1 APEAL262.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL 262 OF 2002
The State of Maharashtra
Through S.H.O., Police Station,
Nilanga, Dist.Latur. … Appellant
(Orig. Complainant)
VERSUS
1. Vyankat S/o Vishvanath Survase @ Kamble,
Age : 36 years, Occu. Labour Work.
2. Govind S/o Vishvanath Survase @ Kamble
Age : 33 yrs., Occu. Labour Work.
3. Gangubai W/o Vishvanath Survase @ Kamble,
Age : 65 yrs., Occu. Household.
4. Nilubai W/o Govind Survase @ Kamble
Age : 30 yrs., Occu. Household Labour Work.
All R/o. Gurhal, Tq. Nilanga. … Respondents
(Orig. Accused)
……….
Mr V. S. Badakh, APP for the appellant
Mr R. N. Dhorde, Sr. Counsel i/b Mr V. R. Dhorde, Advocate for the
respondents.
………….
CORAM : T. V. NALAWADE
A. M. DHAVALE, JJ.
DATE : 10.10.2017.
ORAL JUDGMENT (PER A. M. DHAVALE, J.) :-
1. This is an appeal against the judgment of acquittal of
respondents No. 1 to 4 for offences punishable u/s 498A, 302, 304-B
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
2 APEAL262.2002
306 r/w 34 of the IPC by Addl. Sessions Judge, Nilanga in Sessions
Case No. 11 of 2001.
2. The facts relevant for deciding this appeal may be stated as
follows :
Deceased – Mandubai from village Jajnoor, Tq. Nilanga,
daughter of PW3-Tanaji was given in marriage to respondent No. 1 –
Vyankat about 6-7 years before the incident. R-2 to 4 are original
accused nos. 2 to 4. They are brother, mother and brother’s wife,
respectively of accused no. 1. After the marriage, deceased-
Mandubai started cohabiting with her husband at village Gurhal in
the same taluka Nilanga. Out of the wedlock, Mandubai gave birth to
two sons and one daughter. There are allegations about dowry
demand and ill-treatment and payment of dowry of Rs. 5,000/- in the
past. There are also allegations that, three days before there was
further dowry demand of Rs. 10,000/- and beating by the accused to
Mandubai. She had narrated these facts when she had visited her
maternal house. On 18.02.2001, Mandubai was admitted in the
hospital of Dr. Maknikar at Nilanga by her husband as she had
sustained around 80% burns. The said fact was intimated to the
maternal relatives of Mandubai. On the same day i.e. 18.02.2001,
dying declaration of Mandubai was recorded by Police Chowki
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
3 APEAL262.2002
Amaldar which disclosed that on that day at 09:00 am, she sustained
accidental burns as her saree caught fire from the flames from the
organic stove (Chool) The dying declaration (Exh. 50) discloses that,
her husband and mother-in-law poured water and extinguished fire
and took her in Auto-rickshaw to Nilanga and admitted her in
Hospital of Dr. Maknikar but, thereafter, she was shifted to Civil
Hospital at Latur for better treatment. She specifically stated that,
there was nothing suspicious about the incident. This certificate
bears the endorsement of the Doctor that the patient was conscious
while giving statement to the police. On the next date i.e.
19.02.2001, brother of deceased – Kalidas lodged a report (Exh. 49)
at Police Station Nilanga that Mandubai’s husband, mother-in-law
and wife of brother-in-law had poured kerosene on her person and
set her on fire. He disclosed that, Mandubai had earlier given a false
statement of accidental burns under the pressure of her husband but,
later on she had told him that her husband, mother-in-law and wife
of brother-in-law had poured kerosene on her person and set her
ablaze. She was threatened that, if she would disclose the real
incident to anybody, she and her children would be killed. It is
alleged that, accused no. 1-Vyankat had illicit relations with wife of
his brother and as Mandubai was raising objection to it, she was set
on fire.
