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H vs The State Of Maharashtra on 6 November, 2012

Bombay High Court H vs The State Of Maharashtra on 6 November, 2012Bench: Shrihari P. Davare

(1) Criminal Appeal No. 3 of 2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Appeal No. 3 of 2005

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1. Kiran Natthu Patil,

Age : 26 years,

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Occupation : Business.

2. Natthu Totaram Patil,

Age : 59 years,

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Occupation : Agriculture.

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3. Sau. Sindhubai Natthu Patil,

Age : 53 years,

Occupation : Household.

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All residents of Ramnagar,

Plot No. 4,

Behind Abhay College, .. Appellants y

Dhule. (Original accused) ba

versus

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The State of Maharashtra. .. Respondent. …………………..

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Mr. R.S. Shinde, Advocate, for the appellants. Mr. B.J. Sonwane, Additional Public Prosecutor, for the respondent.

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::: Downloaded on – 09/06/2013 19:22:42 ::: (2) Criminal Appeal No. 3 of 2005 CORAM : SHRIHARI P. DAVARE, J.

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Date of reserving the

judgment : 31st October 2012.

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Date of pronouncing the

judgment : 6th November 2012.

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JUDGMENT :

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1. Heard learned Adv. Mr. R.S. Shinde for the appellants, and ig

learned APP Mr. B.J. Sonwane for the respondent. H

2. By the present appeal, filed by the appellants i.e. original accused nos.1 to 3, they have taken exception to the judgment and order dated 29-12-2004, rendered by the learned IInd Ad hoc Additional y

Sessions Judge, Dhule, in Sessions Case No. 87/2003, thereby convicting ba

them for the offences punishable under Sections 498-A read with Section 34 of Indian Penal Code, and sentencing them to suffer simple imprisonment for three years, and to pay fine of Rs. 5,000/- each, in om

default of payment of fine, to suffer simple imprisonment for nine months, each, and also convicting them for the offence punishable under Section 306 of Indian Penal Code, and sentencing them to suffer simple B

imprisonment for five years, and to pay fine of Rs. 7,000/- each, in default of payment of fine, to suffer simple simple imprisonment for one year and three months, each.

3. The appellants are hereinafter referred to as per their original ::: Downloaded on – 09/06/2013 19:22:42 ::: (3) Criminal Appeal No. 3 of 2005 status i.e. accused

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4. The brief facts of the present case which gave rise to the present appeal are as under :-

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(a) The deceased Vaishali was married with appellant no.1 (original C

accused no.1) Kiran, and one daughter, namely, Komal, was born out of the said wedlock. Accused no.2 Natthu is the father-in-law of the said deceased, whereas accused no.3 Sindhubai is the mother-in-law of the said h

victim. The original complainant in the present case i.e. first informant is ig

PW 3 Nagraj Patil who is the father of the victim Vaishali, who is the resident of Sheri (Taluka : Dharangaon, District : Jalgaon). It is alleged H

that he gave dowry of Rs. 1,21,000/- at the time of marriage of his daughter, namely, Vaishali with accused no.1, and after the marriage she was treated well initially by the accused and Vaishali gave birth to y

daughter of accused no.1, namely, Komal, as aforesaid. It is alleged that ba

the complainant used to bring Vaishali to her parental home at the time of festivals like Akshaytrutiya, Dipawali, etc. However, since last 2½ years prior to the date of incident i.e. 27-7-2003, Vaishali used to complain to om

the complainant i.e. her father and her mother, as well as her manternal uncle, namely, Shantaram Patil. All the accused persons used to subject her to the cruelty by meeting out mental and physical torture to her. They B

used to illtreat her and they used to demand amount of Rs. 1,50,000/- for service of accused no.1. They demanded the said amount from Vaishali to be brought by her from her father, and Vaishali narrated the said facts to the original complainant. However, the complainant convinced her and sent her back to the matrimonial home so many times. Even the ::: Downloaded on – 09/06/2013 19:22:42 ::: (4) Criminal Appeal No. 3 of 2005 complainant requested accused nos.1 to 3 on telephone stating that he was a poor person and from whom he would bring aforesaid money and urged rt

that accused should not torture his daughter. Moreover, Dr. Vitthal Patil i.e. son-in-law of sister of complainant also convinced the accused. ou

(b) It is also alleged that prior to 3 – 4 months of the date of complaint C

i.e. 27-7-2003, Vaishali had visited house of the complainant. At that time, Vaishali disclosed before the complainant that the accused were demanding money from her and if the complainant did not give money to h

the accused, they tortured and assaulted her severally. At that time also, ig

the complainant convinced her and sent her to her matrimonial home after about 15 days. It is further alleged that prior to 3 – 4 days from the date of H

complaint i.e. 27-7-2003, Vaishali made telephone from Dhule to the complainant i.e. her father, informing that the accused persons were torturing her severally and they were demanding money from her. It is y

further alleged that on 27-7-2003, at about 5.00 a.m. to 5.30 a.m., one Lalit ba

Chaudhary made telephone call to the house of the complainant and informed that Vaishali and Komal were burnt and they were admitted in the Civil Hospital, Dhule, for treatment. Hence, the complainant and his om

relatives rushed to the Civil Hospital, Dhule, but they came to know that Vaishali and Komal died due to burning and their dead bodies were kept in post mortem examination room. Thereafter, complainant went to B

Azadnagar Police Station and gave complaint against all the accused to Police personnel. PW 11 P.S.I. Ravindra Sonawane was duty officer at the said Police Station and he reduced into writing the complaint of the complainant which is marked as Exhibit 26. He also registered Crime No. 77/2003 against the accused under Sections 304-B, 498-A, 323, 504, read ::: Downloaded on – 09/06/2013 19:22:42 ::: (5) Criminal Appeal No. 3 of 2005 with Section 34 of Indian Penal Code, and handed over it to S.P.I. Vadnere for investigation purpose. PW 12 API Anil Vadnere was also attached to rt

Azadnagar Police Station as API at the relevant time and he took over further investigation of the said crime from PW 11 PSI Ravindra ou

Sonawane.

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(c) According to the prosecution, prior to registration of the said crime, Accidental Death No. 29/2003 was registered at Azadnagar Police Station. PW 12 API Anil Vadnere made inquiry about the said accidental death h

registration. He also prepared inquest panchanamas of both dead bodies of ig

Vaishali and Komal in the presence of Panchas and said Inquest Panchanama is marked as Exhibit 15. Moreover, it is stated that the H

Doctors at Civil Hospital, Dhule, performed post mortem examinations of aforesaid dead bodies, and issued provisional certificates of causes of death of Vaishali and Komal, and the post mortem examination reports of y

