Partly allowed

Tarabai Prakash Nikhade and Ors. v. the State of Maharashtra

Bombay HC5 Aug 2013APEAL/15/2010

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court examined the validity of dying declarations and prosecution evidence in a case involving the burning of a bride. While upholding the conviction for dowry harassment, the Court reduced the charge of murder to culpable homicide not amounting to murder for the mother-in-law and moderated sentences for others due to mitigating circumstances.

What did the court decide?

Charge under Section 302 IPC reduced to 304 Part II IPC for Accused 1; Sentence reduced for Accused 2 and 3 under Section 498A IPC.

Tarabai Prakash Nikhade and Ors. Vs the State of Maharashtra — Dowry and Cruelty | Bombay HC (2013)

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APEAL15_2010

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vidya

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO. 15 OF 2010

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1.	Smt. Tarabai Prakash Nikhade, aged 43 years
2.	Shri Sunil Prakash Nikhade aged 24 years both residing at Vadner Bhairav, Taluka Chandwad, Dist. Nashik.
3.	Mrs. Manisha Dilip Malsane, aged about 22 years, residing at Nigdol, Taluka Chandwad, Dist. Nashik.	... Appellants

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vs.

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The State of Maharashtra (At the instance of Vadner Bhairav Police Station, Nashik.) ... Respondent

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Mr. Sandeep K. Shinde, Advocate for the appellant. Mrs. S.V. Gajare-Dhumal, APP for the State.

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CORAM: MRS. V.K. TAHILRAMANI &

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MRS. MRIDULA BHATKAR, JJ.

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AUGUST 5 , 2013.

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ORAL JUDGMENT (PER MRS. MRIDULA BHATKAR, J.)

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This appeal is directed against the judgment and order dated 16^th

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December, 2009 passed by the learned Additional Sessions Judge, Niphad in Sessions Case No. 57/2008. By the said judgment and order, the learned Sessions Judge convicted - (i) appellant no. 1/accused no. 1 under section 302 of IPC and sentenced her to rigorous imprisonment for life and fine of Rs.500/- i/d. S.I. for three months; (ii) appellants/accused nos. 1 and 2 under section 498A read with 34 of IPC and sentenced them to rigorous imprisonment for three years each and fine of Rs. 500/-, i/d. S.I. for six months; and (iii) appellant no. 3/accused no. 3 under section 498A read with 34 of IPC to rigorous imprisonment for one year and fine of Rs.100/i/d. S.I. for one month. For the sake of convenience, all the three appellants shall be referred to as they were referred to before the trial Court i.e. Appellant Smt. Tarabai will be referred to as 'accused no. 1', Appellant Sunil Prakash Nikhade will be referred to as 'accused no. 2' and Appellant Mrs. Manisha Dilip Malsane will be referred to as 'accused no. 3'.

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It is the case of the prosecution that Rani alias Kanchan was murdered by her mother-in-law and sister-in-law i.e. accused nos. 1 and 3 at their residence on 24^th August, 2008 at 3 p.m. Deceased Rani got married to accused no. 2 Sunil Prakash Nikhade on 7^th June, 2008. For

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few days they had a good married life. Thereafter, accused no. 1 Tarabai started harassing deceased Rani on different counts everyday. Accused no. 3, sister-in-law of the deceased, used to demand sewing machine which was with PW-1, father of the deceased. Accused no. 2/husband of the deceased used to beat her. Rani has informed this to her father PW-1 Chandrakant. On 24^th August, 2008 at around 3 p.m. when Rani was sleeping in the kitchen, accused no. 1 Tarabai poured kerosene on the person of Rani, ignited matchstick and set her on fire. Accused no. 3 was also present in the kitchen. Rani woke up due to fire and started shouting for help. On hearing the shouts, the neighbours came there and they extinguished the fire. The heel of Tarabai's leg was burnt. Rani was taken to the hospital by the neighbours. She was treated by Dr. Mangala Tungar. The neighbours informed the incident to the police station of Vadner Bhairav. The police recorded AD at 34/2008 at Nashik and thereafter they drew spot panchnama Exhibit 75 in the presence of panch PW-5 Uttam Bhosale on 24^th August, 2008 at around 4.30 p.m. On the same day, PW-1 Chandrakant, father of the deceased, on receiving a phone call from one Dattu Shinde that Rani is admitted in Civil hospital, he went to the Civil hospital, Nashik. Rani informed her father that she was burnt by her

