{"id":223341,"date":"2009-03-26T00:00:00","date_gmt":"2009-03-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abhiman-vs-the-state-of-maharashtra-on-26-march-2009"},"modified":"2018-07-12T20:08:47","modified_gmt":"2018-07-12T14:38:47","slug":"abhiman-vs-the-state-of-maharashtra-on-26-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abhiman-vs-the-state-of-maharashtra-on-26-march-2009","title":{"rendered":"Abhiman vs The State Of Maharashtra on 26 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Abhiman vs The State Of Maharashtra on 26 March, 2009<\/div>\n
Bench: V.R. Kingaonkar<\/div>\n
                                          (1)\n\n\n                              REPORTED\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n                             BENCH AT AURANGABAD.\n\n\n\n\n                                                                               \n                     CRIMINAL APPEAL NO.293 OF 1995.\n\n\n\n\n                                                       \n    Abhiman S\/o Baburao Gaikwad,\n    Age 34 years, Occ.Labour,\n    R\/o Bansarola, Tq. Kej,\n\n\n\n\n                                                      \n    Dist.Beed.                  ... Appellant.\n\n\n                 Versus\n\n    The State of Maharashtra                    ... Respondent.\n\n\n\n\n                                          \n                                          ...\n                           \n    Mr.N.N.Shinde, advocate for the appellant.\n    Mr.V.H.Dighe, A.P.P. for the State.\n                          \n                                          ...\n\n                                    CORAM : V.R.KINGAONKAR,J.\n                                    Reserved on :04.03.2009.\n                                    Pronounced on:26.03.2009.\n      \n\n\n    JUDGMENT\n<\/pre>\n
    1.              Challenge       in    this appeal is to             judgment<\/p>\n
    rendered        by Additional Sessions Judge, Ambejogai, in<\/p>\n
    Sessions        case    No.44\/1991 whereby the appellant                     has<\/p>\n
    been     convicted for offence punishable U\/ss 498-A and<\/p>\n
    306     of    the      I.P.C.    and     is    sentenced         to      suffer<\/p>\n
    rigorous        imprisonment         for three (3) years            on     each<\/p>\n
    count     and     to    pay fine of         Rs.1,000\/-       (Rupees         one<\/p>\n
    thousand), in default to suffer rigorous imprisonment<\/p>\n
    for two (2) months, on each count.\n<\/p>\n
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\n                                               (2)<\/span><\/p>\n
    2.              Briefly           stated,       the prosecution case              is<\/p>\n
    that     deceased          Radhabai        was a    good    looking         young<\/p>\n
    woman.        Her marriage with the appellant was performed<\/p>\n
    on     March 10, 1988.              The appellant was employed as                  a<\/p>\n
    postman.            He use to reside at village               Yusufwadgaon.\n<\/p>\n
    After     about           couple     of months of the         marriage,           he<\/p>\n
    started        beating, harassing and ill-treating the wife<\/p>\n
    (Radhabai)           in the matrimonial home.              He was addicted<\/p>\n
    to     vice     of        liquor drinking.         He use     to      regularly<\/p>\n
    return        home        in drunken condition and beat her.                      He<\/p>\n
    use to express suspicion about her character.                              He had<\/p>\n
    demanded        amount of Rs.1,000\/- (Rupees one                     thousand)<\/p>\n
    from her parents.                Her mother took the money and went<\/p>\n
    to     house        of     the appellant.          However,       his       father<\/p>\n
    refused        to        accept     the money.       She     purchased          one<\/p>\n
    nose-ring           (Nathani)       for     her     daughter.          In       her<\/p>\n
    presence,           at the time of Rakhi Pournima festival                        of<\/p>\n
    1989     i.e.        in the month of August, the appellant had<\/p>\n
    beaten         up        Radhabai     in     the     matrimonial             home.\n<\/p>\n
    Thereupon           his     father urged her mother to take                   away<\/p>\n
    Radhabai        to        her     house.     So,    mother      of      Radhabai<\/p>\n
    returned            to     her     house     at    Ambejogai          alongwith<\/p>\n
    Radhabai.            She        resided    with     her     mother          uptill<\/p>\n
    6.11.1990.            Even        during that period, the            appellant<\/p>\n
    use     to     visit        the house of his inlaws             and      use      to<\/p>\n
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\n                                      (3)<\/span><\/p>\n
    ill-treat       deceased      Radhabai.    He use       to     ask      the<\/p>\n
    inlaws      to send her with him.         In a common meeting of<\/p>\n
