Yeshodabai Pitambar Giri vs The State Of Maharashtra on 4 May, 2018

[Cites 11, Cited by 0]

Bombay High Court

Yeshodabai Pitambar Giri vs The State Of Maharashtra on 4 May, 2018

Equivalent citations: AIRONLINE 2018 BOM 240

1. Criminal Appeal No.577/2006 is filed by original accused Nos.1 and 2 and Criminal Appeal No.584/2006 is filed by original accused No.3 against judgment and order dated 27.07.2006 passed by Ad hoc Additional Sessions Judge, Gangakhed in Sessions Case No.33/2004, convicting accused Nos.1 and 2 for the offences punishable under Sections 302 and 498-A read with Section 34 of the Indian Penal Code (hereinafter referred to as "I.P.C.") and convicting accused No.3 for the offence punishable under Section 498-A read with Section 34 of I.P.C. Respondent is the State of Maharashtra.

2. Prosecution case, in brief, is that accused No.1 married deceased Ranjana before four years from the date of incident. Accused No.2 is the mother of accused No.1 and accused No.3 is his sister. After marriage, deceased Ranjana started cohabiting with accused No.1 at Pharkanda. At that relevant time accused No.1 used to live jointly with his parents and three sisters. All accused used to ill-treat the deceased Ranjana on account of demand of money. Whenever deceased went to her parental house, she informed her parents about the ill-treatment to her for demand of money. At last on 26.12.2002 at about 4.00 p.m. when Ranjana was ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (3) Appeal No. 577/2006 present in the house, that time accused No.2 poured kerosene on her body and accused No.1 set her ablaze by igniting match stick. When Ranjana started shouting, her neighbours rushed on the spot and extinguished the fire by pouring water on her body. Ranjana was taken to Civil Hospital, Parbhani. The Police Officer, who was present at the Police Outpost, Civil Hospital, Parbhani, recorded first dying declaration (Exh.35) of Ranjana on 26.12.2002 at about 7.40 p.m. Subsequently second dying declaration (Exh.34) was recorded by Head Clerk, Tahsil Office, Parbhani at about 8.40 p.m. on the same day. In these both statements, Ranjana did not make complaint against anybody and stated that she sustained burns due to accidental fire at the time of preparation of tea on the hearth.

3. However, when the parents of Ranjana came to know about the occurrence, they rushed to Civil Hospital, Parbhani and Ranjana informed them that on 26.12.2002 at about 4.00 p.m. accused No.2 poured kerosene on her body and accused No.1 set her ablaze with the help of match stick. Therefore, the parents of deceased submitted application to Police Station, Nanalpeth to record a fresh dying declaration of Ranjana. In the result, Naib Tahsildar Surekha Patwe (PW-7) recorded third dying declaration (Exh.55) on 28.12.2002. In this third dying declaration, for the first time, deceased Ranjana made a statement that on 26.12.2002 at 4.00 p.m. accused No.2 poured kerosene on her body and accused No.1 set her ablaze by igniting match stick. On the basis of this ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (4) Appeal No. 577/2006 third dying declaration, initially by Zero number offence was registered against accused under Sections 307, 498-A read with Section 34 of I.P.C. at Police Station, Nanalpeth. Subsequently, investigation was transferred to Police Station, Palam within whose jurisdiction the offence was committed.

4. P.S.I. Ghodke (PW-8) conducted investigation of this crime. During the course of investigation he prepared spot panchnama (Exh.33) at the house of accused persons and seized partly burnt clothes of the deceased, one kerosene bottle, match box and 3 match sticks from the spot of the incident. On 01.01.2003 Ranjana succumbed to her burn injuries. Therefore, her dead body was referred to General Hospital, Parbhani for postmortem examination. Dr. Parmeshwar Salve (PW-5) conducted autopsy examination and noted 90 % burns on the dead body. He opined that cause of death of deceased was "due to septicemia due to 90% burns". After death of Ranjana, Section 302 of I.P.C. was added against the accused persons. Accused were arrested and after completion of investigation, charge-sheet was submitted against them before Judicial Magistrate, First Class, Gangakhed.

5. Offence punishable under Section 302 of the Indian Penal Code being exclusively triable by Court of Sessions, this case was committed to Sessions Court, Gangakhed.

