Case Note & Summary
The State of Maharashtra filed an appeal against the judgment and order of acquittal dated 30 June 2001 passed by the 4th Ad-hoc Assistant Sessions Judge, Kolhapur in Sessions Case No. 143 of 1999, acquitting the respondents (original accused) for offences punishable under Sections 498A, 304B, 306, 323 and 504 read with 34 of the Indian Penal Code, 1860 (IPC). The prosecution case was that Vasanti Rajesh Dhaware (deceased) was married to accused No. 1 Rajesh Sadashiv Dhaware. Accused No. 2 Sadashiv Sawalarama Dhaware was her father-in-law and accused No. 3 Ashok @ Ajit Sadashiv Dhaware was her brother-in-law. On 18 April 1999, the deceased sustained burn injuries and was admitted to C.P.R. Hospital, Kolhapur. Police Head Constable Usman Bapu Mujawar (PW-8) recorded her statement (Exh. 44) after obtaining an endorsement from Medical Officer Dr. Reshma Paygonda Patil (PW-6) that she was conscious. The statement was treated as a dying declaration and FIR. In the dying declaration, the deceased alleged that after marriage, all accused ill-treated and beat her because no honour was given to them at the time of marriage. She also stated that on the previous Thursday, a quarrel occurred with accused No. 2 regarding inadequate dinner. On the day of the incident, accused No. 1 poured kerosene on her and set her on fire. She died on 20 April 1999. The trial court acquitted all accused, finding the dying declaration unreliable and the prosecution evidence insufficient. The State appealed. The High Court examined the dying declaration and found it suspicious because the deceased had 90% burns, the doctor's endorsement was not specific about her consciousness, and the statement was recorded by a police officer without prior intimation to the Magistrate. The court also noted that the father of the deceased (PW-1) turned hostile and did not support the prosecution. The court held that the dying declaration was not free from doubt and could not be the sole basis for conviction. The court further held that the presumption under Section 113B of the Evidence Act was not attracted as the prosecution failed to prove any demand of dowry or cruelty soon before death. The charges under Sections 498A, 304B, 306, 323 and 504 IPC were not proved beyond reasonable doubt. The court dismissed the appeal and confirmed the acquittal.
Headnote
A) Criminal Law - Dying Declaration - Reliability - Indian Evidence Act, 1872, Section 32(1) - The court examined the dying declaration (Exh. 44) and found it suspicious because the deceased was a burn patient with 90% burns, the doctor's endorsement was not specific about consciousness, and the statement was recorded by a police head constable without prior information to the Magistrate. Held that the dying declaration was not free from doubt and could not be the sole basis for conviction (Paras 10-15). B) Dowry Death - Presumption under Section 113B - Indian Evidence Act, 1872, Section 113B; Indian Penal Code, 1860, Section 304B - The court held that the presumption of dowry death under Section 113B of the Evidence Act is rebuttable and arises only if the prosecution proves that the deceased was subjected to cruelty or harassment in connection with demand of dowry soon before her death. In this case, the dying declaration did not mention any dowry demand, and the prosecution failed to establish the essential ingredients. Held that the presumption was not attracted (Paras 16-20). C) Cruelty by Husband or Relatives - Section 498A IPC - Indian Penal Code, 1860, Section 498A - The court found that the allegations of ill-treatment in the dying declaration were vague and not corroborated by independent witnesses. The prosecution's witnesses, including the father of the deceased (PW-1), turned hostile and did not support the case. Held that the charge under Section 498A IPC was not proved beyond reasonable doubt (Paras 21-25). D) Abetment of Suicide - Section 306 IPC - Indian Penal Code, 1860, Section 306 - The court observed that there was no evidence to show that the accused instigated or abetted the deceased to commit suicide. The dying declaration did not indicate any direct or indirect act of abetment. Held that the offence under Section 306 IPC was not made out (Paras 26-28).
Issue of Consideration
Whether the dying declaration of the deceased was reliable and sufficient to convict the accused for offences under Sections 498A, 304B, 306, 323 and 504 read with 34 IPC, and whether the trial court's acquittal was perverse.
Final Decision
The High Court dismissed the appeal and confirmed the acquittal of the respondents for all offences.
Law Points
- Dying declaration must be reliable and free from doubt
- corroboration may be required if suspicious
- presumption under Section 113B of Evidence Act is rebuttable
- cruelty must be proved for Section 498A
- demand of dowry must be established for Section 304B
