Bombay High Court
Sainath Annasaheb Waghchaure And … vs The State Of Maharashtra on 3 March, 2020
Bench: T.V. Nalawade
( 1 ) criappl791.14.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 791 OF 20141) Sainath Annasaheb Waghchaure, Age – 38 years, Occupation – Agril, R/o. Dhupkheda, Tq. Paithan, Dist. Aurangabad.2) Annasaheb Madhavrao Waghchaure, Age – 66 years, Occup – Agril, R/o. As above.3) Dwarkabai Annasaheb Waghchaure, Age – 58 years, Occup : Agril, R/o. As above. … APPELLANTS (Original accused) VERSUSThe State of Maharashtra,Through Police Station Officer,Police Station Neknoor,Tq. & Dist. Beed. … RESPONDENTMr. R. V. Gore, Advocate for the accusedMrs. V. S. Choudhari, APP for the respondent/State. CORAM : T.V. NALAWADE & S.M. GAVHANE, JJ. RESERVED ON : 29.11.2019 PRONOUNCED ON : 03.03.2020JUDGMENT (PER :- S.M. GAVHANE, J.) ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 2 ) criappl791.14.odt. The appellants, hereinafter referred to as the
accused Nos. 1 to 3 have assailed the judgment and orderdated 15/12/2014 passed by the Additional SessionsJudge, Aurangabad in Sessions Case No. 54 of 2013thereby convicting and sentencing them for differentoffences of the Indian Penal Code (hereinafter referredto as ‘IPC’) as under: (i) They were convicted for the offence punishable under Section 498-A read with Section 34 of IPC and each was sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs. 3,000/-, in default of payment of fine to suffer further rigorous imprisonment for six months. (ii) They were convicted for the offence punishable under Section 504 read with Section 34 of IPC and each was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-, in default of payment of fine to suffer further rigorous imprisonment for six months. ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 3 ) criappl791.14.odt (iii) They were convicted for the offence punishable under Section 302 of IPC and each was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000/, in default of payment of fine to suffer further rigorous imprisonment for six months.
. Above sentences were directed to runconcurrently. Accused Nos. 1 and 2 were given set offfrom 25/10/2012 from their arrest till the date ofjudgment and accused No. 3 was given set off from25/10/2012 the date of her arrest till 26/04/2013 as perSection 428 of the Code of Criminal Procedure. Themuddemal property being worthless was ordered to bedestroyed after the appeal period.
2. The facts leading to the institution of thepresent appeal as are revealed from the record are asunder:-
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( 4 ) criappl791.14.odt(A) Deceased Yashodabai was daughter of PW-2
Muktabai. She was married to accused No. 1 before 15years of the incident which took place at Dhupkheda, Tq.Paithan, Dist. Aurangabad. Accused Nos. 2 and 3 arerespectively father-in-law and mother-in-law ofYashodabai. After marriage she was residing with theaccused at Dhupkheda. From the wedlock with accused No.1 she has one daughter Komal and one son Aniketrespectively aged 13 years and 9 years. They were takingeducation at the time of incident. Accused No. 1 washaving 2½ acres land at village Dhupkheda. Yashodabaiand her husband used to cultivate the said land. In theyear of incident they had yielded sweet lemon plantsover one acre of said land.
(B) It is alleged that since 4 to 5 years prior tothe incident the accused after selling sweet lemonfruits used to send Yashodabai at her parents house andthat time they used to beat her, because they wanted toavoid the payment of sweet lemon fruits to her even ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 5 ) criappl791.14.odtthough she used to cultivate the agriculture landalongwith her husband. However, accused No.1-her husbandused to take her back giving assurance that he wouldtreat her well.
(C) Further, it is the case of the prosecution thatthe accused illtreated Yashodabai on account of demandof money for marriage of Munni D/o Kailas AnnasahebWaghchaure, brother of accused No. 1. Accused used tobeat her. They used to torture her physically andmentally. The accused Nos. 1 and 2 had mortgaged 1 acreagricultural land and they wanted Rs.2,00,000/- toredeem the said mortgage. Therefore, accused used toinsist Yashodabai asking her to bring Rs.2,00,000/- fromher parents and for that they used to beat and abuseher. She had told about said illtreatment to her parentson phone and demanded money and at that time her motherMuktabai (PW-2) and brother Vishnu gave Rs.1,00,000/- tothe accused at their village Dhupkheda. ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 6 ) criappl791.14.odt(D) It is the further case of the prosecution that
on 22/01/2012 at about 7.30 p.m. while Yashodabai was inthe house she sustained 95% superficial to deep burns.Therefore, she was admitted in Ghati Hospital,Aurangabad at about 8.52 p.m. by elder brother of herhusband, Laxman Shridhar Waghchaure. The information inthis respect was given in the Bidkin police Station andon the same day MLC was registered in the said policeStation. While she was being treated in the saidhospital her dying declaration (Exhibit 17) was recordedby PHC Shinde (PW-1) in presence of Dr. Pathak (PW-3)after 10.25 a.m. after he had given letter Exhibit 16 inthis respect to the Medical Officer of the saidhospital. In the said dying declaration it is allegedthat on 22/10/2012 through out day she was in the house.Her husband had gone to Paithan as there was counting ofvotes. Her husband came to house at about 2.00 p.m.Again he went in the village. In the evening at about7.30 p.m. her husband and father-in-law came to houseconsuming liquor. They said her why she is not bringing ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 7 ) criappl791.14.odtRs.2,00,000/- from her parents for marriage of her nieceand on saying so they started abusing her. They alsosaid her to prepare tea and while she was sitting forpreparing tea accused No.3- her mother-in-law came tohouse. At that time her husband and father-in-law wereabusing her. She said them that her father has alreadygiven them Rs.1,00,000/- and from where he would bringmoney. Thereupon, her mother-in-law caught hold