The State Of Maharashtra vs Vyankat Survase And Ors on 10 October, 2017

1 APEAL262.2002

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.

CRIMINAL APPEAL 262 OF 2002

The State of Maharashtra
Through S.H.O., Police Station,
Nilanga, Dist.Latur. … Appellant
(Orig. Complainant)
VERSUS

1. Vyankat S/o Vishvanath Survase @ Kamble,
Age : 36 years, Occu. Labour Work.

2. Govind S/o Vishvanath Survase @ Kamble
Age : 33 yrs., Occu. Labour Work.

3. Gangubai W/o Vishvanath Survase @ Kamble,
Age : 65 yrs., Occu. Household.

4. Nilubai W/o Govind Survase @ Kamble
Age : 30 yrs., Occu. Household Labour Work.

All R/o. Gurhal, Tq. Nilanga. … Respondents
(Orig. Accused)
……….
Mr V. S. Badakh, APP for the appellant
Mr R. N. Dhorde, Sr. Counsel i/b Mr V. R. Dhorde, Advocate for the
respondents.
………….

CORAM : T. V. NALAWADE
A. M. DHAVALE, JJ.

DATE : 10.10.2017.

ORAL JUDGMENT (PER A. M. DHAVALE, J.) :-

1. This is an appeal against the judgment of acquittal of

respondents No. 1 to 4 for offences punishable u/s 498A, 302, 304-B

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
2 APEAL262.2002

306 r/w 34 of the IPC by Addl. Sessions Judge, Nilanga in Sessions

Case No. 11 of 2001.

2. The facts relevant for deciding this appeal may be stated as

follows :

Deceased – Mandubai from village Jajnoor, Tq. Nilanga,

daughter of PW3-Tanaji was given in marriage to respondent No. 1 –

Vyankat about 6-7 years before the incident. R-2 to 4 are original

accused nos. 2 to 4. They are brother, mother and brother’s wife,

respectively of accused no. 1. After the marriage, deceased-

Mandubai started cohabiting with her husband at village Gurhal in

the same taluka Nilanga. Out of the wedlock, Mandubai gave birth to

two sons and one daughter. There are allegations about dowry

demand and ill-treatment and payment of dowry of Rs. 5,000/- in the

past. There are also allegations that, three days before there was

further dowry demand of Rs. 10,000/- and beating by the accused to

Mandubai. She had narrated these facts when she had visited her

maternal house. On 18.02.2001, Mandubai was admitted in the

hospital of Dr. Maknikar at Nilanga by her husband as she had

sustained around 80% burns. The said fact was intimated to the

maternal relatives of Mandubai. On the same day i.e. 18.02.2001,

dying declaration of Mandubai was recorded by Police Chowki

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
3 APEAL262.2002

Amaldar which disclosed that on that day at 09:00 am, she sustained

accidental burns as her saree caught fire from the flames from the

organic stove (Chool) The dying declaration (Exh. 50) discloses that,

her husband and mother-in-law poured water and extinguished fire

and took her in Auto-rickshaw to Nilanga and admitted her in

Hospital of Dr. Maknikar but, thereafter, she was shifted to Civil

Hospital at Latur for better treatment. She specifically stated that,

there was nothing suspicious about the incident. This certificate

bears the endorsement of the Doctor that the patient was conscious

while giving statement to the police. On the next date i.e.

19.02.2001, brother of deceased – Kalidas lodged a report (Exh. 49)

at Police Station Nilanga that Mandubai’s husband, mother-in-law

and wife of brother-in-law had poured kerosene on her person and

set her on fire. He disclosed that, Mandubai had earlier given a false

statement of accidental burns under the pressure of her husband but,

later on she had told him that her husband, mother-in-law and wife

of brother-in-law had poured kerosene on her person and set her

ablaze. She was threatened that, if she would disclose the real

incident to anybody, she and her children would be killed. It is

alleged that, accused no. 1-Vyankat had illicit relations with wife of

his brother and as Mandubai was raising objection to it, she was set

on fire.

