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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 246 OF 2008
State of Maharashtra,
Through P.S.O. Ambazari,
Nagpur. ….. Appellant.
:: VERSUS ::
1. Smt. Laxmibai w/o Gulab Bighane
Aged about 55 years.
2. Manish s/o Gulabrao Bighane,
Aged about 25 years.
3. Gulab s/o Balaji Bighane,
Aged about 60 years.
4. Deepak s/o Gulabrao Bighane,
Aged about 27 years.
All R/o Ambazari Tekadi,
Near Buddha Vihar, Nagpur. ….. Respondents.
Shri C.A. Lokhande, Addl.P.P. for the Appellant/State.
None for the Respondents.
CORAM : R.K. DESHPANDE
V.M. DESHPANDE, JJ.
DATE : SEPTEMBER 15, 2017.
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ORAL JUDGMENT (Per : V.M. Deshpande, J.)
1. Exception is taken to the judgment and order of
the acquittal passed by learned Additional Sessions Judge-3,
Nagpur, in Sessions Trial No.16 of 2004, by which learned
Judge of the Court below has acquitted the respondents for
the offences punishable under Sections 498A, 304B, and 306
r/w Section 34 of the Indian Penal Code and under Section 4 of
the Dowry Prohibition Act, 1961.
2. We have heard learned Additional Public
Prosecutor Shri C.A. Lokhande for the appellant/State.
Learned counsel Shri S.B. Tiwari, who was appointed to
represent the respondents from the High Court Legal Services
Sub Committee at Nagpur, remains absent when the matter
was called for final hearing.
3. The charge below Exhibit-2 in Sessions Trial No.16
of 2004 was framed against the respondents by learned Judge
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of the Court below for the offences punishable under Sections
498A, 304B, and 306 r/w Section 34 of the Indian Penal Code
and under Section 4 of the Dowry Prohibition Act, 1961.
4. The respondents abjured their guilt and claimed
for their Trial.
5. In order to bring home the guilt of the
respondents, the prosecution has examined in all 9 witnesses
and also relied upon dying declaration Exhibit 45.
6. According to the prosecution, in the month of
April 2000, marriage between deceased Savita and accused
No.4 Deepak s/o Gulabrao Bighane was performed. Accused
Nos.1 and 3 are parents of accused No.4 Deepak. Accused No.2
Manish is brother of accused No.4 Deepak.
7. According to the prosecution, Savita was treated
with cruelty. The respondents gave ill-treatment for unlawful
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demand of money. Whenever she used to come to her parental
house, she used to tell about the ill-treatment given to her by
the respondents. According to the prosecution, due to
constant, continuous, and severe cruelty, she poured kerosene
on herself and committed suicide on 22.7.2003.
8. PW2 Anil Baliram Sonekar, brother of deceased
Savita, lodged his oral report Exhibit 31, on the basis of which
Crime No.187 of 2003 for the offences punishable under
Sections 498A and 306 read with Section 34 of the Indian
Penal Code was registered. The printed first information
report is at Exhibit 32.
9. When Savita was admitted in the hospital,
according to the prosecution, PW8 Police Head Constable
Arun Shankar Wagh recorded her dying declaration Exhibit
45. After completion of usual investigation, the charge-sheet
was filed.
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10. PW1 Vijay Baliram Sonekar, PW2 Anil Baliram
Sonekar, and PW3 Smt. Vatsala Baliram Sonekar are near
relatives of deceased Savita being her brothers and mother.
11. Postmortem report is at Exhibit 37. The said is
duly proved by PW5 Dr. Prakash Madhukarrao Mohite.
12. According to the evidence of PW5 Dr. Prakash
Mohite, Savita suffered 66% of burn injuries and as per his
opinion, all burn injuries are antemortem in nature. The
cause of death is, “Shock Due to Burns.”
13. In view of evidence of PW5 Dr. Prakash Mohite
and postmortem notes Exhibit 37, there is no escape from
reaching to the conclusion that Savita met with an unnatural
death.
