The State Of Maharashtra vs Tanaji Khashaba Jagtap
2021 Latest Caselaw 419 Bom

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                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CRIMINAL APPELLATE JURISDICTION
                                           CRIMINAL APPEAL NO.1352 OF 2008


                The State of Maharashtra                 )
                (through Police Station, Vita Crime      )
                Register No.73/2007)                     )          ..Appellant

                           V/s.

                Tanaji Khashaba Jagtap                   )
                Age 46 years, Occupation Labour,         )
                Resident of Bhakuchiwadi,                )
                Taluka Khanapur, District Sangli         )          ..Respondent
                                                                    (Org. Accused)

                Mrs. Anamika Malhotra, APP for State
                None for Respondent


                                                   CORAM : K.R.SHRIRAM, J.

DATED : 8th JANUARY 2021

ORAL JUDGMENT.:-

1 This is an appeal impugning an order and judgment dated 30-01-2008

passed by the Learned Ad-hoc District Judge-2 and Additional Sessions

Judge, Sangli acquitting accused of offences punishable under Section 498A

(Husband or relative of husband of a woman subjecting her to cruelty),

Section 306 (Abetment of suicide), Section 323 (punishment for voultarily

causing hurt) and Section 504 (intentional insult with intent to provoke

breach of the peace) of the Indian Penal Code.

2 The deceased Latabai had married accused in 1984. It is prosecution's

case that accused used to be an alcoholic who would get drunk and demand

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money from Latabai and if, she did not give, would mentally and physically

abuse her. Latabai and accused had three children, all grown up. 23 years

after marriage on 19-6-2007, Latabai was so upset with the constant abuse

and alcohol addiction of accused that she committed suicide by pouring

kerosene on herself and setting it on fire. In the intervening night of 19-6-

2007 and 20-6-2007 Latabai died. According to prosecution Latabai died at

1.30 a.m. on 20-6-2007 but documents indicate that she died at 10.30 p.m.

on 19-6-2007.

3 After pouring kerosene and setting herself on fire, Latabai started

screaming and shouting at which time accused extinguished fire by

wrapping her in the blanket. In the bargain, accused also got burn injuries

and was admitted in the same burn ward as Latabai. Immediately, the

brother-in-law of Latabai with the help of few other relatives, took Latabai

in jeep to Civil Hospital Sangli, where Latabai was admitted and treatment

commenced. Statement of Latabai was recorded as dying declaration by

P.W.-3 in the presence of P.W.-6 Dr. Salgotra. Based on the dying declaration

offence was registered and further investigation was carried out. P.W.-10

who was the Investigating Officer visited the spot and prepared spot

panchnama, seized articles that were found at the spot, recorded the

statement of witnesses etc., and after investigation, submitted the charge

sheet. Subsequently charges were framed and accused pleaded not guilty

and claimed to be tried.

According to accused he and Latabai were extremely happy with each

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other, he never drank alcohol and the incident occurred at about 10-10.30

p.m. when Latabai was cooking and due to flames from the stove her dress

caught fire. While trying to extinguish the fire, he also suffered burn

injuries. Accused denied he ever beat Latabai. According to accused

because he refused to cultivate the land of Latabai's brother they were

deposing falsely against him. According to accused, the brother of Latabai

in collusion with police and doctor have prepared false dying declaration of

Latabai. Dying declaration as recorded by prosecution is false. Accused also

stated that on 19-6-2007 he, Latabai and his sister in law Pushpa (P.W.-4)

had gone to the house of Latabai's parents to attend a fair and returned only

at about 8.30 to 9.00 p.m. Accused says that Latabai was in a very happy

mood. Thereafter, the incident happened as mentioned above, when Latabai

was cooking and despite his best efforts he could not save Latabai.

4 To drive home the charge, prosecution has led evidence of 10

witnesses. Prosecution has also relied on an agreement dated 20-2-2007

entered into between accused and Latabai, at the instance of the father of

Latabai, to submit that accused was an alcoholic and used to beat Latabai

when drunk and accused had promised to behave himself well, which

promise was broken.

5 P.W.-2 Dilp Mohite is the bother of Latabai and in his evidence he has

made lot of allegations against accused, but he also admits that one day

prior to the incident, i.e., on 19-6-2007, Latabai P.W.-4 and accused had

been to their house to attend the local fair and they were at his house until

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7 to 7.30 p.m. P.W.-2 has specifically admitted that Latabai went back home

happily. Incident of fire happened at 10.30 p.m. and, therefore, few hours

before the incident also Latabai was in a happy mood. That raises a doubt

as to whether the incident really occurred as alleged by prosecution.

