Research › Search › Judgment

Bombay High Court · body

2015 DIGILAW 580 (BOM)

State of Maharashtra v. Vijay Tukaram Kusalkar

2015-02-25

A.M.BADAR, S.S.SHINDE

body2015
Judgment :- Badar, J. 1. This is an application by the State seeking leave to appeal for challenging the judgment and order dated 3.9.2013 passed by the learned Additional Sessions Judge, Sangamner in Sessions Case No. 18/2009 thereby acquitting the respondents accused of the offences punishable under Sections 302 and 498A r/w 34 of the Indian Penal Code, 1860. 2. Heard learned APP for the State. She vehemently argued that two dying declarations of deceased Rekha are consistent and point out finger to guilt to the respondents – accused. Apart from those dying declarations, there are oral dying declarations of deceased Rekha made to her relatives which show that respondent accused No.1 husband, on instigation of other accused persons, set Rekha ablaze thereby causing her homicidal death. She further argued that the evidence of uncles and mother of deceased Rekha is sufficient to infer cruelty as defined by section 498A of the Indian Penal Code, 1860 and as such, view taken by the learned Additional Sessions Judge in acquitting the respondents accused is perverse. As against this, the learned Counsel appearing for respondents / accused supported the impugned judgment and order of acquittal. 3. With the assistance of the learned Counsel appearing for the parties, we have gone through the record and proceedings including deposition of witnesses and documents placed on record. 4. Few facts needs to be noted in order to decide the present application. Undispsutedly, respondent – accused No.1 is husband of deceased Rekha whereas, rest of the respondents are his relatives. Respondent No.1 – accused Vijay got married with Rekha in the year, 1997. Rekha was serving as Helper to Cook in Government Ashram School situated at village Jawale Baleshwar, where her husband accused No.1 Vijay was serving there as Lab Assistant. The couple was residing in the official accommodation provided by the said school. It is case of the prosecution that as deceased Rekha was issueless, respondents – accused were instigating her husband-accused No.1 Vijay to perform second marriage and on that count, they used to ill-treat her. She was put to starvation by not providing food to her. Respondent No.1 / accused Vijay used to beat her for securing her consent for second marriage. According to the prosecution case, incident of incineration of Rekha occurred on 24.7.2008 at the residential house of the couple. She was put to starvation by not providing food to her. Respondent No.1 / accused Vijay used to beat her for securing her consent for second marriage. According to the prosecution case, incident of incineration of Rekha occurred on 24.7.2008 at the residential house of the couple. It is case of the prosecution that respondent – accused No.1 Vijay picked up quarrel with Rekha on petty reason that she is unable to do household work and she is not liked by him. During the course of that quarrel, according to the prosecution, accused No.1 threw a burning match stick on the person of Rekha. Her cotton gown as such caught fire and she suffered burns. She was then taken to Gaganagiri Hospital, Sangamner for treatment and from there, she was shifted to Unity General Hospital, Sangamner where, she succumbed to injuries on 24.7.2008. 5. Death of Rekha Kusalkar occurring on 24.07.2008 due to burn injuries is not in dispute. Evidence of PW10 Dr.Laxman Gadekar of Unity Hospital, Sangamner shows that while taking treatment of 60% burn injuries suffered by her, Rekha died due to shock on account of septicemia on 24.07.2008 at his Hospital. Evidence of PW-13 Dr. Sanjay Ghogare, Autopsy Surgeon, which is duly corroborated by P.M.report Exh.86 shows that death of Rekha Kusalkar was due to septicemic shock secondary to burns. Let us therefore examine whether this death is proved to be homicidal and the same is authored by accused persons in furtherance of their common intention. 6. We have seen on record three officially recorded dying declarations of deceased Rekha Kusalkar. Prior to adverting on dying declarations of deceased Rekha, we may put on record the law relating to the dying declarations set out by catena of judgments of this Court as well as those of the Honourable Apex Court. It is well settled that dying declaration enjoins a sacrosanct status, as a piece of evidence, as it comes from the mouth of the person who is about to die and a sense of an impending death prevents such person from speaking lie. At the same time, we may note that the dying declaration is not a deposition before the Court. It is neither made on oath nor in presence of the accused. Its credence cannot be tested by cross-examination of the declarant. At the same time, we may note that the dying declaration is not a deposition before the Court. It is neither made on oath nor in presence of the accused. Its credence cannot be tested by cross-examination of the declarant. Because of these inherent weaknesses in the dying declaration, no initial