1 Cri.Appeal No.401/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.401/1994. The State of Maharashtra = APPELLANT VERSUS 1) Rabhaji Ananda Kulange Age: 37 Yrs. 2) Sau Kusumbai Rabhaji Kulange, Age: 32 Yrs. Both R/o Sangavi Bhusar, Tq. Kopergaon, District Ahmednagar. = RESPONDENTS **** Mr.NR Shaikh, APP for Appellant/State Mr.NB Suryawanshi, Adv. h/for Mr.MY Deshmukh Adv. for Respondent Nos.1 & 2.; ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE : 29th September, 2011. JUDGMENT (PER:A.R.JOSHI,J.) 1) Heard rival submissions on this Criminal Appeal preferred by the State of Maharashtra, challenging the judgment and order of acquittal passed by 3rd Additional Sessions Judge, Ahmednagar dated 19th April, 1994 in Sessions Case 2 Cri.Appeal No.401/1994 No.246/1991. 2) By the impugned judgment and order, both the accused/Respondents were acquitted for the offences punishable under Section 498-A and 306 r/w 34 of Indian Penal Code. 3) Facts of the case are, as under:- (i) Victim Manda was second wife of accused No.1. He married with her during subsistence of his first marriage. Accused No.2 is the first wife of Accused No.1. (ii) As the first wife was delivering only female children, Accused No.1 married with victim Manda, probably with a desire to have a male child out of said second marriage. (iii) Initially, victim Manda was treated well. However, subsequently, quarrels started between Manda and her husband/accused No.1. Initially, accused no.2 was staying separately from accused No.1, however, subsequently, she also came back and joined the same matrimonial home, and as such, victim Manda and accused No.2 started residing with accused No.1 under the same 3 Cri.Appeal No.401/1994 roof. (iv) The ill-treatment and harassment to victim Manda continued and now she was being ill-treated by both the accused. At times, victim Manda had informed her mother and other relations regarding such ill-treatment. Mother of the victim is PW No.3 – Sakhubai Jadhav and other relations are one sister – PW No.4 – Shobha Jadhav; one aunt Kacharabai PW No.5 and another sister Seema Dhere PW No. 6. (v) The fateful incident occurred on 24th March, 1991 in the afternoon. That time, neighbours noticed that from the house of the accused, smoke was coming and as such, door was broken open and victim Manda was taken out of the house. She was in burnt condition. She was removed to the hospital, however, she died due to 90% burn injuries. (vi) A complaint was lodged with the police by PW No.3, mother of the victim. Both the accused were arrested and were tried for the offences punishable under Sections 498-A and 306 of IPC. The said trial ended into acquittal, as mentioned above. 4 Cri.Appeal No.401/1994 4) In order to substantiate the charge against both the accused, prosecution examined in all 11 witnesses, out of them, important witnesses are – PW No.3 - Sakhubai Jadhav, PW No. 4 - Shobha Jadhav, PW No.5 - Kacharabai Garudkar and PW No.6 - Seema Dhere, who are near relatives of victim Manda. PW No.8 - Sahebrao Chavan and PW No.9 - Murlidhar Wable are the neighbours. PW No.1 - Sudhakar Kate is Circle Inspector, who drew a map of the incident. PW No.2 - Balna Shelke is panch of spot panchanama. PW No.7 - Murlidhar Karale is police officer, who recorded FIR. PW No.10 - Prakash Kaude is Investigating Officer, who concluded the investigation. PW No. 11 is Dr. Dnyaneshwar Lokhande, who performed post mortem and opined that cause of death was "due to shock out of 90% burn injuries." 5) Prior to discussing as to whether learned Sessions Judge had rightly appreciated the evidence led by the prosecution, certain factual position can be narrated as under:- (a) During subsistence of first marriage, Accused No.1 married with Accused No.2 and in fact, victim Manda and both the accused were staying together during the relevant time and even prior to the incident. 5 Cri.Appeal No.401/1994 (b) Victim Manda gave birth to a male child out of her said wedlock and accused No.2 gave birth to a female child from accused No.1. (c) On the date of incident, victim Manda was alone in the house and door of the room was latched from inside. (d) Both the accused were away from the house and were not present. (e) Door of the house was broken open from outside by the neighbours including PW Nos.8 and 9. (f) Allegations as to ill-treatment, meted out to victim Manda, were narrated by PW Nos. 3, 4 and 5 – mother, sister and aunt respectively of victim Manda. Said disclosure was made as such events were told by Manda to said relatives. (g) PW No.6 - Seema Dhere, another sister of the victim did not support the case of prosecution on count of ill-treatment of the victim; (h) PW No.8 – Sahebrao Chavan and PW No.9 – Murlidhar Wable, neighbours did not support 6 Cri.Appeal No.401/1994 the case of prosecution inasmuch as harassment and ill-treatment of the victim. They were the persons, who extinguished fire and brought out victim Manda from the house after breaking open the door which was latched from inside. 