1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.350 OF 2007 1. Gurunath Sitaram Chavan Age : 28 years 2. Sitaram Bhanu Chavan ..Appellants Age : 58 years Both R/o.Nandos, Taluka Malvan District Sindhudurg V/s. The State of Maharashtra ..Respondent (Through Malvan Police Station) Mr.A.S.Khandeparkar i/b.M/s.Khandeparkar & Associates, Advocate, for the appellants Ms.A.A.Mane, A.P.P, for the State CORAM : K.U.CHANDIWAL, J. DATE : 6TH AUGUST, 2008 ORAL JUDGMENT . The appellants are the original accused Nos.1 & 2 in Sessions Case No.33 of 2004 for the offence punishable under Sections 498-A, 304(B), 306 and 302 read with Section 34 of the Indian Penal Code. The appellants faced trial with accused No.3 Sawitri Sitaram Chavan (wife of 2 accused No.2) and Sangita accused No.4 (acquitted) who is sister-in-law of the deceased and a daughter of appellant No.2. The learned Sessions Judge, Sindhudurg, convicted the present appellants and accused No.3 for the offence punishable under Sections 304(B), 498-A and 306 of the Indian Penal Code, and sentenced the appellants to undergo R.I for seven years and fine of Rs.1000/-. No separate sentence was awarded for the offence punishable under Sections 498-A and 306 of the Indian Penal Code. While in custody accused No.3 Sawitri Sitaram Chavan expired. 2. In a most tragic and barbaric incident dated 14th April, 2004 the victim Rupali, wife of accused No.1 having married on 10th April, 2002, had her last breath having suffered 66% burn injuries. At the relevant time P.W.6 Mangal Mohan Chavan at Exh.48, niece of accused No.1 was also residing with them. Rupali complained to her parents and brother that after marriage precisely after 3-4 months accused started illtreating, harassing and abusing her for not doing household work and they 3 were threatening her to face dire consequences. Accused No.1 used to visit her brother-P.W.10 Mahadev Tularam Advalkar and demand cash for treatment of Rupali and even threatened that if the cash is not paid to them they would not take care of Rupali while P.W.10 was fulfilling whatever demands were made by the accused. The events were in the knowledge of P.W.3 Babal Savalaram Nandoskar, Police Patil of the village who was reprimanding accused persons to behave properly. 3. On 25th February, 2004 accused No.1 with Rupali went to the house of the complainant (P.W.10) where accused No.1 demanded an amount of Rs.1,00,000/- for seeking a job. 4. On the day of incident a quarrel took place between Rupali and accused No.3 while Rupali was sitting in front of hearth. It is alleged that accused No.3 Sawitribai throttled her and doused Kerosene on her person and set her ablaze and then created a scene of commission of suicide or accidental death. The prosecution claimed that 4 Rupali was murdered by accused No.3. 5. The learned Judge explained the charge to the accused for the offence punishable under Sections 302, 304(B) and 498-A read with 34 of the Indian Penal Code to which accused pleaded not guilty and claimed to be tried. However, after perusing the evidence, charge under Section 306 of the Indian Penal Code is added as per Order dated 17th December, 2005 to which also the accused pleaded not guilty and claimed to be tried. 6. P.W.1 Deepak Rama Mangaonkar (Exh.24) acted as panch has proved panchanama at Exh.25. P.W.2 Chandrakant Babu Mangaonkar (Exh.26) is a neighbour of the parents of the deceased. He proved the seizure memo at Exh.27 and panchanama Exh.28 under which Article Nos.7 to 26 including clothes of accused No.3 were seized. P.W.3 Babal Savalaram Nandoskar (Exh.29) has acted as panch to Inquest Panchanama and also as informant. His statement under Section 161 of the Criminal Procedure Code was also recorded and he says, the victim was 5 tortured by accused and he had intervened on occasions. P.W.4 Vasant Sakharam Chavan (Exh.32) has acted as panch. P.W.5 Dr.Rupesh Bhakar Dhuri (Exh.46) has conducted Autopsy on the dead body of the deceased. P.W.6 Mangal Mohan Chavan (Exh.48) is a neice who in fact witnessed the incident, resides with accused. P.W.7 Anita Yashwant Advalkar (Exh.51) and P.W.8 Geetanjali Gurunath Chavan (Exh.52) are the relatives of Rupali. P.W.9 Anandi Dondi Chavan is one of the neighbours who also to some extent witnessed the incident. P.W.10 Mahadev Tularam Advalkar (Exh.57) is brother of the deceased Rupali and took gauntlet of prosecuting accused. P.W.11 Moula Noormahamad Landage (Exh.66) carried investigation. 