High Court allowed criminal appeal challenging life imprisonment for murder. Court found prosecution failed to prove dying declaration contents or motive. Held death likely suicidal. Acquitted appellant.
Impugned conviction and sentence under Section 302 IPC quashed; accused acquitted; bail bond cancelled; personal bond to be furnished.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
( 1 ) criapl198.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO.198 OF 2002
Nandu S/o. Vitthal Sonawane,
Age-30 years, Occu-Mason,
R/o.Village Pokhardi,
Tq. Nagar, Dist. Ahmednagar
..Appellant
(Ori. accused)
Versus
The State of Maharashtra
..Respondent
Mr.V.R.Dhorde, Advocate for the appellant
Mr.S.D.Ghayal, APP for the respondent/State
CORAM :T.V.NALAWADE & S.M. GAVHANE, JJ.
RESERVED ON :26.09.2017 PRONOUNCED ON :10.10.2017
J U D G M E N T [PER: S.M. GAVHANE, J]
.The appellant accused who has been convicted and
sentenced to suffer imprisonment for life and to pay fine
of Rs.10,000/- (Rupees Ten Thousand), in default, to
suffer rigorous imprisonment for two years for the
offence punishable under Section 302 of the Indian Penal
Code (for short the IPC)as per the judgment and order
dated 09.04.2002 passed by the 3rd Adhoc Additional
Sessions Judge, Ahmednagar, in Sessions Case No.196/2001
has preferred this appeal challenging said conviction and
( 2 ) criapl198.02
sentence.
2.The prosecution case as it reveals from the
police papers, is as under:-
A]The deceased Kavita was daughter of PW-4 Baban
Harer resident of Dehare, Tq. & Dist. Ahmednagar. She was
married to accused five years prior to the incident and
after marriage she went to the house of the accused at
Pokhardi, Tq. & Dist. Ahmednagar for cohabitation. She
has two issues Akash and Ashwini from the wedlock with
accused.
B]While the deceased was cohabiting with accused
in the night on 27.09.2001 at 12.00 night when she was
sleeping with accused and children in the house she
sustained 96% burns. Thereupon, accused admitted her in
Civil Hospital, Ahmednagar at 02.00 am on 28.09.2001. The
Medical Officer on duty in the Hospital informed Police
Station MIDC, Ahmednagar that accused has admitted Kavita
the deceased in the hospital for medical treatment on
burn injuries. After getting the said information on
telephone the concerned police constable took entry in
the station diary at 02.05 hours. The Police Station
Officer directed Head Constable Avahad to make necessary
arrangement for recording the dying declaration (for
( 3 ) criapl198.02
short the D.D.) of patient Kavia and to make further
enquiry. HC Avahad recorded statement of injured Kavita
at 9.15 am on the same day.
C]The Police Head Constable Avahad then went to
the spot of incident i.e. the house of the accused on
28.09.2001 and prepared panchanama of spot of incident
between 10.00 to 10.55 am in presence of panchas Popat
Ramchandra Kale (PW-3) and Balasaheb Ambadas Warule. He
seized two golden beads, burnt piece of saree, one piece
of white burnt petticoat, ash of the clothes, a piece of
bangle, one iron stove and glass-lantern with kerosene
from the spot of incident under same panchanama.
D]Police Head Constable Avahad also issued letter
to the Special Judicial Magistrate on 28.09.2001
informing him that deceased Kavita is admitted in Civil
Hospital, Ahmednagar in injured condition and requesting
him to come and record the D.D.. After receiving the said
letter Special Judicial Magistrate, Ahmednagar (PW-2)
requested Medical Officer Dr. Swati Naik (PW-7) to
examine the patient and verify whether the patient is
conscious and able to give statement. Both Pws.2 and 7
went to the burns ward and Medical Officer Dr. Swati Naik
(PW-7) examined the patient and made endorsement that
patient was conscious, co-operative and well oriented and
able to give statement. Thereafter, the Special Judicial
Magistrate (PW-2) recorded D.D. (Exh.20) of Kavita the
deceased which runs as under:
“She stated that her marriage was performed with accused prior to five years. She is having two children. There used to be quarrel between her and husband. Her husband is having relation with one Alka Barawkar, there was quarrel on that count. Incident took place yesterday in the night of 12.00 hours. While she was asleep, her husband poured kerosene and set her on fire. She shouted and her husband extinguished the fire by putting blanket ( jx ). Her husband brought her in the hospital. She had stated earlier about quarrel to her parents. They did nothing. She, her husband and her children are in the house. At that time children were sleeping. It is stated that she held her husband responsible for the said incident”.
