Uttam S/O Yeshwantrao Vaghole vs The State Of Maharashtra And ...
2021 Latest Caselaw 2023 Bom

                                                                  2APEAL799.2018
                                        -1-

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD.

                        CRIMINAL APPEAL NO. 799 OF 2018

 Uttam S/o Yeshwantrao Vaghole                                          ...Appellant

          Versus

 The State of Maharashtra & Ors.                                    ...Respondents

                                   .....
 Shri. N. B. Jadhav, Advocate h/f Shri. G. P. Shinde, Advocate for the
 appellant
 Shri. S. G. Sangle, APP for respondent No. 1
                                   .....


                                 CORAM : RAVINDRA V. GHUGE
                                                AND
                                         B. U. DEBADWAR, JJ.

                                 DATE         : 01st FEBRUARY, 2021

 PER COURT : -

1. By this appeal, the appellant-father of the deceased

victim (married daughter) seeks to challenge the Judgment and Order

dated 31.08.2016 delivered by the learned Sessions Judge, Nanded in

Sessions Case No. 49 of 2012, vide which acquittal has been granted

to all the accused.

2. We have considered the strenuous submissions of the

learned Advocate for the appellant and the learned Prosecutor on

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behalf of the respondent No. 1 - State. With their assistance, we have

gone through the record.

3. The appellant, who is the father of the deceased married

daughter Sujata w/o Rahul Govande, has preferred this appeal. It is

stated that, this appeal at the behest of the father is perfectly

maintainable under Section 372 of the Code of Criminal Procedure

(hereinafter referred to as 'Cr.P.C.') keeping in view that the

definition of 'victim' under Section 2(wa) of the Cr.P.C. would mean a

person who has suffered any loss or injury caused by reason of the act

or omission for which the accused person has been charged and the

expression 'victim' includes his or her guardian or legal heir. The

appellant-father claims to have suffered a loss on account of the

alleged homicidal death of his daughter.

4. The appellant has contended that this case rests purely

on circumstantial evidence. The deceased got married to accused

no.1 - Rahul on 12.05.2008. Two daughters were born from the said

marriage. The husband was an Alcoholic and used to repeatedly beat

the deceased under the influence of liquor. The appellant had paid

Rs. 50,000/- to the in-laws of his daughter which was by way of

fulfillment of the demand for dowry. All the accused i.e. husband,

2APEAL799.2018

father-in-law, mother-in-law, brother-in-law and two sisters of her

husband were residing together.

5. On 08.09.2011, the husband came to the house in a

drunken state and started beating the deceased with a stick in

between 07:00 pm and 07:30 pm. After things subsided, at around

09:00 pm, the deceased was breastfeeding the second baby. It is the

case of the prosecution that, the husband poured kerosene on the

deceased and set her ablaze. She suffered 52% burn injuries and was

admitted in the hospital. It was also the case of the prosecution that

the mother-in-law and the father-in-law poured kerosene on her from

the kerosene lamp available in the room, which was under

construction, and her mother-in-law set her on fire. The victim put

away her child so as to avoid the child getting burnt and the rest of

the accused prevented her from leaving the room. She raised shouts

and the neighbours rushed to her rescue. By that time, she fell down

on a heap of sand which was in the said under construction room. In

the presence of the neighbours, her husband started pretending to

extinguish the fire. The victim died on 12.09.2011.

6. As is obvious, this case rests purely on the dying

declarations and circumstantial evidence and it is trite law, that in

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cases of acquittal and more so, when cases are based on

circumstantial evidence, there has to be a strong evidence and prima

facie, the chain of circumstantial evidence has to be complete for this

Court to admit the appeal.

7. The deceased is said to have executed three written dying

declarations. The first dying declaration (Exh.110) was recorded by

the DW1 - Mohd. Ibrahim Mohd. Ayyub Shaikh, Police Sub-Inspector,

Police Station, Bhokar. He has deposed that, after the Medical Officer

certified that the victim was fit, conscious and oriented to make a

dying declaration, DW-1 entered the ward to record the statement.

