Bombay High Court High Court

Abhiman vs The State Of Maharashtra on 26 March, 2009

Bombay High Court
Abhiman vs The State Of Maharashtra on 26 March, 2009
Bench: V.R. Kingaonkar
                                          (1)


                              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.

::: Downloaded on – 09/06/2013 14:28:10 :::
(2)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(3)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(4)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(5)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(6)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(7)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(8)

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.

::: Downloaded on – 09/06/2013 14:28:10 :::
(9)

            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

::: Downloaded on – 09/06/2013 14:28:10 :::
(10)

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.

::: Downloaded on – 09/06/2013 14:28:10 :::
(11)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(12)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(13)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(14)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(15)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(16)

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.

::: Downloaded on – 09/06/2013 14:28:10 :::
(17)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(18)

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

::: Downloaded on – 09/06/2013 14:28:10 :::
(19)

(Pvt.Secy. to Hon’ble Judge)

asp/Crappeal29395

::: Downloaded on – 09/06/2013 14:28:10 :::