Bombay High Court
State Of Maharashtra Thr. Pso Ps ... vs Dhanraj Champatrao Surwade on 14 December, 2018
Author: S.M. Modak
Bench: S.B. Shukre, S.M. Modak
apeal.522.06.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.522 OF 2006
Appellant : State of Maharashtra,
Through the Police Station Officer,
P.S., Daryapur, Distt. Amravati.
-- Versus --
Respondent : Dhanraj Champatrao Surwade,
Aged about 38 years, Occ. Service,
R/o Civil Lines, Daryapur, Distt. Amravati.
with
CRIMINAL REVISION NO.274 OF 2006
Applicant : Narayan s/o Bajirao Parwatkar,
Aged about 60 Yrs., Occu. Agriculturist,
R/o Paratwada, Tq. Achalpur, District Amravati.
-- Versus --
Respondents : 1] Dhanraj s/o Champatrao Surwade,
Aged about 38 Yrs. R/o Civil Lines, Daryapur,
Tq. Daryapur, District Amravati.
2] State of Maharashtra,
Through P.S.O., Daryapur,
District Amravati.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri N.B. Jawade, A.P.P. for the State.
Ms. Geetabai Lande, Advocate for the Revision Applicant
was present in first session.
None for the Respondent/Accused.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM : S.B. SHUKRE & S.M. MODAK, JJ.
RESERVED ON : 26th NOVEMBER, 2018.
PRONOUNCED ON : 14th DECEMBER, 2018.
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apeal.522.06.jud 2
ORAL JUDGMENT :- (Per S.M. Modak, J)
Court of Additional Sessions Judge, Achalpur, acquitted the accused on 27/07/2006 in Sessions Case No. 100 of 2005. He was charged for the offences punishable under Sections 498-A and 302 of Indian Penal Code. There are two proceedings before us. The Criminal Appeal is filed by the State against the order of acquittal, whereas the first informant/father of the deceased is challenging the same order by way of Revision.
02] On 26/11/2018 both the matters were called out in first session. Learned Additional Public Prosecutor advanced the arguments for some time. On hearing them, we find that the appeal can be disposed of even though the accused-respondent is absent and non-bailable warrant is pending against him. Learned Adv., for the first informant was also present. By consent, it was kept in the second half. In the second half, only Additional Public Prosecutor remained present. We have heard him. He has taken us through the evidence.
03] Sau. Shalini being the wife of the respondent died on 11/05/2005 due to burn injuries. There are two versions. One is an ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 3 accidental death and second is homicidal death. Learned trial Judge accepted the theory of accidental death. So, we have to decide whether his conclusions are correct or not and is there any perversity as contended by learned Additional Public Prosecutor and as pleaded in the Revision. There are certain undisputed facts.
EARLIER COMPLAINT 04] The marriage of the accused and deceased Shalini in the month of May, 1997 is undisputed. The issues - son and daughter from the said wedlock are also not disputed. We do not find any serious dispute about separate residence by Shalini few months after the marriage. It was on account of suspicion raised by the husband about the character of the deceased. This is the area of dispute in between the spouses. On being examined by Dr. Bhattad, Shalini was not pregnant was confirmed. At that time also, there was a police complaint with Daryapur Police Station. It was compromised and Shalini resumed the company of the husband. There are two versions. One is dislike by father-in-law, Shri Narayan Bajirao Parwatkar, whereas another version is Shalini returned voluntarily.
05] A daughter was born after resumption of cohabitation. The fateful incident took place on 29/04/2005. It was at about ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 4 07:30 p.m. She was initially taken to Daryapur Hospital and then to Civil Hospital, Amravati. At Civil Hospital, Amravati, she succumbed to injuries on 11/05/2005. In all there are four Dying Declarations.
