State of Maharashtra vs Krushna Madavi

A.R. Joshi, J.—Present criminal appeal is preferred by the State of Maharashtra against the impugned judgment and order dated 12/11/1997 passed by the Sessions Judge, Chandrapur in Sessions Case No. 34 of 1997.

by the impugned judgment and order, learned Sessions Judge, Chandrapur was pleased to acquit present respondent then accused for the offence punishable u/s 302 of the Indian Penal Code, however, convicted the said accused for the offence punishable u/s 498A IPC and sentenced him to undergo rigorous imprisonment for two years and fine of Rs. 1,000/-, in default, further rigorous imprisonment for three months. Apparently present respondent/accused was in custody since 30/11/1996 and as such set off was given to the accused by the Sessions Court.

Being aggrieved by the acquittal of respondent/accused for the offence punishable u/s 302 IPC, the State preferred the appeal after obtaining leave by this Court.

The order dated 07/3/1988 passed by this Court present appeal was admitted and action u/s 390 of the Code of Criminal Procedure was directed. It appears that present respondent/accused had not challenged his conviction for the offence punishable u/s 498A of the Indian Penal Code.

When present criminal appeal was taken for final hearing before the earlier Bench, process was issued against the respondent/accused for his presence. Bailable warrant was directed to be issued vide order dated 13/8/2010. Thereafter a report was produced by the Additional Public Prosecutor mentioning that bailable warrant could not be served on the respondent/accused as his whereabouts at Mumbai were not available with the police. As the present position stand, respondent/accused is on bail and not available for answering the present appeal. In this circumstance, it was decided by us to prima facie go to record and proceedings and the reasonings given by the learned Sessions Judge, Chandrapur while recording the acquittal of respondent/accused for the offence punishable u/s 302 IPC, and then to ascertain whether the present matter is worth proceeding further for securing the presence of the respondent/accused by more stringent process of non bailable warrant. On this premise, the matter is taken up on 15/10/2010 for final hearing and was accordingly heard.

Accused married with the victim about 12 years prior to her death which occurred on 05/2/1996. Out of wedlock there were four children born of the ages ranging from 10-11 years up to 3-4 years. Allegedly, accused was ill-treating the victim-his wife, very often under the influence of liquor. At one instance, he had assaulted his father-in-law who was staying in the neighbourhood and criminal case was lodged against the accused. In that matter, the offence was compounded between the parties and accused assured his father-in-law and his wife not to indulge in such type of harassment and quarrel. Though such assurance was given, it was in vain as accused against indulged in such activities and continued ill treatment to his wife.

On the fateful day i.e. On 04/2/1996 in the night time there was incident in which the victim was allegedly set on fire by accused by pouring kerosene on her person. Allegedly, that time, all the four children were at home. Three neighbourers by name � Rukhmabai, Sindhu and Kamlabai allegedly witnessed the said incident and also heard the quarrel between the accused and the victim. The victim sustained more than 98% burn injuries and succumbed to such injuries on the next day i.e. On 05/2/1996 in the morning.

The eyewitnesses did not not support the case of prosecution when the matter was put to trial.

The dying declaration was recorded by Police Constable in which victim has alleged against her husband-accused, of pouring kerosene over her and setting her on fire.

Substantive evidence of P.W. Nos. 2, 3 & 4 is of much importance. P.W.-2 Rukhamabai stated that according to her deceased Indira told that she would not survive and she would not be taken to hospital. According to P.W.-2, deceased did not state anything more and deceased did not mention anything as to how she was burnt. However, P.W.-2 further stated that when Police Patil arrived, deceased told him that she was set ablaze by her husband. P.W.-3 Sindhubai deposed as to deceased telling her to the effect that whatever was to happen had happened and she was burnt. This witness has changed her version in examination-in-chief and also in cross-examination and as such was treated as untrustworthy witness by the learned Sessions Judge and rightly so, in our opinion. P.W.-4 Kamlabai deposed as to deceased telling her "I have suffered a lot and now I cannot suffer any more, therefore I have burnt". This evidence of P.W.-4 is taken by the learned Sessions Judge as suggestive of deceased setting herself on fire due to lot of suffering. The learned Sessions Court has therefore disbelieved the evidence of alleged eye witnesses i.e. three ladies named above. In our opinion, it was rightly so disbelieved considering the nature of evidence given by them before the Court during the trial as they did not support the case of prosecution and even changing version very often during the examination-in-chief and during the cross examination.