Vaishali and Komal are produced at Exhibits 21/C and 22, respectively. ba

He also recorded statements of the relatives of deceased Vaishali and Komal. Moreover, father of Vaishali i.e. complainant, namely, Nagraj, showed the spot of incident and spot panchanama was prepared in the om

presence of Panchas, and the same is produced at Exhibit 46. PW 12 API Vadnere also seized one burnt piece of quilt, one burnt matchstick, one white jug having smell of kerosene from the spot of the incident. He also B

recorded statements of witnesses from the said vicinity. Moreover, he arrested all the accused under the arrest panchanama Exhibit 16. So, also he issued letter to Tahsildar, Dhule, to prepare map of the incident and office copy of the said letter is produced at Exhibit 47. Thereafter, he sent seized articles to Chemical Analyser’s office for examination purpose ::: Downloaded on – 09/06/2013 19:22:42 ::: (6) Criminal Appeal No. 3 of 2005 along with forwarding letter Exhibit 17. Thereafter, since he was transferred from Dhule City Police Station, he handed over investigation rt

of the said crime to PSI J.G.Shaikh on 8-8-2003. Accordingly, after completion of investigation, PSI J.G. Shaikh filed charge sheet against the ou

accused before learned Chief Judicial Magistrate, Dhule, who committed the said case to the Court of Sessions, Dhule, since the charges levelled C

against the accused were triable by the Court of Sessions exclusively. Thus, 1st Ad hoc Assistant Sessions Judge, Dhule, framed charge against the accused, Exhibit 9/C, on 5-7-2004, for the offences punishable under h

Section 3 of Prevention of Dowry Act, read with Section 34 of Indian ig

Penal Code, and also under Section 498A read with Section 34 of Indian Penal Code, as well as, under Section 306 read with Section 34 of Indian H

Penal Code. However, accused persons pleaded not guilty to the said charges levelled against them and claimed to be tried. y

(d) To substantiate the charges levelled against the accused persons, the ba

prosecution examined as many as 12 witnesses, as mentioned below : PW 1 Rajendra s/o. Waman Patil Panch to the spot panchanama, om

Exhibit 23 – Turned hostile.

PW 2 Chanchal s/o. Subhash Panch to the spot panchanama – Gore Turned hostile. PW 3 Nagraj s/o. Kisan Patil Original complainant and father of B

deceased Vaishali.

PW 4 Anusayabai w/o. Nagraj Wife of the complainant i.e. Patil mother of deceased Vaishali. PW 5 Chandrakant s/o. Nagraj Wife of the complainant i.e. Patil mother of deceased Vaishali ::: Downloaded on – 09/06/2013 19:22:42 ::: (7) Criminal Appeal No. 3 of 2005 rt

PW 6 Dr. Shantaram s/o. Maternal uncle of deceased Atmaram Patil Vaishali. ou

PW 7 Pundalik s/o. Vikram Patil Maternal cousin brother of deceased Vaishali.

PW 8 Sk. Muktar Sk. Abdul A.S.I. Rahim.

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PW 9 Sk. Sarfoddin Sk. Police Constable. Niyajoddin.

PW 10 Lalichand s/o. Vinayak Neighbour and only independent h

Chaudhary witness. PW 11 Ravindra s/o. Shivlal

ig Who recorded the FIR. Sonawane, PSI.

PW 12 Anil s/o. Gangadhar Investigating Officer. H

Vadnere, API.

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(e) However, defence of the accused is of total denial, and they contended that the prosecution witnesses are close relatives of each other, ba

and therefore, they deposed against the accused persons. The defence of accused no.1 is that he has STD Booth since beginning and they had so om

much agricultural land and they used to get much income from the agricultural land and STD Booth. He further contended that they did not demand money from Vaishali at any time. Moreover, they did not assault B

her at any time and did not torture her. It is also stated that Vaishali was more beautiful than accused no.1 and even though Vaishali did not like him, her parents performed her marriage with him forcibly. According to him, since Vaishali was more beautiful than him, she was not desirous to cohabit with him and others with list Exhibit 57. ::: Downloaded on – 09/06/2013 19:22:42 ::: (8) Criminal Appeal No. 3 of 2005 (f) The defence of accused no.2 is also of total denial, and is that they rt

performed marriage of Vaishali with accused no.1 on 3-5-1999. At that time, her parents were poor persons. Accused no.2 stated that he was ou

working at Vadodara as Police Inspector at that time, and he retired on 31-8-2002. He built up his second house in Dhule from the amount of C

pension which he received and other members of his family came to reside at Dhule. He further stated that he has handicapped son by name Alkesh and he used to take recourse usually of other persons. He further stated h

that they gave well treatment to Vaishali and did not torture her at any ig

time, nor assaulted her at any time, nor demanded any money from her at any time. He further stated that they used to get so much income from H

STD Booth and agricultural land, and also they own plots, and accordingly submitted documents containing list Exhibit 59. y

(g) The defence of accused no.3 is also of total denial and she has not ba

raised any specific defence, but claimed to be innocent. (h) However, accused neither examined themselves on oath, nor om

examined any defence witness in support of their respective defences.

5. After considering oral / documentary evidence adduced / B

produced by the prosecution, learned trial court convicted and sentenced accused nos.1 to 3 as mentioned herein above. Being aggrieved and dissatisfied by the said conviction and sentence, accused nos.1 to 3 have preferred present appeal and challenged the same, and prayed for quashment thereof, and consequently, their acquittal for the offences with which they ::: Downloaded on – 09/06/2013 19:22:42 ::: (9) Criminal Appeal No. 3 of 2005 were charged and convicted.

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6. Learned Counsel for the appellants (original accused nos.1 to 3) canvassed that the prosecution case is wholly rested upon circumstantial ou

evidence, and the prosecution has failed to prove each and every circumstance against the accused firmly and unerringly, excluding all other C

hypothesis except the hypothesis pointing out guilt towards the accused. Moreover, he submitted that both the spot Panchas i.e. PW 1 Rajendra and PW 2 Chanchal have not supported case of the prosecution and they have h

turned hostile. According to him, PW 3 Nagraj i.e. father of the victim ig

Vaishali is the complainant and prosecution has examined close relatives of the complainant as prosecution witnesses i.e. PW 4 Anusayabai, wife of the H

complainant; PW 5 Chandrakant, son of the complainant; PW 6 Dr. Shantaram, maternal uncle of Vaishali; and PW 7 Pundalik, maternal cousin brother of Vaishali, and prosecution has examined only one independent y

witness i.e. PW 10 Lalichand, but he did not support case of the prosecution ba

and turned hostile. Hence, it is submitted that the net result of the prosecution evidence is that they have examined only relatives of the deceased Vaishali, who are interested witnesses, and therefore, their om

testimony is required to be considered with close scrutiny, and no independent witness has been examined by the prosecution, except PW 10 Lalichand, who turned hostile, although PW 11 PSI Ravindra Sonawane B

stated that he recorded statements of the witnesses in the vicinity.

7. Moreover, he submitted that there are omissions and contradictions in the testimony of prosecution witnesses i.e. PW 3 Nagraj, PW 4 Anusayabai, PW 5 Chandrakant, PW 6 Dr. Shantaram, and PW 7 ::: Downloaded on – 09/06/2013 19:22:43 ::: (10) Criminal Appeal No. 3 of 2005 Pundlik. According to him, none of the prosecution witnesses attributed specific overt act to the accused herein, in respect of occurrence of the rt

incident, and more particularly, no specific incident in respect of alleged cruelty has been pointed out by the said prosecution witnesses. He further ou

submitted that there are discrepancies and infirmities in the prosecution witnesses even in respect of timing, and PW 3 Nagraj stated that he reached C

to the Police Station at about 9.00 a.m. for giving the complaint, but PW 4 Anusayabai stated that he went to Police Station at about 3.00 p.m., whereas time of the FIR is 12.45 p.m., whereas PW 5 Chandrakant stated that they h

went to the Police Station at about 8.00 a.m. for giving the complaint. He ig

further asserted that the omissions in the evidence of PW 3 Nagraj, PW 4 Anusayabai and PW 10 Lalichand are vital omissions and go to the root of H

the matter, and hamers case of the prosecution. He further submitted that there is no direct incriminating evidence to connect the accused with the alleged crime.

