Allowed

Rukhmanbai Bhogade v. State of Maharashtra

Bombay HC10 Oct 2017APEAL/215/2001

Case brief

AI extract

What is this about?

Appeal by a mother-in-law convicted under Sections 302 and 498-A IPC for the burn death of her daughter-in-law. The court held the two written dying declarations and the oral dying declaration inconsistent on the mode of setting the deceased on fire and on cruelty, doubted that the deceased was fit to make the statements, found the stove-burst possibility not ruled out, and acquitted the appellant

What did the court decide?

Appeal allowed; the conviction and sentence dated 09.05.2001 in Sessions Case No.111/1997 under Sections 302 and 498-A IPC quashed and set aside and the appellant acquitted; fine, if deposited, to be

Rukhmanbai Bhogade Vs State of Maharashtra — Dowry and Cruelty | Bombay HC (2017)

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( 1 ) criapl215.01

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO.215 OF 2001

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Rukhmanbai W/o. Waman Bhogade..Appellant
Age-55 years, Occu-House-hold(Ori. Accused
R/o. Bidkin, Tq. Paithan, No.1)
Dist.Aurangabad

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Versus

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The State of Maharashtra

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..Respondent
 (Ori. Complainant)

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Mr.N.T.Tribhuwan, Advocate for the appellant
Mr.R.V.Dasalkar, APP for the respondent/State

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

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RESERVED ON :08.09.2017

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PRONOUNCED ON :10.10.2017

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J U D G M E N T [PER:S.M. GAVHANE, J.]

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.Appellant-original accused No.1 mother-in-law of
the deceased Dropadabai who is convicted and sentenced to
suffer imprisonment for life and to pay fine of Rs.
1000/-, in default, to suffer simple imprisonment for one
year for the offence punishable under Section 302 of the
Indian Penal Code (for short the IPC) and further
convicted and sentenced to suffer rigorous imprisonment
for two years and to pay fine of Rs.200/-, in default to

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( 2 ) criapl215.01

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suffer simple imprisonment for two months for the offence
punishable under Section 498-A of the IPC and the said
substantive sentences were directed to run concurrently,
by the judgment and order dated 09.05.2001, in Sessions
Case No.111/1997, passed by the Additional Sessions
Judge, Aurangabad, has challenged the said conviction and
sentence.

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2.Facts of the prosecution case, are as under:-

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A]Mahadu Pansare (PW-4) is the father of the
deceased. Deceased was married to accused No.3 three
years prior to the incident. Accused No.2 is sister-in-
law of the deceased. PW-4 and all accused are residents'
of Bidkin, Tq. Paithan, Dist. Aurangabad. After marriage
of the deceased everything was happy for about three
years.

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B]While the deceased was cohabiting with her
husband accused No.3 at her in-laws house on 25.08.1996
at 09.00 am she sustained 85% burns. She herself
extinguished the fire with water. The neighborers came to
the spot of incident. They had called accused No.3. He
and three others admitted deceased Dropadabai in injured
condition in Sumananjali Hospital, Khadkeshwar,
Aurangabad at about 11.00 am. On the same day, in the

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( 3 ) criapl215.01

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night Medical Officer Dr. Vinod Dhamande informed the
same to the Police Inspector of City Chowk Police
Station, Aurangabad. Thereupon, entry to that effect was
taken in the station diary regarding Medico Legal Case
and the Head-Constable Joshi was given the investigation
of the same. Treatment was started on the injured in the
aforesaid hospital.