MULTIPLE DYING DECLARATIONS 06] Out of that, one is recorded immediately on 29/04/2005 by the police attached to Police Chowky in Daryapur Hospital. It was of accidental death. On 30/04/2005, two Dying Declarations were recorded. One is at 7.55 a.m. and second is at 9.10 p.m. Both are recorded by same Special Judicial Magistrate, Shri Satish Madhukar Shinde. Morning dying declaration suggests of accidental death, whereas night dying declaration suggests of homicidal death. Fourth dying declaration was recorded on 11/05/2005 by Police Sub-Inspector, Shri Solanke attached to Daryapur Police Station.
EVIDENCE 07] The prosecution in all examined seven witnesses. Three are the relatives of the deceased. They are Narayan Bajirao Parwatkar, father-in-law [PW 1], Rekha Nana Sadanshi, sister-in-law [PW-2] and Pramod Uttamrao Dhakade, brother-in-law [PW-3]. ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 5 There is evidence of two witnesses on the point of Dying Declaration. One is Special Judicial Magistrate, Satish Shinde [PW- 5] and another is Dr. Saima Naz Abdul Qadir, Medical Officer [PW- 6]. There is evidence of Panch witness, Krushnarao Laxmanrao Kherde [spot] and evidence of Investigating Officer, Shri Solanke, Police Sub-inspector [PW-7].
08] So, before us, there are two categories of evidence. The oral evidence of the relatives in the form of disclosures made during lifetime and at the time of hospitalization by deceased Shalini to relatives. Second is two incriminating Dying Declarations dated 30/04/2005 and 11/05/2005.
DISCLOSURES 09] We have gone through the evidence of three relatives on the point of disclosure by the deceased. The duration can be bifurcated into three periods, one is, after the marriage till the deceased Shalini again resumed the cohabitation with the respondent-husband; second is, disclosure made thereafter till she was hospitalized and third one is, disclosure made during hospitalization period. The three witnesses are closed relatives of the deceased. PW-1 Narayan Parvatkar is her father, whereas PW-2 ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 6 Rekha Sedanshiv is her married sister and PW-3 Pramod Dhakade is the husband of another married sister. Respondent-accused used to ill-treat his deceased wife by suspecting her character. It has also come in the evidence of PW-2that in order to remove the doubt, the deceased was being examined by Dr. Bhattad at Duryapur. Doctor has ruled out any pregnancy and at that juncture police complaint was lodged with Kholapur Police Station. We are not inclined to consider those instances of ill-treatment, because after medical examination, the deceased has joined the company of the accused.
10] We are also not inclined to give more weightage to joining of the company by the deceased voluntarily rather than the dislike shown by father PW-1 and sister PW-2. Ultimately, it is the matrimonial life of the deceased rather than what her close relatives felt. It is important to note that after resumption, deceased Shalini gave birth to a daughter. Voluntarily resumption and giving birth to a daughter nullifies the so called ill-treatment given during earlier period. It is not that every ill-treatment is punishable under Section 498-A of IPC. It must be of such a nature as is likely to drive woman to commit suicide or cause injury to her life. Second category is ill-treatment for fulfillment of a dowry. The ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 7 so called ill-treatment during first duration does not fall within the definition of legal cruelty.
11] Initially, the matrimonial home was at Singnapur, Taluka Daryapur, District Amravati. Later on, the respondent-husband shifted to Duryapur. We do not find much particulars were deposed by these three witnesses on the point of ill-treatment after the resumption of cohabitation till the date of incident dated 29/04/2005. There are general allegations that deceased Shalini used to tell them about ill-treatment. It is not of actionable character.
12] The main focus is on the disclosure/oral dying declaration given by the deceased to these three relatives at the hospital. So, we have read the evidence of oral dying declaration on one hand and written dying declaration on the other hand. It is undisputed fact that after the incident, the respondent-husband took the deceased to Duryapur hospital. It is admitted fact that the offences were registered on 12/05/2005 under Sections 498-A, 307 & 302 of the Indian Penal Code. It was on the basis of an implicatory written dying declaration. The first informant complained to Police Sub-Inspector of Duryapur Police Station on ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 8 09/05/2005. He has made two complaints. One is, avoiding to give medical treatment by the respondent-husband to his wife and second is about initial dying declaration recorded due to the pressure of the respondent-husband.
