Bombay High Court
Sau Chhaya Bhausaheb Bhingardive ... vs The State Of Maharashtra on 30 October, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:23280-DB
appeal-299.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.299 OF 2016
1) Sau. Chhaya Bhausaheb Bhingardive,
Age-28 years, Occu:Household,
R/o-Mhada Colony, Room No.57,
Tapovan Road, Ahmednagar,
2) Smt. Kamal Babanrao Patole,
Age-56 years, Occu:Household,
R/o-Mhada Colony, Room No.91,
Tapovan Road, Ahmednagar.
...APPELLANTS
(Ori. Accused Nos. 2 and 4)
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. Saeed S. Shaikh Advocate for Appellants.
Mr. S.D. Ghayal, A.P.P. for Respondent-State.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE OF RESERVING JUDGMENT : 9 th OCTOBER 2023
DATE OF PRONOUNCING JUDGMENT : 30th OCTOBER 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Appeal has been filed original accused Nos.2 and 4
appeal-299.16
in Sessions Case No.220 of 2013, who were held guilty for the
offence punishable under Section 302, 498-A read with
Section 34 of the Indian Penal Code, along with original accused
No.1 - Raju @ Rajendra Baban Patole.
2. Before we turn to the disputed facts, there are certain
admitted facts which we want to place on record. Original
accused Rajendra is the brother of appellant No.1 and son of
appellant No.2. Accused No.1 Rajendra was married to one Maya
on 18th December 2007. Maya and accused No.1 have daughter
by name Shrawani, born on 8 th December 2008. Maya had
received burn injuries on 14th April 2013 and therefore, she came
to be admitted to Civil Hospital, Ahmednagar. After the MLC was
given, Special Judicial Magistrate, Ahmednagar Mr. Gorakshnath
Ghugarkar was informed and requested to take her dying
declaration. He has recorded the dying declaration of Maya
between 3.00 to 3.30 p.m. on 15th April 2013. Thereafter, it
appears that ASI Abdul Kalim Ibrahim Raje, attached to
Tophkhana Police Station, Ahmednagar, recorded second dying
declaration of Maya around 4.15 p.m. on 15 th April 2013 itself
and on the basis of this second dying declaration, Exhibit-38, the
offence came to be registered vide Crime No.181 of 2013 for the
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offence punishable under Section 307, 498-A, 323, 504, 506
read with Section 34 of the Indian Penal Code.
3. After the offence was registered, the accused came to be
arrested. Panchnama of the spot was executed. Statements of
the witnesses were recorded. However, thereafter on 30 th April
2013 Maya succumbed to the injuries and therefore, inquest
panchnama was executed and the dead body was sent for
postmortem. Offence under Section 302 of the Indian Penal Code
came to be added. The seized articles were sent for chemical
analysis. After completion of the investigation, charge-sheet was
filed against in all seven accused persons.
4. After committal of the case, the trial was conducted and
prosecution has examined in all eleven witnesses to bring home
the guilt of the accused. Defence has also examined two
witnesses. During the course of trial, original accused No.3 -
Sau. Savita Machhindra Salve reported to be dead and therefore,
the case abated against her. She was the sister of original
accused No.1. The case of the prosecution rested on two dying
declarations and the alleged oral dying declaration to PW-1
Santwan Badekar, who is the father of the deceased Maya.
Original accused Nos.5, 6 and 7 are the brothers of original
appeal-299.16
accused No.1, however, they have been acquitted by the learned
trial Judge from all the charges. Original accused No.1 Rajendra,
original accused No.2 (present appellant No.1) and original
accused No.4 (present appellant No.2) were held guilty of the
offence punishable under Section 302 read with Section 34 of
the Indian Penal Code and each one of them were sentenced to
suffer rigorous imprisonment for life and to pay fine of Rs.5000/-
each, in default, to suffer simple imprisonment for one year.
Further, they were held guilty under Section 498-A read with
Section 34 of the Indian Penal Code and each one of them was
sentenced to suffer rigorous imprisonment for two years and to
pay fine of Rs.3000/-, in default to suffer simple imprisonment
for two months. Out of the fine amount, an amount of
Rs.20,000/- was directed to be paid as compensation to PW-1
Santwan Badekar under Section 357(1) of the Code of Criminal
Procedure. As aforesaid, present Appeal is by original accused
Nos.2 and 4 only.
5. Heard learned Advocate Mr. Shaikh appearing for the
appellants and learned APP Mr. Ghayal appearing for the
respondent - State.
appeal-299.16
6. Learned Advocate for the appellants would submit that the
learned trial Judge has not appreciated the evidence properly.
