Bombay High Court
Uttam Narayan Wathore And Anr vs State Of Maha on 9 August, 2024
2024:BHC-AUG:17492
{1} CR APPEAL NO. 610 OF 2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 610 OF 2003
1. Uttam Narayan Wathore
Age: 24 years, Occu.: Labour,
R/o. Nur Patel Vasti,
Jogeshwar Shivar,
Tq.Gangapur,
Aurangabad.
2. Gautam Narayan Wathore
Age: 20 years, Occu.: Labour,
R/o. As above. ....Appellants
(Orig Accu. Nos.1 & 2)
Versus
. The State of Maharashtra .....Respondent
.....
Advocate for Appellant : Mr. Nilesh S. Ghanekar
APP for Respondent : Mrs.Uma S.Bhosale
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 24 JULY, 2024
PRONOUNCED ON : 09 AUGUST, 2024
JUDGMENT :
-
1. Appellants assail judgment and order passed by the learned
Sessions Judge, Aurangabad in Sessions Case No.58 of 2001 dated
21-08-2003 thereby convicting both appellants for offence under
Sections 498-A, 307 read with 34 of the Indian Penal Code (IPC).
{2} CR APPEAL NO. 610 OF 2003
CASE OF PROSECUTION IN BRIEF
2. Victim Manisha @ Vandana was married to appellant no.1
Uttam on 07-03-1999. She went to cohabit with him at Waluj and
there she resided with appellant no.1 husband as well as brother-in-
law i.e. appellant no.2. According to prosecution, marriage was
decided to perform by fixing dowry of Rs.16,000/- and out of it,
Rs.15,000/- was paid at the time of marriage and Rs.1,000/-
remained balance. After about a month or two, husband suspected
fidelity of victim and even took her for medical check up i.e.
suspecting her pregnancy. Thereafter, both appellants put up demand
of Rs.10,000/- for purchase of Auto Rickshaw, which they wanted
victim to bring it from her father and on such count, there was ill-
treatment. They beat her by fist and kick blow. On 16-05-1999, in
the backdrop of above demand, accused no.1 husband poured
kerosene on person of victim and his brother accused no.2
incinerated her. When she raised hue and cry, out of fear, she was
taken to hospital. When undergoing treatment, statement exh.14
was recorded. Crime was registered, investigated and on completion,
both appellants were chargesheeted and tried by the learned Sessions
Judge, who appreciated oral testimonies of as many as eight
witnesses and also relied on documentary evidence. After answering
{3} CR APPEAL NO. 610 OF 2003
questions under Section 313 of the Code of Criminal Procedure,
accused also adduced evidence of two witnesses.
Learned Trial Judge analyzed and appreciated the evidence
adduced by both the parties and reached to a conclusion that
prosecution has succeeded in bringing home the charges for offence
under Sections 498-A as well as 307 read with 34 of the IPC and
sentenced them to suffer rigorous imprisonment for five years and to
pay fine. Such judgment dated 21-08-2003 is questioned by filing
instant appeal.
SUBMISSIONS
On behalf of appellants :
3. Taking exception to the conviction, learned Counsel for the
appellants would point out that here prosecution has failed to
establish the charges beyond reasonable doubt. According to learned
Counsel, there is weak or no evidence on the point of cruelty.
Learned Counsel took this Court through the testimony of PW4
Manisha / victim and her father PW6 Datta and submitted that they
are making vague and omnibus allegations of demand. He pointed
out that when out of alleged demand of Rs.16,000/- fixed as dowry,
Rs.15,000/- were admittedly paid, why could there be demand of
{4} CR APPEAL NO. 610 OF 2003
remaining Rs.1,000/- only. Learned Counsel pointed out that there
are allegations of demand for purchasing Auto Rickshaw, but
according to learned Counsel, there are allegations of demand of only
Rs.10,000/-, so he questions whether such vehicle can at all be
purchased at such price. Therefore, he alleges false allegations on
fabricated and concocted version. Taking this Court through the
testimony of father i.e. PW6 Datta, it is pointed out that father does
not speak about suspicion of character as alleged by his victim
daughter. That even allegation of demand of Rs.10,000/- are
attributed by father to only appellant no.1 and not to appellant no.2,
who is named by victim and therefore, learned Counsel submits that
evidence of PW6 Datta / father and PW4 Manisha / victim is not
consistent and not lending support to each other.
