201-APPEAL-371-2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.371 OF 2013
1) VILAS S/O.SHIWAJI PAWAR )
)
2) SHIWAJI DATTU PAWAR )
)
3) SANTOSH SHIWAJI PAWAR )
)
4) SAU.CHHAYA SHIVAJI PAWAR )…APPELLANTS
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Ms.N.S.K.Ayubi, Appointed Advocate for the Appellant.
Mr.Prashant Jadhav, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 20th MARCH 2018
ORAL JUDGMENT :
1 By this appeal, the appellants/accused persons nos.1
to 4 are challenging judgment and order dated 6 th November 2012
passed by the learned Ad-hoc District Judge-1 and Additional
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Sessions Judge, Vasai, in Sessions Case No.52 of 2011, thereby
convicting them of offences punishable under Sections 498A, 306
read with 34 of the Indian Penal Code. For the offence punishable
under Section 498A of the Indian Penal Code, all
appellants/accused persons are sentenced to suffer rigorous
imprisonment for 3 years apart from direction to pay fine of
Rs.2,500/-, and in default, to undergo simple imprisonment for 3
months. For the offence punishable under Section 306 of the
Indian Penal Code, they are directed to suffer rigorous
imprisonment for 5 years apart from payment of fine of
Rs.3,500/-, and in default, they were directed to undergo simple
imprisonment for 6 months.
2 Briefly stated, the prosecution case is thus :
(a) Appellant/accused no.1 Vilas Pawar was husband,
appellant/accused no.2 Shiwaji Pawar was father-in-law,
appellant/accused no.3 Santosh Pawar was brother-in-law
whereas appellant/accused no.4 Chhaya Pawar was mother-
in-law of Dipali Vilas Pawar, who, according to the
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prosecution case, died suicidal death on 21st November
2010.
(b) It is case of the prosecution that appellant/accused no.1
Vilas Pawar married Dipali Srirang Salunkhe on 27th May
2005. After marriage, she started residing with all
appellants/accused persons at her matrimonial house at
Sativali, Vasai, District Thane. After few days from her
marriage, appellants/accused persons used to beat Dipali
Pawar. They used to coerce her to bring money from her
parental relatives for redemption of mortgage of the house.
Despite lapse of about five years from her marriage, Dipali
Pawar was unable to conceive. The appellants/accused
persons used to give taunts to her on this count.
(c) The incident in question leading to death of Dipali Pawar
took place on 17th November 2010. On that day, appellant/
accused no.4 Chhaya Pawar had been to the parental house
of Dipali Pawar for fetching the amount of Rs.30,000/- for
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redemption of mortgage of their house. When she was at
the parental house of Dipali Pawar, appellant/accused no.1
Vilas Pawar telephonically informed the parental relatives of
Dipali Pawar that she sustained accidental burns due to
flaring of stove. As appellant/accused no.1 Vilas Pawar had
informed about accidental burns caused to Dipali Pawar, her
mother PW1 Ahilya Salunkhe, her parental aunt PW2 Vidya
Salunkhe as well as her uncle PW3 Ramesh Salunkhe rushed
to the K.E.M. Hospital, Mumbai. It is case of the prosecution
that Dipali Pawar indulged in self effacement because of
cruelty inflicted on her by the appellants/accused persons.
While taking treatment at the K.E.M. Hospital, Mumbai,
Dipali Pawar succumbed to burn injuries on 21 st November
2010. PW1 Ahilya Salunkhe, who happens to be mother of
deceased Dipali Pawar, then lodged First Information Report
(FIR) Exhibit 11 against the appellants/accused persons on
25th November 2010, which has resulted in registration of
Crime No.451 of 2010 for offences punishable under
Sections 498A, 306 read with 34 of the Indian Penal Code
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with Police Station Manikpur. After conducting routine
investigation, the appellants/accused persons were charge-
sheeted.
(d) The learned trial court framed Charge for offences
punishable under Sections 498A, 306 read with 34 of the
Indian Penal Code against the appellants/accused persons.
