Bombay High Court
Dattatraya Arjun Bhosale vs The State Of Maharashtra on 3 February, 2025
Author: R.G. Avachat
Bench: R.G.Avachat
2025:BHC-AUG:3897-DB
Judgment in Cri Appeal No.19 of 2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.19 OF 2022
Dattatraya Arjun Bhosale,
Age : 34 years, Occ. Nil,
r/o. Jategaon, Tq. Jamkhed,
Dist. Ahmednagar .. Appellant
Vs.
The State of Maharashtra ..Respondent
----
Mr.Satej S. Jadhav, Advocate for appellant
Mrs.S.N.Deshmukh, APP for respondent
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
RESERVED ON : JANUARY 29, 2025
PRONOUNCED ON : FEBRUARY 03, 2025
JUDGMENT (Per R.G. Avachat, J.) :
-
The challenge in this appeal is to the judgment and order of
conviction and consequential sentence dated 03.05.2017, passed by
learned Sessions Judge, Ahmednagar (Trial Court) in Sessions Case
No.188 of 2015. Vide the impugned and order, the appellant has been
convicted for the offences punishable under Sections 302 and 323 of
Indian Penal Code and therefore, sentenced to suffer life imprisonment
and to pay a fine of Rs.1,000/- and simple imprisonment, respectively,
with default stipulation.
2 Judgment in Cri Appeal No.19 of 2022
2. The facts, in brief, giving rise to the present appeal are
as follows:-
The appellant married Suvarna (deceased) in 2002. The
couple was blessed with two children. The appellant got addicted to
liquor. On the given day, i.e. on 02.01.2015, by little past 10.00
p.m., the appellant returned to his one-room house. He was drunk.
Since his son Aditya (PW1) was not seen studying, he assaulted him
with belt. Suvarna intervened. A petty quarrel ensued between the
couple. The appellant doused Suvarna with kerosene and set her
ablaze after closing the door from inside. PW1 - Aditya raised cries
and called his uncle. His uncle (Pralhad), in turn, broke open the
door. He extinguished fire and rushed Suvarna to Civil Hospital,
Ahmednagar.
3. On her admission to the hospital, a medico-legal case
was registered. The police official on duty (PW10) recorded her
statement, which, lateron, became her dying declaration (Exh.59).
He also availed services of the Special Executive Magistrate to have
recorded her statement. Before and after recording her statements,
the Medical Officers on duty certified Suvarna to be conscious
oriented to make a statements. In her both the statements (dying
declarations), she narrated the incident of the appellant to have set
3 Judgment in Cri Appeal No.19 of 2022
her ablaze. Her brother (PW3-Shivaji) was informed. He along with
his relations, rushed to the hospital. Suvarna orally informed him of
having been set ablazed by the appellant. On the third day, Suvarna
succumbed to the burn injuries.
4. Based on her statement (Exh.59) to the police official
(PW10), a crime was registered, being crime No.4 of 2015, with
Police Station, Jamkhed, Dist. Ahmednagar, for the offences
punishable under Sections 304, 323, 504 of Indian Penal Code. On
her demise, Section 302 of Indian Penal Code was invoked. The
crime-scene panchnama (Exh.52) was drawn. The mortal remains
was subjected to autopsy. The clothes on the person of both
appellant and Suvarna (deceased) were seized. All the seized
articles were sent for analysis and report. Upon completion of the
investigation, the appellant was proceeded against by filing a charge
sheet.
5. The trial court framed Charge (Exh.5). The appellant
pleaded not guilty. His defence was that deceased Suvarna was hot-
tempered. She was younger daughter of her parents and was,
therefore, pampered. His brother - Pralhad had made gold
ornaments to his wife. Suvarna wanted the appellant to make such
ornaments for her. The appellant had financial constraints. The
4 Judgment in Cri Appeal No.19 of 2022
appellant could not satisfy her demand. She, therefore, set herself
ablaze. The appellant and his brother Pralhad extinguished the fire
and rushed to the hospital. According to him, their children were
influenced by their maternal grand-parents and therefore, testified
against him.
6. To bring home the charge, the prosecution examined ten
witnesses and produced in evidence certain documents. On
appreciation of the evidence in the case, the appellant was convicted
and consequently, sentenced, as stated above.
7. Heard learned counsel for the parties. Learned counsel
for the appellant would submit the prosecution to have failed to
bring home the Charge beyond reasonable doubt. He took us
through the cross-examination of the children of the appellant and
deceased Suvarna, and submitted that the deceased wanted the
appellant to make gold ornaments for her. He would further submit
that both the children had been residing with their maternal grand
parents and were, therefore, influenced by those relations. The
Special Executive Magistrate (PW5 - Bhaskar), who recorded the
second dying declaration, did face prosecution for recording false
dying declaration in some other case. Such witness, therefore, ought
not to have been relied upon by the trial court. He would further
5 Judgment in Cri Appeal No.19 of 2022
submit that when the so called statement (Exh.34) of the deceased
recorded by the Executive Magistrate was first in point of time, it is
not known, as to why her subsequent statement recorded by the
police official (Exh.59) was registered as FIR. He would further
submit that the medical papers of the deceased were not placed on
record. Same caused prejudice to the appellant in his defence. He
would further submit that the appellant too suffered extensive burns.