presumption can be raised that dying declaration contains nothing but the truth. To test credibility of the dying declaration, Court is, therefore, required to apply various tests and to keep in mind various factors. Consistency is one of such factor. In case of plural dying declarations, all dying declarations are required to be consistent in material particulars though first in point of time is to be preferred. In other words, the Court is required to rule out the possibility of a statement being result of prompting, tutoring or vindictiveness of the declarant or product of imagination of the declarant. If ultimately, the truthfulness of the dying declaration is established beyond doubt, conviction can be based upon it. 7. Now let us consider dying declarations of deceased Rekha brought on record by the prosecution on the touch stone of this settled law. We may come to her first dying declaration subsequently, as it is pointing that she sustained accidental burns. Her second dying declaration [Exh.88] came to be recorded at Unity General Hospital by P.W.14 Mangalsing Mohansing Pardeshi, Police Head Constable, Taluka police Station, Sangamner on 25.5.2008. In her second dying declaration [Exh.88], deceased Rekha has stated that other accused persons used to instigate her husband to desert her and to perform second marriage as she was not having an issue. According to the declarant, then on 24.5.2008 her husband picked up quarrel with her on petty reason and in the course of that quarrel, he went in the kitchen and threw burning match stick on her. Resultantly, her gown caught fire and she sustained burns. 8. On the basis of this second dying declaration [Exh.88] recorded by P.W.14 Mangalsingh Pardeshi, Crime No.I-170/2008 u/s 307, 498A, 323, 504, 506 r/w 34 of the Indian Penal Code came to be registered. After death of Rekha Kusalkar, Section 302 of I.P.Code was added to the case diary of the crime. 9. We may note that this dying declaration of deceased Rekha is shrouded in mystery. It is written on two sheets of paper by P.W.14 Mangaldas Pardeshi. After death of Rekha Kusalkar, Section 302 of I.P.Code was added to the case diary of the crime. 9. We may note that this dying declaration of deceased Rekha is shrouded in mystery. It is written on two sheets of paper by P.W.14 Mangaldas Pardeshi. On second sheet of paper which is marked as page 3 of her dying declaration, an endorsement is appearing on the top portion to the effect that the said page is page 2 of the FIR in Crime No.I170/2008 u/s 307, 498A, 323, 504, 506 r/w 34 of the Indian Penal Code. When the crime itself was registered on the basis of this 2nd dying declaration [Exh.88], we fail to understand as to how at the time of recording the dying declaration, on page 3 thereof, a note to this effect can appear. At the time of recording this dying declaration, the crime No.I-170/2008 was not registered at all. This endorsement as such gives an impression that the said dying declaration came to be tampered subsequently. 10. In normal circumstances, we would have ignored that note on page 3 of the dying declaration Exh.88. However, it has another angle. From evidence of P.W.14 Mangalsing Pardeshi, Head Constable, the prosecution has proved the letter addressed by Taluka Police Station, Sangamner to Naib Tahsildar containing a request to record dying declaration of deceased Rekha. That letter is at Exh.89. On the back side of that letter, there is a writing written in handwriting of P.W.14 Mangalsing Pardeshi, who has recorded this dying declaration Exh.88. We need it fit to reproduce that handwritten portion for better understanding and and that portion exhibited at Exh.91 reads, thus – [Emphasis supplied] 11. At this juncture, we also feel it necessary reproduce page 3 of the dying declaration at Exh.88 recorded by P.W.14 Mangalsing Pardeshi, Head Constable and it reads, thus - 12. Conjoint reading of both these documents i.e. handwritten portion of P.W.14 Mangalsing Pardeshi at Exh.91 and page 3 of dying declaration at Exh.88 goes to show that in fact, the hand written portion at Exh.91 could have been third page of this dying declaration at Exh.88 as both the writings are conveying the same meaning except cause of sustaining burns. Exh.91 denotes that deceased Rekha was prompted to indulge in self-effacement by accused persons. Exh.91 denotes that deceased Rekha was prompted to indulge in self-effacement by accused persons. What was an occasion for PW14 Mangalsing to write the document at Exh.91 resembling the dying declaration Exh.88 is a factor which went unexplained in the evidence adduced by the prosecution. Thus, a reasonable doubt lurks in judicial mind that P.W.14 Mangalsing Pardeshi, Head Constable, might have tampered with this officially recorded dying declaration Exh.88 in order to bolster up prosecution case by converting it from suicidal burns to homicidal burns and by attributing authorship of those homicidal burns to accused persons. 