Dipak vs The State of Maharashtra

P.N. Deshmukh, J—This criminal appeal takes exception to the judgment dated 16/4/2004 passed by the learned 2nd Ad hoc Additional Sessions Judge, Achalpur in Sessions Trial No. 69/2001 whereby appellant/accused came to be convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.1000/-, in default, to suffer rigorous imprisonment for three months and is acquitted of the offences punishable under Sections 498-A and 201 of Indian Penal Code read with Section 4 of the Dowry Prohibition Act.

Briefly, it is the case of prosecution that deceased Sangita was married to accused in the year 1997 and was treated happily for the period of about one year. However, thereafter she was subjected to harassment and beating at the hands of accused on account of demand of Rs.50,000/- to be brought from her parents and for seeking job for him. Whenever deceased used to come to her parental home, she used to tell about such harassment to her parents, brother-in-law, sister-in-law and neighbours, namely, Mainabai Laxman Waware, Annapurnabai Ganesh Ekare, Shantabai Bhande and Ku. Jaishree Bute (none examined). On 20/4/2001, Sangita came to her matrimonial home at Kawsa to attend the marriage ceremony of her sister Vaishali and during her stay, she reiterated about harassment caused to her and after marriage ceremony was over, refused to go back to the house of accused when her father-in-law came to fetch her after 15 days of the marriage. On 8/6/2001, when accused came to bring Sangita back to her matrimonial home, she accompanied him since accused had promised not to harass her on any count. Accordingly, she came back along with accused and her younger brother P.W.7 Sachin accompanied them.

In the background of above facts, it is the case of prosecution that on 12/6/2001, at around 12.30 o''clock in the midnight P.W.6 Mahadeo Solanke, father of deceased (complainant) received telephonic message through one Dr. Bute informing him of Sangita sustaining burn injuries and about her admission in General Hospital at Amravati. Hence, complainant visited said Hospital on the following day at 8 a.m. On his enquiring from his daughter Sangita, she told him that there was quarrel between her and accused on account of money and thereafter accused beat her, poured kerosene on her person and set her on fire by igniting match-stick, due to which she sustained burns. According to prosecution case, P.W.7 Sachin is witness to the said incident and deceased Sangita has also stated about said fact. Thus, P.W.6 Mahadeo enquired from Sachin about the incident, who too stated that accused set Sangita ablaze by pouring kerosene on her person. According to prosecution case, on receiving such information from deceased Sangita as well as P.W.7 Sachin, P.W.6 Mahadeo lodged report (Exh. 42) on 15/6/2001 after Sangita succumbed to her injuries on 14/6/2001 at 7.30 a.m. in the Hospital.

It is the case of prosecution that on admission of Sangita in General Hospital, Amravati, her dying declaration was recorded by Special Judicial Magistrate at 12.05 a.m. in the mid-night on 13/6/2001 wherein she has stated that she sustained burn injuries accidentally due to fall of kerosene lamp on her person. The dying declaration is not disputed by defence and as such, it is marked as Exh. 13.

After death of Sangita, intimation was received by City Kotwali Police Station, Amravati and accordingly, A.D. No. 0/2001 came to be registered on 14/6/2001 at 10.30 a.m. and was forwarded to concerned Police Station at Chandur Bazar, District Amravati. On 15/6/2001 when P.W.8 Mohd. Syed was attached as P.S.I., Chandur Bazar Police Station, P.W.6 Mahadeo lodged his report (Exh. 42) and on the basis of the said report, offences punishable under Sections 302, 498-A and 201 of Indian Penal Code and Section 4 of the Dowry Prohibition Act came to be registered vide Crime No. 105/2001 against accused and during the course of investigation, he effected arrest of accused on 15/6/2001 and recorded statements of witnesses. On 17/6/2001, memorandum statement of accused came to be recorded as per Exh.30 and in pursuance of it, one kerosene can and match box came to be seized from his house under seizure panchanama (Exh. 31). Spot panchanama was drawn vide Exh. 27, which is admitted by defence. During the course of investigation, muddemal articles came to be forwarded to Chemical Analyser under requisition memo (Exh. 24) and on completion of investigation, charge-sheet came to be filed in the Court of Judicial Magistrate, First Class, Chandur Bazar. In the course of time, case came to be committed for trial before learned Sessions Judge.