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C]On 26.08.1996 while the deceased was being
treated in Sumananjali Hospital, Aurangabad the Police
Head-Constable of City Chowk Police Station, Aurangabad
requested the Special Executive Magistrate to record the
statement of Dropadabai. Accordingly the Special
Executive Magistrate Bombale (PW-5) went to Sumananjali
Hospital and recorded dying declaration (Exh.28) of the
deceased on 26.08.1996 between 12.40 to 01.05 pm, after
she was examined by Dr. Sanjay Patne (PW-6) and after he
made endorsement on letter (Exh.33) addressed to the
Medical Officer, Sumananjali Hospital that patient is fit
to give statement, alleging that on 25.08.1996 at about
09.00 am she was inserting the string of her petticoat.
She had quarreled with her mother-in-law since 2-3 days.
Her mother-in-law/accused No.1 abused her saying that her
parents have cheated her and her son i.e. accused No.3
and that her character is not good. On saying so, her
mother-in-law assaulted her and poured kerosene in the

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( 4 ) criapl215.01

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can on her person and set her on fire by lighting the
matchstick. They both were in the house. Thereafter, she
came running outside the house and extinguished the fire
with water in the bucket on pouring the water on her
person. Meanwhile, neighborers Kadubai, Reubai Narayan
Bogade and Kachru Bogade came there. At that time her
husband accused No.3 had gone on the cart. Somebody had
called him. He, Bhausaheb Thote and Kailas Jadhav
admitted her in the Sumananjali Hospital, Aurangabad.

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D]Thereafter, on the same day i.e. on 26.08.1996
while the deceased was in Sumananjali Hospital the Head-
Constable Joshi (PW-2) recorded statement/dying
declaration (Exh.20) of the deceased at about 06.00 pm
after ascertaining about health of the deceased from the
Medical Officer (PW-6) in the said hospital, stating that
she was married to accused No.3 four years prior to the
incident. She has no issue. She resides with all the
accused. After the marriage she was treated properly for
5-6 months by her mother-in-law. Thereafter as she has no
issue and for bringing Rs.5000/- from her parental house
for purchasing the jeep her mother-in-law, sister-in-law
and the husband frequently started harassing, abusing and
beating her. She narrated the same to her father Madhav
Pansare (PW-4) 2 to 3 times and he convinced her and
people from her in-laws house but people from her in-laws

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( 5 ) criapl215.01

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house did not listen and again continued to harass her.
It was alleged that on 25.09.1996 at about 09.00 hours
there was quarrel between her and mother-in-law on the
ground that she used string of petticoat of mother-in-law
to her petticoat, on the ground of dowry amount, that she
had no issue and her mother-in-law on abusing and beating
her, while she was in the house poured kerosene on her
person and set her on fire by putting burning paper on
her person. Therefore, she sustained injuries to both the
hands, stomach and back.

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E]Dying declaration (Exh.20) recorded by HC Joshi
(PW-2) was sent to Police Station Bidkin and on the basis
of the same Crime No.75/1996 was registered against
accused for the offences punishable under Sections 498-A,
307 r/w Section 34 of the IPC and PSI Mhaisekar (PW-7)
started investigation. In the night of 26.08.1996 the
deceased was transferred for further management to the
Government Medical College and Hospital, Aurangabad at
08.00 pm. She succumbed to burn injuries on 31.08.1996 at
17.35 hours. PSI Mhaisekar prepared inquest panchanama
(Exh.35). Dr. Bhalchandra (PW-1) conducted postmortem
examination on the dead body. He opined that death was
caused on account of 85% burns due to septicemic shock
alongwith injuries found on the right parietal region and
issued postmortem report (Exh.17). PSI Mhaisekar recorded

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( 6 ) criapl215.01

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the statements of witnesses including statement of PW-4
father of the deceased to whom the deceased made oral
dying declaration about involvement of all accused in the
commission of offence. Panchanama (Exh.23) of spot of
incident was prepared.

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F]After completion of the investigation PSI
Mhaisekar submitted the charge-sheet in the Court of
JMFC, Paithan, who then committed the case to the
Sessions Court, Aurangabad, which was then allotted to
Additional Sessions Judge, Aurangabad for trial.

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G]The charge was framed against all the three
accused for the offence punishable under Section 498-A
r/w Section 34 of the IPC and against accused No.1 for
the offence under Section 302 of the IPC. Accused pleaded
not guilty to the charge. Accused No.1 in her statement
under Section 313 of the Code of Criminal Procedure
stated that deceased was mentally affected. Deceased
started stove. Deceased caught fire due to stove. She
poured water on deceased and extinguished the fire.
Deceased had given false statement. Deceased was taken to
Jamkhed to cure her mental illness. No witness in defence
is examined by the accused.

