-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINALL APPELLATE JURISDICTION CRIMINALL APPELLATE JURISDICTION CRIMINALL APPELLATE JURISDICTION CRIMINAL APPEAL NO.79 OF 1994 CRIMINAL APPEAL NO.79 OF 1994 CRIMINAL APPEAL NO.79 OF 1994 The State of Maharashtra ..Appellant (Original Complainant) vs. Devichand Mishrimal Solanki R/of 1535/16, Bhimpura, Pune Cantonment, Pune. ..Respondent. (Original Accused.) Mr.V.A.Konde Deshmukh for the State. Mr.Rahul S.Kate, Advocate for the Respondent. CORAM : S.S.PARKAR CORAM : S.S.PARKAR CORAM : S.S.PARKAR S.R.SATHE, JJ. S.R.SATHE, JJ. S.R.SATHE, JJ. DATED : 29th August, 2005. DATED : 29th August, 2005. DATED : 29th August, 2005. JUDGMENT (Per S.R.Sathe, J.). : JUDGMENT (Per S.R.Sathe, J.). : JUDGMENT (Per S.R.Sathe, J.). : 1. The State of Maharashtra has preferred this appeal against the judgment and order passed by the Court of 9th Additional Sessions Judge, Pune in Sessions Case No.211 of 1992 whereby the accused was acquitted of the offences punishable under section 302 and 498A of IPC. -2- 2. Brief facts giving rise to this appeal are as under : . Marriage of deceased Sushila had taken place with accused on 30.06.1990. Admittedly, it was second marriage of both of them. Immediately after the marriage deceased Sushila started residing with accused at her in laws house at Sahakar Nagar, Pune. After residing there for a period of about one or two months accused and Sushila shifted to separate premises at Sahakar Nagar and stayed there for about 7 to 8 months. Thereafter both of them stayed with Jatanbai, wife of brother of deceased Sushila. When deceased was residing there, she delivered a female child named as Sonu. 3. The incident in question has taken place on 17.1.1992. Since two months prior to the incident, accused and Sushila had started residing in the house which was taken on lease by Bhavarlal, husband of Sushila’s sister. As Bhavarlal had gone to Karnataka, with a view to help the accused, he had permitted him to stay in -3- his rented premises. 4. It is the case of prosecution that accused was ill-treating Sushila and used to beat her as she used to make a grievance about his late arrival at the residence. The accused was not providing sufficient money for household expenses. He even used to say that Sushila was a woman of bad omen. When she gave birth to a female child accused started saying that he would be required to spend more. It is alleged that accused used to ask the deceased to bring money from her brother and parents for purchase of a house and on that count used to ill-treat her. Deceased Sushila had informed about the said ill-treatment to her sister in law and her friend Khatunbi. Inspite of this illtreatment Sushila continued to stay with the accused with a sheer hope that after lapse of time there may be improvement in the behaviour of the accused. 5. On 17.1.1992 Charbavdi police chowki received information that one lady and her small child have been admitted in Sasoon Hospital as a -4- result of burn injuries. Infact deceased Sushila and her daughter Sonu were admitted in Sasoon Hospital. Sonu expired on the same night. When deceased was admitted in the hospital her dying declaration was recorded by the Special Judicial Magistrate in which she said that when she was preparing tea on the gas her saree caught fire hence she shouted and her husband i.e. accused went there and extinguished the fire. Her minor daughter Sonu, aged about 9 months was in her arms at that time and hence she also sustained burn injuries. When she was admitted in hospital her sister in law i.e. sister of the accused had accompanied her. After her admission accused also went there. In the meantime he informed Jatanbai, the wife of brother of the deceased about the incident and hence Jatanbai immediately rushed to the hospital. When Jatanbai made query with Sushila she told her that accused had a quarrel with her and he beat her and poured kerosene on her person and set her on fire. She, therefore, immediately gave phone message to Chandamal, the brother of the deceased . On receipt of the information about Sushila, he also went to Sasoon -5- hospital. When he made query with Sushila, she told him that on that day at about 4 p.m. accused had returned home. She was preparing tea on the gas. She told accused that they would go to bazaar for purchasing clothes for herself and her daughter. At that time there was some altercation between the two and accused gave her slap and fist blows and said that he would not spare her. On saying so, accused poured kerosene on her person and set her on fire. At that time Sonu was on her lap and she also