    the relatives, her parents ultimately decided to send<\/p>\n
    her    with the appellant when he agreed to execute                       an<\/p>\n
    undertaking          in writing to give her proper treatment.\n<\/p>\n
    He     executed a written undertaking on stamp paper and<\/p>\n
    assured     that he would not beat her or ill-treat                     her<\/p>\n
    any    more.     Thereafter, Radhabai was sent with him on<\/p>\n
    the    next day.        Within about a fortnight, her parents<\/p>\n
    received       information      that she was admitted in              SRTR<\/p>\n
    Medical     College       Hospital at Ambejogai due            to     burn<\/p>\n
    injuries.        They
\n                           ig visited the Hospital and           met      her.\n<\/p>\n
    She narrated to them that the appellant did not allow<\/p>\n
    her    to    speak out the truth.         She narrated         to     them<\/p>\n
    that it was the appellant who had done all the things<\/p>\n
    and,     therefore, she had received the burn                injuries.\n<\/p>\n
    She    succumbed        to the burn injuries       on     30.11.1990.\n<\/p>\n
    Initially       a case of accidental death          (A.D.No.28\/90)<\/p>\n
    was    registered.        The Police investigation,            however,<\/p>\n
    indicated material to show that deceased Radhabai was<\/p>\n
    subjected       to     matrimonial cruelty meted out to               her.\n<\/p>\n
    On      basis    of     the    material    gathered       during        the<\/p>\n
    investigation,         the appellant was charge-sheeted                 for<\/p>\n
    offences punishable U\/ss 498-A and 306 of the I.P.C.\n<\/p>\n
    3.              The      appellant   denied      truth       into       the<\/p>\n
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\n                                         (4)<\/span><\/p>\n
    accusations.            He adopted defence of simple denial in<\/p>\n
    the context of allegations of the matrimonial cruelty<\/p>\n
    and suicidal death of deceased Radhabai.                         He asserted<\/p>\n
    that Radhabai met with an accident due to bursting of<\/p>\n
    stove and hence, had received the burn injuries.\n<\/p>\n
    4.            At     the trial, the prosecution examined in<\/p>\n
    all     ten (10) witnesses in support of its case.                             The<\/p>\n
    appellant     examined        D.W.       Chandrakant in support                  of<\/p>\n
    his     defence.        Certain documents were also placed                       on<\/p>\n
    record.      On appreciation of the evidence, the learned<\/p>\n
    Sessions     Judge
\n                         ig   came     to    the   conclusion            that      the<\/p>\n
    deceased     was        subjected       to matrimonial           cruelty         at<\/p>\n
    hands     of the appellant.             The learned Sessions               Judge<\/p>\n
    further      held that she committed suicide, as a result<\/p>\n
    of    unbearable         cruelty     meted     out      to     her      by     the<\/p>\n
    appellant.         In     keeping       with    such         findings,         the<\/p>\n
    appellant     was        convicted and sentenced as                 described<\/p>\n
    hereinabove.\n<\/p>\n
    5.            Heard       learned counsel Mr.N.N.Shinde,                       for<\/p>\n
    the     appellant and Mr.V.H.Dighe, learned A.P.P.                             for<\/p>\n
    the State.\n<\/p>\n
    6.            At     the     outset, it may be mentioned                     that<\/p>\n
    out     of   the    ten     (10)        witnesses     examined          by     the<\/p>\n
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\n                                            (5)<\/span><\/p>\n
    prosecution,          none has highlighted the                  circumstances<\/p>\n
    in which deceased Radhabai received the burn injuries<\/p>\n
    in     the relevant evening.               The marriage was performed<\/p>\n
    on     10.3.1988.           The incident occurred in the                   evening<\/p>\n
    of     22.11.1990.            At     the     relevant        time,        deceased<\/p>\n
    Radhabai        was     in     the matrimonial           home       at       village<\/p>\n
    Yusufwadgaon.               The injured Radhabai succumbed to the<\/p>\n
    burn     injuries whilst under medical treatment in SRTR<\/p>\n
    Medical     College           Hospital, Ambejogai on                30.11.1990.<\/p>\n
\n\n    The     Police        registered       a case of         accidental               death\n\n\n\n\n                                              \n    after     her        death     (A.D.No.28\/1990) U\/s               174        of     the\n\n    Cr.P.C.         It\n                           \n                           was     during course of            inquiry           of     the\n\n<\/pre>\n
    accidental death that the parents and other relatives<\/p>\n
    of deceased Radhabai suspected foul play.\n<\/p>\n
