High Court
Legal Reasoning
CriAppeal-91-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 91 OF 20021.Marthabai w/o Yashwant BhingardiveAge : 55 years, Occu. Household,2.Laxmibai w/o Nitin BhingardiveAge : 23 years, Occu. Household,3.Nitin s/o Yashwant BhingardiveAge : 26 years, Occu. Agri.4.Yashwant s/o Savaleram Bhingardive(abated)Age : 59 years, Occu. Agri.(Appeal abated against appellant no.4as per order dated 28.07.2017)All residents of Nagardevale,Tq. Nagar, Dist. Ahmednagar.… Appellants [Orig. Accused Nos. 1 to 4]VersusThe State of Maharashtra… Respondent…..Mr. R. S. Shinde, Advocate h/f Mr. R. B. Raghuwanshi for the appellant.Mr. S. M. Ganachari, Advocate for the Respondent-State...... CORAM :ABHAY S. WAGHWASE, J. Reserved on: 18.03.2024Pronounced on: 01.04.2024JUDGMENT : 1.Appellants are questioning the judgment and order ofconviction dated 13.02.2002 passed by 4th Ad-hoc Additional Sessions CriAppeal-91-2002-2- Judge, Ahmednagar in Sessions Case No. 145 of 2001, convictingappellants for offences under Sections 498-A and 306 of the IndianPenal Code [IPC].PROSECUTION CASE IN NUTSHELL IS AS UNDER2.Accused, who were in-laws of deceased Kusum, werechargesheeted by Bhingar Police Station on the premise thatdeceased, a widow, resided with her children in the immediateneighbourhood of accused persons i.e. her in-laws. Since demise ofher husband Santosh, accused persons were subjecting deceasedKusum to ill-treatment as they were keen in seeing that she leaves thehouse, having lost her husband. According to prosecution, they usedto regularly abuse her and subject her to both, physical and mentalcruelty.3.On 17.07.2001, it is the case of prosecution that, accusedpersons again came to deceased, picked up quarrel and after abusingher, she was beaten by means of fist and kick blows. Such treatmenthaving become unbearable, deceased immolated herself resulting into92% burns. She was admitted to hospital. Her dying declaration wasrecorded on the strength of which, crime bearing no. 64 of 2001 wasregistered for offences punishable under Sections 498-A, 323, 504,
Legal Reasoning
CriAppeal-91-2002-3- 506 r/w 34 of IPC. While undergoing treatment, she succumbed andtherefore, charge was converted to 306 of IPC and after completion ofinvestigation, they were duly chargesheeted and tried by learned 4thAd-hoc Additional Sessions Judge, Ahmednagar, who, on appreciatingoral and documentary evidence, held all accused persons guilty foroffence under Sections 498-A and 306 r/w 34 of IPC and sentencedthem to imprisonment and to pay fine. Such judgment and order of conviction is now questioned byappellants by filing instant appeal.4.At the outset it needs to be mentioned that, since duringpendency of appeal, accused/appellant no.4 Yashwant s/o SavaleramBhingardive died, appeal stands abated as against him and there isorder to that effect dated 28.07.2017. Now, appeal of only appellantnos. 1 to 3 remains for consideration.SUBMISSIONSOn behalf of appellants :5.Learned counsel for the appellants, apart from placing onrecord written notes of arguments, submitted that there is apparentlyfalse implication. Deceased committed suicide in anger for the best CriAppeal-91-2002-4- reasons known to her. That, there is no evidence about commission ofoffence under Section 498-A of IPC. Specific instances of ill-treatment,abuse are not given by any of the witnesses. That, allegations on thepoint of cruelty are general and omnibus in nature.6.Secondly, according to him, crime was registered on the basisof two dying declarations, but the same are not consistent and arerather at variance. He would further point out that deceased hadadmittedly suffered 92% burns and therefore, it was duty ofprosecution to establish that deceased was in a position to give twodying declarations. There is doubt about her fitness to give dyingdeclaration. The doctor, who examined her and permitted PW3 PHCSuryawanshi to record dying declaration Exhibit 29, is also notexamined by prosecution. That, on the contrary, there is evidencesuggesting that condition of deceased was crucial. Therefore, thedying declarations also come under shadow of doubt. 