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Sanjay Gopalkrishna Markande And … vs State Of … on 12 July, 2018

Appeal.713.02
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 713/2002

1) Sanjay Gopalkrishna Markande
Aged about 32 years,
R/o Gyaneshwar Nagar, Nagpur.

2) Gopalkrishna Krishnarao Markande
Aged about 62 years
R/o Gyaneshwar Nagar, Nagpur.

3) Sou. Sheelabai Gopalkrishna markande
Aged about 58 years
R/o Gyaneshwar Nagar, Nagpur. ..APPELLANTS

versus

The State of Maharashtra
Through Police Station Officer
Police Station, Ajni, Nagpur. ..RESPONDENT

……………………………………………………………………………………………………………………………..
Mr. Yash Maheshwari Adv.h/for Mr D.V.Bhutada, Adv. for appellants
Mr. S.D. Sirpurkar, APP for respondent
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATED : 12th July, 2018

ORAL JUDGMENT:

1. The instant Appeal has been directed against the judgment and order

dated 17th December, 2002 in Sessions Trial No.269/2002 passed by learned 3rd Ad-hoc

Additional Sessions Judge, Nagpur, convicting the appellants of the offences punishable

under section 498A r/ws 34 and 306 r/ws. 34 of the Indian Penal Code. For the offence

punishable u/s 498A r/ws.34, the appellant no.1 was sentenced to suffer RI for a period

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of two years and a fine of Rs. 500/-,in default, S.I. for two months; and for offence

punishable u/s 306 r/ws.34 IPC he was sentenced to suffer RI for a period of four years

and a fine of Rs. 1000/-, in default, S.I. for three months. For the offence punishable u/s

498A r/ws.34, the appellant no.2 was sentenced to suffer RI for two years and fine of

Rs. 500/-, in default, SI for two months and for offence punishable u/s 306 r/ws.34 IPC, he

was sentenced to suffer RI for a period of four years and a fine of Rs. 1000/- in default, SI

for three moths. For the offence punishable u/s 498A r/ws.34, the appellant no.3 was

sentenced to suffer RI for a period of two years and a fine of Rs. 500/-, in default, SI for

two months and for offence u/s 306 r/ws.34 IPC, she was sentenced to suffer RI for four

years and a fine of Rs. 1000/-, in default, to suffer SI for three months. The substantive

sentences of the accused were ordered to be run concurrently.

2. The prosecution case in brief is that, the complainant-Waman Rajvaidya

(PW1) is the father of deceased-Sneha. Sneha got married with the accused no.1 on

30th November,1996. After marriage , Sneha started residing with her husband and in-

laws in Nagpur itself. It is the case of the prosecution that for about one year all the

accused persons behaved properly with Sneha, however thereafter they started ill-

treating her so as to bring money from her parents. The accused no.1 is the husband of

deceased; accused no. 2 is the father-in-law, whereas accused no.3 is the mother- in-law

of the deceased. Accused no.1 was unemployed and, therefore, all the accused persons

were harassing her and insisting to arrange for finance for starting the business by

accused no.1. For petty reasons, the accused persons used to beat her. Whenever

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Sneha used to visit her parental home, she used to complain against the accused

persons. The parents of Sneha gave understanding to the accused. It is the case of the

prosecution that the accused demanded an amount of Rs. 50,000/- for starting a

computer institute at Shegaon. However, the complainant handed over an amount of

Rs. 30,000/- to accused no.1 for starting the business. Unfortunately, after a few days,

since the business did not take off, the accused persons started harassing Sneha. On

13.2.2002, the complainant received information that her daughter- Sneha had received

burn injuries. The family members arrived at Nagpur. Sneha was admitted in Government

Medical College and hospital on 14.2.2002 at about 5.00 am. It is the case of the

prosecution that Sneha disclosed to her father PW1 that she was harassed by the

accused persons and, therefore, she committed suicide by pouring kerosene on her

person and setting herself ablaze. The complainant then proceeded to the Police Station

and lodged his oral report (Exh.28).

3. The Special Judicial Magistrate was summoned to record the dying

declaration of Sneha. In the first dying declaration which was recorded on 13.2.2002,

Sneha deposed that she was attending the course of ‘Beautician’ and while taking taking

facial treatment of steam from the hot water in the pot on the stove, her chunni fell on

the burning stove and she received injuries (Exh.14). The complainant then moved an

application before the Police Station Ajni requesting for recording fresh dying declaration

of Sneha. Accordingly her second dying declaration came to be recorded.

