High Court of Bombay at Aurangabad, Bench at Aurangabad held that conviction of appellants for wrongful confinement and criminal intimidation was unsafe due to doubtful dying declarations and lack of sufficient evidence, and allowed the appeal.
Conviction set aside. Bail bonds discharged. Fine amount refunded to appellants.
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.
2024:BHC-AUG:19232
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908criapl16.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
908 CRIMINAL APPEAL NO.16 OF 2005
Both R/o. Plot No. 25, Phule Colony, Dhule, Tq. & Dist. Dhule
VERSUS
State of Maharashtra ... RESPONDENT
Mr. D. R. Kale, Advocate for the appellants Mr. N. B. Patil, APP for the respondents/State
CORAM : KISHORE C. SANT, J. DATE : 23rd AUGUST, 2024
ORAL JUDGMENT:
judgment and order passed by the learned Ad-hoc Additional Sessions Judge, Dhule dated 31-12-2004 in Sessions Case
No.26/2004. By way of impugned judgment and order though
both the appellants came to be acquitted from the offences
punishable under Sections 306 and 506 of the IPC, however,
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they are convicted for the offences punishable under Sections 342 and 348 of the IPC. Sentence awarded is 1 year simple imprisonment and 3 years simple imprisonment respectively with fine of Rs.1000/- and Rs.3000/- each respectively.
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husband started extinguishing fire and immediately took her to the Civil Hospital. In the Civil Hospital she succumbed to the injuries.
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witnesses. PW-1 is the PSI who registered the crime and proved the dying declaration. PW-2 the ASI at Azad Nagar Police Station who recorded the dying declaration. PW-3 is Nandu, spot pancha who is also a neighbor of the deceased. PW-4 is father of the deceased. PW-5 is the mother of deceased. PW-6 & 7 are the panch witnesses of the spot. PW-8 is Senior Clerk who recorded second dying declaration. PW-9 is the Doctor who examined the deceased who certified that deceased was in a fit condition to make statement. PW-10 is the husband of the deceased. PW-11 is the Investigating Officer.
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forcefully argued that the court has held the offences are proved only on the basis of two dying declarations however, both the dying declarations are not proved by the prosecution beyond reasonable doubt. There is a doubt created about contents of the dying declarations. It has come on record that while recoding dying declaration parents and brother of the deceased were present. Secondly that both the witnesses who have recorded the dying declaration have stated that while recording the dying declaration Doctor was not present for entire time. PW-8 even could not give particulars of recording of dying declaration. Even if the dying declarations are taken as it is, no case is made out to show that deceased was illegally confined. In first dying declaration Exh.9 deceased herself has stated that she was interrogated by the accused persons and after that deceased was handed over to the police. In the second dying declaration Exh.30 she stated that she was confined in a room by putting a lock to the said room. There was no question of confining the deceased. The deceased on routine use to come to the house of
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the accused being Maid.
that in view of Section 43 of the Cr. P. C. accused were within their right to take deceased in the custody and to handover to the police which is rightly done by them. No offence can be said to have been committed under such circumstances.
is consistent. It has clearly come on record that there was a
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suspicion about stealing of the gold ornaments by the deceased. Looking to the fact that & the conduct of the accused, the trial court has rightly acquitted the accused from the offence punishable under Sections 306 and 506. So far as sections 342 and 348 of the IPC is concerned, the learned trial court has rightly convicted the appellants and he prays for dismissal. In addition to two written dying declarations, oral dying declaration was also there to PW-4 father of the deceased.
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when dying declarations was recording there was saline applied to the deceased. PW-3, neighbor, in his deposition, stated that he was knowing the deceased and he also knows the accused persons. He accepted in the cross-examination that there were disputes between Rekha and Bhikan as Rekha could not conceive and deliver a child and she was issue-less. Therefore, husband wanted to get married again. On that count there were quarrels between them. He had knowledge that deceased has stolen gold ring from the house of the accused. At the instance of the Rekha even that gold ring was recovered. He also stated that in the night of 03-12-2003, there was quarrel between deceased & her mother with the husband of the deceased on the point of second marriage. He also deposed that accused No.2 had given police complaint against Rekha in Azad Nagar Police Station. This fact is also clear from the second dying declaration of the deceased. It has come in the evidence that Mandabai told the deceased, if she files a complaint against the accused persons, then she would get money from the accused persons. This witness was also present in the hospital at the time of recording of dying
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declaration.
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giving statement. He accepted that parents were also present while recording the dying declaration. PW-9 is the Doctor. His evidence is not of much help since now question is about offences under sections 342 and 348 of the IPC the fact of suicide is not disputed by any of the parties.
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the vicinity were also recorded, however since those were not supporting the prosecution case, those were not filed alongwith the charge-sheet.
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accused beyond reasonable doubt. Looking to all, this court finds that though the learned trial court has rightly acquitted the accused persons from Sections 306 and 506, however, has convicted for the offences punishable under Sections 342 and 348 of the IPC in absence of sufficient material. Evidence was not free from doubts. Under such circumstances, recording conviction was not safe. This court thus concludes that conviction is without sufficient material.
[KISHORE C. SANT, J.]
VishalK/908criapl16.05
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3 issues framed by the court
Whether the conviction for wrongful confinement and criminal intimidation under Sections 342 and 348 IPC is sustainable in absence of sufficient material.
Whether the two dying declarations suffered from serious doubts and lack of endorsement regarding mental and physical fitness.
Whether the accused to be acquitted or convicted considering the contradictions in evidence and lack of proof beyond reasonable doubt.
SARITA W/O. JITENDRA SANYASHI
JITENDRA VASANTRAO SANYASHI
STATE OF MAHARASHTRA
KISHORE C. SANT
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