As they pleaded not guilty, in order to bring home the guilt
to the accused persons, the prosecution has examined in all
five witnesses. First Informant Ahilya Salunkhe – mother of
deceased Dipali Pawar is examined as PW1. PW2 is Vidya
Salunkhe. She is parental aunt of deceased Dipali. PW3
Ramesh Salunkhe is husband of PW2 Vidya Salunkhe. The
Autopsy Surgeon, Dr.Madhura Kuchekar, Medical Officer
with K.E.M. Hospital, Mumbai, is examined as PW4.
Investigating Officer Srikant Patil, Assistant Police Inspector,
is examined as PW5. The defence of the appellants/accused
persons was that of total denial. According to them, Dipali
sustained burns accidentally because of flaring of the stove.
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(e) Upon hearing the parties, by the impugned judgment and
order, the learned trial court was pleased to convict the
appellants/accused persons for offences punishable under
Sections 498A, 306 read with 34 of the Indian Penal Code
and they are accordingly sentenced, as indicated in the
opening paragraph of this judgment.
3 I have heard Ms.Nasreen Ayubi, the learned advocate
appointed to represent the appellants/accused persons, at the cost
of the State. She argued that in the case in hand, the prosecution
has miserably failed to prove the suicidal death of Dipali Pawar,
and therefore, the Charge for the offence punishable under
Section 306 of the Indian Penal Code fails. The evidence adduced
by the prosecution witnesses is not sufficient to hold that the
Charge for the offence punishable under Section 498A of the
Indian Penal Code is proved by the prosecution. Hence, in
submission of the learned advocate for the appellants/accused
persons, they are entitled for acquittal.
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4 As against this, according to the learned APP, the
deceased died because of burn injuries, within seven year from
her marriage with appellant/accused no.1 Vilas Pawar and that
too, at her matrimonial house. Therefore, by drawing
presumption under Section 113A of the Evidence Act, the
appellants/accused persons are rightly convicted by the learned
trial court.
5 I have carefully considered the rival submissions and
also perused the Record and Proceedings including oral as well as
documentary evidence.
6 Before appreciation of evidence of the prosecution
witnesses. Let us put on record undisputed facts. The defence has
not disputed that appellant/accused no.1 Vilas Pawar married
Dipali Pawar on 27th May 2005. Relationship of the appellant/
accused no.1 Vilas Pawar with deceased Dipali Pawar is not
disputed. The defence has also not disputed the fact that after her
marriage Dipali Pawar started residing with them. Undisputedly,
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Dipali Pawar sustained burn injuries at the house of
appellants/accused persons on 17th November 2010 and she died
because of burn injuries on 21st November 2010.
7 Death of Dipali Pawar because of burn injuries
sustained by her is also established by the prosecution from
evidence of Autopsy Surgeon PW4 Dr.Madhura Kuchekar, Medical
Officer, working with K.E.M. Hospital, Mumbai. This Autopsy
Surgeon has stated that on 21st November 2010, dead body of
Dipali Vilas Pawar was brought for conducting postmortem by
Police Station Bhoiwada. She conducted autopsy on the dead
body. As per version of this witness, dead body of Dipali Pawar
was having 90% ante-mortem burn injuries and she died because
of Septicemia as a result of burn injuries. In cross-examination,
this witness admitted that because of sudden flare of stove, it is
possible to sustain burn injuries, as were found on the dead body
of Dipali Pawar. Thus, with this evidence of PW4 Dr.Madhura
Kuchekar, which is corroborated by contemporaneous report of
postmortem examination Exhibit 28, the prosecution has
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established the fact that Dipali Pawar died unnatural death
because of sustaining burn injuries.
8 Death of Dipali Pawar occurring because of burn
injuries sustained at the house of the appellants/accused persons
was certainly within seven years of her marriage with
appellant/accused no.1 Vilas Pawar. According to the prosecution
case, she was subjected to cruelty by them. Section 113A of the
Indian Evidence Act, 1872, prescribes presumption as to abetment
to suicide by a married woman. As per provisions of this Section,
if it is shown that a married woman committed suicide within
seven years of her marriage and if it is established that her
husband or his relatives had subjected such married woman to
cruelty, then the court may, having regard to all other
circumstances of the case, presume that such suicide had been
abetted by her husband or by relatives of her husband. It is clear
from perusal of Section 113A of the Evidence Act that the mere
fact of suicidal death of a married woman within the period of
seven years from her marriage, is not sufficient to attract
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presumption as envisaged by Section 113A of the Evidence Act.
