The State of Maharashtra Through Police Station Offcerr Shahada v. Hemant S/o Ramchandra Sonawaner Age: 38 years; Occupation: Service R/o Vishnu Nagarr Plot No
Case Details
-1- ALS-62-2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 62 OF 2020 The State of Maharashtra Through Police Station Offcerr Shahada . . . Applicant (Original Prosecution) 1. 2. Versus Hemant S/o Ramchandra Sonawaner Age: 38 years; Occupation: Service R/o Vishnu Nagarr Plot No. 16r Shahada. Vimalbai w/o Ramchandra Sonawane Age: 66 years; Occupation: Householdr R/o Rajratna Societyr Plot No. 184r Dhuler District Dhule. 3. Manish s/o Ramchandra Sonawane Age: 45 years; Occupation: Private Service R/o Rajratna Societyr Plot No.184r Dhuler District Dhule. 4. 5. 6. Shubhangi w/o Manish Sonawane Age: 30 years; Occupation: Household R/o Rajratna Societyr Plot No. 184r District Dhule. Dinesh s/o Ramchandra Sonawaner Age: 33 years; Occupation: Private Service R/o Rajratna Societyr Plot No. 184r Dhuler District Dhule. Sangita d/o Ramchandra Sonawane (Sau. Sangita Karan Bagul) Age: 41 years; Occupation : Servicer R/o Rajratna Societyr Plot No.184r Dhuler District Dhule. -2- ALS-62-2020 7. Ramchandra s/o Surjan Sonawane Age: 70 years; Occupation: Retired R/o Rajratna Societyr Plot No. 184r Dhuler District Dhule. ... Respondents (Original Accused)
Legal Reasoning
. . . Smt. V. S. Choudharir APP for Applicant. . . . CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASEr JJ. DATED : 07th JUNEr 2023 ORDER (PER ABHAY S. WAGHWASEr J.) : 1. By way of instant applicationr the State is seeking leave to fle appeal for questioning the judgment and order passed by the learned Additional Sessions Judger Shahadar District Nandurbar in Sessions Case No. 28 of 2011r by which respondents were acquitted from the charges punishable under sections 302r 498-Ar 504 and 506 read with section 34 of Indian Penal Code (IPC). FACTUAL MATRIX 2. Deceased Sheetal suffered burns at Vishnu Nagarr Shahada on 30.12.2010 and was shifted to Dhule Civil Hospitalr where her statement (Exh.47) was recordedr on the strength of which FIR bearing No. 177 of 2010 came to be registered. 3. The sum and substance of the dying declaration is thatr -3- ALS-62-2020 deceased was married to accused Hemant and out of the said wedlock they have a sonr namelyr Jatin. According to herr husband (accused no.1)r parents-in-law (accused nos.2 and 7)r brother-in- law (accused no.3)r his wife (accused no.4)r another brother-in-law (accused no.5)r sister-in-law (accused no.6) were all subjecting her to ill treatment in the backdrop of demand of Rs.50r000/- for purchasing motorcycle for accused – husband so as to enable him to travel to attend his duties. According to herr on 29.12.2010r all accused in-laws abused her for not meeting the demand. Husband also raised quarrel with her. Her husband then poured kerosene and set her on fre. Only when she raised shoutsr he tried to extinguish the fre with water and took her to Municipal Hospitalr Shahada and then shifted her to Civil Hospitalr Dhuler where she gave above dying declarations. 4. Investigation was carried out and accused came to be arrested. After completing all procedural formalities and after investigation is overr accused came to be charge-sheeted. 5. At trial before the learned Additional Sessions Judger prosecution examined in all 14 witnesses. Their testimonies and the dying declarations were appreciated by the learned trial Judge and by the judgment and order dated 09.01.2020r learned trial -4- ALS-62-2020 Judge concluded that prosecution has failed to establish any of the charge and thereby acquitted the accused. Such judgment and order of acquittal is now proposed to be challenged by the State and hence instant leave application. 6. Learned APP would submit that the judgment proposed to be challenged is illegalr perverse and contrary to the evidence on record. According to learned APPr deceased Sheetal was subjected to cruelty on account of amount for purchase of motorcycle for her husband. She had promptly informed about it to her family members. Thatr as the demand was not metr all accused persons named in the FIR visited her house at Vishnu Nagarr Shahadar abused her and threatened her that they would seek divorce if she fails to meet the demand of Rs.50r000/-. It is pointed out that thereafterr husband also raised quarrel with her and it is he who poured kerosene and set deceased Sheetal on fre. According to learned APPr deceased gave dying declaration while undergoing treatment. The said dying declaration is voluntaryr truthful and inspiring confdence. Roles of accused is clearly defned in the dying declaration. Howeverr it is submitted that such evidence has not been properly appreciated by the learned trial Judge. Learned APP took us through the dying declaration and would submit that there is no infrmity in the same so as to -5- ALS-62-2020 discard the dying declaration or to doubt its veracity. She would submit that law on the point of dying declaration has not been properly applied and testimonies of witnesses are also not appreciated in its correct perspective. Without assigning proper reasonsr evidence of prosecution has been discarded and thereforer she prays thatr they have strong case in appeal and so she seeks indulgence of this court by allowing application to enable prosecution to take up the matter in appeal. 