Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 1917 (BOM)

Kishan v. State of Maharashtra

2019-08-14

K.K.SONAWANE, T.V.NALAWADE

body2019
JUDGMENT : K.K. SONAWANE, J. 1. This appeal calls-in-question the legality and propriety of the impugned Judgment and order of conviction and resultant sentence, in Sessions Case No. 71 of 2012 rendered by the learned Additional Sessions Judge, Kandhar, District Nanded, dated 25-04-2014. The appellant-accused is convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and he is sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/-, in default, to suffer further rigorous imprisonment for six months. The appellant invoking remedy under Section 374 of the Code of Criminal Procedure,1973 (Cr.P.C.) preferred the present appeal to redress his grievances. 2. The prosecution case, in short, compass is that the ill-fated victim Girja w/o. Kishan Wane was married with appellant-accused near about nine years prior to the alleged incident. She begotten one son and daughter during wedlock from husband Kishan. The victim Girja was residing with the husband in joint family comprising in-laws, brother-in-law and his wife. They all eking livelihood by doing agricultural work. It has been alleged that since marriage the victim Girja was subjected to maltreatment by the husband and in-laws for the reasons that she was not doing the domestic work in proper manner. She was also not behaved with other family members properly. The maltreatment and harassment of victim Girja became more severe since last year of the incident. The victim Girja also ventilated her grievances about torture to her parents, but, they gave understanding and send her back for cohabitation. 3. According to prosecution, prior to 15 days of the incident, the cash amount of Rs.5000/- was stolen by somebody else from the house. The husband and in-laws blamed the victim Girja and cast allegation that she had committed theft of Rs.5000/-. The victim Girja was tortured by the husband and in-laws on that count. She was also beaten-up by the appellant-husband for the allegation of theft of Rs.5000/-. It has been alleged that on the day of incident i.e. 26-06-2012 in the morning hours, the husband and in-laws picked-up quarrel with the victim Girja and insisted her to return the stolen cash of Rs.5000/-. They also hurled abuses and assaulted to the victim Girja by kicks and fists. Thereafter, the husband left the house and went to field. The allegation of theft of cash amount hurts and offended the victim Girja. They also hurled abuses and assaulted to the victim Girja by kicks and fists. Thereafter, the husband left the house and went to field. The allegation of theft of cash amount hurts and offended the victim Girja. She remained at home and slept without taking any food. The aspersion caused humiliation to her. Meantime, at about 3.00 p.m., her husband returned to home. The in-laws were at home. The brother-in-law and his wife were in the field. The appellanthusband, on seeing the wife-victim Girja, became angry. He started hurling abuses and beaten-up wife with kicks and fists. In the fight, he poured the kerosene oil from the bottle and put her on fire by igniting match stick. The cloths of victim Girja catches fire. The victim yelled for help and came running out of the house. The neighbourer thronged at the spot and extinguished the fire. The neighbourer, husband and in-laws escorted her to the hospital at Kandhar. Thereafter, she was shifted to the Government Hospital at Nanded. The police personnel deputed at the police chouki of Government Hospital, Nanded, attended the victim Girja and in presence of concerned doctor of the burn ward, recorded her statement. The victim Girja blamed the husband and in-laws for her burns. She divulged that her husband and in laws set her ablaze by pouring kerosene oil on her person. 4. Pursuant to FIR of victim Girja, the police of Loha Police Station registered the Crime No. 60 of 2012 for the offence under Section 307,323 and 504 read with Section 34 of IPC. The requisition was sent to Executive Magistrate for recording statement of victim Girja. The Ex-Magistrate visited to the injured Girja and recorded her dying declaration. She reproduced the overt-act of husband and in-laws and held them responsible for her burns. The Investigation Officer (IO) rushed to the scene of occurrence and drawn the panchnama of spot. He recorded statement of witnesses acquainted with the facts of the case. The victim since incident on 26-06-2012, was hovering in between life and death. Eventually, during medical treatment, on 01-07-2012 she succumbed to burns. The dead body was referred to autopsy after inquest panchnama. The Medical Experts conducted postmortem and opined that the victim Girja died due to septicemia following burns. The victim since incident on 26-06-2012, was hovering in between life and death. Eventually, during medical treatment, on 01-07-2012 she succumbed to burns. The dead body was referred to autopsy after inquest panchnama. The Medical Experts conducted postmortem and opined that the victim Girja died due to septicemia following burns. The IO collected the relevant documents of postmortem, etc., and after compliance of procedural formalities, he preferred the charge-sheet bearing Sessions Case No. 71 of 2012. 