her handand her father-in-law poured kerosene on her person fromthe can and her husband set her on fire by lighting thematch stick. All the three accused went out of thehouse. She raised shouts and on hearing the same LaxmanShridhar Waghchaure elder brother of her husband and hisson Vikas put off fire with the help of clothes andadmitted her in the hospital. It appears that copy ofsaid dying declaration was sent to police Station Bidkinand at about 5.30 p.m. on 23/10/2012 crime No. 209 of2012 was registered against the accused for the offencespunishable under Sections 307, 498-A, 504 and Section 34of the IPC and PI Shri. K. K. Patil started the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 8 ) criappl791.14.odtinvestigation. On the same day i.e. on 23/10/2012 PHCShidne (PW-1) recorded dying declaration (Exhibit 19) ofYashodabai in the hospital in presence of Dr. Pathakattributing role as above to all the accused and saiddying declaration was recorded between 11.00 p.m. to11.30 p.m.(E) During the investigation all the accused werearrested on 25/10/2012. Accused Nos. 1 and 2 are in jailsince the date of their arrest. Accused No.3 was on bailfrom 26/04/2013 till the date of judgment. TheInvestigating Officer had prepared separate arrestpanchnamas of all the three accused. He also preparedpanchnama of spot of incident and seized articles i.e.plastic can, partly burnt clothes pieces with ash andmatch sticks from the spot of incident. He also recordedstatements of witnesses who where in know of the facts.Yashodabai died on 27/10/2012 at 23.35 hours. Thenpostmortem examination was conducted on her body by Dr.Vikas Rathod (PW-4) and Dr. Korsale and they had issued ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 9 ) criappl791.14.odtpostmortem report (Exhibit 28) stating that cause ofdeath of Yashodabai is septicemia due to burns and theyhad taken samples of hairs, nails and skin of thedeceased and viscera was also preserved. All the seizedarticles, viscera and samples of hairs and nails of thedeceased were sent to the Chemical Analyzer. Reports ofthe Chemical Analyzer were received. As Yashodabai diedoffence under Section 302 of the IPC was added in thecrime alredy registered against the accused. Aftercompletion of the investigation charge-sheet wassubmitted in the Court of JMFC, Paithan. Learned JMFCcommitted to the case to the Sessions Court, Aurangabad.(F) Learned Addition Sessions Judge framed chargeagainst the accused for the offences punishable underSections 498-A, 504 and 302 of the IPC. The accusedpleaded not guilty to the charge and claimed to betried.
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( 10 ) criappl791.14.odt(G) Defence of the accused is denial and that death
of the deceased is suicidal. They have not examined anywitness in defence. At the time of their statementsunder Section 313 of the Code of Criminal Procedure theyhad filed written statement (Exhibit 31[A]) and in thesaid statement they have stated that accused Nos. 1, 2and 3 are residing separately and further stated asunder:
(i). Kailas elder brother of accused No. 1 is nottraceable since 2001. Since that time his wife Pushpabaiand two daughters Jayashri and Mayuri are residing atWahegaon, Tq. Paithan. Said Pushpabai and her daughtershad filed suit bearing RCS No. 67 of 2005 in the Courtof Civil Judge, Junior Division, Paithan against accusedNo. 2 and in the said suit compromise had taken placeand 1 Acre 20 Gunthas land has been given to Pushpabaiand her two daughters. So also, they have been givenhouse at Dhupkheda. At the time of incident daughter ofPushpabai had just passed SSC examination and therefore, ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 11 ) criappl791.14.odtat that time there was no thought of her marriage. Soalso, Pushpabai is residing at Wahegaon with herdaughters and therefore, accused had no concern withthem and there is no responsibility of marriage ofdaughters of Pushpabai. There is no question ofharassing Yashodabai for marriage of daughter ofPushpabai and the accused never harassed the deceasedfor the same.
(ii) The accused have further stated that accusedNo. 1 had never taken loan for constructing house andtherefore, accused No. 1 had never taken Rs. 1,00,000/-from the mother of the deceased.
(iii) Accused have stated that on 12/10/2012 accusedNo. 1 had sold his land for consideration of Rs.2,10,000/- to Vishnu Tulshiram Dhage brother of thedeceased because accused No. 1 was to take land at otherplace. But on the date of sale deed Vishnu was nothaving money and he said that on the next date he will ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 12 ) criappl791.14.odtgive money to the accused No.1 and that the sale deedshould be executed. Relying on the words of Vishnuwithout accepting money on 12/10/2012 accused No. 1executed sale deed in favour of Vishnu. Thereafter,Vishnu avoided to give money. Therefore, the deceasedYashodabai was under tension because the land which wassold was support for maintenance of her family and itwas not possible to purchase land at other place. Thus,as the people from her parental house had cheated her,on 22/10/2012 when there was nobody in the house she gotherself burnt and Laxman Waghchaure put off the fire andon the same day in night admitted her in the hospital atAurangabad and she disclosed to Laxman Waghchaure thatshe got herself burnt. The accused have filed copy ofsale deed dated 12/10/2012 with their written statement.They have contended that people from her parental houseare responsible for death of deceased and they havefiled false case and collected false evidence with thehelp of police. They have also stated that they have notcommitted any offence. Deceased sustained 100% burns. ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 13 ) criappl791.14.odtShe was not in a position to speak. Report given by Dr.Pathak is false and PW-1 Shinde deposed false.(H) The prosecution has examined four witnesses,namely, PHC Shinde (PW-1), Muktabai Dhage (PW-2) motherof the deceased, Dr. Pathak (PW-3) and Dr. Rathod (PW-4)and relied upon oral and written dying declarationsreferred earlier and the reports of Chemical AnalyzerExhibits 39, 40 and 41.
