Bombay High Court
Baliram S/O Gurling Palapure vs The State Of Maharashtra & Ors on 23 October, 2015
Bench: A.B. Chaudhari
Cr.Appeal 620/15 with Cr.Appeal 726/15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.620/2015
Baliram s/o Gurling Palapure,
age 63 yrs., occu.Retired,
r/o Guru Krupa Niwas,
Shri Krupa Society,
Near Datta Mandir, Ausa Road,
Latur Tq. & Dist.Latur.
...Appellant..
Versus
1] The State of Maharashtra.
2] Dr.Nitin s/o Baburao Patil,
age 30 yrs., occu.Private Practitioner,
r/o Siddivinayak Hospital,
T.Point, T.V. Center, Hudco,
Jalgaon Road, Aurangabad.
3] Baburao s/o Shankarrao Patil,
age 72 yrs., occu.agri.,
r/o Rokdasavargaon Tq.Ahmedpur.
Dist.Latur.
4] Sharda @ Anupama Baburao Patil,
age 70 yrs., occu.household,
r/o Rokdasavargaon Tq.Ahmedpur
Dist.Latur.
5] Jitendra s/o Baburao Patil,
age 45 yrs., occu.
r/o Priya Residency, Juna Ausa Road,
Latur Tq. & Dist.Latur.
6] Kailash @ Pundlik s/o Baburao Patil,
age 42 yrs., occu.
r/o Rokdasavargaon Tq.Ahmedpur.
Dist.Latur.
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Cr.Appeal 620/15 with Cr.Appeal 726/15
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7]
Sunil s/o Dhanraj Patil,
age 39 yrs., occu.Doctor
r/o Plot No.3, Shivraj Colony,
New Osmanpura, Aurangabad.
Dist.Aurangabad.
...Respondents...
.....
Smt.M.D. Thube - Mhase, Advocate for appellant.
S/Shri A.S. Shinde and S.B. Yawalkar, APPs for respondent
no.1.
Shri N.S. Ghanekar, Advocate alongwith Shri D.S. Mali,
Advocate for respondent nos.2 to 7.
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CRIMINAL APPEAL NO.726/2015
The State of Maharashtra,
through Police Station Officer,
Police Station, Cidco, Aurangabad.
...Appellant..
(Org.complainant)
Versus
1] Dr.Nitin s/o Baburao Patil,
age 25 yrs.,
r/o Ranjanvan Society, N-9,
Plot No.15, Cidco, Aurangabad.
2] Baburao s/o Shankarrao Patil,
age 67 yrs.,
r/o Rokda Savargaon Tq.Ahmedpur.
Dist.Latur.
3] Sou.Sharda @ Anupama w/o Baburao Patil,
age 65 yrs.,
r/o Rokda Savargaon Tq.Ahmedpur
Dist.Latur.
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4] Jitendra s/o Baburao Patil,
age 45 yrs.,
r/o Priya Residency, Ausa Road,
Latur Tq. & Dist.Latur.
5] Kailas @ Kuldip Baburao Patil,
age 37 yrs.,
r/o Rokda Savargaon Tq.Ahmedpur.
Dist.Latur.
6] Sunil Dhanraj Patil,
age 34 yrs.,
r/o Shivraj Colony, Plot No.3,
ig New Osmanpura, Aurangabad.
Dist.Aurangabad.
..Respondents..
(Org.accused)
.....
S/Shri A.S. Shinde and S.B. Yawalkar, APPs for appellant.
Shri N.S. Ghanekar, Advocate alongwith Shri D.S. Mali,
Advocate for respondent nos.1 to 6.
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CORAM: A.B. CHAUDHARI &
INDIRA K. JAIN, JJ.
JUDGMENT RESERVED ON : 19.10.2015
JUDGMENT PRONOUNCED ON : 23.10.2015
JUDGMENT (Per A.B. Chaudhari, J.) :
1] Criminal Appeal No.620/2015 has been filed by
Baliram Gurling Palapure - the complainant against the
judgment and order dated 1.6.2015 passed by the learned
4th Additional Sessions Judge, Aurangabad, in Sessions
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Case No.388/2010, by which he acquitted all the accused
persons, who were charged for various offences punishable
u/ss.498-A, 323, 504, 506, 304-B, 306, 201, 202 and 195-A
of the Indian Penal Code.
2] Criminal Appeal No.726/2015 has been filed by
the State of Maharashtra against the same judgment and
order of acquittal of all the accused persons.
3] Both these appeals were taken up for final
hearing with the consent of learned counsel for the rival
parties. Pursuant to the order dated 15.9.2015 made by
this Court while granting bail, the learned counsel for
the parties agreed to have final hearing in these appeals
instead of seeking adjournment.
FACTS :
The prosecution case in brief is as under:
4] On 2.5.2010 at about 00-30 hours, Police
Station, CIDCO, Aurangabad City received information from
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Bembde Plastic Surgery and Burns Hospital, Aurangabad,
that one Suchita Nitin Patil was admitted in the hospital
by her husband Dr.Nitin Patil at about 10-30 p.m. in
burnt condition. The Police Station Officer took the
entry of the information in Station Diary No.122/2010,
which was given MLC No.105/2010 and the case was handed
over to PW6 ASI Vinayak Rathod. PW6 Vinayak Rathod went
to Bembde Hospital and gave a letter (Exh.110) to find
out the condition of the patient Suchita. At about 1-30
a.m., the patient was found oriented and conscious. He
recorded her statement (Exh.221). Thereafter, he gave
letter (Exh.116) to PW5 Shri Mendke, Naib Tahsildar, who
went to the hospital at about 10-00 a.m. and recorded
her statement (Exh.118). In these two statements to PW6
Vinayak Rathod and PW5 Mendke, Suchita had stated that on
1.5.2010, her husband had gone to the hospital. Her son
was sleeping in the bed room. Her father-in-law and
mother-in-law were also in the house. There was one
cooler in the hall. She had kept one bislery bottle
containing petrol for her Scooty on cooler. At the time
of Aarati of Lord Shri Ganesh, by oversight she had a
dash to the cooler, when the bislery bottle containing
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petrol fell down on the floor and the petrol spread.
Meanwhile, she had an already lighted copper lamp in her
hand and when she was about to lift the bislery bottle
containing petrol, there was flame of fire and she got
fire. In the said incident, she sustained burn injuries
to her both the hands, face, stomach and legs.
5] The Police Station Officer then handed over
further investigation to PW19 Shri K.K. Shinde who
obtained papers from ASI Rathod and both the aforesaid
statements recorded by Vinayak Rathod and Mendke - the
Naib Tahsildar. He called two panchas i.e. PW1 Deepak
Jaiswal and Vishwanath Swami and went to the spot namely
the ground floor of the house of Dr.Dhanwai at Ranjanwan
Society, N-9, CIDCO, Aurangabad. He found some burnt
pieces of clothes lying on the floor of hall as well as
bedroom. He found black spot of burns over the wall and
floor of the bedroom. He found one mobile handset in the
bedroom, one match box lying on the floor. There were
two cupboards. He inspected the cupboards and found one
spiral diary (Exh.131). He seized the articles and also
caused the photography done. He came to the hospital
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when he was handed over a letter (Exh.186) by PW18
Baliram Palapure (PW18) - the appellant - the father of
Suchita in which he made a request for recording the
statements of Suchita on the ground that they were
recorded in his absence and he had a suspicion about the
same. PW19 K.K.Shinde asked the Medical Officer to
certify about the condition of the patient. The doctor
examined her at 5-00 p.m. and certified that she was
conscious, oriented and able to give statement. He then
recorded her statement (Exh.221) with the help of his
Writer as per his dictation. Thereafter, he gave another
letter (Exh.119) to Shri PW5 Shri Mendke for recording
her statement who again went to the hospital. Shri
Mendke then recorded her statement (Exh.120) in question
and answer form. In the statement (Exh.221) recorded by
Shri K.K. Shinde, Suchita had stated that she was married
with Dr.Nitin Patil - accused no.1 in June, 2005. She
was a Dentist and they were residing in the house of
Dr.Dhanwai at Ranjanwan Society, N-9, CIDCO, Aurangabad.
Her father-in-law, mother-in-law and brothers-in-law i.e.
Kailas and Jitendra were visiting her house
intermittently. She was treated well for about six
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months after her marriage. Thereafter, her husband,
father-in-law and mother-in-law started giving her ill-
treatment stating that she was not fair looking and she
should bring amount for construction of hospital for her
husband from her parents. On that, her husband used to
beat and abuse her. They were saying that her father had
plenty of amount and, therefore, were demanding money for
the purpose of construction of hospital for Dr.Nitin
Patil. They were threatening to drive her out of her
house in case she failed to bring the money. Her
brother-in-law was also instigating her husband. Due to
constant ill-treatment given to her, she was fed up. On
1.5.2010, it is on the fateful night, she informed her
father on phone about the ill-treatment. She poured
petrol on her person and set herself on fire on 1.5.2010
at about 21-45 as it was very difficult for her to
continue to bear the ill-treatment.
6] In the statement recorded by PW5 Mendke, she
stated that in the evening at about 6-00 to 7-00 p.m.,
the incident had taken place namely that her husband had
accused her of taking Rs.2500/- from his pocket about
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which she felt insulted and, therefore, she poured petrol
on her person and set herself on fire and that her
husband was always treating her in that manner.