5. The learned Sessions Judge framed the charges against appellant-husband and in-laws of victim Girja. The accused pleaded not guilty and claimed for trial. The prosecution, in order to bring home guilt of the accused, adduced the evidence of in all six witnesses in this case. The learned Additional Sessions Judge also recorded statement of accused prescribed under Section 313(1)(b) of Cr.P.C. The learned Additional Sessions Judge considered the oral and circumstantial evidence adduced on record and after hearing both sides, held the appellant-husband guilty for the offence of murder of victim Girja punishable under Section 302 of IPC. However, the learned trial Court exonerated the in-laws for the charges pitted against them. Being dis-satisfied with the findings of conviction and resultant sentence imposed by the learned trial Court, the appellant-accused preferred the present appeal for redressal of his grievances. 6. Mr. V. J. Dixit, learned Senior Advocate appearing for appellant-accused vehemently submits that the impugned Judgment and order of conviction and resultant sentence is erroneous, illegal and against the principle of law. The learned trial Court did not appreciate the circumstances on record in its proper perspective, which caused injustice to the appellantaccused. The learned trial Court committed error in appreciating the dying declarations of deceased for adverse inference against accused. The learned Senior Counsel Shri. Dixit drawn attention towards evidence of PW-4 Dr. Patil, who attended the patient Girja, for medical treatment to her burns. He deposed that at the time of hospitalization, the injured Girja stated the history that she sustained burns accidentally. According to learned Senior Counsel, the accused get the victim Girja admitted in the hospital immediately after the incident. They remained accompanied with the victim Girja continuously in the hospital. There was quarrel between spouses on account of missing of cash of Rs.5000/- from the house. In view of circumstances on record, the possibility of suicidal attempt on the part of victim can not be ruled out. They remained accompanied with the victim Girja continuously in the hospital. There was quarrel between spouses on account of missing of cash of Rs.5000/- from the house. In view of circumstances on record, the possibility of suicidal attempt on the part of victim can not be ruled out. The so-called dying declarations are the product of dazed mental condition of victim Girja. She implicated the husband and in-laws only to vent wrath and wreak vengeance against them. The learned Senior Counsel Shri. Dixit urged that the alleged dying declarations are not genuine, true and literal one. It would unjust and improper to draw adverse inference on the basis of such suspicious and dubious dying declaration. The learned Senior Counsel criticized the mode and manner, in which, the dying declarations (Exhibits-33 and 39) came to be recorded by the Police Personnel and Executive Magistrate. He has also pointed out the delay in recording the alleged dying declarations, which looses its significance. The father of victim PW-1 Dnyanoba turned hostile. He did not support the prosecution case. The learned Senior Counsel relied upon the legal ratio laid down by the Honourable Apex Court in the case of Laxman Versus State of Maharashtra, (2002) 6 SCC 710 . 7. The learned APP raised the objection to the contentions propounded on behalf of appellant-accused and submits that the learned trial Court correctly appreciated the dying declarations of the victim Girja and drawn adverse inference against the appellant-accused. Both the dying declarations recorded by Government personnels are consistent and reliable one. There was no reason for the victim to implicate the husband in this case by making false allegation. 8. We have given anxious consideration to the arguments canvassed on behalf of both sides at length. We have also appreciated the oral and circumstantial evidence adduced on record on behalf of prosecution. It is not put in controversy on behalf of appellant-accused that there was burning incident occurred with the victim Girja on 26-06-2012 in the noon hours at the residential house located in village "Khudyaci Wadi" . In the alleged incident, she received 76 % burns. She was immediately escorted to the hospital at Kandhar, and thereafter, shifted to Nanded, for better medical treatment. The concerned Doctors took efforts to resuscitate the victim Girja, but eventually, she succumbed to burns on 01-07-2012. In the alleged incident, she received 76 % burns. She was immediately escorted to the hospital at Kandhar, and thereafter, shifted to Nanded, for better medical treatment. The concerned Doctors took efforts to resuscitate the victim Girja, but eventually, she succumbed to burns on 01-07-2012. It is also an admitted facts that the Medical Experts conducted the postmortem on the dead body of victim Girja (Exhibit-28) and opined that the victim Girja died due to septicemia following 76 % burns. According to prosecution, the burn injuries of deceased Girja were homicidal in nature and appellant-accused was the author of the burn injuries sustained to her. 9. In order to establish the guilt of the appellant-accused, prosecution examined PW-5 PHC Subhash Chopde deputed at Police Chouki, Government Hospital, Nanded. He deposed that on 27-06-2012, the patient Girja Kishan Wane came to be admitted in the hospital for her burns. He visited to the patient Girja and in consultation with PW-4 Dr. Vaibhav Patil, he recorded the dying declaration of victim Girja (Exhibit-33). He obtained certificate of fitness of patient Girja from the PW-4 Dr. Patil. Pursuant to dying declaration recorded by PW-5 PHC Chopde, the concerned PSO of Loha Police Station, PW-2 ASI Shri. Madhav Ganne registered the Crime No. 60 of 2012 and set the penal law in motion. The dying declaration (Exhibit-33) came to be recorded by PW-5 PHC Chopde at about 8.00 a.m. to 8.30 a.m. on 27-06-2012. 