On
the other hand, the learned counsel for respondent submitted that
in view of the history given by deceased in the hospital, which
amounts to dying declaration and in view of the other record like
letters written by deceased, it is difficult to believe that the story
given by the witnesses is true.
In this case, no dying declaration was recorded through
Executive Magistrate. Dr.Parmeshwar [P.W.1] who was attached
to civil hospital and who conducted post mortem examination has
given evidence that at the time of the admission, deceased gave
The record does not show that the trial Court
accidentally.
she was cooking food, she caught fire
history that when
attempted to collect the bed head ticket or case papers on which
history was written by the Doctor. However, this evidence is not
seriously disputed and so, this evidence cannot be ignored. Thus,
it can be said that there is evidence u/s 32 (1) of Indian Evidence
Act, which creates probability that the deceased sustained burn
injuries in accidental fire.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.141/2002
The State of Maharashtra
V
Sunil S/o Shivajirao Hippalge
CORAM : T.V.NALAWADE,J.
DATE
: 23RD JANUARY 2013.
Citation; 2013 ALLMR(CRI)3829
The Appeal is filed against judgment and order of Sessions
Case No.20/2000 which was pending in the Court of At-hoc
Assistant Sessions Judge, Latur. The respondent is acquitted of
the offences punishable u/s 498-A, 306 and 34 of IPC.
Both sides are heard.
This Court has perused original
record.
In short, the facts leading to institution of the Appeal can be
stated as under :
Deceased
Nathshila
was
daughter
3]
of
complainant
Shamalbai. The deceased was given in marriage on 29/4/1997 to
the respondent. The respondent was relative of the complainant
After the marriage, for some time,
even prior to the marriage.
deceased cohabited with the accused respondent in Yelnoor
where the respondent was living with his parents. The respondent
was working as a teacher in village Mulwad.
Respondent was
avoiding to go to the native place where the deceased was living.
However, during last 15 days, deceased started cohabiting with
the respondent in Latur. Deceased was carrying of more than 7
months at the relevant time.
There was suspicion that the
respondent had kept illicit relations with original accused no.2. Due
to this suspicion, there was ill treatment and ultimately, on
24/10/99, deceased committed suicide by setting herself on fire.
She died on the same day.
The report came to be given on
27/10/99 and the crime came to be registered for aforesaid
offences.
4]
During investigation, police recorded statements of some
neighbours of the accused and some relatives of the deceased.
to be filed for aforesaid offences.
5]
Death took place due to 100% burn injuries. Charge sheet came
The charge came to be framed for aforesaid offences.
Accused denied the charge.
He took the defence that some
amount was due from the father of the complainant to him and as
he was insisting to return the amount, after incident, false report
came to be given against him to pressurize him. He took defence
6]
that it was accidental death.
The trial Court has not believed the witnesses like
complainant and other relatives of the deceased. The trial Court
has referred the history recorded by Doctor immediately after
admission of the deceased in the hospital. On the basis of history,
trial Court has held that there was possibility that it was a case of
accidental fire.
7]
The learned APP submitted that in view of the serious
allegations made against accused nos.1 and 2, the trial Court
ought to have believed the witnesses. He submitted that there
was no reason for the witnesses to falsely implicate the
respondent who was their close relative prior to the marriage. On
the other hand, the learned counsel for respondent submitted that
in view of the history given by deceased in the hospital, which
amounts to dying declaration and in view of the other record like
letters written by deceased, it is difficult to believe that the story
8]
given by the witnesses is true.
In this case, no dying declaration was recorded through
Executive Magistrate. Dr.Parmeshwar [P.W.1] who was attached
to civil hospital and who conducted post mortem examination has
given evidence that at the time of the admission, deceased gave
The record does not show that the trial Court
accidentally.
she was cooking food, she caught fire
history that when
attempted to collect the bed head ticket or case papers on which
history was written by the Doctor. However, this evidence is not
seriously disputed and so, this evidence cannot be ignored. Thus,
it can be said that there is evidence u/s 32 (1) of Indian Evidence
Act, which creates probability that the deceased sustained burn
injuries in accidental fire.
