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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