High Court
Legal Reasoning
(1)908criapl16.05IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD908 CRIMINAL APPEAL NO.16 OF 20051.Sarita W/o. Jitendra Sanyashi,...APPELLANTSAge-30 years, Occu-Household,[Ori. Accused]2.Jitendra Vasantrao Sanyashi,Age-35 years, Occu-Business,Both R/o. Plot No. 25, Phule Colony,Dhule, Tq. & Dist. DhuleVERSUSState of Maharashtra ...RESPONDENTMr. D. R. Kale, Advocate for the appellants Mr. N. B. Patil, APP for the respondents/StateCORAM:KISHORE C. SANT, J.DATE:23rd AUGUST, 2024ORAL JUDGMENT:1.The present appeal arises out of the impugnedjudgment and order passed by the learned Ad-hoc AdditionalSessions Judge, Dhule dated 31-12-2004 in Sessions CaseNo.26/2004. By way of impugned judgment and order thoughboth the appellants came to be acquitted from the offencespunishable under Sections 306 and 506 of the IPC, however,1 of 12 (2)908criapl16.05they are convicted for the offences punishable under Sections342 and 348 of the IPC. Sentence awarded is 1 year simpleimprisonment and 3 years simple imprisonment respectivelywith fine of Rs.1000/- and Rs.3000/- each respectively.2.The story, in short, of the prosecution is thatdeceased Rekhabai was working with the present accused asMaid. Even her mother was also working as Maid prior todeceased Rekhabai. The accused thus, had full faith in thedeceased. It is alleged that deceased Rekha had stolen some goldornaments from the house of the accused persons and becauseof that suspicion they made enquiry with the deceased. On 03-12-2003 at 09.00 am deceased went to the house of the accusedfor work. At 12.00 noon the accused persons made enquiry andstated interrogation. It is alleged that she was confined in theroom till 01.00 O’clock and thereafter she was taken to thepolice station. Deceased thereafter committed suicide on 04-12-2003 at 06.30 am by pouring kerosene on and setting herself onfire. Because of shouts, her mother, father, brother and her2 of 12 (3)908criapl16.05husband started extinguishing fire and immediately took her tothe Civil Hospital. In the Civil Hospital she succumbed to theinjuries.3.While in the hospital, two dying declarations came tobe recorded i.e. Exh.9 and Exh.30. First Dying declaration Exh. 9was recorded by PW-2 Karbhari who was working as ASI at AzadNagar Police Station. Another dying declaration Exh.30 wasrecorded by PW-8 Kailash who was working as Awal Karkun inTahasil Office. In the second dying declaration the deceasedstated that she was working as Maid in the house of the accusedperson. On 03-12-2003, she went to their home at 09.00 am.The accused persons alleged that she has stolen gold ear-rings of30 gram. The accused persons confined her in a room and put alock. In this dying declaration she stated that since the accusedpersons have lodged the FIR against deceased, she committedsuicide by pouring kerosene on herself and setting on fire.4.The prosecution has examined total eleven3 of 12 (4)908criapl16.05witnesses. PW-1 is the PSI who registered the crime and provedthe dying declaration. PW-2 the ASI at Azad Nagar Police Stationwho recorded the dying declaration. PW-3 is Nandu, spotpancha who is also a neighbor of the deceased. PW-4 is father ofthe deceased. PW-5 is the mother of deceased. PW-6 & 7 are thepanch witnesses of the spot. PW-8 is Senior Clerk who recordedsecond dying declaration. PW-9 is the Doctor who examined thedeceased who certified that deceased was in a fit condition tomake statement. PW-10 is the husband of the deceased. PW-11is the Investigating Officer.5.On recoding the evidence the court found thatdeceased committed suicide because of the fact that husbandBhikan wanted to marry second time as Rekhabai was issue-lessand acquitted the accused from the said sections. So far assections 342 and 348 are concerned, the learned trial court heldthat the prosecution has proved that the accused had wrongfullyconfined the deceased for the purpose of getting confession.4 of 12 (5)908criapl16.056.Learned advocate Mr. Kale for the appellantsforcefully argued that the court has held the offences are provedonly on the basis of two dying declarations however, both thedying declarations are not proved by the prosecution beyondreasonable doubt. There is a doubt created about contents of thedying declarations. It has come on record that while recodingdying declaration parents and brother of the deceased werepresent. Secondly that both the witnesses who have recordedthe dying declaration have stated that while recording the dyingdeclaration Doctor was not present for entire time. PW-8 evencould not give particulars of recording of dying declaration.Even if the dying declarations are taken as it is, no case is madeout to show that deceased was illegally confined. In first dyingdeclaration Exh.9 deceased herself has stated that she wasinterrogated by the accused persons and after that deceased washanded over to the police. In the second dying declarationExh.30 she stated that she was confined in a room by putting alock to the said room. There was no question of confining thedeceased. The deceased on routine use to come to the house of5 of 12
Legal Reasoning
(6)908criapl16.05the accused being Maid. 7.Learned advocate for the appellants further submitsthat in view of Section 43 of the Cr. P. C. accused were withintheir right to take deceased in the custody and to handover tothe police which is rightly done by them. No offence can be saidto have been committed under such circumstances.8.Learned APP strenuously argued that fewcontradictions will not create suspicion about dying declaration,the prosecution has proved its case. There appear endorsementof Doctor on both the dying declarations, patient was in fitcondition to make a statement. Mere presence of the parentswould not make dying declarations doubtful. He further submitsthat in both the dying declarations it is clearly seen that since09.00 am till 12.00 noon the deceased was in the house of theaccused. From 12.00 noon to 01.00 pm she was kept in a room.So far as time of 12.00 noon to 01.00 pm on the date of incidentis consistent. It has clearly come on record that there was a6 of 12 (7)908criapl16.05suspicion about stealing of the gold ornaments by the deceased.Looking to the fact that & the conduct of the accused, the trialcourt has rightly acquitted the accused from the offencepunishable under Sections 306 and 506. So far as sections 342and 348 of the IPC is concerned, the learned trial court hasrightly convicted the appellants and he prays for dismissal. Inaddition to two written dying declarations, oral dyingdeclaration was also there to PW-4 father of the deceased. 