The appellant was hospitalised for more than three and half months.
This fact has been consciously suppressed in both the dying
declarations and by the prosecution witnesses as well. He relied on
the judgment of the Apex Court in the case of Irfan alias Naka Vs.
State of Uttar Pradesh, AIR 2023 SC 4129 and urged for
allowing the appeal.
8. Learned APP would, on the other hand, submit that PW1 -
Aditya was an eye-witness. He was of the age of understanding. The
trial Court found him to be a competent witness. He gave the
minute details of the incident as to how the appellant set his mother
(Suvarna) ablaze. He categorically denied to have given evidence
influenced by his maternal uncle. According to learned APP, the
theory of tutoring, therefore, gets washed out. Presence of PW1-
Aditya has not been disputed. It was for the defence to have
6 Judgment in Cri Appeal No.19 of 2022
suggested this witness, as to how the appellant did suffer burns.
Nothing of that sort was done. Learned APP then adverted our
attention to both the dying declarations. According to her, those are
consistent with each other. The Medical Officers on duty had
examined Suvarna before and after recording of both the dying
declarations. Even they were present when those were being
recorded. According to her, the authorities relied on by learned
counsel for the appellant were quite distinguishable on facts. She
would, on the other hand, rely on the Apex Court judgment in the
case of Rajendra s/o. Ramdas Kolhe Vs. State of Maharashtra,
2024(2)ABR(CRI) 481, wherein, it has been observed thus:-
Penal Code (45 of 1860), S.302 - Evidence Act
(1 of 1872), S.3. S.32-Murder - Dying declaration -
Reliability - accused husband poured kerosene on
deceased and set her ablaze, resulting in her death
- In her dying declaration, deceased clearly stated
about the role played by her husband and brother-
in-law, which led to her burn injuries - Contents of
dying declarations were proved by witnesses -
Attending doctor had certified that deceased was
capable of narrating her statement - Substance of
dying declaration was also borne out by medical
history of patient, as recorded by doctor, which was
also proved in evidence - Dying declaration was
recorded on day of incident whereas evidence was
tendered by witnesses in court after 5 years -
Therefore, inconsistencies in the evidence of
witnesses was quite natural - Dying declaration was
7 Judgment in Cri Appeal No.19 of 2022
duly proved in evidence - Guilt of accused was
proved beyond reasonable doubt Conviction was
proper.
9. Learned APP would further submit that the appellant
neither examined himself as defence witness nor examined his
brother in his defence. According to her, a summons was issued to
the appellant's brother, however, he did not appear to give evidence
in favour of the appellant. Same goes a long way to indicate the
appellant to have committed the offence. Our attention was also
adverted to paragraphs 30 to 34 of the judgment in the case of
Rajendra (supra), to ultimately urge for dismissal of the appeal.
10 Considered the submissions advanced. Perused the
judgment impugned herein. Let us advert to the evidence on record
and appreciate the same.
11. Admittedly, the appellant had married Suvarna way back
in 2002. The couple was blessed with two children. The daughter
(PW2-Divya) was staying with her maternal grand-parents' house at
Namalgaon, Dist.Beed, for education purpose. She was not home
when the incident took place. Her evidence only indicates that her
father (appellant) was addicted to liquor and used to pick up quarrels
with her mother and beat her up. She further testified that the
appellant would beat up her brother and her as well.
8 Judgment in Cri Appeal No.19 of 2022
12. The incident took place little past 10.00 p.m. on
02.01.2015 in the one-room house of the appellant. The crime-scene
panchnama (Exh. 52) and the photographs indicate that the door of
the room was required to be broke open. Suvarna had suffered 95%
of burns. She succumbed to the burn injuries on 03.01.2015. PW4 -
Dr.Amit conducted autopsy. In his opinion, Suvarna died of grade-II
95% burns, i.e. kerosene burns. PW 4 - Dr.Amit, in his evidence,
gave details of the body parts, which suffered particular percentage
of burn injuries. His evidence disclosed that both limbs of the
deceased were burnt and there were blisters. He could not opine,
whether it was a case of homicidal burns or suicidal one. The post
mortem report finds place at Exh.31.
13. PW1 - Aditya, son of the appellant and deceased
Suvarna, testified that on the fateful evening, the appellant returned
home drunk. He started beating him as he did not study. His
mother, therefore, asked the appellant not to beat him. The
appellant, thereupon, set her ablaze after dousing her with kerosene.