7. We have heard learned APP. We have also examined papers placed before us. It transpires that apart from relying on dying declarationr prosecution is also taking aid of oral testimonies of in all 14 witnesses. PW-1 Suresh seems to be the father of Sheetalr who was also known as Pratima. PW-2 Girdhar is a witness to the dying declaration. PW-3 Manisha is the neighbour. PW-4 Ranjana is a landlord. PW-5 Nilkanth Mule is the Naib-Tahsildarr who had recorded dying declaration (Exh.55/59) by visiting Civil Hospitalr Dhule. PW-6 Dr. Shilpa Pawar is the Medical Offcerr who examined Sheetal during visit of PW-5 Nilkanth for recording dying declaration. PW-7 Urmila is the sister of deceased. PW-8 Mangalar mother of deceased. PW-9 Yogeshr brother of deceased. PW-10 Bhagwan is a witness in whose vehicle Sheetal was shifted from -6- ALS-62-2020 Shahada to Dhule. PW-11 Nilesh is the panch to seizure of papers (Exh.92) on 03.01.2011. PW-12 Shantilalr panch to the spot and seizure of articles on 31.12.2020r PW-13 Atulr police head constabler who has carried muddemal. PW-14 Eknath Patilr is the Investigating Offcer. 8. Thus here record shows thatr there are two dying declarationsr i.e. frst dying declaration (Exh.59) recorded on 30.12.2010 at Civil Hospitalr Dhule and second dying declaration (Exh.60) also recorded on 30.12.2010. Thereforer we have carefully put both the dying declarations to close scrutiny. 9. First dying declaration has been recorded by PW-5 Nilkanthr the then Naib Tahsildar. This witness spoke about receiving communication from policer visiting Civil Hospitalr Dhuler approaching doctorr requesting to examine the patient and issued ftness certifcate. After completing such formalitiesr he claims that he recorded dying declarationr wherein deceased Sheetal allegedly stated that on 29.12.2010r she requested her husband Hemant to eat the stale food of previous dayr but he did not respond and therefore she got annoyedr went in bathroom bolted the door from insider poured kerosene on herself and set herself on fre. Thereafterr she herself opened the door and that time -7- ALS-62-2020 husband doused the fre by throwing water and it is the husband who took her to Municipal Hospital and thereafter shifted her to Civil Hospitalr Dhule. PW-5 Nilkanth stated that he read over the contents of dying declaration and after she confrmed about correctness of the statement recordedr he took her thumb impression. Witness has identifed the said dying declaration at Exh.55/59. 10. In the further testimony of PW-5 Nilkanth it has come thatr father of the burnt lady lodged report at police station and thereforer he was again requested to go and record dying declaration. Thereafterr he again visited the Civil Hospital and after endorsement of doctorr he recorded the statementr wherein she stated that her husband came home on 29.12.2010 and after quarrel between herself and her husbandr he poured kerosene on her person and set her on fre and locked the door of the house from the outside and fed away. Her such statement was recorded and he obtained her thumb impression. He identifed the said second dying declaration at (Exh.60). 11. Above witness is subjected to extensive cross. It is pertinent to note thatr in the frst dying declaration it is clearly -8- ALS-62-2020 stated by deceased that she immolated herself only because her husband did not respond to her request to eat the stale food. Furtherr it is seen that only on receipt of report from fatherr police authorities requested this witness to go and record second dying declaration and in the second attemptr deceased appears to have named husband for pouring kerosene. Thusr apparently only due to pressure of family members of ladyr second dying declaration is recorded. 12. Apart from above dying declarationr prosecution has examined all relativesr i.e. parentsr sisters and brothersr but the answers given by them in cross clearly go to show that the same are full of improvements and omissions. Whatever is stated by them in chief has not been stated by them in their statements to police. Thereforer in our considered opinionr such testimonies cannot be taken recourse to and relied upon. First dying declaration clearly attributes burns to suicide. Resultantlyr in our considered opinionr with such quality of material on recordr permitting State to proceed for fling appeal would be a futility. There is no merit in the case. 13. We have gone through the judgment and order passed by learned trial court. Learned trial Judge has correctly -9- ALS-62-2020 appreciated both the dying declarations as well as oral evidence of prosecution. Law has been correctly applied as and when required. There is no perversity brought to our notice so as to upset the fndings which are based on sound reasons. Hencer we are not inclined to grant leave and hence the application for leave to appeal by State stands rejected. (ABHAY S. WAGHWASEr J.) (SMT. VIBHA KANKANWADIr J.) Tandale