7. The defence of the accused is that they have neither committed any offence nor illtreated Rupali. They have been prosecuted due to some misunderstanding. They had never demanded cash either from Rupali or from her brother. 8. On analysis of entire evidence adduced 6 before the learned Sessions Judge, the following facts can be stated to be not in dispute. (a) Rupali is a sister of P.W.10 and was married to accused No.1. (b) Rupali died due to unnatural death only by suffering 66% burn on 14th April, 2004. (c) Rupali was residing in her matrimonial home with the accused Nos.1, 2 and 3. (d) The incident of death of Rupali had occasioned within seven years of marriage as the marriage had taken place on 11th April, 2002 while she breath last on 14th April, 2004 (e) The accused are labours while the complainant is also financially weak. (f) The Inquest Panchanama (Exh.31) upon dead body is proved by P.W.3 Police Patil. (g) Autopsy report (Exh.47) disclose that almost all parts of Rupali's body are adversely affected due to burn injuries and she suffered 66% burn injuries 9. The incident with Rupali had taken place in the matrimonial home near her hearth and kitchen. The victim had burn injuries on face, limbs, abdomen from the front right side. The defence claimed that in all probabilities while cooking she must have met with fire and therefore, she suffered burn injuries and it is an accidental death. The 7 nature of burn injuries suffered by Rupali as noticed by P.W.5 Dr.Rupesh Bhakar Dhuri shows the percentage as under :- (1) Face 9% (2) Chest and abdomen 15% (3) Left upper limb 8% (4) Right upper limb 8% (5) Back 12% (6) Left and right lower limb 6% and 8% The Medical Officer found that the skin was dry, shrivelled, charred present over face and the neck right side. Multiple vesicals and bullae are present on chest and abdominal wall with burnt area, dusky erythama. Both upper limbs are flexed at elbow joint and wrist joint. Both lower limbs are flexed at knee joint and at hip joint. Upper limbs fingers are turned inside. No antemortem laceration was present. Soot particles were present in larynx, treaches and bronchi and both lungs. The blood in the heart was cherry red colour. Black soot particles were present in 8 buccal cavity. The tongue of the deceased was protruded and black coloured due to soot particles. Such soot particles were present in the stomach. In paragraph five P.W.5 has confirmed that these injuries noted by him are possible, if a person set on fire after pressing the throat and the person was unconscious. In the cross examination he states that Rupali must have sustained the burns either when she was alive or unconscious. 10. C.A.Report at Exh.35 discloses that Saree and Peticoat and even burn pieces of clothes of the deceased had smell of Kerosene. Kerosene Can was also found positive for presence of Kerosene. Thus, it is revealed that there was Kerosene due to which the victim suffered burn injuries and in all the situation, the victim could not have got fired in a sitting position due to fanning at her and the gravity of burn injuries will not multiply to such an extent as observed by P.W.5. There is no explanation offered by the accused as to how Kerosene was found on her apparels which were taken charge by the police. 9 11. Thus, presence of Kerosene on the burn pieces of the clothes on the person and on the clothes of accused No.3 speaks volumes, there was no reason for sprinkling of Kerosene on the respective apparels and consequently, it was in all probabilities, an act of homicidal death caused at the instance of accused No.3. 12. The defence version that Rupali was busy in cooking at the material time and accidently she met with the fire is again dispelled by the Spot Panchanama Exh.54 in which it is recorded that no incriminating cooking material was lying near the hearth to allow theory of cooking by Rupali. No ash or any material was lying in hearth. Again it has to be seen that in the evening of 14th April, 2004, there was no possibility for Rupali to go for cooking. Kerosene can of ½ litre was lying at the shelf which suggests that after use of Kerosene for dowzing systematically the can was kept at the shelf and then the victim was set ablaze. The cleaning of the earth by cowdung at the place dead 10 body was lying also signifies an ulterior motive on the part of the accused. In these circumstances, it cannot be said that the death of Rupali was an accidental but in fact, it was homicidal death. The findings of the learned Judge that on 14th April, 2004 Rupali died because of unnatural death will have to be accepted. 