2014 ALL MR (Cri) 4364
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

P.V. HARDAS AND P.N. DESHMUKH, JJ.

Sou. Radhabai Fattesing Pawar & Ors. Vs. The State of Maharashtra

Criminal Appeal No.808 of 2013

8th October, 2013

Petitioner Counsel: Mr. VIKAS SHIVARKAR
Respondent Counsel: Mrs. S.D. SHINDE

(A) Penal Code (1860), Ss.498A, 302, 304B, 34 - Cruelty and dowry death - Evidence and proof - Evidence of father, mother and brother of deceased reveal that accused persons were ill treating deceased and were demanding Rs.50,000/- - In dying declaration made to Nayab Tahsildar, deceased stated that before few days of incident accused were demanding Rs.40,000/- - And 3-4 days prior to incident, accused persons started ill treating her as she could not bring Rs.50,000/- - However, in dying declaration made to PSI, there is no reference at all to demand of any amount - Deceased only stated that her in-laws used to quarrel with her - There is no consistency in respect of illtreatment or demand of dowry and also in dying declarations - Accused are entitled to be given benefit of doubt. (Para 12)

(B) Evidence Act (1872), S.32 - Penal Code (1860), Ss.498A, 304B, 34 - Dying declaration - Contradiction in - Credibility - Case of cruelty and dowry death - In dying declaration made to Nayab Tahsildar, deceased stated that accused husband and his relatives had poured kerosene on her and they set her on fire - However, in dying declaration made to Police Sub-Inspector, she revealed that she herself has set her on fire - Said declarations are contradictory and self-destructive - As acceptance of one necessarily falsifies other - No reliance can be placed on either of dying declarations.

2005 ALL MR (Cri) 1599 Ref. to. (Paras 9, 11)

Cases Cited:
Suresh s/o Arjun Dodorkar (Sonar) Vs. State of Maharashtra, 2005 ALL MR (Cri) 1599 [Para 10]


JUDGMENT

P. V. HARDAS, J. :- The appellants, who stand convicted for an offence punishable under Sections 498A, 302, 304B read with Section 34 of the Indian Penal Code and sentenced to simple imprisonment for three years and each to pay a fine of Rs.1000/- in default of which to undergo imprisonment for six months, imprisonment for life and each to pay a fine of Rs. 1000/- in default of which to undergo imprisonment for one year and simple imprisonment for seven years and each to pay a fine of Rs.1000/- in default of which to undergo imprisonment for one year, with a direction that all the substantive sentences shall run concurrently, by the Additional Sessions Judge, Pune, by judgment dated 01/07/2013 in Sessions Case No. 448 of 2010, by this appeal question the correctness of their conviction and sentence.

2. This court while deciding Criminal Application No. 1182 of 2013, filed by the applicant/original accused no.4 seeking enlargement on bail, had observed that looking to the nature of the evidence, this appeal filed by the accused needs to be decided expeditiously. Accordingly, this court directed that the appeal be listed for final hearing before the court on 8/10/2013. Pursuant to the order passed by this court dated 27/9/2013, this appeal has been listed before us for final hearing.

3. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus:-

PW 8 - PSI Subhash Gaikwad, who was attached to the Shirur Police Station and was on duty on 9/9/2009 was informed on telephone at about 10.30 a.m. to record the statement of one Vrushali, who was admitted in the Government Hospital at Ahmednagar and found that Vrushali and her husband / accused no.3 Sandeep had been admitted in the hospital. He accordingly recorded the statement of Vrushali and obtained her thumb impression. The statement of Vrushali is at Exh. 58. As per the statement of Vrushali at Exh. 58, Vrushali complained that she was harassed and ill-treated by the accused and, therefore, poured kerosene and set herself ablaze. On the basis of the statement of Vrushali at Exh. 58, an offence vide Crime No. 285 of 2009 was registered under Sections 498-A, 323, 504, 506 read with Section 34 of the IPC. After registration of the offence, the investigation was taken over by PW 8 - PSI Gaikwad. He accordingly recorded the statements of witnesses and on 10/9/2009 drew the scene of the incident panchanama in the presence of panchas at Exh.60. After Vrushal had succumbed to her injuries, the inquest panchanama of the dead body of Vrushali was recorded. The dead body of deceased Vrushali was referred for postmortem examination. Upon completion of the investigation, a charge-sheet against the appellants was submitted.

Postmortem on the dead body of deceased Vrushali was performed by PW 7 - Dr. Badhe. PW 7 - Dr. Badhe noticed that Vrushali had sustained about 82% burns. He, therefore, opined that Vrushali had died on account of hypovolumic shock due to 82% burn. The postmortem report is at Exh. 54.

4. On committal of the case to Court of Sessions, trial court vide Exh. 45 framed charge against the appellants for offence punishable under Sections 498-A and 306 read with Section 34 of IPC. Additional charge vide Exh. 28 was framed for offences punishable under Sections 302 and 304B read with Section 34 of IPC. The accused denied their guilt and claimed to be tried. The prosecution in support of its case examined nine witnesses. The trial court upon appreciation of the evidence, convicted and sentenced the appellants as afore-stated.

5. The entire prosecution case revolves around the oral dying declaration made by Vrushali to PW 2 - Bhanudas, PW 3 - Shakuntala and PW 4 - Avhan and dying declarations at Exh. 50 and 58 recorded by PW 5 - Rajiv Kande and PW 8 - PSI Gaikwad.

6. In order to effectively deal with the submissions advanced before us by the learned counsel for the appellants and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses.