The alleged incident is stated to have taken place around 10.00
a.m. of 14th April 2013 and Maya was admitted to Civil Hospital
around 12.30 p.m. on the same day. As aforesaid, the defence
has also examined two witnesses. Accused No.1 Rajendra has
entered the witness box and gave the account as to how the
incident took place and it was accidental. DW-2 Kishor Ghodke,
who resides in the neighbour-hood, is also supporting DW-1 Raju
@ Rajendra. It was also brought on record that accused No.1
himself had received burn injuries to his hands. By entering into
witness box, DW-1 Rajendra has stated that he received those
burn injuries while extinguishing the fire which accidentally
broke due to bursting of stove. The prosecution has not
explained the injuries on the person of accused No.1 Rajendra.
The case of the prosecution rests on two dying declarations,
which have been recorded belatedly and by that time the
relatives of the deceased Maya had come to the hospital.
Possibility of tutoring her has not been ruled out. No doubt,
there appears to be marital discord between Maya and accused
No.1 in the past and she had also filed maintenance petition
under Section 125 of the Code of Criminal Procedure before the
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learned Judicial Magistrate First Class, Ahmednagar but on the
day of incident, it appears that after patching up the differences,
Maya started residing with the husband. Therefore, these
aspects ought to have been considered by the learned trial
Judge.
7. Learned Advocate appearing for the appellants would take
exception in saying that appellant No.1 is a married sister of
accused No.1 and was residing separately, though nearby to the
house of deceased and accused No.1. Accused No.4 i.e. mother
was residing with accused No.1. But when we consider both the
dying declarations, then it can be seen that those were not
consistent with each other. It has been tried to be stated that
when Maya was in the kitchen, her husband, mother-in-law,
three brothers-in-law and two sisters-in-law went there and the
mother-in-law and sisters-in-law caught hold of her. Present
appellants had poured kerosene on her person and then accused
No.1 had ignited the match stick and set Maya to fire. If we
consider the spot panchnama and the testimony of PW-2
Shamrao Gaikwad, the panch to the spot panchnama, he says
that the open space in the kitchen was hardly 1 ft. How seven
persons could have occupied the said area, is a question. The
prosecution is not explaining the delay in recording the dying
appeal-299.16
declaration and the hospital record would show that injection
Fortwin was given to Maya. As per the testimony of PW-9 Dr.
Gorakhnath Gaikwad, who conducted the autopsy, Fortwin is a
heavy sedative drug and after giving it to the patient, it will have
effect of drowsiness for about twelve hours. Maya had received
70% burns. Therefore, the dying declarations are doubtful. Both
the scribers of the dying declarations have not explained as to
why they have taken the toe impression of right toe of Maya and
why there was necessity of consecutive dying declarations, one
after the other. The dying declarations being doubtful, the
learned trial Judge ought not to have relied upon the same. The
defence that was raised by accused No.1, was the probable
defence and it ought to have been accepted. Learned Advocate
for the appellants, therefore, prays for setting aside the
impugned Judgment by holding that it is perverse. He relied on
the decision in Sampat Babso Kale and another vs. The
State of Maharashtra, Criminal Appeal Nos. 694-695 of 2011
decided by the Hon'ble Supreme Court on 9 th April 2019, wherein
it has been held that "No doubt, a dying declaration is an extremely
important piece of evidence and where the Court is satisfied that the dying
declaration is truthful, voluntary and not a result of any extraneous influence,
the Court can convict the accused only on the basis of a dying
declaration.............. However when grave doubts are raised over the
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prosecution story, then such factors are required to be considered. " Learned
Advocate for the appellants has also submitted that the
prosecution has not examined any neighbouring person to state
about the exact happenings and therefore, when important
witnesses have not been examined, the learned trial Judge
committed wrong in relying only on the dying declarations.
8. Learned APP strongly supported the reasons given by the
learned trial Judge for convicting original accused Nos.1, 2
and 4. He submitted that both the dying declarations are
consistent and voluntary. In the evidence of PW-1 Santwan
Badekar, the father of deceased, it has come on record that after
the marriage of Maya with accused No.1, all the accused used to
demand money from her for purchasing house. They used to ask
her to bring money from her father. Accused No.1 used to
quarrel with Maya under the influence of liquor. On 28 th January
2010, accused No.5 - Asaram had informed father that Maya
was badly beaten by accused No.1 and other family members.
Therefore, after going to the matrimonial home and witnessing
and hearing what has happened to Maya, father had brought
Maya to his house. For about 1 ½ years she was residing with
PW-1 Santwan Badekar and at that time accused No.1 had not
visited for a single day. Then notice was sent through Advocate.
appeal-299.16
It was replied by accused No.1 Rajendra. When accused No.1
had not taken Maya for cohabitation, proceeding for maintenance
under Section 125 of the Code of Criminal Procedure was filed.
