Bombay High CourtThe State Of Maharashtra vs Vijay Tukaram Kusalkar And Others on 25 February, 2015Bench:S.S. Shinde,A.M. Badar6802.13crapln
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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                             




                                                       
                         BENCH AT AURANGABAD.

             CRIMINAL APPLICATION NO. 6802 OF 2013




                                                      
     THE STATE OF MAHARASHTRA.                          ... APPLICANT.

            VERSUS




                                    
     VIJAY TUKARAM KUSALKAR 
     AND OTHERS.  ig                                    ... RESPONDENTS.

                                  ...
           APP for Applicant/State : Mrs.S.G. Chincholkar.
                
         Advocate for Respondents : Mr.Bhosale Abhaysinh K.
                                  ...
                                       
                    CORAM : S.S. SHINDE & A.M. BADAR, JJ.
      


                                          Dated: 25th FEBRUARY, 2015. 
   



     COURT ORDER: (Per Badar,J)

            This   is   an   application   by   the   State   seeking   leave   to 





     appeal   for   challenging   the   judgment   and   order   dated 

     3.9.2013 passed by the learned Additional Sessions Judge, 





     Sangamner   in   Sessions   Case   No.   18/2009   thereby 

     acquitting   the   respondents     -   accused   of   the   offences 

     punishable   under   Sections   302   and   498-A   r/w   34   of   theIndian Penal Code, 1860.  




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     2.     Heard   learned   APP   for   the   State.     She   vehemently 




                                                 
     argued that two dying  declarations of deceased  Rekha  are 

     consistent and point out finger to guilt to the respondents - 

     accused.  Apart from those dying declarations, there are oral 




                                                
     dying declarations of deceased Rekha made to her relatives 

     which   show   that   respondent   -  accused   No.1   husband,   on 




                                   
     instigation   of   other   accused   persons,   set   Rekha   ablaze 
                 
     thereby  causing  her homicidal death.   She further  argued 

     that the evidence of uncles and mother of deceased Rekha is 
                
     sufficient to infer cruelty as defined bysection 498-Aof the 

     the Indian Penal Code, 1860 and as such, view taken by the 
      


     learned   Additional   Sessions   Judge   in   acquitting   the 
   



     respondents   -   accused   is   perverse.   As   against   this,   the 

     learned   Counsel   appearing   for   respondents   /   accused 





     supported the impugned judgment and order of acquittal.



     3.     With the assistance of the learned Counsel appearing 





     for   the   parties,   we   have   gone   through   the   record   and 

     proceedings   including   deposition   of   witnesses   and 

     documents placed on record.  



     4.     Few   facts   needs   to   be   noted   in   order   to   decide   the 




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     present  application.   Undispsutedly, respondent - accused 




                                                    
     No.1   is   husband   of   deceased   Rekha   whereas,   rest   of   the 

     respondents are his relatives.   Respondent No.1 - accused 

     Vijay got married with Rekha in the year, 1997.  Rekha was 




                                                   
     serving   as   Helper   to   Cook   in   Government   Ashram   School 

     situated at village   Jawale Baleshwar, where her husband 




                                     
     accused No.1 Vijay was serving there as Lab Assistant.  The 
                  
     couple was residing in the official accommodation provided 

     by   the   said   school.     It   is   case   of   the   prosecution   that   as 
                 
     deceased Rekha was issue-less, respondents - accused were 

     instigating   her   husband-accused   No.1   Vijay   to   perform 
      


     second   marriage   and   on  that   count,  they   used   to  ill-treat 
   



     her.  She was put to starvation by not providing food to her. 

     Respondent   No.1   /   accused   Vijay   used   to   beat   her   for 





     securing her consent for second marriage.  According to the 

     prosecution case, incident of incineration of Rekha occurred 

     on 24.7.2008 at the residential house of the couple.   It is 





     case   of   the   prosecution   that   respondent   -   accused   No.1 

     Vijay   picked  up quarrel with Rekha  on petty reason that 

     she is unable to do household work and she is not liked by 

     him.     During   the   course   of   that   quarrel,   according  to   the 

     prosecution, accused No.1 threw a burning match stick on 




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     the person of  Rekha.  Her cotton gown as such caught fire 




                                               
     and she suffered burns.  She was then taken to Gaganagiri 

     Hospital, Sangamner for treatment and from there, she was 

     shifted   to   Unity   General   Hospital,   Sangamner   where,   she 




                                              
     succumbed to injuries on 24.7.2008.




