Bombay High Court
Dnyaneshwar Kachru Warpe vs The State Of Maharashtra on 16 October, 2024
Author: R. G. Avachat
Bench: R. G. Avachat
2024:BHC-AUG:25145-DB
1 Criappeal-871-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 871 OF 2023
Dnyaneshwar Kachru Warpe
Age: 37 years, Occu: Labour,
R/o Shivoor Shinde Nala Phata,
Tq. Vaijapur, Dist. Aurangabad .... Appellant
VERSUS
The State of Maharashtra
Through Police Offcer,
Shivoor Police Station,
Tq. Vaijapur, Dist. Aurangabad .... Respondents
.....
Mr. Avinash R. Borulkar, Advocate for Appellant [Appointed]
Mr. S. J. Salgare, APP for Respondent - State
.....
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 25/09/2024
Pronounced On : 16/10/2024
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. This Criminal Appeal under Section 374[2] of the
Criminal Procedure Code, 1973 [hereinafter referred to as
'Cr.PC'], is directed against the Judgment and Order dated
13/10/2021, passed by the learned Additional Sessions Judge,
Vaijapur, District Aurangabad, in Sessions Case No.82/2016,
convicting the Appellant for the offence punishable under
Sections 302 and 498-A of the Indian Penal Code, 1860
[hereinafter referred to as 'IPC'] and sentencing him to suffer
Rigorous Imprisonment for life and fne of Rs.10,000/-, in
default to pay the fne, to suffer Simple Imprisonment for six [6]
months and Rigorous Imprisonment for three [3] years and fne
of Rs.2000/-, in default to pay the fne, to suffer Simple
Imprisonment for one [1] month, respectively.
2 Criappeal-871-2023.odt
2. The Prosecution's case as revealed from the Police Report
is as under:-
[I] The Appellant was married to Shobha [hereinafter
referred to as 'Deceased'] twelve [12] to ffteen [15] years prior
to the incident. Out of wedlock, they had one son and one
daughter. They were residing together at Shivoor, Taluka
Vaijapur, District Aurangabad. The Appellant used to earn
livelihood by driving a small Tempo. Since last fve [5] to six
[6] years from the date of incident, the Appellant was addicted
to liquor. The Appellant used to beat the Deceased by
suspecting her character. On fve [5] to six [6] occasions,
Deceased had gone to her maternal home due to the beating by
the Appellant. However, the Appellant brought her back to the
matrimonial home.
[II] On 04/08/2016 in between 5.30 p.m. and 6.00 p.m, the
Appellant came home in an inebriated state and beat the
children and Deceased. The Deceased did not wake-up early on
05/08/2016. Around 9.00 a.m. to 9.30 a.m., while Deceased
was sleeping, the Appellant abused her as she did not getup and
put kerosene on her and ignited fre. At that time, both the
children were playing outside. Deceased screamed, due to
which, her children and relatives came inside and doused the
fre with water. Deceased was taken to the Hospital by her
brother-in-law, sister and other relatives for treatment. The
Medico Legal Case information was sent to the Shivoor Police
Station and the Police Sub-Inspector of the said Police Station
recorded the statement of Deceased after the Doctor certifed
that she was in a ft state to give statement. In her statement,
Deceased narrated the said incident and Crime No.109/2016
3 Criappeal-871-2023.odt
came to be registered with the said Police Station for the offence
punishable under Sections 307, 323 and 504 of IPC.
[III] During the investigation, Spot Panchnama was done,
statement of witnesses were recorded. On the same day i.e.
05/08/2016, on the request made by the Investigating Offcer,
the Executive Magistrate recorded the statement of Deceased
after the Doctor certifed her to be stable and in a ft state of
mind to give statement. Deceased narrated the incident in her
statement. On 11/08/2016, Deceased succumbed to the burn
injuries. Inquest was done and the body was referred for
Postmortem. In Postmortem, the cause of death was revealed
as "Septicemia due to burns". The Articles seized during the
course of investigation, were sent for examination by the
Chemical Anaylzer. The Section 302 of IPC came to be included
in the Crime. The Appellant came to be arrested. The relevant
documents came to be collected by the Investigating Offcer. On
completion of investigation, the Appellant came to be Charge-
sheeted.
