Bombay High Court
Sanjay Gopalkrishna Markande And 2 ... vs State Of ... on 12 July, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
Appeal.713.02\
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 713/2002
1) Sanjay Gopalkrishna Markande
Aged about 32 years,
R/o Gyaneshwar Nagar, Nagpur.
2) Gopalkrishna Krishnarao Markande
Aged about 62 years
R/o Gyaneshwar Nagar, Nagpur.
3) Sou. Sheelabai Gopalkrishna markande
Aged about 58 years
R/o Gyaneshwar Nagar, Nagpur. ..APPELLANTS
versus
The State of Maharashtra
Through Police Station Officer
Police Station, Ajni, Nagpur. ..RESPONDENT
...............................................................................................................................................
Mr. Yash Maheshwari Adv.h/for Mr D.V.Bhutada, Adv. for appellants
Mr. S.D. Sirpurkar, APP for respondent
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED : 12th July, 2018
ORAL JUDGMENT:
1. The instant Appeal has been directed against the judgment and order dated 17th December, 2002 in Sessions Trial No.269/2002 passed by learned 3rd Ad-hoc Additional Sessions Judge, Nagpur, convicting the appellants of the offences punishable under section 498A r/ws 34 and 306 r/ws. 34 of the Indian Penal Code. For the offence punishable u/s 498A r/ws.34, the appellant no.1 was sentenced to suffer RI for a period ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 2 of two years and a fine of Rs. 500/-,in default, S.I. for two months; and for offence punishable u/s 306 r/ws.34 IPC he was sentenced to suffer RI for a period of four years and a fine of Rs. 1000/-, in default, S.I. for three months. For the offence punishable u/s 498A r/ws.34, the appellant no.2 was sentenced to suffer RI for two years and fine of Rs. 500/-, in default, SI for two months and for offence punishable u/s 306 r/ws.34 IPC, he was sentenced to suffer RI for a period of four years and a fine of Rs. 1000/- in default, SI for three moths. For the offence punishable u/s 498A r/ws.34, the appellant no.3 was sentenced to suffer RI for a period of two years and a fine of Rs. 500/-, in default, SI for two months and for offence u/s 306 r/ws.34 IPC, she was sentenced to suffer RI for four years and a fine of Rs. 1000/-, in default, to suffer SI for three months. The substantive sentences of the accused were ordered to be run concurrently.
2. The prosecution case in brief is that, the complainant-Waman Rajvaidya (PW1) is the father of deceased-Sneha. Sneha got married with the accused no.1 on 30th November,1996. After marriage , Sneha started residing with her husband and in- laws in Nagpur itself. It is the case of the prosecution that for about one year all the accused persons behaved properly with Sneha, however thereafter they started ill- treating her so as to bring money from her parents. The accused no.1 is the husband of deceased; accused no. 2 is the father-in-law, whereas accused no.3 is the mother- in-law of the deceased. Accused no.1 was unemployed and, therefore, all the accused persons were harassing her and insisting to arrange for finance for starting the business by accused no.1. For petty reasons, the accused persons used to beat her. Whenever ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 3 Sneha used to visit her parental home, she used to complain against the accused persons. The parents of Sneha gave understanding to the accused. It is the case of the prosecution that the accused demanded an amount of Rs. 50,000/- for starting a computer institute at Shegaon. However, the complainant handed over an amount of Rs. 30,000/- to accused no.1 for starting the business. Unfortunately, after a few days, since the business did not take off, the accused persons started harassing Sneha. On 13.2.2002, the complainant received information that her daughter- Sneha had received burn injuries. The family members arrived at Nagpur. Sneha was admitted in Government Medical College and hospital on 14.2.2002 at about 5.00 am. It is the case of the prosecution that Sneha disclosed to her father PW1 that she was harassed by the accused persons and, therefore, she committed suicide by pouring kerosene on her person and setting herself ablaze. The complainant then proceeded to the Police Station and lodged his oral report (Exh.28).
