Vijay Goroba Shinde & Ors vs The State Of Mah
2017 Latest Caselaw 7696 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 33 OF 2006


1.     Vijay s/o Goroba Shinde,
       Age : 24 years, Occu. Agri.

2.     Goroba s/o Baliram Shinde,
       Age : 61 years, Occu. Agri.,

3.     Dwarkabai w/o Goroba Shinde,
       Age : 41 years, Occu. Agri.

4.     Sarika w/o Maruti Chavan,
       Age : 26 years, Occu. Household

5.     Dipali d/o Goroba Shinde,
       Age : 19 years, Occu. Student

       Accused Nos. 1 to 3 and 5
       are r/o Rajeshnagar, Dhoki,
       Tq. And District Osmanabad                          APPELLANTS
       and accused No. 4 is r/o                        (Orig. Accused)
       Ruibhar, Taluka and District
       Osmanabad

       VERSUS

The State of Maharashtra                                   RESPONDENT 
                                                         (Prosecution)

                         ----
Mr. Satej S. Jadhav, Advocate for the appellants 
Mr. S.D. Ghayal, A.P.P. for the Prosecution/State
                         ----

                                       CORAM : SUNIL P. DESHMUKH AND
                                               SANGITRAO S. PATIL, JJ.

JUDGMENT RESERVED ON                         : 22nd SEPTEMBER, 2017
JUDGMENT PRONOUNCED ON                       : 29th SEPTEMBER, 2017  




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JUDGMENT (PER : SANGITRAO S. PATIL, J.)  :

Heard the learned counsel for the appellants

and the learned A.P.P., representing the State/

Prosecution.

2. The appellants have impugned their conviction

and sentence for the offences punishable under Sections

498-A and 302 read with Section 34 of the Indian Penal

Code ("IPC", for short), recorded in Sessions Case No.

83 of 2004 by the learned 1st Adhoc Additional Sessions

Judge, Osmanabad on 7th January, 2006.

3. Appellant No.1 is the husband of the deceased

Lata. Their marriage was performed in the month of

March, 2002. Appellant No. 2 is the father-in-law,

appellant No. 3 is the mother-in-law, while appellant

Nos. 4 and 5 are the sisters-in-law of the deceased

Lata. The deceased Lata sustained 94% of burns on

various parts of her body when she was residing in her

matrimonial house on 24th May, 2004 at about 6.00 a.m.

She was admitted in the Civil Hospital at Osmanabad for

treatment where she succumbed to her injuries on 11 th

June, 2004.

3 criapl33-2006

4. It is the case of the prosecution that the

appellants were demanding 3 to 4 tolas of gold from her

maternal home and in order to compel the deceased Lata

to fulfill their demand, used to subject her to cruelty.

Ultimately, on 24th May, 2004, at about 06.00 a.m.,

appellant No. 4 caught hold of the deceased Lata and

poured kerosene on her person, while appellant No. 5

ignited a matchstick and set the deceased Lata on fire.

At that time, appellant No. 3 was standing outside the

door of the house so as to restrain the deceased Lata

from running out of the house. Appellant No. 1 as

standing outside the house after latching the door from

outside. Appellant No. 2 was in another room to ensure

that the deceased Lata should not run away through the

another room. The deceased Lata raised shouts. The

neighbours gathered there. At that time, all the

appellants pretended that they were extinguishing fire.

The deceased Lata was taken to the Civil Hospital at

Osmanabad by appellant No. 2.

5. The father of the deceased Lata namely Raosaheb

Laxman Jagtap, resident of Parali lodged FIR against the

appellants in Police Station, Dhoki on 25 th May, 2004.

On the basis of that FIR, Crime No. 53 of 2004 came to

4 criapl33-2006

be registered against them for the offences punishable

under Sections 307 and 498-A read with Section 34 of the

IPC. The investigation followed. The spot panchanama

was prepared. The burnt pieces of the clothes of the

deceased Lata came to be seized.