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mother-in-law. On the same day at night, the police asked PW-3 Ayyubkhan Pathan, Special Executive Magistrate to record the dying declaration of Rani. Pursuant to the letter given by the police, PW-3 Ayyubkhan Pathan came to the hospital and after obtaining necessary certificate recorded the dying declaration of the deceased. Deceased Rani told that she was burnt by her mother-in-law. On the same day, PW-8 Bhausaheb Baburao Ugale, police head constable also recorded the dying declaration of deceased Rani in which she attributed the role of burning her to her mother-in-law. On the next day i.e. 25^th August, 2008 PW-1 Chandrakant, father of the deceased, gave FIR Exhibit 42 in which he mentioned about the ill-treatment given to the deceased by accused nos. 1 to 3 and also by father-in-law. Pursuance to the said FIR, an offence was registered at C.R. No. 54/2008 punishable under sections 498A and 307 of IPC against accused nos. 1 to 3 and father-in-law. However, on the same day at night, Rani expired. The police conducted inquest panchnama Exhibit 46. Rani died due to 80 to 90% burn injuries. Dr. Wagh has conducted the post-mortem on 26^th August, 2008 and opined that the cause of death was due to cardio-respiratory arrest due to septicaemia due to 90% superficial to deep burns. The police recorded statements of witnesses and

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filed charge sheet in the Court of Magistrate. Being sessions case, it was committed to the Sessions Court.

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All the three accused along with father-in-law (accused no. 4) were tried before the Court of Adhoc Additional Sessions Judge-2, Niphad after framing of charge. At the end of the trial, the learned Sessions Judge convicted accused no. 1 for offence punishable under section 302 of IPC and accused nos. 1, 2 and 3 were convicted for the offence punishable under section 498A read with section 34 of IPC. Accused no. 4, father-inlaw was acquitted. Being aggrieved by the said judgment and order, this appeal is preferred.

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The case of the prosecution is mainly based on dying declaration of deceased Rani. The prosecution has proved that deceased Rani died due to 90% of deep and superficial burn injuries on 25^th August. 2008. The prosecution has examined 11 witnesses and the defence has examined 2 witnesses. On the point of Section 302, prosecution has tendered evidence of one dying declaration which was made to her father PW-1 Chandrakant and two dying declarations Exhibit 51 and 66, which were recorded on the

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same day one after the other i.e. 24^th August, 2008 when the incident had occurred. The dying declaration Exhibit 66 which was recorded by PW-8 Bhausaheb Ugale, police head constable at 10.45 p.m. was disbelieved by the trial Court. The learned counsel for the appellants, therefore, requested this Court not to consider the said evidence. Thus, oral dying declaration made to PW-1 Chandrakant, father of the deceased, and the written dying declaration Exhibit 51 recorded by PW-4 Special Executive Magistrate are the two statements made by the deceased against accused no. 1. He submitted that both the dying declarations are not reliable and the trial Court ought to have discarded this evidence. He submitted that in the oral dying declaration made by the deceased to PW-1 Chandrakant, father, she told that Tarabai/accused no. 1 used to ill-treat her and accused nos. 1 and 3 poured kerosene on her person and set her on fire. The learned counsel for the appellants pointed out that in the written dying declaration (Exhibit 51) recorded by PW-3 Ayyubkhan Pathan, deceased Rani did not attribute the role of pouring kerosene by accused no. 3 on her person and she has confined that the act of pouring kerosene was done only by her mother-inlaw/accused no. 1. The learned counsel submitted that this is a major discrepancy in the oral dying declaration. This shows the tendency of PW-

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1 Chandrakant to exaggerate the things. Therefore, the oral dying declaration deserves to be discarded. He submitted that the written dying declaration Exhibit 51 is recorded on a printed proforma. Thus, it was recorded mechanically by Special Executive Magistrate. The procedure is not properly followed.

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The learned counsel drew our attention to the two letters dated 24^th August, 2008 – one letter by the police of Wadner Bhairav police station to Special Executive Magistrate (Exhibit 48) requesting him to attend the deceased and record dying declaration; and the other letter was to the Medical Officer (Exhibit 55). In both the letters, the police had mentioned that the deceased was burnt due to explosion of stove. The learned counsel submitted that Mr. Gote who wrote these letters has not been examined by the prosecution, but the cause of death given in these letters is totally different from the cause of death recorded in the written dying declaration (Exhibit 51) by PW-3 Ayyubkhan Pathan. The learned counsel further submitted that this discrepancy goes to the root of truthfulness of the dying declaration. The neighbours, who reached the spot first in time on hearing the shouts of the deceased and whose statements were recorded, are not

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examined by the prosecution. He submitted that in such circumstances, the dying declaration, which is the sole piece of evidence against accused nos. 1 to 3, is to be disbelieved. He further submitted that though deceased Rani has given oral dying declaration to PW-1 Chandrakant, father of the deceased, on 24^th August, 2008, PW-1 Chandrakant did not lodge FIR on the same day. His statement was recorded on 25^th August, 2008. This delay can be explained. The relationship between deceased Rani and PW-1 Chandrakant was father and daughter and so he might have taken sometime to observe the condition of his daughter and must have thought that he should be slow in lodging complaint against his daughter's husband, mother-in-law and father-in-law.

