The State Of Maharashtra vs Makbool Bandagi Mulani & Ors on 28 August, 2017

oj APPEAL 848 OF 2003.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.848 OF 2003.

The State of Maharashtra ] .. Appellant

V/s.

1. Makbool Bandagi Mulani ]
age about 32 yrs,Occn.Labour ]
]
2. Smt. Mashabi Bandgi Mulani ]
age about 62 years, Occn. Household ]
]
3. Sultan Bandgi Mulani ]
age about 26 years, Occn.Labour ]
] .. Respondents
4. Gaybisaheb Bandgi Mulani ] Original
age about 24 years, Occn.Labour ] accused
] Nos. 1 to 6
5. Smt. Niyamat Usman Mujawar ]
age about 42 years, Occn. Housewife ]
]
6. Smt. Rubabi Usman Mujawar ]
age about 21 years,Occn.household ]
]
All r/o Lalpuri Kalamb, Tal.Indapur ]
Dist. Pune ]

Mrs. Geeta Mulekar, APP for Appellant State.
Mr. Shailesh Chavan i/by Mr. Milind
Deshmukh, for the Respondents

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CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

DATE : 28TH AUGUST, 2017.

ORAL JUDGMENT : [Per: Dr.Shalini Phansalkar-Joshi,J.]

1. In this appeal, which is preferred by the State, an

exception is taken to the acquittal of respondents, for the offence

punishable under Sections 498A and 306 read with 34 of the

Indian Penal Code. The said acquittal was recorded by the

learned Additional Sessions Judge, Baramati, by his judgment

dated 1.4.2003, delivered in Sessions Case No.15 of 1999.

2. Brief facts of the appeal can be stated as follows :-

The marriage of deceased Ruksana was solemnized

with respondent No.1 on 29.11.1996 Respondent No.2 is the

mother of respondent No.1. Respondent Nos. 3 and 4 are the

brothers, respondent No.5 is the married sister and respondent

No.6 is the daughter of respondent No.5. After the marriage,

Ruksana was residing jointly with respondents. It is alleged that

she was treated properly only for five months. Thereafter, there

was demand of Rs.5,000/- to purchase sewing machine. Her

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father could give only Rs.2,500/-. Respondents were not satisfied

therewith and hence they again demanded an amount of

Rs.20,000/- for purchase of tempo. Ruksana’s father again could

give an amount of Rs.10,000/-only. Respondents, therefore,

subjected Ruksana to harassment and ill-treatment and as a

result, as per prosecution case, Ruksana committed suicide by

pouring kerosene on herself and setting her ablaze on 14.11.1990

at about 7.00 p.m. She was immediately taken to Budhrani

Hospital. However, she succumbed to burn injuries on the next

date on 15.11.1998. Complaint came to be lodged by her father

in respect of her death on 19.11.1998 at Walchandnagar Police

Station. On his complaint, offence came to be registered against

respondents and after completion of due investigation, charge

sheet was filed in the court of Judicial Magistrate first Class,

Indapur, District: Pune.

3. After committal of the case, the Sessions Court

framed charge against respondents vide Exh.9. Respondents

pleaded not guilty and claimed trial.

4. In support of its case, the prosecution examined in all

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six witnesses. P.W.1 Hamid is the father of deceased. P.W.2 is the

mother of deceased, P.W.3 and P.W.4 are the brothers and P.W.5

is the sister-in-law of the deceased. P.W.6 is the Investigating

Officer PSI Andhale. On appreciation of their evidence, learned

trial Court was pleased to hold that there were interse

contradictions and inconsistencies in the evidence of the

prosecution witnesses. Moreover, there was delay of five days in

lodging the complaint and hence it was held that the evidence on

record is not cogent, convincing and reliable, either to prove the

demand or to prove the cruelty to coerce her to commit suicide.

Trial Court also found that the evidence on record was not of a

conclusive nature to prove that cause of her death was suicidal in

nature. Accordingly trail Court has acquitted the respondents,

giving them the benefit of doubt.

5. This judgment of the trial court is challenged in the

present appeal by learned APP by submitting that the evidence on

record clearly goes to show that Ruksana has sustained 92% burn

injuries and these injuries were all over her body, including face,

head and neck. Such injuries, according to learned APP cannot

be possible in case of accidental burns and hence it is submitted

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that learned trial court has committed error in not appreciating the

evidence on record properly. According to learned APP, if it was a

case of accidental burns, then Ruksana would have made some

efforts to save herself. However, there is no evidence on record to

that effect.

