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2007 DIGILAW 253 (BOM)

Prayagbai Bhojiram Kedar v. State of Maharashtra

2007-02-26

S.B.DESHMUKH, S.P.KUKDAY

body2007
S.P.KUKDAY,J.:- Appellants are convicted by learned Additional Sessions Judge. Ahmednagar, for offences punishable under section 302 and 498-A r/w section 34 of the Indian Penal Code (in short "IPC"). For the first offence, the appellants are sentenced to suffer imprisonment for life and fine of Rs.2,000/- i.d. to suffer R.I. for six months. For the second offence, they are sentenced to suffer imprisonment for one year and to pay a fine of Rs.1,000/-i.d. to suffer R.I. for three months. 2. Facts of the present case lie in narrow compass. Seema (since deceased) married Parmeshwar (appellant No.3) on 28th May, 2002 at Hasnapur. After her marriage, she started living at her matrimonial house with her husband, father-in-law Bhojiram Narayan Kedar (appellant no.2) and mother-in-law Prayagbai (appellant No.1), at Mangrul, Taluka Shevgaon, Dist. Ahmednagar. Her brother-in-law Laxman was living separately with his wife and children. Since the marriage, the deceased was subjected to torture. Appellant No.1 used to scold her for not cooking the food properly. Her husband and father-in-law used to scold her for not properly working in the field. On 9th February, 2004, the deceased took rest as she had pain in her chest. At about 8.00 p.m. on that day, appellant No.1 quarrelled with the deceased for avoiding work on false pretext. On the next morning, the deceased woke up at 40' clock in the morning. As usual, she cleaned the premises, filled water pots, cooked food and was busy with household chores when appellant no. 1 again picked up quarrel with her. On hearing the noise of the quarrel, neighbour Indubai (P.W.3), Tukaram - (brother of appellant no.2), his wife and their relative Sheshrao Dhakne came to the house of appellants and tried to stop the quarrel. During the quarrel appellant no. 1 threatened to set the deceased on fire. The deceased was fed up with the behaviour of appellant no. 1. Thus, she told appellant no.1 to do what she pleases. On hearing this reply, appellant no. 1 got enraged. She took the can lying on the ground, poured kerosene on the person of deceased and set her on fire. The deceased ran to the hut. Instead of extinguishing the fire, appellant no. l closed the door~ Appellant Nos.2 and 3 who were standing nearby, ran away from the place. After the deceased came out from the hut, P.W.3 and Sheshrao extinguished the fire. The deceased ran to the hut. Instead of extinguishing the fire, appellant no. l closed the door~ Appellant Nos.2 and 3 who were standing nearby, ran away from the place. After the deceased came out from the hut, P.W.3 and Sheshrao extinguished the fire. The deceased was then taken to Nitya Seva Hospital by her brother-in-law Laxman and villagers. From there the deceased was taken to the Primary Health Centre. While first aid was being given to the deceased, Appellant no.3 came there and 2 shifted her to Civil Hospital, Ahmednagar. On receiving intimation regarding the admission of the deceased to the hospital, Police Inspector of Tofkhana Police Station, Ahmednagar, sent letter (Exh.32) to Naib Tahsildar - Bansilal Shahane (P.W.2), requesting him to record statement of the deceased. P.W.2 approached Officer on duty. Dr. Kamble (P.W.5) examined the patient and certified that the patient is conscious, oriented and is fit to make a statement. P.W.2, then, recorded statement of deceased (Exh.33) between 5 and 5.20 p.m. Medical Officer, again, made an endorsement at the bottom of the statement regarding fitness of the patient. The dying declaration was then sent to Shevgaon Police Station. On receipt of the dying declaration, offence punishable under section 307 read with section 34 of the IPC came to be registered against the appellants on 11th February, 2004 at 1.00 p.m. After registration of the offence, PSI Suryabhan Jadhav (P.W.7) directed Head Constable Kisan Bhujbal (P.W.8) to record statement of the victim. The Investigating Officer, then, visited the scene of occurrence and attached can of kerosene match box and yellow coloured half burnt saree under Panchnama (Exh.46) in presence of Panch. Bhausaheb Vighne (P.W.6). He then recorded statement of witnesses. Father of the deceased Ramrao Vighne (P.W.1) was harvesting sugarcane with his wife Shobha (P.W.4) and other labourers for the sugar factory at village Chilim. On receipt of the information that his daughter has suffered bums and is admitted to the hospital. P.W.1 and his wife first returned to their house at Hasnapur at about midnight. On the next morning, they 'reached Civil Hospital, Ahmednagar at about 11.30 a.m. At the Hospital, the deceased narrated the incident to them. On receipt of the information that his daughter has suffered bums and is admitted to the hospital. P.W.1 and his wife first returned to their house at Hasnapur at about midnight. On the next morning, they 'reached Civil Hospital, Ahmednagar at about 11.30 a.m. At the Hospital, the deceased narrated