SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Vilas Shankar Kawale vs The State Of Mah.Thr. Pso Bhandara on 5 June, 2018

Appeal.327.04
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 327/2004

Vilas s/o Shankar Kawale
Aged about 30 years occu: Agriculturist
R/o Kesalwada (Pawar)
Police Station Lakhani, Tah.Sakoli
Dist. Bhandara. .. APPELLANT

versus

The State of Maharashtra
Through the Police Station Officer
P.S. Lakhani Tah.Sakoli, Dist. Bhandara. .. RESPONDENT

……………………………………………………………………………………………………………………………..
Mr. H.S. Rahangdale, Advocate for the appellant
Mr. H.D. Dubey, Additional Public Prosecutor for respondent-State
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATED : 5th June, 2018

ORAL JUDGMENT:

1. This Appeal has been directed against the judgment and order dated

5.5.2004 passed by learned 1st Ad-hoc Additional Sessions Judge, Bhandara in Sessions

Trial No.43/2001, convicting the appellant for offence punishable under section 307 IPC

and sentencing him to suffer RI for three years and to pay a fine of amount of Rs. 3000/-

in default to suffer RI for six months. The appellant was further convicted for the offence

punishable under section 498A of IPC and was sentenced to suffer R.I. for one year and

to pay a fine of Rs. 5000/- in default to suffer R.I. for nine months.

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::

Appeal.327.04
2

2. The prosecution case in brief is that, the victim Smt.Varsha d/o Anandrao

Pagare was residing with her parents at village Soni. She was married with the appellant

on 14.5.1999. After marriage, Varsha started residing with the appellant at village

Kesalwada (Pawar), Tq. Dist.Bhandara. After the marriage, for a couple of months the

appellant behaved with the victim properly, however, after a period of about six months

he started ill-treating the victim saying that she had not brought sufficient dowry at the

time of the marriage, that is, she has not brought the amount of Rs. 1000/-, gold ring

and bed from her parents. The appellant used to beat victim and quarreled with her on

the said count. Victim-Varsha went to her father’s place at village Soni on 25.12.2000.

She stayed with her father for about one-and-a-half months as she was not keeping

good health. On 3.2.2001 Varsha returned to her matrimonial home along with her

brother Arvind and her sister’s husband-Motiram Urkude. It is the case of the

prosecution that when the brother of the Varsha had gone out, the appellant asked

Varsha as to why she had stayed in the house of parents for such a long time. He

taunted that there may be several husbands at the place of her parents and, therefore,

she must have stayed there. The appellant then asked Varsha to leave his house. The

appellant then assaulted Varsha by giving fists and kick blows. Varsha did not inform

this fact to Arvind and her sister’s husband- Motiram as she was willing to cohabit with

the appellant. On the same day, at about 9.00 pm, the appellant assaulted Varsha by

fists and kick blows on the count that she had stayed at her parent’s house for about

one-and-a-half months. On 4.2.2000 at about 10.00 am Varsha served food to her

brother and sister’s husband-Motiram and other family members. At about 12 o’ clock

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
3

her brother Arvind and sister’s husband-Motiram returned to their village. In the afternoon

when the appellant was sleeping, Varsha asked her husband to have a lunch. At that

time, the appellant got annoyed and asked Varsha as to why she had touched him. The

appellant asked Varsha to return to her parents village where her so called husbands

were residing. On this, Varsha retorted whether husband resides at the village of parents

of woman. On this, the appellant started abusing Varsha and slapped her. The appellant

then brought a kerosene bottle from the kitchen and poured the same on the left

shoulder of Varsha and set her on fire by igniting the matchstick. The appellant also

threatened her that he would see that she dies. Due to the said act of the appellant

