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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.761 OF 2002
THE STATE OF MAHARASHTRA )...APPELLANT
Age about 29 yrs. )
)
2 ANUSAYA DUNDA JADHAV )
Age about 49 yrs. )
)
3 SUNIL DUNDA JADHAV )
Age about 29 yrs., )
)
All residents of Sagaon, Varcha Pada, )
Taluka Kalyan, District Thane. )...RESPONDENTS
Mr.H.J.Dedhia, APP for the Appellant– State.
Mr.Shekhr Ingawale, Advocate for the Respondents.
JUDGMENT
1 This Appeal is filed by the State challenging the judgment and order of acquittal dated 12th March, 2002 passed in Sessions Case No. 989 of 1996 by 1st Ad-hoc Additional Sessions Judge, Kalyan, for the offences punishable under Sections 302, 498A read with 34 of the Indian Penal Code 1860 ( for short “IPC”).
2 It is the case of prosecution that informant’s daughter viz., Shaila (since deceased) was married to accused Sunil Dunda Jadhav (A-3) in the month of April 1990. She was treated well for about six months after the marriage. However, thereafter, accused Smt.Anusaya Dunda Jadhav - mother-in-law (A-2), Sadhana Suresh Jadhav - sister-in-law (A-1), Subhash Dunda Jadhav and A- 3 started harassing, abusing and beating her on account of domestic affairs. Even 2½ years prior to the lodging of report, all the accused had tried to set deceased on fire by pouring kerosene on her person and since then the deceased had started residing with her parents. avk 2/21
3 According to prosecution, however, on 16th September 1993 with the interventions of some advocates and others, accused assured that hereinafter they would treat the deceased properly and therefore, the deceased was sent to her conjugal home. She was treated well for about 1 to 1½ month and thereafter, again A-1 and A-2 started abusing and beating the deceased and asking her to bring monies from her father for household expenses. The informant-father had paid Rs.3000/- to the deceased.
4 The prosecution alleges that since last month, prior to the main incident, the accused had again started harassing, abusing and beating the deceased and used to ask her to bring monies from her parents. Even the informant-father was told by the deceased about illicit relations between A-1 and A-3.
5 On 7th February 1994 one Mohan Mali informed the informant about the burning of deceased and therefore, informant avk 3/21 and his wife rushed to the hospital. They came to know from the father of A-3 that in the night of 6th February 1994 the deceased and A-1 sustained burn injuries.
6 The informant after seeing the deceased in the hospital lodged the report against the accused on the ground of cruelty and abetting the deceased to commit suicide. On 7th February 1994, on the basis of report of informant, Manpada Police Station registered Crime No.21 of 1994 for the offences punishable under Sections 498A read with 34 of the IPC.
7 However, it appears from the record that on the very next day i.e. on 8th February 1994, a supplementary statement of informant-father again came to be recorded wherein he stated that the deceased told him that on 6th February 1994, in the night hours, A-3 came to the house and when she told that she had not taken any food from last two days and that there is nothing in the house and requested him to bring something, A-3 told her that he had no monies and that she should bring monies from her father. avk 4/21 Meantime, A-1 and A-2 also arrived on the scene. She was caught hold by A-3 and A-2 poured kerosene on her person while A-1 set her on fire by means of a matchstick.
8 It appears from the record that PW[8] Motiram Shripat Malche, Investigating Officer, visited the place of occurrence and drew Spot Panchnama. He also seized various articles from the spot and recorded statements of witnesses. He also came to know about the dying declaration recorded by Special Executive Magistrate and accordingly collected the same.
9 It then appears from the record that PW[9] Suresh Deoram Sonawane, Investigating Officer, also recorded the statements of some of the witnesses and after completion of investigation forwarded the charge-sheet against the accused.
10 To substantiate the charge against the respondentsaccused, the prosecution has examined as many as 9 witnesses and exhibited number of documents. The respondents-accused avk 5/21 were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short “the Cr.P.C.”) about the incriminating evidence and circumstances and they denied all of them as false.
