Chandrakant S/O. Vishwanath ... vs The State Of Maharashtra
2023 Latest Caselaw 9528 Bom

2023:BHC-AUG:19841-DB


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD


                                       CRIMINAL APPEAL NO.334 OF 2017


                                     Chandrakant Vishwanath Solas,
                                     Age 25 yrs., Occ. Labour,
                                     R/o Rahulnagar, Galli No.2,
                                     Mama Chowk, Aurangabad.

                                                                           ... Appellant

                                                  ... Versus ...

                                     The State of Maharashtra

                                                                           ... Respondent

                                                       ...
                Mr. D.S. Ingole, Advocate h/f Mr. N.S. Ghanekar, Advocate for appellant
                                     Mrs. V.S. Choudhari, APP for respondent
                                                       ...

                                                 CORAM :     SMT. VIBHA KANKANWADI
                                                             ABHAY S. WAGHWASE, JJ.

                                                 RESERVED ON :        04th SEPTEMBER, 2023
                                                 PRONOUNCED ON : 12th SEPTEMBER, 2023


            JUDGMENT :               (PER : SMT. VIBHA KANKANWADI, J.)



            1               Present appeal has been filed by the appellant challenging his

conviction by learned Additional Sessions Judge, Aurangabad on 10.07.2017

in Sessions Case No.32/2015 after holding him guilty of committing offence

2 Cri.Appeal_334_2017_Jd

punishable under Sections 302, 498-A of the Indian Penal Code, 1860.

2 It is not in dispute that deceased Madhuri got married to the

appellant about 04 years prior to 08.11.2014. They were residing at

Rahulnagar, Aurangabad. At that time their daughters Nikita was 2½ years

old and Janhvi was 5 months old. They were residing with the parents of the

appellant and his two brothers.

3 The prosecution has come with a case that Madhuri was

admitted to GHATI, Aurangabad on 08.11.2014 and on the same day her

statement was recorded by PW 1 ASI Mr. Narayan Butte around 7.15 p.m.

She disclosed that the accused was addicted to liquor and used to pick up

quarrels and used to assault her under the influence of liquor. Around 1.30

p.m. on 08.11.2014 she was with her husband i.e. appellant. Appellant was

under the influence of liquor. He was abusing and assaulting her. He was

also abusing her relatives. She told that she is fed up with his daily

harassment and it is better that she would die. The accused then asked her,

as to whether she has courage. Thereupon, she poured kerosene from stove

on herself and then he said that how she would die, let he would set ablaze

to her. He ignited the matchstick and threw it on her. As a result of which,

her clothes caught fire and then accused fled from the house. Madhuri

3 Cri.Appeal_334_2017_Jd

started shouting. As a result of which, the neighbouring Abedabi came and

extinguished her fire. The father-in-law then took her to GHATI,

Aurangabad.

4 On the basis of above said statement offence vide Crime

No.189/2014 came to be registered for the offence punishable under Sections

307, 323, 504 of the Indian Penal Code. On the same day Executive

Magistrate has recorded her statement around 9.25 p.m. The spot

panchnama was executed, when Medico Legal Certificate was received by ASI

Mr. Narayan Butte. In fact, he has carried out the spot panchnama first and

then had gone to hospital to record the statement/dying declaration, which

came to be then registered as First Information Report. Madhuri succumbed

to the injuries on 19.11.2014 and after executing inquest panchnama, the

dead body was referred for postmortem. She was sustained 63% burns and

the cause of death was "Septicemia due to dermo-epidermal thermal burns".

Thereafter, Section 302 of the Indian Penal Code came to be added,

statements of the witnesses were recorded, accused came to be arrested and

after completion of investigation charge sheet was filed.

5              After the committal of the case, charge was framed and when

accused pleaded not guilty, trial has been conducted.                Prosecution has





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examined in all 10 witnesses to bring home the guilt of the accused. After

considering the evidence on record and hearing both sides the learned trial

Judge has held that the prosecution has proved offence under Section 302 of

the Indian Penal Code and has sentenced the accused to suffer imprisonment

for life and to pay fine of Rs.1,000/- (Rupees One Thousand only), in default

to suffer simple imprisonment for 10 days. The accused has been further

held guilty of committing offence punishable under Section 498-A of the

Indian Penal Code and has been sentenced to suffer rigorous imprisonment

for three years and to pay fine of Rs.1,000/- (Rupees One Thousand only), in

default to suffer simple imprisonment for 10 days. The substantive sentences

were directed to run concurrently and set off under Section 428 of the Code

of Criminal Procedure has been granted. The accused has been acquitted of

the offence punishable under Section 504 of the Indian Penal Code.

