1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.211 OF 1993 Dnyandeo Pandurang Ugale age about 21 years, residing at Adhanwadi, Sambhajinagar, Ramesh Gaikar Chawl, Kalyan, Dist. Thane, now residing at Ugalewadi, Dodi Budruk Taluka Sinnar, District Nashik ...Appellant. (Org. Accd.No.1) v. State of Maharashtra ...Respondents. (Org. Complainant) Mr. S.V.Kotwal i/by Raj J. Kunde, advs. For the Appellant. Ms A.T.Javeri, APP. For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : FEBRUARY 11, 2011. ORAL JUDGMENT: 1 The appeal is preferred by the original accused no.1 challenging his conviction for the offences punishable under Sections 306 and 498A of the I.P.C. and sentence to undergo R.I. for two years with fine and R.I. for one year with fine respectively awarded by the learned Sessions Judge, Thane by the judgment and order in Sessions Case No.542 of 1988. 2 2 Prosecution case, in brief, is that the appellant/accused no.1 was married to deceased Asha about one and quarter year before her death. After marriage the couple began to live together at Kalyan. Father of the appellant, who was accused no.2, was also living with them. Asha used to pay visits to her parents place at Chincholi, Taluka: Sinnar, District: Nashik once in 2-4 months. Couple lived happily for about two months but thereafter Asha was being harassed and illtreated by her husband and father-in-law. Her husband also used to abuse and assault her. Whenever she paid visits to her parents house, she made grievances to her parents about harassment at the hands of her husband and father- in-law. About one and half month prior to her death, the appellant had asked her parents to pay Rs.25,000/- to him as he wanted to purchase some land. Her parents had expressed their inability to meet the demand and the appellant had warned them about the consequences of the refusal to pay money. About 15 days before her death, Asha and her husband went to her parents place to attend the marriage of her maternal uncle Arjun. After the wedding ceremony was over and just before leaving the house of her parents, the appellant repeated his demand for an amount of Rs.25,000/- but her parents again showed their inability. On their refusal to pay the amount, the appellant allegedly threatened them that he would 3 now call them for the funeral and obsequies of Asha. On 5.5.1988 Asha immolated herself after pouring kerosene and she suffered 100% burn injuries. She was immediately taken to the hospital where she was declared dead and, therefore, her dying declaration could not be recorded. Information of her death was conveyed to her parents. Immediately they rushed to Kalyan and after inquest and post mortem examination, her body was taken to her parents place at Chincholi where the funeral was performed. On the same day after referring dead body for post-mortem examination, PSI Narayan Teli recorded spot panchanama. A plastic can containing about 1 liter of kerosene, a plastic mug smelling of kerosene and partly burnt match-box filled with matchsticks lying on the floor of the room, where Asha had immolated herself, were seized under the panchanama. 3 On 5.5.88 or 6.5.88 no report was lodged and police had registered it as accidental death case. For the first time on 12.5.1988 police called her parents to Kalyan Police Station where statement of her mother P.W.1 Anandabai was recorded. In that statement, she revealed prosecution case of cruelty and demand of money by the accused. That statement was treated as F.I.R. and the case came to be registered under Sections 304B, 306 and 498A r/w section 34 of the I.P.C. against the 4 present appellant as the accused no.1 and his father accused no.2. Statements of other witnesses from the neighbourhood as well as of father of the deceased were recorded. After investigation, chargesheet was filed and the case was committed to the Court of Sessions. 4 Charge was framed against both the accused for the offences punishable under Sections 304B, 306 and 498A r/w section 34 of the I.P.C. Accused pleaded not guilty. According to them, Asha had caught fire accidentally while cooking food. They also denied any demand or illtreatment. On behalf of the prosecution, in all nine witnesses were examined. Several documents were placed on record. After hearing the parties, the learned Sessions Judge acquitted the accused no.2 Pandurang Ugale of all the charges. He also acquitted Accused no.1/appellant Dnyandeo of the charge under Section 304B but convicted and sentenced him for the offences under Sections 306 and 498A IPC. 5 Heard the learned counsel for the parties. Perused the record and proceedings of the trial Court. Though the prosecution had examined in all nine witnesses including three witnesses from the neighbourhood and panch witnesses to prove illtreatment and the spot panchanama, they did not support the prosecution. P.W.2 Ramesh Gaikar, P.W.3 Pandurang and P.W.4 Vijay were neighbours of the accused and they were examined 5 to prove illtreatment to Asha at the hands of her husband but none of them supported the prosecution story and denied any knowledge therefore, they were declared hostile. Similarly, P.W.7 Kondiba, who was witness of the spot panchanama alongwith P.W.2 Ramesh Gaikwar, also did not support prosecution. According to him, his signatures on the panchanama were obtained at the police station, therefore, he was also declared hostile. The learned Trial Court, after examining the material on record came to conclusion that these four witnesses were not inclined to depose truth before the Court and, therefore, their evidence is liable to be discarded. Thus, prosecution relies mainly on the evidence of P.W.1 Anandabai and P.W.5 Vishnu, who are the parents of the deceased Asha about illtreatment and cruelty at the hands of the accused no.1/appellant. 