1 CR.APPEAL NO.143/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.143 OF 2010 Madhukar s/o Ashruba Shinde, Age 27 years, Occ: Labour, r/o Choka, Taluka and, Dist:Aurangabad. ...APPELLANT VERSUS 1. The State of Maharashtra. 2. Saluba Rangnath Kharat, Age 50 years, Occ: agri r/o village Pimpri, Tq. & Dist. Aurangabad. ...RESPONDENTS ... Mr.N.S.Ghanekar, Advocate for appellant. Mr.N.R.Shaikh, APP for respondent no.1 State. Mr. S.W.Jawale, Adv., for respondent no.2, absent. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: AUGUST 17th, 2011 *** ORAL JUDGMENT:(Per A.H.Joshi, J.) 1. This is an appeal by the accused No.1 who has been convicted for the offense punishable under Section 302 of IPC. 2 CR.APPEAL NO.143/2010 All accused, including the appellant, charged for the offenses punishable under Sections 498-A, 323, 504, read with Section 34 of IPC and Section 3 of Dowry Prohibition Act, have been acquitted. All other accused are acquitted as regards the charge under Section 302 of I.P.C. 2. Heard Advocates and perused the record. 3. Prosecution has relied on the testimony of four witnesses. PW No.1 is father of Ashwini - the deceased. PW No.2 is the retired Naib Tehsildar, who has recorded dying declaration. PW No.4 is the person who is the Police Sub Inspector who recorded statement of Ashwini immediately prior to her death, which is treated as dying declaration, as well as on the basis of which FIR is registered. PW No.3 is the Medical Officer, who had treated Ashwini. 3 CR.APPEAL NO.143/2010 4. Cause of death is septicemia due to 100 per cent burn injuries. 5. Prosecution heavily relies upon statement of PW No.1 father on three aspects:- (i) The payment of dowry of a sum of Rs. 35,000/- at the time of marriage. (ii) Demand by the accused persons of amount of Rs.25,000/- for purchase of motor cycle as disclosed by Ashwini about ill-treatment; (iii)Disclosure by Ashwini immediately prior to death about act of the accused. 6. PW 5 has stated that Ashwini used to tell them that she was ill-treated and that while Ashwini was admitted in Ward No.22/23. 7. Prosecution has not examined any other witness to prove the details of ill-treatment and/or cruelty over dowry related demands. 8. In so far as the dying declaration is concerned, the Naib Tehsildar has proved the dying declaration recorded by him. The text thereof is in Marathi. Contents of dying declaration refer to the incident dt.18.5.1998. 4 CR.APPEAL NO.143/2010 Relevant text is translated as follows: " Yesterday, on 18.5.2008, my husband Madhukar Shinde arrived at home and at that time he was drunk. I was watching T.V. He assaulted me and told me to go away, where-ever she wanted. Thereafter, he picked up a can containing kerosene, poured it on me and said that he will put me ablaze and did it. My saree and blouse caught fire. There was no other person in the house at that time. My mother-in-law was asleep. After I shouted loudly, my mother-in-law and my husband poured water on me and covered me with a quilt and extinguished the fire. Thereafter, they took me by a tempo to the Ghati hospital. My husband had tightly caught hold of me at the time of extinguishing the fire and, in the result, he also got burn injuries. ... ..." 9. In the second dying declaration, which is statement recorded by PW No.4 and proved by him, the version which is in Marathi, is translated as follows: " My father had paid dowry of Rs. 35,000/- in my marriage. Myself, my 5 CR.APPEAL NO.143/2010 husband Madhukar and my mother-in-law Rukhmanbai lived together for six months during which period they treated me well. Thereafter, my husband started asking me to bring from my parents Rs. 25,000/- for purchasing motor cycle and used to abuse and beat me. When I had come to the parents house, at the time of festival, I had told them about this. My father and other relatives whom I had told, had advised my husband to treat me well, however, he continued to ill-treat me. My husband used to ill-treat me on the say and instigation of (1) Kamalbai Baburao Shinde, (2) Anusaya Satpute, (3) Sudhakar Satpute, (4) Sangita Giridhar Jadhav, (5) Sunil Jadhav, (6) Sunita Jadhav, (7) Rukhmanbai, and (8) Baburao Ashruba Shinde. On 18.5.2008 at about 8.30 p.m. when I was in the house, my husband Madhukar arrived and asked me as to why I am not bringing amount of Rs.25,000/- from my father and lifted a can of kerosene and poured on my person kerosene from it and lit me with a matchstick. Therefore, my body caught fire. He has done the act of setting fire to me by pouring 6 CR.APPEAL NO.143/2010 kerosene on account of my failure to bring money from my father and thereby had tried to kill me. " (Sub-paragraphing is done for convenience) 10. It is seen from both the dying declarations that the first dying declaration is totally silent on the point of dowry related demands while second dying declaration eloquently and in details narrates the antecedents which, according to the prosecution, pertain to the ill-treatment. 11. The second dying declaration narrates names of as much as eight accused persons who are said to be involved in the instigation and ill-treatment to the deceased. 12. The manner in which the improvements are done in the second dying declaration, which is the statement recorded by the Police Sub Inspector and which is relied upon as a dying declaration, the prosecution story is rendered improbable. 13. It is seen from the cross examination of PW No.5 that his statement contains omissions as to exaggeration of the story given by him. 7 CR.APPEAL NO.143/2010 In the cross examination this witness also admits that there are houses adjacent to the house of accused no.1 and Santosh Shinde, Prayagbai and Rambhaji are the neighbours and are relatives. 14. Had the husband himself desired to kill his wife Ashwini, he would not have poured water on her person and covered her with a quilt in which exercise he too got injuries. 15. Admittedly, husband himself had taken Ashwini to the hospital. 16. The defense has also examined the defense witness to suggest the possibility that Ashwini caught fire accidentally. 17. Defense witness Rambhaji Salve has stated that Ashwini had disclosed to him that in the process of lighting the kerosene stove, due to flickering, she has sustained burn injuries. It is pertinent to note that Rambhaji is the relative, and a neighbour and his status as such is admitted by PW No.1 in the cross examination. 18. It is well settled that the degree of proof required to be brought up by the defense is always to the extent of probabilities and not by 8 CR.APPEAL NO.143/2010 way of proof to the guilt beyond reasonable doubt. 19. Considering these facts, discussed here- in-before, we are of the view that the prosecution has failed to prove solely on the basis of dying declaration that the accused persons have committed the offense. 20. In the result, appeal succeeds. Judgment and order of conviction and sentence is set aside. Appellant/accused be set at liberty forthwith unless required in any other case. Fine amount, if already paid, be refunded. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/143-10cr.a