Raju Mohansingh Bhati (Abated) & 4 ... vs State Of Maharashtra
2018 Latest Caselaw 683 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.249 OF 2002


 1) Raju Mohansingh Bhati,          - (Abated as per order
     Aged about 23 years,              dated 9-8-2013)

 2) Prabha wd/o Mohansingh Bhati,
     Aged about 65 years, 

 3) Hirasingh Mohansingh Bhati,
     Aged about 25 years, 

 4) Sau. Sunita w/o Hirasingh Bhati,
     Aged about 25 years, 

     All Residents of Gandhibagh, 
     Nagpur.

 5) Sau. Lalita c/o Kunjilal Chavan,
     Aged about 35 years, 
     R/o Dhimar Mohalla, Lendi Talao,
     Nagpur.                                            ....       APPELLANTS


                     VERSUS


 State of Maharashtra, 
 through Police Station Officer, 
 P.S. Tahsil, Nagpur.                                   ....       RESPONDENT

 ______________________________________________________________

              Shri S.A. Jaiswal, Advocate for the appellants, 
    Shri N.B. Jawade, Additional Public Prosecutor for the respondent.
  ______________________________________________________________




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                            CORAM : ROHIT B. DEO, J.

  DATE OF RESERVING THE JUDGMENT          
                                          : 21-09-2017
  DATE OF PRONOUNCING THE JUDGMENT        : 19-01-2018

 JUDGMENT : 

The challenge is to the judgment and order dated

02-4-2002 passed by the learned 2nd Ad hoc Additional Sessions Judge,

Nagpur in Sessions Trial 501/2001, by and under which, the appellants

are convicted for offences punishable under Sections 498-A and 307

read with Section 34 of the Indian Penal Code ("IPC" for short) and are

sentenced to suffer rigorous imprisonment for two years and to

payment of fine of Rs.500/- each for offence punishable under Section

498-A read with Section 34 of the IPC and are further sentenced to

suffer rigorous imprisonment for three years and to payment of fine of

Rs.750/- each for offence punishable under Section 307 read with

Section 34 of the IPC.

2. Accused 1 Raju Bhati, the husband of the complainant

Archana, expired during the pendency of the appeal. Accused 2

Prabha, is the mother-in-law, accused 3 Hirasingh is the brother of

deceased Raju Bhati, accused 4 Sunita is the wife of Hirasingh and

accused 5 Lalita is the married sister of deceased Raju Bhati.

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3. Heard Shri S.A. Jaiswal, learned Advocate for the

appellants and Shri N.B. Jawade, learned Additional Public Prosecutor

for the respondent/State.

4. Irrefutably, the complainant Archana (P.W.1) suffered

burn injuries on 15-3-2001 and was admitted to the Mayo Hospital,

Nagpur. Her statement was recorded by P.W.10 Head Constable

Sudhakar Patil (Exhibit 14) which is treated as the first information

report, on the basis of which Tahsil Police registered offences

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

Indian Penal Code.

5. The report (Exhibit 14) recites that the complainant

Archana and accused Raju Bhati entered into matrimonial alliance in

1999. The couple is issueless. Since marriage accused Raju and

accused Prabha used to berate and beat Archana since dowry was not

paid. Two months prior to the incident accused Raju and Prabha asked

Archana to either bring money from her parents or to leave the house.

Accused Raju and Prabha caught hold of Archana's hair and after

subjecting her to severe beating by delivering fist blows, drove her out

of the house. Archana went to her mother's house situated in Shanti

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Nagar and was treated in a private hospital for breast pain. Archana

expressed desire to cohabit with her husband Raju and her brother

Prakash (P.W.3) escorted her to the matrimonial house situated at

Gandhi Bagh on 15-3-2001. On her arrival at the matrimonial house at

2.30 p.m. on 15-3-2001, accused Raju started beating Archana with

fists asking her as to why she returned and then he went away.

Accused Prabha, Hirasingh, Sunita and Lalita ignited the stove, pushed

Archana on the stove and catching hold of her person held her on the

burning stove due to which she suffered burn injuries on both hands,

breasts, private parts and stomach. She was admitted in the hospital

by neighbours.

6. The material witnesses to prove the cruelty to which

according to the prosecution Archana was subjected, are from the

perspective of the prosecution, P.W.1 Archana, her mother P.W.2

Bebibai and her brother P.W.3 Prakash. In so far as the prosecution

case that the accused attempted to murder P.W.1 Archana, direct

evidence from the perspective of the prosecution is that of P.W.1

Archana and the evidence of P.W.2 Babibai and P.W.3 Prakash is relied

upon as corroborative evidence. It would be apposite to scrutinize the

evidence of P.W.1 Archana and to search for corroboration in the first

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information report (Exhibit 14). It is the case of the prosecution, that

although P.W.1 Archana suffered 45% to 50% burns, she was fully

conscious and in a fit condition to give statement.

