The State Of Maharashtra vs Vimalbai Namdeo Kand And Anr
2021 Latest Caselaw 1825 Bom

                                                           Judgment.Cr.Apeal.208.2004.doc




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO. 208 OF 2004

The State of Maharashtra                          )
(Through Shikrapur Police Station)                       ...Appellant
                                                        (Orig. Complainant)

          VERSUS

1.        Smt. Vimalbai Namdeo Kand,              )
          Age about 58 yrs., Occ. Household,      )
          R/o. Koregaon Bhima, Tal.: Shirur,      )
          District Pune.                          )

2.        Smt. Anita Sahebrao Gavane,             )
          Age about 27 yrs., Occ. Household,      )
          R/o. Koregaon Bhima, Tal.: Shirur,      )
          District Pune.                          )       ...Respondents
                                                          (Orig Accused)

                                   ***
Mr A.R. Patil, APP for the Appellant - State.
Mr J.S. Yadav i/by Mr. V.B. Tapkir for the Respondents.
                                   ***
                               CORAM : PRASANNA B. VARALE &
                                            V.G. BISHT, JJ.

                             RESERVED ON : DECEMBER 15, 2020.
                           PRONOUNCED ON : JANUARY 28, 2021.

JUDGMENT (PER PRASANNA B. VARALE, J)

1. Being aggrieved by the judgment and order passed by the

06th Ad-hoc Additional Sessions Judge, Pune in Sessions Case No.

538/2002, dated 12nd November, 2003, whereby respondents herein Umesh Malani PAGE 1 OF 23

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(Original Accused) were acquitted of the charges for committing offences

punishable under Sections 302, 498A read with Section 34 of the IPC

(for short "IPC"), the present Criminal Appeal is preferred by the

Appellant - State of Maharashtra.

2. Heard learned APP, Mr A.R. Patil, for the Appellant - State

and Mr J.S. Yadav, appearing for the Respondents.

3. It may not be out of place to state at the outset that case of

the prosecution IS largely based on dying declaration.

4. The case of the prosecution can be summarized as follows:

Marriage of one Ashwini Madhukar Kand (victim/deceased)

daughter of Sau. Kamal Rambhau Sathe (PW 2) was solemnized with

Madhukar Kand, resident of Koregaon Bhima, Tq. Shirur, Dist. Pune in

the year 2002. Accused No. 1 - Smt. Vimalbai Kand is the mother of

Madhukar Kand and mother-in-law of the victim. Accused No. 2 - Anita

Gavane is the sister of Madhukar Kand and sister-in-law of victim. It is

the further the case of prosecution that though for initial period of

couple of months victim was treated well subsequently, the victim was

subjected to an ill-treatment and harassment at the hands of accused

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persons. Husband of victim i.e. Madhukar Kand being physically

handicapped person was unable to take up some job and earn his

livelihood at his own. The family of Madhukar Kand was running a

grocery shop and accused no. 1 used to look after the grocery shop. It is

further the case of prosecution that the matrimonial relations of victim

were insisting upon victim to bring an amount of Rs. 50,000/- and for

that demand victim was subjected to an ill-treatment by accused person.

It is further the case of prosecution that on 21.08.2002,

quarrel took place between the victim and accused persons. Accused no.

1 i.e. mother-in-law was alleging that victim stole some food articles from

grocery shop and ate those articles. It was also alleged that accused no. 1

raising the ground that husband of victim Madhukar is not doing any job

and then accused no. 1 poured kerosene on the person of victim and

accused no. 2 threw an ignited matchstick on the person of victim.

Victim suffered the burns and made hue and cry. Neighbours gathered

on the spot. Water was thrown on the person of victim so as to extinguish

fire. Victim was immediately shifted to one Surya hospital in the vehicle

of one A.R. Kashid (PW 4).

5. On admission of victim in hospital, Dr. Vaishali attached to Umesh Malani PAGE 3 OF 23

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the hospital at the relevant time immediately informed the police station

officer at Faraskhana Police Station being a medico legal case. On receipt

of information, PSO promptly registered MLC No. 19/8/2002 and

police head constable S.K. Jadhav (PW 6) who was attached to the said

police station at the relevant time availed the assistance of Special

Executive Magistrate Shri. B.L. Shahane (PW 1) and the duo proceeded

to Surya Hospital for recording the dying declaration. Shri. B.L. Shahane

(PW 1) then requested Dr. Sachin (PW 5) who was in the Surya hospital

at the relevant time to examine the victim and thereafter recorded the

dying declaration of victim. The said dying declaration is at Exhibit 13.

