IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.338 OF 1996 CRIMINAL APPEAL NO.338 OF 1996 CRIMINAL APPEAL NO.338 OF 1996 The State of Maharashtra .. Appellant The State of Maharashtra .. Appellant The State of Maharashtra .. Appellant Versus Versus Versus Balasahab Vithoba Bangal ..Respondent Balasahab Vithoba Bangal ..Respondent Balasahab Vithoba Bangal ..Respondent ---- ---- ---- Ms.M.H.Mhatre APP for the applicant. Ms.M.H.Mhatre APP for the applicant. Ms.M.H.Mhatre APP for the applicant. Mr.B.G.Tangsali for Respondent Mr.B.G.Tangsali for Respondent Mr.B.G.Tangsali for Respondent ---- ---- ---- Coram : R.S.Mohite, J Coram : R.S.Mohite, J Coram : R.S.Mohite, J Date : 28.11.2007 Date : 28.11.2007 Date : 28.11.2007 PC PC PC 1. This appeal against acquittal is filed by the 1. This appeal against acquittal is filed by the 1. This appeal against acquittal is filed by the State impugning the judgment and order dated 17th State impugning the judgment and order dated 17th State impugning the judgment and order dated 17th January, 1996 passed by the Additional Sessions January, 1996 passed by the Additional Sessions January, 1996 passed by the Additional Sessions Judge, Thane in Sessions Case No.375 of 1989. Judge, Thane in Sessions Case No.375 of 1989. Judge, Thane in Sessions Case No.375 of 1989. 2. By the impugned judgment and order, the Sessions 2. By the impugned judgment and order, the Sessions 2. By the impugned judgment and order, the Sessions Court has acquitted accused Balasahab Bangal Court has acquitted accused Balasahab Bangal Court has acquitted accused Balasahab Bangal (hereinafter referred to as the accused) for an (hereinafter referred to as the accused) for an (hereinafter referred to as the accused) for an offence punishable under section 498 A and 306 of offence punishable under section 498 A and 306 of offence punishable under section 498 A and 306 of IPC. IPC. IPC. 3. The prosecution case was that the accused had 3. The prosecution case was that the accused had 3. The prosecution case was that the accused had married one Neetanjali daughter of PW 5 Dinesh married one Neetanjali daughter of PW 5 Dinesh married one Neetanjali daughter of PW 5 Dinesh Wadnekar on 14th February, 1988. After marriage the Wadnekar on 14th February, 1988. After marriage the Wadnekar on 14th February, 1988. After marriage the : 2 : : 2 : : 2 : accused and Neetanjali were residing with PW5 Dinesh accused and Neetanjali were residing with PW5 Dinesh accused and Neetanjali were residing with PW5 Dinesh Wadnekar. One Jagannath Titne was residing in the Wadnekar. One Jagannath Titne was residing in the Wadnekar. One Jagannath Titne was residing in the neighbourhood. In the month of sharavan of 1988, neighbourhood. In the month of sharavan of 1988, neighbourhood. In the month of sharavan of 1988, there was satyanarayan pooja in the house of there was satyanarayan pooja in the house of there was satyanarayan pooja in the house of Jagannath Titne and therefore Titne had invited all Jagannath Titne and therefore Titne had invited all Jagannath Titne and therefore Titne had invited all the family members of the Wadnekar family including the family members of the Wadnekar family including the family members of the Wadnekar family including their son-in-law the accused. The accused did not their son-in-law the accused. The accused did not their son-in-law the accused. The accused did not go to the house of Jagannath for the pooja and also go to the house of Jagannath for the pooja and also go to the house of Jagannath for the pooja and also did not allow his wife Neetanjali to go for the did not allow his wife Neetanjali to go for the did not allow his wife Neetanjali to go for the pooja. Later, on 14th September, 1988 pooja. Later, on 14th September, 1988 pooja. Later, on 14th September, 1988 the accused accused accused came home along with a friend and after having tea came home along with a friend and after having tea came home along with a friend and after having tea they both went out. Sometime later the accused came they both went out. Sometime later the accused came they both went out. Sometime later the accused came home and when asked he said that he had taken dinner home and when asked he said that he had taken dinner home and when asked he said that he had taken dinner outside. Hearing this, the deceased Neetanjali outside. Hearing this, the deceased Neetanjali outside. Hearing this, the deceased Neetanjali starting weeping. When PW 5 Dinesh Wadnekar