6. Charge (Exh.9) was framed against accused No.1 to 3 for the offence punishable under Section 302 and 498-A read with ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (5) Appeal No. 577/2006 Section 34 of the Indian Penal Code. Accused pleaded not guilty and claimed trial.

7. Defence of the accused is that Ranjana died due to accidental burns.

8. After considering the evidence placed on record, the learned trial Court pleased to convict accused Nos.1 and 2 for the offence punishable under Sections 302 and 498-A read with Section 34 of I.P.C. and sentence each of them to imprisonment for life and rigorous imprisonment of two years and accused No.3 was convicted for the offence punishable under Section 498-A read with Section 34 of I.P.C. and was sentenced to suffer rigorous imprisonment for six months. Therefore, both these appeal arise.

9. Heard Mr. V.R. Dhorde, learned Counsel for the appellants and learned A.P.P. for the State.

10. Learned Counsel for the appellants submitted that there are three dying declarations on record. First two dying declarations were recorded on 26.12.2002 wherein the deceased made statement that she sustained burns due to accidental fire of hearth while preparing tea. Only in the third dying declaration recorded on 28.12.2002 by Executive Magistrate Surekha Patwe (PW-7), the allegations are levelled against accused Nos.1 and 2 that accused No.2 poured kerosene on the body of deceased and accused No.1 set her ablaze. Learned Counsel for the appellants submitted that the third dying declaration cannot be treated as voluntary statement ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (6) Appeal No. 577/2006 of the deceased, because from the cross-examination of Executive Magistrate Patwe (PW-7), it becomes clear that she was putting leading question to the deceased, which is not permissible under law.

11. Next limb of argument of the learned Counsel for the appellants is that the possibility of tutoring of deceased before recording third dying declaration cannot be ruled out, because as per the prosecution case itself, the third dying declaration was recorded at the request of the parents of deceased only after their meeting with the deceased in the hospital.

12. Next objection of the learned Counsel for the appellants is that even Investigating Officer has not proved that at the time of seizure of clothes of deceased from the spot, those clothes were sealed and in the same condition those clothes were delivered to Chemical Analyzer's Office, Aurangabad. He pointed out that due to non-examination of the Carrier of Muddemal, prosecution cannot rule out the possibility of tampering of Muddemal, and therefore, importance cannot be given to the kerosene residues, which were detected as per the C.A. Report.

13. Learned Counsel for the appellants submitted that in the two letters written by accused No.1 to the father of deceased, there is no reference of demand of dowry by any accused person. Therefore, that documentary evidence is of no use for the prosecution to prove that for demand of money the deceased was ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (7) Appeal No. 577/2006 subjected to ill-treatment.

14. The last submission of learned Counsel for the appellants is that the neighbours of the accused persons are not examined, who reached on the spot immediately after the occurrence and who extinguished the fire on the body of deceased. According to learned Counsel for the appellants, non-examination of these material witnesses is sufficient to draw adverse inference against the prosecution. Learned defence Counsel also pointed out that the Investigating Officer did not seize earth sample from the spot to prove that kerosene was poured on the body of deceased on that spot.

15. In reply, learned A.P.P. for the State submitted that though three dying declarations are on record, the first two dying declarations were obtained under the pressure of accused No.1. She pointed out that the third dying declaration was recorded by Executive Magistrate Patwe (PW-7) when the deceased was in fit state of mind to give the statement, and therefore, only on the basis of this third dying declaration, guilt of the accused can be established.

16. Learned A.P.P. for the State submitted that Kishan Puri (PW-2) and Kausalyabai Puri (PW-4), who are the parents of deceased, are consistent regarding disclosure statement of deceased about ill-treatment to her at the hands of accused for demand of money. Learned A.P.P. pointed out that one broken bid ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (8) Appeal No. 577/2006 necklace (iksr) and bangle pieces of the deceased were found on the spot, which suggest struggle of the deceased with accused. She pointed out that even kerosene bottle was seized from the spot of the incident which is a corroborative piece of evidence. Learned A.P.P. submitted that kerosene residues were detected in the clothes of the deceased which corroborates her version regarding pouring of kerosene on her body by accused No.2.

