Bombay High Court
Pratap Ambarsing Babnawat vs The State Of Maharashtra And Others on 18 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26622-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.707 OF 2022
Pratap Ambarsing Babnawat,
Age 27 yrs., Occ. Education,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
... Appellant
... Versus ...
1 The State of Maharashtra
Through Secretary of Home Department,
Maharashtra State, Mantralaya, Mumbai.
2 Dhanraj Kachrusing Jarwal,
Age 24 yrs., Occ. Agri.,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
3 Sau. Dhawalabai w/o Kachrusing Jarwal,
Age 50 yrs., Occ. Agri.,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
4 Kachrusing Chudaman Jarwal,
Age 56 yrs., Occ. Agri.,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
5 Sau. Nagabai w/o Premsing Ghunawat,
Age 25 yrs., Occ. Agri.,
R/o Raghunathpurwadi,
Tq. Vaijapur, Dist. Aurangabad.
6 Purabai w/o Indersing Ghusinge,
Age 35 yrs., Occ. Agri.,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
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7 Pratap Kachru Jarwal,
Age - Major, Occ. Student,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
8 Durga w/o Kachru Jarwal,
Age - Major, Occ. Student,
R/o Sanjarpurwadi, Tq. Vaijapur,
Dist. Aurangabad.
... Respondents
...
Mr. Shaikh Mujtaba Gulam Mustafa, Advocate for appellant
Mr. S.D. Ghayal, APP for respondent No.1
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 08st DECEMBER, 2023
PRONOUNCED ON : 18th DECEMBER, 2023
JUDGMENT :
( PER : SMT. VIBHA KANKANWADI, J.)
1 Present appeal has been filed by the original informant to
challenge the acquittal of respondent Nos.2 to 8 by learned Additional
Sessions Judge, Vaijapur, Dist. Aurangabad in Sessions Case No.19/2016 on
22.08.2022 from the offence punishable under Section 302 and 498-A read
with Section 34 of the Indian Penal Code, 1860.
3 Cri.Appeal_707_2022_Jd
2 Heard learned Advocate Mr. Shaikh Mujtaba Gulam Mustafa for
the appellant/informant and learned APP Mr. S.D. Ghayal for respondent
No.1 at the stage of admission and perused the material which was before the
trial Court.
3 It has been strongly submitted on behalf of the appellant that the
learned trial Court has not appreciated the evidence properly. Prosecution
had examined in all 11 witnesses to bring home the guilt of the accused and
various documents in the form of panchnama, dying declarations, C.A.
report, Postmortem Report etc. were produced and proved. The defence has
also examined three witnesses, however, it has been wrongly held that there
is no cogent and conclusive evidence to prove that deceased Vandana was
subjected to cruelty by the accused. Further, it is wrongly held that though
Vandana expired due to septicemia due to thermal burns, prosecution has not
proved that it was homicidal. It is to be noted that the First Information
Report is promptly lodged. No doubt, there was no previous complaint about
ill-treatment on the ground of cruelty, but as it happens in every Indian
family that for such harassment or ill-treatment on the count of dowry
nobody rushes to the police to lodge report against husband and his relatives.
There will be every hope that the girl would be treated properly by the
husband and his relatives. There was absolutely no inconsistency in both the
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dying declarations. The first dying declaration was recorded on 26.10.2015
around 9.50 p.m. and the second dying declaration was recorded on
27.10.2015 around 9.45 a.m. In both the dying declarations it is specifically
stated that the husband - accused No.1 Dhanraj had assaulted deceased
Vandana with pipe used for sprinkling pesticides and then poured diesel
which was in the plastic can on her person and ablazed her. In both the
dying declarations she has categorically stated that she was sleeping around
2.00 to 2.30 p.m. on 26.10.2015 due to illness, but husband started asking as
to why she has not gone for plucking cotton. The accused persons were
asking her to do the work in spite of illness, which is also cruelty on their
part. The third dying declaration was recorded by Executive Magistrate
between 11.05 to 11.20 a.m. on 27.10.2015. By relying upon the decision in
Nagabhushan vs. State of Karnataka [(2021) 5 SCC 222] it was submitted
that in case of multiple dying declarations it would be the duty of the Court
to consider each dying declaration independently on its own merit in respect
of its evidentiary value and one cannot be rejected because of the contents in
other. The ratio of the citations placed before him by the accused persons has
been wrongly considered. The harassment to Vandana was on the point that
she has not delivered a male child. When the trial Court wrongly appreciates
the evidence and then it results in injustice to the victim when the accused is/
are acquitted, then the appeal under Section 372 of the Code of Criminal
5 Cri.Appeal_707_2022_Jd
Procedure is definitely maintainable. In the same decision in Nagabhushan
(supra) in an appeal against acquittal the principles have been summarized in
respect of Section 378 of the Code of Criminal Procedure and those principles
would then be applicable to the present appeal under Section 372 of the
Code of Criminal Procedure. When the informant shows that there is some
evidence on record which is acceptable and which could be relied upon and it
is shown that the findings of the trial Court are perverse and, therefore, as
the matter requires re-appreciation and further scrutiny, the appeal deserves
to be admitted.
