Janardhan S/O Jagoji Uike vs State Of ...
2017 Latest Caselaw 3003 Bom

 Criminal Appeal No.8-2003                       1        

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH AT NAGPUR

                        CRIMINAL APPEAL NO. 08/2003


 Janardhan S/o Jagoji Uike,
 Aged about 30 years. Occ-Teacher,
 R/o Hansapur, At present -Babulgaon,
 District-Yavatmal.                                      .....APPELLANT

       ...V E R S U S...

 State of Maharashtra,
 through P.S.O.P.S.Kalamb,
 District Yavatmal.                                                 ...RESPONDENT

 -------------------------------------------------------------------------------------------
 Shri R.B.Gaikwad, Learned Advocate for appellant.
 Smt. M.H.Deshmukh, Learned A.P.P. for State/respondent.
 -------------------------------------------------------------------------------------------

                                              CORAM:- V. M. DESHPANDE, J.

DATED :- JUNE 09,2017

ORAL JUDGMENT

By the present appeal appellant has challenged the

judgment and order of conviction passed by Learned Ad-hoc

Additional Sessions Judge,Yavatmal dated 20th December,2002 in

S.T.No.69/2000. By the said judgment the Court below convicted

the appellant for the offence punishable under Section 498-A and

for that he was directed to suffer R.I. for 3 years and to pay fine of

Rs. 500/- and in default to undergo R.I. for 1 month.

The appellant is further convicted for the offence

punishable under Section 306 of the Indian Penal Code and on

that count sentenced him for 5 years of Rigorous Imprisonment

and fine of Rs. 1000/- and in default Rigorous Imprisonment for 1

month. The Court below directed that these sentences shall run

concurrently.

2. The facts giving rise to the present appeal are as

under:

Deceased is Shaila. She was a teacher. Appellant

married with deceased on 07/05/1999. Appellant is also teacher

by profession. Their marriage was a love marriage. At the time of

marriage appellant was working at Chincholi and deceased was

working at Shivshakti Kannaya School,Kalamb. The marriage took

place at Kalamb where the parents of the deceased were not

residing. Deceased took loan from the credit society of her school

and it was given to her father Vishnu Yadao Madavi(PW1) prior to

her marriage. After marriage the couple till reopening of the

school were residing at Babulgaon and thereafter they shifted to

Kalamb. Couple alone were residing with each other.

3. A burning incident took place inside the house of the

couple and deceased Shaila was admitted to the General Hospital

at Yavatmal on 27/7/1999. After her burn a requisition on

27/7/1999 itself was given by the police station authority

Yavatmal to the Executive Magistrate, Yavatmal for recording

dying declaration of Shaila, the injured. The said is at Exh.17. In

pursuance to the said requisition the Executive Magistrate

Yavatmal reached to the hospital and he recorded her statement,

dying declaration was recorded in the intervening night of

27/7/1999 and 28/7/1999. The dying declaration is at Exh.19.

During the period of her treatment unfortunately

Shaila succumbed to her burn injuries. The death report of hers is

at Exh.20. Her death was informed to P.S.Yavatmal by the

medical officer through ward boy . On receipt of the information

about the death an accidental death under Section 174 of Cr.P.C.

was registered vide A.D.No.0/99. The inquest was conducted on

the dead body of Shaila by police station authority Yavatmal and

inquest report is at Exh.23.

4. Gangaprasad Sarjuprasad Gautam (PW4) who was

working as police station officer of P.S.Kalamb received the papers

of A.D.No.0/99 alongwith other case papers including the dying

declaration, inquest report etc. A crime was registered on

29/7/1999 vide Crime No.85/1999 for the offence punishable

under Sections 498-A r/w Section 34 and Section 302 of the

Indian Penal Code. The said crime was registered on the basis of

typed written complaint dated 29/7/1999 by Vishnu Yadao

Madavi (PW1)against the appellant, his married sister Sou.

Janabai Bhimrao Gajlekar and her husband Bhimrao Gajlekar.

The said complaint as lodged by Vishnuji Madavi (PW1) is at

Exh.43.