7] On 9.5.2010, the Police Station received MLC
(Exh.222) about the death of Suchita Nitin Patil on
9.5.2010. PW19 K.K. Shinde visited Bembde Hospital,
prepared inquest panchanama and requested the Medical
Officer to conduct the post mortem. PW7 Shri Jadhav,
Medical Officer, conducted the post mortem and handed
over the report to Shri K.K. Shinde.
8] On 10.5.2010, PW18 Baliram Palapure lodged the
report to the Police Station (Exh.185) alleging that
Suchita was married to Dr.Nitin Patil on 3.6.2005. She
was a Dentist. Deceased Suchita and Dr.Nitin Patil both
were practising at Siddhivinayak Hospital. The native
place of Dr.Nitin Patil is Sawargaon Rokda Tq.Ahmedpur
Dist.Latur. The parents and brothers of Dr.Nitin Patil
were residing at their native place. After the marriage,
they were visiting the house of Suchita and used to stay
for 2/3 days. At that time, they used to tell his
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daughter deceased Suchita that her father had plenty of
money and, therefore, he can very well pay them money for
construction of hospital. Her brother-in-law Jitendra
used to tell her that they should bear the expenses of
their village. Her brother-in-law Kailas was instigating
others. In order to compel deceased Suchita, accused
nos.1 to 5 were taunting, using oblique words and used to
tell her that she was black in complexion, dwarf and was
unable to do household work. She was not fair looking
and, therefore, they were giving insulting treatment to
her. They used to abuse her. Her in-laws used to
instigate Dr.Nitin Patil and therefore, he used to beat
her at their instigation. Whenever PW18 Baliram Palapure
had been to the house of his daughter, Suchita used to
tell him about the ill-treatment. She had also told him
that her father i.e. PW18 Baliram should do something to
fulfill the demands, otherwise they would not permit her
to live happily and, therefore, he was giving moral
support and convincing her. At one point of time, in
order to convince the family members of Dr.Nitin Patil,
he went to her matrimonial house, but then they
reiterated their demand of money for construction of
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hospital for Dr.Nitin Patil and not only that Dr.Nitin
Patil had threatened that otherwise he should take his
daughter with him. He then requested them to give him
some time to manage the amount, but thereafter also they
continued to ill-treat her. PW18 Baliram then alleged
that in January, 2009, he had paid an amount of
Rs.12,00,000/- for purchasing a plot at Aurangabad. But
thereafter also, the demand for money from deceased
Suchita was being made for construction of hospital and
on that count, she was being assaulted several times.
For some or the other reason, she was being harassed and
ill-treated including the charge of commission of theft
of the amount. He, however, continued to pay money to
them from time to time, but the attitude did not change
and the ill-treatment was increasing. He then stated
that on 1.5.2010 at about 9-00 a.m., he had received a
telephonic call from his daughter Suchita, who told him
that her in-laws asked her to bring money from him and
that on that count, they were ill-treating her. She also
told him that her family members were making allegations
of theft of money and that they were mentally and
physically torturing her and making demand for money.
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He, therefore, made a telephone call to her father-in-law
and tried to convince them not to ill-treat his daughter.
It is then stated that on 1.5.2010 at about 11-30 p.m. in
the night when he was at his village, he received a phone
call from his relatives that his daughter Suchita was
burnt and admitted at Bembde Hospital, Aurangabad. He,
therefore, came to Bembde Hospital and saw his daughter
Suchita, who had received 95% burn injuries. When he
enquired from her, she told him about the injuries that
due to constant ill-treatment by her family members, it
was difficult for her to bear the same and, therefore,
she set herself on fire after pouring petrol on her
person on 1.5.2010 at about 21-45 hours. She also told
him that the friend of her husband namely Dr.Sunil Patil
- accused no.6 told her that she had sustained only 10%
to 15% burn injuries and she would be alright very soon
and it was a household matter and that she should look
after her son and was given oath of her son to tell the
Police that at the time of Aarti of Lord Shri Ganesh, the
petrol bottle which was on the cooler fell on floor,
petrol therein spread on floor and due to explosion of
fire, she was burnt and not to make any complaint against
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anyone. Accordingly, she had given statement to Police
as well as to the Magistrate. She also told him that she
had noted down about all this in her diaries. The
complaint PW18 Baliram told that his daughter died on
9.5.2010 at about 22-40 hours. He stated that family
members of Suchita were not present during the treatment.
He was looking after deceased Suchita. As he was in
shock and, therefore, there was delay in lodging the
report to the Police Station.
9] PSO on duty on the basis of report registered
Crime NO.I-180/2010 under Sections 498-A, 304-B, 323,
504, 506 r/w 34 of the Indian Penal Code and handed over
further investigation to PSI Shri K.K. Shinde.
10] PW19 Shri K.K. Shinde took investigation and
recorded the statements of PW 15 Chandrashekhar Desai and
other witnesses. He seized certain registers. He
collected the information from the bank. After some
investigation, he handed over investigation to PW20 Shri
Dabbewad, who visited Siddhivinayak Hospital of Dr.Nitin
Patil. He was given one diary (Exh.133), which was
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seized. Then he sent Articles 7, 8 and 9 alongwith
spiral diary for opinion of Handwriting Expert. He then
arrested the accused persons. He also recorded
supplementary statements of witnesses. He collected the
C.A. Reports. He collected the information of the bank
accounts of the accused Dr.Nitin Patil so also the
deceased Suchita from the concerned banks. Since he
found sufficient evidence against the accused, he filed
the charge-sheet on 27.8.2010. The report of the
Handwriting Expert was also produced on record. The case
was committed thereafter to the Sessions Court. After
hearing both the sides, the charge u/ss.498-A, 304-B,
306, 323, 504 and 506 r/w 34 of the Indian Penal Code was
framed against the accused persons.
11] The prosecution in all examined 20 witnesses and
relied on several documents. The defence of the accused
is of total denial and false implication. The accused
no.1 produced on record several documents and
photographs. The defence is that deceased Suchita was a
very hot tempered lady and was born and brought up in a
pampered condition, her father being an Executive
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Engineer in Irrigation Department of the State. On
trifle grounds, she was getting angry and sometimes it
was very difficult to control her anger. It is further
defence that on the date of the incident, accused no.1
found that an amount of Rs.2500/- was missing from his
pocket and, therefore, he questioned her whether she took
that amount. Deceased Suchita took it otherwise and
started blaming him whether he would call her thief. On
that count, she became angry and then he explained the
circumstances as to how she left the house and committed
suicide. The defence contended that the deceased Suchita
could not control her anger and as such set herself on
fire. Immediately after getting the information, he took
her to the hospital and admitted her there and bore all
the expenses. But informant by filing application to the
Police, compelled them to leave the hospital. It is
their further defence that father-in-law, mother-in-law
and brother-in-law of deceased Suchita were residing at
their native place though they used to occasionally visit
Aurangabad, but none of them ill-treated her for the
money as alleged. In fact, they did not receive any
money from the informant - complainant. The amount that
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was received by Dr.Nitin Patil was towards N.A. Charges
of the plot jointly purchased by Dr.Nitin Patil and son
of PW 18 by name Suhas Palapure. They have produced
number of photographs on record saying that Suchita was
treated well by Dr.Nitin Patil as they have visited
several places together in order that they were leading
happy married life, but for the unfortunate incident in
question, which took place in an anger of deceased
Suchita.
12] In support of the appeal filed by PW18 Baliram
Palapure - the complainant as well as the appeal filed by
the State, the learned counsel in both these appeals made
the following submissions :
a] The learned trial Judge has recorded a
finding on evidence that the theory of the
accidental death of deceased Suchita is completely
ruled out and on the contrary, a categorical
finding is recorded that she committed suicide by
pouring petrol on her person and by setting her
ablaze, is proved by the prosecution. Even the
defence at a later point of time conceded the
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theory of commission of suicide by deceased
Suchita and admitted that the theory of accident
was not true. The evidence on record shows that
the deceased Suchita had committed suicide.
b] The prosecution tendered voluminous
evidence on record to prove the offences u/ss.
