Bombay High Court
The State Of Maharashtra vs Rajesh Sadashiv Dhaware And Ors on 25 February, 2021
Bench: Prasanna B. Varale, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 140 OF 2002
The State of Maharashtra
(Through the police of Rajarampuri
Police Station, Kolhapur) ... Appellant
( Ori. Complainant)
V/s
1. Rajesh Sadashiv Dhaware
Age- 33 yrs.
2. Sadashiv Sawalarama Dhaware
Age- 60 yrs.
3. Ashok @ Ajit Sadashiv Dhaware
Age- 26 yrs.
All residents near the Mosque of
Vikramnagar, Kumbhar Chal,
Kolhapur. ... Respondents
(Ori. Accused ).
Mr. H. J. Dedhia, APP for the State-Appellant.
Mr. Pratap Patil, for Respondent Nos. 1 to 3.
CORAM : PRASANNA B. VARALE &
V. G. BISHT, JJ.
DATE : 8th DECEMBER, 2020.
JUDGMENT (PER : V. G. BISHT, J.)
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This Appeal is filed by the State challenging the judgment and
order of acquittal dated 30th June, 2001 passed in Sessions Case No. 143
of 1999 by 4th Ad-hoc Assistant Sessions Judge, Kolhapur, for the
offences punishable under Sections 498A, 304B, 306, 323 and 504 read
with 34 of the Indian Penal Code 1860 ( for short "IPC").
2 The prosecution case in short is as under:
(a) On 18/04/1999 one Usman Bapu Mujawar, Police
Head Constable (PW-8), was attached to Rajarampuri Police
Station. PSO Mr. Nimbalkar received a message that a
patient of burn is admitted in the hospital and accordingly
he deputed PW-8 Head Constable to C.P.R. hospital for
recording the statement of that patient. Accordingly, PW-8
visited the C.P.R. hospital, Kolhapur and met Medical Officer,
namely, Dr. Reshma Paygonda Patil (PW-6). PW-6 Medical
Officer examined the patient in his presence and after
verifying that the patient was conscious and able to give her
statement and accordingly gave her endorsement
whereupon PW-8 recorded the statement of the patient
(Exh. 44), which after the death of the patient came to be
treated as her dying declaration and FIR as well.
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(b) It appears from the dying declaration that Vasanti
Rajesh Dhaware (since deceased) was the wife of the
accused Rajesh Sadashiv Dhaware (A-1). Accused Sadashiv
Sawalarama Dhaware (A-2) is father-in-law while A-3 Ashok
@ Ajit Sadashiv Dhaware is brother-in-law of the deceased.
(c) In the dying declaration the deceased alleged that
after the marriage all the accused started ill-treating and
beating her on the ground that no honour was given to them
at the time of marriage. Prior to the main incident in
question, on Thursday a quarrel took place between the
deceased and A-2 on the ground as to why the dinner was
not adequate. A-3 was also present in the house while A-1
had gone on duty. It further alleges that A-2 expelled the
deceased from the house and therefore, she went to her
parents at Siddharth Nagar, Kolhapur. She returned only
after her husband rang her up. Her mother Aruna (PW-3)
accompanied her till the house of accused and at that time a
quarrel took place between her mother and A-1. After the
departure of the deceased's mother, she was beaten by her
husband.
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(d) It is then seen from the dying declaration that on the
day of incident i.e. on 18/04/1999 at about 2-00 p.m. her
husband came from duty and a quarrel took place between
her and her husband and thereafter husband left the house.
A-2 was sleeping in the house while A-3 had gone to other
city. Therefore, at about 3-00 p.m. being fed up with the
constant harassment and beatings given by all the accused,
she poured kerosene oil on her person and set herself on
fire. After hearing her commotion the neighbours rushed
and threw water on her person. She was then taken to the
hospital by A-1.
(e) It then appears from the record that on the basis of her
statement-cum-dying declaration PW-10 Khanderao
Atmaram Nimbalkar registered Crime No. 53 of 1999 under
Sections 498A, 323, 504 r/w 34 of the IPC with Rajarampuri
Police Station. However, as the deceased succumbed to the
burn injuries during the course of treatment, Section 304-B
came to be added.