13. Be that as it may, the next dying declaration [Exh.93] of deceased Rekha was recorded on 28.5.2008 by P.W.15 Shaikh Najir Abdul Gani, P.S.I. at Police Taluka Station. In this third dying declaration, deceased Rekha came up with a total different story about sustaining burns by her. This dying declaration [Exh.93] contains declaration of deceased Rekha to the effect that respondent – accused No.1 Vijay told her that he has married Nirmala Kisan Dhanwate and therefore, she [Rekha] told this fact to her mother, uncle and maternal uncle. Then, as per the declarant, by taking leave in the month of March and by giving some false reason to her husband, she went to the house of Nirmala to verify this fact and found the disclosure of her husband / accused No.1 to be true. The declarant further alleged that at that time, said Nirmala and her parents tried to assault her. She further stated that on her way back, her husband, father-in-law and brother-in-law met her. At that time, father of Nirmala was also present. She further stated that, they all assaulted her on the road. Thereafter, the declarant has given cause of sustaining burn injuries by her. According to her, at her house, her husband / accused No.1, threw a burning match stick on her person and set her on fire. 14. Apart from these two dying declarations relied on by the prosecution, prosecution is also relying on four oral dying declarations of the deceased Rekha allegedly made by her to her near and dear ones. According to her, at her house, her husband / accused No.1, threw a burning match stick on her person and set her on fire. 14. Apart from these two dying declarations relied on by the prosecution, prosecution is also relying on four oral dying declarations of the deceased Rekha allegedly made by her to her near and dear ones. P.W.2 Pandurang Mhasu Gaikwad and P.W.4 Vijaykumar Lahanu Jethe uncles of deceased Rekha unanimously stated that Rekha told them that quarrel took place between her and her husband Vijay and in the course of that quarrel, accused Vijay threw a burning match stick, causing burns to her. On the same line, P.W.6 Ashok Pandurang Jethe, her another uncle has stated that as per narration of deceased Rekha, in the course of quarrel, her husband Vijay set her on fire. On this backdrop, P.W.3 Sumanbai Laxman Dhanwate – mother of deceased Rekha has stated totally different disclosure of Rekha to her. As per her version, Rekha told her that in the night hours, somebody dropped burning match stick on her causing burns to her. 15. We may note that two officially recorded dying declarations relied on by the prosecution viz. Exhs.88 and 93 are giving entirely divergent version of deceased Rekha about sustaining burns. Two different stories are disclosed by her in both these dying declarations and ultimately she has stated in both these declarations that it was her husband who caused burn injuries to her. In such a situation, let us examine whether the spot panchanama corroborates version of the deceased. The spot came to be examined by P.W.14 Mangalsing Pardeshi, Head Constable, on 26.5.2008 in presence of panch witness P.W.11 Vilas Khandagale. The spot was official residence provided to the couple in the premises of the Ashram School. In the first room of that house, Investigating Officer found partially burnt plastic mat as well as pillow. Burnt pieces of gown of deceased Rekha were also found at that place. In front of bathroom of that house, wet half burnt gown as well as petticoat were found. All these articles were seized while recording spot panchanama (Exh.82). These cloths of deceased Rekha were subjected to chemical analysis by the Investigating Officer. Report of the Chemical Analyzer is at Exh.72. In front of bathroom of that house, wet half burnt gown as well as petticoat were found. All these articles were seized while recording spot panchanama (Exh.82). These cloths of deceased Rekha were subjected to chemical analysis by the Investigating Officer. Report of the Chemical Analyzer is at Exh.72. This report shows that burnt pieces of gown as well as half burnt gown and petticoat of deceased Rekha were stained with kerosene and residues of kerosene were found on all these clothes. This evidence rather contradicts the dying declaration of deceased Rekha. She has no where disclosed that initially her husband drenched her with kerosene and then he ignited her. Finding of kerosene residues on the clothes of deceased Rekha raises a reasonable doubt in mind that deceased Rekha might have died suicidal death after sprinkling kerosene on her person and then setting herself ablaze. The document at Exh.91 which appears to be a discarded portion of officially recorded dying declaration [Exh.88] by P.W.14 Mangalsing Pardeshi pointing out suicidal burns, strengthens this doubt on the prosecution case. 16. At this juncture, let us examine the very first officially recorded dying declaration of deceased Rekha which was suppressed by the prosecution and proved by the defence through D.W.1 Ashok Rajaram Kodam, Assistant Sub Inspector of the Taluka Police Station. This dying declaration at Exh.99 shows that on 24.5.2008 at about 8.30 p.m., declarant Rekha was igniting stove for cooking food and in that process, the stove flared up and Rekha caught fire. This dying declaration shows that Rekha rushed to first room of her house where her husband poured water and extinguished fire. It is worthwhile to note that this dying declaration Exh.99 was attested by parental relative of Rekha namely, Sunil Jethe. At this juncture, it is worthwhile to note that burnt gown and petticoat of deceased Rekha was found wet by the Investigating Officer as noted in spot panchanama Exh.82. Thus, the spot panchnama is giving credence to the truthfulness of the dying declaration at Exh.99 pointing out sustaining accidental burns by Rekha. 