E.After recording D.D. as above PW-2 had delivered
it to the MIDC Police Station and on the basis of said
D.D. Crime No.118/2001 for the offence punishable under
Section 307 of the IPC came to be registered in MIDC
Police Station on 28.09.2001 at 13.05 hours. The victim
Kavita died in the hospital on 28.09.2001 at 03.15 pm
( 5 ) criapl198.02
while taking treatment. Therefore, offence under Section
302 of the IPC was added in the crime initially
registered in the police station. The intimation in this
respect was given to the JMFC, Ahmednagar. The Police
Head Constable Shelke then recorded the inquest
panchanama of the dead body between 17.20 to 18.05 hours
on the same day. Dead body was referred for postmortem
examination. The Medical Officer Dr. Patil (PW-5) and Dr.
Swati Naik (PW-7) conducted postmortem examination in the
evening and issued postmortem report (Exh.25). It was
opined that probable cause of death was due to
hypothalamus struck due to 96% of superficial and deep
burn. Further investigation was carried by the
Investigating Officer API Patil (PW-8). He recorded
statements of witnesses and sent seized articles to the
Chemical Analyzer for analysis. Accused was arrested on
28.09.2001 and he was got medical examined as he
sustained 5% superficial burns to both the hands and
doctor issued certificate. He was in jail during trial.
API Patil collected the report of the Chemical Analyzer.
F.After completion of the investigation charge-
sheet was submitted in the Court of JMFC, Ahmednagar, who
committed the case to the Sessions Court, Ahmednagar as
offence under Section 302 of the IPC was exclusively
triable by the Sessions Court. Then the case was assigned
( 6 ) criapl198.02
to the 3rd Adhoc Additional Sessions Judge, Ahmednagar.
G]The charge was framed against the accused for
the offence punishable under Section 302 of the IPC, to
which accused pleaded not guilty and claimed to be tried.
His defence is denial. No defence witness has been
examined by the accused. It appears that according to
accused death of the deceased was suicidal.
H]To prove guilt of the accused the prosecution
examined in all eight witnesses and mainly relied upon
the panchanama (Exh.22) of spot of incident, Chemical
Analyzer's report and D.D. (Exh.20).
I]On considering the evidence adduced by the
prosecution learned trial Court held that the prosecution
has proved offence under Section 302 of the IPC against
the accused and sentenced him as referred earlier in
introductory para (supra) of this judgment, which is
under challenge in this appeal by the appellant/accused.
J]By order dated 16.09.2002 impugned order of
sentence has been suspended during pendency of the appeal
and the accused was released on bail.
3.We have heard learned Advocate for the
( 7 ) criapl198.02
appellant/accused and learned APP appearing for the
respondent/State and with their able assistance we have
perused the evidence adduced by the prosecution and the
impugned judgment and order.
4.Learned Advocate appearing for accused submitted
that only the evidence relied upon by the prosecution is
D.D. (Exh.20) recorded by Special Judicial Magistrate
(PW-2) in presence of PW-7 Dr. Swati Naik. There is no
dispute that deceased sustained 96% burns. As per
evidence of PW-2 Special Judicial Magistrate he obtained
thumb impression of the left hand of the deceased on the
D.D. while as per the evidence of PW-7 Dr. Swati
impression of left great toe of the deceased was obtained
on the D.D.. The evidence on record shows that both the
hands and legs of the deceased were burnt. Therefore,
according to the learned Advocate it was not possible to
obtain either toe impression of left leg or thumb
impression of left hand of the deceased on the D.D..
Moreover, there is inconsistency in the evidence of PW-2
and PW-7 in respect of thumb impression of left hand or
toe impression of the deceased on the D.D. (Exh.20).