Thereafter on 12th May 2012, accused No.1 with his relatives
went to the house of PW-1 Santwan Badekar, gave assurance
that he would not trouble Maya and then Maya resumed
cohabitation. However, after about 2 to 3 months thereafter,
similar treatment continued to Maya. When the said demand of
money was not fulfilled, all the accused persons have set Maya
to fire. Cross-examination of PW-1 Badekar has not shattered his
evidence. It has come on record that both the upper limbs of
Maya had received 9% burns and therefore, the thumb
impressions of the hands were not taken. PW-5 Dr. Surekha
Gaulkar is the medical officer who had certified that Maya was in
a fit state of mind to give statement and accordingly both the
dying declarations came to be recorded, may be within few
minutes, but there is consistency in both the dying declarations.
The learned trial Judge was right in convicting the appellants
who had played active role. The acquittal of original accused
Nos. 5, 6 and 7 has no effect as it has been observed by the
learned trial Judge that no specific role was attributed to them in
the dying declarations.
appeal-299.16
9. As aforesaid, the prosecution has examined in all eleven
witnesses to bring home the guilt of the accused. PW-1 Santwan
Badekar, father is the only relative who has been examined by
the prosecution who could have thrown light in respect of the
offence under Section 498-A of the Indian Penal Code. PW-11
Advocate Mr. Babaji Sangale was the Advocate engaged by Maya
for filing application for maintenance before the learned Judicial
Magistrate First Class, Ahmednagar. However, it is to be noted
that Exhibit-68, which is Exhibit-1 of the said Petition, appears to
have been filed on 6th June 2011 and at that time Maya was
residing with PW-1 Santwan Badekar. As per his own version,
PW-1 Santwan Badekar says that accused No.1 along with
relatives had come to his house on 12 th May 2012 and took Maya
for cohabitation. On the day of incident, Maya was in the house
of accused No.1. Therefore, there is room to believe that
whatever differences were there, those were settled and even for
Section 498-A of the Indian Penal Code, the alleged acts of
cruelty prior to 12th May 2012, then cannot be considered. PW-1
Santwan Badekar has then stated that after Maya was taken for
cohabitation, she was treated properly for about 2 to 3 months
and thereafter again the similar treatment was given to her.
appeal-299.16
According to him, the accused persons were demanding money
from Maya for purchasing house, to be brought from her father.
At this stage, it can be certainly considered that PW-1 Santwan
Badekar has not stated as to how much amount was demanded
and exactly by whom. He then says that accused No.1 Rajendra
demanded money from him as a help for purchasing house. We
want to underline this statement and say that 'help' for
purchasing house cannot amount to illegal demand. Further
PW-1 Santwan Badekar has not stated what was the act of
cruelty committed by the accused when the amount was not
given. He has stated in Para No.5 of his deposition that when he
told accused No.1 that he is not having money and has to
perform marriage of his other daughter and two sons, then the
accused were not sending Maya to the house of PW-1 Santwan
Badekar. Here also not sending Maya to meet her parents, per se
will not amount to cruelty unless it is coupled with some further
overt-act. He has not stated that accused were not allowing to
meet Maya in the house of accused. There might be some
reasons for not allowing Maya to go to her parental house and
those reasons have not come on record. His said statement is
contradicted by him in the further Paragraph when he says that
on the occasion of Diwali Bhaubij, Maya visited his house.
appeal-299.16
Accused No.1 had dropped her at about 11.00 a.m. and in the
evening around 7.00 p.m. he took her away. According to PW-1
Santwan Badekar, accused No.1 had not allowed Maya to take
dinner on that day. This is only one day's alleged act but
certainly Maya was allowed to meet her parents. He has not
stated that on that day Maya had told the acts of cruelty by each
and every accused. Thereafter he speaks about the incident
which he came to know when he was at Pune. He then says that
on the same day around 3.30 p.m. i.e. of 14 th April 2013 he
visited Civil Hospital and met daughter Maya. He found that
Maya was seriously injured due to burn injuries and she gave
oral dying declaration. If that oral dying declaration, allegedly
given by Maya to PW-1 Santwan Badekar is perused, then it
states that:-
"Prior to 2-3 days quarrel took place between all other
accused and herself. She was badly beaten by her husband.
