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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
CRIMINAL APPEAL NO. 420 OF 2003
AND
CRIMINAL APPEAL NO. 184 OF 2003
CRIMINAL APPEAL NO. 420 OF 2003
The State of Maharashtra
through P.SO., Yavatmal City,
Tq. District – Yavatmal … APPELLANT.
Versus
1. Ganesh s/o Shripat Pawar,
aged about 24 years.
2. Shripat s/o Bapurao Pawar … (Abated)
3. Prashant s/o Shripat Pawar,
aged about 22 years.
4. Rekha w/o Santosh Thorat,
aged about 22 years.
5. Sau. Shashikalabai w/o Shripat
Pawar, aged about 42 years.
All r/o Talav Fail, Yavatmal, Tq.
District – Yavatmal. … RESPONDENTS
Shri S.S. Doifode, APP for the appellant.
…..
CRIMINAL APPEAL NO. 184 OF 2003
Ganesh s/o Shripat Pawar,
aged about 27 years, occupation
– Business, r/o Talav Fail, Yavatmal,
Tq. District – Yavatmal. … APPELLANT.
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Versus
The State of Maharashtra
through P.SO., Yavatmal City,
Tq. District – Yavatmal … RESPONDENT
Shri S.S. Doifode, APP for the respondent.
…..
CORAM : B.P. DHARMADHIKARI
V.M. DESHPANDE, JJ.
MARCH 30, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
The Sessions Judge, Yavatmal, has vide judgment
delivered on 03.03.2003, in Sessions Trial No. 38 of 1999,
acquitted all five accused for the offence punishable under
Section 302 read with Section 34 of Indian Penal Code (I.P.C.).
Except Accused No. 1 – Ganesh Shripat Pawar, other four
accused have been acquitted of charges punishable under
Section 498A read with Section 34 of Indian Penal Code also.
2. Ganesh has been convicted for the offence
punishable under Section 498A of the Indian Penal Code and
sentenced to suffer Rigorous Imprisonment (R.I.) for three
years and to pay fine of Rs.3,000/- or in default to undergo R.I.
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for six months.
3. The State Government has filed Criminal Appeal
No. 420 of 2003 challenging acquittal of all accused for the
offence under Section 302 and four accused for the offence
punishable under Section 498A of the I.P.C. Accused No. 1 –
Ganesh has challenged his conviction under Section 498A of
the I.P.C.
4. We have heard Shri S.S. Doifode, learned APP for
the State in both the appeals. Nobody has appeared for the
respondents in Criminal Appeal No. 420 of 2003 and for the
appellant in Criminal Appeal No. 184 of 2003.
5. The charge as framed against all five accused is
common. The deceased Lata was wife of accused No.1 – Ganesh.
Their marriage was performed on 15.05.1997 and she died of
100% burn injuries on 23.11.1998. The date of incident of
burning is 21.11.1998. The father of Ganesh was accused No.
2, his mother was accused No. 5, his brother was accused No. 3
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and his sister was accused No. 4.
6. The material available on record, insofar as incident
of burning is concerned, is in the shape of a Dying declaration
(D.D.) dated 21.11.1998. This Dying declaration is followed by
three oral Dying declarations and thereafter one more D.D. This
last D.D. is at Exh. 50. It is recorded by the Investigating
Officer (PW-8).
7. Shri Doifode, learned APP submits that narration of
story in first dying declaration (Exh. 41) itself implicates
accused No. 1 – Ganesh and, therefore, his acquittal from the
offence under Section 302 of I.P.C. is unsustainable. He further
points out that the trial Court has already convicted him under
Section 498A of I.P.C. and very same evidence should have
been used against his relatives to return the finding of guilt.
The relatives, therefore, are also liable to be punished under
that section. He has invited our attention to the prosecution
witness Maltibai, Sheela and Sunil to urge that they have
brought on record illegal demand by accused Nos. 1 to 5 from
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Lata after her marriage. He submits that their evidence clearly
establish common intention and ill-treatment to the deceased
Lata. As the death has taken place within a span of seven
years, the burden was upon the accused persons and that has
not been discharged.