the incident to them. As per directions given by the Investigating Officer, P.W.8 visited Civil Hospital, Ahmednagar and recorded statement of the deceased (Exh.53) at about 8.55 p.m. after verifying from the Medical Officer on duty that the victim is physically and mentally fit to make a statement. He then arrested appellant nos.2 and 3 and brought them to the Police Station. The deceased expired on 13th at 5.45 p.m. while she was under treatment. Head Constable Lagad of Kotwali Police Station, Ahmednagar held inquest on the dead body and prepared Panchnama (Exh.28). Dr. (Smt.) Todmal performed post-mortem and prepared report (Exh.29) certifying that the deceased died due to 74% burns. After death of deceased, penal section was changed to section 302 of the IPC. On completion of the investigation, the appellants came to be chargesheeted. 3. The appellants set up a defence that on the day of occurrence, P.W.3 came to their house at about 8.30 a.m. While she was speaking to the deceased, who was preparing tea, the stove suddenly flared up. Clothes of the deceased caught fire, P.W.3 doused the fire. By that time, the villagers came there and took the deceased to Nity Seva Hospital. Appellant No.3 had left the house at 6.30 a.m. for working at Prabhu- Vadgaon, he received information from Mukadam that his wife met with an accident and is taken to Nitya Seva Hospital by the villagers. He, therefore, went to the Hospital. Parents of the deceased also came there and decided to shift her to Rural Hospital at Shevgaon. On the advice of the Medical Officer, the deceased was then shifted to Civil Hospital at Ahmednagar. Appellant No.2 had left the house in the morning with his grandson for r taking medical treatment from Dr. Satpute of Asegaon. On receiving the information s regarding the incident, he also came to the s Hospital at Ahmednagar. At the Hospital, parents and uncle of the deceased told them that if y Rs.50,000/- are paid, they would not initiate It criminal prosecution. Satpute of Asegaon. On receiving the information s regarding the incident, he also came to the s Hospital at Ahmednagar. At the Hospital, parents and uncle of the deceased told them that if y Rs.50,000/- are paid, they would not initiate It criminal prosecution. However, as they were not in a position to make the payment, parents of the deceased got spurious statement of the deceased recorded with the help of Police Officers and falsely implicated them. The appellants did not examine witnesses in their defence. 4. At the trial, prosecution examined eight witnesses. P.W.1 and P.W.4 stated that at the time of their visit, their daughter used to complain that the appellants were torturing her on the pretext that she cannot cook food and does not work properly in the field. Both of them referred to the narration of the incident by the deceased at the Hospital at the time of their visit on 11th February, 1004. P.W.3, who is an eye witness, turned hostile. She supported the theory that the deceased sustained burns on account of the bursting of stove. P.W.2 stated that on receipt of the requisition, he recorded the dying declaration (Exh.33) in question-and-answer form. The deceased mentioned in her statement that appellant no. 1 quarrelled with her at about 5.00 0' clock in the morning and set her on fire. Appellant nos.2 and 3 ran away from the place. The neighbours extinguished the fire and brought her to the dispensary. P.W.5 stated that he examined the deceased before and after recording of the dying declaration. He found that the patient was conscious and fit to make a statement. P.W.5 has proved endorsements at the top and the foot of the dying declaration that the patient was conscious and capable of making a coherent statement. Baburao Vighne (P.W.6) proved spot Panchnama (Exh.46). The Investigating Officer in his brief statement mentioned that on the basis of the dying declaration (Exh.33), offence was registered. During the course of the investigation he attached burnt piece of yellow coloured saree, plastic can of kerosene and match-box from the scene of the occurrence under Spot Panchnama (Exh.46), recorded statements of the witnesses and on receipt of C.A. Report (Exh.41) showing that the residue of kerosene was found on the clothes of the deceased, he filed charge-sheet against the appellants. P.W.8 speaks of the recording of statement of the deceased (Exh.53) after obtaining endorsement from the Medical Officer regarding the fitness of the deceased to make statement. In this statement, the deceased has reiterated the story given by her earlier to the Naib Tahsildar, giving detailed version of the episode. 