    7.              The        spot panchanama (Exh.17) was drawn on<\/p>\n
    1.12.1990.            The     recitals       of   the      spot       panchanama<\/p>\n
    (Exh.17)        indicate        that       Radhabai      was      involved          in<\/p>\n
    accidental        burns        due     to sudden bursting               of        stove<\/p>\n
    while     she was cooking in the matrimonial home.                                 The<\/p>\n
    learned     Sessions           Judge noticed that some pieces                       of<\/p>\n
    burnt     clothes and chittis etc.                were recovered                  from<\/p>\n
    the     house in question, yet, no stove was found.                                 It<\/p>\n
    was     for such a reason that inference of suicide                                was<\/p>\n
    drawn.      It        is     pertinent to note           that       during          his<\/p>\n
    cross-examination             the     I.O.     – P.W.10 –           PSI       Kautik<\/p>\n
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\n                                          (6)<\/span><\/p>\n
    admits,        unequivocally,        that     dying     declaration            of<\/p>\n
    Radhabai was recorded by the Executive Magistrate and<\/p>\n
    was     also     received         alongwith      inquiry       papers          in<\/p>\n
    connection            with        case      of    accidental             death<\/p>\n
    (A.D.No.28\/1990).            He admits further that during his<\/p>\n
    inquiry        and investigation he could not find out                       any<\/p>\n
    material        to indicate suicidal or homicidal death                        of<\/p>\n
    Radhabai.\n<\/p>\n
    8.              In    the        above background, the version                 of<\/p>\n
    D.W.1     Chandrakant         is significant.         At the        relevant<\/p>\n
    time,<\/p>\n
              he was attached to Tahsil Office, Ambejogai as<\/p>\n
    Naib     Tahsildar.          His version purports to show                  that<\/p>\n
    his     services      were requisitioned by the                Police        for<\/p>\n
    recording        dying declaration of injured Radhabai.                        He<\/p>\n
    deposed        that   on 23.11.1990 he received letter                     from<\/p>\n
    PSO     Ambejogai for recording of the dying declaration<\/p>\n
    and,     therefore,         he     approached    the     Hospital.             He<\/p>\n
    recorded        the   dying declaration of injured                  Radhabai<\/p>\n
    vide     Exh.45.      He admits that she was suffering                     from<\/p>\n
    pains due to burn injuries.                 He denied that relatives<\/p>\n
    of     the appellant had informed him that she                      received<\/p>\n
    burn     injuries while cooking.              The dying        declaration<\/p>\n
    was recorded on next day of the incident little after<\/p>\n
    mid-day.         It is important to notice that parents and<\/p>\n
    other     paternal relatives of deceased Radhabai                        never<\/p>\n
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\n                                              (7)<\/span><\/p>\n
    expressed          any        suspicion       about involvement             of     the<\/p>\n
    appellant          in her death.            They did not report to                 the<\/p>\n
    Police          that     the       appellant     had set       her      on       fire.\n<\/p>\n
    According          to        the    Police version,         Radhabai          orally<\/p>\n
    informed          her        parents, when they          interrogated            her,<\/p>\n
    that       the        appellant       was responsible          for      what       had<\/p>\n
    happened.              She     had not narrated to her parents                     the<\/p>\n
    cause of the burn injuries.\n<\/p>\n
    9.                The         version    of      P.W.1        Dr.Satyanarayan<\/p>\n
    purorts          to show that Radhabai had received 55% burns<\/p>\n
    on the head, neck, face, chest and abdomen as well as<\/p>\n
    back side.             He states that there were no burns on the<\/p>\n
    lower       extremities and perineum.               He gave details                  of<\/p>\n
    such injuries in column No.17 of the postmortem notes<\/p>\n
    (Exh.13).              His version would show that Radhabai died<\/p>\n
    as     a    result of septicemic shock caused by                          the      55%<\/p>\n
    burns.           He     admits       that     from the      nature        of      burn<\/p>\n
    injuries          it     could not be stated whether                   they      were<\/p>\n
    accidental, suicidal or homicidal.                        He admits further<\/p>\n
    that       he     did        not    notice smell     of       kerosene           being<\/p>\n
    emitted          from the clothes or person of Radhabai.                           The<\/p>\n