6. As regards delay in lodging of complaint, it is

submitted by learned APP that sufficient explanation for the same

is offered by P.W.1 Hamid in the complaint and also in his

evidence before the court. As per his explanation, as he assumed

that police had made enquiry with him in the Hospital at Pune, the

police had already taken cognizance, hence he need not go to

Walchandnagar Police station to lodge complaint. When Jejuri

police came to enquire, he went to Walchandnagar Police Station

to register offence. Thus, according to learned APP, there is

sufficient evidence to prove the charge of cruelty and ill-treatment

and to-negate case of defence that it was case of accidental

burns. Hence in the submission of learned APP, the view adopted

by the trial Court, in acquitting respondents is perverse and

interference of this Court is warranted to set aside the acquittal of

respondents.

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7. Per contra, learned counsel for the respondents has

supported the impugned judgment and order of the trial Court by

adopting the reasons which are given by the trial Court in its

judgment.

8. In the instant case, admittedly the death of Ruksana

has taken place within 2 years from the date of her marriage. Her

marriage has taken place on 29.11.1996 and she has succumbed

to burn injuries on 15.11.1998. It is also not in dispute that the

cause of her death was shock due to burn injuries. The only

question, therefore, for consideration is whether there is sufficient

evidence to draw presumption as laid down under Section 113(A)

of the Evidence Act, to prove that she was subjected to cruelty

and harassment and the cruelty and harassment was of such a

nature as was likely to drive her to commit suicide or cause burn

injuries to herself. As per prosecution case, which is tried to be

proved through evidence of parents of deceased, there was such

a cruelty and harassment to meet unlawful demand of the cash.

9. To prove this demand and cruelty, prosecution has

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relied upon evidence of her father P.W.1 Hanif, who has deposed

that after the marriage Ruksana was treated properly only for five

months. Thereafter respondents started giving her troubles. She

had informed him that her husband i.e. respondent No.1 was

demanding cash amount of Rs.5,000/- for purchasing sewing

machine. He gave Rs.2,500/- to her and sent her back to the

house of respondents. But respondents were not satisfied, they

again demanded Rs.20,000/- for purchase of tempo, at that time

he gave Rs.10,000/- at the hands of his son P.W.3 Firoz.

However, demand of the money did not stop and her harassment

continued. During this period, she has also given birth to a son

and stayed in his house for about 2 ½ months. Thereafter again

demand was made of Rs.20,000/- to take a room on rent.

According to him, at that time, his son P.W.3 Firoz gave that

amount to the respondent. However, on the very next day, he

received telephonic message that Ruksana was admitted in Civil

Hospital at Baramati with burn injuries, and then she was shifted

to Budhrani Hospital, Pune. Thereafter about 10 days, he went to

police station to lodge complaint.

10. In his cross-examination he has admitted that he has

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not gone to the police station on his own accord, but when police

came to his house, he went to lodge complaint. In his cross

examination he has also admitted that in the complaint he has not

stated that he gave Rs.10,000/- to P.W.3 Firoz to give it to

respondent No.1. He has also not stated in the complaint that

Ruksana told him that respondent No.1 was demanding

Rs.20,000/- to take a room on rent. According to his evidence,

after the marriage, Ruksana, has completed her graduation in

Arts.

11. Then there is evidence of P.W.2 Haimabi, the mother

of Ruksana, who has also deposed about demand of Rs.5,000/-

for purchase of sewing machine. Her husband gave respondent

No.1 an amount of Rs.2,500/- at the hands of their son Firoz. She

has then deposed about further demand of Rs.20,000/- for

purchase of tempo and her husband gave Rs.10,000/-. Even then

there was harassment to her daughter.

12. The evidence of P.W.3 Firoz is only on the point of that

he had given amount of Rs.2,500/- to respondent No.1. According

to his evidence, Ruksana never complained to him or never talked

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with him about demand of money or harassment or cruelty. He

has further deposed that Ruksana never talked to his parents also

in his presence about the torture and demand.

13. P.W.4 Javed, the brother of Ruksana, has deposed

about giving of some amount to respondent No.1 and respondent

No.1 asking him to give message to his father to send more

amount. He has also not deposed anything about harassment or

ill-treatment to Ruksana at the hands of respondent No.1.

