Vatsalabai Bhanudas Jadhav & Ors vs The State Of Maharashtra on 12 October, 2017

1 Cr. Appeal 381.2001

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 381 OF 2001

1. Vatsalabai Bhanudas Jadhav,
Age: 60 Years, Occu.: Agri. Household,

2. Bhanudas Yadavrao Jadhav,
Age: 65 Years, Occu.: Agriculture

3. Shivaji Bhanudas Jadhav,
Age: 28 Years, Occu.: Agriculture

All R/o. Newasa Bk. Tal.: Newasa,
District: Ahmednagar .. Appellants

Versus

The State of Maharashtra .. Respondent

Shri V. R. Dhorde h/f Shri R. N. Dhorde, Advocate for the
Appellants.
Shri D. R. Kale, A.P.P. for the Respondent / State.

CORAM : S. V. GANGAPURWALA
MANGESH S. PATIL, JJ.

RESERVED FOR JUDGMENT ON : 1st September, 2017
JUDGMENT PRONOUNCED ON : 12th October, 2017

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2 Cr. Appeal 381.2001

JUDGMENT (Per S. V. Gangapurwala, J.) :

1. The appellant No. 1 / accused No. 1 is convicted for the
offence punishable under Sections 302, 498A, 34 of Indian Penal
Code and is sentenced to suffer life imprisonment and to pay a
fine of Rs.1,000/- for offence punishable under Section 302 of
I.P.C. The accused No. 1 is also sentenced to suffer simple
imprisonment for a period of 2 years and to pay fine of Rs.1,000/-
in default 3 months simple imprisonment for offence punishable
under Sections 498A and 34 of I.P.C. The substantive sentence
are directed to run concurrently. The appellant No. 2 / accused
No. 2 and appellant No. 3 / accused No. 3 are convicted for
offence punishable under Sections 498-A, 34 I.P.C. and are
sentenced to suffer rigorous imprisonment for a period of 2 years
and to pay a fine of Rs.1,000/- each in default to suffer rigorous
imprisonment for 3 months.

2. The accused No. 4 and 5 are acquitted of the offence alleged
against them.

3. The prosecution case in nutshell is as under.

4. Deceased Savita is a daughter in law of appellant Nos. 1
and 2 and wife of appellant No. 3. On or about 1.10.2000 during
10:30 to 10:00 am in furtherance of their common intention these
accused persons committed murder of deceased Savita near their
cattle shed situated at Village – Khalwadi, Taluka – Newasa by

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3 Cr. Appeal 381.2001

pouring kerosene on her person. It is the case of prosecution that
deceased Savita was subjected to cruelty by all the accused on
the count that she could not fulfill their unlawful demand of the
amount of Rs.25,000/-. The accused were compelling her to bring
Rs.25,000/- in order to purchase tempo and when she could not
pay it she was subjected to cruelty i.e. the accused abused her,
they threatened her, they did not provide food to her and finally
killed her. The marriage of deceased Savita had taken place
with accused No. 3, six months prior to the incident.

5. During the trial, the prosecution examined 8 witnesses.
The case of the prosecution revolves around the alleged dying
declaration which is recorded by P.W. No. 1 Naib Tahsildar and
the statement of P.W. No. 2 – Narayan father of deceased Savita.
There are no eye witnesses. The evidence of P.W. No. 7 Medical
officer is also relied upon to show that the deceased was mentally
fit to record her statement.

6. Mr. V. R. Dhorde, learned Advocate for the appellants
strenuously contends that the prosecution has miserably failed to
prove the case against the accused persons. As far as offence
under Sections 498A read with 34 is concerned except the bald
statement of P. W. No. 2 the father of the deceased no evidence is
brought on record. The mother of the deceased has not been
examined. P. W. No. 2 has made vague allegations. Prior to the
incident no complaint of ill treatment was ever filed by P.W. No.

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4 Cr. Appeal 381.2001

2 or any other person. Even married sisters were roped in
without any evidence. It was also admitted by the P.W. No. 2
that there was no agreement regarding payment of Rs.25,000/- at
the time of marriage and there was no complaint at the time of
performance of marriage. The offence under Sections 498A, 34 of
I.P.C. are not proved.

