Bombay High Court
State Of Maharashtra vs Uttam Karbhari Dhage And Another on 20 February, 1997
Equivalent citations: 1997BOMCR(CRI)~, 1997CRILJ2513
Bench: Ranjana Desai, Vishnu Sahai
JUDGMENT Sahai, J.
1. The appellant, aggrieved by the Judgment and order dated 30th June, 1984, passed by the Additional Sessions Judge, Nasik, in Sessions Case No. 43 of 1984, acquitting the respondents for the offences punishable under Section 302 r./w. 34, I.P.C., has come up in appeal before us.
2. Briefly stated, the prosecution case runs as under :
Deceased Jijabai was the wife of respondent-Uttam Karbhari Dhage and the sister-in-law of respondent-Bhaguji Lahanu Dhage. The evidence is that both the respondents were cousin brother.
It is alleged that Jijabai used to reside with Uttam Karbhari Dhage in village Pathardi situated at a distance of about 8 to 10 miles from Nasik. It is said that Uttam Karbhari Dhage used to ill-treat Jijabai. It is also said that he was addicted to drinking and had developed illicit relations with wife of respondent-Bhaguji Lahanu Dhage. The latter was residing in Tidke Colony at Nasik. The intensity of the sour relationship between Uttam Karbhari Dhage and Jijabai could be guaged from the fact that often for days, the former used to remain absent from the house and did not use to speak with Jijabai. 3. On 11-4-1983 the respondents came to the house where Jijabai lived. They asked her to prepare food for them. At about 8.30 p.m. or so, the respondent-Uttam karbhari Dhage enquired from Jijabai as to, whether she had completed the cooking. She replied that it would take some more time. Infuriated by this answer, respondent-Bhaguji Dhage picked up a kerosene lamp and poured the kerosene oil therein on the sari of Jijabai and thereafter, respondent-Uttam Dhage set her to fire with the same lamp. Jijabai got immediately engulfed in flames. She started raising cries hearing which, a large number of persons, including Dharma Dhemse, Police Patil (PW-1), her mother Sonyabai (PW-2), her landlady Vithabai (PW-3), her aunt Shevantabai (PW-4) and Vasant Pabale (PW-5), whose wife was her cousin came at the place of incident. It is said that Jijabai made oral dying declarations in their presence. Dharma Dhemse advised that Jijabai should be immediately removed to Nasik. A rickshaw was brought and in the same Jijabai was taken to Nasik. It is said that Vasant Pabale and shevantabai (PW-4) accompanied Jijabai in the rickshaw and came to Nasik.
4. The F.I.R. of the incident was lodged by Jijabai the same day at 10 or 10.30 p.m. at Taluka Police Station, Nasik. After obtaining Jijabai's thumb impression on the F.I.R., PSI Murlidhar Nemade (PW-8) registered a case under Section 307, I.P.C.
In short, Jijabai has stated in her F.I.R. that, at 8-8.30 p.m. while she was cooking in the house, her husband-respondent-Uttam Karbhari Dhage and her husband's cousin-respondent-Bhaguji Lahanu Dhage came inside the house and asked her whether the cooking was over. She replied in the negative. On that, both of them started abusing her and poured kerosene oil on her person. Thereafter, they took a lamp and with it Uttam Karbhari Dhage set her on fire. She has mentioned therein that, Bhaguji Dhage joined in the incident because her husband Uttam Dhage was having illicit relations with his wife.
5. After lodging the F.I.R., PSI Murlidhar Nemade referred Jijabai to Civil Hospital, Nasik. She was examined at the said hospital the same night and her injury report shows that, she sustained 55% burns which were distributed between neck, trunk and some parts of buttock.
6. The evidence of PSI Murlidhar Nemade also shows that, after recording the F.I.R. and referring Jijabai to Civil Hospital, Nasik, he sent a letter to the Special Executive Magistrate for recording Jijabai's dying declaration. The evidence of the Special Executive Magistrate - Suresh Shardul (PW-6) shows that on 11-4-1983, at about 11 p.m. a Constable gave him a letter of request for recording the statement of a victim of a case of burns and thereupon, he went to Civil Hospital, Nasik, where the victim was admitted. His evidence further is that, he asked Doctor on duty and the nurse nearby as to, whether the victim was in a fit condition to make a statement and when they replied in the affirmative, he asked her relations to go out of the room and thereafter recorded her statement. After completing the statement, he took her thumb impression on it. The statement of Jijabai is at Exh. 18. A persusal of Exh. 18 shows that Jijabai was married about 12 years ago to the appellant; the couple had 3 children; on 11-4-1983 between 8 p.m. to 8.30 p.m. while she was cooking, the respondents came; and respondent-Uttam Karbhari Dhage, her husband enquired from her whether she had completed her cooking. She replied that she was in the process of cooking. On that, he and respondent-Bhaguji Dhage abused and slapped her. Thereafter, they poured kerosene oil which was inside a glass lamp on her and set her on fire. She further stated that after sustaining the burns, persons who were residing in her vicinity came and tried to extinguish the fire. Thereafter, her parents came. Her uncle Kachru Ubhale, his wife Shevantabai Ubhale and brother-in-law Vasant Pabale had first taken her to Nasik Taluka Police Station, where she lodged the F.I.R. and thereafter had her admitted in the hospital.