5. On appreciation of the evidence, the trial Judge found that dying declaration of the deceased was recorded after taking necessary precautions by P.W.2 and P.W.8. Considering the nature of the version given by the deceased and the circumstances brought on record, learned trial Judge found that the written as well as the oral dying declarations are reliable. Version of the incident given by the deceased in all these dying declarations shows that appellants shared common intention in ill-treating the deceased and causing her death. He further found that the appellants failed to establish alibi and the fact that the appellants did not make efforts to extinguish the fire, rule out theory of accidental death propounded by the appellants. In conformity with these findings the trial Judge convicted the appellants of the offence punishable under sections 302 and 498A read with section 34, IPC and sentenced them, as stated earlier. 6. In support of the appeal. Shri. V.G. Gangapurwala, learned counsel holding for Shri. N.C. Garud, would argue that theory of accidental death propounded by the appellants is substantiated by the evidence of P.W.3 who was admittedly present at the time of occurrence. In their examination recorded under section 313 of the Code of Criminal Procedure, the appellants have specifically mentioned that they have been falsely implicated by the father of deceased. In these circumstances, the Court should normally insist upon independent corroboration of the dying declaration. It is not permissible for the Court to place implicit reliance on the dying declarations in the absence of independent corroboration, learned counsel further submits that assuming the dying declarations to be true, the only allegation against appellant nos.2 and 3 is that they left the place after the deceased was set on fire by appellant no.1. To saddle the accused with vicarious liability, the prosecution has to show an existence of a pre-concert or prior meeting of mind between the accused. Mere passiveness on the part of appellant nos.2 and 3 is not sufficient to prove that they shared common intention with appellant no. 1 for causing death of the deceased. To saddle the accused with vicarious liability, the prosecution has to show an existence of a pre-concert or prior meeting of mind between the accused. Mere passiveness on the part of appellant nos.2 and 3 is not sufficient to prove that they shared common intention with appellant no. 1 for causing death of the deceased. It is further submitted that usual bickering between mother-in-law and the daughter-in-law does not amount to cruelty as envisaged by Section 498-A of the IPC. In support of these propositions, reliance is placed on the decisions of the Apex Court reported in : AIR SCW 2005 784 : 2005 ALL MR (Cri) 1057 (S.c.) and 2005 AIR SCW 3067. 7. Per contra, learned APP Shri. N.H. Borade pointed out that dying declarations of the deceased are recorded after taking due precautions. Having regard to the circumstances brought on record by the prosecution, these dying declarations inspire confidence. The conduct of appellant nos.2 and 3 in not helping the deceased after she was set on fire by appellant no.1 does establish that they shared common intention with appellant no.1. Learned APP contends that the trial Judge has properly appreciated evidence on record, it is, therefore, not necessary to interfere with the impugned order of conviction and sentence. 8. The principles governing dying declarations are by now well settled. Section 32 is an exception to the general rule embodied in section 60 of the Evidence Act that oral evidence of a relevant fact must be direct. Eight clauses of Section 32 provide for an exception to the general rule which exclude hearsay evidence. Clause (1) of Section 32 makes the statement of a person as to the cause of his death admissible in evidence on the principle that the soul of a person, who is on the brink of death, sheds all the worldly pride and prejudices. On the realization of impending death, there is neither need nor desire to falsely implicate an innocent person. At such solemn moment, the only powerful consideration for the dying person is to speak the truth. This is the reason why sanctity of oath is bestowed' on the dying declaration. There is no rule of law which requires corroboration to the dying declaration before it can be accepted and conviction can be founded only on the basis of a dying declaration. This is the reason why sanctity of oath is bestowed' on the dying declaration. There is no rule of law which requires corroboration to the dying declaration before it can be accepted and conviction can be founded only on the basis of a dying declaration. The Court looks for the corroboration as a matter of prudence as the accused does not have an opportunity to test the veracity of the statement made behind his back. However, on consideration of the relevant factors if the Court is satisfied that the version of the occurrence given by the deceased is truthful, there can be no impediment convicting the offender on the basis of such a statement. Evidentiary value of the dying declaration necessarily depends on the facts and circumstances of each case. There can be no set rules or a formula for testing veracity of a dying declaration. However, as the statement is made in the absence of the accused, it is the duty of the Court to satisfy itself that the statement made by the deceased is free from influence of the interested elements. The dying declaration is to be treated as any other species of evidence and rules governing appreciation of evidence equally apply to the dying declarations. Once the court is satisfied that the dying declaration does not suffer from any infirmity, conclusion as to the guilt of the perpetrator can be reached on the basis of such a dying declaration. Dealing with the proposition regarding necessity of corroboration to the dying declaration in the matter of P. V. Radhakrishna Vs. State of Karnataka (2003)6 SCC 443 : [2003 ALLMR (Cri) 1792 (S.C.)]; the Apex Court observed in para 13 of the report. "The dying declaration is only a piece of untested evidence and must, like any other evidence satisfy the Court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration." 