Bombay High Court Ravindra Keval Bachhav, Bapu -vs- The State Of Maharashtra And Anr. on 10 March, 2004
Equivalent citations:2004 CriLJ 2417, II (2004) DMC 588
Bench: V Palshikar, P Kakade
1. Being aggrieved by the judgment and order of conviction and sentence passed on 19.9.1998 by III Additional Sessions Judge, Nashik in Sess. Case No. 160/97 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned advocate appearing on behalf of the appellant before us.
2. With the assistance of the learned counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.
3. The prosecution story stated briefly is that there used to be frequent quarrels between the man and wife i.e. the accused and the deceased. On 15.9.1996 in the morning it is alleged that the accused poured kerosene on body of his wife Shalini and burnt her to death. On the report of such death being filed investigation was carried out. The accused and all his relations who are present appellants were arrested. Some of them were later on released on bail for committing assault on the victim under Section 498A and against accused No. 1 the husband for murdering the wife under Section 302 of Indian Penal Code. The prosecution examined as many as 12 witnesses in support of its case that the accused was the person who committed murder and rest of the accused were persons who tortured her before she being murdered.
4. Shri Gupte, learned counsel appearing on behalf of the appellants submitted that the dying declarations as recorded are unacceptable in law. No reliance should be placed on the same. He then specifically relying upon testimony of P.W.1-Chandrakant Gangurde submitted that the dying declarations cannot be accepted for the intrinsic evidence which is within the deposition of P.W.1-Chandrakant. He was pointed out to us discrepancies in the dying declaration and has therefore pleaded that in such circumstances conviction under Section 302 or 498A is unsustainable. It was also the contention of Shri Gupte that it is established principle of law under Section 498A of IPC that the torture, harassment or assault or ill treatment complained of as contemplated Under Section 498A must be such as is administered immediately prior to the prosecution. In this case the prosecution has taken place in 1996, the incident which is on record occurred nine months prior to the commencement of the prosecution. According to him therefore it is strained evidence. There is no complaint ever made by the witness to the police though there is evidence of P.W.6-Anandrao Patil father of the victim regarding ill treatment which was rather prior to the death or thereabout. According to the learned counsel therefore the conviction of accused Nos. 2 to 11 is baseless, without any evidence and therefore unsustainable in law.
5. Learned additional public prosecutor Mrs. Kejriwal opposing the submissions made by Shri Gupte pointed out that there is discrepancy in the two dying declarations as made. What has been trumpeted as discrepancy is a simple slip of memory and there is therefore no reason why conviction of accused No. 1 under Section 302 of IPC be interfered with. However learned public prosecutor Mrs. Kejriwal was fair enough to submit that the evidence of ill treatment by accused Nos. 2 to 4 in relation to dowry demands is stale. She however led emphasis on the deposition of P.W.6-Anandrao Patil father of the victim.
6. We have to consider these rival submissions in the light of the evidence which we have reappreciated.
7. P.W.1-Chandrakant is neighbour of both i.e. accused and the victim. The accused and victim both were serving in the school. This witness was also serving in the school and they were all staying in the same vicinity. P.W.1-Chandrakant described the incident as it occurred. According to him in the morning of 15.9.1996 he was collecting water from the tap when he heard cried. He recognized the cries as of the victim Shalini and therefore started going towards the house of the accused and the victim. While so going he saw accused No. 1 also coming towards house from where the sound of cries emanated. The witness then says that the witness entered the house and immediately thereafter accused No. 1 entered the house. They notices Shalini had sustained burn injuries. The witness then says that there was mattress on the cot, I asked the accused No. 1 to hold it from one side and said mattress was kept on the body of Shalini immediately. Thus the fire was extinguished. Accused and the witness then took the victim to the hospital, where no adequate aid was available and ultimately she was taken to another hospital.
8. In this case two dying declarations are recorded. After the victim reached the hospital, authorities were informed, Executive Magistrate was called and he recorded the first dying declaration at 8.15 and completed recording at 8.50 a.m. The document bears certificate of the doctor and it is stated in this statement by the wife that the accused poured kerosene on her and burnt her. There is mention of P.W.1-Chandrakant coming to douse the fire. But there is no mention of the husband accompanying P.W.1. It was thereafter that at 9.50 the statement of the victim was again recorded by the police for the purposes of lodging former First Information Report. That document recorded by the police officially is proved by him and is Ex. 99. This statement Ex. 99 which is given half hour after the first one Ex. 108 was recorded. This certificate also bears signature of the doctor. It is recorded at Kalwan. It bears an endorsement that it was recorded at 9.15 a.m. In this statement it is stated by the victim that there was quarrel between the husband and wife around 7.30 in the morning when enraged the accused poured kerosene on the body of the victim, but heron fire and left the house. She then cried and neighbouring people came there and brought her to hospital. In this document there is no mention of P.W.1-Chandrakant helping her, there is no mention that she specifically called Chandrakant-P.W.1 to help.
