Bombay High Court Dattatraya Kundlik Gund-vs-The State Of Maharshtra on 16 April, 1999
Equivalent citations:1999 (4) BomCR 21, (1999) 2 BOMLR 641, 1999 (3) MhLj 149
Author: V Sahai
Bench: V Sahai, M R Desai

ORDER

Vishnu Sahai, J.

1. Through this appeal the appellant challenges the Judgment and Order dated 7th November, 1992 passed by the 4th Additional Sessions Judge, Solapur, in Sessions Case No. 89 of 1992, convicting and sentencing him in the manner stated hereinafter:

i) under section 306 I.P.C. to undergo 7 years rigorous imprisonment and to pay a fine of Rs. 1,000/- in default rigorous imprisonment for 1 year;

ii) under section 498A I.P.C. to undergo 3 years rigorous imprisonment and to pay a fine of Rs. 1,000/- in default rigorous imprisonment for 1 year; and

iii) under section 304B I.P.C. to undergo 5 years rigorous imprisonment and to pay a fine of Rs. l,000/- in default rigorous imprisonment for 1 year;

The substantive sentences of the appellant were ordered to run concurrently.

We may mention that along with the appellant three other co-accused persons viz. Kundalik Narayan Gund, Tanaji Kundalik Gund and Anusaya Kundalik Gund; father, brother and mother respectively of the appellant were also tried, but they have been acquitted, vide the impugned judgment and the State of Maharashtra has not challenged their acquittal by preferring an appeal under section 378(1) Cr.P.C. We also feel it pertinent to mention that we cannot restrain ourselves from expressing our indignation about the lamentable ignorance on the part of the learned trial Judge regarding the sentence to be awarded for the offence under section 304B I.P.C. The said section pertains to dowry death and provides that a person committing the offence of dowry death shall be punished with imprisonment for a term, which shall not be less than 7 years, but may extend to imprisonment for life. On the teeth of the said provision, the learned trial Judge committed an illegality in imposing a substantive sentence of only 5 years R.I. on the appellant for the offence under section 304B I.P.C. Our first reaction was to issue a notice to the appellant to show cause as to why his sentence under the said count be not enhanced; but we desisted from doing this because nearly 7 years have passed since the judgment of conviction was passed by the trial Court and though the State of Maharashtra had a remedy to prefer an appeal for enhancement of sentence under section 377(1) Cr.P.C. it has not availed of the same.

2. In short the prosecution case runs as under:-

The deceased Rajashri was the daughter of the informant Abhimanyu Prabhu Babar P.W. 2, a resident of village Pokharapur, taluka Mohol in the district of Solapur. On 22-1-1991 she was married to the appellant in village Parmeshwar, Pimpri. At the time of marriage the informant gave two pairs of clothes and Rs. 6001/- to the appellant in pursuance of an agreement between the parties. After the marriage Rajashri went to village Aundi and started living with the appellant, her father-in-law Kundalik Narayan Gund, her mother-in-law Anusaya Kundalik Gund and her brother-in-law Tanaji Kundalik Gund. On the occasion of Gudi Padava festival (which falls some times in the month of March) Rajashri came to the informant’s house weeping. She told him and other members of the family that the appellant and the acquitted accused were demanding two tolas of gold and a television set and in order to pressurize her to fulfill the demand used to ill treat her. The informant asked Rajashri to bear. He brought back Rajashri to the house of the appellant.

Thereafter 15 to 20 days later when the informant went to the house of the appellant Rajashri complained to him that the appellant and the ac- quitted accused were ill-treating her since the demand of gold and a television set had not been met. She also told him that they never used to give her food and used to beat her. The informant advised the appellant and the acquitted accused to treat her properly and promised to fulfill their demand.

One month later the informant went to the house of the appellant and on that occasion Rajashri told him that on account of his failure to meet the demands of the appellant and others her ill-treatment was continuing at their hands. The informant again advised them to treat her properly and reiterated his promise to fulfill their demands.

On 25-7-1991 at about 10.30 to 11 p.m. when the informant was at his house Rajashri’s father-in-law Kundalik came and told him that Rajashri had slept inside the house by fixing the iron chain on the door from inside. Consequently the informant along with his father-in-law Sopan Patil, Subhadrabai P.W. 7, and Mandabai P.W. 8 and some others went to the house of appellant in village Aundi. They found the door latched from inside. When they failed to open the door they broke open the same. Thereafter they found the burnt corpse of Rajashri inside the room. They also found a tin of kerosene, match box, burnt clothes and some pieces of bangles lying there.

3. The evidence of the informant Abhimanyu Babar P.W. 2 shows that thereafter he went to Mohol Police Station and lodged his F.I.R. in the early morning of 26-7-1991 at 4 a.m. It was recorded by police constable Tatya Gore P.W. 6.

4. The investigation was conducted in the usual manner by P.S.I. Bhau Mahadeo P.W. 9 of Mohol Police Station. On 26-7-1991 he prepared the inquest panchanama of the corpse and spot panchanama of the place of the incident, wherefrom he recovered mangalsutra beeds, match box, kerosene tin etc. The same day he recorded the statement of 7 witnesses. On 30-7-1991 he sent the seized phial of viscera to the chemical analyst at Pune through constable Bharat Shinde P.W. 5. On 16-8-1991 after completing the investigation he submitted the chargesheet.

