Bombay High Court
Kiran vs The State Of Maharashtra on 20 November, 2012
Bench: A. H. Joshi, S.P. Deshmukh
1 Cria. No.490/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.490 OF 2012
1. Kiran s/o Dinkar Patil,
Age : 35 years, Occu.Agri. Laobur,
2. Dinkar s/o Zipru Patil,
Age : 60 years, Occu.Agril. Labour,
3. Ushabai w/o Dinkar Patil,
Age : 55 years, Occu. Household,
All R/o village Morane (Pargane Laling),
Tq. & Dist. Dhule ..APPELLANTS
(Orig. Accused)
VERSUS
The State of Maharashtra,
Through Police Station Officer,
Dhule Taluka Police Station,
Dhule, Tq. & Dist. Dhule ..RESPONDENT
Mr P.S. Paranjape, Advocate for the appellants;
Mrs V.A. Shinde, A.P.P. for the respondent
CORAM : A.H. JOSHI AND
SUNIL P. DESHMUKH, JJ.
DATE : November 20, 2012
ORAL JUDGMENT (PER A.H. JOSHI, J.)
1. Five accused were tried in Sessions Case No.139
of 2011. They were charged for commission of offences
under section 302 read with sec. 34, 498-A read with
sec. 34, 323 read with sec.34, 504 read with sec.34
and 506 read with sec. 34 of the Indian Penal Code.
2. Substance of the charge is illtreating,
intimidating, causing hurt, illtreatment for dowry
related demand and murder of Dipali - wife of accused
no.1 by pouring kerosene on her person and setting her
to fire on 3.8.2011 at about 11.30 a.m.
3. Three out of five accused were convicted by
learned Additional Sessions Judge, Dhule in Sessions
Case No.139 of 2011 for offences under section 498-A
and 302 read with sec. 34 of the Indian Penal Code.
Each of them was sentenced to suffer rigorous
imprisonment for two years and to pay a fine of Rs.
500/-, in default to suffer further R.I. for one
month for offence punishable under sec. 498-A read
with sec. 34 of the Indian Penal Code and imprisonment
for life and to pay a fine of Rs.1000/-, in default to
suffer further R.I. for three months for offence
punishable under section 302 read with sec.34 of the
Indian Penal Code. This is an appeal against said
conviction and sentence.
4. Heard both sides. Perused the record.
5. Witnesses :-
(a) P.W.4 Indubai - mother and P.W.5 Rajesh
Patil - brother of deceased Dipali are not
the eye-witnesses. They are the witnesses of
illtreatment;
(b) Other witnesses crucial for the case are
P.W.3 Dr. Ajit Patil, who has conducted post
mortem examination, panch, photographer,
examined to prove the peripheral facts;
(c) P.W.2 Pradip is a star witness, who reached
the place of incident when Dipali was amidst
the fire;
6. Testimonies of P.W.4 Indubai and P.W.5 Rajesh
reveal that the marriage was solemnized in the year
2000. There were some bickerings between couple.
Dipali had arrived at her parents house and again
returned. There was exchange of notices. All that
these witnesses say is that they have suspicion that
husband and in-laws have burnt Dipali. Father-in-law
had evil eye on Dipali. Dipali was illtreated. These
witnesses apprehend that accused must have murdered
Dipali.
7. The post mortem examination report (Exh.63)
reveals the cause of death to be shock following
thermal burns. Deceased had sustained 100% burns of
second and third degree. These facts are proved by
P.W.3 Dr. Ajit Patil, and this aspect is undisputed.
8. P.W.2 Pradip Patil has stated in paragraph 3 of
examination-in-chief as follows :-
"When I came to the first floor I noticed that
Deepali was burning and the people were
extinguishing the fire none from the family of
Deepali was present at the house. It did not
happen that there used to be frequent quarrel at
one hand with Deepali and the accused on the
other hand."
(quoted from paper-book page no.77)
9. The version of P.W.2 Pradip does not support the
prosecution. He was declared hostile and was cross-
examined by A.P.P.
10. In the cross-examination P.W.2 Pradip has
confirmed that police had recorded his statement and
the contents of the statement were read out to him and
were correct.
11. In answer to further questions in the cross-
examination by Public Prosecutor P.W.2 has, however,
stated that he did not state before the police version
marked 'A', 'B' and 'C' Exhs.78, 79 and 80 seen in
the statement as recorded by police. Relevant portions
from cross-examination of P.W.2 Pradip by learned
A.P.P. read as follows :-
"4. ....
After my statement was recorded it was read over
to me and I was satisfied that it was recorded
correctly. My statement was recorded in Dhule
Taluka Police Station.
5. The contents of portion mark A of my statement
now read over to me were not stated by me to
police. The contents of portion mark B of my
statement now read over to me were also not
stated by me to police.
6. Not correct to suggest that Deepali had
sustained 100% burns and therefore she was not in
a position to talk. The contents of portion mark
C of my statement now read over to me were also
not stated by me to police. It is correct to
suggest that after Deepali got burnt she was
carried to the hospital by her father in law
Dinkar Patil by Ambulance."
(quoted from paper-book page nos.78 & 79)
12. Had the statements marked as Exhs.78, 79 and 80,
in which this witness had named all five accused as
present in the house (i.e. the portions marked 'A',
'B' and 'C' from the statement recorded by police
remained intact, the fate of case would have been
different.
13. No other evidence was brought by the prosecution
to prove that the case is one of custodial death.
14. Considering the sole testimony of P.W.2 Pradip,
on the basis of which prosecution asserts that accused
are guilty, and the appellants have been held guilty,
turns out to be a solitary piece that too of a hostile
witness who did not support his own version and the
case of prosecution.
15. Perusal of testimonies of witnesses P.W.4 and 5
mother and brother reveals that exact text of
illtreatment has not come on record. All that is
suggested is hear-say, namely, what Dipali had told to
them.
16. The result is that charge, namely, causing hurt,
intimidation, illtreatment over dowry related demand
and murder with common intention, is not at all
suggested, much less proved.
17.
Had the custody of the deceased with that of the
accused been proved, section 106 of the Indian
Evidence Act would have come into play. Even in that
eventuality, it would have been a border line case
standing between suicide and a custodial death
unsupported by presumption in view that the marriage
was more than eight years old on the date of the
incident.
18. In the result, appeal succeeds. The judgment and
order of conviction challenged in this appeal is
liable to be and is hereby set aside.
19. Judgment and order of conviction passed in
Sessions Case No.139 of 2011 by Additional Sessions
Judge, Dhule is set aside.
20. Appellants be set at liberty forthwith, unless
required in any other case. Fine, if paid, be
refunded to them.
(SUNIL P. DESHMUKH, J.) (A.H. JOSHI, J.)
amj/cria490.12