According to learned Advocate it has also come on record
that relatives of the deceased were present and
therefore, according to him there is possibility of
tutoring the deceased at the time of D.D. (Exh.20). It
( 8 ) criapl198.02
is, thus, submitted that D.D. (Exh.20) is not genuine
reliable and trustworthy to hold accused guilty. Learned
Advocate also submits that admittedly accused sustained
5% burns to his both the hands and he admitted deceased
at 02.00 am on 28.09.2001 in the Civil Hospital,
Ahmednagar. According to him had it been the case that
the accused had intention or motive to commit murder of
the deceased he would not have extinguished the fire and
he would not have admitted the deceased in the injured
condition in the hospital. This conduct of the accused
shows that he is innocent and has not committed any
offence. Moreover, it is submitted that neighbor of
accused is not examined by the prosecution. It is
submitted that PW-4 father of the deceased has not
supported the prosecution case and he deposed about
suicidal death of the deceased. Lastly, it is submitted
that the prosecution has failed to prove offence under
Section 302 of the IPC beyond reasonable doubt against
the accused and therefore, conviction and sentence
recorded against accused for the said offence by the
impugned judgment is liable to be set aside by allowing
the appeal.
5.On the other hand learned APP for the
respondent/State submits that the evidence whatever
adduced by the prosecution is sufficient to hold the
accused guilty for the murder of his wife the deceased
and thus supported the impugned judgment and order.
6. At the out set, it is necessary to refer some admitted facts before considering the aspect whether death of the deceased is homicidal and the accused is responsible for her death. The said facts are that the deceased was married to accused prior to five years of the incident. She had one son and one daughter. At the material time of the incident, in the night on 27.09.2001 she was in the house with her husband accused and children. She sustained 96% burns at about 12.00 night. Accused extinguished the fire by putting blanket ( jx ) on her person. He sustained 5% burns to his both the hands. Immediately he had taken the deceased in the Civil Hospital, Ahmednagar at 02.00 am on 28.09.2001 for treatment and admitted her in hospital. The deceased scummed to burn injuries on 28.09.2001 in the hospital at about 03.15 pm. The cause of death given by Dr. Patil who conducted postmortem examination of the deceased is “due to hypothalamus struck due to 96% of superficial and deep burn.”
7.As per the case of the prosecution in the night
on 27.09.2001 accused poured kerosene on the person of
the deceased and set her on fire and as such death of the
( 10 ) criapl198.02
deceased was homicidal and as it appears from cross-
examination of Investigating Officer API Patil (PW-8) it
was suggested that it was transpired in the investigation
that the deceased Kavita put herself on fire and as such
she committed suicide. Thus, as per defence case death of
the deceased was suicidal. To prove that death of the
deceased was homicidal and accused was responsible to her
death the prosecution has relied upon the following
evidence and circumstances.
i.Dying declaration (Exh.20)
ii.Spot of panchanama (Exh.22) and C.A. Report
(Exh.31).
iii.Motive to the accused to cause death of the
deceased.
iv.Defence of accused.
8.The D.D. (Exh.20) was recorded by the Special
Judicial Magistrate-Ramchandra Dimble (PW-2) on
28.09.2001 in presence of Dr.Swati Naik (PW-7) in the
Civil Hospital, Ahmednagar. As regards recording of the
said D.D. PW-2 has stated that he asked some questions to
the patient for his satisfaction whether she can give the
statement consistently. He stated that he introduced
himself to the patient as a Special Judicial Magistrate
and asked her to depose the true incident what she wants
( 11 ) criapl198.02
to say. He deposed that the patient then narrated
incident took place and he reduced into writing the same
in his hand writing and after recording the statement he
read over the same to the patient and asked her whether
it is recorded as stated by her. So also, besides
examining the patient to ascertain her position to make
statement Dr. Swati Naik (PW-7) has stated that in her
presence the Magistrate asked some questions to the girl.
The girl stated the incident and the Magistrate reduced
into writing the said information. After recording of the
D.D. she again examined the patient. At that time the
patient was sound and accordingly she put her endorsement
and signed below the endorsement. Both PW-2 and PW-7 have
not stated about the contents of D.D. (Exh.20). PW-2 has
merely stated that he recorded D.D. as narrated by the
patient and PW-7 has simply stated that PW-2 recorded
D.D. as narrated by deceased. Therefore, it cannot be
said that prosecution has proved the contents of D.D.
(Exh.20). Hence said dying declaration cannot be taken
into consideration and as such we hold that the
prosecution has failed to prove D.D. (Exh.20). This
conclusion is based on the ratio laid down by the
Division Bench of this Court in the case of Sk. Bibal @
Chunnu Shaikh Nizam Vs State of Maharashtra reported in
2010 ALL MR (Cri) 779 wherein it was held that merely
stating that dying declaration was recorded as per the
narration of the injured would not amount to proving the
contents of the dying declaration and that the
prosecution has failed to prove two D.D. (Exh.24 & 52).