Charge was framed against accused vide Exh.7, to which he pleaded not guilty and claimed to be tried. It is the defence of accused that Sangita died of accidental death due to fall of kerosene lamp on her person, due to which she got ablaze.

The learned Sessions Judge on considering evidence and documents on record convicted accused for the offence punishable under Section 302 of Indian Penal Code and acquitted him of the offences punishable under Sections 498-A and 201 of Indian Penal Code and Section 4 of Dowry Prohibition Act. The State of Maharashtra has not preferred any appeal against acquittal of accused of aforesaid offences.

Heard Shri Agrawal, learned Counsel for appellant and Shri Patel, learned Additional Public Prosecutor for respondent. To effectively evaluate the submissions advanced by learned Counsel for both sides, with their assistance, we have scrutinized the evidence and perused the documents on record.

Prosecution has in all examined eight witnesses and commenced its evidence by examining P.W.1 Dilip Gaurkhede on memorandum statement of accused and seizure of plastic can and matchbox, who has, however, not supported the case of prosecution, P.W.2 Shakuntalabai Pawar on circumstance, who had accompanied deceased to General Hospital at Amravati, P.W.3 Shantabai Chouhan, aunt of deceased, who, however, has not supported the case of prosecution, P.W.4 Sahadeo, uncle of deceased, P.W.5 Vaishali, sister of deceased, P.W.6 Mahadeo Solanke, father of deceased, P.W.7 Sachin, younger brother of deceased Sangita, and concluded evidence by examining P.W.8 Mohd. Syed, P.S.I., Investigating Officer. Accused, in support of his defence, has examined D.W.1 Rajendra Ingole to establish that he extinguished fire sustained by deceased Sangita.

In the light of dying declaration (Exh. 13), which came to be recorded immediately after Sangita was admitted in the Hospital in the midnight of 13/6/2001 at 12.05 o''clock to the effect that she sustained fire accidentally due to fall of kerosene lamp on her person, we have scrutinized the evidence to satisfy us as to whether contents of said dying declaration are true and correct or false or such statement was made by deceased Sangita on account of any threats, etc. from accused or his family members. In that view of the matter, we have considered evidence of P.W.6 Mahadeo, father of deceased Sangita, who has stated that Sangita was married to accused in the year 1997 and was treated well for a period of about one year. However, she was thereafter harassed on account of demand of Rs.50,000/- or to arrange a job for accused. He has further stated about arrival of deceased Sangita to his house during marriage of his younger daughter Vaishali when she reiterated about such harassment, who was sent with accused after marriage since he in the presence of Police Patil, Sarpanch and other villagers promised to keep her happily. He has also stated that his younger son P.W.7 Sachin accompanied Sangita when she went with accused. He has further stated that four days thereafter, he received a telephonic message about Sangita having sustained burn injuries and of her admission in General Hospital at Amravati and, therefore, on the following day, he reached said Hospital and found Sangita lying on the bed in a burnt condition and on enquiring about the incident, she had asked to first see where P.W.7 Sachin was and only then, she would narrate the incident. Thus, P.W.6 Mahadeo brought Sachin in front of Sangita when she stated that accused beat her, poured kerosene on her person and after snatching her son, who was with her, set her ablaze by match-stick. P.W.6 Mahadeo has further stated that Sangita had informed him that she had given false statement due to fear of life of P.W.7 Sachin since accused had threatened her to set Sachin ablaze in the event she narrates true facts to anyone. This, according to prosecution, is the reason for Sangita not disclosing involvement of accused in her statement (Exh.13) recorded by the Special Judicial Magistrate and in that view of the matter and the case of prosecution, we have to, therefore, satisfy whether there is any substance in the case of prosecution of Sangita giving false statement due to above reason or otherwise.