(I) Considering the evidence adduced by theprosecution the trial Court held that death of thedeceased is homicidal, the accused are responsible forher death, they had subjected her to cruelty and thatthey had intentionally insulted her in furtherance oftheir common intention and thus convicted and sentencedall the accused for the offences with which they werecharged as referred earlier in detail in theintroductory paragraph of this judgment. Therefore, thisappeal is filed by the appellants/accused who are injail.
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3. Mr. Gore, learned advocate appearing for theappellants-accused submitted that the marriage of thedeceased with the accused No.1 was performed prior to 16to 17 years of the incident. The deceased has two issuesfrom the said wedlock. Accused never illtreated orabused the deceased. The wife of brother of accused No.1 is residing in another village with her children andtherefore, there was no reason for the accused to demandan amount of Rs. 2,00,000/- to perform marriage of nieceof the accused No.1 and to cause cruelty to deceased forsaid amount. Prior to the incident accused No. 1 hadsold land to brother of the deceased and brother of thedeceased had not given consideration amount to theaccused. Therefore, the deceased was frustrated andhence on the date of incident i.e. on 22/10/2012 whileshe was in the house she committed suicide by pouringkerosene and setting herself on fire. This fact is alsoclear from Exhibit 15 MLC papers as it shows thatdeceased committed suicide. The prosecution has notexamined Laxman Shridhar Waghchaure elder brother of the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 15 ) criappl791.14.odtaccused No.1 husband of deceased who had extinguishedthe fire and admitted the deceased in injured conditionin the hospital. So also, prosecution has not examinedchildren of the deceased. As per the spot panchanamadoor of the room in which the incident took place wasclosed. Therefore, accused are not responsible for deathof the deceased and her death is suicidal.
4. Mr. Gore, learned advocate for the accusedfurther submitted that the prosecution has relied upontwo written dying declarations Exhibits 17 and 19. Boththese dying declarations are recorded by PHC Shinde (PW-
1) on 23/10/2012. PHC Shinde is from Bidkin PoliceStation. He recorded dying declarations in GhatiHospital at Aurangabad. It was possible for the policepresent in the police chowki of Ghati Hospital to recordthe dying declaration. But PHC Shinde came from Bidkinpolice station in Paithan Taluka to record the dyingdeclarations and this shows that he is interestedwitness. In fact, the prosecution should have arranged ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 16 ) criappl791.14.odtto record the dying declaration from the ExecutiveMagistrate. Though letter Exhibit 18 dated 23/10/2012was given to Tahasildar to record dying declaration nodying declaration was recorded by the Tahasildar.Therefore, both the dying declarations are not reliable.So also, dying declaration was not immediately recorded.Therefore, both the dying declarations have to beexcluded from consideration. To support this submissionlearned advocate for the accused has relied upon thedecision in the case of Imam Bashir Pathan Vs. State ofMaharashtra, 1998 Bom. C.R. (Cri.)556 and in the case ofMunnu Raja Versus State of Madhya Pradesh, 1976 AIR(SC)2199.
5. Mr. Gore, learned advocate for the accusedfurther submitted that at the time of recording dyingdeclaration Exhibit 17 brother of the deceased waspresent and therefore, there is possibility of tutoringthe deceased to make dying declaration and hence saiddying declaration is not voluntary and truthful. Furtherit is submitted that both the written dying declarations ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 17 ) criappl791.14.odtExhibit 17 and 19 are not consistent and therefore, noreliance can be placed on these dying declarations. Tosupport the said submission learned advocate for theaccused has relied upon the decisions of the Apex Courtin the case of Munnu Raja (Supra) and in the case ofAlkabai Yelanna Vaidu and other Vs. The State ofMaharashtra, Criminal Appeal No. 943 of 2012 decided byDivision Bench of this Court (Coram- Smt. V. K.Tahilramani & A. R. Joshi, JJ) on 20/08/2014 and inparagraph No. 10 of the said decision it was observedthus; “10. While recording the dying declaration, it is necessary to ensure that except the person recording the dying declaration, at the most, the medical officer should be present and no relative or friend or any other person should be present. This is to ensure that the patient is not tutored or deterred while making the dying declaration. These are essentials to attach credibility to a dying declaration. It has been so observed in a decision of this Court in the case of Imam Bashir Pathan Vs State of Maharashtra. In the present case, on perusal of the dying declaration (Exh. 31), we find that it is clearly mentioned therein that while the dying declaration was being recorded, the mother of the deceased i.e Lata was present. Looking to the fact that ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 18 ) criappl791.14.odt Lata is the mother of Sunita, she is a highly interested witness and the fact is also to be noted that Lata has admitted in her evidence that she was angry with the appellants. From the fact that Lata was present all through out when the dying declaration was being recorded, we find it unsafe to rely on the dying declaration (Exh. 31). There is no other credible or reliable material to connect the appellants with the death of Sunita. In this view of the matter, the appeal deserved to be allowed”.
