1 cri appeal 141.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 141 OF 1999 1. Punamlal S/o Mohanlal Ahir, Age : 36 Years, Occu. : Business, R/o Gawalipura, Nanded, Dist. Nanded. (Died during the pendency of appeal Appeal abeted against appellant No. 1.) 2. Shamlal S/o Mohanlal Ahir, Age : 32 Years, Occu. : Business, R/o Gawalipura, Nanded. .. Appellants. Versus The State of Maharashtra .. Respondent (Copy to be served on the Public Prosecutor in the High Court of Judicature of Bombay Bench at Aurangabad.) Shri C. R. Deshpande, Advocate for Appellants. Smt. Y. M. Kshirsagar, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. 2 cri appeal 141.99 RESERVED FOR JUDGMENT ON : 21.02.2011 JUDGMENT PRONOUNCED ON : 03.03.2011 JUDGMENT : . This appeal is filed challenging the final judgment and order dated 15th March, 1999 in Sessions Case No. 71/1997 passed by the IInd Additional Sessions Judge, Nanded, by the appellants/herein who are original accused Nos. 1 and 2. Both the accused/appellants are convicted for the offence punishable U/Sec. 498-A r/w Sec. 34 of the Indian Penal Code and sentenced to suffer S. I. for two years and fine of Rs. 1,000/- each in default SI for three months. They are further convicted for the offence punishable U/Sec. 304-B r/w Sec. 34 of the I. P. Code and sentenced to suffer SI for seven years and fine of Rs. 2,000/- each in default SI for six months. However, they came to be acquitted from the offence punishable U/Sec. 306 and 201 r/w Sec. 34 of I. P. Code. The accused No. 3 Gauribai is acquitted from all the offences punishable U/Sec. 498-A, 304-B, 306 and 201 r/w Sec. 34 of the I. P. Code. At the outset it is relevant to mention that, the appellant No. 1 herein died during the pendency of the appeal. This Court 3 cri appeal 141.99 in its order dated 01st December, 2010 observed that, the advocate for the appellants informs that the appellant No. 1 died during the pendency of the appeal and on production of death certificate of the appellant No. 1 the appeal would stand abated. The counsel for appellants informs this Court that death certificate of appellant No. 1 is already placed on record. 02. The prosecution story in brief is as under : Mangala was the daughter of Laxman Khare/P.W. 5 resident of Jalna. She married before 2 1/2 years to 3 years of her death with Shamlal S/o Mohanlal accused No. 2. The accused No. 1 is real brother of accused No. 2 and accused No. 3 Gauribai is wife of the accused No. 1. Since marriage all these persons are residing in the same house situated at Gawalipura, Nanded. 03. The accused were pulling on well with Mangala till the birth of the son. Thereafter, she was subjected to cruelty and harassment for the demand of Rs. 15,000/- by all the accused. The accused Shamlal and Mangala had been to the house of the complainant Laxman Khare prior to Diwali in the year of the incident. At that time Mangala asked complainant to pay Rs. 15,000/- and if the amount is not paid she would have to face 4 cri appeal 141.99 harassment. Not only that the nephew of complainant Shankarlal and Ramesh had been to the house of Mangala at Nanded. When Ramesh had been to her matrimonial house at the time of Rakhi Pornima she asked Ramesh to inform her father that there was demand of Rs. 15,000/- and the accused were harassing her for the same. Ramesh informed likewise to the complainant and on returning to Nanded he informed accused that the complainant assured to fulfil their demand. 4. Shankarlal had been to the house of accused at Nanded before Diwali. When he visited the house of accused he was accosted for bringing cash of Rs. 15,000/-. The accused started abusing him after becoming aware that no cash is brought by him. Mangala intervened, but she was slapped by the accused No. 2. The accused No. 1 Punamlal had been to the house of the complainant on the day of Diwali. He demanded Rs. 15,000/- to the complainant. The complainant showed his inability to pay the same, so accused No. 2 was annoyed and he returned back. Ramesh had been to the house of accused one day prior to incident. He was accosted by the accused for bringing cash. He said that he has not brought the cash. The accused at that time threatened that anything may happen with Mangala. 5 cri appeal 141.99 5. In the night of 01.06.1996 Mangala while sleeping in the house caught with fire. She was immediately taken to the hospital at Nanded. Then on 02.06.1996 at about 5.30 a.m. the complainant received this message on phone. It was informed to him that Mangala received shock of electricity due to short circuit. At 11.30 a.m. he also received telegram about the said incident. At that time elder brother of complainant Mohanlal was serious and was admitted in the hospital at Jalna. Therefore, he sent his wife Hirabai, his nephew Sunderlal and other s to Nanded. Before their arrival Mangala expired. 