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2008 DIGILAW 1157 (BOM)

Ramesh Malhari Dhavale v. State of Maharashtra

2008-08-13

N.V.DABHOLKAR, S.S.SHINDE

body2008
JUDGMENT : (Per: Dabholkar, J.) 1. Original accused Nos.1 and 2, who are held guilty for offence punishable under Section 302 read with 34 of I.P.C. and sentenced to life imprisonment, fine Rs.3000/= each, in default, rigorous imprisonment for one year by judgment and order dated 15.7.2006, challenge the said judgment, finding, conviction and sentence, by present appeal. Three accused persons, including acquitted accused No.3 Kondabai, were tried for offences punishable under Sections 498-A, 307, 302 read with 34 of I.P.C., by Additional Sessions Judge, Kandhar and the Sessions case No.59 of 2005 ended in conviction of the appellants, as described hereinabove. 2. Mahananda, victim of the incident, was the wife of accused No.1 Ramesh, accused No.2 Kishnabai is grand mother of Ramesh, accused No.3 Kondabai is mother of accused Ramesh. Ramesh was married with victim about one year before the alleged incident. The incident took place on 21.3.2005 at about 22.00 hours at Kurula, Taluka Kandhar, District Nanded. It was the contention of the victim that the grand mother-in-law poured kerosene upon her person and husband ignited her with match stick. After she was extinguished by the neighbours, husband and grand father-in-law initially took her to government hospital, Kurula and thereafter to Civil Hospital, Nanded. It appears that Mahananda survived nearly for two months after the incident and expired on 15.5.2005. We have not discussed as to why grand mother-in-law and husband set Mahananda on fire, because the story on that count in two dying declarations recorded, is somewhat discrepant and we shall advert to it during the course of reasons. 3. The prosecution has examined only six witnesses. PW-1 Shaikh Chand and PW-2 Madhukar are the witnesses to spot panchanama and both of them turned hostile. Parents of deceased Mahananda, namely, Uttam (PW-3) and Premalabi (PW-4) were examined for the purpose of proving oral dying declaration on record, made to them when they met the deceased in the hospital. Eventually, parents of the victim are also not with the prosecution and they were also declared hostile. The prosecution case, therefore, relies upon the two pillars, viz. deposition of PW-5 Ahmadoddin Farooqui, Special Judicial Magistrate, who recorded dying declaration (Exh.40) of the victim on 23.3.2005 between 15.10 to 15.45 hours, as requested by PSI Nagdare(P.W.6) and deposition of PW-6 PSI Nagdare who had himself recorded statement of the victim (Exh.43), which is treated as FIR. The prosecution case, therefore, relies upon the two pillars, viz. deposition of PW-5 Ahmadoddin Farooqui, Special Judicial Magistrate, who recorded dying declaration (Exh.40) of the victim on 23.3.2005 between 15.10 to 15.45 hours, as requested by PSI Nagdare(P.W.6) and deposition of PW-6 PSI Nagdare who had himself recorded statement of the victim (Exh.43), which is treated as FIR. The statement was recorded on 23.3.2005 between 14.00 hours to 14.10 hours and it was registered with the police station as FIR at 20.05 hours, on the same day. 4. The defence of the accused is of total denial. In fact, even during their replies to the court, when they were heard on the point of quantum of sentence, they continued to plead innocence. Ramesh claimed that he has not committed offence, he never hurt his wife, she had started claiming that she would not reside in his house, she desired that they should reside with the family of her father. It is claimed that she also expressed that she did not like accused No.1 Ramesh. She dreamt of her mother, grand mother, land and mango trees etc. and, therefore, she felt unhappy at the village of Ramesh. Accused Ramesh also added that he married Mahananda, because of wish of his parents and, therefore, he was willing to maintain her. Accused No.2 Kishnabai also spoke in details, while submitting for quantum of sentence. She claims that Ramesh and his parents reside separately, she does not know anything about them, she has no involvement with their activities, her husband is suffering from leprosy and she needs to maintain him. . Although no specific plea is raised by the defence as to how victim Mahananda suffered burn injuries, upon hearing the submissions of learned APP that the husband had to extinguish fire, Advocate Shri Dhoble tried to make out defence of suicide. For the purpose, he has relied upon cross examination of the father of the victim, namely, Uttam Waghmare (PW-4). 