8. Exh. 41 is the first dying declaration in point of
time. It is recorded on 21.11.1998 at 11.20 P.M. by the
Executive Magistrate Shri Gandharwar (PW-6). In it, she has
stated that her marriage was performed about two years back
and there were frequent quarrels between her and her husband.
In the afternoon on that day, her husband asked her to bring
money from her mother. Her father has suffered paralytic
attack. After quarrel, her husband poured kerosene on her
person and ignited her. A perusal of Exh. 41 shows that its
recording commenced at 11.20 P.M. and was over at 11.30
P.M.
9. At the top of Exh. 41, there is a certificate issued by
Dr. Prashant Shelke that the patient is fit for dying declaration.
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PW-9 Dr. Prashant has proved it at Exh. 55. Recording of dying
declaration was over at 11.30 P.M. At the end on right hand
side, PW-6 – Executive Engineer has placed his signature. He
has, also on left hand side, put a remark that no one except
doctor was present when dying declaration was recorded.
Thereafter he has written that it was read over and admitted to
be correct by Lata. The requisition to PW-6 to record D.D. is
Exh. 43 on record. On the basis of statement at Exh. 41, Police
Constable A.P. Mahajan has lodged the report. That First
Information Report (FIR) has been marked as Exh. 45.
10. Exh. 50 is the dying declaration recorded by A.P.I.
Udaysingh Rathor on 22.11.1998. This has been recorded on
next day after parents of the deceased Lata visited her. In
margin, doctor has certified that patient was fit for giving D.D.
After statement was recorded at 9.35 PM, there is another
endorsement just below first one that statement has been
recorded in his presence. In this D.D., Lata has stated that she
was married with Ganesh about 1½ years back and then her
father had given dowry of Rs.6,000/- to her father-in-law.
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Despite this, Ganesh always used to beat her, asking her to
bring more money from her parents. On 21.11.1998, in the
afternoon, for said reason, her husband beat her. At about
1630 hours when she was alone, her husband, mother-in-law,
sister-in-law, younger brother-in-law, father-in-law, all came.
She has also given their names with relation. Ganesh poured
kerosene on her person while other four caught hold of her.
Ganesh set her on fire. She has also added that on 22.11.1998,
she told name of her husband only to Tahsildar as her mother-
in-law, father-in-law, sister-in-law and brother-in-law had
threatened and told her that otherwise there will be nobody to
look after her.
11. Three oral dying declarations are to relatives of Lata
when they visited her. Trial Court has considered the same in
paragraph 18 of its judgment. It appears that earlier paragraph
has been given No. 17 while later paragraph is also given
paragraph No. 17. When dying declaration was already
recorded by the Executive Magistrate on 21.11.1998 and on
that basis FIR was also registered, it is apparent that there was
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no need to again record second D.D. The trial Court has found
that Exh. 50 was prepared without any satisfactory reason.
Lata was suffering from 100% burns and few hours before her
death, Exh. 50 came to be recorded. Oral dying declarations to
PW-1, PW-2 and PW-3 is when they all met together Lata in the
hospital. We, therefore, find trial Court right in holding that
D.D. at Exh. 50 contains improvements after relatives/ parents
of Lata met her and could not have been relied upon to
implicate accused persons.
12. Insofar as Exh. 41 is concerned, therein Lata does
not point out any time gap between quarrel and incident of
burning. If Exh. 50 is true, other accused persons were not
present at the time of quarrel. However, hypothecation cannot
be resorted to in such matters.