304-B, 498-A, 201, 202 and 195-A of the Indian
Penal Code in the form of oral as well as
documentary evidence. The oral evidence that was
brought on record was of PW18 Baliram, PW 14
Manmath Patil, PW12 Rohidas Naikwade, PW15
Chandrashekhar Desai, PW16 Laxman Usturge, PW17
Narsing Sangve in respect of the demand of money
and the ill-treatment that was given to deceased
Suchita by the accused persons. The documentary
evidence in the form of dying declaration
(Exh.221) recorded by PW19 K.K. Shinde and the
spiral diary (Exh.131) written by the deceased
Suchita upto the date of the incident. The
evidence about the payment of money by PW18
Baliram to the accused has been brought on record
by the witnesses by name PW13 Tukaram Kale; PW9
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Sandip Tayde, Assistant Manager at SBI Erandvana
branch, Pune; PW14 Amogh Kolhatkar, Assistant
Branch Manager at HDFC Bank, Aurangabad and PW11
Anil Tatode, Branch Manager at SBI branch
Jadhavwadi, Aurangabad.
c] The learned counsel for the appellants then
submitted that in all, amount of Rs.70,00,000/-
was paid to the accused no.1 - Dr.Nitin Patil by
PW18 Baliram with the hope that his daughter will
be treated well after satisfying their demand, but
then the money for construction of hospital was
again an issue, which was being raised.
d] The learned counsel then submitted that the
learned trial Judge committed an error in
disbelieving oral evidence of these witnesses for
flimsy reasons and he ignored the documentary
evidence brought on record about the actual
payment of money by PW18 Baliram to the accused
no.1. It is not the case of the defence that the
money was paid by PW18 Baliram out of love and
affection for his daughter Suchita or for the
accused no.1, but on the contrary, the evidence
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shows that it was purely out of compulsion. PW18
Baliram submitted to the demand in order to save
ill-treatment to his daughter Suchita and went on
making payment of money and ultimately when the
plot was purchased, it was purchased in the joint
name of his son and Dr.Nitin Patil. PW18 Baliram
did not want to take risk and, therefore, he
jointly purchased the plot in the name of his son
and the accused Dr.Nitin Patil.
e] The accused no.1 did not have any money to
his credit nor cash in hand, but then he and his
family members were not justified in ill-treating
Suchita for demand of money from her father, which
amounts to serious offences u/s 304-B and 498-A of
the Indian Penal Code. The learned trial Judge
has casually dealt with the evidence of these
witnesses so also the documentary evidence and has
not looked into the manipulations made at the
beginning by the accused persons when Suchita was
taken to hospital and the Police and the Tahsildar
had recorded her statements.
f] The learned counsel for the appellants then
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submitted that the spiral diary (Exh.131 clearly
proves the reason for taking ultimate decision to
commit suicide and the diary itself shows
continuous ill-treatment to her by the accused
persons over the demand of money from her father.
The defence theory that she had herself committed
suicide because she was a woman with
uncontrollable anger is a fake story and clearly
disproved from the oral evidence and the diary
that was written by her, which if seen carefully,
would clearly show that the suicide was committed
by Suchita because of continuous ill-treatment to
her by the accused persons over the demand of
money from her father for purchase of plot and for
construction of hospital for Dr.Nitin Patil.
g] The theory of defence about her commission
of suicide in the anger is completely ruled out
and as a matter of fact must be held to be false
and bogus in view of the fact that the deceased
Suchita had a two and half years son namely Parth
and it would be impossible to hold that with a son
to whom she loved a lot, which is clear from the
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evidence, suddenly she would commit suicide due to
her anger as propagated by the defence. At any
rate, the prosecution having once shifted the
burden to the defence, particularly in the light
of presumption u/s 113-B of the Indian Evidence
Act read with Section 304-B of the Indian Penal
Code, the defence was equally under obligation to
prove their defence in accordance with law, also
in the light of Section 106 of the Indian Evidence
Act, but none of the accused entered the witness
box and the defence witnesses were examined on the
point which did not rebut the evidence regarding
continuous ill-treatment after six months of the
marriage of deceased Suchita with Dr.Nitin Patil.
h] The learned trial Court made a lot of
confusion while discussing the evidence of PW14,
PW16, which shows the casual attitude on the part
of the learned trial Judge in inferring about the
inconsistencies when there were none. The defence
story that money paid to Dr.Nitin Patil in the sum
of Rs.27,00,000/- till June, 2008, was towards
development charges must be held to be bogus since
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for a plot of 14,000 Sq.Ft., the development
charges could not be Rs.27,00,000/- and secondly
unless the process for conversion of non-
agricultural status is actually started, the
question of payment of development charges would
not arise.
i] The learned counsel for the appellants in
both the appeals then contended that PW18 Baliram
proved the amounts, which were also paid in cash.
The witness DW3 Vasudha was in fact the Police
witness, but did not turn up to give evidence for
prosecution on three occasions, when she was
summoned, but then entered as a defence witness at
the fourth time and deposed contrary to her
statement to Police recorded u/s 161 of the Indian
Penal Code. At any rate, the defence witnesses
are of no relevance insofar as the offences
committed by the accused persons are concerned.
The defence did not at all probabalize their case
and, therefore, the defence was required to be
rejected by the learned trial Judge.
j] Though PW19 K.K. Shinde brought fourth
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dying declaration (Exh.221) recorded by him after
registration of the offence, there is strong
evidence on record to show that Exhibit 221 was
recorded by him on 2.5.2010 itself and there is no
reason to doubt the said dying declaration.
According to the learned counsel for the
appellants in these appeals, for the fault of
Investigating Officer PW19 K.K. Shinde in not
producing the dying declaration or not registering
the offence immediately after recording, the
prosecution cannot be asked to suffer and for that
no injustice can be done to the prosecution as the
Investigating Officer's fault should not affect
the case of the prosecution. There is strong
evidence of PW18 Baliram on record to show that
deceased Suchita had told her father by way of
oral dying declaration that accused no.6 Dr.Sunil
had prevailed upon her to give false statement
giving her oath about her son in order to screen
the offenders and, therefore, he is also guilty of
the offence punishable u/s 195-A of the Indian
Penal Code.
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k] The learned counsel for the appellants in
both the appeals prayed for reversal of the order
of acquittal and for recording conviction.
13] Per contra, Shri N.S. Ghanekar, learned counsel
for the respondents - accused made the following
submissions :-
i] That these appeals against acquittal cannot
be entertained in the light of the rigors
applicable for hearing and disposal of the appeals
against acquittal. He relied on certain
decisions.
ii] In fairness, Shri N.S. Ghanekar, learned
counsel for the respondents - accused stated that
though two dying declarations (Exhs.122 recorded
at 1-30 a.m. and at Exhibit 118 recorded at 11-05
a.m. by PW6 ASI Rathod and PW5 Dhulaji
respectively indicating accident as the cause for
fire and burn injuries to deceased Suchita, the
defence does not rely on the said theory, but
concedes that the death of Suchita was due to
commission of suicide by her. He then submitted
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that the deceased Suchita was a hot tempered woman
and was brought in a pampered atmosphere and used
to go in the anger uncontrolled and then take
steps to the extreme. That is why, she committed
suicide on the fateful night by burning herself
upon pouring petrol from a plastic water bottle
and even the petrol was brought by her in the
bottle.
iii] The learned counsel for the defence then
contended that the initial burden to prove that
the death of Suchita was due to ill-treatment or
cruelty for demand of dowry or demand of money,
has not been discharged by the prosecution at all
and on the contrary, the evidence relied upon by
the prosecution is infirm apart from being
inconsistent and untrustworthy. He submitted that
the prosecution relied on spiral diary (Exh.131)
and with the consent of the defence, the entire
diary was allowed to be read in evidence including
the exhibited portion thereof. The diary was
regularly maintained by deceased Suchita. If the
diary is carefully perused, in entirety or even
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the exhibited portion, the same does not at all
show mention about any demand of money for
construction of hospital or for purchase of plot
for hospital or otherwise and cruel treatment or
harassment or ill-treatment for that purpose.
Similar is the case with the dying declarations,
three in number, viz. Exhibits 221, 118 and 120,
which do not at all show a word about the demand
or the ill-treatment or the cruelty to her when
the prosecution itself relies on these dying
declarations. The learned counsel, therefore,
submitted that non-mention of any ill-treatment in
these dying declarations and the spiral diary
(Exh.131), which is a contemporaneous evidence
clearly shows that the case of the prosecution is
inconsistent with the charge framed against the
respondents.
iv] The learned counsel for the respondents
then contended that Exhibit 221 recorded by PW19
K.K.Shinde at 5-00 p.m. was only after the
intervention made by the father of the deceased
PW18 Baliram making a complaint about or showing
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suspicion about recording of earlier dying
declarations (Exhs.118 and 122) and, therefore,
the said dying declarations contain the mention
about the ill-treatment, demand etc. There are
reasons and reasons for rejecting Exhibit 221.
Exhibit 221 was said to have been recorded on
2.5.2010 at 5-00 p.m., but then the same did not
see the light of the day till the lodging of the
FIR on 10.5.2010, for which PW19 K.K.Shinde, who
was holding the said paper of dying declaration
(Exh.221) did not have any explanation much less
plausible explanation. Therefore, the dying
declaration can be said to have been manipulated.
v] The oral evidence of the witnesses who
deposed on behalf of the prosecution before the
Court as has been found by the trial Court is
wholly inconsistent and do not support each other.
The theory propounded by the witnesses about the
demand of money from the father of the deceased
Suchita has not been proved since the evidence
about payment of money is too vague to be
accepted. Perusal of the entire oral evidence
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will show that not a single witness has deposed as
to what exact amount of money was demanded by the
accused persons for construction of hospital or
for purchase of plot, as the case may be. The
trial Court has not acted upon such a vague
evidence of general nature and, therefore, there
is no perversity in the finding recorded by the
learned trial Judge.
vi] The FIR was lodged on 10.5.2010 i.e. after
almost eight days clearly showing that it was
afterthought and with a view to take revenge of
the respondents. There is no plausible
explanation from the prosecution as to the delay
in lodging the FIR and explanation from PW18
Baliram that he was in shock does not satisfy the
mind of the Court. As a matter of fact, he had
lodged protest earlier with the Police machinery
and, therefore, it is no gain saying that the
delay has been explained.
vii] The existence of multiple dying
declarations with no consistency at all about the
charge in question must enure to the benefit of
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the accused by giving benefit of doubt and,
therefore, the learned trial Judge was right in
extending the benefit of doubt to the accused
persons.
viii] The defence that the deceased Suchita went
in anger on the fateful day because of the alleged
charge made by her husband about theft of
Rs.2500/- from his pocket by her is very well and
fully corroborated by PW17 Narsing, who has given
several admissions to that effect about the
abnormal behaviour of the deceased on that
particular day when she came back to the house and
went back and after few hours burnt herself by
pouring petrol. The defence was thus fully
probabalized and there is no reason why the same
should be rejected. The defence witnesses
examined by the defence are required to be
believed and in the matter of appreciation of
evidence, they should also be treated at par with
prosecution witnesses. The aspect of theft of
Rs.2500/- from the pocket of the accused No.1 is
also highlighted from the other evidence, which
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the trial Court found probable and, therefore,
recorded the order of acquittal.
ix] For Section 304-B of the Indian Penal Code,
what is required is the live link and in the
instant case, there is no evidence whatsoever on
record that on 1.5.2010 or 2.5.2010, there was any
ill-treatment or cruelty on the part of the
accused persons to the deceased Suchita that she
had to commit suicide and, therefore, in the
absence of any live link, ingredients of Section
304-B of the Indian Penal Code are not satisfied.