In this dying declaration the above referred incident of quarrel, abuses

and the acts of accused person are stated by the victim. Dying declaration

at Exhibit 13 was then forwarded to the police station officer at

Faraskhana Police station for transmission to Shikrapur police station

along with report. On receipt of these documents Vitthal Pawar (PW 7)

police head constable attached to Shikrapur police station proceeded to

Surya Hospital. Vitthal Pawar (PW 7) then in presence of Dr. Satish (PW

3) obtained report and recorded statement of victim and the same is

treated as first information report. It is interesting to note that in the said

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first information report there is departure from Exhibit 13 and it is stated

in the report that at the time of occurrence while victim was sleeping in

her bedroom, accused persons came their and said that victim always

sleeps and then by alleging that victim failed to bring Rs. 50,000/- for

construction of the house and then after some altercations accused no. 1

mother-in-law poured kerosene from a big lamp on the person of victim

and accused no. 2 sister-in-law threw ignited matchstick on person of

victim, due to which victim sustained burn injuries. On the basis of that

statement i.e. first information report bearing Crime No. 94/2002 was

registered for commission of offence punishable under Section 307,

498A read with 34 of the IPC at Shikrapur police station.

6. API - Suresh Mane (PW 8) who was attached to Shikrapur

police station at the relevant time took over the investigation and as the

investigation agency set in motion Shri. Suresh Mane took further steps

in the investigation. Shri. Mane (PW 8) visited the spot of occurrence,

seized the articles from the spot, drew the necessary panchanamas,

recorded the statement of witnesses. Shri. Mane effected arrest of both

the accused. Accused persons were referred for medical examination after

their arrest. Meantime, victim succumbed to burn injures as such, Shri. Umesh Malani PAGE 5 OF 23

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Mane (PW 8) drew inquest panchanama and the offence was then

converted into an offence punishable under Section 302 of IPC. Dead

body was subjected to postmortem. Shri. Mane (PW 8) collected the

postmortem report and chemical analyzer's report. On completion of all

the necessary formalities and the investigation charge-sheet was filed

against accused persons in the Court of JMFC, Ghodnadi. The offences

are being exclusively triable by the Court of Sessions, learned Magistrate

committed the case to the Court of Sessions. Learned Additional Sessions

Judge framed the charges against accused persons. Accused persons were

subjected to statement under Section 313 of the Cr.P.C. The defence of

the accused persons is of total denial.

7. On appreciation of evidence brought by the prosecution

before the Court below the learned Additional Sessions Judge was of the

opinion that the evidence brought by the prosecution was not cogent,

reliable and sufficient enough to hold accused persons guilty of the

charges leveled against them. Learned Additional Sessions Judge framed

points for consideration and answered those in negative by assigning

detailed reasons to his ultimate opinion and recorded the judgment and

order of acquittal.

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8. On going through the record and on thorough assessment of

the evidence, we are of the opinion that learned Ad-hoc Additional

Sessions Judge committed no error in appreciation of evidence and

arrived at just and proper conclusion.

9. Learned APP vehemently submitted that the prosecution

brought before the Court reliable evidence in the form of oral testimony

of witnesses as well as documentary evidence. It is also submitted by

learned APP that the witnesses have submitted a consistent version of

demand and ill-treatment suffered by the victim. Learned APP further

submitted that the learned Trial Court failed to appreciate the evidence

in its proper perspective and prayed for allowing the appeal.

10. Learned Counsel appearing for the Respondents vehemently

submitted that learned Trial Court properly scanned and assessed the

evidence. Learned Counsel submitted that the evidence brought before

the Court was clearly indicative of the suicidal death of the victim.

Learned Counsel further submitted that the witnesses, more particularly,

Dr. Sachin (PW 5) admitted in the cross-examination that while

recording the history victim itself disclosed that she herself poured

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kerosene on her person and set herself on fire. Learned Counsel further

submitted that the so called dying declaration are clearly unacceptable as

they smack for tutoring. Learned Counsel also submitted that so called

evidence on the aspect of ill-treatment or cruelty is too weak and clearly

unacceptable. Learned Counsel, thus, prayed that appeal be dismissed.

