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2005 DIGILAW 1404 (BOM)

Pramod s/o. Ragho Kapse v. State of Maharashtra

2005-10-13

J.N.PATEL, R.C.CHAVAN

body2005
R. C. CHA V AN, J. :- Learned 6th Additional Sessions Judge, Nagpur convicted the two accused in Session Trial No.596 of 1992 for an offence punishable under Section 498-A read with 34 of the Penal Code and acquitted them of the offence punishable under Section 302 read with 34 of the Penal Code. Aggrieved thereby the accused have preferred Criminal Appeal No.175 of 1996 and the State has preferred Criminal Appeal No.244 of 1996. 2. The facts which led to prosecution of the accused are as under: Deceased Chhaya was married to accused No.1 Pramod about two years prior to the incident dated 11-04-1992. Accused No.2 Janabai is Chhaya's mother-in-law. It was the prosecution case that two accused used to ill-treat Chhaya on account of failure of Chhaya's father to fulfill demands of money. On 11-041992 accused Pramod bet up Chhaya with a stick, he held Chhaya by her hair, accused No.2 Janabai brought kerosene and poured it on the person of Chhaya and Pramod set Chhaya on fire. Chhaya sustained severe burn injuries. Fire was extinguished and she was shifted to the hospital. Chhaya succumbed to her injuries on 12-04-1992 after her statements were recorded by the police. 3. On registering an offence, police performed inquest and sent dead body for postmortem examination. They recorded statements of witnesses, seized incriminating articles and on completion of investigation charge-sheeted both the accused before the learned Judicial Magistrate First Class, Saoner. The learned Magistrate committed the case to the Court of Sessions at Nagpur, where it was assigned to 6th Additional Sessions Judge. 4. The learned Judge charged both the accused of the offence punishable under Section 498-A and 302 read with 34 of the Penal Code. Accused pleaded not guilty and hence, were put on trial. The prosecution examined in all eight witnesses in its attempt to bring home the guilt of the accused. The defence of the accused was that of denial. Upon consideration of the prosecution evidence, in the light of defence raised by the accused, the learned trial Judge, by his elaborate judgment, running into about 27 pages, came to conclude that the two accused were guilty of the offence punishable under Section 498-A read with 34 of the Penal Code and therefore, sentenced them to suffer rigorous imprisonment for two years and fine of Rs.500/- each and in default further R.I. for six months each. He however, proceeded to acquit both the accused of the offence punishable under Section 302 read with 34 of Penal code by the impugned judgment. Aggrieved thereby, these two appeals have been filed by the accused as well as State. 5. We have considered the grounds raised in the memoranda of the two appeals as expounded by Adv. Patwardhan, learned counsel for appellants/accused in Criminal Appeal No. 175/96 and Adv. Mujumdar, learned Additional Public Prosecutor for the State in the course of their forceful arguments. The learned counsel for the appellant/accused submitted that the trial Judge erred in holding that the accused were guilty of subjecting Chhaya to cruelty. For this purpose he took us through the evidence tendered. P.W.3 Shyamrao stated that after the marriage when Chhaya met him on 2-3 occasions she told him that her husband and mother-in-law used to beat her, starve her and keep her outside the house. She had also told him that she was asked to bring money from her parents and that she was beaten and sent to her parents' house. 6. Shyamrao had witnessed the seizure of a letter and telegram vide Exh.28. The telegram is in respect of victim's being serious. The letter dated 08-06-1991 was marked as Exh.40, on being proved by P.W.7 Sitaram victim's father. This letter at Exh.40 shows that it was written at the instructions of P.W.7 Sitaram by a school teacher. Sitaram admitted the contents to be correct. The letter would show that P.W.7 Sitaram infact demanded refund of money which he had lent to his son-in-law accused Pramod Kapse. He had stated that if Pramod did not repay the amount, Sitaram would come to make spot recovery at the time of disbursement of salary to Pramod. This letter itself would give a lie to the story of any demands having been made by the accused with victim or her father. Had it been the case, victim's father would not have been in a position to write a letter giving a threat of making recovery on 'Pay Day'. This fact, coupled with absence of any report prior to the incident about any such demands or ill-treatment on account of non- fulfillment of demands, would make the story of cruelty to Chhaya unbelievable. 7. This fact, coupled with absence of any report prior to the incident about any such demands or ill-treatment on account of non- fulfillment of demands, would make the story of cruelty to Chhaya unbelievable. 7. We have gone through the judgment and the reasons given by the learned trial Judge for concluding that unlawful demands and cruelty for non-fulfillment of such demands was proved. The learned trial Judge seems to have totally lost the import of letter Exh.40, admittedly written at the behest of Sitaram. The learned Judge had, on the other hand, concluded that letter Exh.40 would show that Sitaram had advanced some money to the accused to comply with the unlawful demands. It is evident from the language of Exh.40 that there was no unlawful demand but only hand loan by the father-in-law to a needy son-in-law with the clear understanding that it was a loan to be repaid. Therefore, the finding of the learned trial Judge on this count appears to us to be wholly without any foundation. Consequently the conviction of two accused for the offence punishable under Section 498-A read with 34 of the Penal Code would not be sustainable. 