13. APEAL 655-04.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPEAL NO. 655 OF 2004 1. Manoj @ Laxman Dattatraya Phadtare ] Adult, Occ. : Rickshaw Driver, ] 2. Smt. Vimlabai Dattatraya Phadtare ] Adult, Occ. Housewife, ] Both residing at 200/1046, Sant Tukaram ] Nagar, Pimpri, Pune. ] 3. Smt. Jyotsana Hiraman Bhalekar ] Adult, Occ. Housewife, ] Residing at Triveninagar, Talavade. ] 4. Smt. Smith Swaminathan Aayar ] Adult, Occ. Housewife, residing ] at Flat No. 119, Aakash Deep Hsg. ] Society, Pune. ] Appellants (Org Accused Nos. 1 to 4) Versus The State of Maharashtra ] (At the instances of Pimpri Police Station, ] Pune vide C.R. No. 114/2000 ] Respondent (Org Complainant) Mr. Rahul Arote i/b Mr. S.R. Pasbola for the Appellants Mr. K.V. Saste, APP for the State 1 13. APEAL 655-04.doc CORAM : P.V. HARDAS & M.N. GILANI, JJ. DATE : 4th MAY, 2011. ORAL JUDGMENT [per P.V. HARDAS, J]: 1. Appellant No. 1 who stands convicted for the offence punishable under Sections 302 and 498A of the IPC and sentenced to imprisonment for life and to pay fine of Rs. 1000, in default of which to undergo further RI for two months and RI for three years and to pay fine of Rs. 1000/-, in default of which to undergo further imprisonment for a period of two months and Appellant Nos. 2 to 4 who stand convicted for the offence punishable under Section 498A read with Section 34 of the IPC and sentenced to RI for one year and to each pay fine of Rs. 500/-, in default of which to undergo further imprisonment for a period of one month, by the IXth Additional Sessions Judge, Pune, by judgment dated 20th April 2004, by this appeal question the correctness of their conviction and sentence. 2. Learned counsel for the appellants has, at the outset, stated that appellant no. 1 - husband of deceased Vaishali is no more. So also appellant no. 2 - Vimlabai - mother-in-law of deceased Vaishali is no more. Learned counsel for the appellants has placed on record a copy of death certificate of appellant no. 2 Vimal Dattatraya Phadtare. Learned APP has obtained necessary instructions from the Jail Authorities regarding death 2 13. APEAL 655-04.doc of appellant no. 1. The appeal, therefore, challenging the conviction of appellant nos. 1 and 2 stands dismissed as abated. 3. In this appeal, therefore, we are now concerned with the challenge to the conviction of appellant nos. 3 and 4 for the offence punishable under Section 498A of the IPC. 4. According to us, in the light of limited challenge which now remains, it would not be necessary to advert in detail all the facts and all the prosecution evidence. Suffice it to state that Vaishali, who was wife of appellant no. 1, was set ablaze by appellant no. 1 after pouring kerosene on her on the ground that appellant no. 1 was suspecting her chastity. The aforesaid incident occurred on 24th June 2000. Prosecution in support of its case for the offence punishable under Section 302 of the IPC placed reliance upon the dying declaration at Exh 34 recorded by PW 7 Chandrakant, a head-constable and the dying declaration at Exh 41 recorded by PW 9 Ram Sambhre - Nayab Tahsildar. In respect of charge under Section 498A of the IPC, the prosecution placed reliance on the evidence of PW 1 Avinash, PW 2 Anita and PW 3 Madhukar. The evidence of PW 1 Avinash is that his sister Vaishali was married to appellant no. 1 Manoj on 11th June, 1998. After marriage, Vaishali went to the house of the appellant for residing there. According to PW 3 13. APEAL 655-04.doc 1 Avinash, Vaishali was treated well initially well for a period of 4 to 5 months and thereafter, whenever Vaishali used to go to his house, Vaishali used to complain that she was ill-treated by her husband, mother-in-law and sisters-in-law. According to Vaishali, the accused were demanding an amount of Rs. One Lac for purchasing a car. Vaishali had also stated that she was assaulted by the accused. Similar is the evidence of PW 2 Anita who is an elder sister of deceased Vaishali. PW 3 Madhukar, an uncle of deceased Vaishali states that Vaishali had narrated to him that her husband used to assault her on instigation of mother-in-law and sisters-in-law of Vaishali. Vaishali had also narrated to him that appellant no. 1 was demanding an amount of Rs. One Lac. We, thus, find that in respect of oral evidence in respect of cruelty, apart from there being a distinct version in respect of actual cruelty, the allegations of cruelty are extremely vague and not supported by any other evidence. The witnesses have vaguely alleged that Vaishali had told them that all the accused used to assault Vaishali and ill-treat her without specifying all dates on which Vaishali had been assaulted. There is no other supportive evidence. 5. The dying declaration at Exh 34 recorded by PW 7 - Head- Constable Chandrakant alleges that the husband used to ill- treat deceased Vaishali on the instigation of his mother and 4 13. APEAL 655-04.doc sisters. The aforesaid allegations are completely absent in the dying declarations recorded by PW 9 Nayab Tahsildar at Exh 41. In the dying declaration at Exh 41, Vaishali attributes ill- treatment and physical abuses to appellant no. 1 i.e her husband. In the dying declaration at Exh, 41, Vaishali makes no reference to any ill-treatment or instigation by the present appellants. 6. Looking to the state of evidence in respect of charge under Section 498A of the IPC, according to us, the evidence is wholly insufficient to establish the evident against the appellants beyond reasonable doubt and the appellants i.e appellant nos. 3 and 4, therefore, would be entitled to be given benefit of doubt. 7. Accordingly, this Criminal Appeal is dismissed as prayed in so far as it relates to conviction of original accused nos. 1 and 2 as both the accused are reported to have died. 8. The appeal is allowed in so far as it relates to challenge to the conviction of original accused nos. 3 and 4 for the offence punishable under Section 498A read with Section 34 of the IPC. Original accused nos. 3 and 4 are therefore acquitted and their conviction and sentence is hereby quashed and set aside. 5 13. APEAL 655-04.doc 9. Fine, if paid, by these accused be refunded to them. 10.Since the accused are on bail, their bail bonds stand cancelled. [ M.N. GILANI, J ] [ P.V. HARDAS, J ] 6 13. APEAL 655-04.doc 7