6. The dying declaration of the deceased Lata was

recorded by PHC Naikwadi of Police Station, Osmanabad on

24th April, 2004 between 11.30 a.m. and 12.00 noon. The

parents of the deceased Lata met her in the Civil

Hospital, Osmanabad on that day at about 5.30 p.m. The

deceased Lata gave oral dying declaration before them,

alleging that the appellants set her on fire. Similar

oral dying declarations were made by her before her

sister Shivkanya and maternal uncle Rajabhau (PW4). Her

dying declaration was recorded by Mulla (PW8), who was

serving as a Senior Clerk in the Civil Court at Paranda

and was empowered to work as a Special Judicial

Magistrate, on the same day between 6.45 p.m. And 7.20

p.m.

7. After the death of Lata on 11 th June, 2004, the

offence punishable under Section 302 of the IPC came to

be substituted for the offence punishable under Section

307 of the IPC.

5 criapl33-2006

8. The inquest panchanama of her dead-body was

prepared. Her dead-body was subjected to post-mortem.

The Medical Officers opined that Lata died of shock due

to burns.

9. Statements of witnesses were recorded. After

completion of the investigation, the Investigating

Officer chargesheeted the appellants for the above

mentioned offences.

10. The learned Trial Judge framed charges against

the appellants for the above mentioned offences vide

Exh-15 and explained the contents thereof to them in

vernacular. The appellants pleaded not guilty and

claimed to be tried. Their defence is that of total

denial and false implication. According to them, the

deceased Lata sustained burns accidentally.

11. The prosecution examined ten witnesses to

establish guilt of the appellants for the above

mentioned offences. After evaluating their evidence,

the learned Trial Judge found that the prosecution

proved guilt of the appellants for the above mentioned

offences beyond reasonable doubt. The learned Trial

6 criapl33-2006

Judge, therefore, convicted them for the said offences

and sentenced each of them to suffer rigorous

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

500/- in respect of the offence under Section 498-A read

with Section 34 of the IPC and to suffer imprisonment

for life and to pay a fine of Rs. 500/- in respect of

the offence under Section 302 read with Section 34 of

the IPC.

12. The learned counsel for the appellants submits

that there is no direct evidence to connect the

appellants with the alleged offences. The case of the

prosecution is entirely based on the dying declaration

(Exh-44) recorded by Mulla (PW8) and the oral dying

declarations brought through the evidence of Raosaheb

(PW1), Shashikala (PW2), Shivkanya (PW3) and Rajabhau

(PW4) i.e. the father, mother, sister and maternal

uncle, respectively of the deceased Lata. He submits

that after the incident, the deceased Lata was brought

to the Civil Hospital at Osmanabad by appellant No.2.

The dying declaration of the deceased Lata was recorded

on that day between 11.30 a.m. and 12.00 noon by PHC

Naikwadi of Police Station, Osmanabad, in question-

answer   form.                     In   that   dying   declaration,   she 




                                   7                           criapl33-2006

specifically stated that she sustained burns

accidentally while clearing spider-nets attached to the

extinguished the fire that was on her person. She

stated that since appellant No.1 was not keeping good

health, appellant Nos.3 to 5 used to ask her to reside

at her maternal house for some days. She specifically

stated that she had no complaint to make against

anybody. The learned counsel further submits that after

the parents of the deceased Lata met her in the hospital

along with Advocate Khot, who was their relative, they

instructed the deceased Lata as to how and what she

should state. He submits that because of the tutoring

of the deceased Lata by her parents and Advocate Khot,

she gave contradictory version in her dying declaration

recorded by Mula (PW8). The said dyinig declaration and

her oral dying declarations allegedly made before

Raosaheb (PW1), Shashikala (PW2), Shivkanya (PW3) and

Rajabhau (PW4), who are interested witnesses, being not

made voluntarily, cannot be believed. He submits that

the inconsistent dying declarations given by the

deceased Lata before Mulla (PW8) and PHC Naikwadi, in

the circumstances of the case, cannot be believed.