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8. Besides, learned Counsel for the appellants / accused submitted that the vital aspect in the present case is to prove guilt of the accused in committing abetment, but the prosecution has miserably failed therein. He om

submitted that to attract Section 306 of IPC, abetment as defined under Section 107 of IPC is required to be proved necessarily i.e. a mental process of instigating the deceased person or intentionally aiding the deceased B

person to commit suicide should be proved. For that purpose, there must exist mens rea and an active act or direct act of the accused which led the deceased to commit suicide having no option. According to him, the said act also must have been intended to push the deceased into such a position that she would commit suicide. However, in the present matter, there are no ::: Downloaded on – 09/06/2013 19:22:43 ::: (11) Criminal Appeal No. 3 of 2005 such allegations against the accused, either about instigation or about intention of instigation. In fact, he submitted that the deceased was rt

beautiful lady and she did not like her husband and, as such, differences cropped up between them. He further submitted that the prosecution has ou

failed to prove death of Vaishali, whether it was suicidal or accidental, and the said infirmities go to the root of the matter, which demolishes the theory C

advanced by the prosecution, and therefore, urged that the present appeal be allowed and appellants / accused be acquitted. h

9. Learned Counsel for the appellant has relied upon following ig

judicial pronouncements :

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(i) Judgment of Apex Court in the case of Devender Singh Vs. State of Haryana, reported at 2007(2) SBR 47, wherein it is observed thus : ” The very fact that the High Court has y

proceeded on the basis that the demand made by the ba

husband did not amount to dowry, in our opinion, negates the prosecution case. It should not have jumped to the concolusion that the same must have caused embarrassment to the deceased which led to om

her commission of suicide. The observations were in the realm of conjectures and surmises. In a criminal case, no conviction can be based on conjectures and surmises. “

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(ii) Judgment of Apex Court in the case of Sohan Raj Sharma Vs. State of Haryana, reported at 2008 (5-6) SBR 253, wherein it is held that in case of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide, and the mere fact that the husband ::: Downloaded on – 09/06/2013 19:22:43 ::: (12) Criminal Appeal No. 3 of 2005 treated the deceased wife with cruelty is not enough. It was further held that more active role which can be described as instigating or aiding the doing of rt

a thing is required before a person can be said to be abetting the commission of offence under Section 306 of IPC, and if a victim committing suicide was ou

hpersensitive to ordinary petulance, discord and differences in domestic life quite common to the society, such petulance discord and differences were C

not expected to induce an individual to commit suicide, and hence accused cannot be found guilty of the charge of abetting suicide. It was further held that instantly, ingredients of Section 306 of IPC having not established, the h

conviction recorded cannot be sustained, and therefore, impugned order was set aside.

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(iii) Judgment of Apex Court in the case of Bhagwan Das Vs. Kartar Singh and others, reported at AIR 2007 SC 2045, wherein it is observed thus : y

“15. In our opinion, the view taken by the High Court is correct. It often happens that there are ba

disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-law. This, however, in our opinion, would not by itself and without something more attract Section 306 IPC om

read with Section 107 IPC.

16. However, in our opinion, mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the B

wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide. Vide Kans Raj v. State of Punjab and Ors. 2000(5) SCC 207, Satvir Singh and Ors. v. State of ::: Downloaded on – 09/06/2013 19:22:43 ::: (13) Criminal Appeal No. 3 of 2005 Punjab and Anr. 2001(8) SCC 633, Smt. Shanti and Anr. v. State of Haryana AIR 1991 SC 1261. ” rt

(iv) Judgment of Apex Court in the case of Gangula Mohan Reddy Vs. State ou

of Andhra Pradesh, reported at 2010 (1-2) SBR 63, wherein it is held thus : ” Court should be extremely careful in C

assessing the facts and circumstances of each case and the evidence adduced in trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing h

suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary ig

petulance, discord and difference in domestic life quite common to society to which the victim belonged and such petulance, discord and difference H

were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused y

charged of abetting the offence of suicide should be found guilty. In the instant case, the deceased was ba

undoubtedly hyper sensitive to ordinary petulance, discord and differences which happen in our day-to- day life. Human sensitivity of each individual differs from the other. Different people behave om

differently in the same situation. Apart from that in order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no B

option and this act must have been intended to push the deceased into such a position that he committed suicide. In the light of the provisions of law and the settled legal positions, conviction of the appellant could not be sustained. “

::: Downloaded on – 09/06/2013 19:22:43 ::: (14) Criminal Appeal No. 3 of 2005 (v) Judgment of Apex Court in the case of Hazarilal Vs. State of M.P., reported at 2007 (8) SBR 260, wherein it is observed thus : rt

” The evidence of PWs 1 and 2 show that they ou

spoke about the dowry to be the basis for suicide. The High Court came to the conclusion that because the deceased had given birth to a child there was no reason for her to commit suicide. The evidence of C

the parents of the deceased PWs 1 and 2 was only relatable to dowry. The High Court held that there was no question of demand of dowry, and in fact, appellant was financing the father of the deceased h

PW 1. There being no other material to show as to how the deceased was being harassed or subjected to ig

cruelty, the conclusion of the High Court that because the deceased committed suicide there must be some harassment and cruelty is insupportable and H

indefensible. There was no material to substantiate this conclusion. Merely on surmises and conjectures the conviction could not have recorded. There is a vast difference between “could have been”, “must y

have been” and “has been”. In the absence of any material, the case falls to the first category. In such a ba

case conviction is impermissible. “

10. Per contra, learned Additional Public Prosecutor for the om

respondent countered the said arguments and opposed the present appeal vehemently, and submitted that admittedly, the marriage between deceased Vaishali and accused no.1 took place on 3rd May 1999, and the incident of B

death of deceased Vaishali took place on 27-7-2003 i.e. within span of about 4½ years i.e. Vaishali met with unnatural death within a span of 7 years from her marriage along with her minor daughter Komal. Further, admittedly, death of both the said victims Vaishali and Komal took place by burning to the extent of cent percent burns. According to him, death of ::: Downloaded on – 09/06/2013 19:22:43 ::: (15) Criminal Appeal No. 3 of 2005 Vaishali, aged about 22 years, is suicidal death and death of Komal, who was 3 years’ minor daughter is due to burns. He submitted that since rt

defence admitted P.M. Notes, P.M. Doctor was not examined by the prosecution. He also pointed out from A.D. Report Exhibit 38, that the ou

death of victim Vaishali was suicidal death. Moreover, letter dated 27-7-2003 sent to Executive Magistrate to record dying declaration Exhibit C

39 also reflects that Vaishali met with suicidal death. According to the learned APP, time of incident is 4.30 a.m. on 27-7-2003, and the place of incident is bed room of house of accused no.1, and the same are h

incriminating circumstances against the accused, and since deaths of victims ig

are custodial deaths, presumption under Section 106 of Evidence Act deserves to be invoked against the accused. Moreover, he submitted that the H

Chemical Analyser’s report Exhibit 35 discloses kerosene residue on clothes and seized articles which is in consonance with the theory advanced by the prosecution, that deceased Vaishali committed suicide by pouring kerosene y

on her person and set herself ablazed. He asserted that there is no evidence ba

that the accused tried to extinguish the fire, and even there is no explanation for custodial deaths of victims Vaishali and Komal, and accused have failed to rebut the said presumption. Moreover, he submitted that even funeral of om

the victims was performed by father i.e. PW 3 Nagraj at her paternal house and none of the accused was present for the funeral, which reflects conduct of the accused. Moreover, he submitted that none of the accused gave B

information about occurrence of the incident of suicide committed by the victims by burning, to the Police personnel and Police came to know about the said incident on anonymous telephone call.