In that night they all had meals. In the morning of next day
her husband, mother-in-law and sister-in-law namely
Chhaya badly beaten her, they locked her in house and all
of them had gone to the house of Savita Salve, her another
sister-in-law. They all returned back in the morning of next
day at about 9.30 - 10.00 p.m. At that time she was
cleaning floor of kitchen. Her mother-in-law caught hold her
from back side Her both sisters-in-law poured kerosene on
her body from one drum which was already in their house.
appeal-299.16
Her husband was saying not to leave her and to caught her.
Her husband brought match box and ablazed her by
burning match stick. She was burning. In the same
condition she came out of house. Her brothers-in-law and
all other accused were present there but no one tried to
save her. They brought her inside house and poured water
on her body and also rubbed aloe vera on her injuries. They
covered her under one quilt. Then in one rickshaw they
brought her to Deepak Hospital, near Zopadi Canteen but
staff of Deepak Hospital refused to admit her after noticing
her condition. Therefore, all accused brought her in Civil
Hospital and admitted there."
10. This oral dying declaration is then required to be
considered with the contents of both the written dying
declarations to see, whether there was consistency. However,
one aspect still remains is that when PW-1 Santwan Badekar had
come to know about the story as to how Maya received burn
injuries about about 3.30 p.m. of 14 th April 2013, yet he had not
approached the Police Station or Police Chauki in Civil Hospital to
lodge a complaint or with a request that her dying declaration
should be recorded immediately. This conduct on his part has not
been considered by the learned trial Judge. PW-1 Santwan
Badekar then says that on 16th April 2013 after considering that
Maya was in serious condition, he shifted Maya to Vikhe
Foundation Hospital, where she was admitted for about 15 days
appeal-299.16
and then she expired at about 4.00 a.m. on 30 th April 2013. Here
it is to be noted that both the dying declarations came to be
recorded on 15th April 2013 when Maya was in Civil Hospital.
There is no attempt by PW-10 API Sanjay Gogawale, to have any
other dying declaration recorded and when he was specifically
asked with the said question, he says that when two dying
declarations were already there, he did not feel it necessary to
have one more dying declaration.
11. Testimony of PW-9 Dr. Gorakhnath Gaikwad who conducted
the autopsy on 30th April 2013, would show that Maya had
received about 70% burn injuries and after examination, he
concluded that the cause of death is "Shock due to septicemia
due to infected burns of 70%". This per se will not conclude that
the death is homicidal in nature. In all cases of burn injuries,
initially three possibilities would arise - (1) accidental (2) suicidal
and (3) homicidal. When prosecution has specifically come with
the theory of homicidal death, then it should eliminate the
possibility of accidental and suicidal burn injuries and death. In
the cross-examination, this medical officer admits that after
administering pain killer, the sensation of pain reduces and
healing process also starts after 2-3 days. Initially Fortwin
appeal-299.16
injection was not administered as it affects on patient in sedition.
Fortwin is a heavy sedative drug and after administering the said
injection the patient remains in sleepy stage and not in a fit
state of mind for about twelve hours. Now, it is required to be
seen, whether before twelve hours of dying declarations, Fortwin
was given and whether Maya could have been in the sleepy state
because of the administration of Fortwin.
12. Before proceeding to ascertain whether dying declarations
are voluntary and inspiring confidence, we wish to state in brief,
law on manner of appreciation of evidence in the form of dying
declaration as well as settled principles which are culled out by
the Hon'ble Apex Court from the various landmark cases like
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 vs. State of Maharashtra; (2019) 13 SCC 464.
13. Off late in the case of State of Uttar Pradesh vs.
Veerapal and another; (2022) 4 SCC 741 while deciding
appeal-299.16
Criminal Appeal No.34 of 2022 on 01-02-2022, the Hon'ble Apex
Court has reiterated the principles to be borne in mind while
analyzing and accepting dying declaration. The settled principles
are as under:
"1. It cannot be laid down as an absolute rule of law that a
dying declaration cannot form the sole basis of conviction
unless it is corroborated;
2. Each case must be determined on its own facts keeping in
view the circumstances in which the dying declaration was
made;
3. It cannot be laid down as a general proposition that a
dying declaration is a weaker kind of evidence than other
pieces of evidence;
4. A dying declaration stands on the same footing as another
piece of evidence and has to be judged in the light of
surrounding circumstances and with reference to the
principles governing the weighing of evidence;
5. A dying declaration which has been recorded by a
competent Magistrate in the proper manner, that is to say,
in the form of questions and answers, and, as far as
practicable, in the words of the maker of the declaration,
stands on a much higher footing than a dying declaration
which depends upon oral testimony which may suffer from
all the infirmities of human memory and human character :
and
6. In order to test the reliability of a dying declaration, the
court has to keep in view, the circumstances like the
opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was
committed at night; whether the capacity of the man to
remember the facts stated, had not been impaired at the
time he was making the statement, by circumstances
beyond his control; that the statement has been consistent
throughout if he had several opportunities of making a dying
declaration apart from the official record of it; and that the
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statement had been made at the earliest opportunity and
was not the result of tutoring by interested parties."