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4. In the meanwhile, an offence came to be registered on the basis of the

complaint lodged by the complainant PW1 vide Cr. No.46/2002. The second declaration

of Sneha was recorded on 14.2.2002 by the Special Judicial Magistrate vide Exh.50, in

which she deposed that there were altercations between Sneha and her mother in law

on account of money with respect to the Parlour. Her mother -in-law asked her to leave

the Parlour and directed to behave in the manner as she dictates. The mother in law of

Sneha handed over kerosene and a match-box to her. Thereafter Sneha poured

kerosene on her person and set herself ablaze. As she got frightened, she jumped into

the drum which was full of water. Prior to this incident, her father in law got annoyed

with her and said that she should be attentive towards him and she should serve tea to

him. The dying declaration further reveals that she was asked to bring the amount of

Rs. 50,000/- from her father and she refused to do the same. At the relevant time, PW 11

Gulabrao Mahalle was attached to Ajni Police Station. Sneha died on 17.02.2002. PW11

visited the place of incident and recorded the spot panchnama. He also recorded the

inquest panchnama vide Exh.17. He arrested the accused no.1 on 17.2.2002 and

other accused on 18.2.2002. He recorded the statement of various witnesses. PW 11

collected the PM report (Exh.26) and after completion of investigation, he submitted the

charge sheet in the court of learned JMFC. The case was committed to the court of

Sessions. After hearing both sides and on analysis of the evidence on record, the learned

trial Judge convicted the accused as aforesaid.

5. Learned Advocate for the appellants contended that the learned trial

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Judge has not considered the evidence of the prosecution witnesses in proper manner

and has overlooked the discrepancies in their respective versions. He submitted that the

contents in the second dying declaration contradicts with the contentions in first

declaration. He submitted that the accused persons have been falsely implicated in the

present case and, as such, the impugned judgment needs to be set aside. As against

this, the learned APP contended that the leaned trial Judge has properly assessed the

evidence led by the prosecution and has rightly convicted the accused.

6. In order to verify the rival contentions of both sides, it would be beneficial

to go through the testimony of the witnesses examined by the prosecution. The testimony

of PW1-Waman Rajvaidya shows that Sneha got married with the accused no.1 on 30th

November, 1996. After marriage for about one year, everything was going on smoothly.

Thereafter, the husband and in-laws of Sneha started beating Sneha. They were insisting

for bringing money as accused no.1 was unemployed. Sneha used to complain her

father against the accused persons. PW1 went to the matrimonial home of Sneha and

gave understanding to all the accused to treat Sneha properly. However after some time,

the accused persons started demanding amount of Rs. 50,000/- as the accused no.1

wanted to start a Computer institute. PW1 handed over an amount of Rs. 30,000 to

accused no.1. After 2 to 4 months accused no.1 was indebted and the Institute was

closed down, which was started at Shegaon and accused no.1 came to Nagpur. PW 1

further stated that all the accused were insisting to bring the amount of Rs. 50,000 to

start the business. On 13.2.2001, PW1 received the message that Sneha received burn

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injuries and she was admitted in Government Medical College Hospital, Nagpur.

Accordingly, all the family members went to Nagpur. They reached the Hospital on

14.2.2002 at about 5.00 a.m. At that time, Sneha stated before PW1 that when she was

taking meals in the afternoon, Shilabai kicked her and she was not allowed to take

food because of that Sneha set herself on fire. PW1 stated that he made enquiry with

Sneha whether her statement was recorded. On this, she informed him that her statement

was recorded under duress that she set herself on fire. PW1 further stated that Sneha

stated before him that she got burnt herself because of the harassment by the accused

persons. PW1 then proceeded to the Police Station and lodged complaint (Exh. 48).

7. During the cross-examination, PW1 admitted that till this incident, he did

not lodge any report either at Buldana or Nagpur regarding the harassment meted out to

Sneha. He further admitted that he had not mentioned in his report that Sneha stated

before him that while she was taking food in the afternoon she was kicked by Shilabai

and she set her on fire. The said version of PW1 indicates that there was improvement in

his version regarding the factum of Sneha informing him that she was taking food in the

afternoon and she was kicked by Shilabai and therefore she set herself on fire. It was

put up to PW1 that while Sneha was doing the facial practical by keeping a pot of

water on the stove, at that time, stove fell down and therefore she caught fire and

received burn injuries. However PW1 outrightly denied the said suggestion.

8. PW2-Sadashiv Pachkhede, who is the husband of sister of Sneha

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deposed that the accused persons used to demand money; so also Sneha demanded

money from him. However he denied for the same. He then stated that he received a

message that Sneha got burnt and therefore they went to the hospital. At that time,

Sneha informed him that because of domestic harassment, she set herself on fire. PW2

stated that many a times, Sneha informed him that she was harassed by the accused

and beaten by them. An improvement was pointed out in the version of PW2 in his

cross-examination that the accused demanded money from him. It is noticed that the

testimony of PW2 differ from the testimony of PW1 with regard to the statement made

by Sneha.

9. The testimony of independent witness PW 3-Asha Kukatkar shows that

at the time of the incident, she heard noise. Therefore she along with her husband

rushed to the house of the accused. She found Sneha standing in the water drum and

no one else was present and she had received burn injuries. Thereafter Sneha was taken

to the hospital. She was declared hostile by the prosecution. However in the cross-

examination, PW3 stated that Sneha was learning Beauty parlour course and Sanjay

and Sneha were residing separately from the parents of Sanjay. The said version of

PW3 creates a doubt whether at the time of incident, the parents of accused no.1 i.e.

accused nos.2 and 3 were present at the place of the incident.