sustained burn injuries. When Sushila tried to come out of the house, accused blocked her way, but she went out of the house and then the neighbourers extinguished the fire and took her to hospital. Sushila also told him that as she would be residing with accused at his house after recovery, he should not disclose the incident to anyone. Similarly, Khatunbi, friend of Sushila, Bhavarlal Chauhan, and Jatanbi, wife of Sushila’s brother were told accordingly by Sushila when each of them had gone to Sushila and made query. During all this time Sushila was under treatment of Doctors at Sasoon Hospital. Though her daughter had expired on first day of -6- their admission the said fact was not informed to her as per the advise of the doctor. 6. On 23.1.1992 Sushila’s health deteroited. At that time Sushila was informed that her daughter Sonu has expired. When she came to know about the sad demise of Sonu, she got annoyed and told the above mentioned persons that now she would not keep mum and would not allow the accused to escape free and would disclose the true facts. She expressed that she would like to give statement in respect of the real facts. The doctor on duty therefore informed the concerned officer and accordingly Special Judicial Magistrate Subhash Dahiwal went to Sasoon Hospital on 23.1.1992 at about 3.30p.m. After verifying that Sushila was in a position to give statement, he recorded the dying declaration of Sushila wherein she said that initially she had given false statement, but now she would be giving the true facts and said that on the day of incident she asked her husband as to why he used to come late at residence and on that count accused assaulted her and poured kerosene on her person -7- and set her on fire. When she shouted accused poured water on her. Then at about 5 O’Clock on 23.1.1992 PSI Kale recorded the complaint of Sushila in Sasoon Hospital. On the basis of her dying declaration and the complaint, police registered offence punishable under section 307, 498A of IPC against the accused. However, on the same day i.e. on 23.1.1992 at about 7.30 p.m. Sushila succumbed to the burn injuries. Police therefore drew inquest panchanama and sent the dead body for post mortem. The doctor opined that death was due to shock and toxemia as a result of burns. The police, therefore registered the offence punishable under section 302 of I.P.C. Police then recorded the statements of witnesses and also sent the clothes of deceased and other articles, which were attached by them under panchanama drawn on 18.1.1992 to the C.A. The C.A. opined that kerosene residue was found on the saree which was attached at the place of offence. Police then arrested the accused and after completion of investigation submitted chargesheet against the accused for the offences mentioned above in the Court of JMFC, Pune. -8- 7. Finding that the accused is chargesheeted for the offence punishable under section 302 of IPC which is exclusively triable by the Court of Sessions, the learned JMFC committed the case to Sessions Court, Pune. 8. The 9th Addl. Sessions Judge, Pune framed charge exhibit 2 against the accused for the offences mentioned above. The charge was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried. His defence was of total denial. 9. In order to bring home the guilt of the accused, the prosecution examined as many as 9 witnesses consisting of P.W.1. Chandanmal Rathod, brother of deceased exhibit 14, P.W.2 panch witness Rajendra Nazare, exhibit 17, P.W.3. Khatunbi Kacchi, friend of the deceased-exhibit 19, P.W.4. Subhash Dahiwal, the Special Judicial Magistrate- exhibit 20, P.W.5. Bhavarlal Chauhan, the husband of the elder sister of the deceased-exhibit 23, Dr. Shruti Joshi-exhibit 24, -9- Jatunbai, wife of brother of deceased-exhibit 28, Dr. Shirsankar-exhibit 29 and PSI Kale-exhibit 33. Prosecution also produced the dying declaration recorded by JMFC Dahiwal- exhibit 22, panchanama of place of offence-Exhibit 18, inquest panchanama. C.A.report exhibit 36. Post mortem notes exhibit 10 and 11. From the suggestions put to the prosecution witnesses and from the statement of the accused recorded under section 313 Cr.P.C. it appears that the defence of the accused is of total denial. According to him as prosecution witnesses are close relatives of the deceased and as Sushila died they deposed against him and that he is falsely involved in the case. The accused examined Special Judicial Magistrate Kamlakar Adhav in his defence at Exhibit 42. 