                                 
     5.     Death   of   Rekha   Kusalkar   occurring   on   24.07.2008 
                 
     due to burn injuries is not in dispute.   Evidence of PW-10 

     Dr.Laxman   Gadekar   of   Unity   Hospital,   Sangamner   shows 
                
     that while taking treatment of 60% burn injuries suffered by 

     her, Rekha died due to shock on account of septicemia on 
      


     24.07.2008 at his Hospital.   Evidence of PW-13 Dr. Sanjay 
   



     Ghogare,  Autopsy  Surgeon,  which  is  duly  corroborated  by 

     P.M.report Exh.86 shows that death of Rekha Kusalkar was 





     due   to   septicemic   shock   secondary   to   burns.     Let   us 

     therefore   examine   whether   this   death   is   proved   to   be 

     homicidal and the same is authored by accused persons in 





     furtherance of their common intention.    



     6.     We have seen on record three officially recorded dying 

     declarations of deceased Rekha Kusalkar. Prior to adverting 

     on   dying   declarations   of   deceased   Rekha,   we   may   put   on 




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     record the law relating to the dying declarations set out by 




                                                
     catena  of judgments  of this Court  as well as  those  of the 

     Honourable   Apex   Court.     It   is   well   settled   that   dying 

     declaration   enjoins   a   sacrosanct  status,   as   a   piece   of 




                                               
     evidence, as it comes from the mouth of the person who is 

     about to die and a sense of an impending  death prevents 




                                  
     such person from speaking lie.   At the same time, we may 
                 
     note that the dying declaration is not a deposition before the 

     Court.   It is neither  made on oath nor in presence of the 
                
     accused.     Its   credence   cannot   be   tested   by   cross-

     examination of the declarant.     Because  of these  inherent 
      


     weaknesses in the dying declaration, no initial presumption 
   



     can be raised that dying declaration contains nothing but 

     the truth. To test credibility of the dying declaration, Court 





     is, therefore, required to apply various tests and to keep in 

     mind various factors.  Consistency is one of such factor.  In 

     case of plural dying declarations, all dying declarations are 





     required to be consistent in material particulars though first 

     in point of time is to be preferred.  In other words, the Court 

     is required to rule out the possibility of a statement being 

     result   of   prompting,   tutoring   or   vindictiveness   of   the 

     declarant   or   product   of   imagination   of   the   declarant.     If 




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     ultimately,   the   truthfulness   of   the   dying   declaration   is 




                                             
     established beyond doubt, conviction can be based upon it. 



     7.    Now   let   us   consider   dying   declarations   of   deceased 




                                            
     Rekha brought on record by the prosecution on the touch 

     stone of this settled law.   We may come to her first dying 




                                
     declaration   subsequently,   as   it   is   pointing   that   she 
                
     sustained accidental burns.   Her second dying declaration 

     [Exh.88] came to be recorded at Unity General Hospital by 
               
     P.W.14   Mangalsing   Mohansing   Pardeshi,   Police   Head 

     Constable, Taluka police Station, Sangamner on 25.5.2008. 
      

     In her   second  dying   declaration  [Exh.88],  deceased  Rekha 
   



     has stated that other accused persons used to instigate her 

     husband to desert her and to perform second marriage as 





     she was not having an issue.   According to the declarant, 

     then on 24.5.2008 her husband picked up quarrel with her 

     on petty reason and in the course of that quarrel, he went in 





     the   kitchen   and   threw   burning   match   stick   on   her. 

     Resultantly, her gown caught fire and she sustained burns.



     8.    On the basis of this second dying declaration [Exh.88] 

     recorded   by   P.W.14   Mangalsingh   Pardeshi,   Crime   No.I-




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     170/2008   u/s   307,   498-A,   323,   504,   506   r/w   34   of   theIndian Penal  Codecame  to be  registered.       After  death of 

     Rekha Kusalkar,Section 302of I.P.Code was added to the 

     case diary of the crime.   




