Bombay High Court
Marthabai Yeshwant Bhingardive And Ors vs The State Of Maharashtra on 1 April, 2024
2024:BHC-AUG:6881
CriAppeal-91-2002
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 91 OF 2002
1. Marthabai w/o Yashwant Bhingardive
Age : 55 years, Occu. Household,
2. Laxmibai w/o Nitin Bhingardive
Age : 23 years, Occu. Household,
3. Nitin s/o Yashwant Bhingardive
Age : 26 years, Occu. Agri.
4. Yashwant s/o Savaleram Bhingardive (abated)
Age : 59 years, Occu. Agri.
(Appeal abated against appellant no.4
as per order dated 28.07.2017)
All residents of Nagardevale,
Tq. Nagar, Dist. Ahmednagar. ... Appellants
[Orig. Accused Nos. 1 to 4]
Versus
The State of Maharashtra ... Respondent
.....
Mr. R. S. Shinde, Advocate h/f Mr. R. B. Raghuwanshi for the
appellant.
Mr. S. M. Ganachari, Advocate for the Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 18.03.2024
Pronounced on : 01.04.2024
JUDGMENT :
1. Appellants are questioning the judgment and order of
conviction dated 13.02.2002 passed by 4th Ad-hoc Additional Sessions
CriAppeal-91-2002
Judge, Ahmednagar in Sessions Case No. 145 of 2001, convicting
appellants for offences under Sections 498-A and 306 of the Indian
Penal Code [IPC].
PROSECUTION CASE IN NUTSHELL IS AS UNDER
2. Accused, who were in-laws of deceased Kusum, were
chargesheeted by Bhingar Police Station on the premise that
deceased, a widow, resided with her children in the immediate
neighbourhood of accused persons i.e. her in-laws. Since demise of
her husband Santosh, accused persons were subjecting deceased
Kusum to ill-treatment as they were keen in seeing that she leaves the
house, having lost her husband. According to prosecution, they used
to regularly abuse her and subject her to both, physical and mental
cruelty.
3. On 17.07.2001, it is the case of prosecution that, accused
persons again came to deceased, picked up quarrel and after abusing
her, she was beaten by means of fist and kick blows. Such treatment
having become unbearable, deceased immolated herself resulting into
92% burns. She was admitted to hospital. Her dying declaration was
recorded on the strength of which, crime bearing no. 64 of 2001 was
registered for offences punishable under Sections 498-A, 323, 504,
CriAppeal-91-2002
506 r/w 34 of IPC. While undergoing treatment, she succumbed and
therefore, charge was converted to 306 of IPC and after completion of
investigation, they were duly chargesheeted and tried by learned 4 th
Ad-hoc Additional Sessions Judge, Ahmednagar, who, on appreciating
oral and documentary evidence, held all accused persons guilty for
offence under Sections 498-A and 306 r/w 34 of IPC and sentenced
them to imprisonment and to pay fine.
Such judgment and order of conviction is now questioned by
appellants by filing instant appeal.
4. At the outset it needs to be mentioned that, since during
pendency of appeal, accused/appellant no.4 Yashwant s/o Savaleram
Bhingardive died, appeal stands abated as against him and there is
order to that effect dated 28.07.2017. Now, appeal of only appellant
nos. 1 to 3 remains for consideration.
SUBMISSIONS
On behalf of appellants :
5. Learned counsel for the appellants, apart from placing on
record written notes of arguments, submitted that there is apparently
false implication. Deceased committed suicide in anger for the best
CriAppeal-91-2002
reasons known to her. That, there is no evidence about commission of
offence under Section 498-A of IPC. Specific instances of ill-treatment,
abuse are not given by any of the witnesses. That, allegations on the
point of cruelty are general and omnibus in nature.
6. Secondly, according to him, crime was registered on the basis
of two dying declarations, but the same are not consistent and are
rather at variance. He would further point out that deceased had
admittedly suffered 92% burns and therefore, it was duty of
prosecution to establish that deceased was in a position to give two
dying declarations. There is doubt about her fitness to give dying
declaration. The doctor, who examined her and permitted PW3 PHC
Suryawanshi to record dying declaration Exhibit 29, is also not
examined by prosecution. That, on the contrary, there is evidence
suggesting that condition of deceased was crucial. Therefore, the
dying declarations also come under shadow of doubt.
7. He further submitted that there is no independent evidence.
There is no evidence that accused abetted the suicide. Necessary
ingredients for attracting Section 306 IPC are also patently missing.
Therefore, under such circumstances, learned trial court ought not to
have accepted the case of prosecution and ought not to have further
CriAppeal-91-2002
recorded guilt, but that not having happened, appeal has been filed
and the same deserves to be allowed by setting aside the impugned
judgment.