6 Heard learned Advocate Mr. D.S. Ingole holding for learned

Advocate Mr. N.S. Ghanekar for the appellant and learned APP Mrs. V.S.

Choudhari for the respondent.

7 The learned Advocate for the appellant has vehemently

submitted that the learned trial Judge has not appreciated the evidence

properly. The prosecution case was relying on the two dying declarations i.e.

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one recorded by PW 1 ASI Mr. Narayan Butte and another was by PW 5

Sanjay Chavan, Special Judicial Magistrate. The endorsement on both the

dying declarations appeared to have been given by PW 8 Dr. Rutuja Chavan.

If we consider both the dying declarations as it is, yet, the variance can be

apparently seen. In one dying declaration the details are tried to be given

and the cause for the fight. However, in the other i.e. Exh.46 she only says

that she had poured kerosene in anger around 1.00 to 1.30 p.m. but the

accused had ignited the matchstick and threw it on her. That means, the

reason has not been given. Only on the basis of omnibus statement that

accused used to drink liquor and used to abuse and assault will not be a

ground of conviction under Section 498-A of the Indian Penal Code. The

neighbouring witness Abedabi has not been examined at all by the

prosecution for the reasons best known to it. PW 9 Bandu Tribhuvan is also

the neighbour of the accused and he says that he extinguished the fire but he

has been declared as hostile as he did not support the prosecution story in

respect of abusing and assaulting by the accused to the deceased. Testimony

of PW 6 Nanbabai, who is the mother of deceased Madhuri, would show that

oral dying declaration was given to her, but in the oral dying declaration the

story is different. She says that on the day of incident accused came home

after drinking liquor and demanded meal to Madhuri. Madhuri replied that

there was no material for cooking food and, therefore, food is not ready.

6 Cri.Appeal_334_2017_Jd

Then the accused started beating her and the further dialogues have been

stated. She has also stated that Madhrui told her that she herself had poured

kerosene on her person. In her cross-examination the mother has admitted

that the accused is residing with his two brothers and parents, jointly. There

were two rooms of tin sheets. Elder brother of accused is deaf and dumb and

is not earning anything. The younger brother of the accused was unmarried

at that time. She admits that Madhrui was alone, who was required to do the

household work and she was having small kids. The mother has then denied

that Madhuri used to feel tired by doing labourous work and was also fed up

with poverty. The dying declarations were the outcome of the tutoring by

Siddharth Gaikwad, who is the son-in-law of PW 6 Nandabai. Siddharth was

employed in GHATI, Aurangabad at the relevant time. There could not have

been any intention on the part of the accused to commit murder of his wife

as she was the only person who was doing the household work.

8 In the alternate learned Advocate for the appellant made

submission that there was quarrel between the husband and the wife and in

that quarrel deceased herself had poured kerosene and it is rather invited by

her. Therefore, the act was the outcome of the sudden and grave provocation

by the deceased. Hence, the case would fall under Section 304(II) of the

Indian Penal Code. The appellant came to be arrested on 09.11.2014 and he

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is still in jail. Therefore, the punishment be reduced to already undergone.

9 Per contra, the learned APP strongly opposed the appeal and

submitted that there is consistency in the two dying declarations. Those

dying declarations have been properly proved. The hostility of PW 9 Bandu

will not affect the prosecution story. The dying declarations are worthy of

credence and, therefore, the conviction can be based on those dying

declarations. The dying declarations were given by Madhuri while she was in

fit mental state. The testimony of her mother PW 6 Nandabai would

corroborate the dying declaration and there was also oral dying declaration

to her. Admittedly, the incident had taken place in the house of accused and,

therefore, the accused ought to have expressed explanation as to under which

circumstances Madhuri caught fire and received burn injuries. The spot

panchnama would show the magnitude and, therefore, it cannot be said that

the accused had no intention to kill his wife. Though Madhuri herself had

poured kerosene upon herself; yet, it might have been to cause fear in the

mind of accused and she had no intention to commit suicide. The accused

took the opportunity and then ignited the matchstick and threw the same on

Madhuri. He had the knowledge of consequences of his own acts and,

therefore, it was culpable homicide amounting to murder. No interference is,

therefore, required.

