High Court

Legal Reasoning

-1- Cri.Appeal.721.2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 721 of 2003Kamlakar Harischandra Yerkal, Age : 30 years, Occu. : Service, M.S.E.B. Helper, R/o. Ramwadi, At present R/o. Javalga [K],Tq. Omerga, Dist. Osmanabad.… AppellantVersusState of Maharashtra, Through Mira w/o. Kamlakar Yerkal, Age : 23 years, Occu. : Household, R/o. Ramwadi, Tq. & Dist. Osmanabad. At Present R/o. Yelori, Tq. Ausa, Dist. Latur. … Respondent…..Mr. Amit A. Mukhedkar, Advocate for the Appellant.Mr. N. D. Batule, APP for the Respondent-State......CORAM :ABHAY S. WAGHWASE, J.DATED :2nd FEBRUARY, 2024JUDGMENT : 1.Conviction recorded for offence under section 498A ofIndian Penal Code (IPC) by learned Ad-hoc Additional SessionsJudge, Osmanabad dated 26.09.2003 is taken exception to byconvict by filing instant appeal.2.Prosecution was launched on complaint filed by wife (PW1Mira) alleging that, after marriage in February 1998, she went to -2- Cri.Appeal.721.2003 cohabit with her husband and in-laws. That, her husband Kamlakarwas working in MSEB. She was treated well for 2-3 months, butthereafter accused raised demand of Rs.1,00,000/- for drilling bore,purchasing motorcycle and cupboard etc. Because of weak financialcondition, demand was not met and therefore, on 30.01.1999accused husband raised quarrel at around 8:30 p.m. sprinkledkerosene and set her on fire and ran away. After recovery fromburns, she lodged complaint with Lohara police station, on thestrength of which, crime was registered and accused was charge-sheeted for offence under section 498A, 307 and 109 read with 34 ofIPC and tried by learned IInd Ad-hoc Additional Sessions Judge, whoaccepted the case of prosecution and recorded guilt as stated aboveand hence the appeal. SUBMISSIONSOn behalf of appellant :-3.Questioning the findings reached by the learned trial Judge,it is pointed out by learned counsel for appellant that prosecutionhas miserably failed to establish the case beyond reasonable doubt.He pointed out that, apparently it is a false implication as accordingto him deceased herself gave two dying declarations voluntarily andunanimously declaring that, she had suffered accidental burns whilecooking. That, scene of occurrence panchanama clearly shows -3- Cri.Appeal.721.2003 occurrence to be while cooking. However, after long gap of almost 47days, false and afterthought complaint accusing false allegationswas lodged. It is pointed out that, none of examined witnesses areconsistent or corroborating each other on material counts. Theirevidence is full of material contradictions and omissions. However,in spite of such evidence, it is submitted that, learned trial Judgehas recorded guilt. Findings are not supported by sound reasonsand moreover are contrary of evidence and he prays to allow theappeal by setting aside the judgment under challenge. On behalf of State :-4.Supporting the judgment, learned APP pointed out that, inall 06 witnesses have deposed in favour of prosecution case. Theirtestimonies have remained unshaken. Victim herself has deposedabout maltreatment, bad vices of husband accused, about he pouringkerosene and igniting her. There is correct appreciation of availableevidence and so learned APP prays to dismiss the appeal. 5.On re-appreciating and re-analyzing the evidence, it seemsthat case of prosecution is rested on evidence of in all 06 witnessesand status and sum of substance of their evidence is as under :- PW1 Mira, complainant herself gave date of marriagewith accused as 02.02.1998 and she clarified the relations of -4- Cri.Appeal.721.2003 accused no.2 as brother-in-law, accused nos.3 and 4 as parents-in-law. According to her, after marriage she went to cohabit withhusband at Kanegaon, whereas her in-laws stayed at Ramwadi.According to her, they used to come intermittently and ill-treat herby raising demand of motorcycle, cupboard and Rs.1,00,000/- fordrilling bore. She reported about demand to her parents as well asSarpanch of their village. She alleges that, she told her father aboutaccused not providing her food and beating her. Both parents to giveunderstanding to the accused. On 28.01.1999 her in-laws andbrother-in-law came to the village Kanegaon, raised quarrel in thebackdrop of demand, stayed for two days and went back to theirvillage on 30.01.1999. On same day, in the afternoon, accusedhusband quarreled on account of her quarreling with his parentsand brother. Around 8:30 p.m., she alleged that, while she wassleeping, accused poured kerosene oil of the chimney, ignited match-stick, threw it on her, close the door and went out. She was taken tohospital in unconscious condition. She further deposed that whenshe became conscious, accused told her not to inform about hesetting on fire by threatening to kill her and her parents, if she tellsthe fact and so gave statement to that extent. Later on, she told herfather about role of accused and thereafter gave statement to police(Exh.20). -5- Cri.Appeal.721.2003 PW2 Dr. Satish Pawar is the Medical Officer, who issuedinjury certificate (Exh.23). PW3 Mahadeo is the father, who testified that,complainant daughter came to his house for Diwali and narratedabout ill-treatment and demand. According to him, when he went togive understanding to the accused, he was driven out. On31.01.1999, he got message about burns and so