11. According to the learned APP, cruelty against the wife takes ::: Downloaded on – 09/06/2013 19:22:43 ::: (16) Criminal Appeal No. 3 of 2005 place within four walls of the house and victim Vaishali has disclosed the said cruelty at the hands of the accused to her parents, brother and maternal rt

uncle, who have deposed before the court, and their testimonies corroborate with each other in respect of cruelty and harassment meted out to victim ou

Vaishali and their consistent testimonies amount to incriminating evidence against the accused. According to him, once it is proved and established C

that the death of victim Vaishali is suicidal in the custody of the accused, burden shifts upo the accused to prove that death of victim was not suicidal. He submitted that the learned trial court has scrutinized and analyzed the h

evidence in proper perspective and thereafter convicted and sentenced the ig

accused rightly, and there is no glaring mistake therein, and hence, no interference is called for in the present appeal, and urged that the present H

appeal be dismissed.

12. Learned APP also relied upon the judicial pronouncements as y

mentioned below :

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(I) Judgment of Apex Court in the case of Pathan Hussain Basha Vs. State of Andhra Pradesh, reported at (2012) 8 Supreme Court Cases 594, wherein it om

is observed thus :

” Applying these principles to the facts of the present case, it is clear that the ingredients of Section B

304-B read with Section 498-A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on to the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of diwry by the accused persons. The accused did not care to explain as to how the ::: Downloaded on – 09/06/2013 19:22:43 ::: (17) Criminal Appeal No. 3 of 2005 death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It rt

was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately ou

prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has C

established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal. ” h

(II) Judgment of Apex Court in the case of Rajesh Bhatnagar Vs. State of ig

Uttarakhand, reported at (2012) 7 Supreme Court Cases 91, wherein it is held that whole body burnt up to stage of first and second degree burns and H

deceased had expired due to ante-mortem injuries and shock, and therefore, possibility of injuries being accidental burns completely ruled out. Moreover, Investigating Officer did not find accused persons on the spot y

and, in fact, they had left house open and fled. Hence, these circumstances, ba

along with circumstances stated by trial court, were inconsistent with innocence of accused and consistent only with hypothesis that accused had killed deceased by setting her on fire. Moreover, no explanation, much less om

a satisfactory explanation, rendered by accused persons in their statements under Section 313 of the Code of Criminal Procedure. On the contrary, trend of cross examination of prosecution witnesses and explanations given B

by defence for injuries suffered by accused husband are patently false and not worthy of credence. Hence, conviction of all three accused i.e. husband, brother-in-law, mother-in-law for committing dowry death, confirmed.

13. I have perused the impugned judgment and order dated ::: Downloaded on – 09/06/2013 19:22:43 ::: (18) Criminal Appeal No. 3 of 2005 29-12-2004, ocular and documentary evidence adduced / produced by the prosecution, and heard rival submissions advanced by the learned Counsel rt

for the parties, and also considered the judicial pronouncements cited by learned Counsel for the parties carefully. ou

14. While adverting to the submissions advanced by the learned C

Counsel for the parties, it is necessary to deal with the material evidence adduced / produced by the prosecution, and in the said context, coming to the deposition of PW 3 Nagraj, who is father of victim Vaishali and h

complainant, stated that the marriage of his daughter Vaishali took place ig

with accused no.1 in the year 1999 at Jalgaon. He stated that accused no.1 Kiran is his son-in-law, whereas accused nos.2 and 3 are parents of accused H

no.4 is married sister of accused no.1. He also stated that after marriage, Vaishali went to her matrimonial home for cohabitation at Dhule, and all the accused treated her well initially for 2½ years, and Vaishali gave birth to her y

daughter Komal from accused no.1. He further stated that when Vaishali ba

used to visit his house for Diwali festival and Akshaytritaya festival, she used to disclose that all the accused used to demand money from her and they used to torture her, and accused no.1 was not surving or doing any om

business. He also stated that thereupon they used to convince her and used to send her to her matrimonial home for cohabitation after the said festivals. He further stated that on 27-7-2003 at about 5.00 a.m., after his return from B

Pandharpur Yatra, he received a telephone call from Police Constable Chaudhary, informing that Vaishali was serious and was admitted in the Civil Hospital, Dhule. Hence, he himself, his wife PW 4 Anusayabai and sons went to Civil Hospital, Dhule, and noticed that the dead bodies of his daughter Vaishali and granddaughter Komal were kept in mortuary room. ::: Downloaded on – 09/06/2013 19:22:43 ::: (19) Criminal Appeal No. 3 of 2005 Thereafter, they went to Azadnagar Police Station and gave complaint (Exhibit 26) against the accused, that since all the accused subjected rt

Vaishali to physical and mental cruelty, she poured kerosene on her person and committed suicide, and also set fire on the person of her daughter ou

Komal. He further stated that since none of the accused was present at Civil Hospital to take the custody of dead bodies of Vaishali and Komal, he took C

the said dead bodies to village Sheri and performed their funeral. He also stated that he did not show spot of the incident to the Police personnel. h

15. In cross examination, he stated that he reached from village ig

Sheri to Civil Hospital, Dhule, at 8.00 a.m. to 8.15 a.m., and thereafter went to Azadnagar Police Station for lodging the complaint at about 9.30 a.m. H

and gave the complaint to Police at that time, and did not give any other complaint to Police after 9.30 a.m. i.e. at about 12.30 p.m. He also stated that Police personnel recorded his statement and statement of his wife and y

other persons at that time, at about 10.00 a.m. to 10.30 a.m. However, ba

Police did not read over contents of his complaint to his wife and others when they recorded their statements. He also stated that when Police recorded his statement, his wife and other persons were outside the room. om

Moreover, when he came out of the said room, his wife and others did not ask the contents of his complaint. As regards the marriage, he stated that there was no dispute in the marriage of Vaishali and accused no.1 Kiran. B

However, accused no.1 was not in service, whereas accused no.2 was serving as P.S.I. at Baroda, who retired in the year 2002. In so far as financial condition of the accused is concerned, he stated that accused nos.1 to 3 had their own house in Dhule and they had constructed new house near their old house prior to the incident. He volunteered that the incident took ::: Downloaded on – 09/06/2013 19:22:43 ::: (20) Criminal Appeal No. 3 of 2005 place in the old house of accused nos.1 to 3, but there is no cross examination in respect of said volunteered statement. He admitted that rt

accused no.1 started STD Booth in the year 2002, and volunteered that he closed the same within one year, but there is no cross examination regarding ou

said volunteered statement. He further stated that accused nos.1 to 3 had agricultural land in Fhagane Shivar, and one brother of accused no.2 is C

Doctor and his another brother is Principal of a college. He denied that his financial condition is poor, however, admitted that he stated before Police that he was a poor person. He admitted that the financial condition of h

accused nos.1 to 3 is better than his financial condition.

