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The State Of Maharashtra vs Shantabai Kabir Joshi & Anr on 20 January, 2018

APPEAL-1301-2002.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1301 OF 2002

THE STATE OF MAHARASHTRA )…APPELLANT

V/s.

1) SHANTABAI KABIR JOSHI )
2) SANJAY KABIR JOSHI )…RESPONDENTS

Mr.S.V.Gavand, APP for the Appellant – State.

Mr.Nitin Sejpal a/w. Mrs.Pooja Sejpal, Advocate for Respondents.

CORAM : A. M. BADAR, J.

DATE : 20th JANUARY 2018

JUDGMENT :

1 By this appeal, the appellant / State is challenging the

judgment and order dated 18th May 2002 passed by the learned

Ad-hoc Additional District and Sessions Judge, Thane, in Sessions

Case No.490 of 2001, thereby acquitting respondents/accused of

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

the Indian Penal Code.

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2 According to the prosecution case, Vandana Sanjay

Joshi married respondent no.2 Sanjay Joshi two years prior to the

incident in question. Out of this wedlock, she gave birth to a

child. Vandana was residing with her husband – respondent

no.2/accused Sanjay Joshi and her mother-in-law i.e. respondent

no.1/accused Shantabai Joshi at Turbhegaon in Navi Mumbai.

3 According to the prosecution case, both

respondents/accused used to ill-treat Vandana by suspecting her

character. Respondent no.2/accused Sanjay Joshi had purchased

a plot from maternal uncle of Vandana by paying consideration of

Rs.4 lakh. This transaction was not approved by respondent

no.1/accused Shantabai. She was insisting her son respondent

no.2/accused Sanjay Joshi to cancel the said transaction and get

the amount back from the maternal uncle of Vandana. On this

count also, respondents/accused used to harass Vandana.

4 On 25th July 2001, in the morning hours when

Vandana was fetching water, respondent no.1/accused Shantabai

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obstructed her by uttering that house does not belong to Vandana

and everything belongs to respondent no.1/accused Shantabai.

When respondent no.1/accused Shantabai left the house for going

to market, Vandana poured kerosene on her person and set herself

ablaze. Respondent no.2/accused Sanjay doused the fire by

pouring water. Vandana was taken to MGM Hospital at Vashi. On

getting information of admission of Vandana to hospital, PW6

Subhash Kokate, Police Sub-Inspector, got her statement (Exhibit

26) recorded through PW1 Dr.Rajesh Iyer, Special Executive

Magistrate. On the basis of that statement, Crime No.102 of 2001

for the offence punishable under Section 498A of the Indian Penal

Code came to be registered against respondents/accused persons.

However, during the course of her medical treatment, Vandana

succumbed to burn injuries on 28th July 2001, and that is how,

Section 306 of the Indian Penal Code was added to the case diary

of the crime on completion of investigation. Both

respondents/accused persons were charge-sheeted for offences

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

Indian Penal Code.

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5 During the course of the trial, the prosecution has

examined in all six witnesses to prove offences alleged against

respondents/accused persons. Respondents/accused persons did

not enter in defence. After considering the evidence of

prosecution, the learned trial court by the impugned judgment

and order was pleased to acquit respondents/accused persons of

offences alleged against them.

6 I have heard Shri S.V.Gavand, the learned APP

appearing for the appellant/State. He argued that evidence

adduced by the prosecution demonstrated that Vandana was

subjected to cruelty by her husband/respondent no.2/accused

Sanjay and mother-in-law/respondent no.1/accused Shantabai,

but there is no cross-examination of prosecution witnesses to

demonstrate that Vandana was a short tempered lady who

indulged in self effacement. Her relatives are pointing out cruel

treatment meted out to her by the accused persons by suspecting

her character as well as for getting refund of Rs.4 lakh. The

learned APP further argued that the learned trial court considered

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alleged suicidal note written by deceased Vandana which was not

even proved during the course of evidence.

7 Per contra, the learned advocate appearing for

respondents/accused persons justified the impugned judgment

and order of acquittal by arguing that vague and general

allegations are made against the accused persons. There is no

evidence to point when incident of cruelty took place and

statement of independent witnesses as well as neighbours are not

forthcoming to point out guilt of the respondents/accused

persons.

8 I have carefully considered the rival submissions and

also perused the record and proceedings including deposition of

prosecution witnesses as well as documentary evidence placed on

record.

