: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 CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.227 OF 2003 1. Dilip Razvasaheb Kalkhaire, Age 30, Occ. Agriculturist. 2. Suvarna Dilip Kalkhaire. Age 25, Occ. Household. 3. Parvatibai Ravsaheb Kalkhaire, Age 55, Occ. Agriculturist. 4. Anita Vijay Kalkhaire, Age 25, Occ. Household. 5. Vijay Ravsaheb Kalkhaire, Age 33, Occ. Service. 6. Ravsaheb Ganba Kalkhaire, Age 60, Occ. Agriculture. Nos. 1,2,3 and 6 residing at Kalkhairewadi (supa), Tal. Baramati, Dist. Pune. ....Appellants. Vs. The State of Maharashtra. ....Respondent. Mrs. R.P. Mohite-Dere for the Appellant. Mr. P.S.Hingorani, APP. for the State. CORAM : R.S. MOHITE,J. DATED : 04/5/2006. ORAL JUDGMENT: 1. This is an appeal preferred by the appellants who are the original accused Nos. 1 to 6 impugning a judgment and order passed by the Additional Sessions :2: Judge, Baramati on 15.2.2003 in Sessions Case No.33 of 2002 convicting the accused for offence under Section 498A read with 34 of the Indian Penal Code and sentencing them to suffer R.I. for three years and to pay a fine of Rs.10,000/- each in default to suffer further R.I. for one year. All the accused have been acquitted of the offence punishable under Section 302 read with 34 of the I.P.C. 2. The brief facts of the prosecution case were as under: a) That deceased Vimal was married to accused No.1 Dilip Ravsaheb Kalkhaire on 20.6.1991. After her marriage Vimal went to reside at her matrimonial house and there she was residing alongwith the accused No.3 Parvatibai who was her mother in law, accused No.6 who was her father in law, accused No.5 who was her brother in law and accused No.4 Anita who was the wife of accused No.5. The family was residing together as joint family. The accused No.1 Dilip used to do agriculture work and used to deal with the ready made clothes by attending weekly bazar at different villages. After marriage, deceased Vimal resided happily for 9 months and thereafter her husband Dilip and her father in law Ravsaheb insisted her to bring cash of Rs.5000/- for the purpose of family cloth business. P.W.No.1 Bhausaheb Jagtap who was the :3: uncle of Vimal had paid Rs.5000/- to Vimal so that the amount could be given to the accused. However, even thereafter, accused demanded money from Vimal and as she was not giving money they used to ill-treat her. They used to send her back to her parents place for the purpose of bringing amount demanded. Upto 1995, on two occasions amounts were paid to the accused but the beating and threatening to Vimal continued and hence,P.W.No.1 Bhausaheb went to the accused and requested the Accused No.1 Dilip and his father Ravsaheb not to torture Vimal and not to demand money frequently. According to him, in his presence, accused No.1 Dilip and his father Ravsaheb beat her with hands and directed P.W.No.1 Bhausaheb to take away Vimal with him as accused No.1 Dilip had performed a second marriage. At that time all the accused assaulted Vimal causing head injury and hence, Bhausaheb took Vimal to the Police Station Vadgaon and there Vimal lodged F.I.R. against all the accused. After lodging F.I.R. P.W.No.1 Bhausaheb took Vimal to his house. b) That, on the basis of F.I.R., police filed charge-sheet in the court of J.M.F.C. Baramati and the said Criminal Case No.51/1995 was decided by that court in 1998 and only one of the accused by name Suvarna was acquitted whereas the other accused were convicted. The present appellants except Suvarna who were persons :4: convicted in the said case preferred an appeal before the Sessions Court. During the pendency of the appeal, convicted accused made request to the family of Vimal for compounding the case and ultimately in the year 2000 family of Vimal decided to send Vimal back to her matrimonial house on the assurance that Vimal will not be ill-treated. On 16.7.2000, the appeal was compounded before the Loknayalaya, Baramati and thus, the accused were acquitted of the offence alleged against them in the case filed by Vimal. c) That, after their acquittal accused treated Vimal well for the period of 15 to 16 months. However, eight days before the incident P.W.No.1 Bhausaheb received a telephonic message from accused No.1 Dilip informing him that he and the Vimal would be coming to the house of P.W.No.1 Bhausaheb after about eight days. d) On 18.1.2002 at about 10.30p.m. family of Vimal received telephonic message from the house of the accused that Vimal had sustained few burn injuries. This message was received by nephew of P.W.No.1 by name Sunil. As the phone was cut, P.W.No.1 again phoned to accused No.1 Dilip and Dilip informed him