1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 550 OF 2010 IN CRIMINAL APPEAL NO. OF 2010 The State of Maharashtra .. Applicant Vs Vimalkumar Dayaram Manke and others .. Respondents Mrs. P.H. Kantharia, APP for the State CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE : 24th June, 2010 P.C.: 1. The applicant - State of Maharashtra has preferred this application for leave to file appeal against the judgment and order dated 28.10.2009 passed by the learned Sessions Judge, Nasik in Sessions Case No. 106 of 2009. By the said judgment and order, the respondents i.e original accused nos. 1 to 5 came to be acquitted of the offences under section 498A, 302, 201 and 304B of I.P.C. 2. The prosecution case briefly stated is that Jyotsna got married to respondent no. 1 - Vimalkumar on 20.02.2007 at village Dalenagar in Uttar Pradesh. Respondent Nos. 2 and 3 are the mother and father of respondent no. 1. Respondent nos. 4 and 5 are the brother and sister of respondent no. 1. They all hail from Jhashi in Uttar Pradesh. Respondent No. 1 appa550-10 2 - Vimalkumar was working as Sectional Engineer in Central Railways and was posted at Ghoti in Maharashtra. Jyotsna was residing along with Vimalkumar Ghoti. It is the prosecution case that all the respondents used to ill treat and harass Jyotsna in respect of demand for money. As demand was not fulfilled, on the evening of 14.11.2008, respondent no. 1 poured kerosene Jyotsna and set her ablaze. She was first taken to hospital at Ghoti, from there, she was taken to Nasik General Hospital and admitted to the Burn Ward there. She died on the next day i.e on 15.11.2008 due to 80% burn injuries. F.I.R. came to be registered on 16.11.2008. Thereafter, investigation commenced. 3. We have heard the learned APP for the applicant-State of Maharashtra. We have perused the judgment and order passed by the learned Sessions Judge as well as the evidence produced by the learned APP. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order passed by the learned Sessions Judge does not call for any interference. 4. There is no direct evidence on record to show how Jyotsna sustained burn injuries. There is also no dying declaration on record. No dying declaration has been recorded either by the Police or any SEO / SJM. In order to prove appa550-10 3 that it was the accused who set Jyotsna on fire, the prosecution is relying only on oral dying declarations made by Jyoti to her father PW3 Yogendranath on the date of the incident and on the next day to her maternal uncle PW6 Devendrakumar. 5. We shall first deal with the dying declaration to PW3 Yogendranath. This witness has stated that on 14.11.2008 at about 10.10 p.m., accused no. 1 called him on telephone. At that time, his wife Jeevanadevi was with him. Yogendranath claims that he told accused no. 1 that he should give phone to his daughter Jyotsna so that he could talk to her. Thereupon, his daughter told him on phone that she had been set ablaze by accused no. 1 and that they should come soon. Accused no. 1 told him that Jyotsna was admitted to General Hospital, Nashik but by the time, he reached the hospital, his daughter had already passed away. The tenor of this witness shows that when he spoke to his daughter Jyotsna, she was already in the hospital otherwise, accused no.1 would not have told him that Jyotsna was admitted to the General Hospital. However, the evidence of PW2 Dr. Anita Lad and other evidence on record shows that from the time that Jyotsna was admitted in hospital till the time she died, she was not in a position to make any statement. Moreover, we appa550-10 4 find it highly improbable that if accused no.1 had actually set Jyotsna on fire, he would hand over the phone to Jyotsna, so that she could inform her father about this fact. 6. According to the prosecution, Jyotsna made an oral dying declaration to PW6 Devendrakumar. PW6 Devendrakumar is the maternal uncle of Jyotsna. ccording to him, on 14.11.2008, he was at Bhopal. On receiving telephone call from his sister,he left for Nashik by train. On reaching Nashik, he went to the hospital and met Jyotsna. He made inquiry with Jyotsna. Jyotsna told him that accused no.1 beat her, then he poured kerosene on her and set her ablaze. As far as this aspect of his evidence is concerned, it is noticed that it has come in his evidence by way of an improvement. PW6 Devendrakumar has clearly admitted that the said fact is not mentioned in his statement before the Police. Hence, obviously we cannot rely on such evidence which has come by way of an improvement. 7. There is one more reason why we are not inclined to rely on the evidence of PW6 Devendrakumar. PW9 Arun Bhor, A.P.I., Kalyan has stated in his evidence that from the time Jyotsna was admitted to hospital till she passed away, she was not in position to make a statement. This falsifies the appa550-10 5 evidence of PW6 Devendrakumar who claims that when he went to hospital and met Jyotsna, Jyotsna informed him that accused no. 1 had set her on fire. The evidence on record clearly shows that Jyotsna was not in a position to make any statement from the time she received burn injuries till she died. We may also refer here to Ex. 47. There is a contemporaneous document dated 14.11.2008 submitted by the prosecution and admitted by the accused. The said document shows that a police personnel posted in the police chowky which could be in the hospital complex or in any case from a police outpost which had jurisdiction over the hospital, addressed a communication to the Medical Officer. It was mentioned there that the patient Jyotsna came to be admitted with 80% burns at 9.45 p.m. in Nashik Civil Hospital. She was in serious condition and the police should be informed if she was in a position to make a statement. It is pertinent to note that thereon, there is an endorsement in the hand of the doctor that she was not in a state to give a statement. All these facts belie the evidence of PW6 Devendrakumar that Jyotsna made an oral dying declaration to him wherein she implicated accused no.1. 