8 criapl33-2006

13. The learned counsel further submits that there

is nothing on record to show that the deceased Lata

sustained injuries because of pouring of kerosene. There

is no Chemical Analyst's report to show that there were

traces of kerosene on her burnt clothes. No kerosene

container or matchbox has been seized from the house of

the appellants.

14. The learned counsel submits that the FIR (Exh-

26) was lodged against the appellants at the instance of

Advocate Khot after having discussions with him. It

cannot be considered to seek corroboration to the

version of Raosaheb (PW1).

15. He submits that the evidence of the witnesses

about the alleged illtreatment meted out to the deceased

Lata being hearsay, cannot be relied on. Moreover,

there is nothing on record to show that the deceased

Lata was subjected to cruelty as explained under Section

498-A of the IPC. According to him, the learned Trial

Judge did not appreciate the evidence of the prosecution

correctly and properly and wrongly convicted the

appellants.

16. As against this, the learned A.P.P. submits

9 criapl33-2006

that PHC Naikwadi, who is stated to have recorded the

dying declaration (Exh-56) of the deceased Lata, has not

been examined. Therefore, dying declaration (Exh-56)

cannot be said to have been proved. Consequently, the

said dying declaration would not come to the rescue of

the appellants. He submits that there is no medical

evidence to show that the deceased Lata was in a fit

state of mind to give statement at the time of recording

the dying declaration (Exh-56). On this count also, the

said dying declaration cannot be said to be believable.

He submits that the dying declaration (Exh-44), recorded

by Mulla (PW8), after getting it verified from the

Medical Officer that the deceased Lata was in a fit

condition to give statement, inspires great confidence.

It is corroborated by the oral dying declarations of the

deceased Lata given before her parents, sister and

maternal uncle. From the evidence of these witnesses,

it is clear that the deceased Lata was being subjected

to cruelty by the appellants in connection with their

unlawful demand for gold. The dying declaration of the

deceased Lata, recorded by Mulla (PW8), being voluntary

and truthful, has been rightly believed by the learned

Trial Judge. The learned Trial Judge rightly appreciated

the evidence of the witnesses, coupled with the dying

10 criapl33-2006

declaration (Exh-44) and rightly convicted the

appellants for the above mentioned offences.

17. API Ranjankar (PW55) deposes that he was

assigned investigation into the present case. It has

come in his cross-examination that he received two dying

declarations of the deceased Lata. The first dying

declaration (Exh-56) was received by him on 26th May,

2004 from the P.S.O., who was on duty. Since

genuineness of the said dying declaration was admitted

by the appellants, it was marked exhibit and admitted in

evidence. The contention of the learned A.P.P. that

because PHC Naikwadi, who recorded the dying declaration

(Exh-56) was not examined, this dying declaration cannot

be said to have been proved, is not at all acceptable.

The person, who records the dying declaration, is

required to be examined before the Court in order to

establish that the deceased was in a fit state of mind

to give statement when it was recorded. Whatever

narration of the facts recorded by him cannot be

contradicted since the deceased would not be available.

When the defence side accepts that the dying declaration

was recorded when the deceased was in a fit state of

mind and that it was recorded as per her/his say, it

11 criapl33-2006

would not be necessary to examine the person who

recorded that dying declaration. The person who records

the dying declaration is not supposed to depose before

the court in verbatim as to what had been stated before

him by the deceased. He would simply depose about

fitness of the deceased to give statement and the

procedure that was followed by him in recording the

dying declaration. He would state that whatever was

stated by the deceased, has been correctly recorded by

him. Section 58 of the Evidence Act states that the

facts admitted need not be proved. If the defence side

admits the dying declaration (Exh-56), in our view, the

examination of the person who records the dying

declaration would not be necessary.

