Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 1021 (BOM)

Sajjan s/o Maroti Pakhare v. State of Maharashtra

2007-07-25

K.J.ROHEE, S.R.DONGAONKAR

body2007
Judgment:- By this appeal the appellants/accused have challenged their conviction for the offences punishable under section 302 r/w 34 of the Indian Penal Code and sentence of imprisonment for life imposed by the Sessions Judge, Akola in Sessions Trial No.57 of 1992 decided on 24-8-1993. 2. PW-l Janrao s/o Amruta Wankhade, r/o BarshitaJ(ali, District - Akola was having four daughters and two sons. His daughter Chhaya was married to Accused No.1 Sajjan s/o Maroti Pakhare in the summer of 1989. After her marriage Chhaya went to cohabit with Accused No.1 Sajjan at village Shivani-Shivapur where Accused No.1 Sajjan was residing with his father, mother (accused no.2 Kausal) and younger sister (DW-4 Sheela) who was studying in 5th Std. They were occupying the eastern room admeasuring 10 ft. x 10 ft. Out of the three rooms owned by Shri. Wahurwagh Guruji situated in Gautam Nagar, Shivni. The middle room was occupied by DW -1 Padama Ingle and her husband and the western room was vacant. Accused No.1 Sajjan had a vegetable shop at a distance of 1 1/ 2 furlong from the house. He was helping his parents to run the shop. 3. Chhaya used to go to her parental house at Barshitakali. On the last occasion she had returned from her parental house to her matrimonial house on the previous day of the incident. 4. On 20-2-1990 around 5.00 p.m. smoke was seen emitting out of the room in occupation of the accused. The labours, who were working nearby rushed there, broke open the front door and found Chhaya in a burnt condition. She was immediately removed to Govt. Hospital, Akola. On receiving intimation about her admission, PW-7 Shri. Chovhan (the then Tahsildar, Akola) visited the hospital. After ascertaining about the fitness of physical and mental condition of Chhaya from PW-5 Dr. Pise (Medical Officer) he recorded her dying declaration (Exh.35) between 8.55 p.m. and 9.15 p.m. Chhaya stated that her mother-in law poured kerosene on her person and her husband threw ignited match-stick on her person. During the same night her parents including her father (PW-l Janrao) and her brother Narendra came to the Hospital and met her. She told them that her mother-in-law caught hold of her and her husband poured kerosene on her body and set her ablaze by match-stick. During the same night her parents including her father (PW-l Janrao) and her brother Narendra came to the Hospital and met her. She told them that her mother-in-law caught hold of her and her husband poured kerosene on her body and set her ablaze by match-stick. On the basis of the said dying declaration Crime No.I22/1990 u/s 307 of Indian Penal Code was registered against accused nos.l and 2 at 10.00 p.m. on the same day. On the next day i.e. on 21-2-1990 PW-8 PSI Ghurde visited the place of incident and prepared spot panchanama (Exh.26) in presence of two panchas including PW-4 Prakash Nathuji Aathawale. He seized burnt piece of cloth, tin of kerosene, match-stick and pieces of bangles from the place of incident. On the same day Chhaya succumbed to the burn injuries at 6.45 p.m. 5. On 22-2-1990 autopsy on the dead body of Chhaya was conducted by PW-2 Dr. Deshmukh and Dr. Smt. Ansari. There were 99% ante-mortem bum injuries. All body from forehead to sole of feet was burnt. The doctor opined that the probable cause of death was 99% burn with shock. After completion of investigation the accused were charge-sheeted. 6. The accused have examined as many as five defence witnesses including DW1 Padma Ingle (the occupant of the middle room) and DW-4 Sheela (the younger sister of Accused No.1 Sajjan). The defence that can be gathered from the evidence is that while preparing curry on stove, Chhaya was accidentally burnt. At that time she was alone in the house. The accused persons were in their vegetable shop. On receiving information they rushed to the house and took Chhaya to Govt. Hospital. Thus they are not responsible for the death of Chhaya. 7. On considering the evidence adduced by the prosecution as well as defence, the trial court held that Chhaya met with homicidal death and that it was not an accidental death as propounded by the accused persons. The trial court relied on the dying declaration (Exh.35) of Chhaya and held that the accused were responsible for causing her death. Thus, the trial court disbelieved the defence evidence and convicted and sentenced them. The said judgment is under challenge. 8. We have heard Shri. R. K. Tiwari, Advocate for the appellants/accused and Shri. A. D. Sonak, APP for the Respondent/State. Thus, the trial court disbelieved the defence evidence and convicted and sentenced them. The said judgment is under challenge. 