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(f) It further appears from the record that after recording
of the statement of the deceased PW-8 Usman Bapu
Mujawar visited the scene of occurrence and prepared spot
panchanama and thereafter, he handed over further
investigation to PSI Vasanti Gopal Kamble (PW-12).
(g) PW-12, investigating officer, on her part, recorded the
statements of witnesses, prepared inquest panchanama
(Exh. 31) and then handed over further investigation to Mr.
Bhambure. After completion of the investigation
Mr.Bhambure submitted the charge-sheet against the
accused.
3 The prosecution in order to prove its case has examined as many
as 12 witnesses and exhibited number of documents. The respondents-
accused were questioned under Section 313 of the Code of Criminal
Procedure, 1973 (for short "the Cr.P.C.") about the incriminating
evidence and circumstances and they denied all of them as false.
According to them, a false case is filed against them at the instance of
relations of Vasanti (the deceased).
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4 Mr. Dedhia, learned APP for the appellant-State, vehemently
submitted that the learned trial judge ought to have appreciated the fact
that the incident had taken place within six years of the marriage of the
deceased with A-1 and as also the evidence led on the point of cruelty
and dowry demand. All the necessary ingredients of the offences
though duly established by adducing the evidence of the brother and
mother of the deceased and in addition the dying declaration of the
deceased, still the learned trial judge erred in coming to the conclusion
that neither evidence is satisfactory nor the dying declaration of the
deceased. If the whole evidence adduced by the prosecution coupled
with the dying declaration of the deceased is read in proper perspective
then there cannot be any conclusion other than that the accused were
responsible for the death of the deceased. In view of this, the impugned
judgment and order of acquittal needs to be quashed and set aside,
argued learned APP.
5 Per contra, Mr. Patil, learned counsel for the respondents-accused
opposed the submissions of the learned APP by contending that no fault
can be found with the impugned judgment and order of acquittal
inasmuch as it has taken into consideration all the infirmities and short
comings appearing in the prosecution evidence by the learned trial
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judge. At the same time, the learned trial judge has also given cogent
and convincing reason for not accepting the dying declaration which is
surrounded by suspicious circumstances. Thus, according to learned
counsel, the Appeal sans merits and deserves to be dismissed.
6 At the very outset, it may be noted that the death of the deceased
in question is not disputed. PW-7 Dr. Supriya Sambhajirao Jadhav, who
performed an autopsy over the dead body, states in her evidence
(Exh.41) that probable cause of death was due to shock due to 95%
mixed burns. As already noted that there is no quarrel as to the death as
also cause of death, the only question to be determined about is the
authorship of the death of the deceased.
7 Now, since the prosecution has come with a case of cruelty and
dowry death and before undertaking the exercise of assessment of
evidence led by prosecution, we think it appropriate to refer to Section
498-A and 304B of the IPC. The said provisions read as follows :
"498-A - HUSBAND OR RELATIVE OF
HUSBAND OF A WOMAN SUBJECTING HER TO
CRUELTY:
Whoever, being the husband or the relative of
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the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment
for a term which may extend to three years and
shall also be liable to fine.
Explanation : For the purposes of this section,
"cruelty" means
(a) Any willful 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".
8 The said provision came up for consideration in Giridhar Shankar
Tawade v. State of Maharashtra 1,where the Apex Court dwelling upon
the scope and purport of Section 498-A IPC has held thus:-
" The basic purport of the statutory provision is
to avoid 'cruelty' which stands defined by
attributing a specific statutory meaning attached
thereto as noticed herein before. Two specific
1 (2002) 5 SCC 177: (AIR 2002 SC 2078)
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instances have been taken note of in order to
ascribe a meaning to the word 'cruelty' as is
expressed by the legislatures: Whereas
explanation (a) involves three specific situations
viz., (i) to drive the woman to commit suicide or
(ii) to cause grave injury or (iii) danger to life,
limb or health, both mental and physical, and
thus involving a physical torture or atrocity, in
explanation (b) there is absence of physical
injury but the legislature thought it fit to include
only coercive harassment which obviously as the
legislative intent expressed is equally heinous to
match the physical injury : whereas one is
patent, the other one is latent but equally
serious in terms of the provisions of the statute
since the same would also embrance the
attributes of 'cruelty' in terms of Section 498-A."
