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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
S.S. SHINDE & A.I.S. CHEEMA, JJ.
Sunil & Ors. - Appellants
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 111 of 2014
Decided on : 21-09-2015
The Court held that the two dying declarations were inconsistent and unreliable, and that the prosecution had failed to prove its case beyond a reasonable doubt. The Court also found that the appellants had been denied a fair trial, as they had not been given the opportunity to cross-examine the declarant. The Court therefore allowed the appeal and acquitted the appellants.
Fact of the Case:
The appellants were convicted of murder and sentenced to life imprisonment. The prosecution's case was based on two dying declarations made by the victim, in which she accused the appellants of setting her on fire. The appellants denied the charges and claimed that the victim had accidentally set herself on fire.
Finding of the Court:
The Court found that the two dying declarations were inconsistent and unreliable. The first dying declaration was recorded by a police officer, and the second dying declaration was recorded by a magistrate. The two dying declarations differed in several material respects, including the time of the incident, the location of the incident, and the role played by the appellants. The Court also found that the prosecution had failed to prove its case beyond a reasonable doubt. The Court noted that there was no independent evidence to corroborate the victim's dying declarations. The Court also found that the appellants had been denied a fair trial, as they had not been given the opportunity to cross-examine the declarant.
Issues: 1. Whether the two dying declarations were consistent and reliable. 2. Whether the prosecution had proved its case beyond a reasonable doubt. 3. Whether the appellants had been denied a fair trial.
Ratio Decidendi: The Court held that the two dying declarations were inconsistent and unreliable, and that the prosecution had failed to prove its case beyond a reasonable doubt. The Court also found that the appellants had been denied a fair trial, as they had not been given the opportunity to cross-examine the declarant. The Court therefore allowed the appeal and acquitted the appellants.
Final Decision: The Court allowed the appeal and acquitted the appellants.
S.S. Shinde, J.
This appeal is filed by the appellants original accused, who are convicted for the offence punishable under Sections 498A r/w 34, 302 r/w 34 of I.P. Code.
2. The brief facts of the prosecution case, are as under :-
(i) Marriage of Kanopatra (now deceased) was performed with accused no.1 on 11th May, 2006. The father of deceased Kanopatra was residing at village Takali Kumbhakarna, Tq. Parbhani. He was serving in Irrigation Department at Parbhani. After marriage, she resided with accused persons at village Sirpur, Tq. Palam. At the time of marriage, a dowry of Rs.2,00,000/- was given. Initially, the accused persons treated her properly. Thereafter, accused persons subjected deceased Kanopatra to cruelty for their demand of Rs. 1,00,000/- for digging the well in their field. Accused no.3 Bapurao, the father of accused no.1 was in government employment. Accused no.5 Savita was residing with her husband at Parbhani. Deceased Kanopatra had informed her parents and relatives about physical and mental harassment from the accused persons for their demand of Rs. 1,00,000/- . Accordingly, father of deceased Kanopatra had given understanding to the accused persons.
(ii) Govind Deshmukh, father of deceased Kanopatra had brought her to village Takali Kumbhakarna, for Diwali festival of the year 2008. After about 1015 days, Baban Deshmukh, the cousin brother of Govind reached her to the house of accused at Sirpur, Tq. Palam on 8th November, 2008. Accused nos. 1 and 2 had beaten deceased Kanopatra for not fulfilling the demand of Rs. 1,00,000/- . Accused no.5 Savita was also present at village Sirpur.
(iii) On 9th November, 2008 at about 8.00 a.m., while deceased Kanopatra was washing her face, the accused nos. 1 and 2 poured kerosene from two cans on her person. Accused no.5 Savita caught hold her and accused no.4 set her on fire by means of burning stick. Deceased Kanopatra, while burning came out of house. The neighbours and accused nos. 1 and 2 extinguished the fire. Initially, she was brought to sub-district hospital Gangakhed. Thereafter, she was shifted to Adhar hospital Nanded, for treatment.
(iv) Adhar hospital, Nanded, issued M.L.C., informing the admission of burn case to Shivaji Nagar Police Station, Nanded. Upon which, PSI Phule, visited the hospital and recorded statement of deceased Kanopatra in presence of the doctor. A requisition was also issued to the Special Judicial Magistrate Shri Zungare, for recording statement of deceased Kanopatra. He visited Adhar hospital, Nanded, and recorded statement of deceased Kanopatra. PSI Phule, produced the statement of deceased Kanopatra at Police Station Shivaji Nagar, Nanded. On the basis of her statement, offence vide CR No. 0/2008 was registered, for the offences punishable under Sections 498A, 307, 323, 504 and 506 of I.P. Code. The MLC issued by Adhar hospital, Nanded and the statement of deceased Kanopatra recorded by PSI Phule, were sent to police station, Palam, as alleged offences took place within its jurisdiction. Accordingly, offence vide C.R. No. 97/2008 for the above said alleged offences has been registered at Police Station Palam on 9th November, 2008 and API Kundankumar Waghmare conducted further investigation.
(v) API Kundankumar Waghmare, visited the house of accused at village Sirpur and conducted panchanama of place of incident. He had collected two plastic cans, burn pieces of saree and blouse, which deceased Kanopatra was wearing. He also collected earth mixed with kerosene and normal earth from the place of incident. He arrested accused nos. 3 and 4 on 10th November, 2008. He arrested the accused no.1 on 11th November, 2008 and accused nos. 2 and 5 on 14th December, 2008. He sent the muddemal articles to C.A. Aurangabad, for chemical analysis.
(vi) While undergoing treatment, deceased Kanopatra succumbed to the burn injuries on 29th November, 2008. Accordingly, Apollo Burns hospital issued MLC to Vazirabad Police Station, Nanded, on which the poli
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