1 mss APEAL+1157 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1157 OF 2002 1. RAMESH LAXMAN RANAWARE ) 2. SACHIN LAXMAN RANAWARE ) 3. SMT. PRAMILA LAXMAN ) RANAWARE ) 4. SMT. MADHUMATI BHARAT ) NIMBALKAR ) All residing at Nimsakhar, Tal-Indapur) Dist. Pune. ) 5. SUDARSHAN MANIKRAO MANE ) residing at Mhaswad, Tal-Man, ) Dist. Satara ) .. APPELLANTS (Org. Accused 1 to 5) Vs. THE STATE OF MAHARASHTRA ) .. RESPONDENT Mr. M. S. Mohite for the appellants Mrs. V. R. Bhosale, APP 2 mss APEAL+1157 CORAM: SMT. RANJANA DESAI, J. DATE ON WHICH THE JUDGMENT IS RESERVED : 11th October, 2010 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 20th October, 2010 JUDGMENT : This appeal was heard by the Division Bench of Justice B. H. Marlapalle and Justice Smt. Roshan Dalvi. There was a difference of opinion between the two learned Judges. They delivered two separate judgments. The registry was, therefore, directed to take steps as required under Section 392 of the Code of Criminal Procedure, 1973 (”the Code”). Accordingly the registry placed the matter before the Hon’ble Chief Justice, who directed that it may be placed before me. That is how this appeal has appeared on my board. 2. Appellants 1 to 5 (original accused 1 to 5 respectively) were tried in Sessions Case No. 72 of 2000 by the Ist Adhoc Additional Sessions Judge, Baramati. Appellants 1 to 4 were tried for offences punishable under Section 302 and 498 read with Section 34 of the Indian Penal Code (“IPC”). Respondent 5 was charged under 3 mss APEAL+1157 Section 506 of the IPC. By the judgment and order dated 10/10/2002 learned Sessions Judge convicted appellants 1 to 4 under Section 302 read with Section 34 of the IPC. Each of them was sentenced to suffer life imprisonment and to pay a fine of Rs.1,000/- each, in default to suffer S.I. for four months. Appellants 1 to 4 were also convicted under Section 498A read with Section 34 of the IPC and sentenced to suffer SI for one year each and to pay a fine of Rs.500/- each, in default to suffer SI for two months each. Appellant 5 was convicted under Section 506 of the IPC and sentenced to pay a fine of Rs.5000/-, in default to suffer SI for three months. Substantive sentences were ordered to run concurrently. Being aggrieved by the said judgment and order, the appellants have preferred this appeal. For the sake of convenience, I shall refer to the appellants as per their description in the trial court. 3. At the trial, the case of the prosecution was as under: a) Accused 1 was married to deceased Shubhangi on 19/5/1998. Accused 2 is the brother of accused 1. Accused 3 is the mother of accused 1 and 2. Accused 4 is the married sister of accused 1 and 2. Accused 5 is the maternal uncle of accused 1,2 4 mss APEAL+1157 and 4. After marriage the deceased was residing along with the accused in her matrimonial house at Nimsakhar. The parents of the deceased used to stay at Kurkumbh which is about 70 kilometers from Nimsakhar. After marriage the accused treated the deceased well for about two to three months. Thereafter they started ill-treating her. They used to demand cash amount of Rs.10,000/-. The deceased was told that that amount was needed to spend for confirmation of the service of accused 1. The parents of the deceased could not pay that amount because their financial condition was not good. The deceased came to her parent’s house for ‘Diwali’ and told them about this harassment. She again reiterated the same story to her parents when she came to their house for the ‘Sankrant’ festival. Her brother Vinod went to her matrimonial house to bring her to her parent’s house for ‘Padva’. However, the accused told Vinod that as there was illness in the house they would send the deceased to her parent’s house after Padva. b) On 15/3/99 at about 3 p.m. one person from Nimsakhar came to the house of PW 1 Narsing, father of the deceased and told him that his daughter Shubhangi i.e. the deceased had received burn injuries and she was admitted in Sassoon Hospital, Pune. PW 1 5 mss APEAL+1157 along with his wife PW 4 Shalan went to the Sasoon Hospital, Pune. They saw the deceased lying with burn injuries on her person. PW 1 and PW 4 reached Sasoon Hospital at about 7 p.m. At that time the accused were present. The deceased was asked by PW 4 as to how she sustained burn injuries. The deceased kept weeping. She did not disclose anything. On the next day she told PW 4 that the accused had poured kerosene on her and set her on fire. c) The deceased made her first dying declaration to PW 2 Dr. Rekha Labade on 15/3/99 at 10-45 p.m. The second dying declaration of the deceased was recorded on 16/3/99 at 7 p.m. In the first dying declaration the deceased stated that she tried to commit suicide by pouring kerosene on herself. In the second dying declaration she stated that the accused poured kerosene on her and set her on fire. The first dying declaration was recorded by Shri S. D. Joshi, Special Executive Magistrate. It was brought on record during the course of hearing of this appeal on an application made by the counsel for the accused. It is at Exh.