Vikas & Ors vs State Of Maharashtra

2. The case of the prosecution was that deceased Rekha was given in marriage by PW 1 Laxmn Pingale to accused No. 1 Vikas Vayse. Accused No. 2 was brother of Vikas and brother- in-law of deceased Rekha. The marriage was solemnized in or about 1997-98 before 3 to 4 years of the incident in question. According to the prosecution, the accused demanded dowry and there was some dispute even at the time of betrothal ceremony which was locally known as Sakharpuda. After the marriage, Rekha went to her matrimonial home at Khandvi. For few months, the marriage relations went on well. Thereafter, however, all the accused started demanding money towards dowry. They used to harass and beat Rekha. Rekha could not satisfy the demand of the accused due to poverty of her parents. She complained to her parents about ill-treatment shown by the accused whenever she had visited to parental home. Though accused No. 2 Prakash was serving at Pune, frequently he was coming to Khandvi and staying with other accused. He used to abuse deceased Rekha and instigate accused persons to give ill-treatment to Rekha. Meanwhile accused came to know that father of Rekha had sold his land for Rs. one lakh. They, therefore, repeated demand of dowry and continued giving more trouble to her. Rekha also gave birth to two children; (i) Varsha-daughter, and (ii) Yogesh-son.

3. On the fateful day, i.e. on May 16, 2001, at about 11.00 a.m., accused No.1, husband of Rekha started quarrelling with the deceased.

also participated in the quarrel. All of them, according to the prosecution, poured kerosene on the person of Rekha; accused Vikas ignited match-stick and set Rekha on fire. All the accused then closed the door from outside and ran away. Rekha cried for help. On hearing the shouts, neighbours reached the place, opened the door, poured water on her, extinguished the fire and took her to the hospital. Dying declarations were recorded by Ramchandra Ganpat Dimale, Special Judicial Magistrate as also by PSI Bapu Yashwant Kale on May 17 and 18, 2001 respectively. Rekha died on June 1, 2001. After registration of offence being Crime No. 80 of 2001, investigation was carried out by PSI Kale. On completion of investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class, Karjat and the case was committed to the Court of Session.

4. Defence of the accused was of total denial. According to them, there was no ill- treatment towards Rekha. Regarding fire, it was the case of the accused that on the day of incident, sari of Rekha caught fire by accident while she was working near a fire place and it was accused No. 1 who extinguished fire. She was taken in a tractor and then in a jeep to Civil Hospital, Ahmednagar. But a false case was filed against them at the instigation of Smt. Bondre, maternal aunt of Rekha.

5. In order to establish offence against the accused, prosecution examined seven witnesses. So far as PW 1 Laxman Pingale, father of the victim is concerned, he did not support the case of the prosecution and was declared hostile. Similarly, Manohar Sahebrao Vayse, PW 2, Panch witness to the Spot Panchnama (Ex. 47) also did not support the case and he was also declared hostile. The prosecution, in the circumstances, mainly relied upon two witnesses, PW 5 Ramchandra Ganpat Dimale, Special Judicial Magistrate who recorded dying declaration of deceased Rekha between 11:30 and 11:52 a.m. on May 17, 2001, i.e. next day of the incident and P.W. 7, Bapu Yashwant Kale, PSI who also recorded dying declaration between 12:30 to 13:00 hrs. on May 18, 2001.

6. The trial Court after considering the evidence on record, held that from the prosecution evidence and particularly from two dying declarations said to have been recorded by PW 5 Ramchandra, Special Judicial Magistrate, and PW 7, PSI Kale, it was clearly established by prosecution beyond reasonable doubt that accused Nos. 1, 3 and 4 caused death of deceased Rekha. So far as Accused No. 2 is concerned, the trial Court acquitted him presumably on the ground that he was not present at the time of incident and was also not staying at village Khandvi. He was serving at Pune. The remaining three accused were held responsible for demand of dowry and for kiling deceased Rekha and thereafter closing the door from outside so that she may not be able to come out and save herself. All the three accused thus were convicted for offences punishable under Sections 498A, 302 and 342 read with Section 34, IPC. For an offence punishable under Section 302 read with Section 34, the accused were ordered to suffer imprisonment for life and pay a fine of Rs. 5,000/- each. In default of payment of fine, they were ordered to suffer further rigorous imprisonment for six months each. For an offence punishable under Section 498A read with Section 34, IPC, they were ordered to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- each, in default to payment of fine, to undergo imprisonment for six months and for offence under Section 342 read with Section 34, they were ordered to undergo imprisonment for six months.

7. Being aggrieved by the order of conviction and sentence, the appellants preferred an appeal in the High Court. The High Court again appreciated the evidence and by a well-reasoned judgment, came to the conclusion that though PW 1 Laxman Pingale, father of the deceased and PW 2 Panch Manohar Vayse did not support the case of the prosecution, from two dying declarations, it was clearly established that the accused had committed offences punishable under Section 302 and 342 read with Section 34, IPC. Accordingly, order of conviction and sentence recorded by the trial Court was held proper and the said order was confirmed by the High Court. As to an offence punishable under Section 498A read with Section 34, IPC, however, the High Court held that since it was not the case of the prosecution that Rekha was driven to death by committing suicide due to demand of dowry, it could not be said that the offence was established. All the accused persons were, therefore, acquitted of offence punishable under Section 498A read with Section 34, IPC. The above decision is challenged in the present appeal.

8. Leave was granted on March 10, 2007, but the prayer for bail was rejected. The matter was then ordered to be placed for final hearing and that is how the matter is before us.

(emphasis supplied)

whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

44. Applying the above principles to the facts of the case, in our judgment, both the courts were wholly right and fully justified in relying upon two dying declarations recorded by

(i) PW 5 Ramchandra, Special Judicial Magistrate on May 17, 2001 (Ex. 56) and (ii) PW 7 PSI Kale on May 18, 2001 (Ex. 62) and in discarding evidence of PW 1 Laxman, father of victim Rekha and PW2 Manohar, Panch. The Courts were also right in observing that for some unknown reasons PW 1 Laxman, father of victim Rekha was supporting the defence. But in the light of other evidence on record oral as well as documentary PW 1 Laxman could not be said to be trustworthy and reliable witness. At the time of investigation, his case was that the accused were responsible for causing death of her daughter Rekha, but subsequently he took totally opposite stand and supported the defence. The prosecution, however, was successful in bringing before the Court PW 5 Ramchandra, Special Judicial Magistrate and PW 7 PSI Kale who recorded dying declarations of deceased Rekha. Both the witnesses were rightly believed by the courts below. We, therefore, see no ground to interfere with the order of conviction and sentence recorded by the trial Court and confirmed by the High Court. The appeal, therefore, deserves to be dismissed.

45. For the foregoing reasons, the appeal is dismissed. Order of conviction and sentence recorded against the appellants is upheld.