State Of Maha vs Viju @ Vijay Dhotre
2018 Latest Caselaw 111 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.701 OF 2003

 The State of Maharashtra,
 Through Public Prosecutor,
 High Court, Bench at
 Aurangabad.
                                 ...APPELLANT 
        VERSUS             

 Viju @ Vijay Bhanudas Dhotre,
 Age-23 years, R/o-Wadarwadi,
 Bhingar, Ahmednagar.   
                                 ...RESPONDENT

                      ...
    Mr.C.S. Kulkarni A.P.P. for  Appellant-State.
    Mr.D.R. Markad Advocate h/f. Mr. N.K. Kakade
    Advocate and Mr. A.N. Kakade Advocate for
    Respondent.       
                      ...

               CORAM:   S.S. SHINDE AND
                        A.M. DHAVALE, JJ. 

DATE : 6TH JANUARY, 2018

JUDGMENT [PER S.S. SHINDE, J.] :

1. This Appeal is filed by the State

challenging the Judgment and order dated 15th July,

2003 passed by 4th Ad-hoc Additional Sessions

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Judge, Ahmednagar in Sessions Case No.6 of 2003,

thereby acquitting the Respondent/original accused

- Viju @ Vijay Bhanudas Dhotre for the offences

punishable under Sections 307, 302, 504, 506 of

the Indian Penal Code (For short "I.P. Code").

2. The prosecution case, in nut-shell, is as

under :-

(A) On 27th October, 2002 wife of the

accused, namely Ashabai Viju Dhotre, aged 20

years, resident of Wadarwadi, Bhingar, Dist-

Ahmednagar was admitted in Booth Hospital,

Ahmednagar. The police officer of Camp Police

Station, Bhingar, Paradhe (PW-3) recorded

statement of victim Ashabai and on the basis of

her statement, Crime No.I.113 of 2002 under

Sections 307, 323, 504 of the I.P. Code was

registered at Camp Police Station on 27th October,

2002 around 1.55 hours.

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(B) Ashabai Vijay Dhotre, wife of the accused

Viju @ Vijay complained that she is residing along

with her husband Viju Bhanudas Dhotre, mother in

law Chandubai and sister in law Sangita at

Bhingar, Tq-Ahmednagar. Her father Vishnu Jetha

Pawar is residing at Panchwati, Dist-Nashik. She

got married with the accused one year prior to the

incident. She is issue-less. Ashabai further

complained that on 26th October, 2002 around 8.00

p.m. her husband Viju Bhanudas Dhotre returned

from the work and asked her what food is prepared,

to which she replied that she prepared Varan-Dal.

Her husband asked Ashabai why she did not prepare

meat curry, to which she replied that due to death

of his uncle, she did not prepare meat curry. On

hearing it, accused started abusing and beating

her by fist blows. Thereafter she served food to

the accused and went to sleep in angry mood. After

finishing his meal, her husband again came and

started abusing her. Accused removed quilt from

the person of Ashabai and poured kerosene on her

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person from the tin and hurled burning Chimani and

ran away. Due to this, saree and petticoat of

Ashabai caught fire and therefore she shouted

loudly. The neighbourers came and extinguished the

fire by throwing water.

(C) Ashabai further stated that she had

sustained burn injuries to her both hands, back,

thighs, stomach etc. She was taken in a Rickshaw

to the hospital by her father and father-in-law.

The incident occurred at 9.30 p.m. in her

residential house. She further stated that her

husband was taking doubt about her character and

used to beat her. Her husband set her ablaze and

hence she has complained against him. She further

stated that she was in full conscious state and

her statement was true and correct, which was read

over to her.

(D) On the basis of the complaint, crime was

registered and the investigation was handed over

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to A.P.I. Misal (PW-5), who went to the spot on

28th October, 2002 and recorded the spot

panchnama. PW-5 Misal seized the pieces of burnt

clothes, Chimani, kerosene Can from the spot and

recorded the statements of the witnesses.

Thereafter he handed over further investigation to

A.P.P. Shri Devidas Kale (PW-4), who arrested the

accused on 28th October, 2002. PW-4 Kale obtained

the police custody of the accused from the Court.

During the investigation on 31st October, 2002,

around 23.55 hours Ashabai Viju Dhotre died in the

hospital. Hence inquest panchnama of her dead body

was drawn and later on the dead body was sent for

postmortem. After completion of postmortem, the

dead body was handed over to the father of the

deceased (PW-1). Later on the offence under

Section 307 of the I.P. Code was converted to

Section 302 of the I.P. Code. The seized property

was sent to chemical analysis. The supplementary

statements of the witnesses were recorded. The

postmortem report was obtained on 1st November,

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2002. After completing the investigation, the

police submitted the charge-sheet against the

accused in the Court of J.M.F.C., Ahmednagar.

(E). Thereafter the case was committed to the

Court of Additional Sessions Judge, Ahmednagar.

Charge at Exhibit-3 was framed against the accused

person and the same was explained to him. The

accused pleaded not guilty and claimed to be

tried, with the defence of total denial.

3. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted the accused from the offences with which

he was charged, as stated herein above in Para-1

of the Judgment. Hence this Appeal.

4. Learned A.P.P. appearing for the State

invites our attention to the dying declaration of

Ashabai, Exhibit-24, recorded by PW-3 Sharad

Nagesh Paradhe and submits that Ashabai in clear

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words stated that her husband, accused Vijay

poured kerosene on her person and set her on fire.

He further invites our attention to the evidence

of other witnesses and submits that the

prosecution has brought on record sufficient

evidence to establish that the accused was

responsible for the death of Ashabai. Therefore,

he submits that the the Appeal may be allowed.

5. On the other hand, learned counsel

appearing for the Respondent/accused, relying upon

the findings recorded by the trial Court, submits

that plausible view has been taken by the trial

Court. He submits that spot panchnama shows that

spot of incident was the house of father-in-law of

the deceased, whereas Ashabai stated that incident

took place in her residential house. He further

submits that the doctor who has made endorsement

on the dying declaration about the consciousness

of Ashabai, was not examined by the prosecution

and therefore it is unsafe to rely upon the dying

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declaration of deceased and convict the accused.

He therefore, submits that since the plausible

view is taken by the trial Court, this Court may

not cause interference in the order of acquittal.

6. We have considered the submissions of the

learned A.P.P. appearing for the State. We have

carefully perused the original record so as to

ascertain whether the findings recorded by the

trial Court are in consonance with the evidence

brought on record or otherwise.

7. We have carefully perused the evidence of

all the prosecution witnesses and in particular,

evidence of PW-5 Bhagwat Gunaji Misal, the police

officer who recorded the spot panchnama. Upon

careful perusal of the spot panchnama Exhibit-36,

it is specifically recorded that the spot of

incident is the house of Bhanudas Dhotre, father-

in-law of the deceased. The evidence on record

shows that accused along with his wife - deceased

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Ashabai, was residing separately and not in the

house of his father Bhanudas Dhotre. If the Dying

Declaration Exhibit-24 is carefully perused,

Ashabai stated that the incident took place in her

residential house. Thus, it is clear that the

prosecution has not brought on record where

exactly the incident took place. In this respect,

the trial Court has rightly recorded the finding

that the panchnama of the spot does not match with

the statement of the deceased where exactly the

incident took place.

8. There is only one dying declaration

recorded by the police officer PW-3 Sharad Nagesh

Paradhe. In the present case, the investigating

officer has not recorded the dying declaration of

Ashabai through the Executive Magistrate. It is

well settled that the dying declaration recorded

by the Executive Magistrate stands on much higher

footing vis-a-vis the dying declaration recorded

by the other officers/persons. The Supreme Court

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in the case of Khushal Rao vs. State of Bombay 1,

observed that the dying declaration recorded by a

competent Magistrate in the proper manner, that is

to say, in the form of questions and answers, and,

as far as practicable, in the words of the maker

of the declaration, stands on a much higher

footing than a dying declaration which depends

upon the oral testimony which may suffer from all

the infirmities of human memory and human

character.

9. PW-3 Sharad, the investigating officer

who recorded the dying declaration of Ashabai, has

stated in his evidence that before recording the

dying declaration Dr. Satish Wakchoure from Booth

Hospital, examined the patient and made

endorsement that the patient was in a position to

make statement and thereafter statement of Ashabai

was recorded. However it is surprising to note

that the the prosecution has not examined the said

1 A.I.R. 1958 S.C. 22 (V 45 C 4)

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doctor who made endorsement on the dying

declaration, and therefore the prosecution has

failed to establish that Ashabai was conscious and

well oriented before recording the dying

declaration. Except the solitary dying declaration

of Ashabai, that too recorded by the police

officer, there is no evidence to connect the

accused for the alleged offence. Be that as it

may, the only dying declaration of Ashabai

recorded by the Investigating Officer, which is

not corroborated by any other evidence, does not

inspire confidence so as to rest the prosecution

case on the said dying declaration and reverse the

acquittal of the Respondent-accused.

10. The prosecution has not brought on record

that there was ill-treatment or harassment to

Ashabai prior to her death at the hands of the

accused. The evidence brought on record by the

prosecution is too scanty to convict the accused.

The trial Court has properly considered all the

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evidence brought on record by the prosecution and

observed that the prosecution has failed to

establish the guilt of the accused beyond all

reasonable doubts. Considering all the evidence on

record, the trial Court has acquitted the

Respondent from all the charges with which he was

charged.

11. In the light of discussion herein above,

we are convinced that the findings recorded by the

trial Court are in consonance with the evidence

brought on record by the prosecution. There is no

perversity as such. The view taken by the trial

Court is plausible view. Even if it is assumed for

a moment that, an another view is possible on the

strength of evidence brought on record by the

prosecution, the same is no ground to interfere in

the order of acquittal when plausible view has

been taken by the trial Court.

12. In the light of discussion in foregoing

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paragraphs, we are not inclined to cause

interference in the impugned Judgment and order of

the acquittal. Hence the Appeal stands dismissed.

[A.M. DHAVALE, J.] [S.S. SHINDE, J.] asb/JAN18