High Court
Legal Reasoning
CriAppeal-123-2003-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 123 OF 2003The State Of Maharashtra[Through P.S.O. Shirpur P.S.Taluka Patoda, District Beed.… Appellantversus1.Sarjerao Appaji GujarAge : 55 yrs.2.Kantabai Sarjerao GujarAge : 45 yrs.3.Shivaji Sarjerao GujarAge: 25 yrs4.Ashok Sarjerao GujarAge : 20 yrs, All by occupation Labour,R/o Baragwadi, U/VKhakarmoha, Taluka Patoda,(New Shirur) District Beed.… respondents[Orig. Accused]..…Mr. N. D. Batule, APP for the Appellant-State.Mr. R. G. Hange, Advocate for Respondent Nos. 1 to 4.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 31.01.2024Pronounced on: 07.02.2024JUDGMENT : 1.Dissatisfied by the judgment and order of acquittal passed bylearned 4th Adhoc Assistant Sessions Judge, Beed in Sessions Case No.40 of 1998 on 11.09.2002 acquitting the respondents from offences CriAppeal-123-2003-2- punishable under Sections 498-A, 306, 304-B, 504 r/w 34 of theIndian Penal Code [IPC], the State has preferred instant appeal.2.Respondents were chargesheeted on accusation that deceasedMandabai was married to accused no.3 husband and was cohabitingwith him as well as in-laws. Father-in-law as well as husband startedill-treating deceased over remaining amount of dowry to the tune ofRs.1,000/-. They also asked her to bring Rs.20,000/- from her parentsfor purchasing land. Father-in-law, mother-in-law and brother-in-lawalways abused deceased and further instigated husband to assaulther. Deceased promptly informed this to her parents. Getting fed upby such ill-treatment, deceased immolated herself. Therefore,complaint was lodged for above offences.3.At trial, prosecution adduced evidence of in all nine witnessesand on appreciating the oral and documentary evidence and onhearing both sides, learned trial Judge reached to a finding thatprosecution failed to make out any of the offences and by judgmentdated 11.09.2002, acquitted the accused persons. 4.Said judgment is now questioned by the State on the groundsthat firstly, there is improper appreciation of available evidence; CriAppeal-123-2003-3- secondly, learned trial Judge has not appreciated the evidence ofcomplainant and other witnesses; thirdly, from the evidence ofprosecution, necessary ingredients for attracting charges wereavailable because deceased had reported the ill-treatment mated outto her on account of failure of meeting demand of remaining dowryas well as meeting demand of Rs.20,000/- for purchase of land. That,there was continuous harassment, abuses and on instigation at thehands of in-laws, husband used to continuously beat her. That, therewas no other reason for deceased to commit suicide. That, unnaturaldeath had taken place in the house and accused persons are solelyresponsible for the same. Death being within seven years and therebeing dowry demand, offence under Section 304 of IPC was alsomade out. However, learned trial court has not considered andappreciated the evidence as well as the settled law on this count.That, even there was dying declaration but it has not been correctlyappreciated. Hence, he prays to interfere and set aside the judgmentunder challenge.Learned APP, to buttress his contention, placed reliance on thefollowing rulings:
Legal Reasoning
CriAppeal-123-2003-4- 1.Dattatraya Laxman Bagdi v. State of Maharashtra[Criminal Appeal No. 576 of 2001 decided by this Courtat Principal Seat on 28.08.2017]2.Vikas s/o. Baburao Marathe v. The State of Maharashtra[Criminal Appeal No. 387 of 2000 with CriminalApplication No. 502 of 2015 decided by this Court on05.03.2015]3.Appasaheb Narayan Jadhav v. The State of Maharashtra[Criminal Appeal No. 1261 of 2004 in Special Case No.11 of 2002 decided by this Court at Principal Seaton23.08.2013]5.Per contra, learned counsel for the accused would submit thatprosecution miserably failed to establish any of the charges. Hepointed out that evidence of mother and sister did not inspireconfidence. There were material omissions and contradictions in theirevidence. That, deceased had committed suicide for the best reasonsknown to her. Prosecution could not show accused to be present thereor responsible for the same. He further pointed out that consideringthe degree of burns calculated by the autopsy doctor, it wasimpossible for the deceased to given any dying declaration. He furtherpointed out that when her upper extremities were completely CriAppeal-123-2003-5- affected, it is doubtful whether she could give thumb impression.Thus, he tried to submit that dying declaration is a fabricateddocument merely to frame accused persons. Lastly, he submitted thatthere is no conclusive evidence regarding demand, ill-treatment orany dowry demand. He further pointed out that previously also,husband was prosecuted for the offence under Section 498-A of IPCbut he was acquitted upon trial on RC No. 231 of 1995. Thus, it is hissubmission that for the same offence, accused ought not to have beentried and convicted as it amounted to double jeopardy. 6.In the light of above submissions, this being the first appellatecourt and last fact finding court, re-appreciation and re-analysis of theentire evidence is required to be done.7.Prosecution, in support of their case, has examined followingwitnesses and the sum and substance of their evidence is as under:PW1Anjanabai, mother of deceased, deposed that aftermarriage, her daughter went to reside with her husband and in-lawsjointly. She was properly treated for one to one and half years, butthereafter accused persons subjected her to cruelty. They demandedremaining amount of dowry to the tune of Rs.1,000/- and even put up CriAppeal-123-2003-6- a demand of Rs.20,000/- for purchase of new field. Wheneverdeceased came for festivals, she narrated the ill-treatment. She claimsthat after incident, when she came to see deceased who was in CivilHospital, that time deceased also again told about ill-treatment andthat she could not tolerate and hence poured kerosene.PW2 Abdul Rashid is the Special Judicial Magistrate who hasrecorded dying declaration and