Varsha sustained burn injuries on her left ear, neck, right thigh and right hand. As Varsha

was raising an alarm, accused no.4-Ganesh increased the volume of radio so that the

her shouts should not be heard by the neighbourers. The appellant did not allow her to

talk with others. On 6.2.2001 her sister’s husband Ghanshyam Lanjewar came to the

house of the appellant at about 4.30 p.m. Varsha narrated the incident of 4.2.2001 to

him. Ghanshyam then informed the said incident to the father of the victim-Anandrao

Pagare. On 7.2.2001, one Najuk Bhagat, who is the relative of Varsha came to know

about the incident of burning. He informed about the said incident to the mother of

Varsha. Varsha informed Najuk that the appellant had set her on fire as she did not

bring the amount of Rs.1000/-, a gold ring, bed, at the time of marriage. On 10.2.2001

Anandrao along with his son-in-law Ghanshyam, Subhash Fulbandhe and Najuk Bhagat

came to the house of the appellant at Kesalwada. On enquiry, Varsha informed her

father that the appellant had asked to bring the amount of Rs.1,000/- from her parents

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
4

house and when she refused, the appellant quarreled with her and poured kerosene on

her person and set her ablaze. Varsha then proceeded to the Police Station along with

them and lodged her complaint (Exh.16). On the basis of the said complaint, police

registered the offence and sent Varsha for medical examination. The police prepared the

spot panchnama and took charge of the clothes of the victim as well as kerosene lamp

and matchbox from the place of the incident. After due investigation, charge-sheet was

filed by the police in the Court of learned JMFC, Sakoli. The case was committed to the

Court of Sessions. The charge was framed by the learned trial Judge. After hearing both

sides and on analysis of the evidence, the learned trial Judge convicted the appellant as

aforesaid.

3. Heard Shri H.S. Rahangdale,learned counsel for the appellant and shri

H.D. Dubey, the learned Additional Prosecutor for the respondent. With their assistance,

I have gone through the entire record and proceedings of the case.

4. The prosecution has mainly relied upon the testimony of PW1-Varsha,

who is the complainant, PW 5-Anjira Pagare, who is the mother of PW1-victim and PW3-

Anandrao Pagare, father of the victim. PW1-Varsha deposed that for about two months

the appellant treated her properly, thereafter he started beating her on the ground of

bringing insufficient dowry. She further stated that after 6/7 months her father came to

fetch her. She accompanied her father to her parents house; she stayed in her parents

house for about one-and-a-half months. Thereafter accompanied with her brother she

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
5

reached her matrimonial home. At that time, when her brother went our for a walk at

about 4.00 pm in the village, the appellant beat her. However PW1 did not disclose to her

brother about the said beating at the hands of the appellant as she intended to cohabit

with the appellant. The appellant again beat her in the night as he was suspecting her

character. On the next day, her brother returned to his village. On 4th February,2001, at

about 2.00 pm when the appellant was sleeping, PW1 called him for lunch. At that time

the appellant got annoyed and he started beating PW1 by fists and kick-blows. The

appellant then asked her as to why she touched him and slapped her. The appellant told

her to go other husbands who are residing at the place of her parents. On this PW 1 told

him whether there are husbands at the house of her father. On hearing this, the appellant

abused her in a filthy language. PW1 asked the appellant not to abuse her. The appellant

again started beating her. He took her in the kitchen, poured kerosene on her and set her

on fire by igniting the matchstick. PW1 received injuries on her left ear, below the neck,

left hand and left thigh. She removed her saree which was burning. She somehow

managed to extinguish the fire by rolling on the ground. At that time, her brother-in-law

Ganesh (original accused No.4) increased the volume of the radio as she was shouting

for help and he thought that her shouts should not be heard by the neighbourers. PW 1

became unconscious. After about 4 days, her elder sister husband Ganshyam visited

her house. She narrated the incident to him. Ghanshyam informed the father of PW1

about the said incident. On 10.2.2001 her father visited her house. PW1 along with her

father visited the Police Station, Lakhani and lodged her complaint (Exh.16). PW1

further deposed that she performed the second marriage some time in 2003. During the

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
6

cross-examination PW 1 admitted that she had not obtained divorce from the appellant.