6. Mr. Gore, learned advocate for the accusedfurther submitted that the endorsements regardingconsciousness of the deceased at the time ofcommencement of recording dying declarations and at thetime of conclusion of recording of written dyingdeclarations on the dying declarations are not proved byDr. Vipul Pathak (PW-3) and as such state of health ofthe deceased at the material time of recording dyingdeclaration is not brought on record and therefore, itcannot be said that the deceased was in a fit state ofmind to make the dying declarations and therefore, itcannot be said that the written dying declarations werevoluntarily made by the deceased. To support this ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 19 ) criappl791.14.odtsubmission the learned advocate has relied upon thedecision in the case of Sunil Kashinat Raimale Vs. Stateof Maharashtra, 2006(2) Bom.C.R. (Cri.)873.
7. Learned advocate for the accused referring thedecision in the case of Banka Nayako Vs. State ofOrissa, 1976 AIR (SC)2013 and particularly paragraph 8of the said decision submitted that as the brain of thedeceased was found congested she was unable to givevalid statement and hence the written dying declarationscannot be said to be voluntary statements of thedeceased.
8. Learned advocate for the accused furtherrelying upon the decision in the case of Sitaram NanaSarvade and Anr. V. The State of Maharashtra, 2014(3)ABR (Cri) 434 submitted that only dying declarationcannot be made basis for the conviction of the accusedwhen the prosecution has failed to establish the motivebehind committing the offence and therefore, accused areentitled to benefit of doubt.
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( 20 ) criappl791.14.odt9. Learned advocate for the accused furthersubmitted that PW-2 is mother of the deceased and
therefore, oral dying declaration made to her by thedeceased is not believable as she is interested witness.The prosecution has not examined Laxaman ShridharWaghchaure elder brother of the accused No. 1 and hisson Vikas who extinguished the fire and admitted thedeceased in the hospital. The deceased had disclosed toLaxaman Shridhar Waghchaure at that time that she gotherself burnt. Thus, the prosecution has suppressed thematerial evidence. It is submitted that in all the abovecircumstances the prosecution has failed to prove allthe offences against the accused for which they havebeen convicted and sentenced by the trial Court by theimpugned judgment and therefore, the conviction andsentence recorded against them is not sustainable andthe same is liable to be set aside and they are entitledto be acquitted of the said offences by allowing theappeal.
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10. Mrs. Choudhary, learned APP appearing for therespondent on the other hand submitted that dyingdeclaration Exhibits 17, 19 and the oral dyingdeclaration are consistent in material particulars asregards the role attributed to the individual accused inthe commission of offences and therefore, there is noreason to disbelieve the said dying declarations. It issubmitted that at the time of recording written dyingdeclarations and making oral dying declaration by thedeceased to her mother the deceased was in a fit stateof mind to make statement. It is further submitted thatthe evidence adduced by the prosecution is sufficient tohold the accused guilty for the offences punishableunder Section 302, 498-A and 504 of the IPC. The defenceof the accused that the death of the deceased issuicidal is not acceptable. Thus, learned APP has prayedto dismiss the appeal.
11. We have carefully considered the submissionsmade by the leaned advocate appearing for the accused ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 22 ) criappl791.14.odtand the learned APP. With their assistance, we haveperused the evidence on record and we have also perusedthe impugned judgment and order.
12. There is no dispute that the deceased wasmarried to accused No. 1 prior to 16-17 years of theincident which took place on 22/10/2012. The deceasedhas one daughter aged 13 years and son aged 9 years fromthe said wedlock. At the material time of incident shewas at the house of accused. On 22/10/2012 she sustained95% burns at about 7.30 p.m. and after the said incidentshe was admitted in the Gathi Hospital, Aurangabad byLaxaman Shridhar Waghchaure elder brother of her husbandaccused No.1 and son of Laxman Wagchaure and she dieddue to burn injuries while taking treatment in thehospital on 27/10/2012 at about 23.35 hours.
13. PW-4 Dr. Rathod who conducted postmortemexamination on the dead body of the deceased on28/10/2012 deposed that in the postmortem examination henoted following injuries on the person of the deceased: ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 23 ) criappl791.14.odt (1) Head neck face 8% with evidence of signing of hairs, eyebrows, eyelashes. Spared area is left check and forehead and also left ear spared. (2) Chest 9% (3) Abdomen 9% (4) Back 18% (5) Upper limp: Left upper limb 8%, Upper 1/3rd of arm spared (b), right upper limb 9% (6) Lower limbs: Right lower limb 17%, sole spared, left lower limb 17% sole spared.
. According to Dr. Rathod thus the deceasedsustained 95% superficial to deep burns with evidence offoul smelling. Yellowish, greenish slough formation withinflammatory changes seen all over burn areas. Evidenceof venesection over right medial maleous. Two stitchesseen. According to him as mentioned in column No. 18-Aof the postmortem report Exhibit 28 cause of death ofdeceased is septicemia due to burns and hairs, nails andskin were kept for chemical analysis. Exhibit 28postmortem report also shows that the deceased suffered ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 24 ) criappl791.14.odtabove referred injuries as mentioned in paragraph No. 17of the report and cause of death as deposed by Dr.Rathod. Thus, on the basis of evidence of Dr. Rathod andpostmortem report Exhibit 28 it can be said that deathof the deceased was caused due to burns and her deathwas unnatural.