When the ingredients of Sections 304-B and 498-A
of the Indian Penal Code are not satisfied by
satisfactory evidence before the trial Court, the
question of raising presumption u/s 113-B of the
Evidence Act does not arise. That is the finding
recorded by the learned trial Judge, which is
legal, correct and proper.
x] Though the dying declaration (Exh.221) is
said to have been written by a Writer and not
personally by PW19 K.K.Shinde, but the Writer was
not examined and, therefore, the same is required
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to be rejected by this Court. Exhibit 221 was
admittedly not read over to the deceased nor she
admitted the same to be correct and, therefore, is
liable to be discarded for which the learned
counsel cited some decisions so also on the
offence u/s 304-B of the Indian Penal Code.
xi] There is voluminous evidence on record in
the form of photographs and from the cross-
examination to show that the accused no.1 had 24
tours at different places with deceased Suchita
and she was thus kept happy by her husband and,
therefore, it is wrong to say that she was ill-
treated. On the contrary, an amount of
Rs.5,00,000/- was spent by accused no.1 for
purchasing the Dentist chair for her.
xii] The payments made by PW18 Baliram as shown
by the prosecution were towards the half share in
the plot of Suhas, the son of PW18 Baliram, that
was purchased for total agreed consideration of
Rs.98,00,000/-, which is evident from the Bharna
Pavti. The amount paid by PW18 Baliram by cheques
from the account of his daughters or some other
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accounts, therefore, were clearly towards the half
share that was purchased in the plot, whose total
consideration was Rs.98,00,000/-. The learned
counsel for the respondents - accused, however,
fairly stated that about remaining half share, the
accused persons have not produced any evidence as
to the payments made by them.
xiii] the said Bharna Pavti is a document
admissible in evidence in a criminal trial since
the prosecution has not seriously disputed the
execution thereof and on the contrary, the same
has been proved by the defence. At any rate, the
prosecution is guilty of not bringing Suhas
Palapure, who signed the said document and whose
signature was duly proved in the evidence.
xiv] the learned counsel for the respondents
then contended that there is absolutely no
evidence about Section 195-A of the Indian Penal
Code pertaining to Dr.Sunil Patil.
xv] Insofar as the accused persons are
concerned, also there is no reliable evidence and
consequently no interference in the order of
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acquittal should be made by this Court. He,
therefore, prayed for dismissal of the appeals
preferred by PW18 Baliram as well as by the State.
xvi] The learned counsel for the respondents,
inter alia, cited following decisions:
1] Aftab Alam Abdul Hamid Ansari v. State
[2005 (3) B.Cr.C. 455] (Bombay High Court)
2] Manju Ram Kalita v. State of Assam
2009 B.Cr.C. 692 (SC)
3] Dnyaneshwar v. State
Manu/MH/2184/2015
4] Murlidhar Allas Gidda & others v. State
of Karnataka
(2014 (SCC) 730
5] Murugesan & 16 others v. State through
Inspector of Police
2012 DGLS (Soft) 487
CONSIDERATION :
14] We have heard the learned counsel for the rival
parties at length for a few days. We have read the
entire evidence tendered by the prosecution as well as by
defence. We have carefully seen all the documents proved
by the prosecution before the Court. We have seen the
reasons recorded by the learned trial Judge.
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15] This case unfolds unfortunate story of a girl
and a daughter of an Executive Engineer in the Irrigation
Department of the Government of Maharashtra, about whom
the accused no.1 and his family members carried a
concrete impression that PW18 Baliram - the father of
deceased Suchita must be and is a man of plenty of money,
he being the Executive Engineer in the Irrigation
Department of the State. This is fortified from the fact
that the deceased Suchita has written in her diary
(Exh.131) asking her husband as to whether he married
looking at her or her father. PW18 Baliram himself
claims that he paid over Rs.70,00,000/- to the accused
no.1 to satisfy the demand by the accused no.1 and his
family members in order that his daughter Suchita is not
ill-treated by them. The Bharna Pavti shows total
consideration of the amount of plot at Rs.98,00,000/-
though the saledeed of the plot in the name of the
accused no.1 and son of PW18 Baliram is at almost half of
the said price. There is whatsoever no evidence on
record to show that the accused no.1 - Dr.Nitin Patil
paid a single rupee for purchase of the said plot though
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the plot is in his joint name with Suhas and that gives a
reason to hold that the entire amount of Rs.98,00,000/-
must have been paid by PW18 Baliram. PW18 Baliram tried
to show his agricultural income, but there is no
satisfactory evidence on record about his agricultural
income and there is a reason to believe that whatever he
paid was his income while working as an Executive
Engineer in the Irrigation Department of the Government
of Maharashtra. This is also happening in many of the
Departments and establishments. It is in fact the case
of the prosecution and the deposition of PW18 Baliram
that the accused no.1 and his relatives were saying that
PW18 Baliram has plenty of money and could easily pay for
construction of hospital for the accused no.1. Thus, it
is clear that this facet of disproportionate assets has
become a social evil and as a result thereof accused no.1
and his family members were looking at PW18 Baliram as
the treasury of money, he being in the Irrigation
Department, but the victim of all this was the
unfortunate girl Dr.Suchita Patil. Similarly, the inane
desire to have a hospital by doctors like the accused
no.1 out of greed for money is on the increase and has
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also spoiled the moral fabric of the medical profession.
Here the accused no.1, a post graduate doctor, wanted
that his father-in-law being in Irrigation Department was
obligated to satisfy his desire. With the above prelude,
we proceed to deal with these appeals further.
16] As rightly argued by the learned counsel for the
parties before us, the initial burden of proof is on the
prosecution to prove its case beyond reasonable doubt.
At the same time, the death of deceased Dr.Suchita being
within seven years of her marriage, principles of law and
the Will of the Parliament expressed through Section 304-
B of the Indian Penal Code and Section 113-B of the
Indian Evidence Act must be appropriately applied. The
evidence of PW17 Narsing, who is related to PW18 Baliram
and who resides at Aurangabad, clearly shows that on
1.5.2010 at about 11-00 a.m. to 12-00 noon, he received a
phone call from the complainant - Baliram to go to the
house of Suchita and find out what are the problems and
accordingly he went and found that Suchita was weeping
and told him that she was being blamed about theft of
Rs.2500/- by her husband and that she was being ill-
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treated though she had packed the luggage for in-laws who
wanted to go to pilgrim. He convinced her and left her
house at 4-00 p.m. At about 7-00 p.m., he again received
a call from the complainant Baliram and he again went to
her house, but she was not in the house and her mother-
in-law told him that she had gone in an auto-rickshaw
without informing where she was going. He stayed there
for some time when at about 9-00 p.m., Suchita came back
to the house and then he left her house at about 9-30
p.m. At about 10-00 to 10-30 p.m., he again received a
call from the complainant Baliram asking him to again go
to her house and accordingly he went to her house to
learn that Suchita was burnt, which fact he informed to
the complainant Baliram that she was admitted to Bembde
Hospital. He was not allowed to talk to her.
17] Learned counsel for the respondents submitted
that PW17 Narsing was residing at Aurangabad and was in
close relation and, therefore, deceased Suchita would
have told him about the ill-treatment and demand of
money, but that is not his evidence, which is unnatural.
He then submitted that PW17 does not say a word about any
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ill-treatment or demand of money and on the contrary, he
supports the case of the defence about the charge of
theft of Rs.2500/- allegedly made by accused no.1 and her
anger to leave the house without telling anybody and then
coming back again in the house and then setting herself
on fire indicates that she committed suicide in her
anger.
18]
This witness, in our opinion, has not been
examined by the prosecution for proving the demand of
money or for ill-treatment and, therefore, we do not
agree with the learned counsel for the respondents that
he should be having knowledge about the same. The
prosecution examined many other witnesses on the said
point and, therefore, we do not give any credence to the
said submission. As to the theory of anger due to the
charge of theft of Rs.2500/-, we will deal with the same
at a later point of time. After her admission in the
Bembde Hospital and report of MLC to the Police Station
Officer, CIDCO, Aurangabad, PW5 ASI Rathod recorded her
dying declaration (Exh.221) at 1-30 a.m. in which she
stated about the accidental fall of plastic bottle
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containing petrol and the lighted lamp falling down on
her and she catching fire. Thereafter, at 11-05 a.m.,
Exhibit 118 was recorded by PW5 Dhulaji, Executive
Magistrate, and similar statement about the accidental
fire was recorded. We have earlier stated that the
prosecution as well as the defence are at ad-idem that
there was no accidental death, but that Suchita committed
suicide. We, therefore, really wonder as to under what
circumstances, the theory of accidental fire was
introduced in Exhibits 221 and 118. It is amply clear
that deceased Suchita was admitted to hospital by her
husband - accused no.1 and others and these two dying
declarations were recorded while she was in the custody
of accused no.1 and his friends. There is a reason to
have a needle of suspicion on the accused no.1 as to
these two dying declarations (Exhs.122 and 118) in which
accidental fire theory has been propagated. It is
noteworthy that the same PW5 Dhulaji, Executive
Magistrate, also recorded the last dying declaration
(Exh.120) after Exhibit 221 was recorded by PW19 K.K.