9 There is not much dispute about suicidal death of

Vandana Sanjay Joshi occurring on 28th July 2001. The defence

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has admitted the report of postmortem examination of dead body

of Vandana Joshi (Exhibit 17) which shows that Vandana died

because of shock following burns. Certificate at Exhibit 16

recording cause of death of Vandana, inquest notes Exhibit 13 are

also the documents which are admitted by the defence. These

documents point out that Vandana sustained burn injuries and

died because of the resultant shock. Spot panchnama at Exhibit

10 is also a document not disputed by the defence. This spot

panchnama shows that the incident of sustaining burns by

Vandana took place on 25th July 2001 in the kitchen of her

residential house. The floor of the kitchen was wet and smelling

kerosene. Burnt clothes were found in the kitchen. A can

containing about 3 litres of kerosene, a burnt matchstick as well as

a matchbox was also found in the kitchen. A chit allegedly written

by deceased Vandana was also found in the house. All these

articles were seized by the Investigator vide panchanama Exhibit

10. The spot of the incident does not reflect any material to infer

that Vandana sustained accidental burns. On the contrary, it is

defence of respondents/accused persons that Vandana is indulged

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in self effacement by pouring kerosene on her person. This is even

reflected from plea of her husband i.e. accused Sanjay Joshi.

Hence, it needs to be put on record that the prosecution has

established suicidal death of Vandana Sanjay Joshi occurring on

28th July 2001.

10 Now let us examine whether by this evidence,

prosecution has established that respondents/accused persons or

any of them had subjected Vandana to cruelty, and thereby,

instigated, provoked or encouraged her to commit suicide by

setting herself on fire.

11 It is case of the prosecution that dying declaration of

Vandana came to be recorded officially on the day of the incident

i.e. on 25th July 2001 itself through the Special Executive

Magistrate at MGM Hospital, Vashi, Navi Mumbai, in presence of

PW6 Subhash Kokate, Police Sub-Inspector. It is in evidence of

PW6 Subhash Kokate, Police Sub-Inspector, APMC Police Station,

Navi Mumbai, that on getting message from the MGM Hospital,

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Vashi, regarding admission of Vandana with burn injuries, he went

there. Then he came to know that Vandana is shifted to Sion

Hospital, Mumbai. Then, he went to Sion Hospital and

ascertained from the Medical Officer as to whether Vandana was

in a position to give her statement. Then, as deposed by PW6

Subhash Kokate, Police Sub-Inspector, he called the Special

Executive Magistrate Dr.Rajesh Iyer and in presence of the

attending Medical Officer, Special Executive Magistrate PW1

Dr.Rajesh Iyer interrogated Vandana and under dictation of the

Special Executive Magistrate, he took down the dying declaration

of Vandana Sanjay Joshi (Exhibit 26A).

12 Exhibit 26A – statement of Vandana Joshi, claimed to

have been recorded by PW6 Subhash Kokate, Police Sub-Inspector,

was considered as the First Information Report (FIR) and

accordingly, Crime No.I-102 of 2001 came to be recorded against

accused persons at APMC Police Station. This statement, on death

of Vandana Joshi, can be construed as her dying declaration. The

statement of deceased Vandana at Exhibit 26A is to the effect that

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after her marriage, her husband used to suspect her character. Her

husband – Sanjay Joshi had decided to purchase a plot of land

from her maternal uncle PW5 Ramnath Patil for a consideration of

Rs.4 lakh, but as her mother-in-law respondent no.1/accused

Shantabai Joshi had not approved the said transaction, her

husband respondent no.2/accused Sanjay Joshi used to harass her

for getting back the money. Deceased Vandana in her statement

Exhibit 26A has further stated that her husband used to assault

her. It is also disclosed in the statement at Exhibit 26A that in the

morning hours of 25th July 2001 when Vandana was fetching

water, her mother-in-law respondent no.1/accused Shantabai

obstructed her by uttering that everything in the house belonged

to respondent no.1/accused Shantabai Joshi. There was quarrel

and when respondent no.1/accused Shantabai left the house,

Vandana committed suicide.

13 Now let us consider whether explicit reliance can be

placed on the so called dying declaration at Exhibit 26A. As the

dying declaration is generally made in absence of the accused, and

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as the accused has no opportunity to cross-examine the declarant,

no explicit reliance can be placed on the dying declaration unless

and until it gains support and corroboration from other material

on record and unless and until its truthfulness is established.

14 PW1 Dr.Rajesh Iyer is the Special Executive Magistrate

on whose dictation, PW6 Subhash Kokate, Police Sub-Inspector,

has claimed to have written the dying declaration at Exhibit 26A.