13] It is true that, firstly, Shalini was admitted at a Rural Hospital, Duryapur and then to Civil Hospital, Amravati. First written dying declaration was recorded by Police attached to Duryapur Police Station. It is on 29/04/2005 after certifying the fitness of the deceased by the Doctor. It was admitted by defence that the deceased has explained about the accident. After the meal, the electricity light was put off and kerosene lamp was there. It was kept on a chair and it fell down and her saree caught fire. Her husband tried to extinguish the fire by putting a blanket. Whereas the second dying declaration also suggests of accident. It was recorded on 30/04/2005 at 07:55 a.m. by a Special Judicial Magistrate, Amravati. It was recorded in the General Hospital, Amravati in the presence of the Medical Officer. There also, she has suggested about kerosene burns and accidental injuries. 14] Whereas, the third dying declaration was recorded on 30/04/2005 at 09:10 p.m. by the same Special Judicial Magistrate ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:25 ::: apeal.522.06.jud 9 after fitness was certified by the Doctor. There, she has suggested of pouring of kerosene and set her on fire by igniting match stick, and there, last dying declaration was recorded by PSI Devidas Solanke on 11/05/2005 in the presence of PW-6 Dr. Saima Naz. Signature or thumb impression of the deceased does not appear on it. 15] Now, it will be material to consider about the allegation of the father-in-law pertaining to initial dying declaration on one hand and their stay in the hospital, and then recording of two incriminating dying declarations on other hand. It will be also material to consider the findings given by the learned trial Judge and whether these findings are perverse. On one hand, it is true that two accidental dying declarations were recorded immediately after the hospitalization. The first informant Narayan reached the hospital at 01:30 a.m. in the mid night. It means, the first dying declaration was recorded earlier to his visit, the second dying declaration was also recorded after his departure from hospital. He was there at Amravati Hospital till 04:00 a.m. of 30/04/2005. It will be material to note that, he was aware about accidental dying declaration given by his daughter Shalini. Even though he left from the hospital, his another daughter Rakha was very much there till the death of Shalini. It means, she was fully aware about both the ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:26 ::: apeal.522.06.jud 10 two accidental dying declarations. The third witness Pramod visited Amravati Hospital on the next date. He has expressed ignorance about any of the written dying declarations.
16] So, on one hand, it may be true that first accidental dying declaration was recorded earlier to visit by any of the relatives of the deceased. At the same time, it is also true that both homicidal dying declarations were recorded after the visit of the relatives of Shalini in the hospital. It is important to note that the prosecution has not examined any witness on the point of two accidental dying declarations. Special Judicial Magistrate Satish Shinde was examined on the point of first homicidal dying declaration recorded on 30/04/2005 at 09:10 p.m., whereas, during cross-examination, he has admitted about recording of second accidental dying declaration recorded in the early morning of 30/04/2005. Dr. Saima Naz and Investigating Officer PSI Solanke are the two witnesses on the point of second homicidal dying declaration. It is material to note that this was recorded after the first informant Narayan complained to police on 09/05/2005. Though there is an explanation offered for not having the signature or thumb impression of Shalini on this dying declaration, it was not noted down in it by way of an endorsement.
::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:26 ::: apeal.522.06.jud 11 17] The learned trial Judge has opined about not taking the assistance of Special Executive Magistrate while recording the forth dying declaration. The learned trial Judge has also opined about tutoring possibility by the relatives in between 29/04/2005 up to 11/05/2005. It is admitted fact that 09/05/2005, none of the relatives have complained to police about pouring of kerosene. 18] The law on the point of multiple dying declarations is clear. The issue is more complicated when there are more than one dying declarations suggesting of two contrary stories, one suggesting of accidental injuries and another suggesting of homicidal injuries. The prosecution can be successful in relying upon the homicidal dying declaration only when the accidental dying declaration is shown as doubtful or recorded due to pressure. There is no material on record even to suggest that first and second accidental dying declarations were recorded at the behest of the respondent-accused. They are recorded by the Police and Special Judicial Magistrate respectively.