4. He next submitted that here in this case, victim was not happy
with the marriage. She had written a chit exh.17 to her father.
Witness in whose presence and at whose instance, the chit was
marked, is examined by defence. That the contents of the chit show
that victim herself was unhappy and was planning to end up her life.
That father has admitted receiving such chit and therefore, learned
Counsel pointed out that when the contents of the chit itself show
{5} CR APPEAL NO. 610 OF 2003
that she was herself on her own accord planning to end up her life,
how prosecution could allege offence of Section 307 of the IPC.
5. Learned Counsel further pointed out that DW1 Ramdas
independent witness i.e. neighbour is not marking presence of
accused no.2 at the spot. Accused no.1, who had reached the spot at
the time of incident from duty and doused the fire and he has also
suffered injury to his hands and even Police Officer admitted that at
the time of arrest, accused no.1 had burns. On the strength of same,
learned Counsel pointed out that when husband himself has doused
the fire and suffered injury, and when he himself has taken her to
hospital, whether case of prosecution that accused no.1 poured
kerosene and set victim on fire, could at all be believed.
Learned Counsel also questions the so called statement of
victim exh.14 by stating that firstly, it is not recorded promptly and
secondly, it was recorded during presence of parents of victim on the
next day and therefore, there is every possibility of victim being
tutored to falsely implicate the appellants husband and brother-in-
law.
6. Lastly, criticizing the findings and observations of learned trial
Court, learned Counsel submits that learned trial Court has failed to
{6} CR APPEAL NO. 610 OF 2003
appreciate the available evidence in its correct perspective. That
inspite of weak and fragile evidence, prosecution case has been
accepted. That law on appreciation of evidence has not been applied
and therefore, prayers are raised for allowing the appeal.
On behalf of State :
7. Countering the above submissions, learned APP submitted that
prosecution had cogently and firmly established the charges. She
pointed out that barely after one month, husband suspected fidelity
of victim. That demand of Rs.10,000/- was made and both accused,
who are brothers and resided jointly, had put up the demand. That
victim has alleged beating at their hands. Thus there is evidence of
both physical and mental cruelty. That victim was set to fire on
account of refusing to bring Rs.10,000/- for purchase Auto Rickshaw.
That her father to whom she had reported about demand and ill-
treatment is also examined by prosecution. Therefore, according to
learned APP, there is sufficient evidence in support of charge of
Section 498-A of the IPC.
As regards to charge of Section 307 of the IPC is concerned,
she pointed out that victim has categorically stated in her statement
that husband poured kerosene and brother-in-law set her on fire.
{7} CR APPEAL NO. 610 OF 2003
That though they doused the fire, it was merely out of fear and that
victim has stated to that extent. That victim has suffered 40% burns.
That it was a clear offence of attempt to commit murder and
therefore, learned trial Court has rightly upheld the charges as
proved and hence, she prays to dismiss the appeal for want of merits.
PROSECUTION WITNESSES
8. In support of its case, prosecution has examined as many as
eight witnesses. Sum and substance of their evidence is as under :
PW1 Syed Ayub Syed Noor is Pancha to spot panchanama
exh.9 deposed that on 18-05-1999, in his presence, Police drew
panchanama and seized pieces of saree, pieces of bangle, match box,
stole, a plastic can.
PW2 Sindhubai w/o Ramdas Kuvar claimed to be a neighbour
and deposed that hearing shouts and commotion, she and her
husband arrived to the house of appellants. That victim was in the
flames. That she and her husband doused the fire. Thereafter, she
deposed that she had not seen accused nos.1 and 2 and therefore,
she became hostile and subjected to cross-examination by learned
APP and learned Counsel for defence.
