1 Cri.AppealNo.359/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.359/1998 Ganesh s/o Khandu Suryawanshi Age: 27 Yrs., occu. Labour Work, R/o Pachora, Tq. Pachora, District Jalgaon. - APPELLANT (orig.Accused No.1) VERSUS The State of Maharashtra (PSO Pachora Police Station) - RESPONDENT ***** Mr.SS Pawar, Advocate for Appellant; Mr.KS Patil, APP for State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 29th March, 2011. JUDGMENT: 1) Heard both sides. 2) Conviction recorded in Sessions Case No. 22/1994 for an offence under Section 498-A of Indian Penal Code, directing to suffer R.I. For three years with fine of Rs.3,000/- by order 2 Cri.AppealNo.359/1998 dated 18.11.1998, by the learned 2nd Additional Sessions Judge, Jalgaon, is impugned by the appellant/accused. 3) FACTS: (i) Aashabai d/o Maroti Lehalkar married accused – Ganesh on 19.3.1993 and the F.I.R. (Exhibit-48) Is recorded by her father on 20th October, 1993, for the incident dated 19.3.1993 of immolating Smt. Aashabai by the appellant/accused and his mother. (ii) The Investigator felt that the dying declaration (Exh.73) is rebelling the spot panchanama (Exh.50). Thereafter another statement Aashabai was recorded by another police officer in presence of medical Officer (Exh.74) and on noticing and reading the same, it was making out a case of cognizable offence, the accused was put under arrest on 21st October, 1993. Third statement of Aashabai was recorded at the hospital (Exh.76). In the said dying declaration, Aashabai implicated her mother-in-law; father-in- law, having poured kerosene on her person, while her husband (Accused) lit gas-stove with a lighter, illuminated a paper and set her affire. (iii) Statements of several witnesses 3 Cri.AppealNo.359/1998 concerned with the investigation were recorded, seized articles were sent to the office of Chemical Analyzer with covering letter, CA reports (Exh.78) were received. After death of Aashabai, inquest was drawn, offence was converted to Section 302 of Indian Penal Code. Death Certificate (Exh.79) is produced; Post mortem report (Exh.79) of Civil Hospital was received. 4) In order to establish guilt of the accused for an offence under Section 302 and 498- A r/w 34 of IPC, the prosecution has put in 16 witnesses named below, - P.W.1 – Maroti Jangalu Dehalkar (Exh.47) – father P.W.2 – Shashikant Shivram Kankhare (Exh.49) - panch witness; P.W.3 – Ramchandra Amruti Patil (Exh.51) - panch witness; P.W.4 – Kusumbai Maroti Dehelkar (Exh. 52) - mother; P.W.5 – Kisan Rambhau Baviskar (Exh.53) -uncle P.W.6 – Sonu Ramchandra Mahale (Exh.54) - mediator in the marriage of deceased. P.W.7 – Shantaram Sahadu Bhoi (Exh. 56) - neighbour of father of deceased. P.W.8 – Sulochana Madhukar (Exh.58) – Neighbour 4 Cri.AppealNo.359/1998 of deceased's father. P.W.9 – Thagubai Jangulu Dahelkar (Exh.59) - neighbour of deceased's father. P.W.10 – Bhika Anna Mahajan (Exh. 60) – City Surveyor. P.W.11 – Dr.Ramkrishna Balchand Teli (Exh. 62) - Medical Officer; P.W.12 – Sudhakar Bapurao Kulkarni (Exh.65) - Investigating Officer; P.W.13 - Dr.Gangadhar Kautik Bhole (Exh.69) - Medical Officer. P.W.14 – Yadavrao Damu Patil (Exh.71) - Investigating Officer; P.W.15 – Dr.Milind Nivrutti Kilhe (Exh.84) - Medical Officer; P.W.16 – Gangadhar Shankar Rane (Exh. 86) - Head Constable. 5) The theory propagated by principal witnesses is that, there was a demand of TV set from the accused, his parents; non-compliance thereof, resulted in ill-treatment, persistent harassment, nagging to the victim Aashabai. The prosecution case also revolves to the dying declarations of the deceased, which have been recorded when she was struggling for life in the hospital. Apart from three dying declarations, since the victim made statement to her mother and father, it was also treated to be oral dying declaration. The learned Sessions Judge did not 5 Cri.AppealNo.359/1998 believe the worth of the written dying declarations on several counts, one of them was it should be in question and answer form, the dying declaration had glaring inconsistencies in material particulars. The first dying declaration exonerates the accused and makes a theory of accidental death. The learned Judge also found the first dying declaration was immediately after the incident, devoid of any element of tutoring, warrants attention. In the said dying declaration, case of accidental fire was narrated. 6) The learned Sessions Judge did not believe the case to be of homicidal burns, as it was not so stated at the earliest opportunity and her second dying declaration also does not state so, but it was revolving to suicidal burns while in the third dying declaration, she implicated the accused and his parents. The learned Sessions Judge also found that prosecution has failed to prove the offence under Section 302 of IPC beyond reasonable doubt and benefit was given to the accused. There is no State Appeal challenging the acquittal, consequently, comment on its worth is avoided. 