11 Mr.Dedhia, learned APP, while assailing the impugned judgment and order of acquittal submitted that the finding of acquittal is based on improper appreciation of evidence led by the prosecution. The learned APP invited our attention to the dying declarations and submitted that the same are duly corroborated from the mouth of PW[1] and PW[5] – parents of the deceased. The learned APP further submitted that if the whole evidence adduced by the prosecution is read in proper perspective, then conclusion of guilt could have been arrived at by the learned Trial Judge. In the circumstances, the learned APP urged that the appeal deserves to be allowed.
12 None present from the side of respondents-accused when called. avk 6/21
13 We have carefully gone through the record with the able assistance of the learned APP. The important witnesses from the point of view of the prosecution are PW[1] informant-father, PW[3] Snehalata Kamlakar Kale – Special Executive Magistrate and PW[5] Kusum Kashinath Madhavi – mother of the deceased. Before we go through their respective testimonies, we find it apt to go through the evidence of PW[2] Dr.Dhondiram Tatoba Gokhale who performed autopsy on the dead body of the deceased. 14 PW[2] states in his evidence (Exh. 20) that on 11th February 1994 he was attached to Rukhminibai K.M.C. Hospital, Kalyan. The dead body of Shaila Jadhav i.e. the deceased was received from Dombivali Police Station and he performed an autopsy. It is his further evidence that he noticed that the dead body was having burns of 85% superficial and deep burns. The cause of death, according to him, was shock due to septicemia due to 85% burns, superficial and deep. He further opined that the injuries noted by him were sufficient to cause death in the avk 7/21 ordinary course of nature. He then proved the postmortem report at Exh. 51.
15 What is apparent from the evidence of PW[2] Medical Officer is that the deceased died because of septicemia due to 85% burns, superficial and deep. The prosecution has come with a case that it were the accused who authored the death of the deceased, in as much as, it were they who after dousing the deceased with kerosene, set her on flames. These factual aspects definitely need assessment of evidence led by the prosecution and therefore, we propose to go through the evidence of those material witnesses in right earnest as quoted by us hereinabove and relied on by the prosecution. 16 PW[1] Kashinath Nana Madhvi – informant and father of the deceased, has broadly supported the contents of the First Information Report (FIR) which are elaborately excerpted by us while narrating the case of the prosecution. However, some part of his evidence shows improvement over the contents of the FIR. avk 8/21 Before that, we categorically state here that the whole FIR contains vague and general accusations of demand of monies at the hands of the accused and that too for running the domestic affairs of the family of the accused. There is no specific demand of amount anywhere alleged in the FIR. Now, if the examinationin-chief of the PW[1] informant is to be seen, then it shows that once this witness had sent rice and some monies for the expenses of the deceased. This is nowhere claimed in the FIR. Similarly, his evidence shows that he also had tried to persuade A-3’s sisterin-law i.e. A-1 and his mother i.e. A-2 to have happy going with the deceased but A-2 had put a condition that if this witness gives Rs.20,000/-, they would treat her daughter properly. This is again nowhere alleged in the FIR.
17 Coming to the main incident of burning, his evidence shows that after having coming to know about the incident of burning, he rushed to Shirodkar Hospital where the deceased was admitted. He made enquiries with his daughter as to how she got burnt to which she asked this witness to transfer her from avk 9/21 Shirodkar Hospital to another hospital and then only she would tell him as to what had happened. According to evidence of this witness, he, therefore, transferred his daughter from Shirodkar Hospital to Shriram Hospital and on 8th February 1994 his daughter told him that she was burnt by setting her on fire by her husband Sunil (A-3), mother-in-law (A-2) and Sadhana (A-1) i.e. wife of brother of her husband. His evidence further shows that he went to Dombivali Police Station and informed the police accordingly.
18 It may be noted and which has been already noted by us while giving narration of facts that the FIR came to be lodged on 7th February 1994 whereas supplementary statement of father came to be recorded on 8th February 1994. The reason for giving supplementary statement on 8th February 1994 before the police was that on that day, he came to know the factual background and the circumstances under which his daughter came to be burnt. Interestingly, supplementary statement nowhere shows that his daughter had put a condition before him to first get her admitted avk 10/21 to some another hospital and then only she would tell as to how and under what circumstances she got burn injuries. Even PW[9] Investigating Officer in his cross-examination states that while recording the supplementary statement, the informant had not told about the condition put forth by his deceased daughter about the circumstances leading to the burn injuries.
