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) 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
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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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
(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
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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