Evidence of PW1 Dr.Rajesh Iyer, Special Executive Magistrate,

shows that he had received a telephonic call on 21st July 2001

from Sion Police station and therefore, he went to Sion Police

Station. At Sion Police station, statement of Vandana was read

over to him. PW1 Dr.Rajesh Iyer further deposed that he went to

Sion Hospital and saw Vandana. She was in a position to make a

statement. PW1 Dr.Rajesh Iyer claimed that he took down

statement Exhibit 9 of Vandana.

15 Careful scrutiny of PW6 Subhash Kokate, Police Sub-

Inspector and PW1 Dr.Rajesh Iyer, Special Executive Magistrate,

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unerringly point out that statement at Exhibit 26A dated 25 th July

2001 was not at all recorded in dictation of PW1 Dr.Rajesh Iyer.

Evidence of PW1 Dr.Rajesh Iyer shows that what was recorded by

him was statement at Exhibit 9. Exhibit 9 is not a statement but it

is a certificate dated 24th July 2001. This is a certificate issued by

PW1 Dr.Rajesh Iyer. Certificate at Exhibit 9 in handwriting of

Dr.Rajesh Iyer dated 24th July 2001 is to the effect that statement

of Vandana is true and it was shown to the relatives of Vandana,

who verified it to be true. PW1 Dr.Rajesh Iyer has not clarified as

to which statement of Vandana was found to be true by him.

Neither on 21st July 2001 nor on 24th July 2001, Vandana Joshi

was admitted to hospital at Sion. She sustained burns on 25 th July

2001 and was admitted initially to MGM Hospital, Vashi, and then

to Sion Hospital on 25th July 2001. Cross-examination of PW1

Dr.Rajesh Iyer, so also his answers to the court questions makes it

clear that he did not record any statement of deceased Vandana.

Statement of Vandana was already recorded when he visited the

hospital. It does become clear that in every probability,

subsequently, PW1 Dr.Rajesh Iyer, Special Executive Magistrate,

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had prepared certificate dated 24th July 2001 declaring that

statement made by Vandana to police is true, when infact, on 24 th

July 2001, the incident did not happen nor Vandana had any

occasion to make a statement to the police on 24 th July 2001.

PW6 Subhash Kokate, Police Sub-Inspector, so also, PW1 Dr.Rajesh

Iyer, Special Executive Magistrate, do not appear to be witnesses

of truth, but it is seen that the record has been created to show

that statement of deceased Vandana was got recorded through the

Special Executive Magistrate i.e. PW1 Dr.Rajesh Iyer. Hence, it

cannot be said that the prosecution has proved dying declaration

Exhibit 26A of deceased Vandana Joshi, allegedly recorded by

PW6 Subhash Kokate, Police Sub-Inspector through PW1 Dr.Rajesh

Iyer, Special Executive Magistrate.

16 The rest of the evidence, in order to establish cruelty

and resultant abetment, adduced by the prosecution is coming

through mouth of PW2 Narayan Bhagat – father, PW3 Bebitai

Bhagat – mother, PW4 Kishore Bhagat – brother and PW5

Ramnath Patil – maternal uncle of deceased Vandana.

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17 PW2 Narayan Bhagat had deposed that he visited

Vandana four months prior to the incident. At that time, she told

that accused no.2 Sanjay used to ill-treat her, beat her and was

suspecting her character. This witness further stated that Vandana

used to be ill-treated by accused no.1 Shantabai as Shantabai did

not like transaction of purchase of plot by accused no.2 Sanjay

from her relative and as accused no.1 Shantabai wanted to get

back the amount of Rs.4 lakh. As per version of PW2 Narayan

Bhagat, in his re-visit to Vandana, she told him about ill-treatment

and when he questions accused no.2 Sanjay, accused no.2 Sanjay

replied that he can do anything with Vandana.

18 PW4 Kishor Bhagat – brother of deceased Vandana had

deposed that four months prior to the incident at her house, his

sister told him that accused suspects her character and beats her.

PW4 Kishor Bhagat has claimed to have brought back Vandana to

her paternal house and has further deposed that thereafter,

accused no.2 Sanjay Joshi came and threatened that if Vandana is

not sent back, he would divorce her.

