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The State Of Amh. Thr.Pso Yavatmal vs Ganesh Shripat Pawar And 4 Oths on 30 March, 2017

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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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