16.

ig

As regards the alleged illtreatment at the hands of accused nos. H

1 to 3 to victim Vaishali, he admitted that Vaishali did not send any letter to him about illtreatment by the accused to her. However, he volunteered that Vaishali used to inform him and others on telephone about illtreatment by y

the accused persons. But there is no cross examination regarding said ba

volunteered statement. He also admitted that he did not give any complaint to Police at the time Diwali festival and Akshaytritiya festival about illtreatment by accused persons to Vaishali. He further admitted that he did om

not send any notice to accused persons for the said illtreatment. However, he stated that she used to tell him that accused persons used to demand money from her and they used to torture her on that count. However, he B

admitted that he cannot state actual time, day, month and year, when Vaishali used to make telephone calls to his house and used to inform about illtreatment by accused persons. PW 3 Nagraj further stated in cross examination that Vaishali was looking beautiful. The accused put up defence to PW 3 Nagraj, that Vaishali was knot liking accused no.1 and she ::: Downloaded on – 09/06/2013 19:22:43 ::: (21) Criminal Appeal No. 3 of 2005 used to say that accused no.1 was black and so she did not like him, but the same was denied by him. He also denied that Vaishali was of hot temper. rt

17. Thus, the testimony of PW 3 Nagraj is silent about the alleged ou

demand of Rs. 1,50,000/- by the accused persons to victim Vaishali for service of accused no.1, and there is no whisper about the same in the said C

testimony of PW 3 Nagraj. Moreover, the said witness has made general and omnibus statements that whenever Vaishali used to visit his house at the time of Diwali and Akshayatritiya festivals, she used to inform that all the h

accused used to demand money from Vaishali and they used to torture her, ig

and there are no specific allegations in respect of alleged illtreatment / torture to which Vaishali was subjected. Moreover, no specific role has H

been attributed to any of the accused and even no specific incident of alleged illtreatment, as well as mode and manner of alleged illtreatment has been stated by him, and the aforesaid vague and omnibus statement in y

respect of alleged illtreatment will not connect the accused persons to the ba

alleged crimes punishable under Section 498A of IPC, and more particularly, Section 306 of IPC, since the ingredients of Section 107 of IPC are lacking therein. Accordingly, the foundation of facts regarding alleged om

demand / cruelty have not been asserted and proved through the testimony of PW 3 Nagraj, which is the vital testimony for the prosecution which amounts to lacuna in the prosecution case. The said witness categorically B

stated that he went to Civil Hospital, Dhule, at about 8.00 a.m. to 8.15 a.m., and thereafter went to Azadnagar Police Station for lodging the complaint at about 9.30 a.m., and lodged the complaint at that time, and further stated that he did not give any complaint after 9.30 a.m. i.e. at about 12.30 p.m., but his wife PW 4 Anusayabai stated in her deposition that when she and ::: Downloaded on – 09/06/2013 19:22:43 ::: (22) Criminal Appeal No. 3 of 2005 her husband i.e. PW 3 Nagraj went to Police Station for lodging the complaint, the time was 3.00 p.m., whereas PW 5, son of Nagraj, namely, rt

Chandrakant, stated in his deposition that they came to the hospital at Dhule at about 8.00 a.m., and went to Azadnagar Police Station for giving ou

complaint at about 8.00 a.m. along with his father i.e. PW 3 Nagraj, but pertinently, time of the FIR lodged by PW 3 Nagraj is 12.40 p.m. on C

27-7-2003, and in fact, PW 3 Nagraj categorically stated in his deposition that he has not lodged any complaint after 9.30 a.m. on the said date i.e. more particularly, at about 12.30 p.m., and accordingly, there are h

discrepancies in the timing of lodging of FIR in the aforesaid testimonies, ig

which goes to the root of the matter and hampers case of the prosecution. H

18. PW 3 Nagraj further stated that none of the accused was present at Civil Hospital, Dhule, to take custody of the dead bodies of Vaishali and Komal, and he took the said dead bodies to village Sheri and y

performed their funeral. In the said context, learned Counsel for the ba

appellants / accused pointed out that the date of funeral is 27-7-2003, and pertinently, the accused persons were arrested on the same day, as per arrest panchanama, dated 27-7-2003, at about 18.30 to 19.00 hours, and therefore, om

they could not attend the said funeral, and the explanation given by the learned Counsel for the accused in respect of the said grievance is plausible. B

19. Besides, PW 3 Nagraj admitted in the cross examination that there was no dispute in the marriage of Vaishali and accused no.1 Kiran, and he also admitted that accused nos.1 to 3 have their own house in Dhule and even they have constructed new house near their old house prior to the incident, as well as they were having agricultural land at Phagane Shivar, ::: Downloaded on – 09/06/2013 19:22:43 ::: (23) Criminal Appeal No. 3 of 2005 and brother of accused no.2 is Doctor and another brother is principal of a college, as well as their financial condition was better than him. Hence, it is rt

apparently clear that the financial condition of accused nos.1 to 3 was sound and their family also appears to be educated family, and hence, suspicion is ou

created about the alleged demand of Rs. 1,50,000/- by the accused persons from deceased Vaishali and subjecting her to mental and physical cruelty C

due to non-fulfillment thereof. Pertinently, he also admitted that Vaishali did not send any letter to him i.e. PW 3 Nagraj about illtreatment by accused persons to her. Even he admitted that they did not give any h

complaint to Police at the time of Diwali and Akshayatritiya festivals about ig

alleged illtreatment by accused persons to Vaishali. He further admitted that they did not send any notice to the accused persons for the alleged H

illtreatment. In the natural course of events, had there been any illtreatment to Vaishali, which culminated to her death by committing suicide due to burning herself, she would have sent letter about the said illtreatment to her y

parents or brother or she would have sent any communication to them about ba

the same or the complainant would have lodged complaint with the Police personnel in that respect, and more particularly, about alleged incidents at the time of Diwali and Akshayatritiya festivals, or ultimately they would om

have sent any notice to the accused persons about the said illtreatment, but so did not happen and the said inaction on the part of deceased Vaishali, as well as on the part of PW 3 Nagraj speaks volumes and diminishes B

credibility of the prosecution theory. Moreover, it is also significant to note that PW 3 Nagraj admitted in his testimony that he cannot state actual time, day, month and year, when Vaishali used to make telephone calls to his house and used to inform about illtreatment by accused persons, and the very shortcoming strengthens the aforesaid lacuna. Moreover, accused also ::: Downloaded on – 09/06/2013 19:22:43 ::: (24) Criminal Appeal No. 3 of 2005 put their defence to PW 3 Nagraj, that Vaishali was beautiful and she was not liking accused no.1 since he was black and even she was hot tempered, rt

but the same was denied by him. Thus, the testimony of star witness of the prosecution i.e. PW 3 Nagraj does not take the prosecution case ahead in ou

constructive manner to connect the accused with the alleged crime under Sections 498A and 306 of IPC.