7. The evidence is that, Jijabai succumbed to her injuries in Civil Hospital, Nasik on 4th May, 1983. Going backwards, the investigation of the case was conducted by P.S.I. Murlidhar Nemade (P.W. 8). His evidence is that, after registering the case on the basis of the FIR and sending a letter to the Special Executive Magistrate for recording the dying declaration, he immediately left for village Pathardi, where the incident had taken place. He found that Respondent - Uttam Dhage was on the road in the village. The time was about 10-45 p.m. He arrested him under a panchnama Exh. 20 and brought him to police station. The next day he prepared the spot panchnama. Its perusal shows that, at the place of the incident a glass bottle which was being used as a lantern, having a cotton warp; one mini lantern; a piece of recently burnt sari, which was half burnt and smelling of kerosene; and some other articles were lying. He collected the said articles. On 15th April 1983 he recorded statements of some witnesses and arrested Respondent - Bhaguji Lahanu Dhage. On 18th April 1983, he recorded the statements of some more witnesses. On 4th May 1983, he learnt through a phone call that, Jijabai was dead and consequently, prepared the inquest panchnama and converted the case from 307, IPC to 302, IPC. During the course of investigation, he sent the recovered articles to the Chemical Analyst. Finally after completing the investigation, the Respondents were chargesheeted.
8. Going backwards, the autopsy on the dead body of the deceased Jijabai was conducted on 4-5-1983 between 11 a.m. to 11-30 a.m. at Civil Hospital, Nasik. A perusal of the autopsy report shows that, Jijabai had suffered the following ante-mortem injuries :
"1. 1st degree Burn on abdomen & chest - 12%.
2. 1st degree Burn on Back - 18%.
3. 1st Degree Burn on (RP) upper linb - 5%.
4. 1st Degree Burn (RP) thigh - 10%.
5. 1st Degree Burn on (L/c) thigh-1O% Total 55% Burn of 1st Degree. Blackening of skin present on (Rt) thumb & (Lt) thumb & (Rt) butt. c/c."
In the opinion of the autopsy surgeon, she died on account of 55% burns of first degree which she had suffered.
9. The case was committed to the Court of Sessions in the usual manner. In the trial Court, the Respondents were charged for an offence punishable under S. 302 r/w, 34, IPC. To the said charge they pleaded not guilty and claimed to be tried. The defence of the Respondents was that of denial. Respondent No. 2 Bhaguji Lahanu Dhage pleaded alibi and examined DW-1, Bharat Pandya, Personnel Officer, in an industrial unit known as 'Business Combine' at Satpur, Nasik, wherein, he was employed, in his defence. His alibi was that, at the time of the incident, he was present in the said unit.
During trial, in all, the prosecution examined 8 witnesses. We may straightway mention that, there is no eye-witness and the case hinges on dying declarations, which can be classified under three categories :-
(a) oral dying declaration deposed to by Dharma Dhemse (PW-1), Sonyabai (PW-2), Vithabai (PW-3) and Vasant Pabale (PW-5);
(b) the FIR lodged by the victim at about 10 or 10-30 p.m. on the date of the, incident at Taluka Nasik Police Station; and
(c) the statement of the victim recorded by the Special Executive Magistrate, Suresh Shardul (PW 6) on the date of the incident sometimes after 11 p.m. at Civil Hospital, Nasik.
After recording :- the evidence adduced by the prosecution; the statements of the Respondents-accused under S. 313, Cr.P.C.; the statement of DW-1 Bharat Pandya; and hearing learned counsel for the parties, the learned Trial Judge acquitted the respondents vide the impugned judgment.
It is this acquittal, which has been taken offence to by the Appellant - the State of Maharashtra.
10. It is a matter of profound regret that, though the case has been on the board of this Court for some time, the learned counsel for the Respondents has not chosen to make himself available. However, as the appeal related to the year 1984, we did not adjourn it. With the assistance of the learned counsel for the Appellant, Mrs. Jyoti Pawar, we went through the impugned judgment and the evidence on record. After thoughtfully reflecting over the entire material, we are of the considered view that there is no merit in this appeal and it deserves to be dismissed.