8. We have heard Shri. R. K. Tiwari, Advocate for the appellants/accused and Shri. A. D. Sonak, APP for the Respondent/State. We have gone through the record and proceedings of the trial with the assistance of the counsel for the parties. 9. Shri. Tiwari, the learned counsel for the appellants/accused, submitted that though dying declaration may form the basis of conviction, the dying declaration must inspire confidence and that some corroboration to the dying declaration is necessary. He submitted that when there are more than one dying declarations, the court cannot pick up and choose one of them, particularly when in the present case there are discrepancies between written dying declaration recorded by the Executive Magistrate and oral dying declaration alleged to have been made to the father of Chhaya. Shri. Tiwari pointed out that the evidence on record shows that there were 99% burns which indicates that the fingers of deceased Chhaya were also burnt. However, the dying declaration (Exh.35) recorded by the Executive Magistrate bears thumb mark of deceased Chhaya. The thumb impression on the dying declaration have clear ridges and curves. It is highly improbable that when there were burnt injuries on all over the body, such thumb impression could have been obtained. The prosecution evidence is thus inconsistent and the benefit thereof would go to the accused persons. In this respect reliance was placed on State of Punjab Vs. Gian Kaur and another, AIR 1998 SC 2809 : [1998 ALL MR (Cri) 823 (S.C.)]. 10. Shri. Tiwari further submitted that even when the dying declaration is recorded properly it may not necessarily be true. Proper recording of dying declaration is one thing and truthfulness of the contents of dying declaration is another thing. Reliance has been placed on Burakhbee Vs. State of Maharashtra, 2006(4) AIR Born R 187 (DB) : [2006 ALL MR (Cri) 1368], wherein it is held that: "Proof of recording of dying declaration is one thing and evidentiary value and truthfulness of the dying declaration is another matter." 11. Shri. Tiwari further submitted that the evidence on record shows that the door of the room was closed and it was required to be broken open. There is a window in the opposite wall of the door from which access and ingress is possible. Shri. Tiwari further submitted that the evidence on record shows that the door of the room was closed and it was required to be broken open. There is a window in the opposite wall of the door from which access and ingress is possible. However, there is no evidence that the appellants came out of the rear window after the alleged incident. Shri Tiwari lastly submitted that the prosecution that the prosecution has not shown any motive on the part of the accused persons for committing the alleged crime. Shri. Tiwari submitted that the trial court has not properly appreciated the evidence on record and arrived at a wrong conclusion. He submitted that the prosecution has failed to establish the guilt of the accused beyond doubt and that they are entitled to be acquitted. 12. Shri. Sonak, learned APP on the other hand, justified the impugned judgment. He submitted that there is ample evidence in support of the conviction of the accused persons. The defence evidence adduced by the accused persons is not trustworthy. The defence witnesses are interested in the accused persons and are not trustworthy. He submitted that the trial court has rightly rejected the defence evidence and convicted the accused persons. 13. We have carefully considered the rival contentions. In its judgment, the trial court rightly observed that the case entirely rests on circumstantial evidence. The trial court has enumerated the circumstances relied upon by the prosecution as under:(i) homicidal death within 7/8 months of the marriage in the house of the accused while deceased Chhaya was in their custody; (ii) The dying declaration made by Chhaya on the same day before the Executive Magistrate disclosing the complicity of both the accused; (iii) oral dying declaration made by Chhaya before her father (PW-l Janrao) in the hospital disclosing complicity of both the accused persons; and (iv) finding of kerosene tin, broken pieces of bangles and pieces of cloths. 14. After considering inquest panchanama (Exh.24) and post-mortem report (Exh.22), the trial court observed that the question whether it was homicidal death would be considered after taking into account other evidence including dying declaration of deceased Chhaya. Accordingly after considering other evidence, the trial Court concluded that Chhaya met with homicidal death and that the accused committed her murder in furtherance of their common intention. Accordingly after considering other evidence, the trial Court concluded that Chhaya met with homicidal death and that the accused committed her murder in furtherance of their common intention. Besides medical evidence, the trial Court has relied on other evidence to come to the conclusion that deceased Chhaya met with homicidal death. 