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REPORTED
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO.293 OF 1995.
Abhiman S/o Baburao Gaikwad,
Age 34 years, Occ.Labour,
R/o Bansarola, Tq. Kej,
Dist.Beed. ... Appellant.
Versus
The State of Maharashtra ... Respondent.
...
Mr.N.N.Shinde, advocate for the appellant.
Mr.V.H.Dighe, A.P.P. for the State.
...
CORAM : V.R.KINGAONKAR,J.
Reserved on :04.03.2009.
Pronounced on:26.03.2009.
JUDGMENT
1. Challenge in this appeal is to judgment
rendered by Additional Sessions Judge, Ambejogai, in
Sessions case No.44/1991 whereby the appellant has
been convicted for offence punishable U/ss 498-A and
306 of the I.P.C. and is sentenced to suffer
rigorous imprisonment for three (3) years on each
count and to pay fine of Rs.1,000/- (Rupees one
thousand), in default to suffer rigorous imprisonment
for two (2) months, on each count.
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2. Briefly stated, the prosecution case is
that deceased Radhabai was a good looking young
woman. Her marriage with the appellant was performed
on March 10, 1988. The appellant was employed as a
postman. He use to reside at village Yusufwadgaon.
After about couple of months of the marriage, he
started beating, harassing and ill-treating the wife
(Radhabai) in the matrimonial home. He was addicted
to vice of liquor drinking. He use to regularly
return home in drunken condition and beat her. He
use to express suspicion about her character. He had
demanded amount of Rs.1,000/- (Rupees one thousand)
from her parents. Her mother took the money and went
to house of the appellant. However, his father
refused to accept the money. She purchased one
nose-ring (Nathani) for her daughter. In her
presence, at the time of Rakhi Pournima festival of
1989 i.e. in the month of August, the appellant had
beaten up Radhabai in the matrimonial home.
Thereupon his father urged her mother to take away
Radhabai to her house. So, mother of Radhabai
returned to her house at Ambejogai alongwith
Radhabai. She resided with her mother uptill
6.11.1990. Even during that period, the appellant
use to visit the house of his inlaws and use to
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ill-treat deceased Radhabai. He use to ask the
inlaws to send her with him. In a common meeting of
the relatives, her parents ultimately decided to send
her with the appellant when he agreed to execute an
undertaking in writing to give her proper treatment.
He executed a written undertaking on stamp paper and
assured that he would not beat her or ill-treat her
any more. Thereafter, Radhabai was sent with him on
the next day. Within about a fortnight, her parents
received information that she was admitted in SRTR
Medical College Hospital at Ambejogai due to burn
injuries. They
ig visited the Hospital and met her.
She narrated to them that the appellant did not allow
her to speak out the truth. She narrated to them
that it was the appellant who had done all the things
and, therefore, she had received the burn injuries.
She succumbed to the burn injuries on 30.11.1990.
Initially a case of accidental death (A.D.No.28/90)
was registered. The Police investigation, however,
indicated material to show that deceased Radhabai was
subjected to matrimonial cruelty meted out to her.
On basis of the material gathered during the
investigation, the appellant was charge-sheeted for
offences punishable U/ss 498-A and 306 of the I.P.C.
3. The appellant denied truth into the
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accusations. He adopted defence of simple denial in
the context of allegations of the matrimonial cruelty
and suicidal death of deceased Radhabai. He asserted
that Radhabai met with an accident due to bursting of
stove and hence, had received the burn injuries.
4. At the trial, the prosecution examined in
all ten (10) witnesses in support of its case. The
appellant examined D.W. Chandrakant in support of
his defence. Certain documents were also placed on
record. On appreciation of the evidence, the learned
Sessions Judge
ig came to the conclusion that the
deceased was subjected to matrimonial cruelty at
hands of the appellant. The learned Sessions Judge
further held that she committed suicide, as a result
of unbearable cruelty meted out to her by the
appellant. In keeping with such findings, the
appellant was convicted and sentenced as described
hereinabove.