                                                 
     9.     We may note that this dying declaration of deceased 




                                    
     Rekha is shrouded in mystery.  It is written on two sheets of 
                  
     paper by P.W.14 Mangaldas Pardeshi.   On second sheet of 

     paper which is marked as page 3 of her dying declaration, 
                 
     an endorsement is appearing on the top portion to the effect 

     that   the   said   page   is   page   2   of   the   FIR   in   Crime   No.I-
      


     170/2008   u/s   307,   498-A,   323,   504,   506   r/w   34   of   theIndian Penal Code. When the crime itself was registered on 

     the  basis  of  this  2nd  dying  declaration  [Exh.88],   we fail  to 





     understand   as   to   how   at   the   time   of   recording   the   dying 

     declaration,   on   page   3   thereof,   a   note   to   this   effect   can 

     appear.  At the time of recording this dying declaration, the 





     crime   No.I-170/2008   was   not   registered   at   all.     This 

     endorsement   as   such   gives   an   impression   that   the   said 

     dying declaration came to be tampered subsequently.   



     10.    In normal circumstances, we would have ignored that 




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     note on page 3 of the dying declaration Exh.88.  However, it 




                                                    
     has   another   angle.     From   evidence   of   P.W.14   Mangalsing 

     Pardeshi, Head Constable, the prosecution has proved the 

     letter   addressed   by   Taluka   Police   Station,   Sangamner   to 




                                                   
     Naib   Tahsildar   containing   a   request   to   record   dying 

     declaration of deceased Rekha. That letter is at Exh.89.  On 




                                     
     the   back   side   of   that   letter,   there   is   a   writing   written   in 
                   
     handwriting   of   P.W.14   Mangalsing   Pardeshi,   who   has 

     recorded   this   dying   declaration   Exh.88.   We   need   it   fit   to 
                  
     reproduce that handwritten portion for better understanding 

     and and that portion exhibited at Exh.91 reads, thus- 
      
   



              " lkseukFk lqikjs jk-'ksoxko ;kauh ek>k osGksosGh 'kkfjjhd ekufld =kl
              nsmu R;kaps lkax.;ko:u uo&;kus ekjgk.k d:u mik'kh iksVh Bsmu
              eyk euLrki gksbZy eh vkRegR;sl izo`Rr gksbZy vls d`R; dj.;kl
              izo`Rr dj.;kl Hkkx ikMkos ;k mnns'kkus ojhy yksdkauh =kl fnyk eyk





              uo&;kus ftos "
                                                           [Emphasis supplied]





     11.      At this juncture, we also feel it necessary  reproduce 

     page   3   of   the   dying   declaration   at   Exh.88   recorded   by 

     P.W.14 Mangalsing Pardeshi, Head Constable and it reads, 

     thus -




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           " laxeusj rkyqdk iks-LVs- xq-j-ua I 170@2008 Hkk- n-fo- dye 307
           498 ¼ v ½ 323] 504]506] 34 ps xqUg;kps fQ;kZnhps iku ua-2 iq<s pkyw  "




                                                     
           lkseukFk lqikjs loZ jk-'ksoxko rk-laxeusj ;kauh ek>kk osGksosGh 'kkfjjhd ekufld
           =kl nsowu uojk fot; rqdkjke dqlkGdj ;kus eyk osGksosGh f'kohxkG d:u
           R;kps lkax.kso:u ekjgk.k d:u mik'kh iksVh Bsmu eyk fnukad 24@5@2008
           jksth ekxhy HkkaM.kkps dkj.kko:u jk=h 8-30 ok- HkkaM.kkr dkMsph isVhrhy dkMh




                                                    
           isVowu ek>s xkmuoj Qsdwu fnyh- vkeps gkWy e/khy QWu pkyw vlY;kus eh [kwi
           Hkktys vkgs- rfj ek>hy ojhy yksdku fo:/n dk;ns'khj fQ;kZn vkgs-
                    ek>h fQ;kZn eh okpwu ikfgyh rh ek>s lkax.ks izek.ks cjkscj vkgs-

           le{k                                            gs fygwu fnys
                                                       rk-25@5@2008




                                        
           iks-gsM dkW- laxeusj rkyqdk                                  lfuva
           iks- LVs'ku
                   ig                                     lkS- js[kk fot; dqlkGdj ghpk
                                             nLrqj ¼dkdk ½ ikaMqjax Eglq xk;dokM
                                             o; 49 jk-eapj rk-vacsxko ft-iq.ks