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10              Before we proceed to scrutinize the evidence, we would like to

say that in this case the prosecution is mainly relying on the two dying

declarations; one recorded by the Police Officer and another recorded by the

Special Judicial Magistrate. Therefore, we want to take note of the legal

position as regards evidentiary value of the dying declaration. It is trite law

that sole dying declaration can be made basis of conviction, if at all it

qualifies the test of truthfulness, voluntariness and if it is free from suspicion

and doubt. There are various rulings of Hon'ble Apex Court regarding

evidentiary value of dying declaration. It has been held time and again that

accused being deprived of cross-examination, Court has to be very careful

and cautious while assessing dying declaration. It is expected that Court

should be on guard that the statement of deceased was not a result of either

tutoring, prompting or product of imagination. It is further expected of the

Court to satisfy itself that the deceased was in a fit state of mind to give dying

declaration. In the case of Paniben vs. State of Gujarat [(1992) 2 SCC 474],

the Hon'ble Supreme Court has laid down the principles governing Dying

Declaration, which are as follows :

(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.

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(iii) The 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 to 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.

11 The above principles are affirmed, relied, summarized and

applied in various other rulings, namely, Surinder Kumar vs. State of Punjab

[(2012) 12 SCC 120], Madan vs. State of Maharashtra [(2019) 13 SCC 464].

12              Similarly, very recently Hon'ble Apex Court in the case of Ganpat




                                          10                               Cri.Appeal_334_2017_Jd

Bakaramji Lad vs. State of Maharashtra [2018 ALL MR (Cri) 2249], has also

reiterated certain tests to be put to use before accepting that dying

declaration. It has been held thus -

"In respect of the dying declaration, the general principles to be kept in mind are

(i) that it is not a weaker kind of evidence and it stands on the same footing as other evidence, and (ii) that there is no absolute rule of law that it cannot form the sole basis of conviction, unless corroborated by other independent evidence. The first step required to be taken in every case, is to consider the three-fold questions as under :

(a) Whether a declarant had an opportunity to observe and identify the assailant or the accused?,

(b) Whether a declarant was in a conscious and fit condition at the time of recording the statement?, and

(c) Whether the Court is so convinced of the truthfulness and voluntary nature of the statement of the declarant that it inspires confidence to such an extent that it can be the sole basis of conviction?

The absence of an endorsement in the dying declaration - (a) by a doctor regarding the fitness of mind of the declarant, or (b) that the statement was read over and explained to the declarant, who found it to be correct, cannot be the reason for holding that the dying declaration is unacceptable, if the Court is otherwise satisfied that such a dying declaration inspires confidence.

11 Cri.Appeal_334_2017_Jd

The rejection of the dying declaration cannot be on the solitary instance of absence of endorsement of reading over and explaining the declaration and the declarant confirming it to be true. It will always depend upon the facts and circumstances of each case. We are clearly of the view that it will be a cumulative effect of the facts and circumstances of the case, which will determine such issues. The presence or absence of a particular fact or circumstance or a situation in a given case may become significant, whereas it may become insignificant in another case. The mode and manner of appreciation of evidence differs from case to case, though the principles of appreciation of evidence may be the same. The perception of the matter in each case and the manner of the appreciation of evidence differs from person to person. Hence, there cannot be a strait-jacket formula or hard and fast rule which can be laid down.

Neither the provision of Section 32(1) of the Evidence Act nor any decision of the Apex Court prescribe any particular format in which a dying declaration is to be recorded. It can be oral as well as written. In case of oral dying declaration, the question of existence or insistence upon reading over and explaining the declaration to the deceased does not arise. If that be so, how can such insistence be in respect of written dying declaration? It is not the requirement of any statute or of the decision of the Apex Court that a written dying declaration must contain a column to be duly filled in that the statements of the declarant are read over and explained to him and that he found it to be true and correct. Such a requirement therefore cannot be held as mandatory.

The observations in the cases of Shaikh Bakshu 2007 ALL SCR 2407 and Kantilal (2009) 12 SCC 498, are based on the facts and would not, therefore, constitute a precedent or a ratio decidendi or

12 Cri.Appeal_334_2017_Jd

even an obiter dicta to hold that bearing such an endorsement in the dying declaration is must. In our view, it would be unjust to reject the dying declaration only on such hyper technical view, which hardly of any help in the matter of criminal trials."