that Vimal had sustained burn injuries below the knee. He also informed that he is proceeding to Baramati alongwith Vimal for treatment. On the telephone, he heard Vimal :5: crying out for him and as he heard cry he suspected that matter was serious. P.W.No.1 alongwith some other relatives and villagers then went to Baramati by jeep. They searched Vimal in the Civil Hospital and other hospitals and ultimately at the front of the hospital at Supa they saw a crowd of persons and on entering the hospital they found Vimal in a burnt condition. Vimal is said to have made oral dying declaration to him to the effect that "uncle these persons have burnt me". P.W.No.1 then came out of the hospital and directed his companions to go to Out Post Supa and informed the matter to the police. Doctor at Supa Hospital informed the P.W.No.1 and others that they should shift Vimal to Sasoon Hospital, Pune because she had sustained more than 90% burn injuries. Then, Vimal was carried by Ambulance to Pune. In that Ambulance two nephews of P.W.No.1 namely Srikant and Manohar went alongwith the Vimal. The husband and in laws of Vimal who are accused before the court also sat in the Ambulance. Vimal was then admitted to Sasoon Hospital. On 22.1.2002, Vimal was found in better condition and hence, P.W.No..1 went near her alongwith his nephew. He enquired with her as to how she sustained burn injuries. She informed him that on 18.1.2002, she was viewing television in her house. At that time her husband and mother in law came there and started beating her and dragged her out of the house in adjoining room by beating her. She told him :6: that she was beaten continuously for four days. She further told him that the aforesaid persons were demanding money by saying that they had spent huge amounts in court proceedings and therefore, she should bring money. At that time, Suvarna came alongwith a kerosene can and poured kerosene on her person and accused No.4 set her on fire with the match stick. Vimal however, told P.W.No.1 that her father in law went out side the house and after the incident he came into the room and put quilt on her person to extinguish the fire. She further told that her brother in law Vijay had slapped her on mouth in the morning and then went away by saying that he would see her in the evening. e) This version given by Vimal particularly the oral dying declaration said to have been made was also heard by P.W.No.2 Sunil Jagtap, P.W.No.5 Anil Jagtap and P.W.No.6 Srikant Jagtap. f) P.W.No.7 Vasant Jadhav who was attached to Sasoon Police Chowki received information that Vimal had sustained 95% burn injuries and he went to the Sasoon hospital to record her statement. He went to Ward No.25 at about 7.30 a.m. on 19.1.2002 and Dr. Khandagale was on duty there. He went to the patient. He found that Vimal was conscious and he recorded her statement. It was in the nature of dying declaration (Exh.36). :7: Recording of the statement was completed by 8.00a.m. on 19.1.2002. This statement was treated as F.I.R. P.W.No.9 A.P.I.Kishore Jadhav commenced the investigation. He visited the spot and prepared the spot panchanama and recorded the statement of Anita Kalkhaire. He arrested the accused persons. After recording Crime No.5/2002 initially for offence under Section 307, 498A read with 34 of the I.P.C. he commenced investigation. After Vimal died, he converted the offence under Section 302 of the I.P.C. He recorded the statements of witnesses. On 3.2.2002, he recorded the statement of P.W.No.3 Shevantabai and P.W.No.4 Ankush and others. He obtained certified copy of the judgment in the earlier case and referred the muddemal articles to Chemical Analyser. After completion of the investigation, he submitted charge sheet to J.M.F.C. Baramati. The Trial Court committed the case to the Court of Sessions for trial. 3) During the trial the prosecution examined in all nine witnesses. These witnesses included P.W.No.1 Bhausaheb Jagtap, P.W.No.2 Sunil, P.W.No.5 Anil and P.W.No.6 Srikant, relatives of deceased Vimal. P.W.No.s 2 and 3 who were neighbours. Several documents were also produced by the prosecution and after perusing the entire material on record, the trial court acquitted the accused of the offence punishable under Section 302 read :8: with 34 of the I.P.C. and convicted them U/s.498A read with 34 of the I.P.C. as aforesaid. Being aggrieved by the conviction, the original accused have filed the present appeal before this court. 4) After perusing the entire evidence, I am of the view that the appeal will have to be allowed and the accused will have to be acquitted for the following reasons. 