6) Now, bearing in mind above admitted position, we have gone through the reasoning given by the learned Sessions Judge while coming to the conclusion that offence under Section 498- A of IPC has not been established. We have seen that the learned Sessions Judge has critically examined the substantive evidence of PW Nos.3, 4 and 5 in juxtaposition of the substantive evidence of PW No.6, another sister of victim. Said PW No.6 did not support the case of prosecution as mentioned above. We have also seen that there were no specific allegations against the accused persons and mainly accused No.1 as to demand of any dowry or other articles. Only allegation was that accused No.1 was telling victim Manda that he did not like her and he wanted her to stay separately as his first wife had again came back to him for stay. 7) We have also observed that there is substantive evidence of PW No.3, mother of the victim that accused No.1 was loving Manda and 7 Cri.Appeal No.401/1994 also brought presents for the new-born child and then after the delivery took back Manda from her parents' house. This evidence weighed much with the learned Sessions Judge in doubting the theory of ill-treatment to the victim. 8) We have also seen that learned Sessions Judge had discussed the evidence as to 5-6 letters written by victim Manda to her mother Sakhubai Jadhav. Out of them, only one letter (Exhibit-27) contained solitary allegation of beating. All other letters were giving casual information about everything being good and well. This factual position also weighed with the learned Sessions Judge in coming to the conclusion that casual quarrel or assault and which is apparently solitary in nature, may not constitute the offence punishable under Section 498-A of IPC. Even in the letter (Exhibit-27) after mentioning the incident of beating, it is further mentioned that else was all right and that her mother need not worry about Manda. In our opinion, this material was rightly scrutinized by the learned Sessions Judge. 9) So far as offence punishable under Section 306 of IPC is concerned, the admitted position, as mentioned above, regarding absence of both the accused during the incident and the 8 Cri.Appeal No.401/1994 room was latched from inside and door was broken open by the neighbours and not finding the kerosene on the clothes of victim Manda and also not finding the traces of kerosene during the spot panchanama, was scrutinized by the learned Sessions Judge and he had come to the conclusion that there was no sufficient material to establish that it was a case of suicide. 10) We have also observed that learned Sessions Judge had scrutinized the evidence of PW No.11 - Dr.Dnyaneshwar Lokhande, wherein it has come on record that the clothes of the deceased Manda and also her body was not smelling of kerosene, and if such would have been the position, he would have mentioned it in the report. What also weighed with the learned Sessions Judge was the substantive evidence of panch witness PW No.2 that when the panchanama was drawn immediately after the incident the pieces of clothes and gunny bag near the dead body of Manda were not smelling of kerosene. 11) By considering the material, mentioned above, the learned Sessions Judge came to the conclusion that case of prosecution as to commission of offences punishable under Sections 498-A and 306 of IPC, were not established. 9 Cri.Appeal No.401/1994 12) Considering the evidence produced before the Sessions Court, in our view, there is nothing to interfere with the impugned judgment and order of acquittal, more so, when dealing with the appeal against acquittal and that also after lapse of about 17 years. 13) In the result, there is no merit in the appeal preferred by the State and the same is disposed of with following order. ORDER Criminal Appeal No.401 of 1994 stands dismissed. Sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ Fldr.30.9.2011