-72-A. I shall soon advert to it. The second dying declaration which is at Exh.-72 was recorded by Special Judicial Magistrate PW 3 Babanrao Dhumal. The deceased succumbed to the injuries on 20/3/99. PW 1 Narsing, the father of 6 mss APEAL+1157 the deceased filed complaint on 22/3/99. Pursuant to the complaint offence came to be registered. The accused were arrested and were charged as aforesaid. d) In support of its case the prosecution examined seven witnesses. As already noted by me PW 1 is complainant Narsing. He is the father of the deceased. PW 4 Shalan is the mother of the deceased. PW 5 Ashwini Pratap Ranaware is the cousin of accused 1. She has turned hostile. PW 6 Vikrant is the cousin of the deceased. PW 2 Dr. Labade was working as the resident Medical Officer of the Sasoon Hospital at the relevant time. PW 3 Special Judicial Magistrate Dhumal, recorded the second dying declaration. PW 7 PSI Suresh Rangnath Andhare is the investigating officer. 4. The defence of the accused was one of denial. Accused 1 stated in his statement under Section 313 of the Code that the deceased wanted to stay separately from his parents. He refused to do so. Hence a false complaint was lodged at the instance of Inspector Shinde. Accused 5 stated that he is a practising lawyer. He was falsely involved and the dying declaration was recorded at the instance of parents of Shubhangi and Inspector Shinde. 7 mss APEAL+1157 5. After perusing the evidence on record learned Sessions Judge convicted and sentenced the accused as aforesaid. Learned Sessions Judge noted that PW 2 Dr. Labade has referred to two dying declarations made by the deceased. In the first dying declaration she has stated that she had poured kerosene on herself and set herself on fire and in the second dying declaration she has stated that the accused poured kerosene on her and set her on fire. Learned Sessions Judge observed that the prosecution has not brought the first dying declaration on record but the defence has also not tried to bring it on record probably because it was inconvenient for the defence. Learned Sessions Judge amongst other pieces of evidence placed reliance on the second dying declaration Exh. 72 and convicted the accused. 6. During the course of hearing of this appeal before the earlier Bench, Counsel for the appellants submitted an application under Section 294 of the Code, praying that the dying declaration recorded by Shri S. D. Joshi, Spl. Executive Magistrate, be taken on record and be exhibited as the first dying declaration in point of time. The Division Bench allowed the said application. Attention of the Division Bench was invited to the document at Exh.-83 which had come on 8 mss APEAL+1157 record during the deposition of the investigating officer. The Division Bench, therefore, invoked its powers under Section 391 of the Code. It directed the registry to issue witness summonses to Shri S. D. Joshi, Spl. Executive Magistrate and the Head Master of N.E.S. High School, Nimsakhar, Taluka Indapur, District Pune asking them to remain present in this court on 11/9/2009 at 11 a.m. along with the following documents: (a) Service record of Ramesh Laxmanrao Ranware for the period from 23/6/1997 to 7/6/1998 showing that he was working as Part Time Librarian and from 8/6/1998 showing that he was working as Laboratory Assistant; and (b) Sanction order from the Education Officer, Pune Zilla Parishad, Pune sanctioning the appointment of Ramesh Laxmanrao Ranware. 7. The Division Bench expressed that it was necessary to record the oral evidence of Shri S. D. Joshi, Spl. Executive Magistrate and the Head Master of N.E.S. High School, Nimsakhar. Pursuant to this order Mr. Lallan Tripathi, Head Master of N.E.S. High School, 9 mss APEAL+1157 Nimsakhar remained present before the Division Bench on 11/9/09. Following documents were produced by him: (i) Letter dated 26.3.1999 addressed by the Senior Police Sub Inspector, Walchand Nagar Police Station to he Head Master of N.E.S. High School, Nimsakhar. (ii) The Head Master’s letter dated 27/3/1999 addressed to the Sub Inspector, Walchand Nagar, Police Station. (iii) Order dated 17.10.1997 passed by the Education Officer (Secondary), Zilla Parishad, Pune, granting approval to the appointment of accused No. 1 as part-time Librarian in the pay scale of Rs.600-1020. (iv) Order dated 31.12.1998 granting approval to the appointment of accused No. 1 as a full timer in the pay scale of Rs. 975-1540. 