{8} CR APPEAL NO. 610 OF 2003
PW3 Dhondappa Bhaurao Kamale (PSI) is the Police Official,
who visited spot and drew spot panchanama exh.9.
PW4 Manisha Uttam Wathore is the victim. She deposed that
after a month or two, husband as well as his brother started
suspecting her fidelity. She was taken to the hospital at Pandharpur
for physical examination on suspicion of pregnancy. Thereafter, both
accused asked her to bring Rs.10,000/- as their income was said to
be insufficient. Accused no.3 also on 2-3 occasions asked her to
bring Rs.10,000/- for purchasing Auto Rickshaw. On 16-05-1999,
husband and brother-in-law, at around 06:00 p.m., asked her to go to
her father's place and to bring Rs.10,000/- for purchasing Auto
Rickshaw. On refusal, they both beat her by kick and fist blows and
on same night, at 10:00 p.m. husband poured kerosene and brother-
in-law ignited her.
PW5 Damodhar Vithoba Adhane, Police Head Constable, who
recorded exh.14 deposed about visiting hospital and recording
statement of victim.
PW6 Datta Nagoji Ghodke, father of victim stated that after 8-
10 days of marriage, his daughter told about demand of Rs.10,000/-
{9} CR APPEAL NO. 610 OF 2003
by accused no.1 for purchasing Rickshaw. That after 15 days, again
she came with her husband and both demanded amount for
purchasing Rickshaw. He stated that she informed that she was ill-
treated by husband and brother-in-law. He learnt about the incident
and went to the hospital. On the next morning, at around 08:00 a.m.
to 09:00 a.m., she told that husband poured kerosene on her person
and brother-in-law ignited her.
PW7 Shabbir Abbasali Kazi is the Investigating Officer.
PW8 Dr.Satish Ramnarayan Mundada is the Doctor, who gave
treatment to victim.
DEFENCE WITNESSES
9. Defence has also adduced evidence of two witnesses :
DW1 Ramdas Bhivsan Patil is neighbour of accused. He stated
that he was residing in the neighbourhood of accused. That night,
there was no electricity supply. That while he was sitting outside the
house, there was burst of stove and Manisha was caught by fire.
That he and his wife rushed to the spot, at that time, one Ayub came
and extinguished the fire. That time, accused Uttam returned from
the duty and Manisha was taken to hospital at Waluj as well as
Pandharpur, but they refused to take her and so she was taken to
{10} CR APPEAL NO. 610 OF 2003
Dr.Mundada.
DW2 Tulshiram Ramrao Narvade is relative of accused. He
stated that on 16-05-1998 while he and one Ramesh Salve visited
house of Nagorao, some talks were going on regarding a chit, which
he identified and was marked as exh.17.
ANALYSIS
10. As regards to charge of Section 498-A is concerned, the
evidence of PW4 Manisha / victim and her father PW6 Datta is of
significance.
PW4 Manisha, victim in her evidence at exh.13 deposed that
her husband earned Rs.1,500/- per month and his brother earned
Rs.1,000/- per month and on such income, they were leading happy
life. However, according to her, after a month or two, husband and
his brother started suspecting her fidelity. That husband suspected
that she was carrying pregnancy and he took her to the hospital at
Pandharpur. Thereafter, she alleges that both accused told that
income from their work is insufficient and she should demand
Rs.10,000/- from her father for purchasing Auto Rickshaw. She has
alleged that cousin of accused husband namely Shamrao also raising
demand of Rs.10,000/- and instigating husband to put up such
{11} CR APPEAL NO. 610 OF 2003
demand. Then she has levelled allegations regarding occurrence
taking place in the evening and night of 16-05-1999. She claimed
that in the evening, both accused asked her to go to her father and
bring Rs.10,000/-. She alleges that on refusal, they both gave her
kick and fist blows. Then, she narrated about the occurrence of
burns at 10:00 p.m.
While under cross-examination, she is unable to state to which
Doctor she was taken by accused at Pandharpur for examination.
She denied that marriage was against her will and wish. She denied
writing exh.17 letter. She expressed her ignorance about husband
calling any quotation for purchasing Auto Rickshaw.
