STATE OF MAHARASHTRA vs RAM SOUNDARMAL & ANR

K.L. WADANE, J

The Appellant/State preferred this appeal against the judgment and order passed by the learned Sessions Judge, Beed in Sessions Case No. 90 of

2000, by which both the accused persons/respondents are acquitted for the offence punishable under Sections 498ÂA, 302 and 201 read with Section

34 of the Indian Penal Code.

The brief facts of the case may be stated as follows:

(I) Vishwanath Sakharam Sable (PWÂ1) lodged complaint to the Police Station, Georai Dist.Beed on 3rd July, 2000, alleging that deceased Sarika

was his daughter. She was given in the marriage at Georai to accused No.1 and their marriage was performed before one year. Accused No.2 is

her motherÂinÂlaw. Accused Nos.1 and 2 are residing jointly at Georai. InÂlaws of this PWÂ1 are also from Georai, so his daughter Sarika used

to visit the the house of his motherÂinÂlaw namely, Kaushallyabai. (II) On 29Â06Â2000 at about 08.00 a.m., his younger brotherÂinÂlaw  Anil

came to Ambad and informed that accused Nos.1 and 2 have set on fire Sarika therefore, she was taken to Hospital at Beed. On the information, this

witness Vishwanath Sable, his wife Sanjivani and two sons namely Ranjit and Sandeep arrived at Beed in the Hospital. They met with Sarika and

inquired about the incident, on which she disclosed that accused No.2 Â Dhondabai poured Kerosene on her person and accused No.1 Â Ram set her

on fire by lightening matchstick in the midnight. Before 10  11 days, his motherÂinÂlaw  Kaushallyabai had been to Ambad and informed that

accused Nos.1 and 2 were demanding Rs.15, 000/Â for the purpose of purchasing a motorÂcycle, on which he informed to the Kaushallyabai that he

is in difficulty. Within 4Â8 days, he will arrange the money. Since the money was not paid, both the accused persons have committed the murder of

Sarika by setting her on fire.Â

On the basis of information given by Vishwanath (PWÂ1), the offence came to be registered bearing CR No.73 of 2000 with Police Station,

Georai, initially for committing the offence punishable under Sections 307 and 498ÂA read with Section 34 of the Indian Penal code and after the

death of Sarika on 3rd July, 2000, the offence was converted for the offence punishable under Section 302 of the Indian Penal Code. After

registration of the crime, investigating officer (PWÂ14) Tanaji Yeshwant Jagdale visited the spot and prepared the spot panchanama. He also

prepared the inquest panchanama. The investigating officer recorded the statements of witnesses, including statement of PWÂ1 Vishwanath

Sakharam Sable, PWÂ4 Kaushallyabai Eknath Surwase (grandmother of the deceased), PWÂ6 Arun Eknath Surwase (maternal uncle of the

deceased), PWÂ​7 Shaikh Jamil Shaikh Babu (driver) and PWÂ​12 Rekhabai Babasaheb Jadhav (neighbour) and PWÂ​17 Venkatesh Chandrayya

Bhandari (clerk from Municipal Council, Georai). The investigating officer also prepared the spot panchanama (Exh.55) in presence of Kailas

Baburao Mate (PWÂ5). During the investigation, the dying declaration of the deceased was recorded by the police officer, who was on duty, at

Exh.46 so also the second dying declaration recorded by PWÂ9 Ganpat, naib tahsildar at Exh.51. After carrying as usual investigation, the

investigating officer submitted the chargeÂsheet against the accused persons in the Court of Judicial Magistrate First Class, Georai, Dist. Beed, who

committed the case to the Sessions Court at Beed for its trial. The charge (Exh.9) was framed and its contents were read over and explained to the

accused, to which the accused persons have not pleaded guilty and claimed to be tried. In order to establish the offences levelled against the

accused persons, the prosecution has examined in all, 18 witnesses.Â

The sum and substance of the allegations are that, accused No.1 was demanding money for purchasing the motorÂcycle and on account of the

same, there was illÂtreatment to Sarika. The second allegation is that on the date of incident at about 11.00 p.m., accused No.2 Â Dhondabai poured

Kerosene on the person of Sarika and accused No.1 Â Ram set her on fire by lightening the matchstick; and thirdly, the accused persons have tried to

destroy the evidence. After recording the evidence of all the witnesses and after hearing both the sides, the learned Sessions Judge, Beed acquitted

both the accused from the charges, levelled against them.Â

We have heard the arguments of learned APP Mrs. D.S.Jape for the Appellant/State and Mr. S.J. Salunke, learned Advocate for respondent

Nos.1 and 2/accused. Considering the evidence on record and upon hearing both the sides, it is necessary to scrutinize the evidence to know whether,

the prosecution has succeeded in establishing the charges levelled against the accused persons.Â

In order to establish the charge of the illÂ​treatment punishable under Section 498Â​A, the prosecution has mainly relied upon the evidence of PWÂ​1

Vishwanath Sable, PWÂ4 Kaushallyabai Surwase and PWÂ6 Arun Surwase. Kaushallyabai (PWÂ4) deposed that, Sarika was once driven out of

house by the accused persons for not bringing the amount of Rs.15, 000/Â from her parents. Arun (PWÂ6) deposed that on 20Â06Â2000, Sarika was

driven out of the house and stayed for 5Â6 days at his place. Vishwanath (PWÂ1), however, has not deposed anything about this incident. If at all the

accused persons were illÂtreating Sarika on account of illegal demand, none of the above witnesses complained to the police. This is one aspect.

