Bombay High Court
Vilas Sukhadeo Thete vs The State Of Maharashtra on 24 January, 2018
Bench: T.V. Nalawade
(1) Cri.Appeal No. 323/2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 323/2006
Vilas s/o Sukhdeo Thete
Age : 26 yrs, occu.: business
R/o Samta Colony, Majalgaon,
Taluka Majalgaon, District Beed. Appellant.
Versus
The State of Maharashtra
(Copy to be served on G.P. of
High Court, Bench at Aurangabad). Respondent.
***
Mr. R.N. Dhorde, Senior Counsel with
Mr. V.R. Dhorde, Advocate for the appellant.
Mrs. D.S. Jape, A.P.P. for the State/Respondent.
Mr. G.K. Thigale, Advocate to assist the A.P.P.
***
CORAM : T.V. NALAWADE &
SUNIL K. KOTWAL,JJ.
Date : 24.01.2018.
JUDGMENT : (PER SUNIL K. KOTWAL,J.)
1. This appeal is directed against the judgment and order
dated 29.03.2006 passed by Additional Sessions Judge, Majalgaon
in Sessions Case No.39/2005, convicting accused No.1 (present
appellant) under Sections 302 and 498-A of the Indian Penal Code
(For short "I.P.C.").
(2) Cri.Appeal No. 323/2006
2. Appellant is the original accused No.1. Respondent is
the State of Maharashtra.
3. Facts leading to institution of this appeal are that
accused Nos.1 to 7 were charge-sheeted for the offences
punishable under Sections 302 and 498-A read with Section 34 of
the I.P.C. The facts of the prosecution case, in brief, are that the
deceased married with accused No.1 on 22.05.2003. Accused
Nos.2 and 3 are the in-laws and accused Nos.4 to 6 are the sister-
in-law of the deceased. Accused No.7 is the daughter of paternal
aunt of accused No.1. After marriage the deceased cohabited with
accused No.1, who resided jointly with accused Nos. 2 to 6 at
Samta Colony, Majalgaon. Accused No.1 used to run a jewelery
shop in the name and style as "Thatte Jewelers", located near
Hanuman temple, Majalgaon. Two months after the marriage, all
accused started ill-treatment to the deceased for demand of money
from the parents of the deceased. Whenever deceased went to her
parental home, she disclosed before her parental relatives the ill-
treatment at the hands of accused for demand of money. Initially the
parents of deceased paid Rs.1,00,000/- to accused No.1. However,
as his greed was not satisfied, again ill-treatment to deceased
continued for demand of money. In the month of December 2003,
deceased was mercilessly beaten up by accused Nos.1 to 6.
(3) Cri.Appeal No. 323/2006
However, neighbours rescued the deceased from the clutches of the
accused and took her to her parental home at Majalgaon. On report
lodged by deceased to Majalgaon Police Station, Crime
No.188/2003 under Section 498-A of I.P.C. came to be registered
against the accused persons. Even the accused filed counter
criminal case against the parental relatives of the deceased. At last
a compromise took place in between both the parties and both
cases were disposed of
4. After compromise, the deceased and accused No.1
started cohabitation in a rented premises located in Samtanagar,
Majalgaon since February 2005. Accused No.1 doubted the
character of his wife (deceased). He also developed illicit relations
with his parental cousin sister (accused No.7). At the instigation of
accused No.7 again physical and mental harassment of the
deceased was started by accused No.1. He also insisted the
deceased to reside at the house of her brother Jagannath. Accused
Nos.2 to 6 also insisted the deceased for desertion of accused No.1.
However, anyhow the deceased continued cohabitation with
accused No.1 in the same ranted premises.
5. On 17.05.2005 at about 9.00 to 9.30 a.m. accused No.1
picked up quarrel with deceased, hurled abuses and insisted her for
(4) Cri.Appeal No. 323/2006
going to her parental home. On refusal by deceased, in the fit of
rage, accused No.1 poured kerosene on the body of deceased and
by igniting incense stick on cooking gas, he set her ablaze.
