ASHABAI Vs STATE OF MAHARASHTRA
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-001062-001062 / 2008
Diary number: 16585 / 2007
Advocates: NARESH KUMAR Vs
ASHA GOPALAN NAIR
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1062 OF 2008
Ashabai & Anr. .... Appellant(s)
Versus
State of Maharashtra .... Respondent(s)
J U D G M E N T P.Sathasivam,J.
1) This appeal is directed against the judgment and order
dated 11.04.2007 passed by the High Court of Bombay,
Bench at Aurangabad in Criminal Appeal No. 252 of 2005
whereby the High Court dismissed the appeal filed by the
appellants herein and confirmed the order dated 30.03.2005
passed by the Court of IInd Ad-hoc Additional Sessions Judge,
Jalgaon in Sessions Case No. 165 of 2003.
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2) Brief facts:
a) On 28.02.2000, Vandana Raghunath Tayade (since
deceased) was married to one Raghunath Puna Tayade at
Village Khirwad, Taluq Raver, Dist. Jalgaon, Maharashtra.
After marriage, she was staying at her matrimonial home in a
joint family consisting of her husband, Kesharbai (A-1)
mother-in-law, father-in-law and two sisters-in-law, viz.,
Ashabai and Kavita (appellants herein). Since there was no
issue from the marriage, she was ill-treated by her mother-
in-law and sisters-in-law. On that count, they used to harass
her and both the families were not in good terms.
b) On 05.03.2003, at about 1645 hrs., when Vandana was
in her matrimonial home, Kesharbai (mother-in-law), in order
to get rid of her, poured kerosene on her body and Ashabai
and Kavita (appellants herein) – sisters-in-law instigated
Kesharbai to lit the fire by using a matchstick. She started
shouting and caught hold of her mother-in-law in the burnt
condition. Vandana and Kesharbai, both were taken to the
Railway Hospital, Bhusawal and her statement was recorded
on the very same day. Between 05.03.2003 to 06.03.2003,
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the injured gave, in all, 4 dying declarations one by one to
the authorities concerned. On 18.04.2003, she succumbed
to her injuries and the post-mortem was conducted on the
same day and a case being A.D. No. 15 of 2003 was
registered.
c) After investigation, charge sheet was filed against six
accused persons, i.e., Kesharbai (A-1), Ashabai Puna Tayade
(A-2) and Kavita Ajay Medhe (A-3)-appellants herein, Puna
Mitharam Tayade, Shobha Sitaram Tayade and Sitaram
Ramaji Tayade and the case was committed to the Court of
the IInd Ad-hoc Additional Sessions Judge, Jalgaon and
numbered as Sessions Case No. 165 of 2003. The Additional
Sessions Judge, by order dated 30.03.2005, convicted A-1, A-
2 and A-3 under Section 498-A read with Section 34 of the
Indian Penal Code, 1860 (in short ‘IPC’ ) and sentenced them
to undergo RI for 1 year along with a fine of Rs. 1,000/- each,
in default, to further undergo RI for 3 months. They were
also convicted under Section 302 read with Section 34 of IPC
and sentenced to suffer imprisonment for life along with a
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fine of Rs. 2,000/- each, in default, to further undergo RI for 6
months and acquitted the other accused persons.
d) Challenging the said judgment, the appellants herein
filed Criminal Appeal No. 252 of 2005 before the High Court.
By impugned order dated 11.04.2007, the High Court,
dismissed the appeal filed by the appellants herein and
confirmed their conviction and sentence passed against
them by the trial Court.
3) Heard Mr. Sudhanshu S. Choudhari, learned counsel for
the appellants-accused and Ms. Aprajita Singh, learned
counsel for the State.
Discussion:
4) The present appeal is by Ashabai (A-2) and Kavita Ajay
Medhe (A-3), both sisters-in-law of the deceased. Kesharbai
(A-1) - mother-in-law of the deceased, who was also
convicted and sentenced to RI for life filed a separate appeal
being Criminal Appeal No. 1063 of 2008 before this Court.
Since she died on 10.02.2012, by order dated 13.12.2012,
this Court dismissed her appeal as abated. Therefore, we are
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concerned about the present appellants, namely, Ashabai (A-
2) and Kavita Ajay Medhe (A-3) respectively.