Even the aforesaid witnesses have not disclosed to other relatives about the illÂ​treatment given by the accused persons to Sarika, till her death.Â

Complainant  Vishwanath (PWÂ1) admitted in the crossÂexamination that, accused No.1 along with Sarika had been to his place and thereafter,

they returned to matrimonial home willingly and happily. Not only this but he went on saying that he had told Sarika that trifle quarrels are routine

phenomena between motherÂ​inÂ​law and daughterÂ​inÂ​law, she should ignore these things and continue to lead matrimonial life.

Kaushallyabai Surwase (PWÂ4) also stated in her crossÂexamination that quarrels between motherÂinÂlaw and daughterÂinÂlaw are the

common phenomena on trifle reasons and she advised Sarika to pull on whenever, she used to come to her place. Considering the admissions given by

the witnesses, it cannot be said that the prosecution has established the offence punishable under Section 498ÂA read with Section 34 of the Indian

Penal Code against the accused persons.Â

To establish the offence of murder, the prosecution has mostly relied upon the oral evidence of Kaushallyabai Surwase (PWÂ4), Arun Surwase

(PWÂ6) and Shaikh Jamil Shaikh Babu (PWÂ7), to whom Sarika has made dying declaration. In addition to that, the prosecution has relied upon the

oral evidence of Narayan Sadashiv Takankhar (PWÂ8) at Exh.43 and dying declaration Exh.46 and oral evidence of Ganpat Dhondiram Yedke

(PWÂ​9) and the dying declaration Exh.53.

On perusal of the evidence on record, it appears that, when Sarika received burn injuries, she was taken in the jeep from Georai to Beed, driven by

Shaikh Jamil (PWÂ7), Kaushallyabai Surwase (PWÂ4) and Arun Surwase (PWÂ6) accompanied with Sarika. Kaushallyabai (PWÂ4) deposed

that on way to the Hospital, Sarika made a statement to her and others in the jeep that, had they arranged for a sum of Rs.15,000/Â, she would not

have been put on fire by the accused her husband and motherinÂlaw. Arun Surwase (PWÂ6) also states that Sarika told him and other occupants

that as they failed to give a sum of Rs.15, 000/Â to her husband and motherÂinÂlaw, she was set on fire by her husband and motherÂinÂlaw at

about 11.30 to 11.45 p.m. at her house by pouring kerosene on her person.Â

However, it is material to note that driver Sk.Jamil (PWÂ7) has not supported to the versions of these two witnesses. Sk.Jamil (PWÂ7) is an

independent witness and the fact that he has not supported the oral version of PWÂ4 and PWÂ6, speaks otherwise. Though, this witness turned

hostile, he did not speak that Sarika made any statement to Kaushallyabai (PWÂ4) and maternal uncle Arun Surwase (PWÂ6) and they have not

stated anything in their evidence that they disclosed about the disclosure made by Sarika, till their statements recorded by investigating officer Shrikant

Pathak, Dy.S.P.(PWÂ15). If at all, Sarika made a statement informing about the commission of the crime, these witnesses would have rushed to the

police station immediately, at least after admission of Sarika in the hospital. They remained tightÂlip till their statements were recorded by Shrikant

Pathak (PWÂ​15) after 20 hours of the incident, makes their claim doubtful.

Next aspect for consideration is about two dying declarations. The learned APP was repeatedly harping upon dying declarations, made by

deceased Sarika to Narayan Takankhar (PWÂ8) and Ganpat Edke (PWÂ9). On perusal of the oral evidence of Narayan Takankhar (PWÂ8), it

appears that he was on duty at the relevant time in the police chowki hospital, Beed and according to this witness, he recorded the dying declaration,

after verifying from doctor that the patient was in a position to speak or she was oriented and was able to give statement. This witness further

deposed that deceased Sarika made a statement before this witness that on 28Â06Â2000 at night at about 11.30 or 11.45 p.m., there was a exchange

of words between her and her husband, who was sitting outside the house. Dhondabai/Accused No.2, motherinÂlaw of Sarika poured the kerosene,

accused No.1 caughtÂ​hold her, ignited matchstick and set her on fire. On getting engulfed in fire, she run out of the house, crying loudly.Â