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H]

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In all seven witnesses were examined by the

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prosecution and it has relied on written dying
declarations (Exh.20 and 28) and oral dying declaration
made to PW-4 her father by the deceased. Considering the
evidence of the prosecution the trial Court has convicted
and sentenced accused No.1 for the offences under
Sections 498-A and 302 of the IPC as mentioned in the
introductory para (supra) and acquitted accused Nos. 2
and 3 of the offence under Section 498-A of the IPC by
the impugned judgment. Therefore, this appeal by accused
No.1 challenging the conviction and sentence recorded
against her.

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3.Learned counsel appearing for the appellant
submits that there is no consistency in the written dying
declarations (Exh.20 & 28) and oral dying declaration
made by the deceased to her father (PW-4) and therefore,
impugned conviction and sentence recorded against the
appellant is liable to be set aside by allowing the
appeal and prayed to acquit the appellant/accused No.1 of
the offences for which she has been convicted.

¶36

4.Learned APP appearing for the respondent/State
submits that the trial Court has rightly convicted and
sentenced the appellant/accused No.1 and claimed to
dismiss the appeal.

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( 8 ) criapl215.01

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5.We have carefully considered the submissions of
learned Advocate appearing for the appellant/accused No.1
and the learned APP and with their able assistance we
have perused the evidence adduced by the prosecution and
impugned judgment and order.

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6.There is no dispute that deceased was married to
accused No.3 four years prior to the incident on
25.08.1996. After marriage she went to the house of the
accused for cohabitation. While deceased was at the house
of accused she sustained 85% burns on 25.08.1996 at about
09.00 to 10.00 am and she died due to burns on 31.08.1996
while under going treatment in the Government Medical
College and Hospital, Aurangabad at 17.35 hours.

¶40

7.Considering the fact that death of the deceased
was caused due to burns, the defence of accused No.1 that
the deceased started stove at the material time of
incident and caught fire and the allegations of the
prosecution against accused No.1 that she poured kerosene
on the deceased and set her on fire, it is necessary to
see whether death of the deceased is accidental or
homicidal and that accused No.1 is responsible to her
death. To prove these facts prosecution has relied upon
the evidence of following categories.

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i.Written dying declarations(Exh.28& 20)

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( 9 ) criapl215.01

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ii.Oral dying declaration made by the
deceased to her father (PW-4) and his
evidence regarding cruelty to
deceased.

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iii.Motive to accused No.1 to commit
murder of the deceased.

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8.Since the prosecution has relied upon multiple
dying declarations referred to above at the out set it is
necessary to refer law laid down by the Hon'ble Supreme
Court and this Court in the following decisions on
appreciation of dying declaration:

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a.In the case ofJand Another Vs State
of Maharashtra (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 and assessed independently on its
own merit as to its evidentiary value and one
cannot be rejected solely because of certain
variations in another declaration.

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b.In the case of Anwar Shah Babu Shah
Fair and others Vs The State of Maharashtra 2012
ALL MR (Cri) Bombay High Court 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

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( 10 ) criapl215.01

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safely accepted and relied upon and other dying
declaration can be discarded.

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c.In the case of Sudhakar Vs State of
Madhya Pradesh (2012) 7 Supreme Court Cases 569,
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 would be
to first examine which dying declaration is
corroborated by other prosecution evidence.
Moreover, attendant circumstances, condition of
deceased at the time of making of each statement
concerned, medical evidence, voluntariness and
genuineness of Statement 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.

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d. In the case of Rajkumar Shivnath Yadav Vs Union Territory of Daman & Diu and another 2016 ALL MR (Cri) Bombay High Court 392, it was held that endorsement of doctor on dying declaration is not sine qua non or must. Essential requirement is satisfaction of person recording it that deceased was in fit condition to give statement. It is not necessary that dying declaration should be recorded in question and answer form only.