9.Assuming for the sake of argument that D.D.(Exh.
20) can be considered, let us consider whether the
prosecution has proved that D.D. (Exh.20) is truthful,
voluntary and free from any tutoring and that it is
reliable. PW-2 Special Judicial Magistrate deposed that
on 28.09.2001 he received requisition letter from
Tofkhana Police Station at 10.50 am. As per said letter,
he went to Civil Hospital, Ahmednagar on the same day at
11.20 am. He met the Medical Officer on duty and
requested her to examine patient Kavita to verify whether
she is conscious and in a position to give statement. He
stated that he and the doctor reached in the burns ward
in the hospital. He directed the persons present there to
remove from the ward except patient. Doctor examined the
patient Kavita in his presence and put endorsement that
she is in a position to talk and handed over the paper to
him. Though he has been cross-examined at length on the
condition of the patient nothing is found in favour of
the accused. So also, doctor Swati Naik (PW-7) who was
Medical Officer in the Civil Hospital at the relevant
time has stated that on 28.09.2000 she was on casualty
Medical Officer duty. Kavita was indoor patient in burns
( 13 ) criapl198.02
ward. The Magistrate had approached her for recording her
D.D. The Magistrate asked her to examine the patient and
verify whether she is in a position to give statement.
Accordingly she and the Magistrate reached in the burns
ward near the patient. She examined her. She asked some
questions and she gave reply properly. She also examined
her pulse, B.P. and noticed that she was in a position to
give statement. She stated that accordingly she put
endorsement on the paper which was supplied to her by the
Magistrate and below the endorsement she put her
signature. She too has been cross-examined at length on
behalf of the accused on the aspect of condition of
patient to give statement but nothing has been found in
favour of the accused. Exh.20 D.D. also shows that prior
to recording the same PW-7 Doctor made endorsement that
patient is conscious, co-operative well oriented etc at
11.30 on 28.09.2001, on the top of the D.D. and at the
bottom of the D.D. also said doctor made endorsement that
statement completed, patient is conscious co-operative
and well oriented etc.. It also appears that below both
the endorsements PW-7 Dr.Swati Naik has put her
signatures. It has come on record that deceased died on
28.09.2001 at 15.15 pm i.e. 03.15 pm. Therefore, on
considering the evidence of both PW-2 and PW-7 we hold
that patient Kavita/ the deceased was in a position to
make statement on 28.09.2001 when D.D. (Exh.20) was
recorded between 11.30 to 11.55 am.
10.As referred earlier both the PW-2 and PW-7 have
not stated about the actual contents of D.D. and as such
prosecution has failed to prove the contents of D.D..
Therefore, it cannot be said as alleged in the D.D. that
in the night at 12.00 hours on 27.09.2001 accused poured
kerosene on the person of the deceased and set her on
fire. It has come in the evidence of PW-2 Special
Judicial Magistrate that he obtained thumb impression of
left hand of patient on the statement and put the time
when it was completed and he also signed it. Whereas
Dr.Swati Naik (PW-7) in whose presence D.D. was recorded
has stated that on Exh.20 D.D. it is mentioned that it
bears the impression of her (deceased) left leg. She
stated that she thinks so that it is the impression of
her left great toe. The D.D. (Exh.20) also shows the
endorsement at the bottom that there is a impression of
left leg toe of Kavita the deceased. Thus, there is a
inconsistency in the evidence of PW-2 and PW-7 regarding
thumb impression of deceased below the D.D. (Exh.20). So
also there is inconsistency in the evidence of PW-2
regarding obtaining thumb impression of deceased below
the D.D. and in the endorsement below the D.D. that said
impression is of left leg toe. Therefore, it is doubtful
whether really D.D. (Exh.20) was recorded in presence of
( 15 ) criapl198.02
PW-7 and it is voluntary statement of the deceased. The
trial Court observed about the said variance in the
evidence of PW-2 and PW-7 in paragraph No.30 of the
judgment but held that said fact itself is not sufficient
to reject the recitals of the dying declaration which
inspires confidence placing reliance upon the ratio laid
down in the case of Chandra Narayan Vs Shibjee Yadav
reported in 2000(1)Crimes 34 SC relied upon by the
learned DGP. We have gone through the facts and the ratio
laid down in the said decision. The ratio laid down in
the said decision is not in respect of variance or the
inconsistency in the evidence of the witness who recorded
the dying declaration and doctor in whose presence the
same has been recorded as observed above in the present
case. In the circumstances present in that case it was
held that D.D. which was recorded in presence of doctor
who opined that deceased was in a fit condition to make
statement was voluntary and truthful one. Therefore,
observation of the trial Court in respect of
inconsistency in the evidence of PW-2 and PW-7 in respect
of left leg toe impression on D.D. (Exh.20) is not
correct. In the above circumstances when prosecution has
not proved contents of D.D.(Exh.20) and there is
inconsistency in the evidence of PW-2 and PW-7 in respect
of left leg toe impression below the said D.D. it cannot
be said that D.D. (Exh.20) is voluntary, truthful and
( 16 ) criapl198.02
reliable.
