State Of Mah. Thru. Pso Ambazari vs Laxmibai W/O Gulab Bighane & 3 Ors on 15 September, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO. 246 OF 2008

State of Maharashtra,
Through P.S.O. Ambazari,
Nagpur. ….. Appellant.

:: VERSUS ::

1. Smt. Laxmibai w/o Gulab Bighane
Aged about 55 years.

2. Manish s/o Gulabrao Bighane,
Aged about 25 years.

3. Gulab s/o Balaji Bighane,
Aged about 60 years.

4. Deepak s/o Gulabrao Bighane,
Aged about 27 years.

All R/o Ambazari Tekadi,
Near Buddha Vihar, Nagpur. ….. Respondents.

Shri C.A. Lokhande, Addl.P.P. for the Appellant/State.
None for the Respondents.

CORAM : R.K. DESHPANDE
V.M. DESHPANDE, JJ.
DATE : SEPTEMBER 15, 2017.

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ORAL JUDGMENT (Per : V.M. Deshpande, J.)

1. Exception is taken to the judgment and order of

the acquittal passed by learned Additional Sessions Judge-3,

Nagpur, in Sessions Trial No.16 of 2004, by which learned

Judge of the Court below has acquitted the respondents for

the offences punishable under Sections 498A, 304B, and 306

r/w Section 34 of the Indian Penal Code and under Section 4 of

the Dowry Prohibition Act, 1961.

2. We have heard learned Additional Public

Prosecutor Shri C.A. Lokhande for the appellant/State.

Learned counsel Shri S.B. Tiwari, who was appointed to

represent the respondents from the High Court Legal Services

Sub Committee at Nagpur, remains absent when the matter

was called for final hearing.

3. The charge below Exhibit-2 in Sessions Trial No.16

of 2004 was framed against the respondents by learned Judge

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of the Court below for the offences punishable under Sections

498A, 304B, and 306 r/w Section 34 of the Indian Penal Code

and under Section 4 of the Dowry Prohibition Act, 1961.

4. The respondents abjured their guilt and claimed

for their Trial.

5. In order to bring home the guilt of the

respondents, the prosecution has examined in all 9 witnesses

and also relied upon dying declaration Exhibit 45.

6. According to the prosecution, in the month of

April 2000, marriage between deceased Savita and accused

No.4 Deepak s/o Gulabrao Bighane was performed. Accused

Nos.1 and 3 are parents of accused No.4 Deepak. Accused No.2

Manish is brother of accused No.4 Deepak.

7. According to the prosecution, Savita was treated

with cruelty. The respondents gave ill-treatment for unlawful

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demand of money. Whenever she used to come to her parental

house, she used to tell about the ill-treatment given to her by

the respondents. According to the prosecution, due to

constant, continuous, and severe cruelty, she poured kerosene

on herself and committed suicide on 22.7.2003.

8. PW2 Anil Baliram Sonekar, brother of deceased

Savita, lodged his oral report Exhibit 31, on the basis of which

Crime No.187 of 2003 for the offences punishable under

Sections 498A and 306 read with Section 34 of the Indian

Penal Code was registered. The printed first information

report is at Exhibit 32.

9. When Savita was admitted in the hospital,

according to the prosecution, PW8 Police Head Constable

Arun Shankar Wagh recorded her dying declaration Exhibit

45. After completion of usual investigation, the charge-sheet

was filed.

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10. PW1 Vijay Baliram Sonekar, PW2 Anil Baliram

Sonekar, and PW3 Smt. Vatsala Baliram Sonekar are near

relatives of deceased Savita being her brothers and mother.

11. Postmortem report is at Exhibit 37. The said is

duly proved by PW5 Dr. Prakash Madhukarrao Mohite.

12. According to the evidence of PW5 Dr. Prakash

Mohite, Savita suffered 66% of burn injuries and as per his

opinion, all burn injuries are antemortem in nature. The

cause of death is, “Shock Due to Burns.”

13. In view of evidence of PW5 Dr. Prakash Mohite

and postmortem notes Exhibit 37, there is no escape from

reaching to the conclusion that Savita met with an unnatural

death.

