Dismissed

The State of Maharashtra v. Atmaram Bajirao Kale and Ors.

Bombay HC13 Sept 2017APEAL/17/2002

Case brief

AI extract

What is this about?

State appeal against acquittal of husband, mother-in-law and sister-in-law of offences under Sections 498-A and 302 IPC. The court found the oral and written dying declarations not reliable, the broken kitchen door and the accused's burn injuries supporting suicide, and the cruelty evidence vague and uncorroborated; it dismissed the appeal, confirming the acquittal.

What the court decided

AI extract

The State of Maharashtra Vs Atmaram Bajirao Kale and Ors. — Dowry and Cruelty | Bombay HC (2017)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.17 of 2002

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The State of Maharashtra
Through P.S.I., Parner Police
Station, Parner, for the
complainant Sau.Sunita
Atmaram Kale.

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..APPELLANT

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 (ORIGINAL COMPLAINANT)

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VERSUS

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1. Atmaram Bajirao Kale, Age : 24 years,

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2. Smt. Parubai Bajirao Kale, Age : 55 years,

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3. Nanda d/o Bajirao Kale, Age : 27 years, All resident of Burudgaon, Tq. & Dist. Ahmednagar.

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..RESPONDENTS

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(ORIGINAL ACCUSED)

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Mr.S. J. Salgare,APP for Appellant/State

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Mr.Joydeep Chatterji,Advocate for respondents No.1 to 3.

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CORAM :T.V. NALAWADE AND
S. M. GAVHANE, JJ.

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DATE : 13th September,2017

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JUDGMENT : [ PER : S. M. GAVHANE, J.]

¶17

The Appellant-State has filed this appeal
against the Judgment and order dated 08-10-2001 passed
by the Additional Sessions Judge, Ahmednagar in Sessions
Case No. 171 of 2000 thereby acquitting the respondents-
accused Nos. 1 to 3 of the offences punishable under

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2 Cri.Appeal 17-2002

¶19

Sections 498-A and 302 of the Indian Penal Code ( For
short 'the IPC')

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(2)Facts of the prosecution case as it reveals

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from the police papers are as under :-

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(A)Madhukar Ramchandra Mande (P.W.1) who is a
resident of Ahmednagar is father of the deceased Sunita.
She was married to accused No.1 on 26-12-1999. After
the marriage, she started residing with the accused at
their village Burudgaon, Taluka Nagar. It is alleged
that within a month of her marriage, all the accused

¶23

i.e. accused No. 1 her husband, accused No. 2 her
mother-in-law and accused No. 3 sister of her husband
started illtreating deceased saying that they did not
like her. They started starving her. P.W. 1, her
father attempted to convince the accused, but none of
them paid any heed to it. The accused subjected deceased
to cruelty continuously for about six months.

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(B)Further it is alleged that, accused No. 1, one

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fine morning took the deceased to the house of P.W. 1
and at that time she resided with P.W. 1 for about eight
to ten days. At that time, the deceased disclosed to
P.W. 1 that the accused were consistently saying that

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3 Cri.Appeal 17-2002

¶27

they did not like her and on that count she was all the
while subjected to cruelty.

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(C)Accused No. 1 was an employee of M.S.E.B. at
village Supa. He got the residential quarter at village
Supa. He took deceased with him to village Supa and
they started residing there in the quarter of M.S.E.B.

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(D)On 01-09-2000, at about 09.30 p.m. P.W. 1

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received phone message of his brother-in-law that
accused No. 1 did not like the deceased and he has
threatened that something would be definitely happened.
Therefore, on 02-09-2000 P.W.1 went to village Supa and
reached at the quarter of the accused No.1 at about 9.45
a.m.. At that time he saw deceased in burnt condition

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and she was sitting in the house of her neighbour. No
medical aid till that time was given to the deceased by
accused No.1.

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(E)Thereafter P.W. 1 immediately arranged the jeep

¶33

from village Supa and took the deceased to Civil
Hospital, Ahmednagar in injured condition, at about
11.15 a.m. on 02-09-2000. On the way to Civil Hospital,
Ahmednagar allegedly the deceased disclosed to her
father P.W. 1 that “the accused No. 1 poured kerosene on

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her person and set her on fire.” So also, on the same

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4 Cri.Appeal 17-2002

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day i.e. on 02-09-2000 between 2.00 to 2.45 p.m. dying
declaration (Exh.32) of the deceased came to be recorded
by P.W. 2, stating that “on the said date at about 08.30
a.m., her husband, the accused No. 1 said her that he

¶37

did not like her and on that ground the accused No. 1
poured kerosene on her person and set her on fire. Her
mother-in-law and sister-in-law had constantly harassed
her.”

¶38

(F)It appears that in the meantime, accused No. 1
wenttoParnerPoliceStationandlodged

¶39

information/Khabar Exh.55. Said information was received
by Parner Police Station at 11.00 a.m. and PSI, Parner
Police Station immediately directed Police Head
Constable Piraji Kusalkar (P.W.4) to inquire into the
matter as to how the deceased sustained burn. On that
day PHC Kusalkar was at Supa as he was given Bandobast
duty at Supa as there was Grampanchayat Election. He
immediately went to the scene of offence and recorded
the spot panchanama (Exh.38). Then he went to Civil
Hospital, Ahmednagar and recorded dying declaration
(Exh.39) of the deceased on 02-09-2000 at about 11.45
p.m. wherein the deceased stated that, “after her
marriage while she was cohabiting at the house of

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Cri.Appeal 17-2002

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accused at Burudgaon, Taluka Nagar, her mother-in-law,
sister-in-law and husband used to harass her saying that
they did not like her and they used to taunt and starve
her. So also, two months before her husband had taken
her to village Supa at the place of his service, in
M.S.E.B.Colony and while she was cohabiting with her
husband, on 02-09-2000 at 8.30 a.m. she and her husband
were in the house, at that time her husband said that he
did not like her and poured kerosene in the Can in the

¶43

house on her person and set her on fire by lighting the
match-stick. She herself extinguished the fire. She
sustained burns to her chest, stomach and legs. After
she was set on fire, her husband went away. Thereafter
her father Madhukar Ramchandra Mande came and he brought
her in the Government Hospital at Nagar from Supa.
Further she stated that while she was cohabiting at
Burudgaon at her in-laws' house since January 2000 and
at Supa, Taluka Parner, her husband, mother-in-law and
sister-in-law caused her mental and physical cruelty by
harassing and starving her and on 02-02-2000 at 08.30
a.m. at the house in M.S.E.B. Colony, Supa, her husband

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poured kerosene on her person and set her on fire and
attempted to kill her.” Treating the said dying

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6 Cri.Appeal 17-2002

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declaration Exh. 39 as FIR, Crime No. 199 of 2000 was
registered by Police Head Constable Kusalkar against the
accused for the offences punishable under Sections 498-A
and 307 read with Section 34 of the IPC. The PSI Chabu
Dhakarao (P.W.6) started investigation in the said
crime.