8. We may also refer to the evidence of the Doctor who treated Jyotsna. PW2 Dr. Anita Lad treated Jyotsna. She has appa550-10 6 admitted that the general condition of Jyotsna was very poor and she was in a semi-conscious state. She has also admitted that history at the time of admission was given as accidental burns while working in kitchen. Medical papers (Exh. 42) relating to the medical treatment given in the hospital to Jyotsna also show that her general condition was poor and that she was being given Oxygen [O2]. It has also been mentioned in many places in the said treatment papers that the patient was "gasping". All these facts make the testimony of witnesses who stated that Jyotsna gave an oral dying declaration to them, suspect. 9. At the outset, we would like to state here that the learned APP has very fairly admitted that, at the relevant time, it was only respondent no. 1 and Jyotsna who were living together at Ghoti and none of other accused were residing with them. All the other accused were residing in Uttar Pradesh. No doubt, PW3 Yogendranath stated that at the relevant time, accused nos. 2 to 5 were staying at Ghoti with accused no. 1, however, this averment has come in his evidence by way of an improvement, hence, obviously we cannot rely on the same. 10. On the aspect of ill-treatment, harassment and demand by the accused, the main witnesses examined by the appa550-10 7 prosecution in the present case are PW3 Yogendranath (father of deceased) and PW4 Jeevanadevi (mother of deceased). PW3 Yogendranath has stated that at the time of marriage, he had given Rs. 6,00,000/- in cash, ornaments worth Rs. 3,50,000/- and household articles worth Rs. 3,50,000/- on demand by the accused. It is interesting to note that only PW2 Yogendranath makes a reference to such demand at the time of marriage. His wife PW4 Jeevanadevi, who is an educated lady and working as a supervisor, has not made any reference to any such demand at the time of marriage or even at any time thereafter. As far as the aspect of giving Rs. 6,00,000/- in cash, ornaments worth Rs. 3,50,000/- and household articles worth Rs. 3,50,000/- is concerned, it is seen that the said amount and articles were given at the time of marriage and there is no allegation that there was any harassment or ill treatment to Jyotsna on the ground that any demand during the marriage had not been fulfilled. 11. The prosecution has relied upon the evidence of PW6 Devendrakumar who is the maternal uncle of Jyotsna to support its case that Jyotsna was harassed and ill trated by the accused persons. PW6 Devendrakumar has stated that accused gave Jyotsna a lot of trouble by taunting her by saying that she ate four times a day. However, PW4 Jeevanadevi - mother of Jyotsna has not stated any such thing. It would only be appa550-10 8 natural that Jyotsna would reveal all details of her harassment to her mother, however, the fact that her mother is totally silent about any such harassment, makes the evidence of Devendrakumar suspect. 12. On the point of ill treatment and harassment, the prosecution has relied upon the evidence of PW3 Yogendranath and PW4 Jeevanadevi. Both PW3 and PW4 stated that Whenever Jyotsna came to their house from her in-laws place, she would ask for money saying that her in-laws were demanding the same. On her demand, they gave her amounts of Rs. 10,000/-, Rs. 20,000/- and Rs. 30,000/- which she in turn handed over to her in laws. But in spite of having received the amounts, the accused continued to harass their daughter. Even on this aspect of giving amounts ranging from Rs. 10,000/- to Rs. 30,000/- there are material omissions in the evidence of these witnesses. 13. As far as date of the incident is concerned, according to PW3, on 14.11.2008 at 7.44 p.m., his daughter called him up on his phone. At that time, the phone was with his wife. PW3 Yogendranath has stated that Jyotsna told his wife that her husband wanted Rs. 60,000/- for Maruti Car. His wife Jeevanadevi told Jyotsna that she would consult him (Yogendranath) and revert back. Both the parents of Jyotsna appa550-10 9 i.e PW3 Yogendranath and PW4 Jeevanadevi have tried to state that on 14.11.2008, their daughter informed them that the accused wanted Rs. 60,000/- for the purpose of purchasing Maruti Car. However, we find that this has come in their evidence by way of an improvement. Hence, we cannot rely on the evidence of these two witnesses that demand was made by accused no. 1 of Rs. 60,000/ and as the demand was not fulfilled, Jyotsna was set on fire by accused no. 1 14. On going through the evidence in this case, we find that there is no dying declaration on record. The prosecution has only relied on two oral dying declarations made by Jyotsna to PW6 Devendrakumar and PW3 Yogendranath. However, looking to the evidence of the Doctor who attended Jyotsna, it is clear that Jyotsna was not in a position to make any oral dying declaration. Hence, the learned Sessions Judge was right in not relying on the evidence of these two witnesses in relation to the oral dying declarations. As far as demand is concerned, we find that the aspect of demand of Rs. 60,000/- on the day of the incident has come in the evidence of prosecution witnesses by way of an improvement, hence the said demand also cannot be relied upon. As far as the rest of the evidence is concerned, looking to the entire evidence on record, we are of the opinion that the view taken by learned Sessions Judge is a reasonable and possible view. appa550-10 10 Hence, no interference is called for. In view of the above, application for leave to file appeal is rejected. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appa550-10