Bombay High Court
Bhagwat Yadav Wagh vs State Of Mah on 19 November, 2025
2025:BHC-AUG:31707
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.417 OF 2005
Bhagwat Yadav Wagh,
Age : 21 years,
Occupation : Labourer,
R/o Nehta, Taluka Raver,
District Jalgaon.
...Appellant/ accused
- Versus -
The State of Maharashtra.
...Respondent/ State.
...
Shri N.K. Kakade, Advocate for the appellant/ accused.
Ms. Anuradha S. Mantri, APP for the respondent/ State.
...
CORAM : SUSHIL M. GHODESWAR, J.
Reserved on : 13 November 2025
Pronounced on : 19 November 2025
JUDGMENT :
-
1. By this appeal filed under Section 374(2) of the
Code of Criminal Procedure (for short, 'the CrPC'), the
appellant/ accused challenges the judgment and order dated
13.06.2005 passed by learned 1st Ad-hoc Additional Sessions
Judge, Jalgaon, in Sessions Case No.185/2004 by which, he has
been convicted for offences punishable under Sections 498-A and
306 of the Indian Penal Code, 1860 (for short, 'the IPC') and he
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is sentenced to suffer rigorous imprisonment for two years and to
pay fine of Rs.1000/-, in default of payment of fine, he is
directed to suffer further rigorous imprisonment for one month,
for the offence u/s 498-A. He is further sentenced to suffer
rigorous imprisonment for seven years and to pay fine of
Rs.5000/- and in default, to suffer rigorous imprisonment for five
months, for offence u/s 306. Both the sentences were directed to
run concurrently.
2. The brief facts leading to filing of the present appeal
are as under:
(a) The prosecution case is that the marriage of
appellant/ accused with deceased Jyoti took place on 12.02.2003.
They are residents of same village Nehta and there are five to six
houses between their respective houses. After marriage, Jyoti
cohabited at her marital house along with the appellant and his
family members for eight days. Thereafter, she had been to her
parents house and informed her parents and relatives that the
appellant used to raise suspicion about her character and on that
count, he used to abuse and beat her. She informed her parents
that the appellant is in habit of drinking liquor. She stayed at her
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parents house for the period of about two months and thereafter,
due to mediation by some villagers, deceased Jyoti again started
cohabitation with the appellant. However, after few days, the
appellant again started harassing her and he drove her out of the
house and, therefore, she started residing with her parents.
However, the appellant used to meet Jyoti in the house of her
parents whenever she was alone and used to threaten her to
cohabit with him or else face dire consequences.
(b) It is further case of the prosecution that on
19.08.2004 at about 06:30 am in morning, the complainant (PW-
1) Brijlal Shamrao Dhanke (father of deceased Jyoti) along with
his wife had gone to village Nimbhor and when they returned
back to village Nehta at about 01:30 pm, they were informed at
bus stand that Jyoti consumed poison and she was admitted in
Municipal Hospital at Raver. They rushed to the hospital, where
medical treatment was going on. On enquiry, Jyoti told PW-1
complainant that when she was alone in the house, the appellant
came there and abused her in filthy language and also threatened
her that in case she would not join his company till evening, she
should consume poison and should die. It is, therefore, alleged
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that due constant ill treatment and harassment, Jyoti consumed
insecticide (Monocrotophos). When Jyoti started vomiting after
consumption of poison, her uncles namely Suresh Shamrao
Dhanke (PW-3), Sopan Shamrao Dhanke (PW-4) and aunt
Manisha Sopan Dhanke (PW-5) reached to the house of the
complainant PW-1 and Jyoti was taken in jeep of Arun Sitaram
Sable (PW-6) to the Municipal Hospital, Raver, where Dr.
Mansur Kadri (PW-7) treated her. On getting information that
Jyoti consumed poison and admitted in hospital, the Police
Station In-Charge ASI Shri Pawar of Raver Police Station
directed ASI Venkat Tukaram Patil (PW-8) to record her
statement and accordingly, her statement came to be recorded,
which is first dying declaration at exhibit 35. Thereafter, he went
to Police Station and took entry of recording the statement and
then, he reached to the spot and seized the bottle of
Monocrotophos insecticide from the house of complainant vide
seizure/spot panchanama at exhibit 17.