Omission is brought regarding accused no.3 on 2-3 occasions
asking her to bring Rs.10,000/-. Remaining cross-examination is on
the points of burns suffered by her.
11. PW6 Datta, father of victim, who is examined at exh.21 stated
that after 8-10 days after marriage, his daughter came and told that
husband has demanded Rs.10,000/- for purchasing Auto Rickshaw. It
is to be noted that allegation of demand of Rs.10,000/- are restricted
and levelled only against appellant no.1 husband and not against
appellant no.2 brother-in-law as reported by victim. He merely
{12} CR APPEAL NO. 610 OF 2003
speaks that his daughter narrated that there was ill-treatment to her.
In what form, there was ill-treatment and when has not been stated
by him.
In paragraph no.5 of cross-examination, he admitted that
during first visit of his daughter, she did not tell that accused were
demanding amount and she simply told that there was ill-treatment.
Therefore, on careful analysis, it is emerging that evidence of
PW4 Manisha, victim and her father PW6 Datta on the point of
offence under Section 498-A of the IPC is ambiguous in nature.
They are not quoting specific instances. PW4 Victim is alleging
beating by kick and fist blows, whereas PW6 father does not utter
about it. PW6 father alleges demand only to accused no.1 husband
and not to accused no.2, brother-in-law, as is deposed by his
daughter. Therefore, with such quality of evidence, cruelty as
contemplated under law, has not been proved beyond reasonable
doubt.
12. As regards charge of Section 307 of the IPC is concerned, it is
seen that apart from evidence of victim, there is also evidence of
neighbours, who are examined both by prosecution as well as by
defence. On the point of charge of Section 307 of the IPC, victim has
{13} CR APPEAL NO. 610 OF 2003
stated that on 16-05-1999, husband and brother-in-law did not go
for work. That at around 06:00 p.m. they both said her to go to
father's place and bring Rs.10,000/- for purchasing Auto Rickshaw.
When she refused to go, she alleges that both accused beat her with
kick and fist blows. That she did not receive any visible injury. On
same night at 10:00 p.m. she alleges that while she was sitting,
accused no.1 husband poured kerosene on her person from a Can
and accused no.2 brother-in-law ignited her by match stick. That
only when she raised shouts, out of fear, husband poured water and
extinguished fire. That neighbours also came and tried to extinguish
the fire and she was taken to hospital. She deposed that on the next
day i.e. on 17-05-1999, at around 09:30 a.m., her statement was
recorded by Police, which she identified to be at exh.14.
On the point of occurrence, in paragraph 8 of cross-
examination she admitted that husband poured water but volunteers
that it was due to fear. She also admitted that husband also
sustained burn injuries while extinguishing the fire and that both
accused and two neighbours took her to the hospital. In cross-
examination, she answered that she narrated Doctor about the burns
and that husband set her on fire. Therefore, while under cross-
examination, she has not attributed any role to appellant no.2 -
{14} CR APPEAL NO. 610 OF 2003
brother-in-law.
13. PW6 Datta, father of victim claimed that he learnt from
accused no.3 about burns suffered by his daughter and so they
rushed to hospital. According to him, she was not in a position to
speak. On next morning at around 08:00 a.m. to 09:00 a.m. she was
able to talk and at that time, she narrated that husband poured
kerosene on her person and his younger brother ignited her by a
match stick. He stated that Police came there and they asked him to
go out of the hospital.
While under cross-examination, he has admitted that accused
persons were sitting near his daughter in the hospital. He denied
having stated portion marked "A" and answered that he did not
inform Police in his statement about meeting his daughter on next
day. He answered that he saw Police for the first time in the hospital
on the next day morning.
14. Apart from above oral account, here there is statement of
victim recorded by PW5 Adhane, Police Head Constable and the same
is marked as exh.14 and the translated version of the same is as
under :
{15} CR APPEAL NO. 610 OF 2003
"Exhibit No. 14 STATEMENT Date : 17.05.99
Myself Manisha w/o Uttam Wathore, Age 19 yrs, occupation:
household work, r/at farm Nur Patel, in front of ZP Gate, Waluj,
Aurangabad.