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e.In the case of Sk. Biban @ Chunnu S/o.
Shaikh Nizam Vs State of Maharashtra 2010 ALL MR
(Cri) Bombay High Court (Aurangabad Bench) 779,
it was held that merely stating that the dying
declaration was recorded as per the narration of
the injured would not amount to proving the
contents of the dying declaration.

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( 11 ) criapl215.01

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9.Keeping in mind the above principles regarding
appreciation of evidence of dying declaration we shall
proceed to consider whether the dying declarations (Exh.
28 & 20) and oral dying declaration to PW-4 by the
deceased are truthful, voluntary and free from any
tutoring and that they are reliable.

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.Dying declaration (Exh.28) was recorded by
Special Executive Magistrate Bombale (PW-5) on 26.08.1996
between 12.40 pm to 01.05 pm in Sumananjali Hospital,
Aurangabad while deceased was admitted in the said
hospital in injured condition. The evidence of PW-5 is
that on the said date he received the letter from City
Chowk Police Station to record the statement of deceased.
He visited Sumananjali Hospital. He enquired with Medical
Officer who was attending health of patient. He gave
letter to Doctor to certify about the conscious state of
the burn victim. Doctor examined the patient and
certified about her conscious mental condition. He stated
that he visited the patient. He removed her relatives. He
made enquiry of preliminary nature of the victim and
ascertained about her mental condition. After recording
her name and her address, he enquired about the incident
to which she stated that on 25.08.1996 while she was
sitting in the home accused No.1 was cursing her saying
that she is a woman of shadow character and there was

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( 12 ) criapl215.01

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quarrel in which accused No.1 poured kerosene on her
person and set her to fire. He stated that he recorded
whole statement (Exh.28) which bears his signature. He
obtained thumb impression of victim. The statement is as
per narration of the victim.

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10.In the cross-examination PW-5 stated that victim
sustained burn injuries on 26.08.1996. He deposed that he
does not know the name of doctor who endorsed about
health of the victim. The endorsement was obtained at
12.40 noon. He stated that he had not obtained any
separate certificate about condition of victim. There is
no name of doctor below the endorsement. He stated that
he does not know that the persons who were nearby the
victim, were either relatives or otherwise. He stated
that he could not tell if victim was alone or in a common
ward. He stated that except he and patient none else was
present.

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11.As per the prosecution case PW-5 recorded dying
declaration (Exh.28) and Dr. Sanjay Patne (PW-6) made
endorsement regarding condition of the deceased on letter
(Exh.27) at 12.40 pm on 26.08.1996 that the patient is
fit for to give statement. But as referred above PW-5
could not tell name of doctor who made endorsement about
condition of the patient after examining the patient.

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( 13 ) criapl215.01

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Similarly Dr. Patne (PW-6) has stated that he made
endorsement on letter (Exh.27) about the condition of the
patient. He has not stated that before making endorsement
on letter (Exh.27) that the patient is fit for to give
statement, he examined patient. In fact, he should have
stated in that respect because admittedly on earlier day
i.e. 25.08.1996 after sustaining burn injuries the
patient/deceased was unconscious and prosecution claims
that the dying declaration (Exh.28) was recorded by PW-5
on 26.08.1996. So also, Dr. Patne has stated that patient
was managed by Dr.Dhamande and Dr. Deshpande who were
Surgeons in the hospital and that he had not attended the
said patient at any point of time except at the time of
making endorsement. So also, he does not claim that he
was present through out when the dying declaration (Exh.
28) was recorded. In the above circumstances when PW-5
has not stated about nature of questions put by him to
the patient in enquiry of preliminary nature to ascertain
mental condition of the patient and claimed that Dr.
Patne was present through out recording dying declaration
(Exh.28) who in fact, does not say so and when patient
sustained 85% burn injuries it is doubtful whether the
patient was fit to make statement through out recording
dying declaration (Exh.28).