17. With the help of learned Counsels for both the parties, we have gone through the oral and documentary evidence placed on record. Undisputedly in the case at hand, no eye witness is available who had witnessed the occurrence. Therefore, total prosecution case is based on three dying declarations and other circumstantial evidence i.e. seizure of partly burnt clothes of deceased having kerosene residues and seizure of kerosene bottle and burnt match sticks and match box from the spot of the incident.

18. Initially we prefer to consider the available circumstantial evidence recorded by prosecution. Learned A.P.P. has drawn our attention towards two letters (Exhs.25 and 26) written by accused No.1 to Kishan Puri (PW-2), who is the father of deceased. However, after going through letter (Exh.25), it emerges that under this letter accused No.1 only requested his father-in-law to send his wife (deceased) at the earliest otherwise there would be displeasure. The recitals of this letter only indicate the attraction of ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (9) Appeal No. 577/2006 a husband about his wife. Therefore, by no stretch of imagination it can be held that letter (Exh.25) is of any help to the prosecution in any manner. So also in the second letter (Exh.26) there is no demand of dowry or any valuable article. But accused No.1 only requested his father-in-law to lend an amount of Rs. 2,000/- as hand loan which would be refunded at the earliest. Thus, in any manner this second letter cannot be treated as incriminating evidence against the accused. Learned trial Court in its judgment has right discarded these both letters as useless piece of evidence.

19. However, from the judgment delivered by the trial Court it emerges that overmuch importance is given to the kerosene residues detected in the clothes of deceased which were seized from the spot. No doubt, C.A. Report (Exh.72) shows that in the partly burnt Saree pieces and petticoat, kerosene residues were detected and in the bottle kerosene was found. However, from the spot panchnama (Exh.33) it becomes clear that that the incident occurred inside the house of accused persons where hearth is situated for cooking food and for preparation of tea. Generally for kerosene is used to put on fire the fuel, with the help of lighted match stick. Therefore, finding of kerosene bottle and partly burnt match sticks and match box on the spot is most normal circumstance and cannot be treated as incriminating evidence.

20. Regarding seizure of partly burnt clothes of deceased, the evidence of Investigating Officer P.S.I. Ghodke (PW-8) is ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (10) Appeal No. 577/2006 important. P.S.I. Ghodke (PW-8) has vaguely deposed before the Court regarding preparation of spot panchnama (Exh.33) in the words that, "he effected seizure of various articles as shown in the panchnama (Exh.33)". However, he nowhere deposes that at the time of seizure the partly burnt clothes of deceased, were 'sealed' in presence of panchas. The climax is that though spot panchnama (Exh.33) is admitted by defence which can be read in evidence, in the spot panchnama, it is nowhere mentioned that the partly burnt clothes of the deceased were sealed on the spot. Thus, the prosecution cannot establish that the articles which were seized from the spot were sealed at the time of seizure. So also, due to non-examination of Carrier of muddemal, prosecution cannot further prove that the seized articles were delivered in C.A. Office in sealed condition. On the other hand, from the cross-examination of Investigating Officer it emerges that all seized articles from the spot were at Police Station from 29.12.2002 till 05.01.2003. Thus, during this intervening period there is every possibility of tampering of seized clothes of the deceased by Investigating Officer to create suitable evidence against the prosecution. In the circumstances, considering the possibility of tampering of Muddemal articles, overmuch importance cannot be given to the kerosene residues, detected by Chemical Analyzer in the partly burnt clothes of deceased.

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21. Another damaging blow to the prosecution case is that prosecution has not examined the Medical Officer who treated the deceased in Civil Hospital, Parbhani immediately after the occurrence. Therefore, the prosecution cannot bring on record evidence to show that there was kerosene smell to the body of deceased at the time of admission in the hospital. Prosecution also lost opportunity to prove as to what history of the burn injuries was given by deceased to the Medical Officer who initially treated the deceased in Civil Hospital, Parbhani. Thus, it can be concluded that the circumstantial evidence placed on record by prosecution in the form of spot panchnama and seizure of partly burnt clothes of the deceased from the spot, is of no help to the prosecution to prove homicidal death of deceased.