4 At the outset, in respect of law about appreciation of multiple
dying declarations is concerned, it can be summarized from the decisions in
Khushal Rao vs. State of Bombay [AIR 1958 SC 22], Paniben vs. State of
Gujarat [(1992) 2 SCC 774], Laxman vs. State of Maharashtra [(2002) 6 SCC
710], Ganpat Bakaramji Lad vs. State of Maharashtra [2011 ALL MR Cri.
2249], Surendrakumar vs. State of Punjab [(2012) 12 SCC 120], Jagbir
Singh vs. State (NCT of Delhi) [(2019) 8 SCC 779], Madan v. State of
Maharashtra; [(2019) 13 SCC 464] and Uttar Pradesh vs. Veerapal and
another; [(2022) 4 SCC 741]. Here, the prosecution has come with a case
that the law has been set in motion by filing First Information Report by the
brother of deceased Vandana on 27.10.2015. Informant Pratap Ambarsing
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Babnawat is a 19 years old boy taking education and residing at
Sanjarpurwadi, Tq. Vaijapur. It is to be noted that respondent Nos.2 to 8,
who are the original accused, are also resident of the same village. Vandana
got married with accused No.1 about five years prior to the incident and she
has two daughters. In the First Information Report it is said that the
deceased was subjected to cruelty by the accused on the ground that she had
not begotten male child and husband and father-in-law were saying that she
will not give son and on that count she used to be assaulted. She used to tell
about the said harassment to her parents and sister-in-law i.e. wife of brother.
According to him, Vandana's mother and elder brother had gone to the
matrimonial home of Vandana for persuading and advising the accused
persons on 25.10.2015. Informant says that around 2.30 p.m. on 26.10.2015
his brother-in-law (another brother-in-law) by name Pratap Narsing Jarwal
had received phone call from one Vitthal Kakarwal stating that the house of
Vandana's husband is burnt and, therefore, Pratap Jarwal went to the house
of accused. He asked accused No.1 as it was found that Vandana was lying
on a cot (ckt) in burnt condition that he had set Vandana to fire. Pratap
Jarwal had then taken Vandana to hospital. The other relatives of Vandana
accompanied her. It is also stated that there was oral dying declaration to
Vandana's mother, father and elder brother by Vandana.
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5 The offence under Section 307 read with 34 of the Indian Penal
Code came to be registered at 23.30 hours on 27.10.2015 on the basis of said
First Information Report. Interesting point to be noted is that first dying
declaration, as per the prosecution story, was recorded around 9.50 p.m. on
26.10.2015, however, if we consider the impugned judgment, we are unable
to find out the dying declaration dated 26.10.2015. The copy of which has
been produced by the informant, but it appears that it does not bear the
signature of the scribe. But it appears that from the endorsement of the
Doctor that it was scribed by PSI Mr. Sanjay Khillare of Vaijapur Police
Station. Testimony of PW 7 PSI Mr. Sanjay Khillare would show that he has
deposed only in respect of dying declaration recorded by him on 27.10.2015.
Thus, there is suppression of evidence by him. Even as regards the dying
declaration recorded by him on 27.10.2015, which has been taken in
question and answer form, she has stated that the husband alone was near
her and asked as to why she has not gone for picking cotton. After assaulting
her by means of spray, he poured diesel kept in the house for tractor and set
her to fire. We would also like to say that the thumb impression on this dying
declaration Exh.62 has not been attested by this witness. When Exh.62 came
to be recorded around 9.45 a.m. on 27.10.2015, then why the First
Information Report was not registered on the basis of the said dying
declaration, is a question, which has been left unanswered by the
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prosecution. Prosecution is also relying on the dying declaration recorded by
Executive Magistrate between 11.05 to 11.20 a.m. on 27.10.2015, which has
been marked as Exh.70. In this dying declaration it is said that husband as
well as father-in-law asked her to do agricultural work, which she refused
and then the father-in-law poured five litre kerosene or diesel on her person
and then her husband set her to fire. As regards dying declaration Exh.70 is
concerned, it is silent about the role or allegations of subjecting Vandana to
cruelty in respect of other accused persons. It also does not say anything
what happened or how was their behaviour prior to 26.10.2015. Another
point to be noted is that on the dying declaration Exh.62 recorded by PSI Mr.