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12.The detailed dying declaration (Exh.28) is as
mentioned in para-2-C (Supra). The Special Executive

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( 14 ) criapl215.01

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Magistrate (PW-5) has as referred earlier stated that
only the deceased stated that on 25.08.1996 while she was
sitting in the home accused No.1 was cursing her saying
that she is a woman of shadow character and there was
quarrel in which accused No.1 poured kerosene on her
person and set her on fire. Thus, he has not stated about
the entire contents of dying declaration (Exh.28) about
assaulting deceased by accused No.1 and that she came
running out side the house and extinguished the fire with
water and that Bhausaheb and Kailas admitted her in
Sumananjali Hospital, Aurangabad. The prosecution has
thus not proved all the contents of dying declaration
(Exh.28) and truth thereof. Moreover, PW-5 has simply
stated that this dying declaration bears his signature
and he had obtained thumb impression of the victim and
that said statement is as per narration of the victim. He
has not stated that he read over the contents of dying
declaration (Exh.28) to the deceased and on her admitting
that said contents are as per her say, her thumb
impression was obtained on the same. On perusal of dying
declaration (Exh.28) there is an endorsement on the same
that statement was read over to the deceased and that the
said statement is as per her say. But, when PW-5 has not
stated in this respect it cannot be said that dying
declaration (Exhl.28) is as per the say of the deceased.

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( 15 ) criapl215.01

¶66

13.As regards dying declaration (Exh.20) recorded
by the Head-Constable Joshi (PW-2) the detailed dying
declaration is as referred in para-2-D (Supra). Head
Constable Joshi has stated that on 26.08.1996 he was
attached to the Police Station Bidkin. He was entrusted
with enquiry in respect of MLC case of burns caused to
the deceased who was admitted in Sumananjali Hospital. He
deposed that he recorded statement of the deceased after
ascertaining her health from attending Medical Officer.

¶67

The Medical Officer, examined patient and gave
certificate on his (witness's) letter (Exh.19) that
patient is fit to give statement. Head-Constable Joshi
further stated that he recorded statement of the deceased
and she gave statement that her mother-in-law had poured
kerosene and set her on fire. He reduced her statement
into writing. He obtained her thumb impression. He put
his signature and the said statement is Exh.20. He stated
that he returned to Bidkin Police Station and registered
the offence on the basis of said complaint/statement.
According to him the deceased complained that she was
being harassed on account of demand of money and on the
day of incident she was cursed because of her barrenness
and demand and on that count accused No.1 had poured
kerosene and set her on fire. The patient was capable to

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( 16 ) criapl215.01

¶69

understand him and he was also able to understand what
patient was understanding.

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14.In the cross-examination HC Joshi (PW-2) has
stated that he does not no the name and designation of
the Medical Officer who made endorsement on his letter
(Exh.19). He had not sought certificate on the letter-
head of the Hospital. He deposed that it was about 06.00
pm on 26.08.1996. He had not recorded statement in
question and answer form. He went on recording what she
had replied and only recorded her reply. He denied that
the deceased was not in a conscious state and he drafted
her statement on the say of her father. Thus, it is clear
from the evidence of PW-2 that he recorded dying
declaration (Exh.20) of the deceased on 26.08.1996 at
06.00 pm. He could not tell the name of Medical Officer
who made endorsement on his letter about the condition of
the patient. So also, he had not stated that he
ascertained the condition of the deceased by putting
certain questions. In fact, he should have stated that he
satisfied himself by asking some questions to the
patient, to ascertain that she was in a position to make
statement. As referred earlier on 25.08.1996 when the
deceased sustained burns she was not conscious. Moreover,
PW-2 has stated that he had not seen any record who
admitted the deceased and he had not verified case papers

¶71

of the patient. In such circumstances his evidence that
the patient was capable to understand him and that the
patient/deceased was in a position to make statement at
06.00 pm on 28.06.1996 is not believable.