22. Only evidence available on record is the three dying declarations given by deceased. First dying declaration (Exh.35) is recorded by police on 26.12.2002 at 7.40 p.m. at Civil Hospital, Parbhani. Second dying declaration (Exh.34) is recorded by Head Clerk, Tahsil Office, Parbhani on the same day at 8.40 p.m. and the third dying declaration (Exh.55) is recorded by Naib Tahsildar at Civil Hospital, Parbhani on 28.12.2002 in between 12.50 to 1.05 p.m.

23. First two dying declarations (Exhs.35 and 34) recorded by police and Head Clerk of Tahsil Office respectively are admitted by defence. In these both dying declarations deceased gave statement that on 26.12.2002 at about 4.00 p.m. she ignited fire in ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (12) Appeal No. 577/2006 the hearth for preparation of tea and when she turned back towards hearth for lifting her daughter, that time her Saree caught fire from backside and thereby she sustained injury. In these both statements, the deceased made it clear that hearing her shouts, her neighbours reached on the spot and they extinguished the fire by pouring water on her body. At the time of this occurrence her family members were not present on the spot. When accused Nos.1 and 2 reached to their house, they took the injured to Civil Hospital, Parbhani. However, in the third dying declaration (Exh.55) recorded on 28.12.2002 the deceased made statement that her husband, in- laws and sister-in-law ill-treated her for demand of money and on 26.12.2002 at 4.00 p.m. her mother-in-law poured kerosene on her body and her husband put her on fire by igniting match stick. In this third dying declaration the deceased gave explanation that due to pressure of her husband, in her previous two statements she gave statement that she sustained burns while cooking on hearth.

24. In view of these two sets of conflicting dying declarations we have to examine which one is reliable. In the case of "Puran Chand Vs State of Haryana", [(2010) 6 SCC 566], the Apex Court had occasion to explain the admissibility and test of reliability of multiple dying declarations. In this case Apex Court ruled that, "The Courts below have to be extremely careful when they deal with a dying declaration as the maker ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (13) Appeal No. 577/2006 thereof is not available for the cross- examination which poses a great difficulty to the accused person. A mechanical approach in relying upon a dying declaration just because it is there is extremely dangerous. The Court has to examine a dying declaration scrupulously with a microscopic eye to find out whether the dying declaration is voluntary, truthful, made in a conscious state of mind and without being influenced by the relatives present or by the investigating agency who may be interested in the success of investigation or which may be negligent while recording the dying declaration. Number of times, a young girl or a wife who makes the dying declaration could be under the impression that she would lead a peaceful, congenial, happy and blissful married life only with her husband and, therefore, has tendency to implicate the inconvenient parents-in-law or other relatives. Number of times the relatives influence the investigating agency and bring about a dying declaration. The dying declarations recorded by the investigating agencies have to be very scrupulously examined and the Court must remain alive to all the attendant circumstances at the time when the dying declaration comes into being. When there are more than one dying declarations, the intrinsic contradictions in those dying declarations are extremely important. It cannot be that a dying declaration which supports the prosecution alone can be accepted while the other innocuous dying declarations have to be rejected. Such a trend will be extremely dangerous. However, the Courts below are ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (14) Appeal No. 577/2006 fully entitled to act on the dying declarations and make them the basis of conviction, where the dying declarations pass all the above tests. The Court has to weigh all the attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the Court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The Courts must bear in mind that each criminal trial is an individual aspect. If after careful scrutiny the Court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it a basis of conviction, even if there is no corroboration."

25. In view of the law laid down by the Apex Court, the legal position is absolutely clear that when there are multiple dying declarations, the Court has to examine which one is reliable. While examining the reliability of dying declaration, the Court has to take into consideration the surrounding circumstances. No doubt, by examining Naib Tahsildar Surekha Patwe (PW-7) and Dr. Salvi (PW-

5) the prosecution has duly proved that at the time of recording of third dying declaration (Exh.55) the deceased was in fit state of mind. From the evidence of these both witnesses, it emerges that by examining preliminary questions they got satisfied themselves that deceased was in fit state of mind. Even in the case of ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (15) Appeal No. 577/2006 "Laxman Vs State of Maharashtra" [ 2003 (1) B.Cr.C. 74 (S.C.)], the Constitutional Bench of the Supreme Court made it clear that, "There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise".