6 Evidence of P.W.1 Anandabai and P.W. 5 Vishnu shows that accused no.1 Dnyaneshwar was married to their daughter about one and a quarter year prior to her death and after her marriage, she went to live with her husband at Kalyan. Her father-in-law accused no.2 Pandurang also used to stay alongwith them in the same house. Their evidence shows that Asha used to visit the parents house at the interval of 2-4 months and at the time of such visits, she used to complain that her husband used to beat her. Both of them deposed that about one and half 6 month prior to her death, the appellant had come to their house and at that time, he had demanded an amount of Rs.25,000/- for purchase of land. However, P.W.1 Anandabai and P.W.5 Vishnu told them that they were unable to meet his demand because of their financial condition. At that time, the appellant left their house after giving warning that he would let them know the consequences. Thereafter, about 15 days before her death, Asha and her husband went to her parents place at Chincholi to attend the marriage of Arjun, who is brother of P.W.1 Anandabai. From Chincholi, they joined the marriage party and returned to Dapur for marriage ceremony . After the wedding ceremony was over, they alongwith the marriage party returned to Chincholi. Just before departure from the house of her parents, the appellant again demanded an amount of Rs.25,000/- from her parents but they expressed their inability to meet the demand. On their refusal to meet demand, the appellant threatened them by saying that he would call them now on the funeral and obsequies of Asha. This was a serious threat to the life of Asha. Fifteen days after that Asha died because of burn injuries. 7 P.W.1 Anandabai and P.W.5 Vishnu were cross-examined at length but they could not be shattered. Their evidence is consistent with each other as well as to their statements before the police. The learned 7 counsel for the appellant contended that there was delay of about one week in lodging the report. Incident occurred on 5.5.1988. On the same day, inquest panchanama and post mortem examination was conducted. Their parents got the information and immediately they rushed to Kalyan. On 6.5.1988 dead body was handed over to them and they took the deadbody to their village at Chincholi, where funeral was performed. On 6.5.1988, her parents were actually busy and under grief. It is true that there is delay of about five days after that in lodging report. They themselves did not approach the police but when police called them, they stated all the facts. It is possible that because of the ignorance or because there was no eye witness of the actual burning incident, they did not approach the police to lodge the report. It appears from the record that on behalf of the accused, it was suggested to P.W.1 Anandabai that Asha used to suffer from epileptic fits but this was denied by her. No material was placed on record to show that she was suffering from such ailment. 8 P.W.6 Dr. Kshama Mumbaikar, who was lady medical officer at Kalyan, performed the post-mortem examination and gave post mortem report Ex.34. Her evidence shows that Asha had suffered 100% burns of IIIrd and IVth degree all over the body and she had died because of burn injuries. She also opined that the burns found on the 8 body could not have been caused by accident. On this opinion, she was cross-examined. In the cross-examination, she explained that in case of burning by accident, whole body would not sustain such type of burns, i.e., the burns of 3rd or 4th degree. 9 To appreciate the opinion of Dr. Kshama Mumbaikar , it will be useful to refer to the spot panchanama conducted by P.W.8 PSI Teli. Oral evidence of P.W.8 Teli and documentary evidence reveals that on 5.5.1988 , he received information about the death of Asha and he immediately went to the spot of the incident at Gaikar Chawl. He arranged to take Asha to the hospital. On examination she was declared dead. Thereafter he recorded inquest panchanama Exhibit 32 between 1.40 p.m. to 2.15 p.m. P.M.Report Ex.34 reveals that deadbody of Asha was received in mortuary at about 3.45 p.m. It shows that PSI was busy in making arrangements to take her body to the mortuary immediately after the inquest panchanama. After the deadbody was reached at mortuary, he went to the spot of the incident and recorded spot panchanama Ex.37A between 5 to 5.30 p.m. It shows that spot panchanama was conducted diligently and as promptly as possible in the given circumstances. Spot panchanama reveals that the house consisted of two rooms. Deadbody of Asha was found lying in the centre of 9 kitchen room and it was revealed that she had immolated herself and had collapsed in the middle of the room. There only plastic can containing about one liter of kerosene, one plastic mug smelling of kerosene and partly burnt matchbox and burnt pieces of clothes were found. These articles were seized under the panchanama. In the cross-examination PSI Teli was asked about the presence of other domestic articles and stove. He deposed that other articles of domestic use were also in the house and kerosene stove was lying on the kitchen platform. That stove was not seized. According to him, the above referred articles, which were seized, were on the floor of the room. Stove was lying on the platform in the kitchen. In the panchanama there was nothing to show that incident had occurred on the platform with that kerosene stove. Normally height of kitchen platform is about 2 ½ to 3 feet, so that a person may comfortably stand and cook. If a person standing near the platform, catches fire with flame of the stove, the upper part of the body