8. The Division Bench verified the documents on record from the originals placed before it and took the originals on record as 10 mss APEAL+1157 additional / further evidence under Section 391 of the Code. The Division Bench recorded Mr. Tripathi’s statement that he joined N.E.S. High School as an Assistant Teacher for the first time on 1.6.1973; that he came to be promoted as Head Master of the said school with effect from 3.10.2000 and that he has been in continuous service of the said school right from 1.6.1973. Mr. Tripathi also placed before the Division Bench the muster roll for the month of March, 1999. On perusal of the same the Division Bench observed that the muster roll indicated that from 15/3/99 accused 1 had proceeded on casual leave for three days. The Division Bench observed that as per his oral statement before the Division Bench, accused 1 had reported at the school at about 10 a.m. and left at 10.30 a.m. on 15.3.1999 and he could not sign the muster on that day because the school opens at 10.30 a.m. and the employees are required to sign at that time i.e. at the opening time. Photo-stat copy of the muster roll for March, 1999 was directed to be kept on record. The appeal stood adjourned as learned APP wanted to locate Shri S. D. Joshi, Spl. Executive Magistrate, Pune. Shri S.D. Joshi remained present on 30/9/09. The dying declaration recorded by him on 15/3/99 alongwith his endorsement on its reverse side was shown to him and he stated that he was present at the Sassoon Hospital, 11 mss APEAL+1157 Pune on 15/3/99 for recording the dying declaration of some other patient and the Police Constable from Faraskhana Police Station approached him for the purpose of recording the dying declaration of the deceased along with the requisition and, therefore, he recorded her dying declaration at 22.41 hours. He also confirmed that the dying declaration was endorsed by Dr. Labade at 22.53 hours on 15/3/99. He confirmed that the endorsements made on the said dying declaration are in his own handwriting and they were made after the doctor’s endorsement. He stated that he had handed over the dying declaration to the police constable who had approached him at the Sassoon Hospital on 15/3/99 itself. The Division Bench observed that the said dying declaration had been admitted by the parties. It was, therefore, marked as Exhibit 72-A. The Division Bench recorded the answer given by Shri Joshi to the question asked by the court that he came to be appointed as Special Judicial Magistrate in the year 1999 only and he had not received any special training for recording dying declarations. However, he used to follow a prescribed format for recording dying declarations. He confirmed that he had recorded the dying declaration of the deceased in question and answer form and after the same was recorded he had read it over to the patient and obtained her thumb impression. The 12 mss APEAL+1157 muster roll extract of March, 1999 was taken on record and marked Exhibit-72-B as the document was admitted by both the parties on the basis of the original muster roll. On the basis of the evidence recorded by the trial court and the evidence brought on record in this court both the learned Judges considered the arguments advanced by counsel for the parties and delivered separate judgments. 9. Justice Marlapalle came to a conclusion that because the two dying declarations Exh. 72 & 72-A are contrary to each other the accused must get benefit of doubt so far as the offence under Section 302 of the IPC is concerned. In this connection he relied on Sanjay v. State of Maharashtra, AIR 2007 SC 1368. According to Justice Marlapalle the prosecution had failed to prove its case against accused 1 to 4 that they caused homicidal death of Shubhangi by setting her on fire after pouring kerosene on her. He was also of the opinion that the prosecution had failed to prove the charge under Section 498A of the IPC. He acquitted accused 1 to 4 of the charge under Sections 302, 498A read with Section 34 of the IPC. He however, came to a conclusion that the accused had failed to explain in his statement recorded under Section 313 of the Code as to how his wife sustained the burn injuries. Justice Marlapalle 13 mss APEAL+1157 observed that muster roll Exh.