Jijabai W/O. Ashok Dongre And Anr vs The State Of Maharashtra
2023 Latest Caselaw 9965 Bom

2023:BHC-AUG:21004-DB


                                                                   Criminal Appeal 423 of 2017
                                                      -1-

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                                        CRIMINAL APPEAL NO. 423 OF 2017

                 1.       Jijabai w/o Ashok Dongre,
                          Age 47 years, Occ: Household,
                          r/o Kadethan (Bk), Tq. Paithan,
                          District Aurangabad.

                 2.       Ashok s/o Shankarrao Dongre
                          Age 52 years, Occ: Agriculture,
                          r/o Kadethan (Bk), Tq. Paithan,
                          District Aurangabad.                           ... Appellants

                                  Versus

                          The State of Maharashtra                       ... Respondent
                                                     .....
                                Mr. Nilesh S. Ghanekar, Advocate for Appellants
                                 Mr. S. D. Ghayal, APP for Respondent-State
                                                     .....

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

                                               Reserved on      : 21.09.2023
                                               Pronounced on    : 27.09.2023

                 JUDGMENT [ABHAY S. WAGHWASE, J.] :

1. On account of conviction recorded by learned Additional

Sessions Judge-8, Aurangabad in Sessions Case No. 114 of 2015 dated

07.08.2017 for offence punishable under Section 302 r/w 34 of the

Indian Penal Code [IPC], the appellants are questioning the legality,

maintainability and sustainability of the said judgment by preferring

the instant appeal.

Criminal Appeal 423 of 2017

2. In brief the case of prosecution is that the appellants, who are

parents-in-law of deceased Pramila, picked up quarrel with her in the

evening of 25.01.2015 for not bearing child and they asked her to

leave. According to prosecution, mother-in-law, on instigation of

father-in-law, poured kerosene on Pramila and ignited her. On

account of 93% burns, she was taken to hospital where she gave

dying declaration naming both in-laws to be responsible for the burns

and resultantly, PW3 PSI Pawar recorded the dying declaration and

registered crime on the strength of the same. The said crime was

investigated by PW11 PSI Khune and after completion of

investigation, he chargesheeted the appellants. In support of their

case, prosecution adduced evidence of in all 11 witnesses and also

relied on documentary evidence like dying declaration, inquest

panchanama, FIR and postmortem report etc.

At trial, on hearing both sides and after appreciating the

evidence adduced by prosecution, learned trial court accepted the

case of prosecution as proved on the basis of dying declaration,

holding it to be inspiring confidence. Resultantly, such judgment is

now taken exception to by way of filing instant appeal on various

grounds mentioned in the appeal memo.

Criminal Appeal 423 of 2017

3. This being appeal under Section 374 of the Code of Criminal

Procedure [Cr.P.C.], we have re-appreciated, re-examined and re-

analyzed the entire oral and documentary evidence adduced by

prosecution in trial court.

4. The role and status of the prosecution witnesses is as under:

PW1 Parmeshwar Bhukele and PW2 Sunil Tawar are the panchas to spot panchanama and seizure of articles. They have not supported prosecution.

PW3 PSI Sampat Pawar is the police official, who, on receiving MLC Exh. 43, approached Ghati Hospital and after obtaining certificate regarding fitness of patient to give statement, recorded the same at Exhibit 45 and registered crime.

PW4 Kacharu Sonawane, brother and PW5 Bebika Narwade, sister of deceased claim to have received oral dying declaration from deceased on the next day.

PW6 Dr. Anil Shinde is the Gynecologist who had treated deceased for infertility.

PW7 Santosh Phate is the photographer who took photographs at the spot.

Criminal Appeal 423 of 2017

PW8 Dr. Manish Jagtap is the doctor who gave certification of fitness on dying declaration Exhibit 45.

PW9 Dr. Balaji Phalke is the autopsy doctor who conducted postmortem and issued report Exhibit 70. According to him, cause of death is "shock due to thermal burns".

PW10 Ravi Gaikwad is the pancha to inquest panchanama Exhibit

75.