7) Now, turning to the charge for an 6 Cri.AppealNo.359/1998 offence under Section 498-A of IPC is concerned, the evidence of PW 1, father, PW 4 – mother; PW 5 – uncle; PW 6 – Mediator of the marriage needs attention. 8) PW 7 did not attribute directly against the accused as demands by the accused were learn by him from PW 1, the father. PW 8 did not support the prosecution. Prior relation between PW 1 and the accused, to be known to each other, is not in controversy. PW 1, PW 4 and PW 6 were consistent in narrating that the marriage was settled on a dowry or gift of Rs.11,000/-. There was no assurance from parental side of Aashabai to give a TV set sometime after the marriage on getting their financial condition improved. The accused and his parents allegedly insisted for such compliance in its letter and spirit. 9) On account of Rakshabandhan festival, after two months of the marriage, brother of Aashabai visited her, however, the accused refused to send her. Consequently, PW 1 went to the accused. At such time, father-in-law of Aashabai asked him whether TV set was brought, upon which, PW 1 disputed as there was no such agreement to comply. Consequent upon this, father of accused expressed displeasure/regrets and Aashabai joined her parents. At the house, 7 Cri.AppealNo.359/1998 Aashabai narrated her plight that she was not well treated for non-compliance of TV set, her husband was occasionally assaulting her. This was verified by PW 4, as there were weal-marks on the person of Aashabai. This was confirmed even by PW 1 from Aashabai. Aashabai had narrated that she faced persistent harassment. After fifteen days when parents of accused came to fetch Aashabai, PW 1 and PW 4 refused to send her as there was element of ill-treatment to Aashabai. At that time, Mediator – Sonu Ramchandra (PW 6) was called. The said witness too was informed by Aashabai, when he had attended the Naming ceremony of his grand- daughter somewhere in September 1993, that her family members were demanding TV set and a rickshaw, upon which, the mediator asked Aashabai, if her father agrees, she may comply the demand. At that time, Aashabai informed that for demand of TV and rickshaw, her husband and in-laws were ill treating her. PW 6 also confirmed that in the marriage at his mediation, amount of Rs.10,000/- was paid to the accused. The marriage was solemnized at Pachora. Defence did not challenge role of PW 6 to be a mediator. He belongs to community of parties, he has least reason to associate with cause of prosecution. PW 8 – Sulochana did not coordinate in tune with her statement under Section 161 Cr.P.C. She was 8 Cri.AppealNo.359/1998 declared hostile to prosecution. PW 9 – Thagubai is paternal aunt of Aashabai, she is in relation to accused too. Aashabai told her at hospital that she was ill treated by her in-laws, sister- in-law and husband on the ground of not bringing TV set from her parents. PW 9 did not support the prosecution about homicidal death of Aashabai. However, in the cross-examination by learned APP, she accepted that Aashabai told her that there was quarrel in the house at 4.00 p.m. And her in-laws poured kerosene on her person, her husband lit a paper and set her ablaze. She disputed that Aashabai was not in a mental and physical condition to make statement. She disputed that Aashabai did not talk to anybody. PW 11 has established that Aashabai had suffered 52% burns, which were superficial and somewhere deep. He proved his endorsement at Exh.64 to the dying declaration of Aashabai. These witnesses need not be doubted to their depositions. A ring of truth germinated which implicates the Accused. 10) Mr.Pawar, learned Counsel for the accused/appellant, submits that death of Aashabai was purely an accidental event. The dying declarations being contrary to each other, need not be believed. There was no case of demand by the accused/appellant. 9 Cri.AppealNo.359/1998 11) In order to stress his point, learned Counsel relied to the judgment in the matter of (a) Shivanand Mallappa Koti Vs. State of Karnataka – 2007 AIR SCW 4012. It was a case, where letters of deceased illustrated that she was apprehending second marriage by husband and the Apex Court did not approve that it will be attracting infraction of Section 498-A of IPC. It was also observed that, Section 48-A does not specifically speak of dowry demand but it speaks of unlawful demand for property and valuable articles. (b) Girdhar Shankar Tawade Vs.State of Maharashtra – 2002 (4) Mh.L.J. 5. The Hon'ble Lordships observed, Willful act or conduct ought to be proximate cause in order to bring home charge under Section 498-A and not de hors the same. The Hon'ble Apex court also observed, - "Acquittal of a charge under section 306 though by itself is a ground for acquittal under Section 498-A, but some cogent evidence is required to bring home charge of Section 498-A as well." (c) State of Adhara Pradesh Vs. M.Madhusudhan