11. The prosecution has examined as many as 8 witnesses in

support of its case.

12. Now we may refer to evidence brought by the prosecution

before the learned Trial Court.

13. Shri. B.L. Shahane (PW 1) was posted in the Court of CJJD

and JMFC, Pune Court no. 9 as an Assistant Superintendent at the

relevant time and at the same time he was also working as Special Judicial

Magistrate. He stated before the Court that on 21.08.2002 at about

04.00 pm when he was present in his house police personnel reached his

house to fetch him for the purpose of recording dying declaration of one

Ashwini Kand who was admitted in Surya Hospital, Pune. He further

stated that he proceeded to Surya Hospital in jeep brought by the police

personnel. On reaching the hospital he contacted the receptionist and by

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disclosing his identity sought for the case papers and requested the

receptionist to call the doctor. Doctor then led Mr. Shahane to burn

ward. Then in presence of Mr. Shahane (PW 1) doctor examined the

patient and told Mr. Shahane (PW 1) that patient is conscious and he can

record statement of patient. Mr. Shahane (PW 1) then obtained

endorsement of the doctor. Then Mr. Shahane made preliminary

inquiries to the patient such as, her name, residence etc. On satisfying

himself that the patient is conscious, Mr. Shahane (PW 1) disclosed his

identity to patient and asked as to how the incident took place. The

patient replied that at about 09.00 am on 21.08.2002 a quarrel took

place between herself and her mother-in-law. On an allegation of the

mother-in-law that she (victim) stole food items from the shop and ate

the same then accused no. 1 mother-in-law poured kerosene on her

person and accused no. 2 sister-in-law ignited matchstick and threw on

her person. She raised hue and cry. Neighbours gathered their and threw

water on her person to extinguish fire. Mr. Shahane (PW 1) then states

that he had scribed narration of patient in her words and had obtained

left toe impression on it. On completion of her narration Mr. Shahane

(PW 1) sought endorsement of the doctor.

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Now it is important to note that in the cross-examination Mr.

Shahane (PW 1) stated that when he reached the hospital relatives of the

patient were present near her and he asked them to go outside. Mr.

Shahane (PW 1) further admitted in the cross-examination that on going

through the case paper he found that written history was given by the

patient wherein patient stated that after a quarrel with mother-in-law, she

herself had poured kerosene on her person and set herself on fire. This

admission assumes much importance.

14. Now we may refer to evidence of Mr. Sudhakar Jadhav (PW

6) PHC attached to Faraskhana police station at the relevant time. Mr.

Sudhakar (PW 6) stated before the Court that on 21.08.2002 he was on

duty at Faraskhana police station and on receipt of information that one

Ashwini is admitted in burn condition at Surya Hospital he immediately

proceeded their. He further stated that on finding that the patient was in

speaking condition he immediately approached to Special Judicial

Magistrate Mr. Shahane and took him to Surya Hospital for recording

dying declaration. He further stated that the dying declaration Exhibit.

13 recorded by Mr. Shahane was handed over to him. The same was then

submitted to police inspector of Faraskhana police station along with his Umesh Malani PAGE 10 OF 23

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report.

It is again interesting to note that in the cross-examination

Sudhakar Jadhav (PW 6) stated that he made an inquiry with the patient

in view of the information received by him and he further stated that the

information that was received by him from PSO was that the patient had

poured kerosene on her person and set herself on fire. Then again it is

interesting to note that in the cross-examination Sudhakar Jadhav (PW

6) stated that he brought police jeep to Court no. 9 to fetch Special

Judicial Magistrate. He further stated in the cross-examination that Mr.

Shahane had accompanied him after disposal of his work. He further

stated in the cross-examination that he had been to Court no. 9 at about

04.30 pm and left Court no. 9 for Surya Hospital at about 05.45 pm.

Then Sudhakar (PW 6) then stated in the cross-examination that it did

not happen that he had been to Kothrud to fetch Shri. Shanae and

further stated that after recording dying declaration he had reached Shri.

Shahane at his house at Kothrud.

It may not be out of place to state here that there is material

discrepancies in the version of these two witnesses. As stated above, Mr.

