1 APEAL 276.97.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL JURISDICTION APPEAL NO. 276 OF 1997 Mr. Sanjay Dattu More. ... Appellant. V/s. The State of Maharashtra. ... Respondent. Mr. Vijay Kumar Tiwari i/b. M/s. M.V. Kini & Co. for the Appellant. Mr. J.P. Kharge, APP for the State. CORAM : A.R. JOSHI, J. DATED : 18th APRIL 2011. P.C. :- Heard rival submissions at length on this Appeal challenging the order of conviction passed on 21st March 1997 by the 3rd Additional Sessions Judge, Nasik. By the impugned Judgment and Order of conviction, the present Appellant/Original Accused No.1 was convicted under Section 498-A r/w. Section 34 of I.P.C. alongwith other Co-accused Nos.2 and 3. Co-accused did not prefer any appeal and in fact subjected themselves to the conviction which was only for a day i.e. till rising the Court and fine of Rs.500/- for accused Nos.2 and 3. 2 APEAL 276.97.sxw 2. By the impugned Judgment and Order, the present Appellant – Accused No.1 was sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs.1,000/- in failure to suffer further rigorous imprisonment for one month. Apparently, after the arrest only for a day or two, Appellant – Accused No.1 was in custody and almost entire conviction period has not undergone by him as he was on bail during trial and also during the pendency of Appeal he was on bail. 3. Charge was framed against the Applicant alongwith his parents Accused Nos.2 and 3 for the offence punishable under Section 498-A and also for the offence punishable under Section 304 r/w. Section 34 of I.P.C. 4. The facts of the present case are of rather peculiar nature inasmuch as the incident of finding the victim wife of present Appellant Accused No.1 in about 100% burn injuries, occurred within one month and 10 days of the marriage. Certain dates are relevant for the purposes of deciding the present Appeal. 3 APEAL 276.97.sxw 5. Marriage between the Appellant – Accused No.1 and victim took place on 15th May 1996. The incident of victim got 100% burn injuries at her matrimonial home occurred on 24th June 1996. During this period of one month and 10 days, on two occasions, apparently, the victim had visited her parents, the prosecuting witnesses PW-1 and 2 i.e. the first informant Yamunabai and PW-2 Keshav. In such visits she disclosed as to demand of certain articles by the accused persons. According to the evidence of PW-1 and PW-2, parents of the deceased, first time deceased visited their house about 7 to 8 days after the marriage and that time she did not disclose anything but she was not in a free mood and was rather depressed. After 2-3 days stay with her parents, victim went back to her matrimonial home and 8 days thereafter again came to their place and this time she was rather annoyed and disclosed that the accused persons were demanding certain articles like cupboards, rack, cot, mattresses and some dowry as well. This evidence of PW-1 and PW-2 is significant which speak that within a span of about less than three weeks there was disclosure by the victim to her parents regarding demand of such articles. As against this evidence, during the cross- 4 APEAL 276.97.sxw examination of specifically PW-1, first informant, it is brought on record that such demand of articles occurred when there was a marriage of brother of present Appellant – Accused No.1 and such marriage took place about 15 days prior to the incident of burning. This approximate period as to the initiation of the alleged demands is of much significance and it is to be seen in justa-position of what is mentioned in the examination in chief by PW-1 and PW-2. 6. It is an admitted position that apart from the substantive evidence of PW-1 and PW-2 there is nothing brought by the prosecution in order to establish charge for the offence punishable under Section 498-A of I.P.C. Admittedly, there are no independent witnesses in the present case. In the opinion of this Court, the learned trial Court had erred in holding that evidence of PW-1 and PW-2 is sufficient to bring home the guilt for the charge punishable under Section 498-A of I.P.C. The factual position as mentioned above that the demand of articles was made some time only after the marriage of brother of present Appellant – Accused No.1 itself negates evidence of PW-1 and PW-2 given in examination in chief 5 APEAL 276.97.sxw inasmuch as according to them such demand was immediately within two weeks of the marriage. However, it is also admitted during the cross-examination by PW-1 that said demand was 15 days prior to the incident. According to these witnesses, demand of cupboard, cot, mattresses was put forth when the accused persons knew that various such articles were given to brother of present Appellant – Accused No.1 when he got married and when it happened 15 days prior to the incident of 24th June 1996. 7. In that view of the matter and in the absence of any other corroborative piece of evidence, in the opinion of this Court, there is a reason to interfere with the impugned judgment and order and the same is required to be set aside and present Criminal Appeal is required to be allowed. 8. In support of the submissions, ratio of following authority was taken on behalf of the Appellant :- Gananath Pattnaik V/s. State of Orissa reported in Manu/SC/0082/2002 9. Considering the rival arguments and considering the 6 APEAL 276.97.sxw only material available as that of the hearsay evidence of PW-1 and PW-2, the present Appeal is allowed and accordingly disposed of. Criminal Appeal is allowed. Impugned judgment and order dated 21st March 1997 is quashed and set aside. Appellant – Accused No.1 shall be released from jail custody if not required in any matter. Fine amount if already paid shall be refunded back to the Appellant – Accused No.1. (A.R. JOSHI, J.)