Cr.Appeal/35/1993 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.35 OF 1993 The State of Maharashtra ..Appellant Versus 1. Subhash Gundiram Jagdale Age 35 years, Occ. Agriculture, 2.Sojarbai Gundiram Jagdale, Age 50 years, Occ. Household, Both r/o Itti, Taluka and District Latur. ..Respondents ... Shri K.G.Patil, APP for Appellant and Shri S.V.Mundhe, Advocate for Respondents ... CORAM : A.H.JOSHI & A.R.JOSHI, JJ. Dated : September 6, 2011 ORAL JUDGMENT : (Per A.R.JOSHI, J.) :- 1. Heard rival arguments on this Criminal Appeal preferred by the State of Maharashtra, challenging the judgment and order of acquittal of both the accused/present respondents. The impugned judgment and order was passed on 30.9.1992 by the learned II Additional Sessions Judge, Latur in Sessions Case No.24 of 1992. Both the respondents/ accused were acquitted of the offences punishable under Sections 302 and 498-A read with 34 of the Indian Penal Code ("IPC" for brevity). Cr.Appeal/35/1993 2 2. The brief facts of the case are as under:- Deceased Vrindavani was married to accused No.1 and was having happy married life for more than ten years. The couple had two daughters. Victim Vrindavani was residing in the joint family along with her husband/accused No.1. Accused No.2 is mother of accused No.1. 3. On occasions of festivals, victim Vrindavani was being taken to her maternal home by her parents and at times, she was complaining of harassment and ill-treatment. However, the situation was not aggravated and victim Vrindavani was having happy married life. On 29.3.1991, an intimation was given to the parents of the victim that victim Vrindavani sustained burn injuries and was admitted in medical hospital. Parents, relatives and brother of victim Vrindavani rushed to the hospital and had a talk with her on the next day morning. Apparently, at that time, victim Vrindavani gave oral dying declaration imputing allegations against both the accused as to pouring kerosene on her person and setting her on fire. Further, she allegedly told that the said quarrel was on account Cr.Appeal/35/1993 3 of some minor incident, as early in the morning on the day of the incident, she was taking milk for feeding the child and there was some quarrel between her and her mother-in-law/accused No.2 and on that quarrel accused No.2 instigated accused No.1 and in the afternoon of relevant day, the incident of burning occurred. She also told that she raised shouts by coming out of the room and various neighbours gathered on the spot and she was taken to hospital. 4. At Ambajogai Hospital, one Head Constable on duty, recorded the dying declaration of victim Vrindavani on receiving intimation from the Police Station. He recorded the dying declaration after ascertaining the condition of victim Vrindavani from the attending Medical Officer. Said dying declaration was treated as first information report and offence punishable under Sections 307 read with 34 of IPC was lodged against both the accused. During investigation, Shri Pathak, Special Judicial Magistrate, Ambajogai was also deputed for recording the dying declaration and it was so recorded in immediate proximity of about one and half hours from Cr.Appeal/35/1993 4 the first dying declaration. While under treatment in the hospital, on 3.4.1991 victim Vrindavani succumbed to 69 per cent burn injuries and as such charge for the offence punishable under Section 302 of IPC was included. Usual investigation procedure was adopted by drawing different panchanams, arrest of both the accused, obtaining of post mortem and chemical analyser's reports and charge sheet was filed and the matter ended in acquittal of both the accused, as mentioned above. 5. Admittedly, the entire case of the prosecution revolves around the oral dying declaration and written dying declarations given by the victim. Admittedly, there was no motive for commission of the offence of murder, inasmuch as, the parents of the victim could not give any authentic material or details concerning the alleged ill-treatment and harassment meted out to victim Vrindavani at the hands of both accused. Only vague allegations were imputed against the accused and considering the evidence of parents of the victim, the trial Court came to the conclusion that no motive was established by the prosecution. Cr.Appeal/35/1993 5 Considering that part of the substantive evidence of the relatives of the victim, in our considered view, there is no error on the part of the learned Sessions Judge in arriving at the conclusion as mentioned above. 