14. Similarly, in the case of Uttam vs. State of
Maharashtra; (2022) 8 SCC 576, again certain principles are
enunciated which are to be borne in mind in a case wherein the
evidence is in the form of dying declaration. These principles are
as under :
"(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.
(ii) If the Court is satisfied that the dying declaration is true
and voluntary it can base conviction on it, without
corroboration.
(iii) The Supreme Court has to scrutinize the dying
declaration carefully and must ensure that the declaration is
not the result of tutoring, prompting or imagination. The
deceased had opportunity to observe and identify the
assailants and was in a fit state to make the declaration.
(iv) Where dying declaration is suspicious it should not be
acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never
make any dying declaration the evidence with regard to it is
to be rejected.
(vi) A dying declaration which suffers from infirmity cannot
form the basis of conviction.
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not
be discarded. On the contrary, the shortness of the
statement itself guarantees truth.
(ix) Normally the court in order to satisfy whether deceased
was in a fit mental condition to make the dying declaration
look up to the medical opinion. But where the eye witness
has said that the deceased was in a fit and conscious state to
make this dying declaration, the medical opinion cannot
prevail.
(x) Where the prosecution version differs from the version as
given in the dying declaration, the said declaration cannot be
acted upon."
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15. Very recently certain principles of law with regard to case
involving multiple dying declarations are spelt out in the case of
Abhishek Sharma vs. State (Govt. of NCT of Delhi)
[Criminal Appeal No.1473 of 2011, decided on 18-10-2023].
These principles read thus :
"9.1 The primary requirement for all dying declarations is that they
should be voluntary and reliable and that such statements should be in
a fit state of mind;
9.2 All dying declarations should be consistent. In other words,
inconsistencies between such statements should be 'material' for its
credibility to be shaken;
9.3 When inconsistencies are found between various dying
declarations, other evidence available on record may be
considered for the purpose of corroboration of the contents of dying
declarations.
9.4 The statement treated as a dying declaration must be interpreted
in light of surrounding facts and circumstances.
9.5 Each declaration must be scrutinized on its own merits. The
court has to examine upon which of the statements reliance can be
placed in order for the case to proceed further.
9.6 When there are inconsistencies, the statement that has been
recorded by a Magistrate or like higher officer can be relied on, subject
to the indispensable qualities of truthfulness and being free of
suspicion.
9.7 In the presence of inconsistencies, the medical fitness of the
person making such declaration, at the relevant time, assumes
importance along with other factors such as the possibility of tutoring
by relatives, etc."
16. The ratio that is settled is that dying declaration must be
firstly voluntary, truthful and secondly it should not be tutored
and further the same should inspire the confidence of the Court.
appeal-299.16
These are the basic principles which are to be borne in mind
while appreciating dying declarations.
17. After taking note of legal position, now we would consider
the dying declaration Exhibit-29 and 38. Though PW-6 ASI Abdul
Kalim Ibrahim Raje has recorded the second dying declaration /
FIR Exhibit-38, his evidence is required to be considered for the
background under which the dying declarations came to be
recorded. He says that he resumed his duty at Civil Hospital,
Ahmednagar around 10.00 a.m. on 15 th April 2013 and it
appears that he had duty of twenty four hours. The Police person
who was on duty prior to him, Shri Barahate, informed him that
patient by name Maya has been admitted in burn ward on 14 th
April 2013 at about 12.30 p.m. Thereafter PW-6 Abdul Kalim
wrote letter Exhibit-28, to Special Executive Magistrate,
requested him to take statement and thereafter at about 3.30
p.m., he proceeded to record statement of Maya. In his
examination-in-chief explanation has not been given but by way
of cross-examination it has come on record that Barahate had
given letter Exhibit-44 to medical officer on 14 th April 2013 itself
requesting for the permission to record dying declaration of
Maya, however, it was certified at about 1.15 p.m. on 14 th April
appeal-299.16
2013 by Dr. Ms. Jagtap that Maya was not in a fit state to give
statement. Here, the first dying declaration Exhibit-29 recorded
by PW-4 Ghugarkar, Special Executive Magistrate is between
3.00 to 3.30 p.m. Therefore, the question arises that, as to when
after 1.15 p.m. of 14th April 2013 to 3.00 p.m. of 15th April 2013
Maya regained consciousness or became fit to give statement.