8. P.W.1 Dr. Mankar who upon examining accused Pramod on 14-04-1992 found that he had three 36 hours old bum injuries issued certificate Exh.21. P.W.2 Adv. Dhote proved panchanama of the spot and seizure made at the spot vide Exhs.25 and 26. It may be seen from the report of Forensic Science Laboratory at Exh.30 that some of the articles seized were found to have kerosene residues. P.WA is Revenue Inspector Shri. Dhote who drew sketch of the spot vide Exh.32. 9. As already recounted P.W.3 Shyamrao maternal uncle and P.W.? Sitaram father have no first hand knowledge about the incident. Sitaram admitted that on learning of the incident when he reached the hospital at Nagpur Chhaya was already dead. P.W.3 Shyamrao too did not have any occasion to speak to Chhaya after the incident and before she succumbed to her injuries. 10. P.W.5 Dnyaneshwar and P.W.6 Purushottam are the neighbours and eyewitnesses to the incident who stated having actually seen the two accused persons setting the victim on fire. The testimonies of both these witnesses are riddled with material omissions and contradictions. 10. P.W.5 Dnyaneshwar and P.W.6 Purushottam are the neighbours and eyewitnesses to the incident who stated having actually seen the two accused persons setting the victim on fire. The testimonies of both these witnesses are riddled with material omissions and contradictions. P.W.5 Dnyaneshwar Mankar claimed to have seen the incident for about ten minutes and then made a telephone call to the Police Station. The record of this telephone call received at the Police Station is at ExhA2. Had Shri. Mankar indeed seen accused setting the victim on fire he would have conveyed accordingly to the police. Instead, the information received vide Exh.42 was to the effect that the daughter-in-law of Kapse was burning in the house and people were running helter skelter out of fear. The entire incident which he claimed to have seen is not to be found in his statement before the police. P.W.8 P.S.1. Mendhe duly proved all these omissions. 11. P.W.6 Purushottam seems to be a chance witness who had come to visit his mother-in-law who was a neighbour of the accused. He claims to have seen the incident after hearing the cries for help. As he did not know the accused he simply said that an old lady and a man were standing near the woman who was in flames. He could not go for help because the doors of the house were closed and because there was a compound wall. He contradicted parts of his police statement about his watching a movie on television and having meals. Though he claimed that he had stated to the police about actually having seen the incident, these facts are missing from his statement and these omissions are duly proved by P.W.8 P.S.I. Mendhe. 12. P.S.I. Mendhe stated that he had received a message from Medical Officer, Primary Health Centre, Saoner that a patient with burn injuries was admitted, accordingly he has made entry in the station diary vide Exh.43. He went to the Primary Health Centre, gave requisition vide Exh.50 to the Medical Officer and on Doctor's certifying that the victim was fit, recorded her Dying Declaration vide Exh.38. This Dying Declaration would show that there was indeed a quarrel between accused Pramod and the victim about victim's not going for agricultural operations in the field, resulting in victim's being slapped and punched. This Dying Declaration would show that there was indeed a quarrel between accused Pramod and the victim about victim's not going for agricultural operations in the field, resulting in victim's being slapped and punched. However, she does not state that two accused or any of them had poured kerosene on her person and set her on fire. She categorically stated that when she was so talking with her husband in sitting position a lamp which was kept on a brick fell on her lap whereby her saree caught fire. Her brother-in-law and husband extinguished the fire and brought her to the hospital. She had categorically stated that her husband did not set her on fire. 13. It seems that the police had also caused statement of Chhaya to be recorded by an Executive Magistrate, Saoner. This statement is at Exh.41. This too gave a similar version as to how Chhaya caught fire. In view of these two exculpatory Dying Declarations the learned trial Judge rightly concluded that the prosecution has failed to prove complicity of the two accused in the injuries which led to death of Chhaya. 14. In view of this there is absolutely no merit in the appeal by the State challenging acquittal of the accused of the offence punishable under Section 302 read with 34 of the Penal Code. In the result therefore, Criminal Appeal No. 175 of 1996 is allowed. Conviction of the appellants for the offence punishable under Section 498-A read with 34 of the Penal Code and resultant sentence imposed upon them are set aside. The appellants are acquitted of the offence punishable under Section 498-A read with 34 of the Penal Code. Criminal Appeal No.244 of 1996 challenging respondents' acquittal is dismissed. Acquittal of the respondents of the offence punishable under Section 302 read with 34 of the Penal Code is maintained. The Bail Bonds, if any, furnished by the respondents/original accused shall stand cancelled. Fine, if paid shall be refunded to them. Order accordingly.