[IV] The learned Trial Court framed the Charge against the
Appellant for the offence punishable under Sections 302 and
498-A of IPC vide Exhibit - 10, to which, the Appellant pleaded
not guilty and claimed to be tried. To establish the Charge, the
Prosecution examined in all twelve [12] witnesses and brought
on record the relevant documents. After the Prosecution closed
their evidence, the statement of the Appellant came to be
recorded under Section 313[1][b] of Cr.PC. The Appellant
denied the case and evidence of the Prosecution. The Appellant
examined one [1] defence witness to show that, he was not
inside the house when the incident had taken place. After
4 Criappeal-871-2023.odt
hearing both the sides and appreciating the evidence available
on record, the learned Trial Court passed the impugned
Judgment and Order.
3. It is submitted by the learned Advocate for the Appellant
that, the material witnesses have not supported the case of
Prosecution. The case hinges on two [2] Dying Declarations. In
second Dying Declaration, the Deceased did not state that, the
Appellant came in a drunken state at home on 04/08/2016. The
evidence of the brother of Deceased in respect of oral Dying
Declaration cannot be believed, as some different version has
come on record in his evidence. The second Dying Declaration
was recorded in the presence of brother and mother of
Deceased. The Prosecution failed to prove the Charge and the
learned Trial Court has erred in convicting and sentencing the
Appellant. Hence, the Appeal be allowed.
4. It is submitted by the learned APP for the State that, non
supporting of the witnesses will not affect the case of
Prosecution, as two [2] consistent Dying Declarations are
proved by the Prosecution. The evidence on record established
that, Deceased was in a ft mental state when both her
statements were recorded. The conviction can be based on the
Dying Declarations. The oral Dying Declaration is also
consistent with the two [2] written Dying Declarations. Though
the Appellant examined defence witness, she admitted in the
cross-examination that, she did not want that the Appellant
should be punished and therefore, no value can be given to the
evidence of the said defence witness. The learned Trial Court
rightly appreciated the evidence on record and no interference
is called for in the impugned Judgment and Order. Hence, the
Appeal be dismissed.
5 Criappeal-871-2023.odt
5. It is the Prosecution's case that, the Appellant used to
suspect the character of Deceased and harass her from last fve
[5] years from the date of incident. On 05/08/2016, the
Appellant poured kerosene and set Deceased on fre in their
residence and Deceased succumbed to the burn injuries. From
the evidence on record, there is no dispute on the following
aspects :-
[i] Deceased was the wife of Appellant ;
[ii] Deceased suffered burn injuries and succumbed to
the same ;
[iii] The incident of burning took place in the residential house
of Deceased and Appellant ;
6. The Prosecution's case is entirely based on the Dying
Declarations. The frst Dying Declaration was recorded by PW -
5 [Ravindrakumar Vaijinath Warangule], who was the Police
Sub-Inspector at Shivoor Police Station, on 05/08/2016 and the
second Dying Declaration was recorded by PW - 7 [ Shivanand
Shankarappa Bidve], who was the Executive Magistrate at
Tahsil Offce, on 05/08/2016. The oral Dying Declaration was
made to PW - 9 [Kakasaheb Dadasaheb Badhe], who was the
brother of Deceased.
7. The evidence of PW - 5 [Ravindrakumar Vaijinath
Warangule] shows that, on 05/08/2016, he was attached to the
Shivoor Police Station and on that day, the Police Station Offcer
[PSO] received MLC at Exhibit - 34 and directed him to record
the statement of Deceased admitted to GHATI Hospital for burn
injuries. He prepared the letter at Exhibit - 35 for taking
opinion from the Doctor in respect of the condition of woman.