6. On this background, it is important to ascertain whether the finding of acquittal is erroneous and perverse and whether a different view can be taken considering the evidence of written dying declarations coupled with the evidence of oral dying declaration. We have observed that the learned Sessions Judge had given reasoning while coming to the conclusion as to failure of the prosecution to establish guilt of both the accused for the offence of murder, mainly, due to the variance in the dying declarations and the possibility of tutoring of victim Vrindavani by her parents. We have also observed that what was weighed with the learned Sessions Judge was the fact that the marriage between victim Vrindavani and accused No.1 took place more than ten years prior to the incident. We have also observed that what was weighed with the learned Sessions Judge was the Cr.Appeal/35/1993 6 testimony of the defence witness - wife of the brother-in-law of the victim. She mentions regarding the accidental catching fire by saree of the victim while working in the house, when apparently, both the accused and said defence witness were in different rooms and working elsewhere. 7. It is also the factual position that no independent witnesses were examined, though admittedly, the neighbours had gathered on the spot after hearing the shouts of the victim and they tried to extinguish the fire. This was treated as a mitigating circumstance to the case of the prosecution by the learned Sessions Judge and it was rightly so, in our view, considering the veracity in the dying declarations given to the Police Head Constable and also the Special Judicial Magistrate. 8. While analysing the effect of both written dying declarations and as to their authenticity, it has been observed that the first dying declaration was recorded after about 24 hours of the incident and prior to recording of such dying declaration by Cr.Appeal/35/1993 7 the Police Head Constable, parents, brother and other relatives of the victim had already reached Ambajogai Hospital and were with the victim on the morning of next day of the incident. Considering the non-disclosure of the incident to anybody, who happened to be on the spot for extinguishing the fire and non-examination of such independent witnesses were considered by the learned Sessions Judge as circumstances against the case of prosecution and the Court had doubted the authenticity of the dying declaration given before the Head Constable, which was recorded on the next day of the incident. 9. We have also observed that the learned Sessions Judge had discussed the medical evidence and the oral testimony of parents of victim Vrindavani as to the oral dying declaration and the Sessions Court had held that the medical evidence is not supporting the case of prosecution as to pouring of the kerosene on the person of victim Vrindavani, as the injuries were because of the saree catching fire. Moreover, the learned Sessions Judge had discussed that no timings were mentioned in the Cr.Appeal/35/1993 8 dying declaration recorded by the Head Constable and this was also held doubtful as to the authenticity of the dying declaration. 10. Now, coming to the dying declaration recorded by the Special Judicial Magistrate, Ambajogai, admittedly, it was immediate in time of proximity of first written dying declaration. This dying declaration is running in to two pages, in which, apparently, the victim had given all the story as to the alleged ill-treatment. In the said dying declaration, it was apparently mentioned that there were demands of amount from the accused persons and that they were not properly respected by the parents of victim Vrindavani and on that count there used to be harassment of victim Vrindavani. Such details are not appearing in the dying declaration recorded by the Police Head Constable. This circumstance also weighed with the learned Sessions Judge, doubting this second dying declaration. Even it is found from the evidence on record that such demands of money by the accused persons were not disclosed by the victim to her parents and the substantive evidence of the parents Cr.Appeal/35/1993 9 of the victim is silent on this point. So also, there was no mention as to no respect being given to the accused persons by the parents of the victim. This fact also weighed with the learned Sessions Judge doubting authenticity of the second dying declaration. In the result, the learned Sessions Judge came to the conclusion that there was possibility of victim being tutored by her parents and consequently, no reliance was placed on the dying declarations. 11. Considering the reasoning given by the learned Sessions Judge, considering the scope of this Court in the appeals against acquittal and further considering that the acquittal is way back in the year 1992, in our view, there is nothing to entertain the present appeal of the State and re- appraise the facts and to come to a different conclusion than that arrived at by the learned Sessions Judge. In other words, there is nothing to entertain the present appeal, which sans merits, and the same is consequently disposed of with the following order. Cr.Appeal/35/1993 10 ORDER The Criminal Appeal No.35 of 1993 stands dismissed. (A.R.JOSHI, J.) (A.H.JOSHI, J.) ... akl