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2014 DIGILAW 1854 (BOM)

Kunal Shivram Shejwal v. State of Maharashtra

2014-08-21

ANUJA PRABHUDESAI, P.V.HARDAS

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JUDGMENT Anuja Prabhudesai, J. 1. The appellants, the original accused Nos. 1 and 2 in Sessions Case No. 43 of 1993, have challenged the judgment dated 30th July, 1993 whereby the Additional Sessions Judge, Nashik has convicted them for offence punishable under Section 498A and 302 r/w 34 of the IPC and sentenced them to undergo imprisonment for 3 years and pay fine of Rs. 1,000/- each in default to undergo RI for one month in respect of offence punishable under Section 498 A of the IPC and to undergo imprisonment for life and pay fine of Rs. 2,000/- in default to undergo RI for 3 months in respect of offence punishable under Section 302 of the IPC. The case of the prosecution in brief is as under: The appellant No. 1 is the husband whereas the accused No. 2 is the mother-in-law of the deceased Balika. On 31.7.1992 the deceased Balika was taken to the Civil Hospital, Nashik with burn injuries. On receipt of the said information, the head constable P.W.-5 Bhaskar Salunkhe issued requisition to the Special Executive Magistrate, P.W.-7 Arvind Desai to record the statement of the injured Balika. Accordingly, P.W.-7 visited the hospital and upon confirming that the deceased was in fit condition to give the statement, he recorded her statement/dying declaration, which is at Exh. 30. In the meantime, P.W.-5 Bhaskar also proceeded to the hospital and he too recorded the statement of the injured, which is at Exh. 26. The deceased Balika had alleged that the accused No. 1 was having extra marital affairs with a lady by name Sangeeta and that when she had brought this fact to the notice of accused No. 2, instead of supporting her, accused No. 2 had subjected her to cruelty. She has further stated that her mother-in-law, sister-in-law and nephew had picked up a quarrel with her, prior to the incident and that on 31.07.1992 at about 1.00 a.m. while she had gone to the washroom, accused No. 1 had poured kerosene on her and had set her ablaze. Based on the said statement P.W.-6 PSI Dhanraj registered Crime No. 79 of 1992 against the aforesaid appellants and Mandabai and Raju under Section 307, 498A of the IPC. 2. P.W.-6 PSI Dhanraj, visited the scene of offence, conducted the scene of offence panchanama at Exh. 50, and seized the incriminating material from the scene. Based on the said statement P.W.-6 PSI Dhanraj registered Crime No. 79 of 1992 against the aforesaid appellants and Mandabai and Raju under Section 307, 498A of the IPC. 2. P.W.-6 PSI Dhanraj, visited the scene of offence, conducted the scene of offence panchanama at Exh. 50, and seized the incriminating material from the scene. He recorded the statements of the witnesses and arrested the accused. The injured Balika expired on 05.08.1992, in view of which Section 302 of the IPC came to be added. P.W.-8 Dr. Pramod conducted postmortem over the body of Balika and opined that she had expired due to burn injuries. P.W.-9 P.I. Dattatraya Malode carried out further investigation. He recorded supplementary statements of the witnesses and forwarded all the incriminating material to the chemical analyzer for analysis. He submitted the charge sheet after completing the investigation. 3. On committal of the case, the learned Sessions Judge framed charges against the appellants and the other two accused namely Mandabai and Raju for offences punishable under Section 498A, 302 r/w 34 of the IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in support of its case examined 20 witnesses. The statements of the accused were recorded under Section 313 of the Cr.P.C. The defence of the accused was of total denial. After considering the evidence on record and hearing the learned APP for the State and the learned Counsel for the accused, the learned trial Judge acquitted Mandabai and Raju, the original accused Nos. 3 and 4. Whereas the appellant No. 1 guilty has been held guilty of offence punishable under Section 498A and the accused No. 2 guilty of offence punishable under section 302 of the IPC. The accused have been sentenced as stated above. Aggrieved by the conviction and sentence, the appellants original accused Nos. 1 and 2 have preferred this appeal. 