7.He further submitted that there is no independent evidence.There is no evidence that accused abetted the suicide. Necessaryingredients for attracting Section 306 IPC are also patently missing.Therefore, under such circumstances, learned trial court ought not tohave accepted the case of prosecution and ought not to have further CriAppeal-91-2002-5- recorded guilt, but that not having happened, appeal has been filedand the same deserves to be allowed by setting aside the impugnedjudgment.On behalf of State :8.Learned APP supported the judgment by pointing out thatprosecution has adduced testimonies of in all 5 witnesses. They are allconsistent. That apart, there are two dying declarations namingaccused to be responsible for abetment to commit suicide. There wasconsistent ill-treatment. On the day of occurrence also accusedpersons had visited deceased, abused and beaten her. It havingbecame a regular affair, her life was made miserable and therefore,she took extreme step of committing suicide. Accused are solelyresponsible and are thereby rightly held guilty. According to learnedAPP, there is no merit in the appeal and hence he prays to dismiss thesame.EVIDENCE IN TRIAL COURT ON BEHALF OF PROSECUTIONPW1Dr. Todmal was the medical officer posted at Civil Hospital,Ahmednagar. He deposed that he accompanied SpecialExecutive Magistrate who had come for recording dyingdeclaration. After examining and finding patient Kusum fit,both mentally and physically, to give statement, he made CriAppeal-91-2002-6- observations to that extent after which, Special ExecutiveMagistrate recorded dying declaration. He deposed that afterrecording statement, patient gave thumb impression and he alsogave endorsement over Exhibit 24.PW2Arun acted as pancha to spot panchanama. He identified thesame to be at Exhibit 26 and its contents to be true.PW3Police Head Constable Suryawanshi, who recorded dyingdeclaration Exhibit 29 while Kusum was admitted in CivilHospital and on the basis of the same, crime was registered.PW4Shaikh Ahmed was the Executive magistrate, who recordeddying declaration Exhibit 24.PW5API Ashok Shete, Police Officer, who arrested accused andhanded over further investigation to PSI Kale.9.After Statement under Section 313 of Cr.P.C., accused have alsoadduced evidence of defence witness DW1 Sunil. The sum andsubstance of his evidence is that on 17.07.2001, he heard shouts fromthe house of deceased. A rickshaw was engaged and deceased wastaken to hospital. According to him, while in rickshaw, deceased didnot talk. According to him, at the time of admission, Doctor asked herabout cause of burns, to which she told that she suffered burns due toblaze of stove. Further, according to him, in the Civil Hospital CriAppeal-91-2002-7- relatives of Kusum, who had gathered, asked her to name the accusedpersons.ANALYSIS10.Thus, on taking survey of evidence, here, prosecution seems tohave rested its case on the testimony of PW1 Dr. Todmal, who wasavailable at the casualty in Civil Hospital, Ahmednagar and hadexamined deceased before recording of her dying declaration byPW4 ; PW4 Executive Magistrate Shaikh Ahmed who, on receipt ofletter from Bhingar Police Station, visited hospital and recorded dyingdeclaration Exhibit 24 ; PW2 Arun, who acted as pancha to spotpanchanama Exhibit 26; PW3 Police Head Constable Suryawanshi,who also recorded second dying declaration Exhibit 29 and registeredcrime ; whereas, PW5 API Shete was the Investigating Officer.11.Apparently, there is no other witness on behalf of prosecutioni.e. from the deceased’s side. The reason seems to be that she wasalready a widow. But her children residing with her are not madewitnesses. 12.Therefore, entire case of prosecution rests upon two dyingdeclarations Exhibit 24 and 29, the translated version of which isreproduced below for proper comprehension. CriAppeal-91-2002-8- Dying Declaration Exhibit 24 :Sessions Case no. 145/2001.Patient is conscious and well-oriented beforeExh. 