3. The Special Judicial Magistrate was summoned to record the dying declaration of Sneha. In the first dying declaration which was recorded on 13.2.2002, Sneha deposed that she was attending the course of 'Beautician' and while taking taking facial treatment of steam from the hot water in the pot on the stove, her chunni fell on the burning stove and she received injuries (Exh.14). The complainant then moved an application before the Police Station Ajni requesting for recording fresh dying declaration of Sneha. Accordingly her second dying declaration came to be recorded. ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 :::
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4. In the meanwhile, an offence came to be registered on the basis of the complaint lodged by the complainant PW1 vide Cr. No.46/2002. The second declaration of Sneha was recorded on 14.2.2002 by the Special Judicial Magistrate vide Exh.50, in which she deposed that there were altercations between Sneha and her mother in law on account of money with respect to the Parlour. Her mother -in-law asked her to leave the Parlour and directed to behave in the manner as she dictates. The mother in law of Sneha handed over kerosene and a match-box to her. Thereafter Sneha poured kerosene on her person and set herself ablaze. As she got frightened, she jumped into the drum which was full of water. Prior to this incident, her father in law got annoyed with her and said that she should be attentive towards him and she should serve tea to him. The dying declaration further reveals that she was asked to bring the amount of Rs. 50,000/- from her father and she refused to do the same. At the relevant time, PW 11 Gulabrao Mahalle was attached to Ajni Police Station. Sneha died on 17.02.2002. PW11 visited the place of incident and recorded the spot panchnama. He also recorded the inquest panchnama vide Exh.17. He arrested the accused no.1 on 17.2.2002 and other accused on 18.2.2002. He recorded the statement of various witnesses. PW 11 collected the PM report (Exh.26) and after completion of investigation, he submitted the charge sheet in the court of learned JMFC. The case was committed to the court of Sessions. After hearing both sides and on analysis of the evidence on record, the learned trial Judge convicted the accused as aforesaid.
5. Learned Advocate for the appellants contended that the learned trial ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 5 Judge has not considered the evidence of the prosecution witnesses in proper manner and has overlooked the discrepancies in their respective versions. He submitted that the contents in the second dying declaration contradicts with the contentions in first declaration. He submitted that the accused persons have been falsely implicated in the present case and, as such, the impugned judgment needs to be set aside. As against this, the learned APP contended that the leaned trial Judge has properly assessed the evidence led by the prosecution and has rightly convicted the accused.
6. In order to verify the rival contentions of both sides, it would be beneficial to go through the testimony of the witnesses examined by the prosecution. The testimony of PW1-Waman Rajvaidya shows that Sneha got married with the accused no.1 on 30th November, 1996. After marriage for about one year, everything was going on smoothly. Thereafter, the husband and in-laws of Sneha started beating Sneha. They were insisting for bringing money as accused no.1 was unemployed. Sneha used to complain her father against the accused persons. PW1 went to the matrimonial home of Sneha and gave understanding to all the accused to treat Sneha properly. However after some time, the accused persons started demanding amount of Rs. 50,000/- as the accused no.1 wanted to start a Computer institute. PW1 handed over an amount of Rs. 30,000 to accused no.1. After 2 to 4 months accused no.1 was indebted and the Institute was closed down, which was started at Shegaon and accused no.1 came to Nagpur. PW 1 further stated that all the accused were insisting to bring the amount of Rs. 50,000 to start the business. On 13.2.2001, PW1 received the message that Sneha received burn ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 6 injuries and she was admitted in Government Medical College & Hospital, Nagpur. Accordingly, all the family members went to Nagpur. They reached the Hospital on 14.2.2002 at about 5.00 a.m. At that time, Sneha stated before PW1 that when she was taking meals in the afternoon, Shilabai kicked her and she was not allowed to take food because of that Sneha set herself on fire. PW1 stated that he made enquiry with Sneha whether her statement was recorded. On this, she informed him that her statement was recorded under duress that she set herself on fire. PW1 further stated that Sneha stated before him that she got burnt herself because of the harassment by the accused persons. PW1 then proceeded to the Police Station and lodged complaint (Exh. 48).
7. During the cross-examination, PW1 admitted that till this incident, he did not lodge any report either at Buldana or Nagpur regarding the harassment meted out to Sneha. He further admitted that he had not mentioned in his report that Sneha stated before him that while she was taking food in the afternoon she was kicked by Shilabai and she set her on fire. The said version of PW1 indicates that there was improvement in his version regarding the factum of Sneha informing him that she was taking food in the afternoon and she was kicked by Shilabai and therefore she set herself on fire. It was put up to PW1 that while Sneha was doing the facial practical by keeping a pot of water on the stove, at that time, stove fell down and therefore she caught fire and received burn injuries. However PW1 outrightly denied the said suggestion.
8. PW2-Sadashiv Pachkhede, who is the husband of sister of Sneha ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 7 deposed that the accused persons used to demand money; so also Sneha demanded money from him. However he denied for the same. He then stated that he received a message that Sneha got burnt and therefore they went to the hospital. At that time, Sneha informed him that because of domestic harassment, she set herself on fire. PW2 stated that many a times, Sneha informed him that she was harassed by the accused and beaten by them. An improvement was pointed out in the version of PW2 in his cross-examination that the accused demanded money from him. It is noticed that the testimony of PW2 differ from the testimony of PW1 with regard to the statement made by Sneha.
9. The testimony of independent witness PW 3-Asha Kukatkar shows that at the time of the incident, she heard noise. Therefore she along with her husband rushed to the house of the accused. She found Sneha standing in the water drum and no one else was present and she had received burn injuries. Thereafter Sneha was taken to the hospital. She was declared hostile by the prosecution. However in the cross- examination, PW3 stated that Sneha was learning Beauty parlour course and Sanjay and Sneha were residing separately from the parents of Sanjay. The said version of PW3 creates a doubt whether at the time of incident, the parents of accused no.1 i.e. accused nos.2 and 3 were present at the place of the incident.