5) It is admitted position that as regards the earlier cruelty from the time of the marriage till the year 1995 when the first F.I.R. was lodged by deceased Vimal, a separate criminal case had earlier been initiated. This matter was however, compounded on 16.7.2000 in an appeal. The compounding was done on the footing that Vimal would be taken back and treated properly. The Trial court has rightly held that said act of accused from 1991 to 1995 and till the date of compounding could not be the basis of conviction, as those acts were condoned when the appeal was compounded before the Loknayalaya. 6) It must be borne in mind that both oral and written dying declarations made by the deceased Vimal have been disbelieved in so far as offence under Section 302 of the I.P.C. is concerned. In fact, these dying declarations were basic material to show that the :9: accused persons have burnt Vimal. The State has chosen not to file appeal against the acquittal of the accused under Section 302 read with 34 of the I.P.C. In the circumstances, I am precluded from going into the question as to whether any such offence was committed. It appears that the trial court after considering the evidence, awarded conviction under Section 498A read with 34 of the I.P.C. on the basis of the same dying declarations. That is now held not to be permissible by law. The Apex Court in the case of Inderpal Vs. State of M.P. reported in (2001) 10 S.C.C. 736 declared law in this regard in Paragraph 7 of the Judgment.From the facts of that case, it is clear that the statement of the dead person was recorded by the prosecution for offence under Section 306 of the I.P.C. The Trial Court convicted the accused and sentenced him to under go R.I. for five years. However, the High Court acquitted the accused of the offence U/s.306 of the I.P.C. and used the statement of the deceased for conviction for offence under Section 498A of the I.P.C. While allowing the appeal filed by the accused, it was held by the Apex Court that such statement was not admissible within the purview of Section 32(1) of the Indian Evidence Act and there was no other provision in the Evidence Act enabling it to be admitted in evidence. In the present case also the statement of the deceased Vimal cannot be used to bring home conviction under Section 498A read :10: with 34 of the I.P.C. once the accused have been acquitted under Section 302 read with 34 of the I.P.C. 7) If we leave aside the statement of the deceased Vimal either by way of oral or written dying declarations made to third parties, I find no material on record. P.W.No.1 had stated that after previous offence was compounded on 16.7.2000, Vimal was sent back to her matrimonial house and she was treated well for about 16 months. None of the relatives referred to above had ill-treated her during the said period. In any case, there are no specific allegations which are proximate to the incident in question. In the circumstances, appellants will have to be given benefit of doubt. 8) In the result, appeal is allowed. The impugned judgment and order passed by the Additional Sessions Judge, Baramati on 15.2.2003 in Sessions Case No.33 of 2002 is quashed and set aside. Consequently the present appellants are acquitted from the charge under Section 498A read with 34 of the I.P.C. They will be entitled to refund of fine, if any. Their bail bonds stand cancelled. Appeal stands disposed off. (R.S. MOHITE, J.) :11: :12: .SP1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.227 OF 2003 1. Dilip Razvasaheb Kalkhaire, Age 30, Occ. Agriculturist. 2. Suvarna Dilip Kalkhaire. Age 25, Occ. Household. 3. Parvatibai Ravsaheb Kalkhaire, Age 55, Occ. Agriculturist. 4. Anita Vijay Kalkhaire, Age 25, Occ. Household. 5. Vijay Ravsaheb Kalkhaire, Age 33, Occ. Service. 6. Ravsaheb Ganba Kalkhaire, Age 60, Occ. Agriculture. Nos. 1,2,3 and 6 residing at :13: Kalkhairewadi (supa), Tal. Baramati, Dist. Pune. ....Appellants. Vs. The State of Maharashtra. ....Respondent. Mrs. R.P. Mohite-Dere for the Appellant. Mr. P.S.Hingorani, APP. for the State. CORAM : R.S. MOHITE,J. DATED : 04/5/2006. ORAL JUDGMENT: OPERATIVE ORDER . For the reasons separately recorded in the oral judgment, this court passed the following order: . In the result, appeal is allowed. The impugned :14: judgment and order passed by the Additional Sessions Judge, Baramati on 15.2.2003 in Sessions Case No.33 of 2002 is quashed and set aside. Consequently the present appellants are acquitted from the charge under Section 498A read with 34 of the I.P.C. They will be entitled to refund of fine, if any. Their bail bonds stand cancelled. Appeal stands disposed off. (R.S. MOHITE, J.)