He also prepared the letter at Exhibit - 36 and issued it to the
6 Criappeal-871-2023.odt
Executive Magistrate for recording statement of Deceased. On
reaching GHATI Hospital, he issued the letter to the concerned
Doctor. The Doctor examined the Deceased and gave opinion
that, she was ft to give statement. He went to Ward No.22 - 23
where Deceased was admitted. He made inquiry with the
Deceased and recorded her statement. While recording the
statement, nobody was present near the Deceased. For better
understanding, the relevant part of the evidence of this witness
is re-produced below :-
"About the incident she told me that on 04.08.2016 her husband came
to house in drunken state at 5 to 6.30 pm. She further stated that her
husband started beating her and her children. She also stated that her
husband was always suspecting on her character and beating her. She
further stated that on 05.08.2016 she did not woke early in the
morning. She further stated that at about 9 to 9.30 am her husband
abused her and poured kerosene on her person and set her ablaze
where she was slept. She further stated that at that time her children
were playing outside in the courtyard. She also stated that her co-
sister, brother-in-law and children of her brother-in-law, extinguished
the fire by pouring water on her."
8. His further evidence shows that, he recorded the
statement of Deceased at Exhibit - 37, read over the same to
her and the Deceased accepted its correctness. As her hands
were burnt, he took thumb impression of right leg of Deceased
and put his signature on the statement. He again took
endorsement of the Doctor on the said statement. On the basis
of the said statement, he registered the Crime and handed over
the investigation to PW - 12 [Dhananjay Ramrao Pharate]. The
relevant part from the statement at Exhibit - 37 is re-produced
below for clarity :-
" dky fnukad 04-08-2016 jksth lk;adkGh 05-30 rs 6-00 oktsps
lqwekjkl ek>s ifr Kkus'oj gs nk# fiowu vkys o eqykauk ekjgk.k d#
ykxys rlsp rs usgeh nk# fiowu vkY;kuarj ek>s pkfj«;koj la'k; ?ksowu
f'kohxkG djk;ps- lk;adkGh eyk ekjgku dsY;kewGs eh vkt fnukad 05-
08-2016 jksth ldkGh yodj mByks ukgh- vankts 9-00 rs 9-32
oktsps lqekjkl eh mBys ukgh Eg.kwu f'kohxkG djr R;kauh ek>s vaxkoj
7 Criappeal-871-2023.odt
jkWdy
s vksrys o vkx ykowu fnyh- R;kosGh ek>s nksUgh eqys ckgsj [ksGr
gksrh- ek÷;k vksjM.;kP;k vkoktkus ek>h eqys] ek>h eksBh tko lafxrk
ojis o R;kaP;k eqyh rsFks vkY;k o R;kauh ik.;kus vkx fo>oyh- R;kuarj
ek>s fnj dSykl ojis] ek>h cfg.k yrk rqdkjke ixkj] ek>h u.kan rkbZ
mQZ m"kk ckcklkgsc ixkj ;kauh eyk ?kkVh nok[kkuk vkSjaxkckn ;sFks
mipkjklkBh vk.kwu nk[ky dsys-
ek>k ojhy tckc ek>s lkax.ks izek.ks fyghyk o rks eyk okpwu
nk[kfoyk rks cjkscj o [kjk vkgs- lnj tckc jk=h 8-00 rs 8-30
njE;ku ?ksryk-
le{k gk tckc fnyh lgh@vaxBk
Lok{kjhr/- (mtO;k ik;kpk vaxBk)"
(vkj-Ogh- okjaxqGs)
ifj- iks- mi fu-
9. He denied the suggestion that, the Deceased was not able
to speak because of weakness and further denied that, false
statement was recorded on the say of her paternal relative. He
admitted that, in the statement, he has not mentioned that,
nobody was present near the Deceased in the Ward. This would
not affect his above discussed evidence. He was recording the
statement and what the Deceased stated was material. The
cross-examination could not create slightest dent in the
evidence of this witness.