I do hereby state in written that, my marriage took place on 7 th
March, 1999 with Uttam Narayan Wathore, as per the Hindu rituals at my
maternal house, Mukundwadi. At the time of marriage amount of Rs.
16000/- was fixed as dowery to be paid by father and we paid Rs. 15000/-
due to poor condition and said that the remaining amount of Rs. 1000/-he
will pay later. As my husband was working with contractor at Bajaj
Company, my brother-in-law Gautam and we both husband and wife
started living in the room in the farm of Nur Patel. My husband was getting
Rs. 1500/-p.m. and my brother-in-law Gautam was earning Rs. 1000/-p.m.,
on this we were maintaining our livelihood.
After marriage, my husband and brother-in-law started suspecting
my chastity/fidelity. Then my husband got me examined at the Doctor at
Pandharpur, as he was suspecting my character. My husband and my
brother-in-law told me that the income from their work was insufficient and
I should demand Rs. 10,000/- from my father for purchasing auto rickshaw.
I told my husband that since our marriage was performed soon before and
my father was not having good financial condition, he would not be able to
pay the amount. Shamrao Wathore, my husband's cousin instigating my
husband for asking me to demand amount of Rs. 10,000/- and also he was
telling something about me to my husband.
On 16.05.1999 my husband did noy go to the work and he was at
home from morning and my brother-in-law Gautam had his duty for half
day and he returned to the house. At about 6.00 pm in the evening my
husband and brother-in-law Gautam told me that I should go to the house
of my father and bring amount of Rs. 10,000/- for purchasing a auto
rickshaw. I refused to go then both my husband and my brother-in-law
started beating me with the fist blows and kicks and around 10.00 o'clock in
the night, I was sitting in the house, then my husband took out kerosene
{16} CR APPEAL NO. 610 OF 2003
can and poured it on my person and my brother-in-law, Gautam ignited the
fire with match stick and set ablaze me. I raised the shouts and came out of
the house, so, my husband and brother-in-law out of fear poured water on
my person and extinguished me.
When my husband and brother-in-law asked me to bring Rs.
10,000/- from my father, I refused to bring the money, so I was burnt (by
them) with kerosene around 10 p.m.
The above statement of mine is read over to me and it is true and
correct as per my narration.
Before Me hence given statement
Sd/- TI Sau. Manisha W/o Uttam Wathore.
Police Amaldar, PS Waluj
Registered on Date : 17.05.99 St. D. No. 138, Record No. 53, Time
21.30, Crime Reg. No. I 0046/99, u/s 307, 498-A, 323,34 of IPC, PSI
Kamale are investigating the same.
Registered on Date : 18.05.99 St. D. No. 137, Record No. 76, Time
14.05, Crime Reg. No. I 0053/99, u/s 307, 498-A, 323,34 of IPC, API is
investigating the same.
sd/-
Sign
PSMIDC, Waluj"
(As translated by Sr. Translator, High Court Bench at Aurangabad)
15. On appreciating the contents of exh.14, she has reported that
at around 10:00 p.m., husband poured kerosene, whereas, brother-
in-law ignited her.
It needs to be noted that inspite of being taken to the hospital
on same night, surprisingly her statement exh.14 appears to be
recorded by PW5 Adhane (PHC), who already deposed that he had
{17} CR APPEAL NO. 610 OF 2003
paid visit on the very night itself but he deposed that as parents of
deceased told that victim is sleeping, without recording statement, he
went back and then he claims to have come back to record statement
at 06:30 a.m. But father in his evidence has stated that Police came
to record statement at around 09:00 a.m. Further this witness PW5,
who recorded above statement, has admitted in cross-examination
that Doctor was not available when he recorded statement exh.14.
Prosecution does not deny that before PW5 went, there is MLC
regarding burns on account bursting of stove.
16. Victim herself has narrated that husband had doused the fire
by water and that he too suffered burns. PW2 neighbour has not
supported prosecution because she did not mark presence of accused.
