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2019 DIGILAW 190 (BOM)

State of Maharashtra v. Prabhakar Somaji Ambhore

2019-01-22

S.B.SHUKRE, S.M.MODAK

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JUDGMENT : S.B. Shukre, J. 1. This is an appeal, which challenges the legality and correctness of the judgment and order, dated 24.03.2006 rendered in Sessions Trial No. 99/2005 by 2nd Ad-hoc Additional Sessions Judge, Washim. 2. Briefly stated, the facts of the case, are as under: (i) Accused No. 1 was the husband of deceased Rashmi and the remaining accused were in-laws of deceased Rashmi. Their marriage was solemnized before the Registrar, Akola on 29.07.2003. Prior to the marriage, there was an agreement reached between the side of the groom and the side of the bride regarding the arrangements to be made for the marriage and presentation of certain gifts. However, on the date agreed for solemnization of the marriage, the groom's party did not turn up and, therefore, the marriage could not be performed. Later on, there was some intervention on the part of some persons, which resulted into the side of the bridegroom agreeing to perform marriage of accused No. 1 with the deceased. (ii) At the time of marriage, it is alleged, the father of the deceased presented gold bangles, mangalsutra, tops and gold rings and also cash of Rs. 50,000/- to the groom. It is further alleged that it was then also decided by the parties that additional amount of Rs. 50,000/- would be paid to the bridegroom by the father of the deceased in Diwali. Later on, due to mediation of some persons, the additional amount was reduced to Rs. 25,000/-. However, even this amount, it is further alleged, could not be paid by the father of the deceased. (iii) Meanwhile, after the marriage, the deceased and accused No. 1 had moved away from the parental house of accused No. 1 occupied by the remaining accused persons for residing separately. This separate house was situated at Barshi Takli, some distance away from the place of the residence of the remaining accused persons at Mangrulpir. It appears that, there used to be quite frequent visits of the accused No. 1 and the deceased-wife to the parental house of the accused No. 1 and perhaps because of such visits, some discord started to occur in the marital relations between the accused No. 1 and the deceased. It appears that, there used to be quite frequent visits of the accused No. 1 and the deceased-wife to the parental house of the accused No. 1 and perhaps because of such visits, some discord started to occur in the marital relations between the accused No. 1 and the deceased. The relatives of the deceased alleged that deceased Rashmi used to be subjected to harassment consisting of denial of food and sarcastic remarks over failure of the father to pay the additional amount of Rs. 25,000/- as per the demand of the accused persons and accepted by the father of the deceased at the time of the marriage. (iv) The incident, in the present case, has taken place on 23.07.2005 in the parental house of accused No. 1 at Mangrulpir. Precisely, the spot of incident was the bathroom attached to the house. In this bathroom, during night time, deceased became a victim of burn injuries. The burn injuries that she suffered were to the extent of 91%. The maternal relatives of the deceased saw something fishy in this incident and upon deliberation and making some inquiry they were convinced that all the accused persons were involved in and responsible for the suffering of burn injuries by the deceased. The deceased having been admitted to hospital succumbed to her injuries and this was also the circumstance, which made the suspicion expressed by the relatives of the deceased even stronger. A complaint was lodged by the father of the deceased with police. After registering offences, investigation was carried out and the accused persons were charge-sheeted. (v) The accused were ultimately tried for the offences punishable under Sections 498-A and 304-B of the Indian Penal Code (hereinafter referred to as "IPC" for short) and also for offences punishable under Sections 4 and 6 read with Section 3 of the Dowry Prohibition Act. On merits of the case, the learned trial Judge found the evidence to be deficient, inconsistent and self-contradictory and, therefore, found that the prosecution failed to bring home the guilt of the accused persons for the offences with which they were charged in the case, by the judgment and order rendered on 24.03.2006. It is the same judgment and order, which are under challenge in this appeal. 3. We have heard Shri M.J. Khan, learned Additional Public Prosecutor for the appellant-State and Ms. It is the same judgment and order, which are under challenge in this appeal. 