On behalf of State :
8. Learned APP supported the judgment by pointing out that
prosecution has adduced testimonies of in all 5 witnesses. They are all
consistent. That apart, there are two dying declarations naming
accused to be responsible for abetment to commit suicide. There was
consistent ill-treatment. On the day of occurrence also accused
persons had visited deceased, abused and beaten her. It having
became a regular affair, her life was made miserable and therefore,
she took extreme step of committing suicide. Accused are solely
responsible and are thereby rightly held guilty. According to learned
APP, there is no merit in the appeal and hence he prays to dismiss the
same.
EVIDENCE IN TRIAL COURT ON BEHALF OF PROSECUTION
PW1 Dr. Todmal was the medical officer posted at Civil Hospital,
Ahmednagar. He deposed that he accompanied Special
Executive Magistrate who had come for recording dying
declaration. After examining and finding patient Kusum fit,
both mentally and physically, to give statement, he made
CriAppeal-91-2002
observations to that extent after which, Special Executive
Magistrate recorded dying declaration. He deposed that after
recording statement, patient gave thumb impression and he also
gave endorsement over Exhibit 24.
PW2 Arun acted as pancha to spot panchanama. He identified the
same to be at Exhibit 26 and its contents to be true.
PW3 Police Head Constable Suryawanshi, who recorded dying
declaration Exhibit 29 while Kusum was admitted in Civil
Hospital and on the basis of the same, crime was registered.
PW4 Shaikh Ahmed was the Executive magistrate, who recorded
dying declaration Exhibit 24.
PW5 API Ashok Shete, Police Officer, who arrested accused and
handed over further investigation to PSI Kale.
9. After Statement under Section 313 of Cr.P.C., accused have also
adduced evidence of defence witness DW1 Sunil. The sum and
substance of his evidence is that on 17.07.2001, he heard shouts from
the house of deceased. A rickshaw was engaged and deceased was
taken to hospital. According to him, while in rickshaw, deceased did
not talk. According to him, at the time of admission, Doctor asked her
about cause of burns, to which she told that she suffered burns due to
blaze of stove. Further, according to him, in the Civil Hospital
CriAppeal-91-2002
relatives of Kusum, who had gathered, asked her to name the accused
persons.
ANALYSIS
10. Thus, on taking survey of evidence, here, prosecution seems to
have rested its case on the testimony of PW1 Dr. Todmal, who was
available at the casualty in Civil Hospital, Ahmednagar and had
examined deceased before recording of her dying declaration by
PW4 ; PW4 Executive Magistrate Shaikh Ahmed who, on receipt of
letter from Bhingar Police Station, visited hospital and recorded dying
declaration Exhibit 24 ; PW2 Arun, who acted as pancha to spot
panchanama Exhibit 26; PW3 Police Head Constable Suryawanshi,
who also recorded second dying declaration Exhibit 29 and registered
crime ; whereas, PW5 API Shete was the Investigating Officer.
11. Apparently, there is no other witness on behalf of prosecution
i.e. from the deceased's side. The reason seems to be that she was
already a widow. But her children residing with her are not made
witnesses.
12. Therefore, entire case of prosecution rests upon two dying
declarations Exhibit 24 and 29, the translated version of which is
reproduced below for proper comprehension.
CriAppeal-91-2002
Dying Declaration Exhibit 24 :
Sessions Case no. 145/2001. Patient is conscious and well-oriented before
Exh. 24 starting statement and can obey vocal commands.
Admitted in evidence on 18.01.2002 Signed/-
Signed/- 18-1-2002 Sessions Judge, Chief Medical Officer 18-7-2001 at 8.00 PM
Ahmadnagar.
DYING DECLARATION
CIVIL HOSPITAL, AHMADNAGAR
18-7-2001 at 8.05
I introduced myself as the Special Judicial Magistrate to the patient
and began to record the statement as under:
I, Kusum w/o Santosh Bhingardive, aged 27 years, Occ. Household
and Labourer, R/o Nagardevala, Taluka: Ahmadnagar, do hereby state in
person that, I reside at the abovementioned address and my parental home is
at Tambori in Rahuri taluka. I am married since 9 years and I have three
daughters and a son. My husband died two years ago. I reside with my four
children at my own house and my mother-in-law Marthabai and brother-in-
law Nitin Bhingardive and co-sister Lakshmi are my neighbourers. I raise my
children by working as a maid. On Tuesday, 17-6-2001, I returned to home
after work and was seated in the foreyard, my co-sister Lakshmi and mother-
in-law started abusing and beating me as to why the garbage was thrown?