5. After reregistration of the crime investigating officer

Gangaprasad (PW4) visited the spot of incident and prepared spot

panchnama in presence of panchas as per the situation noticed on

the spot (Exh.25). He also seized articles from the spot itself and

seizure is mentioned in (Exh.25) itself. The investigating officer

thereafter recorded the statements of various persons. He received

postmortem report on 04/08/1999(Exh.35) . After receipt of

postmortem report the investigating officer issued a letter to

Medical Officer Yavatmal(Exh.31) and requested to give his

opinion to the query raised by him in Exh.31. He also sent the

seized articles for chemical analysis. After completion of other

usual investigation final report was presented in the Court of

J.M.F.C. at Kalamb. The Learned Magistrate noticed that the

offence is exclusively triable by the Court of Session consequently

he passed order and thereby committed the case to the Court of

Session. After case reached to the Court of Session it was

numbered as S.T. No.69/2000 and was allotted on the file of Ad-

hoc Additional Sessions Judge,Yavatmal.

The Learned Judge thereafter framed charge against

the appellant, his married sister Janabai and her husband Bhimrao

for the offence punishable under Sections 498-A and 306 r/w

Section 34 of the Indian Penal Code. All the accused persons

abjured their guilt and claimed for their trial. In order to bring

home the guilt of the persons who were charged by the Court

below prosecution examined four witnesses. Record shows that

various documents which were filed by the prosecution were

admitted by the defence. The accused persons were also examined

by the Learned court below under Section 313 of Code of Criminal

Procedure.

6. After appreciating the the prosecution case, Learned

Judge of the Court below acquitted the original accused nos. 2 and

3 namely the husband of accused no.3 who is married sister of

appellant from all the offences. However, Learned Judge convicted

the appellant and sentenced him as mentioned in the opening

paragraph of this judgment. Hence, this appeal.

7. I have heard Shri R.B.Gaikwad Learned Advocate for

appellant and Smt. M.H.Deshmukh, Learned Additional Public

Prosecutor for the State. Both the Learned counsels took me

through the notes of evidence and all record of the sessions trial in

detail. Both the Learned counsels submitted their respective

arguments in support of their brief.

8. The evidence of prosecution case consists of three

witnesses apart from prosecution witness no.4, the investigating

officer. P.W.1 is Vishnu ,father of deceased whereas P.W.3 is

Chintaman Madavi, uncle of deceased. P.W.2 is Sunita who is

friend of deceased.

9. It is submission of the Learned counsel for the appellant

that the evidence of these three witnesses required to be discarded

since they are either close relatives or interested witnesses. This

submission of the Learned counsel for the appellant in my view

hardly requires a consideration since it is settled principle of law

that merely because the witnesses are close relatives or they are

interested in deceased that by itself their testimony does not earn

any disqualification. However, at the same time, Court should

require to scrutinize their evidence minutely and also by way of

prudence to seek corroboration from other available evidence on

record.

10. Postmortem report is at Exh.35. Column no.17 of the

said postmortem report shows that body of Shaila suffered 99%

burn injuries. The surgeon has given his opinion about the cause

of death as "shock due to burns". Thus, it is crystal clear that the

death of deceased Shaila was unnatural one and it was caused due

to burn injuries.

11. It is the submission of Learned Additional Public

Prosecutor Smt. Deshmukh that within a span of two months

Shaila died unnatural death , therefore there is presumption in

favour of the prosecution as envisaged under Section 113-A of the

Evidence Act. She therefore submitted that the judgment

convicting the appellant be upheld.

12. In order to attract the provisions of Section 113-A of

Evidence Act it is the bounded duty of the prosecution firstly to

establish with the help of cogent evidence that deceased was

subjected to cruelty and harassment by her husband and his

relatives. It must also prove that deceased was subject to cruelty as

defined under Section 498-A of Indian Penal Code.

The death can be natural one or unnatural one. A

unnatural death can be 1] either homicidal one, 2] suicidal and

3] accidental.

13. To the incident of burning in the present case there is

no eye witness nor any immediate neighbours are examined by the

prosecution that they have seen the deceased committed suicide

due to harassment at the hands of appellant. There is nothing

available on record to show the presence of the appellant at the

time of incident in the house. The prosecution case is totally silent

about his presence in the house. From the spot panchnama

(Exh.25) it is clear that the couple was residing in a house known

as " Matoshree Sadan" and the said house is owned by Dr.

Sudhakar Balbudhe. Spot panchnama shows that the house

consists of three blocks and in block situated on the southern side

the couple used to reside. The said information which the

investigating officer has noted in the spot panchnama was

informed to him by one Shri Amart Sirsat. Thus, it is clear that the

couple was not residing in any secluded place and thereby denying

the opportunity to the prosecution to point out about the presence

of appellant in the house at the time of incident.