    prosecution             did     not lead any evidence to show                    that<\/p>\n
    hair       and        clothes       of   deceased    Radhabai           smelt        of<\/p>\n
    kerosene          when        she was admitted in the Hospital                     nor<\/p>\n
    opinion          of the Chemical Analyser is placed on record<\/p>\n
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\n                                              (8)<\/span><\/p>\n
    to   show         that burnt pieces of clothes found                       in     the<\/p>\n
    house       at        the time of spot panchanama (Exh.17)                      bore<\/p>\n
    smell       of kerosene.              Thus, it is manifest that                there<\/p>\n
    is   no      iota of evidence to infer that                       Radhabai,         in<\/p>\n
    fact,       poured           kerosene on her person             and     immolated<\/p>\n
    herself          in     the     matrimonial home           in     the     relevant<\/p>\n
    evening.              The     prosecution        did not prove           that     she<\/p>\n
    committed             suicide due to self-immolation.                   It cannot<\/p>\n
    be   inferred that because she died within a period of<\/p>\n
    2-1\/2       years of the marriage, the death could be only<\/p>\n
    of   suicidal               nature.      The     learned        Sessions        Judge<\/p>\n
    observed :\n<\/p>\n
            .             \"The     three prosecution           witnesses,\n                               \n            P.W.6          -      Dharuba, P.W.7 -        Kisanbai          and\n\n            P.W.8          -      Jalindar         Bade   had,       however,\n\n            deposed             that when they had met              Radhabai\n      \n\n\n            in        the Hospital and asked her about                      the\n   \n\n\n\n<\/pre>\n
            incident, she had told them that whatever<\/p>\n
            is        done to her, is done by her                    husband.\n<\/p>\n
            In        other words, it appears that Radhabai<\/p>\n
            wanted to tell that whatever had happened<\/p>\n
            to        her, her husband was responsible                      for<\/p>\n
            it.            These     three     witnesses        have        also<\/p>\n
            deposed             that Radhabai had told them that<\/p>\n
            let           her recover first and then she                  will<\/p>\n
            tell          the      details of the burn              injuries.\n<\/p>\n
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\n                                         (9)<\/span><\/p>\n
            Thus,        Radhabai       had      not    told        these\n\n            witnesses         that    her husband        had      poured\n\n<\/pre>\n
            kerosene on her person and had set her on<\/p>\n
            fire.        On      the contrary, she appears               to<\/p>\n
            have told them that let her recover first<\/p>\n
            and     then      she     will tell them         the      real<\/p>\n
            details.          This    evidence         of    aforesaid<\/p>\n
            three          (3)       witnesses         is       highly<\/p>\n
            insufficient to infer that the accused had<\/p>\n
            caused       death of Radhabai by setting                  her<\/p>\n
            on     fire.      The death of Radhabai does not<\/p>\n
            appear to be homicidal one.”\n<\/p>\n
    10.              The      learned       Sessions        Judge,         however,<\/p>\n
    discarded       the dying declaration (Exh.45) because D.W.\n<\/p>\n
    Chandrakant did not consult the Medical Officer before<\/p>\n
    recording       of     the      dying     declaration.          The       learned<\/p>\n
    Sessions       Judge appears to have reached the conclusion<\/p>\n
    that    Radhabai committed the suicide because if                           there<\/p>\n
    was accidental fire due to bursting of stove then most<\/p>\n
    of     the burns would occur on near the abdomen and                            not<\/p>\n
    on     the head or neck.           In the absence of any               tangible<\/p>\n
    evidence to support such inference, it will have to be<\/p>\n
    said    that     the      learned Sessions Judge              gave        such     a<\/p>\n
    finding merely on surmises and conjectures.                          As stated<\/p>\n
    earlier,       there is no evidence on record to show                         that<\/p>\n
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\n                                           (10)<\/span><\/p>\n
    clothes      or person of Radhabai gave smell of                       keorsene<\/p>\n
    nor    she    narrated to her parents that she had                         poured<\/p>\n
    kerosene      on her person and set herself on fire.                          What<\/p>\n
    she    narrated        to      them   was that      the     appellant           was<\/p>\n