it is his evidence that deceased toldthat three months prior to the said incident, they had been to ShirpurLtd. Pandurang Sahakari Karkhana for cutting sugarcane crop. Herhusband and in-laws were also residing with them in a hut. Shenarrated that on the day of incident, she woke up at 5.00 a.m. Thattime, her father-in-law asked her to bring Rs.20.000/- from herparents and abused her and he went away. Therefore, in anger, shenarrated that, she took kerosene, poured it on her person and setherself on fire. This witness identified the dying declaration at Exhibit45.PW3 Bhagwat, pancha to spot panchanama deposed aboutpanchanama being drawn in his presence and about collection ofburnt sari. He identified spot panchanama Exhibit 47. CriAppeal-123-2003-7- PW4 Uttam Bhange, Police Head Constable registered crimeand handed over investigation to PW9.PW5 Laxman More is the police head constable. He alsorecorded dying declaration of deceased which he identified to be atExhibit 45/A. According to him, deceased narrated that father-in-law,mother-in-law, brother-in-law and husband were ill-treating her forRs.1,000/- which were remaining towards dowry and Rs.20,000/- forpurchase of land. That, when they had been to sugarcane cutting,husband was assaulting her in the backdrop of above demand and on16.01.1998, father-in-law again put up demand of Rs.20,000/- andtherefore, in anger she poured kerosene and set herself on fire. PW6 Dr. Ramchandra Deshpande, who conducted postmortemand opined deceased to have suffered 71% burns and cause of deathto be ‘shock due to burns’.PW7 Dr. A. N. Deshpande who gave certificate about fitness togave statement.PW8 Nandabai is the sister of deceased. She also deposed thather deceased sister Mandabai was treated well for one to one and half CriAppeal-123-2003-8- years after marriage and thereafter they started ill-treating her anddemanded remaining amount of dowry to the tune of Rs.1,000/- andadditional amount of Rs.20,000/- for purchase of land. According tothis witness, deceased used to inform about the said demands duringher visits to parental house.PW9 A.P.I. Laxman Borade is the Investigating Officer.ANALYSIS8.The sum and substance of accusation is that after marriage,deceased Mandabai was treated well by husband and in-laws butthereafter there was demand of Rs.1,000/- towards remaining dowryand Rs.20,000/- for purchase of field and on said count, she wasallegedly maltreated.9.Mother PW1 has narrated in her examination-in-chief aboutdemand, ill-treatment and about hearing news and in hospital,deceased informing that because of ill-treatment and demand, shepoured kerosene. From her cross it is emerging that accused arealready related to this witness and deceased. In cross she answeredthat dowry of Rs.4,000/- was decided to be given at the time ofmarriage and at that time Rs.3,000/- were paid to the accused and CriAppeal-123-2003-9- only Rs.1,000/- had remained unpaid. However, except testimony ofmother, there is no independent witness to corroborate her suchtestimony. Her evidence further shows that initially RCC No. 231 of1996 was registered against husband on complaint of deceased forcommission of offence under Section 498-A of IPC, but the matter wascompromised and as such, accused was acquitted and deceased hadcome back to cohabit.10.Sister PW8 also in her examination-in-chief deposed aboutproper treatment mated out to deceased for one to one and half yearsbut thereafter demand being put up for remaining dowry andadditional amount of Rs.20,000/- for purchase of land. Even PW8 hasadmitted about previous proceedings instituted by deceased underSection 498-A of IPC.11.It is pertinent to note that, on close scrutiny of the evidence ofmother and sister of deceased, specific details of when and wheresuch demand was made is not getting clear. Learned counsel for therespondents would point out that alleged incident had taken placewhen accused and deceased were outside the house for sugarcanecutting and they were staying by erecting a hut. Therefore, there is noquestion of accused father-in-law putting up demand at such distant CriAppeal-123-2003-10- place. There is force in the above submission. Testimony of PW1mother and PW8 sister, as stated above, is omnibus in nature. Detailsas to where accused had intended to purchase land are not coming inthe testimony of any of the prosecution witnesses. Mere vagueallegation seems to be raised.12.Second piece of evidence which is caught hold of prosecution isthe said two dying declarations at Exhibits 45 and 45/A. However,apparently in the said dying declarations deceased had reiterated thatshe set herself ablaze in anger. There are no allegations about any ill-treatment except alleged demand made by accused father-in-law, whoimmediately thereafter allegedly left for work. Therefore, taking suchcontents of the dying declaration into consideration, it is apparentthat it is a case of self immolation. In the rage of anger deceasedseems to have set her ablaze. However what exactly happened thatday has not come in the testimony of PW1 and PW8. They both areclaiming to have received oral dying declaration, however nocomplaint has been filed independently by them.13.Consequently, on re-appreciation of evidence of PW1, PW8 andthe police witnesses and perusing the dying declarations, it is evidentthat suicide was committed in anger. There is weak or fragile CriAppeal-123-2003-11- evidence about cruelty. Specific details of nature ofill-treatment/harassment are not finding place in the evidence ofmother and sister of deceased. There is no independent evidence asregards to demand of dowry being raised. Therefore, with suchquality of evidence, no other conclusion than that is reached bylearned trial Judge could be arrived at. It is the possible view which isemerging even on re-appreciation. No case being made out and noperversity being pointed out in the appreciation, appeal is required tobe dismissed. Hence, I proceed to pass the following order:ORDERThe appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.]vre