14. Case of the prosecution is that after themarriage while the deceased was cohabiting with accusedNo. 1 the accused in furtherance of their commonintention caused cruelty to the deceased for unlawfuldemand of an amount of Rs. 2,00,000/- to performmarriage of niece of accused No.1 i.e. daughter of elderbrother of accused No. 1, the accused intentionallyinsulated her by abusing her and on 22/10/2012 at about7.00 to 7.30 p.m. accused No. 3 caught hold her hand,accused No. 2 poured kerosene on her person and accusedNo. 1 her husband set her on fire by lighting the matchstick and after she was admitted in the Ghati Hospital, ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 25 ) criappl791.14.odtAurangabad she died on 27/10/2012. Thus, according toprosecution death of the deceased is homicidal.
15. Now it is to be seen whether the accused areresponsible for death of the deceased or whether deathof the deceased is suicidal as per the defence of theaccused. To prove that death of the deceased ishomicidal and accused are responsible for her death theprosecution has relied upon dying declarations Exhibits17, 19, oral dying declaration made by the deceased toher mother PW-2 Muktabai and circumstantial evidence inthe form of spot panchnama Exhibit 10 and reports ofchemical analyzer Exhibits 39, 40, 41.
16. Now coming to the first dying declarationExhibit 17 recorded by PHC Shinde (PW-1) on 23/10/2012at about 04.15 p.m. is concerned, PHC Shinde has deposedthat on 22/10/2012 while he was present in the policestation he received MLC from Ghati hospital. Heconducted inquiry in the said MLC Exhibit 15. On23/10/2012 he went to Ghati Hospital, Aurangabad. ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 26 ) criappl791.14.odtDeceased Yashodabai was admitted in the hospital. Hegave letter Exhibit 16 to Medical Officer stating thathe wants to record statement of deceased whether she isable to speak. He deposed that Medical Officer gaveendorsement on said letter that deceased Yashodabadi isin a position to give statement. He went to the wardwhere she was admitted. He introduced her. She was ableto talk, she was mentally sound. He asked her, her nameand she disclosed her name as Yashodabai SainathWaghchaure. He recorded her statement as per her say.Said statement was read over to her. He obtained herthumb impression on her statement. He singed on saidstatement. Thereafter, he again obtained endorsement ofdoctor on said statement and said statement Exhibit 17shown to him is the same and its contents are correctand thus, he has proved statement/dying declarationExhibit 17.
17. PHC Shinde further deposed that Yashodabai hadstated before him that on 22/10/2012 her husband had ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 27 ) criappl791.14.odtbeen to Paithan for counting votes. In the afternoon hecame to the house. Thereafter, he again went in thevillage. On that day at about 7.00 p.m. to 7.30 p.m. herhusband and father-in-law had come to the house underinfluence of liquor. Thereafter, he told her as to whyshe had not brought amount of Rs. 2,00,000/- and shetold her husband that she had brought Rs. 1,00,000/-from her father and therefore, her father is not in aposition to pay money. She stated that her mother-in-lawhad also come there and when her father-in-law and herhusband were abusing her, her mother-in-law caught holdher hands. Her father-in-law poured kerosene on herperson and her husband set her on fire by igniting matchstick. She stated that she caught fire, but all accusedwent out of house. On hearing her shouts, VikasWaghchaure and his father came there and theyextinguished fire covering her body by means of clothesand she was taken to Ghati Hospital by the vehicle. ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 28 ) criappl791.14.odt18. In the cross-examination PHC Shinde has
admitted that at the time of recording statement ofdeceased Yashodabai her brother was present. Half anhour was required for recording her statement. He deniedthat he had not read over the contents of her statementto deceased. He also denied that deceased was not in aposition to talk. He also denied that he was personallynot satisfied that the deceased was in a position togive her statement and further denied that he isdeposing false that he recorded the statement. Thus,nothing is found in favour of accused in the cross-examination of PW-1 except the fact that at the time ofrecording dying declaration Exhibit 17 brother of thedeceased was present. This dying declaration also showsthat at the time of recording the same Raju TulshiramDhage brother of the deceased was present. In fact PW-1was required to ensure that except he and the MedicalOfficer no relative of the deceased is present at timeof recording dying declaration of the deceased to ruleout the possibility that the dying declaration is out ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 29 ) criappl791.14.odtcome of tutoring by the relative i.e. brother of thedeceased. But PW-1 has not taken said care. Therefore,as brother of the deceased was present at the time ofrecording dying declaration Exhibit 17 applying ratiolaid down by this Court in the case of Alkabai YelannaVaidu and other (Supra) it is unsafe to rely on thedying declaration Exhibit 17 therefore, dyingdeclaration Exhibit 17 cannot be said to be trustworthyand it can not be taken in to consideration.
19. Now coming to the second dying declarationExhibit 19 recorded by PHC Shinde-PW-1 on 23/10/2012between 11.00 p.m. to 11.30 p.m., he has stated that onthe same day i.e. on 23/10/2012 he again recordedstatement of deceased-Yashodabai as per her say, saidstatement Exhibit 19 shown to him is the same. Heobtained her thumb impression on said statement and itscontents are correct. In the cross-examination he statedthat second statement of deceased was started at 11.30p.m. 45 minutes were required for recording her ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 30 ) criappl791.14.odtstatement. Her second statement was reduced into writingby him. He denied that he has recorded second statementto remove discrepancies appearing in first statement. Healso denied that he has not read over the contents offirst and second statement to the deceased. He alsodenied that personally he was not satisfied that thedeceased was in a position to give her statement andfurther denied that he is deposing false to haverecorded statement of deceased.