5) The marriage of the deceased Vandana with one
Raghunath was solemnized on 28.02.2000 and her death
occurred on 18.04.2003, i.e., her married life came to an end
within 3 years of her marriage. The entire prosecution case
lies on 4 dying declarations made by the deceased and the
oral evidence of PWs 1, 2, 3 and 11.
Dying Declaration No. 1 (Exh.76):
6) The first dying declaration was recorded by Shri Dhondu
(PW-14), Sub-inspector of Police, Sarkarwade P.S., Nasik on
05.03.2003. In her statement before PW-14, she narrated
that her marriage was solemnized on 28.02.2000 at Khirwar
and she was residing at Shantinagar, Someshwar Colony,
Bhusawal along with her husband-Raghunath, Punna - father-
in-law, Kesharbai - mother-in-law, Ashabai and Kavita -
sisters-in-law. She further stated that her husband was
working as an Assistant Station Master at Bhusawal, her
father-in-law retired from Railways and she along with her
mother-in-law and sisters-in-law stayed at home. As she was
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not able to conceive even after 3 years of marriage, her
mother-in-law and sisters-in-law always used to abuse her
that she was ‘barren’. They used to say that she should not
stay in the house and better she would die. On 04.01.2003,
all the three assaulted her in front of her brother. On
05.03.2003, at about 7 o’clock in the morning, when she
entered into the house along with her husband after their
return from Mumbai, her mother-in-law and sisters-in-law,
viz., Ashabai and Kavita shouted that the barren lady has
come and telling her husband that he should not keep the
unproductive lady in their house. After quarrelling with her
mother-in-law, her husband went for duty. At about 4.45
p.m., when she came to her bedroom after taking a wash
and was standing facing towards east in the place in
between the cupboard and the cot, at that time, her mother-
in-law – Kesharbai (A-1) came from behind with her sisters-in-
law Ashabai and Kavita. She was holding a tin of kerosene in
her hands and she poured kerosene on her from neck to legs.
While doing so, her sisters-in-law directed her mother-in-law
to light the matchstick. Accordingly, the mother-in-law lit the
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matchstick. On seeing this, her father-in-law and sisters-in-
law poured water on her and extinguished the fire. The
above statement is duly certified by the Doctor on duty- Shri
T.F. Ramesh that she was conscious and able to give a
statement. It is clear that in this declaration she has not
implicated her husband and father-in-law. On the other
hand, she asserted that she was tortured by her mother-in-
law (A-1) and sisters-in-law (A-2 and A-3). She also specified
that it was her mother-in-law who poured kerosene on the
direction of her sisters-in-law.
Dying Declaration No.2 (Exh. 45):
7) This statement was made by the deceased before the
Executive Magistrate, Bhusawal on 05.03.2003 at 11.10 p.m.
which was marked as Exh. 45 and is in the form of questions
and answers. When the Executive Magistrate asked what
had happened on that day, she answered that “my mother-
in-law by name, Kesharbai Puna Tayde poured kerosene on
me and burnt”. She further mentioned that the said incident
took place at about 4.30 to 5.00 p.m. on 05.03.2003. In
respect of another question by the Magistrate, namely, who
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were there in the house, she answered that her mother-in-
law and sisters-in-law, by name, Ashabai and Kavita were
there in the house and they told to light the matchstick. She
also mentioned that at the relevant time, her husband and
father-in-law were not in the house. The very same doctor,
who certified her condition in the statement recorded by PW-
14 also certified that the declarant was conscious to give a
statement. He also mentioned the date and time as
05.03.2003 at 11.10 p.m. This declaration, which was duly
recorded by the Executive Magistrate, Bhusawal (PW-7)
clearly shows that it was her mother-in-law who poured
kerosene on her on the direction of her sisters-in-law (A-2
and A-3).
