Respondent Nandlal is the brother of respondent Dnyaneshwar.Respondent Chudman is the father of Dnyaneshwar.The accused areresidents of Khamkheda.The parents of deceased hail fromPungaon, Tahsil Chopda.3) The deceased was given in marriage to accusedDnyaneshwar two years prior to the date of incident.There wassome dispute in family and due to that, accused persons hadreached the deceased to the house of mediator Baburao Koli,resident of Jalod.She stayed there for about one and half months.4) The accused persons were not happy with her due to herreturn to matrimonial house, they became angry.They started givingbeating to her every day.Ultimately, on 22.7.1999, the day ofincident, at about 2.00 to 2.30 p.m. all the accused started givingbeating to her and then in the incident, mother in law of deceasedSumanbai poured kerosene which on her person and kerosene waspresent in one bottle and lantern was used.The brother of thehusband held the deceased.The wife of brother of husband Kalpanastarted giving instigations to others to finish the deceased.Similarinstigation was given by father in law.Then husband of the deceasedused match stick and set fire to the deceased.When she was set onfire, she ran out of the house and she extinguished the fire herselfby lying on the ground.The persons like Shravan and Omkar fromthat locality rushed to the spot and they shifted her to ShirpurGovernment Hospital and accused like husband, mother in law alsowent with them to the hospital.5) On the same day, at about 6.05 p.m. the statement ofthe deceased was recorded by police in presence of Medical Officerand on that basis, the crime at C.R. No. 163/1999 came to beregistered for the offences punishable under sections 307, 498-A, 34etc.of IPC in Shirpur Police Station.Police gave requisition to theExecutive Magistrate for recording dying declaration and on the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 4same day, at about 5.40 p.m., dying declaration of the deceasedcame to be recorded.She gave similar account in the dyingdeclaration recorded by the Executive Magistrate.Post mortom wasconducted on the dead body and doctor gave opinion that the deathhad taken place due to cardiorespiratory failure due to hypothalamicand septicemic shock and that was due to 75% burns.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::6) Statements of neighbours of the accused came to berecorded.Statements of parent and relatives of deceased fromparents side also came to be recorded.This document shows that it was prepared in presence ofpanch witnesses on 22.7.1999 between 19.40 hours and 20.45hours.The spot panchanama shows that the incident in questiontook place in the house of accused.The house consist of three roomsand there is separate bathroom.The ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 2respondents are acquitted of the offences punishable under sections302, 498-A r/w. 34 of Indian Penal Code (hereinafter referred to as'IPC' for short).Both the sides are heard.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::2) In short, the facts leading to the institution of the appealcan be stated as follows :-Deceased Ratnabai was the wife of respondentDnyaneshwar.Respondent Sumanbai is the mother of Dnyaneshwar.As the accused persons did not show interest to take her back tomatrimonial house, on her own she returned to the matrimonialhouse and that was happened prior to five days from the date ofincident.She has left behind daughter.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::Appeal No. 384/2000 3The chargesheet came to befiled for aforesaid offences and the charge was also framed foraforesaid offences.There was charge for offence under section 109of IPC also as against the father in law and wife of brother in law.Prosecution examined in all 14 witnesses.Accused took the defenceof total denial.Dnyaneshwar gave written submission when hisstatement was recorded under section 313 of Criminal ProcedureCode (hereinafter referred to as 'Cr.P.C.' for short).He contendedthat the deceased did not want to cohabit with him and so, she hadleft the matrimonial house.He contended that they had fear in themind that she would do something with her life, if she wascompelled to cohabit with him.He contended that even after suchbehaviour of the deceased, the deceased was left forcibly against her ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 5will to the matrimonial house by the husband of her sister and dueto that, she probably set fire to herself.He contended that on thatday, he was not present in the house at the relevant time and hehad gone to bank for withdrawing the cash amount of cheque givento him by his society.He contended that when he learnt in the bankat about 3.00 p.m. about the incident, he rushed to the house andthen he went to hospital.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::7) It is not disputed that the death took place due to 75%burn injuries.Inquest panchanama at Exh. 16 is also not disputed bythe accused persons.It needs to be ascertained as to whether theaccused set fire to the deceased.8) The spot panchanama at Exh. 19 is also admitted by thedefence.Kitchen was situated in theseparate room.In the kitchen, the articles like kerosene lantern andglass bottle in which kerosene was kept were noticed.The spotpanchanama was shown by Pandharinath and he had also shown onequilt which was used for extinguishing the fire.It was found in the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 6front room of the house.Pieces of partly burnt clothes of thedeceased were found inside of the house.Pandharinath then showedanother spot to the police which was at the distance of 40 feet fromthe house of accused.His house is adjacent to the house of accused.In the courtyard of the house of Pandharinath, the pieces of burntclothes of the deceased were lying.The houses of Pralhad Koli andChudaman Koli were adjacent to this house.Similarly, in the vicinityof the said house, there were houses of Tukaram Koli andChandrabhaga.