1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.222 OF 1998 Balu s/o Ramji Sangale, Age 29 years, Occupation :Agri & Labourer, resident of Ward No.7 Shrirampur, Taluka Shrirampur, District Ahmednagar ..APPELLANT (Orig. Accused) VERSUS 1. The State of Maharashtra 2. Lata w/o Balu Sangale, C/o Anada s/o Kisan Tribhuane, Age : Major, Occ. Labour, R/o Astagaon, Tal. Kopargaon ..RESPONDENTS Mr S.D. Pokharkar, Advocate holding for Mr D.R. Korde for the appellant; Mr D.R. Kale, Advocate for respondent no.1; Respondent no.2 served. CORAM : P.V. HARDAS, J. DATE : 28th September, 2010 ORAL JUDGMENT : The appellant, who stands convicted for an offence punishable under sections 307 and 498-A of the Indian Penal Code and sentenced to R.I. for six months and fine of Rs.500/- with a default condition of 2 undergoing further R.I. for one month in the event of non payment of fine and R.I. for six months and fine of Rs.5,000/- with a default condition of undergoing further R.I. for one month in the event of non payment of fine, by the Additional Sessions Judge, Shrirampur, by judgment dated n 30.7.1998, in Sessions Case No.216 of 1996, by this appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this appeal may briefly be stated thus :- P.W.7 Shaikh Husen, an A.P.I. who was attached to the Shrirampur police station, registered an offence vide Crime No.31/1996 on the basis of the complaint lodged by P.W.1 Lata at Exh. 12. The investigation was entrusted to P.S.I. Yadav and P.W.7 was assisting P.S.I. Yadav. Accordingly the scene of the offence panchnama came to be drawn by P.S.I. Yadav at Exh.21 in the presence of P.W.6 Maheboob. From the scene of the offence certain articles came to be seized, namely one aluminium pot, kerosene mixed soil and control soil and ash from the hearth. Thereafter P.W.1 Lata produced her clothes before P.S.I. Yadav, which came to be seized vide seizure memo at Exh.15 in the presence of panchas. Statements of witnesses came to be recorded and on 7.2.1996 the investigation came to be entrusted to P.W.7 Sk. Husen. He accordingly recorded the statements of witnesses and issued a letter at Exh.13 to the Tahsildar, Shrirampur for drawing the sketch map of the 3 scene of the offence. The accused came to be arrested on 13.3.1996. The seized articles were referred to the Chemical Analyser along with the requisition. The report of the Chemical Analyser is at Exh.24. Further to the completion of investigation a charge-sheet against the appellant and the other accused came to be submitted. 3. On committal of the case to the Court of Sessions, Trial Court vide Exh.3 framed charge against the appellant and the other accused for offence punishable under section 307 read with sec. 34, 498-A read with sec.34, 323, 504 read with sec.34 and 506 read with sec. 34 of the Indian Penal Code. The appellant and the other accused denied their guilt and claimed to be tried. Prosecution in support of its case examined seven witnesses. The Trial Court, upon appreciation of the evidence acquitted original accused nos.2 to 4 for offences with which they were charged and convicted the appellant/original accused no.1 for offence punishable under section 307 and 498-A of the Indian Penal Code while acquitting him for the other offences. 4. The entire prosecution case revolves round the evidence of P.W.1 Lata. P.W.1 Lata states that she was married to the appellant/accused about 13 years prior to the incident. She states that the accused had initially maintained her well for a period of one year and thereafter they started harassing her by not providing her with a washing soap, bathing soap and other articles. She states that the accused also did not provide 4 her proper food and did not permit her to speak to others. According to her, the accused were suspecting that if P.W.1 Lata is allowed to talk to the other persons she may run away with them. She states that from time to time she used to go to house of her parents but the accused used to bring her back immediately on the next day. She states that she had informed about the harassment and torture to her parents. In respect of the incident, she states that on the day of the incident she woke up early in the morning and had kept water for boiling on the mud hearth. Thereafter accused no.1 Balu came there, poured kerosene oil on her person and placed the end of her sari on the burning hearth. Her sari caught fire and she accordingly extinguished the flames and removed the sari. She states that thereafter she had gone to the police station and lodged her report. According to her on a day earlier in the night there was a quarrel between her and the appellant and the appellant had suspected that in respect of the two sons begotten from the P.W.1 the accused was not the father. The appellant/accused had also told her that he wanted to remarry. She claims that the accused had told her that he would kill her by burning her and would then marry another girl. She states that after about two days she went to the house of her parents and informed them about the incident. In the cross-examination she has admitted that after the incident she had not gone to the house of the accused at all. In further cross-examination she has admitted that the kitchen has four doors and there are houses of others near the house of the accused. She has also admitted that some of her neighbours are 5 early risers. 