High Court
Legal Reasoning
{1} CR APPEAL NO. 610 OF 2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 610 OF 20031.Uttam Narayan WathoreAge: 24 years, Occu.: Labour,R/o. Nur Patel Vasti,Jogeshwar Shivar,Tq.Gangapur,Aurangabad.2.Gautam Narayan WathoreAge: 20 years, Occu.: Labour,R/o. As above.….Appellants (Orig Accu. Nos.1 & 2) Versus .The State of Maharashtra …..Respondent …..Advocate for Appellant : Mr. Nilesh S. GhanekarAPP for Respondent : Mrs.Uma S.Bhosale ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 24 JULY, 2024 PRONOUNCED ON : 09 AUGUST, 2024 JUDGMENT :- 1.Appellants assail judgment and order passed by the learnedSessions Judge, Aurangabad in Sessions Case No.58 of 2001 dated21-08-2003 thereby convicting both appellants for offence underSections 498-A, 307 read with 34 of the Indian Penal Code (IPC). {2} CR APPEAL NO. 610 OF 2003CASE OF PROSECUTION IN BRIEF2.Victim Manisha @ Vandana was married to appellant no.1Uttam on 07-03-1999. She went to cohabit with him at Waluj andthere she resided with appellant no.1 husband as well as brother-in-law i.e. appellant no.2. According to prosecution, marriage wasdecided to perform by fixing dowry of Rs.16,000/- and out of it,Rs.15,000/- was paid at the time of marriage and Rs.1,000/-remained balance. After about a month or two, husband suspectedfidelity of victim and even took her for medical check up i.e.suspecting her pregnancy. Thereafter, both appellants put up demandof Rs.10,000/- for purchase of Auto Rickshaw, which they wantedvictim to bring it from her father and on such count, there was ill-treatment. They beat her by fist and kick blow. On 16-05-1999, inthe backdrop of above demand, accused no.1 husband pouredkerosene on person of victim and his brother accused no.2incinerated her. When she raised hue and cry, out of fear, she wastaken to hospital. When undergoing treatment, statement exh.14was recorded. Crime was registered, investigated and on completion,both appellants were chargesheeted and tried by the learned SessionsJudge, who appreciated oral testimonies of as many as eightwitnesses and also relied on documentary evidence. After answering {3} CR APPEAL NO. 610 OF 2003questions under Section 313 of the Code of Criminal Procedure,accused also adduced evidence of two witnesses. Learned Trial Judge analyzed and appreciated the evidenceadduced by both the parties and reached to a conclusion thatprosecution has succeeded in bringing home the charges for offenceunder Sections 498-A as well as 307 read with 34 of the IPC andsentenced them to suffer rigorous imprisonment for five years and topay fine. Such judgment dated 21-08-2003 is questioned by filinginstant appeal. SUBMISSIONSOn behalf of appellants :3.Taking exception to the conviction, learned Counsel for theappellants would point out that here prosecution has failed toestablish the charges beyond reasonable doubt. According to learnedCounsel, there is weak or no evidence on the point of cruelty.Learned Counsel took this Court through the testimony of PW4Manisha / victim and her father PW6 Datta and submitted that theyare making vague and omnibus allegations of demand. He pointedout that when out of alleged demand of Rs.16,000/- fixed as dowry,Rs.15,000/- were admittedly paid, why could there be demand of
Legal Reasoning
{4} CR APPEAL NO. 610 OF 2003remaining Rs.1,000/- only. Learned Counsel pointed out that thereare allegations of demand for purchasing Auto Rickshaw, butaccording to learned Counsel, there are allegations of demand of onlyRs.10,000/-, so he questions whether such vehicle can at all bepurchased at such price. Therefore, he alleges false allegations onfabricated and concocted version. Taking this Court through thetestimony of father i.e. PW6 Datta, it is pointed out that father doesnot speak about suspicion of character as alleged by his victimdaughter. That even allegation of demand of Rs.10,000/- areattributed by father to only appellant no.1 and not to appellant no.2,who is named by victim and therefore, learned Counsel submits thatevidence of PW6 Datta / father and PW4 Manisha / victim is notconsistent and not lending support to each other. 