15. The trial court has considered the evidence of PW-7 Shri. Chavan, Tahsildar, who recorded dying declaration (Exh.35) after ascertaining the mental and physical condition of Chhaya by PW-5 Dr. Pise. The trial court concluded that Shri. Chavan took all possible and necessary precaution with the assistance of Dr. Pise before recording dying declaration. The trial court disagreed with the submission of the learned defence counsel that question no.2 was suggestive thereby meant to give hint to Chhaya. The trial court observed that no motive could be attributed to Executive Magistrate when he put question no.2 to Chhaya as to who had burnt her. The trial court disbelieved the suggestion that there was tutoring to Chhaya when she made dying declaration. The trial Court observed that both the accused must have enraged when Chhaya had complained to her father about the impotency of accused no.l Sajjan and that was the motive for them to commit the offence. The trial court did not believe second oral dying declaration made by Chhaya before her father. The trial court disbelieved the defence that the death of Chhaya was by accidental fire. The trial Court observed that Chhaya had absolutely no reason to commit suicide and that the theory of suicide is neither propounded by the defence nor appears to be probable. Consequently the trial court disbelieved the defence evidence and convicted the accused persons. 16. By examining OW-l Padma w/o. Balu Ingle (the immediate neighbour of the accused), OW-2 Tejrao s/o. Chandrabhan Telgore (another neighbour of the accused) and DW-5 Niranjan s/o. Kashiram Sirsat (the elder brother of accused no.2 Kausal), it was tried to be established that soon after burning when Chhaya was taken out of the house and was being removed to hospital, she disclosed these DWs that while cooking cull)' on the stove she got burnt by accident. It appears that these DWs disclosed the oral dying declarn1ion to them by Chhaya for the first Obviously this is so in order to help the accused persons.. It appears that these DWs disclosed the oral dying declarn1ion to them by Chhaya for the first Obviously this is so in order to help the accused persons.. The evidence in this respect does not inspire confidence .and in our opinion the trial Court rightly discarded it. 17. The evidence adduced by the prosecution shows that the Executive Magistrate recorded the dying declaration (Exh.35) of Chhaya and after some time, she made oral dying declaration 10 her father (PW1 Janrao). The written dying declaration (Exh.35) bears the right thumb mark of Chhaya. However, the inquest pancharuuna (Exh.24) and post-mortem report (Exh.22) showing fuatfuae was extensive burn of the body, it appears highly improbable that it would have been possible to obtain thumb mark of Chhaya. We do not want to say that in case of 99% bums it was not possible for Chhaya to TI2mite 1he incident to the Executive Magistrate. If we carefully perused the dying declaration (Exh.35) it would be seen that 1M Executive Magistrate presumed 1hat somebody burnt her and that is why he put leading question (questionno.2) as to who burnt her. In Sampat Dashrath Waghmare Vs. The State of Maharashtra 2002 ALL MR (Cri) 27, Special Executive Magistrate putting leading question and solicited her answer, dying declaration was he1d to be not admissible in evidence. In fact, the Executive Magistrate should have asked her as to how did she bum, to which she might have answered that she was burnt by somebody. While answering this question, Chhaya replied that her mother- in-law poured kerosene and her husband ignited matchstick and dropped it on her person. PW-I Janrao (the father of deceased Chhaya however stated that Chhaya to1d him that accused no.2 (Kausal) caught hold of01haya and accused no. I (Sajian) poured kemsene on her body and set her ablaze match-stick. It would thus be seen that the contents of written dying declaration and the oral dying declaration are contrary to each other the role assigned to each of the accused is entirely different and such circumstances it would be improper to accept the one and to reject the another dying declaration. In this regard the reliance can be placed on shahu Parshu rathod (Aade) Vs. In this regard the reliance can be placed on shahu Parshu rathod (Aade) Vs. State of Maharasthra , 2006 ALL MR (Cri) 817, in which it is held that: The dying declaration has to be considered and believed as whole It is impermissible to pick and choose either -of the dying declarations, if there are multiple dying declarations. It would be against law if the courts select