1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.242 OF 1997. Narayan Jankrao Patil, Aged 32 years, Occ.Labour, R/o Balaji Pura, Amalner, Dist. Jalgaon. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mr.B.R.Warma, advocate for the appellant. Mrs.R.D. Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 21.07.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment rendered by the Additional Sessions Judge, Amalner, in Sessions Trial No.10/1992, whereby, the appellant came to be convicted for offences punishable U/ss 498-A and 306 of the I.P.C. and 2 sentenced to suffer rigorous imprisonment for two (2) years and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for two (2) months on the first count and to suffer rigorous imprisonment for three (3) years and to pay fine of Rs.500/- (Rupees five hundred), in default to suffer rigorous imprisonment for two (2) months on the second count. 2. Indisputably, marriage between the appellant and the deceased Mira was solemnised in the year 1985. Her father (P.W.1 Nimba) is an agriculturist and resides at village Bhatki under Pansamar Tahsil (M.P.). It is undisputed that deceased Mira and the appellant were residing together in a house situated in Balajipura locality at Amalner. Initially, they were living together alongwith family members of his brother under one roof. However, after some period of joint residence with his brother, the appellant started residing separately in another house with the wife and the children. The couple was blissed with two sons and a daughter. 3 3. The prosecution case, stated briefly, is that the appellant subjected deceased Mira to matrimonial cruelty on account of her failure to comply with unlawful demand of Rs.25,000/- (Rupees twenty five thousand) needed for purchasing of a plot. Her father expressed inability to pay such amount. He use to consume liquor and maltreat deceased Mira. On 27.12.1991, at about 3/3-30 p.m. Mira, was found in the matrimonial home in seriously injured condition. She had received severe burns all over her body. The death was instantaneous. The brother of the appellant gave information to her father (P.W.1 Nimba). He alongwith other relatives visited the Municipal Hospital at Amalner, where the burnt dead body of Mira was kept for postmortem examination. He lodged a report about matrimonial cruelty meted out to her at the hands of the appellant and also expressed suspicion that she was subjected to culpable homicide by the appellant. The Police carried out certain investigation on the basis of the FIR (Exh.18). The post-mortem examination revealed that there were third degree deep burns all over 4 the dead body of Mira from head to toe. On the basis of material gathered during the course of investigation, the appellant was charge-sheeted for offences punishable U/ss 302 or 306 and 498-A of the I.P.C. 4. A Charge (Exh.2) was framed by the learned Additional Sessions Judge and was explained to the appellant. The appellant entered plea of not guilty. His defence was that Mira died as a result of accidental burns received by her during course of cooking in the kitchen. He denied that she was subjected to matrimonial cruelty during the period of consortium with him. He further denied the allegation that he had made unlawful demand of Rs.25,000/- (Rupees twenty five thousand) from deceased Mira or her father. 5. At the trial, in all ten (10) witnesses were examined by the prosecution in support of the Charge. The learned Additional Sessions Judge held that there was no reliable evidence to infer guilt of culpable homicide amounting to 5 murder. The learned Additional Sessions Judge, however, held that the appellant subjected deceased Mira to matrimonial cruelty on account of her failure to fulfill the unlawful demand of Rs.25,000/- and that offence U/s 498-A of the I.P.C. is duly proved. The learned Additional Sessions Judge further held that Mira committed suicide in the matrimonial home as a result of continuous and unbearable matrimonial cruelty meted out to her by the appellant. In keeping with such findings, the appellant was convicted and sentenced as described hereinbefore. 6. Heard learned counsel for the appellant and learned A.P.P. for the State. 7. It needs to be determined whether the appellant is proved to have subjected deceased Mira to matrimonial cruelty as contemplated under sub-clause (b) of Section 498-A of the I.P.C. and whether as a culmination of such matrimonial cruelty, she ended her life by committing suicide. 8. Before I proceed to scan the evidence 6 tendered by the prosecution, it is pertinent to note that there is no eye witness account about the incident which occurred in the relevant noon at the matrimonial house shared by deceased Mira with the appellant. It has come on the record that the appellant was not present at the house when the incident occurred. He had gone out of station on that day. Thus, deceased Mirabai was alone in the house in the relevant noon. The spot panchanama drawn by the Police indicated that an utensil was found on the stove in the kitchen. There was brinjal curry in the utensil. The spot panchanama was drawn on the same day. The Police visited house of the appellant before registration of the FIR (Exh.18). There is absolutely nothing on record to show that the appellant could have manipulated false scene at the place of offence. There is some material on record, therefore, to infer that deceased Mira was engaged in cooking activity in the kitchen just prior to the incident in question. 