18. The learned A.P.P. relied on an unreported

judgment in the case of Deorao s/o Sonbaji Bhalerao and

another Vs. The State of Maharashtra (Criminal Appeal

No. 103 of 2003), decided by the Nagpur Bench of this

Court on 30th June, 2008, on the point of proof of dying

declaration through the person who records it. As

stated above, in the present case, the dying declaration

(Exh-56) has been admitted by the defence side and

therefore, it would not be necessary to examine the

12 criapl33-2006

person who recorded it for its formal proof. Thus, this

judgment would be of no help to the prosecution in the

present case.

19. The dying declaration (Exh-56) is in question-

answer form. Dr. Sow R.N. Mane has certified that the

deceased Lata was fully conscious and in a condition to

give statement when the said dying declaration was

recorded. The said certificate is annexed to the dying

declaration (Exh-56). It has come in the evidence of Dr.

Karanjkar (PW9) that Dr. Sow R.N. Mane was the Medical

Officer, attached to Civil Hospital, Osmanabad. From

the certificate issued by Dr. Mane, it is clear that the

deceased Lata was in a fit state of mind to give

statement when the dying declaration (Exh-56) was

recorded. From the answers given by the deceased Lata

to the questions put to her also, it would be clear that

she was in a fit state of mind to give statement. In

answer to question No.13, she replied that on 24 th May,

2004 at about 6.00 a.m., when she was clearing the

spider-nets attached to the house, she got burnt but did

not know as to how she got burnt. In answer to question

No.15, she replied that appellant Nos.2 and 3 placed

quilt on her person and extinguished the fire. In

13 criapl33-2006

answer to question No.16, she states that appellant

Nos.2 and 3 took her to the hospital for treatment. In

answer to question No.10, she states that since

appellant No.1 was not keeping good health, appellant

Nos.3 to 5 were asking her to reside at her maternal

home i.e Dhoki for some days. In reply to question

No.17, she states that respondent Nos.3, 4 and 5 were of

the view that she should not reside at Dhoki, but she

added that she has no suspicion or complaint against

anybody. The dying declaration (Exh-56), thus, does not

connect appellant Nos.1 to 5 with the alleged incident

of setting aside the deceased Lata on fire by them. The

deceased Lata did not at all attribute any overt act

against the appellants which would incriminate them.

20. The second dying declaration has been recorded

by Mulla (PW8) (Exh-47) on 24 th May, 2004 between 6.45

p.m. and 7.20 p.m. It is in narrative form and not in

question-answer form. From the evidence of Mulla (PW-8)

and Dr. Waghmare (PW7) (Exh-43), it seems that the

deceased Lata was conscious, oriented and in a condition

to give statement when the dying declaration (Exh-44)

was recorded. In that dying declaration, it is stated

that the appellants treated the deceased Lata properly

14 criapl33-2006

for about one and half month after the marriage and

thereafter started to illtreat her. They withdrew all

the ornaments which were on her person. They were

asking her to bring ornaments from her parents. She

sent a chit to her father since she was being illtreated

by the appellants. Thereafter, her father took her to

Parali (i.e. her maternal home). She resided there for

7 to 8 months. Thereafter, appellant No. 1 assured that

he would treat her properly and took her to his house

after obtaining her signatures on some papers in the

Court at Osmanabad. She then states that on 24 th May,

2006, at about 6.00 a.m., appellant Nos. 2 to 5 brought

a kerosene container (dabba) from the hosue of appellant

No.4 Sarika, appellant Nos. 4 and 5 latched the door

from inside, appellant No.3 stayed near the middle door,

appellant No. 1 was outside the house, appellant No.2

had latched the door from outside. Appellant Nos. 4 and

5 jointly poured kerosene on her person and set her on

fire by matchstick. Then all of them rushed outside the

the room. She raised shouts. The neighbours gathered

there. Appellant Nos. 1, 2, 4 and 5 broke down the outer

door of the house to make a show that she herself had

latched the door from inside for setting herself ablaze.