C

20. Coming to the deposition of PW 4 Anusayabai i.e. mother of victim Vaishali, who stated that Vaishali’s marriage took place with accused h

no.1 about 5 years back, and accused nos.2 and 3 are parents of accused no. ig

1, and accused no.4 is his sister. She stated that after marriage, Vaishali went to the house of accused persons for cohabitation. She also stated that H

Vaishali had one daughter, namely, Komal. She further stated that initially Vaishali was treated well for about three years, however, thereafter accused started torturing her. She also stated that when Vaishali used to visit their y

house, she used to disclose that accused persons used to demand money ba

from her and they used to torture her. She further stated that they used to convince her and used to send her to matrimonial home for cohabitation. She further stated that accused nos.3 and 4 used to give torture to Vaishali om

and they used to assault her. She further stated that they received telephone call from Dhule, that Vaishali had burnt, and hence, they went to Civil Hospital, Dhule, and found that the dead bodies of Vaishali and Komal were B

kept in post mortem room. Accordingly, she stated that due to mental and physical cruelty given by the accused, Vaishali poured kerosene on her person and set herself on fire and committed suicide. In cross examination, she stated that she was unconscious, and therefore, she cannot state when they reached Dhule and she regained consciousness at about 3.00 p.m., and ::: Downloaded on – 09/06/2013 19:22:43 ::: (25) Criminal Appeal No. 3 of 2005 at that time, they were in Dhule. Her husband and others went to Police Station for lodging the complaint at about 3.00 p.m. As regards the alleged rt

torture by accused nos.3 and 4 to Vaishali by assaulting her, there is omission in the Police statement and improvement in her testimony. ou

Besides, suggestions were given to her in the cross examination by the accused putting their defence, but the same were denied by her. C

21. The survey of testimony of PW 4 Anusayabai reflects that when Vaishali used to visit their house, she used to disclose that accused h

persons used to demand money from her and used to torture her mentally ig

and physically. However, she has not narrated the specific incidents on which Vaishali was allegedly tortured by accused persons. Moreover, her H

testimony is also silent about time, day, month and year, in respect of mental and physical torture which was allegedly meted out to Vaishali. Even no manner and mode of alleged mental and physical torture have been surfaced y

in her testimony. Accordingly, she made vague and omnibus statement that ba

the accused persons used to demand from her and used to give mental and physical torture to Vaishali. Moreover, she has not even attributed specific role to each of the accused persons in the alleged torture and not specified om

which accused did what act in allegedly torturing her. As regards the allegation made by her, that accused nos. 3 and 4 used to give torture to Vaishali and they used to assault her, pertinently, the said allegation B

amounted omission in her Police statement and improvement in her testimony, and therefore, no credence can be given to the said allegation. Besides, as mentioned herein above, there is variance in the timing of the complaint, as stated by PW 3 Nagraj as 9.30 a.m., whereas PW 4 Anusayabai stated that time of complaint is 3.00 p.m., but PW 5 ::: Downloaded on – 09/06/2013 19:22:43 ::: (26) Criminal Appeal No. 3 of 2005 Chandrakant stated that they went to Police Station at 8.00 a.m., but actual time of complaint is 12.40 p.m., and the said variance in the timing of FIR rt

also goes to root of the matter and sustains fatal blow to the case of the prosecution.

ou

22. That takes me to the testimony of PW 5 Chandrakant i.e. C

brother of the victim Vaishali, who stated that deceased Vaishali was his sister and her marriage took place with accused no.1 in the year 1999, accused nos.2 and 3 are parents of accused no.1, whereas accused no.4 is h

sister of accused no.1. He stated that all the accused treated Vaishali ig

initially well for about 2 years and daughter, namely, Komal was born out of the wedlock between Vaishali and accused no.1. He also stated that Vaishali H

used to visit their house at the time Diwali and Akshaytritiya festivals. He further stated that Vaishali was in their house for about 15 days prior to four months from the date of incident and at that time, she disclosed that accused y

nos.3 and 4 used to torture her, whereas accused nos.1 and 2 used to abuse ba

her, and accused no.1 used to demand Rs. 1,50,000/- from Vaishali for his service. However, he stated that they used to convince her and send her to matrimonial home for cohabitation. He further stated that two days prior to om

the date of incident, they received of Vaishali from Dhule, informing that accused nos.3 and 4 were giving torture to her severally, and accused nos.1 and 2 were abusing her, and accused no.1 was demanding Rs. 1,50,000/-. B

He further stated that Police Constable Chaudhary rung up and informed that Vaishali and Komal had burnt and they were in Civil Hospital, Dhule. Hence, his parents and relatives proceeded to Civil Hospital, Dhule, and found dead kbodies of Vaishali and Komal in post mortem room. Thereafter, they went to Azadnagar Police Station and his father gave ::: Downloaded on – 09/06/2013 19:22:43 ::: (27) Criminal Appeal No. 3 of 2005 complaint against all the accused. They received dead bodies of Vaishali and Komal and they performed funeral upon them at their village. rt

Accordingly, he stated that due to mental and physical cruelty by accused persons, Vaishali poured kerosene on her person and set herself on fire and ou

and committed suicide.

C

23. During cross examination, he stated that they went to Civil Hospital, Dhule, at about 8.00 a.m. and further went to Azadnagar Police Station for giving complaint at about 8.00 a.m., at that time only, and he was h

along with his father. Police personnel inquired with him in Police Station, ig

and he further stated that when Police recorded complaint of his father, others were outside the room. There are material omissions in his Police H

statement and amounting to improvement in his testimony which were taken out in his testimony pertaining to the disclosure made by Vaishali in respect of alleged torture by accused nos.3 and 4 and abuses given by accused nos.1 y

and 2, and alleged demand of Rs. 1,50,000/- made by accused no.1 from ba

her, and also alleged telephone call made by Vaishali about two days prior to the date of incident, informing that accused no.1 was abusing and was demanding Rs. 1,50,000/- from her. He further stated that Vaishali had om

visited their house prior to 4 months from the date of incident. However, they did not give any complaint to Police Station against the accused persons at that time. Besides, accused put their defence to the said witness B

by way of suggestions, but the same were denied by him.