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::

4 APEAL262.2002

3. On 20.02.2001 at 07:30 p.m, PW8 – Naib Tahsildar –

Ganpati Kamble recorded dying declaration of Mandubai. He had

obtained medical certificate of Doctor about consciousness of the

patient and thereafter recorded the statement. Mandubai told him

that, her husband and mother-in-law and wife of brother-in-law set

her on fire by pouring kerosene on her person in connection with

dowry demand. The said dying declaration is at Exh. 45. However,

it shows the cause of the incident as on account of ‘Karni-Dharni’

(Witchcraft). Thereafter, on the same night at about 10:05 pm,

Mandubai succumbed to the burn injuries. As per PM notes, she had

86% burns. Surprisingly, the police did not register any crime on the

basis of second dying declaration before Naib-Tahsildar nor on the

basis of report of Kalidas, brother of Mandubai. On 27.03.2001 i.e.

after 1 month 7 days, the police received report of Mandubai’s

father-Tanaji dt. 21.02.2001 and on the basis of the same, crime was

registered as C.R. No. 33/2001 u/s 302, 498A r/w 34 of IPC and the

offence was investigated into. Meanwhile, in accidental death case

inquiry, inquest panchanama was drawn and autopsy was conducted.

During investigation, the relevant documents were collected and

statement of material witnesses were recorded. After completion of

investigation, PW9-Shivajirao Suryawanshi filed charge-sheet. In due

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
5 APEAL262.2002

course, the case was committed to the court of Sessions. The ld.

Addl. Sessions Judge framed charge u/s 498A/34, 302/34,

alternatively, 304B/34, 306/34 at Exh. 3. The accused pleaded not

guilty. The prosecution examined nine witnesses. The defence of the

accused is of total denial of material allegations. After hearing the

learned advocates for the parties, ld. Additional Sessions Judge,

Nilanga, held that it was not a case of homicidal death or suicide and

in consonance with his findings, he acquitted all the accused of all

the offences charged. Hence this appeal.

4. Shri. Badakh, learned APP for the State argued that, the

initial dying declaration dt. 18.02.2001 was given by deceased-

Mandubai under pressure of the accused but subsequently after

arrival of her relatives, she has given another dying declaration on

20.02.2001 before Naib Tahsildar. He had obtained necessary

certificate about consciousness of the patient from the doctor and

thereafter recorded dying declaration. This, dying declaration has

more evidentiary value as he is independent person. Ld. APP argued

that, there is evidence of maternal relatives of deceased-Mandubai

regarding ill-treatment, dowry demand and acceptance of dowry of

Rs. 5,000/-. There was recent incident of dowry demand of Rs.

10,000/- just three days before the incident. He, therefore,

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
6 APEAL262.2002

submitted that the prosecution evidence should be believed and the

accused should be convicted.

5. Per contra, Shri. R. N. Dhorde, ld. Sr. Counsel for

respondents No. 1 to 4 argued that, the marriage of Mandubai had

taken place seven years earlier. She had given birth to two sons and

one daughter. There was no previous history of any dispute between

the husband and wife. The husband himself had brought deceased –

Mandubai to the hospital. The spot panchanama does not support the

allegation of pouring kerosene on her person and setting her on fire.

The causes for assault given by brother of the deceased and the

deceased are different. In view of inconsistent dying declarations,

there is necessity of some corroboration to the second dying

declaration but there is no corroboration whatsoever. The clothes of

the deceased were not forwarded to CA office. The FIR was

registered one month after the incident. Hence the appeal should be

dismissed.

6. After giving careful consideration to the submissions by ld.

respective advocates and after going through the record, the points

for our determination with our findings thereon are as follows :

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::

7 APEAL262.2002

Sr. No. Points Findings.

1 Whether deceased met with homicidal Not proved.
death or suicide?

2 Whether accused nos. 1 to 4 committed Not proved.
murder of Mandubai or her dowry death ?

3 Whether accused nos. 1 to 4 in furtherance Not proved.
of common intention abetted the
commission of suicide of Mandubai?

