The State Of Mah & Ors vs Ramesh Sakharam Raut & Ors
2018 Latest Caselaw 606 Bom

                                       1          Appeal 281 of 2006

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                       Criminal Appeal No. 281 of 2006


     *       The State of Maharashtra
             Through the Police Station Officer
             Police Station, Kaij,
             District Beed.               .. Appellant.

                      Versus

     1)      Ramesh Sakharam Raut.

     2)      Sakharam Appa Raut.

             (Respondent Nos.1 and 2 are dead.
             Appeal is abated as against them)

     3)      Prakash Sakharam Raut,
             Age 35 years,
             Occupation : Labour,
             R/o. Salegaon, Taluka Kaij,
             District Beed.                      .. Respondents.

                                       ----

     Shri. S.B. Pulkundwar, Additional Public Prosecutor, for
     the appellant.

     Shri. Abhijit Choudhary, Advocate, holding for Shri. D.J.
     Choudhari, Advocate, for respondent No.3.

                                       ----

                                Coram:        T.V. NALAWADE &
                                              SUNIL K. KOTWAL, JJ.

                               Date:          18 January 2018




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                                         2        Appeal 281 of 2006

     JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed against the judgment and

order of Sessions Case No.57/2004 which was pending in

the Court of the learned 1st Ad-hoc Additional Sessions

Judge, Ambejogai. The respondents are acquitted of the

offences punishable under sections 498-A, 302 read with

34 of Indian Penal Code. Both the sides are heard.

2) The facts, in short, leading to the institution of

the present proceeding can be stated as under :

3) The deceased Prabhavati was a daughter of

Keshav Pawar, who is resident of Dhakephal, Tahsil Kaij,

District Beed. She was given in marriage to respondent

No.1, Ramesh Raut, who was resident of village Salegaon,

Tahsil Kaij, District Beed. Respondent No.2 Sakharam was

the father of respondent No.1. Respondent No.3, Prakash

is a real brother of Ramesh. During pendency of the

present proceeding, the husband of the deceased and her

father-in-law, respondent No.1 and 2, died and so the

appeal as against them came to be disposed of as abated.

                                        3       Appeal 281 of 2006

     4)               Prabhavati was given in marriage prior to 13 to

14 years of the date of incident in question. It is the case

of the prosecution that she was treated well for about 3

years by the accused persons but after that she was

reached to the house of her parents when she was

pregnant. The deceased delivered a female child. It is the

case of the prosecution that nobody turned up to take the

deceased back to the matrimonial house and the attempts

made by relatives on parents' side of the deceased to

convince the respondents to accept the deceased back in

matrimonial house failed. The deceased had stayed with

her parents for about 7 to 8 years after the birth of the

issue.

5) About 15 days prior to the date of the incident

in question, the husband went to the house of the parents

of the deceased for taking the deceased back to the

matrimonial house. He gave undertaking to behave well

and he took the deceased and the daughter with him to

his house. It is the case of the prosecution that the

husband did not take the deceased with him to the place

of his service but he kept her with his parents and said

4 Appeal 281 of 2006

that the deceased should bring Rs.10,000 from her

parents as he wanted to start a laundry business at Kaij.

The deceased expressed that her parents were not in a

position to meet this demand and then ill-treatment was

started to her. The husband was staying at Pune and he

went to Pune.

6) The husband turned to Salegaon, his native

place on 11-12-2003 and started harassing the deceased

by saying that she was not bringing the amount of

Rs.10,000 for starting the business at Kaij. From 11-12-

2003 to 13-12-2003 the husband continued to harass her.

Ultimately on 12-12-2003, as per the case of the

prosecution, the husband picked up quarrel with the

deceased and at about 9.00 am he poured kerosene on her

person and set fire to her. The neighbours extinguished

fire and she was shifted to Government Hospital

Ambejogai.

7) On 13-12-2003 police recorded the statement of

the deceased in Ambejogai Hospital and she made the

aforesaid allegations against the husband. On the basis of

5 Appeal 281 of 2006

this disclosure made by the deceased, crime came to be

registered at No.243/2003 in Kaij Police Station for

offences punishable under sections 307, 498-A of the

Indian Penal Code against the husband. On 13-12-2003 on

the request made by police, Executive Magistrate

recorded the statement of the deceased in Government

Hospital. In this disclosure, she made allegations against

her husband, father-in-law and brother-in-law, the

respondents, that all of them had together set fire to her

at 9.00 a.m. She died due to burn injuries on 13-12-2003

itself and the crime came to be converted for one

punishable under section 302, Indian Penal Code and it

was against all the three accused.

8) Post mortem was done on the dead body and

the statements of the relatives of the deceased on parents

side and also of some neighbours came to be recorded.

