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2018 DIGILAW 877 (BOM)

Chhedilal Baburam Gupta v. State Of Maharashtra

2018-03-26

B.R.GAVAI, M.G.GIRATKAR

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JUDGMENT M.G. Giratkar, J. - Appellant Chhedilal Gupta filed the present appeal against the judgment of acquittal of accused in Sessions Trial No.74/2010 by the Additional Sessions Judge, Washim on 25.09.2013. The case of the prosecution against the respondents/accused can be summarized as under: Deceased Alka @ Roli daughter of Chhedilal Gupta was married with accused No.1 Harish on 01.12.2009. Accused Santosh, Ramnath, Anita, Pinky, Shardabai were residing jointly with accused Harish. As per the custom, Chhedilal Gupta had taken his daughter to his village on 20.01.2010. Alka narrated that her husband Harish and other accused namely Santosh, Ramnath, Anita, Pinky and Shardabai used to illtreat her on the count of dowry. They were asking her to bring Rs. 1,00,000/- from her parental house. She was unhappy at her matrimonial home. Her father talked with a grandfather of Harish on phone. He told him that his daughter will be treated nicely and he should send her with Harish. After one month Harish came to fetch her and taken the deceased with him. 2. On 07.05.2010 Harish informed the father of deceased on phone that while cooking on stove Alka sustained burn injuries. Chhedilal Gupta, father of deceased, went to Mangarulpir. He came to know that Alka was seriously burnt and she was hospitalized at City Hospital, Akola. Therefore, they went to the Hospital. Alka was burnt from head to toe. She was not in a position to talk. On 12.05.2010 she died. Thereafter he lodged the report Exh.57. 3. On the basis of report F.I.R. came to be registered for the offence punishable under Sections 498A, 306, 304B read with Section 34 of the Indian Penal Code. A.P.I. Bhalchandra Badgujar investigated the crime. After complete investigation, submitted the chargesheet before the Judicial Magistrate First Class, Washim, who in turn committed the case for trial to the Court of Session at Washim. 4. Charge was framed at Exh.25 the same was read over and explained to the accused. They pleaded not guilty and claimed to be tried. The prosecution has examined in all five witnesses. At the conclusion of the trial all accused are acquitted for the offence charged against them. 5. Heard Shri S.M. Ukey, the learned Additional Public Prosecutor for the respondent No.1/State. None appeared for the appellant. They pleaded not guilty and claimed to be tried. The prosecution has examined in all five witnesses. At the conclusion of the trial all accused are acquitted for the offence charged against them. 5. Heard Shri S.M. Ukey, the learned Additional Public Prosecutor for the respondent No.1/State. None appeared for the appellant. From the perusal of the evidence it appears that except the evidence of P.W.1 and P.W.2 there is no evidence against the accused. P.W.1 Chhedilal Gupta has stated that after the marriage Alka @ Roli was taken by him at that time she told him about the illtreatment by the accused persons. She disclosed that accused persons were demanding Rs. 1,00,000/-. P.W.2 brother-in-law of the deceased has stated that when deceased came to her parents house that time she disclosed that accused were demanded Rs. 1,00,000/-. He came to know that deceased was burnt. Thereafter he along with his father-in-law (P.W.1) came to Mangarulpir Alka was admitted in the hospital she was completely burnt, she died on 12.05.2010. The other witnesses were on the panchnama etc. Postmortem report Exh.70 was admitted by the defence. As per the postmortem deceased sustained 80% burn and therefore, died due to burn injuries. 6. It is clear from the cross-examination of P.W.5 (Investigating Officer Balchandra Badgujar) that material document was suppressed from the court. On the request of defence, prosecution has produced dying declaration Exh.73. 7. P.W.5 has admitted in his examination that at the time of spot panchnama he had been to kitchen, where he found one stove and jar of kerosene, but he did not seize the stove. He also found the material of tea just near the stove. He has also admitted that at the time of spot panchnama mother-in-law Anitabai disclosed him that she was taking rest in her bed room, she heard the cry of deceased. Deceased was burning hence, she poured water and extinguished the fire. He has mentioned the said fact in panchnama Exh.69. 8. He has admitted in his cross-examination that dying declaration Exh.73 was not produced along with the chargesheet. It is mentioned in the dying declaration Exh.73 that said statement has not been recorded under pressure. Therefore, he did not make any inquiry with the Executive Magistrate. 9. He has mentioned the said fact in panchnama Exh.69. 8. He has admitted in his cross-examination that dying declaration Exh.73 was not produced along with the chargesheet. It is mentioned in the dying declaration Exh.73 that said statement has not been recorded under pressure. Therefore, he did not make any inquiry with the Executive Magistrate. 9. Exhibit/73 was recorded by Executive Magistrate on 05.05.2010 at about 0945 p.m. she has stated in her dying declaration as under: "Today on 05.05.2010 in the afternoon at about 03:00 p.m. she was preparing tea on stove. The stove burst. Therefore, she caught fire. Her husband and neighbours extinguished the fire. Her husband admitted her in the hospital at Akola". Her statement was read over to her and found correct. 10. From Exh.73 dying declaration it is clear that deceased sustained burn injuries accidentally. There is no evidence to show that accused persons instigated or abetted the deceased to commit suicide. Material ingredients of Section 306 of the Indian Penal Code are not proved by the prosecution. 11. There is no specific incident of cruelty as defined under Section 498A of the Indian Penal Code. Except the bear word of P.W.1 and P.W.2 in respect of demand of Rs. 1,00,000/-. The prosecution has not adduced any evidence. P.W.1 not called any meeting about the demand of accused persons. The cross-examination of P.W.1 dying declaration Exh.73 show that she burnt accidentally. There is no evidence to show that accused persons treated deceased in a cruel manner. Material ingredients of Section 498A of the IPC are not established by the prosecution. Learned Trial Court rightly acquitted the accused for the offence punishable under Section 498A, 306 read with Section 34 of the IPC. Hence, we are not inclined to allow the appeal and proceed to pass the following order: O R D E R [i] Criminal Appeal No.588/2013 is dismissed. [ii] The bail bond of respondent No.2 to 7/accused stand cancelled. [iii] R & P be sent back to the Trial Court.