10. The testimony of PW 4-Gajanan Rajvaidya shows that at the time of

marriage of Sneha, an amount of Rs.30,000/- was given to her in cash along with

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television set and dressing table. According to him, accused no.1 was working in a private

service and his salary was less. He stated that after the marriage, accused started

beating and driving her out of the house and asking her to bring money for himself and

his parents and because of the said harassment, she was brought to the house of PW

4. However after few days Sneha and accused no.1 started residing at Nagpur

separately. According to PW4, the beating continued to Sneha thereafter. PW4 stated

that on 13.2.2002 he received a phone call that Sneha received burn injuries and she

was admitted in the hospital. He met Sneha at that time. She stated that accused were

demanding Rs. 30,000/-, otherwise she should die by setting herself on fire and since it

was impossible for her to live because of the harassment by accused persons, she

poured kerosene on her person and set herself ablaze. The said version of PW4

contradicts with the version of PW1-Waman as according to PW1 while she was eating

meal and her mother in law did not allow, she she got annoyed and, therefore, she set

herself on fire.

11. On careful scrutiny of the testimony of the above said witnesses, it is

clear that there appears to be discrepancies with regard to the factum of accused persons

demanding money from Sneha and the reason for Sneha’s cause of death. Significantly

the PM report shows that Sneha received 78 per cent burn injuries. In these

circumstances it is not clear at what point of time the relatives of Sneha enquired with

her and whether Sneha was in a physical and mentally fit state of mind to give

statement of these witnesses.

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12. Coming to the second dying declaration of Sneha, the first dying

declaration (Exh.14) dated 13.2.2002 reveals that Sneha was doing the course of

Beautician and in practical of facial treatment of steam from the hot water in the pot

on the stove, her chunni fell on the burning stove and as a result of which she had

sustained burns. Sneha then raised shouts and she jumped on the drum full of water.

Thereafter her mother in law, father in law and neighbours rushed to the spot and took

her to the hospital. As per the testimony of PW1- Sneha stated that under pressure she

had given the first dying declaration. However the second dying declaration (Exh.50)

demonstrates that on the date of incident between 11.00 and 3.00 p.m. her mother in

law had altercations with her on account of money in respect of parlour and therefore

her mother in law asked her to leave and had directed her to behave in the manner as

she dictates. Therefore, Sneha poured kerosene on her person which was handed over

to her by the her mother in law and with matchstick which was also handed to to her by

her mother in law, she set herself on fire. Thereafter she got frightened and jumped into

the water drum. Thereafter she was taken to the hospital. She also stated that there was

a demand of Rs. 50,000/- from the accused persons as her husband owed an amount of

Rs. 50,000 to the owner of Kukreja Advertising Company.

13. No doubt, the Special Executive Magistrate recorded the dying

declaration. However, requisition to the medical officer shows that it was at about

12.45 pm, whereas the endorsement was given by the Medical Officer about fitness of

Sneha to give her statement at 12.35 pm. In view thereof the said document creates

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a doubt about the fitness of Sneha. The said dying declaration commenced at 12.47 p.m.

and concluded at 1.20 p.m. However on the said dying declaration there was no

endorsement of the medical officer that all throughout Sneha was mentally and

physically fit to give her statement. There are discrepancies in the timings as to when

requisition was given to the Medical Officer and the time when the Medical Officer

endorses about the fitness of Sneha. Thus, the dying declaration recorded by the special

Judicial Magistrate does not inspire confidence, so also there is discrepancy in the

contents in the first and second dying declaration.

13. In the case of State of Maharashtra vs. Hemant Kawadu Chauriwal and

others reported in (2015) 17 SCC 598, the Hon’ble Apex Court observed that it is a

settled law that dying declaration can be the sole basis of conviction and it does not

require any corroboration. But it is equally true that dying declaration goes against the

cardinal principle of law that “evidence must be direct”. Thus, dying declaration must be

judged and appreciated in the light of the surrounding circumstances and its weight

determined by reference to the principle governing the weighing of evidence.”

. In that case one of the reasons for not relying on the dying declaration

by the Hon’ble Apex Court was that there was no certificate of the Doctor that deceased

was in a fit, stable mental condition to give her statement.

14. The learned trial Judge ought to have considered the evidence led by

the prosecution in its right perspective. In view thereof the judgment and order passed

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by learned trial Judge needs to be set aside. Hence the following order:

ORDER

a) Criminal Appeal No. 713/2002 is allowed.

b) The judgment and order of conviction and sentence passed by the learned 3rd

Ad-hoc Additional Sessions Judge, Nagpur dated 17.12.2002 is hereby quashed and set

aside.

c) The appellants are on bail. Their bail bail bonds shall stand canceled.

JUDGE

sahare

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