                                                   Jh-ikaMqjax Eglq xk;dokM"
                 
     12.   Conjoint   reading   of   both   these   documents   i.e. 

     handwritten   portion   of   P.W.14   Mangalsing   Pardeshi   at 
      


     Exh.91 and page 3 of dying declaration at Exh.88 goes to 
   



     show that in fact, the hand written  portion at Exh.91 could 

     have been third page of this dying declaration at Exh.88 as 





     both   the   writings  are   conveying   the  same  meaning   except 

     cause of sustaining burns.   Exh.91 denotes that deceased 

     Rekha   was   prompted   to   indulge   in     self-effacement   by 





     accused   persons.   What   was   an   occasion   for   PW-14 

     Mangalsing to write the document at Exh.91 resembling the 

     dying declaration Exh.88 is a factor which went unexplained 

     in   the   evidence   adduced   by   the   prosecution.     Thus,   a 

     reasonable   doubt   lurks   in   judicial   mind   that   P.W.14 




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     Mangalsing Pardeshi, Head Constable, might have tampered 




                                                 
     with   this   officially   recorded   dying   declaration   Exh.88   in 

     order to bolster   up prosecution case by converting it from 

     suicidal   burns   to   homicidal   burns   and   by   attributing 




                                                
     authorship of those homicidal burns to accused persons.    




                                   
     13.    Be that as it may, the next dying declaration [Exh.93] 
                 
     of   deceased   Rekha   was   recorded   on   28.5.2008   by   P.W.15 

     Shaikh Najir Abdul Gani, P.S.I. at Police Taluka Station.  In 
                
     this third dying declaration, deceased Rekha came up with a 

     total   different   story   about   sustaining   burns   by   her.     This 
      


     dying declaration  [Exh.93] contains declaration of deceased 
   



     Rekha   to   the   effect   that   respondent   -   accused   No.1   Vijay 

     told her that he has married Nirmala Kisan Dhanwate and 





     therefore,   she   [Rekha]   told   this   fact   to   her   mother,   uncle 

     and maternal uncle.   Then, as per the declarant, by taking 

     leave in the month of March and by giving some false reason 





     to her husband, she went to the house of Nirmala to verify 

     this fact and found the disclosure of her husband / accused 

     No.1 to be true.   The declarant further alleged that at that 

     time,   said   Nirmala   and   her   parents     tried   to   assault   her. 

     She   further   stated   that   on   her   way   back,   her   husband, 




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     father-in-law   and   brother-in-law   met   her.     At   that   time, 




                                                 
     father of Nirmala was also present.  She further stated that, 

     they all assaulted her on the road.  Thereafter, the declarant 

     has   given   cause   of   sustaining   burn   injuries   by   her. 




                                                
     According   to   her,   at   her   house,   her   husband   /   accused 

     No.1, threw a burning match stick on her person and set 




                                   
     her on fire.   
                 
     14.    Apart from these two dying declarations relied on by 
                
     the   prosecution,   prosecution   is   also   relying   on   four   oral 

     dying declarations of the deceased Rekha allegedly made by 
      


     her to her near and dear ones.     P.W.2 Pandurang Mhasu 
   



     Gaikwad  and  P.W.4   Vijaykumar  Lahanu  Jethe  -  uncles   of 

     deceased Rekha unanimously stated that Rekha told them 





     that quarrel took place between her and her husband Vijay 

     and   in   the   course   of   that   quarrel,   accused   Vijay   threw   a 

     burning match stick, causing burns to her.   On the same 





     line, P.W.6 Ashok Pandurang Jethe, her another uncle has 

     stated   that   as   per   narration   of   deceased   Rekha,   in   the 

     course of quarrel, her husband Vijay set her on fire.  On this 

     backdrop, P.W.3 Sumanbai Laxman Dhanwate - mother of 

     deceased   Rekha   has   stated   totally   different   disclosure   of 




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     Rekha to her.  As per her version, Rekha told her that in the 




                                                
     night hours, somebody dropped burning match stick on her 

     causing burns to her.  