7. P.W.1 Archana has deposed that after six months of the

marriage, accused Raju was beating her under the influence of liquor

and was demanding Rs.10/-, 20/- and 50/-. The other accused beat

Archana. Accused Hirasingh abused her in filthy language. P.W.1

states that on one Sunday all the accused beat her and drove her out of

the house. She went to her mother's place and since she sustained

bleeding injuries was admitted in hospital of Dr. Wali. P.W.1 was

indoor patient for eight days and after discharge stayed at her mother's

house for two months. She asked P.W.3 Prakash to escort her to the

house of the accused. When she and Prakash went to the house of the

accused, both were abused. P.W.1 asked Prakash to return to his

house. P.W.1 was abused and beaten by all the accused. She was on

her way to lodge report in police station when the accused caught hold

of her hair, closed the mouth and pulled her inside the house. All the

accused beat her, poured kerosene oil on her person and pushed her on

the stove and when P.W.1 started burning, the accused fled from the

spot.

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In the cross-examination, P.W.1 admits that accused Lalita

is residing at Lendi Talao and accused Hirasingh used to leave the

house in the morning in connection with his bardana business and

return in the evening. P.W.1 admits that prior to the incident she had

gone to her mother's house without the permission of the accused or

other family members and during her stay of two months at her

mother's house, there was no communication between the two families.

She disclaims knowledge about the accused having raised the issue of

P.W.1 going to her mother's house in the caste panchayat. She claims

ignorance about the insistence of Prabha that a written undertaking be

given before the panchas that P.W.1 would not go to her mother's

house without permission. A suggestion is given to her that when she

and Prakash came to the house of the accused, there was a quarrel

between them and accused Prabha since Prabha insisted that P.W.1

will not be allowed to reside in the matrimonial home in the absence of

panch. However, P.W.1 admits that a quarrel did take place between

she and Prakash on one hand and accused Prabha on the other. She

denies the suggestion that after the quarrel with P.W.3, Prabha went to

the police station to lodge report.

8. The statement that accused Prabha, Raju, Sunita used to

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beat P.W.1 and accused Hirasingh was abusing her in filthy language,

is an omission. P.W.1 states that she did not remember whether she

disclosed to the police that she was asked to bring Rs.10/-, 20/- or

50/-. The statement that she was beaten on face and chest and was

admitted in the hospital of Dr. Wali for eight days, is an omission. The

variance between the version of the incident as stated in the first

information report and the examination-in-chief is put to P.W.1 and the

omissions are brought on record. I will advert to this aspect at a later

stage in the judgment. P.W.1 denies the suggestion that she suffered

accidental burns and that the accused are falsely implicated. P.W.1

states, that she was desirous of residing with accused Raju separate

from other family members, even after the incident. She admits that

she was read over the report by police, but denies the suggestion that

she is giving false evidence at the behest of the police.

9. At this stage, it would be pertinent to note the variance in

the version, in the first information report and in the deposition which

variance is not on minor or peripheral aspects. The first information

report attributes ill-treatment on the issue of dowry only to accused

Raju and Prabha. In so far as the incident which occurred two months

prior to 15-3-2001, the version in the first information report is that

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accused Raju and Prabha asked her to bring money or to leave the

house, they caught hold of her hair and physically assaulted her by fist

blows. In the deposition, other than Raju and Prabha, accused Sunita

and Hirasingh are implicated and P.W.1 states that on one Sunday all

the accused assaulted and drove her out of the house. Her statement

that she was admitted in a private hospital as indoor patient for eight

days, is an omission and the prosecution has not produced any

evidence to substantiate the said assertion.

The version in the first information report is that it was

only accused Raju and Prabha who used to scold and beat her on the

issue of dowry. In the deposition, P.W.1 has implicated all the accused

except accused Lalita as the family members who used to beat her.

Hirasingh is further alleged to have abused P.W.1 in filthy language.

Endeavour of P.W.1 to exaggerate and over implicate demands that her

evidence must be tested with extreme caution.

The evidence on the incident which took place on

15-3-2001 is marred by glaring improvements and over implication.

The first information report implicates accused Raju only in physical

assault and recites that it was after Raju left, that the other accused

ignited the stove, pushed her on the stove and catching hold of her

person held her on the burning stove. In stark variance, the deposition

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implicates accused Raju in the incident. The deposition is that P.W.1

and her brother P.W.3 were abused, P.W.1 was abused and beaten and

when she was on her way to lodge police report, the accused caught

hold of her hair, closed the mouth and dragged her inside the house.