Shinde.
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19] Be that as it may. Since the theory of suicidal
death is now being accepted by both the sides, we proceed
to examine the evidence further.
20] PW12 Rohidas Gunaji Naikwade is the co-brother
of PW18 Baliram. He deposed thus in paragraph nos.3 and
4 of his evidence as under:
"3.
In the month of December 2007 when I was on
the way to Nanded from Narayangaon, I met
Suchita at Aurangabad. At that time her father-
in-law and mother-in-law were present at the
house. I noticed that they are not properly
behaving with Suchita. The mother-in-law of
Suchita at that time in presence of Suchita told
me that they had hope that the parents of
Suchita would provide money for the construction
of hospital, but their hopes have gone in vain,
it would have been better, if they would have
performed marriage with other girl. After
hearing this Suchita wept much, I convinced her.
Because of the illtreatment Suchita committed
suicide on 1st May 2010 by pouring petrol on her
person and setting herself on fire. She had
illtreatment of accused Nos.1 to 5. Police
recorded my statement on 15.5.2010. At that
time I was in grief and therefore, I could not
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tell all the things in detail to police. So on
23.7.2010 I gave my supplementary statement to
the police.
4. On 2.12.2007 we were assembled at
Aurangabad for the religious function of Parth,
the son of Dr.Nitin Patil. On that day I halted
at Aurangabad. Accused Nos.1 to 5 were present
in the said function. On 3.12.2007 I went to
the house of Suchita for breakfast. Accused
were telling that the parents of Suchita should
repay the loan amount and construct hospital.
The above said incident referred to above as
December 2007 was taken place on 3.12.2007.
Suchita was narrating her illtreatment to me, so
also her father. Suchita disclosed her
illtreatment to me when she had been to her
parental house. Suchita by nature was calm."
The learned trial Judge did not accept his evidence
stating that on the point of demand of money, his
evidence is of general nature and vague and that there is
no evidence to show that Suchita had narrated him about
illtreatment during his 2/3 visits and that the demand of
money by mother-in-law and father-in-law at the house of
Suchita is an omission. This finding recorded by the
learned trial Judge about this witness, in our opinion,
is perverse since the evidence above in paragraph nos.3
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and 4 clearly shows it was Suchita who disclosed him
about the illtreatment and by nature, she was calm. He
also describes the demand of money for construction of
hospital by accused no.1. He also describes about the
role of father-in-law and mother-in-law of Suchita in
paragraph no.3 above in the evidence in saying that they
were expecting money for construction of hospital, but
their hopes have gone in vain and it would have been
better had they performed the marriage of accused no.1
with some other girl.
21] Next is the evidence of PW14 Manmath Patil.
PW14 Manmath Patil deposed thus in paragraph no.1 of his
evidence before the Court and the extracted portion from
this paragraph is as under:
"Her family members were illtreating her, so that
her parents would help them to construct
hospital. Whenever Suchita had been to village,
she used to narrate me her illtreatment. Her
father told her that they would come to her house
to convince her family members. At the time of
Dipawali of 2007 I alongwith Baliram had been to
village Savargaon to convince the family members
of Suchita. We met there Dr.Nitin, his brothers
Jitendra and Kailash so also his parents.
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Baliram raised the issue of the illtreatment of
Suchita and asked them as to why they are doing
so. They told us that their hospital is in a
rented premises, they requested amount for
hospital and to repay the loan amount. Baliram
told them that it is not possible for him to
fulfill all the demands, but he will try to help
them. He humbly requested them not to illtreat
his daughter."
22]
That Baliram raised an issue of illtreatment of
Suchita and that it was not possible for Baliram to
fulfill all the demands is the omission brought in his
evidence. However, his evidence that in Dipawali of
2007, he alongwith Baliram had gone to the village of
accused persons. They met the members of the family and
that they told them that their hospital is in rented
premises and, therefore, they requested the amount for
the hospital and that Baliram requested them not to
illtreat his daughter, is consistent and has not been
shattered in the cross-examination and then his evidence
has been corroborated by Baliram in his evidence in
paragraph no.5 that Baliram had gone with PW14 Manmath
Patil at the village of the accused persons where the
demand was made. The learned trial Judge has, however,
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not accepted the evidence of these witnesses on the
ground that he did not specify the amount that was
demanded and that the requirement of amount for repayment
of loan and that he being a friend of complainant
Baliram, he must have deposed to favour him. In our
opinion, the reason is perverse. It is true that he
exaggerated by saying that the amount was demanded for
repayment of loan amount but then fact remains that the
amount was demanded for hospital, which was in rented
premises and that Baliram requested not to illtreat his
daughter is consistent and is not an improvement. As to
what amount was demanded or an amount was not quantified
is the reason recorded by the learned trial Judge in
respect of all the witnesses with which we do not agree.
The reason is that the demand was for having own hospital
and, therefore, the question of quantifying the amount at
that stage did not arise. Demand for money from PW18
Baliram for construction of hospital cannot be said to be
vague or of general nature. It would be too harsh to
reject the evidence of these witnesses on such a flimsy
ground.
Cr.Appeal 620/15 with Cr.Appeal 726/15
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23] The next witness is PW16 Laxman Usturge. He
stated thus in paragraph nos.1 to 3 of his evidence as
under:
"1. I know Baliram Palapure of my village. His
daughter Suchita was married with Dr.Nitin Patil.
Since then she was residing at Aurangabad with
her husband. The family members of Suchita were
demanding amount to Suchita for construction of
hospital. On that count they were giving her
mental and physical torture. When Suchita had
been to the village, at that time she was
narrating her illtreatment to me.
2. I know Dr.Nitin Patil. He is present
before the court. At once I myself, Baliram
Palapure and Manmat Palapure had been to village
Rokdasavargaon to convince the family members of
Suchita as Suchita had more illtreatment from the
accused. We went to the house of accused at the
time of Dipawali of 2009. When we went there the
in-laws and brother-in-laws namely Jitendra and
Kailas were at the house. We convinced accused
Nos.2 to 5 not to illtreat Suchita and treat her
nicely. At that time accused told that the
hosp0ital of Dr.Nitin Patil is in rented
premises, they should help Nitin Patil to
construct his hos0pital as Nitin Patil is already
indebted. Manmat Palapure at that time told them
that he will ask Baliram Palapure to pay amount
to them and treat Suchita nicely. I learnt that
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Baliram Palapure paid amount time to time for
construction of hospital to Dr.Nitin Patil. On
3.5.2010 I learnt that Suchita is burn and
succumbed to burn injuries on 10.5.2010.
3. On 30.8.2010 accused Jitendra and Kailas
had been to my house and threatened me not to
depose against them or face the consequences. To
that effect I lodged report to Chakur Police
Station on 31.8.2010. The office copy of
application produced by the witness is taken on
record and marked Exh.176."
His evidence has been rejected by the learned trial
Judge on the ground that he is not corroborated by PW14
Manmath Patil. As rightly contended by the learned
counsel for the appellants, the learned trial Judge has
made confusion in this. The reason is that PW14 Manmath
Patil had gone with PW18 Baliram in Dipawali of 2007
while PW16 Laxman Usturge had gone with Baliram in
Dipawali of 2009. Hence, the question of PW14 Manmath
Patil corroborating PW16 Laxman does not arise. This is,
therefore, a clear perversity. That apart, his evidence
is recorded because the particulars of the amount
demanded has not been stated or that the particulars
about illtreatment were not given, which was told to him
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by Suchita. What particulars are expected by the learned
trial Judge about illtreatment of Suchita when his
evidence is that they were giving her mental and physical
torture and she was narrating illtreatment to him. As it
is, the testimony of PW16 Laxman Usturge has not been
shaken in the cross-examination and he is not related to
PW18 Baliram but he is an independent witness. There was
no reason to reject his evidence.
24] The next witness is PW15 Chandrashekhar Desai.
He is the brother of mother of deceased Suchita and
accused no.2 - Baburao is the cousin brother of his
mother. He deposed thus in paragraph no.2 of his
evidence as under:
"2. Their marital life was happy for first 5 to
6 months. Thereafter Dr.Nitin Patil, her in-
laws, and brother-in-laws Jitendra and Kailash @
Kuldeep asked Suchita to bring money from her
parents for purchasing plot for hospital. On
that count they started giving her illtreatment
by giving abuses and assaulting her. Baliram
Palapure had given one plot to the accused. Her
mother-in-law Shardabai used to tell Suchita that
she could not prepare food well, she is not
behaving properly, she is of black complexion and
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dwarf and if they would have married with another
girl, it would have been better and on that count
they were giving her insulting treatment.
