Govind S/O Dnyanoba Gitte And One ... vs The State Of Maharashtra
2017 Latest Caselaw 5194 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO.360 of 2002

1.     Govind s/o Dnyanoba Gitte,
       Age : 29 yrs, Occ. : Service,                 ..Appellant no.1
       R/o : Sane Guruji Niwas                       (Original accused
       Vidyalaya, Kaij.                              no.1)
                                                      
2.     Dnyanoba s/o Patloba Gitte,
       Age : 71 years,
       Occupation Agriculture,                       ..Appellant no.2
       R/o : Nandagaul,                              (Original accused
       Tq. Parali                                    no.5)

       VERSUS

       The State of Maharashtra
       Through Babu s/o Ranba Fad,
       Age : 55 years, Occupation
       Agriculture, R/o : Saundana,
       Taluka Ambajogai.                             ..   Respondent
                                                      (Original 
                                                       complainant)
                                ----
Ms.   Dr.   Supriya   L.   Pansambal,   Advocate   h/f   Mr.   V.D.
Gunale, Advocate for appellants 
Ms.R.P.Gaur, APP for respondent - State 
                                ----

                                        CORAM : SANGITRAO S. PATIL, J.

DATE : 28th JULY, 2017 ORAL JUDGMENT :

The Appellants (original accused Nos. 1 and 5)

have challenged their conviction and sentence for the

offences punishable under Sections 306 and 498-A read

with Section 34 of the Indian Penal Code ('I.P.C.', for

short) recorded by the learned I Ad-hoc Additional

Sessions Judge, Ambajogai, in Sessions Case No. 63 of

2000 on 28.06.2002.

2 907-CriA 360.2002

02. During pendency of the appeal, appellant No. 1,

who was husband of the deceased Rukminbai, expired.

Therefore, the appeal stood abated against him. The

appeal proceeded in respect of appellant No. 2 only who

was the original accused No. 5 and father-in-law of the

deceased Rukminbai.

03. The case of the prosecution, in short, is that

the deceased Rukminbai and the deceased appellant No. 1

got married in the month of May-1998. After the

marriage, she started residing with appellant No. 1 at

village Nandagaul. That original accused No. 2 was the

mother-in-law and original accused Nos. 3 and 4 were

sisters-in-law of the deceased Rukminbai. It is alleged

that the appellants as well as original accused Nos. 2

to 4 used to subject the deceased Rukminbai to cruelty

with a view to compel her to bring Rs. 50,000/- from her

maternal home, so as to unable appellant No. 1 to take

admission for D.Ed. Course.

04. It is alleged that the appellants took her to

her maternal home and demanded Rs. 50,000/- from her

father prior to 8 to 9 months of occurrence of the

3 907-CriA 360.2002

incident. They warned that in case, that amount was not

paid to them, they would leave the deceased Rukminbai

there only. At that time, a meeting was convened and

the appellants were persuaded to take back the deceased

Rukminbai with them on the assurance of paying some

amount after harvesting season was over. Accordingly,

the appellants took the deceased Rukminbai with them. It

is alleged that thereafter also, the deceased Rukminbai

was brought to her maternal home for about 3 to 4 times

with a view to compel her to bring Rs.50,000/-, but she

was being reached back to her matrimonial house anyhow

by persuading her in-laws.

05. On 11.01.2000, the deceased Rukminbai sustained

burns when she was at her matrimonial house. She was

admitted in the Government Hospital at Ambajogai. When

her parents met her, she informed that she was

illtreated by all the accused persons and told that if

the amount of Rs. 50,000/- had been paid, she could have

been saved. Rukminbai died in the Hospital on

29.01.2000. Thereafter, Kamalbai, the mother of the

deceased Rukminbai, lodged the report in Police Station,

Parali (Rural) on 24.02.2000.

4 907-CriA 360.2002

06. The investigation followed. The statements of

witnesses were recorded. The post-mortem report of the

deceased Rukminbai was obtained. The Medical Officer

opined that she died due to "Septicaemia due to burns".

After completion of the investigation, the appellants

and other three accused persons came to be prosecuted

for the above-mentioned offences.

07. The prosecution examined six witnesses to

establish the guilt of the appellants and the other

three accused persons for the above-mentioned offences.

The appellants and other accused persons examined Police

Head Constable Darade as a defence witness. After

considering the evidence on record, the learned trial

Judge found the appellants only guilty of the above-

mentioned offences and sentenced each of them to suffer

rigorous imprisonment for five years and to pay a fine

of Rs.5,000/-, in default, to suffer simple imprisonment

for six months in respect of the offence punishable

under Section 306 read with Section 34 of the I.P.C. and

further sentenced each of them to suffer rigorous

imprisonment for three years and to pay a fine of Rs.

5 907-CriA 360.2002

5,000/-, in default, to suffer simple imprisonment for

six months in respect of the offence punishable under

Section 498-A of the I.P.C. The substantive sentences

of imprisonment were ordered to run concurrently. The

appellants deposited the fine amount in the trial Court.

08. The learned trial Judge did not found original

accused Nos. 2 to 4 guilty of the above-mentioned

offences. He, therefore, acquitted them of the above-

mentioned offences. Their acquittal has not been

challenged and the judgment of the trial Court to the

extent of that acquittal has become final.

09. During pendency of the appeal, appellant No. 1

(original accused No.1) who was the husband of the

deceased Rukminbai expired. Therefore, the appeal stood

abated against him.

10. Kamalbai (PW 3)(Exh. 47) is the informant, who

lodged report Exh. 48 in Police Station, Parali (Rural)

on 24.02.2000. Babu (PW 1) (Exh. 45) is the father,

while Dattu (PW 4)(Exh. 52) is the maternal uncle of the

deceased Rukminbai. Govind (PW 2)(Exh. 46) and Sambhaji

(PW 5)(Exh. 53) are the village-mates of Babu (PW 1),

6 907-CriA 360.2002

who claimed that they were present when the appellants

had been to the house of the Babu (PW 1) for demanding

Rs. 50,000/-.

11. Even if it is accepted for a while, that the

appellants had been to the house of Babu (PW 1) with a

demand for money eight to nine months prior to the date

of the incident, the fact remains that the deceased

Rukminbai, thereafter, resided at her matrimonial house

and therefore, the said visit of the appellants to the

house of Babu (P.W.1) cannot be said to have direct

connection with the incident in question. It cannot be

said that there was any proximity in the demand of money

made by them at that time and the incident that took

place after about eight to nine months particularly when

in the meanwhile, the deceased Rukminbai resided at the

house of the appellants.

12. Babu (PW 1) and Kamalbai (PW 3) depose that

during the said period of eight to nine months, the

appellants and the other accused persons illtreated the

deceased Rukminbai for three to four times and drove her

away from the house. Accordingly the deceased Rukminbai

7 907-CriA 360.2002

visited their house. According to them, the deceased

Rukminbai visited their house, lastly prior to about

eight days of the incident. There is absolutely no

corroboration to the evidence of Babu (PW 1) and

Kamalbai (PW 3) in respect of the said illtreatment and

visits of the deceased Rukminbai to their house. Their

evidence in respect of the alleged illtreatment is very

vague and general. There were five accused persons

prosecuted on the basis of the report lodged by Kamalbai

(PW 3). There is nothing in the evidence of these

witnesses, as to which of the accused had illtreated the

deceased Rukminbai and in what manner. There is nothing

in the evidence to show that the deceased Rukminbai had

sustained any injuries, except burns, on any part of her

body to indicate that she was physically tortured prior

to sustaining burns. Such vague and general evidence

would not be sufficient to establish that the deceased

Rukminbai was subjected to cruelty under section 498-A

of the I.P.C.

13. It has come in the evidence of Babu (PW 1) and

Kamalbai (PW 3) that after receiving the message about

the admission of the deceased Rukminbai in the Hospital

8 907-CriA 360.2002

at Ambajogai, they went there and on being inquired by

them, she told them that all the accused illtreated her

on account of demand of money and therefore, she

committed suicide by setting herself on fire. Kamalbai

(PW 3) also states that the deceased Rukminbai told that

if the amount of Rs. 50,000/- had been paid, then she

could have been saved and further stated that all the

accused persons subjected her to cruelty. This evidence

is very vague and general. Therefore, the learned trial

Judge acquitted accused Nos. 2 to 4 of the above-

mentioned offences. However, on the basis of the same

evidence, he convicted the appellants, though, there was

no specific evidence to show that the appellants only,

subjected the deceased Rukminbai to cruelty.