There is another piece of evidence as to oral dying declaration before P.W.-8 Kisan, then Sarpanch of village. According to the prosecution, deceased informed him that she was burnt by her husband. However, this witness did not support the case of prosecution and was declared hostile. During cross-examination taken by learned A.P.P., he tried to answer that deceased had stated before police at the General Hospital, Chandrapur that she was burnt by her husband. This evidence of P.W.-8 was scanned by the learned Sessions Judge in juxta-position of the evidence of P.W.-9 Ganpat, Head Constable and P.W.-10 Dr. Muthal. According to P.W.-9 and P.W.-10, Head Constable Ganpat recorded the dying declaration of the deceased after ascertaining her condition from P.W.-10 Dr. Muthal. According to these witnesses, nobody else was present at the time of recording of dying declaration. A reasoning is given by the learned Sessions Judge by taking shelter of the evidence of P.W.-9 and P.W.-10 to rule out the possibility of P.W.-8 Kisan, overhearing the talk between deceased and the Police Constable.

The evidence of dying declaration (Exh.38-A) is also discussed by the learned Sessions Judge, again in the light of the evidence of P.W.-14 P.S.I. Bhaurao. It appears that after the deceased having more than 98% burn injuries was admitted in the hospital, her father P.W.-1 Laxman went to Ramnagar Police Station and lodged his report. Immediately offence was registered by P.W.-14 P.S.I. Bhaurao Farande and he then attended the hospital, and gave memorandum to the Medical Officer whether the patient was fit to make any statement. The Medical Officer certified at 3.50 a.m. That patient was not fit to make any statement and his certificate is at Exh. 51. It further appears that in spite of such situation, P.W.-14 P.S.I. Farande deputed Police Head Constable (P.W.-13) to call the Executive Magistrate. However, presence of Executive Magistrate could not be procured and at about 6.00 a.m. on the same day, injured succumbed to the injuries and died. As such, according to the prosecution, there was an attempt made by the investigating agency to record the statement of victim through the Executive Magistrate, but the patient was not fit as per the medical certificate. According to the prosecution, this attempt was made in spite of earlier recorded statement by Police Head Constable Ganpat Bhoyar (P.W.-9). The said statement (Exh. 38-A) was allegedly recorded at 1.50 a.m. And that time there was an endorsement of the attending Dr. Muthal (P.W.-10) that patient was conscious and fit to give statement. It appears that because of such evidence, learned Sessions Judge did not accept the case of prosecution as to authenticity of the recorded dying declaration (Exh.38-A).

Lastly, the reasoning given by the learned Sessions Judge, Chandrapur so far as failure to examine the probable eye witnesses, is considered by us. On this aspect it was observed by the learned Sessions Judge that out of four children of the respondent and the deceased, at least two children, who were of the age of understanding, could have been examined by the prosecution. It is observed by the learned Sessions Judge that ages of said two children were probably ten years and seven years or so, and as such, they could have been the best witnesses considering the case of the prosecution that they were present during the incident of burning. It is a factual position that even their statements were not recorded during the investigation and as such there was no question of they being brought before the Court for leading evidence. This aspect has been taken as a mitigating circumstance of the prosecution by the learned Sessions Judge.

Considering the effect of substantive evidence as led before the learned Sessions Judge, we are in agreement with the reasoning given by the said Court and as such there is nothing to take a different view than that taken by the learned Sessions Judge while acquitting the respondent/accused for the offence punishable u/s 302 of the Indian Penal Code.

In the result, there is no merit in the present appeal preferred by the State and hence same is disposed of as dismissed.