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19 PW3 Bebitai Bhagat - mother of the deceased deposed

that three or four months prior to the incident, Vandana told her

that her husband Sanjay was beating and her mother-in-law

Shantabai was harassing her by suspecting her character. As per

version of PW3 Bebitai Bhagat, at the hospital, Vandana told her

that her mother-in-law had asked her not to fetch the water as the

house belonged to accused Shantabai. This, according to PW3

Bebitai Bhagat, was the cause of sustaining burn injuries by

Vandana, as narrated by Vandana to her.

20 PW5 Ramnath Patil is relative of deceased Vandana

and he had settled the marriage. His evidence shows that

Vandana did not disclose anything to him but as she was found

weak, he questioned accused no.2 Sanjay as to why Vandana was

not taken to hospital. Upon that, accused no.2 Sanjay had told

him that it was his choice. PW5 Ramnath Patil has further

deposed that a plot of land was given to accused no.2 Sanjay for a

consideration of Rs.4 lakh and accused no.2 Sanjay was asked to

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return the said amount as his mother accused no.1 had not

approved the said transaction.

21 This is all that has been deposed against the

respondents/accused by the witnesses examined by the

prosecution to establish cruelty and abetment to a married woman

for indulging in self effacement. What was the type of ill-

treatment or cruelty meted out to Vandana by the accused persons

is not explained by the prosecution witnesses. They are merely

stating in a vague manner that Vandana was subjected to ill-

treatment by suspecting her character by the accused persons.

Vague allegations of beating are also made by these prosecution

witnesses. The evidence adduced by the prosecution further

shows that there was some transaction in respect of an immovable

property which was not approved by accused no.1 Shantabai.

What was the nature of ill-treatment to Vandana for getting back

the money involved in this transaction is also not explained by the

prosecution witnesses. Even if these averments are accepted as it

is, then also, they fall short of establishing legal cruelty to a

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married woman. The averments and allegations coming on record

from mouth of prosecution witnesses are not of such a nature

which could drive a married woman to commit suicide. On the

contrary, as seen from evidence of PW3 Bebitai Bhagat - mother

of the deceased, deceased Vandana has indulged in self effacement

because of petty quarrel with her mother-in-law i.e. respondent

/accused no.1 Shantabai on 25 th July 2001. The deceased is seen

to have been obstructed by respondent/accused no.1 Shantabai -

mother-in-law while the deceased was fetching water. Respondent

/accused no.1 Shantabai during that incident claimed that the

house belonged to her and everything in the house belonged to

her. This triggered Vandana to commit suicide by pouring

kerosene on her person. This suicide is not common course of

event and natural result of normal conduct of a human being.

The respondents/accused persons may be the reason for deceased

Vandana to commit suicide, but that does not depict abetment by

accused persons to her to commit suicide. The evidence on record

does not reflect any harsh or harmful conduct of required intensity

and persistence by the accused persons in treating deceased

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Vandana. The conduct of accused persons, as reflected from

evidence of prosecution, does not reflect any legal cruelty as

envisaged by explanation to Section 498A of the Indian Penal

Code.

22 To crown this all, the spot panchnama at Exhibit 10

recorded by the Investigator shows that on the scene of

occurrence, a chit written by deceased Vandana was found. That

chit is filed by the prosecution along with the charge-sheet. If the

said chit is perused, then it is seen that deceased Vandana has

stated that as she is fed up with her life, she is committing suicide

and nobody is responsible for her suicide. The chit allegedly

written by deceased Vandana categorically mentions that her

husband and her mother-in-law had not played any role in

commission of suicide by her and they are not guilty. The chit

further contains an averment that mother and father of the

deceased should not be held responsible for suicide. True it is,

that this chit filed was with the charge-sheet and and it was seized

from the spot of the incident by the Investigator is not proved, but

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it is well settled that unproved documents of the prosecution can

be relied by the accused for the purpose of his defence. The

Nagpur Bench of Bombay High Court in Sheo Prasad vs.

Emperor 1 which was subsequently relied by the Madhya Pradesh

High Court in Bharat
vs. State of Madhya Pradesh 2 had held

that documents of prosecution which remained unproved cannot

be utilized by the prosecution but it would be wrong to deny the

defence of its user. Such documents can be used by the defence, if

it supports the defence in any manner.

23 In the result, the prosecution has failed to establish the

cruelty and resultant abetment to deceased Vandana by accused

persons or any of them. Hence, no infirmity can be found in the

impugned judgment and order of acquittal of the

respondents/accused.

The appeal is, therefore, devoid of merits and the same

is dismissed.

(A. M. BADAR, J.)

1 1939 Cr.L.J. 917
2 1992 (1) Crimes (Part III) 880

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