7. Learned counsel further submits that, the accused No. 1 is
convicted for the offence punishable under Section 302 merely on
hypothetical considerations. The Dying Declarations said to
have been recorded by P.W. No. 1 is not in consonance with the
statement of P.W. No. 2. The P.W. No. 2 in his statement says
that the deceased told him in the hospital that her mother in law
poured kerosene on her person and set her on fire and that the
father in law was standing besides her. Whereas in the dying
declaration recorded by P.W. No. 1 it is no where stated that the
father in law was standing at the scene of the offence. The act is
attributed by the deceased to accused No. 1 only. There is
material contradictions in the same. The learned counsel
submits that the P.W. No. 1 has recorded dying declaration on 2nd
October, 2000 at about 12:35 p.m. whereas prior to that the
father, mother and the relatives of the deceased had met the
deceased. There is every possibility that she was tutored. The
learned counsel submits that the P.W. No. 4 in his evidence has
clearly stated that he has seen the incident and deceased Savita
set herself on fire and she was saying that her marriage was

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5 Cr. Appeal 381.2001

performed against her will. At that time neither the mother in
law nor the father in law was present, they were called
subsequently, the said evidence goes against the prosecution. He

is a witness to the Panchanama (Exhibit-19) also. The learned

counsel submits that, the material witnesses are not examined.
The one who had doused the fire on the person of deceased
namely Konkane is also not examined. It is the father in law and
mother in law i.e. accused Nos. 1 and 2 who had brought the
deceased to the hospital. They were not present at the scene of
offence as would be clear from the evidence. The mother in law-
accused No. 1 had arrived at the scene of offence in a Jeep.

8. The learned counsel further submits that, the deceased
was brought on 1st October, 2000 in the hospital at 13:45 hours
and at the time when she was brought A.S.I. Khilari had
recorded the statement of the deceased. There is an
endorsement of the doctor but the said statement is not coming
forth nor A.S.I. Khilari is examined. The same creates a doubt in
the story of the prosecution. The said statement as it was going
against the case of prosecution is deliberately withheld. The
learned counsel submits that, prosecution has miserably failed to
prove the guilt of the accused. When there is a contradiction in
the dying declarations the dying declarations become doubtful
and cannot be relied upon to convict the accused persons. The
learned counsel relies on the judgment of the Apex Court in a
case of Gopal Vs. State of Madhya Pradesh reported in (2009)

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6 Cr. Appeal 381.2001

12 SCC 600. So also, another judgment of the Apex Court in a

case of Amol Singh Vs. State of Madhya Pradesh reported in

(2008) 5 SCC 468 and in a case of State of Gujarath Vs.

Jayrajbhai Punjabhai Varu reported in (2016) 14 SCC 151 .

9. Mr. D. R. Kale, the learned A.P.P. for the respondent
submits that, the offence under Section 302 of I.P.C. has been
proved against the accused No. 1. In the dying declaration
recorded by the Naib Tahsildar the deceased has specifically
attributed the act of pouring kerosene and setting her on fire to
the accused No. 1 mother in law. There is no inconsistency in the
said statement. In the deposition P.W. No. 2 father of the
deceased has also stated that deceased had told him that the
mother in law has set her on fire by pouring kerosene. The P.W.
No. 2 has only further stated that deceased told him that father
in law was also standing their at the time of incident and the
said fact was not stated in the dying declaration recorded by
P.W. No. 1. However, that cannot be said to be material
contradiction so as to disbelieve the dying declaration. The act
attributed to the accused No. 1 is consistent in both the dying
declarations. The doctor has also certified that at the time when
the dying declaration of the deceased was recorded by P.W. No. 1
she was in a fit mental condition. There is no reason to
disbelieve the said dying declaration. The learned A.P.P. further
submits that, the dying declaration is proved by the examination
of P.W. No. 1. There is no material contradictions brought out in

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7 Cr. Appeal 381.2001

the cross examination. The evidence of P.W. No. 1 is not
impeached. The learned A.P.P. further submits that the case
against accused Nos. 1 to 3 under Section 498A has also been
proved. In the dying declaration the deceased has stated that
she was ill treated so also in the evidence of P.W. No. 2 the ill
treatment meeted out to deceased has been brought on record.
The same would bring the case within the ambit and purview of
Section 498A of I.P.C.

10. With the assistance of the learned counsel for respective
parties we have gone through the evidence and the record.

11. The deceased Savita having caught fire on 1.10.2000 and
brought to hospital with 80% burns at about 13:45 hours is a
matter of record. The matter of debate is whether the same is a
homicidal death and the act can be attributed to the accused.

12. The dying declaration recorded by P.W. No. 1 Naib
Tahsildar is to the effect that the accused No. 1 poured kerosene
on her and set her on fire. In the said dying declaration the place
where she was set on fire is not stated. From the other evidence
it transpires that the place of incidence is near the cattle shed on
the road. It has also come in evidence that many persons had
gathered near the scene of offence.