9. If after careful scrutiny, the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration." 9. In the present case, we have carefully scrutinized entire evidence with the help of learned counsel for the appellants as well as the Additional Public Prosecutor. From the evidence on record, it is apparent that P.W.3 who is an eye witness, has turned hostile, leaving the prosecution with the sole evidence of the dying declaration of the deceased. First dying declaration of the deceased is recorded by the Naib Tahsildar in question-and answer form, after due verification from the Medical Officer that the deceased is in a fit mental statement to make a coherent statement. The statement is recorded on 10th at about 5.00 p.m. while her father-in-law and husband were attending her and in the absence of the relatives of the deceased from parental side. Thus, the first dying declaration is free from any tutoring or prompting. Version of the incident given in the first dying declaration is maintained in the statement recorded by P.W.8 and the oral dying declarations made to the parents. In these statements, the deceased has mentioned that she was set on fire by her mother-in-law who was in the habit of torturing her on the pretext that she lacks skill to prepare tasty food and is in the habit of avoiding domestic work. Working up passion during the course of the domestic quarrel, appellant no.l doused the deceased with kerosene and set her on fire. From the very nature of the act there can be no escape from the conclusion that appellant no.l had knowledge about the disastrous consequences of her act. The deceased has not made any attempt to attribute any overt act to her husband or father-in-law which is another indication of the simplicity and truthfulness of the narration. Considering the established circumstances, we have no hesitation in our mind to conclude that the dying declarations, oral as well as written deserve credence and are worthy of belief. 10. The deceased has not made any attempt to attribute any overt act to her husband or father-in-law which is another indication of the simplicity and truthfulness of the narration. Considering the established circumstances, we have no hesitation in our mind to conclude that the dying declarations, oral as well as written deserve credence and are worthy of belief. 10. On the basis of these dying declarations and the fact that the appellants did not help the deceased, learned trial Judge has also recorded findings that all the appellants shared common intention to cause death of the deceased and were subjecting her to cruelty causing danger to her life. Learned counsel for the appellants Shri. Gangapurwala, has criticized these findings of the trial Judge as unwarranted. Learned counsel has rightly argued that no adverse inference can be drawn from mere passiveness of appellant nos.2 and 3. Vicarious liability can only arise if there is material to indicate existence of a pre-arranged plan or prior meeting of mind for the commission of the criminal act forbidden by the provisions of law. If perpetrators share requisite intention for the commission of an offence which is common to all and arises either from a pre-arranged plan or develops on the spur of the moment, the participants are jointly liable for the offence committed in furtherance of such common intention. While considering the requirements for the applicability of section 34 of the IPC, in the matter of Sukhbir Singh Vs. Kirtan Singh, (2005)10 SCC 567 at page 570 : Their Lordships observed in para 7 of the report: "7.In State of V.P. Vs. Iftikhar Khan (1973)1 SCC 512 ) this Court considered in under section 34, IPC. It was held that to convict a person for offence applying section 34, IPC, it is necessary to establish that the criminal act was done in concert, pursuant to a pre-arranged plan and it is also to be borne in mind that it is difficult, if not impossible, to produced direct evidence to prove the intention of a person. Therefore, Courts, in most cases, have to inter the intention from the act or the actual conduct of a particular person or from the other relevant circumstances of the case. Such inference of common intention within the meaning of Section 34, IPC should never be reached unless the necessary inference is deducible from the circumstances of the case. Therefore, Courts, in most cases, have