Accused No.1 bolted away from the spot. By that time, hearing the
shouts of deceased, neighbours rushed on the spot and
extinguished the fire. Cousin brother of deceased namely
Chandrakumar Shendge (PW-4) arrived at spot. Coincidentally
brother of deceased namely Jagannath Shendge (PW-2) was at
Majalgaon for some work and after knowing about the occurrence,
be rushed on the spot and immediately took the deceased to
Government Hospital, Majalgaon at about 10.30 a.m. By that time,
even accused No.1 lodged report (Exh.57) about the occurrence to
Police Station, Majalgaon. P.S.I. Pathan (PW-9) rushed to the
Government Hospital, Majalgaon and recorded first dying
declaration (Exh. 58) of the deceased.
6. On the basis of the first dying declaration of the
deceased, Crime No.112/2005 under Sections 498-A, 307, 504 read
with Section 34 of the I.P.C. came to be registered at Majalgaon
Police Station. Investigation was handed over to P.S.I. Pathan.
Consequently the Executive Magistrate Janardan Jadhav (PW-7)
recorded second dying declaration (Exh.52) of the deceased.
(5) Cri.Appeal No. 323/2006
7. During the course of investigation spot panchnama
(Exh.37) was drawn by Investigating Officer and kerosene can,
pieces of fragmented clothes of the deceased, burnt incense stick
were seized from the spot.
8. On the same day i.e. on 17.05.2005 at about 1.00 p.m.
the deceased was shifted to S.R.T.R. Hospital, Ambejogai for better
medical treatment. A.S.I. Lamture (PW-10) who was attached to
Police Outpost of S.R.T.R. Hospital, obtained third dying declaration
(Exh.63) of the deceased. On 25.05.2005 at about 11.30 p.m.
deceased succumbed to her burn injuries.
9. Inquest panchnama (Exh.39) of the dead body was
drawn by A.S.I. Lamture (PW-10) and the dead body was referred
for postmortem examination. Dr. Sunil (PW-5) performed
postmortem examination and submitted postmortem notes (Exh.42).
After the death of deceased, Section 307 of I.P.C. was converted
into Section 302 of I.P.C. After completion of investigation, charge-
sheet was submitted in the Court of Judicial Magistrate, First Class
at Majalgaon against accused Nos.1 to 7.
10. Offence punishable under Section 302 of I.P.C. being
exclusively triable by the Court of Sessions, this case was
(6) Cri.Appeal No. 323/2006
committed to the Sessions Court, Majalgaon.
11. The then Additional sessions Judge, Majalgaon framed
charge (Exh.19) against accused No.1 for the offence punishable
under Section 302 of I.P.C. Charge was also framed against
accused Nos.2 to 7 for the offence punishable under Section 498-A
read with Section 34 of I.P.C. Contents of the charge were read
over to the accused. They pleaded not guilty and claimed trial.
12. Prosecution examined total 11 witnesses. No defence
witness was examined by the accused. Defence of the accused is
of total denial. Accused No.1 contended that at the time of
occurrence, he was in the jewelery shop.
13. In the statement recorded under Section 313 of the
Code of Criminal Procedure, the appellant contended that on
17.05.2005 on account of preparation of breakfast in the morning
there was exchange of words in between him and the deceased and
he left the residence for shop. When he learnt about occurrence at
his shop. He rushed to Majalgaon Hospital. However, relatives of
deceased did not allow him to see her, and therefore, he went to
Police Station, Majalgaon and submitted report (Exh.57).
(7) Cri.Appeal No. 323/2006
14. Considering the defence of the accused as well as the
evidence placed on record by the prosecution in the form of multiple
dying declarations of the deceased, the learned trial Court pleased
to convict only the appellant / accused No.1 for the offences
punishable under Sections 302 and 498-A of the I.P.C. and he was
sentenced to suffer imprisonment for life. Therefore, this appeal
arise.
15. Heard strenuous arguments of Mr. Dhorde, learned
Counsel for the appellant and learned A.P.P. for the State. With the
help of learned Counsels for both the parties, we have gone through
oral and documentary evidence placed on record.
16. Learned Counsel for the appellant submitted that after
careful examination of three dying declarations i.e. first recorded by
P.S.I. Pathan (PW-9) at Exh.58, second recorded by Executive
Magistrate Janardan Jadhav (PW-7) at Exh.52 at Majalgaon
Hospital and third dying declaration (Exh.63) recorded by A.S.I.