26. Therefore, overmuch importance cannot be given to the certificate given by the Medical Officer at the header of dying declaration that Ranjana Giri was conscious during taking statement at 12.50 to 1.05 p.m. However, cat has come out of the bag when Surekha Patwe (PW-7), the Executive Magistrate, who recorded this dying declaration, was subjected to cross-examination. On perusal of dying declaration (Exh.55) it becomes clear that in the statement ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (16) Appeal No. 577/2006 of deceased there is one sentence as "on 26.12.2002 at 4.00 p.m. because the husband, in-laws and sister-in-law ill-treated, I was fed up with this ill-treatment" and in that statement the learned Executive Magistrate scored the line "fed up with this ill-treatment"

and add subsequent line that "her mother-in-law poured kerosene".

When Surekha Patwe (PW-7) was cross-examined about this scoring of the line, she has admitted that she asked question to the deceased whether on 26.12.2002 at 4.00 p.m. her husband, in-laws and sister-in-law ill-treated her. In her cross-examination by A.P.P., she has also made it clear that she asked question to the deceased whether she committed attempt of suicide as she was fed up with the ill-treatment. This witness further admitted that because the deceased answered in negative, this witness scored the line "fed up with the ill-treatment". These admissions of Surekha Patwe (PW-7) make it clear that the Executive Magistrate was putting leading question to the deceased regarding ill-treatment to her at the hands of the accused. It is to be noted that the statement given in dying declaration should be voluntary statement and such statement shall not be as a result of answer to leading question. Answer given to leading question cannot be treated as voluntary statement of the deceased. Therefore, as the Executive Magistrate Surekha Patwe (PW-7) had recorded dying declaration of deceased by putting leading questions to her, it cannot be held that dying declaration (Exh.55) is voluntary statement of the deceased. ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (17) Appeal No. 577/2006

27. Another important aspect is that while examining the reliability of dying declaration the Court must examine whether there is possibility of tutoring of victim before recording of her dying declaration. Burden lies on the prosecution to rule out every possibility of tutoring of victim before recording her dying declaration. However, in the case at hand, from the evidence of Kisan Puri (PW-2) and Kausalya Puri (PW-4), who are the parents of deceased, it emerges that when they learnt about sustaining burn injuries by Ranjana, they went to Civil Hospital, Parbhani and met to Ranjana. Thus, these both prosecution witnesses have brought on record that they had meeting with Ranjana in burns ward at Civil Hospital, Parbhani. From the cross-examination of Executive Magistrate Surekha Patwe (PW-7), it has been brought on record that the police intimated Executive Magistrate that on that day parents of Ranjana submitted an application to the Police Station to again record dying declaration of Ranjana.

28. This witness has placed on record the letter (Exh.58) issued by Police Station, Nanalpeth to this witness, which recites that after recording of previous two dying declarations of deceased, the parents of deceased requested the police to record third dying declaration of the deceased. Thus, it can be gathered that before recording of third dying declaration (Exh.55) there was meeting of the parents of deceased with deceased in Civil Hospital, Parbhani. In other words, the parents of deceased had every possible ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (18) Appeal No. 577/2006 opportunity to tutor the deceased to give her third incriminating dying declaration. In other words, the prosecution cannot rule out that the third dying declaration (Exh.55) implicating the entire family of accused in this case is only as a result of tutoring of deceased by her parental relatives in Civil Hospital, Parbhani. On this count also the prosecution cannot establish that the third dying declaration (Exh.55) was voluntary true statement of the deceased.

29. The next important aspect is that neither Investigating Officer had obtained sample of earth from the spot of incident to ascertain whether the kerosene residues could be detected on the floor of the house where the incident occurred, nor the Investigating Officer has recorded statements of immediate neighbours of the deceased who rushed on the spot and extinguished her fire, though the neighbours are the most important witnesses to whom the deceased would have disclosed the true occurrence as they were the first persons who met her after the occurrence. So also, had the accused set on fire the deceased after pouring kerosene, definitely somebody from the neighbourhood might have noticed the accused while leaving the spot of the incident. On account of non- examination of any one of the neighbours of accused persons, who extinguished the fire on the body of deceased, the prosecution has lost the important piece of circumstantial evidence.