4 What order The appeal is
dismissed.

REASONS

7. The prosecution has examined following witnesses.

[I] Group A :

(I) PW8 – Ganpati Kamble, Naib Tahsildar, who recorded
dying declaration (Exh. 45).

(ii) PW7 – Dr. Sanjay Warad, who had given certificate
about fitness of Mandubai at the time of dying declaration.
His endorsement on dying declaration (Exh.45) are at Exh.
39 40.

(iii) Mandubai’s earlier dying declaration dt.18.02.2001
(Exh.50).

[II] Evidence of ill-treatment :

PW3 – Tanaji (FIR at Exh. 28).

PW1-Jayant PW2-Manik, inquest of the deceased.

PW4 – Sachin, cousin of the deceased.

::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
8 APEAL262.2002

[III] Medical Evidence :

(i) PW6 – Dr. Shobha Jadhav, who conducted PM (Exh.

19) and gave provisional certificate (Exh. 18) and
reported death to police (Exh. 37).

               (ii)    Inquest Panchanama (Exh. 32).

[IV] Other Evidence :

(i) Spot Panchanama (Exh. 16).

(ii) Search of persons of the accused (Exh. 17).

(iii) Photographs (Exh. 20 to 24).

(iv) Statement of brother of the deceased dt. 19.02.2001
(Exh.49).

(v) The police report about dying declaration no. 1 under
pressure (Exh. 51).

(vi) PW9 - Investigating Officer has deposed about the
investigation carried out by him and has proved
contradictions in the evidence of PW1 - Jayant, PW9
Manik (Exh. 57 to 61).

8. On going through the evidence, we find that deceased-

Mandubai was married to accused no. 1 - Vyankat about 5-6 years

before the incident. She had no ill-treatment initially for a period of

one year. She has given birth to two sons and one daughter. Though

there are allegations by father and uncles of the deceased about ill-

treatment and dowry demand, there is no documentary evidence.

There is no evidence that Mandubai was constrained to leave her

matrimonial house and reside at her maternal house. The alleged

::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
9 APEAL262.2002

demand and acceptance of Rs. 5,000/- is quite improbable. PW1, 2

3 have deposed that, about three days before the incident, deceased

had been to her maternal house and had disclosed about dowry

demand of Rs. 10000/- but the conduct of her father PW3-Tanaji is

not consistent with this dowry demand. Even the dying declaration is

silent about this dowry demand. PW3 - Tanaji had accompanied

deceased Mandubai from Nilanga to Latur. He stated that, during the

journey, Mandubai did not tell him anything.

9. The evidence shows that, on the day of incident, the

accused brought Mandubai in burn conditions to hospital of Dr.

Maknikar at Nilanga and she was immediately shifted to Civil

Hospital at Latur. Her dying declaration was recorded by a police

officer on 18.02.2001 (Exh. 50). As per the said dying declaration,

the deceased while cooking food in the morning caught fire to her

clothes and she sustained burns. Her husband and mother in law

poured water on her person and extinguished the fire and they

brought her to the hospital at Nilanga.

10. The accused have also intimated this incident to her

parents. The conduct of the accused is consistent with the case of

accidental burns.

::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::

10 APEAL262.2002

11. On 19.02.2001, Kalidas, brother of Mandubai made a

report to the Police. For the first time it was alleged that, the earlier

dying declaration given by Mandubai was under pressure of her

husband as there was threat to her and her children that they would

be killed. This statement at Exh. 49 shows that, Mandubai told her

brother that her husband was having illicit relations with his brother's

wife which was objected by Mandubai and therefore kerosene was

poured on her person and she was set on fire. The statement

indicates that, such illicit relations were existing for three years.