9. It is worthwhile to note that the prosecution did not examine the Medical Officer 7 who conducted the autopsy on the dead body of Mira. The post-mortem notes (Exh.15), the spot panchanama (Exh.12) and the inquest panchanama (Exh.11) were admitted by the defence U/s 294 of the Cr.P.C. The recitals of the PM notes go to show that deceased Mira had received third degree burn injuries all around the scalp and most of the hair were found burnt. She had received third degree burns all around the face, neck,shoulder, upper limbs, chest and abdomen. There were similar burns on her private part, buttocks, knees and lower extremity. The fact that her hair and scalp had received severe burn injuries would indicate that there may not be an attempt to commit suicide. For, ordinarily when suicide is committed, inflammable liquid such as kerosene, petrol etc. is poured on the shoulders and below. The person who decides to commit suicide is unlikely to take bath of such inflammable liquid. The observations in Modi's Medical Jurisprudence and Toxicology may be reproduced as follows : "Occasionally, people commit suicide by 8 soaking their clothes first with kerosene oil and then setting fire to them. Sometimes, they may keep a cloth in their mouth or wrap several turns of wire or fabric around the neck - with a view to stifle a cry. In such cases, whether the mouth was stuffed firmly or not, or whether the wire around neck is tightly wound or not - must be established post-mortem. The pernicious custom of dowry among certain Hindu castes sometimes leads young women to commit suicide in this manner." What emerges from the discussion made by the learned Sessions Judge in the impugned judgment is that he gave much importance to the observations appearing against column No.14 of the post mortem notes that the burnt skin was found smelling of kerosene oil. Both the lungs of the deceased were found to contain particles of carbon smoke. In other words, deceased Mira inhaled the carbon monoxide and suffocated due to 9 such reason. The chest was completely burnt and the larynx, Trachea and Bronchi were found congested. The observations in the PM notes do not show that food particles were found in the Trachea. In fact, merely on the basis of such observations in the PM notes, a definite conclusion could not have been arrived at about the cause of death of deceased Mira. At the most it can be inferred with certainty that she died as a result of severe burns received by her. Still, however, it can not be inferred that the burn injuries were result of the act of suicide committed by her. The expert's opinion ought to have been recorded before giving a definite finding in this behalf. The admission of the PM notes by the defence would simply indicate that the fact that Mira died as a result of burn injuries was undisputed. 10. The learned Sessions Judge noticed that deceased Mira had not gone out of the house and, therefore, there was no hue and cry raised which could attract attention of the neighbours. He inferred therefore, that if she had received burn 10 injuries due to accident then ordinarily she would have screamed for help and might have gone out of the house. Considering her conduct, the learned Sessions Judge reached conclusion that she had not received accidental burns. I find it difficult to subscribe such kind of definite inference on account of so-called conduct of deceased Mira. First, merely because she did not shout, it can not be said that there could be no incident of accidental burns. One can not be oblivious of the fact that the incident occurred at about 3 p.m. when ordinarily the male members from the neighborhood are not at home, whereas female members may be engaged in domestic work or a small napping/siesta. The observations of the learned Sessions Judge that she had not gone out of the house and did not raise shouts are based on mere surmises. Under these circumstances, I find it difficult to hold that the prosecution proved, beyond a reasonable realm of doubt, that death of Mira was suicidal in nature. 11. Coming to the question of proof regarding alleged matrimonial cruelty, it may be 11 gathered that there is only verbal account tendered by P.W. 1 Nimba and his relatives on this score. The version of P.W.1 Nimba purports to show that deceased Mira use to tell him that the appellant wanted to purchase a plot and hence, was in need of Rs.25,000/- (Rupees twenty five thousand). She use to narrate to him that the appellant used to trouble her. He vaguely states that the appellant use to ill-treat her on account of such demand which was unfulfilled. No specific instance of a particular kind of ill- treatment was stated by him. Mere vague assertions that she was troubled or ill treated would not suffice without there being specific instances and manner of the ill-treatment. He did not give details of the period of such kind of unlawful demand made by the appellant. He vaguely referred to such period after one and half month of her departure after the delivery. The version of P.W. Nimba reveals that she was brought to his house for the last delivery before about 5/6 months of the incident. He states that there was no talk between him and the appellant during that period. His cross-examination 12 reveals that the expenses of the marriage were borne by the appellant and his brother. Obviously, he had not incurred the marriage expenditure. This is a glaring circumstance. This admission of P.W. Nimba would