They also said that, "you have only killed your husband." This made me angry
and I came inside my house and in a fit of anger poured down the plastic
cannister full with 2 liters of kerosene on my person and ignited myself with a
burning matchstick. I had worn a nylon saree and saree-petticoat that caught
fire. I got burn injuries on my chest, face, both hands and thighs. I started
shouting. The children in neighbourhood doused the fire by pouring the water
on me. My mother-in-law has admitted me in the Civil Hospital by a rickshaw
and I am under treatment at present.
My mother-in-law Marthabai, father-in-law Yashwant Sawaleram
Bhingardive, brother-in-law Nitin Bhingardive and co-sister Lakshmibai were
harassing me since beginning. I have burnt myself as I was fed-up with the
harassment of the above persons. I have a complaint against them.
Thus I have made the statement. The statement has been read
over to me and I accept the same.
Thumb impression
of Kusum w/o Santosh Bhingardive
18-7-2001
at 8-30 PM [The] Patient is conscious and well oriented during
and after statement and can obey vocal orders.
Dr. Todmal, Chief Medical Officer,
18-7-2001 at 8.30 PM
CriAppeal-91-2002
Dying Declaration/FIR Exhibit 29 :
17-7-2001
COMPLAINT
I, Kusum w/o Santosh Bhingardive, aged 27 years, r/o Nagardevale,
Taluka: Ahmednagar, do hereby state in person, being admitted in the burn
ward of the Civil Hospital at Ahmednagar that, I am the resident of above
place and I reside with my daughters , 1. Shubhangi, aged 8 years, 2. Shweta,
aged 4 years, 3. Soni, aged one and half years and the son Ganesh aged 6
years. My husband Santosh died two years ago due to illness and I am residing
with my children separately after the death of my husband. My brother-in-law
1. Nitin Yashwant Bhingardive, 2. Co-sister Lakshmibai w/o Nitin Bhingardive
3. Mother-in-law Marthabai and 4. Father-in-law Yashwant Savaleram
Bhingardive, all residents of Nagardevale reside separately as my neighbour.
These persons used to abuse, threaten and beat me always since the death of
my husband, Santosh and say that, "our man has gone, what right do you have
to stay here and should leave" and harass me. Due to the above reason, after
the death of my husband [from almost two years] and during my stay at
Nagardevale at my matrimonial home, the above persons have abused,
threatened and ill-treated me, humiliated me and have harassed me mentally
and physically.
Today, on 17-7-2021, I had been gone for my usual work of washing
utensils and washing and returned to home at 4.00 o'clock, 1. Lakshmibai
Nitin Bhingardive and 2 Marthabai Yashwant Bhingardive started a quarrel by
saying that what right I have to reside there after the death of husband? And
My brother-in-law 1. Nitin Yashwant Bhingardive, 2. Co-sister Lakshmibai w/o
Nitin Bhingardive 3. Mother-in-law Marthabai and 4. Father-in-law Yashwant
Savaleram Bhingardive, all residents of Nagardevale abused me, beat me
giving kicks and punches and threatened me of life. As this has become regular
and the ill-treatment by the above persons has become unbearable for me, I
have set myself ablaze by pouring kerosene on my person at 6.00 PM. I have
been admitted in the Civil Hospital, Ahmednagar by my mother-in-law
Marthabai for treatment as I received burn injuries on stomach, back, chest
and hands etc. I am under treatment at present and completely conscious. The
complaint has been read over to me and found to be true and correct. I have
put my thumb instead of my signature due to burning.
Before 17-7-2001
Signed/- Thumb impression Kusum Santosh Bhingardive
PHC, Camp P.S.
Pt. is conscious and is in position BHINGAR POLICE STATION
to give statement. Crime Regn No. 64/2001
Signed/- 9 PM U/s 498 [A], 323, 504, 506, 34
17-7-2001 registered on 17-7-2001 at 21-35 hrs
CMO PSO Camp Police Station
CriAppeal-91-2002
LEGAL POSITION
13. Since the judgment of Khushal Rao v. State of Bombay; AIR
1958 SC 22, on numerous occasions law on manner of appreciation of
dying declaration 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 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;
CriAppeal-91-2002
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 tevidencehe 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 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 Paniben v. State of Gujarat ; (1992) 2 SCC 774, Laxman v.
State of Maharashtra ; (2002) 6 SCC 710, Ganpat Bakaramji Lad v.
State of Maharashtra ; 2011 ALL MR Cri. 2249 Surendrakumar v.
State of Punjab ; (2012) 12 SCC 120, Jagbir Singh v. State (NCT of
Delhi) ; (2019) 8 SCC 779 and Madan v. State of Maharashtra ;
(2019) 13 SCC 464.