13. The accused are also facing charge for the offence punishable under Section 498 of the Indian Penal Code. We are aware that cruelty in family affairs should be of such an extent which would make the wife to end miserable life by committing suicide. The Court should not keep itself aloof of non-confirmative of normal human behaviour transacted in day to day routine life which occurs out of depression or squabble in the family members. The facts which are emerged in the evidence indicate that there was persistent harassment to Rupali from the accused as accused No.1 had demanded Rs.1,00,000/- for his employment and even to meet Rupali's medical expenses. It was not Rupali alone who conveyed her feelings to her 11 brother, but her relatives who are also examined before the Court. Such evidence with allegations made has gone unchallenged. 14. The testimony of P.W.3 Police Patil of the village has also to be looked into. The defence counsel argued before this bench, there was no statement under Section 161 of the Criminal Procedure Code. However, indeed there was such statement of P.W.3 recorded by the investigator, thus, order of the learned Sessions Judge re- calling P.W.3 for further evidence canot be criticised. P.W.3 saw dead body, noticed accused Nos.1, 2 and 3 at the house. P.W.6 is another eye witness who has also deposed about illtreatment and harassment to the deceased though, P.W.6 has accepted in cross examination that she has not seen the incident. Application by the learned A.P.P at Exh.50 seeking to cross examine the witness was rejected by the learned Judge, which, in the facts & circumstances he should not have done as re- examination is permissible under Section 137 of the Evidence Act, subsequent to the cross examination 12 by the party who called him. 15. The unfortunate event in the matter is, immediately after the marriage Rupali was not allowed to live happy marital life. Mahadeo (P.W.10) was paying cash to the accused whenever it was demanded. On 25th February, 2004 accused No.1 went with Rupali to the house of complainant and re-newed his demand of Rs.1,00,000/-. On refusal accused No.1 was annoyed, all these aspects and subsequent harassment were communicated by Rupali to her parents. Mother of the victim had gone to the house of the accused to convey to treat the victim properly. However, accused assaulted her and even drove Rupali and her mother out of the house. This was followed by visit of the complainant and at that stage accused No.3 slapped Rupali. On 5th March, 2004, due to above incident Rupali with her brother and villagers approached police and lodged report against accused (Exh.58). The police settled the matter on 7th March, 2004 and Rupali was sent to the matrimonial home. In the report to the police dated 5th March, 2004 she has 13 specified that to avoid further harassment and illtreatment on account of demand of Gold ornaments, her brother Baban gave Gold ring to the accused No.1. Accused No.3 Savitribai and accused No.2 even threatened her to eliminate. They even created terror by pouring kerosene on her or attempting to throttle her. Uncanny events caused by the accused made the victim to approach police which substantially indicate that there was harassment from the accused to the victim for the purposes of demand of dowry or amounts from her parental house. P.W.3 Police Patil has brought on record that the accused used to assault and harass Rupali for not performing household work and have warned that she should bring cash from her parents. Rupali approached P.W.3 on two or three occasions and complained about harassment by the accused and as stated earlier P.W.3 in the capacity of Police Patil of the village warned accused to behave properly. However, accused responded him arrogantly. P.W.3 also referred to the incident dated 5th March, 2004 which culminated in filing report (Exh.58). Accused No.3 slapped/assaulted 14 Rupali in presence of five to six persons. Inspite of harassment Rupali continued to stay at the house of accused. According to P.W.3, on 21st March, 2004 Rupali was assaulted. Consequently, she went to her house but accused No.1 brought her back still harassment was