5. On reference to the judgment of the trial court, it is evident that the learned Judge found dying declaration recorded by Special Judicial Magistrate, to be convincing and without any technical flaw. The post mortem report was admitted in evidence, presumably under Section 294 of the Code of Criminal Procedure, 1973 and thus the death being result of burn injuries, is not disputed. The post mortem report was admitted in evidence, presumably under Section 294 of the Code of Criminal Procedure, 1973 and thus the death being result of burn injuries, is not disputed. Although reliance was placed upon observations of the Hon’ble the Supreme Court in the matter of P.Mani vs. State of Tamil Nadu, 2006 (2) Crimes 9 (SC), learned Judge found the matter before him distinguishable on facts, as discussed in paragraph 18 of his judgment. According to him, there was no scope for victim being tutored by any members from the family of her parents. After finding the dying declaration recorded by Special Judicial Magistrate (Exh.40), to be convincing and confidence inspiring, learned Judge also considered argument of the defence counsel that the two dying declarations were not consistent. Learned Judge discussed the two dying declarations together, in paragraphs 23 to 25 of the judgment and arrived at a conclusion that there were no material inconsistencies between the two. In fact, at the conclusion of paragraph 25 of his judgment, the learned judge has observed that even if dying declaration (Exh.43), as recorded by PSI, is to be ignored for the purpose of hypothesis, yet,the dying declaration (Exh.40), recorded by Special Judicial Magistrate was sufficient to bring home the guilt. 6. Heard learned counsel for respective parties. . Since the entire prosecution case is based on two dying declarations, learned counsel for the appellant has submitted that, although conviction can be based upon uncorroborated dying declaration, for such reliance, the dying declaration must be unimpeaccable, convincing and trustworthy. According to Advocate Shri Dhoble, for some inconsistencies between the two dying declarations and some surrounding circumstances, which can be gathered from the record, dying declarations do not appear to be truthful account by the victim. According to learned Additional Public Prosecutor, other inconsistencies are minor and immaterial, till the time the victim is consistent that accused No.2 Kishnabai poured kerosene on her person and accused No.1 Ramesh ignited her, in both the dying declarations. According to learned Addl.P.P., dying declarations can safely be believed. 7. According to learned Additional Public Prosecutor, other inconsistencies are minor and immaterial, till the time the victim is consistent that accused No.2 Kishnabai poured kerosene on her person and accused No.1 Ramesh ignited her, in both the dying declarations. According to learned Addl.P.P., dying declarations can safely be believed. 7. We must say that while appreciating two dying declarations together and arriving at the conclusion that there are no material inconsistencies, learned Judge has failed to consider the details from the two dying declarations, which indicate that, to some extent; conflicting stories are being narrated by the victim, by maintaining common factor that grand mother-in-law poured kerosene and husband ignited her. It is desirable to refer to the text of the two dying declarations and we may sum up those, hereinbelow. As per the dying declaration recorded by Special Judicial Magistrate (Exh.40), the couple had gone to bed. They had sex, whereafter husband expressed that he was going out. Wife asked him not to go out. Defying her advice, accused Ramesh went out. Saying that she will also accompany him, the victim followed him. When they came out of the room, accused Ramesh got annoyed and struck her with a large stone (------). As a result of that blow, Mahananda collapsed on the ground. After this, Kishanbai poured kerosene on her person and Ramesh is said to have ignited her. Narration is concluded by cursorily saying that there used to be quarrels between the spouses on the ground of having sex. Without comparing this dying declaration with the earlier one recorded by PSI and which was treated as FIR (Exh.43), it is evident that there is no story of any previous harassment or ill-treatment, demands or pressure for the purpose of satisfying demands. Parents of the victim have not deposed anything against the husband. If the incident, as narrated in this dying declaration, is accepted on its face value, there was hardly any reason for grand mother-in-law to interfere and pour kerosene on the person of grand daughter-in-law. Long and short story is, after having one sexual intercourse, husband went outside the house against the desire of the wife and as the wife followed him, husband got annoyed and struck her with a stone. Long and short story is, after having one sexual intercourse, husband went outside the house against the desire of the wife and as the wife followed him, husband got annoyed and struck her with a stone. We do not find the story that the grand mother of the husband pours kerosene upon the victim on this much quarrel between the spouses, as proportionately matching with the back ground incident as narrated in the dying declaration. 