DW1 noticed the relatives from the in-laws side near the patient. He

made all these relatives leave the ward and then recorded the

statement. The victim stated that, she sustained burn injuries since a

kerosene lamp fell on her and she has no complaint against any

relative. The learned Advocate for the appellant has strenuously

canvassed that, this dying declaration has to be seen with suspicion

since the statement was recorded immediately after the relatives of

the victim were asked to leave the ward. It was the in-laws and the

husband who had admitted the deceased in the hospital and there is

every possibility that she must have been tutored.

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8. The second dying declaration was recorded on

10.09.2011 at 11:30 am, by the Special Magistrate at Exh.72. In the

said statement, undisputedly the victim said that the husband beat

her, then poured kerosene on her from the kerosene lamp and set her

on fire.

9. The third dying declaration was recorded on 10.09.2011

at 09:00 pm at Exh. 75. This dying declaration was recorded by PW5,

who is the Police Head Constable from Police Station Limbgaon. The

victim stated her full name and that she was educated upto the 10 th

std. Her husband used to always beat her and used to demand

Rs.50,000/- to be brought from her parents for purchasing an

Auto-rickshaw. He used to constantly threaten her that if money is

not brought, he would divorce her. On 08.09.2011, he came home

drunken and again started beating her. After beating her mercilessly

with a long stick (osGq dkBh) in between 07:00 pm to 07:30 pm, the

father-in-law and the mother-in-law came and while she was

breastfeeding the second daughter, poured kerosene on her and set

her on fire. After she started screaming, people from the

neighbourhood gathered and the husband pretended to be making an

attempt to save her. In the concluding statement, she has stated that

2APEAL799.2018

even her brother-in-law and two sisters of her husband were also

involved in her miseries.

10. We are aware that, if dying declarations suffer

discrepancy and do not inspire confidence, the appeal against

acquittal need not be entertained. However, we cannot ignore that

Section 304-B of the Indian Penal Code provides for punishment to

the persons demanding dowry and who have caused a dowry death of

the daughter-in-law within seven years of the marriage and the

demand for dowry was preceding such burning. Section 304-B of the

IPC reads as under : -

[304-B. Dowry death.-- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.--For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]

11. We are of the view that, had the marriage been more

than seven years old or if the demand for dowry was not soon before

the infliction of cruelty and death of the deceased, this appeal would

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not have been entertained considering the contradictory three dying

declarations. Nevertheless, as the fact situation emerging before us

clearly indicates that the victim suffered an unnatural death due to

burning within three years and four months of her marriage and the

demand for dowry of Rs. 50,000/- for purchasing an Auto-rickshaw

for the husband also appears to be made soon before her death, that

we find that this appeal deserves to be admitted. It is also revealed

from the PM report and the testimony of PW6-Dr. S. H. Bhosle,

Associate Professor, Department of Forensic Medicine, Government

Medical College, Aurangabad, who was the Autopsy Surgeon, that the

victim was two months pregnant with her third child.

12. As such, considering the law laid down by the Hon'ble

Apex Court in the matter of Rameshwar Dass v. State of Punjab and

Anr reported in AIR 2008 SC 890, this Appeal is Admitted only to the

extent of respondent no. 2 - Rahul Gautam Govande (husband),

respondent no. 3 - Gautam Datta Govande (father-in-law) and

respondent no. 4 - Arunabai Gautam Govande (mother-in-law). This

appeal is entertained under Section 372 r/w Section 378 (2) (b) of

the Cr.P.C. We accordingly issue a warrant u/s. 390 directing that the

above mentioned accused be arrested and be produced before the

trial Court which is the Sessions Court at Nanded. We leave it open

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to the trial Court to decide whether the accused should be committed

to the prison pending the disposal of this appeal or admit them to bail

under Section 390 of the Cr.P.C.

13. The present appeal, to the extent of respondent no. 5 -

Ritesh s/o Gautam Govande, respondent no. 6 - Ramabai Bhagwan

Manwar and respondent no. 7 - Prabhudha Parmeshwar Bhokre,

stands dismissed.

        [ B. U. DEBADWAR ]                   [ RAVINDRA V. GHUGE ]
                JUDGE                                JUDGE




 SG Punde