Suchita was well educated and she felt that on
one or the other day the nature of the accused
will change and, therefore, she tolerated the
illtreatment. Since the illtreatment was
increased Baliram and Manmath Patil had been to
the accused and convinced them not to illtreat
Suchita. I know accused Nos.1 to 5. Since prior
to the marriage of my sister with Baliram,
accused are from my relatives and, therefore, I
know them. Accused No.2 Baburao is cousin
brother of my mother."
His evidence has been rejected by the learned trial
Judge stating that he made a general statement about
demand of money and about illtreatment and that
information by Suchita to him about demand of money is a
material omission and, therefore, his evidence does not
inspire confidence. We find that this witness is her
real Mama (maternal uncle) and he deposed that Suchita
had told him that her husband and in-laws were demanding
money to her and on that count, they were giving
illtreatment to her. The trial Court says that these are
the general statements and material omissions. We do not
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think that this could be material omission in the light
of his visits and his relationship with the accused nos.1
to 5 and Suchita and grievance made to him by Suchita is
not unnatural. That apart, what we find at the end of
paragraph no.2 that all the accused nos.1 to 5 are
closely related to him. In that, the accused no.2 -
Baburao - the father of accused no.1, is cousin brother
of his mother. He thus is closely related to accused
persons also and no enmity is alleged against him by the
accused persons. He has honestly deposed in his evidence
about the illtreatment given to the deceased Suchita by
the accused persons namely the accused no.1, accused no.2
- his father Baburao and accused no.3 Sou.Shardabai - his
mother. The cryptic reasons with which this evidence is
rejected does not at all satisfy us and the reasons are
obviously perverse. This is the sum and substance of the
oral evidence tendered before the Court. We have no
hesitation in accepting the evidence of all these
witnesses.
25] The above oral substantive evidence has been
strongly corroborated by the evidence about the payments
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made by PW18 Baliram to the accused no.1 through bank
transactions. Though Baliram had claimed that in all he
had paid Rs.70,00,000/-, we have found that the entire
amount of Rs.98,00,000/- for purchase of plot appears to
have been paid by PW18 Baliram. We find that some
payments were made as under by negotiable instruments and
not by cash from the accounts of other daughters of PW18
Baliram namely Pooja and Jayashri and his friend Mr.V.S.
Kale as under:
[I]
_________________________________________________________
Date Amount Account holder's name
9.6.2008 Rs.10,00,000/- Pooja d/o Baliram
17.7.2008 Rs.4,00,000/- Jayashri d/o Baliram
18.7.2008 Rs.3,00,000/- Jayashri d/o Baliram
21.5.2009 Rs.5,00,000/- V.S. Kale
16.6.2009 Rs.5,00,000/- V.S. Kale
______________
Total: Rs.27,00,000/-
Note: In addition, he claims to have paid cash
Rs.8,00,000/- to accused no.1.
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[II]
In the saledeed, there is a mention about the
payment of money by two Demand Drafts in the sum of
Rs.21,00,000/- plus Rs.12,00,000/- i.e. Rs.33,00,000/-,
thus totaling to Rs.60,00,000/-.
At any rate, the payment of amount of Rs.27,00,000/-
as indicated above is not in dispute. The learned
counsel for the respondents submitted that since the plot
was purchased on half share basis, the contribution by
Suhas s/o PW18 Baliram was only to the extent of half
while rest of the half was obviously paid by accused
no.1. Looked from that point of view, the amount shown
by Demand Drafts in the saledeed namely Rs.21,00,000/-
and Rs.12,00,000/- even if assumed to the credit of
accused no.1, the accused no.1 is clearly expected to
show minimal evidence of the payment of half share of
total consideration of Rs.98,00,000/-. To a repeated
query to the learned counsel for the respondents as to
minimal evidence about payment of money towards the
purchase of the plot, the answer was given that there was
absolutely no evidence given by the defence either
payment by way of cash or by banking instruments. The
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learned counsel also could not show even before us any
bank statements or any other oral evidence that any
amounts were paid in cash nor the cash income or cash at
hand was even suggested to any witness. On the contrary,
no income is seen to his credit. We are, therefore,
compelled to draw a conclusion that the respondent nos.1
to 3 or the respondent no.1 for that matter did not have
a single pie at their hand to claim to have contributed
for purchase of half share in the plot purchased having
an area of 14,000 Sq.Ft. That means the accused Nos.1 to
3 had no bank balance. There is no semblance of evidence
to that effect. In our opinion, the prosecution having
discharged its burden of showing the payment by banking
instruments, the burden of proof obviously shifted on the
accused to show that contribution of money was made by
the accused persons for purchase of the plot. In such a
situation, it is clear that the prosecution has firmly
proved payment of moneys by PW18 Baliram as aforesaid to
the accused no.1 Dr.Nitin Patil. The natural question is
as to why PW18Baliram would pay such a huge amount to the
accused no.1 Dr.NItin Patil. There is no suggestion in
the form of explanation by the accused on this aspect.
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There is no explanation from the accused on this aspect
that out of any love and affection for Suchita or for
Dr.Nitin Patil, all these huge moneys were paid. There is
no suggestion that these huge moneys were paid towards
the share of Suchita in the property of PW18 Baliram or
as the case may be. On the contrary, Suchita's
impression and expression that the accused no.1 -
Dr.Nitin Patil married her looking at her father's
treasury of money he being in Irrigation Department of
the State is fortified.
26] In the case of Sher Singh @ Partapa v. State of
Haryana [ (2015) 3 SCC 724 ], as to the ingredients of
Section 304-B and shifting of burden of proof, the
Supreme Court stated thus in paragraph no.16 as under:-
"16. As is already noted above, Section 113B of
the Evidence Act and Section 304B of the IPC were
introduced into their respective statutes
simultaneously and, therefore, it must ordinarily
be assumed that Parliament intentionally used the
word 'deemed' in Section 304B to distinguish this
provision from the others. In actuality, however,
it is well nigh impossible to give a sensible and
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legally acceptable meaning to these provisions,
unless the word 'shown' is used as synonymous to
'prove' and the word 'presume' as freely
interchangeable with the word 'deemed'. In the
realm of civil and fiscal law, it is not
difficult to import the ordinary meaning of the
word 'deem' to denote a set of circumstances
which call to be construed contrary to what they
actually are. In criminal legislation, however,
it is unpalatable to adopt this approach by rote.
We have the high authority of the Constitution
Bench of this Court both in State of Travancore-
Cochin v. Shanmugha Vilas Cashewnut Factory AIR
1953 SC 333 and State of Tamil Nadu v. Arooran
Sugars Limited (1997) 1 SCC 326, requiring the
Court to ascertain the purpose behind the
statutory fiction brought about by the use of the
word 'deemed' so as to give full effect to the
legislation and carry it to its logical
conclusion. We may add that it is generally
posited that there are rebuttable as well as
irrebuttable presumptions, the latter oftentimes
assuming an artificiality as actuality by means
of a deeming provision. It is abhorrent to
criminal jurisprudence to adjudicate a person
guilty of an offence even though he had neither
intention to commit it nor active participation
in its commission. It is after deep cogitation
that we consider it imperative to construe the
word 'shown' in Section 304B of the IPC as to, in
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fact, connote 'prove'. In other words, it is for
the prosecution to prove that a 'dowry death' has
occurred, namely,
(i) that the death of a woman has been
caused in abnormal circumstances by her
having been burned or having been bodily
injured,
(ii) within seven years of a marriage,
(iii) and that she was subjected to cruelty
or harassment by her husband or any relative
of her husband,
(iv) in connection with any demand for dowry
and
(v) that the cruelty or harassment meted out
to her continued to have a causal connection
or a live link with the demand of dowry.
We are aware that the word 'soon' finds place in
Section 304B; but we would prefer to interpret
its use not in terms of days or months or years,
but as necessarily indicating that the demand
for dowry should not be stale or an aberration
of the past, but should be the continuing cause
for the death under Section 304B or the suicide
under Section 306 of the IPC. Once the presence
of these concomitants are established or shown
or proved by the prosecution, even by
preponderance of possibility, the initial
presumption of innocence is replaced by an
assumption of guilt of the accused, thereupon
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transferring the heavy burden of proof upon him
and requiring him to produce evidence dislodging
his guilt, beyond reasonable doubt. It seems to
us that what Parliament intended by using the
word 'deemed' was that only preponderance of
evidence would be insufficient to discharge the
husband or his family members of their guilt.
This interpretation provides the accused a
chance of proving their innocence. This is also
the postulation of Section 101 of the Evidence
Act. The purpose of Section 113B of the Evidence
Act and Section 304B of the IPC, in our opinion,
is to counter what is commonly encountered - the
lack or the absence of evidence in the case of
suicide or death of a woman within seven years
of marriage. If the word "shown" has to be given
its ordinary meaning then it would only require
the prosecution to merely present its evidence
in Court, not necessarily through oral
deposition, and thereupon make the accused lead
detailed evidence to be followed by that of the
prosecution. This procedure is unknown to Common
Law systems, and beyond the contemplation of the
Cr.P.C."
The learned counsel for the respondents having
admitted to have received only Rs.27,00,000/- propagated
the theory of receipt thereof towards development
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charges. That is the only explanation given by the
accused. We are unable to understand how an amount of
Rs.27,00,000/- was required to make payment of
development charges for a plot worth Rs.98,00,000/-.