6. While Mangala was in the hospital her statement was recorded by the police. Her statement was also recorded by Special Judicial Magistrate. A. D. was registered. Inquiry of AD was in progress, the inquest panchanama was drawn. In the post mortem it is disclosed that the smell of kerosene was perceived from the burn injuries. 7. On 05.06.1996 the complainant lodged the complaint in the police station Vazirabad against all accused. As his brother died on 04.06.1996 he could not file the complaint prior to 05.06.1996. The offence was then registered. The investigation was then 6 cri appeal 141.99 proceeded with and after completion of the same the accused are charge sheeted. 8. The charge has been framed U/Sec. 498-A, 304-B, 306, 201 r/w Sec. 34 of the I. P. Code. The accused pleaded not guilty and claimed to be tried. 9. The prosecution in this case has examined as many as 12 witnesses. P.W. 1, 2, 3 and 11 are the panch witnesses of the inquest panchanama and scene of offence panchanama, attachment of cloths from the house of the accused. P.W. 4 is medical officer Satyanarayan Punpale who had done autopsy on the dead body of the deceased on 02.06.1996. P.W. 5 Laxman Khare is the complainant, the father of the deceased. P.W. 6 is the son of maternal uncle of the deceased. P.W. 7 Shankar Khare is nephew of the complainant, Sunderlal Khare is nephew of complainant and P.W. 9 Baibai Bhurewar is one of lady residing at Jalna who happened to the area in which Mangala was residing just few hours prior to the incident. Then P.W. 10 PHC Puri who recorded the scene of offence panchanama. P.W. 12 is investigating officer. 10. It is the case of the accused that, they never ill-treated 7 cri appeal 141.99 Mangala. They never harassed her for the demand of Rs. 15,000/-. In fact the accused No. 1 and 2 are residing separately and have no concern with each other's house. According to accused No. 2 in the night of the incident he was outside the room in which Mangala was sleeping. At about 3.30 a.m. in the night he heard commotion of Mangala. He went inside the room. He found Mangala was burning. He also raised commotion. The accused No. 1 and others brothers then came there. All of them tried to extinguish the fire with the help of wet blanket. He enquired with Mangala how she caught with fire and she told them that because of short circuit of the electricity she caught with fire. All of them then admitted Mangala in the hospital. The information was then given to the complainant and others. 11. It is the case of the accused that, one Hansraj Ahir the M. P. is related to the complainant. He had been to Nanded on 04.06.1996. The complainant, Shankarlal, Sunderlal were with him. They called the police at the rest house. The complainant and other were annoyed because of the death of Mangala. So to harass all accused they have pressurised police with the help of MP Ahir and have filed this false case against all accused. 12. It is specific case of the accused No. 1 and 3 that after 8 cri appeal 141.99 hearing commotion of Mangala and accused, they came to their house. They tried to extinguish fire on the person of Mangala. The accused have examined four witnesses in the defence. One is DW 1 Vithal Bulbule Special Judicial Magistrate who recorded the dying declaration of Mangala on 02.06.1996. D.W. 2 is police head constable Bokare, who has recorded the statement of Mangala while she was admitted in the hospital. D.W. 3 is Dr. Sanjay Manathkar who has given endorsement about the consciousness of Mangala on both the statements. D.W. 4 is police head constable Kendre who made enquiry of AD and submitted his report to the police station. There is specific defence of accused that Mangala died accidental death because of short circuit in the house in the night of the incident. 