Shahane (PW 1) stated that on 21.08.2002 at 04.00 pm he was present

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in his house and police had come their to fetch him for the purpose of

recording dying declaration whereas Sudhakar Jadhav (PW 6) in his

cross-examination stated before the Court that he went to Court no. 9 to

fetch Mr. Shahane and after disposal of his work he left Court no. 9 for

Surya hospital at about 05.45 pm along with Mr. Shahane (PW 1).

15. Sau. Kamal Rambhau Sathe (PW 2) is mother of victim

Ashwini. Kamal Sathe (PW 2) stated before the Court in her

examination-in-chief that Ashwini was given good treatment by her in-

laws during the first three months of her marriage and thereafter accused

persons started abusing Ashwini. It is further stated by Kamal (PW 2)

that during her visits to her parental home Ashwini used to tell about the

abuses and quarrels and Kamal (PW 2) further stated that she advised

Ashwini to ignore such treatment of in-laws. It is stated by Kamal (PW 2)

that Ashwini stayed with her parents for nearly 7 months. Madhukar

husband of Ashwini then came to fetch Ashwini. She further stated that

she told Madhukar about the behaviour of accused persons and

requested him to convince them. Then she stated that on 21.08.2002 at

about 02.00 pm she received a telephonic message that Ashwini

sustained burns and admitted in Surya hospital hence she along with her Umesh Malani PAGE 12 OF 23

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husband and son immediately rushed to Pune. They reached Surya

hospital by 03.00 pm and met Ashwini. Then victim told to PW 2 that

her mother-in-law came their and stated that she always sleeps and does

not do any work. Her sister-in-law also came their and both of them

started abusing Ashwini. Then mother-in-law poured kerosene on her

person and sister-in-law by igniting matchstick set her on fire. Ashwini

then raised shouts. Neighbours gathered their and she was then admitted

to Surya Hospital.

In the cross-examination Kamal (PW 2) admitted that the

financial condition of family of accused is good. She further stated in the

cross-examination that in-laws of Ashwini are having their own shop,

agricultural land and house. Then she stated that marriage of Ashwini

was settled by one Sukhdev Kotwal who happens to be son-in-law of

accused no. 1. Then she stated that her relatives reside within radius of

20 k.m. around her village. She further admitted that Ashwini was

educated upto 8th standard and was fair looking girl whereas Madhukar

was a handicaped person. Kamal (PW 2) then stated that accused person

though spent money for treatment of Ashwini in Surya Hospital she had

also contributed Rs. 10,000/- towards the treatment. Then she admitted

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that she was on almost daily visiting terms to Sukhdev Kotwal. Then she

further admitted that police reached Surya Hospital at about 06.00 pm.

Kamal (PW 2) then stated that Ashwini had sustained burns to her chest,

both hands etc. Ointment was already applied to her burn injuries.

16. Dr. Satish Terdare (PW 3) was attached to Surya Hospital at

the relevant time. Dr. Satish (PW 3) deposed before the Court that on

22.08.2002 while he was present as a resident medical officer in Surya

Hospital and was performing his night duty one patient Ashwini was

admitted in the burn ward. At about 1.00 am police head constable from

Shikrapur Police station visited him in relation to record the statement of

patient. He had examined the patient and found that patient was

conscious. Then the statement of patient was scribed in presence of Dr.

Satish (PW 3). On completion of the statement he obtained right thumb

impression of patient, at that time also patient was oriented and

accordingly Dr. Satish (PW 3) certified it in the statement. Document i.e.

certificate Exhibit 16 was shown to him. He admitted that the said

certificate is in his handwriting and that bears rubber stamp of Surya

Hospital.

In the cross-examination, Dr. Surya (PW 3) stated that both Umesh Malani PAGE 14 OF 23

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hands of the patient were having burns. Then he admitted in the cross-

examination that in case ointment is applied to the skin it cannot bear

ink for its impression.

17. Anil Kashid (PW 4) is the person in whose vehicle victim

was shifted to the hospital. This witness in his cross-examination stated

that while carrying Ashwini to Surya Hospital he made inquiry with

Ashwini on the way as to how she sustained burns to which Ashwini

replied that an altercation took place between herself and mother-in-law

and she herself poured kerosene on her person and set herself on fire.