10. The evidence of PW - 11 [Dr. Ajinkya Janardhan Kasekar]
shows that, on 05/08/2016, he was attached to the GHATI
Hospital, Aurangabad. Deceased was admitted in Ward No.22 -
23 in the said Hospital. PW - 5 [Ravindrakumar Vaijinath
Warangule] recorded the statement of Deceased in his presence.
At the time of recording the statement, Deceased was stable,
conscious and oriented. After recording the statement, he gave
endorsement at Exhibit - 69 on the said statement and put his
signature. It was around 8.30 p.m. He admitted that, he did not
mention that, he examined the Deceased. This admission will
not affect his above referred testimony, which is corroborated
8 Criappeal-871-2023.odt
by Exhibit - 69. The cross-examination could not affect his
evidence.
11. The evidence of PW - 5 [Ravindrakumar Vaijinath
Warangule] and PW - 11 [Dr. Ajinkya Janardhan Kasekar]
corroborate each other on the point that statement of Deceased
was recorded on 05/08/2016 at GHATI Hospital when the
Deceased was in a ft state to give statement and on that basis,
Crime was registered.
12. The above substantive evidence and statement
established that, Deceased stated that, the Appellant in the
morning around 9.00 a.m. to 9.30 a.m. on 05/08/2016 abused
her as she did not get-up and poured kerosene on her and
ignited fre. She screamed and her children and relative came
to rescue her and doused the fre with water and she was
shifted to GHATI Hospital, Aurangabad for treatment. As the
said statement of Deceased was recorded, on the same day in
the evening at the Hospital when she was conscious and in a ft
medical condition to give statement and in the absence of her
relatives, the said statement can safely be relied upon. Though
the Prosecution witnesses were cross-examined by the
Appellant, nothing has come to create slightest doubt in
respect of the said statement at Exhibit - 37.
13. As regards the second Dying Declaration is concerned, the
above discussed evidence of PW - 5 [Ravindrakumar Vaijinath
Warangule] shows that, he had issued the letter at Exhibit - 36
to the Executive Magistrate for recording the statement of
Deceased. PW - 7 [Shivanand Shankarappa Bidve] was the
Naib-Tahsildar with Tahsil Offce on 05/08/2016. His evidence
shows that, he was called to the Tahsil Offce for receiving the
9 Criappeal-871-2023.odt
letter at Exhibit - 36 and accordingly, he went and took the said
letter. He went to the GHATI Hospital where Deceased was
admitted in burn Ward No.22 - 23. He issued letter at Exhibit -
46 to the Doctor for opinion in respect of ftness to give
statement. The Doctor took him near the Deceased and
examined her and opined that, Deceased was ft to give
statement. He asked the relatives of patient to go out of the
Ward. He introduced himself to the patient and recorded her
statement as per her say. The relevant part of his evidence in
respect of statement of Deceased is reproduced for clear
understanding :-
"I asked patient her name. I asked the patient as to what has happened
to her. On that she told that her husband set her ablaze by pouring
kerosene on her person. Patient also told that in the morning at about
9 to 9.15 am her husband came in drunken condition, quarrelled with
her and set her ablaze by pouring kerosene on her person and ran
away out of the house. She told that at that time nobody was present
in the house. The patient told me that she came out of the house by
shouting and her co-sister came running and extinguished the fire by
putting water on her. Patinet further told that she is having complaint
against her husband. I started recording statement at 10.26 pm and
finished it at 10.55 pm. After recording her statement I took thumb
impression of the right leg of the patient as the fingers of her hands
were burnt. Before that I had read over the contents of the statement
to her, to which she admitted the contents as true and correct. The
statement now shown to me bears my signature and thumb mark of the
patient. It is correctly recorded by me as stated by the patient. The
statement is marked as Exh. 47. While recording the statement doctor
was present alongwith me. After finishing the statement doctor again
examined the patient and gave his endorsement."