14. Prior to her death Shaila was admitted to hospital at

Yavatmal. Exh.17 is requisition given by police station authority

Yavatmal to Executive Magistrate for recording dying declaration

of Shaila. Consequently, Executive Magistrate attended the

hospital and recorded her dying declaration which is available on

record at Exh.19. These two documents were filed by the

investigating officer along with the chargesheet. These documents

thus are coming on record from the possession of the prosecution.

During the course of trial these two documents were admitted by

the defence and accordingly they were exhibited.

15. Exh.19 a dying declaration is in the question answer

form. The said document shows that prior to recording her

statement Executive Magistrate gave requisition to doctor and

sought his opinion about the condition as to whether patient is in

fit condition to give dying declaration or not and Exh.19 shows

that there is an endorsement by the attending doctor that the

patient is in fit condition to give dying declaration. The fact that

she was in a position to give her statement is also corroborated by

P.W.1, her father, as per his evidence when he reached to hospital

that time deceased had a talk with him. Dying declaration as

recorded by the Executive Magistrate shows that initially he asked

the name of injured and thereafter when he asked about the

incident she has stated that on 27/7/1999 at 7' O clock when she

was boiling milk on the stove that time stove get flared and when

she tried to remove the container of milk her saree came in contact

with the flames and due to which she got burn injuries. She

specifically told to the Executive Magistrate that at that particular

point of time nobody was present in the house.

16. Perusal of Exh.19 thus shows that deceased Shaila has

completely absolved the appellant as a person responsible for

burn. What she has stated in the said dying declaration that she

received burn injuries accidentally. The said document filed on

record by prosecution is totally silent about any harassment of

whatsoever nature. This one piece of evidence available on record.

17. Another piece of evidence i.e. available on record is in

the nature of testimony of prosecution witnesses nos. 1,2 and 3.

The incident occurred on 27/7/1999. Shaila died on 28/7/1999.

On 27/7/1999 Vishnu (PW1) approached to the P.S. Kalamb with

a typed complaint (Exh.43). The said report shows that the

deceased and the appellant who are the teachers were in love and

both married against the wish of their relatives. The said report

further states that the original accused nos. 2 and 3 were

responsible for the marriage between deceased and appellant. It is

further stated in the report that prior to marriage Shaila obtained

a loan of Rs. 10,000/- from her employer and that amount was

given to the complainant and all the accused got this particular

information and therefore they started harassing the deceased and

demanded Rs. 10,000/- from her. It is also stated in the report

that that time and again she was severely beaten. As per the report

she was harassed to very great extent and deceased informed to

the complainant that she fears threat to her life from the

appellant. The written complaint further goes to state that on

27/7/1999 he received information about the burning incident

and therefore he and his wife Vimal both reached to the hospital

that time she was alive. The written report further claims that it

was informed to the complainant by deceased that it is the

appellant who has poured kerosene on her person and she was set

ablaze.

18. During the course of evidence when Vishnu was in the

witness box he stated that when he reached to the hospital there

he made inquiry with deceased Shaila and on his inquiry as per

his claim she stated as under.

ßeh tsOgk 'kSykyk HksVyks rsOgk 'kSyk cksyr gksrh- eh 'kSykyk fopkjys gs dls dk; >kys rsOgk rhus lkaxhrys dh gs lxGs tukZnupk jkxkoj dsys vkgs"-

Thus, it is crystal clear that the oral dying declaration

which the father of deceased is claiming is totally contradictory to

claim which he has made in the report (Exh.43). Exh.43 is

obviously filed after the oral dying declaration made by deceased

to the author of the said document as claimed by him. It appears

that Vishnu (PW1) is not only exaggerating the facts but appears

to have a tendency to falsely implicate the appellant that too a

very serious offence of commission of same.

19. According to evidence of Vishnu(PW1) and as per the

F.I.R. Shaila was subjected to harassment to great extent and she

received severe beatings. However, no prior complaint of any sort

was either filed by Shaila or by Vishnu to the police authority.

20. Evidence of Vishnu (PW1) shows that firstly he sent

one Sanjay Chandekar after marriage to fetch Shaila to her

parental house, but appellant did not allow deceased to visit his

house with said Chandekar. To prove this particular fact Sanjay

Candekar would have been best witness of the said incident.