Further evidence of P.W.6 Mahadeo reveals that on getting information from Sangita as aforesaid, he requested Police Official on duty to record second dying declaration. However, he refused for the same and one day thereafter Sangita succumbed to her burn injuries and after performing her last rites, a day thereafter, he lodged his report (Exh. 42). Complainant Mahadeo also claims to have received information of accused setting Sangita on fire from P.W.7 Sachin and has also stated that Sachin had informed him that accused had threatened him not to disclose the incident to anyone. P.W.6 Mahadeo has admitted that he is Kotwal of village Kawsa and claims to have stated in his report as well as statement recorded by Police that accused beat Sangita in the marriage of Vaishali and that 15 days after the marriage, accused had come to fetch Sangita when she was sent after accused promised in front of Sarpanch and villagers to treat her properly. However, P.W.6 Mahadeo is unable to state as to why such facts are not mentioned in his statement. He further claims to have stated to Police that Sangita told him to first bring Sachin and then she would narrate the incident. Therefore, he brought Sachin in front of her when she told him that she had earlier given a false statement fearing life of Sachin since accused had threatened to set Sachin ablaze if she narrates true facts. However, he has not assigned any reason as to why no such facts are mentioned in his statement. He also claims to have stated in his statement that Sachin informed him that accused had threatened him not to disclose true facts to anyone and that he had requested the Police official for recording second dying declaration. However, he has not assigned any reason as to why such facts are not mentioned in his statement. He also claims to have stated that P.W.7 Sachin informed him that there was quarrel between accused and Sangita prior to incident when he beat her, poured kerosene and set her ablaze, However, he has not assigned any reason as to why said fact is also not mentioned in his statement.

The defence at the time of trial has got said material omissions in the statement of P.W.6 Mahadeo (complainant) duly proved from P.W.8 Mohd. Syed, Investigating Officer. On considering omissions in the statement as aforesaid, entire evidence of complainant establishes as to how accused came to be falsely implicated, which fact finds further substantiated as P.W.6 Mahadeo is admittedly Kotwal of village Kawasa and his sons-in-law are in Police Department while one relation Eknath Solanke at the time of incident was working in Irwin Hospital, Amravati where deceased Sangita was admitted. In that view of the matter, we find much substance when it is suggested to P.W.6 Mahadeo that statement of deceased Sangita (Exh.13) came to be recorded in the presence of Eknath Solanke though he denies the same. We find it material to consider that Eknath Solanke, who, according to P.W.6 Mahadeo, is his cousin brother and was attached to General Hospital, Amravati where deceased was admitted for having sustained burn injuries and when immediately on her admission in the mid-night her statement came to be recorded on 13/6/2001 at 12.05 o''clock, there was no reason for Sangita not to involve accused as responsible for causing burns to her had he been really involved in the said incident. In view of evidence of P.W.6 Mahadeo, we thus find that earlier version of Sangita on record by way of her dying declaration (Exh. 13) needs much consideration, which absolves involvement of accused. Moreover, P.W.6 Mahadeo has admitted that financial condition of accused was better than that of him and his elder brothers were in service while accused was looking after the agricultural work.

From the evidence of P.W.6 Mahadeo, we further find that on death of Sangita on 14/6/2001 at 7.30 a.m., her last rites were performed on the same day in the house of accused and thereafter P.W.6 Mahadeo and his family members returned back to their house and all the family members thereafter consulted each other and then decided to file complaint against accused. P.W.6 Mahadeo has admitted that his report (Exh. 42) is not in his handwriting and he did not find any reason to lodge any report earlier and as such, had not filed any report earlier. He has also admitted that prior to incident, Sangita used to visit his house with accused and used to go back with him.

Having considered above evidence, it can even not be said that Sangita was sustaining any harassment at the hands of accused prior to incident, which fact is further substantiated when P.W.6 Mahadeo has admitted that during his stay in Hospital till death of Sangita, he did not make any complaint to Police either on 13/6/2001 or 14/6/2001. No satisfactory reason is put forth by prosecution on this count. Having considered above evidence of P.W.6 Mahadeo, father of deceased Sangita, it does not inspire confidence, establishing involvement of accused.