13. The IInd Additional Sessions Judge, Nanded after framing points for consideration/determination and after recording the evidence and also after hearing the parties convicted the appellants for the offences as stated in detail hereinabove. Hence this appeal is filed by the appellants. During the pendency of this appeal the appellants are enlarged on bail and appellant No. 1 died. The learned counsel appearing for the appellants 9 cri appeal 141.99 submitted that, the first information report is filed by P.W. 5 Laxman Khare who is father of deceased Mangala. The FIR at Exhibit 33 is dated 04.06.1996. There is two days delay in filing the FIR. It is further submitted that, the information regarding death of Mangala was received by the complainant and thereafter he sent his wife and nephews, Sunderlal Khare and Shankarlal Khare to Nanded. The wife of complainant Laxman Khare had been to Nanded, immediately and had a talk with Mangala. It is further submitted that, the defence witnesses D.W. 4 Ganesh Kendre, Head Constable had deposed at Exhibit 72 that, he recorded the statement of Hirabai Laxman Khare on 02.06.1996 at Exhibit 74, wherein she has stated that, on enquiry Mangala told her that she received burn injuries due to electric shock. The said statement bears the signature of Hirabai Khare. In the said statement, Hirabai stated that, Mangala was not ill- treated by anybody in her house. She has not been burnt by anybody nor there is any suspicion about her death. Therefore, the counsel for the appellants would submit that, when the mother of the Mangala herself stated that, Mangala was not ill- treated by anybody in her house and she was not burn by anybody nor there is any suspicion about her death, in that case the appellants deserve to be acquitted. 10 cri appeal 141.99 It is further submitted that, after the incident Mangala was admitted in the hospital at Nanded. Medical Officer D.W. 3 Dr. Sanjay Manatkar at Exhibit 70 has deposed that, the history about burns is noted in the MLC register as an accidental burn. The MLC register was brought in the Court. He further deposed that, at 5.30 a.m. statment of Mangala was recorded by the police head constable of Vazirabad Police Station. While recording her statement, she was conscious and D.W. 3 made endorsement on the said dying declaration. He further stated that, at 5.55 a.m. Special Judicial Magistrate also recorded dying declaration of Mangala, when she was conscious. He has signed the dying declaration and he was with the patient when dying declaration of Mangala was recorded. D.W. 1 Vithal Bulbule whose evidence is at Exhibit 64 has deposed about the dying declaration at Exhibit 65 and about its contents. D.W. 2 Kanthiram at Exhibit 67 who is Special Judicial Magistrate has deposed about the dying declaration Exhibit 68 and about its contents. The statement of mother of deceased Mangala at Exhibit 74 also discloses oral dying declaration of the Mangala. Therefore, according to the counsel for the appellant, there are consistent four exculpatory dying declarations, on the history recorded in 11 cri appeal 141.99 MLC register, dying declaration recorded by Police constable in presence of doctor, dying declaration recorded by Special Judicial Magistrate in presence of doctor and oral dying declaration to her own mother. 14. The counsel further submitted that, the prosecution examined as many as 11 witnesses. P.W. 1 Mulchand Ahir whose evidence is at Exhibit 18 is examined as panch witness of inquest, but he turned hostile. P.W. 2 Bhalchandra Yadav whose evidence is at Exhibit 19 is examined as panch witness on inquest who turned hostile. P.W. 3 Hanmantrao Battine whose evidence is at Exhibit 21 is examined as panch of place of offence not supported the case of prosecution. P.W. 4 Satyanarayan Punpale, Associate Professor whose evidence is at Exhibit 24 supports the prosecution case, however, he stated that, there were 95% burn, kerosene smell, carbon may be due to burns of polyster sari. If pieces of sari adhere to the body, they may smell of kerosene. P.W. 5 Laxman Khare, whose evidence is at Exhibit 50, who is father of complainant has not stated any discloser to him by Sunerlal and also he has stated that there was no harassment to Mangala prior to birth of son. P.W. 6 Ramesh Dhuldani, nephew of complainant though supported the 12 cri appeal 141.99 prosecution case on demand, however does not affirm the disclose to P.W. 5. P.W. 7 Shankar Khare has stated in his evidence that few days prior to Diwali he had been to the house of accused. According to the P.W. 7 in April after Diwali he went to attend the marriage and he had been to the accused. P.W. 7 states that, Shankarlal informed him the incident took place at the time of Marriage. P.W. 8 Sunderlal Khare supports the prosecution case, however, his discloser to Laxman not affirmed by Laxman. P.W. 9 Gayabai Bheruwal supports the prosecution case, however, police have recorded her statement after 5 to 6 days of incident. P.W. 10 Machindra Puri supports the prosecution case. P.W. 11 Ahmedkhan who is panch of seen of offence panchanama turned hostile. P.W. 12 I. O. supports the prosecution case. The learned counsel submitted that, though the FIR is 04th June, 