Further, the question of payment of development charges
would arise only if the agricultural land is converted
into non-agricultural use and thereafter the development
of the plot by construction of hospital is undertaken.
We, therefore, find that explanation is false and cannot
be accepted.
27] The dying declaration (Exh.221) was recorded on
2.5.2010 at 5-00 p.m. by PW19 K.K.Shinde. But then he
kept the said document with him without submitting the
same to the Station Officer or without registering the
offences though the same were disclosed. The submission
that this dying declaration (Exh.221) is a manipulated
document in collusion with PW18 Baliram will have to be
examined carefully. What we find is that after recording
of this dying declaration, PW19 K.K. Shinde gave a
requisition (Exh.119) to PW5 Dhulaji, the Executive
Magistrate, to record dying declaration again for which
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he gave the reasons in Exhibit 119 as to what was stated
to him by the deceased. This requisition was received by
PW5 Dhulaji about which there is endorsement at Exhibit
119 with time and date. This is not in dispute. We are,
therefore, of the clear opinion that the dying
declaration (Exh.221) was written at 5-00 p.m. on
2.5.2010 itself and not thereafter. However, it is a
fact that PW19 K.K. Shinde did not submit this dying
declaration (Exh.221) to his Station Officer nor he
himself registered any offence on the basis thereof, but
kept it with him till the offence was registered on
10.5.2010 for which he does not have any satisfactory
explanation. We have already made an order on 19 th
October, 2015, asking the Home Department to make
departmental inquiry against him. But then the question
is whether for the fault of Investigating Officer, the
prosecution should suffer. There is a catena of
decisions that the prosecution should not suffer in such
a case. Having thus proved that the dying declaration
(Exh.221) was recorded on 2.5.2010 itself and was not
manipulated or brought on record thereafter, we think
that Exhibit 221 is not a manipulated document. Reading
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of Exhibit 221, to our mind, clearly shows the
description about the repeated illtreatment by the
accused nos.1,2 and 3, demand of money etc. The next
objection to this dying declaration is that the same does
not show that it was read over and admitted to be correct
by the deceased, for which certain decisions of this
Court were cited. On the contrary, at the end of Exhibit
221, following is the portion written before her toe
impression:
"This my statement is read over to me and the
same has been written as per my say and is
correct and true."
Apart from that, this Court has made a reference order
(Per A.B. Chaudhari, J.) since the requirement of reading
over the dying declaration and then getting the same
admitted from the declarant is never stated anywhere much
less in the judgment of the Supreme Court in the case of
Shaikh Bakshu Vs. State of Maharashtra [(2008) 1 SCC
(Cri.) 679], which was relied upon by the Division Bench.
We, therefore, find that if the evidence of PW19
K.K.Shinde is to be believed about recording of dying
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declaration or that whatever he recorded was as per the
say of deceased Suchita, there is no other reason why her
dying declaration should be rejected on such a hyper
technical ground that the same was not read over and
admitted by her to be correct. The next objection to
this dying declaration is that it was written by the
Writer of Shri K.K. Shinde, who was not examined. The
evidence of PW19 K.K. Shinde shows that he asked the
information from the declarant Suchita and she gave the
answers or information to him which he accordingly
dictated to the Writer who wrote it down accordingly and
finally he obtained her thumb impression and he also
signed has not been shattered in the cross-examination.
In other words, it is PW19 K.K.Shinde who has personal
knowledge as to what declaration was given by deceased
Suchita to him and as per his dictation, the Writer wrote
the dying declaration, which he signed. It is not the
case of the defence that the Writer wrote something than
what was dictated by K.K.Shinde. We, therefore, do not
agree with the learned counsel for the respondents that
non-examination of Writer would be fatal to the
prosecution as regards Exhibit 221. Now reading of
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Exhibit 221 in our opinion is a very strong piece of
evidence about the illtreatment meted out to her over the
demand of money and that fully corroborates the oral
evidence of all the witnesses which we have discussed
above.
This dying declaration (Exh.221) which we have
believed is a very strong piece of evidence against the
accused no.1 - Dr.Nitin Patil, the accused no.2 - Baburao
and the accused no.3 - Sharda. We quote following
portion from paragraph no.2 of Exhibit 221 as under:
"After my marriage and after I was treated well
for six months, my husband, father-in-law,
mother-in-law started harassing me by saying that
I was not good. You bring money from your
parents for having a hospital for us and on that
count my husband Nitin used to assault me and
hurl abuses at me and were demanding money. My
father-in-law and mother-in-law used to say that
my father had plenty of money and, therefore,
should bring money from him for hospital.
Otherwise I should be driven out and thus they
were instigating. Similarly, my other two
brothers-in-law used to instigate. I was fully
fed up with the harassment meted out to me. On
1.5.2010 I made a phone call to my father and
informed him about the harassment and
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illtreatment to me. On 1.5.2010 at about 21-45
hours I at my residence N-9, CIDCO, poured petrol
on my person due to the harassment and set myself
on fire because it became difficult to bear the
illtreatment."
28] The next submission made by the learned counsel
for the respondents is that the last declaration
(Exhibit 120) which was recorded at 8-30 p.m. by PW5
Dhulaji, the Executive Magistrate, after receipt of
requisition (Exh.119) again does not speak of
illtreatment and, therefore, it can be presumed that
there was no iltreatment for demand of money. We have
seen Exhibit 120 carefully. We find the same to be in
question and answer form. PW5 Dhulaji does not claim to
have asked the questions to her about illtreatment or
demand of money and, therefore, the question of answering
the same such information not being asked to her would
not arise.
29] As against Exhibit 221 where she was asked to
state what she wanted to declare and she went on stating
about the demand of moneys and illtreatment etc., which
was duly recorded by the Writer as per the dictation
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about which PW19 K.K.Shinde was told by her. We,
therefore, do not think that Exhibit 120 can be utilized
by the defence to buttress the point that it did not
reflect any illtreatment for demand of money. As a
sequel, we reject the said submission.
30] As to the delay in recording the First
Information Report, at the outset we find that PW19 K.K.
Shinde recorded her dying declaration only after PW18
Baliram made a complaint to the Police Station expressing
doubt about recording of earlier dying declaration and,
therefore, PW19 K.K. Shinde, the Police Officer who was
deputed in response to his complaint, having recorded the
dying declaration, there was no reason for PW18 Baliram
to lodge the report on the same day and it was for PW19
K.K. Shinde to register the FIR. We do not think,
therefore, that PW19 K.K. Shinde having failed to
register the FIR, the prosecution should suffer due to
delay in registration of the offence. At any rate, PW18
Baliram has explained that he went under shock due to the
incident and, therefore, it is only after the funeral, he
lodged the report immediately, which explanation is good
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enough.
31] We have then seen spiral diary (Exh.131) and
examined the defence submission about commission of
suicide by her in utter anger due to the false charge of
theft on her as understood by her. We quote the true
translation of the contents of her diary of 13.4.2010
i.e. 18 days before the incident, which reads thus:
"After my death, keep my Parth with my mother and
father till they are alive. Thereafter, when he
will grow and will become major, then Nitin will
look after him. If any wrong is done with him or
with me, persons from my in-laws will only be
guilty. (Persons from in-laws instigate and
Nitin tries to finish me). Out of them, my
mother-in-law is most cruel. My mother-in-law
instigates Nitin and my marital life is
controlled by Mummy and Anna. Otherwise, Nitin
behaved with me very good in the first year.
This is not liked by them and specially my
mother-in-law. My marital life is destroyed by
her. Anna / Mummy / Daddy. If anything wrong
happens to me, then nobody from in-laws side
shall give me either milk or water."
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The above contents of the diary (Exh.131)
(translated) hardly disputed by the defence are in the
nature of complete answer to the defence. The above
contents show that she had made up her mind to commit
suicide on 13.4.2010 but continued to live till she got
burnt. The theory of commission of suicide due to
uncontrolled anger suddenly due to the charge of theft in
the morning of 1.5.2010 is, therefore, clearly
demolished.
32] That apart, even on this theory of defence, we
find that she had calmed down as she had come back to the
house at 9-00 p.m. after having gone out at about 7-00
p.m. though without informing. PW17 Narsing says that he
was at her house from 7-00 p.m. When she returned at 9-00
p.m., he found that she had calmed down; had taken her
child in her arms and started hugging the child. It is
only thereafter he left her house at 9-30 p.m. It is
thus clear to us that she did not commit suicide because
of the anger on 1.5.2010 over the charge of alleged
theft, but she was being continuously illtreated by the
accused no.1 - Dr.Nitin, his father the accused no.2 and
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his mother the accused no.3 over the demand of money for
construction of hospital for the accused no.1 Dr.Nitin
Patil. She was taunted and was given names by them and
was physically and mentally tortured by them. It is in
the light of the above evidence now, we think that
presumption u/s 113-B of the Indian Evidence Act would
arise as her death occurred within seven years of her
marriage. The accused are entitled to rebut the said
presumption but then as discussed by us above, the
accused have not brought evidence in rebuttal, but
propagated the theory of anger of that day, which we have
discarded and rejected. The writing in the diary of
13.4.2010 is a contemporaneous writing 18 days before the
commission of alleged suicide. The said writing is
depiction of the entire case of the prosecution and the
said writing is not seriously disputed by the defence and
on the contrary the prayer of the defence as is clear
from the judgment of the trial Court was that the entire
diary should be read in evidence.