14. The relevant part of the statement of Deceased at Exhibit
- 47 recorded by this witness is reproduced below for clear
understanding :-
e`R;wiwoZ tckc
is'kaVP;k ukrsokbZdkauk okWMZP;k ckgsj tk.;kl lkafxrys- rs ckgj
xsY;kph [kk=h d#u tckc uksanfo.;kl lq#okr djr vkgs-
tckuh
eh f'kokuan fcMos uk;c rgflynkj ¼fuoM.kwd½ dk;Zdkjh naMkf/kdkjh
10 Criappeal-871-2023.odt
Eg.kwu vkiyk tckc ukanfo.;kl vkyks vkgs ;kph izFke is'kaVyk tk.kho d#u
fnyh-
izz'u 1½ rqeps uko dk; \
'kksHkk Kkus'oj ojis o; 24 o"ksZ jk- f'kowj rk- oStkiwj
2½ rqEgkyk dk; >kys vkgs \
eyk ek÷;k uo&;kus vaxkoj jkWdsy Vkdwu tkGya vkgs-
3½ gh ?kVuk d/kh o d'kh ?kMyh \ dq.kkykgh u ?kkcjrk lkaxk-
vkt ldkGh uÅ&lOokuÅ oktrk ek>k uojk nk# fiowu ?kjkr vkyk]
vkEgh eG;krY;k ?kjkr jkgrsk- nk# fiowu vkY;kuarj R;kus ekÖ;kcjkscj [kwi
HkkaM.k dsy vkf.k uarj R;kus ?kjkrhy dWue/kya jkWdsy ekÖ;k vaxkoj vksrwu eyk
isVowu fnys vkf.k rks ckgsj iGwu xsyk- ek>k uojk lkj[k nk# fiowu ;sÅu
ekÖ;kcjkscj [kwi HkkaM.k djk;pk-
4½ R;kosGh ?kjkr dks.k&dks.k gksrs \
R;kosGh ?kjkr dks.kp uOgr- ek>h eqys ckgsj [ksGr gksrh-
5½ rqEgkyk dks.kh fo>oya \
eyk isVoY;keqGs eh vksjMr ckgsj vkys- ek>h tkÅ 'kstkjh jkgrs-
rh iGr vkyh vkf.k uarj ekÖ;k vaxkoj ik.kh vksrwu fo>oay-
6½ rqeph dks.kkcnny rdzkj vkgs dk\
eyk ekÖ;k uo&;k fo#/n rdzkj vkgs- R;kup eyk isVoy-
ek>k ojhy tckc eyk okpwu nk[kfoyk- rks eyk letyk vlwu rk [kjk
o cjkscj vkgs-
tckc lq# >kY;kph osG & jk=h 10-26 fu'kk.kh mtO;k
tckc lekIrhph osG & jk=h 10-55 ik;kpk vaxBk
fnukad 05-08-2016 ukes 'kksHkk jkes'oj ojis
fBdk.k vkSjaxkckn (gkrkph cksVs vaxBk ?ks.;kP;k fLFkrhr
ukghr] rh tGkyh vkgsr R;keqGs
ik;kpk vaxBk ?ksryk vkgs-½
15. He denied the suggestion that, false statement of Deceased
was recorded. He admitted that, he did not see any ink on the
thumb on the right leg of the Deceased while taking her thumb
impression. That would hardly be of any consequence in view of
his substantive evidence, which remained unshaken in the
cross-examination. The evidence of PW - 7 [Shivanand
Shankarappa Bidve] is corroborated by the documents at
Exhibits - 46 and 47.