For drawing this presumption, primary fact of subjecting the
married woman to cruelty is required to be established by the
prosecution and that alone is not sufficient. The court is then
supposed to keep in mind all other attending circumstances of the
case for drawing such presumption that the suicide had been
abetted by her husband and his relatives.
9 Similarly, for making out the Charge for the offence
punishable under Section 306 of the Indian Penal Code, the
prosecution is enjoined to establish the fact that the victim had
died suicidal death. Apart from that, the prosecution is also duty
bound to establish that there was instigation, provocation,
incitement or encouragement by accused persons to the victim of
the offence to commit suicide. The prosecution is required to
indicate some active suggestion or some support or stimulation by
the accused to the victim in commission of suicide by such victim.
Section 107 of the Indian Penal Code requires mensrea and
without knowledge or intention, there cannot be abetment and
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the knowledge and intention must relate to the crime. Keeping in
mind these prerequisites, let us examine at the outset itself as to
whether the prosecution has established that death of Dipali
Pawar occurred on 21st November 2010 because of burn injuries
sustained by her on 17th November 2010 was a suicidal death. On
this aspect, the prosecution is heavily relying on evidence of her
mother PW1 Ahilya Salunkhe as well as her other relatives viz.
PW2 Vidya Salunkhe and PW3 Ramesh Salunkhe. Apart from
these three witnesses, no other independent witness is examined
by the prosecution either to prove the suicidal death, cruelty and
abetment to the deceased for committing suicide by the
appellants/accused persons. In other words, there is not a single
piece of disinterested evidence adduced by the prosecution in
order to make out the offence. True it is that there is no
presumption in law that the relatives of victim are bound to make
false statements, but then as it is observed in Dilip Singh vs. State 1
as well as in Sharad vs. State2 such persons, although they would
not protect the real culprit, still, would naturally have a tendency
1 AIR 1953 SC 364
2 AIR 1984 SC 1622
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to exaggerate or add facts even unconsciously making it
absolutely necessary to scrutinize their evidence with great care
and caution. Evidence of such witnesses is required to be
accepted only if it stands scrutiny with more than ordinary case.
10 It is seen from evience of PW1 Ahilya Salunkhe, PW2
Vidya Salunkhe and PW3 Ramesh Salunkhe that on 17 th
November 2010 i.e. the day on which the incident of sustaining
burns to Dipali Pawar had occurred, appellant/accused no.4
Chhaya Pawar had been to their house. Evidence of PW1 Ahilya
Salunkhe shows that after appellant/accused no.4 Chhaya Pawar –
mother-in-law of deceased Dipali Pawar reached their house, PW1
Ahilya Salunkhe got a telephonic call from her daughter Dipali
Pawar. During the course of that telephonic call, as seen from
evidence of PW1 Ahilya Salunkhe, Dipali told her to give an
amount of Rs.30,000/- to appellant/accused no.4 Chhaya Pawar
for getting the house released from mortgage. Dipali Pawar also
requested her mother to extend hospitalities to her mother-in-law
– appellant/accused no.4 Chhaya Pawar. PW3 Ramesh Salunkhe
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has also spoken about visit of appellant/accused no.4 Chhaya
Pawar to their house on 17th November 2010 and consequent
telephonic call of Dipali Pawar to him requesting him to pay an
amount of Rs.30,000/- to appellant/accused no.4 Chhaya Pawar.
Both these witnesses have not stated that during that telephonic
call Dipali Pawar had informed them that she was being subjected
to harassment or ill-treatment on account of payment of
Rs.30,000/-. Evidence of PW1 Ahilya Salunkhe, PW2 Vidya
Salunkhe and PW3 Ramesh Salunkhe shows that during the
course of visit of appellant/accused no.4 Chhaya Pawar to their
house, they got another telephonic call from appellant/accused
no.1 Vilas Pawar. By that telephonic call, appellant/accused no.1
Vilas Pawar had informed them that Dipali Pawar sustained burn
injuries and she is admitted at K.E.M. Hospital. Evidence of these
three witnesses further shows that then they all rushed to K.E.M.
