1 Appeals 253, 307/1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.253 OF 1992 Ramesh Kacharu Chikane ] Age : 30 years, ] R/o : Samrat Nagar, Mumbra, ] Appellant Sampat Ananda Rapate Chawl, ] (Ori. accused) Tal. & Dist. Thane. ] Vs. The State of Maharashtra ] Respondent WITH CRIMINAL APPEAL NO.307 OF 1992 The State of Maharashtra ] Appellant Vs. Ramesh Kacharu Chikane ] Age : 30 years, ] R/o : Samrat Nagar, Mumbra, ] Respondent Sampat Ananda Rapate Chawl, ] (Ori. accused) Tal. & Dist. Thane. ] Mr. M.M. Khokhawala, Advocate for appellant in Appeal No. 253 of 1992. and for respondent in Appeal No.307 of 1992. Mr. Y.M. Nakhawa, APP for State. Coram : Smt. R.P.SondurBaldota, J. Date : 13th September, 2010 JUDGMENT : 1. This is a common order on the appeal against conviction and the appeal by the State for enhancement of sentence. By the judgment 2 Appeals 253, 307/1992 and order dated 11th March 1992, passed by the Additional Sessions Judge, Thane, the appellant in the First Appeal is convicted of the offence punishable under Section 498-A and 306 Indian Penal Code and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for three months. 2. The brief facts of the prosecution case are as follows : Ramesh was married to Ranjana in the year 1983. After the marriage, Ranjana went to reside with her in-laws at village Dongargaon and Ramesh was residing with his parents-in-law at Worli, Mumbai on account of his employment. There were two children, then aged about 5 and 3 years born from the wedlock. Later Ramesh brought Ranjana from Dongargaon to Worli and both along with their children resided with parents of Ranjana at Worli for a period of about 2-3 months. Then Ramesh secured an accommodation initially at Mulund and later at Thane where cousin brother of Ramesh, one Dayanand along with his sister resided in the adjoining room. On 24th October 1989 between 3 pm. to 3.30 pm., Ranjana committed suicide by pouring kerosene on her person and setting herself on fire. She also poured kerosene on her two children, aged about 5 years and 3 years and set them on fire by hugging them. Ranjana succumbed to the burn injuries, while in the hospital, on 25th 3 Appeals 253, 307/1992 October 1989. The children had died on 24th October 1989 itself. 3. On admission of Ranjana to the Civil Hospital, Thane, PSI, Gorakh Patil attached to Rabale Police Station recorded her statement in presence of a doctor at about 3.30 pm. Thereafter the Special Executive Magistrate, Shri Bhoir also recorded her statement, which has been treated as dying declaration. In her statement, Ranjana accused Ramesh of cruelty and harassment complaining that Ramesh used to drink and assault her regularly. He also used to demand that Ranjana divorces him, so that, he could marry another woman. Ranjana stated that this harassment had been going on since last four years and she was fed up with the ill-treatment meted out to her. Therefore, she committed suicide. She also stated that she set fire to the two children by pouring kerosene on their person, because she feared that after her death, Ramesh would marry for the second time and the children would be neglected. Based on the dying declaration, the Police initially registered the offence punishable under section 498-A Indian Penal Code and after the death of Ranjana added an offence punishable under section 306 Indian Penal Code to the F.I.R. 4. The defence of Ramesh was of total denial as regards the allegations of ill-treatment and harassment. According to him, 4 Appeals 253, 307/1992 Ranjana was emotionally disturbed over the unfortunate incident of rape upon her and the extreme step of suicide was taken by her on account of that incident only. A couple of months prior to the incident in this case, there was an unfortunate incident of rape upon Ranjana at the hands of Dayanand. Thereafter both Ranjana and Ramesh had lodged complaint with Vartak Nagar Police Station in respect of the incident of rape. 5. The prosecution examined the parents of Ranjana i.e. father-PW1, mother-PW-6, landlord of Ramesh (PW-2), landlord s wife (PW-3), ’ Special Executive Magistrate (PW-4), panch witness (PW.-7), the medical officer (PW-5) and the investigating officer (PW-8). The learned trial Judge accepted the evidence of the prosecution as sufficient to hold that Ranjana was driven to commit suicide on account of ill-treatment and harassment meted out by Ramesh to her and passed the judgment of conviction against him. 6. Ramesh challenges his conviction submitting that if at all there was any reason for Ranjana to be emotionally disturbed, it was on account of the unfortunate incident of rape upon her and not any ill-treatment or harassment by him. It is also contended that even if the allegation that Ramesh had ill-treated her under the influence of liquor and demanding divorce from her since several years prior 5 Appeals 253, 307/1992 to the incident of suicide is to be accepted, it was necessary for the trial Court to take into consideration the immediate cause of disturbance i.e. the incident of rape. It is also the contention of Ramesh that the trial Court ought to have taken into account the inconsistencies in the evidence of PW-2, the landlord and PW-3, his wife, who deposed about the quarrel on the previous night between Ramesh and Ranjana as also the incident of burning and the further steps taken by them. It is next contended by Ramesh that the evidence of dying declaration of Ranjana cannot be accepted since the medical record showed that the hands of Ranjana had burnt completely, hence she was not in a position to put her thumb impression on the statement recorded by the Special Executive Magistrate. 