5. Going backwards the autopsy on the corpse of deceased Rajashri was conducted on 26-9-1991 by Dr. Dhanapal Ainapure P.W. 3 who found on it the following ante mortem injuries:

(1) 3rd degree burns over head and neck (9%)

(2) 3rd degree burns on Rt upper limb (9%)

(3) 3rd degree burns on left upper limb (9%)

(4) 3rd degree burns on ant. part of chest and abdomen (18%)

(5) 3rd degree burns on post part of the chest and 2nd to 3rd degree burns over back, both combined (18%)

(6) 3rd degree burns on thighs anterior and 2nd to 3rd degree burns on posterior aspect, upper 2/3rd only of both thighs 2nd to 3rd degree on posterior aspect, upper 2/3rd only of both thighs (24%);

(7) Perenal burn (1).

Dr. Ainapure preserved viscera and burnt skin for analysis. On receipt of viscera report the opined that Rajashri died on account of shock due to severe burns (88%) sustained by her.

6. The case was committed to the court of sessions in the usual manner where the appellant was charged on the counts on which the learned trial judge found him fuilty. He pleaded not guilty to the charges and claimed to be tried.

7. During trial in all the prosecution examined 9 witnesses. There is no eye-witness of the incident and the main plank of the prosecution evidence on which the conviction of the appellant is founded comprises of the statement of the informant Abhimanyu Prabhu Babar P.W. 2, and those of Subhadrabai P.W. 7 and Mandabai P.W. 8.

8. The learned trial judge believed the sentenced him in the manner stated above. But to our dismay he acquitted the three co-accused who were tried along with the appellant, despite the fact that there was sufficient evidence against them. We feel disturbed that the State of Maharashtra has not challenged their acquittal by preferring an appeal under section 378(1) Cr.P.C. In the absence of the same and in view of the embargo contained in section 401(3) Cr.P.C. which prohibits the High Court from converting a finding of acquittal into one of conviction in exercise of its revisional power we have been reduced to mute on lookers of their acquittal. We are constrained to observe that this is not the first occasion wherein in a deserving case the State of Maharashtra has not preferred an appeal against acquittal. There have been a galore of such occasions.

9. We have heard Mr. P.N. Patil for the appellant and Mrs. Usha Kejeriwal for the respondent. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; the statement of the appellant recorded under section 313 Cr.P.C.; and the impugned judgment. After utmost circumspection we are constrained to observe that in our view this appeal is devoid of substance and deserves to be dismissed.

10. As mentioned above the main plank of prosecution evidence on which the conviction of the appellant rests comprises of the evidence of Abhimanyu Prabhu Babar P.W. 2, his cousin brother’s wife Subhadrabai P.W. 7 and his neighbour Mandabai P.W. 8.

We make no bones in observing that it would not be safe to accept the evidence of Subhadrabai and Mandabai. Both these witnesses in their substantive evidence stated that when on the occasion of Gudi Padava Rajashri came to the informant’s house they invited her for tea and asked her as to how she was being treated at her in-law’s house and she disclosed that they were demanding two tolas of gold and a television set from her parents and for their failure to meet the said demands were ill-treating her. However, to our dismay we find that when during cross-examination they were asked whether they had mentioned in their statements under section 161 Cr.P.C. the aforesaid facts they replied in the negative. In our view since in their – statements under section. 161 Cr.P.C. they have not mentioned the said facts, and for the first time mentioned them in their statements in the trial Court, it would not be safe to accept their evidence.

11. This leaves us with the statement of Abhimanyu Prabhu Babar P.W. 2, the father of Rajashri. We are alive to the fact that being her father he is an interested witness and we should approach his evidence with caution. After exercising the utmost caution in evaluating his testimony we are of the view that it inspires confidence.

In para 2 we have set out the prosecution case on the basis of recitals contained in his evidence and consequently do not intend reiterating them in detail. In short he stated that the marriage of Rajashri was performed with the appellant on 22-1-1991 and as per the terms of settlement he had given the appellant two pairs of clothes and Rs. 6001/- in cash. After the marriage she started living with the appellant, her in-laws and her brother-in-law in village Aundi. On 3 or 4 occasions when she visited her (the details have been furnished in para 2); she complained to him about the ill-treatment meted out to her by the appellant, her in-laws and her brother-in-law on account of non-fulfilment of their demand of two tolas of gold and a television set. The evidence of Abhimanyu shows that on two or three occasions he went to the house of the appellant and asked him, his parents and his brother to treat her nicely and promised them that he would fulfill their demands but their treatment towards Rajashri remained unchanged.

He stated that on 25-7-1991 Kundalik, the father-in-law of Rajashri came and informed him that Rajashri had slept inside the house and had latched the door of the room from inside. On the said information he along with his father-in-law Sopan Patil, Subhadrabai P.W, 7, Mandabai P.W. 8. and some others went to the appellant, house in village Aundi; broke open the door of the house; and discovered thereafter the burnt corpse of Rajashri.

12. We have gone through the statement of Abhimanyu meticulously and analytically. In our view it inspires confidence. It should be borne in mind that Abhimanyu Babar had no rancoar or ill-will against the appellant who was his own son-in-law. In our view unless Rajashri on a number of occasions had mentioned about the ill-treatment meted out to her by the appellant, his parents and his brother on his (Abhimanyu’s) failure to provide two lakhs of gold and a television set, he would not have falsely deposed about it.

13. It is pertinent to point out that assurance to the statement of Abhimanyu Baber is lent by the fact that in the F.I.R. of the incident, which was lodged very promptly at 4 a.m. on the morning of 26-1-1999, the details with respect to the demand of two tolas of gold and a television set by the appellant, his parents and his brother and their ill-treatment of her since Abhimanyu could not fulfill have been mentioned. Criminal Courts attach great importance to the prompt lodged F.I.R. because the same substantially rules out chances of improvements