Dr. Ms. Jagtap who gave endorsement on Exhibit-44 has not
been examined by the prosecution and why she was saying that
Maya was not in a fit state to give statement, has not been
brought on record. The said reasons ought to have been given or
brought on record by the prosecution. The promptness in
recording the dying declaration is the key factor to see whether
the said dying declaration is voluntary or is the outcome of
tutoring. At the cost of repetition it is to be noted that PW-1
Santwan Badekar had stated that he had reached Civil Hospital
at 3.30 p.m. on 14th April 2013 itself. Therefore, the near
relatives of Maya had already met her, as per his version, before
the dying declarations came to be recorded on 15 th April 2013.
18. The glaring fact from the testimony of PW-6 Abdul Kalim is
that after he resumed his duty at 10.00 a.m., when Barahate
told him about the admission of Maya on the earlier day, he says
that he addressed a letter to the Special Executive Magistrate on
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15th April 2013, which is at Exhibit-28. If we read Exhibit-28 with
the testimony of PW-4 Ghugarkar, Special Executive Magistrate,
it can be seen that said Exhibit-28 was received by him at about
1.30 p.m. Then again question arises, what PW-6 Abdul Kalim
had done from 10.00 a.m. to 1.30 p.m. Why he took so much of
time and why he himself had not gone in the ward to check
whether Maya was in a fit state to give the statement. He gave
preference to giving letter to the Special Executive Magistrate
than to go and record the dying declaration and further
surprising fact is that after dying declaration Exhibit-29 was
recorded by PW-4 Ghugarkar, PW-6 Abdul Kalim allegedly went
to the ward and recorded dying declaration Exhibit-38, which
was treated as FIR. All these acts are suspicious.
19. Now turning towards the first dying declaration i.e.
Exhibit-29 recorded by PW-4 Ghugarkar, he says that he had
gone to the hospital at about 2.30 p.m. and made inquiry with
PW-6 Dr. Surekha Gaulkar, took the endorsement and after the
medical officer certified that Maya was in a fit state to give
statement, he recorded the statement. If we consider Exhibit-29,
in the upper part he has given the timing that he reached the
hospital at 2.30 p.m. and then there is endorsement by Dr.
Surekha Gaulkar stating that the patient is conscious and
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oriented to give statement at 3.00 p.m. Here also it is hard to
believe that for the said endorsement it would require half an
hour. But then it is said that the entire statement was over by
3.30 p.m. If we consider Exhibit-29, as regards the day of
incident is concerned, it is stated as follows, of which translated
version is given:-
"Yesterday morning around 10.00 O'clock I was in the
kitchen. At that time my three brothers-in-law namely
Ashok, Asaram and Sunil Patole, mother-in-law, two sisters-
in-law (namely) Chhaya Bhingardive and Savita Salve came
close to me in the house. Mother-in-law and two sisters-in-
law caught hold me tightly. Chhaya and Savita, sisters-in-
law have poured kerosene on my person. My husband pulled
a match stick and put the ignited match stick on my
kerosene doused saree and set me on fire."
20. The aforesaid part of the dying declaration Exhibit-29
shows that Maya has not attributed any role to her three
brothers-in-law and in next question she says that she has
complaint to make against, husband, mother-in-law and both the
sisters-in-law. As regards brothers-in-law are concerned, she
says that they were only watching but then says that they were
also involved in the incident. Now, at the end it is said that the
thumb impression of right toe has been taken. But there is
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absolutely no mention that as to why it was decided to have the
toe impression and in his cross-examination PW-4 Ghugarkar has
admitted that he has not mentioned in the statement that
fingers and thumb of both the hands were in burnt condition and
therefore, he obtained impression of right toe of Maya on the
statement.
21. As compared to the same, if we consider dying declaration
Exhibit-38, it states as follows, of which translated version is
given:-
" I was sitting down in the kitchen while I was mopping. So
suddenly from behind around 10.00 O'clock mother-in-law
Kamalbai has came and caught hold me as it is and sister-
in-law Chhaya Bhingardive has brought the Plastic canister
of kerosene, while she was pouring kerosene from canister
on my person my another sister-in-law (namely) Savita
Salve, was also came there and took the canister from her
hand and poured kerosene on my person. At that time my
husband was standing there only and by saying, do not
leave her and took a match box from the kitchen and pulled
a match stick from it and set fire border of my saree."