Charge sheet came to be filed against the respondents for

aforesaid offences. Charge was framed. All the accused

pleaded not guilty. The prosecution examined in all 12

witnesses. Accused took defence of total denial. The trial

Court has held that due to inconsistencies in the two

6 Appeal 281 of 2006

disclosures made by the deceased and absence of

independent witnesses to show that all the three accused

were present at home at the relevant time, conviction is

not possible on the basis of the aforesaid two disclosures.

9) The first disclosure was made by the deceased

at 2.50 p.m. as per the time shown on Exhibit 39 recorded

by the Executive Magistrate and the second disclosure

was made subsequently when police made inquiry.

However, the time mentioned by the doctor under the

endorsement shows that the time of examination of the

patient was 3.00 p.m. when police recorded the statement

and the time of examination of the doctor was 3.40 p.m.

when the Executive Magistrate recorded the statement.

This inconsistency is material as there is no relevant

record like requisition letter given by police to the

Executive Magistrate and in the dying declaration

recorded by police allegations were made only against the

husband by the deceased. The husband is dead now and

so this inconsistency is bound to make effect on the case

as against the remaining respondent, brother of the

husband. Further, the circumstance that Prabhavati died

7 Appeal 281 of 2006

on the same day and the extent of burns was 100% needs

to be kept in mind as that can create doubt about the

fitness of the deceased to give the statement.

10) When there are more dying declarations, Court

is expected to closely scrutinize both the dying

declarations and ordinarily the Court is expected to look

for corroboration. Dr. Ashok Kedar (PW-3) is resident of

Salegaon, Tahsil Kaij and his hospital is situated near the

house of the deceased where the incident took place. He

has given evidence that on that day at about 10.00 a.m. he

heard noise from the side of the house of the deceased

and when he paid attention he saw that there was fire in

the house. He has given evidence that he rushed to the

house and he noticed that the deceased was in flames. He

has given evidence that he extinguished fire by using

blanket which is called as "Godhadi" and one Malhari

Landge helped him. He has given evidence that the

deceased was shifted to Government Hospital in a jeep.

His evidence in the cross-examination shows that at that

time none of the three accused was present in the house

and the husband arrived to the spot subsequently and it is

8 Appeal 281 of 2006

the husband who shifted the deceased to Ambejogai

Hospital. This witness is not declared hostile witness by

the prosecution and the evidence of this witness creates

doubt about the contents of both the dying declarations. It

creates probability that the dying declarations are not

truthful. There is similar evidence of Malhari Landge

(PW-4) examined by the prosecution.

11) Keshav (PW-10), father of the deceased, has

given evidence that on the day of the incident in the

morning he learnt about the incident and so he went to

Ambejogai Hospital. He has given evidence that the

deceased had made a disclosure to him that all the

accused set fire to her after pouring kerosene and this

was done as the demand of Rs.10,000 made by them was

not met with.

12) In the cross-examination of Keshav (PW-10) it is

brought on record that he reached the hospital at 11.30

a.m., prior to recording of the dying declaration. In the

cross-examination it is brought on the record that in the

police statement he had not stated before police that

9 Appeal 281 of 2006

there was a disclosure as against accused No.3 that even

he had given beating to her. This omission is proved in the

evidence of the investigating officer. Presence of the

father in the hospital prior to the recording of the dying

declaration creates probability that there was tutoring if

the deceased was really conscious at the relevant time.

The mother of the deceased is examined by the

prosecution as PW-11. She has given evidence that the

deceased disclosed to her that only husband was

responsible for the incident and he had set fire to her.

Thus there is inconsistency even in the evidence given by

parents on oral dying declaration.

13) There are circumstances like deceased had

stayed with her parents for more than 7 years and only 15

days prior to the incident she had returned to the

matrimonial house. The evidence and the record do not

show that the husband had put any condition for taking

the deceased back to the matrimonial house. When death

takes place due to burn injuries there are three

probabilities like (1) suicide, (2) accidental death, or (3)

homicide. In the present matter the CA report shows that

10 Appeal 281 of 2006

kerosene was detected on the clothes of the deceased.

Due to the aforesaid circumstances this Court holds that

the other two probabilities cannot be ruled out in the

present matter and the benefit of that probability needs to

be given to the present respondent, brother-in-law of the

deceased. Ordinarily he had no reason to give ill-

treatment to the deceased as he was not to get any benefit

if the demand was met with by the parents of the

deceased. This Court holds that the trial Court has not

committed any error in acquitting the respondent No.3,

brother-in-law of the deceased and this is a possible view.

In the result, the appeal stands dismissed.

             Sd/-                               Sd/-
     (SUNIL K. KOTWAL, J.)              (T.V. NALAWADE, J.)




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