                                               
     15.    We   may   note   that   two   officially   recorded   dying 

     declarations relied on by the prosecution viz. Exhs.88 and 




                                  
     93 are giving entirely divergent   version of deceased Rekha 
                 
     about sustaining burns.  Two different stories are disclosed 

     by her in both these dying declarations and ultimately she 
                
     has   stated   in   both   these   declarations   that   it   was   her 

     husband   who   caused   burn   injuries   to   her.     In   such   a 
      


     situation,   let   us   examine   whether   the   spot   panchanama 
   



     corroborates version of the deceased.   The spot came to be 

     examined by P.W.14 Mangalsing Pardeshi, Head Constable, 





     on   26.5.2008   in   presence   of   panch   witness   P.W.11   Vilas 

     Khandagale.  The spot was official residence provided to the 

     couple in the premises   of the Ashram School.   In the first 





     room   of   that   house,   Investigating   Officer   found   partially 

     burnt plastic mat as well as pillow.  Burnt pieces of gown of 

     deceased Rekha were also found at that place.   In front of 

     bathroom   of   that   house,   wet   half   burnt   gown   as   well   as 

     petticoat   were   found.     All  these   articles   were  seized   while 




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     recording   spot   panchanama   (Exh.82).     These   cloths   of 




                                              
     deceased Rekha were subjected to chemical analysis by the 

     Investigating Officer.  Report of the Chemical Analyzer is at 

     Exh.72.  This report shows that burnt pieces of gown as well 




                                             
     as half burnt  gown and  petticoat  of  deceased  Rekha  were 

     stained with kerosene and residues of kerosene were found 




                                 
     on all these clothes.    This evidence  rather contradicts the 
                 
     dying   declaration   of   deceased   Rekha.     She   has   no   where 

     disclosed   that   initially   her   husband   drenched   her   with 
                
     kerosene   and   then   he   ignited   her.     Finding   of   kerosene 

     residues   on   the   clothes   of   deceased   Rekha   raises   a 
      


     reasonable doubt in mind that deceased Rekha might have 
   



     died suicidal death after sprinkling kerosene on her person 

     and then setting herself ablaze.   The document at Exh.91 





     which   appears   to   be   a   discarded   portion   of   officially 

     recorded dying declaration [Exh.88]  by  P.W.14 Mangalsing 

     Pardeshi   pointing   out   suicidal   burns,   strengthens   this 





     doubt on the prosecution case.   



     16.    At this juncture, let us examine the very first officially 

     recorded   dying   declaration   of   deceased   Rekha   which   was 

     suppressed  by  the prosecution and proved  by  the defence 




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     through   D.W.1   Ashok   Rajaram   Kodam,   Assistant   Sub 




                                                  
     Inspector   of   the   Taluka   Police   Station.     This   dying 

     declaration   at   Exh.99   shows   that   on   24.5.2008   at   about 

     8.30  p.m.,  declarant   Rekha  was igniting  stove   for  cooking 




                                                 
     food   and   in   that   process,   the   stove   flared   up   and   Rekha 

     caught fire. This dying declaration shows that Rekha rushed 




                                   
     to first room of her house where her husband poured water 
                  
     and   extinguished  fire.       It   is  worthwhile   to   note   that   this 

     dying declaration Exh.99 was attested by parental relative of 
                 
     Rekha   namely,   Sunil   Jethe.     At   this   juncture,   it   is 

     worthwhile   to   note   that   burnt   gown   and   petticoat   of 
      


     deceased Rekha was found wet by the Investigating Officer 
   



     as   noted   in   spot   panchanama   Exh.82.     Thus,   the   spot 

     panchnama   is   giving   credence   to   the   truthfulness   of   the 





     dying   declaration   at   Exh.99   pointing   out   sustaining 

     accidental burns by Rekha.  





     17.    To   conclude,   we   are   having   inconsistent   dying 

     declarations   of   deceased   Rekha   on   record   which   are 

     pointing   out   that   her   death   may   be   accidental   death, 

     suicidal   death   or   homicidal   death.     There   is   no   scope   to 

     determine   as   to   which   one   of   these   dying   declaration   is 




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     truthful.  Since the sphere of scrutiny of dying declaration is 




                                                
     restricted   area,   this   court   cannot   afford   to   sideline   such 

     material divergence in dying declarations of deceased Rekha 

     and naturally, therefore, it is not safe to place reliance on 




                                               
     these dying declarations.  As such, there is other alternative 

     but   to  reject   all  these   dying   declarations   of   deceased   and 




                                  
     benefit   of   doubt   as   such   ultimately   goes   to   the   accused 
                 
     persons.     As   pointed   out,   her   oral   dying   declarations 

     disclosed in cryptic manner by her near and dear ones are 
                
     also   not   consistent   and   trustworthy.     They   are   not   giving 

     corroboration from other evidence on record.    
      