14. An unnatural death can be, (i) Homicidal; (ii)

Accidental, and (iii) Suicidal.

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15. In the present case, the respondents were not

charged that they are responsible for homicidal death of

Savita. Further, it is not a defence of the respondents that

Savita suffered burn injuries accidentally. Therefore, those

possibilities are also ruled out. Therefore, safely we can reach

to the conclusion that Savita committed suicide.

16. Once the said finding is reached, it has to be seen

whether the prosecution has proved that due to harassment,

Savita has taken extreme step of her life.

17. The prosecution heavily relies on Exhibit 45 dying

declaration of Savita. Scribe of the said document is PW8

Police Head Constable Arun Shankar Wagh. This Police Head

Constable was attached to Ganeshpeth Police Station at

Nagpur. His duty was on Medical Police Booth in Medical

College at Nagpur.

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18. According to the evidence of PW8 Police Head

Constable Arun Wagh, he received an intimation Exhibit 43,

by which it was informed to him about admission of Savita in

the hospital. He further claims in his evidence that by the

said communication Exhibit 43, he was asked to record her

statement. However, this particular claim of PW8 Police Head

Constable Arun Wagh is found to be contrary if

communication Exhibit 43 is pursued. The said is totally

silent about recording of dying declaration.

19. Be that as it may, according to PW8 Police Head

Constable Arun Wagh, he went to Ward No.4 of Medical

College, Nagpur on the same day and asked the medical

officer as to whether she is fit for recording her statement. His

evidence further shows that the doctor examined Savita and

made endorsement that “patient is fit for statement.”

Thereafter, he recorded her dying declaration.

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20. The doctor, who has examined Savita to show that

she was fit to give her statement, is not examined by the

prosecution.

21. In view of the authoritative pronouncement of the

Constitution Bench of the Honourable Apex Court in the case

of Laxman ..vs.. State of Maharashtra, reported at 2002 SC

2973, certification from the doctor is not essential. However,

as per the law laid down by the Honourable Apex Court, a

scribe, who takes down declaration, must himself satisfy

about fitness of declarant.

The evidence of PW8 Police Head Constable Arun

Wagh is totally silent that before recording dying declaration

of Savita, he himself was satisfied about the fitness of Savita

that she was in a position to give her statement.

22. Thus, when he relies on the certificate given by

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the doctor, it was obligatory on the part of the prosecution to

examine the doctor, who gave the certificate about her fitness.

In absence of the said, in our view, the reliance cannot be

placed on the said dying declaration.

23. Further, learned Judge of the Court below was

having an opportunity to record demeanour of PW8 Police

Head Constable Arun Wagh which learned Judge of the Court

below has aptly mentioned in paragraph No.15 of the

impugned judgment.

24. Learned Judge of the Court below has also pointed

out other reasons for not believing dying declaration Exhibit

45 by giving a detailed reasoning.

25. Once the dying declaration is kept aside, the

evidence that remains is of the relative witnesses. Merely

because they are related witnesses, that by itself their

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evidences cannot be discarded. However, the Court should

always be on guard to scrutinize their evidences more

carefully.

26. Their evidences show that the allegations against

the respondents are vague in nature. On material aspect,

their evidences are found to be omission. Though the death

has occurred within three years of the marriage, presumption

under Section 113A and Section 113B of the Evidence Act

cannot be pressed into service in view of the fact that there is

no admissible evidence by which it could be termed that the

deceased was subjected to cruelty.

27. Further, there is no evidence on record that soon

before the death of Savita, Savita was subjected to cruelty in

connection with unlawful demand of dowry which is main

ingredient of Section 304B of the Indian Penal Code. .

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28. By now, the scope of appeal against acquittal is

well settled. Merely because other view is possible, that by

itself is not sufficient to replace the Appellate Court’s view in

place of view taken by the Court below. The prosecution has

failed to point out to this Court about any perversity in the

impugned judgment. Resultantly, we dismiss the appeal.

JUDGE JUDGE

!! BRW !!

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