5. Heard learned counsel Mr.N.N.Shinde, for
the appellant and Mr.V.H.Dighe, learned A.P.P. for
the State.
6. At the outset, it may be mentioned that
out of the ten (10) witnesses examined by the
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prosecution, none has highlighted the circumstances
in which deceased Radhabai received the burn injuries
in the relevant evening. The marriage was performed
on 10.3.1988. The incident occurred in the evening
of 22.11.1990. At the relevant time, deceased
Radhabai was in the matrimonial home at village
Yusufwadgaon. The injured Radhabai succumbed to the
burn injuries whilst under medical treatment in SRTR
Medical College Hospital, Ambejogai on 30.11.1990.
The Police registered a case of accidental death
after her death (A.D.No.28/1990) U/s 174 of the
Cr.P.C. It
was during course of inquiry of the
accidental death that the parents and other relatives
of deceased Radhabai suspected foul play.
7. The spot panchanama (Exh.17) was drawn on
1.12.1990. The recitals of the spot panchanama
(Exh.17) indicate that Radhabai was involved in
accidental burns due to sudden bursting of stove
while she was cooking in the matrimonial home. The
learned Sessions Judge noticed that some pieces of
burnt clothes and chittis etc. were recovered from
the house in question, yet, no stove was found. It
was for such a reason that inference of suicide was
drawn. It is pertinent to note that during his
cross-examination the I.O. – P.W.10 – PSI Kautik
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admits, unequivocally, that dying declaration of
Radhabai was recorded by the Executive Magistrate and
was also received alongwith inquiry papers in
connection with case of accidental death
(A.D.No.28/1990). He admits further that during his
inquiry and investigation he could not find out any
material to indicate suicidal or homicidal death of
Radhabai.
8. In the above background, the version of
D.W.1 Chandrakant is significant. At the relevant
time,
he was attached to Tahsil Office, Ambejogai as
Naib Tahsildar. His version purports to show that
his services were requisitioned by the Police for
recording dying declaration of injured Radhabai. He
deposed that on 23.11.1990 he received letter from
PSO Ambejogai for recording of the dying declaration
and, therefore, he approached the Hospital. He
recorded the dying declaration of injured Radhabai
vide Exh.45. He admits that she was suffering from
pains due to burn injuries. He denied that relatives
of the appellant had informed him that she received
burn injuries while cooking. The dying declaration
was recorded on next day of the incident little after
mid-day. It is important to notice that parents and
other paternal relatives of deceased Radhabai never
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expressed any suspicion about involvement of the
appellant in her death. They did not report to the
Police that the appellant had set her on fire.
According to the Police version, Radhabai orally
informed her parents, when they interrogated her,
that the appellant was responsible for what had
happened. She had not narrated to her parents the
cause of the burn injuries.
9. The version of P.W.1 Dr.Satyanarayan
purorts to show that Radhabai had received 55% burns
on the head, neck, face, chest and abdomen as well as
back side. He states that there were no burns on the
lower extremities and perineum. He gave details of
such injuries in column No.17 of the postmortem notes
(Exh.13). His version would show that Radhabai died
as a result of septicemic shock caused by the 55%
burns. He admits that from the nature of burn
injuries it could not be stated whether they were
accidental, suicidal or homicidal. He admits further
that he did not notice smell of kerosene being
emitted from the clothes or person of Radhabai. The
prosecution did not lead any evidence to show that
hair and clothes of deceased Radhabai smelt of
kerosene when she was admitted in the Hospital nor
opinion of the Chemical Analyser is placed on record
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to show that burnt pieces of clothes found in the
house at the time of spot panchanama (Exh.17) bore
smell of kerosene. Thus, it is manifest that there
is no iota of evidence to infer that Radhabai, in
fact, poured kerosene on her person and immolated
herself in the matrimonial home in the relevant
evening. The prosecution did not prove that she
committed suicide due to self-immolation. It cannot
be inferred that because she died within a period of
2-1/2 years of the marriage, the death could be only
of suicidal nature. The learned Sessions Judge
observed :
. "The three prosecution witnesses,
P.W.6 - Dharuba, P.W.7 - Kisanbai and
P.W.8 - Jalindar Bade had, however,
deposed that when they had met Radhabai
in the Hospital and asked her about the
incident, she had told them that whatever
is done to her, is done by her husband.