14. An unnatural death can be, (i) Homicidal; (ii)
Accidental, and (iii) Suicidal.
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15. In the present case, the respondents were not
charged that they are responsible for homicidal death of
Savita. Further, it is not a defence of the respondents that
Savita suffered burn injuries accidentally. Therefore, those
possibilities are also ruled out. Therefore, safely we can reach
to the conclusion that Savita committed suicide.
16. Once the said finding is reached, it has to be seen
whether the prosecution has proved that due to harassment,
Savita has taken extreme step of her life.
17. The prosecution heavily relies on Exhibit 45 dying
declaration of Savita. Scribe of the said document is PW8
Police Head Constable Arun Shankar Wagh. This Police Head
Constable was attached to Ganeshpeth Police Station at
Nagpur. His duty was on Medical Police Booth in Medical
College at Nagpur.
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18. According to the evidence of PW8 Police Head
Constable Arun Wagh, he received an intimation Exhibit 43,
by which it was informed to him about admission of Savita in
the hospital. He further claims in his evidence that by the
said communication Exhibit 43, he was asked to record her
statement. However, this particular claim of PW8 Police Head
Constable Arun Wagh is found to be contrary if
communication Exhibit 43 is pursued. The said is totally
silent about recording of dying declaration.
19. Be that as it may, according to PW8 Police Head
Constable Arun Wagh, he went to Ward No.4 of Medical
College, Nagpur on the same day and asked the medical
officer as to whether she is fit for recording her statement. His
evidence further shows that the doctor examined Savita and
made endorsement that “patient is fit for statement.”
Thereafter, he recorded her dying declaration.
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20. The doctor, who has examined Savita to show that
she was fit to give her statement, is not examined by the
prosecution.
21. In view of the authoritative pronouncement of the
Constitution Bench of the Honourable Apex Court in the case
of Laxman ..vs.. State of Maharashtra, reported at 2002 SC
2973, certification from the doctor is not essential. However,
as per the law laid down by the Honourable Apex Court, a
scribe, who takes down declaration, must himself satisfy
about fitness of declarant.
The evidence of PW8 Police Head Constable Arun
Wagh is totally silent that before recording dying declaration
of Savita, he himself was satisfied about the fitness of Savita
that she was in a position to give her statement.
22. Thus, when he relies on the certificate given by
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the doctor, it was obligatory on the part of the prosecution to
examine the doctor, who gave the certificate about her fitness.
In absence of the said, in our view, the reliance cannot be
placed on the said dying declaration.
23. Further, learned Judge of the Court below was
having an opportunity to record demeanour of PW8 Police
Head Constable Arun Wagh which learned Judge of the Court
below has aptly mentioned in paragraph No.15 of the
impugned judgment.
24. Learned Judge of the Court below has also pointed
out other reasons for not believing dying declaration Exhibit
45 by giving a detailed reasoning.
25. Once the dying declaration is kept aside, the
evidence that remains is of the relative witnesses. Merely
because they are related witnesses, that by itself their
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evidences cannot be discarded. However, the Court should
always be on guard to scrutinize their evidences more
carefully.
26. Their evidences show that the allegations against
the respondents are vague in nature. On material aspect,
their evidences are found to be omission. Though the death
has occurred within three years of the marriage, presumption
under Section 113A and Section 113B of the Evidence Act
cannot be pressed into service in view of the fact that there is
no admissible evidence by which it could be termed that the
deceased was subjected to cruelty.
27. Further, there is no evidence on record that soon
before the death of Savita, Savita was subjected to cruelty in
connection with unlawful demand of dowry which is main
ingredient of Section 304B of the Indian Penal Code. .
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28. By now, the scope of appeal against acquittal is
well settled. Merely because other view is possible, that by
itself is not sufficient to replace the Appellate Court’s view in
place of view taken by the Court below. The prosecution has
failed to point out to this Court about any perversity in the
impugned judgment. Resultantly, we dismiss the appeal.
JUDGE JUDGE
!! BRW !!
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