14. Similarly P.W.5 Mumtaj the wife of P. W. 4 Javed has

also not stated anything about harassment or ill-treatment to

Ruksana. She has categorically stated that Ruksana never told

her of any torture to her and in her presence Ruksana never told

her husband or did not talk with her husband about such torture or

ill-treatment. It is pertinent to note that this witness along with her

husband P.W.4 Javed had gone to the house of Ruksana on

14.11.1998 that is on the very day of incident. But according to

her evidence at that time Ruksana has not stated anything about

ill-treatment or harassment.

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15. Thus, there may be some evidence about the demand

of money, but as regards harassment, ill-treatment or cruelty at

the hands of respondents, to meet this demand, there is no

consistent, cogent or corroborating evidence. Apart from the

absence of evidence of any independent witness, even the

evidence of family members is not corroborating to each other.

16. It is pertinent to note in this context that P.W.1 Hanif

has also stated in his cross-examination that his brother-in-law

Alamgir narrated the contents of the complaint to P.S.O. and he

had simply signed on the said complaint.

17. There is delay of five days in lodging complaint.

Ruksana was admitted in the Hospital for burn injuries on

14.11.1998 and she succumbed to the burn injuries on

15.11.1998. During this period, no effort was made to record her

dying declaration. Even the F.I.R. was not lodged immediately,

but it was lodged only 19.11.1998. The explanation offered that

P.W.1 assumed that police had taken action as police had made

enquiry with him at Pune, does not appear to be convincing,

especially in the light of his admission that his brother-in-law

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Alamgir has given the contents of F.I.R. and he has merely signed

it. Ruksana’s brothers, P.W.3 Firoz, P.W.4 Javed and sister-in-

law P.W.5 Mumtaj are not saying anything about disclosure of the

harassment or ill-treatment by Ruksana to them or in their

presence to their parents.

18. Even as regards the cause of death, the medical case

papers and postmortem report show that history was given of

accidental burns due to bursting of stove. At the spot, the stove,

which has turned blackish on account of burst was also found

and seized. There may be some substance in the submission

advanced by learned APP that the extent of injuries and the fact

that they were on all over body including back and face, may not

support the case of accidental burns, but there is no evidence, as

rightly observed by trial Court, that it was a case of suicidal burns.

19. The letters which are produced on record by the

respondents in their statement recorded under Section 313 of

Code of Criminal Procedure, go to show that Ruksana was

happily married. Admittedly she has completed her graduation

after marriage. The letters also show that respondents were taking

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care of her. The contents of letters reveal that at the instance of

her husband she was intending to complete B.Ed also. Therefore,

apparently there does not appear to be any reason for her to

commit suicide. In the letter written by Investigating Officer

produced at Exh.38 dated 30.11.1998 also the Investigating

Officer P.W.6. PSI Andhare, has stated that it was a case of

accidental burns. Hence, as rightly observed by trial Court, it

becomes difficult to accept the case of suicidal burns. The

possibility of burns can be accidental as well as suicidal and here

the evidence on record does not rule the possibility of accidental

burns. Even the Investigating Officer, has also proceeded on that

possibility by writing letter Exh.38. Therefore, in such situation

when two inferences are possible, as the inference which is

favourable to the respondents/accused needs to be drawn, the

trial Court has drawn such inference. The view adopted by the trial

Court which is, thus, plausible and possible view, it cannot be

disturbed in the appeal against acquittal.

20. The law is well settled that unless the view adopted by

the trial Court is perverse meaning thereby it is not at all possible

for any reasonable prudent man to adopt such view, and such

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view is not based on the evidence on record, then only appellate

court should be justified to interfere in the judgment against

acquittal. The reasons for the same are two-fold; first reason is

that the presumption of innocence which is lying in favour of the

accused is further strengthened by his acquittal by the trial Court

and the second reason is that the trial Court has an added

advantage of observing the demeanor of the witnesses at the time

of trial while recording their evidence which benefit the appellate

Court is not having and therefore, if the view adopted by the trial

Court is plausible and possible view, the Appellate Court should

be slow in interfering with that view, in an appeal against acquittal.

21. Here, in this case no doubt the death of Ruksana was

definitely an unfortunate and tragic one, but as the prosecution

has failed to prove beyond reasonable doubt that the cause of her

death is suicidal one, and it was on account of the demand and

cruelty meted out to her by the respondents, the benefit of doubt

extended to them by the trial Court cannot be taken away in this

appeal. Hence the appeal stands dismissed.

[DR.SHALINI PHANSALKAR-JOSHI, J.]

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