20. Dr. Vipul Pathak (PW-3) in whose presence dyingdeclarations Exhibits 17 and 19 were recorded has statedthat on 23/10/2012 Police Head Constable had been to thehospital for recording statement of deceased. Heexamined the patient and found that she was in aposition to give statement. Accordingly, he madeendorsement Exhibit 23 on dying declaration Exhibit 17.He has not specifically stated that he made endorsementson dying declaration Exhibit 19 that the patient wasconscious oriented etc. as mentioned in Exhibit 19. In ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 31 ) criappl791.14.odtthe cross-examination he denied that he has given falseopinion. He also denied that no such statement was givenby the patient in his presence and further denied thatdeceased was not in a position to give valid statementat any time. Thus, on the basis of above evidence it canbe said that deceased was in a position to makestatement at the time of recording dying declarationExhibit 17, but it is doubtful whether she was in aposition to make statement at the time of recordingdying declaration Exhibit 19 in the night on 23/10/2012.
21. Now it is to be seen whether dying declarationExhibit 19 can be taken into consideration when PHCShinde (PW-1) has not stated about the contents of saiddying declaration. As referred earlier PHC Shinde hasonly stated that he recorded statement Exhibit 19 as persay of deceased Yashodabai. He has not stated about thecontents of said statement/dying declaration which runsinto 3½ pages. In fact, he should have stated about thecontents of said dying declaration in view of the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 32 ) criappl791.14.odtdecision of this Court in the case of Deorao s/o SonbajiBhalerao and another Vs. State of Maharashtra, 2008(4),Mh.L.J. (Cri.)474 in the said case as observed inparagraph No. 7 following two questions arose fordetermination and they are as under: “(i) Whether presumption under section 80 of Indian Evidence Act can be drawn in respect of a dying declaration recorded by a Magistrate without proof as to the cause of death of the dying person or as to in all the circumstances of the transaction which resulted in his death and particularly in respect of the name or description of/and act of the accused/offender in committing the offence of murder? (ii) Whether it is necessary for the Magistrate who recorded the dying declaration to depose before the trial Court about the name and act of the accused which resulted into the murder, in the words spoken up by the dying man?”
. In paragraph No. 22 of the said decision it wasobserved as under: “22. Having gone through the evidence on record, we find that the prosecution has relied upon only one piece of evidence to prove the charge against the appellants and the same is dying declaration (Exh.23) of deceased Sunita Bhanse. There is no other evidence relied on by the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 33 ) criappl791.14.odt prosecution in support of its case. Insofar the dying declaration (Exh.23) is concerned, the same was recorded by Wasudeo Mahore (P.W.4)- the Special Judicial Magistrate on 6-7-2001. In his substantive evidence before the Court, Wasudeo (P.W.4) deposed that after getting deceased Sunita examined from the medical officer he was satisfied that she was physically and mentally fit to give the statement, he recorded her dying declaration. Thereafter he read over the said dying declaration to the patient who admitted the same to be correctly written as per her say. Accordingly he made an endorsement and again requested the medical officer to examine the patient about her mental and physical condition. It is noteworthy that in his substantive evidence before the Court he did not depose a single word as to who were the offenders who had poured kerosene on her person and set her on fire and in what manner. The witness is blissfully silent about the same and the prosecution preferred to rely upon the document of dying declaration which was exhibited. We have held by answering both the questions in this judgment, that the document of dying declaration cannot be presumed to be correct under section 80 of Evidence Act, unless proved according to law. This is particularly so because no presumption under section 80 is available in respect of the dying declaration. Since Wasudeo (P.W.4) did not depose a word about the name and the role of the appellants as told to him by the deceased Sunita, in view of the statement of law recorded by us in the foregoing part of the judgment,::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 34 ) criappl791.14.odt we hold that the prosecution failed to prove its case and did not discharge the initial burden of proof required to be discharged in a criminal case. For this reason therefore we reject the sole piece of evidence in the form of dying declaration (Ex.23) relied upon by the prosecution. There is no other evidence and consequently the finding of the trial Court about conviction on the basis of dying declaration will have to be reversed. Thus Criminal Appeal No. 103/03 will have to be allowed.”
. The above said decision dated 30/06/2008 waschallenged before the Apex Court in Criminal Appeal No.
(s) 126 of 2011 and said appeal was dismissed on01/09/2015.
. Thus, when PHC Shinde (PW-1) has not statedabout the contents of dying declaration Exhibit 19applying the ratio laid down in the case of Deorao s/oSonbaji Bhalerao (Supra), we hold that said dyingdeclaration Exhibit 19 cannot be taken intoconsideration.
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( 35 ) criappl791.14.odt22. Another ground for not considering dying
declaration Exhibit 19 is that the contents of thisdying declaration Exhibit 19 i.e. incriminatingcircumstances appearing in this dying declarationagainst the accused were not put to the accused in theirstatement under Section 313 of the Criminal ProcedureCode, because the question No. 11 in respect of thisdying declaration put to the accused was thus: “11. It has further come in his evidence that on the same day he again recorded statement of Yeshodabai Exh. 19 as per her say and obtained her thumb impression on it and also obtained endorsement of doctor on it. What have you to say? Ans. It is false.”
. Thus, from the above question put to theaccused in their statement under Section 313 of theCriminal Procedure Code it is clear that theincriminating circumstances appearing in second dyingdeclaration Exhibit 19 recorded by PHC Shinde (PW-1)were not at all put to the accused and no explanation ofthe accused was sought on the said circumstances and ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 36 ) criappl791.14.odttherefore, said dying declaration cannot be used againstthe accused and said has to be excluded fromconsideration in view of the decision of the Apex Courtin the case of Raj Kumar Singh alias Raju Alias BatyaVs. State of Rajasthan, AIR 2013 Supreme Court 3150wherein it was held that the circumstances which are notput to the accused in his examination under Section 313of the Criminal Procedure Code cannot be used againsthim and have to be excluded from consideration.