to inter the intention from the act or the actual conduct of a particular person or from the other relevant circumstances of the case. Such inference of common intention within the meaning of Section 34, IPC should never be reached unless the necessary inference is deducible from the circumstances of the case. The cases referred to by the learned counsel for the appellant turned on the facts of that case. The complicity of the accused could be decided under section 34, IPC only on the basis of facts of each case." 11. Learned counsel has placed reliance on the decisions of the Apex Court in Idrish Bhai Dadubhai, 2005 AIR SCW 784 : 2005 ALL MR (Cri) 1057 (S.C.), in which it is held that mere exhortations by itself does not constitute common intention and the decision of the Apex Court in the matter of Sree Vijay Kumar Vs. State by Inspector of Police, Kanyakumari, 2005 Am sew 3067 in which it is held that in the absence of incriminating circumstances mere act of throwing lighted lamp from a distance does not necessarily give rise to an inference that the appellant shared common intention with others. There can be no dispute about the propositions laid down in the facts of those cases. Analyzing the evidence available in the present case, it can be seen that the proverbial conflict between mother-in-law and daughter-in-law led to the domestic quarrel on the spur of the moment. On hearing noise of the quarrel the neighbours had come to the scene of occurrence. The cause for the quarrel which took place between the deceased and her mother-in-law found in the dying declaration does not have any nexus with the alleged harassment of the deceased for not properly preparing the food or her lack of skill in doing agricultural work. In this background, there can be various reasons for motivating appellant nos.2 and 3 to run away from the scene of occurrence. In the absence of cogent evidence to suggest pre-concert or formation of the common intention on the spur of the moment, it is not permissible to draw a conclusion regarding existence of common intention on the basis of mere passiveness of the appellant which could have been prompted by the anxiety to shield themselves from the wrath of the neighbours or for similar other reasons. 12. 12. From the same set of facts, learned trial Judge has held that the appellants are guilty of the offence punishable under section 498-A of the IPC. It is observed by the trial Judge in para 40 of the judgment: "40. It was also alleged by the prosecution that the accused had subjected deceased to cruelty. Once again with fault of repetition, I must mention here that case of the prosecution even for proving the same rests on the dying declarations. As earlier mentioned by the dying declarations clearly goes to show that accused no. 1 on flimsy ground that the daughter-in-law was preparing another cup of tea has set her on fire. This itself goes to show that there was ill-treatment to the deceased and the act committed by her was wilful conduct of cause her grave injury to her life. Further accused Nos.2 and 3 despite the fact that the incident had taken place in their presence never made any attempt to extinguish the fire which goes to show that they shared common intention. Hence, I hold that accused are guilty of having committed offence punishable under section 498-A r. w. section 34 of the IPC." 13. We are unable to uphold this finding of learned Judge for the simple reason that the cruelty envisaged by clause (a) of the section is the cruelty or harassment of the wife which forces her to cause bodily injury to herself or induces her to commit suicide. In the present case, once it is held that the quarrel took place on the spur of the moment and had no nexus with the ill-treatment of the type mentioned by the deceased in her dying declaration, there can be no justification for arriving at the conclusion that the act of appellant no.1 is of the species covered by section 498-A of the IPC. In our considered opinion, the trial Judge has committed an error in holding appellant nos.2 and 3 guilty with the aid of section 34 for the act of appellant no. 1 in causing death of the deceased and in holding the appellants guilty of the offence punishable under section 498-A of the IPC. 14. In the result, the appeal is partly allowed. Conviction and sentence of appellant no.1 for the offence punishable under section 302 of the IPC is confirmed. 1 in causing death of the deceased and in holding the appellants guilty of the offence punishable under section 498-A of the IPC. 14. In the result, the appeal is partly allowed. Conviction and sentence of appellant no.1 for the offence punishable under section 302 of the IPC is confirmed. Appellant nos.2 and 3 are acquitted for the offence punishable under section 302 read with Section 34, IPC. All the appellants are acquitted of the offence punishable under section 498-A of the IPC. Fine, if paid by the appellants for the offences of which they are acquitted, be refunded to the appellants. Bail bonds of appellant nos.2 and 3 stand cancelled. Appeal partly allowed.