Another star witness relied by prosecution as an eye witness to the incident is P.W.7 Sachin, who has stated that he had accompanied Sangita, his elder sister, to the house of accused after she returned back with him on attending marriage of Vaishali. He has further stated that 3-4 days thereafter while he was residing with Sangita and accused, there was quarrel between accused and his father due to which his father left the house when accused beat Sangita by kicking in her abdomen, due to which she fell down. Thereafter he removed her son from her, caught her hair, poured kerosene on her person and set her ablaze by matchstick. When he extinguished it, accused kicked him also and again on igniting second matchstick, set Sangita on fire when he raised shouts and father of accused arrived and arranged to shift Sangita to Hospital at Chandur Bazar.

On scrutinizing evidence of P.W.7 Sachin, he appears to have exaggerated his version on the point of incident as against version of Sangita on the point of actual assault before the incident of setting her on fire took place. According to further evidence of P.W.7 Sachin, accused had told Sangita to tell that she got burnt due to fall of kerosene lamp, else he would do same thing with her brother (Sachin). Upon that, Sangita assured him that she would do as told by him.

In the background of above evidence, P.W.7 Sachin also appears to have materially improved his version so as to suit the case of prosecution when he claims to have stated to Police that accused removed Sangita''s son from her and thereafter kicked him and had told Sangita not to disclose true facts to anyone and to say that she sustained burn injuries due to fall of kerosene lamp on her person and that Sangita assured accused that she would narrate as stated by accused. However, P.W.7 Sachin is unable to assign any reason why said facts are not mentioned in his statement. All such material omissions are got proved by defence from the evidence of P.W.8 Mohd. Syed, Investigating Officer.

Even otherwise, according to evidence of P.W.7 Sachin, Police had recorded his statement on 13/6/2001 in the morning. However, no such statement is on record. In fact, according to prosecution case, offences came to be registered on 15/6/2001 on the basis of report lodged by P.W.6 Mahadeo and thereafter investigation commenced. Though P.W.7 Sachin has denied that accused had extinguished fire of Sangita by the help of quilt, portion from his statement under Section 161 of Code of Criminal Procedure has been got duly proved by defence at Exh. 50 wherein it has been specifically mentioned by P.W.7 Sachin that accused attempted to extinguish fire with the help of quilt, which aspect goes in favour of accused, demolishing case of prosecution of his having any motive to commit murder of Sangita. On the contrary, probable case set up by accused that Sangita sustained burn injuries accidentally due to fall of kerosene lamp on her is got further substantiated when P.W.7 Sachin admits that at the time of incident, there was no electricity in the house of accused since three days prior to incident and in fact, according to him, as there was no electricity in the house, he was playing in the courtyard and it was full dark. In that view of the matter and in the absence of any other corroborative evidence, we are not inclined to rely upon evidence of P.W. 7 Sachin as an eye witness to the incident as from his above admissions, his presence on the spot itself is doubtful.

Evidence of P.W.4 Sahadeo Solanke, uncle of deceased Sangita, is with reference to harassment to her on account of demand of Rs.50,000/- by accused and to the effect that while she had stayed in her paternal home, she refused to go back to the house of accused. However, on being persuaded by them, she went to the house of accused and three days thereafter information was received about her sustaining burn injuries. According to his evidence, he went to see Sangita in the Hospital at Amravati and in the Hospital, she did not say anything to him nor he enquired anything from Sachin.

P.W.4 Sahadeo has stated that Pushpa and Nanda are elder sisters of Sangita and their husbands are in Government service and has admitted that marriage of her younger sister was settled by father of accused and accused himself, which fact goes to establish that relations between accused and family members from the side of Sangita were good. P.W.4 Sahadeo has further admitted that he had no talk with Sangita any time prior to incident and Sangita during her life time was insisting her father to arrange for a job for her husband and on this count, used to quarrel with her father saying that unless the job is arranged, she would not go to the house of accused.

The above evidence, therefore, does not establish any demand or harassment to deceased Sangita by accused on account of not providing him any job. But it appears that deceased Sangita herself was insisting her father to search for some job for her husband like that of her elder sisters, namely, Pushpa and Nanda, who are residents of Kalyan, District Thane. So far as evidence of P.W.4 Sahadeo on the demand of Rs.50,000/- is concerned, it is a hearsay evidence when he has admitted that he came to know about such demand from his brother P.W.6 Mahadeo. However, P.W.6 Mahadeo is silent on the aspect of his informing as such to P.W.4 Sahadeo. In the light of evidence of P.W.4 Sahadeo as aforesaid, same is not sufficient to be acted upon against accused in relation to the charges levelled against him.