11. At the very outset, we would like to point out that, we are seized of the matter in an appeal against an acquittal wherein, the settled law is that, the Appellate Court only interferes if the view of acquittal is grossly unreasonable on facts or has been occasioned by a manifest illegality resulting in failure of justice.
With this yard-stick in mind, we have examined the impugned judgment and are satisfied beyond all shadow of doubt that, it does not merit any interference.
12. We would now like to take up the various dying declarations. We begin first with the first oral dying declaration. For that, we have the evidence of Dharma Dhemse (PW-1). Dharma Dhemse has stated that when he reached the place of incident on hearing Jijabai's cries, he found her on the ota of her house with burn injuries over her body. She was conscious and many ladies had surrounded her. He stated that Jijabai was disclosing to those ladies, that, her husband had burnt her by pouring kerosene oil from the lamp. The learned Trial Judge did not accept this dying declaration on the following grounds :- (a) Dharma Dhemse was the only person who deposed about it; (b) that none of the women before whom it was made were examined by the prosecution; and (c) it is in derogation with the other oral dying declarations as well as the FIR and the statement recorded by the Special Executive Magistrate inasmuch as, in it she mentions only about her husband (Respondent - Uttam Karbhari Dhage), but in them she has mentioned both about Uttam Dhage and Bhaguji Dhage. In fact, in other oral dying declarations she has alleged that Bhaguji Dhage poured kerosene oil on her and her husband - Uttam Dhage set her on fire.
In our view, on account of the said infirmities the learned trial Judge was wholly justified in rejecting this dying declaration.
13. Therefore, we have the other oral dying declarations, which are said to have been made by Jijabai to her mother - Sonyabai; her landlady Vithabai; her aunt - Shevantabai; husband of her cousin - Vasant Pabale; and the police Patil - Dharma Dhemse. We would straight away like to mention that Vithabai and Shevantabai in the trial Court, have not deposed about Jijabai making a dying declaration before them. However, in all fairness, we may point out that they were declared hostile by the prosecution and in the cross-examination were confronted with those portions of the statement under S. 161, Cr.P.C. wherein, they stated that Respondent-Bhaguji Dhage poured kerosene oil on her and Uttam Dhage had burnt her. The said dying declarations and those made before Sonyabai, Vasant Pabale and Dharma Dhemse do not inspire confidence for in all of them Jijabai stated that Respondent-Bhaguji Dhage poured kerosene on her and Respondent-Uttam Dhage burnt her and there is clinching evidence to show that Bhaguji Dhage was not present on the place of the incident at the time alleged by the prosecution.
In this case, Respondent-Bhaguji Dhage has proved an iron-cast alibi to the effect that, at the time of the incident he was in the industrial unit known as 'Business Combine' at Satpur. The evidence is that the said unit is situated at a distance of 11 miles from the place of the incident. To prove his alibi, he examined Bharat Pandya (DW-1), the Personnel Officer, of the said industrial unit. The evidence of the said Officer is that, he was serving in the said unit since 1st July 1979 and Bhaguji Lahanu Dhage was in service before he had joined and was working in the Machine Moulding Department as a helper. His evidence further is that, there are four shifts in his factory; the first from 7 a.m. to 3 p.m.; the second from 3 p.m. to 11 p.m.; the third from 11 p.m. to 7 a.m.; and the fourth, a general shift, from 8-30 a.m. to 5 p.m. and that, whenever a worker does overtime work, he has to work for the whole of the next shift. His evidence shows that an attendance register; an overtime register, and an attendance card for each worker are maintained in the factory. On the basis of the said registers, he deposed that, on 11-4-83 Bhaguji Dhage worked in the first and the second shifts. During cross-examination he stated that, excepting for the lunch period, if a worker goes out, his absence is noted in the attendance register and in the attendance card. From his cross-examination, the prosecution could not elicit anything which could discredit the claim of the Respondent-Bhaguji Dhage that, he worked in the industrial unit from 7 a.m. to 11 p.m. on 11-4-83.
Thus, the evidence of DW-1 Bharat Pandya shows that Respondent Bhaguji Dhage could not have participated in the incident which took place at about 8 or 8-30 p.m. on 11-4-1983. It is certain that the incident took place before 10-30 p.m. that day, because the evidence of P.S.I. Murlidhar Nemade, who registered the case on the basis of the FIR is that, at about 10 or 10-30 p.m., the complainant Jijabai came at Taluka Nasik Police Station and made her FIR and at about 10-45 p.m. he reached the place of the incident.
In this view of the matter, it is per-se established that, Bhaguji Dhage has been falsely implicated by Jijabai in the oral dying declarations.
