Bombay High Court
Kamlakar Harishchandra Yerkal vs State Of Maharashtra on 2 February, 2024
2024:BHC-AUG:2566
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 721 of 2003
Kamlakar Harischandra Yerkal,
Age : 30 years, Occu. : Service,
M.S.E.B. Helper, R/o. Ramwadi,
At present R/o. Javalga [K],
Tq. Omerga, Dist. Osmanabad. ... Appellant
Versus
State of Maharashtra,
Through Mira w/o. Kamlakar Yerkal,
Age : 23 years, Occu. : Household,
R/o. Ramwadi, Tq. & Dist. Osmanabad.
At Present R/o. Yelori, Tq. Ausa,
Dist. Latur. ... Respondent
.....
Mr. Amit A. Mukhedkar, Advocate for the Appellant.
Mr. N. D. Batule, APP for the Respondent-State.
.....
CORAM : ABHAY S. WAGHWASE, J.
DATED : 2nd FEBRUARY, 2024
JUDGMENT :
1. Conviction recorded for offence under section 498A of
Indian Penal Code (IPC) by learned Ad-hoc Additional Sessions
Judge, Osmanabad dated 26.09.2003 is taken exception to by
convict by filing instant appeal.
2. Prosecution was launched on complaint filed by wife (PW1
Mira) alleging that, after marriage in February 1998, she went to
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cohabit with her husband and in-laws. That, her husband Kamlakar
was working in MSEB. She was treated well for 2-3 months, but
thereafter accused raised demand of Rs.1,00,000/- for drilling bore,
purchasing motorcycle and cupboard etc. Because of weak financial
condition, demand was not met and therefore, on 30.01.1999
accused husband raised quarrel at around 8:30 p.m. sprinkled
kerosene and set her on fire and ran away. After recovery from
burns, she lodged complaint with Lohara police station, on the
strength of which, crime was registered and accused was charge-
sheeted for offence under section 498A, 307 and 109 read with 34 of
IPC and tried by learned II nd Ad-hoc Additional Sessions Judge, who
accepted the case of prosecution and recorded guilt as stated above
and hence the appeal.
SUBMISSIONS
On behalf of appellant :-
3. Questioning the findings reached by the learned trial Judge,
it is pointed out by learned counsel for appellant that prosecution
has miserably failed to establish the case beyond reasonable doubt.
He pointed out that, apparently it is a false implication as according
to him deceased herself gave two dying declarations voluntarily and
unanimously declaring that, she had suffered accidental burns while
cooking. That, scene of occurrence panchanama clearly shows
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occurrence to be while cooking. However, after long gap of almost 47
days, false and afterthought complaint accusing false allegations
was lodged. It is pointed out that, none of examined witnesses are
consistent or corroborating each other on material counts. Their
evidence is full of material contradictions and omissions. However,
in spite of such evidence, it is submitted that, learned trial Judge
has recorded guilt. Findings are not supported by sound reasons
and moreover are contrary of evidence and he prays to allow the
appeal by setting aside the judgment under challenge.
On behalf of State :-
4. Supporting the judgment, learned APP pointed out that, in
all 06 witnesses have deposed in favour of prosecution case. Their
testimonies have remained unshaken. Victim herself has deposed
about maltreatment, bad vices of husband accused, about he pouring
kerosene and igniting her. There is correct appreciation of available
evidence and so learned APP prays to dismiss the appeal.
5. On re-appreciating and re-analyzing the evidence, it seems
that case of prosecution is rested on evidence of in all 06 witnesses
and status and sum of substance of their evidence is as under :-
PW1 Mira, complainant herself gave date of marriage
with accused as 02.02.1998 and she clarified the relations of
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accused no.2 as brother-in-law, accused nos.3 and 4 as parents-in-
law. According to her, after marriage she went to cohabit with
husband at Kanegaon, whereas her in-laws stayed at Ramwadi.
According to her, they used to come intermittently and ill-treat her
by raising demand of motorcycle, cupboard and Rs.1,00,000/- for
drilling bore. She reported about demand to her parents as well as
Sarpanch of their village. She alleges that, she told her father about
accused not providing her food and beating her. Both parents to give
understanding to the accused. On 28.01.1999 her in-laws and
brother-in-law came to the village Kanegaon, raised quarrel in the
backdrop of demand, stayed for two days and went back to their
village on 30.01.1999. On same day, in the afternoon, accused
husband quarreled on account of her quarreling with his parents
and brother. Around 8:30 p.m., she alleged that, while she was
sleeping, accused poured kerosene oil of the chimney, ignited match-
stick, threw it on her, close the door and went out. She was taken to
hospital in unconscious condition. She further deposed that when
she became conscious, accused told her not to inform about he
setting on fire by threatening to kill her and her parents, if she tells
the fact and so gave statement to that extent. Later on, she told her
father about role of accused and thereafter gave statement to police
(Exh.20).