22. Thus, in the second dying declaration, Maya has stated
that three brothers-in-law had not entered the house. When she
came outside, they were present but did not try to extinguish
the fire. Here important point to be noted is that in the cross-
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examination of PW-1 Santwan Badekar, it has come on record
that each brother is residing separately and some of them are
residing at a distance. Both these dying declarations do not
match to the oral dying declaration given to PW-1 Santwan
Badekar as regards the earlier incident is concerned (stated in
Paragraph No.9). In both the dying declarations it is not
disclosed as to how much amount was demanded. In dying
declaration Exhibit-38 at first page endorsement given by PW-5
Dr. Surekha Gaulkar would show that it was given at 4.15 p.m.
and in the said endorsement itself it is stated, "Patient conscious
& oriented (time, place & person) to give statement &
throughout the statement." (Stress supplied). The stressed
terminology would not appear in the beginning. On page No.2
again she has made the same endorsement by giving same time
i.e. 4.15 p.m. There is no explanation in the testimony of PW-5
Dr. Surekha Gaulkar as to why same endorsement was given
twice. If we consider her testimony, she has initially stated about
the endorsement given on first dying declaration Exhibit-29,
wherein she says that the date and time was mentioned below
the endorsement. At 3.30 p.m. the first dying declaration was
completed. Then she says that within five minutes Police
Constable Raje came and requested her to examine the patient
appeal-299.16
and then she again examined Maya and opined about the
consciousness and orientation of Maya. According to her, said
endorsement was given by her at 4.15 p.m. but still the
examination-in-chief lacks any clarification as to why two
endorsements at 4.15 p.m. were required to be given. In her
cross-examination PW-5 Dr. Surekha says that PW-6 Raje arrived
at about 3.35 p.m. The question therefore, arises as to why
there was necessity to have the second dying declaration, that
too, within a span of five minutes. As per PW-6 Abdul Kalim
Ibrahim Raje, he went to burn ward at 3.30 p.m. That means
there was every possibility that he would have met PW-4
Ghugarkar. In his examination-in-chief, PW-6 Abdul Kalim says
that when he visited nurse staff office, he came to know that
statement of Maya has been recorded by PW-4 Ghugarkar prior
to his visit. Under the said circumstance it was his duty to
explain as to why then he decided to have second dying
declaration. These are the suspicious circumstances and
therefore, both the dying declarations do not appear to be
voluntary and those are the outcome of possibility of tutoring by
the relatives. Both the dying declarations i.e. Exhibit-29 and 38
do not fulfill the criterias mentioned at Sr. Nos. 9.1, 9.2, 9.7 in
the case of Abhishek Sharma vs. State (Govt. of NCT of
appeal-299.16
Delhi) (supra). Here we cannot give more weightage to the
dying declaration Exhibit-29 as compared to Exhibit-38 for the
aforesaid reasons which are given while assessing the testimony
of PW-4 Ghugar, the Special Executive Magistrate.
23. Another aspect that is required to be noted is that dying
declaration Exhibit-29 states that all the accused persons had
allegedly gone to the kitchen where the deceased was and then
the acts of catching hold of her, pouring kerosene on her person
and setting her to fire, had taken place. But if we consider the
spot panchnama Exhibit-24 which came to be proved through a
panch, PW-2 Shamrao Gaikwad, together with his cross-
examination, then it can be seen that there is barely 1 ft. open
space available in the kitchen taking into consideration the
articles and the cupboard. The inconsistency is that in dying
declaration Exhibit-38 there is absence of three brothers-in-law
from the said 1 ft. open space in the kitchen. Therefore, on the
ground of probability also the contents of both the dying
declarations do not prove to be believable.
24. The testimony of PW-2 Shamrao Gaikwad, the panch to the
spot panchnama would show that the spot panchnama was
executed on 16th April 2013 i.e. two days after the incident. It is
appeal-299.16
said that accused No.2 was present at the time of panchnama
and she has signed on the panchnama. But then he also states
that PW-1 Santwan Badekar was present and he had opened the
said house. The spot panchnama came to be executed between
9.00 to 9.45 a.m. of 16th April 2013 whereas all the accused
came to be arrested around 19.45 hours of 16 th April 2013. That
means when the spot panchnama was executed, the accused
were not arrested, still how PW-1 Badekar opened the door of
the said house, is a question. When incident had taken place at
about 10.00 a.m. on 14th April 2013 and the spot panchnama
came to be executed two days thereafter, still the Police could
find a plastic can having kerosene smell, of which lid was open.
The description also shows that the stove was in between the
room and aluminum utensil was on the stove. There were partly
burn match sticks near the stove. The match box was wet
because of kerosene. Again we will have to express that the said
situation noted in the spot panchnama creates doubt, how even
after two days the match box can be said to be wet with the
kerosene.
25. The testimony of PW-10 API Sanjay Gogawale does not
show that what precaution was taken or would have been taken
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to protect the scene of offence for two days, was inquired into.