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On the point of offence under section 498A, the learned counsel for the appellants submitted that there is no evidence of harassment at the hands of accused nos. 1 to 3. Therefore, they deserve to be acquitted from the offence.

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We do agree that there are certain omissions on the part of prosecution regarding non-examination of the witnesses. As per the case of

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prosecution, when the deceased was set ablazed, she started shouting. On hearing her shouts, the neighbours arrived at the spot and extinguished the fire. The Investigating Officer has, therefore, recorded the statement of the neighbours. If the neighbours were first in time to reach the spot apart from accused nos. 1 and 3, they should have been examined. A possible reason for non-examination of the neighbours may be that they might not be ready to come to the Court and support the case of the prosecution or they might not have stated more important fact which may take the case of prosecution further and therefore, they might not have been examined by the prosecutor in the trial Court.

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In both the letters Exhibits 48 and 55, Mr. Gote has mentioned that

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Rani was burnt due to explosion of stove. It was necessary on part of the prosecution to examine Mr. Gote to clarify this ambiguity and contradiction of informing about the incident to the Medical Officer and Special Executive Magistrate. How Gote had this knowledge of incident, should have been clarified by the prosecution. These are the omissions on the part of learned prosecutor before the trial Court. Some explanation should have been placed on record through Investigating Officer PW-11 Mr. Gaikwad.

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However, it is not done so. On the background of these omissions we have to consider the evidence available before us.

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As it is observed earlier, oral dying declaration as well as written dying declaration (Exhibit-51) is the vital evidence against accused no. 1 on the point of Section 302. The dying declaration is accepted and believed if it is truthful and voluntary. In the cross-examination of PW-3 Pathan and PW-1 Chandrakant, the defence has brought certain admissions to show that the relatives of deceased were with her at the time of recording of dying declaration. It was suggested that by way of this admissions, the dying declaration given by the deceased is not voluntary. However, we cannot accede to this submission. As per the case of the deceased, she was brought to the hospital by her mother-in-law. The dying declaration Exhibit 51 is to be looked into along with evidence of PW-1 Chandrakant. The dying declaration is recorded on the proforma. However, PW-3 Pathan has stated that he put some necessary questions to the deceased. At the foot of dying declaration, there is a certificate of the Dr. Mangala Tungar stating that Rani is in a fit condition to make a statement. She proved her endorsement at Exhibit 51. In the dying

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declaration in paragraph 6, the narration about the incident given by the deceased is written. It is stated that on that day her mother-in-law Tarabai poured kerosene on her person and set her on fire. She has stated that her mother-in-law used to harass her on different counts and her husband used

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to beat her. She has also deposed that the neighbours came first and extinguished the fire and she narrated this in the Civil hospital. She also stated that she has complained against her mother-in-law and father-in-law. She did not make complaint against her husband though she has stated that her husband used to beat her. The dying declaration discloses that the incident has taken place at 3 p.m. and act of pouring kerosene and setting her on fire is entirely attributed to her mother-in-law. PW-1 Chandrakant, father of the deceased, has stated that he met her daughter on 24^th August, 2008 in the hospital. He was with her in the hospital. She told him that mother-in-law and sister-in-law i.e. accused nos. 1 and 3 poured kerosene on her person and set her on fire. The presence of PW-1, being the father, in the Sasoon hospital was obvious. There are bound to some relatives with her in the hospital. She has complained about the harassment and illtreatment at the hands of accused nos. 1, 2 and 3. However, she did not attribute the role of pouring kerosene on her person by accused no. 3/sister-