In other words, it appears that Radhabai
wanted to tell that whatever had happened
to her, her husband was responsible for
it. These three witnesses have also
deposed that Radhabai had told them that
let her recover first and then she will
tell the details of the burn injuries.
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Thus, Radhabai had not told these
witnesses that her husband had poured
kerosene on her person and had set her on
fire. On the contrary, she appears to
have told them that let her recover first
and then she will tell them the real
details. This evidence of aforesaid
three (3) witnesses is highly
insufficient to infer that the accused had
caused death of Radhabai by setting her
on fire. The death of Radhabai does not
appear to be homicidal one.”
10. The learned Sessions Judge, however,
discarded the dying declaration (Exh.45) because D.W.
Chandrakant did not consult the Medical Officer before
recording of the dying declaration. The learned
Sessions Judge appears to have reached the conclusion
that Radhabai committed the suicide because if there
was accidental fire due to bursting of stove then most
of the burns would occur on near the abdomen and not
on the head or neck. In the absence of any tangible
evidence to support such inference, it will have to be
said that the learned Sessions Judge gave such a
finding merely on surmises and conjectures. As stated
earlier, there is no evidence on record to show that
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clothes or person of Radhabai gave smell of keorsene
nor she narrated to her parents that she had poured
kerosene on her person and set herself on fire. What
she narrated to them was that the appellant was
responsible for what had happened and she may give
details thereof if she would live. If this really was
her version then, in the ordinary course of human
nature, her parents would have lodged a report with
the Police. An attempt would have been made to record
her further dying declaration. The record shows that
the Police Officer also had recorded the statement of
injured Radhabai in the Hospital. It was on the basis
of her such statement that a case of accidental death
was registered. Needless to say, in her second dying
declaration to the Police too, Radhabai did not speak
of the attempted suicide nor attributed authorship of
the burns to the appellant. Under these
circumstances, I have no hesitation in holding that
prosecution utterly failed to prove that the death of
Radhabai was of suicidal nature.
11. So far as the charge of matrimonial
cruelty is concerned, the prosecution relied upon
versions of P.W.6 Dharuba, P.W. 7 – Kisanbai and
P.W.8 – Jalindar. They the parents and brother-in-law
of the deceased Radhabai. The version of P.W.
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Dharuba purports to show that Radhabai was a good
looking young girl. He states that the appellant had
demanded amount of Rs.1,000/- (Rupees one thousand).
He gave such amount to P.W. Kisanbai and the latter
had gone to village Bansarola, i.e. native place of
the appellant, so as to give it to him. It is
worthwhile to note that P.W. Dharuba vaguely states
that Radhabai was ill-treated by the appellant on
account of the demand for Rs.1,000/- (Rupees one
thousand). He did not give any other reason for the
so-called ill-treatment nor he spelt out the manner in
which she was
igill-treated by the appellant. His
version purports to show that after festival of
Dipawali, Radhabai had been to his house and told him
that she will not go to reside with the appellant.
His version further purports to show that the
appellant and Baburao (father of the appellant) had
visited his house with intent to fetch Radhabai. She
was sent with them after obtaining an undertaking on
stamp paper (Exh.22). It is pertinent to note that
P.W. Dharuba does not say that the appellant was
addicted to liquor drinking nor there is any whisper
in his evidence that the appellant use to suspect
character of Radhabai. He deposed that Radhabai used
to ask him money as and when she used to visit his
house because the appellant had lost his job. He
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admits that the appellant did not demand Rs.1,000/-
(Rupees one thousand) from him. His version pruports
to show that such demand was made after Dipawali
festival.