This witness is declared hostile and therefore, is of no help to the

prosecution.

18. Dr. Sachin Patil (PW 5) is another medical officer who was

attached to Surya Hospital. He stated before the Court that on

21.08.2002 he was attending his duty in Surya Hospital in second shift.

Then he states that Ashwini was already admitted in the hospital and she

was in burn ward ICU. He further stated that Ashwini had sustained his

burns to the extent of 70%. Then he states that Special Judicial

Magistrate reached hospital at about 06.30 pm for recording the

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statement of patient. He took Special Judicial Magistrate to the patient

Ashwini then he examined the patient as to ascertain whether the patient

was in condition to give statement. He found that the parameters,

namely, BP, pulse were normal and her vital senses were okay. Thus on

assessment and finding that the patient was in a fit state to make

statement, he put his endorsement on statement Exhibit 13 along with

date and time. He then states that the Magistrate asked the relatives of

the patient to leave the ward and then in his presence statement of

patient was recorded. On completion of the statement he again examined

the patient and on finding that the patient was fully oriented and

conscious, made endorsement on the statement.

In the cross-examination, Dr. Sachin Patil (PW 5) admitted

that at the time of admission of the patient doctor usually seek for the

injuries of patient. He further admitted in the cross-examination that in

the original medical case papers patient had disclosed history and had

informed that there was dispute between herself and her mother-in-law

at about 09.30 am and she herself poured kerosene on her person and set

herself on fire. He further admitted in the cross-examination that the

patient had reiterated the same history at 02.30 pm before him when he

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had examined patient. Then he further admitted in the cross-

examination that due to 70% burns the patient was having severe pain

and was not coherent in her speech. Then he stated in cross-examination

that as both the hands of patient were having complete burns and it was

not possible to obtain thumb impression, impression of her toe was

obtained at Exhibit 13. He further admitted that in the certificate

endorsed by him the words "patient is physically fit and having mental

capacity to give statement were missing". He further admitted that there

was no note in the medical case papers that the statement i.e. dying

declaration Exhibit 13 is recorded in his presence.

19. Perusal of postmortem report which is admitted by the

defence show that the victim sustained 80% burn superficial to deep

burns. The affected portion by burns was the entire body and the

postmortem report refers to the burns such as, head, neck, face 4%, right

upper limb 9%, left upper limb 9%, anterior trunk 16, posterior trunk

18%, right upper limb 10% and left lower limb 18% i.e. total 80%

superficial to deep burns.

20. Vitthal Pawar (PW 7) police head constable was attached to

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Shikrapur Police Station at the relevant time and stated before the Court

that on 22.08.2002 while he was present in the police station, Shikrapur,

the police station officer directed him to go to Surya Hospital for

recording report of patient admitted in burn ward and accordingly he

proceeded to Surya Hospital. He stated before the Court that he

introduced the complainant himself and then on assurance of doctor that

he can record the statement of patient he recorded the statement of

Ashwini as per her say. He stated that he had obtained thumb impression

of right hand of complainant and said statement bears endorsement of

the doctor. He further stated that he handed over the complaint to PSO

and on the basis of complaint offence vide C.R. No. 94/2002 was

registered.

It would be useful to note here that this witness states before

the Court that he had obtained thumb impression of right hand of the

complainant whereas, Dr. Sachin Patil (PW 5) admitted before the Court

in his cross-examination that both hands of the patient were burned and

it was not possible to apply ink so as to take thumb impression. Then in

the cross-examination this witness admitted that before writing down the

complaint he had not obtained certificate of the doctor and only the

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signature was obtained on the report. In the cross-examination he further

admitted that when he reached the ward relatives of the complainant

were present and he had asked relatives to go out of the ward. He stated

in the cross-examination that he had obtained one thumb impression of

complainant on completion of writing of the complaint and further

admitted that the hands of the complainant were having burns. He also

admitted that there was a sufficient blank space on the page and in spite

of blank space being available he failed to obtain certificate of the doctor

allowing him to record the complaint.

21. Though in our earlier part of the judgment we have referred

to the steps taken by this witness, i.e. Suresh Mane (PW 8) IO we may

now refer to other aspects of the version of Suresh Mane (PW 8). he

admitted that in the inquest panchanama there is reference about the

quarrel between the victim and her mother-in-law and the victim herself

poured kerosene on her person and set herself on fire.

