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2014 Supreme(Bom) 1554
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
A.V. NIRGUDE AND A.I.S. CHEEMA, JJ.
Prabhakar s/o Kaduba Shejul - APPELLANT
VERSUS
The State of Maharashtra, (Copy to be served on the Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad) - RESPONDENT
CRIMINAL APPEAL NO.374 OF 2000
Decided On : 5th August , 2014.
Shri Vijay Sharma, Advocate for appellant
Shri P.P. More, A.P.P. for respondent/ State
Headnote:[INDIAN] PENAL CODE, 1860 - Sections 300 and 498-A Evidence Act, 1872, Section 32 Conviction for offences of cruelty and murder. Since dying declaration is not credible and manner in which investigation was conducted, is doubtful hence conviction of accused cannot be sustained. It was true that at the time of incident, son and daughter of victim were residing with her and in the investigation, it transpired that the son had gone to call Sundarabai. It was admitted that, statement of ’K’ was recorded, but it had not been filed on record. Even PW 6 admitted that, statement of ’K’ was recorded, but it had not been filed on record. Even PW 6 admitted that, statement of ’K’ recorded but the same was not filed on record. It has been argued that, the statement of ’K’ to police was that there was incident of accidental burns and because of that, at the time of investigation, the accused was granted bail by the High Court. Thus, according to the appellant-accused, the investigation had suppressed material evidence and prosecution was not fair.
The conviction and sentence as imposed by the trial Court is quashed and set aside. Appellant-accused is acquitted of the offence with which he has been charged. Fine, if paid, be refunded to him. The appellant-accused is on bail. The bail bond are cancelled.
A.I.S. Cheema, J.
1. This criminal appeal is by original accused No.1 Prabhakar, who was tried along with his father Kaduba (accused No.2), mother Gayabai (accused No.3) and sister Kusumbai (accused No.4) for offen ce punishable under Sections 498-A and 302 read with Section 34 of the Indian Penal Code (IPC for short), alternatively Section 306 read with Section 34 of the Indian Penal Code. Only the appellant – accused (hereinafter referred to as “accused”) came to be convicted under Section 498-A and Section 302 of the Indian Penal Code. For offence under Section 302 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.5000/-, in default to suffer rigorous imprisonment for three months; for offence under Section 498-A of the IPC, he is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/-, in default to suffer rigorous imprisonment for three months. His old aged father Kaduba, who was 80 years when charge sheet was filed, died during pendency of appeal and the appeal abated as far as his father was concerned. Accused Nos.3 and 4 came to be acquitted of the offences with which they were charged. Thus, the appeal by accused.
Prosecution Case
2. The case of the prosecution in short is as follows :-
(A) Accused was married to Hirabai (now deceased – hereinafter referred to as “victim”) on 3.5.1984 and has children from her. The marriage continued properly for 4-5 years. Thereafter there were differences and the victim went away to her parent's place. The accused entered into another marriage with one Mangalabai. The victim filed maintenance proceedings as well as proceedings for adultery and bigamy against the accused. Order of maintenance was passed in favour of the victim. After some time, the accused along with other relatives went to the place of the victim and it was promised that the victim would be treated well and he brought her home at Vishnunagar Aurangabad. The arrangement was made for victim and her children to reside on the first floor while the other wife Mangala and her children and parents of accused were residing on the ground floor, so that quarrels do not take place.
(B) It is the case of the prosecution that, brothers of victim, when they visited her, came to know that she was still being ill-treated and beaten. On the day of incident of 5.7.1995, at about 8.00 p.m., the accused went to the victim and asked her to withdraw the cases pending. When she declined, he poured kerosene on her and put fire to her. In the process, he also suffered burn injuries. The accused thereafter put out the fire and also suffered burns. The accused and others took the victim at Ghati Hospital, Aurangabad and the victim as well as the accused were admitted. The victim had 49% burns and the accused had suffered 28% burns. At the time of admission of the victim, the history of incident was stated to be suffering of burns while cooking. As regards the accused, the history given was that, while trying to save his wife he had also suffered burn injuries.
(C) According to the prosecution, Narayan Jadhav, the brother of victim, resident of Cantonment, Aurangabad came to know about the incident and in the morning of 6.7.1995, went and met the victim and came to know that the accused had caused her burns. He contacted an Advocate and then met the Commissioner of Police, on whose directions, the dying declaration-cum-F.I.R. of the victim was recorded and offence came to be registered at Crime No.135/1995. P.S.I. Dhondiappa Kamble (P.W.3), who had recorded the F.I.R., initially investigated the matter. He recorded spot panchanama and other statements. He also recorded further statement of the victim on 7.7.1995, which was also treated as dying declaration, in which she implicated accused Nos.2 to 4 as also the persons who beat her and were ill-treating her and instigating the accused to kill her.
(D) On 6.7.1995, Special Executive Magistrate Subhash Mehara al