¶47

(G)During the investigation PSI Dhakrao arrested
all the accused on 03-09-2000. He requested Tahsildar

¶48

to draw map of scene of offence. Accordingly P.W. 3
Vijay Umap had drawn the map of scene of offence Exh.
34. On 14-09-2000 while taking treatment in the

¶49

Government Hospital, Ahmednagar, Sunita died. P.S.I.
Dhakrao prepared inquest panchanama of the dead body.
P.W. 5, Dr. Ranade conducted Post-mortem examination of

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the dead body and issued Post-mortem Report Exh.42. The

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Investigating Officer also sent seized articles to
Chemical Anaylser for examination and analysis. The
report was received. The Investigating Officer recorded
statements of witnesses.

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(3) After completion of the investigation the

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Investigating Officer PSI Dhakrao submitted charge-sheet

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in the Court of Judicial Magistrate First Class, Parner

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Cri.Appeal 17-2002

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against the accused for the offences punishable under
Sections 498-A and 302 read with Section 34 of the IPC.

¶58

As the offence under Section 302 of the IPC was
exclusively triable by the Court of Session, the learned
Magistrate committed the case to the Sessions Court,
Ahmednagar, which was subsequently allotted to the
Additional Sessions Judge, Ahmednagar.

¶59

(4)The charge was framed against all the accused
for the offences punishable under Section 498-A read
with Section 34 of the IPC and against accused No. 1 for
the offence punishable under Section 302 of the IPC, to
which the accused pleaded not guilty and claimed to be
tried. Their defence is denial. They have not examined
any witness in defence.

¶60

(4A)At the time of their statement under Section
313 of the Code of Criminal Procedure, the accused have
filed written reply (Exh.62) stating that false case is
filed against them. The deceased committed suicide by
closing the door of kitchen room from inside. Accused
Nos. 2 and 3 had never come to Supa. The deceased was
not liking to stay with accused Nos. 2 and 3 and

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8 Cri.Appeal 17-2002

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therefore prior to 10-15 days of getting residential
quarter at Supa, accused No. 1 and the deceased resided

¶63

at the house of Sunita (deceased) at Nagar. The
deceased had said that accused No. 1 should not go and

¶64

meet his mother and sister. On her say,accused No. 1
went to Supa to reside. On 01-09-2000 he had gone to
Ahmednagar at his house for installing idol of Ganpati
and at that time it was the say of the deceased that he

¶65

should not go to house at Nagar and on that ground she
had quarreled with him. But as there was no other male
member in his house, accused No. 1 had gone to Nagar for
festival against her wish. Prior to going to Nagar, he
was willing to take the deceased with him and he said so
to her. But she said that she is not coming with him

¶66

and that he also should not go. On the same day after
installing Ganpati Idol, in the night he returned to
Supa. On the next day morning also, she picked up
quarrel on the same ground and out of anger, closed the
door of the kitchen from inside. Accused No. 1 heard

¶67

the noise of kerosene Can, he thought that she would do
something and therefore, he broke open the door and she
was seen inflame. Accused No. 1 extinguished the fire
and removed the clothes on her person and in that his

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9 Cri.Appeal 17-2002

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fingers of both hands and lips were burnt. At that
time, Sow. Surekha Sham Kurle had come to help and she
also sustained burns to her legs. At that time the
deceased was saying, “what she has done and what would
happen with her child and that she should be taken to
Hospital.” Thereafter, he (accused No.1) and Sow.

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Surekha Kurle asked her son to call the Doctor. Doctor
Magar came and gave primary treatment. After some time,
father of the deceased came and started assaulting to

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accused No.1. Therefore, persons had come there and
they asked accused No. 1 to go away. Therefore, accused

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No. 1 went away from there and gave information in
Parner Police Station. Father of the deceased had
taken her to Nagar by the jeep and on the way to Nagar,

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he tutored her to give her statement. So also, while

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going to Nagar they had halted about ½ hour to 45
minutes at their house. They prepared false dying
declarations. Deceased Sunita was beautiful and
therefore, there was no question of accused not liking
her. On the contrary, accused No. 1 is not good

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looking, but he had got beautiful wife and therefore, he

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was behaving as per her say. Therefore, it is incorrect
that the accused were causing cruelty to the deceased as

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they did not like her. As the deceased had lost hopes

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of surviving, to harass them (accused) false case was
filed against them.

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prosecution has examined in all eight witnesses, two
witnesses have been examined as a Court witnesses and it

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has relied upon oral and written dying declaration
referred to above, P.M. report and the panchanamas. On
considering the evidence adduced by the prosecution and
the defence of the accused, the trial Court on holding

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that the prosecution has failed to prove that the
accused either individually or in furtherance of their
common intention subjected the deceased to cruelty, that

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the accused No. 1 caused death of the deceased and that

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the prosecution has failed to prove that death of the
deceased was homicidal, acquitted all the accused of the
offences punishable under Sections 498-A and 302 read

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with Section 34 of the IPC by the impugned judgment and
order. Therefore, this appeal against acquittal of the
accused by the State, on several grounds mentioned in
the memorandum of appeal.

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11 Cri.Appeal 17-2002

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(6)We have heard the learned APP appearing for the
appellant/State and the learned advocate appearing for
the respondents-accused and with their assistance we
have perused the evidence adduced by the prosecution.
We have perused the impugned judgment and order.