13. A perusal of evidence of PW-9 – Dr. Prashant shows
that he was not a Doctor treating Lata. Some other Doctor was
supervising that treatment. He gave certificate without reading
case papers of said patient (Lata). He claims that he inquired
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from Lata about her name, place of incident and when she gave
proper answers, he came to the conclusion that patient was in
fit condition to give statement. Earlier he has accepted that
due to pain, pain killer is administered to such patients and
some pain killers also contain sedative. The fact that he put
some questions and ascertained whether Lata was conscious
and well oriented is not recorded by him anywhere. What is
important is, he was not aware of history of treatment and still
proceeded to issue certificate. The D.D. at Exh. 41 does not
show any other certificate on same lines.
14. PW-6 – Executive Magistrate – Gandharwar deposes
that after obtaining certificate from doctor, doctor examined
the patient and gave certificate. He then ascertained that no
relative was present near Lata. He then asked her name and
disclosed his identity and purpose of visit. He gathered
therefrom that patient was in a position to talk and in good
condition. He then recorded her statement. He deposes that
he then read over that statement to patient and she admitted
the same to be correct. Thereafter he obtained her thumb
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impression, put his own signature. He also states that at the
end of process, as Doctor was present throughout her
statement, he obtained certificate of Doctor again. Thus, after
inquiring name from the patient, PW-6 claims that he could
gather that the patient Lata was in a position to talk and in
good condition. He has not recorded this observation
anywhere in Exh. 41.
15. A perusal of Exh. 41 reveals that it is recorded in
Marathi language and on its back side, which in fact appears to
be the beginning of printed form, at the top intimation by
Police Station Officer appears. This intimation thereafter notes
that the recipient – Executive Magistrate had gone to Hospital
(Yavatmal Government Hospital) on 21.11.1998 at 11.00 P.M.
He reached there at 11.10 P.M. When he contacted Lata
Ganesh Pawar for recording her dying declaration and gave her
notice thereof, 2 – 3 questions were put to patient. Line
thereafter in printed proforma is “proper answers were given/
not given”. Thus, the option applicable is to be retained and the
other is to be scored off. In this case, both the options appear
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and none is cancelled. Then below this, there is requisition to
the Medical Officer and at the bottom is Exh. 55 where PW-9
has certified that “patient is fit for D.D.”. This is the material on
first page. On reverse i.e. second page, after D.D., on left hand
side, thumb of Lata appears and at the bottom, there is again
certificate by the Medical Officer. Time placed below signature
shows that it is issued at 11.30 P.M. He has issued certificate
“D.D. is taken in presence of me.” This endorsement is marked
as Exh. 56. In printed proforma of D.D. in Exh. 41, there is a
column for mentioning time at which the recording of D.D. was
over. That time has been mentioned as 11.30 P.M. However
the figure “.30” appears to have been overwritten and
substituted for some other figure.
16. In Dying declaration at Exh. 50, the Investigating
Officer Udaysingh Rathod has recorded everything on one page
only. It is in the shape of statement and it is not recorded
anywhere that Lata was informed about its nature. The
narration of events therein reveals that there were two
incidents. First one in the afternoon when she was beaten by
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Ganesh. Thereafter at 1630 hours when the incident of burning
occurred. Time has been mentioned by the Medical Officer
below his second certificate as 9.35 P.M. This certificate reads
“statement recorded in my presence”. It appears that this
certificate on Exh. 50 or certificate just above it, which reads
“patient fit for D.D.” is not by PW-9. The Medical Officer who
may have given it, has not been examined.
17. This evidence about Exh. 41 is also not very
satisfactory. We cannot at this stage compare Exh. 41 and Exh.
50 and embark upon the exercise of finding out which one
appears to be correct. Once the fact that Lata has not spoken
correctly in Exh. 41 emerges on record, Exh. 41 and Exh. 50
both cannot be relied upon. Not only this, if after quarrel
Ganesh did not pour kerosene and ignite her but came back at
4.30 P.M. and then ignited her, narration of story in Exh. 41
itself becomes doubtful. We, therefore, find trial Court justified
in not placing reliance upon any D.D.