¶72

15.As referred earlier PW-2 has stated that the
deceased stated before him that she was being harassed on
account of demand of money, and on that day she was
cursed because of her barrenness and demand and on that
count accused No.1 had poured kerosene on her person and
set her on fire. As such he has stated only about part of
contents of dying declaration (Exh.20) recorded by him
and he has not stated about the remaining contents of the
dying declaration that the deceased stated before him
that she was treated properly for 4 to 6 months by her
mother-in-law. Thereafter, as she has no issue and for
bringing Rs.5000/- from her parental house for purchasing
the jeep her mother-in-law, sister-in-law and her husband
frequently started abusing, harassing and beating her.
That she narrated the same to her father 2-3 times and
her father convinced her and people from her in-laws
house, but they did not listen and again continued to
harass her and that on the day of incident there was
quarrel between her and her mother-in-law as she used
string of petticoat of her mother-in-law and on the
ground of dowry and that she had no issue as detailed in

¶73

( 18 ) criapl215.01

¶74

paragraph No.-2-D (supra). Therefore, it cannot be said
that the prosecution has proved all the contents and
truth of all the contents of dying declaration (Exh.20)
recorded by PW-2. Moreover, PW-2 has not stated that he
read over the dying declaration to the deceased and on
her admitting that the contents of the said dying
declaration are as per her say her thumb impression was
obtained on the dying declaration. He has simply stated
that he obtained thumb impression of the deceased on
dying declaration (Exh.20). In such circumstances it
cannot be said that dying declaration (Exh.20) was
recorded as per say of the deceased.

¶75

16.Now coming to the oral dying declaration
allegedly made by the deceased to her father (PW-4) and
his evidence regarding cruelty to the deceased, PW-4 has
stated that after marriage of the deceased for three
years everything was alright. Then accused No.1 started
making grievance about behavior of the deceased and she
started demanding money for purchasing jeep. He further
deposed that whenever the deceased used to come, she used
to make grievance against her mother-in-law. She made
demand of Rs.5000/-. She took him to the house of accused
No.1 and he told accused No.1 that he does not have money
and then he returned. Thereafter deceased was ill-
treated. In the cross-examination he could not tell why

¶76

( 19 ) criapl215.01

¶77

it is not mentioned in his statement before police that
accused No.1 called him to her house and demanded Rs.
5000/-.

¶78

17.As regards oral dying declaration, PW-4 father
of the deceased has stated that he was informed by his
nephew Krishna about the incident. He visited the
deceased in the private hospital. Accused No.3 admitted
the deceased in Sumananjali Hospital. He stated that on
that day he could not talk with the deceased. On the next
day deceased told him that accused Nos.1 to 3 set her on
fire by pouring kerosene. In the cross-examination he
admitted that he did not talk to deceased because she was
unconscious on 25.08.1996. He has denied that deceased
did not tell him that accused Nos.1 to 3 had poured
kerosene on her person and set her on fire. So also, he
denied that death of the deceased was caused on account
of flickering of the stove. Considering the evidence of
PW-4 that on the day of incident on 25.08.1996 when he
visited the deceased in Sumananjali Hospital he cold not
talk with the deceased and that she was unconscious, his
evidence that on the next day deceased disclosed him that
all accused Nos. 1 to 3 poured kerosene on her person and

¶79

set her on fire is not believable as he has not
specifically stated at what time on 26.08.1996 deceased
disclosed as above to him and that at the relevant time

¶80

( 20 ) criapl215.01

¶81

deceased was conscious. The evidence of Dr. Patne (PW-6)
does not show that on 26.08.1996 through out day the
deceased was conscious or in a position to make
statement. Therefore, it cannot be said that at a
particular time on 26.08.1996 the deceased had told her
father that all the accused poured kerosene on her person
and set her on fire.

¶82

18.On considering the dying declarations (Exh.28 &
20) and the evidence of PW-4 father of the deceased
regarding oral dying declaration to him by the deceased
it is clear that in the written dying declarations
allegations are made that accused No.1 mother-in-law of
the deceased poured kerosene on person of the deceased
and she threw burning paper on person of the deceased as
per Exh.20 and as per Exh.28 she set the deceased on fire
by lighting matchstick. Therefore, there is no
consistency in these dying declarations about the mode of
setting the deceased on fire. Moreover, as per oral dying
declaration to her father by the deceased all the accused
Nos.1 to 3 poured kerosene on the person of the deceased
and set her on fire. This oral dying declaration is
contrary to the contents of dying declarations (Exh.20 &
28) as in the said dying declarations as referred above
allegation in this respect is made only against accused
No.1. Moreover, in dying declaration (Exh.20) it is