9.With the assistance of the learned advocate for theappellants and learned APP this court has gone through theevidence of all the witnesses. PW-2-Karbhari in his cross-examination accepted that from the beginning of the statementthe deceased was in a fit condition to give statement. In hisevidence it is stated that parents of the deceased were presentAs pointed out there is contradictions between PW-2 and PW-8so far as giving of saline to injured Rekha, PW-2 stated thatwhen he was recording dying declarations, there was no salinebeing administered to the deceased whereas PW-8 stated that7 of 12 (8)908criapl16.05when dying declarations was recording there was saline appliedto the deceased. PW-3, neighbor, in his deposition, stated that hewas knowing the deceased and he also knows the accusedpersons. He accepted in the cross-examination that there weredisputes between Rekha and Bhikan as Rekha could not conceiveand deliver a child and she was issue-less. Therefore, husbandwanted to get married again. On that count there were quarrelsbetween them. He had knowledge that deceased has stolen goldring from the house of the accused. At the instance of the Rekhaeven that gold ring was recovered. He also stated that in thenight of 03-12-2003, there was quarrel between deceased & hermother with the husband of the deceased on the point of secondmarriage. He also deposed that accused No.2 had given policecomplaint against Rekha in Azad Nagar Police Station. This factis also clear from the second dying declaration of the deceased.It has come in the evidence that Mandabai told the deceased, ifshe files a complaint against the accused persons, then shewould get money from the accused persons. This witness wasalso present in the hospital at the time of recording of dying8 of 12 (9)908criapl16.05declaration.10.PW-4 i.e. father of the deceased also stated aboutquarrel between the deceased and her husband on account ofsecond marriage. He accepted that Bhikan-husband of thedeceased had taken some hand loan from one Anand Badgujarand the said amount was paid by the accused persons as it wasdemanded by the deceased. He accepted that on the date ofincident the police had taken Rekha from the house of theaccused persons. He taken his daughter from the police station.Mandabai-mother of the deceased also deposed on the lines ofthe PW-4. PW-6 & 7 panch witnesses are declared as hostile andthus their evidence is of no use in the prosecution. PW-8-Kailasaccepted in the dying declaration that he has not put anendorsement on the dying declarations. That the deceased wasconscious all the time when dying declaration was recorded.Doctor was present since beginning till recording of the dyingdeclaration. He also accepted that he has not put anendorsement that he got satisfied himself that patient was fit for9 of 12 (10)908criapl16.05giving statement. He accepted that parents were also presentwhile recording the dying declaration. PW-9 is the Doctor. Hisevidence is not of much help since now question is aboutoffences under sections 342 and 348 of the IPC the fact ofsuicide is not disputed by any of the parties. 11.So far as PW-10-husband is concerned he accepted inhis cross-examination that on the earlier occasion when therewas a theft in the house of the accused of gold ring, thedeceased had confessed and had handed over the goldornaments to the accused No.2. At that time in fact accusedNo.2 wanted to lodge a complaint, however, on the request ofthis witness and deceased no such complaint was lodged. Hefurther stated that though he told the deceased initially to giveback the ear-ring, the deceased refused to do so. He also statedabout the fact that he wanted to get marry with another womanas Rekha was not conceiving. PW-11 is API Investigating Officerwho filed charge-sheet. He accepted the panchanama. The IOaccepted that there were statements of some other persons in10 of 12 (11)908criapl16.05the vicinity were also recorded, however since those were notsupporting the prosecution case, those were not filed alongwiththe charge-sheet.12.Considering over all evidence, it is clear that boththe dying declarations are not free from doubt, secondly there isno endorsement on the second dying declaration that patientwas mentally and physically fit to give statement. Further it hasamply come on record that deceased had stolen ear-rings of theaccused No.2. It has also come on record that deceased hadquarreled with her husband as she was issue-less and for thather husband wanted to perform second marriage. This court alsofinds that in the argument of the learned advocate for theappellants that she was only interrogated and enquired aboutstealing of the gold ornaments and thereafter they handed overthe deceased to the police. It cannot be said to be confinementunder Section 342.13.The prosecution has failed to prove guilt of the11 of 12 (12)908criapl16.05accused beyond reasonable doubt. Looking to all, this court findsthat though the learned trial court has rightly acquitted theaccused persons from Sections 306 and 506, however, hasconvicted for the offences punishable under Sections 342 and348 of the IPC in absence of sufficient material. Evidence wasnot free from doubts. Under such circumstances, recordingconviction was not safe. This court thus concludes thatconviction is without sufficient material.14.In view of the said discussion, this court holds thatthe appeal deserves to be allowed and same is hereby allowed.Bail bonds of the accused persons stands discharged. Fineamount, if paid be refunded to the appellants.15.With this, appeal stands disposed off.[KISHORE C. SANT, J.]VishalK/908criapl16.0512 of 12