her starting weeping. When PW 5 Dinesh Wadnekar her starting weeping. When PW 5 Dinesh Wadnekar her father asked her as to why she was weeping she father asked her as to why she was weeping she father asked her as to why she was weeping she disclosed that the accused had not taken lunch and disclosed that the accused had not taken lunch and disclosed that the accused had not taken lunch and hence she had also not taken lunch. When PW 5 hence she had also not taken lunch. When PW 5 hence she had also not taken lunch. When PW 5 Dinesh Wadnekar asked about this to the accused, he Dinesh Wadnekar asked about this to the accused, he Dinesh Wadnekar asked about this to the accused, he told his father-in-law that Neetanjali was not told his father-in-law that Neetanjali was not told his father-in-law that Neetanjali was not talking properly with him and was not taking meals talking properly with him and was not taking meals talking properly with him and was not taking meals with him. He also told her father that Neetanjali with him. He also told her father that Neetanjali with him. He also told her father that Neetanjali was not properly paying attention towards him. was not properly paying attention towards him. was not properly paying attention towards him. 4. On 18th September, 1988 the accused told PW 5 4. On 18th September, 1988 the accused told PW 5 4. On 18th September, 1988 the accused told PW 5 that he had obtained a rental premises in Kalyan and that he had obtained a rental premises in Kalyan and that he had obtained a rental premises in Kalyan and that he was shiting to the said premises alongwith that he was shiting to the said premises alongwith that he was shiting to the said premises alongwith Neetanjali. The accused and Neetanjali thereafter Neetanjali. The accused and Neetanjali thereafter Neetanjali. The accused and Neetanjali thereafter left Dombivli together for Kalyan and started left Dombivli together for Kalyan and started left Dombivli together for Kalyan and started : 3 : : 3 : : 3 : residing on their own. residing on their own. residing on their own. 5. According to the prosecution case, the accused 5. According to the prosecution case, the accused 5. According to the prosecution case, the accused was harassing Neetanjali and suspecting her was harassing Neetanjali and suspecting her was harassing Neetanjali and suspecting her character. He used to beat her. In this character. He used to beat her. In this character. He used to beat her. In this background, on 24th October, 1988 PW 5 Dinesh background, on 24th October, 1988 PW 5 Dinesh background, on 24th October, 1988 PW 5 Dinesh Wadnekar received a phone call from an unkown person Wadnekar received a phone call from an unkown person Wadnekar received a phone call from an unkown person informing him that his daughter Neetanjali was sick. informing him that his daughter Neetanjali was sick. informing him that his daughter Neetanjali was sick. The person asked him as to why he was not paying The person asked him as to why he was not paying The person asked him as to why he was not paying attention to her daughter whenever she required. On attention to her daughter whenever she required. On attention to her daughter whenever she required. On 26th October, 1988 PW 5 Dinesh Wadnekar sent his 26th October, 1988 PW 5 Dinesh Wadnekar sent his 26th October, 1988 PW 5 Dinesh Wadnekar sent his daughter Sunita to meet Neetanjali at Kalyan. daughter Sunita to meet Neetanjali at Kalyan. daughter Sunita to meet Neetanjali at Kalyan. At Kalyan, after some initial coaxing, Neetanjali Kalyan, after some initial coaxing, Neetanjali Kalyan, after some initial coaxing, Neetanjali allegedly informed her sister Sunita that since last allegedly informed her sister Sunita that since last allegedly informed her sister Sunita that since last one week the accused was harassing her. He was one week the accused was harassing her. He was one week the accused was harassing her. He was telling her that the marriage was not properly telling her that the marriage was not properly telling her that the marriage was not properly celebrated and she was not paying proper attention celebrated and she was not paying proper attention celebrated and she was not paying proper attention to him. Neetanjali further disclosed to Sunita that to him. Neetanjali further disclosed to Sunita that to him. Neetanjali further disclosed to Sunita that her husband was suspecting her character and was her husband was suspecting her character