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::9) C.A report at Exh. 21 shows that in the empty lanternand kerosene bottle, which were taken over from the aforesaid spot,kerosene residues were detected.Similarly, on partially burnt clothesof the deceased and on the quilt, which were taken over from thespot, kerosene was detected.No kerosene was detected on matchbox.10) The aforesaid circumstances show that the deceasedcaught fire inside of the house, but she ran outside and probably thefire was extinguished outside of the house.In the dying declarations,she had mentioned the names of two persons like Shravan andOmkar, who had taken her to the hospital, but she had notmentioned the name of the person who had extinguished the fire.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::Appeal No. 384/2000 7She had disclosed to police and Executive Magistrate that she herselfhad extinguished the fire.The dying declaration given beforeExecutive Magistrate is proved by examining the ExecutiveMagistrate Arun (PW 1).His evidence shows that after obtaining theopinion of doctor regarding condition of the patient, the dyingdeclaration was recorded.There is endorsement which is also provedas patient was conscious to give the statement.He had also obtained opinion ofthe Medical Officer regarding fitness of the deceased beforerecording the dying declaration.The contents of this dyingdeclaration are almost similar to the contents of other dyingdeclaration recorded by the Executive Magistrate.11) Dr. Purushottam (PW 11) has given evidence that atabout 4.55 p.m. Executive Magistrate had requested him to giveopinion regarding fitness of the deceased to make the declarationand accordingly, he gave opinion that she was physically fit andmentally conscious to make the statement.He has deposed that thisopinion was given in writing after examining the patient.In the crossexamination, he has given evidence that he remained present by theside of deceased when Executive Magistrate was recording the dying ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 8declaration.He could not say as to whether the contents recorded inthe dying declaration were read over to the deceased beforeobtaining her thumb impression on it.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::12) There is record of two dying declarations made by thedeceased.But there are also other circumstances showing that shewas not ready to disclose as to who had extinguished the fire.Onone hand, she disclosed that the relatives of the husband had shiftedher to hospital, but on the other hand, she also disclosed that somepersons whose names were not known to her were also there fortaking her to Government Hospital.Her disclosure that she had livedin the house of Baburao Koli for about one and half month prior tothe date of incident and she had returned to matrimonial house onher own needs to be checked to ascertain as to whether the standtaken by the husband is true or the disclosure made was true.TheTrial Court has disbelieved the dying declarations on other counts.But, in view of the allegations made against many persons and thecircumstances that the deceased could run out of the house whenshe caught fire and people learnt about the incident as she wasshouting, the evidence of neighbours needs to be considered toascertain the truth.If there was the intention to finish her by settingfire to her, persons setting fire would not have kept the door open toallow her to run out of the house.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::Appeal No. 384/2000 913) Shravan (PW 3), whose name is mentioned in dyingdeclaration is examined by the prosecution.His house is situated atthe distance of around 50 ft.from the house of accused.He hasdeposed that he was sleeping in the house, he heard the shoutingand due to that he came out and he noticed that the deceased hadcome out of the house of accused and there was fire on her clothes.He has given evidence that he himself tried to extinguish the fireand then he took her back to the house of accused.He has givenevidence that she was shifted to hospital in tractor.In the TrialCourt, he was declared as hostile witness as on so called allegeddisclosures made by the deceased to him, he had not givenevidence.The fact remains that his name was taken by the deceasedin dying declaration and due to that, entire evidence of Shravancannot be thrown away only because learned APP preferred to crossexamine him.In dying declaration itself, she had not disclosed thatshe had narrated the incident to two persons whose names arementioned in the dying declaration.14) Pandharinath (PW 4), whose name appears in the spotpanchanama, has given evidence that after hearing shouting of thedeceased, he came out and then by using quilt, he extinguished thefire.His evidence is similar to the evidence of Shravan (PW 3).::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::Appeal No. 384/2000 10Pandharinath was also declared as hostile witness by the prosecutionas he has not given expected evidence on the so called disclosuresmade by the deceased to him.It needs to be mentioned here thatname of Pandharinath is not there in both the dying declarations andso, not much weight could have been given to his evidence even ifhe had given evidence on oral dying declarations.As police believethat he was involved in extinguishing fire to some extent, hisevidence needs to be believed and inference can be drawn that heand others were involved in extinguishing the fire.The evidence ofthese witnesses further shows that they had not seen the husbandand his relatives in the house at the relevant time.Similar evidenceis given by Omkar (PW 5), but he is not declared as hostile.Hisevidence shows that mother in law of deceased was available in thehouse and she had come to the hospital when they had shifted thedeceased to the hospital.There is the evidence of other neighbourTirinabai (PW 6), but that is of no help to the prosecution and she isalso declared as hostile.15) Prosecution has examined Vaijayantabai (PW 7), motherof the deceased.Her evidence shows that during the visits of thedeceased to the parents' house, she was disclosing that there wasilltreatment to her.Accused No. 1 - Dnyaneshwar was alreadymarried.Her evidence shows that after the death of father, the ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 11deceased had expressed desire to return to the matrimonial house.Thus, she admits that she was living with her parents for the periodwhich was not normal.