13 We may also consider the Constitution Bench decision of Hon'ble

Supreme Court in Laxman vs. State of Maharashtra, 2002, Cri. L.J. 4095,

wherein it was held that -

"Absence of certification of doctor as to fitness of mind of declarant will not render dying declaration unacceptable. What is essentially required is that the person who records it must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. The voluntary and truthful nature of declaration can be established otherwise also."

14 It is further observed in Laxman vs. State of Maharashtra,

(supra) that -

"It is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration."

15 Further, we may also rely on Vikas and others vs. State of

Maharashtra [2008 (2) B. Cr. C. 235 (SC)], wherein it has been observed

13 Cri.Appeal_334_2017_Jd

that, special sanctity accorded to evidence of dying declaration should be

respected. Unless there are clear circumstances brought out showing that

person making statement was not in expectation of death, admissibility of

dying declaration should not be questioned. Section 32(1) of the Evidence

Act is an exception to the general rule that hearsay evidence is no evidence.

Section 32(1) of the Evidence Act makes a statement of the deceased

admissible. Those statements made by a person as to the cause of his death

or to any of the circumstances of the transaction which resulted in his death,

are admissible when the person's death comes into question. The essential

requirement of such statement to be accepted as evidence would be that the

person who makes such statement is under the expectation of death. The

special sanctity has been given to such statements as it is believed that a

person on the death-bed will not speak lie.

16 After taking note of the said position, it is very much clear that

the dying declaration can be the basis for conviction if it inspires confidence

and if it is procedurely taken/recorded. The law was set into motion after

PW 1 ASI Mr. Narayan Butte, attached to Police Outpost, recorded the dying

declaration Exh.16. He deposed that he was attached to Police Outpost on

08.11.2014 and after he received Medico Legal Certificate No.305/2014, he

went to the place of incident. One Bandu Tribhuvan showed him the place.

14 Cri.Appeal_334_2017_Jd

Thereupon he prepared the panchnama Exh.14. Pieces of sari, one stove, one

match box and three partly burnt match sticks were seized from the spot. He

says that he had also taken the photographs of the place of incident through

Photographer Rajendra Jadhav. Thus, it is to be noted that he had given

more importance to the spot and executed the spot panchnama than to go to

hospital and record the statement of the injured, which is not the purport and

duty of a Police Officer. He then says that after executing panchnama Exh.14

he went to Police Station and then to GHATI, Aurangabad. He gave letter to

Medical Officer requesting for the endorsement of the patient and to see

whether the patient was in a fit state of giving statement. After the Doctor

opined that the patient was in a fit state of mind to give statement of Exh.15,

he recorded the statement of the patient. He took thumb impression of the

patient and put his signature on the same, which is not at Exh.16. Important

point to be noted is that he has given the details as to what was told by the

injured/patient Madhuri to him. One may say that when the document is in

written format, then contents of the same need not be reproduced by the

person who recorded it. In other words, the person, who got the dying

declaration recorded may not say about the contents of the same made

before him. However, it was expected from PW 1 Narayan Butte that he

should say that he had got the mental state of the patient ensured, identity

confirmed before recording the statement and after the statement was

15 Cri.Appeal_334_2017_Jd

recorded/reduced into writing, it was expected that he should have read over

to her, get the confirmation of the patient/maker and then again get the

certificate from the Doctor stating that the mental condition of the lady was

proper/good throughout the statement. But this witness has not stated

anything. Only four lines have been stated in respect of Dying Declaration-

cum-First Information Report Exh.16 and it has been exhibited. Mere

exhibiting a document does not prove the admissibility and such documents

cannot be read in evidence. No doubt, in the Exh.16 it is said that the

statement was read over to her and she admitted to be correct. But that

should have been told by PW 1 Narayan. There is no reason given by him as

to why he obtained the endorsement from the Doctor on Exh.15 and not on

Exh.16. These two are two separate papers. At this stage itself, it can be

seen that PW 8 Dr. Rutuja has also not stated, as to why she has given the

said endorsement on Exh.15 and not on Exh.16. It definitely creates a doubt,

because such certificate can be conveniently taken at a later point of time.