PW1 - Aditya was present. He gave call to his uncle Pralhad.
Pralhad broke open the door and extinguished the fire.
During his cross-examination, PW1 - Aditya was
categorical to deny that he testified against his father at the instance
9 Judgment in Cri Appeal No.19 of 2022
of his maternal uncle (PW3). He further testified that he was loved
by his maternal grand-parents. He testified that the appellant was
not punctual in purchasing grocery items for the house. The
appellant was hesitant to attend the marriage ceremonies of
relatives and offer gifts in marriages. The appellant was miser. He
further testified that his mother wished to have gold ornaments; but
the appellant was not providing the same. His mother Suvarna
(deceased) was younger daughter of her parents and therefore, was
loved much. He, however, denied his mother to have committed
suicide. True, his presence in the room at the time of the incident
has not been disputed in the cross-examination.
14. PW2 - Divya did not witness the incident. In the cross-
examination, she testified that her father was miser. Her mother
wanted the appellant to make gold ornaments for her. Her uncle -
Pralhad had made gold ornaments for his wife. She, however,
denied that the same was the reason for suicide by her mother.
15. PW3 - Shivaji, brother of the deceased, testified that he
rushed to the hospital and learnt from his sister Suvarna that the
appellant set her ablaze. He further testified that the appellant was
addicted to liquor and he used to beat up his sister and children as
well. His evidence further indicates that he did not lodge the police
10 Judgment in Cri Appeal No.19 of 2022
report, no sooner he learnt the appellant to have set his sister
ablaze.
16. Admittedly, the brother of appellant - Pralhad had rushed
Suvarna to the hospital. PW 5 - Bhaskar (Executive Magistrate) and
PW 10 - Abdul (police official) had recorded the statements of
Suvarna after having verified from the Medical Officers on duty, that
she was conscious oriented to make the statements. Both the
statements of the deceased have been on record. Exh.34 is the
dying declaration recorded by the Special Executive Magistrate (PW
5 - Bhaskar); while Exh.59 is the FIR-cum-dying declaration recorded
by PW10-Abdul, police official. Both the Doctors on duty namely, Dr.
Sucheta (PW7) and Dr.Ashok (PW8) testified that they had examined
deceased Suvarna, before and after recording her respective
statements by PW 10 - Abdul and PW 5 - Bhaskar. They referred to
their endorsement appearing on both the statements of the
deceased.
17. Perusal of both the statements of the deceased suggest
the deceased to have stated the appellant to have set her ablaze
after dousing her with kerosene. The appellant returned home
drunk. He started abusing her and assaulting their son - Aditya. The
dying declaration-cum-FIR (Exh.59) is recorded by PW 10 - Abdul,
11 Judgment in Cri Appeal No.19 of 2022
police official. Similar is the statement recorded by PW 5 - Bhaskar,
Executive Magistrate. Close reading of both the statements indicate
that PW1 - Aditya was present in the room. Both the statements are
consistent with each other.
18. Now, the question is, whether the conviction of the
appellant would sustain based on the dying declarations and the oral
evidence as well. Section 32(1) of the Evidence Act reads thus:-
32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is
relevant. - Statements, written or verbal, of
relevant facts made by a person who is dead, or
who cannot be found, or who has become incapable
of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense
which under the circumstances of the case appears
to the Court unreasonable, are themselves relevant
facts in the following cases: --
(1) When it relates to cause of death.--When
the statement is made by a person as to the cause of
his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in
which the cause of that person's death comes into
question.
Such statements are relevant whether the
person who made them was or was not, at the time
when they were made, under expectation of death,
and whatever may be the nature of the proceeding
in which the cause of his death comes into question.
12 Judgment in Cri Appeal No.19 of 2022
In paragraph 62 of the judgment in the case of Irfan
alias Naka (supra), it has been observed as under:-
62. There is no hard and fast rule for
determining when a dying declaration should be
accepted; the duty of the Court is to decide this
question in the facts and surrounding circumstances
of the case and be fully convinced of the
truthfulness of the same. Certain factors below
reproduced can be considered to determine the
same, however, they will only affect the weight of
the dying declaration and not its admissibility: -
(i) Whether the person making the statement
was in expectation of death?
(ii) Whether the dying declaration was made at
the earliest opportunity? "Rule of First Opportunity"
(iii) Whether there is any reasonable suspicion to
believe the dying declaration was put in the mouth
of the dying person?
(iv) Whether the dying declaration was a product
of prompting, tutoring or leading at the instance of
police or any interested party?
(v) Whether the statement was not recorded
properly?
(vi) Whether, the dying declarant had
opportunity to clearly observe the incident?
(vii) Whether, the dying declaration has been
consistent throughout?