19 Secondly, the supplementary statement clearly shows the specific role played by all the three accused i.e. to say the supplementary statement shows that while the deceased was caught hold of by A-3, A-2 poured kerosene on her person and A-1 set her ablaze by igniting a matchstick. This specific role is nowhere attributed in the substantive evidence by the informant. What is deposed is that he was told by the deceased that she was burnt by setting her on fire by all the accused. Thus, there is perceptible and discernible difference between the version and the supplementary statement of this witness. avk 11/21 20 PW[5] Kusum Kashinath Madhvi – mother of the deceased, on her part, in her evidence (Exh. 28) toes the line of PW[1] husband. Her testimony, for the same reason as is assigned to the PW[1] informant, cannot be accepted.
21 Now what remains is the two dying declarations. In Sampat Babso Kale and Another vs. State of Maharashtra[1] the Hon'ble Apex Court has held that no doubt a dying declaration is an extremely important piece of evidence and where the Court is satisfied that the dying declaration is truthful, voluntary and not a result of any extraneous influence, the Court can convict the accused only on the basis of a dying declaration.
22 We need not refer to the entire law on the point of dying declaration but it would be apposite to refer to the judgment of the Hon'ble Apex Court in Sham Kankaria vs. State of Maharashtra[2] wherein it is held as follows: 1 (2019) 4 Supreme Court Cases 739 avk 12/21 “Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence………….”
23 Keeping in mind the above pronouncements, we would like to note whether these dying declarations inspire full avk 13/21 confidence of this Court in their correctness. Interestingly, both these dying declarations are recorded by one and the same person viz., PW[3] Snehalata Kamlakar Kale, Special Executive Magistrate. 24 PW[3] states in her evidence (Exh. 23) that on 8th February 1994 she was acting as Special Executive Magistrate and was called by police for recording the dying declaration of Shaila Sunil Jadhav i.e. the deceased. Her evidence further shows that on 7th February 1994 also she had recorded her statement at Shirodkar Hospital.
25 According to PW[3] on 7th February 1994, the deceased had stated before her that her husband had gone to play cricket and she was cooking food in kitchen. At that time, due to stove her clothes caught fire and she received burn injuries. She then proved the said statement at Exh. 24.
26 From bare reading of statement at Exh. 24, one gets clear impression of the deceased having sustained accidental burn avk 14/21 injuries because of flickering flames of the stove on which she was cooking food. She did not attribute any motive or any foul play against any of the accused. In a sense, the accused were not held responsible for the incident in question. However, it is the statement dated 8th February 1994 which critically involves the accused in the incident. But then, the evidence of this witness is quite interesting to go through.
27 On 8th February 1994, on being summoned to Shriram Hospital, she went there. According to her, the scribing was over and police asked her to sign the document. After reading the statement, she signed the statement. According to her, whatever was written in the statement was not stated to her. She then proved her signature at Exh. 45. Since this witness had not fallen in line with the case of prosecution, with the permission of the Court, she was branded hostile. She was subjected to crossexamination by the learned APP without any gain. According to us, there was no reason for this witness to have hostile approach against the prosecution. Her evidence is very specific that by the avk 15/21 time she reached the hospital, the scribing of the document i.e. recording of statement of the deceased was over. We have also seen some part of her cross-examination at the hands of the learned APP and as also at the hands of the defence counsel and we notice that this witness tried to ascertain the correctness of the statement made by the deceased but the deceased did not reply and was not in a mood to oblige her. Certainly, this witness was also not right when she simply obliged the police by putting her signature in as much as in her own words the said statement was not recorded in her very presence. But then there is reason given by her that as police asked her to sign, she put her signature.
