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2020 Supreme(Bom) 454
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. Nalawade, S.M. Gavhane, JJ.
Dadarao S/o Shripat Thorat - Appellants
Versus
The State of Maharashtra - Respondent
Criminal Appeal No. 221 of 2014
Decided On : 03-03-2020
Mr. R.S. Deshmukh, Senior Advocate i/b
Mr. G.A. Kulkarni, Advocate for the accused
For the Respondent: Mrs. V. S. Choudhari, APP for the
Headnote:(A) Indian Penal Code - Sections 302 and 498-A - Appeal against conviction and sentence - The appellants convicted for causing death of the deceased through burn injuries and for cruelty - Relying on dying declarations and circumstantial evidence - The court held that the dying declarations lacked credibility; insufficient evidence of cruelty by in-laws - The conviction under Section 302 against accused No. 1 affirmed, while the other convictions quashed. (Paras 1-36)
(B) Dying declaration - Necessity of establishing voluntariness and reliability - The court ruled that mere recording of the dying declaration is inadequate without evidence proving the declarant's capacity to give a voluntary statement under duress. (Paras 18-20)
(C) Cruelty under IPC, Section 498-A - The evidence of emotional and physical abuse must be substantial to uphold the charge; it must be proved that the accused acted in common intention to coerce demands. (Paras 32-36)
| Table of Content |
|---|
| 1. factual background on the deceased's death. (Para 3 , 7) |
| 2. details of dying declarations by the deceased. (Para 4 , 5 , 6) |
| 3. arguments regarding the validity of dying declarations. (Para 8 , 9 , 10) |
| 4. court's analysis of the evidence presented. (Para 11 , 12 , 13 , 14 , 15 , 16) |
| 5. final judgment and conclusions on the accused's roles. (Para 35 , 36) |
JUDGMENT :
S.M. Gavhane, J.
By this appeal the appellants, hereinafter referred to as the accused Nos. 1 to 3 have challenged the judgment and order dated 20/03/2014 passed by the Sessions Judge, Aurangabad in Sessions Case No. 82 of 2008 thereby convicting and sentencing each of them to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer rigorous imprisonment for 15 days for the offence punishable under Section 498-A read with Section 34 of the INDIAN PENAL CODE (hereinafter referred to as the IPC) and further convicting and sentencing each of them to suffer imprisonment for life and to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for one month for the offence punishable under Section 302 read with Section 34 of the IPC. The sentences of imprisonment were directed to run concurrently. Muddemal property being valueless was ordered to be destroyed after the appeal period is over.
2. Appellant No.2/accused No. 2 Shripat Vishram Thorat died during pendency of this appeal and therefore, appeal stands disposed of as abated against him as per order dated 11/11/2019.
3. Facts leading to this appeal as revealed from the case papers are as under:-
(A) The deceased Vandana was daughter of one Indrabai w/o Baburao Misal resident of Bhakarwadi, Tq. Badnapur, District Jalna who is residing in Milindnagar, Osmanpura, Peer Bazar at Aurangabad since long. Deceased was married to one Balu Gajile of Nipani about 6 years back. She begot a son from said Balu. Said Balu married another woman and deceased continued to live with her mother. Deceased married to accused No. 1 Dadarao about five months before the incident and accused Nos. 2 and 3 are respectively father and mother of accused No.1. All the accused were residing jointly in the house in their agriculture land at village Waregaon. Accused were doing the business brick kiln at the time of incident.
(B) While the deceased was cohabiting with the accused No.1 and residing in the joint family of the accused on 17/11/2007 at about 6.00 a.m. in the above said house of accused she sustained 86% burn injuries. One Sominath Ramchandra Shejwal (husband of the defence witness No.1 Meena) and accused No. 3 immediately admitted the deceased in injured condition in the Ghati hospital at Aurangabad in the ward No. 22/23 of the burnt patients. The information of admitting the deceased in the injured condition in the hospital was given to the Police station, Phulambri, District Aurangabad on the same day i.e. on 17/11/2007 at 8.15 p.m. and accordingly MLC No. 42 of 2007 was registered. Then Police Inspector Alsatwar (PW-8) of the said Police Station directed API Bagul (PW-10) to visit the spot of incident and to prepare panchanama. Accordingly API Bagul visited the spot of incident i.e. house of the accused and prepared panchanama of spot with map as per Exhibit 75 and some articles like burnt pieces of clothes, match stick and drops of kerosene etc. were seized from the spot of incident under the same panchnama. So also, stick was seized from the house of accused. The PI Alsatwar also directed PHC Pise (PW-3) to record dying declaration of the deceased who was admitted in the hospital and gave letter Exhibit 37 in this respect to Medical Officer, Ghati Hospital, Aurangabad on 17/11/2007.
(C) On the same day i.e. on 17/11/2007 PHC Pise (PW-3) went to Ghati hospital with letter Exhibit 37 addressed to the Medical Officer of the said hospital, informing the Medical Officer that he has to record statement of deceased and requested the Medical Officer to examine the deceased who was admitt