visited hospital.After one to one and half month, when he asked about the incident,his daughter told about ill-treatment, unlawful demand and quarrelon 30.01.1999 and husband pouring kerosene and setting her tofire, and therefore, he lodged complaint at Lohara Police Station. PW4 Pandurang did not support the prosecution as he isdeposed that he did not know for what purpose complaint was ill-treated. PW5 Balwant, panch to spot panchanama, narrated tothat extent and identified at Exh.30. PW6 Revansidha Bansode is the Investigating Officer. ANALYSIS6.After appreciating the above discussed evidence andconsidering the submissions advanced before this court, apart from -6- Cri.Appeal.721.2003 oral evidence of complainant herself, her father and doctor, thereare two dying declarations, and therefore, the same are firstrequired to be visited and appreciated. 7.Both dying declarations are admitted by victim to be herversions. Both are recorded on 31.01.2019. Apparently, in bothdying declarations deceased had attributed burns to sudden burst ofstove while boiling milk. In chief as well as cross there is categoricaladmission to that extent. Admittedly, AD is also registered,therefore, so called dying declarations are about accidental burns.8.On appreciating the evidence of victim complainant, it isclearly emerging that, she and husband resided at Kanegaon aftermarriage, whereas her in-laws, who were also accused in the trialcourt are resident of Ramwadi and they used to visit intermittently.Her evidence is about all accused demanding Rs.1,00,000/- fordrilling bore and also making demand of motorcycle and cupboard.When exactly such demand was made, has not been stated by her asshe merely speaks that she was treated properly for 2 to 3 months.Marriage has admittedly taken place in February 1998. Apparently,what was the nature and mode of ill-treatment has not beenspecified by her. However, she has given date of visit of in-laws as28.01.1999 and has alleged demand and ill-treatment. Resultantly, -7- Cri.Appeal.721.2003 Therefore, almost after ten months, first time of allegations ofdemand of ill-treatment are raised. Be it so. As stated above, tillarrival of in-laws dated 28.01.1999, till Diwali and till occurrence,there is no complaint about demand or ill-treatment. No details areprovided as to where proposed bore-well was to be drilled and forwhom demand of cupboard was allegedly raised. General allegationsseems to have been made by her regarding demand and ill-treatment. 9.It is also pertinent to note that, at the time of allegedincident of burns, in-laws are apparently not with complainant oraccused. Only husband is shown to be present. According to her, hequarreled with her in the afternoon and after 8:30 p.m., she claimsthat, he poured kerosene from chimney and ignited her while shewas sleeping. But, she herself has given two dying declarationsreporting occurrence as suffering due to stove explosion whileboiling milk. After recovery i.e. almost after one and half months,she seems to have reported her father and then law seems to havebeen set into motion. Apparently, delay in reporting is immense. Ithas not been shown that till complaint dated 18.03.1999 she wasnot in a position to give complaint nor her father at any point of timeprior to that lodged any complaint. -8- Cri.Appeal.721.2003 Omissions in the testimony of father is brought aboutcomplainant informing during visit at the time of Diwali andrepeating unlawful demand raised by accused. He admitted that, shetold him in hospital about suffering burns due to burst of stove.10.PW4 Pandurang as stated above merely spoke about ill-treatment at the hands of in-laws and husband, but he is unable toassign reason of ill-treatment or nature of demand. 11.Prosecution’s own witness PW5 Balwant in cross hasadmitted that, on that day, he and accused were doing electricitywork and accused was with him upto 9:30 p.m. and after hearingnoise, he and accused rushed to the house. Therefore, with suchmaterial, presence of accused at the scene of occurrence at 8:30 p.m.comes under shadow of doubt. 12.Material omissions by father and victim are got provedthrough cross of Investigating Officer. To sum up, offence for which accused was charge-sheetedare not brought home. 13.After going through the impugned judgment, apparently,there is improper appreciation of the evidence. Findings are -9- Cri.Appeal.721.2003 incorrectly recorded and same are contrary to the evidence onrecord. Consequently, interference at the hands of this appellateCourt becomes necessary and resultantly, appellant succeeds and soI proceed to pass following order :ORDERI) The criminal appeal stands allowed.II)The conviction awarded to the appellant – KamlakarHarischandra Yerkal in Sessions Case No.86 of 2000 bylearned IInd Ad-hoc Additional Sessions Judge,Osmanabad on 26.09.2003 for the offence punishableunder section 498A of Indian Penal Code stands quashedand set aside.III) The appellant – Kamlakar Harischandra Yerkal standsacquitted of the offence punishable under Section 498Aof Indian Penal Code.IV) He be set at liberty, if not required in any other case.V) The fine amount deposited, if any, be refunded to theappellant after the statutory period.VI) It is clarified that there is no change as regards the orderin respect of disposal of muddemal. [ABHAY S. WAGHWASE, J.]Tandale