Then they placed blanket on her person and poured water

15 criapl33-2006

as well to extinguish the fire. On the say of the

neighbours, she was brought to the hospital. She alleged

that all the appellants collectively set her on fire.

21. The learned Trial Judge, in paragraph No.42 at

page 30 of the impugned judgment, has reproduced the

principles of law relating to the dying declaration,

laid down in Khushal Rao Vs. State of Bombay AIR 1958 SC

22, which read as under:-

"(1) That it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated.

(2) That each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.

(3) That it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence.

(4) That a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence.

(5) That a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human

16 criapl33-2006

character, and

(6) That in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances, like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control, that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it, and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties."

22. The dying declaration (Exh-44) as well as the

oral dying declarations of the deceased Lata coming

through the evidence of her parents, sister and maternal

uncle will have to be tested on the touchstone of the

above mentioned principles of law.

23. Raosaheb (PW1) (Exh-25), the father of the

deceased Lata states that his wife Shashikala (PW2) and

himself reached the Civil Hospital, Osmanabad at about

5.30 p.m. on 24th May, 2004 to see the deceased Lata. It

has come in the cross-examination of Shashikala (PW2)

and also that of Shivkanya (PW3) (Exh-28), the sister of

the deceased Lata, that Advocate Ajit Khot of Osmanabad

is their relative. Raosaheb (PW1) initially, in

17 criapl33-2006

paragraph No.9 of his deposition, denies that he knows

Advocate Ajit Khot and his family members. However, in

the next breath, he states that he knows Advocate Ajit

Khot and states that the said Advocate Khot was present

in the court hall when his evidence was recorded. He

then states that he met Advocate Ajit Khot. He further

states that since Advocate Ajit Khot was his relative,

his wife Shashikala (PW2) and himself discussed with

Advocate Ajit Khot about the incident. Thereafter,

Advocate Ajit Khot visited the Civil Hospital along with

them. They met the deceased Lata in the Civil Hospital.

They instructed her as to how and what to state. He

further states that Shashikala (PW2) and himself were in

the Civil Hospital, Osmanabad for 19 days from 5.30 p.m.

of 24th May, 2004. During that period, he was visiting

the house of Advocate Ajit Khot for taking food, etc.

He specifically sates that when a person came to record

the statement of the deceased Lata, Advocate Ajit Khot,

Shashikala (PW2) and himself were present there. Then

on the next day, at about 11.00 a.m. to 11.30 a.m.,

Advocate Ajit Khot and himself went to the Police

Station to lodge FIR (Exh-26). He then specifically

states that he had discussions as to what report should

be lodged.

18 criapl33-2006

24. If the above evidence of Raosaheb (PW1) is

considered, it would be clear that the deceased Lata was

tutored by Advocate Ajit Khot, Shashikala (PW2) and

Raosaheb (PW1) as to what she should state about the

incident. These persons were present when the dying

declaration (Exh-44) was recorded by Mulla (PW8), as has

been stated by Raosaheb (PW1) himself. In the

circumstances, the dying declaration (Exh-44) of the

deceased Lata recorded by Mulla (PW8) cannot be said to

have been made voluntarily. If that be so, the oral

dying declarations of the deceased Lata coming through

the evidence of Raosaheb (PW1), Shashikala (PW2),

Shivkanya (PW3) and Rajabhau (PW4), who are interested

witnesses, on the lines the dying declaration (Exh-44)

cannot be believed. It is quite clear that Raosaheb

(PW1), Shashikala (PW2) and Advocate Ajit Khot made the

deceased Lata to change her version that was recorded in

her dying declaration (Exh-56) and instructed her to

implicate the appellants. The dying declaration (Exh-

44), which is not only inconsistent with her earlier

dying declaration (Exh-56), but also is the result of

tutoring by the interested witnesses, i.e. her parents

and Advocate Ajit Khot. Such a dying declaration cannot

19 criapl33-2006

be held to be trustworthy and cannot be believed. The

learned Trial Judge did not properly appreciate the

facts under which the dying declaration (Exh-44) came to

be recorded and wrongly believed the same as truthful.

