Shankar Bapurao Bhange vs The State Of Mah on 10 November, 2017

1 APEAL352.2002

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

CRIMINAL APPEAL NO. 352 OF 2002

Shankar S/o Bapurao Bhange,
Age : 30 years, Occu. Service,
R/o. Wadhavana, Tq. Udgir,
District : Latur. … Appellant

VERSUS

The State of Maharashtra … Respondent

……….
Mr Satej S. Jadhav, Advocate for the appellant
Mr R. V. Dasalkar, APP for respondent/State
………….

CORAM : A. M. DHAVALE, J.
DATE : 10TH NOVEMBER, 2017.

ORAL JUDGMENT:

1. The appellant-husband has been convicted for subjecting

his wife to cruelty and abetting her to commit suicide and sentenced

to suffer rigorous imprisonment for two years and to pay fine of

Rs.1,000/-, in default, RI for three months u/s 498A IPC and rigorous

imprisonment for three years and fine of Rs. 1,000/-, in default, RI

for three months u/s 306 IPC, by judgment delivered by 1 st Adhoc

Additional Sessions Judge, Jalna on 19.06.2002 in Sessions Case No.

81 of 1999. Being aggrieved, the appellant has preferred this appeal.

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2 APEAL352.2002

2. The prosecution is launched on the basis of crime

registered at C.R. No. I-32/97 at Ambad Police Station on the basis of

the dying declaration of the deceased wife Nanda on 05.06.97. It

was recorded by PW4 Naib Tahsildar Shamrao Nandedkar. It shows

that, deceased Nanda aged 21 years was married to the accused

about one year before the incident. She is resident of Ahmedpur,

which is about 200 km away from the spot. After the marriage, she

had started cohabiting with her husband at Rani Unchegaon, Tq.

Ambad, Dist. Jalna. Her dying declaration shows that, her husband

was interested in marrying to daughter of his maternal uncle by

name Varsha and there was engagement also, but his father did not

allow him to marry to her. Her husband was serving as a teacher at

Shevgal, Tq. Ghansavangi, but was residing at Rani Unchegaon.

About two months before the incident, she had given birth to a male

child. On 02.06.97, at about 9:00 to 9.30 p.m., there was a quarrel

between Nanda and her husband. On 03.06.97 at 8:00 to 8:30 a.m.

again there was a quarrel between Nanda and her husband. She told

her husband that, she would prepare tea and he should fetch water.

Her husband got annoyed and he poured 2 and 2½ ltrs. of kerosene

from a can of 5 ltrs. on her person. In view of the daily quarrels,

Nanda lit a match stick and set herself on fire. She sustained burns

to her hands, legs, back, neck and face. Her husband himself

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3 APEAL352.2002

wrapped her up in a towel and doused the fire. People gathered

poured water. That time, her parents-in-law were present. Her

husband brought her to the hospital at Ambad and thereafter to the

Civil Hospital at Jalna. She stated that, for four days before the

incident, her husband was regularly beating her. She also alleged

that, her husband had thrown a matchbox towards her. This dying

declaration was recorded after obtaining medical certificate from the

Medical Officer that she was conscious to give statement. Before

registration of the crime, A.D. case was registered and spot

panchanama was drawn on 06.06.97. Subsequently, on 21.06.97,

Nanda succumbed to 72% burn injuries. Thereafter, the Investigating

Officer has recorded statements of material witnesses. The inquest

panchanama was drawn and postmortem was conducted. After

completion of investigation, charge-sheet was submitted in the Court.

3. In due course, the case was committed to the Court of

Sessions. The ld. Ad-hoc Addl. Sessions Judge framed charge against

the accused u/s 306, 498A of IPC. The accused pleaded not guilty.

The prosecution examined nine witnesses. It is the defence of the

accused that, Nanda was suffering from TB and therefore she has

committed suicide. He has not abetted the commission of suicide nor

subjected her to ill-treatment in any form. The ld. Sessions Judge

convicted the accused as referred to above. Hence, this appeal.

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4 APEAL352.2002

4. Shri. Satej Jadhav, ld. Counsel has taken me through the

entire evidence on record and made following submissions.

(i) There was one dying declaration recorded by Head
Constable – Hiwale showing that the deceased
committed suicide. The said dying declaration has
been suppressed by the prosecution.