Lamture (PW-10) at S.R.T.R. Hospital, Ambejogai, it emerges that
these three dying declarations reflect conflicting three versions
regarding the actual occurrence of the incident.
17. The next submission of the learned Counsel for the
(8) Cri.Appeal No. 323/2006
appellant is that no witness is examined by the prosecution who had
seen the appellant while leaving the spot of incident immediately
after the occurrence. Neither the clothes of the deceased were sent
to Chemical Analyzer, to prove that residues of the kerosene alleged
to be poured by the appellant on the body of deceased, are detected
in the clothes of the deceased nor in the spot panchnama any signs
of kerosene on the spot are visible. According to learned defence
Counsel, therefore, the theory of prosecution regarding setting
ablaze the deceased after pouring kerosene by the appellant, is not
corroborated by any circumstantial evidence. The learned defence
Counsel claimed that when three conflicting dying declarations are
not corroborated by circumstantial evidence, then conviction cannot
be based on such suspicious dying declarations. He has placed
reliance on the judgments in the cases of "Vallabhaneni
Venkateshwara Rao Vs State of Andhra Pradesh" reported in
(2009) 6 Supreme Court Cases 484, "Sharda Vs. State of
Rajsthan" reported in (2010) 2 Supreme Court Cases 85, "Amol
Singh Vs. State of Madhya Pradesh" reported in (2008) 5
Supreme Court Cases 468, "Nallapati Sivaiah Vs. Sub-Divisional
Officer, Guntur, A.P." reported in AIR 2008 Supreme Court 19,
"Samadhan Dhudaka Koli Vs. State of Maharashtra" reported in
2009 ALL MR (Cri.) 229 (S.C.) and "Gopal Vs. State of Madhya
Pradesh" reported in (2009) 12 Supreme Court Cases 600.
(9) Cri.Appeal No. 323/2006
18. Learned A.P.P. for the State, in reply, supported the
judgment of conviction passed by the learned trial Court on the
ground that the dying declarations recorded by three different
officers are free from material infirmities. She points out that at the
time of recording of these all dying declarations, the Medical Officer
was present, who certified that the deceased was in fit condition to
give statement. She also points out that the incident occurred at
about 9.50 to 10.00 a.m. and first dying declaration is recorded at
about 12 noon hours i.e. within two hours after the occurrence, and
therefore, when there are no material inconsistencies in three dying
declarations, the conviction can be based without seeking for other
corroboration. Learned A.P.P. placed reliance on the judgment in
the case of "Anjanappa Vs. State of Karnataka" reported in (2014)
2 Supreme Court Cases 776.
19. Accused Nos.2 to 7 though charged for commission of
offence punishable under Section 498-A read with Section 34 of
I.P.C., they are acquitted by the trial Court. Against the order of that
acquittal no appeal is preferred by the State. Therefore the
evidence placed on record against accused Nos.2 to 7 needs no
consideration.
20. So far as the appellant is concerned, the main
(10) Cri.Appeal No. 323/2006
allegation leveled against him is that he harassed and subjected the
deceased to ill-treatment on account of demand of Rs. 2,00,000/-.
According to prosecution, out of these Rs. 2,00,000/-, an amount of
Rs. 1,00,000/- was already paid by the brothers of deceased and
even thereafter for the remaining Rs. 1,00,000/- the deceased was
subjected to ill-treatment by all accused persons. In the year 2003
on the report lodged by deceased, offence was registered against
accused persons under Section 498-A of I.P.C. and charge-sheet
was filed against them in Majalgaon Court. On 11.12.2003 counter
F.I.R. was filed by appellant and Crime No.148/2003 was registered
against the brothers of deceased and R.C.C. No.2/2004 was
registered against the paternal family members of the deceased. In
the month of December 2003 the deceased left her matrimonial
house and stayed at her parental home. Later on the matrimonial
dispute in between the appellant and deceased was compromised
on 10.10.2004 and it was decided that the appellant and his wife
(deceased) would stay separate from the family and 4 Acres land
would be transferred in the name of the deceased. Accordingly
appellant transferred 4 Acres land in the name of deceased and
mutation entry No.315 was effected. Since February 2004 appellant
and deceased resided separately in a rented room at Samtanagar,
Majalgaon. After some time they shifted to another room at
Samtanagar near Datt temple in the house of Shri Chavan. At this
(11) Cri.Appeal No. 323/2006
place the alleged incident dated 17.05.2005 occurred resulting into
the death of deceased. Thus, the evidence placed on record by the
prosecution regarding harassment and ill-treatment to deceased
prior to the date of compromise i.e. prior to 10.10.2004 needs no
consideration as the criminal case filed in the Court under Section
498-A of I.P.C. on the basis of those past events, is already
disposed of by the Competent Criminal Court. We have to consider
only the evidence placed on record regarding occurrence at second
rented premises in the house of landlord Shri Chavan in the year
2005.
