High Court
Legal Reasoning
Criminal Appeal No.32/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.32 OF 2019Suresh s/o Jaidrath MaskeAge 35 years, Occu. Nil,R/o Sonwale, Tq. Ambajogai,District Beed (At present in Jail)… APPELLANTVERSUSThe State of Maharashtra(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad… RESPONDENT.......Mr. V.R. Dhorde, Advocate withShri S.P. Nimbalkar and S.S.Dudhane, Advocates for appellant Mr. S.D. Ghayal, Addl. P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 3rd January, 2024Date of pronouncing judgment : 24th January, 2024JUDGMENT (PER R.G. AVACHAT, J.)The challenge in this appeal is to a judgment and orderof conviction and consequential sentence, dated 28/11/2018,passed by the Court of learned Additional Sessions Judge,Majalgaon, District Beed in Sessions Case No.40/2016. Videimpugned judgment and order, the appellant has been convicted foroffences punishable under Sections 302, 307 and 498-A of the Criminal Appeal No.32/2019:: 2 ::Indian Penal Code and, therefore, sentenced to suffer lifeimprisonment for offence punishable under Section 302 andrigorous imprisonment for 2 years on each count for offencepunishable under Sections 307 and 498-A with further direction topay fine in different amount for the respective offences with defaultstipulations. All the substantive sentences have been directed torun concurrently.FACTS :-2.The appellant married Vidya (P.W.3), informant on30/4/2006. The couple was blessed with two sons, Yash and Ansh.Both the appellant and P.W.3 Vidya were staying at Shikrapur,District Pune along with their elder son Yash. Ansh was residingwith his maternal grandparents at Majalgaon, District Beed. Theappellant was a Painter by profession. P.W.3 Vidya would alsowork with a factory. The appellant was not keeping well. Vidya,therefore, informed the same to her father-in-law. Deepak,appellant’s brother, therefore, went to Shikrapur and brought theappellant, Vidya and their son Ansh to village Sonawala on23/5/2016. Both the appellant and his brother went to a hospital atAmbajogai on 25/5/2016. They returned by 2.00 p.m. Vidya askedthe appellant that they would first go to her parent’s house atMajalgaon and then to Shikrapur. It was about 10.30 p.m. Herefused. There was, therefore, quarrel between the couple. Criminal Appeal No.32/2019:: 3 ::3.Both the appellant and Vidya, along with their son Yashwent to sleep in a two-room premises. It was about 11.00 p.m. on25/5/2016, the parents and brother of the appellant went to sleep inthe front yard of the house. Vidya sensed something to have beensprinkled on her person. It smelled like kerosene. It was about1.00 a.m. of 26/5/2016. She realised the appellant to have pouredkerosene on her person. She, therefore, came crying. Sheimmediately removed Saree from her person. In a while shenoticed smoke and flame emanating from the house. She heardshouts of her son Yash. Deepak, therefore, entered the house andbrought Yash out. Yash had suffered extensive burns. He wasrushed to hospital at Ambajogai. His statement-cum-dyingdeclaration (Exh.57) was recorded. Vidya too gave her statementto a police official. The same was treated as F.I.R. (Exh.52).Initially, the crime for offence punishable under Section 307 of theIndian penal Code was registered. Yash died of burn injuries.Section 302, therefore, came to be additionally invoked. Vidyagave supplementary statement, alleging her parents and brother-in-law to have harassed and ill-treated her and even committedmurder of Yash.4.The appellant was arrested on the following day. Hehad suffered some burns. Upon completing the investigation, acharge sheet was filed against the appellant, his parents and Criminal Appeal No.32/2019:: 4 ::brother as well. 5.The case was committed to the Court of AdditionalSessions Judge, Majalgaon (Trial Court). Charge (Exh.28) wasframed against all of them. They pleaded not guilty. Theprosecution examined 9 witnesses and produced documentaryevidence. The appellant examined two witnesses in his defence. Itis his case that, there was a quarrel between him and Vidya overgoing back to Shikrapur. He refused. Vidya, therefore, tried tocommit suicide by pouring kerosene. Burnt match stick fell down.Vidya rushed out of the house. Yash suffered burns by accidentand Vidya falsely implicated the appellant in the crime.6.On appreciation