11 Criappeal-871-2023.odt
16. The evidence of PW - 8 [Dr. Prashant Premji Bhanushali]
shows that, on 05/08/2016, he was the resident Doctor in
Surgery Ward at GHATI Hospital. On that day, he received the
letter from Naib Tahsildar [PW - 7] to opine about medical
condition of Deceased. He examined the Deceased and found
her to be conscious, oriented about time, place and person and
he gave endorsement at Exhibit - 49. While recording the
statement by Naib Tahsildar, he was present and Deceased was
conscious and talking properly. After the statement was
recorded, he again examined the Deceased and found her
conscious and accordingly, he gave endorsement at Exhibit - 50
on the letter, which was at Exhibit - 46. He clarifed that, the
date below his endorsement at Exhibit - 50 was wrongly
written as 25/08/2016 instead of 05/08/2016.
17. His cross-examination shows that, he had not come with
the medical papers to show what treatment was given to the
Deceased. His cross-examination nowhere shows that, he was
called upon to bring the papers. The patient was provided with
oxygen mask and was given trimodal injection for relief from
pains. He denied the suggestion that, the said injection would
affect the brain function and it would lower down the pitch. His
admission that, he had not mentioned in both endorsement that
he examined the patient, would not affect his testimony, which
is corroborated by his endorsement about ftness of Deceased to
give statement. The cross-examination do not affect his
testimony.
18. The above discussed evidence of PW - 7 [Shivanand
Shankarappa Bidve] and PW - 8 [Dr. Prashant Premji
Bhanushali] established that, Deceased was found to be in a ft
12 Criappeal-871-2023.odt
condition to give the statement and her ftness was examined
by PW - 8 [Dr. Prashant Premji Bhanushali] prior to recording
her statement and after the statement was recorded. The
evidence of both the witnesses corroborate each other and gets
corroboration from the documents. Through the evidence of
these two [2] witnesses, the Prosecution proved the Dying
Declarations at Exhibit - 47. It is further proved that, the
relatives of Deceased were sent out of the ward prior to
recording the statement.
19. The Prosecution examined Kakasaheb Dadasaheb Badhe,
the brother of Deceased, as PW - 9. His evidence in respect of
beating and troubling the Deceased by the Appellant on account
of suspecting her character after consuming alcohol was
hearsay in nature. His evidence nowhere shows that, he had
seen the incident. His evidence shows that, on 05/08/2016, he
received phone call in the morning from Tukaram Pagar that,
Deceased had suffered burn injuries and was hospitalized. He
and his mother went to the GHATI Hospital where Deceased
was admitted. On inquiry about the incident, Deceased told
them that, in the evening of previous day, the Appellant came
drunk and on the point of bringing the food, the Appellant
assaulted her. She further told them that, in the next morning
she woke-up, the Appellant told her to go to the Government
Hospital and the Deceased asked the Appellant to take her to
the Hospital on motorcycle as she was unable to walk. She
further informed them that, the Appellant caught her legs and
made her move and poured kerosene on her and ignited fre by
matchstick.
13 Criappeal-871-2023.odt
20. He admitted in cross-examination that, he did not lodge
the report with the police chowky located in the GHATI
Hospital. His evidence nowhere shows that, he took some steps
for taking action against the Appellant after the Deceased told
him about the incident. The evidence of PW - 12 [Dhananjay
Ramrao Pharate], the Investigating Offcer, shows that, the
statement of this witness was recorded on 18/08/2016. This
shows that, his statement was recorded after fourteen [14]
days. This evidence in respect of Oral Dying Declaration, in the
light of the above evidence of PW - 9 [Kakasaheb Dadasaheb
Badhe], do not inspire confdence and is required to be seen
with doubt. True it is that, in his cross-examination, it has
come that the Doctor did not ask him and his mother to go out
of the Ward. His said evidence nowhere shows that he was
present at the time of recording the statement of Deceased.
There is no suggestion in his cross-examination that, the
Deceased was tutored. As seen from the evidence of the
witnesses discussed above, who recorded the Dying
Declarations that, no relatives were present at the time of
recording the statement of Deceased.
21. The evidence of PW - 4 [Dr. Ganesh Dhondiraj Niturkar]
shows that, he was attached to the Forensic Department of
GHATI Hospital, Aurangabad on 11/08/2016. On that day, he
received dead body of Shobha [Deceased] along with Inquest.