is most likely to be affected. In the present case, the deceased had suffered 100% burns of grade IIIrd and IVth . This rules out the possibility of sustaining burn injuries by catching fire with the flame of the stove, which was lying on the platform of the kitchen. In view of these circumstances, it could not be case of accidental fire. It provides corroboration to the opinion of 10 autopsy surgeon Dr. Kshama Mumbaikar. In view of this, there remains no doubt that she had suffered burn injuries due to self immolation and not due to any accidental fire. 10 Asha was married to the accused/appellant about one and a quarter year before the incident. The learned Sessions Judge rightly noted that there is no evidence or material on record to show that marriage was not to her liking or that she did not want to marry with the present appellant. Nothing has come on record to show that she was not happy with the marriage and that, there could be possibility of committing suicide because of the depression. In the present case, evidence of her parents shows that whenever she used to visit parents house, she used to complain about the beating and illtreatment at the hands of the husband. Both of her parents specifically deposed that about 1 and half month before her death, her husband had made demand of Rs.25,000/- to purchase some land but they could not fulfill demand due to their financial condition. On their refusal, accused had threatened about the consequences. About one month after that when the accused and deceased Asha went to her parents place to attend the marriage of her maternal uncle, the accused repeated demand of Rs.25,000/- and on refusal of her parents to fulfill demand, he specifically threatened that he 11 would call them only for her funeral and obsequies. That was clear threat that she would not survive and would soon meet her death. In view of the threat given by the accused on two occasions and the last being 15 days before her death, inference can be drawn that accused must have tortured her wife in such a way that she was driven to commit suicide. In the present case, as noted earlier police had recorded statements of three witnesses from the neighbourhood to prove that accused used to beat and treat his wife with cruelty, shortly before this incident but unfortunately all those witnesses, from the neighbourhood of the accused, turned hostile. However, there is nothing on record due to which testimony of her parents, i.e., P.W.1 Anandabai and P.W.5 Vishnu could be disbelieved. 11 Demand of Rs.25,000/-was made for the first time about 1 and half months before her death, i.e., more than one year after the marriage. Therefore, the learned Sessions Judge came to conclusion that demand was not on account of dowry. In view of the circumstances, even though it could not be treated as dowry death, cruelty was on account of demand of money. Explanation (b) to Section 498A IPC defines cruelty as harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand 12 for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. In the present case, accused/appellant had made specific demand about 1 and half month before her death and when that demand is not fulfilled, he threatened with the consequences and again about 15 days before her death he had specifically given threat of her death by saying that he would call her parents for her funeral. This was attempt to coerce her parents to meet unlawful demand. It appears that the appellant harassed and tortured his wife due to failure of her parents to meet that unlawful demand. It amounts to cruelty within the definition of Section 498A. As such he is liable to be held guilty under Section 498A. 12 Section 113 of the Evidence Act provides that if woman has committed suicide within a period of seven years from the date of her marriage and if her husband or any relative of her husband had subjected her to cruelty, Court may presume, having regard to the all other circumstances of the case, that such suicide had been abetted by her husband or by such relatives of her husband. In the present case, it is established that her husband had subjected her to cruelty on account of demand of money and because of that cruelty, she committed suicide within 15 months after her marriage. Therefore, taking into consideration 13 all the circumstances, it will be just and reasonable to raise presumption that accused had abetted his wife to commit suicide by treating her with cruelty. Therefore, accused is liable to be convicted for the offence under Section 306 of the I.P.C. The learned Sessions Judge minutely considered the evidence and came to conclusion that the accused was guilty of the charges under Sections 498A and 306 of the I.P.C. I see no reason to interfere in the findings. I also do not find any reason to interfere in the sentence awarded by the trial Court. 13 For the aforesaid reasons, the appeal stands dismissed. The accused/appellant shall surrender before the trial Court to undergo the sentence awarded within six weeks. (J.H. BHATIA,J.) 14 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.211 OF 1993 Dnyandeo Pandurang Ugale age about 21 years, residing at Adhanwadi, Sambhajinagar, Ramesh Gaikar Chawl, Kalyan, Dist. Thane, now residing at Ugalewadi, Dodi Budruk Taluka Sinnar, District Nashik ...Appellant. (Org. Accd.No.1) v. State of Maharashtra ...Respondents. (Org. Complainant) Mr. S.V.Kotwal i/by Raj J. Kunde, advs. For the Appellant. Ms A.T.Javeri, APP. For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : FEBRUARY 11, 2011. P.C. 1 For the aforesaid reasons, the appeal stands dismissed. The accused/appellant shall surrender before the trial Court to undergo the sentence awarded within six weeks. (J.H. BHATIA,J.) 15