Khillare impression of left thumb has been taken, whereas dying declaration
Exh.70 bears the thumb mark of the right hand. The inquest panchnama
shows that both the hands had received burn injuries. As per the Postmortem
Report, there was 8% burns to right upper limb, however, palm was spared
and same is as regards left upper limb. Still why the impression of separate
thumbs were taken has also been explained. Definitely, there is inconsistency
when Exh.62 excludes the role to father-in-law, later on it has been assigned
to father-in-law also in Exh.70. The most important point is, from the village
itself Vandana was accompanied by her parents and elder brother. Possibility
of tutoring in such cases cannot be ruled out. In the First Information Report
Exh.76 it is stated that extra judicial confession by accused No.1 was given to
9 Cri.Appeal_707_2022_Jd
one Pratap Narsing Jarwal. However, prosecution preferred not to examine
him.
6 Prosecution has not examined any person, who could say that he
had reached to the spot immediately after noticing the fire and extinguished
the same. In dying declaration Exh.62 it has been stated that after setting
her to fire, accused No.1 had closed the door of the house and he did not
open it and, therefore, she broke the wall of the house and ran towards
mother-in-law. Thereupon her mother-in-law put a blanket (jx) on her
person and also the water and then she became unconscious. She regained
the consciousness in the hospital. In dying declaration Exh.70 column No.6
has been written as follows :
" 6½ gh ?kVuk ?kMyh rsaOgk ?kVusP;k fBdk.kh dks.k mifLFkr gksrs o R;kauh dk; dsys \
ek>k irh o ek>k lkljk nksUgh- ekb;k [kksyhr th dPph gksrh eh nxM ikMwu
ckgsj vkys o R;kauh eyk nok[kkU;kr vk.kys- "
Translation of the same is as under :
"6) When the incident occurred who were present at the spot
and what they did ?
My husband and my father-in-law both. I came out of the
room, which was raw construction, by removing stone and they
brought me to hospital."
10 Cri.Appeal_707_2022_Jd
It is in fact, not understandable properly, but still if we want to
give a meaning to the same, then she wanted to say that she came out of the
room by removing (though she is saying at one place that it is a raw
construction), but then she was specific in saying that the husband and
father-in-law had brought her to hospital. If we compare it with the spot
panchnama, the situation is not similar. There is absolutely no mention
about damage to wall. In fact, it is made that it is a chhappar and there were
pieces of burnt bamboo, grass and sticks. There was a big pot for water near
the southern wall, in which there was some amount of water. Piece of
Bamboo has been seized, which is stated to be part of roof. Therefore, the
situation at the spot is not supporting the dying declaration.
7 There is absolutely no mention about harassment on the count of
not begetting a son in both the dying declarations. Rather both the dying
declarations are on the count that she has not gone for picking cotton.
8 Interesting point to be noted is that at the time of spot
panchnama a plastic bottle having petrol as well as diesel smell of 1½ litre
was seized. Still another bottle has been shown to be seized under Section
27 of the Indian Evidence Act. It is not the case of the prosecution that
pouring of kerosene was from two different bottles. Rather in her dying
declaration Exh.62 she has stated that diesel from plastic can required for the
11 Cri.Appeal_707_2022_Jd
tractor purposes was poured, which should be big and not the plastic bottle.
Whereas in her dying declaration Exh.70 she says that the father-in-law
brought five litre kerosene or diesel. Therefore, the seizure also does not
support the dying declarations.
9 Accused have examined DW 2 Sandip Tribhuwan. He has
categorically stated that around 3.00 p.m. on 26.10.2015 he noticed flame
from the hut of the accused and, therefore, he ran towards it. He could not
find any person present there, but deceased was running in burning
condition. Therefore, this witness called accused No.1 and his mother, who
had then extinguished the fire. The learned trial Judge has not noted that
the cross-examination of this witness by learned APP has not discarded his
examination-in-chief.
10 PW 5 is the Medical Officer Dr. Sachin Darandale, who had
conducted the autopsy. He has given that deceased had sustained 96% burns.
Though the cause of death appears to be the burn injuries, but his testimony
in isolation will not prove that death of Vandana was homicidal in nature. In
burn cases three possibilities would be there; 1) accidental, 2) suicidal and 3)
homicidal. Duty of the prosecution to rule out the possibility of death by
accident or suicide when it comes with a case that there is murder. The
evidence that has been adduced by the prosecution was not of that quality
12 Cri.Appeal_707_2022_Jd
which will prove the guilt of the accused persons beyond reasonable doubt.
There is absolutely no perversity. This Court will have to consider the ratio
laid down in Nagabhushan (supra), but here, even independent assessment
of Exhs.62 and 70 i.e. both the dying declarations is not inspiring confidence
and not proving the case beyond reasonable doubt. Therefore, by entire re-
assessment we do not find that the accused persons should be asked to face
the appeal when we can consider the case as it is. There is no merit and,
therefore, at the stage of admission itself the appeal deserves to be dismissed.
Accordingly, the appeal is dismissed.
( ABHAY S. WAGHWASE, J. ) ( SMT. VIBHA KANKANWADI, J. )
agd
Signed by: Amol G. Donge
Designation: PA To Honourable Judge
Date: 18/12/2023 16:51:32