24. The alleged demand of Rs. 1,50,000/- for the service of accused no.1 made by accused persons to Vaishali surfaces for the first time in the testimony of PW 5 Chandrakant, since the testimonies of PW 3 ::: Downloaded on – 09/06/2013 19:22:43 ::: (28) Criminal Appeal No. 3 of 2005 Nagraj and PW 4 Anusayabai are silent in that respect. He stated that Vaishali visited their house 4 months prior to the date of incident and she rt

stayed for about 15 days, and at that time, she disclosed that accused nos.3 and 4 used to give torture to Vaishali, and accused nos.1 and 2 used to abuse ou

her, and accused no.1 used to demand Rs. 1,50,000/- for his service. However, the said material version has gone into omission in his Police C

statement and improvement in his testimony, and hence, no credence can be given to the said version of PW 5 Chandrakant. Even alleged telephone call made by Vaishali two days prior to the date of incident, informing that h

accused no.1 was abusing and demanding Rs. 1,50,000/- also amounted to ig

omission in his Police statement and improvement in his testimony. Thus, there are vital omissions in the deposition of PW 5 Chandrakant, which go H

to the root of the matter and diminishes credibility of his testimony. He further stated that prior to 4 months from the date of incident, Vaishali came to their house lonely, but admitted that they did not give any complaint to y

Police against the accused persons at that time. It is the matter of record ba

that the complainant PW 3 Nagraj, and even his son PW 5 Chandrakant, and also victim Vaishali have not filed any complaint against accused persons. In the natural course of events, had there been severe mental and physical om

torture to victim Vaishali at the hands of accused, she / her parental relatives would have made grievance before the respectable persons in the community or she would have lodged complaint with the Police personnel, B

but nothing of that sort happened in the present case. Hence, theory put forth by the prosecution, that victim Vaishali committed suicide by burning herself and daughter Komal due to severe and mental and physical torture at the hands of accused persons, does not appear to be probable, more particularly, in the absence of specific allegations in respect of alleged ::: Downloaded on – 09/06/2013 19:22:43 ::: (29) Criminal Appeal No. 3 of 2005 mental and physical torture, and mode and manner thereof, and also in the absence of any specific role to each of the accused, how and in what manner rt

the accused mentally and physically tortured her, and further more particularly, in the absence of any grievance made by her before respectable ou

persons in the community and relatives, or any complaint lodged by her with the Police personnel. Besides, as mentioned herein above, there is C

variance in the version of prosecution witnesses i.e. PW 3 Nagraj, PW 4 Anusayabai, and PW 5 Chandrakant, in respect of timing of the FIR, as PW 3 Nagraj stated the timing of complaint at about 9.30 a.m., whereas PW 4 h

Anusayabai stated the timing of complaint at about 3.00 p.m., whereas PW ig

5 Chandrakant stated in the cross examination that they went to Civil Hospital, Dhule at 8.00 a.m. and went to Azadnagar Police Station for H

lodging the FIR at 8.00 a.m., whereas time of the FIR is at about 12.40 p.m., and said variance in the timing of FIR reflected in the testimonies of aforesaid prosecution witnesses amounts to lacuna in the prosecution case. y

ba

25. Turning to the deposition of PW 6 Dr. Shantaram Patil, who is maternal uncle of victim Vaishali, stated that he deposed as per information given by his sister i.e. PW 4 Anusayabai, and hence, his testimony is the om

hearsay evidence. However, he further stated in his deposition that when Vaishali resided at Sheri for about 15 days prior to her death, he went to house of his sister, and at that time, Vaishali informed him that accused B

persons were giving severe torture to her than previous torture, and Vaishali also informed that the accused persons used to give torture to such extent that she could not bear. However, he convinced Vaishali and her parents sent her to matrimonial home. However, during cross examination, the very contents have gone into omission in his Police statement and amounting to ::: Downloaded on – 09/06/2013 19:22:43 ::: (30) Criminal Appeal No. 3 of 2005 improvement in his testimony, and the said omission amounts to vital lacuna in his testimony, and diminishes the credibility of his version. Besides said rt

version, there is nothing in his testimony, as stated herein above, and said version had gone into omission in his Police statement and amounting to ou

improvement in his testimony, and hence no credence can be given to his version.

C

26. That takes me to the deposition of PW 7 Pundalik, who is maternal cousin of the victim, and he stated that Vaishali met him at Sheri h

prior to year from the date of incident, and at that time, she informed him ig

that accused persons used to torture her. However, he convinced her and advised that she should not go to her matrimonial home for cohabitation. H

Thereupon, after about one year, the incident took place. Hence, he went to Civil Hospital, Dhule, and found dead bodies of Vaishali and Komal in post mortem room. He accompanied with others to Azadnagar Police Station y

and the complainant lodged the complaint. He stated that due to mental and ba

physical cruelty by accused persons, Vaishali poured kerosene on her and set herself on fire and committed suicide. However, during cross examination, he admitted that he cannot give date and month on which om

Vaishali met him in village Sheri. Moreover, suggestions put to him by the defence were denied by him. Thus, it reveals from the testimony of PW 7 Pundalik, that Vaishali met him about one year prior to the date of incident B

at village Sheri and made the aforesaid disclosure before him about the alleged torture by the accused to her. However, he could not specify the day, date and month on which Vaishali met him in village Sheri. Besides, he made general and omnibus statement that Vaishali told him that accused persons used to give torture to her and he has not specified which accused ::: Downloaded on – 09/06/2013 19:22:43 ::: (31) Criminal Appeal No. 3 of 2005 tortured her and what type of torture was given to her, and the mode and manner of alleged torture, and whether it was mental torture or physical rt

torture, and in the absence of said details, more particularly, absence of day, date and timing of alleged torture, creates suspicion about version made by ou

PW 7 Pundalik. Moreover, it is also significant to note that assuming for the sake of assumption, without admitting it, that Vaishali met him at village C

Sheri, prior to one year from the date of incident and disclosed before him that accused persons used to give torture to her and he convinced her that she should go to her matrimonial home for cohabitation, and after lapse of h

one year incident took place, but pertinently, there is no close proximity ig

between the alleged torture and occurrence of the incident, since as per version of PW 7 Pundlik himself, Vaishali informed him about alleged H

torture, one year prior to the date of incident. Moreover, PW 7 Pundalik did not take any action in that respect, and his testimony is silent about the same, and the said inaction on the part of PW 7 Pundlik also speaks for y

itself.

ba

27. Turning to the deposition of PW 10 Lalichand Chaudhary, who is only independent witness and neighbourer examined by the prosecution, om

stated that he used to reside adjacent to the house of accused persons and he knew all the accused persons. He stated that accused no.3 came to his house at about 4.30 a.m. to 4.45 a.m., and told him that shouting of Vaishali B

was coming from inside the house and smoke was emitting from inside the house. Hence, he went inside the house of accused persons and found that door of the room was bolted from inside. Hence, he and accused no.2 Natthu opened the said door and found that Vaishali was burning. They extinguished fire of Vaishali and daughter of Vaishali was also burnt. ::: Downloaded on – 09/06/2013 19:22:43 ::: (32) Criminal Appeal No. 3 of 2005 Thereafter, he and accused no.2 Natthu and accused no.4 Vidhyabai, her husband and Vyenkatesh took Vaishali to Civil Hospital, Dhule. In cross rt

examination, he stated that he did not communicate on telephone to mother of Vaishali that Vaishali was burnt. He also stated that Investigating Officer ou

recorded his statement and he cannot state any reason why Investigating Officer recorded portion marked “A”, amounting to contradiction in his C

testimony in respect of contents of the portion marked “A”, about giving information to mother of Vaishali by him, that Vaishali was burnt. h