and was her husband was suspecting her character and was saying that she was not of a good character. Sunita saying that she was not of a good character. Sunita saying that she was not of a good character. Sunita also noticed an injury on her right palm. On also noticed an injury on her right palm. On also noticed an injury on her right palm. On inquiry Neetanjali disclosed to her that her husband inquiry Neetanjali disclosed to her that her husband inquiry Neetanjali disclosed to her that her husband used to touch lighted cigarette on her body. used to touch lighted cigarette on her body. used to touch lighted cigarette on her body. Neetanjali requested Sunita not to tell anything to Neetanjali requested Sunita not to tell anything to Neetanjali requested Sunita not to tell anything to her father PW 5 Dinesh her father PW 5 Dinesh her father PW 5 Dinesh Wadnekar. 6. On 31st October, 1988 at about 8.30 at night the 6. On 31st October, 1988 at about 8.30 at night the 6. On 31st October, 1988 at about 8.30 at night the accused came home after drinking liquor and informed accused came home after drinking liquor and informed accused came home after drinking liquor and informed Neetanjali that she was not a good person and she Neetanjali that she was not a good person and she Neetanjali that she was not a good person and she : 4 : : 4 : : 4 : looks at somebody with a bad intention and was looks at somebody with a bad intention and was looks at somebody with a bad intention and was acting in such manner. Hearing this, Neetanjali got acting in such manner. Hearing this, Neetanjali got acting in such manner. Hearing this, Neetanjali got angry. She went to the kitchen and poured kerosene angry. She went to the kitchen and poured kerosene angry. She went to the kitchen and poured kerosene on herself and set herself on fire. Admittedly, the on herself and set herself on fire. Admittedly, the on herself and set herself on fire. Admittedly, the accused seeing his wife on fire tried to extinguish accused seeing his wife on fire tried to extinguish accused seeing his wife on fire tried to extinguish the fire. In this entire process, Neetanjal the fire. In this entire process, Neetanjal the fire. In this entire process, Neetanjal suffered 94 % burns whereas the accused also suffered 94 % burns whereas the accused also suffered 94 % burns whereas the accused also suffered 40 to 45% burns. They were both removed suffered 40 to 45% burns. They were both removed suffered 40 to 45% burns. They were both removed initially to Kalyan Hospiital and from there were initially to Kalyan Hospiital and from there were initially to Kalyan Hospiital and from there were shifted to Ulhasnagar Central Hospital where they shifted to Ulhasnagar Central Hospital where they shifted to Ulhasnagar Central Hospital where they were examined by were examined by were examined by PW 5 Dr.Kundi The record incidates Kundi The record incidates Kundi The record incidates that subsequently the deceased was shifted to Sion that subsequently the deceased was shifted to Sion that subsequently the deceased was shifted to Sion Hospital whereas the accused was shifted to KEM Hospital whereas the accused was shifted to KEM Hospital whereas the accused was shifted to KEM Hospital in Bombay. While the deceased was in Hospital in Bombay. While the deceased was in Hospital in Bombay. While the deceased was in Ulhasnagar Central Hospital she gave a dying Ulhasnagar Central Hospital she gave a dying Ulhasnagar Central Hospital she gave a dying declaration (Exhibit 109) on 1st November, 1988 declaration (Exhibit 109) on 1st November, 1988 declaration (Exhibit 109) on 1st November, 1988 between 12.15 and 12.30 p.m. In the dying between 12.15 and 12.30 p.m. In the dying between 12.15 and 12.30 p.m. In the dying declaration, she talks about her husband coming home declaration, she talks about her husband coming home declaration, she talks about her husband coming home drunk and telling her that she was looking at some drunk and telling her that she was looking at some drunk and telling her that she was looking at some one with improper intention. She further stated in one with improper intention. She further stated in one with improper intention. She further stated in her dying declaration that therefore she got angry her dying declaration that therefore she got angry her dying declaration that therefore she got angry and she put herself on fire. Ultimately the and she put herself on fire. Ultimately the and she put herself on fire. Ultimately the deceased Neetanjali expired on 11th November, 1988 deceased Neetanjali expired on 11th November, 1988 deceased Neetanjali expired on 11th November, 1988 and 5 days thereafter PW 5 Dinesh Wadnekar filed an and 5 days thereafter PW 5 Dinesh Wadnekar filed an and 5 days thereafter PW 5 Dinesh Wadnekar filed an FIR against the present accused person. FIR against the present accused person. FIR against the present accused person. 