CriAppeal-91-2002
14. Bearing in mind the above settled legal position, when the
above reproduced dying declarations Exhibits 24 and 29 are put to
minute scrutiny, it is noticed that in Exhibit 24, which is recorded by
PW4 Executive Magistrate Shaikh Ahmed, decease reported that she is
a widow, she resides separately as well as her in-laws reside
separately. On the relevant day i.e. 17.07.2001, when she returned
from work, she informed that, her sister-in-law accused no.2 Laxmibai
questioned her for throwing garbage and thereafter mother-in-law
accused no.1 Marthabai joined her and they both abused and beat
deceased and said that she killed her husband and therefore, in the
urge of anger, she entered in her own house, poured kerosene and set
herself on fire. Finally, she has held mother-in-law, father-in-law,
brother-in-law and his wife also responsible for said suicidal burns.
15. Whereas, on carefully going through Exhibit 29 authored by
PW3 Police Head Constable Suryawanshi, which is stated as FIR and
is found to be in detail, she has stated that she is a widow. Her in-
laws were keen in seeing that, she having lost her husband, has no
right to stay in the house and they wanted her to leave the premises.
On this count, she claims that, they used to ill-treat her, but what was
the ill-treatment and when said instances took place has not been
informed by her in Exhibit 29. Likewise, regarding the incident, she
CriAppeal-91-2002
has stated that in-laws wanted her to leave her house and therefore,
they abused her and they used to do it regularly and therefore,
getting fed up, she poured kerosene and set herself on fire. In Exhibit
29, she states that her mother-in-law shifted her to the hospital.
16. Therefore, both Exhibits 24 and 29 are apparently at variance.
In one, she reports abuse and beating at the hands of sister-in-law and
mother-in-law on the count of throwing some garbage and
subsequently, in Exhibit 29 she names entire family members
including father-in-law, regarding whom she has not uttered single
word in Exhibit 24, attributing cruelty, harassment for leaving the
house, having lost her husband. Consequently, both dying
declarations are not consistent.
17. It is seen that in above dying declarations, solitary incident
dated 17.07.2001 seems to be the trigger point. There is not iota of
evidence of incessant ill-treatment to her. She speaks only about
accused persons wanting her to leave the premises, having lost her
husband. She has alleged that according to in-laws, they lost their son
because of her. Admittedly, she speaks of getting angry and setting
herself on fire. Resultantly, here, there is no abetment, instigation or
incitement. Presence of accused at the time of immolation has not
CriAppeal-91-2002
come on record. In one dying declaration, i.e. Exhibit 29, deceased
has stated that alleged occurrence took place at 4.00 p.m. She has
further stated that she immolated herself at 6.00 p.m. Therefore, after
initial occurrence, there was cooling period of almost two hours.
Immediately prior to 6.00 p.m., accused were not present there. There
is nothing to show that from 4.00 p.m. up to 6.00 p.m. accused were
maltreating Kusum and because of the same she committed suicide.
Hence, here, there is weak evidence or no evidence on the point of
498-A IPC. Apparently, accused and deceased were residing
separately. Further, on 17.07.2001 around 6.00 p.m., there is nothing
to show that accused, with specific intention that deceased should
end up her life, subjected her to abuses or ill-treatment.
Consequently, even necessary ingredients for attracting Section 306
IPC are patently missing.
18. After going through the impugned judgment, in the considered
opinion of this Court, there is apparently improper appreciation of
evidence. The essentials for attracting the charges are not available,
but still learned trial court has recorded guilt. Settled law while
analyzing dying declarations is also not borne in mind and applied,
resulting in erroneous conclusion. Hence, interference is called for.
Resultantly, this Court is constrained to pass the following order:
CriAppeal-91-2002
ORDER
I. The appeal is allowed.
II. The conviction awarded to the appellants i.e. 1) Marthabai w/o
Yashwant Bhingardive, 2) Laxmibai w/o Nitin Bhingardive and
3) Nitin s/o Yashwant Bhingardive, by learned 4 th Ad-hoc
Additional Sessions Judge, Ahmednagar in Sessions Case No.
145 of 2001 under Sections 498-A and 306 r/w 34 of IPC on
13.02.2002 stands quashed and set aside.
III. All the appellants stand acquitted of the offence punishable
under Sections 498-A and 306 r/w 34 of IPC.
IV. The bail bonds of the appellants stand cancelled.
V. Fine amount deposited, if any, be refunded to the appellants
after the statutory period.
VI. It is clarified that there is no change as regards the order
regarding disposal of muddemal.
[ABHAY S. WAGHWASE, J.]
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