26. It appears that the learned trial Judge has not considered
the testimony of defence witnesses. It is sufficient for the
accused to probabilize the defence. It is specifically stated by
DW-1 Rajendra (accused No.1) that he had sustained burn
injuries to his hand and it was at the time of extinguishing the
fire. PW-1 Santwan Badekar and PW-10 Sanjay Gogawale admit
that accused No.1 Rajendra had sustained burn injury to his
hand, but still it appears that there is no investigation on the
point of probable defence. If we consider the suggestions given
by the learned APP in cross-examination to accused No.1
Rajendra together with the testimony of PW-2 Ramrao, the spot
panch and the spot panchnama, then again it creates a doubt, as
to whether 1 ft. open space area in the kitchen was sufficient to
accommodate all the accused persons. The testimony of DW-2
Kishor Ghodke, the neighbouring person has been discarded by
the trial Court by saying that he had no idea as to what had
happened inside the house of the accused. In fact DW-2 Kishor
was the person who had gone to the spot immediately after the
incident and the prosecution has not come with the case that
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oral dying declaration was given to him also by deceased Maya.
None of those persons have been examined who extinguished
the fire, though it is on record that the house of the accused is in
thickly populated area and several people had gathered. There is
also evidence on the point that accused persons extinguished the
fire and had applied aloe vera on the burn injuries of Maya. This
indicates that they had an intention to save Maya and not to kill
her. The defence taken by the accused appears to be probable.
27. The medical papers are on record i.e. bed-head ticket. It
shows that Maya was admitted by her brother-in-law Asaram
who has been now made as accused. No history appears to have
been taken by the doctor who admitted Maya at about 12.15
p.m. on 14th April 2013. It is also having noting that the patient
was irritable with 60 to 64% burns and at 10.15 p.m. on 14 th
April 2013 and at 10.15 p.m. on 15th April 2013 injection Fortwin
was given. No doubt it is not within twelve hours span prior to
recording of dying declarations Exhibit-29 and 38. But for
aforesaid reasons, both the dying declarations are unbelievable.
28. At the end, one more point we would like to consider is
that if we want to believe or rely upon both the dying
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declarations, then as per dying declaration Exhibit-29 accused
Nos.5 to 8 were inside the kitchen and as per dying declaration
Exhibit-38 they were outside the kitchen, which has been taken
as variance earlier. But accused Nos.5 to 7 have been acquitted
by the learned trial Judge on the ground that no role has been
attributed to them in both the dying declarations. We are of the
opinion that such facts should be considered at the time of
framing of charge itself by the Courts of law. If there is
inconsistency and no role is attributed then the Court should not
proceed with framing of charge. Now after the evidence is
adduced and for prosecuting accused Nos. 5 to 7 also as Section
34 of the Indian Penal Code was invoked by the prosecution with
Section 302 of the Indian Penal Code, reliance was placed on
both the dying declarations. The same dying declarations were
considered to be proved and sufficient to convict accused
Nos.1, 2 and 4, but relying upon those dying declarations
accused Nos. 5 to 7 have been acquitted. In Phulel Singh vs.
State of Haryana, Criminal Appeal No.396 of 2010 decided
by the three Judge Bench of the Hon'ble Supreme Court on 27 th
September 2023, it has been held that, when by the same dying
declaration one accused is convicted, then how another accused
can be acquitted by saying that the said dying declaration is not
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believable. Under the said circumstance, the conviction awarded
to the present appellants cannot be allowed to withstand.
Because of the wrong appreciation of the evidence, the findings
are wrong and therefore, the Judgment is perverse, which needs
to be set aside, so far as the present appellants are concerned.
Hence the following order:-
ORDER
(I) The Criminal Appeal stands allowed.
(II) The conviction awarded to appellant No.1 - Sau Chhaya
Bhausaheb Bhingardive and appellant No.2 - Smt. Kamal
Babanrao Patole in Sessions Case No. 220 of 2013 by the
learned Additional Sessions Judge, Ahmednagar for the offence
punishable under Sections 302, 498-A read with Section 34 of
the Indian Penal Code, stands quashed and set aside.
(III) Both the appellants stand acquitted of the offence
punishable under Section 302, 498-A read with Section 34 of the
Indian Penal Code.
(IV) Both the appellants be set at liberty, if not required in any
other case.
appeal-299.16
(V) We clarify that order regarding payment of compensation
to PW-1 Shantwan Badekar is also quashed and set aside.
(VI) The fine amount deposited, if any, be refunded to the
appellants after the statutory period.
(VII) We further clarify that there is no change as regards the
order in respect of disposal of Muddemal passed by the learned
Additional Sessions Judge, Ahmednagar.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/OCT23