9 Section 304B of the IPC reads as follows:
"304B. Dowry death.-- (1) Where the death of a
woman is caused by any burns or bodily injury
or occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before her
death she was subjected to cruelty or harassment
by her husband or any relative of her husband
for, or in connection with, any demand for
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dowry, such death shall be called "dowry death",
and such husband or relative shall be deemed to
have caused her death.
Explanation. --For the purpose of this sub-
section, "dowry" shall have the same meaning as
in Section 2 of the Dowry Prohibition Act, 1961
(28 of 1961).
2) Whoever commits dowry death shall be
punished with imprisonment for a term which
shall not be less than seven years but which may
extend to imprisonment for life."
10 Section 113B of The Indian Evidence Act, 1872
reads as follows:
"113B. Presumption as to dowry death.-- When
the question is whether a person has committed
the dowry death of a woman and it is shown
that soon before her death such woman has
been subjected by such person to cruelty or
harassment for, or in connection with, any
demand for dowry, the Court shall presume that
such person had caused the dowry death.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as
in section 304B, of the Indian Penal Code, (45 of
1860)."
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11 Thus, it can be seen that the offence created by Section 304B
requires the following elements to be present in order that it may apply:
I. Within 7 years of the marriage, there must
happen the death of a woman (the wife).
II. The death must be caused by any burns or
bodily injury.
OR
The death must occur otherwise than under
normal circumstances.
III. It must be established that soon before her
death, she was subjected to cruelty or harassment.
IV. The cruelty or harassment may be by her
husband or any relative of her husband.
V. The cruelty or harassment by the husband or
relative of the husband must be for, or in
connection with, any demand for dowry.
12 Section 304B treats this as a dowry death. Therefore, in such
circumstances, it further provides that husband or relative shall be
deemed to have caused her death. Section 113B of the Indian Evidence
Act, 1872 provides for presumption as to dowry death. It provides that
when the question is whether the dowry death, namely, the death
contemplated under Section 304B of the IPC, has been committed by a
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person, if it is shown that soon before her death, the woman was
subjected by such person to cruelty or harassment, for in connection
with, any demand for dowry, the Court shall presume that such person
had caused the dowry death. It is no doubt a rebuttable presumption
and it is open to the husband and his relatives to show the absence of
the elements of Section 304B.
13 The foremost aspect to be established by the prosecution is that
there was reliable evidence to show that the woman was subjected to
cruelty or harassment by her husband or his relatives which must be for
or in connection with any demand for dowry, soon before her death.
Before the presumption is raised, it must be established that the woman
was subjected by such person to cruelty or harassment and it is not any
cruelty that becomes the subject matter of the provision but it is the
cruelty or harassment for or in connection with, demand for dowry.
14 The aforesaid analysis of the provisions lay down how coercive
harassment can have the attribute of cruelty that would meet the
criterion as conceived of under Sections 498-A and 304B of the IPC.
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15 Keeping above analysis in mind, we now consider the evidence on
record.
16 PW-1 Sanjay Dinkar Kamble, brother of the deceased, states in his
evidence (Exh. 26) that the deceased was married to A-1 on
19/05/1994. As and when the deceased used to visit her parental
home, she used to inform him that the accused used to beat and ill treat
her. They were giving troubles to her on the ground that at the time of
marriage they were not honoured properly.
17 It is his further evidence that on 15/04/1999 the deceased came
to his house and told that she was beaten by her husband and in-laws
and was expelled from the house.