14. We would like to emphasize that, where an integral part of the dying declaration is false, the residual part cannot he accepted, on the principle that, falsus uno falsus omnibus is not a rule applicable to our country. The rationale behind this is that, unlike ocular evidence, a dying declaration cannot be tested on the anvil of cross-examination. Once the Court is convinced that, an integral part of the dying declaration is false inasmuch as, an accused person has been falsely named therein, the principle that, truth sits on the lips of the dying man on which is founded the rationale of accepting a dying declaration cannot be pressed into service for salvaging the residual portion of the dying declaration. In other words, the same dying declaration cannot be accepted against a co-accused. We are fortified in our view by the observations contained in para 9 of the judgment of the Apex Court ; Thurukanni Pompiah v. State of Mysore, which read thus :
"............ If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased's version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration ............"
15. For the aforesaid reasons, all the oral dying declarations cannot be accepted. We hasten to add that, the learned Trial Judge has given some other reasons for rejecting the oral dying declarations with which we are in agreement.
16. We now come to the written dying declarations namely, the FIR and the statement recorded by the Special Executive Magistrate - Suresh Shardul (PW. 6). These two dying declarations have to be rejected by us on the same ground on which we have rejected the oral dying declarations.
As stated earlier, in both these dying declarations Jijabai has stated that on 11-4-1983 at about 8 or 8-30 p.m., the two respondents came. Respondent - Uttam Karbhari Dhage, her husband asked her whether food was ready. She replied in the negative. This infuriated him and his cousin Bhaguji Dhage. Thereafter, they poured kerosene oil on her and Uttam Dhage set her on fire.
In both these dying declarations not only Respondent-Bhaguji Dhage has been named, but the specific overt act of pouring kerosene oil on Jijabai along with Jijabai's husband - Uttam Dhage has been assigned to him. In paragraph 13 we have given our reasons as to, why we are implicitly satisfied that at the time of the incident Bhaguji Dhage was in the industrial unit 'Business Combine' at Satpur situated 11 miles away from the place of incident and hence, could not have participated in the incident. Since these two dying declarations equally incriminated Bhaguji Dhage, they also cannot be baccepted.
17. There are two other reasons which make us reluctant in accepting the dying declarations in general. The first is that, according to the prosecution, Respondent - Uttam Dhage was having illicit relations with the wife of Respondent - Bhaguji Dhage. In that situation, in our view, Bhaguji would have had a grievance with Uttam Dhage and hence, there was no question of his coming to his house and in combining with him in committing the murder of Jijabai. The second is that, the burnt portion of the blouse and sari of Jijabai was sent to the Chemical Analyst. The report of the Chemical Analyst shows that, no traces of kerosene were found on the sari or on the blouse. We would be well to bear in mind that, the prosecution case is that, after kerosene had been poured on the victim, she was set on fire. The report of the Chemical Analyst falsities the story of kerosene being poured on the victim.
18. We have a very strong conviction that, the deceased committed suicide. In this connection, it would be apposite to refer to the cross-examination of Sonyabai (PW. 2), the mother of the deceased. In para 4, she has stated that her daughter Jijabai had told her that some day she would end her life and involve others. We dare say that it appears this is what, has happened in this case. On this hypothesis alone, the absence of traces of kerosene oil on her blouse and sari can be explained. Their absence is not compatible with the prosecution case which is that, after kerosene oil had been poured on her she was set to fire.
What is the manner in which Jijabai committed suicide is a matter which we are not called upon to explain. In a criminal case, the accused has to only show that the incident did not take place in the manner alleged by the prosecution. The law does not cast any obligation on him to explain as to how the offence was committed. How and in what manner Jijabai committed suicide is anybody's guess. That she did not die a homicidal death in the manner alleged by the prosecution is something about which we are certain. 19. For the said reasons, we are implicitly satisfied that the view of the learned trial Judge was not only a possible view, but a wholly plausible one. In our judgment, the contrary view would have been a wholly perverse view. In our view, the prosecution has miserably failed to prove beyond reasonable doubt that it was the Respondents, who had committed the murder of Jijabai.
20. In the result, this appeal is dismissed. The acquittal of the Respondents - Uttam Karbhari Dhage and Bhaguji Lahanu Dhage for the offence under S. 302 r/w 34, IPC recorded vide the impugned judgment dated 30-6-1984 passed by the Additional Sessions Judge, Nasik, in Sessions Case No. 43 of 1984 is confirmed. The Respondents are on bail. They need not surrender. Their bail bonds stand cancelled and sureties discharged.
We would like to close this judgment with the observation that in spite of the fact that this Appeal was well-down on the Board and there were no chances of its being taken up in the normal course, Mrs. Jyoti S. Pawar, learned counsel for the Appellant, was well prepared and rendered us admirable assistance.
In case a certified copy of this judgment is sought for, the same shall be issued on an expedited basis.
21. Appeal dismissed.