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(7)Since this is an appeal against the acquittal

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it is necessary to refer the law laid down by the Apex

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Court regarding approach of the appellate Court in
dealing with the appeal against the acquittal in the

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case of Murlidhar alias Gidda and another Vs State of

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Karnataka(2014) 5 SCC 730, wherein in para No.12 the
Apex Court has held thus:

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"12.The approach of the appellate Court in
the appeal against acquittal has been dealt
with by this Court in Tulshiram Kanu Vs State,
AIR 1954 SC 1, Madan Mohan Singh Vs State of
U.P., AIR 1954 SC 637, Atley Vs State of U.P.,
AIR 1955 SC 807, Aher Raja Khima Vs State of
Saurashtra, AIR 1956 SC 217, Balbir Singh Vs
State of Punjab, AIR 1957 SC 216, M.G. Agrawal
Vs State of Maharashtra, AIR 1963 SC 200, Noor
Khan Vs State of Rajasthan, AIR 1964 SC 286,
Khedu Mohton Vs State of Bihar, (1970) 2 SCC
450, Shivaji Sahabrao Bobade Vs State of
Maharashtra, (1973) 2 SCC 793, Lekha Yadav Vs
State of Bihar, (1973) 2 SCC 424, Khem Karan Vs

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Cri.Appeal 17-2002

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State of U.P., (1974) 4 SCC 603, Bisan Singh Vs
State of Punjab, (1974) 3 SCC 288, Umedbhai
Jadavbhai Vs State of Gujrat, (1978) 1 SCC 228,
K. Gopal Reddy Vs. State of A.P., (1979) 1 SCC
355, Tota Singh Vs State of Punjab, (1987) 2
SCC 529, Ram Kumar Vs State of Haryana, 1995
Supp (1) SCC 248, Madan Lal Vs. State of J & K,
(1997) 7 SCC 677, Sambasivan Vs State of Kerala,
(1998) 5 SCC 412, Bhagwan Singh Vs State of
M.P., (2002) 4 SCC 85, Harijana Thirupala Vs
Public Prosecutor, High Court of A.P., (2002) 6
SCC 470, C. Antony Vs K.G. Raghavan Nair, (2003)
1 SCC 1, State of Karnataka Vs K. Gopalkrishna,
(2005) 9 SCC 291, State of Goa Vs Sanjay
Thakran, (2007) 3 SCC 755 and Chandrappa,
Chandrappa Vs State of Karnataka, (2007) 4 SCC
415.It is not necessary to deal with these
cases individually. Suffice it to say that this
Court has consistently held that in dealing
with appeals against acquittal, the appellate
Court must bear in mind the following : (i)
There is presumption of innocence in favour of
an accused person and such presumption is
strengthened by the order of acquittal passed
in his favour by the trial Court, (ii) The
accused person is entitled to the benefit of
reasonable doubt when it deals with the merit
of the appeal against acquittal, (iii) Though,
the power of the appellate Court in considering
the appeals against acquittal are as extensive
as its powers in appeals against convictions

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Cri.Appeal 17-2002

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but the appellate Court is generally loath in
disturbing the findings of fact recorded by the
trial Court. It is so because the trial Court
had an advantage of seeing the demeanor of the
witnesses. If the trial Court takes a
reasonable view of the facts of the case,
interference by the appellate Court with the
judgment of acquittal is not justified. Unless,
the conclusions reached by the trial Court are
palpably wrong or based on erroneous view of
the law or if such conclusions are allowed to
stand, they are likely to result in grave
injustice, the reluctance on the part of the
appellate Court in interfering with such
conclusions is fully justified, and (iv) Merely
because of the appellate Court on re-
appreciation and re-evaluation of the evidence
is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
Court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate Court in the
judgment of the trial Court."

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(8)There is no dispute that the deceased was

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married with the accused No.1 on 26.12.1999 and after

¶102

marriage, she went to the house of accused at village
Burudgaon, Taluka and District Nagar for cohabitation.
At the relevant time of incident, accused No. 1 was

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14 Cri.Appeal 17-2002

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serving as helper in the M.S.E.B. at village Supa,
Taluka Parner, District Ahmednagar and accused Nos. 2

¶105

and 3 were residing at Ahmednagar. On the day of

¶106

incident i.e. on 02-09-2000 accused No. 1 and the
deceased were residing at village Supa in the
residential quarter of the M.S.E.B. and on that day at
about 08.30 a.m., the deceased sustained 50 % burns. On
the same day P.W.1, father of the deceased had come to

¶107

Supa at about 8.45 a.m. and on seeing the deceased in
injured condition in the house of neighbour Surekha Sham
Kurle, witness No. 2 for the Court, he admitted the
deceased in injured condition in the Civil Hospital at
Ahmednagar at about 11.20 a.m. While the deceased was
taking treatment she succumbed to the injuries on
14-09-2000 at 00.15 hours.

¶108

(9)The case of the prosecution is that, death of

¶109

the deceased is homicidal, accused No. 1 is responsible
for her death and that all the accused caused cruelty to

¶110

the deceased. Denying the same, the accused have come
with the case that death of the deceased is suicidal and

¶111

therefore, accused No. 1 is not responsible for her
death. Therefore, it is necessary to see whether the

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15 Cri.Appeal 17-2002

¶113

death of the deceased is homicidal or suicidal. There

¶114

is no direct evidence to show the involvement of the
accused for the alleged offences. The prosecution has
relied upon the following evidence and circumstances :

¶115

(a)Oral dying declaration of deceased to her father
Madhukar Mande (P.W.1) and dying declarations Exh. 32
and Exh.39,

¶116

(b) Panchanama of, spot of incident (Exh. 38) and
Chemical Analyser's Report (Exh.48),

¶117

(c) The evidence of P.W. 1 about cruelty to the
deceased,

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(d) False plea in defence of the accused.

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(10)Before considering the dying declarations, it

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is necessary to refer principles regarding appreciation
of evidence in the form of dying declaration laid down
by the Supreme Court and this Court.

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(a)In the case of Jand Another V/s State of

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Maharashtra reported in (2013) 2 Supreme Court Cases
224, it was held that in case of multiple dying
declarations, they can be believed and each dying
declaration has to be separately assessed and evaluated

¶123

and assessed independently on its own merit as to its

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16 Cri.Appeal 17-2002

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evidentiary value and one cannot be rejected solely

¶126

because of certain variations in another declaration.

¶127

(b) In the case of Anwar Shah Babu Shah Fakir and
others Vs. State of Maharashtra reported in 2012 to ALL

¶128

MR (Cri) 2774, it was held that in case of more dying
declarations, each dying declaration needs to be
considered separately and it becomes duty of the Court
to find out, whether the other evidence is consistent
with the dying declarations. If the other evidence is
consistent with one dying declaration, that dying
declaration can be safely accepted and relied upon and
other dying declaration can be discarded.

¶129

(c)In the case of Sudhakar vs. State of Madhya Pradesh

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reported in (2012) 7 Supreme Court Cases 560, it was
held that where multiple dying declarations made by the
deceased are either contradictory or at variance with
each other to a large extent, test of common prudence

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would be to first examine which dying declaration is
corroborated by other prosecution evidence. Moreover,
attendant circumstances, condition of deceased at the

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time of making of each statement concerned, medical
evidence, voluntariness and genuineness of statement

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17 Cri.Appeal 17-2002

¶134

made by deceased, physical and mental fitness of
deceased and possibility of deceased being tutored are
some of the factors which would guide exercise of
judicial discretion by Court in such matters.

¶135

(11)Bearing in mind, the above principles regarding
appreciation of evidence, we proceed to scan the
evidence on record to see whether the oral dying
declaration to P.W. 1, father of the deceased and
written dying declarations -Exh.32 and 39 made by the
deceased are truthful, voluntary and free from any
tutoring and that they are reliable. As regards oral
dying declaration to P.W.1, father of the deceased is
concerned, his evidence (Exh.27) is that, on 01-09-2000
at about 09.30 p.m. he received message of his brother-
in-law i.e. husband of his sister namely Bhattu alias
Asaram Sake, that the accused No. 1 did not like the
deceased and he gave threat that something would happen
on the next day. He deposed that therefore, immediately
on the next morning he went to village Supa to see his
daughter and he reached at Supa at about 9.45 a.m. None
of the accused was seen in their house. He saw his
daughter in burnt condition in the house of neighbour.

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¶137

At that time door of the house of accused was found
intact and he could not notice any damage to the house.
Further he deposed that his daughter/deceased, that time
did tell him that she had desire of living and requested
him to save her. Further she added that accused No. 1
poured kerosene on her person and set her on fire and
then ran away. He stated that there they could see
accused No.1. He abused him and told him that why
medical treatment was not arranged to his daughter by
that time. The incident took place at about 08.30 a.m.,
village Supa is about one and half kilometer away from

¶138

the residential house of accused No.1. He went to
village Supa on motor-bike and arranged jeep. He took
his daughter in jeep and brought her to Civil Hospital,
Ahmednagar at about 11.15 a.m. and she was then
hospitalized. She died on 14-09-2000 in the Hospital.

¶139

(12)In the cross-examination of P.W. 1 stated that

¶140

it did not happen that when he reached to the house of
accused at Supa, he saw persons gathered at the door of
the house of accused. He stated that portion marked -B
in his statement before police, in this respect was not
correctly recorded. Said portion marked 'B' is proved

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¶142

by the Investigating Officer PSI Dhakrao (P.W.6) and
marked at Exh.50. Therefore it can be said that when
P.W. 1 visited the house of accused No.1 at Supa, he saw
persons gathered at the door of the house of the
accused. Further he has deposed that he does not know
as to who were neighbours of accused at village Supa.
He has denied that, on that day he assaulted accused
No.1. He admits that he abused accused No.1. He stated

¶143

that he does not know whether Abhijit who happens to be
the son of Kurle called a Medical Practitioner by name

¶144

Dr.Magare and he had given some treatment to the
deceased or otherwise. He admits that neighbour of
accused No.1 asked accused No. 1 to quit the place
because they had apprehension that he may assault
accused No.1 that point of time and therefore, accused
No. 1 had left the premises. He denied that Dr. Magare

¶145

had given injection to the deceased. He stated that he
does not know whether accused No.1 went to Parner Police

¶146

Station and informed the incident to police or
otherwise. He denied that, door of kitchen of accused
No.1 was found broken. He stated that he has not stated

¶147

before police that when he reached Supa the house of
accused No.1 was found intact and no damage to it was

¶148

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¶149

noticed. He stated that police recorded his

¶150

supplementary statement on 14-09-2000 and even on that
day he did not state before police the aforesaid fact.

¶151

He denied that doors of the house of accused were not

¶152

intact. He stated that for the first time before the
Court he stated that doors of the house of accused were

¶153

intact. He has denied that he personally tutored his
daughter/deceased that she should tell that her husband

¶154

poured kerosene on her person and set her on fire. He
denied that, deceased closed the door of the kitchen and
sprinkled kerosene on her person and set her on fire.

¶155

He denied that accused No. 1 started to break open the

¶156

door of kitchen since he heard the noise of drum of
kerosene and then he could entered the kitchen and
attempted to extinguish the fire. He denied that at the
same time Kurlebai came and attempted to extinguish the

¶157

fire. He denied that when the deceased was brought out
of the house she gave statement before neighbour that

¶158

she set herself on fire and now what would happen to her

¶159

child and she also uttered words, “Mi He Kay Karun
Ghetale.” He has denied that since the deceased died

¶160

due to burn injuries, he and his relatives cooked the
false case against the accused with a view to

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Cri.Appeal 17-2002

¶163

harass them.