7. Perusal of the depositions of PW-1, the father and PW-6, the mother of Ranjana show that they have only baldly sought to support the allegation of Ranjana, in her dying declaration that Ramesh used to ill-treat her under the influence of liquor and also demand that she divorces him, so that he could marry again. Their deposition contains general allegations and do not refer to any specific incident. They also do not state as to when were the disclosures by Ranjana made to them. Undisputedly for a long period of more 6 Appeals 253, 307/1992 than 3 years, both Ranjana and Ramesh were not residing together. Ranjana was residing with her in-laws at Dongargaon and Ramesh used to reside with his in-laws at Mumbai. He used to visit Dongargaon on holidays to be with Ranjana. Therefore, there could hardly be any complaint as regards continuous harassment of assault and abuse under the influence of liquor on the part of Ramesh. Also it is not the evidence of PW-1 and PW-6 that Ramesh used to drink liquor when he was residing with them. On the other hand, there another definite reason for Ranjana to be disturbed and that was the incident of rape on her by cousin brother of Ramesh, who used to reside in the adjoining room. This must have been working on the mind of Ranjana continuously though there was immediate lodging of complaint by Ramesh which has been treated as an F.I.R. and investigated by Police. 8. PW-3, the wife of landlord stated in her evidence that on 23rd October 1989 in the night, she heard quarrel from the room of Ramesh. She also heard the sound of slaps. Then on 24th October 1989, at noon, she again heard sound of quarrel from the room of Ramesh. Thereafter, she along with two neighbours, Naina and Asha went to the house of Ramesh and asked Ranjana not to quarrel with Ramesh. She also stated that at that time Ramesh was in 7 Appeals 253, 307/1992 drunken condition. Thereafter at about 3.00 to 3.30 pm, she saw smoke coming out from the room of Ramesh and called her husband. Both saw Ranjana coming out of the room and she was in flames. Then one Morekaka residing in front of the building, tried to extinguish the fire by his hands. Ranjana was carrying her two children, who were also burnt. As per the evidence of PW-3, her husband- PW-2 took the children to the hospital. The husband along with other persons also took Ranjana to the Civil Hospital. As against this, the evidence of PW-2, the landlord is that there were quarrels between the husband and wife on the night of 23rd October 1989 and also in the noon of 24th October 1989. Thereafter Ramesh along with his children had allegedly visited the house of PW-2. PW-3 had enquired with him about the meal of children. When Ramesh said that they had not taken their meals, PW-3 served them meals. About 1 hours thereafter, he heard shouts from the room ½ of Ramesh and saw the flames in the room. PW-2 claims to have extinguished the fire of the person of two children and taken them to the Civil Hospital. According to PW-2, Ranjana was taken to Civil Hospital by PW-3, his wife and Ramesh. 9. Mr. Khokhawala, the learned counsel for Ramesh submits that the contradictions and omissions in the evidence of PW-2 and 3 are 8 Appeals 253, 307/1992 material contradictions. According to PW-2, he had taken only the two children to the hospital whereas according to PW-3, he had taken all the three to the hospital. PW-3 does not refer to the accused accompanying his wife and children to the hospital. Ramesh, as per the case of the prosecution was very much present in the house and it is nobody s case that he had either remained idle after ’ the incident or had ran away. PW-2 does not say that PW-3 had visited the house of Ramesh at noon on 24th October 1989, Similarly PW-3 does not talk about visit of Ramesh with children to her house. PW-3 says that she found Ramesh drunken condition when she had gone to his house. But PW-2 does not say that Ramesh was drunk when he had brought the children to his house. It is thus seen that the contradictions in the evidence of PW-2 and PW-3 are the contradictions over material aspects of the matter. 10. Mr. Khokhawala next submits that the evidence of dying declarations produced before the court is also not free from doubt. Evidence of the Medical Officer shows that Ranjana died of burn injuries to the extent of 95%. Her each hand had sustained burn of 9%. According to the Medical Officer, 9% burn injuries to the hand would mean the total burning of the hand. He also deposed that if the hands are burnt, the thumb impression of the burnt hand would 9 Appeals 253, 307/1992 not show the ridges of the thumb. The thumb impression seen on the original dying declaration clearly shows the marks of all ridges of the thumb. Since the deposition of Medical Officer as well as the certificate of post mortem report shows that the hands of Ranjana were burnt and 9% of burnt injuries to each hand would amount to complete injury to the hand, there could be no thumb impression on the dying declaration. The prosecution has not been able to reconcile the thumb impressions seen on the original dying declaration and the evidence of the Medical Officer as regards the burn injuries of Ranjana. The benefit of this lapse on the part of the prosecution will have to go to the appellant. 11. In the above circumstances, the appellant must get benefit of doubt. Hence Criminal Appeal No. 253 of 1992 is allowed. The judgment and order dated 11th March 1992, passed by the Additional Sessions Judge, Thane is set aside. The appellant, Ramesh Kacharu Chikane is acquitted of the offence punishable under Section 498-A and 306 Indian Penal Code. His bail bond stands cancelled. 12. In view of the acquittal of the appellant, Ramesh Kacharu Chikane, the Criminal Appeal No.307 OF 1992 filed by the State for enhancement of sentence is dismissed. ( Smt. R.P. SondurBaldota, J)