(ii) The present dying declaration was not read over to
the deponent and there is no endorsement that she
admitted it to be correct before taking her thumb
impression. Besides, Nanda was studied upto 10 th
std. There is no explanation why her signature was
not taken.

(iii) Evidence of previous ill-treatment led by father,
brother and uncle of the deceased is extremely
vague and inconsistent with each other as well as
the contents of dying declaration.

(iv) It was the accused who had extinguished the fire
and taken his wife to the hospital. He himself had
also sustained burn injuries and was required to
undergo treatment.

(v) The evidence of PW1 Namdeo, PW5 father Baburao
and PW7 Balkrishna is not cogent, consistent and
reliable. Similarly, the evidence of Naib Tahsildar

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5 APEAL352.2002

PW4 is also not reliable. He has not immediately
forwarded the dying declaration to the Police
Station and the FIR has been registered quite late
on 17.6.97. The evidence does not inspire the
confidence and therefore the ld. trial Judge erred in
relying upon it to convict the appellant.

(vii) In Shivaji Tukaram Patdukhe Vs. State of
Maharashtra 2004 ALL MR (Cri) 3220, a dying
declaration before the head constable was not
brought on record and the dying declaration relied
upon was not read over to the deponent and no
endorsement to that effect was made. These were
found to be material discrepancies resulting into
acquittal of the accused.

5. Per contra, ld. APP Shri. R. V. Dasalkar submitted that the

dying declaration is recorded by Naib Tahsildar, who is independent

person, after obtaining the opinion of the Medical Officer about

fitness of the patient. Nanda thereafter survived upto 21.06.97 i.e.

for 16 days. There is no reason why the accused would have been

falsely implicated. There is evidence to show that she was subjected

to ill-treatment and dowry demands prior to the incident and hence

there is no scope for interfering with the judgment of conviction.

6. The points for my consideration with my findings thereon

are as follows :

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6 APEAL352.2002

Sr. No. Points Findings

1 Whether the accused had subjected In the negative.
the deceased to cruelty and dowry
demands?
2 Whether the deceased Nanda In the affirmative.
committed suicide?

3 Whether the accused has abetted the Not proved.
commission of suicide by Nanda?

4 What order? The appeal is
allowed. The accused
is acquitted of the
charges.

REASONS

7. The prosecution has led following evidence.

[I] Dying Declaration :

[i] PW4 Naib Tahsildar – Nandedkar has recorded
dying declaration Exh. 25.

[ii] There is oral dying declaration before PW1
Namdeo (uncle).

[iii] PW5 Baburao, father.

[iv] PW7 – Balkrishna.

[v] PW6 – Laxmibai.

[II] Evidence of Previous Ill-treatment :

[i] PW1 – Namdeo
[ii] PW5 – Baburao
[iii] PW7 – Balkrishna.
[iv] PW6 – Laxmibai.

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7 APEAL352.2002

[III] Other Evidence :

[i] PW2 – Asaram, the landlord, turned hostile.

[ii] PW3 – Pandurang, neighbour, turned hostile.

[iii] Head Constable – Rode, who recorded the
statements of witnesses.

[iv] PW9 PI Pawar, who carried out further

investigation and submitted charge-sheet.

8. The prosecution has not examined Medical Officer as the

PM notes Exh. 19 are admitted by the witnesses. Those show that

deceased Nanda, aged 21 years, had sustained 72% burns. Her entire

chest, back and upper parts of the body were burnt. It is not disputed

that, Nanda attempted to commit suicide on 03.06.97 at her

matrimonial place and died on 21.06.97 in the hospital due to burn

injuries.

9. Undisputed evidence on record shows that, Nanda

daughter of PW5 PW6 from Ahmedpur, married to the accused in

1996. The accused was teacher at Shevgal, Tq. Ghansawangi but was

residing at Rani Unchegaon. After the marriage, Nanda cohabited

with her husband and she gave birth to a male child within one year.

It was about two months before the incident. It is not in dispute that,

on 03.06.97, in the morning, Nanda sustained burns and her husband

– accused brought her to the hospital at Ambad and thereafter to

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8 APEAL352.2002

Civil Hospital at Jalna. She was taking treatment in Civil Hospital at

Jalna and later she died.