¶164

(13)From the above evidence of P.W.1, an inference

¶165

can be drawn that on 02-09-2000 he had come to the house
of accused No. 1 at village Supa at about 8.45 to 09.00
a.m. He saw the deceased in injured condition in the
house of neighbour of accused No.1. Accused No. 1 was
also there. He abused accused No.1. People also
gathered there. Due to fear of assaulting accused No.
1, the neighbours asked accused No. 1 to leave the place

¶166

and then accused No. 1 went to Parner Police Station.
Thereafter P.W. 1, alone was with the deceased and the
deceased disclosed to him that accused No.1 poured
kerosene on her person and set her on fire. Moreover,
his evidence that when he went to the house of accused,

¶167

doors of the house of accused were intact is not
believable as he stated the same before the Court for

¶168

the first time and did not state in his statement
before police. As the deceased alone was with P.W. 1,
when he took her in the Civil Hospital at Ahmednagar

¶169

from Supa for about two hours and as P.W. 1 was annoyed,

¶170

he abused accused No.1, possibility of his tutoring the
deceased to implicate the accused to say that accused

¶171

22 Cri.Appeal 17-2002

¶172

No.1 poured the kerosene on her person and set her on
fire, cannot be ruled out. Therefore, before accepting
or rejecting oral dying declaration allegedly made by
the deceased to P.W. 1 it is necessary to refer written
dying declarations relied upon by the prosecution and
other evidence on record.

¶173

(14)Now coming to the first dying declaration
(Exh.32), it was recorded on 02-09-2000 by Naib

¶174

Tahsildar, Executive Magistrate Dharma Laxman Aaru
(P.W.2) between 02.00 p.m. to 2.45 p.m. when the

¶175

deceased was taking treatment in Civil Hospital

¶176

Ahmednagar. P.W. 2 has deposed that on that day he
received letter Exh. 31 from police, requesting him to
record dying declaration of the deceased Sunita Kale.
On receipt of said letter he went to the Government

¶177

Hospital, Nagar. He met to Medical officer in the
Hospital. He showed aforesaid letter to the said Medical
officer and requested him to allow him to record dying
declaration of the deceased. The Medical officer then

¶178

took him to the bed of the patient, whose statement he
had to record. The Medical Officer on duty examined the
patient first. On clinical examination, Medical Officer

¶179

23 Cri.Appeal 17-2002

¶180

put his endorsement and told him that patient was
conscious and capable to give statement physically and
mentally. The Medical Officer made endorsement on top
of the dying declaration in his presence. He stated
that he could reach in the Hospital at 2.00 p.m. He
recorded statement of deceased in question and answer
form. He recorded answer of the deceased as per her own
version to the questions which he put to her. He stated
that according to statement of the deceased, “on
02-09-2000 her husband told her that he did not like her

¶181

and then he poured kerosene on her person and set her on
fire. She also ventilated her grievance against accused
No.2 and 3 and to that effect, she has stated that they
gave trouble to her.” On completion of her statement he
read over to the entire statement to her, she admitted
it to be true and then she signed the statement in his
presence. The Medical Officer then clinically examined
the deceased and opined that declarant was conscious and
capable to give declaration throughout physically and
mentally. He stated that dying declaration Exh. 32
shown to him is the same and it was lasted at about 2.45
hours.

¶182

24 Cri.Appeal 17-2002

¶183

(15)In the cross-examination, P.W. 2 has stated

¶184

that he might have recorded 50 dying declarations till
that time. He does not know names of most of the
doctors. Medical Officer was with him for half an hour
from 2.00 to 2.30 p.m. but he could not tell his name.
He could not tell as to how Medical Officer clinically
examined the deceased. He could not tell what sort of
test Medical Officer performed to arrive at a particular
conclusion. According to him, the Medical Officer
examined the patient i.e. deceased for long time. He
denied that parents of deceased had also accompanied

¶185

them that time. He denied that he recorded dying
declaration of deceased as per the say of her father.
He denied that, handwriting on dying declaration is not
his handwriting. He denied that, he did not go to
Hospital and that police brought written dying
declaration to his office and he had signed the same.
He denied that Medical Officer did not put his
endorsement at the top and bottom of dying declaration
in his presence. He stated that he has no documentary
evidence to show that Tahsildar gave him permission,
because he was given oral permission. Thus, the
evidence of P.W. 2 regarding material particulars of

¶186

25 Cri.Appeal 17-2002

¶187

dying declaration Exh. 32 that the deceased told him
that her husband poured kerosene on her person on 02-09-
2000 and set her on fire and she also made grievance
against accused No. 2 and 3 is not shattered in his
cross-examination. He could not tell name of the

¶188

Medical Officer who examined the deceased before and
after recording the dying declaration. Considering the
said aspect and the fact that P.W. 1, father of the
deceased was with the deceased in the Hospital on
02-09-2000 and before they reached in the Hospital, son
and wife of P.W.1, had already reached in the Hospital
and none from the family of the accused was with the
deceased in the Hospital, possibility of tutoring the
deceased cannot be ruled out and hence before accepting
or rejecting written dying declaration Exh. 32 recorded
by P.W. 2, other evidence on record is to be considered.

¶189

(16)Dr. Borade (P.W.8) who had examined the

¶190

deceased before and after recording dying declaration
Exh. 32 by P.W. 2 has deposed that on 02-09-2000
deceased was admitted in Civil Hospital, Ahmednagar at
11.20 a.m. She had burn injuries. On that day around
2.00 p.m. Special Executive Magistrate met him in the

¶191

26 Cri.Appeal 17-2002

¶192

Hospital, since he had to record dying declaration of
the deceased. According to him, he examined the
deceased and found that patient was conscious, well
oriented to give statement. Accordingly he put

¶193

endorsement on top of dying declaration. So also he
deposed that thereafter Executive Magistrate recorded
dying declaration (Exh.32). Then he examined the

¶194

patient. She was found conscious and well oriented. He
put such endorsement at the bottom of said dying
declaration (Exh.32). Though he has been cross-examined
at length on behalf of the accused nothing is found in
favour of the accused to state that the patient/deceased
was not conscious and well oriented to give statement.
Thus, on the basis of P.W. 2 and Dr. Borade (P.W.8) it
can be said that deceased was conscious and well
oriented when dying declaration Exh. 32 was recorded.
Merely because accused P.W. 2 could not tell name of
P.W. 8, Dr. Borade, it cannot be said that said Doctor

¶195

did not examine the deceased before and after recording
her dying declaration (Exh.32).