24starting statement and can obey vocal commands.Admitted in evidence on 18.01.2002Signed/-Signed/- 18-1-2002 Sessions Judge,Chief Medical Officer 18-7-2001 at 8.00 PMAhmadnagar.DYING DECLARATIONCIVIL HOSPITAL, AHMADNAGAR18-7-2001 at 8.05I introduced myself as the Special Judicial Magistrate to the patient and began to record the statement as under:I, Kusum w/o Santosh Bhingardive, aged 27 years, Occ. Householdand Labourer, R/o Nagardevala, Taluka: Ahmadnagar, do hereby state inperson that, I reside at the abovementioned address and my parental home isat Tambori in Rahuri taluka. I am married since 9 years and I have threedaughters and a son. My husband died two years ago. I reside with my fourchildren at my own house and my mother-in-law Marthabai and brother-in-law Nitin Bhingardive and co-sister Lakshmi are my neighbourers. I raise mychildren by working as a maid. On Tuesday, 17-6-2001, I returned to homeafter work and was seated in the foreyard, my co-sister Lakshmi and mother-in-law started abusing and beating me as to why the garbage was thrown?They also said that, “you have only killed your husband.” This made me angryand I came inside my house and in a fit of anger poured down the plasticcannister full with 2 liters of kerosene on my person and ignited myself with aburning matchstick. I had worn a nylon saree and saree-petticoat that caughtfire. I got burn injuries on my chest, face, both hands and thighs. I startedshouting. The children in neighbourhood doused the fire by pouring the wateron me. My mother-in-law has admitted me in the Civil Hospital by a rickshawand I am under treatment at present.My mother-in-law Marthabai, father-in-law Yashwant SawaleramBhingardive, brother-in-law Nitin Bhingardive and co-sister Lakshmibai wereharassing me since beginning. I have burnt myself as I was fed-up with theharassment of the above persons. I have a complaint against them. Thus I have made the statement. The statement has been readover to me and I accept the same.Thumb impressionof Kusum w/o Santosh Bhingardive18-7-2001at 8-30 PM[The] Patient is conscious and well oriented duringand after statement and can obey vocal orders.Dr. Todmal, Chief Medical Officer,18-7-2001 at 8.30 PM CriAppeal-91-2002-9- Dying Declaration/FIR Exhibit 29 :17-7-2001COMPLAINTI, Kusum w/o Santosh Bhingardive, aged 27 years, r/o Nagardevale,Taluka: Ahmednagar, do hereby state in person, being admitted in the burnward of the Civil Hospital at Ahmednagar that, I am the resident of aboveplace and I reside with my daughters , 1. Shubhangi, aged 8 years, 2. Shweta,aged 4 years, 3. Soni, aged one and half years and the son Ganesh aged 6years. My husband Santosh died two years ago due to illness and I am residingwith my children separately after the death of my husband. My brother-in-law1. Nitin Yashwant Bhingardive, 2. Co-sister Lakshmibai w/o Nitin Bhingardive3. Mother-in-law Marthabai and 4. Father-in-law Yashwant SavaleramBhingardive, all residents of Nagardevale reside separately as my neighbour.These persons used to abuse, threaten and beat me always since the death ofmy husband, Santosh and say that, “our man has gone, what right do you haveto stay here and should leave” and harass me. Due to the above reason, afterthe death of my husband [from almost two years] and during my stay atNagardevale at my matrimonial home, the above persons have abused,threatened and ill-treated me, humiliated me and have harassed me mentallyand physically.Today, on 17-7-2021, I had been gone for my usual work of washingutensils and washing and returned to home at 4.00 o’clock, 1. LakshmibaiNitin Bhingardive and 2 Marthabai Yashwant Bhingardive started a quarrel bysaying that what right I have to reside there after the death of husband? AndMy brother-in-law 1. Nitin Yashwant Bhingardive, 2. Co-sister Lakshmibai w/oNitin Bhingardive 3. Mother-in-law Marthabai and 4. Father-in-law YashwantSavaleram Bhingardive, all residents of Nagardevale abused me, beat megiving kicks and punches and threatened me of life. As this has become regularand the ill-treatment by the above persons has become unbearable for me, Ihave