10. The admitted evidence shows that, during the cohabitation

period of one year, Nanda visited her house only once that too for

delivery purpose. The evidence of PW5 Baburao (father) and PW6

Laxmibai (mother) does not show that, during her stay at her

maternal house, she made any complaint against the accused about

ill-treatment or dowry demands. Both of them stated that, after the

marriage their son Balkrishna had gone to the house of Nandabai and

after returning from her house, he disclosed that there was demand

of cupboard, cot and other articles from Nandabai and therefore she

was subjected to ill-treatment. PW7 Balkrishna himself stated that,

about 1½ months after the marriage, he had gone to matrimonial

house of Nandabai. She complained that, the accused was

complaining that he has not received proper dowry as per his will

and the accused was ill-treating her. She used to disclose this fact to

her parents. PW1 Namdeo, uncle of Nanda, has stated that when

Nanda was burnt and was in Civil Hospital at Jalna, that time Nanda

told him that she was subjected to ill-treatment by the accused and

therefore she set herself on fire. This is the entire evidence regarding

previous ill-treatment by the accused and the alleged intimations by

Nanda about ill-treatment.

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9 APEAL352.2002

11. In the first place, the allegations are extremely vague. No

date, time, place, manner and the nature of ill-treatment has been

deposed. Besides, on listening to it the reaction of brother and

parents is not natural. They did not take any steps to see that Nanda

would not be subjected to ill-treatment. There is no evidence that,

they tried to persuade the accused or took the help of mediators or

Nanda was brought to maternal house due to the ill-treatment meted

out to her. Such vague evidence will not be of any use. It is

pertinent to note that Nanda succumbed to the burn injuries on

03.06.97 and her maternal relatives did not make any complaint till

her death on 21.06.97. Their statements are recorded about one

month after the incident on 03.06.1997. I find that the evidence of

uncle/PW1 Namdeo, PW5-father, PW6-mother brother/PW7-

Balkrishna on the point of previous ill-treatment by the accused to

Nanda is not trustworthy and reliable.

12. It is also pertinent to note that the dying declaration on

which reliance is placed is silent with respect to the alleged dowry

demands. There is a vague statement that her husband used to

assault her after every 4-5 days. There is nothing to show that Nanda

had sustained any serious injuries and was required to be

hospitalized before the main incident of burning. I therefore discard

evidence on the point of previous ill-treatment and dowry demands.

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10 APEAL352.2002

13. As far as dying declaration is concerned, PW4 Shamrao

Nandedkar has deposed that he received one letter from Kadim Jalna

Police Station on 05.06.97 for recording dying declaration of Nanda

and thereafter he visited Civil Hospital at Jalna at 6:00 p.m. He met

the doctors present and saw the burnt patient. He stated that, while

recording her dying declaration, Nanda told him that on 02.06.97, he

had a quarrel with her husband because her husband wanted to

marry with one Varsha, daughter of his maternal uncle. Even there

was engagement, which was broken due to objection of father of the

accused. Again on the next day, there was a quarrel in between

Nanda and her husband. Nanda told PW4 that, she had told her

husband that she would prepare tea and he should fetch water. She

told that, the accused got annoyed and had poured 2½ ltrs. kerosene

on the person of deceased as disclosed in A.D. This dying declaration

is deposed in detail by PW4. He stated that, Nanda told him that her

husband poured kerosene on her body. He further deposed that, she

told him that she herself took the matchstick and set herself on fire.

He also deposed about the complaint of ill-treatment and assault

made by Nanda and her dying declaration. Evidence of PW4 shows

that, it was the accused who wrapped Nanda in towel and he along

with the help of others extinguished the fire and took her to the

hospital at Ambad. The dying declaration is at Exh. 25. PW4 deposed

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11 APEAL352.2002

that, it bears thumb impression of Nanda and his signature but he did

not state that the dying declaration was read over to Nanda, she

admitted it to be correct and thereafter her thumb impression was

taken. He did not state that Nanda was unable to make signature on

the dying declaration.

14. It is certain that, this dying declaration was not made basis

for registration of crime on the same day. The crime is registered on

17.06.97 i.e. 12 days after recording of dying declaration. Letter

Exh.27 written by Police discloses that the police were aware about

the recording of dying declaration by PW4. However, the spot

panchanama dt. 06.06.97 shows that it was drawn in a Crime

No.115/97 u/s 309 IPC. The spot panchanama discloses different

story that Nanda was suffering from illness and therefore she herself

poured kerosene on her person and set herself ablaze.