11.Another aspect to be noted is that as referred
earlier the prosecution case is that on 28.09.2001 in the
morning at 09.15 am Head Constable Avahad went in the
Civil Hospital, Ahmednagar and recorded statement of the
deceased in presence of doctor PW-7 and said statement
is included in the case paper. However, API Patil (PW-8)
has denied suggestion to him that Head Constable recorded
statement in morning prior to 09.00 am after reaching the
parents of the girl and Magistrate has recorded the D.D..
API Patil however, stated that at the time of filing the
charge-sheet he read the statements recorded by the
Magistrate and Avahad. He denied that there appears to be
controversy between the statement recorded by Magistrate
and Head Constable Avahad. He could not tell whether in
the statement recorded by Head Constable Avahad it is
stated by the victim that incident took place before the
deceased went to sleep. He has denied that from the said
statement it was transpired that Kavita/deceased put
herself on fire. There is a statement dated 28.09.2001 of
the deceased and it was recorded at 09.15 am. i.e. before
D.D.(Exh.20) and there are endorsements of the doctor on
it. Said statement is of course not proved by the
prosecution or the accused. Therefore, it cannot be
considered and read in evidence. If it is considered for
the sake of argument, it shows that accused poured
kerosene on the person of the deceased. The deceased was
annoyed and set herself on fire by lighting matchstick.
This does not show involvement of the accused in setting
the deceased on fire. In fact, prosecution should have
proved this statement of the deceased and should have
explained as to under what circumstances said statement
was given by the deceased. Therefore, even if API Patil
Investigating Officer has denied recording of above
statement by Head Constable Avahad and subsequently
admits that he had seen the said statement, the fact
remains that prosecution has not brought true facts of
its case before the Court which creates doubt about
genuineness of D.D. (Exh.20).
12.The trial Court did not consider statement of
deceased recorded by Head Constable Avahad and did not
attach importance to said statement as it was not proved
as observed in Paragraph Nos. 39 and 40 of the judgment.
But the said observations are not correct in the
circumstances present in this case because the fact
remains that the prosecution has not brought true facts
before the Court by suppressing statement of deceased
recorded by H.C. Avahad.
13.The evidence of PW-4 father of the deceased who
has not supported the prosecution case shows that after
knowing the incident of sustaining burns by the deceased,
he went to Civil Hospital, Ahmednagar with his sister at
06.00 am. At that time the deceased was alive. He saw the
deceased. He asked the deceased how the incident took
place and the deceased informed him that she put herself
on fire after pouring kerosene on her by herself. So
also, she told him that some trifle quarrel took place
between her and her husband. The above evidence of PW-4
is in the form of oral dying declaration to PW-4 by the
deceased earlier in time on 28.09.2001 when he went to
Hospital immediately after deceased sustained burns. This
also creates a doubt about the genuineness of D.D.(Exh.
20) which was recorded after oral D.D. to PW-4.
14.Exh.22 is the panchanama of spot of incident.