Hospital and saw Dipali Pawar in burnt condition.
11 What happened subsequently is stated differently by
all these three witnesses, who are mother, paternal uncle and
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paternal aunt of deceased Dipali Pawar. As per the version of her
mother PW1 Ahilya Salunkhe, at the K.E.M. Hospital, Dipali Pawar
told her that in the morning hours of 17 th November 2010,
appellant/accused no.1 Vilas Pawar had beaten her by belt and
therefore, she committed suicide by pouring kerosene on her
person. PW2 Vidya Salunkhe who had accompanied PW1 Ahilya
Salunkhe to the K.E.M. Hospital has not spoken anything about
cause of sustaining burn injuries by Dipali Pawar. Her evidence is
conspicuously silent about utterances of Dipali Pawar at the
K.E.M. Hospital, Mumbai. As against this, PW3 Ramesh Salunkhe
– husband of PW2 Vidya Salunkhe and brother-in-law of PW1
Ahilya Salunkhe, has stated that at K.E.M. Hospital, Mumbai, he
saw Dipali in burnt condition and she was unable to speak. He
asked Dipali as to whether she had set herself ablaze and upon
that, by gestures, Dipali communicated to him that she did not
commit suicide.
12 Considering this nature of evidence regarding suicidal
death coming on record from chief-examination of these three
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witnesses themselves, let us scrutinize the contemporaneous spot
panchnama as it is well said that the witnesses may lie but
circumstances do not. The spot panchnama at Exhibit 31 is an
undisputed document. It was prepared by the Investigator on 17 th
November 2010 itself i.e. on the day of the incident. Perusal of
the spot panchnama reveals the situation prevalent on the spot of
the incident. The spot panchnama shows that the house of the
appellants/accused persons was a one room house of size 10 feet
x 15 feet. On the kitchen ota in that room, there was a kerosene
stove. The spot panchnama reflects that the stove flared up and
because of this flare, the stove was found in burnt condition. The
nearby wall had also turned to blackish in colour because of the
fire caused by the flaring of the stove. If one perused the FIR
lodged by PW1 Ahilya Salunkhe, then also it is seen that
appellant/accused no.1 Vilas Pawar had immediately
communicated to her that Dipali Pawar sustained burn injuries
because of flaring of the kerosene stove. It is, also seen from
evidence of PW3 Ramesh Salunkhe that Dipali communicated to
him that she did not indulge in self effacement. The spot
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panchnama is reflecting the flaring of the stove indicating
accidental burns. Evidence of PW3 Ramesh Salunkhe is to the
effect that Dipali was not in a position to speak when he visited
the K.E.M. Hospital. PW1 Ahilya Salunkhe had visited the K.E.M.
Hospital along with her relatives namely PW2 Vidya Salunkhe and
PW3 Ramesh Salunkhe. She, however, is stating that Dipali had
spoken with her and told her that the appellant/accused no.1
Vilas Pawar had assaulted her by means of a belt and therefore,
she had committed suicide by pouring kerosene on her person.
The prosecution has failed to seize half burnt clothes, if any, of
deceased Dipali in order to demonstrate that they are found to be
having traces of kerosene on them for inferring suicidal death of
Dipali. In view of these reasons, it cannot be stated with certainty
that Dipali Pawar had died suicidal death by dousing herself with
kerosene and then by setting herself on fire. Thus, by granting
benefit of doubt to the appellants/accused persons, I hold that the
prosecution has failed to establish the fact that Dipali died suicidal
death on 21st November 2010 because of sustaining burns on 17 th
November 2010. As such, the Charge for the offence punishable
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under Section 306 read with 34 of the Indian Penal Code must
fail.