33] As to the evidence of defence witnesses, we find
that the same is mostly on the theory of anger for the
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alleged charge of theft of Rs.2500/-. There is no
rebuttal evidence by the defence about the evidence of
illtreatment, cruelty, demand of money for construction
of hospital and, therefore, according to us, the evidence
tendered by the defence does not help the defence on that
score by way of rebuttal. The defence witnesses
obviously could not depose about the same because they
were not having any knowledge about the illtreatment,
demand of money etc. and, therefore, we do not think that
the evidence of defence witnesses is of any relevance in
the context of the evidence of the dowry death.
34] The next submission made by the learned counsel
for the respondents is that the diary did not mention
about the illtreatment will have to be rejected. In our
opinion, the diary contains the description about the
incidents which clearly reflect her disapproval to the
conduct of the respondents treating her with mental and
physical cruelty by assaulting her also so much so that
once her cheek had swollen red because of the assault
made by the accused no.1 Dr.Nitin Patil. We think that
there is no direct mention in the diary about demand of
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money for hospital because she could not take the risk of
writing those things as she would have suffered serious
assault had the diary been seen by the accused persons.
We, therefore, do not attach any importance to the said
submission.
The learned counsel for the rival sides have cited
several decisions before us, but we need not cite them to
burden this judgment as the law is well settled.
35] The next question is who is guilty of the
offences for which they are charged. In the first place,
we take the case of the accused no.6 - Dr.Sunil Dhanraj
Patil. We must say that there is no satisfactory evidence
on record to hold him guilty of any of the offences and
particularly u/s 195-A of the Indian Penal Code. We,
therefore, must confirm his acquittal by the learned
trial Judge and we accordingly do so.
36] Then there are other accused namely the brothers
of the accused no.1 i.e. the accused no.4 - Jitendra s/o
Baburao Patil and the accused no.5 - Kailash @ Pundlik
s/o Baburao Patil. Upon perusal of the entire evidence
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and the discussion above, we find no credible evidence
against these two brothers of the accused no.1 Dr.Nitin
Patil and, therefore, we must also confirm the acquittal
of the accused no.4 - Jitendra s/o Baburao Patil and the
accused no.5 - Kailash @ Pundlik s/o Baburao Patil. As a
sequitur, we dismiss both the appeals against them.
37] The last question is about the accused no.1
Dr.Nitin Baburao Patil, accused no.2 Baburao Shankarrao
Patil and accused no.3 Sou.Sharda @ Anupama w/o Baburao
Patil. The evidence discussed by us above clearly points
out that the accused no.1 Dr.NItin Patil had a leading
role in making the demand of money, assaulting and
treating his wife cruelly and giving her illtreatment.
His father - accused no.2 Baburao Patil and his mother
Sharda @ Anupama also had equal role in illtreating
Suchita mentally if not physically for making demand of
money for construction of hospital for their son i.e. the
accused no.1 Dr.Nitin Patil. They were instigating the
accused no.1 - Dr.Nitin to illtreat her. But then they
being the senior citizens and responsible elderly persons
were not expected to torture her or cause to torture her
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for their demand for money for construction of hospital
for their doctor son as if the accused no.1 was made
doctor by them for earning dowry. If they refused to
understand the concept of institution of marriage, the
accused no.1 - Dr.Nitin ought to have revolted against
dowry demand, but he had an ugly desire to have his
hospital building by way of dowry. We, therefore, hold
the accused nos.1 to 3 i.e. Dr.Nitin Baburao Patil,
Baburao Shankarrao Patil and Sharda @ Anupama Babaurao
Patil guilty of the offences punishable u/ss.304-B, 498-A
r/w 34 of the Indian Penal Code. We, however, acquit
them of the charge u/s 323, 504, 506, 306, 201 and 202 of
the Indian Penal Code.
38] Having thus held the accused no.1 - Dr.Nitin
Baburao Patil, the accused no.2 - Baburao Shankarrao
Patil and the accused no.3 Sharda @ Anupama Baburao Patil
guilty of the offences punishable u/ss.304-B and 498-A
r/w 34 of the Indian Penal Code, they will have to be
heard on the question of sentence. We, therefore,
postpone the hearing of these appeals on the point of
sentence.
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39] We have heard the learned counsel for the rival
parties on the question of award of sentence.
40] Learned counsel for the appellant - Baliram
Gurling Palapure and the learned APP strenuously
contended that the deceased Suchita was also a Dentist
and the accused no.1 - Nitin Patil is M.D. Thus, the
highly educated accused no.1 was living in the town of
Aurangabad and, therefore, the minimum civilization was
expected from all the accused. They submitted that the
accused nos.2 and 3 being elderly persons should have
behaved responsibly, but they did not do so and,
therefore, the highest sentence contemplated by Section
304-B of the Indian Penal Code namely the life
imprisonment and three years rigorous imprisonment u/s
498-A of the Indian Penal Code should be awarded.
41] Per contra, Shri N.S. Ghanekar, learned counsel
for the convicted accused persons namely the accused
nos.1, 2 and 3 submitted that the prosecution did not
prove that the alleged illtreatment or harassment was for
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a continuous period of five years and, therefore, no
inference of any harshness can be drawn. He further
submitted that the accused no.1 - Dr.Nitin Patil was
equally loving his wife the deceased Suchita, which is
evident from the tour programmes, photographs etc. and,
therefore, that he was taking her care is explicit. He
then submitted that the accused nos.2 and 3 are suffering
from old age ailments and till they were acquitted by the
trial Court, they were deprived of the custody of their
grand-son Parth and it is only after the order of
acquittal was passed, the visitation rights were given to
them. He, therefore, prayed that the minimum sentence
could be the solution in the present matter.
42] Upon hearing the learned counsel for the rival
parties on the question of sentence, we find that the
convicted accused persons i.e. accused nos.1 to 3 have
not behaved in terms of the required responsibility, but
had an oblique motive to satisfy their greed for the
accused no.1's hospital being constructed by his father-
in-law. That is not the spirit of the institution of
marriage in this country, but of late, there has been
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repeated incidents of the said type. Even then, we find
that the period of about 10 years have already passed and
further the respondent nos.2 and 3 being on the eve of
growing older age and the period of seven years rigorous
imprisonment for them should serve the deterrence to the
society in general and the accused nos.1 to 3 in
particular. We, therefore, hold that the minimum
sentence provided by Section 304-B of the Indian Penal
Code of seven years rigorous imprisonment with fine and
rigorous imprisonment of two years for the offence
punishable u/s 498-A of the Indian Penal with fine should
subserve the interest of justice. In that view of the
matter, we proceed to make the following order.
ORDER
a] Criminal Appeal No.620/2015 and Criminal
Appeal No.726/2015 both are partly allowed.
b] Criminal Appeal No.620/2015 is dismissed
against the respondent no.5 - Jitendra s/o
Baburao Patil, the respondent no.6 - Kailash @
Pundlik s/o Baburao Patil and the respondent no.7
- Sunil s/o Dhanraj Patil.
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c] Criminal Appeal No.726/2015 is dismissed
against the respondent no.4 - Jitendra s/o
Baburao Patil, the respondent no.5 - Kailas @
Kuldip s/o Baburao Patil and the respondent no.6
- Sunil s/o Dhanraj Patil.
d] The judgment and order dated 1.6.2015
passed by the learned 4th Additional Sessions
Judge, Aurangabad, in Sessions Case No.388/2010
acquitting the accused no.1 - Dr.Nitin s/o
Baburao Patil, the accused no.2 - Baburao s/o
Shankarrao Patil and the accused no.3 - Sharda @
Anupama Baburao Patil, is set aside, and instead,
the accused no.1 - Dr.Nitin s/o Baburao Patil,
the accused no.2 - Baburao s/o Shankarrao Patil
and the accused no.3 - Sharda @ Anupama Baburao
Patil are convicted for the offence punishable
u/s 304-B r/w 34 of the Indian Penal Code and
they are sentenced to undergo rigorous
imprisonment for seven years with fine in the sum
of Rs.10,000/- each, in default to suffer further
rigorous imprisonment for six months.
e] The accused no.1 - Dr.Nitin s/o Baburao
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Patil, the accused no.2 - Baburao s/o Shankarrao
Patil and the accused no.3 - Sharda @ Anupama
Baburao Patil are further convicted for the
offence punishable u/s 498-A r/w 34 of the Indian
Penal Code and they are sentenced to undergo
rigorous imprisonment for two years with fine in
the sum of Rs.5,000/- each, in default to suffer
further rigorous imprisonment for three months.
f] The sentences against the accused nos.1 to
3 shall run concurrently.
g] The convicted accused nos.1 to 3 shall be
taken into custody forthwith.
h] The accused nos.1 to 3 shall be given
benefit of set-off u/s 428 of the Code of
Criminal Procedure, 1973.
i] The Registry shall supply the copies of the
judgment to the convicted accused nos.1 to 3 on
or before 3-00 p.m. today itself.
(I.K. JAIN, J.) (A.B. CHAUDHARI, J.)
Cr.Appeal 620/15 with Cr.Appeal 726/15
- 76 -
At this stage, Shri N.S. Ghanekar, learned counsel
for the respondents - accused prays for suspending the
sentence awarded against the accused nos.1 to 3 in order
to approach the higher Court.
The prayer for suspension of sentence is rejected.
(I.K. JAIN, J.) (A.B. CHAUDHARI, J.)
ndk/crappeal620151.doc