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
4 APEAL262.2002
3. On 20.02.2001 at 07:30 p.m, PW8 – Naib Tahsildar –
Ganpati Kamble recorded dying declaration of Mandubai. He had
obtained medical certificate of Doctor about consciousness of the
patient and thereafter recorded the statement. Mandubai told him
that, her husband and mother-in-law and wife of brother-in-law set
her on fire by pouring kerosene on her person in connection with
dowry demand. The said dying declaration is at Exh. 45. However,
it shows the cause of the incident as on account of ‘Karni-Dharni’
(Witchcraft). Thereafter, on the same night at about 10:05 pm,
Mandubai succumbed to the burn injuries. As per PM notes, she had
86% burns. Surprisingly, the police did not register any crime on the
basis of second dying declaration before Naib-Tahsildar nor on the
basis of report of Kalidas, brother of Mandubai. On 27.03.2001 i.e.
after 1 month 7 days, the police received report of Mandubai’s
father-Tanaji dt. 21.02.2001 and on the basis of the same, crime was
registered as C.R. No. 33/2001 u/s 302, 498A r/w 34 of IPC and the
offence was investigated into. Meanwhile, in accidental death case
inquiry, inquest panchanama was drawn and autopsy was conducted.
During investigation, the relevant documents were collected and
statement of material witnesses were recorded. After completion of
investigation, PW9-Shivajirao Suryawanshi filed charge-sheet. In due
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
5 APEAL262.2002
course, the case was committed to the court of Sessions. The ld.
Addl. Sessions Judge framed charge u/s 498A/34, 302/34,
alternatively, 304B/34, 306/34 at Exh. 3. The accused pleaded not
guilty. The prosecution examined nine witnesses. The defence of the
accused is of total denial of material allegations. After hearing the
learned advocates for the parties, ld. Additional Sessions Judge,
Nilanga, held that it was not a case of homicidal death or suicide and
in consonance with his findings, he acquitted all the accused of all
the offences charged. Hence this appeal.
4. Shri. Badakh, learned APP for the State argued that, the
initial dying declaration dt. 18.02.2001 was given by deceased-
Mandubai under pressure of the accused but subsequently after
arrival of her relatives, she has given another dying declaration on
20.02.2001 before Naib Tahsildar. He had obtained necessary
certificate about consciousness of the patient from the doctor and
thereafter recorded dying declaration. This, dying declaration has
more evidentiary value as he is independent person. Ld. APP argued
that, there is evidence of maternal relatives of deceased-Mandubai
regarding ill-treatment, dowry demand and acceptance of dowry of
Rs. 5,000/-. There was recent incident of dowry demand of Rs.
10,000/- just three days before the incident. He, therefore,
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
6 APEAL262.2002
submitted that the prosecution evidence should be believed and the
accused should be convicted.
5. Per contra, Shri. R. N. Dhorde, ld. Sr. Counsel for
respondents No. 1 to 4 argued that, the marriage of Mandubai had
taken place seven years earlier. She had given birth to two sons and
one daughter. There was no previous history of any dispute between
the husband and wife. The husband himself had brought deceased –
Mandubai to the hospital. The spot panchanama does not support the
allegation of pouring kerosene on her person and setting her on fire.
The causes for assault given by brother of the deceased and the
deceased are different. In view of inconsistent dying declarations,
there is necessity of some corroboration to the second dying
declaration but there is no corroboration whatsoever. The clothes of
the deceased were not forwarded to CA office. The FIR was
registered one month after the incident. Hence the appeal should be
dismissed.
6. After giving careful consideration to the submissions by ld.
respective advocates and after going through the record, the points
for our determination with our findings thereon are as follows :
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
7 APEAL262.2002
Sr. No. Points Findings.
1 Whether deceased met with homicidal Not proved.
death or suicide?
2 Whether accused nos. 1 to 4 committed Not proved.
murder of Mandubai or her dowry death ?
3 Whether accused nos. 1 to 4 in furtherance Not proved.
of common intention abetted the
commission of suicide of Mandubai?
4 What order The appeal is
dismissed.
REASONS
7. The prosecution has examined following witnesses.
[I] Group A :
(I) PW8 – Ganpati Kamble, Naib Tahsildar, who recorded
dying declaration (Exh. 45).
(ii) PW7 – Dr. Sanjay Warad, who had given certificate
about fitness of Mandubai at the time of dying declaration.
His endorsement on dying declaration (Exh.45) are at Exh.
39 40.
(iii) Mandubai’s earlier dying declaration dt.18.02.2001
(Exh.50).
[II] Evidence of ill-treatment :
PW3 – Tanaji (FIR at Exh. 28).
PW1-Jayant PW2-Manik, inquest of the deceased.
PW4 – Sachin, cousin of the deceased.
::: Uploaded on – 13/10/2017 14/10/2017 02:15:06 :::
8 APEAL262.2002
[III] Medical Evidence :
(i) PW6 – Dr. Shobha Jadhav, who conducted PM (Exh.
19) and gave provisional certificate (Exh. 18) and
reported death to police (Exh. 37).
(ii) Inquest Panchanama (Exh. 32).[IV] Other Evidence :
(i) Spot Panchanama (Exh. 16).
(ii) Search of persons of the accused (Exh. 17).
(iii) Photographs (Exh. 20 to 24).
(iv) Statement of brother of the deceased dt. 19.02.2001
(Exh.49).(v) The police report about dying declaration no. 1 under
pressure (Exh. 51).(vi) PW9 - Investigating Officer has deposed about the
investigation carried out by him and has proved
contradictions in the evidence of PW1 - Jayant, PW9
Manik (Exh. 57 to 61).8. On going through the evidence, we find that deceased-
Mandubai was married to accused no. 1 - Vyankat about 5-6 years
before the incident. She had no ill-treatment initially for a period of
one year. She has given birth to two sons and one daughter. Though
there are allegations by father and uncles of the deceased about ill-
treatment and dowry demand, there is no documentary evidence.
There is no evidence that Mandubai was constrained to leave her
matrimonial house and reside at her maternal house. The alleged
::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
9 APEAL262.2002demand and acceptance of Rs. 5,000/- is quite improbable. PW1, 2
3 have deposed that, about three days before the incident, deceased
had been to her maternal house and had disclosed about dowry
demand of Rs. 10000/- but the conduct of her father PW3-Tanaji is
not consistent with this dowry demand. Even the dying declaration is
silent about this dowry demand. PW3 - Tanaji had accompanied
deceased Mandubai from Nilanga to Latur. He stated that, during the
journey, Mandubai did not tell him anything.
9. The evidence shows that, on the day of incident, the
accused brought Mandubai in burn conditions to hospital of Dr.
Maknikar at Nilanga and she was immediately shifted to Civil
Hospital at Latur. Her dying declaration was recorded by a police
officer on 18.02.2001 (Exh. 50). As per the said dying declaration,
the deceased while cooking food in the morning caught fire to her
clothes and she sustained burns. Her husband and mother in law
poured water on her person and extinguished the fire and they
brought her to the hospital at Nilanga.
10. The accused have also intimated this incident to her
parents. The conduct of the accused is consistent with the case of
accidental burns.
::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
10 APEAL262.2002
11. On 19.02.2001, Kalidas, brother of Mandubai made a
report to the Police. For the first time it was alleged that, the earlier
dying declaration given by Mandubai was under pressure of her
husband as there was threat to her and her children that they would
be killed. This statement at Exh. 49 shows that, Mandubai told her
brother that her husband was having illicit relations with his brother's
wife which was objected by Mandubai and therefore kerosene was
poured on her person and she was set on fire. The statement
indicates that, such illicit relations were existing for three years.
Surprisingly, no role was given to accused No. 2, who is brother of
accused no. 1 - Vyankat. He also happens to be husband of accused
no. 4 with whom accused no. 1 was having illicit relations. Still
accused no. 2 was prosecuted. It is surprising that, accused no. 2
would help his wife and brother to have illicit relations and for that
he joined them for removing wife of accused no. 1, who was
obstructing to their relationship. It is pertinent to note that, the
evidence of father and uncles of the deceased make no reference
whatsoever to this illicit relationship. The police did not take any
cognizance on the basis of this report disclosing cognizable offence.
12. Thereafter, PW8 - Naib Tahsildar - Ganpati Kamble has
recorded dying declaration on 20.02.2001 at 07:30 pm. Before that,
::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
11 APEAL262.2002PW7 - Dr. Sanjay was requested to examine the patient and certify
about her consciousness to give a statement. Dr. Sanjay stated that,
he had examined the patient and she was conscious and able to give
statement. He has recorded his endorsement on Exh. 39 and 40 at
the beginning and end of dying declaration but these endorsements
do not speak about her mental soundness.
13. PW8 had received a letter of the police dt. 18.02.2001, but
he did not immediately visit the hospital for recording the dying
declaration. He has deposed that, on 20.02.2001 at 07:30 pm, he
visited General Hospital at Latur, obtained certificate from Dr. Warad
and thereafter made inquiry with patient Mandubai. He stated that
he put certain questions to her perhaps for testing her mental
capacity. Those questions and answers are not on record. Dying
declaration recorded by him shows that, accused Nos. 1, 3 4, who
are her husband, mother-in-law wife of brother-in-law poured
keorsene on her person and set her on fire. Pertinently, the cause of
death given is 'Karni-Dharni' (Witchcraft), it means on the suspicion
that she was doing witchcraft. The cause given by her brother and
given by her father are different. It is pertinent to note that, on the
same day within two hours, Mandubai had died. It is common
knowledge that when a patient sustains severe burns, she is kept
::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
12 APEAL262.2002under sedatives in order to relieve her of pains. In such case, such
late recording of dying declaration creates doubt about sound, mental
and physical state of the deceased.
14. We find that, there are two dying declarations which are
contradictory to each other. The reasons given in dying declaration
at Exh. 45, which is in favour of prosecution, are quite different from
the reasons given by her maternal relatives and by her brother in his
report to police.
15. The spot panchanama (Exh. 16) shows that, the floor on
the spot was not reportedly damp with kerosene. No samples of soil
mixed with kerosene were taken. The burnt pieces of saree of the
deceased were seized but those were not forwarded to CA office to
find out whether there was residue of kerosene in the soil of the floor
and in the pieces of saree or not. The photographs at Exh. 20 to 24
disclose that, the surrounding combustible articles did not catch fire
though those were very near to the spot. It is seen that the deceased
was wearing a polyester saree. The clothes of the accused were also
not seized and sent for Chemical Analyzer for chemical tracing
kerosene residues. The FIR was lodged one month and seven days
after the death of deceased - Mandubai. We find no substance in the
::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
13 APEAL262.2002allegations of dowry demand or ill-treatment. We find no
corroboration to the dying declaration recorded by Naib Tahsildar.
In the light of all these facts, we hold that, the prosecution has failed
to prove beyond reasonable doubt that the accused had committed
murder by setting Mandubai on fire by pouring kerosene on her
person. The prosecution of accused no. 2 was certainly unwarranted
as there was no material against him. Hence, we find no substance in
the challenge to the judgment of acquittal. The ld. Trial Judge has
properly appreciated the material on record and the view taken by
him is reasonable and proper, which needs no interference. Hence
the following order.
ORDER
(i) The appeal is dismissed.
(ii) All the accused shall furnish P.R. bond of Rs.
10,000/- each with like solvent sureties u/s 437A of
IPC before the trial Court.[ A. M. DHAVALE ] [ T. V. NALAWADE ]
JUDGE JUDGEsgp
::: Uploaded on - 13/10/2017 14/10/2017 02:15:06 :::