(c) It is further case of the prosecution that in view of
the intimation from the Police Station, Raver, the Executive
Magistrate Baban Kakade (PW-9) reached to Municipal Hospital,
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Raver and he also recorded the statement of Jyoti, which is the
second dying declaration at exhibit 38. As the condition of Jyoti
was deteriorating, the Medical Officer of Municipal Hospital,
Raver, asked her relatives to shift her to Civil Hospital, Jalgaon.
Therefore, she was being taken at about 05:00 pm to the Civil
Hospital, Jalgaon, however, on way, she expired. The Medical
Officer at Civil Hospital, Jalgaon, on examining her, declared her
as dead. Intimation along with papers of death of Jyoti were sent
to the Police Station and consequently, A.D. No.34/2004 was
recorded in the Police Station, Raver. On next day i.e. on
20.08.2004, Dr.Udaysingh Patil (PW-12) conducted autopsy and
issued the postmortem report. In his opinion, probable cause of
death was due to cardio respiratory arrest due to consumption of
poison. Last rites on the dead body were performed on
21.08.2004 and thereafter, PW-1 complainant Brijlal lodged the
report with the Police Station, Raver. API Sambhaji Wagh (PW-
11) reduced the oral report of PW-1 into writing vide exhibit 14
and then, registered offence vide Crime No.42/2004. He also
recorded the statements of witnesses. The seized bottle of poison
and viscera were sent to the Chemical Analyst, Regional
Forensic Laboratory, Pune.
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3. After completion of investigation, the charge-sheet
was filed. Since offences were triable by the Sessions Court, the
case was committed to the Sessions Court. The learned
Additional Sessions Judge framed charge at exhibit 5 against the
appellant/ accused for offences punishable under Sections 498-A
and 306 of the Indian Penal Code. The appellant/ accused
pleaded not guilty and claimed to be tried. The prosecution has
examined in all 12 witnesses as under:-
PW No. Name of witness Significance/ role
PW-1 Brijlal Shamrao Complainant and father of the
Dhanke deceased Jyoti.
PW-2 Namdeo Sukdev Panch witness.
Tayde
PW-3 Suresh Shamrao Uncle of deceased
Dhanke
PW-4 Sopan Shamrao Uncle of deceased
Dhanke
PW-5 Manisha Sopan Aunt of deceased
Dhanke
PW-6 Aurun Sitaram Sable Jeep driver
PW-7 Dr.Mansur Kadri Medical Officer at Raver
PW-8 ASI Venkta Tukaram ASI. Recorded first statement of
Patil deceased
PW-9 Baban Punjanth Executive Magistrate. Recorded
Kakade second statement of deceased
PW-10 Jawansingh Rajput Spot panch
PW-11 API Sambhaji Wagh Investigating Officer
PW-12 Dr. Udaysingh Patil Conducted postmortem
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4. After recording evidence and hearing the appellant
and prosecution side, learned 1st Ad-hoc Additional Sessions
Judge was pleased to pass the impugned judgment.
5. Learned advocate Shri Kakade appearing for the
appellant submitted that the learned Sessions Judge committed
grave error by convicting the appellant as it has not properly
appreciated evidence brought on record. The prosecution has
failed to prove guilt of the appellant beyond reasonable doubt.
Learned advocate submitted that the prosecution case is mainly
based on two dying declarations, one is at exhibit 35 and another
is at exhibit 38. The prosecution case is based on interested
witnesses i.e. PW-1 Brijlal (father of deceased), PW-3 Suresh
(uncle), PW-4 Sopan (uncle) and PW-5 Manisha (aunt) and these
interested witnesses have improved their versions before learned
Sessions court. The deceased Jyoti herself is educated upto 09 th
standard and while recording dying declarations, she has not at
all blamed the appellant for her death. However, interested
witnesses in order to falsely implicate the appellant in the crime,
have deliberately lodged false report against him.