Dying Declaration No.3 (Exh. 47):
8) On 06.03.2003, injured Vandana again made a
statement before the Executive Magistrate, Bhusawal at
19:25 hrs. Here again, her statement was recorded in the
form of questions and answers. The said document has been
marked as Exh.47. After narrating that her marriage took
place on 28.02.2000 at Khirwar, she informed that her
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mother-in-law and father-in-law used to quarrel with her and
her husband never used to say anything. No doubt, in this
statement, she mentioned that she was threatened by
Shobha Sitaram Tayade (sister-in-law) and Sitaram Ramji
Tayade (husband of Shobha Sitaram Tayade). After
mentioning their names, (both of them were acquitted by the
trial Court) she further narrated that amongst them, her
mother-in-law poured kerosene on her and sisters-in-law
(Ashabai and Kavita) were standing by closing the door. For
another question, namely, whether she had suspicion on
anyone, she answered that she was tried to be burnt by her
mother-in-law Kesharbai, Ashabai, Shobha, Kavita, Sitaram
Ramji Tayade. While recording the above statement, here
again, duty Doctor Dr. C.N. Pimprikar certified that Vandana
was fully conscious to give a statement. He also mentioned
the time and date of recording of the above statement as
7:25 p.m. dated 06.03.2003.
9) Learned counsel for the appellants pointed out certain
contradictions and improvements which were not mentioned
in her first two statements. It is true that in the third
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statement made before the Executive Magistrate, she
implicated Shobha and Sitaram Ramji Tayade and according
to her, they also threatened her along with her mother-in-law
and sisters-in-law. Merely because she mentioned two other
names, who were acquitted by the trial Court, it cannot be
presumed that her earlier statements were unacceptable.
However, it is to be noted that even in the third statement
before the Executive Magistrate duly recorded by him, she
mentioned the role of her mother-in-law and sisters-in-law.
There is no reason to disbelieve or reject the above
statement as claimed by learned counsel for the appellants.
Dying Declaration No.4 (Exh. 36):
10) On 06.03.2003 itself, at about 7.30 p.m., again the
injured Vandana made a statement before Shri Dilip, Sub-
Inspector of Police who was examined as PW-6 and the
statement was marked as Exh. 36. Here again, in respect of
the questions put by the recording officer, she answered by
implicating her mother-in-law and sisters-in-law. For a
specific question, namely, on 05.03.2003, whether she was
at home and how she got burn injuries and who was
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responsible for the same, she answered that “on 05.03.2003,
I was at home only. At about 5 o’clock, her mother-in-law,
sisters-in-law poured kerosene and burnt”. Here again, she
specifically implicated her mother-in-law and sisters-in-law
for pouring kerosene and litting fire.
11) Learned counsel for the appellants argued that the
version of incident as given by the deceased in all the four
dying declarations is inconsistent and no reliance can be
placed on it. We have already referred to the persons who
recorded all the four statements, her condition and the
certificate issued by the doctor as well as the contents of the
statements. Though, in one of the statement, she implicated
two more persons (who were acquitted by the trial Court) she
was consistent about the role played by her mother-in-law
and her sisters-in-law (appellants before us). It is relevant to
note that the incident took place in the bedroom of the
deceased. It is also clear that she was subjected to torture
as she had not conceived a child even after three years of
the marriage and in all the four dying declarations, she was
conscious in mentioning the role of her mother-in-law and
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sisters-in-law. We are satisfied that there is no contradiction
as to the main aspect, namely, implicating her mother-in-law
and sisters-in-law as well as the role played by them.
Evidentiary value of Dying Declaration:
12) About the evidentiary value of dying declaration of the
deceased, it is relevant to refer Section 32(1) of the Indian
Evidence Act, 1872, which reads as under:-
“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) when it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2) ….. ….. ….. ….. (8) …. ….”
It is clear from the above provision that the statement made
by the deceased by way of a declaration is admissible in
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evidence under Section 32(1) of the Evidence Act. It is not in
dispute that her statement relates to the cause of her death.
In that event, it qualifies the criteria mentioned in Section
32(1) of the Evidence Act. There is no particular form or
procedure prescribed for recording a dying declaration nor it
is required to be recorded only by a Magistrate. As a general
rule, it is advisable to get the evidence of the declarant
certified from a doctor. In appropriate cases, the satisfaction
of the person recording the statement regarding the state of
mind of the deceased would also be sufficient to hold that
the deceased was in a position to make a statement. It is
settled law that if the prosecution solely depends on the
dying declaration, the normal rule is that the courts must
exercise due care and caution to ensure genuineness of the
dying declaration, keeping in mind that the accused had no
opportunity to test the veracity of the statement of the
deceased by cross-examination. As rightly observed by the
High Court, the law does not insist upon the corroboration of
dying declaration before it can be accepted. The insistence
of corroboration to a dying declaration is only a rule of
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prudence. When the Court is satisfied that the dying
declaration is voluntary, not tainted by tutoring or animosity,
and is not a product of the imagination of the declarant, in
that event, there is no impediment in convicting the accused
on the basis of such dying declaration. When there are
multiple dying declarations, each dying declaration has to be
separately assessed and evaluated and assess
independently on its own merit as to its evidentiary value
and one cannot be rejected because of certain variation in
the other.