4.He next submitted that here in this case, victim was not happywith the marriage. She had written a chit exh.17 to her father.Witness in whose presence and at whose instance, the chit wasmarked, is examined by defence. That the contents of the chit showthat victim herself was unhappy and was planning to end up her life.That father has admitted receiving such chit and therefore, learnedCounsel pointed out that when the contents of the chit itself show {5} CR APPEAL NO. 610 OF 2003that she was herself on her own accord planning to end up her life,how prosecution could allege offence of Section 307 of the IPC.5.Learned Counsel further pointed out that DW1 Ramdasindependent witness i.e. neighbour is not marking presence ofaccused no.2 at the spot. Accused no.1, who had reached the spot atthe time of incident from duty and doused the fire and he has alsosuffered injury to his hands and even Police Officer admitted that atthe time of arrest, accused no.1 had burns. On the strength of same,learned Counsel pointed out that when husband himself has dousedthe fire and suffered injury, and when he himself has taken her tohospital, whether case of prosecution that accused no.1 pouredkerosene and set victim on fire, could at all be believed. Learned Counsel also questions the so called statement ofvictim exh.14 by stating that firstly, it is not recorded promptly andsecondly, it was recorded during presence of parents of victim on thenext day and therefore, there is every possibility of victim beingtutored to falsely implicate the appellants husband and brother-in-law.6.Lastly, criticizing the findings and observations of learned trialCourt, learned Counsel submits that learned trial Court has failed to {6} CR APPEAL NO. 610 OF 2003appreciate the available evidence in its correct perspective. Thatinspite of weak and fragile evidence, prosecution case has beenaccepted. That law on appreciation of evidence has not been appliedand therefore, prayers are raised for allowing the appeal. On behalf of State :7.Countering the above submissions, learned APP submitted thatprosecution had cogently and firmly established the charges. Shepointed out that barely after one month, husband suspected fidelityof victim. That demand of Rs.10,000/- was made and both accused,who are brothers and resided jointly, had put up the demand. Thatvictim has alleged beating at their hands. Thus there is evidence ofboth physical and mental cruelty. That victim was set to fire onaccount of refusing to bring Rs.10,000/- for purchase Auto Rickshaw.That her father to whom she had reported about demand and ill-treatment is also examined by prosecution. Therefore, according tolearned APP, there is sufficient evidence in support of charge ofSection 498-A of the IPC. As regards to charge of Section 307 of the IPC is concerned,she pointed out that victim has categorically stated in her statementthat husband poured kerosene and brother-in-law set her on fire. {7} CR APPEAL NO. 610 OF 2003That though they doused the fire, it was merely out of fear and thatvictim has stated to that extent. That victim has suffered 40% burns.That it was a clear offence of attempt to commit murder andtherefore, learned trial Court has rightly upheld the charges asproved and hence, she prays to dismiss the appeal for want of merits. PROSECUTION WITNESSES8. In support of its case, prosecution has examined as many aseight witnesses. Sum and substance of their evidence is as under : PW1 Syed Ayub Syed Noor is Pancha to spot panchanamaexh.9 deposed that on 18-05-1999, in his presence, Police drewpanchanama and seized pieces of saree, pieces of bangle, match box,stole, a plastic can.PW2 Sindhubai w/o Ramdas Kuvar claimed to be a neighbourand deposed that hearing shouts and commotion, she and herhusband arrived to the house of appellants. That victim was in theflames. That she and her husband doused the fire. Thereafter, shedeposed that she had not seen accused nos.1 and 2 and therefore,she became hostile and subjected to cross-examination by learnedAPP and learned Counsel for defence. {8} CR APPEAL NO. 610 OF 2003PW3 Dhondappa