Research › Search › Judgment

Bombay High Court · body

2018 DIGILAW 858 (BOM)

Dinesh v. State of Maharashtra

2018-03-23

B.R.GAVAI, M.G.GIRATKAR

body2018
JUDGMENT : B.R. Gavai, J. 1. The appeal challenges the Judgment and Order passed by the learned Sessions Judge, Pandharkawada in Sessions Trial No. 8 of 2011 thereby convicting the appellant for the offences punishable under Sections 302 and 498A of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2,000/-, in default to suffer simple imprisonment for one year for the offence punishable under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for six months for the offence punishable under Section 498 A of the Indian Penal Code. The prosecution case, as could be gathered from the material placed on record, is thus : Accused Dinesh was married to deceased Vaishali. They are blessed with two children namely Nisarga aged about 7 years and Chirag aged about 5 years. They were residing at village Durgapur, Tq. Zari Jamni, District Yavatmal. It is the prosecution case that the accused used to ill-treat the deceased under the influence of liquor. He also had suspicion on her character. On number of occasions, she was driven out. However, on account of intervention of elders and in order to take care of welfare of the children, the deceased continued to reside with the accused. On 20.10.2010, at around 10 a.m., Nagorao Dhengale, brother of deceased received information from one Shriram Bhoyar that Vaishali got burnt and she was shifted to Rural Hospital, Zari. She was given certain preliminary treatment at Zari and thereafter, on medical advice, she was shifted to Yavatmal. Deceased died in the intervening night of 24th October, 2010 and 25th October, 2010. The First Information Report came to be lodged by Nagorao Dhengale (PW-1) on 27.10.2010. On the basis of oral report of Nagorao (PW-1), the F.I.R. was registered. Upon completion of investigation, charge sheet came to be filed in the Court of learned Judicial Magistrate, First Class, Zari. Since the case was exclusively triable by the learned Sessions Judge, it came to be transmitted to the Court of Sessions at Pandharkawada. Charges were framed below Exh. 9. The accused pleaded not guilty and claimed to be tried. At the conclusion of trial, the learned trial Judge passed the order of conviction and sentence, as aforesaid. 2. Since the case was exclusively triable by the learned Sessions Judge, it came to be transmitted to the Court of Sessions at Pandharkawada. Charges were framed below Exh. 9. The accused pleaded not guilty and claimed to be tried. At the conclusion of trial, the learned trial Judge passed the order of conviction and sentence, as aforesaid. 2. With the assistance of the learned A.P.P. and the learned Counsel for the appellant, we have scrutinized the evidence on record. 3. The conviction, as recorded by the learned trial Judge basically on the basis of dying declaration recorded by Rambhau Domaji Bende (PW-7) was, at the relevant time, working as an ASI. Oral dying declaration is allegedly given to Nagorao (PW-1) and Pratibha Telang (PW-5), sister of deceased. 4. We have scrutinized the evidence of Rambhau Bende (PW-7) who has allegedly recorded the written dying declaration. It is to be noted that the deceased succumbed to the burn injuries on 24.10.2010. The dying declaration below Exh. 44 is alleged to have been given on 20.10.2010, at 14.35 hours. Perusal of the said dying declaration would reveal that no doubt that the said dying declaration states that, after quarrelling, the appellant poured kerosene on the person of deceased from the can and thereafter, took burning stick from the hearth (chulha) and set her on fire. She states that she was then brought by the accused to the hospital at Zari and thereafter, at Yavatmal. 5. No doubt that the aforesaid dying declaration records endorsement of Medical Officer. Though the dying declaration is recorded on 20.10.2010, for the reasons best known to prosecution, the F.I.R. is registered for the first time on 27.10.2010 i.e. after a period of seven days. Rambhau (PW-7) in his evidence even states that he does not remember name of the doctor who has given said certificate on dying declaration. Though the deceased was alive for 4 to 5 days, no explanation is given as to why the dying declaration was not recorded by the Executive Magistrate. 6. Prosecution has not at all explained the delay of seven days in lodging the F.I.R. when the dying declaration was recorded on 20.10.2007 itself. In that view of the mater, we find that it will not be safe to rest the order of conviction on the basis of such dying declaration. 7. 6. Prosecution has not at all explained the delay of seven days in lodging the F.I.R. when the dying declaration was recorded on 20.10.2007 itself. In that view of the mater, we find that it will not be safe to rest the order of conviction on the basis of such dying declaration. 7. That leaves us with the oral dying declaration allegedly given to Nagorao Dhengale (PW-1) and Pratibha (PW-5), brother and sister respectively of the deceased. Both these witnesses are interested witnesses. No doubt that merely because the witnesses are interested, it cannot be a ground to discard their testimonies. However, their evidence is required to be scrutinized with greater caution and circumspection. Only if their evidence is found to be trustworthy, reliable and cogent, conviction can be based upon the same. Nagorao (PW-1) is educated person having B.A.B. Ed. Degree and is working as a teacher. In his evidence, he clearly admits that, after funeral was over, his father Ramdas, brother Sheshrao, mother Gangabai and neighbour Kishor Yellewar were present and that he had discussed the issue with the above persons. He has lodged the First Information Report even after waiting for a day after funeral. There is a clear admission in the evidence of Pratibha (PW-5) that, till Vaishali was alive, police did not come to the hospital. She states that, after the death of Vaishali, police came in the hospital. As such, we find that it will not be safe to rely on the evidence of these two witnesses who have waited from 20th October till the death of deceased which has occurred during the intervening night of 24.10.2013 and 25.10.2013 and thereafter, lodged F.I.R. only on 27.10.2013. 8. In that view of the matter, we find that the conviction for the offence punishable under Section 302, as recorded, is patently erroneous. That leaves us with the conviction of the appellant for the offence punishable under Section 498A of the Indian Penal Code. Perusal of evidence of all the witnesses would reveal that there is not even a whisper that there was ill-treatment to the deceased on account of non-fulfillment of demand of dowry. The only allegation is that the accused used to suspect character of the deceased and under the influence of liquor, he used to ill-treat her. Perusal of evidence of all the witnesses would reveal that there is not even a whisper that there was ill-treatment to the deceased on account of non-fulfillment of demand of dowry. The only allegation is that the accused used to suspect character of the deceased and under the influence of liquor, he used to ill-treat her. We find that such an evidence would not be sufficient to bring the case within the ambit of Section 498A of the Indian Penal Code. Hence, conviction of the appellant under Section 498A of the Indian Penal Code would not be sustainable. In the result, the following order is passed. (1) The appeal is allowed. (2) The order of conviction and sentence, as recorded by the learned Additional Sessions Judge, Pandharkawada for the offences punishable under Sections 498A and 302 of the Indian Penal Code is set aside. The appellant is acquitted of the charges charged with. (3) The appellant is directed to be set at liberty forthwith, if not required in any other case or crime. (4) The appellant is already on bail. His bail bonds shall stand cancelled. (5) Fees of the learned Counsel appearing for the appellant are quantified at Rs. 5,000/-.