7. I have heard both sides and perused the entire 7. I have heard both sides and perused the entire 7. I have heard both sides and perused the entire record. In my view, there are cogent and plausible record. In my view, there are cogent and plausible record. In my view, there are cogent and plausible reasons why the Sessions Judge has acquitted the reasons why the Sessions Judge has acquitted the reasons why the Sessions Judge has acquitted the : 5 : : 5 : : 5 : accused. accused. accused. 8. The record indicates that two incidents of 8. The record indicates that two incidents of 8. The record indicates that two incidents of alleged cruelty which occured in the month of alleged cruelty which occured in the month of alleged cruelty which occured in the month of shravan of 1988 and on 11th September, 1988 are both shravan of 1988 and on 11th September, 1988 are both shravan of 1988 and on 11th September, 1988 are both found to be improvements upon the police statement found to be improvements upon the police statement found to be improvements upon the police statement of PW 5 Dinesh Wadnekar and that of PW 2 Nandini of PW 5 Dinesh Wadnekar and that of PW 2 Nandini of PW 5 Dinesh Wadnekar and that of PW 2 Nandini Kale. Though these witnesses have talked about Kale. Though these witnesses have talked about Kale. Though these witnesses have talked about these two incidents, they had not stated so before these two incidents, they had not stated so before these two incidents, they had not stated so before the police. PW 2 Nandini Kale then claims to have the police. PW 2 Nandini Kale then claims to have the police. PW 2 Nandini Kale then claims to have gone to gone to gone to the house of deceased on 26th October, 1988 house of deceased on 26th October, 1988 house of deceased on 26th October, 1988 and the deceased is said to have made several and the deceased is said to have made several and the deceased is said to have made several disclosures to her including the fact that the disclosures to her including the fact that the disclosures to her including the fact that the accused had caused injury by touching a lighted accused had caused injury by touching a lighted accused had caused injury by touching a lighted cigarette on her palms. This also has been found to cigarette on her palms. This also has been found to cigarette on her palms. This also has been found to be an improvement on police statement. be an improvement on police statement. be an improvement on police statement. 9. In so far as the dying 9. In so far as the dying 9. In so far as the dying declaration is concerned, eclaration is concerned, eclaration is concerned, even if the same is totally accepted it is difficult even if the same is totally accepted it is difficult even if the same is totally accepted it is difficult to hold that there was any mens rea involved on to hold that there was any mens rea involved on to hold that there was any mens rea involved on behalf of the accused. behalf of the accused. behalf of the accused. 10. The Apex Court in the case of Sanju alias 10. The Apex Court in the case of Sanju alias 10. The Apex Court in the case of Sanju alias Sanjay Singh Sengar vs State of M.P. reported in Sanjay Singh Sengar vs State of M.P. reported in Sanjay Singh Sengar vs State of M.P. reported in (2002) 5 Supreme Court Cases 371 has observed that (2002) 5 Supreme Court Cases 371 has observed that (2002) 5 Supreme Court Cases 371 has observed that mens rea is an essential ingredient for committing mens rea is an essential ingredient for committing mens rea is an essential ingredient for committing an offence punishable under section 306 IPC. In an offence punishable under section 306 IPC. In an offence punishable under section 306 IPC. In that case, the act of the accused compelling the that case, the act of the accused compelling the that case, the act of the accused compelling the deceased " to go and die " which resulted in the deceased " to go and die " which resulted in the deceased " to go and die " which resulted in the : 6 : : 6 : : 6 : deceased hanging himsaelfafter two days was held not deceased hanging himsaelfafter two days was held not deceased hanging himsaelfafter two days was held not to be to be to be an act of instigation and it was further act of instigation and it was further act of instigation and it was further observed that presence of mens rea is the necessary observed that presence of mens rea is the necessary observed that presence of mens rea is the necessary concomitant of instigation. concomitant of instigation. concomitant of instigation. 