10. The testimony of PW 4-Gajanan Rajvaidya shows that at the time of marriage of Sneha, an amount of Rs.30,000/- was given to her in cash along with ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 8 television set and dressing table. According to him, accused no.1 was working in a private service and his salary was less. He stated that after the marriage, accused started beating and driving her out of the house and asking her to bring money for himself and his parents and because of the said harassment, she was brought to the house of PW
4. However after few days Sneha and accused no.1 started residing at Nagpur separately. According to PW4, the beating continued to Sneha thereafter. PW4 stated that on 13.2.2002 he received a phone call that Sneha received burn injuries and she was admitted in the hospital. He met Sneha at that time. She stated that accused were demanding Rs. 30,000/-, otherwise she should die by setting herself on fire and since it was impossible for her to live because of the harassment by accused persons, she poured kerosene on her person and set herself ablaze. The said version of PW4 contradicts with the version of PW1-Waman as according to PW1 while she was eating meal and her mother in law did not allow, she she got annoyed and, therefore, she set herself on fire.
11. On careful scrutiny of the testimony of the above said witnesses, it is clear that there appears to be discrepancies with regard to the factum of accused persons demanding money from Sneha and the reason for Sneha's cause of death. Significantly the PM report shows that Sneha received 78 per cent burn injuries. In these circumstances it is not clear at what point of time the relatives of Sneha enquired with her and whether Sneha was in a physical and mentally fit state of mind to give statement of these witnesses.
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12. Coming to the second dying declaration of Sneha, the first dying declaration (Exh.14) dated 13.2.2002 reveals that Sneha was doing the course of Beautician and in practical of facial treatment of steam from the hot water in the pot on the stove, her chunni fell on the burning stove and as a result of which she had sustained burns. Sneha then raised shouts and she jumped on the drum full of water. Thereafter her mother in law, father in law and neighbours rushed to the spot and took her to the hospital. As per the testimony of PW1- Sneha stated that under pressure she had given the first dying declaration. However the second dying declaration (Exh.50) demonstrates that on the date of incident between 11.00 and 3.00 p.m. her mother in law had altercations with her on account of money in respect of parlour and therefore her mother in law asked her to leave and had directed her to behave in the manner as she dictates. Therefore, Sneha poured kerosene on her person which was handed over to her by the her mother in law and with matchstick which was also handed to to her by her mother in law, she set herself on fire. Thereafter she got frightened and jumped into the water drum. Thereafter she was taken to the hospital. She also stated that there was a demand of Rs. 50,000/- from the accused persons as her husband owed an amount of Rs. 50,000 to the owner of Kukreja Advertising Company.
13. No doubt, the Special Executive Magistrate recorded the dying declaration. However, requisition to the medical officer shows that it was at about 12.45 pm, whereas the endorsement was given by the Medical Officer about fitness of Sneha to give her statement at 12.35 pm. In view thereof the said document creates ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 10 a doubt about the fitness of Sneha. The said dying declaration commenced at 12.47 p.m. and concluded at 1.20 p.m. However on the said dying declaration there was no endorsement of the medical officer that all throughout Sneha was mentally and physically fit to give her statement. There are discrepancies in the timings as to when requisition was given to the Medical Officer and the time when the Medical Officer endorses about the fitness of Sneha. Thus, the dying declaration recorded by the special Judicial Magistrate does not inspire confidence, so also there is discrepancy in the contents in the first and second dying declaration.
13. In the case of State of Maharashtra vs. Hemant Kawadu Chauriwal and others reported in (2015) 17 SCC 598, the Hon'ble Apex Court observed that it is a settled law that dying declaration can be the sole basis of conviction and it does not require any corroboration. But it is equally true that dying declaration goes against the cardinal principle of law that "evidence must be direct". Thus, dying declaration must be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence." . In that case one of the reasons for not relying on the dying declaration by the Hon'ble Apex Court was that there was no certificate of the Doctor that deceased was in a fit, stable mental condition to give her statement.
14. The learned trial Judge ought to have considered the evidence led by the prosecution in its right perspective. In view thereof the judgment and order passed ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 ::: Appeal.713.02\ 11 by learned trial Judge needs to be set aside. Hence the following order:
ORDER
a) Criminal Appeal No. 713/2002 is allowed.
b) The judgment and order of conviction and sentence passed by the learned 3rd Ad-hoc Additional Sessions Judge, Nagpur dated 17.12.2002 is hereby quashed and set aside.
c) The appellants are on bail. Their bail bail bonds shall stand canceled.
JUDGE sahare ::: Uploaded on - 21/07/2018 ::: Downloaded on - 22/07/2018 00:11:39 :::