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IN THE HIGH COURT OF BOMBAY AT AURANGABAD
Ravindra V. Ghuge, B.U. Debadwar, JJ.
The State of Maharashtra Through Police Station Manatha, Tq. Hadgaon, Dist. Nanded – Appellant
Versus
Gajanan & Others – Respondents
Criminal Appeal No. 291 of 2003
Decided On : 08-12-2020
CRIMINAL APPEAL - SECTION 302 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, 1860 - ACQUITTAL OF ACCUSED - CHALLENGE - DYING DECLARATION - MEDICAL EVIDENCE - WITNESSES - CIRCUMSTANTIAL EVIDENCE - LOVE AFFAIR - SUICIDE ATTEMPT - CONVICTION - CORROBORATIVE EVIDENCE - PROBATIVE VALUE - SCRUTINY - RELIABILITY - TRUTHFULNESS - CREDIBILITY - SUSPICION - GRUDGE - MOTIVE - INTENTION - COMMUNITY NOTIONS - CONSERVATIVE VIEWS - INTER-CASTE MARRIAGE - LOVE MARRIAGE - SHAME - UNMARRIED SISTERS - TWO VIEWS POSSIBLE - VIEW FAVOURING ACCUSED ADOPTED - APPEAL DISMISSED.
Fact of the Case:
The deceased, aged 18 years, was set ablaze by the three accused on 15-04-2002 at 11:00 p.m. She was shifted to the Government Hospital at Nanded on 16-04-2002. She succumbed to her burn injuries on 18-04-2002. The prosecution examined 9 witnesses, including the maternal grandfather, maternal uncle, learned JMFC who recorded the second dying declaration, Medical Officer who conducted the post-mortem examination, panch witnesses of the spot panchanama and inquest panchanama, Police Head Constable who recorded the first dying declaration, and the father of the deceased. The accused denied their involvement and stated that they desire to tender evidence and lead oral evidence. However, no oral evidence was led. The Trial Court acquitted all the three accused.
Finding of the Court:
The Court found that there were two stories emerging from the record. One story was that the deceased had deeply fallen in love with a person named Sambhaji Pawade, who belonged to the Maratha community, while the deceased belonged to the Rajput community, which is a Nomadic Tribe. There was a stiff resistance from her parents' side and she was also sent to reside with her maternal grandfather with the intention of terminating her relationship with Sambhaji Pawade. As she continued with her relationship even after shifting to the grandfather’s place, the family members assembled with the family members of Sambhaji Pawade and a document was purportedly written down, wherein a commitment was taken from the two lovers that they would not meet each other. In this backdrop, the deceased was forcefully married to accused no.1 on 03-03-2002. Around the 8th of April, 2002 she is said to have consumed poison. On 15-04-2002 she is said to have set herself ablaze and she succumbed to her burn injuries on 18-04-2002. The other story was that there was no such love affair between the deceased and Sambhaji Pawade. A concocted story has been cooked up. The deceased willingly married accused no.1. As her husband - accused no.1 had not approved her selection as his bride, he desired to perform a second marriage and he, along with accused nos.2 and 3, poured kerosene on the deceased and he set her on fire.
Issues: 1. Whether the dying declarations were reliable and admissible in evidence? 2. Whether the medical evidence corroborated the prosecution's case? 3. Whether the testimony of the witnesses was credible and consistent? 4. Whether the circumstantial evidence pointed to the guilt of the accused? 5. Whether the love affair between the deceased and Sambhaji Pawade was a relevant factor in determining the motive for the crime? 6. Whether the deceased's suicide attempt prior to the incident was indicative of her state of mind and intention? 7. Whether the accused's defense that the deceased committed suicide was plausible and supported by evidence? 8. Whether the community notions and conservative views regarding inter-caste and love marriages played a role in the incident?