of the evidence in the case, the TrialCourt acquitted the parents and brother of the appellant. State hasnot preferred appeal against acquittal. The appellant was foundguilty of the offence/s and, therefore, sentenced to various terms ofimprisonment as stated above. The Trial Court relied on the dyingdeclaration of Yash and the oral evidence of Vidya.7.Heard. Learned counsel for the appellant would submitthat, there was no independent witness. All was not well betweenthe couple, appellant and the informant. There was history ofdisputes between the two and even report with police was lodged Criminal Appeal No.32/2019:: 5 ::earlier. The informant Vidya has even implicated her innocentparents and brother in the offence of murder in spite of there beingno shred of material against them. The same suggests that, shecould go to any extent to save herself. Her testimony is, therefore,unreliable. On the question of dying declaration of deceased Yashis concerned, the learned counsel would submit that, it wasrecorded by police official. While recording the same, Yash was onthe laps of his mother, Vidya. He (Yash) was just 7 years of age.The doctor who claimed to have examined Yash to find himconscious oriented to make a statement, gave his endorsement onthe first page itself. The police official who recorded the dyingdeclaration has admitted that Yash did not answer his questionNo.5. Answer of question No.5 appearing in the dying declarationhas been authored by the police official himself. Learned counselwould further submit that, Yash suffered extensive (85%) burns.The incident took place at the dead of night (1.00 a.m.). He being achild, must have been in slumber at the relevant time. He sufferedburns accidentally. According to learned counsel, the prosecutionevidence fell short to establish the guilt of the appellant beyondreasonable doubt. He, therefore, urged for allowing the appeal.8.Learned A.P.P. would, on the other hand, submit that,the dying declaration has been recorded in question-answer form.The Medical Officer had examined Yash before and after recording Criminal Appeal No.32/2019:: 6 ::of the dying declaration. The doctor is an independent witness. Aninnocent child has no reason to speak against his own father. Hisevidence gets reinforced by the evidence of his mother Vidya. Aquarrel between the two was cause of the incident. Dousing personwith kerosene and setting ablaze goes a long way to infer theappellant to have intended to kill his wife (Vidya) and evenintentionally killed his son Yash. According to learned A.P.P., thetrial Court has not committed any error in appreciating theevidence. He, therefore, urged for dismissal of the appeal.9.Considered the submissions advanced. Perused theevidence on record. The appellant had married Vidya way back in2006. The couple was blessed with two children, Yash and Ansh.Father of the appellant was serving with BSNL at Majalgaon. Hewas residing in official quarters at Majalgaon itself. On marriage,both the appellant and Vidya had resided along with parents of theappellant in BSNL quarters. Vidya’s parental house was atMajalgaon itself. It is in the evidence of Vidya that, after one year ofher marriage, she started residing at Jalalpur area in Parali alongwith the appellant. They stayed there for about 4 years. Yash wasborn at Jalalpur. Then they shifted to Sonawala (village).Thereafter they shifted to Majalgaon and started residing in a roomtaken on rent. After 4 - 5 months of stay thereat, they joined theparents of the appellant and started residing in BSNL quarters. Criminal Appeal No.32/2019:: 7 ::After having stayed there for about 2 months, the couple shifted toShikrapur in the District of Pune. The appellant started doingpainting work to earn his living. Vidya joined a service with aCompany located nearby Pune. 10.It is in the evidence of P.W.3 Vidya that, the appellantwas not keeping well. She had, therefore, informed the same to herfather-in-law on 21/6/2016. Deepak, her brother-in-law thereforecame to Shikrapur. He brought all of them to village Sonawala on23/5/2016. it has come during her cross-examination that she wasreluctant to come to Sonawala. It is further in her evidence that, theappellant was addicted to liquor. He would suspect her fidelity. Theappellant, therefore, used to beat her up. Deepak and parents wentto