21. To substantiate the charges against the accused,
prosecution examined total 11 witnesses. Jagannath Shendge (PW-
2) and Chandrakumar Shendge (PW-4) are the two brothers of the
deceased who rushed on the spot immediately after the occurrence
and shifted the deceased to Rural Health Centre, Majalgaon. It is to
be noted that Jagannath Shendge (PW-2) in his evidence nowhere
deposed regarding ill-treatment at the hands of the appellant to the
deceased when she resided separate in the rented room, in the
premises owned by Prakash Chavan. Only Chandrakumar
Shendge (PW-4) who is the resident of Majalgaon and whose house
is at the distance of 100 ft. from the rented room of the appellant
and deceased, deposed before the Court that after settlement when
(12) Cri.Appeal No. 323/2006
the deceased and appellant resided at Samtanagar, he frequently
visited the residence of deceased and at one or two occasions
deceased informed him that her husband maltreated her physically
and mentally by insisting her to reside at the house of her brother.
According to this witness, accused No.7 Shardabai used to instigate
the appellant to harass the deceased. However, this witness has
nowhere whispered a word regarding ill-treatment to deceased by
the appellant on account of demand of any valuable article or
money. Even his allegations regarding maltreatment at the hands of
the appellant are absolutely vague and he has nowhere made it
clear as to in what manner the deceased was physically and
mentally harassed by the appellant. Thus, the evidence of both
these witnesses falls short to prove the guilt of the appellant for the
offence punishable under Section 498-A of I.P.C.
22. In the circumstances, except multiple dying declarations
of the deceased, there remained no evidence on record to prove the
occurrence of incident dated 17.05.2005. The fate of this case
totally revolves around the point whether these three dying
declarations of the deceased are free from all infirmities to base the
conviction without corroboration. Before proceeding to examine the
reliability of these three dying declarations, we must point out that
though much reliance has been placed by learned A.P.P. on the
(13) Cri.Appeal No. 323/2006
history of the patient recorded by Dr. Suryakant Sable (PW-6) in the
M.L.C. Register (Exh.46), on careful scrutiny of this history of the
occurrence recorded in M.L.C. Register (Exh.46), it emerges that
below this history of occurrence, which is in fact recorded in the form
of oral dying declaration of the deceased, signatures of four relatives
of the deceased are obtained by doctor. Out of these four
signatories, two persons are Chandrakumar and Jagannath, who
are the brothers of deceased. This material on record itself
indicates that this history of the occurrence was recorded by Dr.
Suryakant Sable (PW-6) under the pressure of these relatives of the
deceased. Therefore, when this oral dying declaration of deceased
obviously appears to be obtained under the influence of the relatives
of deceased, no importance can be attached to the statement of
deceased recorded in the form of history of occurrence in M.L.C.
Register (Exh.46).
23. For the same reason statement of Dr. Suryakant Sable
(PW-6) that when the deceased was brought to Rural Hospital,
Majalgaon, that time her clothes and the body was reeking with
kerosene, is not worth believable, in absence of examination of
these clothes by Chemical Analyzer. So also, Dr. Satish
Gireboinwad (PW-11) in his evidence has proved the note taken by
him in the case paper of the deceased at S.R.T.R. Hospital,
(14) Cri.Appeal No. 323/2006
Ambejogai that the burns sustained by deceased were homicidal
burns. After careful examination of this note (Exh.69), which is
recorded in the form of history, it emerges that the said information
was given to Doctor by injured as well as by her relatives. In the
heading of the note, it is mentioned as "H/o - herself and relatives".