12. As regards demand of Rs.1,000/- (Rupees
one thousand) by the appellant, P.W. Kisanbai gave
different version. She states that the appellant use
to send Radhabai to her house in order to fetch money.
She deposed that at the time of festival of Rakhi
Pournima (somewhere in August) the appellant and
Radhabai both
had visited her house. He had joined
the demand for Rs.1,000/- (Rupees one thousand) made
by Radhabai. This part of her version is
contradictory to the version of P.W. Dharuba. She
deposed that after a couple of months of the marriage,
the appellant started beating Radhabai on account of
suspicion about her character. As pointed out
earlier, P.W. Dharuba does not say anything about
conduct of the appellant regarding suspicion about her
character. The version of P.W. Kisanbai reveals that
after a couple of days, subsequent to Rakhi Pournima
festival, she and Radhabai had gone to house of the
appellant at village Bansarola with the amount of
Rs.1,000/- (Rupees one thousand). She tendered the
amount to father of the appellant but the latter did
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not accept it. The appellant then told her to
purchase a nose ring for Radhabai. She purchased a
nose ring from the local market. She deposed that in
the said night, the appellant had beaten Radhabai by
means of fist blows and kicks. She further narrated
that even at her own house, the appellant use to beat
Radhabai when nobody use to be there. How come that
she gathered such information is rendered in
obscurity. Her version reveals that Radhabai was
brought to her house due to ill-treatment meted out to
her. She narrated that the appellant daily visited
her house and use to demand to send Radhabai with him.
According to her, Radhabai was sent with the appellant
when he gave undertaking (Exh.25) to behave properly
with her. She narrated further that when she met
Radhabai in the Hospital then the appellant was
present there. He had not allowed her to tell the
true facts. She deposed that Radhabai told her that
the appellant had burnt her. Had this been a fact
then there was no reason for her to suppress it. It
need not be reiterated that Radhabai was alive upto
30.11.1990 and during the period of one week, FIR
could be lodged by her parents about the ill-treatment
caused by the appellant as well as his attempt to
cause her death by setting her ablaze. The belated
police statements of P.W. Dharuba and P.W.Kisanbai
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suffer from embellishment. It is probable that due to
anguish caused due to death of their daughter, they
attempted to search for the reason and gave statements
according to their surmises.
13. Similarly, P.W. Jalindar narrated that
the appellant use to beat and ill-treat Radhabai. He
narrated that on one occasion he had visited house of
the appellant because he had received information that
the appellant use to beat and ill-treat Radhabai. He
had no personal experience about such ill-treatment
meted out to
Radhabai by the appellant. However,
according to him, on next day when he urged the
appellant to send Radhabai with him then the latter
refused to do so. The appellant then told Radhabai to
go after keeping the clothes provided by him at his
house. The version of P.W. – Jalindar reveals that
he and three more persons thereafter took Radhabai to
house of her parents at Ambejogai. He did not give
details of the period when such incident had occurred.
His version is quite vague in the context of such an
incident. According to P.W. Jalindar, the appellant
use to demand money from P.W. Kisanbai for the
purpose of making his job permanent. This is not the
case put forth by the prosecution nor P.W. Kisanbai
says that demand for money was on account of need to
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make the appellant’s job permanent.
14. The above three witnesses are closely
related to deceased Radhabai being parents and
brother-in-law. They did not spell out anything
immediately after the incident of her burning. It no
doubt appears that the appellant gave an undertaking
(Exh.22/Exh.25) on 6.11.1990 to the effect that he
would not ill-treat and beat her. The confessional
part of the undertaking is inadmissible in evidence.
The inconsistent versions of P.W. Dharuba, P.W.