PW11 PSI Ramesh Khune is the Investigating Officer.

SUM AND SUBSTANCE OF THE ARGUMENTS

5. In favour of the relief sought, learned counsel for the appellants

would submit that the only piece of evidence in this case is the so-

called dying declaration. However, according to him, the dying

declaration is not voluntary one and is not inspiring confidence as it is

shown to be recorded in the midst of relatives. Even MLC papers and

hospital papers carry history of accidental burns. That, such crucial

factors ought to have been carefully appreciated by learned trial

court, but it failed to do so and hence, according to him, there is no

proper appreciation of evidence and even law on dying declaration

has not been applied by learned trial Judge. Resultantly, he prays to

allow the appeal.

Criminal Appeal 423 of 2017

6. Per contra, learned APP for respondent State would submit that

dying declaration was promptly recorded by police official. Such

police official has deposed in the witness-box. In the dying

declaration, deceased has named appellants. Finding the said dying

declaration to be worthy of credence, learned trial Judge has

committed no error in accepting the same and holding accused guilty

and consequently, according to him, there is no merit in the appeal.

7. Here, admittedly case is based on dying declaration allegedly

given by Pramila. Before adverting to the credibility and veracity of

the dying declaration, we deem it fit to give a brief account of the

settled legal position while appreciating the evidentiary value of dying

declarations.

8. Since the judgment of Khushal Rao v. State of Bombay; AIR

1958 SC 22, on numerous occasions law on this aspect has been

propounded and certain principles have been culled out from plethora

of judgments by the Hon'ble Supreme Court. Very recently the

Hon'ble Supreme Court in the case of State of Uttar Pradesh v.

Veerpal and Another; (2022) 4 SCC 741, while deciding Criminal

Appeal No.34 of 2022 on 01-02-2022, has reiterated the principles to

Criminal Appeal 423 of 2017

be borne in mind while analyzing and accepting dying declaration.

The settled principles are as follows :

"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

Criminal Appeal 423 of 2017

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 statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

Other celebrated and water-shedding judgments on above

aspects are (i) Laxman v. State of Maharashtra; (2002) 6 SCC 710

and (ii) Jagbir Singh v. State (NCT of Delhi); (2019) 8 SCC 779.

9. Here, the dying declaration which is made the basis of

registration of crime is at Exhibit 45.

10. The solitary piece of evidence admittedly is the dying

declaration Exhibit 45 recorded by PW3 PSI Pawar. His evidence is at

Exhibit 42 in which he speaks about receiving MLC from Ghati

Hospital and accordingly he approaching the hospital, seeking opinion

of doctor about fitness and then he claims to have put her preliminary

questions wherein she allegedly said that her husband had gone for

work at village Nilajgaon since last two months and that she was

staying with her in-laws. According to this witness, she further stated

Criminal Appeal 423 of 2017

that her marriage was performed five years back and that she has no

issues. That, on 25.01.2015 around 6.00 p.m. when she was

preparing food, her father-in-law came to her and said " tula mulbal

hot nahi " (you are unable to conceive). According to this witness, she

further stated that father-in-law started abusing her and so she

requested him not to do so. At that time, mother-in-law came, took

kerosene from a Bisleri bottle and poured it on her person. Thereafter

father-in-law asked mother-in-law to ignite her and mother-in-law set

her on fire by using match-box. That, both in-laws and neighbours

took her to Ghati hospital. This witness has identified dying

declaration at Exhibit 45.

In cross, above witness has admitted that his statement was not

recorded by the Investigating Officer and he is first time stating

whatever is narrated in examination-in-chief. In para 4 of his cross, he

has admitted that while in Ghati hospital, in the concerned ward,

relatives of Pramila were present.

