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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APPEAL-1301-2002.doc19 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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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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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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APPEAL-1301-2002.docVandana. 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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APPEAL-1301-2002.docit 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 heldthat 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) 880avk 18/18
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