9]
The prosecution has brought on record two letters written by
the deceased to her mother, complainant. These letters show that
the deceased was not complaining to her mother against the
accused. The second letter shows that it was written when she
was carrying of 7 months. She did not express suspicion to her
mother that her husband had illicit relations with any woman. The
letters however, show that the husband had some grievance with
the father of her mother and account was to be settled in respect
of the amount due to her husband. Thus, the record is in favour of
the respondent and as against that record, some allegations are
made against the husband by relatives of the deceased and a
10]
neighbour of the deceased.
The evidence of complainant Shamalbai [P.W.2] shows that
she was not visiting matrimonial house of the deceased. She was
living separate from her husband as she has some dispute with the
husband. She has expressed suspicion that accused no.1 had
illicit relations with accused no.2 but she has not given any source
of information or reasons as to why she had suspicion. Only on
the basis of such suspicion expressed, inference cannot be drawn
that there was some relationship between accused nos.1 and 2. In
the cross examination, she has admitted that accused was known
to her family right from his childhood and that is why marriage of
the accused was settled with her daughter. She gave report after
3 days of the incident and she has not given any explanation for
the same.
It is not her case that in the two letters sent by
deceased to her, she wanted to express some grievance against
accused.
11]
Fulchand Bhosle [P.W.3] is the husband of complainant and
father of the deceased. He admits that accused no.1 was related
as brother on maternal side to complainant [P.W.2] and so this
marriage was settled. He tried to exaggerate the things by saying
that deceased told him that accused was demanding 5 Grams of
gold on the occasion of Dohal Jevan which was to be arranged.
His evidence shows that he was not meeting accused no.1
frequently and he had not kept contact with him.
Thus, his
evidence shows that he has no personal knowledge about the
relationship and grievance of the deceased. Ranjana [P.W.5] is
sister of complainant.
She has admitted that the accused was
insisting that father of the complainant should settle the account as
the accused no.1 used to hand over his salary to him prior to the
marriage.
This amount was not returned by father of the
complainant even when the accused no.1 was in need of money
for the marriage of his sister. Other evidence of this witness is
12]
similar to the evidence of [P.W.2].
Lalita [P.W.4] has given evidence that she got acquainted
with accused no.2 and the deceased few days prior to the date of
incident. She has tried to say that deceased had made disclosure
to her on atleast 2 occasions and she had expressed grievance
against the husband that the husband was not visiting the house
where she was living. Her evidence shows that every time,
deceased used to go to her with accused no.2. She has tried to
say that there was probably illicit relations between accused nos.1
and 2. She has also tried to say that when she rushed to the
house of the deceased after incident of fire, the deceased said to
her that on the previous night, accused had given trouble to her
and he had said that she should not live in that house. In view of
history given by deceased to Doctor which came to be recorded,
not much weight can be given to the so-called disclosure made by
deceased to Lalita [P.W.4]. In the cross examination, she has
admitted that she had not specifically informed to police that she
has suspicion that accused no.1 was having illicit relations with
accused no.2
13]
The evidence of Investigating Officer shows that he did not
take proper steps in respect of certain articles which were taken
over from the spot of offence. When there is allegation that it is
case of suicide, step like sending them to C.A. office is required to
The deceased was carrying of more than 7 months. The
14]
be taken. This is again a lacunae in the case of prosecution.
deceased was not visiting the house of her parents as they were
living separate from each other and they had the dispute.
Deceased cohabited with the accused in the house of his parents
and then with the accused and during short period of cohabitation,
she became pregnant. She did not blame anybody when she gave
history of the incident to the Doctor. All these circumstances are
sufficient to create probability that it was accidental fire. There is
possibility that due to the dispute which accused had with father of
the complainant, the belated report came to be given to pressurize
him. The trial Court has rightly not believed these witnesses. The
view taken by the trial Court is a possible view. So, the Appeal
stands dismissed.
[T.V.NALAWADE,J.]
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