18 Adducing evidence on the point of main incident, PW-1 states that
on 18/04/1999 the accused persons had beaten Vasanti i.e. deceased. As
soon as he came to know about it, he rushed to C.P.R. hospital, Kolhapur
and found that the deceased was in a burnt condition. When he asked
the deceased about her condition, she told that due to ill treatment
given by all the accused she set herself on fire. She also told that as the
accused persons had abused her she poured kerosene on her person.
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19 Lastly, he states that when his sister was carrying pregnancy of six
months he was told that the accused-husband used to demand
Rs.50,000/- for purchasing a plot.
20 As far as the evidence of PW-1 brother pertaining to the
harassment given to the deceased after the marriage and on the ground
that the accused were not properly honoured at the time of marriage
ceremony is concerned, the same gets due corroboration from the dying
declaration. The dying declaration also shows that after the marriage
the accused used to harass her and beat her on the ground that they
were not honoured properly at the time of marriage ceremony.
Whatever has been declared in the dying declaration and as also by PW-
1 brother is nothing but a generalized statement without giving any
specific details of the harassment. Even assuming it to be so, we would
be considering the truthfulness and genuinity of the dying declaration at
some later stage.
21 Coming to the incident of 15/04/1999, as is deposed by PW-1
brother, it appears that on that day not only the deceased was beaten by
all the accused but was also expelled from the house. On the other
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hand, if the dying declaration is read carefully then it would show that a
quarrel had taken place between the deceased and her father-in-law i.e.
A-2 on the ground that there was no dinner left in the house. It further
shows the presence of brother-in-law i.e. A-3, however, A-1-husband was
not there and was out of the house in connection with his employment.
The dying declaration, as is deposed by PW-1 brother, nowhere alleges
that on 15/04/1999 the deceased was beaten by all the accused and
then was expelled from the house. The dying declaration simply shows
that because of the quarrel between the deceased and A-2 on the ground
as stated herein-above, she was expelled from the house by the latter.
22 Coming to the main incident of 18/04/1999, the evidence of PW-1
brother shows that on that day also the deceased was beaten by all the
accused but then this piece of evidence has come by way of omission
and when confronted in the cross-examination PW-1 insisted of having
said so before the investigating officer but the investigating officer-PW
12 in her cross-examination at para 4 has very categorically stated that
this witness had not stated before her that on 18/04/1999 the deceased
was beaten by all the accused.
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23 The main part of the evidence of PW-1 is that he was told by the
deceased that as the accused persons had abused her, she poured
kerosene on her person and set herself ablaze. This means and should
be taken seriously that the deceased was provoked by the accused
persons by abusing her and because of that provocation she got herself
ablazed after pouring kerosene on her person. We are disappointed to
note that no such reason behind the act of self immolation is
forthcoming in the dying declaration. All that dying declaration shows
is that since the deceased was fed up with the ill treatment and
harassment given by the accused, she took the extreme step of getting
herself ablazed.
24 Lastly, the only evidence adduced by PW-1 brother on the point of
alleged dowry demand is that he was also told by the deceased that her
husband (A-1) used to demand Rs.50,000/- from her for purchasing a
plot. Again we are unable to locate this serious accusation from the
dying declaration of the deceased. The dying declaration nowhere
alleges that A-1 husband at any point of time had demanded
Rs.50,000/- from the deceased for purchasing a plot. Even this piece of
evidence has come by way of omission on the record and again the said
omission is duly proved by PW-12, investigating officer, in her evidence
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at para 4. According to PW-12, investigating officer, PW-1 had not
stated before her that he was told by the deceased that there was
demand of Rs.50,000/- from the side of accused persons for purchasing
a plot.
25 Having regard to the above serious infirmities noted by us from
the evidence of PW-1 brother, we are absolutely not satisfied with the
testimony of this witness and therefore, would not like to place any
reliance on it.
26 PW-3 Aruna Dinkar Kamble, mother of the deceased, states in her
evidence (Exh. 32) that after the marriage the accused used to beat, ill
treat and expel the deceased from the house on the ground that they
were not honoured properly at the time of marriage. This fact was told
to her by the deceased herself.