DW1 Ramdas, another neighbour has deposed that at around
10:00 p.m. to 10:30 p.m. there were no lights and at that time, there
was sudden bursting of stove and Manisha catching fire. He stated
that he and his wife both went to extinguish fire and at that time,
accused no.1 was returning from duty.
Though subjected to cross-examination by learned APP, version
of DW1 regarding he and his wife extinguishing fire and at that time,
accused husband returning from duty has not been touched or
{18} CR APPEAL NO. 610 OF 2003
shaken.
17. Here there is seizure of exh.17, a chit allegedly written by
victim herself. Trial Court has marked it as exh.17. The translated
version of exh.17 is as under :
STATEMENT Date : 17.05.99
Convey my regards to my parents, Vandana, Jai Bhim. Dad this is my
last letter to you, because I am going to end my life, Dad, be good, and take
care of Akka. You have only one son and daughter. Mom(Aai) I am fed up
with my life and am going to commit suicide. I got married but I have no
happiness in my married life as I can not bear anything in the married life.
At present I have no problem, my husband is good. My brother-in-law and
sister-in-law are also good but I can tolerate everything but not this. This
marriage is solemnized against my wish. I could not hurt you. I am feeling
sad only because I am leaving you. Mom, I do not know what married life is
and as I do not understand the meaning of this, I am fed up of it.
I have done nothing to disgrace you, I owe your duty. You had no
choice but to do something between us, so I am leaving the world. You will
be very sad to read this letter. I did not know the meaning of marriage. I
have understood the meaning of marriage since one month. I have decided
to commit suicide because I can not live without seeing you all.
Your Daughter,
Vandana Manisha."
(As translated by Sr. Translator, High Court Bench at Aurangabad)
SUMMATION
18. The sum total of above discussed evidence is that here there is
{19} CR APPEAL NO. 610 OF 2003
very weak evidence on the point of cruelty and demand. As regards
to charge of attempt to commit murder, except version of PW4
Manisha, victim to which there is no corroboration, there is no other
distinct evidence. MLC exh.30 is about burst of stove. Appellant
no.1, husband, whose role of extinguishing fire is admitted by very
victim goes to show that he not only attempted to douse the fire but
he even shifted her to hospital. Had he carried any sinister motive to
commit offence, circumstances would have been otherwise. There is
failure to promptly record statement of victim. Chit exh.17, which is
reproduced above, clearly indicates that it is act of attempt to commit
suicide. Taking such material into consideration, offence of Section
307 cannot be said to be made out.
There are several doubts coupled with the chit of letter exh.17,
which PW6 father admitted that it was given to him by his victim
daughter PW4.
19. Perused the judgment under challenge. Above aspects are not
appreciated by the learned trial Court. Inspite of no cogent, reliable
and trustworthy evidence, charge of Section 498-A is held as proved.
Likewise, learned trial Court has also failed to consider and
appreciate creditworthiness of prosecution version on the point of
{20} CR APPEAL NO. 610 OF 2003
attempt to commit murder and hence, it is a fit case to interfere.
Accordingly, I proceed to pass following order :
ORDER
I) Criminal Appeal No.610 of 2003 is allowed.
II) The conviction awarded to appellant nos.(1) Uttam
Narayan Wathore and (2) Gautam Narayan Wathore in
Sessions Case No.58 of 2001 by the learned Sessions Judge,
Aurangabad on 21-08-2003 for the offence punishable under
Sections 498-A and 307 read with 34 and of the Indian Penal
Code, stands quashed and set aside.
III) The appellant nos.1 and 2 stand acquitted of the offence
punishable under Sections 498-A and 307 read with 34 of the
Indian Penal Code.
IV) The bail bonds of appellant nos.1 and 2 stand cancelled.
V) The fine amount deposited, if any, be refunded to the
appellant nos.1 and 2 after the statutory period.
VI) It is clarified that there is no change as regards the order
in respect of disposal of muddemal.
( ABHAY S. WAGHWASE )
JUDGE
SPT