Bhaurao Kamale (PSI) is the Police Official,who visited spot and drew spot panchanama exh.9. PW4 Manisha Uttam Wathore is the victim. She deposed thatafter a month or two, husband as well as his brother startedsuspecting her fidelity. She was taken to the hospital at Pandharpurfor physical examination on suspicion of pregnancy. Thereafter, bothaccused asked her to bring Rs.10,000/- as their income was said tobe insufficient. Accused no.3 also on 2-3 occasions asked her tobring Rs.10,000/- for purchasing Auto Rickshaw. On 16-05-1999,husband and brother-in-law, at around 06:00 p.m., asked her to go toher father’s place and to bring Rs.10,000/- for purchasing AutoRickshaw. On refusal, they both beat her by kick and fist blows andon same night, at 10:00 p.m. husband poured kerosene and brother-in-law ignited her. PW5 Damodhar Vithoba Adhane, Police Head Constable, whorecorded exh.14 deposed about visiting hospital and recordingstatement of victim. PW6 Datta Nagoji Ghodke, father of victim stated that after 8-10 days of marriage, his daughter told about demand of Rs.10,000/- {9} CR APPEAL NO. 610 OF 2003by accused no.1 for purchasing Rickshaw. That after 15 days, againshe came with her husband and both demanded amount forpurchasing Rickshaw. He stated that she informed that she was ill-treated by husband and brother-in-law. He learnt about the incidentand went to the hospital. On the next morning, at around 08:00 a.m.to 09:00 a.m., she told that husband poured kerosene on her personand brother-in-law ignited her. PW7 Shabbir Abbasali Kazi is the Investigating Officer. PW8 Dr.Satish Ramnarayan Mundada is the Doctor, who gavetreatment to victim.DEFENCE WITNESSES9.Defence has also adduced evidence of two witnesses :DW1 Ramdas Bhivsan Patil is neighbour of accused. He statedthat he was residing in the neighbourhood of accused. That night,there was no electricity supply. That while he was sitting outside thehouse, there was burst of stove and Manisha was caught by fire.That he and his wife rushed to the spot, at that time, one Ayub cameand extinguished the fire. That time, accused Uttam returned fromthe duty and Manisha was taken to hospital at Waluj as well asPandharpur, but they refused to take her and so she was taken to {10} CR APPEAL NO. 610 OF 2003Dr.Mundada. DW2 Tulshiram Ramrao Narvade is relative of accused. Hestated that on 16-05-1998 while he and one Ramesh Salve visitedhouse of Nagorao, some talks were going on regarding a chit, whichhe identified and was marked as exh.17. ANALYSIS10.As regards to charge of Section 498-A is concerned, theevidence of PW4 Manisha / victim and her father PW6 Datta is ofsignificance. PW4 Manisha, victim in her evidence at exh.13 deposed thather husband earned Rs.1,500/- per month and his brother earnedRs.1,000/- per month and on such income, they were leading happylife. However, according to her, after a month or two, husband andhis brother started suspecting her fidelity. That husband suspectedthat she was carrying pregnancy and he took her to the hospital atPandharpur. Thereafter, she alleges that both accused told thatincome from their work is insufficient and she should demandRs.10,000/- from her father for purchasing Auto Rickshaw. She hasalleged that cousin of accused husband namely Shamrao also raisingdemand of Rs.10,000/- and instigating husband to put up such {11} CR APPEAL NO. 610 OF 2003demand. Then she has levelled allegations regarding occurrencetaking place in the evening and night of 16-05-1999. She claimedthat in the evening, both accused asked her to go to her father andbring Rs.10,000/-. She alleges that on refusal, they both gave herkick and fist blows. Then, she narrated about the occurrence ofburns at 10:00 p.m. While under cross-examination, she is unable to state to whichDoctor she was taken by accused at Pandharpur for examination.She denied that marriage was against her will and wish. She deniedwriting exh.17 letter. She expressed her ignorance about husbandcalling any quotation for purchasing Auto Rickshaw. Omission is brought regarding accused no.3 on 2-3 occasionsasking her to bring Rs.10,000/-. Remaining