Therefore, the information furnished by the deceased and her
relatives to Dr. Satish (PW-11) cannot be considered as voluntary
statement of the deceased regarding cause or nature of burn
injuries sustained by deceased.
24. Now we proceed to examine the reliability of the
remaining three dying declarations relied by learned A.P.P. The first
dying declaration is recorded by P.S.I. Pathan (PW-9). From his
evidence it emerges that on 17.05.2005 accused No.1 Vilas
(present appellant) filed report (Exh.57) to Police Station, Majalgaon
about occurrence and informed the police regarding burns sustained
by his wife Ayodhya. P.S.I. Pathan (PW-9) rushed to Government
Hospital, Majalgaon and Dr. Sable (PW-6) certified that the
deceased was in a condition to give statement and thereafter he
recorded first dying declaration (Exh.58) of the deceased. Even the
Executive Magistrate Janardan Jadhav (PW-7) and A.S.I. Lamture
(PW-10) have categorically deposed before the Court that before
recording dying declaration the concerned Medical Officer certified
(15) Cri.Appeal No. 323/2006
that the deceased was in a condition to give statement and only
thereafter they recorded the respective dying declarations of
deceased as per her say. After going through the evidence of these
three officers, who recorded three dying declarations of the
deceased and the evidence of Dr. Sable (PW-6) and Dr. Satish
Gireboinwad (PW-11), who certified that the deceased was in fit
condition to give statement, we are satisfied that the prosecution
has proved that these three dying declarations were recorded by
these three officers when the deceased was in a fit condition to give
statement.
25. We do not notice any illegality or irregularity committed
by these three officers while recording the respective dying
declarations of the deceased. Even the learned Counsel for the
appellant could not point out any illegality committed by these
officers while recording dying declarations of the deceased.
However, on this count alone the Court cannot jump to the
conclusion that these three dying declarations are free from every
infirmity.
26. Heavy burden lies on prosecution to prove that these
three dying declarations are true and voluntary statement of the
deceased. In the background of past matrimonial dispute and filing
(16) Cri.Appeal No. 323/2006
of counter criminal cases, the prosecution has to rule out every
possibility of tutoring to the deceased by her near relatives. As per
the prosecution case itself, after the occurrence when the deceased
shouted, her neighbours rushed on the spot and extinguished the
fire. To prove this part of the occurrence, the prosecution has
examined Shivkanya Chavan (PW-3) who is the landlady of the
deceased and appellant. From the testimony of Shivkanya Chavan
(PW-3) it emerges that on the date of occurrence at about 9.30 a.m.
after hearing shouts of deceased, this witness rushed to the room of
deceased which was found closed, and therefore, this witness
pushed and opened it. When this witness saw the deceased on fire,
she raised alarm and her neighbours Jayashri and Gondebai rushed
on the spot and all of them extinguished fire by pouring water on the
body of deceased. This witness has made clear that the cooking
gas of the deceased was 'on' and this witness switched off the
cooking gas. Thereafter the brothers of deceased rushed on the
spot and they shifted the deceased to the hospital.
27. It is to be noted that from the testimony of Shivkanya
(PW-3) it emerges that her house is abutting to the room occupied
by deceased. Even spot panchnama (Exh.37) and the map which is
part of the spot panchnama shows that two more rooms of two
different tenants are just adjoining to the room occupied by the
(17) Cri.Appeal No. 323/2006
deceased. However, neither Shivkanya (PW-3) nor any other
neighbour have deposed before the Court that on the date of the
incident they heard sound of quarrel between the appellant and
deceased at about 9.00 to 9.30 a.m. Even from the testimony of
Shivkanya (PW-3) it emerges that after extinguishing fire deceased
did not make any complaint against the appellant before this witness
who was immediately available to the deceased after the
occurrence. In natural course the deceased would have definitely
disclosed the occurrence to Shivkanya (PW-3), who was her
landlady and immediate neighbour.