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in-law. PW-1 Chandrakant has stated that the deceased told him that both mother-in-law and sister-in-law poured kerosene. The role given to accused no. 3 is absent in the written dying declaration. There is a possibility that PW-1 Chandrakant might have exaggerated in the deposition by bringing presence of accused no. 3 on the spot and giving her role of pouring kerosene. It appears from the record that this particular exaggeration is not accepted by the trial Court also. This exaggeration by PW-1 Chandrakant, cannot destroy the dying declaration given by the deceased to Special Executive Magistrate. She did not give any role to her sister-in-law. She has stated that her husband used to beat her. However, she did not give complaint against her husband. This shows that the deceased was not tutored but she gave her dying declaration voluntary though her father and some relatives had met her and were around her when dying declaration was recorded by Special Executive Magistrate. Truthfulness is the second requirement to test the veracity of the dying declaration. The dying declaration in Exhibit 51 does not appear to be exaggerated or imaginary statement. Deceased Rani has stated that her mother-in-law brought her in the hospital.

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The prosecution has relied on spot panchanama Exhibit 75. It was proved through PW-5 Uttam Bhosale. The spot panchanama Exhibit 75 discloses that the incident of burning took place on one side of the kitchen. A mat was found in burnt condition. The broken pieces of bangles and saree pieces were found outside the house. The learned counsel submitted that the possibility of explosion of stove can be confirmed as kerosene was not found on the spot. Similarly, C.A. report Exhibit 78 discloses that when the mat (Article 2) was sent for C.A., no residue of kerosene was found on the mat. The submissions cannot be accepted that as no smell of kerosene or residue of kerosene was found in C.A. or spot panchanama, the incident must not have been taken place as stated. The kerosene might not have been found but panchnama (Exhibit 75) discloses that some broken pieces of bangles and nylon saree pieces were found in the kitchen. It further shows that the pieces of saree and petticoat of deceased which were found in the kitchen had smell of kerosene. The spot panchanama shows that the kerosene bottle with less kerosene and matchstick was found in the kitchen. Thus, we have no hesitation to accept the dying declaration Exhibit 51 as true and voluntary. If she wanted to lie, then she would not have stated that her mother-in-law brought her in the hospital.

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On the point of Section 498A, in the evidence of PW-1 Chandrakant

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he has deposed that his daughter used to complain about her mother-in-law, husband and sister-in-law. He has stated that her sister-in-law/accused no. 3 had demanded sewing machine and her mother-in-law often used to illtreat her by picking up quarrels on small issues. It is to be noted that the marriage between accused no. 2 and deceased had taken place on 7^th June, 2008 and within a very short period of 2 ½ months, this unfortunate death has occurred. In the dying declaration Exhibit 51 also the deceased has stated about the quarrel picked up by her mother-in-law and her husband used to beat her. Thus, there is evidence of harassment against accused nos. 1, 2 and 3. So, we are not inclined to set aside the judgment and order passed by the trial Court on the point of conviction of accused no. 1 under sections 302 and 498A and conviction of accused no. 2 under section 498A.

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The learned counsel for the appellants has pointed out that the deceased has stated that mother-in-law has brought her to the hospital after the incident, therefore, she had no intention to kill deceased Rani though the act of pouring kerosene and setting her on fire was done by her. He

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further submitted that even against accused nos. 2 and 3 the instances of harassment are not so grave and serious to convict them for three years and 1 year respectively. He, therefore, prays for leniency.

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We have considered the submissions made by the learned counsel for the appellants along with the evidence before us. The record shows that mother-in-law/accused no. 2 had brought her for treatment to the hospital. We, therefore, think that this is a mitigating circumstance against accused no. 1, which dislodges case of intention against accused no. 1. We, therefore, reduce the sentence from Section 302 to Section 304 Part II where there is no intention to cause culpable homicide. On the point of Section 498A against accused nos. 2 and 3, considering the gravity and seriousness of the harassment, we are inclined to show leniency. The order on the point of sentence is modified as under:

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(i) Accused no. 1 is found guilty for the offence under section 304 Part II of IPC and is sentenced to suffer rigorous imprisonment for 6 years and fine of Rs.500/-, i/d. to suffer S.I. for two months.

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(ii) The sentence given to accused no. 1 for the offence punishable

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under section 498A is confirmed. No indulgence is shown. The sentence to run concurrently.

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(iii) Accused nos. 2 and 3 are convicted under section 498A and are sentenced to suffer the period undergone till today and to pay fine of Rs.100/-, i/d. S.I. for 15 days.

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Appeal is partly allowed.

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Office to communicate this order to the concerned jail authorities and

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to the appellant, who is in jail.

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(MRS. MRIDULA BHATKAR,J.) (MRS. V.K. TAHILRAMANI, J.)

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Tarabai Prakash Nikhade and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Tarabai Prakash Nikhade and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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