8. Dying Declaration (Exh.43), as recorded by PSI Nagdare, can be summed up as follows, after deleting the formal part which police generally add in each FIR. Since about six months, mother-in-law Kondabai (acquitted Accused No.3), grand mother-in-law Kishnabai and husband Ramesh were expressing suspicion about the character of the victim Mahananda. They were beating her and making her work in the field for whole the day, she was required to fill water at home. Mahananda narrated all these things to her parents, when she had been to them. Parents persuaded the husband and consequently, the newly wedded couple was kept separate by the mother-in-law in a different house. (On reference to panchanama of scene of offence as proved by PSI, it can be seen that it is a small accommodation of 10 ft. x 7 ft. room built in tinsheets and it has a courtyard of 15 ft. x 7 ft. It must be remembered that the residential accommodation is only 70 sq.ft. i.e. 10 ft.x 7 ft. tinsheet room). The couple and the grand mother-in-law Kishanbai were residing in this small room. Thus, admittedly, mother-in-law Kondabai was not a member of this family. Mother-in-law and grand mother-in-law were pouring into ears of the husband and he used to beat the wife. It is alleged that, in spite of having sexual intercourse on 3-4 occasions in a night, husband used to express demand for more sex. On the alleged night, the husband had intercourse with the wife. He expressed desire for having sex again. On refusal by the wife, he beat her by kicks and blows. Grand mother-in-law was there. She scolded the victim because she was not allowing sex to the husband. She called Mahananda to be debaucherous. Thereafter, husband held hands of the victim, grand mother poured kerosene on the person of the victim and ran away. Thereafter, husband ignited sari of the victim, by match stick. Grand mother-in-law was there. She scolded the victim because she was not allowing sex to the husband. She called Mahananda to be debaucherous. Thereafter, husband held hands of the victim, grand mother poured kerosene on the person of the victim and ran away. Thereafter, husband ignited sari of the victim, by match stick. According to Mahananda, husband ran away. She chased him. Villagers extinguished her, whereafter husband and grand father-in-law took her to Government dispensary at Kurula and thereafter to Civil hospital, Nanaded. 9. No doubt, there is consistency of 2-3 details in the dying declaration that the grand mother-in-law poured kerosene, husband ignited the victim and both, husband and grand father-in-law, took her to the hospital, after she was extinguished. Victim is also consistent, of couple having one sexual intercourse before incident. But, two dying declarations narrate diagonally opposite story on few points. According to Exhibit 43, the victim was ignited while she was inside the house, whereas, according to Exh. 40, she was ignited, while there was a quarrel going on between the spouses in the courtyard. The story that she was struck by the husband with stone, does not find place in Exh.43. As per Exh.40, after having sex once, husband desired to go outside. As per Exh.40, husband wanted to have second round of sex, to which the wife refused. In Exh.43, wife was stated to be resisting departure of the husband and was asking him to stay at home only. 10. Although learned APP submitted that all other details are minor, except the fact as to who poured kerosene and who ignited, we cannot ignore the fact, by maintaining common crux, the two different stories are woven around the same by the victim, although two dying declarations are recorded one after another. If the timings are taken into consideration, it can be inferred that the moment PSI departed, by completing recording of statement, the Special Judicial Magistrate commenced recording of second dying declaration. The narration of the wife that husband ran towards the village, is also required to be taken with a pinch of salt because, admittedly, it was husband who took the victim to government hospital, Kurula and thereafter to civil hospital, Nanded. 11. The narration of the wife that husband ran towards the village, is also required to be taken with a pinch of salt because, admittedly, it was husband who took the victim to government hospital, Kurula and thereafter to civil hospital, Nanded. 