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Vilas S/O Shiwaji Pawar And Ors vs The State Of Maharashtra on 20 March, 2018

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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ORDER

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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