10. After considering the evidence on record the learned trial Judge came to the conclusion that first dying declaration given by deceased Sushila wherein she had said that she sustained burn injuries due to accident is true and reliable and the same has to be accepted. He also held that the second dying declaration has been -10- recorded six days after the incident of burning and during the period of the said six days all the near relatives including the prosecution witnesses Chandanmal Rathod, Khatunbai Kacchi, Bhavarlal Chauhan and Jatanbai were near her and possibility of these witnesses tutoring deceased Sushila can not be ruled out. According to him, the second dying declaration as well as her statement exhibit 26 are not voluntary and the same can not be relied upon. He also held that there was no sufficient evidence regarding the alleged cruelty. He, therefore, acquitted the accused of the offences punishable under section 498A and 302 of I.P.C. 11. Being aggrieved by the above mentioned order, the State of Maharashtra has preferred the present criminal appeal. In this appeal before us, Shri Konde Deshmukh, learned APP has urged three points. Firstly, he submitted that the learned trial Judge has not properly appreciated the evidence on record and has given undue importance to the minor discrepancies in the evidence of witnesses Chandanmal Rathod, Khatunbi -11- Kacchi, Bhavarlal Chauhan and Jatunbi Rathod. Secondly, he argued before us that deceased Sushila had infact given reason for not telling true incident in the initial dying declaration and the same ought to have been believed by the learned trial Judge. Lastly, he submitted that the learned trial Judge failed to consider the fact that when there were no allegations against the accused and nobody had said that Sushila sustained burn injuries due to pouring of kerosene and setting her on fire, police have drawn the panchanama of place of offence and at that time one saree having kerosene smell was found at the said place and the said evidence was sufficient to show that the earlier statement given by Sushila that she sustained burn injuries while she was preparing tea on the gas is not true. The second dying declaration dated 23.1.1992 is recorded by the Special Judicial Magistrate by following due procedure and when Sushila was in a condition to make statement. However, the learned trial Judge wrongly disbelieved the same.He, therefore submitted that relying on evidence of second dying declaration recorded on 23.1.2005 as well as oral -12- dying declarations made to Chandanmal Rathod-exhibit 14, Khatunbi Kacchi-exhibit 17, Bhavarlal Chavan exhibit 23 and Jatunbi Rathod exhibit 28, accused be convicted for the offences punishable under section 498A and 302 of I.P.C. As against this, Shri R.S.Kate, learned Advocate for the accused supported the Judgment and order passed by the learned trial Judge and submitted that the learned trial Judge has rightly appreciated the evidence on record and correctly held that the conduct of prosecution witnesses not complaining to police about the alleged incident, though Sushila had told them about the same clearly goes to show that their testimony is not reliable.He, therefore, submitted that the learned trial Judge rightly held that prosecution has failed to prove beyond reasonable doubt that accused ill-treated deceased Sushila and committed her murder. He also submitted that the view taken by the learned trial Judge can not be said to be erroneous. On the contrary, same is possible and as such High Court can not interfere with the said view and the decision of the trial Judge. In order to substantiate this proposition he has -13- placed reliance on several decisions of the Apex Court, which will be referred in further discussion as and when necessary. The learned Advocate for defence therefore submitted that the appeal be dismissed. 12. It is not in dispute that on 17.1.1992 at about 4.00 p.m. when Sushila was at home she sustained burn injuries. Her husband poured water on her and extinguished fire and she was taken to the hospital by her neighbourers. Dr. Shruti Joshi who was then on duty examined her and noticed that Sushila had sustained 90% burns.. Admittedly, Sushila was under treatment in the said hospital till 23.01.1992 and ultimately on that day in the evening she succumbed to the burn injuries. From the perusal of the post mortem notes Exhibit 10 it is clear that the doctor has opined that the death of Sushila was due to shock and toxemia as a result of the burns. 13. The important question which falls for consideration is whether the death of Sushila was accidental, suicidal or homicidal. The answer to -14- this question can be given only after scanning the entire evidence on record. 