There is no explanation from the prosecution as to how this dying declaration came to be recorded at 9.50 at Kalwan, when the dying declaration Ex. 108 was also recorded at Kalwan prior to the recording of this document. However the explanation on behalf of the prosecution is that one was recorded was evidence and other was recorded for the purposes of drawing up a formal FIR which needs a formal complaint whether oral or in writing.
9. However in the second dying declaration written and proved by the Executive Magistrate-P.W.10-Ramdas Aher she says that there was quarrel between man and the wife, she is unable to tell the time, she then called Chandrakant Gangurde-P.W.1. According to the statement Ex. 108 the mattress was thrown on her body by P.W.1-Chandrakant and she does not make any mention of the husband assisting the witness. It will be seen that she states between 8.15 to 8.50 on 15.9.1996 before the Executive Magistrate that she does not remember the time when the incident took place and it 9.15 when she starts narration to the police she is very categoric in saying:
^^vkt rk- [email protected]@96 jksth ldkGh 7-30 ok- lqekjkal eh ?kjkr vlrkauk ek>k irh jfoanz o ek>sr HkkaM.k >kys rs eyk Eg.kkys dh rqyk Vkdqu ?kkyhu. ;k o:u eyk f’kohxkG dsyh rlsp dky rk- [email protected]@96 jksth i.k eyk ek>k uojk ;kauh ekjgk.k dyh gksrh- R;k uarj vkt ldkGh 7-30 ok- ek>k uojk jfoanz dsoy cPNko ;kauh ek>s vaxkoj jkadsy Vkdqu vkx isVhps dkMhus isVoqu ?kjk ckgsj fu?kqu xsyk rsOgk ek>s vkaxkojhy diM;kauh isV ?ksryk**-
From the above it will be clear that the when the statement is recorded by Executive Magistrate he victim does not remember the time, does not mention quarrel which took place on 14.9.1996 and immediately half hour thereafter while telling to police she remembers everything very clearly, the quarrel took place on 14.9.1996, quarrel took place on 15.9.1996, time was 7.30 and the fact of her husband putting her to flames. The memory is so clear at that time yet she forgets to mention about her calling P.W.1-Chandrakant and he coming and dousing the fire which thirty minutes ago she has said in Ex. 108. Exh. 108 in fact therefore is a statement made by victim earlier in point of time. In the subsequent statement Ex. 99 recorded at 9.15 she does not say that she called P.W.1-Chandrakant who doused the fire and took her to hospital. The omission is glaring it can also be said that what she has stated before the Executive Magistrate was a conscious effort to implicate the husband. In any event, it raises a reasonable doubt as to what was the truth.
10. There is therefore no finding which can be arrived with any certainty that it was the accused who put the victim on fire. The accused alleges that he saw fire in his house and started going towards it. He is corroborated in that by P.W.1-Chandrakant who claims positive action on the part of accused in dousing the fire carrying the victim to the hospital and caring for her subsequently. These two declaration therefore are inconsistent with each other. But the explanation of the accused, the totality of circumstances as proved by prosecution and the testimony of P.W.1 if read together gave out all its consistent with the theory of the accused that he is innocent. When two such calculations are possible it is an established principle of law that one in favour of the accused it liable to be accepted.
11. Taking into consideration the material and serious contradiction in the two dying declarations, clear testimony in the deposition of P.W.1-Chandrakant that he saw the accused coming towards the house and entered the house with the accused and with the help of accused put the fire off, all circumstances appearing against the accused stand explained. We have therefore no hesitation in holding that the learned trial Judge erred in accepting such circumstances as based on conviction under Section 302 of IPC. Even if these circumstances are assumed to be existing they are not enough to warrant conviction that it was accused alone who caused death of the victim.
12. That takes us to the questing of conviction of all the accused under Section 498A. As we have already observed even if the entire evidence of the prosecution as it stands is accepted it does not disclose any ill treatment, torture or assault by any of the accused persons at least six months prior to the date of incident. Most of the letters proved on record pertain to the demands made by the accused-husband. There is no evidence whatsoever to warrant conviction of accused Nos. 2 to 11. Merely because they are near relations of the accused learned trial Judge in our opinion erred in recording such conviction. In the result, therefore, the appeal is partly allowed with the following order:
i) Conviction and sentence recorded against accused No.1 under Section 302 IPC is set aside. He is acquitted of that charge;
ii) We affirm the sentence and conviction of accused No. 1 under Section 498A as recorded by the learned trial Judge. He has sentenced the accused to suffer rigorous imprisonment for three years. Factually the accused No. 1 has suffered rigorous imprisonment for seven years. He is therefore liable to be released forthwith if not otherwise required;
iii) We acquit accused Nos. 2 to 11 of the offence under Section 498A of IPC for total lack of evidence.
iv) Those of accused who are not on bail are liable to be released forthwith;
v) Bail bonds of all the accused stand canceled.
vi) Appeal accordingly stands disposed of.