-72B indicates that he was not in the school before 10 a.m. on the date of incident. He further observed that in the dying declaration recorded by Shri Joshi, which is at Exh.-72A, the deceased has stated that there was a quarrel between the deceased and accused 1 and that is why she had poured kerosene on herself and set herself on fire with a matchstick. Learned Judge, therefore, came to a conclusion that accused 1 must be held guilty of abetting the suicide of the deceased. He, therefore, held him guilty under Section 306 of the IPC and sentenced him for the said offence. He acquitted accused 5. 10. On the other hand Justice Roshan Dalvi confirmed the judgment and order of the trial court. Learned Judge relied on the judgment of the Supreme Court in Harjit Kaur v. State of Punjab, 1999 Cr. L.J. 4055 and another judgment of the Supreme Court in Sayarabano @ Sultana Begum v. State of Maharashtra, 2007 Cri. L.J. 1458. In both the cases the victim was a woman. Kerosene was poured on her and she was set ablaze. There were two dying declarations. On appreciation of both the dying declarations the Supreme Court preferred the dying declaration which implicated in- laws of the victim. The Supreme Court held that the said dying 14 mss APEAL+1157 declaration was truthful and inspired confidence. Justice Dalvi was of the view that the first dying declaration deserves to be rejected because it was recorded by putting the deceased under fear by her in-laws. Learned Judge held that the allegations of cruelty were proved. Learned Judge severely commented on the conduct of accused 1 and also on the conduct of accused 5, the maternal uncle of accused 1. She held all the accused guilty of the offences with which they were charged and confirmed the sentence awarded to them by the trial court. 11. In Tanviben Pankajkumar Divetia v. State of Gujarat (1997) 7 SCC 156, the Supreme Court has held that plain reading of Section 392 of the Code indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily follows that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper. In this case learned Judges have practically differed on every aspect. No points of difference of opinion are framed. Counsel for the appellants and learned APP have, therefore, requested me to hear the appeal afresh and decide whether the impugned judgment and order of the Sessions Court deserves to be confirmed or not. Hence I have heard 15 mss APEAL+1157 the appeal afresh. 12. Mr. Mohite, learned counsel for the accused submitted that the prosecution has failed to prove its case against the accused and hence the accused deserve to be acquitted. Counsel submitted that PW 1 Narsing, the father of the deceased has not referred to any dying declaration made by the deceased to him. He has stated that he went to Sassoon Hospital along with his wife PW 4 Shalan. Evidence on record establishes that he was with PW 4 and both of them were throughout with the deceased. While PW 4 Shalan has stated that the deceased made a dying declaration to her at 7 p.m. implicating her in-laws PW 1 does not refer to this dying declaration at all. Counsel further submitted that PW 4 Shalan’s evidence should not be relied upon because her statement was recorded two months after the date of incident. Her version that the deceased made a dying declaration to her must be discarded because PW 1 Narsing, who according to her was present when the deceased made the dying declaration, has not said a word about it. Counsel pointed out that PW 4 has spoken about Mahadeo Nigade her brother as a person who was present with her and PW 1 throughout. However, the prosecution has not examined the said Mahadeo Nigade. 16 mss APEAL+1157 Evidence of Mahadeo Nigade would have thrown some light on the prosecution case. Counsel submitted that PW 6 Vikrant Bhoite, cousin of the deceased has also spoken about the dying declaration made by the deceased, PW 1 and PW 4, however, do not talk about the presence of PW 6. He has given a story which is quite different from the one given by PW 4. Counsel submitted that PW 5 Ashwini, cousin of accused 1 has turned hostile. Counsel submitted that the greatest lacuna in the prosecution case is the fact that the prosecution suppressed the first dying declaration Exh.-72 in which the deceased has stated that she committed suicide. Counsel submitted that the fact that the prosecution suppressed the first dying declaration must have adverse impact on its case. Counsel pointed out that the second dying declaration Exh.