cross-examination is onthe points of burns suffered by her.11.PW6 Datta, father of victim, who is examined at exh.21 statedthat after 8-10 days after marriage, his daughter came and told thathusband has demanded Rs.10,000/- for purchasing Auto Rickshaw. Itis to be noted that allegation of demand of Rs.10,000/- are restrictedand levelled only against appellant no.1 husband and not againstappellant no.2 brother-in-law as reported by victim. He merely {12} CR APPEAL NO. 610 OF 2003speaks that his daughter narrated that there was ill-treatment to her.In what form, there was ill-treatment and when has not been statedby him.In paragraph no.5 of cross-examination, he admitted thatduring first visit of his daughter, she did not tell that accused weredemanding amount and she simply told that there was ill-treatment. Therefore, on careful analysis, it is emerging that evidence ofPW4 Manisha, victim and her father PW6 Datta on the point ofoffence under Section 498-A of the IPC is ambiguous in nature.They are not quoting specific instances. PW4 Victim is allegingbeating by kick and fist blows, whereas PW6 father does not utterabout it. PW6 father alleges demand only to accused no.1 husbandand not to accused no.2, brother-in-law, as is deposed by hisdaughter. Therefore, with such quality of evidence, cruelty ascontemplated under law, has not been proved beyond reasonabledoubt. 12.As regards charge of Section 307 of the IPC is concerned, it isseen that apart from evidence of victim, there is also evidence ofneighbours, who are examined both by prosecution as well as bydefence. On the point of charge of Section 307 of the IPC, victim has {13} CR APPEAL NO. 610 OF 2003stated that on 16-05-1999, husband and brother-in-law did not gofor work. That at around 06:00 p.m. they both said her to go tofather’s place and bring Rs.10,000/- for purchasing Auto Rickshaw.When she refused to go, she alleges that both accused beat her withkick and fist blows. That she did not receive any visible injury. Onsame night at 10:00 p.m. she alleges that while she was sitting,accused no.1 husband poured kerosene on her person from a Canand accused no.2 brother-in-law ignited her by match stick. Thatonly when she raised shouts, out of fear, husband poured water andextinguished fire. That neighbours also came and tried to extinguishthe fire and she was taken to hospital. She deposed that on the nextday i.e. on 17-05-1999, at around 09:30 a.m., her statement wasrecorded by Police, which she identified to be at exh.14. On the point of occurrence, in paragraph 8 of cross-examination she admitted that husband poured water but volunteersthat it was due to fear. She also admitted that husband alsosustained burn injuries while extinguishing the fire and that bothaccused and two neighbours took her to the hospital. In cross-examination, she answered that she narrated Doctor about the burnsand that husband set her on fire. Therefore, while under cross-examination, she has not attributed any role to appellant no.2 - {14} CR APPEAL NO. 610 OF 2003brother-in-law. 13.PW6 Datta, father of victim claimed that he learnt fromaccused no.3 about burns suffered by his daughter and so theyrushed to hospital. According to him, she was not in a position tospeak. On next morning at around 08:00 a.m. to 09:00 a.m. she wasable to talk and at that time, she narrated that husband pouredkerosene on her person and his younger brother ignited her by amatch stick. He stated that Police came there and they asked him togo out of the hospital. While under cross-examination, he has admitted that accusedpersons were sitting near his daughter in the hospital. He deniedhaving stated portion marked “A” and answered that he did notinform Police in his statement about meeting his daughter on nextday. He answered that he saw Police for the first time in the hospitalon the next day morning. 