13) We have already noted that in the present case,
prosecution relied on four dying declarations of the
deceased. We have also noted that at the time of recording
of these statements, medical officers on duty had certified
that the deceased was fully conscious and was in a fit state
of mind to make the same. As a matter of fact, the deceased
has given proper replies to the questions put to her by
various authorities. Further, it is not in dispute that the
incident occurred on 05.03.2003 and she sustained 54%
burns and, ultimately, she died only on 18.04.2003. In other
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words, she survived for about 1 ½ (one and a half) month
which speaks for the fitness of the declarant to make a
statement. The persons who recorded the four dying
declarations were examined as PWs 14, 7 and 6 and they
were also cross-examined about the statement made by the
deceased and recorded by them. In such circumstances, we
fully endorse the view expressed by the trial Court and
affirmed by the High Court about the acceptability of four
dying declarations implicating the mother-in-law and sisters-
in-law (appellants herein).
Oral Evidence of PWs 1, 2 and 11:
14) Malatabai (PW-1) is the mother of the deceased
Vandana. She explained about the marriage of her daughter
and the strained relationship with her family members
including the present appellants. Sanjay (PW-2) - elder
brother of the deceased Vandana, in his evidence has stated
that he along with her mother took the deceased to her
matrimonial home on 04.01.2003 and as soon as the
deceased entered into the house A-1, A-2, A-3 and A-5
assaulted her in their presence. He also stated that when he
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protested, they also assaulted him and, thereafter, he
informed his parents about the same. In response to this
information, his father and maternal uncle came to the
matrimonial home of the deceased but none of them were
allowed to enter the house to meet the deceased.
15) PW-11, maternal uncle of the deceased, also narrated
about the marriage of the deceased with her husband. He
also said that on receipt of information about the incident of
burning, he rushed to the Railway Hospital, Bhusawal and
enquired about the deceased. He noticed that Vandana
sustained burn injuries. However, she was conscious and he
asked her as to what had happened. She disclosed that her
mother-in-law and sisters-in-law put her on fire. PW-11 also
stated that Vandana was in the Hospital for about one and a
half month.
16) Apart from the above witnesses, prosecution has also
examined the doctors who certified her fitness while making
the statement, the doctor who conducted her post-mortem
and I.Os., who completed the investigation and filed charge
sheet.
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Conclusion:
17) The above analysis clearly shows that the deceased was
in a fit state of mind to make dying declarations and her
statements in those dying declarations are consistent and
truthful. In addition to the same, the prosecution also
examined PWs 1, 2 and 11 as well as the Doctors, I.Os., and
other witnesses in support of their claim. We do not find any
infirmity in the order of conviction and sentence recorded by
the trial Judge and affirmed by the High Court.
18) In spite of stringent legislations in order to curb the
deteriorating condition of women across the country, the
cases related to bride burning, cruelty, suicide, sexual
harassment, rape, suicide by married women etc. have
increased and are taking place day by day. A complete
overhaul of the system is a must in the form of deterrent
punishment for the offenders so that we can effectively deal
with the problem. In the case on hand, Vandana died within
3 years of her marriage at the instance of her mother-in-law
and sisters-in-law due to the harassment meted out to her
because of the inability to conceive a child and she was
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poured kerosene and burnt to death. Even though, the
mother-in-law, who also filed a separate appeal, died on
10.02.2012, in view of clinching evidence led in by the
prosecution, there cannot be any leniency in favour of the
appellants, who are sisters-in-law of the deceased and at
whose instance the deceased was burnt at the hands of her
mother-in-law.
19) Accordingly, while agreeing with the conclusion arrived
at by the trial Court and affirmed by the High Court, we find
no merit in the appeal. Consequently, the same is dismissed.
...…………….…………………………J. (P. SATHASIVAM)
...…....…………………………………J. (RANJAN GOGOI)
NEW DELHI; JANUARY 4, 2013.
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