¶196

(17)Exh.39 is the dying declaration recorded by

¶197

P.H.C. Piraji Kusalkar (P.W.4) on 02.09.2000 between

¶198

27 Cri.Appeal 17-2002

¶199

11.30 p.m. to 11.45 p.m. in presence of Dr. Rajguru
(P.W.7), the Medical Officer in Civil Hospital,
Ahmednagar. As regards, the condition of the injured at
the relevant time of recording said dying declaration,

¶200

P.W. 4 has deposed that he went to Civil Hospital,
Ahmednagar and met Medical Officer on duty to whom he
told that he has to record statement of the deceased.

¶201

He (Doctor) examined the deceased and opined that she

¶202

was capable to give statement and then he recorded her
statement as per her version. He stated that, on
completion of statement of the deceased again the
Medical Officer examined the deceased and put the
endorsement to that effect at the bottom of the
statement. In the cross-examination, he denied that, he

¶203

obtained an endorsement of the Medical Officer at one
time that too in his cabin and that he obtained the

¶204

endorsement of the Medical Officer in the manner
aforesaid and therefore, he does not have the
requisition letter. His evidence that Medical Officer
examined the deceased and opined that she was capable to

¶205

give statement has not been specifically challenged in
the course of his cross-examination.

¶206

28 Cri.Appeal 17-2002

¶207

(18) Similarly, Dr. Rajguru (P.W.7) deposed that

¶208

the police official came to record statement of the
deceased around 11.00 to 11.30 p.m. on 02-09-2000. He

¶209

had examined patient/deceased. According to him on
clinical examination he could notice that she (deceased)
was conscious and capable to give declaration. He put
endorsement on top of Exh.39 dying declaration. He
claims that after having completed the statement of the
patient/deceased he again examined her and found that
she was conscious and oriented to give statement and

¶210

accordingly put endorsement at the bottom of the
statement with his signature. In the cross-examination

¶211

he denied that statement of the deceased came to be

¶212

recorded in his room at the instance of father of the

¶213

deceased and he issued both the certificates at one
time. His evidence that on clinical examination , he

¶214

noticed that the deceased was conscious and capable to
give declaration has not been specifically challenged.
The deceased had sustained 50 percent burns on 02-09-

¶215

2000 at about 8.30 a.m. and in the night of said date
Exh.39, dying declaration was recorded between 11.00 to
11.30 p.m. Considering above all evidence of P.W. 4 and
P.W.7 Dr. Rajguru it can be said that, the deceased was

¶216

¶217

Cri.Appeal 17-2002

¶218

conscious and capable to give dying declaration
(Exh.39).

¶219

(19)As regards, contents of dying declaration
(Exh.39) PHC Kusalkar (P.W.4) deposed that he recorded
said statement/dying declaration as per her version.
She made statement before him that her husband did not
like her and therefore he poured kerosene on her person
and set her on fire. Deceased also stated to him that
accused No.2 and 3 also used to illtreat her. He
deposed that he read over statement to her, she admitted

¶220

it to be true, then he obtained her signature at the
bottom of dying declaration and he also signed the same.

¶221

He stated that Exh.39 dying declaration is same. In the
cross-examination he (P.W.4) has denied that he recorded
statement of deceased as per the version of her father
and not as per her version. Therefore, his evidence
regarding recording of dying declaration Exh. 39 as
above of the deceased is not shattered in the cross-
examination on behalf of the accused. P.W.7 Dr. Rajguru

¶222

in his cross-examination denied that he was not present

¶223

near the patient when her dying declaration was being
recorded. He could not state whether relatives of the

¶224

¶225

Cri.Appeal 17-2002

¶226

patient/deceased were in ward prior to recording of her
statement or otherwise. He stated that the statement of
the patient/deceased was recorded in question and answer

¶227

form. P.W. 4 PHC Kusalkar has not stated that the
statement/dying declaration of the deceased was recorded
in question and answer form. Exh. 39 dying declaration
shows that it is in narrative form and it is not in
question and answer form. Therefore, it is clear that,
the evidence of Dr.Rajguru that statement/dying
declaration (Exh.39) of the deceased was recorded in
question and answer form is contrary to Exh. 39.
Therefore, it is doubtful whether said dying declaration
was really recorded in presence of Dr. Rajguru (P.W.7).
Considering the same and the evidence of Dr. Rajguru
that he could not tell as to whether relatives of the
deceased were present in the ward prior to recording her
statement or otherwise the possibility of presence of
relatives of the deceased prior to recording of dying
declaration and tutoring her to implicate the accused
cannot be ruled out. Therefore, it is doubtful whether
dying declaration Exh. 39 is genuine.

¶228

(20)Now coming to the evidence of Surekha Sham

¶229

¶230

Cri.Appeal 17-2002

¶231

Kurle, witness No.2 for the Court, who is admittedly
neighbour of the accused No.1 and the deceased. Her
evidence (Exh.61) shows that on 02-09-2000 at about
08.00 to 08.15 a.m., she was at her house. She was busy
in cooking. That time she heard the shouts of the
persons. Therefore, she thought that her children might
have returned back from their school and therefore, she

¶232

had opened the door of her quarter. No sooner she

¶233

opened the door of her quarter, she saw that the
deceased Sunita was almost burning in the flames and
accused was attempting to ruin up the burnt clothes of

¶234

the deceased Sunita. She could see the aforesaid incident from the distance of 2 to 3 ft. That time she could heard the words of the deceased that is ^^gs eh gs dk; d#u ?ksrys ekb;k gkrkuh] eyk nok[kkU;kr ?ksmu pyk] vkiY;k ckGkps dls gksbZy^^ According to her, the deceased uttered the aforesaid sentence twice. She immediately took bed-sheet from her house and attempted to extinguish the fire of the

¶235

deceased. At that time, deceased had showed her
willingness or desire that she wanted tobe in her house.