13 Now let us examine whether deceased Dipali was
subjected to cruel treatment by the appellants/accused persons or
any of them. As per version of PW1 Ahilya Salunkhe after some
days from her marriage, accused persons started beating and
abusing Dipali for trivial reasons. They used to ask her to fetch
money from her parents for getting the house released. This
witness further stated that appellants/accused persons were ill-
treating Dipali because she was unable to conceive. As against
this, PW2 Vidya Salunkhe has deposed that after marriage,
relations of appellants/accused persons with Dipali were not
cordial and they were ill-treating her because she was unable to
conceive. PW2 Vidya Salunkhe further deposed that house of
appellants/accused persons was mortgaged and for redemption of
that mortgage, they were demanding money through Dipali. PW3
Ramesh Salunkhe has deposed that after marriage, the
appellants/accused persons told Dipali to fetch Rs.30,000/- for
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redemption of mortgage of their house. He deposed that after
every 2 to 3 months, the appellants/accused persons used to raise
dispute and therefore, Dipali used to stay with them for a period
of about fifteen days.
14 As stated in the foregoing paragraphs, when on the
day of the incident, appellant/accused no.4 Chhaya Pawar was in
the house of these three prosecution witnesses, Dipali had
communicated with them, but had not disclosed to any of them
that an amount of Rs.30,000/- should be paid or else she would
be subjected to cruelty by the appellants/accused persons. PW2
Vidya Salunkhe has not stated that on account of demand of
money, Dipali used to be subjected to cruelty by appellants/
accused persons. Evidence of PW1 Ahilya Salunkhe is as vague as
it can be. She has not deposed what were the abusive words,
what were the trivial reasons and who was beating Dipali and
how she used to be beaten by the appellants/accused persons.
What was the nature of her alleged ill-treatment at the hands of
the appellants/accused persons is also not disclosed by PW1
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Ahilya Salunkhe. So far as evidence of PW3 Ramesh Salunkhe is
concerned, he has spoken about disputes. What was the nature of
such disputes is also not stated by this witness. In other words,
this court has no data to assess the ill-treatment which Dipali was
allegedly getting from the appellants/accused persons, in order to
draw inference as to whether it is falling within the Explanation to
Section 498A of the Indian Penal Code defining the term “cruelty.”
Thus, with such nature of evidence, it is difficult to infer that
Dipali was subjected to cruelty by the appellants/accused persons.
15 The incident of sustaining burns by Dipali took place
on 17th November 2010. It was immediately communicated by
appellant/accused no.1 Vilas Pawar to her parental relatives, who
promptly visited the K.E.M. Hospital on the very same day to see
Dipali in burnt condition. During the course of her medical
treatment, Dipali succumbed to burn injuries on 21 st November
2010. If really Dipali was used to be subjected to ill-treatment or
cruelty by the appellants/accused persons, then under normal
course, these near and dear ones of Dipali would have lodged
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report against the appellants/accused persons immediately after
the incident. Similarly, even after death of Dipali on 21 st
November 2010, no report came to be lodged against the
appellants/accused persons. The FIR against them was ultimately
lodged on 25th November 2010 by PW1 Ahilya Salunkhe. The
evidence of PW1 Ahilya Salunkhe is conspicuously silent about
this delay in lodging the FIR. Why police were not approached is
not explained by either PW2 Vidya Salunkhe or her husband PW3
Ramesh Salunkhe during the course of their examination.
16 In the result, I hold that the prosecution has failed to
prove willful conduct of such a nature by appellants/accused
persons as is likely to compel Dipali to commit suicide or to cause
grave injury or danger to her life, limb or health. It is not proved
that she was subjected to harassment by the appellants/accused
persons with a view to coerce her or prosecution witnesses PW1
Ahilya Salunkhe, PW2 Vidya Salunkhe and PW3 Ramesh Salunkhe
to meet their unlawful demand of money. In the result, the appeal
needs to be allowed, and therefore, the order :
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i) The appeal is allowed.
ii) The impugned judgment and order of conviction of the
appellants/accused persons for offences punishable under
Sections 498, 306 read with 34 of the Indian Penal Code
passed on 6th November 2012 by the the learned Ad-hoc
District Judge-1 and Additional Sessions Judge, Vasai, in
Sessions Case No.52 of 2011 between the parties is quashed
and set aside.
iii) All appellants/accused persons are acquitted of offences
punishable under Sections 498A, 306 read with 34 of the
Indian Penal Code.
iv) Fine amount, if any paid by them, be refunded to them.
(A. M. BADAR, J.)
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