hospital at Ambajogai on 25/5/2016. They came back toSonawala by 2.00 p.m. There is further evidence to indicate that31st May was birthday of Ansh. Vidya, therefore, wanted to visit herparent’s house and thereafter go back to Shikrapur. She, therefore,asked the appellant that they would first go to her parental houseand then to Shikrapur. The appellant was not inclined to go to anyplace. There was, therefore, a quarrel between the two. Parentsand brother of the appellant tried to convince him. He, however, didnot listen. It is further in her evidence that, by 11.00 p.m., theappellant, herself and Yash went to sleep in their tin shed house.Her in-laws went to sleep in the courtyard. It is further in her Criminal Appeal No.32/2019:: 8 ::evidence that, she sensed something like kerosene to have beenthrown on her person. It was 1.00 a.m. She realised that it was theappellant who poured kerosene on her person. She immediatelycame out of the house crying. Her in-laws woke up. She removedSaree from her person. She immediately noticed smoke andflames emanating from the house. Yash was shouting. Deepak(appellant’s brother) entered the house and brought Yash out. Yashhad suffered extensive burns. The appellant too had suffered someburns to his leg. Deepak, herself and the appellant rushed Yash toa hospital at Ambajogai. A police official there recorded statementof Yash and her as well. 11.In response to the questions put to her in her cross-examination, it has come on record that the appellant did not wantto go back to Shikrapur. She had, however, insisted him to goback. A quarrel therefore took place between the two. It has alsocome in her evidence that, while they were residing at Parali, therewas a quarrel between them and therefore, she had left thecompany of the appellant and was residing with her parents. Theappellant had issued her a notice through Advocate, asking her toresume cohabitation. She thereafter joined the appellant. She had,however, lodged a report with Women’s Grievance RedressalForum at Ambajogai. It is also in her evidence that, while staying atShikrapur, she had lodged a report to the police against the Criminal Appeal No.32/2019:: 9 ::appellant. The same suggests all was not well between the couple.They had no happy married life. The appellant was alleged to havebeen suspecting her character. 12.There is evidence to indicate the clothes on the personof the appellant at the time of the incident reek kerosene. He toohad suffered some burns. He took treatment at hospital inAmbajogai. He was, therefore, arrested on the following day. Thequestion is, whose version is to be believed, the appellant or that ofVidya. Here is a lady (Vidya) who gave a supplementary statementto the police on fourth day of the incident, implicating her parentsand brother-in-law to have also been involved in committed murderof her son Yash. Close reading of her case in the F.I.R. and the factthat the brother-in-law Deepak risking his life, entered the house tosave Yash, goes long way to hold that Vidya had deliberatelyimplicated them in a serious offence for which a sentence of lifeimprisonment or death has been prescribed. The Trial Court hasrightly acquitted the parents and brother-in-law of Vidya. When aperson can falsely implicate an innocent person, in an offence ofmurder, her evidence becomes doubtful. We are conscious of theprinciple that “Falsus in Uno Falsus in Omnibus” is not applicable inIndia. The Court has to sift grain from chaff. In case of evidence ofa witness who is neither reliable or unreliable, there has to be somecorroborative evidence. Criminal Appeal No.32/2019:: 10 ::13.The prosecution here is relying on dying declaration ofYash (Exh.57). At the relevant time, Yash was 7 years of age. Achild prone to tutoring. Admittedly, he was sleeping along with hisparents. It was the dead of night (1.00 a.m.). In all probability, hemust have been in slumber. It is not the case of the prosecutionthat Yash was awake. He had also no reason to be awake since asper prosecution there was no quarrel between the appellant and hiswife Vidya for being a reason for Yash to be awake.14.The dying declaration of Yash has been recorded by aPolice Head Constable, P.W.4 Rajebhau. It is in his evidence that,he rushed to the hospital on the direction of his official. Heenquired with Yash to find to be able to