22. While appreciating the evidence, learned Additional Sessions

Judge rightly observed that there are inherent discrepancies in the dying

declaration. As stated above, Dr. Sachin Patil (PW 5) admitted in the

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cross-examination that in the case papers while referring to the history it

was specifically stated that there was a quarrel between the patient and

her mother-in-law and the victim herself poured kerosene on her person

and set herself on fire. Learned Counsel for the accused while making

submissions before the Trial Court was justified in submitting before the

Court that the version disclosed in the dying declaration that the mother-

in-law poured kerosene on the person of victim from one big lamp and

the other accused i.e. sister-in-law threw an ignited matchstick on the

person of victim is unacceptable. Considering the fact that the victim was

comparatively young lady and she could have certainly made an attempt

to resist the act of throwing kerosene or could have made an attempt to

run away for saving her life.

23. Learned Additional Sessions Judge was justified in drawing

support to the conclusion that the death of victim was suicidal one in

view of the history reflected in the case papers and also reflected in the

version of Dr. Sachin Patil (PW 5). In addition to this, the support was

rightly drawn from the intimation received by the Faraskhana Police

Station. It has come in the evidence that an intimation provided to

Faraskhana police sation was about suicide by the victim. Learned Umesh Malani PAGE 20 OF 23

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Additional Sessions Judge was also justified in not placing reliance on

these dying declarations implicating accused persons on account of

relatives of victim present in the ward before recording dying declaration.

It has come in the evidence that the relatives reached Surya Hospital at

about 03.00 pm and the dying declarations were recorded at about 06.00

pm and on wards. Thus, for sufficient period the relatives were in

company of victim and as such possibility of tutoring the victim at the

instance of the relatives cannot be ruled out. Learned Additional Sessions

Judge was also justified in observing that the allegations of ill-treatment

and harassment on account of demand is also an afterthought theory

because these allegations were not made when the dying declaration i.e.

Exhibit 13 was recorded. Dying declaration Exhibit 25 was recorded on

the say of victim on 01.40 am on 22.08.2002. At the cost of repetition,

we state that the relatives reached in the hospital on 21.08.2002 at about

03.00 pm and all along for more than 3 hours before recording Exhibit

13 dying declaration they were in company of the victim. It has come in

the evidence that marriage of the victim was settled by son-in-law of

accused no. 1. It has also come in the evidence that mother of victim was

visiting son-in-law i.e. Sukhdev Kotwal almost daily. In view of these

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facts no explanation is coming forth as to if there was an ill-treatment

caused to the victim. Why mother of victim Kamal (PW 2) made no

attempts to seek intervention of Sukhdev Kotwal and in a question put to

Pw 2 she denied of any such attempt being made. It has also come in the

evidence that the victim spent very short time in her matrimonial home

after her marriage till her unfortunate death, for most of the time she was

in her parental home. It has also come in the evidence that the victim was

educated upto 8th standard and was fair looking girl whereas her husband

was physically handicapped person. It has also come in the evidence that

for the initial period of 3 months victim was treated well in her

matrimonial home and thereafter for most of the time she was in her

parental home. Thus, the possibility of the victim feeling depression

cannot be ruled out. Learned Additional Sessions Judge was also justified

in placing reliance on the judgments reflecting principles to test the

dying declaration for its acceptability. Learned Additional Sessions Judge

was also justified in making following observations :

21. It is further interesting to note that no only P.W. 1, 5 and 6 etc. have admitted in their cross- examinations that at the time of recording of D.D.

Exh. 13, 25 they were aware about the attempt to

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suicide disclosure made by the victim but in that regard they made no query with the victim for changing the version. P.W. 1 has admitted that when he went to the victim a commotion was there but he cannot say if the victim was tutored by her relatives.

24. Thus, on going through the evidence brought before the

Court thoroughly, we are of the opinion that the learned Additional

Sessions Judge committed no error in in appreciation of the evidence and

arrived at just and proper conclusion. The judgment is based on sound

reasoning and neither perverse nor calls for any interference at the hands

of this Court. Appeal, thus, being merit-less deserves to be dismissed.

Accordingly, Criminal Appeal is dismissed.

( V.G. BISHT, J.)                                (PRASANNA B. VARALE, J.)




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