6. Learned advocate for the appellant took me through
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evidence of two dying declarations i.e. at exhibits 35 and 38. The
first dying declaration exhibit-35 was recorded on 19.08.2004 by
PW-8 ASI Venkat Patil and in his deposition at exhibit-34, PW-8
Venkat Patil stated that he reached at hospital at about 03:00 pm
and met the Medical Officer in hospital. When he recorded the
statement of deceased Jyoti, at that time, along with him, the
Medical Officer was present there. In dying declaration at
exhibit-35, the deceased stated that since last two months she
was residing with her parents because her husband i.e. present
appellant used to suspect her character and beat her. She stated
that the appellant was not taking her back to her marital house.
Therefore, on 19.08.2004 in morning at about 09:00 am, when
she was alone at home and her parents had gone to field, she
consumed poisonous insecticide. She stated that after
consumption of poison, she started vomiting and thereafter, her
relatives came there and took her to hospital in vehicle. She has
not accused anybody in dying declaration and she stated that she
did not have any grievance against anybody.
7. Learned advocate for the appellant also drew my
attention to the second dying declaration at exhibit 38 recorded
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by the Executive Magistrate Baban Kakade (PW-9). PW-9 also
reached to the hospital and recorded the said dying declaration in
question and answer format. He has specifically stated that she
asked the deceased Jyoti as to why she consumed poisonous
substance, upon which she replied that there is no reason for it.
8. Learned advocate for the appellant thereafter, took
me through depositions of witnesses and particularly interested
witnesses, who are relatives of the deceased Jyoti i.e. PW-1
Brijlal (father of deceased), PW-3 Suresh (uncle), PW-4 Sopan
(uncle) and PW-5 Manisha (aunt). PW-1 improved his statement
given to the police and stated that the appellant had come to his
house in his absence and met the deceased and also threatened
her that she should reach to his marital house by evening or else,
she should consume poison and die. Admittedly, the said fact is
not stated by the deceased Jyoti in her both dying declarations.
Thus, evidence of PW-1 is not corroborated with two dying
declarations. Similarly, PW-3, PW-4 and PW-5 have also
improved their versions and stated that the deceased, while being
taken to the hospital, had disclosed them that the appellant had
been to her house and threatened her that she should come to his
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house by evening for cohabitation, otherwise she should
consume poison and die. Their versions are not corroborated with
dying declarations of the deceased Jyoti.
9. Learned advocate for the appellant specifically
invited attention of this Court to the deposition of PW-6 Arun
Sable, who is jeep driver and who took the deceased to hospital.
He also deposed that he has not heard that the deceased Jyoti
spoke anything with her relatives in the said jeep. Thus, this
independent witness PW-6 is not supporting PW-1, PW-3, PW-4
and PW-5.
10. Learned advocate further submitted that though the
statements of neighbourers were recorded by the Investigating
Officer, however, they were not examined by the prosecution and
only interested witnesses came to be examined. Therefore, the
impugned judgment is based on assumption and presumption as
learned Sessions Judge has failed to consider discrepancies and
omission in the evidence of PW-1, PW-3, PW-4 and PW-5. Since
last two months prior to incident, the deceased was staying with
her parents, however, her parents have not made any complaint
of harassing or ill-treatment at the hands of the appellant. The
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deceased in her dying declaration specifically stated that nobody
is responsible for her death. The prosecution has also failed to
explain the delay caused in filing the complaint. There is no
evidence on record to prove the cruelty and harassment at the
hands of appellant. Therefore, learned advocate submitted that
the prosecution has failed to prove guilt of the appellant. As such,
the appeal needs to be allowed and the appellant be acquitted.
11. In support of his above submissions, learned
advocate for the appellant has relied upon following judgments:-
(a) Rajendra Dongar Patil vs. State of
Maharashtra, 2009(3) Bom. C.R. (Cri.) 723
(Bombay High Court, Aurangabad Bench).
(b) Sarla Prabhakar Waghmare vs. State of
Maharashtra and others, 1990 Cri. L.J. 407
(Bombay High Court, Nagpur Bench).
(c) Ravindra Pyarelal Bidlan and others vs. State
of Maharashtra, 1993(1) Mh.L.J. 658.
(Bombay High Court).
(d) Ramaiah alias Rama vs. State of Karnataka,
AIR 2014 SC 3388.
(e) Wakil Ahmad Khan vs. State of Maharashtra,
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2010 (5) ABR (NOC) 558 (BOM). (Bombay
High Court, Nagpur Bench).