23. For the above reasons we hold that both thedying declarations Exhibits 17 and 19 have to beexcluded from consideration and they are of no help tothe prosecution to prove the offences alleged againstthe accused.
24. Now coming to the oral dying declarationallegedly made by the deceased to her mother MuktabaiDhage (PW-2), her evidence is that after marriagedeceased was residing with her husband, mother-in-lawand father-in-law at village Dhupkheda, Tq. Paithan. ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::
( 37 ) criappl791.14.odtInitially for 5 to 6 years accused treated her well.Thereafter, accused started illtreating her. Accusedwere beating deceased on account of demand of money.Deceased informed about illtreatment to her by theaccused as and when she had been to her house. Accusedhad taken loan of Rs.1,00,000/- by mortgaging their landand constructed their house and therefore, they weredemanding money from the deceased. Accused demandedRs.1,00,000/- to deceased saying that they wanted to paysaid money to Babasaheb Veer from whom they had obtainedloan for construction of house. Further she deposed thataccused were illtreating deceased on account of demandof money.
25. PW-2 has further stated that incident tookplace before two years. Before 15 days of the incidentshe had paid Rs.1,00,000/- to accused No. 1 in presenceof brother of accused No.1, namely, Kishor Waghchaure.According to her after 8 days there from deceased hadbeen to her house. She was weeping and saying that all ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 38 ) criappl791.14.odtaccused were demanding Rs.2,00,000/- for marriage ofniece of accused No. 1. She told her that she would payRs.2,00,000/- after Diwali and on saying so she sentdeceased back to house of accused for cohabitation.After 4 to 5 days therefrom her son received phone ofKishor Waghchaure that deceased caught fire and that shewas admitted in Ghati hospital. She, her husband, herbrother and son came to Ghati hospital and they reachedGhati hospital at 8.00 p.m. She went in the ward and sawdeceased. Deceased had received burns on her entirebody. She was in a position to talk properly. She hadtold her that on 22/10/2012 accused were quarreling withher since morning. Accused were demanding Rs.2,00,000/-and were saying why her father was not payingRs.2,00,000/-. Thereafter, her mother-in-law had caughthold her hand and her father-in-law poured kerosene inplastic can on her person and her husband set her onfire by lighting the match stick. She further statedthat on sixth day of admitting the deceased in the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 39 ) criappl791.14.odthospital, she died. All the accused committed murder ofher daughter the deceased.
26. In the cross-examination PW-2 mother of thedeceased stated that accused Nos. 2 and 3 are residingseparate in the village. She denied that deceased wasnot in a position to talk. She also denied that accusedhave not constructed house by obtaining loan and thatshe had not paid Rs. 1,00,000/- to accused No. 1. Shealso denied that she is deposing false that the accusedwere demanding Rs. 2,00,000/-. She also denied thatdeceased never made a statement before her in Ghatihospital since she was not in a position to talk andthat since deceased was under tension she set herself onfire and they have foisted false case against theaccused. Thus, nothing is found in favour of accused inthe cross-examination of PW-2. As per the evidence ofPW-2 she went in Ghati hospital on the date of incidentat 8.00 p.m. immediately after the incident and thedeceased made oral dying declaration to her about the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 40 ) criappl791.14.odtrole played by the accused in setting the deceased onfire. Thus, the evidence of PW-2 is not shattered in thecross-examination. It was quite natural for the deceasedto disclose PW-2 her mother about the incident happened.It is also clear from the evidence of PW-2 that thedeceased was in a position to talk properly at therelevant time. Therefore, on the basis of evidence ofPW-2 it can be inferred that deceased made oral dyingdeclaration to her mother (PW-2) that on the date ofincident i.e. on 22/10/2012 the accused No. 3 caughthold hands of the deceased, accused No. 2 pouredkerosene from the plastic can on the person of thedeceased and accused No. 1 husband of the deceased sether on fire by lighting the match stick. Thus, the oraldying declaration made to PW-2 by the deceased regardingincident of setting the deceased on fire is truthful andreliable.
27. The accused have not disputed the spotpanchnama Exhibit 10. It shows that incident took place ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 41 ) criappl791.14.odtin the eastern side room of the house of accused. Thisroom has two doors. At the time of panchnama on23/10/2012 it’s western side door was locked from outside and eastern side door was closed from inside, butthat does not mean that both the doors were locked frominside by the deceased at the time of sustaining burns.From the spot of incident i.e. eastern side room can ofkerosene, half burnt pieces of clothes, ash and matchstick were seized. There is no dispute that saidarticles were sent to the Chemical Analyzer. Exhibit 40report of the chemical analyzer shows that keroseneresidues were found on article No. 2 partly burntclothes pieces with ash. So also, Exhibit 41 report ofthe chemical analyzer shows that kerosene residues werefound/detected on tissue like matter Exhibit No. 3.Thus, on the basis of above circumstantial evidence itcan be said that incident took place in the house ofaccused in the eastern side room and kerosene residueswere found on the half burnt cloth pieces of the clothesof the deceased. The above circumstances corroborate ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 42 ) criappl791.14.odtoral dying declaration made to mother of deceased thatkerosene was poured on her person and then she was seton fire.