14. At the outset, it must be mentioned that there is no eye witness to the incident and the case rests on the dying declarations of deceased Sushila. In all there are eight dying declarations of deceased Sushila. Five in the nature of statements made before various witnesses, two recorded by Special Judicial Magistrate and one recorded by Police Sub Inspector, which is the last one. The first oral dying declaration was made by Sushila to Dr. Shruti Joshi when she was admitted in the hospital. Prosecution has examined Dr. Shruti Joshi at Exhibit 24. From her evidence it is very clear that right from the time Sushila was admitted in the hospital, her general condition was poor but she was conscious, well oriented and was in a position to give the statement. When she asked Sushila about the history, she told her that she was preparing tea on the gas and accidently her sari caught fire. Her daughter aged about 9 months was in her arms at that time and as a -15- result of the same she also sustained accidental burns. It is pertinent to note that even in the case papers exhibit 27 at page 5 it is specifically mentioned that "history narrated by the patient herself". So, this is first earliest statement made by the deceased to Doctor regarding the cause of burns sustained by her. Not only that, after about 45 minutes thereafter Sushila’s statement was also recorded by Special Judicial Magistrate Adhav. The said statement is at Exhibit 25. It bears the endorsement of Dr. Shruti Joshi wherein she has clearly stated that at the time of recording dying declaration Sushila was conscious and in a position to give statement. In fact she has also stated that all along the time when her statement was being recorded, she was present there. If we see the said dying declaration Exhibit 25 then it is mentioned therein : 1. Have you full conscious? Ans. Yes. 2. I have told you that I am Special Executive Magistrate. Do you understand this? Yes. -16- 3. How you sustained burns? Ans. Today at 4’O Clock I am preparing tea on gas at that time my saree caught fire and I sustained burn injuries. My baby is near me and so she also burn. When I am shouted my husband came and extinguished fire. I do not have any complaint. My above statement was read over to me and I admit it to be true and correct. If we peruse the testimony of Special Judicial Magistrate Adhav, who is examined at Exhibit 42 as a defence witness, then it is very clear that he has recorded the dying declaration after following due procedure and there is absolutely no infirmity in the same as a result of which one can raise any doubt about the genuineness and correctness. The prosecution has also not at all challenged his evidence. Thus, from the above mentioned two dying declarations, one oral and the other written, it is clear that Sushila sustained burns as a result of the accident. The testimony of above mentioned two independent witnesses is clear and cogent. In fact the prosecution has also not raised any doubt about their testimony. When such is the position, the question arises how the prosecution is alleging that death of Sushila was homicidal and it was caused at the hands of the -17- accused. 15. It is the prosecution case that during the period from 17th January 1992 to 23rd January 1992 when Sushila was in hospital, her near relatives namely Chandmal Rathod, P.W.1.- Exhibit 14, Bhavarlal Chauhan P.W.5- Exhibit 23, Smt. Jatanbai Rathod, P.W.7-Exhibit 28 and Khatun Kacchi, P.W.3-Exhibit 19, met Sushila and when they enquired with her she told to each of them separately that on the day of the incident in the afternoon at about 4 p.m. when she was preparing tea she asked her husband to accompany her for going to bazaar. However he refused and on that count there was some altercation between them and accused beat her, gave a kick and poured kerosene on her body and set her on fire. When she shouted and tried to go out of the house, accused blocked her way, poured water on her person and extinguished the fire. When she went out, the neighbourers who had gathered there took her to the hospital. 