P.W.5 Vaishali has stated that deceased Sangita had come during her marriage celebration at her parental home when she had told her that accused was demanding Rs.50,000/- from her father and on this count, had quarreled with her and her father during the marriage. She has further stated about Sangita accompanying accused to his house 15 days after the marriage and three days thereafter, they learnt about the incident of Sangita sustaining burns and thus, visited her in Irwin Hospital, Amravati. She has stated that in the Hospital, P.W.7 Sachin was with Sangita, who told her that accused had first beaten Sangita and then poured kerosene on her person and then set her on fire. However, P.W.7 Sachin does not corroborate on the aspect of his stating about the incident to P.W.5 Vaishali. On the contrary, she was suggested that she learnt about the incident from her mother and though she had denied said suggestion, defence has got said portion (Exh. 48) out of her statement proved wherefrom we find that P.W.5 Vaishali on enquiring from her mother about the incident, was informed by her. As such, evidence of P.W.5 Vaishali about her receiving information in the Hospital from P.W.7 Sachin appears to be false.

The defence of accused of his false implication after accidental death of Sangita is further found substantiated when P.W.5 Vaishali has admitted that after last rites, P.W.6 Mahadeo and his sons- in-law, who are husbands of Pushpa and Nanda and are in Police service along with other relatives consulted each other as to what to do next and thereafter decided to file a complaint against accused, which was written by brothers-in-law and was submitted by her father in Police Station. She has admitted that brothers-in-law had explained contents of report (Exh. 42) to all members of the family and had accompanied P.W.6 Mahadeo, his wife and P.W.7 Sachin to Police Station, Chandur Bazar for presenting the same to Police. She has also admitted that she and all other family members gave their statements to Police as per complaint about 5-6 days after the incident and has admitted to have deposed in the Court as per contents of the complaint filed in the Police Station.

Considering the fact that both sons-in-law of complainant are in the Police Department and having considered aforesaid evidence of P.W.5 Vaishali, accused is found to be falsely implicated. The contents of dying declaration (Exh. 13) establish innocence of accused, who, in fact, appears to have attempted to extinguish the fire and also corroborates with the contents of spot panchanama (Exh. 27), which is in respect of house of accused owned by his father, which is a kacha construction having tin sheets and in the kitchen, there is a small wall constructed by way of partition where kerosene lamp was kept. There was also kerosene found on the ground when spot panchanama came to be drawn on 14/6/2001.

Though prosecution has got memorandum statement of accused (Exh.30) and seizure panchanama (Exh. 31) proved from P.W.8 Mohd. Syed, Investigating Officer thereby establishing seizure of kerosene lamp and match box at the instance of accused from his house, said recovery was effected on 17/6/2001 while according to spot panchanama, which came to be drawn on 14/6/2001, there is no mention to any of the articles in the house, which is a small one room construction and no explanation is put forth by prosecution as to why such articles were not found in the room on 14/6/2001 when spot panchanama came to be drawn which, according to prosecution, on 17/6/2001 came to be recovered at the instance of accused. In fact, in the spot panchanama (Exh.27), there is a specific reference that on minutely observing the spot, no lamp, etc. was found. In that view of the matter, contents of memorandum statement (Exh. 30), seizure panchanama (Exh. 31) and recovery of kerosene can from below the cot and match box from the kitchen do not inspire confidence.

On scrutinizing the evidence as aforesaid, we do not find that there is any evidence worthy to be relied upon with reference to charge levelled against accused. On the contrary, we find that the probable case set out by accused to be reasonable and that prosecution has miserably failed to establish the charge levelled against accused. The criminal appeal is, therefore, liable to succeed. Hence, we pass the following order :

Order

The appellant - Dipak Krishnarao Chavhan is acquitted of offence punishable under Section 302 of Indian Penal Code.

2) Judgment dated 16/4/2004 delivered by the 2nd Ad hoc Additional Sessions Judge, Achalpur in Sessions Trial No. 69/2001 is accordingly quashed and set aside.

3) Seized property be destroyed after appeal period is over.