¶83

( 21 ) criapl215.01

¶84

stated that after marriage, for 5-6 months accused No.1
treated the deceased properly and thereafter all the
accused started harassing and beating the deceased
frequently as she had no issue and saying her to bring
Rs.5000/- for purchasing the jeep. Whereas in dying
declaration (Exh.28) no allegations are made that all the
accused harassed and beaten the deceased for demand of
Rs.5000/- for purchasing jeep. So also, as noted earlier
PW-4 father of the deceased stated that accused No.1
demanded money for purchasing jeep and in the cross-
examination he stated that said demand was made after
three months after purchase of the jeep. Thus, there is
no consistency in the aforesaid two dying declarations
and oral dying declaration made to PW-4 father of the
deceased about the cruelty as well as about incident of
causing burn injuries to the deceased. Therefore, for the
above reasons we hold that prosecution has failed to
prove that dying declarations (Exh.20 & 28) and oral
dying declaration made to PW-4 father of the deceased by
the deceased are trustworthy and believable. Naturally,
therefore, it cannot be said that accused No.1 caused
cruelty to the deceased for fulfilling demand of Rs.
5000/- for purchasing the jeep as alleged by the
prosecution.

¶85

19.It has come in the evidence of PSI Mhaisekar

¶86

( 22 ) criapl215.01

¶87

(PW-7) that on 26.08.1996 he recorded the statement of
Dropadabai the deceased by visiting the hospital. In the
cross-examination he stated that he does not remember
where he had recorded the statement of the deceased and
that he did not find it necessary to have endorsement
about physical fitness of the patient. Thus, it appears
that PW-7 recorded the statement of the deceased.
Admittedly said statement is not produced on record. In
fact, said statement would have thrown light on the
aspect as to how the deceased sustained burns i.e. either
she was set on fire by accused No.1 or that she sustained
burns accidentally. Suppressing said statement of the
deceased by the prosecution creates doubt about
involvement of the accused in committing alleged
offences.

¶88

20.It has further come in the evidence of PW-7 that
he made enquiry with the adjoining house holders of the
deceased in respect of the incident and recorded their
statements. It is also seen from the dying declaration
(Exh.28) that neighbors namely Kadubai, Reubai Narayan
Bogade and Kachru Bogade had come to the house of the
deceased and Bhausaheb Thote and Kailas Jadhav had
admitted deceased in Sumananjali Hospital. When the above
persons had come to the spot of incident, immediately
after the incident deceased had an opportunity to

¶89

( 23 ) criapl215.01

¶90

disclose about the incident to them. But, admittedly none
of the above witnesses have been examined by the
prosecution. In the above circumstances dying declaration
(Exh.28 & 20) and oral dying declaration to PW-4 are not
believable and sufficient to infer that accused No.1
caused cruelty to the deceased and caused burn injuries
to her by setting her on fire by burning paper after
pouring kerosene as alleged.

¶91

21.Panchanama (Exh.23) of spot of incident which
was prepared by PSI-Mhaisekar (PW-7) in presence of Panch
Uttam Bhagaji Dharme and Asaram Ahelaji Dane (PW-3) shows
that said panchanama was in respect of house of accused.
At the time of said panchanama there was a stove and pin.
The evidence of PW-3 shows that said stove was in burnt
condition as if it was effected due to blast. There was
vessel for making tea. The police seized said articles
and prepared panchanama. PSI Mhaisekar (PW-7) has also
stated that he prepared panchanama of spot of incident
(Exh.23) and articles which were attached were sent to
the Chemical Analyzer to find out the contents of
kerosene and he received Chemical Analyzer's report. Said
report (Exh.36) shows that on the seized partially burnt
saree, petticoat and blouse kerosene was detected. But

¶92

the finding of kerosene on the said articles alone is not
sufficient to state that kerosene was poured on the