16. So, it is necessary to scan the evidence -18- of above mentioned witnesses. Coming to the evidence of P.W.7 Jatanbai Exhibit 28, who reached to the hospital immediately after the time Sushila was admitted in hospital has stated that on that day when accused came to her residence and informed about Sushila’s injuries at about 5.00 p.m. she went to the hospital and made querry with Sushila and at that time Sushila told her that there was some quarrel between the accused and Sushila and then accused poured kerosene on her person and she was set on fire. She has further stated that immediately thereafter she gave phone message to Chandanmal Rathod. If really Sushila had told Jatanbai the cause of burns, then certainly she would have informed the same to Chandanmal Rathod when she gave message about Sushila’s burn injuries to him. But Chandanmal Rathod does not say anything about the same, on the contrary, he pretends that nobody told him anything about the cause of burns accept Sushila. So, the evidence of Jatanbai Rathod is not trustworthy and does not inspire confidence. She has admitted in cross examination that she was near Sushila at that time for only two minutes. -19- It is difficult to believe that in such condition Sushila would tell her the above story. 17. P.W.1 Chandanmal Rathod, Exhibit 14, has stated that on 17.1.1992 at about 4 p.m. when he was at Bombay, he received phone message from her sister in law Jatanbai (P.W.7) that Sushila has sustained burns and is admitted in hospital. He, therefore, immediately rushed to Sasoon Hospital, Pune. At night Sushila did not talk anything with him. However, on the next day morning, when he went to the hosptial, sister of accused was sitting by the side of Sushila and when the sister of accused went out, Sushila told him that when she was preparing tea, she asked accused for accompanying her to bazaar for purchasing clothes for herself and their daughter and on that count there was some altercation between them and then accused slapped her, gave kicks and blows and poured kerosene on her person and set her on fire. At that time, her minor daughter Sonu was on her lap and she also sustained injuries. When she tried to go out of the house accused blocked the way, but when she went out, the neighbourers -20- gathered there hearing her shouts and they took her to hospital. The said witness has also stated that at that time Sushila told him not to tell the said fact to anybody because ultimately after recovery she was to reside with accused. Firstly, it must be noted that if we take into consideration this statement and the statement of other witnesses and in particular the dying declaration given by Sushila subsequently on 23.1.1992, exhibit 22, we find that there is some discrepancy. In the written dying declaration the cause for quarrel given by Sushila is late coming of the accused at residence, while in the oral dying declaration made before Chandmal Rathod she has given some different cause. In written dying declaration she has stated that when she shouted, her husband extinguished fire by pouring water on her person, but in Chandanmal Rathod’s evidence he has not stated accordingly. Probably, it may be deliberately, so that the accused may not get any benefit. The said witness has admitted that till 23.1.1992 he did not tell the important fact which was told to him by Sushila to anybody or even to police. The question arises whether this conduct -21- of the witness can be said to be natural and normal. We cannot ignore the fact that if really Sushila would have told Chandanmal Rathod about the overt act committed by the accused then certainly he would not have kept mum particularly when we find that even according to him the accused was harassing Sushila previously and on that count he had given understanding to accused. He was also knowing that Sushila had filed complaint against her first husband on the ground of cruelty. So, under such circumstances, it is very difficult to believe that Sushila had told Chandanmal that accused poured kerosene on her and set her on fire and if she had really told him accordingly, then certainly the further conduct of this witness, namely not informing this incident to anyone and not making complaint to police is most unnatural and abnormal and as such it is difficult to accept his version. 18. The next witness on which prosecution is relying is P.W.5 Bhawarlal Bhagatmal Chauhan. He is husband of elder sister of Sushila. He is a person doing money lending business. He has -22- stated that when he received phone message on 17th that Sushila sustained burn injuries and was admitted in hospital, on 19th he went to the hospital and when he made query with Sushila she told him that on the day of the incident quarrel took place between her and accused and on that count accused poured kerosene on her person and she was set on fire. Admittedly, this witness also does not say that he told this fact to anybody or had discussion on this point amongst the relatives. Incidently, it must be noted that this witness has also stated that previously when Sushila, her husband, this witness and his wife had gone for a tour there was some quarrel between Sushila and the accused