set myself ablaze by pouring kerosene on my person at 6.00 PM. I havebeen admitted in the Civil Hospital, Ahmednagar by my mother-in-lawMarthabai for treatment as I received burn injuries on stomach, back, chestand hands etc. I am under treatment at present and completely conscious. Thecomplaint has been read over to me and found to be true and correct. I haveput my thumb instead of my signature due to burning.Before17-7-2001Signed/- Thumb impression Kusum Santosh BhingardivePHC, Camp P.S.Pt. is conscious and is in position BHINGAR POLICE STATIONto give statement.Crime Regn No. 64/2001Signed/- 9 PM U/s 498 [A], 323, 504, 506, 34 17-7-2001 registered on 17-7-2001 at 21-35 hrsCMOPSO Camp Police StationSession Case dated 145/2001 CriAppeal-91-2002-10- LEGAL POSITION13.Since the judgment of Khushal Rao v. State of Bombay; AIR1958 SC 22, on numerous occasions law on manner of appreciation ofdying declaration has been propounded and certain principles havebeen culled out from plethora of judgments by the Hon’ble SupremeCourt. Very recently the Hon’ble Supreme Court in the case of Stateof Uttar Pradesh v. Veerpal and Another; (2022) 4 SCC 741, whiledeciding Criminal Appeal No.34 of 2022 on 01-02-2022, hasreiterated the principles to be borne in mind while analyzing andaccepting dying declaration. The settled principles are as follows :“1. It cannot be laid down as an absolute rule of law thata dying declaration cannot form the sole basis ofconviction unless it is corroborated; 2. Each case must be determined on its own factskeeping in view the circumstances in which the dyingdeclaration was made; 3. It cannot be laid down as a general proposition that adying declaration is a weaker kind of evidence thanother pieces of evidence; 4. A dying declaration stands on the same footing asanother piece of evidence and has to be judged in thelight of surrounding circumstances and with referenceto the principles governing the weighing of evidence; CriAppeal-91-2002-11- 5. A dying declaration which has been recorded by acompetent Magistrate in the proper manner, that is tosay, in the form of questions and answers, and, as faras practicable, in tevidencehe words of the maker ofthe declaration, stands on a much higher footing thana dying declaration which depends upon oraltestimony which may suffer from all the infirmities ofhuman memory and human character : and 6. In order to test the reliability of a dying declaration,the court has to keep in view, the circumstances likethe opportunity of the dying man for observation, forexample, whether there was sufficient light if thecrime was committed at night; whether the capacity ofthe man to remember the facts stated, had not beenimpaired at the time he was making the statement, bycircumstances beyond his control; that the statementhas been consistent throughout if he had severalopportunities of making a dying declaration apartfrom the official record of it; and that the statementhad been made at the earliest opportunity and was notthe result of tutoring by interested parties.” Other celebrated and water-shedding judgments on aboveaspects are Paniben v. State of Gujarat ; (1992) 2 SCC 774, Laxman v.State of Maharashtra ; (2002) 6 SCC 710, Ganpat Bakaramji Lad v.State of Maharashtra ; 2011 ALL MR Cri. 2249 Surendrakumar v.State of Punjab ; (2012) 12 SCC 120, Jagbir Singh v. State (NCT ofDelhi) ; (2019) 8 SCC 779 and Madan v. State of Maharashtra ;(2019) 13 SCC 464. CriAppeal-91-2002-12- 14. Bearing in mind the above settled legal position, when theabove reproduced dying declarations Exhibits 24 and 29 are put tominute scrutiny, it is noticed that in Exhibit 24, which is recorded byPW4 Executive Magistrate Shaikh Ahmed, decease reported that she isa widow, she resides separately as well as her in-laws resideseparately. On the relevant day i.e. 17.07.2001, when she returnedfrom work, she informed that, her sister-in-law accused no.2 Laxmibaiquestioned her for throwing garbage and thereafter mother-in-lawaccused no.1 Marthabai joined her and they both abused and beatdeceased and said that she killed her