PW 2 - Bhanudas, father of deceased Vrushali, states that Vrushali was married to appellant - Sandeep some time in the year 2008. Initially, Vrushali was treated well and thereafter accused started assaulting and ill-treating Vrushali. The accused were ill-treating Vrushali as they were demanding Rs.20,000/- for purchasing T.V. PW 2 - Bhanudas states that he had fulfilled the demand of Rs. 20,000/-. After about 2 to 3 months, accused started ill-treating Vrushali and began demanding Rs.50,000/-. According to PW 2 - Bhanudas since his financial condition was not good, he could not pay Rs.50,000/-. Bhanudas further states that he had received a telephone from appellant - Sandeep that Vrushali had committed suicide and, therefore, had gone to the civil hospital at Ahmednagar, where Vrushali was admitted. According to Bhanudas, Vrushali had informed him that her husband, appellant - Sandeep, had caught her hands, while rest of the accused poured kerosene on her and set her ablaze. The oral dying declaration alleged to have been made by Vrushali to PW 2 - Bhanudas has been elicited as an omission and, therefore, has been rightly left out of consideration by the trial court. Similar is the evidence of PW 3 - Shakuntala and PW 4 - Avhan, mother and brother of deceased Vrushali. Even in their cross-examination, the oral dying declaration has been elicited as an omission and has been left out of consideration.

7. PW 5 - Rajiv Trimbak Kande, who was attached to the Tahsil Office as a Nayab Tahsildar, states that on 9/9/2009 he had received communication from the Tophakhana Police Station, Ahmednagar for recording a dying declaration of Vrushali. He had accordingly gone to the civil hospital and had requested the Medical Officer on duty i.e. PW 6 - Dr. Deshmukh to ascertain if Vrushali was in a fit condition to give her statement. Accordingly, PW 6 - Dr. Deshmukh opined that Vrushali was in a fit condition to give her statement and, therefore, PW 5 - Rajiv recorded the dying declaration of Vrushali at Exh. 50. In the dying declaration of Vrushali at Exh. 50, Vrushali had stated that since her marriage she was being harassed by her husband , mother-in-law, her brother-in-law and wife of her brother-in-law. Vrushali had also stated that she was assaulted by her husband by giving kick and fist blows. Vrushali further stated that her mother-in-law used to taunt her and because of the assault of the accused, she had once aborted. Vrushali further stated that the accused were ill-treating her by demanding Rs.40,000/-. In respect of the incident, Vrushali stated that at about 7 p.m. while she was preparing food, her husband caught her, while her mother-in-law poured kerosene on her. The wife of her brother-in-law set her ablaze by a matchstick. She further stated that she poured water and extinguished the flames and thereafter was admitted in the hospital. According to PW 5 - Rajiv, he had read over the statement to Vrushali and she admitted the contents to correctly recorded and accordingly obtained her thumb impression.

8. Prosecution has examined PW 8 - PSI Gaikwad, who had recorded the statement of Vrushali at Exh. 58. In the dying declaration at Exh. 58, Vrushali had stated that she was fed up with the ill-treatment and, therefore, had poured kerosene and had set herself ablaze.

9. Thus, we find that there are two contradictory dying declarations. In the dying declaration at Exh. 50, Vrushali had stated that the accused had poured kerosene on her and had set her ablaze, while in the dying declaration at Exh. 58, Vrushali claimed that she committed suicide.

10. A reference at this juncture may usefully be made to the judgment of the Division Bench of this court in Suresh s/o Arjun Dodorkar (Sonar) vs. State of Maharashtra [2005 ALL MR (Cri) 1599]. At paragraph 9 of the judgment, the Division Bench has held thus,

"9. ........In cases resting on multiple written dying declarations, the Courts cannot pick and choose any one dying declaration. All the dying declarations have to be consistent in respect of material aspects of the incident. According to us, consistency is expected in multiple dying declarations in respect of the names and the number of accused, the prelude to the incident and the incident itself........."

11. Since we find that two dying declarations are contradictory in as much as they were self destructive, as acceptance of one necessarily falsifies the other, no reliance can be placed on either of the dying declarations. It would not be open for the court to pick and choose any one dying declaration for sustaining the conviction. In such circumstances, both the dying declarations will have to be left out of consideration.

12. In respect of the allegations of commission of an offence punishable under Section 498-A and 304B of IPC, the evidence of PW 2 - Bhanudas, PW 3 - Shakuntala and PW 4 - Avhan indicates that the accused were ill-treating Vrushali as they were demanding Rs.50,000/-. In the dying declaration of Vrushali at Exh. 50, Vrushali had stated that a few days before the incident, the accused were demanding Rs.40,000/- and since last 2 to 3 days, she was being ill-treated as she could not bring Rs.50,000/-. In the dying declaration at Exh. 58, there is no reference at all to the demand of any amount. In fact, all that Vrushali states is that her in-laws used to quarrel with her. We, therefore, find that there is no consistency in respect of the ill-treatment or the demand for any dowry in the testimony of PW 2 - Bhanudas, PW 3 - Shakuntala and PW 4 - Avhan or the dying declarations at Exhs. 50 and 58. In such circumstances, therefore, according to us, the accused are certainly entitled to be given the benefit of doubt.

13. For the aforesaid reasons, the appeal filed by the accused deserves to be allowed and accordingly, Criminal Appeal is allowed and conviction and sentence of the appellants is hereby quashed and set aside and the appellants are hereby acquitted of the offences with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Since the appellants are in jail, they be released forthwith, if not required in any other case.

Appeal allowed.