5. Curiously, she states that she had cried out loudly but none of the neighbours had come to her rescue. She thereafter admits in the cross- examination that even after the incident i.e. about 8 to 9 months prior to recording her evidence, she was residing with the appellant and they had shifted to Sangamner and had resided there for about a month and thereafter had shifted to Astagaon. She states that accused, however, did not reside at village Astagaon. She has also admitted as true that on the Tuesday prior to the recording of her evidence she along with her mother had gone to the house of the accused. She has admitted that the hearth is not situated in the kitchen but is built in the courtyard. She has also admitted that the incident occurred near the hearth. She has admitted not to have sated in her first information report about accused no.1 telling her that he was not the father of the two sons and she has admitted not to have stated in her first information report that the accused did not provide her with soap for bathing and washing. She has also admitted not to have stated that accused no.4 had arrived at their house on the previous day and had told the accused that she would provide money for his second marriage. 6. Prosecution has examined P.W.4 Ananda, father of P.W.1 Lata, who states about P.W.1 Lata arriving at his place three days after the incident and narrating the incident to him. He states that after the 6 marriage Lata was treated well for a period of about a year but thereafter she was illtreated as the accused did not provide her with proper food. He claims that Lata had informed him that accused used to abuse her. In cross-examination he has admitted as true that his relations with the accused are good even today. He has admitted not to have stated in his statement before the police that his daughter Lata had informed him that the accused did not provide her proper food, soap, clothes, etc. Similarly, P.W.5 Anusyabai, mother of P.W.1 Lata states that after marriage Lata was treated well initially but thereafter proper food was not provided to her and accused used to starve her. She has also stated that the accused were quarrelling with her on the ground that P.W.1 Lata was of dark complexion and could not do the work properly. In cross- examination she has admitted not to have stated in her previous statement about the accused quarrelling with Lata as she was of dark complexion and that accused were not providing her with proper food and were starving her. 7. At the outset, I may state that the evidence in respect of offence under section 498-A of the I.P.C., apart from being highly discrepant is a figment of the imagination of P.W.1 Lata. P.W.1 Lata was married to the accused for nearly thirteen years. All that she alleges is that the accused were not providing proper food and were not providing her with soap for washing and bathing. This has been elicited in the cross- examination as omission. Lata does not appear to have filed any 7 complaint earlier but was happily residing with the accused. In such circumstances, therefore, according to me Lata is a rank liar, who has made wild and false allegation against the accused in respect of the illtreatment given to her. Omissions in respect of the illtreatment have also been elicited in the cross-examination of her father P.W.4 Ananda and her mother P.W.5 Anusayabai. According to me, therefore, the conviction of the appellant for offence punishable under section 498-A of the Indian Penal Code is wholly unjustified and deserves to be quashed and set aside. 8. In respect of the offence punishable under section 307 of the Indian Penal Code is concerned, Lata claims that the motive for the appellant to have set her on fire is the quarrel on the previous night. P.W. 1 Lata states that the appellant had quarrelled with her and had told her that the two sons begotten by Lata were not fathered by the appellant/accused. This has been brought out by way of omission. Apparently, if there was no discord at all and the appellant and P.W.1 Lata were residing happily, it is extremely puzzling as to why appellant/accused would attempt to set Lata ablaze. The reason for the quarrel has been elicited in the cross-examination as an omission. Apparently there does not seem to be any motive to the appellant to kill his wife. The appellant and P.W.1 Lata had been married for last thirteen years and there is no history of earlier reports or litigation in respect of any discord between two of them. In such circumstances, motive 8 assumes importance. Prosecution has utterly failed to prove that the appellant had any motive to kill his wife. Further, it appears that Lata was insisting that the appellant should reside separately and accordingly after the incident for about one month they had resided separately at Sangamner. From the cross-examination it appears that P.W.1 Lata and the appellant are residing together after the incident. In such circumstances, therefore, according to me Lata is not a wholly reliable witness and her evidence cannot be accepted unless there is some corroboration. Independent witnesses were available and it does not appear that the Investigating Officer took any efforts at examining the independent witnesses. In such circumstances, it would be highly unsafe to accept the evidence of P.W.1 Lata without any corroboration. It is equally possible for Lata to have poured kerosene and it was also possible for Lata to have set a part of her sari ablaze and then extinguished the flames and lodged a false report against the appellant. As pointed out by me earlier, Lata has been proved to have stated falsehood in respect of the alleged illtreatment and, therefore, no implicit reliance can be placed on the testimony of P.W.1 Lata. 9. For the aforesaid reasons, therefore, according to me the appeal deserves to be allowed and accordingly Criminal Appeal is allowed and the conviction and sentence of the appellant for offence punishable under sections 307 and 498-A of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offences with 9 which he was charged and convicted. His bail bonds stand cancelled. Fine, if paid by the appellant, be refunded to him. ( P.V.HARDAS, J.) amj/cria222.98