apl403.94 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 403 OF 1994 The State of Maharashtra ...Appellant Versus 1) Arun s/o Bhagwan Bharati, Age 25 years, Occ. Service, Government Boys’ Hostel, Nilanga, District Latur 2) Bhagwan s/o Santosh Bharati, Age 65 years, Occ. Agriculture, R/o. Paradh, Tq. Bhokardan, District Jalna 3) Kondabai w/o Bhagwan Age 55 years, R/o. As above, ...Respondents ..... Smt. S.D. Shelke, APP for the appellate-State Mr. V.P. Kadam, h/f Mr. R.N. Dhorde, Advocate for the respondents ..... CORAM : A.H. JOSHI AND A.M. THIPSAY, JJ. DATED : 11TH NOVEMBER, 2011 JUDGMENT (PER A. M. THIPSAY, J.) 1) This appeal filed by the State of Maharashtra is directed against the judgment dated 17.8.1994, delivered by the learned Sessions Judge, Aurangabad in Sessions Case No. 230 of 1993, acquitting the respondents, who were the accused in the said case, of offences punishable under Section 498-A r.w. 34 of I.P.C. and Section 302 of I.P.C. After holding the trial, the learned Sessions Judge came to the conclusion that the prosecution had failed to prove the charges against apl403.94 -2- the respondents and passed an order acquitting them. As aforesaid, being aggrieved by the said order of acquittal, the State of Maharashtra has filed the present appeal. 2) For the sake of convenience and clarity, the respondents shall be referred to by the position held by them in the trial court i.e. as accused Nos. 1, 2 and 3 respectively. 3) The case of prosecution before the trial court was, in brief, as follows;- a) That, Vijaya (deceased) was married to accused No.1 Arun. The accused Nos. 2 and 3 are the parents of accused No.1. That, Vijaya was being treated with cruelty by the accused persons, as certain demands made by them in connection with the marriage were not fulfilled by the father of Vijaya. That, on 7.4.1993, accused No.1 Arun poured kerosene on the person of Vijaya and set her on fire by throwing a lighted matchstick on her body. Vijaya caught fire, sustained burn injuries and ultimately succumbed thereto on 21.5.1993. b) Statement of Vijaya was recorded by Mr. Shashikant Bombale, Special Executive Magistrate (P.W.2), in which she stated that while she was cooking in her house, she accidentally caught fire. Vijaya has stated that:- - Her husband, i.e. accused No.1, poured water over her person and took her to the Government dispensary at Vaijapur. apl403.94 -3- - That after first aid was given to her in Government dispensary at Vaijapur, she was taken by her husband to GHATI hospital at Aurangabad. - That, she had no trouble from any of the accused and that she had no grievance or complaint against anyone. c) The relatives of Vijaya were informed about the incident and many of them came to the hospital at Aurangabad to meet her. On 11.4.1993, Vijaya told her father Uttam (P. W. 1) that actually she had been set on fire by accused No.1. d) Thereafter a Special Executive Magistrate was requisitioned to record the statement of Vijaya and accordingly, the same Special Executive Magistrate - Shri Shashikant Bombale (P.W.2) - again recorded the statement of Vijaya. In the said statement, Vijaya stated that accused No.1 had poured kerosene over her person and set her on fire; and that earlier also accused No.1 had attempted to kill her by knife; and that all accused were harassing her. e) She also stated that the earlier statement given by her before the Special Executive Magistrate was given by her at the instance of her husband and due to fear. She stated in this subsequent statement, that the earlier statement should be considered as false and the statement that was then being made, was true and correct. apl403.94 -4- f) The case was registered against the accused on the basis of report lodged by Uttam (P.W.1) with the police on 12.4.1993. The investigation commenced and during the course of investigation, the statements of number of persons were recorded by the investigating officer Shri Shivaji Patil (P.W. 13). On completion of investigation, charge sheet was filed on 20.8.1993, pursuant to which the accused were tried and acquitted, as aforesaid. 4) During the trial, the prosecution has tendered documentary evidence, which includes the record of dying declarations made by Vijaya on 7.4.1993 (Exh. 12) and on 11.4.1993 (Exh.15) before the Special Executive Magistrate Shri Bombale (P.W.2). To prove said documents and to prove other facts, the prosecution has examined in all 14 witnesses. 5) We have gone through entire evidence. We have heard Smt. Shelke, learned A.P.P. for the appellant-State and Shri Vikram Kadam, learned counsel for the respondents. We have perused the judgment delivered by the trial court. 6) The case is based on the Vijaya’s dying declarations. Apart from the dying declarations made to Special Executive Magistrate Shri Bombale, record of which is at Exh. 12 and 15, there are a number of other dying declarations said to have been made by Vijaya. These are oral dying declarations made by her to her father Uttam (P.W.1) and her other relatives. Additionally, the statement of Vijaya, which was recorded on 7.4.1993 by Janardhan Borde, Head constable is also a dying declaration (Exh.32). Her statement recorded by investigating officer Shri Shivaji Patil (P.W.13) is also a dying declaration (Exh.39). apl403.94 -5- 7) Broadly speaking, the dying declarations made by Vijaya can be classified in two categories i.e. dying declarations which advance the version of Vijaya having caught fire accidentally and the dying declarations which claim that her husband- accused No.1- had set her on fire. 8) It can be very well seen, that the initial version of Vijaya was of an accidental fire itself. It is only on 11.4.1993, for the first time, she is said to have implicated accused No.1 for allegedly setting her on fire. 9) It is clear that, that accused No.1 had taken Vijaya to hospital cannot be doubted or disputed. 10) In the view that we are taking, we do not propose to discuss whether the dying declarations which state that Vijaya had caught fire accidentally are reliable or the dying declarations which said that she had been set on fire by accused No.1 are reliable. What however, needs to be observed is that the rest of the circumstances, as appearing from the evidence, indicate that accused No.1 attempted to extinguish the fire by pouring water over the body of Vijaya and that he took her to the hospital, very promptly. The evidence of P.W.11 Saida, who resides opposite the house of deceased and the accused, shows that Vijaya came out of the house while she was burning and that the accused No.1 poured water on the person of Vijaya and attempted to extinguish the fire. The evidence of this witness has not been challenged in any manner. 11) What further needs to be observed is that the versions in the dying declarations were different and conflicting. There was no evidence, which would indicate that a particular version was true and the other was false. In such a apl403.94 -6- situation, it would be hazardous to place reliance on the dying declarations, which implicated the accused, as undoubtedly correct version and discard the other version, as false. 12) Perusal of the judgment delivered by the trial court shows that it is only after meticulously considering the conflicting pieces of evidence that the trial court came to the conclusion that the evidence adduced against accused persons was not reliable. We find that the reasoning of the trial court in that regard cannot be faulted with. The trial court’s reasoning that the subsequent dying declaration made by Vijaya could, very well be a result of the influence of Vijaya’s father Uttam (P.W.1) and her other relatives, is proper and reasonable. 13) In any case, certainly there were no grounds for discarding the initial version of Vijaya as false and concluding that what was stated by her in the dying declarations recorded on 11.4.1993 (Exh.12) and on 12.4.1993 (Exh.15) must be true. 14) The appreciation of evidence as done by the trial court and its conclusion that there was a reasonable doubt about the guilt of the accused, cannot be said to be suffering from any infirmity or error. As a matter of fact, on an independent re- appreciation of entire evidence, we also come to the conclusion that this was a fit case where accused were entitled to be acquitted. 15) We see no merit in the appeal. The appeal is dismissed. ***** apl403.94 -7-