14.Apart from above oral account, here there is statement ofvictim recorded by PW5 Adhane, Police Head Constable and the sameis marked as exh.14 and the translated version of the same is asunder : {15} CR APPEAL NO. 610 OF 2003“Exhibit No. 14 STATEMENT Date : 17.05.99Myself Manisha w/o Uttam Wathore, Age 19 yrs, occupation:household work, r/at farm Nur Patel, in front of ZP Gate, Waluj,Aurangabad. I do hereby state in written that, my marriage took place on 7thMarch, 1999 with Uttam Narayan Wathore, as per the Hindu rituals at mymaternal house, Mukundwadi. At the time of marriage amount of Rs.16000/- was fixed as dowery to be paid by father and we paid Rs. 15000/-due to poor condition and said that the remaining amount of Rs. 1000/-hewill pay later. As my husband was working with contractor at BajajCompany, my brother-in-law Gautam and we both husband and wifestarted living in the room in the farm of Nur Patel. My husband was gettingRs. 1500/-p.m. and my brother-in-law Gautam was earning Rs. 1000/-p.m.,on this we were maintaining our livelihood.After marriage, my husband and brother-in-law started suspectingmy chastity/fidelity. Then my husband got me examined at the Doctor atPandharpur, as he was suspecting my character. My husband and mybrother-in-law told me that the income from their work was insufficient andI should demand Rs. 10,000/- from my father for purchasing auto rickshaw.I told my husband that since our marriage was performed soon before andmy father was not having good financial condition, he would not be able topay the amount. Shamrao Wathore, my husband's cousin instigating myhusband for asking me to demand amount of Rs. 10,000/- and also he wastelling something about me to my husband. On 16.05.1999 my husband did noy go to the work and he was athome from morning and my brother-in-law Gautam had his duty for halfday and he returned to the house. At about 6.00 pm in the evening myhusband and brother-in-law Gautam told me that I should go to the houseof my father and bring amount of Rs. 10,000/- for purchasing a autorickshaw. I refused to go then both my husband and my brother-in-lawstarted beating me with the fist blows and kicks and around 10.00 o’clock inthe night, I was sitting in the house, then my husband took out kerosene {16} CR APPEAL NO. 610 OF 2003can and poured it on my person and my brother-in-law, Gautam ignited thefire with match stick and set ablaze me. I raised the shouts and came out ofthe house, so, my husband and brother-in-law out of fear poured water onmy person and extinguished me.When my husband and brother-in-law asked me to bring Rs.10,000/- from my father, I refused to bring the money, so I was burnt (bythem) with kerosene around 10 p.m.The above statement of mine is read over to me and it is true andcorrect as per my narration. Before Me hence given statement Sd/- TI Sau. Manisha W/o Uttam Wathore.Police Amaldar, PS Waluj Registered on Date : 17.05.99 St. D. No. 138, Record No. 53, Time21.30, Crime Reg. No. I 0046/99, u/s 307, 498-A, 323,34 of IPC, PSIKamale are investigating the same. Registered on Date : 18.05.99 St. D. No. 137, Record No. 76, Time14.05, Crime Reg. No. I 0053/99, u/s 307, 498-A, 323,34 of IPC, API isinvestigating the same. sd/- SignPSMIDC, Waluj” (As translated by Sr. Translator, High Court Bench at Aurangabad)15.On appreciating the contents of exh.14, she has reported thatat around 10:00 p.m., husband poured kerosene, whereas, brother-in-law ignited her. It needs to be noted that inspite of being taken to the hospitalon same night, surprisingly her statement exh.14 appears to berecorded by PW5 Adhane (PHC), who already deposed that he had {17} CR APPEAL NO. 610 OF 2003paid visit on the very night itself but he deposed that as parents ofdeceased told that victim is sleeping, without recording statement, hewent back and then he claims to have come back to record statementat 06:30 a.m. But father in his evidence has stated that Police cameto record statement at around 09:00 a.m. Further this witness PW5,who recorded above statement, has admitted in cross-examinationthat Doctor was not available when he recorded statement exh.14.Prosecution does not deny that before PW5 went, there is MLCregarding burns on account bursting of stove. 