show that the appellant is not a greedy person. At the time of his marriage, the appellant was running a pan shop. It is admitted by P.W. Nimba that after 2/3 years of the marriage, the appellant and Mira started residing separately from other family members. He never asked Mira that why they have separated from family members of the brother of the appellant. Significantly, P.W. Nimba admits that he was not pulling on well with the father of the appellant and as such used to visit the house of the appellant on very few occasions. It is obvious, therefore, that he had no much personal knowledge about the treatment given to the deceased Mira by the appellant. He admits that Mira never told him that the appellant had declined to send her. He further admits that some times, the appellant himself use to visit his house to fetch Mira. He further admits that Mira never told him that she would not go to 13 house of the appellant at Amalner. Thus, there is no much reliable evidence to infer that she was dissatisfied in the matrimonial home and was dejected due to so-called ill-treatment at the hands of the appellant. 12. P.W.Punjabai, is mother of deceased Mira. She did not state that amount of Rs. 25,000/- (Rupees twenty five thousand) was being demanded for purchasing of a plot. She vaguely deposed that Mira was being ill-treated by the appellant for his demand of money. Her version is rather vague in so far as unlawful demand made by the appellant is concerned. She gave yet another reason regarding ill-treatment of Mira. She deposed that P.W. Nimba visited house of the appellant and lateron told her that the appellant use to consume liquor and use to ill-treat Mira. It may be noticed that P.W. Nimba himself did not state that he had come across liquor drinking habit of the appellant and ill-treatment meted out by him to Mira under inebriated condition. The cross-examination of P.W. Punjabai reveals that as a result of bickerings between the 14 womenfolk in the joint family, the appellant and Mira started separate residence from the other members of the family. She admits that Mira never stayed at house of her parents for more than 15 days. She further admits that appellant use to visit her house in order to fetch Mira. She further admits that Mira had never gone to Amalner i.e. at house of the appellant on her own accord. Needless to say, the appellant did not leave her unattended and Mira was usually brought back to the matrimonial home by him from house of his inlaws as and when she use to visit their house. This conduct of the appellant shows that the matrimonial life of the spouses was rather normal. 13. The versions of P.W. Hari, P.W.5 Baburao and P.W.6 Ghanashyam Baviskar, vaguely show that Mira had informed them about unlawful demand of Rs.25,000/- (Rupees twenty five thousand) put forth by the appellant for alleged purchase transaction of a plot. There is hardly any evidence to show that he had entered into any transaction with owner of a plot and was in 15 financial difficulties. The version of P.W. Hari does not show that Mira had complained to him about ill-treatment on account of non-fulfillment of the unlawful demand. He stated that in 1991 younger brother of the appellant was married and that time, the appellant had assaulted Mira because her father had not brought money. This incident is not referred to by P.W.Nimba in his deposition nor it finds place in the recitals of the FIR. There are material omissions in the Police statement of P.W. Hari in the context of alleged ill-treatment and the demand of Rs. 25,000/- (Rupees twenty five thousand). All the three witnesses viz; P.W.Hari, P.W. Baburao and P.W. Ghanashyam are the uncles of deceased Mira. 14. While evaluating the versions of such close relatives of the deceased one can not be oblivious of the ground reality. The death of the close relative, particularly, the daughter or niece is likely to give rise to anguish to her paternal relatives. The deep anguish is likely to cause them to speak out something out of their conjectures or on the basis of remote information 16 received by them. In the present case, no one from the neighbourhood from the appellant came forward to depose that Mira was subjected to ill- treatment by the appellant during the relevant period of her stay with him. She was somewhat settled in the matrimonial life due to the delivery of two sons and a daughter. The testimony of P.W.9 PSI Borse (Retd.) reveals that on date of the incident, the appellant had gone to house of his sister at village Sandavan. Nobody had seen him in the proximity of the residential house at Amalner around the time of the incident. Considering these aspects of the matter, I find that the learned Additional Sessions Judge did not properly appreciate the evidence on record. There is no tangible material to infer that the appellant induced, goaded or enticed deceased Mira to commit suicide and thereby abetted her for commission of so- called suicide nor it is duly proved that her death is of suicidal nature. 15. For the aforestated reasons, the impugned judgment of conviction and sentence is 17 quite unsustainable. The appeal deserves to be allowed. Hence, the appeal is allowed. The impugned judgment of conviction and sentence rendered in Sessions Case No.10/1992 is set aside. The appellant stands acquitted for offence U/ss 498-A and 306 of the I.P.C. His bail bonds be deemed as cancelled. The property articles shall be destroyed. (V.R.KINGAONKAR,J.) asp/office/Crappeal24297