17. To conclude, we are having inconsistent dying declarations of deceased Rekha on record which are pointing out that her death may be accidental death, suicidal death or homicidal death. There is no scope to determine as to which one of these dying declaration is truthful. 17. To conclude, we are having inconsistent dying declarations of deceased Rekha on record which are pointing out that her death may be accidental death, suicidal death or homicidal death. There is no scope to determine as to which one of these dying declaration is truthful. Since the sphere of scrutiny of dying declaration is restricted area, this court cannot afford to sideline such material divergence in dying declarations of deceased Rekha and naturally, therefore, it is not safe to place reliance on these dying declarations. As such, there is other alternative but to reject all these dying declarations of deceased and benefit of doubt as such ultimately goes to the accused persons. As pointed out, her oral dying declarations disclosed in cryptic manner by her near and dear ones are also not consistent and trustworthy. They are not giving corroboration from other evidence on record. 18. In the result, we find no infirmity in the judgment of the learned trial Court so far as acquittal of respondents for the offence punishable under Section 302 r.w. 34 of the Indian Penal Code is concerned. Reasonable view seems to have been taken by the learned trial Court on this aspect. 19. The next charge levelled against the respondent – accused is under Section 498A of the Indian Penal Code. According to the prosecution case, respondent – accused illtreated deceased Rekha and subjected her to cruelty by levelling insinuations. that she is unable to beget a child. To prove cruelty, prosecution has examined witnesses namely, P.W.2 Pandurang Gaikwad, P.W.4 Vijaykumar Jethe, who are uncles of deceased and P.W.3 Suman Dhanwate who is her mother. Evidence of these three witnesses go to show that accused persons were not providing food to deceased Rekha, they were instigating her husband Vijay to perform second marriage and on their instigation, accused Vijay used to beat her mercilessly in order to obtain her consent for second marriage. This, according to the prosecution, amounts to cruelty to a married woman. The concept of cruelty varies from place to place and person to person. Leveling the allegation that a married woman is infertile and incapable of bearing a child may amount to mental cruelty to her. However, from the evidence on record, it is seen that initially deceased had given birth to a female child which died subsequently. The concept of cruelty varies from place to place and person to person. Leveling the allegation that a married woman is infertile and incapable of bearing a child may amount to mental cruelty to her. However, from the evidence on record, it is seen that initially deceased had given birth to a female child which died subsequently. We find that in the case in hand, evidence regarding cruel treatment to the deceased is coming from near and dear ones of deceased. The natural tendency of such witnesses is to exaggerate facts even unconsciously and this tendency is noted by the Apex Court in the matter of Dalip Singh and others vs. The State of Punjab ( AIR 1953 SC 364 )as well as Sharad Birdhichand Sarda vs. State of Maharasthra ( AIR 1984 SC 1622 ). As such, one will have to test evidence of near and dear ones of deceased Rekha from other evidence available on record. The prosecution examined P.W.7 Sampat Chandu Kale – Head Master of the said Ashram School where deceased Rekha and her husband were working. P.W.7 Sampat used to reside in school premises itself where the couple was residing. His evidence shows that he was watching the couple right from the year, 2005. His evidence shows that the couple was residing happily and was leading a happy married life. As per evidence of this witness, there used to be no quarrel between them. There is no reason for PW7 Sampat to lie. We find his evidence trustworthy. In the wake of this evidence coming from mouth of an independent person, we find no fault in the conclusion of the learned trial Court in acquitting respondents – accused of the offence punishable under section 498A of the Indian Penal Code. 20. In the result, a plausible and reasonable view taken by the learned trial Court in acquitting accused persons needs no interference and, therefore, the order: ORDER Application is rejected and consequently, leave is refused.