27 On 15/04/1999 at about 10-00 p.m. the deceased came to her
house and told that accused Sadashiv (A-2) and Ajit (A-3) had picked up
a quarrel with her on the ground that as to why dinner was not there
and expelled her from the house. On the next morning, she took her
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daughter to the house of accused. She confronted A-1 as to why he had
driven out the deceased out of the house and at that time A-1 beat her
daughter with hands and also started expelling her from the house on
the ground that he was not honoured in the marriage.
28 Her evidence then shows that on 18/04/1999 she received a
message from A-1 that she should come at his house for taking lunch
(mahal dinner) means the lunch given after the death of a person.
When she started proceeding towards the house of accused, an auto
rickshaw came from opposite direction in which A-1 and her daughter,
who was wrapped in a bed-sheet, were there. In the said auto rickshaw
Manisha, daughter of her sister, was also found. She then asked the
deceased as to what had happened, to which she told that due to the
troubles given by husband, father-in-law and brother-in-law she poured
kerosene on her person and set herself on fire.
29 The evidence of PW-3 mother is somewhat on the line of PW-1 son
with an addition that the accused were also in habit of driving away the
deceased from the house on the ground that they were not honoured in
the marriage properly. This regular expulsion from the matrimonial
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house is neither the part of dying declaration nor that of evidence of PW-
1 son.
30 Then coming to the incident of 15/04/1999, according to PW-3
mother, on that day A-2 and A-3 had picked up a quarrel with the
deceased and thereafter, she was driven away from the house. The
dying declaration, on the contrary, nowhere implicates A-3. Similarly,
while the evidence of PW-1 shows that she was driven out from the
house after a beating by all the accused, no such evidence is adduced by
PW-3 mother. Her evidence nowhere shows that it is only after beating
given by all the accused, the deceased was driven away.
31 The evidence of PW3-mother then shows that when she
accompanied the deceased to the house of accused there again A-1
quarreled with the deceased, beat her and drove her away on the
ground that he was not honoured in the marriage. Interestingly, this
material piece of evidence neither gets corroboration from deceased's
own dying declaration nor from the mouth of PW-1 son.
32 Coming to the last part of her evidence, we note that when this
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witness asked the deceased in an auto rickshaw as to how she got burns
the latter replied that because of the troubles given by all the accused
she herself poured kerosene on her person and set on fire.
33 It is worth mentioning that in the evidence of this witness it is
nowhere explained the kind of troubles suffered and which compelled
the deceased to commit the suicide. As against this piece of evidence, if
we see the evidence of PW-1 brother, which we already have quoted,
then it would be seen that the provocation behind such an extreme step
of such self immolation was the abuses allegedly given by the accused to
the deceased. Thus, two very contradictory pieces of evidences are there
on record. Two different sets of reasons behind the self immolation by
the deceased are given by these witnesses,namely PW-1 brother and PW-
3 mother, which in a natural course could not have been.
34 For the aforesaid reasons, like PW-1, we are not encouraged by
the testimony of PW-3 mother.
35 PW-11 Manisha Sudheer Kale, who is niece of PW-3, states in her
evidence (Exh.49) that she was told by the deceased that accused used
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to ill treat her on the ground that they were not honoured properly at
the time of marriage ceremony. This is rather a very weak piece of
evidence like PW-1 and PW-3 and does not take further as to the
accusation of cruelty or for that matter dowry demand.
36 As far as incident dated 18/04/1999 is concerned, her evidence
shows that when she asked as to the injuries sustained by the deceased,
the deceased told that her husband had quarreled with her, abused and
beat her and left the house and therefore, feeling fed up she poured
kerosene on her person and set herself on fire. Again, this piece of
evidence runs counter to the contentions of the dying declaration.
Although dying declaration shows that some quarrel had taken place
between the deceased and her husband and then the husband had left
the house but it nowhere shows, as is deposed by PW-11, that in the said
quarrel A-1 husband had not only abused the deceased but had also
beaten her.