PW-3 Panch Popat Kale has stated about preparing this
panchanama between 10.30 to 10.45 am and seizure of one
burnt piece of Saree, one piece of white burnt petticoat,
Ash of the clothes, one piece of burnt blouse, one iron
stove and one glass lantern under said panchanama. In the
cross-examination he stated that first he was called in
MIDC Police Station. He admitted that the articles were
shown to him in the MIDC Police Station. So also,
panchanama was shown to him in the police station and
police obtained his signature thereon and on many other
( 19 ) criapl198.02
papers. He stated that when he signed in police station,
the another pancha was not present. So also, he stated
that he did not visit the village Pokhardi spot of
incident and that he does not know as to how and from
where the articles which were shown to him were
collected. In the above circumstances the evidence of
PW-3 is not believable to hold that really police seized
above said articles in presence of these panchas from the
spot of incident i.e. house of the accused and then
panchanama was prepared. Panchanama shows that this
panchanama was prepared by Police Head Constable Avahad
and he called three panchas in front of house of the
accused at Pokhardi. Admittedly, the prosecution has not
examined other panchas and Head Constable Avahad. When
evidence of PW-3 pancha is not sufficient to state that
prosecution has proved panchanama (Exh.22) and seizure of
articles under said panchanama the prosecution should
have examined Police Head Constable Avahad. Therefore, we
hold that prosecution has not proved the panchanama (Exh.
22) and seizure of articles from the spot of incident as
alleged.
15.Once it is hold that the prosecution has failed
to prove spot panchanama and seizure of articles as above
the evidence in the form of Chemical Analyzer's report
(Exh.31) regarding analysis of said articles is of no
( 20 ) criapl198.02
help to the prosecution. Therefore, even if C.A. Report
(Exh.31) shows that kerosene residues were found on
articles 2 to 4 i.e. partially burnt saree, partially
burnt petticoat, and partially burnt clothes pieces, it
cannot be said that said kerosene residues were found on
the said clothes of the deceased as the accused poured
kerosene on the person of the deceased. Even if for the
sake of argument it is accepted that kerosene residues
were found on the clothes of the deceased as mentioned in
the C.A. Report (Exh.31) the finding of said kerosene
residues will be of no consequence because it has come in
the evidence of PW-4 father of deceased that the deceased
poured kerosene on her person and set herself on fire as
she disclosed the same to him when she was admitted in
the hospital. Thus, spot panchanama and C.A. Report (Exh.
31) are of no assistance to the prosecution to prove that
the death of the deceased was homicidal.
16.As regards motive to the accused to commit
murder of his wife the prosecution case is that accused
was having illicit relation with Alka Barawkar and on
that count frequently there used to be quarrel between
accused and the deceased. As said earlier the contents of
the D.D. (Exh.20) in this respect are not proved. So
also, PW-2 Special Judicial Magistrate who recorded above
D.D. and PW-7 Dr. Swati Naik in whose presence said D.D.
( 21 ) criapl198.02
was recorded have not stated that the deceased in the
course of recording D.D. (Exh.20) stated that her husband
the accused was having illicit relation with Alka
Barawkar and therefore there used to be quarrel between
her and the accused. PW-4 father of the deceased has
stated that his daughter never informed him that her
husband is having illicit relation with one girl i.e.
Alka Barawkar. In the course of his cross-examination on
behalf of Public Prosecutor he stated that it did not
happen that his daughter the deceased told him that her
husband is having illicit relation with Alka Barawkar and
therefore, he (accused) was not paying attention in the
house. Moreover, he stated that it did not happen that
his daughter the deceased told him that her husband was
saying her that she should talk with Alka Barawkar and go
alongwith her and therefore, there used to be quarrel
between her and her husband. Moreover, he stated that it
did not happen he gave understanding to his son-in-law
accused. He denied portion marked 'B' in respect of above
facts in his statement before police saying that the same
is incorrect. Said portion marked has been proved by the
Investigating Officer PW-8 as Exh.30. However, as PW-4
has denied truth of said portion Exh.30 it cannot be said
that deceased had told her father PW-4 about illicit
relation of the accused with Alka Barawkar and that
therefore he was not paying attention in the house.
( 22 ) criapl198.02
Therefore, evidence of PW-4 referred to above is of no
help to the prosecution to prove alleged motive to the
accused to commit murder of his wife the deceased. During
investigation statement of Alka Barawkar and her husband
were recorded by the Investigating Officer. But
admittedly they have not been examined by the
prosecution. If the prosecution would have examined them
they would have thrown light on the above aspect.