14. It has come in the cross-examination of Babu

(PW 1) that when Kamalbai (PW 3) and himself visited the

hospital to see the deceased Rukminbai, the appellants

and the accused No. 2 were present in the Hospital and

they were providing medical aid to her. She states that

appellant No. 1 provided blood to the deceased

Rukminbai. Babu (PW1) states that since after visiting

the hospital on admission of the deceased Rukminbai till

9 907-CriA 360.2002

her death, that took place on 29.01.2000,Kamalbai (PW 3)

and himself were present in the Hospital. However,

neither Kamalbai (PW 3) nor Babu (PW 1) lodged report

against any of the accused for the alleged illtreatment

meted-out to the deceased Rukminbai.

15. The learned counsel for the appellants pointed

out to the fact that the First Information Report

(Exh.48) has been lodged on 24.02.2000 i.e. after about

one and half months from the date of the incident and

about three weeks after the death of the deceased

Rukminbai. There is absolutely no justifiable reason

given by Kamalbai (PW 3) for the delay in lodging the

F.I.R. (Exh.48). The delay in the circumstances of the

case creates a strong doubt about the case of the

prosecution.

16. Here, It would be necessary to refer to the

evidence of PHC Darade (DW 1) Exh. 62, who visited the

hospital on 11.01.2000 after receiving the information

about admission of the deceased Rukminbai in ward No. 14

of the Government Hospital at Ambajogai. He states that

he got it verified from the Medical officer about her

10 907-CriA 360.2002

fit state-of-mind to give statement. Accordingly, he

recorded her statement (Exh.56) as per her say. In the

statement, the deceased Rukminbai specifically mentioned

that on 10.01.2000 between 9.30 p.m. and 10.00 p.m.,

since there was no electricity, a kerosene lamp was

placed inside the house. The said kerosene lamp fell

down since it was dashed by a rat and due to that, she

sustained burns. She raised shouts whereon the

appellants and her mother-in-law extinguished the fire

and took her to the Hospital at Ambajogai. She

specifically mentioned that she has no grudge against

anybody. Her dying declaration was tried to be

suppressed by the prosecution for the simple reason that

it was no supporting the case of the prosecution.

However, the appellants got it proved by examining PHC

Darade, who had recorded the dying declaration. There

is nothing in the cross-examination of Darade (DW 1) to

show that he recorded the dying declaration of the

deceased Rukminbai at his own with a view to save the

accused persons. If this dying declaration is perused,

the case of prosecution that the deceased Rukminbai was

subjected to cruelty by the accused persons with a view

11 907-CriA 360.2002

to compel her to bring money from her maternal home and

because of the illtreatment meted-out to her she

committed suicide, would not stand to reason. In the

circumstances, the inordinate delay in lodging the

F.I.R., would indicate that it was an outcome of after

thought. The said F.I.R. cannot be used to corroborate

the version of Kamalbai (PW3). Had there been

illtreatment to the deceased Rukminbai prior to the

incident, Kamalbai (PW3) and Babu (PW1) would have

lodged report against the accused persons immediately.

The inaction on their part in this regard, for

considerably long a period would create great suspicion

about their versions that the deceased Rukminbai was

subjected to cruelty by the accused persons driving her

to commit suicide.

17. The learned trial Judge did not appreciate the

evidence of the prosecution correctly and properly. The

learned Judge wrongly discarded the dying declaration

(Exh.56) of the deceased Rukminbai. The said dying

declaration was sufficient to discard the case of the

prosecution. The impugned judgment and order convicting

the appellants cannot be said to be legal, proper and

12 907-CriA 360.2002

correct. They are liable to be set aside. In the

result, I pass the following order :-

O R D E R

(i) The appeal is allowed.

(ii) The impugned judgment and order passed in

Sessions Case No. 63 of 2000 are quashed and set aside.

(iii) Appellant No.2 is acquitted of the offences

punishable under Sections 498-A and 306 of the I.P.C.

(iv) The bail bonds of appellant No. 2 are cancelled

and he is set at liberty.

(v) The appeal has been abated against appellant

No.1.

(vi) The fine amount of Rs. 10,000/-, if deposited

by appellant No. 2 namely Dnyanoba Patloba Gitte, be

returned to him.

(vii) The appeal is accordingly disposed of.

Sd/-

[SANGITRAO S. PATIL] JUDGE

shp