37 Surprisingly, the above piece of evidence has come by way of
omission inasmuch as the said fact was missing from the statement
recorded by the police. What is more surprising is that the investigating
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officer, who examined this witness during the course of investigation,
was not brought before the court for the reasons best known to the
prosecution. Therefore, the said omission could not be proved by the
defence for which the defence cannot be blamed. Even otherwise, we
have found how her oral version does not get corroboration from the
dying declaration. In such circumstances, this witness is also of no help
to the prosecution.
38 After having cleared the reliability and credibility of above-said
witness, we are now left with the dying declaration.
39 PW-8 Usman Bapu Mujawar states in his evidence (Exh.43) that at
the relevant time he was attached to Rajarampuri Police Station. PSO
Nimbalkar received a message on 18/04/1999 that the patient is
admitted in the C.P.R. Hospital in a burnt condition and, therefore, he
asked him to visit the C.P.R. Hospital and record the statement of the
said patient. It is his further evidence that he accordingly visited the
hospital. He along with Dr. Reshma Paygonda Patil (PW-6) went to the
ward. Dr. Patil examined the patient and put an endorsement to that
effect that the patient was conscious and was able to give her statement.
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She also put an endorsement to that effect and thereafter he recorded
the statement of the deceased. He then proved the statement at Exh.44.
40 Similarly, PW-6 Dr. Reshma Patil states in her evidence (Exh.38)
that on 18/04/1999 she was attached to C.P.R. Hospital, Kolhapur as a
Medical Officer. The deceased was admitted in her hospital at about
3.45 p.m. in a burnt condition. She examined her and found that the
patient was in a good condition for giving statement. Accordingly, she
made an endorsement before and after the completion of the statement.
41 From the evidence of PW-8, who recorded the statement of
deceased and as also PW-6 Medical Officer, it is very much clear that the
dying declaration of the deceased came to be recorded by PW-8 PHC in
the very presence of PW-6 Medical Officer. We are unable to
understand as to why either of these two witnesses have not deposed as
to what was the nature of the dying declaration allegedly given by the
deceased. Even PW-8, who recorded the dying declaration, nowhere
states in his whole evidence as to what was told to him by the deceased
that is to say under what circumstances the deceased suffered burn
injuries. If we have to read the contents of the dying declaration which
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we have already pointed it out exhaustively from the oral evidence of
material witnesses, namely, PW-1 brother and PW-3 mother as to how
the dying declaration or for that matter their oral testimonies vis-a-vis
the dying declaration do not get satisfactory corroboration. Here it is
not the case that the case is only based on dying declaration and not the
oral evidences of the eye witnesses, namely, PW-1 and PW-3.
42 The said dying declaration becomes more questionable
particularly, when the main accusation of cruelty and dowry demand
allegedly at the hands of accused are not convincingly established by the
prosecution. There is absolutely no evidence that soon before the death
of deceased she was subjected to cruelty by the accused persons in
connection with demand of the dowry. It is also to be noted pertinently
that Section 498A does not contemplate every kind of cruelty which is
made punishable by said section. It involves the specific contingencies,
viz., (i) to drive the woman to commit suicide (ii) to cause grave injury
or (iii) danger to life, limb or health, both mental and physical, and thus
involving a physical torture or atrocity. Similarly, it also involves
coercive harassment with a view to meet any unlawful demand for any
property or valuable security or is on account of failure by her or any
related person to her meet any such demand.
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43 None of above ingredients are clinchingly brought on record by
the prosecution. In such circumstances, no presumption can be raised
under Section 113-B of the Indian Evidence Act, 1872.
44 On re-appreciating the evidence on record, we are of the
considered view that the evidence of PW-1 brother and PW-3 mother is
not upto the mark. It is not inspiring and reliable. So is the case with
dying declaration, if juxtaposed the oral testimonies.
45 The learned trial judge has considered aforesaid legal and factual
aspects in its proper perspective. As such, the impugned judgment and
order does not warrant interference and deserves to be maintained.
46 In the result, we find no merit in the appeal and accordingly the
appeal stands dismissed.
(V. G. BISHT, J.) ( PRASANNA B. VARALE, J.)
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