PW 1 admitted that she did not inform the appellant about her illness. PW 1 stated in

the cross-examination that on the date of the incident, the other accused persons were

also present. She denied that she herself poured kerosene on her person and set herself

on fire. She stated that as she regained consciousness, she saw that crushed potatoes

were applied at the place of burn injuries, near her neck and ear. She admitted that

the fact that she became unconscious after the incident of burning has not been

mentioned in her report.

5. The meticulous scrutiny of testimony of PW1-Varsha shows that the

incident had taken place on 4th February 2001.The testimony of PW1 shows that she

has not elaborated the ill-treatment, the reason for ill-treatment at the hands of the

appellant. She simply stated that the appellant used to beat her by fists and kick blows

on the ground that her parent did not give sufficient dowry like bed, gold ring etc. The

testimony of PW1 in this regard is not consistent and convincing. She has not specified

the instances as to when exactly the appellant used to beat her on this ground.

Furthermore, PW1 has not stated whether she had informed her parents about the said

demand. It is not clear from the testimony of PW1 as to when her brother was present

in the village and when he had come to fetch her at her house, as to when the

appellant assaulted her and why she had not disclosed the incident to her brother

immediately. Similarly, it is also not clear as to when the incident of burning had taken

place on 4th February,2001, why PW1 has not disclosed the said incident either to her

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
7

father or her relatives immediately. According to PW1 after four days she reported the

incident to her elder sister’s husband-Ghanshyam who visited her house. In that case,

Ghanshyam should have taken PW1 immediately to the hospital for treating her burn

injuries, so also he had not taken her to the Police Station immediately to lodge the

complaint against the appellant, as such, a serious incident had taken place. It is

noticed that there is a delay in lodging the complaint by PW1-Varsha and no plausible

explanation has come forward in that regard. The testimony of PW1 does not inspire

confidence as such.

6. At this juncture, it would be advantageous to go through the medical

report of PW1. PW 8- Dr.Rajesh Dardale, who examined PW1-Varsha on 10.2.2001.

PW 8 found burn injuries 4.5% over left ear and neck and abrasion on medial aspect of

right thigh upper aspect of size 1.5 cm x 2.5 cm. According to PW8, injury No.1 was

caused by burn and injury no.2 was caused by her by hard and rough object; the age

of injuries was within 7 to 10 days. Thus, the testimony of PW8 indicates that PW1 had

received the burn injuries on her neck and left ear which was 4.5%. In this regard, if the

testimony of PW1 is compared with the medical evidence, according to PW1, the

appellant poured kerosene on her body and set her on fire by igniting the matchstick. If

that was the case, PW1 could have received burn injuries all over her body. However

no such injuries were found on the body of PW1. The said exaggerations, embellishments

and improvements in the version of PW1 go to the root of the case and makes her

version doubtful. Thus, the testimony of PW1 does not inspire confidence as such.

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::

Appeal.327.04
8

6. The testimony of PW3-Anandrao Pagare, the father of PW1, shows that

initially, for a period of one year Varsha from the date of marriage Varsha was treated

properly by the appellant. On 25.12.2005, he went to fetch his daughter Varsha. On this

count, appellant quarreled with Varsha. He took Varsha with him to his house at his

village. Varsha stayed there for about one-and-a-half months as she was sick. In first

week of February 2001, one Najuk Bhagat informed him that the appellant had quarrelled

with Varsha and set her on fire by pouring kerosene on her body. On 10.2.2001 he

proceeded to the house of the appellant along with his brother-in-law Subhash

Fulbandhe, Najuk Bhagat, Motiram Urkude and Ghanshyam Lanjewar. On enquiry with

PW1 she informed that the appellant has beaten her. The appellant had asked her to

bring Rs. 1000/- when she refused, the appellant poured kerosene and set her by

igniting her with a matchstick. PW3 stated that the appellant used to suspect the fidelity

of his wife. PW3 then accompanied his daughter to the Police Station and the daughter

lodged the complaint against the appellant.