husband and therefore, in theurge of anger, she entered in her own house, poured kerosene and setherself on fire. Finally, she has held mother-in-law, father-in-law,brother-in-law and his wife also responsible for said suicidal burns.15.Whereas, on carefully going through Exhibit 29 authored byPW3 Police Head Constable Suryawanshi, which is stated as FIR andis found to be in detail, she has stated that she is a widow. Her in-laws were keen in seeing that, she having lost her husband, has noright to stay in the house and they wanted her to leave the premises.On this count, she claims that, they used to ill-treat her, but what wasthe ill-treatment and when said instances took place has not beeninformed by her in Exhibit 29. Likewise, regarding the incident, she CriAppeal-91-2002-13- has stated that in-laws wanted her to leave her house and therefore,they abused her and they used to do it regularly and therefore,getting fed up, she poured kerosene and set herself on fire. In Exhibit29, she states that her mother-in-law shifted her to the hospital.16.Therefore, both Exhibits 24 and 29 are apparently at variance.In one, she reports abuse and beating at the hands of sister-in-law andmother-in-law on the count of throwing some garbage andsubsequently, in Exhibit 29 she names entire family membersincluding father-in-law, regarding whom she has not uttered singleword in Exhibit 24, attributing cruelty, harassment for leaving thehouse, having lost her husband. Consequently, both dyingdeclarations are not consistent.17.It is seen that in above dying declarations, solitary incidentdated 17.07.2001 seems to be the trigger point. There is not iota ofevidence of incessant ill-treatment to her. She speaks only aboutaccused persons wanting her to leave the premises, having lost herhusband. She has alleged that according to in-laws, they lost their sonbecause of her. Admittedly, she speaks of getting angry and settingherself on fire. Resultantly, here, there is no abetment, instigation orincitement. Presence of accused at the time of immolation has not CriAppeal-91-2002-14- come on record. In one dying declaration, i.e. Exhibit 29, deceasedhas stated that alleged occurrence took place at 4.00 p.m. She hasfurther stated that she immolated herself at 6.00 p.m. Therefore, afterinitial occurrence, there was cooling period of almost two hours.Immediately prior to 6.00 p.m., accused were not present there. Thereis nothing to show that from 4.00 p.m. up to 6.00 p.m. accused weremaltreating Kusum and because of the same she committed suicide.Hence, here, there is weak evidence or no evidence on the point of498-A IPC. Apparently, accused and deceased were residingseparately. Further, on 17.07.2001 around 6.00 p.m., there is nothingto show that accused, with specific intention that deceased shouldend up her life, subjected her to abuses or ill-treatment.Consequently, even necessary ingredients for attracting Section 306IPC are patently missing. 18.After going through the impugned judgment, in the consideredopinion of this Court, there is apparently improper appreciation ofevidence. The essentials for attracting the charges are not available,but still learned trial court has recorded guilt. Settled law whileanalyzing dying declarations is also not borne in mind and applied,resulting in erroneous conclusion. Hence, interference is called for.Resultantly, this Court is constrained to pass the following order:
Decision
CriAppeal-91-2002-15- ORDERI.The appeal is allowed.II.The conviction awarded to the appellants i.e. 1) Marthabai w/oYashwant Bhingardive, 2) Laxmibai w/o Nitin Bhingardive and3) Nitin s/o Yashwant Bhingardive, by learned 4th Ad-hocAdditional Sessions Judge, Ahmednagar in Sessions Case No.145 of 2001 under Sections 498-A and 306 r/w 34 of IPC on13.02.2002 stands quashed and set aside.III.All the appellants stand acquitted of the offence punishableunder Sections 498-A and 306 r/w 34 of IPC.IV.The bail bonds of the appellants stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantsafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre