Bombay High Court
State Of Maha vs Rajendra Lokhande & Anr on 16 June, 2016
Bench: A.I.S. Cheema
cria787.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.787 OF 2003
The State of Maharashtra,
Through -
Sunita w/o. Rajendra Lokhande,
Age-20 years, Occu:Household,
R/o-Saramkundi, Tq-Bhoom,
Dist-Osmanabad.
...APPELLANT
(Orig. Complainant)
VERSUS
1) Rajendra Vishnu Lokhande,
Age-25 Years,
2) Prayagabai w/o. Vishnu Lokhande,
Age-65 years,
Occu: of both accused is Agri.
and both are R/o-Saramkundi,
Tq-Washi, Dist-Osmanabad.
...RESPONDENTS
(Orig. Accused)
...
Shri. R.V. Dhasalkar, A.P.P. for Appellant.
Shri. B.R. Jaybhay, Advocate for Respondent
Nos.1 and 2.
...
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CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 8TH JUNE,2016.
DATE OF PRONOUNCING JUDGMENT: 16TH JUNE, 2016.
JUDGMENT :
1. State has filed this Appeal against
Respondents - Accused (hereafter referred as
"Accused") against their acquittal under Section
498-A, 306 read with Section 34 of the Indian
Penal Code, 1860 ("I.P.C." in brief) in Sessions
Case No. 123 of 1998 passed by Ad-hoc Additional
Sessions Case, Osmanabad on 20th August, 2003.
2. The prosecution case, in short, is as
follows :-
(A) On 17th April, 1996 P.S.I. Audumbar
Khedkar (PW-12) was working at Washi Police
Station. Village Saramkundi, Tq-Bhoom was under
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his jurisdiction. The P.S.I. received letter from
Medical Officer, Rural Hospital, Washi regarding
Sunita, wife of Accused No. 1 - Rajendra Vishnu
Lokhande being admitted in the Hospital at 5.00
p.m. in burnt condition. The P.S.I. went to the
Hospital and recorded statement of Sunita
(hereafter referred as "Victim"). She blamed the
Respondents - Original Accused Nos. 1 and 2, her
husband and mother-in-law for having ill-treated
her and having beaten her leading to she pouring
kerosene on herself and burning herself. The
P.S.I. recorded statement in presence of Dr. Manju
Shelke (PW-3) and the statement Exhibit 73 was
converted into First Information Report (F.I.R.),
registering offence at Crime No. 19 of 1996 of the
Police Station. The P.S.I. went and recorded the
Spot Panchanama (Exhibit 41). The spot was the
residential house of the accused persons. Certain
articles like burnt clothes having smell of
kerosene, kerosene can etc. were seized from the
spot.
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(B) Looking to the condition of the Victim,
Rural Hospital, Washi referred her to Civil
Hospital at Osmanabad. At the Civil Hospital
A.S.I. Pandit Kavde (PW-1) received letter from
Medical Officer at about 1.20 a.m. on 18th April,
1996. He also went and in presence of Dr. Ashok
Kathare (PW-9) recorded the second dying
declaration (Exhibit 32) of the Victim between
2.00 - 2.15 a.m. This was followed by the Naib
Tahsildar Vithal Tidke (PW-11) reaching the
Hospital and recording the third dying declaration
(Exhibit 67). In all the three dying declarations
the Victim claimed that she was ill-treated and
beaten and so she had burnt herself after pouring
kerosene on herself.
(C) The Victim expired in the night between
18th - 19th April 1996. Her Inquest Panchanama
(Exhibit 43) was prepared at 6.00 - 6.30 a.m. of
19th April 1996. Postmortem (Exhibit 34) was done
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by Dr. Vikram Alangekar (PW-2). The Victim had
succumbed to the burn injuries. PW-12 P.S.I.
Audumbar Khedkar recorded statements of witnesses,
investigated into the offence and filed charge-
sheet.
(D) The Accused were charged with offence
under Sections 498-A and 306 read with 34 of
I.P.C. by the Additional Sessions Judge,
Osmanabad. The Accused pleaded not guilty. Their
defence is of denial. According to them, the
Victim was boiling water at the fire place for
giving bath to the small daughter. There was
wooden plank over the Sigdi (fire place). The
Victim tried to pick up jar of pickle from the
wooden plank, at which time accidentally can of
kerosene kept there fell down and there was a
blaze and Victim got accidental burns.
3. Prosecution brought on record evidence of
twelve witnesses. The trial Court considered the
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record and documentary evidence brought on record
and for reasons recorded, acquitted the accused
persons. Thus, this Appeal.
4. It has been argued by the learned A.P.P.
for State that in all the three dying declarations
the Victim blamed the accused persons for her act
of burning herself. The accused persons were ill-
treating the Victim and because of the ill-
treatment given by the accused persons and as the
Victim was beaten, she burnt herself. The Accused
No. 2 - Prayagabai is sister of father of Victim
and there was no reason for the Victim to falsely
implicate her aunt. According to the learned
A.P.P., the reasons recorded by the trial Court
are not justified and the trial Court has wrongly
acquitted the accused persons.
5. Against this, the learned counsel for
Respondents - Accused submitted that dying
declarations do not show that the Doctors
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certified mental fitness of the Victim to give the
statement. According to the counsel there was no
specific evidence regarding alleged ill-treatment.
According to the counsel the evidence of father of
Victim, namely, PW-10 Sadashiv Kamble shows that
Victim was mad and in the absence of evidence to
show that she was in fit mental condition to give
statement, reliance cannot be placed on the dying
declarations. The evidence regarding ill-treatment
does not disclose conduct which would make living
impossible for the Victim. According to the
learned counsel for Accused reasons recorded by
the trial Court are correct and proper and do not
required to be disturbed.
6. A brief reference needs to be made to the
concerned evidence. There is evidence of PW-5
Annapurna Kamble, the mother of the Victim.
Prosecution also examined PW-10 Sadashiv, the
father of the Victim. Yet another witness PW-4
Deorao Kale, who resides in neighbour-hood was
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examined. PW-4 Deorao turned hostile. I have gone
through the evidence of these witnesses regarding
the marriage which took place and subsequent
alleged ill-treatment. If the Judgment of the
trial Court is perused, the trial Court
comparatively analyzed the evidence of PW-5
Annapurna and her husband PW-10 Sadashiv to
highlight different versions. It was noted that
PW-5 Annapurna claimed that the Accused were given
two Tola gold and other articles in the marriage,
but PW-10 Sadashiv was silent in this regard. PW-5
Annapurna claimed that Accused No. 2 Prayagabai
would talk with husband PW-10 Sadashiv in
insulting manner, while the husband claimed that
he was not on talking terms with the Accused since
5-6 months after the marriage. PW-5 Annapurna had
deposed that she herself was not on talking terms
with the Accused. The trial Court discussed this
evidence to observe that the relationship between
PW-5 and PW-10 on one side and the accused persons
on the other side had got strained after the
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marriage took place. Trial Court further discussed
the evidence of these witnesses which shows that
although, PW-10 Sadashiv was denying that he had
taken loan from Accused No. 2 - Prayagabai and
when she demanded back the same there was quarrel,
there was evidence of PW-4 Deorao that Accused
No. 2 indeed was giving money to PW-10 Sadashiv.
Trial Court also considered that PW-5 Annapurna
preferred to claim that she does not know about
the financial condition of the accused persons,
but PW-10 Sadashiv accepted that Accused No.2 -
Prayagabai was having irrigated land and was
getting pension. PW-4 Deorao has deposed that
Accused No.1 Rajendra had 4 Acres of irrigated
land. Trial Court further considered the fact that
although there was evidence that the Victim was
being ill-treated, there was no effort made by the
parents of the Victim to pacify the situation. The
trial Court also further took note of the fact
that for long period before and after the delivery
of child, the Victim had been staying at the place
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of her parents.
7. In the cross-examination of PW-5
Annapurna, she admitted it to be true that the
Victim was short tempered. The evidence of PW-4
Deorao also shows that the Victim was short
tempered. The witness deposed that Victim used to
do acts which she was prevented. What the witness
has stated is that she would do what she was told
not to do. In the examination-in-chief of PW-10
Sadashiv, the father, itself he deposed that
Sunita was mad. The Marathi version of his
evidence shows that the word used by the witness
was "Wedsar" i.e. like mad. In the cross-
examination this father admitted that his
daughter, the Victim was whimsical and was hot
tempered.
8. The above discussion makes it clear that
the Victim was whimsical, hot tempered and person
who would do things which she was told not to do
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and was like a mad person. Now, keeping such
person in view, another aspect which needs to be
noted is that the Victim was hardly about 12 years
of age when she was married to Accused No. 1. The
evidence of PW-5 Annapurna in cross-examination
itself shows that she admitted that Sunita was 12
years old at the time of marriage. The opinion of
PW-4 Deorao, the person from neighbour-hood in the
cross-examination shows his impression that
Accused No.1 was about 16-17 years old at the time
marriage.
9. The dying declaration of the Victim given
to PW-12 P.S.I. Khedkar, Exhibit 73 states that
the Victim was married about three years before
the incident. In the dying declaration Exhibit 73,
Victim appears to have claimed her age to be 20
years and Inquest Panchanama Exhibit 43 also
mentioned her age to be 20 years. If the evidence
of the mother is kept in view, the Victim was got
married at the age of about 12, may be 13 years or
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so. In another three years the incident has taken
place. It is thus quite clear that the Victim was
of quite immature age when she was married of and
soon even had a baby girl. Her mental condition, I
have already referred to.
10. Now the evidence of such parents who
married of their minor daughter, needs to be
considered regarding the claim of the ill-
treatment. PW-5 Annapurna deposed that when Victim
was coming to their place, she was complaining
that she is being ill-treated and is not given
food and that the accused persons beat her. PW-10
the father, Sadashiv deposed that the Accused were
ill-treating the Victim and beat and abuse her.
The cause of alleged ill-treatment is not stated
by any of these witnesses.
11. The first dying declaration Exhibit 73
claimed that the accused persons were alleging
against Victim that she speaks too much with
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"Amkya barobar" (say - A or B); that why she does
not work properly. The dying declaration claimed
that for no reason she used to be scolded and
beaten and she was telling this when she was going
to her parents. She claimed that she was also not
given complete food. On the day of incident, (she
claimed that) she was told as to why she is
sitting feeding the child and both the Accused
abused and beat her. The dying declaration claimed
that because of such conduct, she burnt herself.
. In the second dying declaration Exhibit
32, the Victim claimed that for household work and
for work relating to field she was being troubled
and on the day of incident at home for no reasons
quarrel took place and her husband beat her by
kicks and blows. The word "Kathine" (i.e. by
stick) written, was scored out.
. The third dying declaration Exhibit 67
claimed that on 17th April, 1996 she had quarrel
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with both the Accused. It was stated that due to
household work Accused No.2 took up the matter and
the quarrel took place due to which Accused No.1
beat her by kicks and blows. In the same statement
it was mentioned that there was no question of
suspicion on her due to her behaviour but she was
troubled regarding her domestic work and because
of that she burnt herself.
12. The above discussion shows that there
were vague as well as different reasons given for
the alleged ill-treatment. The trial Court in Para
16 of its Judgment, considered the nature victim
had and then keeping in view the Rulings which
were cited before it, trial Court went on to
discuss the three dying declarations. It took note
of the fact that the victim was admitted in the
hospital at 5.00 p.m. and at the same time the
evidence of PW-5 Annapurna shows that parents had
reached the hospital. Parents were continuously
with the victim thereafter and the dying
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declarations recorded thereafter have been
suspected by the trial Court as it observed that
there was room to doubt that the victim was
tutored due to strained relations the parents had
with the accused persons. In Para 21 and 22 of the
Judgment, the trial Court considered the different
versions regarding the cause of ill-treatment in
the three dying declarations and observed that
there were infirmities in the dying declarations.
13. In none of the dying declarations, the
doctors mentioned that the victim was in a fit
mental condition to give her statement. What was
endorsed by the doctors was that the patient was
conscious. Being conscious is one thing and having
the stability of mind to make a statement and thus
be fit to make a statement is another thing. In
set of facts of present matter where victim
admittedly was a person who would behave like a
mad person, this was material. None of the
witnesses who recorded dying declarations, deposed
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that they had themselves talked to the victim to
verify if she was in fit mental condition to make
statement. Trial Court noticed these aspects and
thus did not rely on the dying declarations. It
was observed that the fact of fit state of mind of
Sunita remained unanswered and that it was fatal
to the prosecution. Trial Court also observed that
the parents of the victim were at the hospital at
the time when victim was admitted and possibility
of tutoring her could not be ruled out. Trial
Court found that the doctors had not brought case
papers showing as to what treatment was given to
the victim and there was evidence of PW-9 Ashok
Kathare regarding giving of pain killers to the
victim. As per the trial Court, the three dying
declarations were not trustworthy. The trial Court
further discussed the oral dying declarations
given to her parents and found it difficult to
accept the same. The trial Court further noticed
that looking to the considerable long period the
victim was residing to the place of her parents,
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it was difficult to hold that she was ill-treated
for not doing domestic work. In the opinion of the
trial Court, it could not be said that there was
such ill-treatment as would lead the victim to
commit suicide. It found that the ill-treatment
was not established.
14. I have myself gone through the whole
evidence which is on record and the findings
recorded by the trial Court as above. The trial
Court has given various reasons in support of its
findings and I find that the view taken by the
trial Court for the evidence, is possible view.
This is Appeal against acquittal and when the view
taken by the trial Court is possible view, it
would not be appropriate to interfere. In the
circumstances, benefit of doubt has rightly been
given to the accused persons by the trial Court
and I refrain from interfering with the acquittal.
15. There is no substance in the Appeal. The
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Appeal is dismissed. The bail bonds of the accused
persons shall be treated as cancelled.
[A.I.S. CHEEMA, J.]
asb/JUN16