7. The testimony of PW 5-Anjira Pagare, the mother of PW1 shows that in

December 2000, her husband brought Varsha to her house. Her daughter stayed in her

parental house for about one-and-a-half months as she was sick during her stay. Varsha

informed that the appellant had asked her to bring an amount of Rs. 1000 or else he

would beat her. Her son Arvind and her son-in-law Ganshyam reached the house of the

appellant in order to fetch her. They stayed there for a night. At the house of Varsha

after about 8 days Najuk Bhagat went to the house of the appellant and he came to

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
9

know about the incident. On the next day, her husband proceeded to the house of the

appellant along with his son in law Ghanshyam and her brother Subhash. Thereafter the

complaint was lodged by Varsha. Significantly, in the cross-examination PW5 fairly

admitted that at the time of marriage there was no demand of dowry from the appellant.

Significantly, every harassment or every type of cruelty does not attract the provisions

u/s 498A of the IPC. For establishing the offence u/s.498A, the prosecution has to prove

that the beating or harassment was with a view to coerce the woman to commit suicide

or fulfill the illegal demand of husband or in-laws.

8. The testimony of PW 3-Anandrao and PW 5-Anjira, no doubt,

corroborates the testimony of PW 1. However there is no convincing evidence on record

to show that the appellant used to beat PW1-Varsha and asked her to bring an amount

of Rs. 1000 from her parents. From the testimony of PW 5, it is amply clear that the

appellant did not demand any dowry at the time of marriage. In view thereof there is no

reason as to why the appellant beat Varsha for the said amount. Significantly, PW 5

mother of Varsha, did not state that the appellant used to beat Varsha and demand

dowry like bed and gold ring etc. It is not clear from the testimony of PW3 as to how

he came to know from Najuk Bhagat about the incident of appellant setting on fire

Varsha. It is worthy to note that Najuk Bhagat has not been examined by the prosecution.

The prosecution has failed to establish the fair link in that regard. There is no convincing

evidence to show that the appelant continuously ill-treated his wife in any manner,

insisted her to bring the said amount of Rs.1000/- from her parents as she failed to do

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::
Appeal.327.04
10

so, the appellant set her on fire.

9. In view of the facts and circumstances, it is held that the prosecution has

utterly failed to prove its case beyond reasonable doubt. The evidence of PW1, PW3 and

5 does not inspire confidence at all. The medical evidence does not corroborate with the

testimony of PW1. The medical evidence does not support the prosecution case. The

testimony of the Medical Officer does not show that the burn injury was sufficient to

cause death. There is no convincing evidence on record to show that the appellant had

intention to cause death of Varsha. The prosecution failed to establish that the appellant

treated his wife with cruelty. Thus, the entire case of the prosecution is under shadow of

doubt. As such, the judgment and order delivered by the learned trial Judge needs to

be quashed and set aside and the appeal needs to be allowed. Hence the following

order:-

ORDER:

i) Criminal Appeal No.327/2004 is allowed.

ii) The impugned judgment and order of conviction and sentence delivered by

learned 1st Ad-hoc Additional Sessions Judge, Bhandara in Sessions Trial No. 43/2001 is

hereby quashed and set aside.

Iii) The bail bonds of the appellant shall stand cancelled.

JUDGE

sahare

::: Uploaded on – 11/06/2018 12/06/2018 00:36:38 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2018 SC and HC Judgments Online at MyNation
×

Free Legal Help just WhatsApp Away

MyNation HELP line

We are Not Lawyers but No Lawyer will give you Advice like We do

Please CLICK HERE to read Group Rules, If You agree then JOIN HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DVACT), Divorce, Maintenance, Alimony, Child Custody, HMA24, 125 CrPc, 307, 313, 376, 377, 406, 420, 506, 509 etc

Web Design BangladeshWeb Design BangladeshMymensingh