(viii) Whether, the dying declaration in itself is a
manifestation / fiction of the dying person's
imagination of what he thinks transpired?
13 Judgment in Cri Appeal No.19 of 2022
(ix) Whether, the dying declaration was itself
voluntary?
(x) In case of multiple dying declarations, whether,
the first one inspires truth and consistent with the
other dying declaration?
(xi) Whether, as per the injuries, it would have been
impossible for the deceased to make a dying
declaration?
Paragraphs 30 to 34 of the judgment in the case of
Rajendra (supra) read thus:-
30. Elaborating further, this Court in Sher Singh vs.
State of Punjab, AIR 2008 SUPREME COURT 1426,
held that acceptability of a dying declaration is
greater because the declaration is made in
extremity. When a party is on the verge of death,
one rarely finds any motive to tell falsehood. It is
for this reason that the requirements of oath and
cross-examination are dispensed with in the case of
a dying declaration.
31. In Sudhakar vs. State of Madhya Pradesh, AIR
2012 SUPREME COURT 3265, this Court observed
thus:-
20. The "dying declaration" is the last
statement made by a person at a
stage when he is in serious
apprehension of his death and
expects no chances of his survival. At
such time, it is expected that a
person will speak the truth and only
the truth. Normally in such situations
the courts attach the intrinsic value
of truthfulness to such statement.
14 Judgment in Cri Appeal No.19 of 2022
Once such statement has been made
voluntarily, it is reliable and is not an
attempt by the deceased to cover up
the truth or falsely implicate a
person, then the courts can safely rely
on such dying declaration and it can
form the basis of conviction. More so,
where the version given by the
deceased as dying declaration is
supported and corroborated by other
prosecution evidence, there is no
reason for the courts to doubt the
truthfulness of such dying
declaration.
32. When there are more than one dying
declaration, this Court in Amol Singh vs. State of
Madhya Pradesh, AIR ONLINE 2008 SC 62, clarified
that it is not the plurality of the dying declarations
that matter. On the contrary, it is the reliability of a
dying declaration which is significant. If there are
inconsistencies between one dying declaration and
the other, the court has to examine the nature of the
inconsistencies, i.e., whether those are material or
not.
33. In Lakhan vs. State of Madhya Pradesh, 2010
AIR SCW 5993, this Court held that where there are
multiple dying declarations with inconsistencies
between them, the court would have to scrutinize
the facts very carefully and, thereafter, take a
decision as to which of the declarations is worth
reliance.
34. Again, in Ashabai vs. State of Maharashtra,
2013 AIR SCW 333, this Court observed that when
there are multiple dying declarations, each dying
declaration has to be separately assessed and
evaluated independently on their own merit as to
the evidentiary value of each. One cannot be
rejected merely because of certain variations in the
other.
15 Judgment in Cri Appeal No.19 of 2022
19. We are conscious of the fact that the dying declaration, if
found to have been made voluntarily and truthful, can form the sole
basis of conviction. The question herein is, whether the evidence of
PW1 - Aditya and both the dying declarations are truthful and inspire
confidence to uphold the appellant's conviction. In our view, the
answer would be big "NO". PW10 - Abdul has categorically admitted
that the appellant too had suffered burns in the very incident. The
record indicates that he suffered extensive burns to his chest and
hands. The appellant was also admitted to the hospital on the same
day. The duration of his hospitalisation was little over three and half
months and thereafter only, he could be arrested in this case. Close
reading of the evidence of PW1-Aditya and both the dying
declarations lead us to infer that the child witness (Aditya) and the
deceased Suvarna have suppressed the fact as to how the appellant
suffered extensive burns in the very incident. Their evidence,
therefore, could be said to have not been inspiring confidence. It is
for the prosecution to explain the injuries on the person of the
appellant/accused. Failure of the appellant to lead evidence in his
defence is of no consequence, since the fact of the appellant to have
suffered extensive burns in the very incident and the same has been
consciously suppressed by the deceased in her both the dying
declarations and PW 1 - Aditya in his oral evidence, therefore, we
16 Judgment in Cri Appeal No.19 of 2022
find their evidence to be not inspiring confidence.
20. The prosecution could be said to have failed to bring
home the charge beyond reasonable doubt. Benefit thereof goes to
the appellant. In the result, the appeal succeeds. Hence, the
following order:-
(i) The appeal is allowed.
(ii) The impugned order dated 03.05.2017, passed by
learned Sessions Judge, Ahmednagar, in Sessions case No.188 of
2015, convicting and sentencing the appellant for the offences
punishable under Sections 302 and 323 of Indian Penal Code, is set
aside. He is acquitted of the said offences.
(iii) The appellant be released forthwith, if not required in any
other case.
(iv) Fine amount paid by the appellant, if any, be refunded to
him.
(v) Learned Registrar (Judicial) of this Court shall ensure
compliance of this order today itself.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