Kisanbai and
P.W.Jalindar are insufficient to reach
conclusion that deceased Radhabai was subjected to
matrimonial cruelty on account of her failure to meet
any unlawful demand of the appellant. Indeed, the
only unlawful demand stated by P.W. Dharuba is in
respect of Rs.1,000/- (Rupees one thousand) but that
too was not directly made by the appellant for
himself. The amount was not accepted when tendered to
his father but it was suggested that a nose ring may
be purchased for Radhabai and that was done by P.W.
Kisanbai. In this view of the matter, it is difficult
to hold that the appellant subjected deceased Radhabai
to matrimonial cruelty which was of such degree that
she was driven to path to end her life nor it can be
gathered that the appellant made unlawful demands and
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failure of Radhabai or her parents to fulfill the
demand was the cause of her harassment or
ill-treatment.
15. The other evidence tendered by the
prosecution need not be discussed in detail. The
inquest panchanama (Exh.11) is corroborated by P.W.2
Gajendra. The spot panchanama (Exh.17) is
corroborated by P.W. 3 Dagdu. He admits, however,
that he had not entered the house when the spot
panchanama was drawn in the evening of 1.12.1990. The
versions
of P.W.4 – Shrikishan and P.W.5 Ravan are of
no much avail to either side. Both of them were
declared hostile. The prosecution examined P.W.
Ravan in order to show that there use to be quarrels
between the spouses. He did not subscribe to the case
of prosecution. The version of P.W.9 Kaluram PHC
(B.No.865) shows that he recorded case of accidental
death (A.D.No.28/1990) U/s 174 of the Cr.P.C. after
death of Radhabai. He sent concerned papers to P.S.I.
P.W. 10 Kautik Iedhate. His version reveals that he
had received statements of Radhabai which was recorded
by the Executive Magistrate. The offence was
registered on the basis of the F.I.R. lodged by P.W.
10 PSI Kautik on the basis of the investigation.
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16. The circumstances in the present case are
sufficient to raise strong suspicion. Still, however,
it is well settled that suspicion cannot take place of
proof. The learned A.P.P. referred to presumption
available U/s 113-A and 113-B of the Evidence Act.
Before such presumptions are invoked, it is necessary
to establish that the deceased bride committed suicide
within seven (7) years of marriage, she was subjected
to matrimonial cruelty which would come within the
ambit of Section 498-A of the I.P.C. and there are
“other circumstances of the case” which if considered
together would
ig give rise to such presumption. The
presumptions are of rebuttal nature. In “Baban Anna
Dixit Vs. The State of Maharashtra” 1991(1) Crimes
439, this Court held that where the appellant bride
gave two dying declarations, one to Police constable
showing suicide because of cruel treatment of inlaws,
and second to the Executive Magistrate showing
accidental burns while cooking on stove, the
presumptions could not be drawn. Unless there is
adequate evidence to infer matrimonial cruelty and
that the proximity test is satisfied, after the proof
of suicidal nature of the death, there is no scope to
consider the request to draw presumptions. In the
present case, the prosecution evidence is insufficient
to reach conclusion that deceased Radhabai was
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subjected to matrimonial cruelty on account of her
failure to meet unlawful demands of the appellant.
17. Taking a stock of foregoing discussion and
circumstances placed on record, I have no hesitation
in holding that the prosecution could not establish
the charge levelled against the appellant beyond
reasonable realm of doubt. It is not proved that
deceased Radhabai was subjected to matrimonial cruelty
which was of the degree as envisaged in explanation
(a) or (b) of Section 498-A of the I.P.C. It is also
not proved that she died suicidal death. The impugned
judgment is, therefore, unsustainable.
18. In the result, the appeal is allowed. The
impugned judgment rendered by the learned Sessions
Judge in Sessions Case No.44/1991 is set aside. The
appellant is acquitted for the offences punishable
U/ss 498-A and 306 of the I.P.C. His bail bonds be
deemed as cancelled. The fine amount if deposited be
refunded to him.
(V.R.KINGAONKAR,J.)
Authenticated Copy
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(Pvt.Secy. to Hon’ble Judge)
asp/Crappeal29395
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