1996 but appears to have been registered on 05.06.1996 at 17.15 p.m. (19.15 hours) There is no acceptable explanation for the delay. The explanation offered for delay that illness of brother of Laxman Khare is not acceptable for the reasons that at the time of filing of FIR his brother Mohanlal was alive. In the cross examination P.W. 5 has stated that his brother Mohanlal died after filing of complaint on 04.06.1996. It is 13 cri appeal 141.99 further submitted that, there is delay in recording the statement of witnesses during investigation. P.W. 5 Laxman Khare stated in his evidence that complaint is filed on 04.06.1996. It is further submitted that, P.W. 6 Ramesh Dhuldani's statement is recorded on 18.06.1996. The statement of P.W. 7 is also recorded on 18.06.1996. P.W. 8 Sunderlal's statement is recorded on 09.06.1996. P.W. 9 Bayabai's statement is recorded after 5 to 6 days. The statements of witnesses during the investigation are recorded very late. The counsel appearing for the appellant submitted that, if the statement of the prosecution witnesses are recorded after 5 to 6 days of the incident in that case benefit of doubt should go to the accused appellant. The delay is fatal to the prosecution and it also creats serious doubt about the testimony of witnesses. The counsel placed reliance on the following reported judgments of this Court and also the judgments of the Supreme Court. i) 2008 All M.R. (Cri) 360 in case of Sunil Shambharkar Vs. The State of Maharashtra ii) 2001 All. M.R. (Cri) 1569 in case of Bhagwan Ghotkar Vs. The State of Maharashtra. iii) 1997 All M.R. (Cri) 1353 in case of The State of Maharashtra Vs. Abdul Kadar. 14 cri appeal 141.99 iv) 2005 (5) SCC 689 in case of Jagjit Singh Vs. The State of Punjab. 15. The learned counsel further submitted that, the evidence of P.W. 5 to 8 is of highly interested witnesses and their statements are also recorded after considerable time. Therefore, their evidence is not trustworthy. The non examination of Hirabai in the Court supports the defence case that, the prosecution avoided to examine her. Since her statement at Exhibit 74 was already recorded which strengthen the defence case. It is further submitted that, there is no reason for the defence witnesses D.W. 1 to D.W. 4 to depose false. On the contrary delayed FIR and delayed statements of P.W. 5 to P.W. 9 would be an after thought story. It is further submitted that, the Trial Court has misconstrued the defence. It is not at all the defence that, Mangala was burnt due to electric shock. Due to short circuit the fire exploded, the cloths on the rope caught fire and thereby Mangala received burn injuries. It is further submitted that, the prosecution case i. e. smell of kerosene on the body of Mangala and cloths of Mangala are given undue weightage. P.W. 4 admitted that, if burnt pieces of cloths adhere to the body, there may be smell of kerosene. No kerosene was smelt at the time of 15 cri appeal 141.99 spot panchanama. At the time of spot panchanama cloths of deceased were not found at the place of incident. The prosecution failed to prove as to how cloths were found at the place of incident, kept in the plastic bag and who brought it, after filing of the F.I.R. The statement of P.W. 5 to P.W. 8 do not corroborate each other. Shankar, Sunderlal and Ramesh state about informing the facts to P.W. 5/Laxman. However, Laxman Khare either does not corroborate it nor he is specific about the date, time of receiving the information said witnesses. The question may arise as to how the short circuit affected Mangala only. It is her misfortune that, the loose electric wires were passing on the rafter below the tins, below that, there was a rope on which cloths were there and Mangala was sleeping alone below the said cloths and wire. The short circuit exploded the fire and burns cloths fallen on Mangala. It is an accident, who would be the victim of an accident is beyond the imagination of anybody. The evidence discloses the demand by Punamlal only and not by Shamlal. It is the settled legal position that, the benefit of doubt always goes to the accused. The defence in this case being acceptable, the accused deserves acquittal. Therefore, the counsel for the appellant would submit that, this appeal may be allowed. 