10. Thereafter, the PW-3 Shri. Kamble, Executive Magistrate attended the injured Girja in the hospital and recored her statement to ascertain the cause of her burn. The victim divulged that there was quarrel in between herself and her husband as well as in-laws on account of theft of cash amount from the house. She was beaten-up by kicks and fists and in a fit of rage her husband doused her with kerosene oil and set her ablaze. The outsiders helped her for extinguishing the fire and took her to hospital. The dying declaration recorded by PW-3 Shri. Purbhaji Kamble, Executive Magistrate is at (Exhibit-39). 11. The prosecution made abortive attempt to adduce evidence of PW-1 Dnyanoba, father of victim Girja. But, he made volte-face and turned hostile. He was found reluctant to cast allegations against accused about homicidal death of his daughter. The dying declaration recorded by PW-3 Shri. Purbhaji Kamble, Executive Magistrate is at (Exhibit-39). 11. The prosecution made abortive attempt to adduce evidence of PW-1 Dnyanoba, father of victim Girja. But, he made volte-face and turned hostile. He was found reluctant to cast allegations against accused about homicidal death of his daughter. It is obvious from the evidence of aforesaid witnesses that the entire prosecution case was hinges on the multiple dying declarations (Exhibits-33 and 39) of victim Girja. It is to be noted that except the evidence in the form of dying declarations, referred above, no any other sort of evidence available on record to evaluate the guilt of the accused. 12. It is the rule of law that the dying declaration is the relevant and material evidence. It is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath, so that, its truth could be tested by cross-examination. Therefore, the Courts have to apply the strictest scrutiny of closest circumspection of the statement before acting upon it. The great solemnity and sanctity are attached to the words of dying man because a person on the verge of death is not likely to tell lies or to concoct a case to implicate an innocent person, yet the Court has to be an guard against the statement of the deceased being a result of either tutoring, prompting or a product of imagination of the dying person. It is to be noted that once the Court is satisfied that the dying declaration of the deceased is true and believable one, it can base the conviction. But, if it is found suspicious, dubious and does not inspire confidence, it would not legitimate for the Court to act upon such doubtful dying declaration for adverse inference against the accused. It is imperative for the Court to get satisfy itself that the declaration reflects a truthful version and for that purpose, the Court must subject the relevant evidence to a close and careful scrutiny. Moreover, if the version contained in the dying declaration is found inconsistent with the actual facts collected during the course of investigation, the dying declaration should not be attached much importance. 13. It is true that the victim Girja blamed the husband and inlaws for her burns. But, the learned trial Court absolved the inlaws from the charges pitted against them. 13. It is true that the victim Girja blamed the husband and inlaws for her burns. But, the learned trial Court absolved the inlaws from the charges pitted against them. Now, the question emerges for appreciation about the overt-act of husband-accused for homicidal death of deceased Girja. At this juncture, we have scrutinized minutely the attending circumstances of the matter. It cannot be ignored that the victim Girja was in the company of accused since last nine years for cohabitation. She was also the mother of two children. The victim cast allegation of maltreatment on the part of accused for reasons trifle in nature. Be that as it may, the alleged maltreatment has no any nexus or proximity with the burning incident of victim Girja. According to prosecution, the accused-husband blamed the wife to give the cash stolen by her. There was quarrel between the spouses, and thereafter, the so-called burning incident occurred with victim Girja. 14. It is worth to mention that while appreciating the dying declarations of victim Girja (Exhibits-33 and 39), it is also imperative to take into consideration the subsequent conduct and demeanor of accused after the alleged incident. Undisputedly, it is relevant under Section 8 of the Evidence Act. In the dying declaration (Exhibit-33), the victim Girja verbalized that when she was engulfed in flames, she yelled for help and came running out of the house. Thereafter, the neighbourer thronged at the spot and extinguished the fire. The neighbourer as well as her husband and mother-in-law escorted her to hospital at Kandhar, and after first-aid treatment, she was shifted to Government Hospital at Nanded, for better medical treatment. It has brought on record that since occurrence of burning incident till her death, the accused were present in the hospital for taking care of injured Girja. They did not make any attempt to hide themselves or to get themselves absconded with an intention to escape from the clutches of law. The panchnama of scene of occurrence shows that there was endeavour to extinguish fire by pouring water. The victim also stated these facts in her dying declarations that she came out of the house engulfed with flames and at that time the outsiders attempted to extinguish the fire. The panchnama of scene of occurrence shows that there was endeavour to extinguish fire by pouring water. The victim also stated these facts in her dying declarations that she came out of the house engulfed with flames and at that time the outsiders attempted to extinguish the fire. Had there been any illintention of appellant-accused to commit murder of victim Girja by putting her on fire, then the accused would have not allowed her to go out of house in the courtyard. These circumstances are not only inconsistent with the guilt of the appellant-accused, but, more consistent with his innocence. 