Further, she has also not stated that after the statement was over she had

again examined Madhuri and found that she was in a fit state throughout the

statement. No such endorsement is there and the endorsement on Exh.15

states that "patient is conscious, oriented and in a state to give valid

statement at present". Here, it is to be noted that Madhuri had sustained

63% burns and she succumbed to those injuries on the next day. Therefore,

16 Cri.Appeal_334_2017_Jd

each and every moment was precious and it ought to have been proved that

Madhuri was conscious throughout the statement i.e. till the end also.

Therefore, we do not find that the procedure that was adopted by PW 1

Narayan to record Exh.16 was proper and legally acceptable. We are aware

that it is not at all necessary to have medical certificate certifying the mental

state of the maker in case of dying declaration, but the satisfaction of the

writer regarding the said mental status was important. But his examination-

in-chief is silent regarding the efforts taken by him to confirm the mental

status of Madhuri. In his cross-examination he has stated that he had not

talked to the patient prior to obtaining opinion of the Doctor. The Doctor had

shown him the patient and then he says that nobody was present while

recording the statement except the patient and himself.

17 Even if for the sake of argument we take that the said dying

declaration Exh.16 is properly and legally proved, it can be said that what

Madhuri has conveyed was that her husband was in habit of drinking liquor

and used to assault and abuse her. He used to abuse her relatives also. She

has not stated since when the alleged harassment was going on. The second

daughter was five months old at the time of incident. If the differences

between the husband and wife were of severe nature, then probably the

second child would not have been born. The said statement on the part of

17 Cri.Appeal_334_2017_Jd

the deceased appears to be very vague. As regards the date of incident is

concerned, she says that around 1.30 p.m. on 08.11.2014 she was with her

husband and her husband was in drunken state. He started assaulting her

and abusing her as well as abusing her relatives. Again we find that it is

vague, why he would start abusing and assaulting her or abruptly he would

do that, is a question. But still she further says that thereafter she told that it

would be better to die than to sustain his ill-treatment. Thereupon he told

that whether she has courage, thereupon she poured kerosene from the stove

and then he said that why she would die, he would kill her. Thereafter, the

matchstick was ignited and it was thrown on her person. If we consider the

spot panchnama executed by PW 1 Narayan, then it can be seen that the

description of spot of incident is as vague as it is. It consists of tin sheets and

it appears that it is divided into two rooms. Though at one place it is said

that there is kitchen, but there is no mention of other utensils in the same

and only stove has been mentioned. At the same time, if we consider the

photographs, it shows the utensils. The clear picture is not emerging. Here,

again we will take note of the testimony of PW 6 Nandabai, who has

admitted that Madhuri and accused used to reside with the parents and two

brothers of the accused. There is absolutely no mention about those persons

in the dying declaration Exh.16. Where those persons were at the time of

incident has not been brought on record by the prosecution. Therefore,

18 Cri.Appeal_334_2017_Jd

Exh.16 is a doubtful document, even if we take the contents thereof.

18 At this stage, we turn to the second dying declaration recorded

by PW 5 Sanjay Chavan, the Special Judicial Magistrate. He has stated that

he received letter from police at about 8.15 p.m. on 08.11.2014 i.e. Exh.17

requesting him to record statement of Madhuri. Thereafter he went to

GHATI, Aurangabad, took endorsement by the Medical Officer, he asked the

relatives to go out, he introduced himself to the patient and disclosed about

his intention. He put certain questions like name and whereabouts and then

he recorded the reason as to how the incident had taken place. He told that

around 1.00 to 1.30 p.m. there was quarrel between herself and her husband.

She poured kerosene on her person under heat of anger and her husband

ignited the matchstick. She told that she has complaint against her husband.

Her husband used to beat her by consuming liquor. The said dying

declaration is at Exh.46. Thus, it can be seen that almost in sequence the

second dying declaration has been recorded and the prosecution has not

stated as to why there was necessity to get the second dying declaration

recorded from the Special Judicial Magistrate. If we are to say that it has

more evidentiary value than the dying declaration recorded by the police,

then we will have to compare the two dying declarations. Even though it is

in quick succession, the necessary details as to what was the point of quarrel

19 Cri.Appeal_334_2017_Jd

has not been stated by her. In his cross-examination he has categorically

admitted that he had not inquired what was the cause of the quarrel. He has

also not inquired about the place of incident. It is definitely certain that in

Exh.46 also Madhuri is stated to have said that she poured the kerosene on

herself, but then she does not say that what was the reason for her to do that

act. Heat of anger has been tried to be stated, but it cannot be related to the

alleged daily harassment or ill-treatment. Therefore, both the dying

declarations appeared to be contradictory to each other or not fully

corroborating to each other. Merely because the role assigned to the accused

is same, we cannot say that both the dying declarations should be accepted.