¶236

She therefore, took deceased in her house. By that time

¶237

her son reached to her house to whom Kale told to go and
arrange for the doctor. She deposed that since she was

¶238

32 Cri.Appeal 17-2002

¶239

alone, she was afraid and therefore, she informed the
abovesaid incident in M.S.E.B. sub-station. She deposed
that, father of the deceased happened to come to her
house to whom she was not knowing. Father of the
deceased made grievance as to how incident occurred. At
that time deceased told her father that she be taken to
Hospital and thereafter she came to know that, person
who made grievance was the father of the deceased. Then

¶240

he left the quarter and brought a vehicle and took the
deceased with him in the vehicle. After 15 days she
came to know that Sunita died. She stated that she also
attempted to extinguish the fire and she sustained burn
injuries to her leg. She stated that she stated to
police only once that the deceased Sunita uttered words
as referred earlier. She also stated that after 2 to 4

¶241

days of the incident she went to Civil Hospital,
Ahmednagar and meet the deceased and the deceased only
told her that she had much pains. Thus, it is clear

¶242

from the evidence of this witness that this witness is
the next door neighbour of the deceased and accused No.1

¶243

on the date of incident that is 02-09-2000 and
immediately at the time of incident i.e. at about 08.00
to 08.15 a.m. after the deceased sustained burns, this

¶244

33 Cri.Appeal 17-2002

¶245

witness saw the deceased, to whom the deceased first in time disclosed that,” gs eh gs dk; d#u ?ksrys ekb;k gkrkuh] eyk nok[kkU;kr ?ksmu pyk] vkiY;k ckGkps dls gksbZy” which shows that deceased herself set her on fire which necessarily shows, that deceased committed suicide. This witness Surekha Kurle who came to the deceased at the relevant time is an independent witness and she has no reason to depose against the prosecution or in favour of the accused. Her evidence if considered it suggests that death of the deceased is suicidal. Therefore, it is doubtful whether accused No.1 poured kerosene on the person of the deceased and set her on fire, on 02-09-2000 at about 08.30 a.m. as alleged by the prosecution and as claimed by P.W.1 father of the deceased and stated in dying declarations Exh. 32 and 39.

¶246

(21)Now coming to the circumstantial evidence in
the form of spot panchanama Exh. 38, map of spot of
incident Exh.34 and Chemical Analyser's Report at
Exh.48, as regards Exh. 38 panchanama of spot of
incident, P.H.C. Kusalkar (P.W.4) has deposed that

¶247

accused No. 1 had shown the spot of incident. He seized
plastic Can containing some kerosene and half match-box,

¶248

34 Cri.Appeal 17-2002

¶249

partially burnt pieces of white petticoat, and burnt red
pieces of Gown as per panchanama Exh 38. Panchanama
Exh. 38 shows that in the West-North corner, there was 8
x 10 sq.ft. room in the house of accused and said room
has door of plank. Half portion of plank of said door
was found broken and the said room was a kitchen room.

¶250

P.W. 3, Vijay Umap who was Circle Inspector, Supa, at

¶251

the relevant time has deposed that he prepared map
Exh.34 of the scene of offence. In the cross-
examination he stated that a broken door is shown in the
map and for that his explanation is upper portion of the

¶252

door was broken. Exh. 34 map also shows that when the
said map was prepared, door of the kitchen room was
found broken. Thus, from the spot of incident
panchanama (Exh. 38) and map (Exh.34), the circumstance
that door of the kitchen of house of the accused was

¶253

found broken after the incident. This circumstance
supports the defence plea of the accused that the
deceased closed the door of the kitchen from inside and

¶254

set herself on fire after pouring the kerosene and on
hearing the noise of the Can of kerosene, accused No.1
had broken the door and attempted to extinguish the fire
of the deceased. This circumstance therefore, creates

¶255

35 Cri.Appeal 17-2002

¶256

doubt about the allegation of the deceased in dying
declarations Exh.32, Exh. 39 and in oral dying
declaration to her father P.W.1 that accused No.1 her
husband poured kerosene on her person and set her on
fire. The evidence of court witnesses and other
evidence do not corroborate the oral or written dying
declarations' Exh.32 and 39.

¶257

(22)The prosecution has relied upon Chemical

¶258

Analyser's Report Exh. 48. This report is in respect of
analysis of articles referred to above seized under
panchanama Exh. 38 of the spot of incident which were
sent to the Chemical Analyser for analysis. This report
shows that no kerosene was detected on articles at Exhs.
2,3 and 4 respectively. Match-box, burnt small cloth
pieces and partially burnt small orange coloured cloth
pieces. As no kerosene was detected on the above
articles this C.A.report is of no help to the
prosecution to state that kerosene was poured on the
person of the deceased by accused No. 1 and then she was
set on fire by the said accused as alleged.

¶259

(23)The case of the prosecution is that, all the

¶260

¶261

Cri.Appeal 17-2002

¶262

accused caused cruelty to the deceased saying that they
did not like her and that was the motive to the accused

¶263

No. 1 to commit murder of the deceased. To prove the
said cruelty, prosecution has mainly relied upon the
evidence of P.W. 1, father of the deceased. P.W.1, in
his evidence at Exh. 27 deposed that within one month of
marriage of the deceased, all the accused started
illtreating her. They were saying her that they did not

¶264

like her and they started starving her. He came to know
about the same from the deceased whenever she met him.
He personally tried to convince all the accused as well
as deceased and this practice was continued for number
of times. He deposed that inspite of above torturous
treatment deceased resided at village Burudgaon for
about six months. All the accused in spite of his
convincing them subjected the deceased to cruelty
continuously for six months. Then accused No. 1 took
the deceased and brought her to his (P.W.1's) house.
She stayed at his house for about 8 to 10 days. Then
accused No. 1 intermittently came to his house. At that
point of time deceased ventilated her grievance before
him that accused illtreated her and they were saying her
that they did not like her. Accused No. 1 brought

¶265

37 Cri.Appeal 17-2002

¶266

deceased to his (P.W.1's) house as he did not like her.
He stated that his relatives then convinced the accused
and accused thereafter gave assurance that they would
not cause any illtreatment to the deceased. Thereafter,
accused No. 1 took deceased to Supa. At that time he was
serving in MSEB as helper. He stated that thereafter,
deceased came to his house for Rakshabandhan Festival
and she told him that accused Nos. 2 and 3
intermittently used to visit Supa and they abused her
and accused No. 1 repeatedly was saying that he did not
like her. Then accused No. 1 took her again to village
Supa.