On perusal of the record, it appears that Sarika was admitted in the Civil Hospital, Beed on 29Â06Â2000 at about 01.25 a.m. and her first dying

declaration was recorded by Narayan Takankhar (PWÂ8) at about 4.30 a.m. On perusal of the dying declaration (Exh.46), it appears that she stated

that accused No.2 poured kerosene on her person and accused No.1 set her on fire by lightening matchstick. From the oral evidence of Ganpat

Edke (PWÂ9), it appears that on receipt of the requisition letter, he immediately rushed to the hospital at about 05.00 a.m. and firstly went to the room

of D.M.O. He was not available. Then he proceeded towards the burn ward, where, he met with D.M.O. and D.M.O.examined Sarika and told him

that Sarika was able to make a statement. This witness deposed that Sarika narrated the incident to him, which was reduced into writing. It was then

read over to Sarika. Sarika admitted it's correctness thereafter, this witness obtained thumb impression of Sarika. He also signed it. From the dying

declaration (Exh.53), it appears that on 28Â06Â2000 at about 11.30 to 12.00 midnight, accused Nos.1 and 2 were demanding Rs.15,000/Â for

purchasing the motorÂcycle, on which accused No.1 poured kerosene on her person from the stove and accused No.1 Ram set her on fire by

lightening matchstick. This dying declaration was recorded at about 05.45 a.m.Â

On perusal of the evidence of the above two witnesses coupled with oral evidence of Kaushallyabai (PWÂ4) and Arun (PWÂ6), apparently, it

looks that Sarika on the way to Beed from Georai in the jeep has disclosed about the commission of the offence by accused Nos.1 and 2.However, on

perusal of the medical case papers of Sarika, it appears that she was admitted in the hospital at Beed on 29Â06Â2000 at about 01.25 a.m. At that

time, Dr.Dilip Saundale (PWÂ10) was a duty medical officer, who deposed that at about 04.30 a.m., police constable recorded the statement of

Sarika, after her medical examination by this Dr.Saundale. Subsequently,the executive magistrate also recorded the dying declaration. During the

crossÂ​examination, this witness states as follows:

Injured gave me history of accidental burn; at the time of her admission in the ward, which was recorded by me in the admission paper, in my

handwriting. I have also recorded in treatment papers that injured and her relatives were not in a position to give definite history.

The aforesaid evidence of Dr.Saundale, if considered coupled with the entries in the case papers, it assumes much importance because these entries

are made immediately after admission of Sarika in the hospital. The concerned medical case records are at Exh.130 collectively, from which, it

appears that Sarika was admitted on 29Â06Â2000 at about 01.25 a.m., having 62% burns superficial deep. Relevant entries in the case paper, read

as follows:

Referred patient from R.H., Georai. History narrated by patient and relative. History of accidental burn at around 11.00.C/o. pain all over body.

Patient and relatives anxious, not giving definite history.

On plain reading of the aforesaid entry coupled with the admission given by Dr.Saundale (PWÂ10), it appears that immediate version or information

about the cause of fire was altogether different from the allegations in the oral evidence by Kaushallyabai (PWÂ4) and Arun (PWÂ6) and the version

in two dying declarations (Exh.46 and 53). Immediate version or the information narrated by the victim or the relatives assumes much importance,

because there was no time to think or to falsely implicate a person in a case. Further from the above entry, it appears that the relatives were also

not in a position to give history. If at all the disclosure of the offence was made by Sarika to Kaushallyabai (PWÂ4) and Arun (PWÂ6) on the way

from Georai to Beed, then definitely, they could have stated so before the medical officer moment, when Sarika was admitted in the hospital.Â

Further from the endorsement on the case paper immediately next to the above, referred noting by the medical officer, it appears that the information /

understanding was given to the relatives that the physical condition of Sarika was a very critical and we think that on getting such information, the

witnesses, particularly, Kaushallyabai (PWÂ​4) and Arun (PWÂ​6) must have tutored Sarika to make allegations against accused persons. However,

if at all, the accused have committed the offence as alleged, immediately, these witnesses could have stated so before the duty medical officer or it

was expected from these witnesses to rush immediately to the police station rather to the police chowki in the hospital itself. Therefore, natural

conduct of the above witnesses appears to be improbable. The initial entry and the history given by the patient and her relatives, falsifies the alleged

dying declarations made by Sarika before Narayan Takankhar (PWÂ​8) and Ganpat Yedke (PWÂ​9).

We have gone through the entire evidence on record, the reasons recorded by the learned Sessions Judge, while acquitting the accused persons.

On reÂappreciation of the same, we find that the findings recorded by the learned Sessions Judge, appear to be correct. Therefore, there is no reason

to interfere with the same. In view of the above, there is no merit in the appeal and consequently, it has to be dismissed. Accordingly, it is

dismissed.