28. On the other hand, the first dying declaration (Exh.58)
recorded by P.S.I. Pathan (PW-9) recites that in her dying
declaration deceased stated all the details since the date of her
marriage in the month of 2003 and every details of maltreatment
given by all accused persons till the compromise of counter case in
the Court. In the dying declaration (Exh.58) the deceased brought
on record altogether new theory regarding doubt expressed by
appellant about the character of deceased and beating to deceased
by doubting her character and thereafter pouring of kerosene and
setting her ablaze. Thus, the total silence on the part of Shivkanya
(PW-3) regarding hearing sound of quarrel or beating to the
deceased at the hands of the appellant, creates doubt regarding
(18) Cri.Appeal No. 323/2006
trueness of the contents of first dying declaration (Exh.58) which
runs into total four pages and which includes all the details since the
marriage of the deceased with the appellant. It is extremely hard to
believe that when the deceased was under agony of burn injuries,
she would disclose all such details before the police officers since
the month of marriage in the year 2003 till the date of occurrence in
the month of May 2005.
29. As the deceased was brought to the hospital by her two
brothers, she was all along in the company of her two brothers.
P.S.I. Pathan (PW-9) has also admitted the presence of 10 to 12
persons near the deceased when he reached near her for recording
dying declaration. As observed above, at the time of admission in
the Rural Hospital, Majalgaon, the Medical Officer Dr. Sable (PW-6)
recorded history of the patient in the form of statement of the
deceased with all details of the occurrence. As observed above,
that history was signed by the brothers and relatives of the
deceased. It means that the relatives of the deceased including two
brothers were taking active part in the recording of statement of
deceased. Thus, all along the presence of the brothers and other
relatives of the deceased with her till her recording of dying
declaration creates probability of tutoring to the deceased, and
therefore, even the first dying declaration (Exh.58) of the deceased
(19) Cri.Appeal No. 323/2006
cannot be treated as true and voluntary statement of the deceased,
which is also not corroborated by the testimony of Shivkanya (PW-
3).
30. Even from the statement of Executive Magistrate
Janardan Jadhav (PW-7), it emerges that before recording dying
declaration of the deceased, he removed all the relatives of the
deceased from the ward. It means that till that time the deceased
was in the company of her relatives. Even from the testimony of Dr.
Satish (PW-11) it emerges that there were 4 to 5 relatives, who
accompanied the deceased when she was brought to S.R.T.R.
Hospital, Ambejogai. Even the case paper of deceased (Exh.69)
shows that the deceased was brought to S.R.T.R. Hospital by her
brother Jagannath (PW-2). As already noted above, the history of
the injuries was given by deceased and her relatives. This material
on record creates every probability that even the second dying
declaration recorded by Executive Magistrate (Exh.52) and third
dying declaration (Exh.63) recorded by A.S.I. Lamture (PW-10) are
tainted due to possibility of tutoring by brothers and other parental
relatives of the deceased. When the prosecution cannot rule out the
possibility of tutoring to the deceased by her brothers and relatives
before recording her dying declarations, these three dying
declarations cannot be relied upon as true and voluntary statement
(20) Cri.Appeal No. 323/2006
of the deceased.
31. Another important aspect is that in the first dying
declaration (Exh.58) the deceased stated that on the date of
incident, her husband, by doubting her character, assaulted her and
thereafter poured kerosene on her body from the can and set her
ablaze. In this statement she did not make it clear by which article
she was set ablaze. However, in the second dying declaration
(Exh.52) , which is recorded at 1.13 p.m., the deceased has placed
on record a different theory that on the date of incident the appellant
asked the deceased to reside at the house of her brother and on her
refusal appellant threatened to kill her and thereafter poured
kerosene on her body and by igniting incense stick on cooking gas,
appellant set her ablaze. It is to be noted that in this second dying
declaration the deceased nowhere stated that accused doubted her
character and assaulted her before pouring kerosene on her body.