18. The trial Court has found that Investigating Officer
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could have recorded statements of others who immediately
came to spot and extinguished fire on the person of Lata by
pouring water. Spot panchnama Exh. 24 shows water. There
was some investigation as to who extinguished that fire. But
then these persons were not examined before the Court. These
persons could have thrown light on the events which took
place. They could have also pointed out presence of one or
more of the accused persons on the spot at the time of burning
or their running away. That has not been brought on record.
We, therefore, find nothing wrong with the acquittal of all
accused persons for the offence punishable under Section 302
of I.P.C.
19. In paragraph 24, the trial Court has looked into
evidence of PW-1 mother – Maltibai, PW-2 sister – Sheela, PW-
3 brother – Sunil. These persons spoke about money paid to
Ganesh/ his family and ill-treatment extended to Lata. If Exh.
41 is correct, money was only demanded by Ganesh. In this
situation, exoneration of accused Nos. 2 to 5 from the offence
punishable under Section 498A of the I.P.C. cannot be said to
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be perverse.
20. The trial Court had to find out commission of
offence under Section 498A read with Section 34 of I.P.C. and,
therefore, framed the point as under :
POINT FINDING
Does prosecution prove that on or before Proved only against
21.11.1998, accused nos. 1 to 5 in furtherance accused no. 1.
of their common intention subjected deceased
Lata to cruelty by wilful conduct which was of
such a nature as was likely to drive her to
commit suicide and that accused nos. 1 to 5
harassed deceased Lata by giving physical
mental torture on account of demand of money
to purchase weilding machine and thereby
committed an offence punishable under Section
498A r/w 34 of I.P. Code ?
The trial Court has convicted Ganesh only.
However, there is no express finding that the harassment was
of such a nature as is likely to drive Lata to commit suicide.
21. In this respect, the discussion by the trial Court in
paragraph 22 of its judgment also needs to be looked into. The
trial Court has found material on record insufficient to prove
homicidal death of Lata. It has expressly observed that
possibility of its suicidal or accidental nature cannot be ruled
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out.
22. There is no eye witness to the incident. If Exh. 41
or Exh. 50 cannot be relied upon, then finding of the trial Court
that death may be suicidal or accidental assumes importance.
The trial Court could have only said that prosecution failed to
prove that death was not homicidal. There is nothing on record
to gather that at any time in past Lata had expressed any
concern about her life or any wish to end it. The narration by
her in Exh. 50 shows some time gap in alleged quarrel and the
incident. In this situation, if the death is not accidental, point
as formulated by the trial Court could not have been answered
by it against accused No. 1 – Ganesh. We find that prosecution
did not prove death to be homicidal or suicidal.
23. In the absence of eye witnesses, only circumstantial
material needs to be looked into. There is no independent
evidence of any harassment or demand. Lata in Exh. 41 blames
her husband only. In Exh. 41 she speaks of quarrel while in
Exh. 50 she claims that her husband physically assaulted her.
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In Exh. 41, quarrel and burning form part of the same event
while in Exh. 50, both become two distinct events. In Exh. 50,
Lata gives more details of her harassment. Prosecution has
produced only relative witnesses who may have contributed to
Exh. 50 also. In this situation, merely by relying upon a
statement in Exh. 41, we are not inclined to hold accused No. 1
– Ganesh guilty even under Section 498A of the I.P.C. The
prosecution has failed to bring on record any cogent and
convincing material for this purpose.
24. In view of this discussion, we proceed to pass the
following order :
(i) Criminal Appeal No. 420 of 2003 filed by the State
Government seeking conviction of all accused under Sections
302 and 498A of the Indian Penal Code is dismissed.
(ii) Criminal Appeal No. 184 of 2003 filed by accused
No. 1 – Ganesh Shripat Pawar is allowed. His conviction under
Section 498A of the Indian Penal Code is quashed and set aside.
(iii) Bail bonds furnished by Ganesh Shripat Pawar are
cancelled.
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(iv) Muddemal property be dealt with as directed by the
trial Court.
JUDGE JUDGE
******
*GS.
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