her while she had lit

herself. The evidence, to quite a large extent, shows that it is

accused no.2, who had taken Savita to hospital at Bhokar

immediately after the incident and from there to Nanded. The

other prosecution witnesses have thereafter arrived at Nanded.

32. Apart from mother and maternal uncle of deceased no

one has imputed any allegations about harassment over demand of

money. As a matter of fact, brother-in-law of deceased Savita, who

happens to be husband of her other sister, who has been examined

does not speak at all about any harassment being caused to the

deceased by her husband or mother-in-law. As a matter of fact,

the husband himself had informed him about burning of Savita.

There is no independent evidence available in respect of

harassment being caused to Savita. It does not appear that any

person who might have been there after the incident, had informed

anything to mother of deceased and her maternal uncle or the

16 CRI. APPEAL - 43-2002-JUDGMENT

sister or brother-in-law.

33. Although, during the investigation, Kevalabai

purportedly had passingly referred to that accused harassed Savita

over her character, yet, there is no reference to the same in her

examination in the court. Kevalabai has referred to that mother-in-

law of Savita had been receiving pension and was a retired

employee and had received huge amount by way of pensionary

benefits.

34. The chemical analysis report does not support case of

the prosecution. No kerosene traces were noticed on the seized

clothes of the accused.

35. Mother-in-law appears to be a retired employee and a

couple of years before had received sumptuous pensionary benefits.

There is no evidence about any other relative being there of

accused nos. 1 and 2. Deceased Savita appears to have led a

happy matrimonial life for about 7 years and had been carrying for

5 months while the incident had occurred.

36. Credibility of the dying declarations, in the

circumstances, gets considerably damaged and lose out on efficacy,

17 CRI. APPEAL - 43-2002-JUDGMENT

conclusively. Appreciation by the Additional Sessions Judge, in

such a case of the evidence, placing reliance on the dying

declarations, does not appear to be sustainable.

37. In view of aforesaid, with such quality of evidence, it

does not appear that accusations against and the roles imputed to

appellants have any sustainable support.

38. Criminal Appeal is, therefore, allowed.

39. Impugned judgment and order dated 08-01-2002

passed by IInd Adhoc Additional Sessions Judge, Nanded in

Sessions Case no. 132 of 1999, therefore, is set aside. Bail bonds

of the appellants stand cancelled.

40. Appeal against appellant no.1 is already disposed of as

abated.

41. Appellant no.1 - Dwarkabai W/o Kashiram Pitlewad is

acquitted of the offences punisahble under section 302 r/w. 34 of

the Indian Penal Code. Appellant no. 2 - Kishor S/o Kashiram

Pitlewad is acquitted of the offences punishable under section 302

r/w. 34 of the Indian Penal Code and under section 498-A of the

Indian Penal Code.

18 CRI. APPEAL - 43-2002-JUDGMENT

42. Since Shri G.D. Jain, Advocate was appointed by this

Court as amicus curiae to defend the case of appellants, his fees

quantified at Rs.10,000/-, be paid to him by High Court Legal

Services Sub-Committee at Aurangabad.

                [P. R. BORA]              [SUNIL P. DESHMUKH]
                   JUDGE                         JUDGE
arp/