19] The prosecution tried to raise a doubt about these two accidental dying declarations by pointing out the situation noted down in the spot-panchnama. They have seized a chair, plastic ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:26 ::: apeal.522.06.jud 12 can, one bottle, match stick and saree piece. They have also noticed 5 to 6 used match sticks. Prosecution wants to suggest that they must have been used by the respondent-husband in setting deceased Shalini on fire. It is true that accidental dying declaration can be doubted on the basis of available material. For example, if the stove has burst and there is theory of accidental injuries, such theory can be doubted by showing that the stove was intact. However, merely on the basis of noticing such used matched sticks, we are not inclined to accept that submission. Because 5/6 match sticks can be used for lightening the lamp in usual course or it can be used also for setting ablaze a person on fire. First possibility is more plausible than the second. Because if a particular person is required to use 5/6 match sticks for setting a person on fire, whether that person will wait at the spot till the time taken by the first person in using 5/6 match sticks. This possibility is remote. We reject that contention.
20] So, there were two theories available before the trial Court, one is the kerosene lamp is fallen and saree caught fire, and second is, she was set on fire by pouring kerosene by the respondent-husband. We do not find any fault in the evidence of Special Judicial Magistrate, Dr. Naz and of Investigating Officer. It ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:26 ::: apeal.522.06.jud 13 pertains to recording of homicidal dying declaration. However, before believing them totally, we cannot overlook the presence of the relatives in the hospital from 30/04/2005 till death. Though they have denied tutoring suggestions, we are not believing giving of dying declaration by deceased Shalini by pressure. There is no direct or circumstantial evidence on record to suggest that two dying declarations suggesting accidental burns were recorded under pressure. Why the Special Judicial Magistrate and the Daryapur Police would record them at the behest of respondent/ accused? There is no material brought on record to discard those two dying declarations. On the other hand, there is every reason to doubt the voluntariness of two inculpatory dying declarations. We do not intend to say that two dying declarations recorded by Special Judicial Magistrate and PSI Devidas Solanke were tutored one. But they cannot be believed because the earlier two dying declarations exonerating accused are truthful, voluntary and correctly recorded. If the earlier dying declarations were voluntary and truthful, the prosecution ought to have explained as to why the need arose for it to go on recording two more dying declarations, but it is not so given and so a doubt arises about they being voluntary and truthful. It is for the prosecution agency to remove these clouds. Prosecution has failed to remove them. Hence, there ::: Uploaded on - 18/12/2018 ::: Downloaded on - 27/12/2018 07:47:26 ::: apeal.522.06.jud 14 cannot be any fault in the conclusion drawn by the trial Court. 21] The State and the revision applicant have taken various grounds in the appeal and revision memo. We have dealt with them by giving above observations. The trial Court has rightly given benefit of doubt to the respondent-husband. We are not inclined to set aside the finding of the trial Court. Even, we intend to hold that no second view is permissible in this case different from the view taken by the trial Court. We understand the sentiments of the revision applicant as he has lost his one daughter. We do not know, who is taking care of the son and daughter begotten from the said wedlock. We strongly believe that there is a law of nature also. The respondent-husband was not traceable when the warrant was issued, probably he might have become homeless. We have to decide the matter only on the basis of legally admissible evidence. So, we are unable to accept the contentions of both the State as well as the revision applicant. No interference is warranted. Hence, we dismiss the appeal as well as the revision.
(S.M. Modak, J.) (S.B. Shukre, J.)
*sandesh
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