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PW2 Dr. Satish Pawar is the Medical Officer, who issued
injury certificate (Exh.23).
PW3 Mahadeo is the father, who testified that,
complainant daughter came to his house for Diwali and narrated
about ill-treatment and demand. According to him, when he went to
give understanding to the accused, he was driven out. On
31.01.1999, he got message about burns and so visited hospital.
After one to one and half month, when he asked about the incident,
his daughter told about ill-treatment, unlawful demand and quarrel
on 30.01.1999 and husband pouring kerosene and setting her to
fire, and therefore, he lodged complaint at Lohara Police Station.
PW4 Pandurang did not support the prosecution as he is
deposed that he did not know for what purpose complaint was ill-
treated.
PW5 Balwant, panch to spot panchanama, narrated to
that extent and identified at Exh.30.
PW6 Revansidha Bansode is the Investigating Officer.
ANALYSIS
6. After appreciating the above discussed evidence and
considering the submissions advanced before this court, apart from
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oral evidence of complainant herself, her father and doctor, there
are two dying declarations, and therefore, the same are first
required to be visited and appreciated.
7. Both dying declarations are admitted by victim to be her
versions. Both are recorded on 31.01.2019. Apparently, in both
dying declarations deceased had attributed burns to sudden burst of
stove while boiling milk. In chief as well as cross there is categorical
admission to that extent. Admittedly, AD is also registered,
therefore, so called dying declarations are about accidental burns.
8. On appreciating the evidence of victim complainant, it is
clearly emerging that, she and husband resided at Kanegaon after
marriage, whereas her in-laws, who were also accused in the trial
court are resident of Ramwadi and they used to visit intermittently.
Her evidence is about all accused demanding Rs.1,00,000/- for
drilling bore and also making demand of motorcycle and cupboard.
When exactly such demand was made, has not been stated by her as
she merely speaks that she was treated properly for 2 to 3 months.
Marriage has admittedly taken place in February 1998. Apparently,
what was the nature and mode of ill-treatment has not been
specified by her. However, she has given date of visit of in-laws as
28.01.1999 and has alleged demand and ill-treatment. Resultantly,
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Therefore, almost after ten months, first time of allegations of
demand of ill-treatment are raised. Be it so. As stated above, till
arrival of in-laws dated 28.01.1999, till Diwali and till occurrence,
there is no complaint about demand or ill-treatment. No details are
provided as to where proposed bore-well was to be drilled and for
whom demand of cupboard was allegedly raised. General allegations
seems to have been made by her regarding demand and ill-
treatment.
9. It is also pertinent to note that, at the time of alleged
incident of burns, in-laws are apparently not with complainant or
accused. Only husband is shown to be present. According to her, he
quarreled with her in the afternoon and after 8:30 p.m., she claims
that, he poured kerosene from chimney and ignited her while she
was sleeping. But, she herself has given two dying declarations
reporting occurrence as suffering due to stove explosion while
boiling milk. After recovery i.e. almost after one and half months,
she seems to have reported her father and then law seems to have
been set into motion. Apparently, delay in reporting is immense. It
has not been shown that till complaint dated 18.03.1999 she was
not in a position to give complaint nor her father at any point of time
prior to that lodged any complaint.
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Omissions in the testimony of father is brought about
complainant informing during visit at the time of Diwali and
repeating unlawful demand raised by accused. He admitted that, she
told him in hospital about suffering burns due to burst of stove.
10. PW4 Pandurang as stated above merely spoke about ill-
treatment at the hands of in-laws and husband, but he is unable to
assign reason of ill-treatment or nature of demand.
11. Prosecution's own witness PW5 Balwant in cross has
admitted that, on that day, he and accused were doing electricity
work and accused was with him upto 9:30 p.m. and after hearing
noise, he and accused rushed to the house. Therefore, with such
material, presence of accused at the scene of occurrence at 8:30 p.m.
comes under shadow of doubt.
12. Material omissions by father and victim are got proved
through cross of Investigating Officer.
To sum up, offence for which accused was charge-sheeted
are not brought home.
13. After going through the impugned judgment, apparently,
there is improper appreciation of the evidence. Findings are
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incorrectly recorded and same are contrary to the evidence on
record. Consequently, interference at the hands of this appellate
Court becomes necessary and resultantly, appellant succeeds and so
I proceed to pass following order :
ORDER
I) The criminal appeal stands allowed.
II) The conviction awarded to the appellant - Kamlakar
Harischandra Yerkal in Sessions Case No.86 of 2000 by
learned IInd Ad-hoc Additional Sessions Judge,
Osmanabad on 26.09.2003 for the offence punishable
under section 498A of Indian Penal Code stands quashed
and set aside.
III) The appellant - Kamlakar Harischandra Yerkal stands
acquitted of the offence punishable under Section 498A
of Indian Penal Code.
IV) He be set at liberty, if not required in any other case.
V) The fine amount deposited, if any, be refunded to the
appellant 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, J.]
Tandale