   



     18.    In the result, we find no infirmity in the judgment of 

     the learned trial Court so far as acquittal of respondents for 





     the   offence   punishable   underSection   302r.w.   34   of   theIndian Penal Codeis concerned.  Reasonable view seems to 

     have been taken by the learned trial Court on this aspect.   





     19.    The   next   charge   levelled   against   the   respondent   - 

     accused   is   underSection   498Aof   the   Indian   Penal   Code. 

     According to the prosecution case, respondent - accused ill-

     treated   deceased   Rekha   and   subjected   her   to   cruelty   by 




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     levelling insinuations.   that she is unable to beget a child. 




                                                 
     To   prove   cruelty,   prosecution   has   examined   witnesses 

     namely,   P.W.2   Pandurang   Gaikwad,   P.W.4   Vijaykumar 

     Jethe,   who   are   uncles   of   deceased   and   P.W.3   Suman 




                                                
     Dhanwate     who   is   her   mother.     Evidence   of   these   three 

     witnesses   go   to   show   that   accused   persons   were   not 




                                   
     providing food to deceased Rekha, they were instigating her 
                 
     husband   Vijay   to   perform   second   marriage   and   on   their 

     instigation,   accused   Vijay   used   to   beat   her   mercilessly   in 
                
     order   to   obtain   her   consent   for   second   marriage.     This, 

     according   to   the   prosecution,   amounts   to   cruelty   to   a 
      


     married woman.  The concept of cruelty varies from place to 
   



     place and person to person.   Leveling the allegation that a 

     married woman is infertile and  incapable of bearing a child 





     may amount to mental cruelty to her.   However, from the 

     evidence   on   record,   it   is   seen   that   initially   deceased   had 

     given birth to a female child which died subsequently.   We 





     find   that   in   the   case   in   hand,   evidence   regarding   cruel 

     treatment   to   the   deceased   is   coming   from   near   and   dear 

     ones of deceased.   The natural tendency of such witnesses 

     is to exaggerate facts even unconsciously  and this tendency 

     is noted by  the Apex Court in the matter of  Dalip Singh  




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     and others vs. The State of Punjab1  as well as  Sharad  




                                                  
     Birdhichand Sarda vs. State of Maharasthra 2.  As such, 

     one   will   have   to   test   evidence   of   near   and   dear   ones   of 

     deceased   Rekha   from   other   evidence   available   on   record. 




                                                 
     The   prosecution   examined   P.W.7   Sampat   Chandu   Kale   - 

     Head   Master   of   the   said   Ashram   School   where   deceased 




                                   
     Rekha and her husband were working.  P.W.7 Sampat used 
                  
     to   reside   in   school   premises   itself   where     the   couple   was 

     residing.     His   evidence   shows   that   he   was   watching   the 
                 
     couple right from the year, 2005.   His evidence shows that 

     the  couple  was residing   happily   and  was leading  a  happy 
      


     married life.   As per evidence of this witness, there used to 
   



     be no quarrel between them.   There is no reason for PW-7 

     Sampat   to   lie.     We   find   his   evidence   trustworthy.     In  the 





     wake of this evidence coming from mouth of an independent 

     person,   we   find   no   fault   in   the   conclusion   of   the   learned 

     trial   Court   in   acquitting   respondents   -   accused   of   the 





     offence punishable undersection 498Aof the Indian Penal 

     Code.



     20.     In the result, a plausible and reasonable view taken 

     1 AIR 1953 SC 364;
     2 AIR 1984 SC 1622;




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     by   the   learned   trial   Court   in   acquitting   accused   persons 




                                               
     needs no interference and, therefore, the order:



                                  : ORDER :Application is rejected and  consequently, leave is 

     refused.( A.M. BADAR, J. )               ( S.S. SHINDE, J. ) 
                  
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