He performed the Postmortem with Dr. Sk. Arif. Deceased had
suffered 79% burns and cause of death was 'Septicemia due to
burns'. He prepared the Postmortem Report at Exhibit - 32.
His cross-examination shows that, he had substantial
experience in conducting the Postmortem. Non mentioning of
the age of burn injuries becomes inconsequential in view of the
14 Criappeal-871-2023.odt
above discussed evidence in respect of two [2] Dying
Declarations. He denied the suggestion that, the injuries
mentioned in the Postmortem Report may be self inficted burn
injuries. His evidence shows that, except burn injuries, there
were no injuries on the Deceased. Absence of other injuries will
not affect the Dying Declarations as medical evidence, is in the
nature of opinion evidence. From the evidence of this witness,
the Prosecution proved that, the Deceased succumbed to the
burn injuries suffered by her. The evidence of PW - 4 [Dr.
Ganesh Dhondiraj Niturkar] is corroborated by Postmortem
Report at Exhibit - 32.
22. PW - 6 [Pallavi Dnyaneshwar Warpe], daughter of
Deceased, came up with the different version that, her mother
i.e. Deceased, poured kerosene and set her ablaze due to beating
by the Appellant, who was a drunker. Her evidence shows that,
she was not cross-examined by the Prosecution with the
contention that, she was not supporting the case of Prosecution.
It is strange. Be that as it may. Her said version that, Deceased
committed suicide is required to be seen with doubt, for the
reason that, her evidence nowhere shows that, she witnessed
the actual incident. What her evidence shows is that, on the
day of incident, Deceased asked her to bring kerosene for
putting in the lamp and so she gave kerosene to her and went
out to their agricultural land. Her evidence shows that, on
hearing the shouts, she came home. What is seen from the
evidence of PW - 10 [Arjun Dnyaneshwar Warpe], who was the
son of Deceased is that, the house of Appellant and Deceased
was situated in their agricultural land. True it is that, the said
version is in favour of the Appellant, however as, she was not
the witness to the incident, it will not create any dent which
15 Criappeal-871-2023.odt
would affect the evidence in the nature of Dying Declarations.
23. PW - 3 [Lata Tukaram Pagar] was the sister of Deceased.
She had visited the Hospital where Deceased was hospitalized.
She did not support the case of Prosecution. What her evidence
goes to show is that, in the evening of 04/08/2016, when
Deceased was removing grass in the feld, the Appellant asked
her to get the food and accordingly, Deceased brought the food
for the Appellant. Deceased informed her that, she was beaten
severally by the Appellant. What has come in her cross-
examination is that, the Appellant used to always beat the
Deceased by suspecting her character. She admitted in the
cross-examination done by the Appellant that no complaint was
lodged by Deceased on earlier point of time regarding beating by
the Appellant and further admitted that, they also did not lodge
the complaint against the Appellant. Though she admitted in
the cross-examination done by the Appellant that, while going
to the hospital, Deceased was not speaking, she denied the
suggestion that the Deceased was not able to speak in the
GHATI Hospital. The evidence of this witness is not of any
assistance to the Prosecution for establishing the Charge.
24. The evidence of PW - 1 [Rohidas Walmik Adhude] who
acted as Spot Panch and PW - 2 [Devidas Bhaurao Jadhav], who
acted as Inquest Panch show that, they did not support the case
of Prosecution.
25. The evidence of PW - 12 [Dhananjay Ramrao Pharate],
the Investigating Offcer, shows that, he performed the Spot
Panchnama on 06/08/2024 and found the plastic Can and
matchstick at the spot of incident, which admittedly was the
residential house where the Appellant and Deceased were
16 Criappeal-871-2023.odt
residing. Absence of written orders for entrusting the
investigation of the case would not affect investigation done by
him in view of the provisions of Section 156 [2] r/w Section 157
[1] of the Cr.PC. Nothing has come in his cross-examination to
doubt the investigation done by him.