17. Admittedly accused extinguished the fire by
putting blanket on the person of the deceased and
sustained 5% burns to his both the hands as per
certificate Exh.13 and admitted the deceased in the
hospital at 02.00 am on 28.09.2001. Had it been the case
that the accused had intention to commit murder of the
deceased as allegedly he was having illicit relation with
one Alka Barawkar, he would not have extinguished the
fire and would not have admitted the deceased in injured
condition in the hospital in the night immediately after
she sustained burns. Therefore, the above conduct of the
accused shows that he had no alleged motive to commit the
murder of the deceased.
18.For the above reasons we hold that the
prosecution has failed to prove the motive as above
attributed to the accused in committing the murder of the
( 23 ) criapl198.02
deceased, which is significant in the case of present
nature when there is no direct evidence showing
involvement of the accused and case is based on D.D. and
circumstantial evidence referred earlier.
19.Now coming to the defence of the accused, in his
statement under Section 313 of the Code of Criminal
Procedure he has stated that the parents of Kaviata
(deceased) tutored her. Kavita the deceased gave false
statement on the say of her parents and police. The
attempt is made to involve him in the case. He has not
specifically stated that whether the deceased sustained
burns accidentally or she committed suicide. As referred
earlier it has come in the evidence of PW-4 father of the
deceased that when she was admitted in the hospital in
injured condition he met her and at that time she
disclosed that she put herself on fire after pouring
kerosene on her person by herself. So also, it was
suggested to PW-8 the Investigating Officer that it was
transpired that Kavita the deceased put herself on fire.
Thus, it appears that defence of the accused is that
death of the deceased was suicidal. It is settled law
that accused is not supposed to prove its defence beyond
reasonable doubt and what he or she has to do is to bring
on record preponderance of probability of the defence. If
we consider the evidence of PW-4 father of the deceased
( 24 ) criapl198.02
referred to above in respect of oral dying declaration
made to him by the deceased that she herself poured
kerosene on her person and set her on fire and finding of
kerosene residues on the clothes i.e. articles 2 to 4 of
the deceased as per C.A. Report (Exh.31) the accused has
brought probability on record that the death of the
deceased was suicidal. As such there is substance in the
defence version of the accused.
20.For the reasons discussed here in above we hold
that the prosecution has failed to prove beyond
reasonable doubt that death of the deceased was homicidal
and that the accused is responsible for her death by
causing 96% burns to her which resulted into her death.
Therefore, findings recorded by the trial Court relying
upon D.D. (Exh.20) that death of the deceased was
homicidal and that accused has caused death of the
deceased by causing burns to her by pouring kerosene on
her person and setting her on fire and holding the
accused guilty for the offence under Section 302 of the
IPC are incorrect, unsustainable and not in accordance
with the evidence adduced by the prosecution. Naturally,
therefore, impugned judgment and order passed by the
trial Court convicting and sentencing the accused for the
offence punishable under Section 302 of the IPC is liable
to be quashed and set aside and accused is entitled to be
acquitted of the said offence by giving benefit of doubt
by allowing the appeal. In the result, we pass the
following order.
ORDER
I]The appeal is allowed.
II]The impugned judgment and order dated
09.04.2002 passed by the 3rd Adhoc Additional
Sessions Judge, Ahmednagar in Sessions Case No.
196/2001 convicting and sentencing accused Nandu
Vitthal Sonawane for the offence punishable
under Sections 302 of the IPC is quashed and set
aside and he is acquitted of the said offence.
III]The fine amount, if any, deposited by
the accused shall be refunded to him.
IV]His bail bond stands canceled.
V]Appellant-accusedshallfurnish
personal bond in the sum of Rs.15,000/- with
surety in like amount as per Section 437-A of
the Code of Criminal Procedure before the trial
Court forthwith.
[S.M. GAVHANE, J.]
VishalK/ criapl198.02
3 issues framed by the court
Whether the dying declaration is sufficiently proved in its contents and circumstances to support the prosecution case.
Whether the prosecution has established beyond reasonable doubt that the death was homicidal and not suicidal.
Whether the accused should be acquitted given the failure of the prosecution to prove its case.
Colour shows how this judgement treated each authority
Sk. Bibal @ Chunnu Shaikh Nizam Vs State of MaharashtraExplained¶55
2010 ALL MR (Cri) 779
Chandra Narayan Vs Shibjee YadavRelied on¶62
2000(1)Crimes 34 SC
2 provisions across 2 enactments
Nandu S/o. Vitthal Sonawane
The State of Maharashtra
S.M. Gavhane
T.V. Nalawade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court