    responsible        for       what had happened and she               may      give<\/p>\n
    details thereof if she would live.                   If this really was<\/p>\n
    her    version         then,     in the ordinary course              of     human<\/p>\n
    nature,      her       parents would have lodged a report                     with<\/p>\n
    the Police.        An attempt would have been made to record<\/p>\n
    her    further dying declaration.             The record shows that<\/p>\n
    the    Police Officer also had recorded the statement of<\/p>\n
    injured Radhabai in the Hospital.                It was on the basis<\/p>\n
    of    her such statement that a case of accidental death<\/p>\n
    was    registered.           Needless to say, in her second dying<\/p>\n
    declaration        to the Police too, Radhabai did not speak<\/p>\n
    of    the attempted suicide nor attributed authorship of<\/p>\n
    the     burns          to       the     appellant.              Under       these<\/p>\n
    circumstances,           I     have no hesitation in holding                  that<\/p>\n
    prosecution        utterly failed to prove that the death of<\/p>\n
    Radhabai was of suicidal nature.\n<\/p>\n
    11.               So     far    as    the    charge        of     matrimonial<\/p>\n
    cruelty      is    concerned,         the prosecution           relied        upon<\/p>\n
    versions      of       P.W.6     Dharuba, P.W.       7 –        Kisanbai        and<\/p>\n
    P.W.8 – Jalindar.              They the parents and brother-in-law<\/p>\n
    of    the    deceased          Radhabai.      The      version         of     P.W.\n<\/p>\n
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\n                                             (11)<\/span><\/p>\n
    Dharuba        purports       to      show that Radhabai was               a     good<\/p>\n
    looking        young girl.         He states that the appellant had<\/p>\n
    demanded           amount of Rs.1,000\/- (Rupees one                  thousand).\n<\/p>\n
    He     gave such amount to P.W.                Kisanbai and the                latter<\/p>\n
    had     gone to village Bansarola, i.e.                    native place              of<\/p>\n
    the     appellant,          so     as    to give it       to    him.           It    is<\/p>\n
    worthwhile           to note that P.W.         Dharuba vaguely              states<\/p>\n
    that     Radhabai          was     ill-treated by the           appellant            on<\/p>\n
    account        of     the     demand for       Rs.1,000\/-         (Rupees           one<\/p>\n
    thousand).            He did not give any other reason for                          the<\/p>\n
    so-called ill-treatment nor he spelt out the manner in<\/p>\n
    which        she     was
\n                               igill-treated by         the    appellant.               His<\/p>\n
    version        purports       to      show   that     after       festival           of<\/p>\n
    Dipawali,           Radhabai had been to his house and told him<\/p>\n
    that     she        will not go to reside with              the      appellant.\n<\/p>\n
    His      version           further      purports     to    show      that           the<\/p>\n
    appellant           and     Baburao (father of the appellant)                       had<\/p>\n
    visited        his house with intent to fetch Radhabai.                             She<\/p>\n
    was     sent with them after obtaining an undertaking                               on<\/p>\n
    stamp        paper        (Exh.22).     It is pertinent to note                  that<\/p>\n
    P.W.         Dharuba        does     not say that the          appellant            was<\/p>\n
    addicted           to liquor drinking nor there is any                     whisper<\/p>\n
    in     his     evidence          that the appellant use             to     suspect<\/p>\n
    character           of Radhabai.        He deposed that Radhabai used<\/p>\n
    to     ask     him money as and when she used to                     visit          his<\/p>\n
    house        because       the     appellant had lost his                job.        He<\/p>\n
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\n                                            (12)<\/span><\/p>\n
    admits       that     the appellant did not demand                  Rs.1,000\/-\n<\/p>\n
    (Rupees       one thousand) from him.               His version pruports<\/p>\n
    to    show     that     such demand was           made       after      Dipawali<\/p>\n
    festival.\n<\/p>\n
    12.             As      regards        demand of Rs.1,000\/-               (Rupees<\/p>\n
    one     thousand)       by the appellant, P.W.               Kisanbai          gave<\/p>\n
    different       version.       She states that the appellant use<\/p>\n
    to send Radhabai to her house in order to fetch money.<\/p>\n