¶267

(24)In the cross-examination P.W. 1 has stated that

¶268

all the accused were knowing to him even prior to
marriage of his daughter. The marriage of his daughter
was arranged with the help of mediators of both sides.
Accused No.1 is helper in M.S.E.B. and he is permanent.
Accused No. 3 is working as a nurse in private hospital
of Nagar since 15-16 years. The family of the accused
No.1 is consisted of his mother and sister only. Before
arrange marriage of the deceased he got himself
satisfied with the family of the accused and then he

¶269

38 Cri.Appeal 17-2002

¶270

gave invitation to them to see his daughter. Accused

¶271

No.1 had first seen his daughter, he had approved his
daughter and then talk of marriage had taken place. He
stated that, his daughter was studied upto IX Std. He
did not receive any letter of his daughter. He stated
that he has not stated before police that accused No. 1
did not like the deceased and on that count he had
brought the deceased to his house. He stated that he
has not stated to police that his relatives attempted to
convince the accused and accused assured that he would

¶272

not cause any trouble to the deceased. Thus, above
referred evidence of P.W. 1 that accused No. 1 did not
like the deceased and therefore, he had brought the
deceased to his house and that P.W. 1 and his relatives
attempted to convince the accused and accused assured
that he would not cause any trouble to the deceased is
an improvement while deposing before the Court, and it
is material omission in his statement before police.
Considering said aspect and the above referred evidence
of P.W. 1, that marriage of the deceased and accused
No.1 was arranged marriage. He was knowing the accused
prior to marriage of the deceased and only after accused
No.1 approved the deceased, talk of marriage had taken

¶273

39 Cri.Appeal 17-2002

¶274

place, the fact that accused No.1 and the deceased
started residing at Supa separately from accused No. 2
and 3 within six months of their marriage, at the place
of service of accused No.1, the uncorroborated and vague
evidence of P.W.1 is not sufficient to infer that the
accused caused cruelty to the deceased within the
meaning of cruelty defined under Section 498-A of the
IPC as they were not liking the deceased as alleged.
Therefore, it cannot be said that accused No.1 had
motive to commit murder of the deceased due to said
cruelty.

¶275

(25)Now coming to the defence of the accused, their
defence is as stated in paragraph 4 and 4A (supra).
However, at the cost of repetition their defence is that
death of the deceased is suicidal. They have not caused
cruelty to the deceased. The deceased poured kerosene
on her person and set herself on fire by closing the
door of kitchen from inside. Accused No. 1 broke open
the door and extinguished the fire and at that time he

¶276

sustained injuries to fingers of his hands. He gave
information of the same in police station and that they
have not committed any offence. False case is filed

¶277

¶278

Cri.Appeal 17-2002

¶279

against them.

¶280

(26) It has come in the evidence of Medical officer

¶281

Mr. Andhale ( Exh.59 ) a Court witness No.1 that on
02-09-2000 at 11.30 p.m., accused No. 1 had come in the
Primary Health Centre, Parner. He examined him and
found following injuries on his person :

¶282

1)Blisters and ulcer over both right and left

¶283

fingure of and palm, hand.

¶284

2) Ulceration of both libs of mouth.

¶285

And then he issued Injury Certificate (Exh.60).

¶286

Considering said injuries to both the hands and fingers

¶287

and palm of accused No.1, it can be said that he tried
to extinguish the fire of the deceased and therefore
sustained burns. If accused No. 1 had intention to kill

¶288

the deceased as alleged by the prosecution, he would not

¶289

have extinguished the fire. Moreover, Exh. 55 Khabar

¶290

lodged by accused No.1 in the police Station Parner
shows that on the day of incident i.e. 02-09-2000 at
08.30 a.m. there was quarrel between accused No. 1 and

¶291

the deceased. At that time the deceased went in the

¶292

kitchen room and closed the door from inside. He heard

¶293

the noise of the kerosene Can in her hand. He then

¶294

¶295

Cri.Appeal 17-2002

¶296

broke open the door of kitchen and the deceased was seen
inflames and she had poured kerosene on her person and

¶297

set her on fire. He removed the burning clothes on her
person. Neighbor Kurlebai had come and she worn another
sari to the deceased and the deceased sustained injury
to her stomach and chest. Moreover, it is mentioned in
the Khabar that accused No. 1 sustained burns to his

¶298

fingers of both the hands and palm. This Khabar was
given at 11.00 a.m. on 02-09-2000. From the above
evidence, it can be said that there is substance in the
defence of the accused that death of the deceased is
suicidal, and that they have caused no cruelty to her.

¶299

(27)For all the reasons discussed above, on

¶300

considering the above evidence, we hold that oral dying
declaration allegedly made by the deceased to her father
(P.W.1) and written dying declaration Exhs. 32 and 39

¶301

are not truthful, voluntary and free from any tutoring
and as such they are not reliable. Therefore, the
evidence adduced by the prosecution in the form of these
dying declarations is not sufficient to state beyond

¶302

reasonable doubt that death of the deceased is
homicidal, and accused No. 1 is responsible for her

¶303

¶304

Cri.Appeal 17-2002

¶305

death and possibility of her death being suicidal,
cannot be ruled out. So also, the evidence of P.W.1,
father of the deceased is not sufficient to infer that
accused caused cruelty to her. Therefore, we hold that
prosecution has failed to prove offence under Sections
498-A read with Section 34 of IPC against all the
accused and offence under Section 302 of IPC against
accused No.1 beyond reasonable doubt. The Trial Court
has rightly held so and rightly acquitted the accused of
the said offences by the impugned Judgment and Order.
The said view taken by the Trial Court is a reasonably
possible view. Moreover, there is no error in
appreciating the evidence by the Trial Court. Thus,
there is no justifiable ground to infer with the
impugned Judgment and Order. Therefore, appeal being
devoid of merits, the same is liable to be dismissed.
Accordingly we dismissed the same. Bail bonds, if any,
of the accused stand cancelled.

¶306

shp

The State of Maharashtra v. Atmaram Bajirao Kale and Ors.

Case brief

What is this about?

What the court decided

The State of Maharashtra v. Atmaram Bajirao Kale and Ors.

Case brief

What is this about?

What the court decided

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Cases cited

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