However, though he was cited as an witness in sessions trial for

the reasons best known to the prosecution this witness was not

examined.

21. It is further claim of the Vishnu(PW1) that thereafter

he sent his daughter Pratibha for fetching Shaila. As per the

evidence of Vishnu when Pratibha visited the house of Shaila that

time Shaila and appellant had been to Shegaon and therefore his

daughter Pratibha halted in the house of appellant and in the same

night the couple returned from Shegaon. That time also, appellant

refused permission to Shaila to go to her parental house. However,

according to the father of deceased other two accused persons

visited his house and they enjoyed his hospitality.

It is further claim of the Vishnu(PW1) that again at the

time of Akhadi, Pratibha was sent to Shaila to see how life of

Shaila and Janardhan is going on. That time one Sulbha a friend

of deceased Shaila was also accompanied to her house. It is the

version of Vishnu(PW1) that when Pratibha returned to the house

that time she informed that Shaila told her she is subjected to

harassment and beating at the hands of appellant in connection of

demand of Rs. 10,000/- . It is further version of Vishnu that his

daughter Pratibha advised him that he should give the said

amount to Shaila. From the aforesaid , it is clear that this part of

evidence of Vishnu is inadmissible since it is a hearsay evidence.

This incident could have been proved by Pratibha or Sulbha. None

of these persons is examined by the prosecution which requires the

Court to draw adverse inference against the prosecution.

22. It is further claim of Vishnu(PW1) that thereafter his

brother Chintaman(PW3) visited the house of Shaila and that time

also Shaila was not allowed to visit the house and he informed

that he noticed that Shaila was beaten for Rs. 10,000/-

23. Chintaman(PW3) is examined by the prosecution.

Perusal of his evidence shows that his entire evidence in respect of

harassment and beating which he claims that it was done in his

presence by the appellant and disclosed to him by Shaila about

harassment when he was proceeding to the bus stand is an proved

omission. After reading of his evidence even Additional Public

Prosecutor has fairly stated that it is required to be discarded.

24. As per the evidence of these two brothers there was

harassment and the appellant and other accused persons were not

allowing Shaila to visit her parental house. From the evidence as

adduced it is clear that at no point of time Vishnu had been to the

place of incident to fetch his daughter. Every time according to

him he sent other persons, however none of these persons are

examined. Had really there was a dispute in between family then

in that event there was no occasion for original accused nos. 2 and

3 to visit the house of Vishnu and there was no occasion for

Vishnu to receive them for his hospitality. That shows that till the

death of Shaila there was no dispute whatsoever in between these

two families.

25. Another witness is P.W.3. Her name is Sunita. Her

evidence shows that she is a friend of Shaila at the time of taking

education. According to her evidence two days prior to the death

she visited house of deceased and at that time deceased informed

that she is at receiving end in connection with the amount of Rs.

10000/-. Her cross-examination shows the presence of the

appellant at the time of disclosure of Shaila. She further admits

that she had a talk with the appellant. Her evidence is totally silent

that prior to the said meeting appellant was knowing this witness.

In absence of such evidence it is really hard to believe that a newly

married girl would complain about her husband in his presence

with a person unknown to witness. Further her statement is

recorded at belated stage. What is important to note from her

evidence that for the reason best known to her she said not to

disclose the fact of harassment to the parents of the deceased.

Therefore, in my view evidence of this lady is hardly helpful to the

prosecution.

26. In paragraph no.22 of the impugned judgment the

Learned Judge has disbelieved the written dying declaration

(Exh.19) which absolves the appellant for the following reason;

" It is pertinent to note in this case that neither prosecution nor defence examined Executive Magistrate

who recorded dying declaration and medical officer who made endorsement on it. Therefore, for want of examination of the witnesses on dying declaration (Exh.19) it cannot be considered as as a full proof which are mentioned in the dying declaration (Exh.19)."

By such Learned Judge of the Court below shifted

burden on the defence which is unknown to the criminal

jurisprudence. Dying declaration(Exh.19) is coming on record

from the possession of the prosecution. Said document is filed on

record along with chargesheet. At no point of time the authenticity

of the said document was disputed by the prosecution. Merely

because the said document absolve the appellant and is not of

supportive of the prosecution that cannot be the reason for Court

to disbelieve such document. Therefore, in my view the approach

on the part of the Learned Judge of Court below is not contrary to

the established principle of law but perverse one.