\n\n    She     deposed       that     at the time of festival                of     Rakhi\n\n\n\n\n                                            \n    Pournima       (somewhere         in    August)      the     appellant           and\n\n    Radhabai       both\n                          \n                            had visited her house.               He had        joined\n\n    the     demand for Rs.1,000\/- (Rupees one thousand)                            made\n                         \n    by      Radhabai.            This       part   of     her        version          is\n\n    contradictory          to     the version of P.W.            Dharuba.            She\n\n<\/pre>\n
    deposed that after a couple of months of the marriage,<\/p>\n
    the     appellant started beating Radhabai on account                             of<\/p>\n
    suspicion       about       her     character.          As     pointed           out<\/p>\n
    earlier,       P.W.         Dharuba does not say             anything        about<\/p>\n
    conduct of the appellant regarding suspicion about her<\/p>\n
    character.          The version of P.W.           Kisanbai reveals that<\/p>\n
    after     a couple of days, subsequent to Rakhi                         Pournima<\/p>\n
    festival,       she     and Radhabai had gone to house of                        the<\/p>\n
    appellant       at     village         Bansarola with the           amount        of<\/p>\n
    Rs.1,000\/-          (Rupees    one thousand).           She tendered             the<\/p>\n
    amount       to father of the appellant but the latter                           did<\/p>\n
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\n                                          (13)<\/span><\/p>\n
    not     accept       it.       The   appellant    then      told       her     to<\/p>\n
    purchase        a     nose ring for Radhabai.          She purchased             a<\/p>\n
    nose     ring from the local market.              She deposed that in<\/p>\n
    the     said night, the appellant had beaten Radhabai                          by<\/p>\n
    means     of fist blows and kicks.              She further          narrated<\/p>\n
    that     even at her own house, the appellant use to beat<\/p>\n
    Radhabai        when nobody use to be there.              How come          that<\/p>\n
    she      gathered          such   information      is       rendered           in<\/p>\n
    obscurity.           Her     version     reveals that       Radhabai          was<\/p>\n
    brought to her house due to ill-treatment meted out to<\/p>\n
    her.      She        narrated that the appellant daily                 visited<\/p>\n
    her house and use to demand to send Radhabai with him.\n<\/p>\n
    According to her, Radhabai was sent with the appellant<\/p>\n
    when     he gave undertaking (Exh.25) to behave                      properly<\/p>\n
    with     her.         She     narrated further that when             she      met<\/p>\n
    Radhabai        in     the    Hospital     then   the     appellant           was<\/p>\n
    present        there.        He had not allowed her to              tell      the<\/p>\n
    true     facts.       She deposed that Radhabai told her                    that<\/p>\n
    the     appellant          had burnt her.     Had this been            a    fact<\/p>\n
    then     there was no reason for her to suppress it.                           It<\/p>\n
    need     not        be reiterated that Radhabai was alive                   upto<\/p>\n
    30.11.1990          and     during     the period of one         week,        FIR<\/p>\n
    could be lodged by her parents about the ill-treatment<\/p>\n
    caused     by        the     appellant as well as his           attempt        to<\/p>\n
    cause     her        death by setting her ablaze.             The      belated<\/p>\n
    police     statements          of P.W.     Dharuba and        P.W.Kisanbai<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>
\n                                           (14)<\/span><\/p>\n
    suffer from embellishment.                   It is probable that due to<\/p>\n
    anguish        caused    due to death of their daughter,                      they<\/p>\n
    attempted to search for the reason and gave statements<\/p>\n
    according to their surmises.\n<\/p>\n
    13.              Similarly,           P.W.      Jalindar narrated             that<\/p>\n
    the     appellant use to beat and ill-treat Radhabai.                            He<\/p>\n
    narrated        that on one occasion he had visited house of<\/p>\n
    the appellant because he had received information that<\/p>\n
    the     appellant use to beat and ill-treat Radhabai.                            He<\/p>\n
    had     no     personal experience about such                 ill-treatment<\/p>\n
    meted     out     to<\/p>\n
                             Radhabai by the          appellant.           However,<\/p>\n
    according        to     him,     on    next day when        he     urged        the<\/p>\n
    appellant        to     send Radhabai with him then the                   latter<\/p>\n
    refused to do so.              The appellant then told Radhabai to<\/p>\n