continued. P.W.3 accepted in the cross examination that Rupali was on repeated visiting terms to her parents' house. However, that does not mean that she was happy in her matrimonial home. Rupali had called P.W.3 on 28th February, 2004 and even, she complained about the illtreatment given to her by the accused. P.W.9 is a neighbour. She has witnessed the events of assault and illtreatment to Rupali. There was no reason for P.W.3 and P.W.9 to depose against the accused being resident of the same village. P.W.3 was Police Patil, and under the statute he was required to discharge his duties faithfully. There is nothing to suggest that P.W.3 had any enemity with the accused persons. 16. F.I.R lodged by P.W.10 Mahadev Tularam Advalkar was without any delay. The recitals in 15 the F.I.R shows barbaric treatment received by Rupali at the hands of her in laws at her matrimonial house. 17. The defence counsel claimed that accused No.1 and P.W.10 belong to poor strata of the society as marriage of accused No.1 was a mass marriage ceremony and consequently, so called demand of Rs.1,00,000/- by the accused No.1 to P.W.10 was impossible. The demand of Rs.1,00,000/- by the accused No.1 is spelt out by complainant not at a single place but in the F.I.R and even it is so emerged in the report Exh.58 of the victim though, specifically not referring to Rs.1,00,000/- P.W.8 also referred about the demand of cash made by the accused. It is curious that accused No.1 searched job though, he demanded Rs.1,00,000/- from P.W.10. In fact, there was no reason for P.W.10 to lodge a false case against accused. The learned Judge recorded that there cannot be any reason for P.W.9 to depose against the accused persons and I have no reason to discard the observations. The learned Judge found that accused No.3 in her 16 statement under Section 313 of the Criminal Procedure Code has admitted that there used to be quarrels between her and Rupali. According to her, at the instance of others some misunderstanding was developed, between her and Rupali. She said Rupali used to pick up quarrels. On analysis, it is apparent testimony of P.W.3, P.W.6, P.W.7 and P.W.8 inspires confidence and establish that Rupali was subjected to illtreatment and harassment for illegal demand of Rs.1,00,000/- which is also reflected in Exh.58. Behaviour of accused Nos.1, 2 and 3 after two-three months of the marriage till the incident dated 14th April, 2004 was of such harsh nature that it proved to be nexus of harassment, illtreatment and cruelty to Rupali resulted in untimely death of the victim. The death of Rupali in these circumstances will have to be connected to the illegal demand of dowry made by the accused persons with either Rupali or her brother or other relatives. Incident of harassment cannot be said to be normal wear and tear of life to be ignored. 17 18. Section 304(B) deals with dowry death. It contemplates “(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry, such death shall be called “dowry death”, (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years.” 19. To recaptulate the facts of this case the marriage of Rupali had taken place on 10th April, 2004, she suffered mental agony at the hands of accused for compliance of demands immediately after two-three months. The matter was reported to police as per Exh.58 on 5th March, 2004 and the incident of burns had taken place on 14th April, 2004. Thus, untimely death of the victim was within seven years. The demand of dowry is established by above referred witnesses. Immediate conduct of the accused in close proximity of death speaks that they were not satisfied with the victim since she and her parents had not complied various demands made by them. Thus, there is perceptive 18 nexus between death of Rupali and dowry related harassment or cruelty inflicted on her. What ever period in between had elapsed from March, 2004 till 14th April, 2004 is not so wide to heal the injuries and mental agony suffered by the victim. Consequently, the finding recorded by the learned Judge that it was dowry death punishable under Section 304(B) of the Indian Penal Code cannot be doubted. The request of defence counsel to consider age of the accused Nos.1 & 2 and they have been in custody since the date of incident, sentence be reduced to the period already undergone, in the facts referred herein before, is not permissible to consider. Appeal is dismissed. (K.U.CHANDIWAL, J.)