Again as regards this dying declaration also the endorsement by Dr. Rutuja is

not on the same page, but it is on the separate page that too at the beginning

and not even at the end.

19 Taking both the dying declarations as it is, there is absolutely no

mention that there was any illegal demand of money and there was cruelty to

Madhuri on that count. However, if we consider the charge that was framed

at Exh.5 for the offence punishable under Section 498-A of the Indian Penal

Code, the learned Additional Sessions Judge has said that the accused being

the husband of Madhuri subjected her to mental and physical cruelty by

beating, abusing with a view to coercing her to meet his unlawful demand.

20 Cri.Appeal_334_2017_Jd

That means, the charge was also not properly framed by the learned trial

Judge. Section 498-A of the Indian Penal Code gets attracted when the

husband and/or his relatives subjects a woman to cruelty and the explanation

defining cruelty that has been given dividing it in two parts i.e. (a) and (b).

As regards proof regarding the cruelty as contemplated under Explanation

(a) of Section 498-A of the Indian Penal Code, the prosecution will have to

prove the willful conduct on the part of the husband and/or relative of such a

nature as is likely to drive the woman to commit suicide or to cause grave

injury or danger to life, limb or health (mental or physical) of the woman.

Here, the contents of both the dying declarations, as aforesaid, are vague and

are not clarifying since when she was being subjected to cruelty. Even as

regards the testimony of PW 6 Nandabai is concerned, she has stated that the

accused was addicted to liquor. He was beating deceased by consuming

liquor. She used to visit her daughter's place and sometimes her daughter

used to come to her and at that time she used to tell her about the ill-

treatment. But then she used to give understanding to the daughter that

there will be change in his behaviour after getting children. She is not

further elaborating that what happened after birth of first child, whether

same act continued, what course she had adopted to give understanding to

the accused and what happened after the second child was born. Such vague

statements do not prove the ingredients of the offence. Being the mother of

21 Cri.Appeal_334_2017_Jd

Madhuri it does not appear that she has tried to have settlement or redressal

to her plight. PW 6 Nandabai does not say that she had talks with the

parents of accused and asked them to intervene. She has admitted that

accused is from her relations even prior to the marriage between the accused

and Madhuri. They had the knowledge that accused has two brothers; elder

was deaf and dumb and not earning and the younger was unmarried. She

was aware that the accused was a labourer. Under the said circumstance, she

ought to have taken active part in the redressal of the grievances of daughter.

Now, after the incident is over, she cannot be allowed to say it in vague. Even

from her testimony we are unable to get that the mental condition of

Madhuri had become such that it was likely to drive her to commit suicide.

In a sudden quarrel if she decides to commit suicide, then that cannot be

covered under Explanation (a) of Section 498-A of the Indian Penal Code. As

regards Explanation of (b) of Section 498-A of the Indian Penal Code is

concerned, the prosecution will have to prove the harassment of the woman

was with a view to coercing her or any person related to her to meet any

unlawful demand for any property or valuable security or is on account of

failure by her or any person related to her to meet such demand. The facts

and the evidence do not indicate that there was any kind of demand from the

accused. Therefore, the conviction of the accused for the offence

punishable under Section 498-A of the Indian Penal Code is absolutely not

22 Cri.Appeal_334_2017_Jd

sustainable. The learned trial Judge has failed to consider that the basic

ingredients of the said offence are not proved.

20 PW 7 Dr. Manoj Patekar is the Medical Officer, who conducted

the autopsy. There is no much dispute regarding the cause of death.

Madhuri had sustained 63% burns and the cause of death was "Septicemia

due to dermo-epidermal thermal burns". In his cross-examination he has

admitted that the burn injuries may be possible by accident, therefore, only

on the basis of postmortem report we cannot come to the conclusion that the

death was homicidal in nature.

21 Here, the prosecution has not examined Abadabi, who had

reached the spot first in time, even as per the dying declaration Exh.16.

However, prosecution has examined PW 9 Bandu Tribhuvan, the neighbour,

who had said that in the noon time when he heard shouting, he came

outside, he saw that the wife of the accused was burning. He was unable to

say what happened, but he extinguished the fire. Abedabi was present.