    go     after     keeping the clothes provided by him at                         his<\/p>\n
    house.         The version of P.W.             – Jalindar reveals             that<\/p>\n
    he     and three more persons thereafter took Radhabai to<\/p>\n
    house     of     her parents at Ambejogai.               He did not           give<\/p>\n
    details of the period when such incident had occurred.\n<\/p>\n
    His     version is quite vague in the context of such                            an<\/p>\n
    incident.         According to P.W.             Jalindar, the appellant<\/p>\n
    use     to     demand     money       from P.W.      Kisanbai          for      the<\/p>\n
    purpose        of making his job permanent.               This is not the<\/p>\n
    case     put forth by the prosecution nor P.W.                         Kisanbai<\/p>\n
    says     that demand for money was on account of need                            to<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>
\n                                         (15)<\/span><\/p>\n
    make the appellant’s job permanent.\n<\/p>\n
    14.                The    above     three        witnesses         are      closely<\/p>\n
    related       to      deceased     Radhabai           being      parents           and<\/p>\n
    brother-in-law.            They     did     not       spell      out      anything<\/p>\n
    immediately           after the incident of her burning.                       It no<\/p>\n
    doubt     appears that the appellant gave an                         undertaking<\/p>\n
    (Exh.22\/Exh.25)           on     6.11.1990 to the effect                  that      he<\/p>\n
    would     not       ill-treat and beat her.               The      confessional<\/p>\n
    part     of the undertaking is inadmissible in                           evidence.\n<\/p>\n
    The     inconsistent           versions     of     P.W.         Dharuba,          P.W.\n<\/p>\n
    Kisanbai        and\n                           \n                             P.W.Jalindar are insufficient to                      reach\n\n    conclusion         that    deceased Radhabai was                 subjected          to\n                          \n    matrimonial           cruelty on account of her failure to meet\n\n    any     unlawful         demand of the appellant.                  Indeed,         the\n\n    only     unlawful         demand stated by P.W.              Dharuba         is     in\n      \n\n\n    respect       of Rs.1,000\/- (Rupees one thousand) but                            that\n   \n\n\n\n    too     was     not      directly    made        by    the      appellant          for\n\n    himself.        The amount was not accepted when tendered to\n\n\n\n\n\n    his     father but it was suggested that a nose ring                               may\n\n    be     purchased         for Radhabai and that was done by                        P.W.\n\n    Kisanbai.          In this view of the matter, it is difficult\n\n<\/pre>\n
    to hold that the appellant subjected deceased Radhabai<\/p>\n
    to     matrimonial cruelty which was of such degree                              that<\/p>\n
    she     was driven to path to end her life nor it can                               be<\/p>\n
    gathered        that the appellant made unlawful demands and<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>
\n                                            (16)<\/span><\/p>\n
    failure       of     Radhabai        or her parents to          fulfill         the<\/p>\n
    demand        was        the     cause     of     her      harassment            or<\/p>\n
    ill-treatment.\n<\/p>\n
    15.                The     other       evidence      tendered          by       the<\/p>\n
    prosecution         need       not     be discussed in        detail.           The<\/p>\n
    inquest       panchanama (Exh.11) is corroborated by                        P.W.2<\/p>\n
    Gajendra.            The       spot        panchanama         (Exh.17)           is<\/p>\n
    corroborated         by    P.W.        3 Dagdu.   He admits,           however,<\/p>\n
    that     he    had       not    entered the house          when      the      spot<\/p>\n
    panchanama was drawn in the evening of 1.12.1990.                               The<\/p>\n
    versions<\/p>\n
                   of P.W.4 – Shrikishan and P.W.5 Ravan are of<\/p>\n
    no     much    avail       to either side.        Both      of     them       were<\/p>\n
    declared       hostile.          The      prosecution       examined          P.W.\n<\/p>\n
    Ravan     in order to show that there use to be                        quarrels<\/p>\n
    between the spouses.             He did not subscribe to the case<\/p>\n
    of     prosecution.            The     version of P.W.9         Kaluram         PHC<\/p>\n
    (B.No.865)         shows that he recorded case of                  accidental<\/p>\n
    death     (A.D.No.28\/1990) U\/s 174 of the Cr.P.C.                           after<\/p>\n
    death of Radhabai.             He sent concerned papers to P.S.I.\n<\/p>\n
    P.W.      10 Kautik Iedhate.              His version reveals that he<\/p>\n