6 P.W.-2 has admitted that Latabai was admitted in the hospital in a very

serious condition and he and his relatives were near Latabai in the ward.

According to P.W.-2 Latabai narrated about the incident after getting down

from the vehicle when he was near to Latabai for 15 to 20 minutes. I find

that rather strange because there is no explanation from prosecution as to

why Latabai could not have told the witnesses when they were in the jeep

together as to what happened. P.W.2 also stated that Latabai's sons were not

in cordial terms with accused. If that was the case, why even one of the

sons of Latabai and accused was not called to give evidence to prove that

accused used to ill treat Latabai. It is very relevant because marriage

happened in 1984 and Latabai died in June 2007. As regards the agreement

Exhibit 16 dated 20-2-2007, the same has been executed one year and four

months before Latabai committed suicide. Prosecution's case of accused

used to beat Latabai and demand money for alcohol and if she did not give

accused would beat, is not found in the agreement Exhibit 16. Therefore,

one can safely conclude that prosecution has improved its case to say that

accused was demanding money.

7 P.W.3 has admitted that the information which was given by Doctor

was recorded in station diary of Vishrambag police station and the letter

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Exhibit 19 was given to him on the basis of the entry made in the station

diary. P.W.-3 does not produce the station diary. P.W.-3 has denied in his

cross-examination that the relatives of Latabai, like her brother, mother etc.,

were present when he went to the hospital for recording statement of

Latabai. But P.W.-2 says that after admitting Latabai in Civil Hospital and till

her death, he was near Latabai.

8 Exhibit 18, dying declaration runs into 34 to 35 lines. Admittedly,

Latabai had 98% burn injuries. Considering the nature and extent of burn

injury, I wonder whether Latabai really in a condition to give statement

which runs into 34/35 lines. Even next to the thumb impression of Latabai,

there is no signature of any person attesting the signature. The

endorsement in the dying declaration says 6.00 a.m. to 6.30 a.m. at the

bottom. Even if we assume that incident happened at 1.30 p.m. as alleged

by prosecution, the question that arises is even after suffering 98% burn

injuries, was Latabai in a position to give a statement running into 34/35

lines particularly when nowhere it is stated by prosecution that while being

taken to hospital in the jeep Latabai had made any grievances against

accused in the presence of all other who were travelling with her in the jeep.

9 P.W.-4 in her further evidence has deposed that at about 1.00 to 1.30

a.m in the night when she was asleep, she heard the shouts to the effect

"mala wachava mala wachava" (save me save me) and when she came out

of her house the fire had been extinguished and there were 15 to 20 persons

who had gathered. Strangely, P.W.-4 says she did not know who all those

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people were. P.W.-4 says that when she asked Latabai to whom she should

inform, Latabai told her to inform her family at Narsewadi. According to

P.W.-4 Latabai was found lying on the road. P.W.-4 took her to the house.

However, none of the witnesses have stated that Latabai was lying on the

road. P.W.-4 who was constantly with Latabai, has also not stated that

Latabai informed her about the grievances against accused. More

particularly P.W.-4 says both palms of Latabai were burnt and skin of fingers

of Latabai was removed. In that case, I wonder how Latabai's thumb

impression have been taken.

10 P.W.-6 Dr. Salgotra states that constable asked some questions to

Latabai and Latabai replied to the said questions. But P.W.-3 in his evidence

nowhere stated that he put questions to Latabai and Latabai replied to the

questions. Dying declaration is in narrative form and not in question and

answer form.

11 P.W.-6 admits that before admitting the patient in a particular ward,

the patient is to be taken to casualty ward and there in casualty ward a

register is maintained and in the said register CMO used to make entry

regarding the period and date on which patient is admitted and history of

the patient is also used to be taken in casualty ward. P.W.-6 also admits that

in the register as regards history of the incident there is a reference "due to

stove" in connection with the injuries sustained by Latabai. P.W.-6 also

admits that in the said history word "kerosene" is mentioned later on by

scoring the previous word and the correction is signed by him. This a fatal

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blow to the prosecution's case because if Latabai had actually poured

kerosene on herself and set herself on fire, certainly there would not have

been a mention in the history about stove. P.W.-6 says that Latabai had

suffered 98% burn injuries and all parts of body had burns except some

portion of the sole and palm. Exhibit 25, the medical report, is full of over

writing. So far as the date and time is concerned, in case papers it has been

mentioned that patient came with burns at 10.30 p.m. on 19-6-2007, due to

stove. Considering these averments in the case paper and reference to stove

in the history, it is rather difficult to accept that the incident occurred at

1.30 a.m. on the intervening night of 19-6-2007 and 20-6-2007, when

Latabai poured kerosene on herself and set herself on fire. Even evidence of

P.W.-7 is unreliable.