(f) Vajabai Vikram Sonawane vs. State of
Maharashtra, (2013) 7 ALL MR (NOC) 73
(BOM). (Bombay High Court, Aurangabad
Bench.)
(g) Ramu Shankar Wagh vs. State of Maharashtra,
(2014) 2 Bom CR (Cri) (NOC) 270 (BOM).
(Bombay High Court, Nagpur Bench).
(h) Heera Lal vs. State of Rajasthan, AIR 2017 SC
2425.
12. Per contra, learned APP Ms. Mantri strongly
opposed the submissions of Shri Kakade. According to learned
APP, the statements of witnesses proved the guilt of the appellant
beyond all reasonable doubts and, therefore, their evidence
cannot be discarded. Merely because some witnesses are family
members of deceased Jyoti, they cannot be termed as interested
witnesses and, therefore, their evidence cannot be thrown aside
particularly when nothing adverse has been pointed out by the
defence. Learned Sessions Judge has rightly considered evidence
on record and rightly convicted the appellant. Learned APP,
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therefore, prayed for dismissal of the appeal.
13. After hearing the submissions of learned advocates
and with their assistance, after going through evidence on record
carefully, it is clear that evidence of PW-1, PW-3, PW-4 and PW-
4 is not corroborated with two dying declarations of the deceased
Jyoti. It has been rightly pointed out by learned advocate Shri
Kakade that there are lot of discrepancies in evidence of these
interested witnesses and nobody has firmly stated about cruelty
or harassment at the hands of the appellant, which has resulted in
the deceased consuming poison. On the contrary, the deceased
Jyoti in her two dying declarations specifically stated that
nobody is responsible for her act of suicide. In such
circumstances, it becomes impossible to ascertain conclusively
as to how the appellant has harassed the deceased so as to
compel her to commit suicide.
14. Having carefully considered the testimony of
witnesses, this Court finds substantial contradictions regarding
cruelty and harassment at the hands of the appellant due to
which, the deceased consumed poison. The prosecution has
failed to establish a consistent and trustworthy version. In cases
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under Section 306 IPC, the prosecution must establish cruelty or
harassment and positive act of instigation or abetment. Mere
discord or domestic quarrels are insufficient. On this count as
well, the prosecution has failed to prove its case.
15. The presumption under Section 113-A of the
Evidence Act arises only when the prosecution proves cruelty
within the meaning of Section 498-A IPC. In the present case,
both dying declarations specifically negate any harassment or
instigation. The evidence of relatives suffers from omissions and
improvements and does not establish cruelty as defined under
law. Hence, the statutory presumption under Section 113-A
cannot be invoked against the appellant.
16. In Rajendra Dongar Patil (supra), Sarla Prabhakar
Waghmare (supra), and Heera Lal v. State of Rajasthan (supra),
the well-settled principle is reiterated that that when dying
declaration does not attribute any overt act or instigation to the
accused, and when the oral testimony of relatives suffers from
material improvements or contradictions, conviction under
Sections 498-A and 306 IPC cannot be sustained. The Supreme
Court has repeatedly held that for abetment of suicide, there must
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be clear evidence of instigation. In the present case, neither dying
declarations attribute such instigation nor does the oral testimony
inspire confidence. Therefore, the judgments cited by the
appellant squarely apply to the facts of the present case.
17. In view of the foregoing discussion and in the
absence of any trustworthy and cogent evidence establishing
cruelty or instigation, this Court is unable to sustain the
conviction of the appellant. Both dying declarations categorically
exonerate the appellant, and the oral testimony of the relatives
suffers from material omissions and improvements, rendering it
unreliable. The prosecution has failed to establish the ingredients
of Sections 498-A and 306 IPC beyond reasonable doubt.
Consequently, this Criminal Appeal is allowed and the impugned
judgment and order is quashed and set aside. The appellant/
accused is acquitted for the said offence. As the appellant is on
jail, he need not surrender. The bail bond stands cancelled.
Surety, if any, stands discharged. Fine amount, if deposited, be
refunded. The record and proceedings be sent back to the
concerned Court.
kps (SUSHIL M. GHODESWAR, J.)