    had received statements of Radhabai which was recorded<\/p>\n
    by      the    Executive         Magistrate.         The      offence           was<\/p>\n
    registered         on the basis of the F.I.R.               lodged by P.W.\n<\/p>\n
    10 PSI Kautik on the basis of the investigation.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>
\n                                              (17)<\/span><\/p>\n
    16.               The        circumstances in the present case are<\/p>\n
    sufficient to raise strong suspicion.                          Still, however,<\/p>\n
    it is well settled that suspicion cannot take place of<\/p>\n
    proof.         The     learned A.P.P.           referred to          presumption<\/p>\n
    available        U\/s        113-A and 113-B of the              Evidence          Act.\n<\/p>\n
    Before     such presumptions are invoked, it is necessary<\/p>\n
    to establish that the deceased bride committed suicide<\/p>\n
    within     seven (7) years of marriage, she was subjected<\/p>\n
    to     matrimonial           cruelty which would come                within        the<\/p>\n
    ambit     of     Section 498-A of the I.P.C.                    and there          are<\/p>\n
    “other     circumstances of the case” which if considered<\/p>\n
    together        would
\n                            ig   give rise to such          presumption.               The<\/p>\n
    presumptions           are of rebuttal nature.                 In “Baban          Anna<\/p>\n
    Dixit     Vs.         The State of Maharashtra” 1991(1)                      Crimes<\/p>\n
    439,     this     Court held that where the appellant                            bride<\/p>\n
    gave     two dying declarations, one to Police                          constable<\/p>\n
    showing        suicide because of cruel treatment of inlaws,<\/p>\n
    and     second        to     the     Executive        Magistrate            showing<\/p>\n
    accidental            burns     while       cooking       on       stove,          the<\/p>\n
    presumptions          could        not   be drawn.        Unless        there       is<\/p>\n
    adequate        evidence       to infer matrimonial                cruelty         and<\/p>\n
    that     the proximity test is satisfied, after the proof<\/p>\n
    of     suicidal nature of the death, there is no scope to<\/p>\n
    consider        the        request to draw presumptions.                    In     the<\/p>\n
    present case, the prosecution evidence is insufficient<\/p>\n
    to     reach     conclusion          that       deceased       Radhabai            was<\/p>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>
\n                                       (18)<\/span><\/p>\n
    subjected        to     matrimonial cruelty on account                 of     her<\/p>\n
    failure to meet unlawful demands of the appellant.\n<\/p>\n
    17.              Taking a stock of foregoing discussion and<\/p>\n
    circumstances          placed on record, I have no               hesitation<\/p>\n
    in     holding        that the prosecution could not               establish<\/p>\n
    the     charge        levelled   against    the      appellant          beyond<\/p>\n
    reasonable        realm     of   doubt.    It is not          proved        that<\/p>\n
    deceased Radhabai was subjected to matrimonial cruelty<\/p>\n
    which     was     of the degree as envisaged in                 explanation<\/p>\n
    (a)     or (b) of Section 498-A of the I.P.C.                    It is also<\/p>\n
    not proved that she died suicidal death.                      The impugned<\/p>\n
    judgment is, therefore, unsustainable.\n<\/p>\n
    18.              In the result, the appeal is allowed.                        The<\/p>\n
    impugned        judgment     rendered by the         learned         Sessions<\/p>\n
    Judge     in Sessions Case No.44\/1991 is set aside.                           The<\/p>\n
    appellant        is     acquitted for the     offences           punishable<\/p>\n
    U\/ss     498-A        and 306 of the I.P.C.        His bail bonds              be<\/p>\n
    deemed     as cancelled.         The fine amount if deposited be<\/p>\n
    refunded to him.\n<\/p>\n
                                         (V.R.KINGAONKAR,J.)<\/p>\n
                               Authenticated Copy<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>
\n                             (19)<\/span><\/p>\n
                   (Pvt.Secy. to Hon’ble Judge)<\/p>\n
    asp\/Crappeal29395<\/p>\n
                                       ::: Downloaded on – 09\/06\/2013 14:28:10 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 … […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-223341","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAbhiman vs The State Of Maharashtra on 26 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abhiman-vs-the-state-of-maharashtra-on-26-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abhiman vs The State Of Maharashtra on 26 March, 2009 - 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