4. Learned Counsel Shri Jngawale argued on behalf of the appellants. He has submitted that the case of the prosecution is not based on any direct evidence but is based on multiple dying declarations. He has contended that the dying declarations vary in their contents and are inconsistent. Learned Counsel Ingawale has urged before us that no conviction could be based on such inconsistent and contradictory dying declarations. 5. Learned APP argued on behalf of the State. He has contended that the dying declarations vary in their contents and are inconsistent. Learned Counsel Ingawale has urged before us that no conviction could be based on such inconsistent and contradictory dying declarations. 5. Learned APP argued on behalf of the State. She has argued that deceased Balika had sustained burn injuries and was admitted in Civil Hospital, Nashik. The post mortem reveals that she had sustained 83 % burn injuries and had expired as a result of the said injuries. She has further submitted that the oral dying declaration made to P.W.-2 and P.W.-3 vis-a-vis the dying declarations recorded by P.W.-5 and P.W.-7 proves beyond reasonable doubt that the accused had subjected Balika to cruelty and set her on fire and thereby caused her death. 6. We have perused the record and considered the arguments advanced before us. It is not in dispute that said Balika was married to the accused No. 1 about 7 to 8 months prior to the incident. The deceased Balika was admitted in burn ward of Civil Hospital, Nashik on 31.7.1992. She expired on 05.08.1992. The post mortem over the body of Balika was conducted by P.W.-4 Dr. Sharadchandra Pagare. The testimony of P.W.-4 vis-a-vis the postmortem report at Exh-20 reveals that said Balika had superficial burns on her neck, face, chest, abdomen back, left upper limb, right upper limb, right lower limb, and left lower limb. Total burns were to the extent of 83%. The doctor has opined that said Balika had expired due to the burn injuries. The testimony of this witness vis-a-vis the post mortem report at Ehx. 20 proves beyond reasonable doubt that Balika had sustained burn injuries and had expired as a result of the said burn injuries. 7. The conviction of the accused is based entirely on the dying declaration recorded by P.W.-5 Head Constable Bhaskar and P.W.-7, Special Executive Magistrate, Arvind Desai as well as the oral dying declaration made to P.W.-2, the mother of the deceased and P.W.-3 Sangeeta, sister-in-law of the deceased. It is trite law that conviction can be based on dying declaration provided the dying declaration is clear, unambiguous, true and voluntary and not a result of tutoring, prompting or imagination. It is trite law that conviction can be based on dying declaration provided the dying declaration is clear, unambiguous, true and voluntary and not a result of tutoring, prompting or imagination. In the instant case, the evidence of P.W.-5 Bhaskar indicates that on 31st July, 1992, while he was on duty at Lasalgaon Police Station, a memo was received from the primary health centre, Nimgaon Wakoda that a patient with burn injuries was admitted in the burn ward of the hospital. The Thane Amaldar had directed him to proceed to the hospital and record the statement of the victim. P.W.-5 has deposed that Pursuant to the said information, he had issued a memo to the Special Executive Magistrate, Mr. Arvind Desai to record the dying declaration. Accordingly, the Special Executive Magistrate, P.W.-7 Arvind Desai had visited the hospital and on confirming with P.W.-8 Dr. Pramod that the victim was in fit condition, he had recorded the dying declaration at Exh. 30. In the dying declaration at Exh 30, the deceased Balika had allegedly stated that on 31.7.1992, during morning hours, while she had gone to the lavatory, the accused No. 2 had come from behind and poured kerosene on her and set her ablaze. She had further stated that she was set ablaze by her mother-in-law and did not have complaint against anyone else. 8. The testimony of P.W.