11. The sum and substance of the dying declaration dated

26.01.2015 [Exhibit 45] is that on 25.01.2015 around 6.00 p.m.,

while she was cooking food, at that time, her father-in-law said to her

that she is unable to conceive and abused her. She requested him not

Criminal Appeal 423 of 2017

to abuse her. At that time, mother-in-law brought Bisleri bottle having

kerosene and poured it on her person and thereafter, her father-in-

law directed to ignite her upon which, mother-in-law ignited match

stick and set her fire. This dying declaration seems to be recorded at

21.00 hrs. on 26.01.2015. Here, it is to be noted that occurrence had

taken pace on 25.01.2015 around 6.00 p.m. In spite of being brought

to the hospital after two and half hours or so, the dying declaration is

recorded on the next day by PW3 PSI Pawar at 21.00 hrs. PW3 has

admitted that at such time, relatives of Pramila were present in the

ward. Even the Doctor [PW8 Dr. Jagtap], who examined Pramila and

gave endorsement, in cross has admitted that her relatives were

present when PW3 PSI Pawar recorded her statement. Therefore,

there is enough room to infer that the dying declaration is apparently

recorded in presence of her relatives. Therefore, above circumstances

compel us to hold that there is doubt about voluntary dying

declaration.

12. Though victim's brother and sister, who reached same night at

around 1.30 a.m. and claimed to have received oral dying declaration,

they have not informed anything to that extent in their statement

under Section 164 of Cr.P.C. and they have admitted regarding it in

their cross-examination. No efforts were taken to promptly lodge FIR

Criminal Appeal 423 of 2017

in spite of claiming to have received dying declaration next day

morning. Therefore, all such circumstances create doubt about

credibility and veracity of the dying declaration.

13. Learned counsel for the appellant would submit that motive is

not established. Here, in dying declaration, allegations are levelled

that parents-in-law were taunting her for not bearing child. Even

though PW6 Dr. Shinde, who had given treatment to deceased for not

bearing child, is examined, he has stated in his evidence that

whatever tests were conducted revealed that their reports were

normal. Therefore, even motive is not cogently established. We find

that what preceded the alleged incident is not finding place in the

dying declaration. There are direct allegations of abuse for not

bearing child and then pouring kerosene. Role attributed to father-in-

law is about instigation. There is no evidence about from where

kerosene was brought and poured. It is surprising to note that in spite

of the fact that deceased claimed that she was cooking and mother-in-

law poured kerosene, she does not seem to have reacted or attempted

to flee. It is not the case that she was caught hold by father-in-law or

even the doors of the room were kept locked to prevent her from

going out. Neighbours who doused fire and shifted her to hospital,

namely, Vikram and Dattu are not examined by prosecution. It has

Criminal Appeal 423 of 2017

also come in the dying declaration itself that parents-in-law had taken

her to the hospital. Therefore, such circumstances prompt us to draw

adverse inference against prosecution version.

14. It has been brought to our notice by learned counsel for the

appellants that in medical papers/case papers, history reported is of

accidental burn. This aspect has not been brought by prosecution on

record for the best reason known to it. Therefore, this further

contributes to the suspicious character of prosecution evidence.

Resultantly, in our considered opinion, the solitary piece of evidence

i.e. dying declaration is not voluntary and it does not inspire

confidence and cannot resultantly be made the basis for conviction.

15. Learned trial court has not appreciated the evidence as well as

the law relating to dying declaration in its proper perspective. The

above aspects are not meticulously examined by prosecution while

recording guilt. Therefore, interference is called for and hence, we

proceed to pass the following order:

ORDER

I. The appeal stands allowed.

Criminal Appeal 423 of 2017

II. The conviction awarded to appellant no.1 Jijabai w/o Ashok Dongre and appellant no.2 Ashok s/o Shankarrao Dongre by learned Additional Sessions Judge-8, Aurangabad in Sessions Case No.114 of 2015 on 07.08.2017, after holding them guilty of committing offence punishable under Section 302 r/w 34 of the Indian Penal Code, stands quashed and set aside.

III. The appellants stand acquitted of the offence punishable under Section 302 r/w 34 of the Indian Penal Code.

IV. The appellants be set at liberty, if not required in any other case.

V. We clarify that there is no change in the order as regards disposal of muddemal is concerned.

[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]

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