¶93

( 24 ) criapl215.01

¶94

person of the deceased by accused No.1 as alleged by the
prosecution particularly when as noted above it has come
in the evidence of Asaram Dane-Panch (PW-3)that stove in
burnt condition as if it was effected due to blast was
found. Because in case of blasting of stove accidentally
also there is possibility of finding of kerosene on the
clothes on the person of the deceased. Therefore,
considering above evidence, the defence of the accused
No.1 that the deceased caught fire due to stove, the
possibility of deceased sustaining burns due to blast of
stove accidentally when she started stove cannot be ruled
out. We, therefore, hold that the prosecution has failed
to prove that the death of the deceased was homicidal and
that accused No.1 is responsible for causing burn
injuries to her and to her death as alleged. The trial
Court has not properly considered the said aspect. As
such findings recorded by the trial Court on the basis of
written dying declarations (Exh.28 & 20) that burn
injuries sustained to the deceased were homicidal, that
said injuries were caused by accused No.1 by pouring
kerosene on her person and setting her on fire are not
correct.

¶95

22.As discussed above dying declarations (Exh.28 &
20) and oral dying declaration to PW-4 father of the
deceased are not trustworthy as they are not consistent.

¶96

( 25 ) criapl215.01

¶97

It is observed that the prosecution has failed to prove
that accused No.1 had caused cruelty to the deceased for
unlawful demand of Rs.5000/- for purchasing jeep. In such
circumstances finding of the trial Court that the
prosecution has proved offence under Section 498-A of the
IPC against accused No.1 is not correct because there is
also no consistency in the dying declarations in respect
of allegations of cruelty against accused No.1 as
observed earlier. So also, prior to the incident in
question there was no complaint made either by the
deceased or her father to the police that accused No.1 or
all the accused were demanding money for purchasing jeep.
So also, as noted earlier in the cross-examination PW-4
has stated that demand of money for purchasing jeep was
made after purchasing jeep. Therefore, it cannot be said
that there was demand of Rs.5000/- by accused No.1 for
purchasing jeep. Therefore, prosecution has failed to
prove offence under Section 498-A of the IPC against
accused No.1 and finding of the trial Court that
prosecution has proved said offence against accused No.1
is not correct.

¶98

23.As regards motive of accused No.1 to commit
murder of the deceased is concerned, it is alleged that
accused No.1 was demanding an amount of Rs.5000/- from

¶99

the deceased and that the deceased had no issue. For the

¶100

reasons discussed above, the evidence adduced by the
prosecution is not sufficient to state that accused No.1
caused cruelty to the deceased on the above said grounds.
Therefore, it cannot be said that accused No.1 had motive
to commit murder of the deceased.

¶101

24.For the reasons discussed above, we hold that
the prosecution has failed to prove the offences under
Sections 498-A and 302 of the IPC against accused No.1
beyond reasonable doubt. Therefore, impugned judgment and
order of convicting and sentencing accused No.1 for the
aforesaid offences is not sustainable and the same is
liable to be set aside and appellant-accused No.1 who is
on bail is entitled to be acquitted of the said offences

¶102

by allowing the appeal. Therefore, in the result
following order is passed.

¶103

ORDER

¶104

I]The appeal is allowed.

¶105

( 27 ) criapl215.01

¶106

II]The impugned judgment and order dated
09.05.2001, in Sessions Case No.111/1997, passed
by the Additional Sessions Judge, Aurangabad
convicting and sentencing the appellant-accused
No.1-Rukhmanbai W/o. Waman Bhogade for the
offences punishable under Sections 302 and 498-A
of the IPC is quashed and set aside and she is
acquitted of the said offences.

¶107

III]The fine amount, if any, deposited by
the appellant-accused No.1 shall be refunded to
her.

¶108

IV]Her bail bond stands canceled.

¶109

V]Appellant-Accused No.1 shall furnish
personal bond in the sum of Rs.5000/- with
surety in like amount under Section 437-A of the
Code of Criminal Procedure before the trial
Court forthwith.

¶110

[S.M. GAVHANE, J.]

¶111

[T.V.NALAWADE, J.]

¶112

VishalK/ criapl215.01

Rukhmanbai Bhogade v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

Rukhmanbai Bhogade v. State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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