Ratio Decidendi: 1. The Court held that the dying declarations were admissible in evidence under Section 32 of the Evidence Act, but they had to be scrutinized carefully to ensure that they were not the result of tutoring, prompting, or imagination. The Court noted that the doctors who had observed on the two dying declarations as regards the fitness of the deceased before and after such recording, had not been examined by the prosecution. 2. The Court found that the medical evidence supported the prosecution's case that the deceased had died due to homicidal burns. 3. The Court found that the testimony of the witnesses was inconsistent and unreliable. The Court noted that the Investigating Officer and the two panch witnesses had stated in their cross-examination that the deceased had a love affair with Sambhaji Pawade and that she had tried to commit suicide by consuming Tar. 4. The Court found that the circumstantial evidence did not conclusively point to the guilt of the accused. The Court noted that the liquid, the jug purportedly used by accused no.1 for carrying inflammable liquid, have not been sent to the Regional Forensic Science Laboratory for chemical analysis. There was no evidence to indicate that the liquid was kerosene and whether the steel jug was used for pouring the liquid on the deceased. 5. The Court found that the love affair between the deceased and Sambhaji Pawade was a relevant factor in determining the motive for the crime. The Court noted that the deceased had been forcefully married to accused no.1 against her will and that she had tried to commit suicide prior to the incident. 6. The Court found that the deceased's suicide attempt prior to the incident was indicative of her state of mind and intention. The Court noted that the deceased had been under great stress due to her forced marriage and her love affair with Sambhaji Pawade. 7. The Court found that the accused's defense that the deceased committed suicide was not plausible and was not supported by evidence. The Court noted that there was no evidence to indicate that the deceased had a history of mental illness or that she was in a state of depression at the time of the incident. 8. The Court found that the community notions and conservative views regarding inter-caste and love marriages may have played a role in the incident. The Court noted that the deceased's family was opposed to her relationship with Sambhaji Pawade and that they had forced her to marry accused no.1.
Final Decision: The Court dismissed the appeal and upheld the acquittal of the accused.
JUDGMENT :
Ravindra V. Ghuge, J.
1. By this Appeal, the State has challenged the Judgment and order dated 13-11-2002 delivered by the learned II Adhoc Additional Sessions Judge, Nanded in Sessions Case No.90 of 2002. Vide the said Judgment, the trial Court has acquitted all the three accused from the charge of having committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘I.P.C.’).
2. On 22-03-2005, this Court had passed the following order :
Hence, admit only as against Respondent No.1 Gajanan.
Call for R & P.
Advocate Shri Katneshwarkar assures that Respondent No.1 shall appear before the Sessions Court, Nanded on 11th of April, 2004. If he so appears, learned Sessions Judge shall enlarge him on furnishing a P.R. Bond and one surety of Rs.10,000/- and by directing him to report before the Sessions Judge once in every quarter (three months) till disposal of Criminal Appeal No.291 of 2003 by this Court.
The Appeal is dismissed as against Respondent Nos.2 and 3.”
3. As such, this appeal challenging the acquittal of these three accused, has been dismissed as against two accused who were the father-in-law and mother-in-law of the deceased.
4. We have considered the extensive submissions of the learned prosecutor on behalf of the appellant - State and the learned Counsel on behalf of the sole respondent, who was accused no.1 - husband of the deceased. Both the learned Counsel have read out the entire testimonies of PW1 to PW10 and with their assistance, we have gone through the appeal paper book and the Record and Proceedings, threadbare.
5. This case is said to be based on two written dying declarations of the deceased Jamunabai and one oral dying declaration as the deceased is said to have orally told her father PW9 that the husband as well as the parents-in-law have poured kerosene on the deceased and the husband has set her ablaze.
6. The case of the prosecution before the Trial Court was that, the deceased, who was 18 years of age at the time of her marriage on 03-03-2002, was set ablaze by the three accused on 15-04-2002 at 11:00 p.m. On 16-04-2002, she was shifted to the Government Hospital at Nanded. A telephonic call was received by the father (PW9) of the deceased, vide which, he was informed that the deceased has got burnt. As he rushed to Warwat, the place where the marital home of the deceased was situated, he saw a jeep at Waranga phata. He found that his daughter, her husband, a neighbour Babusingh, her mother-in law Shantabai, father-in-law Gopalsingh and Sonusingh, close relatives of accused no.1, inside the jeep. As such, PW9 - Narayansingh, father of the deceased also boarded the same jeep. It is said that in the jeep, PW9 asked his daughter as to what had happened and she purportedly told him that her husband and his parents poured kerosene on her and her husband set her on fire.
7. The prosecution has examined 9 witnesses, who are as follows:-
b) PW2 - Rajusingh s/o. Karansingh Chavan, maternal uncle of the deceased
c) PW3 - Madhukarrao Venkatrao Mane, learned JMFC, Kandhar, who recorded the second dying declaration
d) PW4 - Dr Sunil Bhagwanrao Kulkarni, Medical Officer
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