25. Once the dying declaration (Exh-44) and the

evidence of Raosaheb (PW1), Shashikala (PW2), Shivkanya

(PW3) and Rajabhau (PW4) about the oral dying

declarations of the deceased Lata, are discarded, the

appellants cannot be connected with the incident in

question. Consequently, the dying declaration (Exh-56)

recorded by PHC Naikwadi, first in point of time,

wherein the deceased Lata did not state that the

appellants set her on fire, being probable, will have to

be accepted and accordingly accepted.

26. There is no positive and dependable evidence on

record to establish that the appellants were demanding

gold ornaments from the parents of the deceased Lata.

The appellants have not been prosecuted for or charged

with the offences punishable under Sections 306 or 304-B

of the IPC. Therefore, the presumptions under Sections

113-A or 113-B of the Evidence Act would not be

applicable to the facts of the present case. There are

five appellants. Appellant No.4 was not residing

20 criapl33-2006

jointly with Appellant Nos.1 to 3 and 5. It is not the

case of the prosecution that any particular appellant

only was in the company of the deceased Lata at the time

of the incident. Therefore, the burden as provided in

Section 106 of the Evidence Act also cannot be placed on

any particular appellant to explain the circumstances

under which the deceased Lata was caught by fire.

Morever, in view of her dying declaration (Exh-56), no

such burden can be placed on any of the appellants to

explain those circumstances.

27. The genuineness of the contents of the post-

mortem report (Exh-31) have been admitted on behalf of

the appellants. Column No.17 thereof shows that the

deceased Lata had sustained 94% of burns on various

parts of her body. The said burns were ante-mortem.

Except those burns, no injuries were noticed on her

person. The Medical Officer opined that she died of

shock due to burns.

28. Dr. Karanjkar (PW9) (Exh-50) and one Dr. P.R.

Kulkarni had conducted the post-mortem of the deceased

Lata. Dr. Karanjkar (Pw9) states that on 24 th May, 2004

at about 7.45 a.m., appellant No. 2 brought the deceased

Lata to the Civil Hospital at Osmanabad for medical

21 criapl33-2006

treatment as she had sustained burns. He examined her

and found that she had sustained 90% of burns. He got

her admitted in burns ward and extended medical

treatment. He produced the case-papers (Exh-52) in

respect of the deceased Lata. He admits that he did not

record anywhere in the case-papers that the deceased

Lata or her clothes were smelling of kerosene. He

admits that one may sustain burns by coming into contact

with the flames of an electric oven. He further admits

that he cannot state with certainty that the burn

injuries found on the body of the deceased Lata were

caused by pouring kerosene on her person and setting her

on fire.

29. Gautam (PW5) (Exh-33), who happened to be the

panch to the panchanama (Exh-34) in respect of the spot

of the incident, states that small pieces of saree were

noticed on the spot of the incident. However, the said

cloth pieces have not been seized by PHC Shinde (PW6)

(Exh-35), who prepared the spot panchanama (Exh-34).

The said cloth pieces certainly would have been helpful

to the prosecution to prove that kerosene was poured on

the person of the deceased Lata for setting her on fire.

Had those cloth pieces been subjected to chemical

22 criapl33-2006

analysis, traces of kerosene certainly would have been

noticed thereon. There is absolutely nothing on record

to show that the clothes of the deceased Lata, which

were on her person at the time of the incident, were

seized and sent to the Chemical Analyst for analysis and

report. Thus, the material evidence, which could have

been collected and produced by the prosecution to

establish that kerosene was poured on the person of the

deceased Lata at the time of the incident, has not been

collected and produced by the prosecution without any

reason. With this deficiency, the evidence of Dr.