P.W.1 was assaulted by all the accused who then poured kerosene oil

on her person and pushed her on the stove. This court is alive to the

position in law that the first information report is not expected to be an

encyclopedia. The object of the first information report is to set in

motion the wheels of investigation if basic facts constituting the offence

are discernible. However, if the omission in the first information report

is on vital aspects illustratively as regards the presence of the accused

on the spot or the names or identities or in certain circumstances the

role played by the accused in the incident, the omission in the first

information report and the inconsistencies and improvements must put

the Court on guard to rule out the possibility of false or over

implication. The fact that the first information report states that

accused Raju left and then the other accused caused the burn injuries is

incompatible with the deposition that all the accused including Raju

are responsible for the incident. The first information report makes no

reference to the accused having forcibly dragged her inside the house

and then assaulting her and pouring kerosene oil on her person. The

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version of the incident in the first information report is that accused

Raju left after assaulting P.W.1 with fists and thereafter the other

accused ignited the stove, pushed P.W.1 on the stove and held her on

the burning stove causing injuries. The deposition is that all the

accused including Raju abused and beat P.W.1 and when P.W.1 was

proceeding to the police station to lodge report, the accused caught

hold of her hair, closed her mouth and dragged her inside the house,

she was again assaulted and the accused poured kerosene oil on her

person and pushed her on the stove.

10. The testimony of an injured witness is ordinarily on a

higher pedestal than that of other witnesses. However, the evidence of

P.W.1 is not per se implicitly reliable and confidence inspiring and it is,

therefore, necessary to search for corroboration to satisfy the conscious

of the Court that the offence is proved beyond reasonable doubt.

P.W.3 Prakash, who escorted P.W.1 to the matrimonial house, states

that at 12-30 p.m. he and Archana arrived at the house of the accused.

Accused Prabha quarrelled with P.W.1 Archana. Rest of the accused

were also there. The accused threatened that if P.W.1 Archana does

not go back, she will be set on fire. P.W.3 asked Archana whether she

was willing to come back and the response was that P.W.3 should go

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back and she will stay. This evidence is proved omission. That apart, if

such serious threats were really issued, the conduct of P.W.3 Prakash to

leave his sister P.W.1 in matrimonial house at the mercy of the accused

is unnatural. The evidence that two months prior to the incident the

accused assaulted Archana and she was admitted in the hospital of Dr.

Wali as indoor patient for eight days, is again an omission. The

evidence on harassment and beating in connection with monetary

demand, is hearsay.

11. P.W.2 Babibai has deposed that Archana was harassed for

monetary demand of Rs.10, 20 and 50 thousand and that prior to two

months of the incident she was driven out of the house by the accused.

In the cross-examination, she admits that she stated before

the police that Archana told her that she was treated well for one year.

12. The prosecution witnesses have admitted that there is only

one entrance and exit to the residence of the accused. P.W.4 Renuka is

a neighbour who has deposed that on hearing commotion, she reached

the first floor of the building and saw P.W.1 burning. Another

neighbour Pushpa (P.W.5) joined her and since her husband Narendra

owns auto-rickshaw, P.W.1 Archana was taken to the Mayo Hospital in

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the auto-rickshaw. P.W.4 states that P.W.1 was shouting "save, save".

She admits in the cross-examination that when she entered the house

of the accused and saw Archana burning, none of the accused was

present. Similar is the deposition of P.W.5 Pushpa.

13. On a holistic appreciation of the evidence on record, it is

difficult to record a finding that the prosecution has proved the offence

beyond reasonable doubt. The evidence is not compatible only with

the guilt of the accused. The version of the prosecution is rendered

doubtful in view of the inconsistencies, discrepancies and

embellishments which are noted supra. The benefit of such doubt,

must be given to the accused. The conviction cannot be recorded on

suspicion, howsoever strong the suspicion may be. The deposition of

P.W.1 Archana that even after the incident, she was desirous of

residing with accused Raju separate from the other family members, is

of some significance since even in the tradition bound Indian society, a

victim of attempt to murder would rarely, if at all, desire to cohabit

with the person who attempted to kill her.

14. In the light of the discussion supra, I am impelled to give

the benefit of doubt to the accused and to hold that the prosecution has

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not established the offence punishable under Sections 498-A and 307

read with Section 34 of the IPC beyond reasonable doubt.

15. The judgment and order impugned is set aside.

16. The accused are acquitted of the offence punishable under

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

17. The bail bonds of the accused shall stand discharged.

18. Fine paid by the accused, if any, be refunded to them.

19. The appeal is allowed.

JUDGE adgokar