3. We have heard Shri M.J. Khan, learned Additional Public Prosecutor for the appellant-State and Ms. Akshaya Kshirsagar, Advocate along with Shri Anil Mardikar, Senior Advocate for the respondent-accused. The complainant, who has filed the revision application being Criminal Revision No. 165/2006, is absent and nobody is present on his behalf. We have gone through the record of the case including the impugned judgment and order. 4. Upon perusal of the impugned judgment and order, we find that the conclusions made by the learned trial Judge could not be said to be perverse or impossible or arbitrary or ridiculously illogical. The law governing appeals filed against orders of acquittal is well settled. It is not permissible for the appellate Court to substitute its own view for the view taken by the trial Court, if the view of the trial Court is plausible and not impossible. The law further says that whenever two views are possible, the view which is favourable to the accused has to be taken by the criminal Court. This law would also tell us that interference with the order of acquittal passed by the trial Court can be made, if it is seen that the inferences drawn and conclusions reached are based upon perverse appreciation of evidence in the sense that inadmissible evidence has been relied upon or relevant evidence has been ignored or extraneous consideration has gone into the passing of the impugned judgment. As stated earlier, reading the whole evidence and also the impugned judgment and order, we do not find that the impugned judgment and order could be assailed for any of the said reasons. 5. There are some important admissions given by PW-1 Parashram Surve, father of the deceased. Although, in his examination-in-chief, he says that at the time of marriage, it was decided that the remaining amount of Rs. 50,000/- later reduced to Rs. 25,000/- was agreed to be paid by him to the groom in Diwali of the year 2003, this very witness in the latter part of his deposition admits that there was no such agreement reached between him and the side of the bridegroom. A clear admission has been given by him during the course of his cross-examination and it is recorded in paragraph 8. A clear admission has been given by him during the course of his cross-examination and it is recorded in paragraph 8. He has admitted that at the time of proposed marriage, it was not decided to present ornaments and pay cash amount of Rs. 50,000/-. He has further admitted that it was not decided to pay the cash amount of Rs. 1,00,000/- as dowry to the accused. These admissions wash out the whole theory of the prosecution that failure to meet the demand of dowry that was to be paid as per the agreement was the reason for the alleged harassment of the deceased. 6. There are other witnesses like PW-2 Siddhumati Surve and PW-3 Pankaj Surve, who say about the demand of dowry and the agreement expressed by father of the deceased to meet the demand at the time of Diwali. But, the agreement being between the accused on the one hand and the father of the deceased on the other, the best person to assure us about such agreement would be none other than the father of the deceased and not the other witnesses. If the father of the deceased himself deposing before the Court admits that there was no such agreement, hardly any reliance could be placed upon the other relatives with whom no such agreement was ever reached. 7. The father of the deceased PW-1 and also her relatives, PW-2 Siddhumati, PW-3 Pankaj and PW-4 Swapneel have stated something about the harassment of the deceased at the hands of accused No. 1, in particular, and the remaining accused in general. But, these witnesses except for using the term like harassment, taunting and denial of food have not said anything else nor have elaborated anything about these alleged acts on the part of any of the accused persons. Denial of food, of course, can be one of the kinds of harassment, but it has to be done in a consistent manner and it is also required that some elaboration of what he means thereby is given by the witnesses. The witnesses like PW-1, PW-2, PW-3 and PW-4 have not given any further explanation or any other details of this instance of what they say to be cruelty or harassment meted out to the deceased by the accused persons. The witnesses like PW-1, PW-2, PW-3 and PW-4 have not given any further explanation or any other details of this instance of what they say to be cruelty or harassment meted out to the deceased by the accused persons. If a person has been deprived of food over a long period of time, such person would go extremely weak and fall ill. At least some such other attending circumstances should have been brought on record by the prosecution, but nothing has been said by the prosecution witnesses about them. 8. We would add, it is also difficult to believe that a wife residing in a separate house along with her husband with nobody else present in the house except for her husband to not have any access to the food items. After all, accused No. 1 was working as a Lecturer and, therefore, for several hours in a day, the opportunity to have access to food must have been available to the deceased. But, nothing is said about this significant dimension of theory of cruelty of prosecution by any of the witnesses. 