15. Though the contents of the spot panchanama cannot be

treated as substantive evidence, it is certain that the prosecution is

suppressing the material facts. The cross-examination of Investigating

Officer PI Pawar shows that, one Head Constable – Hiwale had

recorded the statement of Nanda at Ambad, on the basis of which

crime C.R. No. 115/97 was recorded u/s 309 of IPC. If at all her

husband had abetted her by pouring kerosene on her person by

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providing her matchstick the offence could have been registered

against her husband and not against her. There is no proper

explanation why the dying declaration Exh. 25 was not immediately

sent to the police station by PW4 and why the crime was not

registered immediately. There was a long delay upto 17.06.97 for

registration of crime.

16. It is pertinent to note that, after the incident of burning, the

parents, brother and uncle of the deceased Nanda would have

immediately reported to the police about the alleged oral dying

declaration given by Nanda to them but they have not disclosed

anything to the police for a period of one month. The delay is highly

suspicious and it creates doubt about the truthfulness of the evidence

of these witnesses. In this regard, I rely upon Sanju Samson Vs

State of Maharashtra AIR 2002 SC 1998.

17. The story narrated in dying declaration itself appears to be

doubtful. If the accused would have poured kerosene on the person

of Nanda, she would have run away. The accused could not have

tried to extinguish the fire and got himself burn. PW9 has admitted

that, as per first dying declaration, Nanda was suffering from TB and

therefore she attempted to commit suicide. The accused himself had

sustained burn injuries and he had admitted her in Civil Hospital at

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Ambad. There is no dispute that he had taken Nanda for medical

treatment. The conduct of the accused is not consistent with the

allegations in the dying declaration that he poured kerosene on her

person and provided her matchstick.

18. Pertinently, I find that there was no occasion for the

accused to take such a drastic step and abet Nanda to commit suicide.

The marriage was hardly one year old. The cross in the dying

declaration regarding interest of the accused in his maternal cousin is

not disclosed by Nanda to any of the maternal relations as PW1,

PW5, PW6, PW7 have not deposed about this angle of the allegations.

Nanda had given birth to a son just two months before the incident.

Nanda had made no complaint to her maternal relatives during her

stay at her maternal house at the time of delivery. When all these

facts are taken together, there are grave doubts created in my mind

about truthfulness of dying declaration. Ld. Advocate Shri.Satej S.

Jadhav has rightly argued that PW4 ought to have read over the

dying declaration to the patient and after getting admission about

correctness, then only he should have obtained her thumb

impression. Besides, he should have tried to obtain her signature and

in case she was unable to sign, then only her thumb impression

should have been taken.

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14 APEAL352.2002

19. Mr Satej Jadhav relied on Girdhar Tawade Vs State of

Maharashtra AIR 2002 SC 2078, wherein it is held that the acquittal

of the accused u/s 306 would not necessarily entail the acquittal u/s

498A, but there should be cogent evidence to bring home the charge

u/s 498A. He also relied on Sanju Samson Vs State of Maharashtra

AIR 2002 SC 1998 wherein relying upon Ramesh Kumar v. State of

Chhattisgarh (2001) 9 SCC 618, it is held that, “a word uttered in a

fit of anger or emotion without intending the consequences to

actually follow cannot be said to be instigation. If it transpires to the

court that a victim committing suicide was hypersensitive to ordinary

petulance, discord and differences in domestic life quite common to

the society to which the victim belonged and such petulance, discord

and differences were not expected to induce a similarly

circumstanced individual in a given society to commit suicide, the

conscience of the court should not be satisfied for basing a finding

that the accused charged for abetting the offence of suicide should be

found guilty.”

20. It is well settled that, the conviction can be based on

uncorroborated dying declaration, however, such dying declaration

should be cogent, reliable, trustworthy and should inspire confidence.

It should be consistent with the other factual aspects. I find that, the

present dying declaration does not inspire confidence in my mind.

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15 APEAL352.2002

21. The ld. trial Judge has not paid proper attention to the

discrepancies, variances and lacunae in the prosecution case and has

arrived at incorrect findings which are not sustainable. Hence, the

appeal deserves to be allowed and the appellant deserves to be

acquitted.

22. The appeal is allowed. The conviction of the accused is set

aside. The accused is acquitted of all the charges. His bail bonds

stand cancelled. He shall furnish P.R. bond of Rs. 20,000/- u/s. 437A

of Cr.P.C. within fifteen days.

[ A. M. DHAVALE ]
JUDGE

sgp

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