28. The testimony of PW 10 Lalichand, who is independent ig

witness and neighbourer of accused persons, reveals that he knew all the accused persons and he refers to the presence of accused no.2 Natthu, H

accused no.3 Sindhubai and accused no.4 Vidhyabai, but his testimony is conspicuously silent in respect of accused no.1 at the time of occurrence of the incident, and hence, it leads to the position that accused no.1 was not y

present in the house at the time of occurrence of the incident. He also stated ba

that he and accused no.2 Natthu opened door of the room and found that Vaishali and her daughter Komal were burning and they extinguished the fire, but there is whisper in his testimony that accused no.1 was present om

there in the house. He further stated that door of the room was bolted from inside and he and accused no.2 Natthu opened the said door, but the accused no.1 while recording his statement under Section 313 of the Code of B

Criminal Procedure, and while giving answer to Question No.31 therein, categorically stated that door of the said room was knot bolted fr5om inside and so is the position in the statement under Section 313 of Cr.P.C. recorded of accused no.2 Natthu, who in fact, allegedly was present as per version of PW 10 Lalichand at the time of occurrence of the incident. He also stated in ::: Downloaded on – 09/06/2013 19:22:43 ::: (33) Criminal Appeal No. 3 of 2005 answer to Question No.31, that door of the said room was knot bolted from inside, as well as, accused no.3 Sindhubai also reiterated the said version in rt

answer to Question No.31, that door of the said room was knot bolted from inside, and accordingly, accused nos.1 to 3 are consistent in respect of the ou

said answer, and if door of the said room was bolted from inside, there was possibility of committal of suicide by Vaishali, but since as per consistent C

version of accused nos.1 to 3, mentioned herein above, door of the said room was not bolted from inside, give rise to possibility of accidental death of victims Vaishali and her daughter Komal due to burns. h

29.

ig

In fact, in the said context, prosecution should have examined P.M Doctor and should have obtained medical opinion whether Vaishali met H

with the suicidal death or accidental death, but so did not happen. The contents of P.M. Notes of victim Vaishali, and more particularly, clause 17 thereof disclose that she sustained 98 % burns, as well as daughter Komal y

also sustained 98 % burns, and the cause of death of both the victims given ba

is, shock following thermal burns. Hence, there is no dispute that both the victims i.e. Vaishali and Komal met with unnatural death. In fact, further in the said context, spot panchanama is the important piece of evidence. But om

both the Pandhas i.e. PW 1 Rajendra and PW 2 Chanchal did not support case of the prosecution, and turned hostile, and therefore, the spot panchanama was produced through the testimony of Investigating Officer B

i.e. PW 12 API Anil Vadnere at Exhibit 46, and he seized one burnt piece of quilt, one burnt matchstick, and one white jug having smell of kerosene from the spot of incident, and Chemical Analyser’s report Exhibit 35, dated 31-7-2004, of the said seized articles discloses that there was detection of kerosene residue on the said articles, and hence, undisputedly both the ::: Downloaded on – 09/06/2013 19:22:43 ::: (34) Criminal Appeal No. 3 of 2005 victims i.e. Vaishali and Komal met with unnatural death due to burns, but whether it was suicidal or accidental remained mystery. rt

30. Having survey of tangible evidence adduced / produced by the ou

prosecution, it is amply clear that there are variances in the version of prosecution witnesses in respect of timing of the FIR, as well as there are C

material omissions in the testimonies of prosecution witnesses, which go to the root of the matter diminishing credibility of the said witnesses, as discussed herein above, as well as, there are material contradictions in the h

testimony of PW 10 Lalichand, and the testimonies of aforesaid witnesses ig

are silent in respect of very mode and manner in which deceased Vaishali was allegedly subjected to mental and physical torture by the accused, and H

no specific role has been attributed to each of the accused, that which accused did what act in allegedly torturing deceased Vaishali and even no time, date, month and year has been specified by the said prosecution y

witnesses in respect of alleged torture to victim Vaishali, and PW 3 Nagraj ba

and PW 4 Anusayabai are silent in respect of alleged demand of Rs. 1,50,000/-. But the said demand was surfaced in the testimony of PW 5 Chandrakant for the first time, and testimony of PW 6 Dr. Shantaram, om

maternal uncle of deceased Vaishali is hearsay evidence and deposition of PW 7 Pundlik is based upon information received by him from Vaishali about one year back, and pertinently, there is not a single complaint made B

by deceased Vaishali and/or her parental relatives before respectable persons in the community and/or before Police personnel and even the prosecution has not examined the P.M. Doctor, who conducted P.M. Notes, and although it is established that deceased Vaishali and Komal met with the unnatural death, the prosecution has not crystallized whether it was suicidal death or ::: Downloaded on – 09/06/2013 19:22:43 ::: (35) Criminal Appeal No. 3 of 2005 accidental death, by adducing cogent evidence in that respect, and further pertinently, there is no explanation put forth by the prosecution in respect of rt

the very aspect that although when charge sheet was filed against the accused persons for the offence punishable under Section 304B of IPC, ou

along with Sections 498A and 306 of IPC, but how and why the charge under Section 304B of IPC was not framed against the accused, and hence, C

there are discrepancies and infirmities in the prosecution case, and the prosecution has failed to prove and establish the hypotheses pointing out towards the very guilt against the accused persons excluding the other h

hypotheses. In fact, it was incumbent upon the prosecution to establish very ig

ingredients of Section 498A of IPC and Section 306 of IPC, and more particularly, Section 107 of IPC in respect of abetment, such as, (i) instigate H

any person to commit an offence, or (ii) engaging in a conspiracy for committing it, or (iii) intentionally aiding a person to commit it, to establish nexus between the accused persons and the alleged crimes, but prosecution y

evidence is short of that, and hence, accused persons deserve thebenefit of ba

doubt. In the said context, reliance can be very well placed on the judicial pronouncements (supra) cited by the learned Counsel for the appellants / accused.

om

31. In so far as judicial pronouncements cited by the learned APP, more particularly, in the case of Pathan Hussain Basha Vs. State of Andhra B

Pradesh (supra), it is apparent that the facts and circumstances in the said cases and the facts and circumstances in the present case differ from each other since in both the cases, Section 304B of IPC was involved, but so is not the position in the instant case.

::: Downloaded on – 09/06/2013 19:22:43 ::: (36) Criminal Appeal No. 3 of 2005

32. In the circumstances, the conviction and sentences imposed upon the appellants / accused are erroneous and unsustainable, and rt

therefore, same deserve to be quashed and set aside by allowing the present appeal and they deserve to be acquitted thereof. ou

33. In the result, present appeal is allowed, and the judgment and C

order dated 29-12-2004, rendered by the learned 2nd Ad hoc Additional Sessions Judge, Dhule, in Sessions Case No. 87/2003, thereby convicting and sentencing present appellants i.e. original accused nos.1 to 3, for the h

offences punishable under Sections 498A read with Section 34 of Indian ig

Penal Code, and also under Section 306 of Indian Penal Code, stands quashed and set aside, and the appellants (original accused nos.1 to 3) stand H

acquitted thereof. Fine amount, if any, paid by them, be refunded to them, and their bail bonds stand cancelled.

y

(SHRIHARI P. DAVARE)

ba

JUDGE

…………………….

om

bgp/criapp3

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