16.Victim herself has narrated that husband had doused the fireby water and that he too suffered burns. PW2 neighbour has notsupported prosecution because she did not mark presence of accused.DW1 Ramdas, another neighbour has deposed that at around10:00 p.m. to 10:30 p.m. there were no lights and at that time, therewas sudden bursting of stove and Manisha catching fire. He statedthat he and his wife both went to extinguish fire and at that time,accused no.1 was returning from duty. Though subjected to cross-examination by learned APP, versionof DW1 regarding he and his wife extinguishing fire and at that time,accused husband returning from duty has not been touched or {18} CR APPEAL NO. 610 OF 2003shaken. 17.Here there is seizure of exh.17, a chit allegedly written byvictim herself. Trial Court has marked it as exh.17. The translatedversion of exh.17 is as under :“Exhibit No. 17STATEMENT Date : 17.05.99Convey my regards to my parents, Vandana, Jai Bhim. Dad this is mylast letter to you, because I am going to end my life, Dad, be good, and takecare of Akka. You have only one son and daughter. Mom(Aai) I am fed upwith my life and am going to commit suicide. I got married but I have nohappiness in my married life as I can not bear anything in the married life.At present I have no problem, my husband is good. My brother-in-law andsister-in-law are also good but I can tolerate everything but not this. Thismarriage is solemnized against my wish. I could not hurt you. I am feelingsad only because I am leaving you. Mom, I do not know what married life isand as I do not understand the meaning of this, I am fed up of it.I have done nothing to disgrace you, I owe your duty. You had nochoice but to do something between us, so I am leaving the world. You willbe very sad to read this letter. I did not know the meaning of marriage. Ihave understood the meaning of marriage since one month. I have decidedto commit suicide because I can not live without seeing you all.Your Daughter, Vandana Manisha.” (As translated by Sr. Translator, High Court Bench at Aurangabad)SUMMATION18.The sum total of above discussed evidence is that here there is {19} CR APPEAL NO. 610 OF 2003very weak evidence on the point of cruelty and demand. As regardsto charge of attempt to commit murder, except version of PW4Manisha, victim to which there is no corroboration, there is no otherdistinct evidence. MLC exh.30 is about burst of stove. Appellantno.1, husband, whose role of extinguishing fire is admitted by veryvictim goes to show that he not only attempted to douse the fire buthe even shifted her to hospital. Had he carried any sinister motive tocommit offence, circumstances would have been otherwise. There isfailure to promptly record statement of victim. Chit exh.17, which isreproduced above, clearly indicates that it is act of attempt to commitsuicide. Taking such material into consideration, offence of Section307 cannot be said to be made out. There are several doubts coupled with the chit of letter exh.17,which PW6 father admitted that it was given to him by his victimdaughter PW4. 19.Perused the judgment under challenge. Above aspects are notappreciated by the learned trial Court. Inspite of no cogent, reliableand trustworthy evidence, charge of Section 498-A is held as proved.Likewise, learned trial Court has also failed to consider andappreciate creditworthiness of prosecution version on the point of {20} CR APPEAL NO. 610 OF 2003attempt to commit murder and hence, it is a fit case to interfere.Accordingly, I proceed to pass following order : ORDERI)Criminal Appeal No.610 of 2003 is allowed.II)The conviction awarded to appellant nos.(1) UttamNarayan Wathore and (2) Gautam Narayan Wathore inSessions Case No.58 of 2001 by the learned Sessions Judge,Aurangabad on 21-08-2003 for the offence punishable underSections 498-A and 307 read with 34 and of the Indian PenalCode, stands quashed and set aside. III)The appellant nos.1 and 2 stand acquitted of the offencepunishable under Sections 498-A and 307 read with 34 of theIndian Penal Code.IV)The bail bonds of appellant nos.1 and 2 stand cancelled. V)The fine amount deposited, if any, be refunded to theappellant nos.1 and 2 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 ) JUDGE SPT