Bombay High Court State Of Maharashtra-vs-Shankar Tulshiram Matre on 23 August, 2005
Equivalent citations:I (2007) DMC 34
Author: R Chavan
Bench: J Patel, R Chavan
R.C. Chavan, J.
1. The State seeks to challenge the acquittal of the respondents recorded by the learned Additional Sessions Judge, Akola for the offences punishable under Sections 302, 304B and 498A read with Section 34 of the Penal Code. The facts which led to the prosecution of the respondents before she Court of Session at Akola are as under:
2. Victim Suman was married to respondent Shankar about three years before the incident in March, 1992. According to the victim’s brother, complainant, Wasudeo, about an year after the marriage the respondents started ill-treating the victim. The respondent-accused was serving as a bailiff of Civil Court, Akot, at the relevant time. He used to make demands of money which his wife used to convey to the complainant who was serving as a Police Constable in neighbouring District Buldhana Small amounts ranging from Rs. 100 to Rs. 500 were accordingly paid to Suman by her brother. P.W. 4 Jaywantabai another sister of the victim also states of demand of Rs. 100 by the victim. This too is unrelated to dowry.
3. On 26.3.1992 a neighbour found the victim sitting in a burnt condition in front of her house in the evening at about 10.30 p.m. The accused was not to be seen. He therefore, waited for some time and ultimately shifted the victim to hospital from where she was shifted to Civil Hospital at Akola. The victim, however, succumbed to her injuries on 27.3.1992 at 13.50 hrs. The victim’s brother came to know of the incident and gave a report to police on 30th March, 1992 whereupon the offence was registered and investigation commenced.
4. In the course of investigation, police performed Panchanama of the spot. On 8th April, 1992 they seized a kerosene can from the house of the accused. Inquest and Post-mortem had already been performed before the report was received. On completion of the investigation the police sent charge-sheet against the respondent and his mother Renuka.
5. The learned Judicial Magistrate First Class, Akot committed the case to the Court of Session at Akola as the offences were exclusively triable by the Court of Session. The learned Additional Sessions, to whom the case was assigned, framed charge of the offences under Sections 302, Section 304B, 498A read with Section 34 of the Penal Code against both the accused persons. They pleaded not guilty and hence, were put on trial. In its attempt to bring home the guilt of the accused the prosecution examined in all six witnesses. Upon considering the evidence tendered in the light of the defence taken, the learned Additional Sessions Judge came to acquit both the accused persons. The State seeks to challenge the acquittal of only accused No. 1, victim’s husband Shankar, by presenting this appeal on the grounds stated in the Memo.
6. We have heard both the learned Additional Public Prosecutor Mr. Mirza for the State and Mr. Haq, learned Counsel appearing for the respondent/original accused No. 1.
7. According to learned A.P.P., there was an oral dying declaration made by the victim to one neighbour Sakharam and sister Kamal. This ought to have been relied on by the learned trial Judge to hold that the respondent was guilty of murder. We have examined this contention by reappraising the entire evidence tendered before the learned Additional Sessions Judge.
8. The complainant PW No. 1 Wasudeo is a Police Constable who came to know of the incident on 27.3.1992, i.e. on day after it occurred, when he had gone to perform his duty in the Court at Khamgaon. Yet he did not give any report till 30th March, 1992. In this report, made possibly after the victims last rites were performed, the complainant made allegations about the ill-treatment and demands of petty sums from time-to-time. He had stated in his deposition that he had paid Rs. 600 to his sister on the first occasion possibly in the year 1990, Rs. 500 in January, 1992, and Rs. 1,000 around 20th March, 1992. It may be seen from the evidence of Wasudeo that these demands of money had nothing to do with dowry. It was alleged that the respondent was addicted to liquor and used to ill-treat his wife after consuming liquor. It seems that the demands of money also emanated from inability to find money for drinking. Thus, these demands had nothing to do with the dowry. The demands must also be seen in the contest of position of the parties. While the respondent is bailiff of a Court his brother-in-law is a Police Constable. Therefore, it is perfectly probable that the respondent used to make his wife demand money from her brother.
9. P.W. 1 Wasudeo could not see his sister prior to her death and therefore, had nothing to state as to how his sister met with death or how she sustained burn injuries which led to her death. P.W. 5 Ravindrasingh is neighbour of the respondent staying in Civil Court Colony at Akot. He stated that on 26th March, 1992 on hearing commotion at about 10.30 p.m. he went to the house of the respondent and saw the deceased in burnt condition sitting in front of the house. Accused No. 1 i.e. respondent herein was not there and was not to be seen till the victim was admitted in the Civil Hospital, at Akola. Thus, it would be difficult to infer that the respondent was either present when the incident took place or ran away from the scene, because nobody has seen him doing so. Ravindrasingh’s evidence shows that police made seizure of the kerosene can on 8th April, 1992 i.e. almost 12 days after the incident, when they had already performed Panchanama of the spot on 31st March, 1992 and not seized any kerosene can from the spot. In any case, the finding of a kerosene can in a residential house is not unusual and therefore, the seizure of such a can on 8th April, 1992 is not significant.
10. There are two witnesses who stated that the victim conveyed to them the cause of her burn injuries. P.W. 2 Sakharam stated that co-brother of the accused is his neighbour so he knows the accused. He stated that he came to know from Kamlabai that her sister was admitted in the hospital due to burn injuries and so he had been to the hospital. He stated that the victim disclosed to him that she was set on fire by the respondents by pouring kerosene her person but the victim did not disclose any reason. It was suggested to the witness that he was depositing falsely on the instance of Motiram, husband of P.W. 3 Kamlabai, sister of the complainant and the victim.
11. P.W. 3 Kamal states that on learning that the victim was admitted to Civil Hospital due to burn injuries she, her husband and neighbours Kamal Ingale and Sakharam Ingale had been to the hospital. The neighbour is Sakharam Ingale and not Sakharam Gite who was examined as P. W.2. If there is any neighbour by name Sakharam Ingale, he was not examined and Kamal does not state that Sakharam Gite came to the hospital creating doubt as to whether P.W. 2 Sakharam Gite at all visited the victim in the hospital.
12. P.W. Kamal Ingale states that she saw her sister in the hospital and on inquiry victim disclosed that there was quarrel between the victim and her husband in the afternoon. In the evening the accused came to the house, poured kerosene on her person and set her ablaze. The witness stated that she had been to hospital between 10.00 a.m. and 11.00 presumably on 27.3.1992 since the incident occurred on the night of 26.3.1992. According to “death information” received from the Civil Hospital the victim died at 13.50 hrs. on 27.3.1992 i.e. at about 1.50 p.m., just 2-3 hours after Kamal met her. The death information also recites that since the patient was not fit to give dying declaration, her dying declaration could not be recorded, though two memoranda had been issued for recording dying declaration. If this was the condition of the victim it would be difficult to believe the words of P.W. 3 Kamal that the victim made any oral statement to her. If the victim was indeed in a position to make dying declaration police would have made an attempt to have the dying declaration recorded by the Magistrate. This would have been all the more so in the case of a victim who was sister of a Police Constable. Therefore, the word of Kamlabai, P.W. 3 regarding communication by the victim to her cannot be believed.
13. On a reappraisal of the entire evidence we find that the view taken by the learned trial Judge cannot be said to be unwarranted or improbable. Hence, the judgment of acquittal delivered by the learned Additional Sessions Judge, Akola does not call for any interference from this Court.
We, therefore, dismiss the appeal and direct that the Bail bounds, if any, furnished by the respondents, shall stand cancelled.