-72 was recorded on 16/3/1999 between 7 p.m. to 7-15 p.m., however, no FIR was registered on the basis of the said dying declaration. FIR came to be registered on 22/3/99. Counsel submitted that PW 3 Shri Dhumal, the Special Judicial Magistrate, who recorded dying declaration Exh.-72 has stated in his cross-examination that he knew that earlier statement of the deceased was recorded and that there was no written request that her second statement should be recorded. Counsel submitted that, therefore, it is not known as to who called 17 mss APEAL+1157 PW 3 for recording the second statement of the deceased. Counsel submitted that PW 1 Narsing has admitted that PSI Shinde who was related to him, was present throughout in the hospital, therefore, it is possible that PSI Shinde has caused the said second dying declaration to be recorded. Counsel submitted that pancha to the scene of offence has not been examined. PW 7 PSI Andhare has admitted that he had recorded the statements of neighbours. However, no neighbour has been examined by the prosecution. Thus though independent evidence was available it was not brought on record. Counsel submitted that the documents which were brought on record of this court clearly establish that the accused was made permanent in his job much prior to the incident in question. Therefore, the story that he was demanding Rs.10,000/- which he was required to spend for getting his job confirmed is false. Counsel submitted that in view of the discrepancy between the two dying declarations the entire prosecution case has become suspect and, therefore, all the accused deserve to be acquitted. Counsel submitted that in any event the second dying declaration must be discarded because it appears to be concocted. If the first dying declaration is taken into account then only accused 1 could be held to be guilty under Section 306 of the IPC. Counsel submitted that so 18 mss APEAL+1157 far accused 5 is concerned the prosecution has not established its case against him at all and he deserves to be acquitted of all the charges. 13. As against this Mrs. Bhosale, learned APP submitted that the accused have been rightly convicted by learned Sessions Judge. She submitted that the incident took place at about 10-30 a.m. The deceased was taken to the hospital by her in-laws. Till her parents came on the scene at 7 p.m. she was in the custody of her in-laws. Obviously, therefore, her first dying declaration made at the hospital was under coercion and threat. Learned APP submitted that the deceased died within seven years of her marriage and, therefore, presumption under Section 113 (b) of the Evidence Act must spring into action. Learned APP submitted that the accused have failed to establish how the deceased died in suspicious circumstances in their house. Learned APP submitted that evidence of PW 1 and PW 4 clearly makes out a case of cruelty. Learned APP submitted that the defence of accused 1 that he was not present when the incident in question took place is found to be false and that would form an additional link in the chain of circumstances establishing his guilt. Learned APP submitted that PW 1 and PW 4 are rustic witnesses 19 mss APEAL+1157 and, therefore, if there are any minor inconsistencies in their evidence those should not be taken against them. Learned APP relied upon judgment of the Supreme Court in Harprit Kaur & Sayarabano and submitted that the appeal deserves to be dismissed. 14. That deceased Shubhangi died of 95% burns is not disputed. The question obviously is whether her death was homicidal or suicidal. Before dealing with that aspect it is necessary to have a look at the background of the case. 15. The deceased was married to accused 1 on 19/5/1998. The incident in question took place on 15/3/99. What needs to be noted is that within a year from the marriage, the deceased succumbed to burn injuries received by her in her matrimonial house. PW 1 Narsing father of the deceased has stated that when the deceased came to his house for Diwali festival she told him that the accused were demanding Rs.10,000/- which he was to spend for confirmation of accused 1’s service. He could not satisfy the demand because of his poor financial condition. He went to the house of the accused and told them that he was unable to satisfy their demand and requested 20 mss APEAL+1157 them to treat the deceased well. According to PW 1 thereafter the deceased came to his house for Sankrant festival. She told him that the accused were not giving her food. They were beating and abusing her and they were giving her insulting treatment. They