26. Though the Appellant examined defence Witness No.1 -
Usha Balasaheb Jadhav, who was residing at the distance of 100
feet from the place of incident and deposed that, on the day of
incident at 9.30 a.m. while she was washing the clothes, she
heard the shout and at that time, the Appellant was cleaning his
vehicle. When she called the Appellant as to what happened,
the Appellant did not respond and immediately proceeded. She
was unable to say what happened thereafter. Her cross-
examination shows that, she wanted that the Appellant shall
not be punished, therefore, she came forward to give the
evidence. Her evidence that, the Appellant did not respond and
immediately proceeded, shows the conduct of Appellant, which
leans in favour of the Prosecution. This evidence by no means
help the Appellant. Further, the version of Appellant in his
statement under Section 313[1][b] of Cr.PC that, ' I have not
committed any offence. I left the house at 7.30 a.m. whe I
reached Nangaon road Usha Balasaheb Jadhav told me that
what happen in your house. As passenge were in my auto, I did
turn to my house. It is false case' [reproduced as it is] goes
contrary to the version of defence witness.
27. The evidence available on record is considered and re-
appreciated. There are two [2] written Dying Declarations,
which are consistent on the point of actual accident. The said
Dying Declarations are proved to be voluntary and made by the
17 Criappeal-871-2023.odt
Deceased in a ft state. There is no slightest evidence to indicate
that Deceased was tutored. Both the Dying Declarations
established that, the Appellant set Deceased on fre after
pouring the kerosene. The cause of death as per the medical
evidence, corroborated by the Postmortem Report was
'Septicemia due to burns'. It is settled position under the law
that, Dying Declarations can form the basis to record
conviction provided, if it is established that, it is voluntary and
the person giving the statement was in a ft state to give
statement. We are satisfed that, essential ingredients for the
offence punishable under Section 302 of IPC are established by
the Prosecution on the basis of two consistent Dying
Declarations. Use of kerosene and igniting fre clearly
established that, the Appellant had intention to kill the
Deceased. As far as the conviction under Section 498-A of IPC
is concerned, the Prosecution's evidence lacks the essential
ingredients for the said offence. The quarreling and beating are
not suffcient. For the offence punishable under Section 498-A
of IPC what is required to be proved is that, the cruelty shall be
of such nature as explained in the provisions of said Section,
which reads as under :-
"498 .... .... ..... ..... ..... .... ..... .... ....
498 - A .... ..... .... ..... ..... .... ....
Explanation - ... .... .... .... .... ....
(a) any wilful conduct which is 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 (whether mental or physical) of the woman ; or
(b) harassment of the woman where such harassment is 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."
28. In view of the above discussion, we uphold the conviction
and sentence awarded by the learned Trial Court to the
18 Criappeal-871-2023.odt
Appellant for the offence punishable under Section 302 of IPC.
However, the Appellant is liable to be acquitted for the offence
punishable under Section 498-A of IPC. Hence, we proceed to
pass the following order:
ORDER
[a] Criminal Appeal is partly allowed.
[b] The conviction and sentence awarded by the learned Trial
Court against the Appellant for the offence punishable
under Section 498-A of IPC, is quashed and set aside.
[c] The Appellant is acquitted for the offence punishable
under Section 498-A of IPC.
[d] The fne amount imposed by the learned Trial Court on the
Appellant towards conviction for the offence punishable
under Section 498-A of IPC shall be refunded to the
Appellant.
[e] The conviction and sentence awarded by the learned Trial
Court to the Appellant for the offence punishable under
Section 302 of IPC is maintained.
[f] The Record and Proceedings be sent back to the learned
Trial Court.
[g] The fees of Advocate Mr. A. R. Borulkar appointed for the
Appellant is quantifed at Rs.10,000/- [Rupees Ten
Thousand Only] to be paid by the High Court Legal
Services Sub - Committee, Aurangabad.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 16/10/2024 17:36:53