Madhuri carried to hospital by in-laws. He claimed ignorance as to whether

accused is addicted to liquor. He has been declared hostile. But in cross-

examination by the accused he has also stated that accused used to reside

with his wife, two children, two brothers and parents, jointly. Accused and

23 Cri.Appeal_334_2017_Jd

his wife using the front room and rest of the members were using the back

room. He never heard noise of quarrels between accused and his wife.

Those statements in the cross-examination by this witness will have to be

considered and those are against the interest of the prosecution. It rather

shows that there was possibility of other family members in the house at the

relevant time. Those family members have not been made as an accused not

even for Section 498-A of the Indian Penal Code. The prosecution has not

examined any one of them. Therefore, adverse inference will have to be

drawn.

22 PW 2 Ramakant Ingale is the panch to the spot panchnama and

as aforesaid, the said panchnama is as vague as it is. PW 3 Amirkhan Pathan

is the panch to the seizure of clothes of the accused. Though in his

examination-in-chief he has stated that pieces of sari were attached to the

pant, in the cross-examination he has stated that he has signed on already

executed panchnama and has not seen anything actually. His testimony is of

no use at all. PW 4 Rajendra Jadhav is the Photographer. No doubt, those

photographs are showing the situation from inside, but even the picture of

the lane has also been taken, which shows that the house of the accused was

surrounded by other houses. It was the day time and, therefore, possibility of

persons immediately going to the spot has not been ruled out. Rather there

24 Cri.Appeal_334_2017_Jd

would have been many persons, but except PW 9 Bandu nobody has been

examined.

23 Now, turning back to testimony of PW 6 Nandabai, to whom

alleged oral dying declaration has been given and in respect of the same we

would say that the oral dying declaration is the weakest piece of evidence

and unless the testimony of the witness inspires confidence, it cannot be

relied upon. So also, rule of propriety requires that it should be

corroborated. The first and the foremost fact to be noted is that she does not

give the time when she reached the GHATI, Aurangabad. She says that she

had gone along with son Shailesh and daughter Archana. She is giving a

different story. She says that earlier day the accused had assaulted Madhuri

under the influence of liquor. He had not allowed to take dinner and on the

next day he came to house after drinking liquor, demanded meal to her and

when Madhuri replied that there is no material for cooking food and

therefore the food is not ready, he started beating her. This story is not told

by even the deceased in her both the dying declarations. Therefore, the said

oral dying declaration does not inspire confidence.

24 PW 10 Pushpa Patil is the Investigating Officer. She has given

the account of the investigation she has carried out. But, as aforesaid, two

25 Cri.Appeal_334_2017_Jd

dying declarations are not inspiring confidence/trustworthy for the reasons

stated and the oral dying declaration is also not reliable. The learned trial

Judge ought not to have based the conviction on the basis of two written

dying declarations and one oral dying declaration. Further, it is also to be

noted that the questions, those were formulated for being asked to accused

under Section 313 of the Code of Criminal Procedure, are as cryptic as they

are. It is not absolutely indicating as to who has said what. Still the question

is asked thereafter, as to why the witnesses were speaking against him. The

purpose of putting questions to the accused at the end of the trial is to give

an opportunity to the accused to put forth his say in respect of the entire

incriminating evidence. Here, we can get that all the incriminating evidence

was not put to the accused and thereby a prejudice has been caused to him.

Though this point was not agitating by the learned Advocate for the

appellant, we are considering the same. As the learned trial Judge has failed

to appreciate the evidence properly and has come to a wrong conclusion,

interference is required. The appeal, therefore, deserves to be allowed by

setting aside the impugned judgment and order. Hence, following order.

                                     ORDER


1              The appeal is hereby allowed.





                                            26                              Cri.Appeal_334_2017_Jd



2                The conviction awarded to the appellant by learned Additional

Sessions Judge, Aurangabad, Dist. Aurangabad in Sessions Case No.32/2015

after holding him guilty for the offence punishable under Sections 302, 498-A

of the Indian Penal Code stands quashed and set aside.

3 The appellant stands acquitted of the offence punishable under

Sections 302, 498-A of the Indian Penal Code.

4 He be set at liberty, if not required in any other case.

5 The fine amount deposited, if any, be refunded to the appellant

after the statutory period.

6 We clarify that there is no change as regards the order in respect

of disposal of muddemal.

(ABHAY S. WAGHWASE, J.)                           ( SMT. VIBHA KANKANWADI, J. )




agd