Bombay High Court
The State Of Maharashtra vs Nilesh S/O. Tukaram Sable And ... on 9 November, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:24500-DB
-1- ALS.14.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 14 OF 2020
The State of Maharashtra,
Through Asstt. Police Inspector,
Police Station, Murud,
Tq. & Dist. Latur ... Applicant
Versus
1. Nilesh S/o. Tukaram Sable,
Age : 23 years, Occu. : Agriculture,
2. Tukaram S/o. Sitaram Sable,
Age : 55 years, Occu. : Agriculture,
3. Bhamabai W/o. Tukaram Sable,
Age : 50 years, Occu. : Household,
All R/o. Ekurga, Tq. & Dist. Latur. ... Respondents.
(Orig. Accused)
...
Mr. S. D. Ghayal, APP for Applicant - State
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 03rd NOVEMBER, 2023
PRONOUNCED ON : 09th NOVEMBER, 2023
ORDER (PER ABHAY S. WAGHWASE, J.) :
1. Present leave application is at the behest of State, as it is
aggrieved by the judgment and order of acquittal passed by the learned
Sessions Judge, Latur dated 04.11.2019 in Sessions Case No. 100 of 2014
acquitting respondents-accused from the charges under section 302 read
with sections 109 and 323 read with section 34 of Indian Penal Code
(IPC).
-2- ALS.14.2020
2. Learned APP pointed out that, above charge was framed
against the present respondents and thorough investigation revealed their
complicity. He further pointed out that in support of its case prosecution
had examined 13 witnesses. That, there were two dying declarations, the
same were consistent. There was no infirmity in the same, however,
learned trial court has refused to accept such evidence and has
disbelieved the prosecution story and its evidence. According to learned
APP, there is improper appreciation of evidence. That, merely for
delivering girl child, victim was maltreated and finally they have set her
to fire. Incident had taken place in the house in presence of respondents,
and same has not been denied and therefore, according to learned APP,
there was overwhelming evidence and as such learned trial court ought
to have recorded guilt, but it has failed to do so and having acquitted
accused respondents, State intends to prefer appeal and hence leave is
sought for.
3. In the light of above submissions, we have gone through the
evidence which shows that case of prosecution is rested on testimonies of
13 witnesses. Even defence has adduced testimonies of 3 witnesses.
Admittedly, case is based on dying declarations which are recorded by
PW3 Deelip Mulje, Naib Tahsildar and PW5 ASI Narayan Ranzunjare.
The dying declarations are at Exhs.127 and 84. It is noticed that deceased
suffered 93% burns.
-3- ALS.14.2020
4. The sum and substance of prosecution case is that, husband
and in-laws were annoyed on deceased for delivering girl child. Her
dying declaration is to that extent and she has informed that on
18.05.2014 around 11:30 p.m., parents-in-law picked up quarrel,
mother-in-law poured kerosene, father-in-law ignited matchstick and set
her on fire and husband ran away. On being taken to hospital, her two
dying declarations are recorded.
5. First dying declaration is at Exh.84 recorded by PW5 ASI
Ranzunjare, who was attached GMCH Latur police chowky. It is recorded
at between 11:00 to 11:30 p.m. on 18.05.2014. In such dying declaration
it is informed that, around 21:00 hours, husband and parents-in-law were
upset for delivering girl child. Mother-in-law of deceased poured
kerosene, father-in-law ignited matchstick and husband ran away. Her
paternal uncle shifted her to the hospital. Exh.84 seems to be point of
time as is recorded in the same night.
6. Second dying declaration is at Exh.127 recorded by PW3
Deelip Mulje, Naib Tahsildar, which is in question answer form.
Regarding the occurrence, it is her version that on 18.05.2014, mother-
in-law, father-in-law poured kerosene and ignited her and husband ran
away. At the first instance only as girl child was born, her husband and
in-laws ill treated her and picked up quarrel with her.
-4- ALS.14.2020
7. PW2 Deepak seems to be independent witness and he claims
that while he was sitting below tamarind tree, he heard shouts at around
11:30 p.m., and so he ran with his companion Parmeshwar and saw
husband and parents-in-law standing in the courtyard of their house and
Pooja was on fire. He claims that he doused the fire and went to the
house of Nagorao Patil for arranging vehicle and then she was shifted to
hospital. He claims that he made inquiry with her and she stated that
husband and in-laws picked up quarrel for delivering female child and
thereafter mother-in-law poured kerosene on her person and father-in-
law ignited matchstick and set her on fire.
8. Prosecution seems to have examined relatives, who claimed
that they have also received oral dying declaration.
9. Learned trial Judge has doubted both the dying declarations,
disbelieved the evidence of witnesses who claimed to have received oral
dying declaration and even testimonies of defence witnesses are refused
to be accepted. Scribes of both dying declarations and doctor who gave
certification are examined by prosecution. PW3 Deelip Mulje, Naib
Tahsildar claims to have asked relatives of deceased to go out before
recording dying declaration, however, learned trial Judge has opined
that, there is presence of relatives of deceased and therefore the aspect of
-5- ALS.14.2020
voluntariness comes under shadow of doubt. Examining and certifying
doctor seems to have issued certificate of fitness, but learned trial Judge
seems to have opined that deceased has suffered 93% burns and thereby
doubt is entertained about her capacity to give dying declaration.
Consequently, prima facie, we are of the opinion that, above
evidence needs to be re-appreciated and re-analyzed. Therefore, for
above reasons, we are inclined to grant leave as prayed for. Hence, we
proceed to pass following order :-
ORDER
(i) Application stands allowed.
(ii) Leave is granted to the prosecution to file Appeal.
(iii) Registry to register the Appeal.
(iv) Appeal stands admitted.
(v) Call record and proceedings.
(vi) Action under section 390 of the Code of Criminal
Procedure be taken against the respondents to the
satisfaction of the trial court.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
Signed by: Manoj Tandale
Designation: PA To Honourable Judge
Date: 09/11/2023 14:50:46