9. For the aforestated reasons, we do not find that the expression denial of food in the facts and circumstances of this case would amount to cruelty or harassment within the contemplation of Section 498-A of IPC. 10. As regards, the nature of death, we find that the learned trial Judge has not reached any conclusion. We also find that the learned trial Judge has also not made any endeavour to ascertain the nature of death. The burn injures had been suffered by the deceased in a bathroom of fairly a small size. Its size was about 4½ feet wide and 6½ feet length. These dimensions are given here only by approximation by making an attempt to elicit them from the dimensions given in the spot-panchnama. In this bathroom, a stove with the lead of its tank thrown open has been discovered. It was the defence of the accused that the deceased had taken the kerosene fired stove inside the bathroom with a view to warm up the water for bathing. It is quite strange that in a bathroom of such dimensions, any person wanting to take bath would carry the stove inside the bathroom and warm up the water. It was the defence of the accused that the deceased had taken the kerosene fired stove inside the bathroom with a view to warm up the water for bathing. It is quite strange that in a bathroom of such dimensions, any person wanting to take bath would carry the stove inside the bathroom and warm up the water. Generally, if any water is to be heated by using a kerosene fuelled stove, it would be, done outside the bathroom and the hot water pot would be taken inside the bathroom. The burn injuries were expansive and extensive, so much so that they covered almost the entire surface area of the body of the deceased barring 9% thereof. It must have taken for such extensive of burn injuries to suffer, a considerable time and it is again strange to find that even though, admittedly, the other members or the parental members of accused No. 1 were present in the house, nobody noticed anything about the alleged accidentally catching of fire by the deceased and no attempts, whatsoever, were made by the accused persons to extinguish the fire of the deceased, or at least no evidence about their such efforts has surfaced. 11. So, we feel that all these circumstances would create a strong suspicion regarding the accused persons having been connected with the incident of catching of fire by the deceased one way or the other. But, again going by the settled position of law, suspicion howsoever strong cannot and would not take the place of legal evidence and there being no legal evidence having been brought on record by the prosecution in this regard and, therefore, except for finding that the death of Rashmi was highly suspicious, we are unable to make any reasonable conclusion regarding the nature of the death just for, to repeat, want of any evidence in that regard. 12. The learned trial Judge, however, has given the explanation about this incident. He has stated that the accused persons broke open the door, reached out to the deceased for giving her help and for extinguishing her fire. But, we could not come across any such evidence present on record nor the learned A.P.P. nor the learned Senior Advocate for the accused could bring to our notice the presence of any such evidence. He has stated that the accused persons broke open the door, reached out to the deceased for giving her help and for extinguishing her fire. But, we could not come across any such evidence present on record nor the learned A.P.P. nor the learned Senior Advocate for the accused could bring to our notice the presence of any such evidence. Here, we must say the learned trial Judge has considered the extraneous material and this is certainly a perversity committed by him. But, we have also found that there is no evidence available on record which would enable us to find that there was harassment or cruelty as defined under Section 498-A of IPC immediately prior to the incident of suspicious death of Rashmi and also about the dowry demand and, therefore, the perversity so committed by the learned trial Judge would not render the whole impugned judgment as arbitrary or illegal or absolutely illogical. 13. Such being the facts and circumstances established on record, we find that not only the present respondent but also remaining accused were rightly acquitted of the offences with which they were charged in this case by giving benefit of doubt and so, we confirm the judgment and order of acquittal of all the accused persons, though the State has challenged them only as against the present respondent, because together with appeal, we have also heard Criminal Revision No. 165/2006 filed by the complainant questioning the said judgment as against all the accused persons. Appeal stands dismissed.