16 cri appeal 141.99 16. On the other hand learned Additional Public Prosecutor appearing for the State submitted that marriage of Mangala took place three years prior to date of incident. Mangala succumbed to burn injuries sustained by her and died in Civil Hospital Nanded on very same day i. e. on 02.06.1996. At the time of incident the accused No. 2 was at the house where the incident took place. She further submitted that, there was continuous demand of Rs. 15,000/- by the accused and same fact has been stated by all the prosecution witnesses. It is further submitted that, the P.W. 5 in his statement before the Court has explained the delay in lodging the complaint. He has stated that, his elder brother was hospitalized and he was in critical condition and ultimately he died on 05.06.1996. The learned A.P.P. invited my attention to the evidence of prosecution witnesses and submitted that, all the witnesses have categorically deposed that there was demand of Rs. 15,000/- by the accused persons from Mangala and on that count they have subjected her to cruelty and harassment. The A.P.P. invited my attention to the evidence of P.W. 4 Medical Officer at Exhibit 24 who proved the postmortem on deceased at Exhibit 25. The learned A.P.P. also invited my attention to the inquest panchanama and submitted that, the defence case that 17 cri appeal 141.99 Mangala died accidental death is completely ruled out by the Medical Officer. The learned A.P.P. further submitted that, the two dying declaration on which the defence has placed reliance are inconsistant. In order to show the inconsistency in two dying declarations, the learned A.P.P. invited my attention to the contents of the dying declarations recorded by the Police Head Constable Bokare/D.W. 2 and recorded by Special Judicial Magistrate/D.W. 1 and submitted that, these two dying declarations are totally inconsistent. Both the dying declarations states altogether different story and, therefore, such dying declarations being inconsistent cannot be relied upon. The postmortem notes and inquest panchanama are genuine and trustworthy. The learned A.P.P. further submitted that, the dying declarations by Mangala must have been made in favour of accused under the pressure of accused and secondly for the welfare of her minor son who was one year old at the relevant time and who was in the custody of the accused. It has come in the evidence of D.W. 2 that the husband of Mangala Shamlal was present when the statement of the Mangala was recorded. Therefore, the learned A.P.P. would submit that, the prosecution has convincingly proved that the death of Mangala is dowry death and husband and his relatives are responsible for causing 18 cri appeal 141.99 her death. Mangala died unnatural death. She died within seven years from the marriage and, therefore, presumption U/Sec. 113- A of the Indian Evidence Act would arise. Therefore, the learned A.P.P. would submit that, the impugned judgment and order cannot be interfered with. Therefore, she prayed for dismissal of appeal. 17. I have given anxious consideration to the submissions of the learned counsel for the appellant and learned A.P.P. for the State. I have also perused the entire material placed on record, the impugned judgment and order challenged in this appeal and also original record and proceedings received from the Court of Sessions Nanded. In this case, the prosecution claimed that the Mangala died unnatural death. The defence claimed that Mangala died accidental death. Therefore, at this juncture it would be appropriate to deal with said point that, whether the Mangala died accidental death or unnatural death. In this respect the evidence of the Medical Officer is important being competent witness on the subject. The deposition of Satyanarayan Badrinarayan Punpale 19 cri appeal 141.99 Associate Professor, GGM Hospital Nanded is at Exhibit 24. In his examination in chief he stated thus, "I am serving as Associate Professor department of forensic medicine and toxicology in the Government Medical College Nanded since 1991. The dead body of Mangalbai W/o Shamlal Ahir was brought to the hospital for post mortem. I have done post mortem on 02.06.1996. I have mentioned the ante mortem injuries in column No. 17 of the PM notes. The deceased has sustained 95% burns. There were burn injuries over the face, then over limbs, both the extremities, abdomen. The margins of burns were reddish Black carbon found to have been deposited over the body. There was smell of kerosene perceived from the body and scalp. There was no evidence of electrical injury on the part of the body. No post mortem injuries were there. However, spot particles were found in larynx, tracea and bronchi. On this post mortem I have given the probable cause of the death as "shock and peripherial circulatory failure due to 95% burns with kerosene smell. I have prepared the post mortem notes. They bear my signature. The contents are correct. It is at Exhibit 25. It also bears the