11. In an earlier judgment of the Apex Court in the 11. In an earlier judgment of the Apex Court in the 11. In an earlier judgment of the Apex Court in the case of Ramesh Kumar vs State of Chhattisgarh case of Ramesh Kumar vs State of Chhattisgarh case of Ramesh Kumar vs State of Chhattisgarh reported in (2001) 9 SCC (Cri) 618, the facts were reported in (2001) 9 SCC (Cri) 618, the facts were reported in (2001) 9 SCC (Cri) 618, the facts were that there was a quarrel between the husband and the that there was a quarrel between the husband and the that there was a quarrel between the husband and the wife. The husband informed the wife that she was wife. The husband informed the wife that she was wife. The husband informed the wife that she was free to do whatever and she can go whereever she free to do whatever and she can go whereever she free to do whatever and she can go whereever she likes. Feeling angered and depressed the wife set likes. Feeling angered and depressed the wife set likes. Feeling angered and depressed the wife set herself on fire. On these facts, later on she gave herself on fire. On these facts, later on she gave herself on fire. On these facts, later on she gave a dying declaration indicating therein the aforesaid a dying declaration indicating therein the aforesaid a dying declaration indicating therein the aforesaid reasons as to why she had set herself on fire. On reasons as to why she had set herself on fire. On reasons as to why she had set herself on fire. On these facts, the Apex Court held that there was no these facts, the Apex Court held that there was no these facts, the Apex Court held that there was no instigation on the part of the husband and acquitted instigation on the part of the husband and acquitted instigation on the part of the husband and acquitted the accused. The facts are some what similar in the the accused. The facts are some what similar in the the accused. The facts are some what similar in the present case. The Apex Court further observed that present case. The Apex Court further observed that present case. The Apex Court further observed that the conduct of the accused trying to put of the fire the conduct of the accused trying to put of the fire the conduct of the accused trying to put of the fire and taking his wife to the hospital also and taking his wife to the hospital also and taking his wife to the hospital also "improbablise" the theory of his having abetted improbablise" the theory of his having abetted improbablise" the theory of his having abetted suicide. In the present case also the wife suicide. In the present case also the wife suicide. In the present case also the wife committed suicide because of the quarrel. It is her committed suicide because of the quarrel. It is her committed suicide because of the quarrel. It is her own version thatherhusband had consumed liquor. own version thatherhusband had consumed liquor. own version thatherhusband had consumed liquor. On getting angry she has taken this unfortunate step. getting angry she has taken this unfortunate step. getting angry she has taken this unfortunate step. The accused has also made an attempt to save her and The accused has also made an attempt to save her and The accused has also made an attempt to save her and he himself suffered 40 % to 45 % burns which he himself suffered 40 % to 45 % burns which he himself suffered 40 % to 45 % burns which required him to be admitted in the hospital for 1 to required him to be admitted in the hospital for 1 to required him to be admitted in the hospital for 1 to : 7 : : 7 : : 7 : 3 1/2 months. In the facts of the present case, I 3 1/2 months. In the facts of the present case, I 3 1/2 months. In the facts of the present case, I find that there is no instigation and therefore no find that there is no instigation and therefore no find that there is no instigation and therefore no abetment to commit suicide. abetment to commit suicide.