a dying declaration which helps the prosecution by filling in the lacunas in the prosecution story. The dying declaration must inspire confidence of the court as maker of it is no available for cross examination by the defence the dying declaration has to be strictly construed and cautiously appreciated 18. The allegations that accused nos. 1 and 2 set chhaya on fore cannot be believed for another reason. The front door of to room was closed from inside , so the offenders must have escaped from the near window. However, there is no evidence showing that the accused persons were proceeding from the house to their shop at the relevant time. In the absence of such evidence the contents of dying declaration for not inspire confidence. In Dandu Lakshmi Reddy Vs. State of A.P.,1999 Cri.L.J 4287 : {1999 ALL MR (Cri) 1784 (S.C)}, it is held that : ""It will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration .. 19. Had Chhaya been set ablaze by the accused persons, she would have certainly raised alarm which would have attracted people in the vicinity. However, there is no evidence that she raised such alarm. This circumstance excludes the possibility of the accused setting her on fire or01haya sustaining accidental burns because even in that case she would have raised alarm 20. The evidence of PW –l Janrao (the father of Chhaya) shows that after her marriage wi1b accused no.l Sajjan, she spent much of her rime at her parental house.. On the second OL::C3Sion Chhaya complained to her father that accused no.l Sajjan is impotent. During cross-examination PW -I Jancao admitted that Chhaya was reluctant to go to the house of her husband on .account of impotency of her husband and despite her reluctance PW-l Janrao sent her to her matrimonial house with Bhat. On the second OL::C3Sion Chhaya complained to her father that accused no.l Sajjan is impotent. During cross-examination PW -I Jancao admitted that Chhaya was reluctant to go to the house of her husband on .account of impotency of her husband and despite her reluctance PW-l Janrao sent her to her matrimonial house with Bhat. If that was the situation then in our opinion in all probability Chhaya might have committed suicide by burning herself due to frustration and that is why she did not raise alarm when she was burnt. 21. In this regard the trial court observed that if really O1haya did not want to return back to the house of her husband. she would have flatly refused to go to the house of her husband and would have committed suicide ;at the house of her parents itself. In respect of the allegation of impotency of accused no. 1 Sajjan, the trial court observed that Chhaya could have recourse to legal action for seeking divorce on the ground of impotency and she had no reason to commit suicide on that ground. We find it difficult to appreciate these observations of the trial court. It may be seen that though she made complaint about impotency of her husband to her father, her father insisted her to go back to her husband's house. In such circumstances she had no option but to abide by the commands of her father. She could not have obviously taken recourse to legal action for seeking divorce because her father was not willing to help her. It seems that she had no other go except go to bee husband's house. This must have caused immense frustration to her which might have led her to commit suicide In the present case though according to the prosecution it was homicidal death and according to the defence it was accidental death, in our opinion, the circumstances clearly indicate that it was suicidal death for which the accused persons cannot be held responsible. We are satisfied that there was no motive for the accused to kill chhaya 22.. Thus we find that the trial court has not properly appreciated the evidence on record and it is not possible for us to accept the conclusions drawn by the trial court. We are satisfied that there was no motive for the accused to kill chhaya 22.. Thus we find that the trial court has not properly appreciated the evidence on record and it is not possible for us to accept the conclusions drawn by the trial court. The chain of circumstance mentioned by the trial court is not such as to lead to the only conclusion that the appellants/accused are guilty or that the chain is not in consistent with their innocence. In our considered view the prosecution has failed to establish the guilt of the accused persons and that they are entitled to be acquitted. Hence we pass the following order 23. The appeal is allowed. The conviction of the appellants/accused for the offence punishable under section 302 r/w 34 of the Indian Penal Code and sentence thereunder is quashed and set aside. The appellants accused are acquitted of the charge. Their bail bonds stand cancelled. Appeal allowed.