speak and make astatement. It is further in his evidence that he requested theMedical Officer on duty to examine Yash and certify whether Yashwas conscious oriented to make a statement. Dr. Laxman (P.W.6)examined Yash and gave his two endorsements on a papercontaining dying declaration, first before recording of the statementand second one after recording of the statement was over. P.W.4Rajebhau has categorically admitted that Yash did not reply to thequestion No.5 appearing in the dying declaration. The samesuggests that the answer appearing to the said question in thedying declaration was authored by P.W.4. True, the dying Criminal Appeal No.32/2019:: 11 ::declaration has been recorded in question – answer form. Yash issaid to have informed P.W.4 that when he woke up, he saw hisfather (appellant) set him ablaze. It was his uncle Deepak whopoured water on his person and brought him out of the house.15.P.W.7 Onkar had examined Yash. He was on duty atS.R.T.R. Medical College & Hospital at the relevant time. It is in hisevidence that, on examining Yash, he found him conscious orientedto make a statement. According to him, statement of Yash wasrecorded in his presence. He gave two endorsements on thestatement of Yash, recorded by P.W.4 A.S.I. Rajebhau. P.W.7Onkar was, however, categorical to state that, children could notbear pain compared to adults. In case of severe pain child could bein alter consciousness. It is possible that, in such type of burns, thepatient is not stable.16.We have every reason to suspect either Yash mighthave been prompted by his mother Vidya to make such a statementor it was the statement given by Vidya to have been converted intodying declaration. It is reiterated that, Yash was just 7 years of age.By the time of incident he must have been in slumber. He musthave woke up on having suffered heat or burns. P.W.3 Vidya hadalready come out of the house. Saree on her person had somekerosene on it. Clothes on the person of the appellant also reek Criminal Appeal No.32/2019:: 12 ::kerosene. He too suffered some burns. While the dyingdeclaration of Yash was recorded, he was on the lap of Vidya. Yashhad suffered 85% burns. It is not known as to why the police officer(P.W.4) preferred to first record statement of Yash and then ofVidya. The officer in charge of the Police Station, however, treatedVidya’s statement as F.I.R. It has already been observed abovethat, Vidya had no happy married life. There was separationbetween the couple for some days. Cohabitation had againresumed. In spite of her brother-in-law Deepak to have risked hislife to save Yash, it is Vidya who gave supplementary statementimplicating Deepak and his parents in committing murder of Yash.We have, therefore, every reason to doubt genuineness of thedying declaration (Exh.57). In our view, the said dying declarationeither must have been a result of prompting/ tutoring or entirelygiven by Vidya but shown to have been given by deceased Yash.For all these reasons, even though the post mortem report (Exh.65)indicate Yash to have died of shock due to 85% burns of total bodysurface area, we do not find the prosecution to have brought homethe appellant to be the author of setting his son Yash ablaze and tobe responsible to his consequential death. In our view, theappellant is entitled for benefit of doubt. The Trial Court ought notto have relied on the dying declaration of a 7 year old child who wasin slumber at the relevant time, and his mother, who had everyreason to implicate her husband and even who had falsely
Decision
Criminal Appeal No.32/2019:: 13 ::implicated her parents and brother-in-law in a serious offence ofmurder in spite of their non-involvement in the alleged crime waswrit large still they had to face the prosecution only at her instance. 17.In the result, the appeal succeeds. Hence the order : O R D E R(i)The Criminal Appeal is allowed.(ii)The order of conviction and sentence dated 28/11/2018,passed by the Court of learned Additional Sessions Judge,Majalgaon, District Beed in Sessions Case No.40/2016 ishereby set aside. The appellant is acquitted of the offencespunishable under Sections 302, 307 and 498-A of the IndianPenal Code. (iii)The appellant be set at liberty forthwith if not required in anyother case. Fine, if paid, be refunded to him. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-