Rao – 2998 (7) Supreme 641. In this Case, the Hon'ble Apex Court has observed, "harassment simpliciter is not "cruelty". It is 10 Cri.AppealNo.359/1998 only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property etc., it amounts to "cruelty" punishable under Section 498-A; (d) Deepak s/o Bhimrao Bharne and Ors. Vs. State of Maharashtra – 2004 (2) Mh.L.J. 987. The learned Single Judge of this Court discussed concept of cruelty and in peculiar facts of the said case, found "cruelty' by appellant, vis-a- vis, deceased on account of dowry demand not proved by prosecution by direct evidence and conviction of appellant under Section 306 r/w 34 of IPC and Section 498-A was set aside. (e) In the matter of Jaihind s/o Sitaram Khale Vs. The State of Maharashtra – (2010 MCR 1094), the learned Single Judge of this Court held, - "since the prosecution did not examine any independent witness nor even neighbourer to substantiate the allegations concerning cruelty, there is no legal evidence to connect the appellant/accused with the alleged crime under Section 498-A of IPC. (f) In the matter of Prakash Pandurang Pawar Vs. The State of Maharashtra – (Criminal Appeal No.653 of 2000 decided on 22.4.2010), the 11 Cri.AppealNo.359/1998 Division Bench of this Court held, " if there are two contradictory dying declarations, being the sole basis for the prosecution case, the first in time will have to be generally accepted." 12) In the background of the legal position enunciated herein before, let us revert to Section 498-A of IPC, - "498-A. Husband or relative of husband of a woman subjecting her to cruelty, - Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation, - For the purpose of this Section, "cruelty" means, - (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to 12 Cri.AppealNo.359/1998 coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 13) Reading three dying declarations, which the learned Judge discarded, the fact remains that the deceased met with unnatural death at her matrimonial abode in the company of her husband barely seven months of her marriage. It is most tragic and unfortunate, the victim was barely 17 to 18 years old and breathed her last necessarily on account to failure to toe to the greed of her husband. The spot panchanama, coupled with report of CA at Exhibit-78, show the pieces of Saree were burnt having kerosene smell; the ground had kerosene and it was a suicidal act by deceased and could not be an accidental death by lighting the gas-stove, as the stove-pin was in tact, there was no element of untoward incident of bursting of stove or leakage to the gas. 14) The evidence of parents and independent witnesses has no reason to add spices against the accused, as the accused/husband of Aashabai is otherwise closely related to them as Aashabai’s mother-in-law is real sister of PW 1 (father of 13 Cri.AppealNo.359/1998 Aashabai). There could not be any other reason for the parents and the mediator, including uncle of Aashabai to pinpoint ghastly act of accused and sorry state of affairs faced by Aashabai. The narration of PW 1 and PW 4 of the events of two months after the marriage and demand of TV set, has not been shattered to its truthfulness. The weal-marks having noticed by PW 1 and PW 4 speak of the traumatic condition faced by Aashabai at her matrimonial abode. When asked, PW 1 even clarified, Aashabai was referred to Dr.Nawal. 15) The learned Sessions Judge did not believe theory of ill treatment by the in-laws or brother-in-law of Aashabai as the brother-in-law had remotely any concern in the affair. 16) There is nothing to suggest that Aashabai was low in frustration tolerance for unsatisfactory condition. It is not suggested that Aashabai was hot-tempered. The set up in which she was nourished was identical to Accused as both the families are closely related. They represent a middle class family. It could not be gathered that PW 4, the mother was bent upon to magnify the events to implicate the accused. The pith and marrow from evidence of the parents, uncle and mediator PW 9 – Thagubai do 14 Cri.AppealNo.359/1998 not leave the room of doubt that it was demand of TV set and rickshaw, and non-compliance thereof was activated in ill treatment, attracting clause (b) of Section 498-A IPC to meet unlawful demand for any property or valuable security. The accused/appellant on number of occasions beat Aashabai, even she was assaulted at 4.00 p.m. On the date of incident, consequently, the scale and rigours of section 498-A of IPC in the aforesaid case is established in this case. No error on the part of learned Additional Sessions Judge at Jalgaon in appreciating the evidence and convicting the accused/appellant for offence under Section 498-A of IPC. 17) In the result, the appeal is sans merit, dismissed. The accused/appellant to surrender to undergo left over sentence. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/ fldr 28.3.11 Authentic copy (BD VADNERE,PS)