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Dinesh Vasanta Bhoyar ( In Jail) vs The State Of Maharashtra Thr. … on 23 March, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.122 OF 2013

Dinesh s/o. Vasant Bhoyar,
Aged about 37 years, r/o.
Durgapur, Tq.Zari Jamni,
Distt. Yavatmal. ………. APPELLANT

// VERSUS //

State of Maharashtra,
Through it’s Police Station
Officer, Police Station,
Patan, Distt. Yavatmal. ………. RESPONDENT

Ms S.H.Bhatia, Advocate (appointed) for the Appellant.
Mr.T.A.Mirza, A.P.P. for Respondent/State.

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CORAM : B.R.GAVAI
AND
M.G.GIRATKAR, JJ.

DATED : 23RD MARCH, 2018.

ORAL JUDGMENT (Per B.R.Gavai, J) :

1. The appeal challenges the Judgment and Order passed

by the learned Sessions Judge, Pandharkawada in Sessions Trial No.8

of 2011 thereby convicting the appellant for the offences punishable

under Sections 302 and 498A of the Indian Penal Code and

sentencing him to suffer imprisonment for life and to pay a fine of

Rs.2,000/-, in default to suffer simple imprisonment for one year for

the offence punishable under Section 302 of the Indian Penal Code

and to undergo rigorous imprisonment for one year and to pay a fine

of Rs.1,000/-, in default to suffer simple imprisonment for six

months for the offence punishable under Section 498A of the Indian

Penal Code.

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2. The prosecution case, as could be gathered from the

material placed on record, is thus :

Accused Dinesh was married to deceased Vaishali. They

are blessed with two children namely Nisarga aged about 7 years and

Chirag aged about 5 years. They were residing at village Durgapur,

Tq.Zari Jamni, District Yavatmal. It is the prosecution case that the

accused used to ill-treat the deceased under the influence of liquor.

He also had suspicion on her character. On number of occasions, she

was driven out. However, on account of intervention of elders and in

order to take care of welfare of the children, the deceased continued

to reside with the accused. On 20.10.2010, at around 10 a.m.,

Nagorao Dhengale, brother of deceased received information from

one Shriram Bhoyar that Vaishali got burnt and she was shifted to

Rural Hospital, Zari. She was given certain preliminary treatment at

Zari and thereafter, on medical advice, she was shifted to Yavatmal.

Deceased died in the intervening night of 24th October, 2010 and

25th October, 2010. The First Information Report came to be lodged

by Nagorao Dhengale (PW-1) on 27.10.2010. On the basis of oral

report of Nagorao (PW-1), the F.I.R. was registered. Upon

completion of investigation, charge sheet came to be filed in the

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Court of learned Judicial Magistrate, First Class, Zari. Since the case

was exclusively triable by the learned Sessions Judge, it came to be

transmitted to the Court of Sessions at Pandharkawada. Charges

were framed below Exh.9. The accused pleaded not guilty and

claimed to be tried. At the conclusion of trial, the learned trial Judge

passed the order of conviction and sentence, as aforesaid.

3. With the assistance of the learned A.P.P. and the learned

Counsel for the appellant, we have scrutinized the evidence on

record.

4. The conviction, as recorded by the learned trial Judge

basically on the basis of the dying declaration recorded by Rambhau

Domaji Bende (PW-7) was, at the relevant time, working as an ASI.

Oral dying declaration is allegedly given to Nagorao (PW-1) and

Pratibha Telang (PW-5), sister of deceased.

5. We have scrutinized the evidence of Rambhau Bende

(PW-7) who has allegedly recorded the written dying declaration. It

is to be noted that the deceased succumbed to the burn injuries on

24.10.2010. The dying declaration below Exh.44 is alleged to have

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been given on 20.10.2010, at 14.35 hours. Perusal of the said dying

declaration would reveal that nodoubt that the said dying

declaration states that, after quarelling, the appellant poured

kerosene on the person of deceased from the can and thereafter, took

burning stick from the hearth (chulha) and set her on fire. She states

that she was then brought by the accused to the hospital at Zari and

thereafter, at Yavatmal.

6. Nodoubt that the aforesaid dying declaration records

endorsement of Medical Officer. Though the dying declaration is

recorded on 20.10.2010, for the reasons best known to prosecution,

the F.I.R. is registered for the first time on 27.10.2010 i.e. after a

period of seven days. Rambhau (PW-7) in his evidence even states

that he does not remember name of the doctor who has given said

certificate on dying declaration. Though the deceased was alive for 4

to 5 days, no explanation is given as to why the dying declaration

was not recorded by the Executive Magistrate.

7. Prosecution has not at all explained the delay of seven

days in lodging the F.I.R. when the dying declaration was recorded

on 20.10.2007 itself. In that view of the mater, we find that it will

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not be safe to rest the order of conviction on the basis of such dying

declaration.

8. That leaves us with the oral dying declaration allegedly

given to Nagorao Dhengale (PW-1) and Pratibha (PW-5), brother

and sister respectively of the deceased. Both these witnesses are

interested witnesses. Nodoubt that merely because the witnesses are

interested, it cannot be a ground to discard their testimonies.

However, their evidence is required to be scrutinized with greater

caution and circumspection. Only if their evidence is found to be

trustworthy, reliable and cogent, conviction can be based upon the

same. Nagorao (PW-1) is educated person having B.A. B.Ed. Degree

and is working as a teacher. In his evidence, he clearly admits that,

after funeral was over, his father Ramdas, brother Sheshrao, mother

Gangabai and neighbour Kishor Yellewar were present and that he

had discussed the issue with the above persons. He has lodged the

First Information Report even after waiting for a day after funeral.

There is a clear admission in the evidence of Pratibha (PW-5) that,

till Vaishali was alive, police did not come to the hospital. She states

that, after the death of Vaishali, police came in the hospital. As such,

we find that it will not be safe to rely on the evidence of these two

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witnesses who have waited from 20th October till the death of

deceased which has occurred during the intervening night of

24.10.2013 and 25.10.2013 and thereafter, lodged F.I.R. only on

27.10.2013.

9. In that view of the matter, we find that the conviction for

the offence punishable under Section 302, as recorded, is patently

erroneous.

10. That leaves us with the conviction of the appellant for

the offence punishable under Section 498A of the Indian Penal Code.

Perusal of evidence of all the witnesses would reveal that there is not

even a whisper that there was ill-treatment to the deceased on

account of non-fulfillment of demand of dowry. The only allegation

is that the accused used to suspect character of the deceased and

under the influence of liquor, he used to ill-treat her. We find that

such an evidence would not be sufficient to bring the case within the

ambit of Section 498A of the Indian Penal Code. Hence, conviction of

the appellant under Section 498A of the Indian Penal Code would

not be sustainable. In the result, the following order is passed.

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1] The appeal is allowed.

2] The order of conviction and sentence, as

recorded by the learned Additional Sessions Judge,
Pandharkawada for the offences punishable under Sections
498A and 302 of the Indian Penal Code is set aside. The
appellant is acquitted of the charges charged with.

3] The appellant is directed to be set at liberty
forthwith, if not required in any other case or crime.

4] The appellant is already on bail. His bail
bonds shall stand cancelled.

5] Fees of the learned Counsel appearing for the
appellant are quantified at Rs.5,000/-.

JUDGE JUDGE

[jaiswal]

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