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::16) Vaijayantabai (PW 7) has given evidence that she learntabout the incident after three days and then she went to the cottagehospital after three days of the incident and there oral disclosurewas made by the deceased to her against the accused of theaforesaid incident.It needs to be mentioned that there is no medicalevidence like bed head ticket of the deceased to ascertain as towhether on that day, she was conscious or not conscious.Further,the evidence of so called disclosure given by this lady is notconsistent with particulars mentioned in the recorded dyingdeclaration.17) Vaijayantabai (PW 7) has given evidence that the fact ofprevious marriage of accused No. 1 - Dnyaneshwar was not knownto the deceased.She admits that even when it was the first deliveryof the deceased, the delivery had taken place in the house ofaccused.She has given evidence that there was suspicion about hercharacter to accused No. 1 and due to that there was illtreatment.In recorded dying declaration deceased had not ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 12disclosed that accused had suspicion about her character.Thus, theevidence of mother of the deceased shows that deceased had nointention to resume cohabitation and this circumstance is notconsistent with the contents of the recorded dying declaration.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::18) Apparently, there was no reason for which accused couldhave given illtreatment to the deceased.Such reason is also notmentioned in the recorded dying declaration.Evidence is also givenby Dinkar (PW 8), brother of the deceased.His evidence is vague onthe illtreatment and also on disclosure was made by the deceased tohim.His evidence is similar to the evidence of mother of deceasedabout the so called disclosures made by the deceased three daysafter the incident.His evidence is also not that convincing.19) Bhaskar (PW 9) is the mediator, whose name ismentioned in dying declaration, has given evidence that about onemonth prior to the date of incident, accused had reached thedeceased to his house.He has given evidence that accused used tosuspect about her character and they used to give beating to her.Hisevidence shows that they were questioning about the first marriageof the deceased.Thus, it appears that it was also second marriage ofthe deceased.He has given more evidence by saying that accusedwere asking divorce from the deceased and they were ready to give ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 13Rs.60,000/- to the deceased.He has given evidence that deceasedhad refused to do so.In the statement given to police, he had statedthat he had reached the deceased to the matrimonial houseimmediately on the next day when she was reached to his house byaccused.This circumstance is admitted by him.He admitted that hehad not stated before police that accused were asking the deceasedas to why her first marriage was broken.The mother of thedeceased has not supported the version of this witness as she hasnot given evidence that accused were asking divorce from thedeceased and there was such talk.His evidence is not consistentwith the evidence of mother of deceased as mother has admittedthat the deceased had no desire to return to matrimonial house.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::20) Prosecution has examined one Joharlal (PW 10) to showthat the husband was asking for divorce from deceased and he wasready to pay Rs.60,000/-.He has deposed that he was taken by thehusband of deceased with him when he had gone to the deceased togive such proposal.His evidence does not show as to whether heknew that the deceased had stayed in the house of Bhaskar Koli formore than one month.He is not relative of the accused or thedeceased.21) The aforesaid evidence shows that the evidence of third ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 ::: Cri.Appeal No. 384/2000 14persons is not consistent with the evidence of close relatives of thedeceased.It was second marriage for both accused No. 1 and thedeceased.There was apparently some dispute between accused No.1 and the deceased.But, on the basis of aforesaid evidence, itcannot be inferred that there was illtreatment to the deceased fromthe accused as mentioned in section 498-A of IPC.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::22) There was some dispute and the evidence shows thatthird persons, not the husband and father of the husband, shiftedthe deceased to the hospital.It was noon time.Though accused No.1 has tried to take the defence of alibi, the initial burden was on theprosecution to prove that all the accused were present in the houseat the relevant time.There can be many reasons fora lady to set fire to herself.There is no circumstance to show thatthe accused had the intention to finish her and with that intention,they had used force against her and then set fire to her.Due tothese circumstances, this Court holds that it is difficult to believethat the accused persons had set fired to the deceased and theincident had taken place as narrated in the recorded dyingdeclarations.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::Appeal No. 384/2000 1523) The learned counsel for accused placed reliance on theobservations made by the Apex Court in the case reported as AIR1987 SC 1083 [Tota Singh Vs.State of Punjab] and submittedthat the probability which is accepted by the Trial Court was thereand so, it is not possible to interfere in the decision given by the TrialCourt.The learned counsel submitted that the evidence is properlyappreciated by the Trial Court and there are reasons for not relyingupon the recorded dying declarations.The learned counsel placedreliance on other case reported as 1999 (Supp.1) Bom.C.R. 215(Bombay High Court) [Manohar Dadarao Landge Vs.Therecannot be dispute over this proposition.This Court holds that in viewof the reasons given by the Trial Court and the material discussed bythis Court, it is not possible to interfere in the decision of acquittalgiven by the Trial Court.In the result, the appeal stands dismissed.::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:31:52 :::

Sections cited: Section 498A in The Indian Penal Code, Section 109 in The Indian Penal Code, Section 307 in The Indian Penal Code, Section 34 in The Indian Penal Code