28 Noticing that the evidence of PW[3] has not taken the case of prosecution to its logical end, the prosecution examined PW[6] Dr.Swapnil Ashokrao Nashikkar in an unsuccessful attempt to prove the second dying declaration. We find the testimony of this witness anything but satisfactory. 29 PW[6] states in his evidence (Exh. 32) that he is a avk 16/21 Homeopathic practitioner and attached to Shriram Hospital. According to him, statement of the deceased was recorded in between night of 7th February 1994 and 8th February 1994. He had examined the patient and found her in a state of giving statement in as much as she was conscious, verbally oriented and responding to the questions put to her. He further states that he does not recollect the name of the person who recorded the statement. There were two to three persons while recording her statement.
30 His evidence then shows that he was present throughout at the time of recording the statement and the patient had made a statement of setting her on fire by her husband, mother-in-law and wife of brother of her husband. He then proved his signature at Exh. 25.
31 There are two important aspects which put this witness in a bad light. We have carefully gone through the statement of the deceased at Exh. 25. The statement is recorded in its minutest details which surprises us for more than one avk 17/21 reasons. First of all, this whole statement does not bear the endorsement of this witness that at the relevant time he was a Homeopathic practitioner and claimed to be present throughout the recording of the statement to show that the deceased was conscious, oriented and in a fit state of mind to give statement. When this lacuna was confronted in his cross-examination, this witness replied that he knows that the necessary endorsement is to be given on the dying declaration and that he had not given such an endorsement on Exh. 25. Even he further admitted that in the whole case papers it is nowhere mentioned about the state of health of the deceased.
32 Secondly, his examination-in-chief shows that the statement was recorded in between night of 7th February 1994 to 8th February 1994 whereas the endorsement shows that the statement was recorded in between 11.15 a.m. to 12 noon which is duly admitted by him in his cross-examination. Confronted about the goof up as to the timings, he stated that he committed mistake by deposing so in his cross-examination. avk 18/21
33 What is interesting to note that he could only remember of deceased having stated in his presence that it was accused who set her on fire but surprisingly the reason behind that incident is nowhere revealed by this witness in his examination-in-chief though he claims himself to be present throughout the recording of statement and also the fact that the dying declaration has been recorded threadbare and full of accusations. Therefore the conduct so exhibited by this witness needs to be questioned in all its seriousness. Even otherwise, we are not prepared to place explicit reliance on the testimony of this witness.
34 The last witness examined by the prosecution is PW[7] Jyoti Madhukar Patkar, Social Worker. Although she claims in her evidence (Exh. 34) that the deceased had visited her house twice or thrice and had complained that her husband was not bringing articles required at home and was not giving moneys for purchasing articles, but has nowhere deposed that she was ever avk 19/21 told about the ill-treatment on the ground of demand of monies. Even otherwise, whatever she has deposed has come on record for the first time and if her cross-examination is to be believed then she herself stated that for the first time she deposed before the Court that the deceased had been to her house twice or thrice. Infact, this material fact ought to have been recorded in her statement during the course of statement.
35 This witness is also examined on the point of main incident and her examination-in-chief shows that when she visited the hospital along with others, the deceased narrated the incident by stating that she was caught hold of by mother-in-law (A-2), her husband (A-3) poured kerosene and Sadhana i.e. A-1 had set her on fire. It is pertinent to note from the evidence of PW[1] and PW5parents of the deceased that they were present in Shriram Hospital throughout, right from the time of admission till the death of the deceased. Very surprisingly, neither of the parents corroborates the version of PW[7] that she alongwith others had visited the hospital and in their presence or for that matter they avk 20/21 were told by PW[7] that the deceased had confided in her about the incident of burning. Thus, for want of corroboration this witness also goes away.
33 In the light of above analysis and appreciation of evidence of prosecution witnesses, we are of the firm view that the learned Trial Judge was right in holding that the prosecution has failed to prove its case beyond reasonable doubt. The finding of the learned Trial Judge could not be said to be perverse. It was based on proper appreciation of evidence.
34 For the aforesaid reasons, we find no merit in the appeal and accordingly dismiss the appeal. (V. G. BISHT, J.) (PRASANNA B. VARALE, J.) avk 21/21 Arti V.