27. Further spot panchnama (Exh.25) shows that when the

house was visited by the investigating officer that time the house

was in a locked condition and the panchnama further recites that

the investigating officer procured the keys from Shri Amar Sirsat.

Thereafter the house was open. The document shows that when he

visited the kitchen that time, he noticed the container of milk. It

would be useful to reproduce the relevant portion of the

panchnama(Exh.25) as under:

" vkrhy [kksyhr ikg.kh dsyh vlrk Lo;aikd :e vlqu 8 x 8 QqVkph vkgs- Qj'khoj n{kh.k cktqyk okrhpk LVkso fo>ysY;k fLFkrhr vkgs- R;kyxr Qj'khoj nq/k lkaMysys vlqu LVhypk ygku xatkoj nq/kkps Mkx iMysys vkgsr".

As per Exh.19 a dying declaration by Shaila when she

was trying to boil milk in a container on a stove she accidentally

caught with fire, gets corroboration. Further from spot panchnama

(Exh.25) It is clear that the house was in a locked condition and

the keys were procured by the investigating from Shri Amar

Shirsat. That shows that there was no possibility of tampering of

spot at the hands of the appellant.

28. As per the claim of the investigating officer after receipt

of postmortem report (Exh.35) he gave a communication to the

medical officer and sought his opinion on following:

"e`rd fgus fnukad [email protected]@1999 jksth fnysY;k e`R;qiwoZ tckuhe/;s ßLVksOg isVfoyk] LVkso isVforkp LVksogus ,dne HkMdk ?ksryk- nq/kkps HkkaMs mpy.;kdfjrk

xsyh R;keqGs lkMhpk inj LVksoj iMyk R;keqGs eh tGkyhÞ vls lkaxhrys vkgs- rjh LVksogpk HkMdk mMkY;kus o R;keqGs vkx ykxY;kus 'kjhjkoj dsjkslhupk va'k okl ;sm 'kdrks dk;\ rlsp g;k ifjfLFkrhr 99% tGkY;kpk t[kek gksm 'kdrkr dk; \ g;kckcr vkiyk vfHkizk; feG.ksl fouarh vkgs".

The medical officer has given his opinion to the

investigating officer and the same is at Exh.32. The said opinion is

as under:

" Answer to your query is 'yes possible'."

Thus, it is crystal clear that when an inquiry was made

by the investigating officer as to whether there could be traces of

kerosene and whether the injury of 99% is possible to that medical

officer has answered in affirmative. In that view of the matter the

injury suffered by the unfortunate lady to the extent of 99% is

possible by the accident also.

29. Learned Additional Public Prosecutor submitted that in

view of C.A. Report (Exh.33) which shows that traces of kerosene

on the clothes of deceased it shows that she has committed

suicide.

30. The prosecution has to prove its case by substantive

evidence. The C.A. report is always a piece of corroborative

evidence. Only on the basis of C.A. Report a conviction cannot be

secured unless there exists substantive evidence. In the absence of

any substantive evidence I am of the firm view that the said piece

of evidence by itself cannot be pressed in to service to convict the

appellant.

31. From the discussion in the preceding paragraphs it is

clear that two versions are coming on record. One in favour of the

prosecution in the nature of oral dying declaration made to the

Vishnu (PW1) and Exh.19 dying declaration which absolve the

appellant.

32. Though the oral dying declaration was made in the

early hours of 28/7/1999 the report was lodged that too a typed

report on 29/7/1999 at about 11.35 a.m. No explanation is given

by the prosecution for belated lodging of F.I.R. It is a trait of law

that when two versions are available on record then the benefit of

doubt has to be extended in favour of the accused by accepting the

evidence which absolves the accused.

The re-appreciation of the entire prosecution case

leads me to pass the following order.

O R D E R

i. Appeal is allowed.

ii. The judgment and order of conviction passed by Learned Ad-hoc Additional Sessions Judge, Yavatmal dated 20/12/2002 in S.T. No.69/2000 convicting the appellant for offence punishable under Sections 498-A and 306 of Indian Penal Code is hereby quashed and set aside.

iii. Appellant is acquitted from the offence punishable under Sections 498-A and 306 of Indian Penal Code.

iv. The bail bonds of appellant are cancelled.

JUDGE

kitey