30. In the circumstances, no importance can be attached to the statements of the parents (PW-2 and PW-4) of the deceased ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (19) Appeal No. 577/2006 regarding disclosure statement of the deceased before them prior to occurrence and even after the occurrence. The evidence of Police Patil (PW-3) is nothing but hearsay evidence to whom the father of deceased Kisan Puri (PW-2) informed about the complaints of deceased against the accused. Therefore, when the third dying declaration (Exh.55) is held to be doubtful piece of evidence, on the basis of the evidence of parents of deceased i.e. PW-2 and PW-4, which is absolutely weak type of evidence, the accused cannot be convicted for commission of the offence of murder punishable under Section 302 read with Section 34 of I.P.C.

31. When the incriminating dying declaration (Exh.55) is held as unreliable piece of evidence, there remains absolutely no evidence to prove that the deceased died of homicidal death. On the other hand, on the basis of first two dying declarations the possibility cannot be ruled out that the death of Ranjana is accidental death. If the death of Ranjana is accidental death, then her statement before her parents regarding ill-treatment at the hands of accused on account of demand of money cannot be read in evidence with the aid of Section 32 (1) of the Indian Evidence Act as those statements do not relate with the circumstances which resulted into death of deceased. We must make reference to the case of Bhairon Singh Vs. State of M.P. (AIR 209 SC 2603) wherein the Apex Court ruled that, ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (20) Appeal No. 577/2006 "Except Section 32 (1) of the Indian Evidence Act, there is no other provision under which the statement of a dead person can be looked into in evidence. The statement of a dead person is admissible in law if the statement is as to the cause of death or as to any of the circumstance of the transactions which resulted in her death, in a case in which the cause of death comes into question. What has been deposed by PW-4 and PW-5 has no connection with any circumstance of transaction which resulted in her death. The death of Smt. Ranjana Rani @ Raj Kumari was neither homicidal nor suicidal; it was accidental. Since for an offence under Section 498-A simpliciter, the question of death is not and cannot be an issue for consideration, we are afraid the evidence of PW-4 and PW-5 is hardly an evidence in law to establish such offence. In that situation Section 32 (1) of the Evidence Act does not get attracted".

32. In view of the above discussion, we have no hesitation to hold that prosecution miserably failed to prove guilt of the accused Nos.1 and 2 under Section 302, 498-A read with Section 34 of I.P.C. We hold that even the charge under Section 498-A of I.P.C. cannot be established against accused No.3. All accused deserve acquittal. It follows that both the appeals deserve to be allowed.

33. Hence, the following order.

ORDER

1. Criminal Appeal No.577 of 2006 and Criminal Appeal No.584 of 2006 are allowed.

2. Judgment and order of conviction dated 27.07.2006 passed by Adhoc Additional Sessions Judge, Gangakhed convicting accused No.1 Ashok s/o Pitambar Giri and accused No.2 Kantabai w/o Pitambar Giri for the offences punishable under Sections 302 and 498-A read with Section 34 of the ::: Uploaded on - 04/05/2018 ::: Downloaded on - 05/05/2018 01:58:15 ::: (21) Appeal No. 577/2006 Indian Penal Code and convicting accused No.3 Yashodabai d/o Pitambar Giri for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code, is set aside.

3. Accused No.1 Ashok Pitambar Giri and accused No.2 Kantabai w/o Pitambar Giri are acquitted of the offences punishable under Sections 302 and 498-A read with Section 34 of the Indian Penal Code.

4. Accused No.3 Yashodabai d/o Pitambar Giri is acquitted of the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code.

5. Their bail bonds and surety bonds stand cancelled.

6. Under Section 437-A of the Code of Criminal Procedure, accused No.1 Ashok Pitambar Giri, accused No.2 Kantabai w/o Pitambar Giri and accused No.3 Yashodabai d/o Pitambar Giri shall furnish before the trial Court the bail bonds with surety for the amount of Rs. 10,000/- (Rupees Ten Thousands) each to appear before the Supreme Court as and when notices are issued to them in respect of any proceedings filed against this judgment and the said bail bonds shall remain in force for a period of six months from today.

          ( SUNIL K. KOTWAL)                    ( T.V. NALAWADE)
               JUDGE                                  JUDGE
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