The State Of Maharashtra vs Vilas Dattatraya Shinde And Ors on 24 July, 2017

1 Cr Appeal 206 of 2000

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No.206 of 2000

* The State of Maharashtra. .. Appellant.

Versus

1) Vilas Dattatraya Shinde,
Age 31 years,
R/o Premdan Hudco,
Ahmednagar.

2) Vikas @ Rajendra Dattatraya Shinde,
Age 24 years. R/o As above.

3) Sushilabai @ Chandrabhagabai
W/o Dattatraya Shinde,
Age 51 years.

4) Dattatraya Kashinath Shinde,
Age 56 years. .. Respondents.

—-

Shri. S.D. Ghayal, Additional Public Prosecutor, for
appellant.

Shri. S.S. Jadhavar, Advocate, for respondent Nos.1 2.

Respondent Nos.3 and 4 are reported to be dead.

—-

Coram: T.V. NALAWADE
SUNIL K. KOTWAL, JJ.

Date : 24 July 2017

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2 Cr Appeal 206 of 2000

JUDGMENT (Per T.V. Nalawade, J.):

1) The appeal is filed to challenge the judgment

and order of Sessions Case No.156/1996 which was

pending in the Court of the Additional Sessions Judge,

Ahmednagar. The respondents-accused are acquitted of

the offences punishable under sections 302, 306, 498-A,

34 of the Indian Penal Code. Both the sides are heard.

2) In short, the case of the prosecution can be

stated as follows :

The deceased Uma @ Asha was sister of first

informant, Sanjay Garudkar. She was given in marriage to

respondent No.1 on 19-3-1993. Respondent No.2 is a

brother of respondent No.1 and at the relevant time he

was unmarried. Respondent Nos.3 and 4 were the parents

of respondent No.1. During arguments report came to be

submitted on behalf of the appellant that respondent

Nos.3 and 4 are dead. Death certificates in respect of

these two persons are produced on the record. The

incident in question took place on 25-2-1996, within seven

years of the marriage. The deceased has left behind one

male issue, aged about one and half years.

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3 Cr Appeal 206 of 2000

3) It is the case of the prosecution that for about 4

to 5 months there was no ill-treatment but after that

accused persons started giving ill-treatment to the

deceased. The deceased used to disclose about the ill-

treatment to her parents and relatives on parents’ side

when they used to visit her matrimonial house and when

the deceased used to visit her parents’ house. Both the

sides are residents of Ahmednagar. It is contended that in

November 1993 accused No.1, husband had demanded

Rs.30,000/- as he wanted to repay the loan and this

amount was given by the parents of the deceased. It is

contended that said amount was never returned. In 1995

at the time of Diwali festival the deceased had disclosed

that all the accused had asked her to bring two-wheeler,

TVS Suzuki, or money for purchasing two-wheeler for

accused No.1. It is contended that after the Diwali festival

the deceased was reached to the matrimonial house by the

parents of the deceased and some how the accused were

convinced to behave well.

4) It is the case of the prosecution that in the year

1994 due to some dispute the deceased was driven out of

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4 Cr Appeal 206 of 2000

the matrimonial house and on that occasion on one stamp

READ  Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984

settlement was written and the matter was settled without

approaching police or other authority. It is contended that

on 30-12-1995 when the deceased had visited the parents’

house due to death of the grandfather, she had disclosed

that accused No.1 had kept illicit relation and he was

saying that he had no desire to cohabit with the deceased.

5) The incident took place on 25-2-1996 in the

night time in the matrimonial house. Two persons came to

the house of the first informant at about 12.45 hours of

the night between 25 and 26 February 1996 and they

informed that the deceased had sustained burn injuries

and she was shifted to civil hospital. The first informant

and other relatives of the deceased’s parents side went to

civil hospital. When the first informant met the deceased

and inquired about the incident, she disclosed that, the

accused had set fire to her. She died on the same night at

about 2.30 a.m. Report came to be given on 26-2-1996.

Crime came to be registered at CR No.53/1996 in

Topkhana Police Station Ahmednagar. Post mortem was

conducted on the dead body. Statements of neighbours of

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5 Cr Appeal 206 of 2000

husband and relatives of the deceased on parents’ side

came to be recorded. After completion of the

investigation, charge sheet came to be filed. Charge was

framed for offence punishable under sections 302, 306

34 of the Indian Penal Code. In the trial Court, the

prosecution examined in all nine witnesses, including the

first informant. The accused took defence of total denial.

They took defence that only the husband was living in the

house with the deceased where the incident took place,

but on that night he was also not present in the house and

he rushed to the spot when there was fire. The trial Court

has held that the prosecution has failed to prove even the

suicidal death. The evidence given on the aforesaid

alleged demand and ill-treatment is disbelieved by the

trial Court.

6) The inquest panchanama is not disputed and

the accused have not disputed that death took place due

to burn injuries. There was smell of kerosene to the

clothes of the deceased. The spot panchanama which is

proved in the evidence of PW 8 Ashok, panch witness,

shows that the incident took place in the kitchen though

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6 Cr Appeal 206 of 2000

some partly burnt articles were found in the room which is

situated on road side. The circumstances mentioned in the

spot panchanama show that attempt was made to save the

deceased by bringing her to the outside from the kitchen.