11. Learned APP vehemently urged that since the incident took place at 10.00 p.m. and husband has not denied his presence at the location, if the story of homicide is controverted by him, he ought to have come with alternate theory. Unfortunately, the alternate theory of suicide has come only in the form of suggestion to the father of the victim. No doubt, father of the victim is hostile, but certain admissions by him during his cross examination, are relied upon by learned Advocate Shri Dhoble for the appellants and, therefore, those need to be referred to here. Uttam has admitted that Kishnabai and Kondabai (grand mother-in-law and mother-in-law) were separate from the victim. Although an admission obtained from the witness hostile to the prosecution, we are inclined to consider this situation as possible. In Exhibit 43, Mahananda has narrated that after she complained to her parents about the ill-treatment at the hands of accused, her parents persuaded her in-laws and mother-in-law, caused separation of the newly married couple from the joint family. The tinsheet room given to the newly wedded couple, was 10 ft. x 7 ft. tin shed. When the couple was given independent residence, on the complaint of ill-treatment against in laws, point to be pondered upon is, whether the grand mother-in-law would shift with the newly wedded couple in such a small accommodation and we feel that the grand mother-in-law not being a member of the new accommodation, is a greater possibility. Kishnabai in her statement under Section 313 of Cr.P.C., has narrated that her husband is alive, he is a leper. It has nowhere come that husband of Kondabai is dead. Thus husband of Kondabai and her son was also there to take care of Kishanabai and the story that Kishanbai shifted with newly wedded couple, is difficult to swallow. If the story, as narrated in Exhibit 43, is to be believed, one gets a picture as if the grand mother-in-law was the third person sleeping in the room admeasuring 10 ft. x 7 ft. and listening to all conversation between the spouses. This also appears to be improbable. If the story, as narrated in Exhibit 43, is to be believed, one gets a picture as if the grand mother-in-law was the third person sleeping in the room admeasuring 10 ft. x 7 ft. and listening to all conversation between the spouses. This also appears to be improbable. We, therefore, cannot rule out possibility that admission by Uttam that Kishanbai was also not a member of the room in which the newly wedded couple was residing, is not the result of hostility and is a truthful version. Uttam has admitted that his daughter desired to stay with the parents for maximum period and she had gone to cohabit with husband, against her wish. 12. It was also pointed out by Advocate Shri Dhoble that incident had taken place on 21.3.2005 at about 10.00 p.m. Soon after the incident, victim was taken to Kurula government hospital and thereafter to Nanded civil hospital. Yet, no record of treatment, case papers and history of incident recorded at Kurula hospital is brought by prosecution, before the court. The Dying Declarations are recorded only on 23.3.2005 between 2.00 p.m. to 3.45 p.m., one after another. Admittedly, parents of the deceased had reached hospital, upon getting a message. As such, we are unable to find any explanation as to why the dying declaration was not recorded on 22.3.2005. From the admission of the patient in the hospital, nearly for 38 hours, version of the victim was not at all recorded. We are aware that at civil hospital, there is police outpost, where police record statement of victim as soon as they get intimation regarding admission of medicolegal case in the hospital. Taking into consideration the two dying declarations, which present totally different stories, except for inculpatory allegation against grand mother-in-law and husband, as also surrounding circumstances, such as, non recording of statement/dying declaration on 22.3.2005, although parents of the victim had reached hospital by that time, the possibility that Kishnabai was not a member of the residence where accused Nos. 1 and victim were residing (and therefore, dying declaration to the extent it inculpates Kishanbai being false), we must say that the two dying declarations are not such, which inspire confidence in the absence of any corroboration. We, therefore, do not feel safe to rely upon those, to base the conviction. 1 and victim were residing (and therefore, dying declaration to the extent it inculpates Kishanbai being false), we must say that the two dying declarations are not such, which inspire confidence in the absence of any corroboration. We, therefore, do not feel safe to rely upon those, to base the conviction. The trial court had not taken into consideration this angle that except inculpatory statements, all other statements in the two dying declarations were conflicting and as such, trial court has not taken into consideration, the impact of this conflict, while accepting the dying declarations as presenting true picture. . For all these reasons, we feel that finding of guilty, conviction and sentence recorded by the trial court cannot be sustained. The appeal is, therefore, allowed. The finding, conviction and sentence imposed upon the appellants at the conclusion of Sessions Case No.59 of 2005, by Adhoc Additional Sessions Judge, Kandhar, by his judgment and order dated 15.7.2006, is quashed and set aside. Both the appellants are acquitted of the charges those were levelled against them. Bail bond of appellant Kishnabai shall stand cancelled. The appellant Ramesh shall be set to liberty forthwith, if not require in any other case." Fine amount, if any, deposited by the appellants shall be refunded to them.