-5 indicates that on receipt of the copy of the dying declaration at Ex. 30, he had proceeded to the hospital and recorded another statement/dying declaration at Exh. 26. In the statement at Exh. 26, the deceased had allegedly stated that her husband i.e. the accused No. 1 was having extramarital relation with a lady by name Sangeeta. When she had brought this fact to the notice of the accused No. 2, she had told her not to complain and had further told her that her son was free to do whatever he wanted. The deceased had further alleged that on 30.7.1992, while her husband was away, her mother in law (A2) and nephew Raju had quarreled with her, and the accused No. 2 had prevented her from going to her maternal house. The deceased had further stated that on 31.1.1992 when she had gone to the lavatory, the accused No. 2 came from behind, poured kerosene on her and set her ablaze. The deceased had further stated that on 31.1.1992 when she had gone to the lavatory, the accused No. 2 came from behind, poured kerosene on her and set her ablaze. She had further stated that the accused No. 2 had set her ablaze because she had a grudge against her because of the previous incident and also because of her complaints against the accused No. 1. 9. The dying declaration at Exh. 30 reveals that the deceased had made accusations only against the accused No. 2 and had specifically stated that she did not have complaint against any another person. The testimony of P.W.-5 indicates that though he had received the copy of the said dying declaration, which was first in point of time, he had not registered any-offence. On the contrary, he had proceeded to the hospital and recorded another statement at Exh. 26 based on which he had registered the crime not only against the mother-in-law but also against her husband, sister-in-law and nephew of the deceased. There is material improvement and variation in the subsequent dying declaration and there appears to be a deliberate attempt to rope in the other accused who were not named in the dying declaration at exh. 30. Furthermore, the dying declarations at Exh. 26 as well as Exh. 30 was not read over and explained to the victim Balika. Hence, in view of the decision of the apex court in the case of Shaikh Bakshu and Ors. Vs. State of Maharashtra, 2007 (11) SCC 269 , and the decision of the Division Bench of this Court in the case of Abdul Riyaz Abdul Bashir Vs. State of Maharashtra, 2012 ALL MR (Cri) 2188 no reliance can be placed on the said dying declarations. 10. As regards the oral dying declaration, P.W.-2 Housabai, the mother of the deceased, has stated that when she had visited her daughter Balika at Civil Hospital, Nashik, she had told her that her mother-in-law Savitribai, sister-in-law Mandabai and nephew Raju had set her ablaze. She has further deposed that her daughter had also informed her that on the previous day her mother-in-law Savitribai, sister-in-law Mandabai and nephew Raju had snatched her ornaments and taken away her sarees. 11. She has further deposed that her daughter had also informed her that on the previous day her mother-in-law Savitribai, sister-in-law Mandabai and nephew Raju had snatched her ornaments and taken away her sarees. 11. P.W.-3 Sangeeta, the sister-in-law of the deceased has deposed that the deceased Balika had told her that the previous day her mother in law Savitribai and nephew Raju had quarreled with her and had snatched her ornaments including mangalsutra. She has deposed that Balika had further informed her that when she was preparing to leave the house to go to Malegaon, her mother in law and nephew had snatched her bag. P.W.-3 has further stated that Balika had also told her that when she had been to the wash room during night hours, her mother in law Savitribai, sister in law Mandabai and nephew Raju caught hold of her, poured 5 ltr. Kerosene on her and set her ablaze and that about an hour later her brother in law Ashok came and extinguished the fire. 12. The oral dying declaration as narrated by P.W.-2 and P.W.-3 involve Mandabai and Raju whereas the dying declaration recorded by P.W.-5 and P.W.-7 involve only the accused No. 2 Savitribai. Hence, the oral dying declarations, as narrated by P.W.-2 and P.W.-3 are at total variance with the dying declarations recorded by P.W.-5 and P.W.-7. The inconsistency in the dying declarations creates reasonable doubt as regards the authenticity and reliability of the said dying declarations. Consequently, the oral as well as the written dying declarations do not inspire confidence and no conviction can be based on such inconsistent dying declarations. In the light of the aforesaid evidence, we are of the view that the learned trial Judge has erred in holding the accused guilty of the offence under Sections 498A, 302 r/w 34 of the IPC. Subsequently, the impugned judgment cannot be sustained. Hence, we pass following order. 13. Under the circumstances and in view of the discussion supra, the appeal is allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants, be refunded to them. Bail bonds of the appellants stand cancelled. Appeal Allowed.