There was no sign of bursting of stove. In view of the time

of the incident, which was after 10.00 p.m., it can be said

that Court could have inferred that it is a case of suicide.

There are also other circumstances to support that

inference. However, inference that it is homicidal death is

not possible.

7) The prosecution heavily relied on the so called

oral dying declaration of the deceased made to Sanjay

READ  Manpreet Singh vs State Of Punjab & Another on 31 May, 2017

(PW 1), brother of the deceased. He has deposed that

disclosure was made to him in Civil Hospital by the

deceased that all the accused had set fire to her.

Particulars of disclosure given in the F.I.R. at Exhibit 23

were very vague. This evidence is not believable because

after admission of the deceased in the civil hospital by

accused, information was given to the police and police

had given requisition to doctor to obtain opinion

regarding fitness of the deceased, which is at Exhibit 38.

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7 Cr Appeal 206 of 2000

This record including the opinion given by the doctor

shows that opinion was given that the deceased was not

fit to give statement. Due to this opinion, there is no

recorded oral dying declaration. It can be said that the

first informant must have reached the hospital subsequent

to the arrival of police and for that reasons the first

informant cannot be believed in respect of his evidence

that oral dying declaration was made to him.

8) Sanjay (PW 1) has given evidence that on the

occasions when the deceased used to come to her parents’

house she used to disclose that there was ill-treatment to

her and accused No.1 used to give even beating to her.

According to him, initially there was virtually no reason

for ill-treatment was given. After that in December 1994

the deceased disclosed that accused No.1 had asked her

to bring Rs.30,000 from her parents as he wanted to

repair the house and construct his own house. He has

given evidence that the amount was given in installments

by his family to the accused and it was never returned.

The prosecution is relying on some documents which

include one inland letter allegedly sent by the deceased

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8 Cr Appeal 206 of 2000

and one stamp paper which was given by the parties when

the dispute was settled in January 1994. In both these

documents at Exhibits 23 and 24 there is no mention

about ground for ill-treatment to the deceased and at any

time any particular reason was given by the accused to

the deceased for the ill-treatment. From these two

documents it can be inferred that the deceased had

suspicion that husband had extra marital affair. Due to

this suspicion there used to be quarrels and even accused

No.1 had admitted that he had given beating to the

deceased on that count. However, the dispute was settled

on 5-1-1994 and it can be said that till that time there was

no demand of money and no amount was given by the

complainant’s side to the accused.

9) The first informant, Sanjay (PW 1) has given

evidence that at the time of Diwali festival of 1995

accused had asked the deceased to bring two-wheeler

vehicle or bring money for purchasing the vehicle for the

husband. Evidence is given that they some how convinced

the accused to behave well and then the deceased

returned to the matrimonial house. The incident took

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9 Cr Appeal 206 of 2000

READ  Satvir Singh And Ors vs State Of Punjab And Anr on 27 September, 2001

place on 25-2-1996 and it is not the version of the

complainant that after the Diwali festival there was any

grievance expressed by the deceased to them. Thus, there

was time gap of more than two months from the so called

last disclosure and the incident in question. These

circumstances cannot be ignored and particularly the

circumstances that the deceased had suspicion that

accused No.1 had illicit relations with a lady cannot be

ignored. Indian lady would do anything to herself out of

such suspicion.

10) Some neighbours are examined by the

prosecution like Satish (PW 2) and Mangal (PW 3). Their

evidence shows that the deceased had suspicion about

the character of accused No.1 and on that ground there

used to be quarrels. They had also tried to convince the

deceased that she should not take such suspicion. This

independent evidence shows that there used to be

quarrels but the evidence does not show that there was

any other reason for the quarrel. Mangal (PW 3) has

admitted in the cross examination that on the night when

she heard hue and cry of the deceased she came out and

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10 Cr Appeal 206 of 2000

noticed that accused No.1 was sleeping in a temple of

Tuljabhavani situated at a distance of 100 ft from his

house and he also reached to the spot. Though attempt is

made to show that the deceased had disclosed to her that

she caught fire due to explosion of stove the spot

panchanama which was prepared immediately does not

support such a case.

11) The evidence of father (PW 4) of the deceased

is similar to the evidence of the first informant and for the

reasons already given, this Court holds that the allegation

that there was illegal demand from the accused persons

and due to that there was harassment to the deceased

cannot be believed.

12) The conduct of the accused was not consistent

with the guilt but it was consistent with the innocence.

They had immediately shifted the deceased to the civil

hospital and it can be said that within no time the

deceased was reached to the civil hospital. They had also

reported about the incident to the parents of the

deceased. This circumstance also cannot be ignored.

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11 Cr Appeal 206 of 2000

13) The aforesaid circumstances have created clear

probability that due to suspicion of the deceased that

accused No.1 was having extra marital affair she set fire

to herself. For such suspicion the accused persons cannot

be convicted for offences punishable under sections 498A

and 306 of the Indian Penal Code. It is already observed

that there is virtually no evidence to prove the offence

punishable under section 302 of the Indian Penal Code.

This Court holds that it is not possible to interfere in the

decision given by the trial Court of acquittal. In the result,

the appeal stands dismissed.

Sd/- Sd/-
(SUNIL K. KOTWAL, J.) (T.V. NALAWADE, J.)

rsl

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