On the other hand, in this dying declaration (Exh.52), deceased
made allegations that her husband had illicit relations with accused
No.7 Sharda. The climax is that in the third dying declaration
(Exh.63) which is recorded on 17.05.2005 at S.R.T.R. Hospital,
ambajogai at 6.00 to 6.30 p.m., the deceased brought on record
third theory that on 17.05.2005 at about 9.30 a.m. there was trifling
quarrel in between her and the appellant, and appellant asked her to
(21) Cri.Appeal No. 323/2006
go to her paternal home as he did not like her. Thereafter the
appellant poured kerosene on her body and set her ablaze with the
help of match stick (dkMh ykowu isVowu fnys). In the third dying
declaration (Exh.63) the deceased clearly stated that her neighbour
Shivkanya Chavan (PW-3) and other persons poured water on her
person and extinguished the fire. In other two dying declarations
(Exh.52 and Exh.58) she could not name the neighbours who
extinguished fire. On the other hand, in the second dying
declaration (Exh.52), she clearly stated that, she could not identify
her neighbours who extinguished her fire. In the third dying
declaration (Exh.63), the deceased nowhere disclosed the assault to
her by the appellant by doubting her character before pouring
kerosene on her body. Thus, obviously in these three dying
declarations the deceased has brought on record three different
theories about the actual occurrence of the incident.
32. In the cases of Vallabhaneni Venkateshwara Rao Vs
State of Andhra Pradesh (cited supra) Sharda Vs. State of
Rajsthan (cited supra) Amol Singh Vs. State of Madhya Pradesh
(cited supra), Nallapati Sivaiah Vs. Sub-Divisional Officer,
Guntur, A.P. (cited supra) AIR 2008 Supreme Court 19,
Samadhan Dhudaka Koli Vs. State of Maharashtra (cited supra)
Gopal Vs. State of Madhya Pradesh (cited supra) the Apex Court
(22) Cri.Appeal No. 323/2006
settled the principles of law that when there are multiple dying
declarations which are in conflict with each other on material
particulars, the conviction cannot be based on the basis of such
dying declarations without corroboration by other evidence. Taking
into consideration this trite law, when none of the neighbour of
appellant and deceased including Shivkanya (PW-3), who rushed on
the spot after hearing shouts of the deceased, deposed that
appellant was noticed while hurriedly leaving the spot of the
occurrence, the appellant cannot be connected with the unnatural
death of deceased only on the basis of such dying declarations.
Even by submitting report (Exh.57) to Police Station the appellant
has brought on record that on the date of the incident he left his
residence at about 9.00 to 9.30 a.m. and thereafter he was present
in his shop till he received the news of sustaining burns by his wife.
33. In the circumstances, when these three dying
declarations of the deceased are not free from doubt and when no
corroboration has been placed on record by the prosecution by
examining any witness who had seen the appellant in the room
occupied by deceased at the time of occurrence, only on the basis
of these doubtful dying declarations, the appellant cannot be
convicted either for the offence punishable under Section 302 or for
the offence punishable under Section 498-A of I.P.C. The case
(23) Cri.Appeal No. 323/2006
"Anjanappa Vs. State of Karnataka" (cited supra) relied on by A.P.P.
Is distinguishable on facts because in that case, the dying
declarations were consistent and worth believable.
34. We hold that benefit of doubt goes in favour of the
appellant. Accordingly we pass the following order.
ORDER
1. Criminal Appeal No. 326 of 2006 is allowed.
2. The judgment and order dated 29.03.2006 passed
by Additional Sessions Judge, Majalgaon in
Sessions Case No.39/2005 convicting the appellant
for the offences punishable under Sections 302 and
498-A of Indian Penal Code is set aside.
3. Appellant/accused No.1 Vilas Sukhdeo Thete is
acquitted of the offences punishable under Sections
302 and 498-A of the Indian Penal Code.
4. His bail bonds and surety bonds shall stand
cancelled.
5. The fine amount deposited by appellant befor the
trial Court be refunded to him after appeal period is
over.
6. Under Section 437-A of the Code of Criminal
Procedure, the appellant Vilas Sukhdeo Thete shall
furnish before the trial Court the bail bonds with
surety for the amount of Rs. 15,000/- (Rupees
Fifteen Thousands) to appear before the Supreme
(24) Cri.Appeal No. 323/2006
Court as and when notice is issued to him in respect
of any proceedings filed against this judgment and
the said bail bonds shall remain in force for a period
of six months from today.
( SUNIL K. KOTWAL) ( T.V. NALAWADE)
JUDGE JUDGE
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