28. Now, coming to the defence of the accused, atthe cost of repetition their defence is that thedeceased committed suicide due to frustration as herbrother did not pay amount of consideration of landpurchased by him from accused No. 1 by sale deed dated12/10/2012 and therefore deceased disclosed to LaxmanWaghchaure who admitted the deceased in the hospitalthat she set herself on fire. Therefore, in the MLC(Exhibit 15) it has been mentioned that the deceasedherself set her on fire and therefore, accused are notresponsible for burn injuries suffered by the deceasedand her death. Muktabai Dhage (PW-2) mother of thedeceased has denied that accused No. 1 had sold his landto her son on 12/10/2012. She denied that on 12/10/2012her son did not pay money to accused and told that hewould pay money on next day. She denied that on the next ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 43 ) criappl791.14.odtdate her son did not pay money to accused No. 1 andthereafter also he did not pay money to him inspite ofthe fact that accused No.1 made phone calls to her sonin that respect. She further denied that her daughter-the deceased made phone calls to her son and demandedmoney in respect of the land purchased by him fromaccused No.1 Sainath. She denied that since her son didnot pay money to accused No. 1 her daughter deceasedYashodabai was under tension as her son who is brotherof deceased cheated the deceased. She also denied thatsince deceased was under tension she set herself onfire. Thus, nothing is found in favour of the accused inthe cross-examination of PW-2 to state that the defenceof accused of suicidal death of the deceased isprobable. The accused have produced copy of sale deeddated 12/10/2012. It shows that on the date of sale deedbrother of the deceased had paid consideration amount ofRs. 2,10,000/- to accused No.1. Therefore, defence ofthe accused that as the brother of the deceased had notpaid consideration of land to accused No.1 deceased was ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 44 ) criappl791.14.odtunder tension and therefore she committed suicide is notacceptable.
29. For all the reasons discussed above on thebasis of oral dying declaration made by the deceased toher mother (PW-2) and circumstantial evidence in theform spot panchanama and reports of the ChemicalAnalyzer referred earlier an inference can be drawn thaton 22/10/2012 accused No. 1 to 3 in furtherence of theircommon intention caused burns to the deceased as deposedby her mother (PW-2). As said earlier deceased died dueto burn injuries and as defence of the accused ofsuicidal death of the deceased is not acceptable, wehold that the prosecution has proved that the accusedare responsible for death of the deceased and their actof setting the deceased on fire after pouring keroseneand causing her death is a culpable homicide amountingto murder punishable under Section 302 of the IPC. Fromthe role of the accused in setting the deceased on fireas deposed by PW-2 mother of the deceased it can be said ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 45 ) criappl791.14.odtthat the accused had knowledge as well as intention thatby the said act there would be death of deceased andthus they had motive to commit murder of the deceased.Therefore, argument of learned advocate appearing forthe accused that they had no motive to commit murder isnot acceptable. Therefore, we find that the trial courthas rightly held that the prosecution has proved offencepunishable under Section 302 read with Section 34 of theIPC against the accused and no fault can be found withthe said finding of the trial Court.
30. As regards the offence under Section 498-A ofIPC there is only evidence of mother of deceased asreferred in paragraph 24 and 25 (Supra). It has come onrecord that wife and daughters of brother of accused No.1 are residing in another village. Therefore, case ofthe prosecution that accused caused illtreatment todeceased for demand of Rs. 2,00,000/- for marriage ofdaughter of brother of accused No. 1 is not appearingprobable. So also, PW-2’s evidence regarding demand of ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 46 ) criappl791.14.odtaccused of Rs.1,00,000/- for repay loan of constructionof house is vague and not sufficient to state thataccused caused cruelty to deceased punishable underSection 498-A of IPC.
31. As regards offence under Section 504 of IPCthere is absolutely no evidence to show that the accusedintentionally insulated the deceased. Therefore, we holdthat the prosecution has failed to prove offences underSection 498-A and 504 read with Section 34 of IPCagainst accused and findings of trial Court holding themguilty for said offences are not correct andsustainable.
32. For the foregoing reasons, we hold that theconviction and sentence recorded against the appellants/accused by the trial Court for the offences punishableunder Sections 498-A and 504 read with Section 34 of IPCis liable to be set aside and conviction and sentencerecorded against them by the trial Court for the offencepunishable under Section 302 read with Section 34 of the ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 47 ) criappl791.14.odtIPC is to be maintained, by allowing the appeal partly.Therefore, following order is passed:
(i) Appeal is partly allowed.
(ii) The conviction and sentence recorded against theappellants/accused Nos. 1 to 3 for the offencespunishable under Sections 498-A and 504 read withSection 34 of IPC as per judgment and order dated15/12/2014, passed by the Additional Sessions Judge,Aurangabad in Sessions Case No. 54 of 2013 is set asideand the accused Nos. 1 to 3 are acquitted of the saidoffences. Fine, if paid, by them for the said offencesas per the impugned judgment shall be refunded to them.
(iii) The conviction and sentence recorded againstaccused Nos. 1 to 3 for the offence punishable underSection 302 read with Section 34 of the IPC isconfirmed.
(iv) Rest part of the impugned judgment and orderabout disposal of Muddemal property and set off given to ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 ::: ( 48 ) criappl791.14.odtthe accused as per Section 428 of the Code of CriminalProcedure is maintained.
(v) Record and proceedings with copy of judgment besent to the trial Court for necessary compliance. [S.M. GAVHANE, J.] [T. V. NALAWADE, J.]ssp/Nov.19/criappl791.14.odt ::: Uploaded on – 03/03/2020 ::: Downloaded on – 04/03/2020 09:53:58 :::