13. The medical papers on record show that the deceased was

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admitted at about 13:45 hours on 1 st October, 2000. There is an
endorsement of doctor at 15:00 hours on 1.10.2000 that the
patient is fit to give statement. Even the thumb impression of
Bhanudas – accused No. 2 is obtained to the effect that he is told
about the serious condition of his daughter in law Savita and he
has no complaint against the hospital. There is also
endorsement of Dr. Reddy, that A.S.I. Khilari has recorded the
statement on 1.10.2000 at 15:30 hours. The statement recorded
by A.S.I. Khilari in presence of Dr. Reddy is not coming forth.
The same is not produced nor prosecution has examined A.S.I.
Khilari. No explanation is coming forth from the prosecution for
withholding the said evidence. It appears from the evidence that
villagers called accused Nos. 1 and 2 on the spot and thereafter
accused Nos. 1 and 2 took the deceased Savita to the hospital and
on the way stopped the Jeep and informed P.W. No. 2 about the
incident and on 1.10.2000 at about 3:30 p.m. P.W. No. 2 father of
the deceased went to the Civil Hospital. Prior to P.W.2 meeting
the deceased, statement of the deceased was recorded by A.S.I.
Khilari in presence of Dr. Reddy who endorsed that the deceased
Savita was fit to give statement. In fact that was the first
statement which was really relevant and material. However, the
same is suppressed and withheld by the prosecution.

14. In the dying declaration recorded by P.W. No. 1 Naib
Tahsildar the deceased stated that the accused No. 1 poured
kerosene and set her on fire and nothing is stated about the

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9 Cr. Appeal 381.2001

father in law but P.W. No. 2 – father states that deceased told

him that when mother in law poured kerosene and set her on fire
the father in law was standing nearby. The mother of the
deceased though her statement was recorded has not been
examined, whereas as per statement of P.W. No. 4 the deceased
herself set her on fire. It is stated by the deceased in her Dying
Declaration that one Mr. Konkane, had doused fire. The
statement of one Ashok Konkane and Shivaji Konkane is
recorded under section 162 of the Criminal Procedure Code, still
they are not examined.

15. It is held by the Apex Court in a case of State of Gujarath
(referred to supra) that the court has to examine a dying
declaration scrupulously with a microscopic eye to find out
whether it is voluntary and truthful. The court has to remain
alive to all the attending circumstances. In case of more than
one dying declarations intrinsic contradictions in those dying
declarations are extremely important.

16. In the present case, following circumstances make it
doubtful to rely on dying declaration so as to convict the accused
No. 1 for an offence under Section 302 of I.P.C.:

I] In the dying declaration recorded by the P.W. No. 1
Naib Tahsildar, the presence of accused No. 2 at the scene
of offence is not alleged. Whereas in oral dying declaration
as stated to P.W. No. 2, the father in law – accused No. 2
was present at the scene of offence.

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10 Cr. Appeal 381.2001

II] In the dying declaration recorded by P.W. No. 1 it is

stated that one Konkane had doused the fire. Statement
under Section 162 of two Konkanes is recorded. None of
the Konkanes is examined as prosecution witness during
the trial.

III] The place of offence / alleged incident is not
forthcoming in the dying declaration recorded by P. W.
No. 1.

IV] The first dying declaration is recorded by A. S. I.
Khilari in presence of Dr. Reddy. Dr. Reddy had made an
endorsement at that time that deceased is in a fit state of
mind. The said statement is suppressed and is not brought
before the court nor A. S. I. Khilari or Dr. Reddy are
examined. No explanation is coming forth for non
examination of A. S. I. Khilari and Dr. Reddy so also for
not producing the statement recorded by A. S. I. Khilari.
V] Adverse inference can be drawn for withholding said
statement of evidence. The inference can be drawn that
said statement is not favourable to prosecution.

17. Considering the aforesaid anomalies, it is difficult to rely
on the dying declaration to convict accused No. 1 for the offence
under Section 302 of I.P.C.

18. The evidence is too short to convict the accused persons for
an offence under Section 498A of I.P.C. In the dying declaration

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11 Cr. Appeal 381.2001

it is only stated that since marriage she is harassed by father in
law and mother in law and since marriage three times the
husband has beaten her. Even if the husband came home drunk
the father in law and mother in law used to harass her and they
never used to say anything to the husband. She does not allege
that she was asked to bring Rs. 25,000/-, there is no whisper
about the same in the Dying Declaration. Whereas in a
statement of father of the deceased P.W. No. 2 he comes with the
story that Rs.25,000/- were demanded for purchasing tempo and
as the same was not given deceased was harassed. He also
stated that for a period of 2 months deceased was treated
properly whereas in dying declaration recorded by P.W. No. 1 the
same is not the fact stated. It is admitted by P.W. No. 2 that no
complaint was made of what so ever nature to suggest that the
deceased was ill treated. The evidence falls too short to convict
the accused persons under Section 498A of I.P.C.

19. In the result, the appeal is allowed. The accused persons
stand acquitted of the offence punishable under Sections 302,
498A read with 34 of I.P.C.

[MANGESH S. PATIL, J. ] [S. V. GANGAPURWALA, J. ]

marathe/sep.17

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