15. At this stage, we find force in the contentions propounded on behalf of learned Senior Counsel Shri. Dixit that the circumstances on record adumbrates that the victim, due to quarrel with the husband on account of missing of cash amount from house, might have committed suicide. In view of bickering between spouses, the possibility of suicidal attempt on the part of victim cannot be ruled out. The principle of criminal law contemplates that after appreciation of evidence on record, if the judicial mind would tend to wobble between two plausible hypothesis as to whether the death was homicidal or suicidal one, then certainly the accused-appellant is entitled for benefit of the same. 16. In the matter-in-hand, it was not in dispute that there were multiple dying declarations incriminating in nature against the accused. But, the credibility and truthfulness of these dying declarations found suspicious and doubtful. It would hard to believe that there was motive for the husband-accused to eliminate the wife-mother of two children, after span of nine (9) years of marital life, for the reason that she had stolen the cash amount of Rs.5000/- from the house. In contrast, the circumstances on record demonstrate that the victim in a fit of rage attempted to commit suicide and blamed the husband and inlaws for her burns to wreak vengeance or vent the wrath. In such peculiar circumstances, it would unsafe to fasten the guilt on the accused bare on the basis of dying declarations (Exhibits-33 and 39) of the deceased Girja. 17. It is also significant to note that the parents of deceased Girja did not support the prosecution case. The neighbourer, who thronged at the spot to extinguish the fire, must have received the opportunity to have conversation with the victim Girja about cause of her burns. 17. It is also significant to note that the parents of deceased Girja did not support the prosecution case. The neighbourer, who thronged at the spot to extinguish the fire, must have received the opportunity to have conversation with the victim Girja about cause of her burns. But, unfortunately, no any neighbour or independent witness came forward to support the prosecution case for homicidal act of the accused. The subsequent conduct and demeanor of the accused fortify and strengthen their innocence. These all circumstances did not allow us to subscribe the theory propounded on behalf of prosecution for homicidal act on the part of appellant-accused resulting into death of victim Girja. In view of aforesaid discussion, we do not find it necessary to go deep into the allegation to examine other ramification of the crime to evaluate the guilt of the appellant-accused. 18. In the above premises, we are of the considered opinion that the evidence of prosecution witnesses adduced on record is not sufficient to nail the accused-husband in this case for allegation of murder of wife-Girja. There are clouds of doubt in the prosecution case. The learned trial Court did not consider the attending circumstances of the case in proper manner and kept implicit reliance on the version of victim Girja recored in her dying declarations (Exhibits-33 and 39). But, the statement of victim Girja verbalized in the so-called dying declarations did not reflect true state of facts. The circumstances found consistent with the innocence of the accused and inconsistent with his guilt. Therefore, we do not find any impediment to conclude that the impugned findings of conviction and resultant sentence of the appellant-accused expressed by the learned trial Court are erroneous, imperfect and not within ambit of law. The impugned Judgment and order being perverse in nature deserves to be setaside and quashed. 19. In sequel, the Criminal Appeal is allowed. The Judgment and order of learned Additional Sessions Judge, Kandhar, District Nanded, delivered in Sessions Case No. 71 of 2012, on 25-04-2014, convicting the present appellant Kishan Rama Wane for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set-aside. He stands acquitted of that offence. 19. In sequel, the Criminal Appeal is allowed. The Judgment and order of learned Additional Sessions Judge, Kandhar, District Nanded, delivered in Sessions Case No. 71 of 2012, on 25-04-2014, convicting the present appellant Kishan Rama Wane for the offence punishable under Section 302 of the Indian Penal Code is hereby quashed and set-aside. He stands acquitted of that offence. The appellant is in jail, he is to be released forth-with, after obtaining bail bonds of the amount of Rs.15,000/- with one solvent surety of like amount be obtained from him for the period of six months as provided under Section 437-A of the Code of Criminal Procedure,1973. The bail bonds of accused-appellant to continue for six (06) months vide Section 437-A of Cr.P.C. The fine amount, if any, deposited by the appellant is to be returned to him.