Karanjkar (PW9) that he cannot state with certainty that

the deceased Lata sustained burn injuries because of

setting her on fire after pouring kerosene on her

person, certainly would create a great doubt about the

cause of the injuries sustained by her as has been

assigned by the prosecution. Thus, the medical evidence

does not show it positively and clinchingly that the

deceased Lata sustained burns due to her setting on fire

after pouring kerosene.

30. The prosecution, thus, failed to establish that

the death of deceased Lata was homicidal and that the

appellants set her ablaze leading to her death. If that

23 criapl33-2006

be so, in view of the judgments in the cases of Inderpal

Vs. State of M.P. (2001) 10 SCC 736, cited by the

learned counsel for the appellants before the Trial

Court, the evidence of Raosaheb (PW1), Shashikala (PW2)

and Shivkanya (PW3) in respect of the alleged

illtreatment meted out to the deceased Lata, which,

according to them, was narrated by her when she had been

to her maternal home, being hearsay, would not be

admissible to prove that she was subjected to cruelty

since it would not come within the ambit of sub-section

(1) of Section 32 of the Evidence Act. The same

principle of law has been followed in the case of

Bhairon Singh Vs. State of Madhya Pradesh (2009) 13 SCC

80.

31. The learned Trial Judge relied on the evidence

of Rajabhau (PW4) (Exh-29) to hold the appellants guilty

of the offence punishable under Section 498-A of the

IPC. It has come in his evidence that once he took the

deceased Lata to the house of the appellants. All the

appellants were present there. They asked Lata whether

she had brought gold and quarreled with her. He

convinced all of them and after leaving the deceased

Lata at their house, went away. According to him, the

24 criapl33-2006

said incident took place prior to about five days of the

incident of burning. Here, it would be necessary to

refer to the Explanation given under Section 498-A of

the IPC, which reads as under:-

"Explanation.- For the purpose of this section, "cruelty" means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

32. Even if the evidence of Rajabhau (PW4) is

accepted as it is, it would not meet the requirements of

"cruelty", as contemplated under Section 498-A of the

IPC. Moreover, the evidence of Rajabhau (PW4) is very

vague, general and omnibus. It does not appear to be

natural and probable that all the appellants would ask

the deceased Lata simultaneously whether she brought

gold and then would quarrel with her in the presence of

Rajabhau (PW4). The word "quarrel", used by Rajabhau

(PW4) is very vague and general. There is absolutely

nothing in his evidence to show that the deceased Lata

25 criapl33-2006

was either beaten or mentally tortured by all the

appellants or either of them, in such a way that it

would amount to cruelty as explained under Section 498-A

of the IPC. The learned Trial Judge has wrongly relied

on the evidence of Rajabhau (PW4) to connect the

appellants with the offence punishable under Section

498-A of the IPC.

33. Considering the above facts and circumstances

of the case, we are of the view that the learned Trial

Judge did not appreciate the facts of the case as well

as the evidence on record correctly and properly and

wrongly convicted the appellants. The impugned judgment

and order are liable to be quashed and set aside. The

appellants deserve to be acquitted. In the result, we

pass the following order:-

O R D E R

(i) The Criminal Appeal is allowed.

(ii) The impugned judgment and order dated 7th

January, 2006 are quashed and set aside.

(iii) The appellants are acquitted of the offences

punishable under Sections 302 and 498-A of the Indian

26 criapl33-2006

Penal Code.

(iv) The bail bonds of the appellants are cancelled.

They are set at liberty.

(v) The fine amount, deposited by the appellants,

be refunded to them.

(vi) The appeal is accordingly disposed of.

        [SANGITRAO S. PATIL]                [SUNIL P. DESHMUKH]
                JUDGE                               JUDGE

 

npj/criapl33-2006