Surprisingly, no role was given to accused No. 2, who is brother of

accused no. 1 - Vyankat. He also happens to be husband of accused

no. 4 with whom accused no. 1 was having illicit relations. Still

accused no. 2 was prosecuted. It is surprising that, accused no. 2

would help his wife and brother to have illicit relations and for that

he joined them for removing wife of accused no. 1, who was

obstructing to their relationship. It is pertinent to note that, the

evidence of father and uncles of the deceased make no reference

whatsoever to this illicit relationship. The police did not take any

cognizance on the basis of this report disclosing cognizable offence.

12. Thereafter, PW8 - Naib Tahsildar - Ganpati Kamble has

recorded dying declaration on 20.02.2001 at 07:30 pm. Before that,

::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
11 APEAL262.2002

PW7 - Dr. Sanjay was requested to examine the patient and certify

about her consciousness to give a statement. Dr. Sanjay stated that,

he had examined the patient and she was conscious and able to give

statement. He has recorded his endorsement on Exh. 39 and 40 at

the beginning and end of dying declaration but these endorsements

do not speak about her mental soundness.

13. PW8 had received a letter of the police dt. 18.02.2001, but

he did not immediately visit the hospital for recording the dying

declaration. He has deposed that, on 20.02.2001 at 07:30 pm, he

visited General Hospital at Latur, obtained certificate from Dr. Warad

and thereafter made inquiry with patient Mandubai. He stated that

he put certain questions to her perhaps for testing her mental

capacity. Those questions and answers are not on record. Dying

declaration recorded by him shows that, accused Nos. 1, 3 4, who

are her husband, mother-in-law wife of brother-in-law poured

keorsene on her person and set her on fire. Pertinently, the cause of

death given is 'Karni-Dharni' (Witchcraft), it means on the suspicion

that she was doing witchcraft. The cause given by her brother and

given by her father are different. It is pertinent to note that, on the

same day within two hours, Mandubai had died. It is common

knowledge that when a patient sustains severe burns, she is kept

::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
12 APEAL262.2002

under sedatives in order to relieve her of pains. In such case, such

late recording of dying declaration creates doubt about sound, mental

and physical state of the deceased.

14. We find that, there are two dying declarations which are

contradictory to each other. The reasons given in dying declaration

at Exh. 45, which is in favour of prosecution, are quite different from

the reasons given by her maternal relatives and by her brother in his

report to police.

15. The spot panchanama (Exh. 16) shows that, the floor on

the spot was not reportedly damp with kerosene. No samples of soil

mixed with kerosene were taken. The burnt pieces of saree of the

deceased were seized but those were not forwarded to CA office to

find out whether there was residue of kerosene in the soil of the floor

and in the pieces of saree or not. The photographs at Exh. 20 to 24

disclose that, the surrounding combustible articles did not catch fire

though those were very near to the spot. It is seen that the deceased

was wearing a polyester saree. The clothes of the accused were also

not seized and sent for Chemical Analyzer for chemical tracing

kerosene residues. The FIR was lodged one month and seven days

after the death of deceased - Mandubai. We find no substance in the

::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
13 APEAL262.2002

allegations of dowry demand or ill-treatment. We find no

corroboration to the dying declaration recorded by Naib Tahsildar.

In the light of all these facts, we hold that, the prosecution has failed

to prove beyond reasonable doubt that the accused had committed

murder by setting Mandubai on fire by pouring kerosene on her

person. The prosecution of accused no. 2 was certainly unwarranted

as there was no material against him. Hence, we find no substance in

the challenge to the judgment of acquittal. The ld. Trial Judge has

properly appreciated the material on record and the view taken by

him is reasonable and proper, which needs no interference. Hence

the following order.

ORDER

(i) The appeal is dismissed.

(ii) All the accused shall furnish P.R. bond of Rs.

10,000/- each with like solvent sureties u/s 437A of
IPC before the trial Court.

                [ A. M. DHAVALE ]                     [ T. V. NALAWADE ]
JUDGE JUDGE

sgp

::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::

Leave a Comment

Your email address will not be published. Required fields are marked *