1 Cri.AppealNo.398/1993 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.398/1993 The State of Maharashtra = APPELLANT VERSUS 1) Suryakant s/o Vishwanath Mengashette Age: 25 Yrs., occu.Agril. 2) Vishwanath s/o Gundappa Mengashette, Age:50 Yrs. Occu.Agril. 3) Laxmibai w/o Vishwnath Mengashette, Ae: 45 Yrs. Occ. Household. 4) Savita d/o Vishwanath Mengashette, Age: 18 Yrs. Occ. Household. All r/o Digol Deshmukh, Tq. Latur. = RESPONDENTS (orig.Accused) *** Mr.NR Shaikh, APP for Appellant/State ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 7th September, 2011. ORAL JUDGMENT (PER :- A.R.JOSHI,J.) 1. Heard rival submissions on this Criminal Appeal preferred by the State of Maharashtra, 2 Cri.AppealNo.398/1993 challenging the judgment and order of acquittal passed on 3rd August, 1993 by the 2nd Additional Sessions Judge, Latur in Sessions Case No.17 of 1992. 2. By the impugned judgment and order, all the three accused/present respondents, were acquitted of the offence punishable under Sections 302, 498-A r/w Section 34 of the Indian Penal Code. 3. The case of the prosecution, in nutshell, is as under, - (i) Victim Jyoti was married with accused No.1 in the year 1990. She started residing in the joint family with accused No.1. Accused Nos. 2 and 3 are parents of accused No.1 and accused No.4 is sister of accused No.1. (ii) Initially, married life of victim Jyoti was normal, however, there used to be differences between the married couple and allegedly she was tortured at the matrimonial house. Frequently, she was visiting her parents and that time was disclosing the incident of harassment. On varioius religious occasions and festivals, the victim visited her parents and thereafter came back to reside with accused No.1. 3 Cri.AppealNo.398/1993 (iii) The incident of pouring kerosene and setting her on fire occurred on 8th April, 1991. (iv) She was admitted in a hospital at Ambejogai. Parents and brother of the victim were informed. They visited the hospital and inquired with the victim Jyoti. Allegedly, she narrated them the incident as to her husband pouring kerosene on her person and setting her ablaze, thus causing her burn injuries. She also alleged that accused Nos.2 and 3 instigated accused No.1 to kill her. In the hospital, the victim was under treatment for fourteen days and thereafter succumbed to the injuries. (v) Initially, while under treatment, the dying declaration was recorded by PW No.6 - Special Judicial Magistrate, in which she gave the history, alleging the acts on the part of the accused persons of setting her on fire. (vi) Initially, offence was registered under Section 307 and 498-A of IPC. After death of the victim, Section 302 of IPC was inserted in the charge. 4. The prosecution examined in all 11 witnesses. However, important witnesses are, - PW No.3 and PW No.4 – parents of the deceased; PW 4 Cri.AppealNo.398/1993 No.7 – brother of the deceased; PW Nos.8 and 9 – neighbours of the accused persons; PW No.6 – Special Judicial Magistrate, who recorded dying declaration and PW No.10 - ASI Nivrati Kanje, who had conducted part of the investigation and also recorded second dying declaration of the deceased, vide Exhibit-39. 5. Defence of the accused is of total denial and that there was happy married life between the victim and accused No.1. However, the victim was reluctant to stay at the matrimonial home and very often was visiting her parents and was insisting on accused No.1 to change the place of residence and come down to Ambejogai near the house of her parents and start new business and take another home there. Due to the financial constraints, such request was not feasible for accused No.1 and as such, on that count, there were minor quarrels. However, the situation was not so grave so as to do away with the victim. 6. The entire case of prosecution revolves around the dying declaration of the victim recorded by Special Judicial Magistrate – PW No. 6, in which details are given by the victim, taking name of the accused persons. Also according to the prosecution, two letters 5 Cri.AppealNo.398/1993 (Exhibit-28 and Exhibit-29), allegedly in the hand-writing of the victim, which were addressed to her father, speak of harassment and ill- treatment. 7. It is seen from the reasonings given by the learned Sessions Judge while acquitting the accused persons of the offences charged, that he had dealt with various aspects and mainly the effect of two dying declarations and under which circumstances they were recorded. Certain other points were also considered by the learned Sessions Judge and all such circumstances can be narrated as under:- (1) During first dying declaration, one relative was present and this fact has been admitted by PW No.6 – Special Judicial Magistrate, who recorded the dying declaration, and prior to that, the parents and brother of the victim were all along with the victim in the hospital at Ambejogai and they had a talk with the deceased; (2) Recording of first dying declaration took about one hour or so and the victim was taking much time to give answers and that time, in fact, the treatment was being given to the patient for her burn injuries; 6 Cri.AppealNo.398/1993 (3) While recording of the second dying declaration by PW No.10, it was admitted position that brother of the victim was present and his help was taken by PW No.10 in obtaining the said statement (Exhibit-39); (4) Though the neighbours had gathered there on the spot, there was no independent corroboration to the allegations against the accused persons inasmuch as, PW No.8 and PW No.9, who are the neighbours, did not say anything regarding harassment or ill-treatment meted out to the victim. On the contrary, their evidence show that the relations of victim Jyoti with accused persons were cordial till the date of incident. (5) The evidence of PW No.8 - neighbour Shivdas Thonte disclose as to revalation made by injured Jyoti to him that while igniting fire, her clothes caught fire, and as such, it was apparent case of accidental burning. (6) The factual position as to there was no kerosene on the ground or on the bed, was ascertained by father of the vitim by sending his son to the house of the accused persons. (7) PW No.3 – father of the victim, did not 7 Cri.AppealNo.398/1993 mention anything regarding harassment or ill- treatment; whereas only PW No.4 – mother and PW No.7 – brother of the victim, came with such story and thus a reasonable doubt is entertained as to the theory of harassment. 8. We have observed that the learned Sessions Judge has dealt with above points and has given explanation and considering the effect of the substantive evidence before the court including the evidence of parents and brother of the victim, Special Judicial Magistrate and the Police officer (PW No.10), it cannot be said that the learned Sessions Judge had erred in appreciating the said material. In other words, it must be said that there is nothing to entertain any doubt regarding the view taken by the learned Sessions Judge in finding the material deficient to bring home the guilt of the accused. 9. We have also observed that the learned Sessions Judge had discussed the substantive evidence of parents of the victim and mainly evidence of father, which goes to show that the accused No.1 was willing to open a bicycle shop at Ambejogai so as to concede to the wishes of his wife - the victim Jyoti to settle in Ambejogai. However, due to financial constraints, 8 Cri.AppealNo.398/1993 it could not materialised. 10. We do not find any error in the impugned judgment and order when the learned Sessions Judge has discussed the effect of the dying declarations and which were not corroborated by any other material. In that event, we must say that there is nothing to come to a different conclusion than that arrived at by the learned Sessions Judge. This is more so, considering the scope of this Court while dealing with the appeal against acquittal and that also after about 18 years. 11. In the result, there is no merit in the present appeal preferred by the State of Maharashtra and the same is disposed of with following order. ORDER Criminal Appeal No.398/1993 stands dismissed. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.8.9.2011 Authentic copy (BD VADNERE,PS)