12 Considering all the above said aspects and as the evidence is rather

vague and silent so far as the offence punishable under Section 323 and 504

is concerned, it is rather difficult for me to hold that the prosecution has

proved those offences also against accused. As Latabai was married to

accused in the year 1984 and as the prosecution has not examined any son

of deceased Latabai and the document Exhibit 16 is silent so far as

demanding amount by accused to Latabai is concerned, it is rather difficult

for me to hold that the prosecution has proved an offence against accused

under Section 498-A of Indian Penal Code. There is inconsistency in

evidence regarding the manner in which the incident occurred. There is no

sufficient and reliable evidence to accept the case of prosecution that the

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incident occurred at about 1.30 a.m. Therefore, considering all these

aspects, it is rather difficult for me to hold that prosecution has proved an

offence punishable under Section 306 of Indian Penal Code against accused.

Thus, I hold that prosecution failed to prove any sort of offence against

accused by giving sufficient, cogent and reliable evidence on record.

13 The Apex Court in Ghurey Lal V/s. State of U.P.1 has culled out the

factors to be kept in mind by the Appellate Court while hearing an appeal

against acquittal. Paragraph Nos.72 and 73 of the said judgment read as

under :

72. The following principles emerge from the cases above :

1. The appellate court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.

73. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial

1. (2008) 10 SCC 450 Meera Jadhav 9/11 2. apeal-1352-08.doc

court's decision. "Very substantial and compelling reasons" exist when :

i) The trial court's conclusion with regard to the facts is palpably wrong;

ii) The trial court's decision was based on an erroneous view of law;

iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

v) The trial court's judgment was manifestly unjust and unreasonable;

vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.

vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

14 The Apex Court in many other judgments including Murlidhar & Ors.

V/s. State of Karnataka2 has held that unless the conclusions reached by the

trial court are found to be palpably wrong or based on erroneous view of the

law or if such conclusions are allowed to stand they are likely to result in

grave injustice Appellate Court should not interfere with the conclusions of

the Trial Court. Apex Court also held that merely because the appellate

court on re-appreciation and re-evaluation of the evidence is inclined to take

a different view, interference with the judgment of acquittal is not justified if

the view taken by the trial court is a possible view.

2. (2014) 5 SCC 730 Meera Jadhav 10/11 2. apeal-1352-08.doc

We must also keep in mind that there is a presumption of

innocence in favour of respondent and such presumption is strengthened by

the order of acquittal passed in his favour by the Trial Court.

The Apex Court in Ramesh Babulal Doshi V/s. State of Gujarat3

has held that if the Appellate Court holds, for reasons to be recorded that

the order of acquittal cannot at all be sustained because Appellate Court

finds the order to be palpably wrong, manifestly erroneous or demonstrably

unsustainable, Appellate Court can reappraise the evidence to arrive at its

own conclusions. In other words, if Appellate Court finds that there was

nothing wrong or manifestly erroneous with the order of the Trial Court, the

Appeal Court need not even re-appraise the evidence and arrive at its own

conclusions.

15 I do not find anything palpably wrong, manifestly erroneous or

demonstrably unsustainable in the impugned judgment. From the evidence

available on record, there is nothing to substantiate the charge leveled

against the accused.

16 There is an acquittal and therefore, there is double presumption in

favour of the accused. Firstly, the presumption of innocence available to the

accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by

a competent court of law. Secondly, the accused having secured acquittal,

the presumption of their innocence is further reinforced, reaffirmed and

3. 1996 SCC (cri) 972 Meera Jadhav 11/11 2. apeal-1352-08.doc

strengthened by the Trial Court. For acquitting the accused, the Trial Court

observed that the prosecution had failed to prove its case.

17 In the circumstances, in my view, the opinion of the Trial Court cannot

be held to be illegal or improper or contrary to law. The order of acquittal,

in my view, cannot be interfered with. I cannot find any fault with the

judgment of the Trial Court.

18       Appeal dismissed.



                                                     (K.R. SHRIRAM, J.)




     Meera Jadhav