High Court acquit appellant convicted under 498-A IPC for demanding dowry, finding benefits of doubt due to inconsistency in prosecution witness statements and suspicion regarding prosecution evidence.
Appeal allowed; conviction under S. 498-A IPC set aside; appellant acquitted; fine returned; bail bonds cancelled.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO.29 OF 2000
Ms.Monica Purnapatre, advocate for appellants.
Mr.R.P.Phatake, APP for respondent State.
CORAM : M.T.JOSHI, J.
DATED : AUGUST 21, 2012.
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ORAL JUDGMENT :
Aggrieved by the conviction of the present appellant for the offence punishable under Section 498-A of Indian Penal Code and consequently, sentence to suffer R.I. for the period of one year and to pay fine of Rs.2,000/-, present Appeal is preferred by the original appellant no.1. Originally, charge sheet was filed for the offence punishable under Sections 302, 498-A read with 34 of Indian Penal Code. Learned Sessions Judge, however, acquitted all the accused of the offence punishable under Section 302 and convicted present appellant solely for offence punishable under Section 498-A of Indian Penal Code.
2] It is admitted fact that deceased Vaishali, daughter of PW 2 Ramchandra Bendre was married to present appellant about two years prior to her unfortunate and unnatural demise on 15th May, 1997. She died due to burn injuries. Her father PW 2 Ramchandra Bendre filed FIR at exhibit 22 making following allegations :
3] That, after marriage, deceased Vaishali started residing with appellant no.1 and his mother at village Kemwadi. In the marriage, no dowry was given, however, gift of gold and money was made. Thereafter, when deceased came to complainant's house at Pune for Diwali celebrations, at that time, she told the complainant that her husband i.e. appellant no.1 has
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warned him that she should not return to matrimonial home unless gold finger ring is brought. Thereafter, same demand was repeated. When the appellant came to Pune to his sister's house, he warned deceased Vaishali that gold finger ring as well as T.V. set be brought to his house. Complainant showed inability to fulfill said demand, however, told that he would gift new clothes to his son in law. About 2-3 days thereafter, appellant came to the complainant's house, however, at that time, he did not take deceased with him to his home. Complainant, thereafter, took his daughter to Yermala as, at that time, his elder brother has died there. On that occasion, appellant as well as his mother original accused no.2 had come to meet the complainant. However, the appellant and his mother took Vaishali with them. Thereafter, they did not send deceased Vaishali to Pune i.e. complainant's house. About one year thereafter, there was “Choli Ceremony”. Thereafter, complainant along with his wife and his brother i.e. PW 3 Babruwan went to the house of appellant, at that time, they had brought gifts for deceased Vaishali as well as both accused. Mother of appellant, however, started grumbling as to why gold ring and T.V. set were not gifted and warned that she would not send deceased Vaishali for delivery purpose unless said gift is made. Deceased Vaishali also made complaint that appellant as well as his mother always used to make demands for a gold finger ring as well as T.V. set. After about one month, complainant came to know through Prakash Dolare, Sarpanch that eased Vaishali has delivered twin daughters. Thereafter, complainant's wife i.e. mother of Vaishali visited deceased Vaishali and at that time also,
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same demand was made. In the circumstances, deceased Vaishali suffered burn injuries while residing at her matrimonial home on 15th May, 1997 due to which, she, eventually, died and thereafter, complaint is made.
4] During investigation, the Investigating Officer i.e. PW 10 recorded statements of various witnesses including that of PW 4 Chanubai, who claimed to be an eye witness of setting on fire the deceased Vaishali in her house by the present appellant. The statement of brother of complainant i.e. PW 3 Babruwan, PW 9 Chhaya came to be recorded. It appears that while deceased was under treatment at Solapur, her dying declaration was recorded by the Executive Magistrate Mr.Ramswami Selam. However, prosecution did not rely over dying declaration. Therefore, the defence examined him at exhibit 46 who, inter alia, deposed that deceased while on the death bed, made a statement to him that she has suffered burn injuries accidentally due to bursting of stove and had no complaint against anybody. Learned Sessions Judge finding vast contradictions in the evidence in respect of accusation of murder i.e. PW 4 Chanubai stated that she was persistently asked by police to make statement that she had witnessed the murder, acquitted both accused of the offence of murder. As regards offence of cruelty punishable under Section 498-A of Indian Penal Code, the learned Sessions Judge found that deposition of PW 2 complainant coupled with his brother PW 3 Babruwan and PW 9 Chhaya inspire confidence that present appellant persistently used to make unlawful demand of gold finger ring as
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well as T.V. Set to deceased and as such, appellant came to be convicted and sentenced.
5] Learned counsel for appellant submits before me that learned Sessions Judge failed to consider that there are vast improvements in the statements of these witnesses. The evidence generally would show that only during “Choli Ceremony”, demand of gold finger ring was made. There was, however, exaggeration to the extent of making persistent demand of T.V. set which ultimately culminated even into charge of murder which miserably failed before learned Sessions Judge. Therefore, taking me through the entire record and deposition of these three witnesses on which learned Sessions Judge has mainly relied, she submits that conviction be set aside and appellant be acquitted.
6] On the other hand, Mr.Phatake, learned APP supported the impugned judgment. He submits that statements of complainant and his brother coupled with statement of independent witness i.e. PW 9 Chhaya would show that present appellant repeatedly used to make unlawful demand for gold finger ring and T.V. set. There is nothing on record to disbelieve their version. In the circumstances, he submits that the conviction of appellant be maintained.
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recorded immediately after the deceased suffered burn injuries. He submits that when a question was put to deceased by the Executive Magistrate i.e.D.W.1, as to whether, she has any complaint against anybody, it might have been understood by the deceased as regarding immediate serious incident of burn injuries and therefore, in that context, she had made statement that she had no complaint against anybody. Mr.Phatake submits that said statement cannot be stretched to imagine that there was no cruelty by the appellant to deceased during her cohabitation with him.
8] Having considered rival arguments and having perused record with the assistance of both learned counsel, I am of the considered opinion that learned Sessions Judge ought to have extended benefit of doubt to the appellant as regards offence punishable under Section 498-A of Indian Penal Code also for the reasons to follow :
9] The FIR of PW 2 father of deceased would go to show that present appellant on the first occasion made demand of gold finger ring and unless same is brought, deceased should not come to his house. It is alleged in the FIR that the complainant has heard from his wife and daughter that appellant has come to the house of Rukmini, sister of appellant and he told deceased that if gold finger ring as well as T.V. set is not brought, deceased Vaishali would not be permitted in his house.
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10] Complainant PW 2 Ramchandra deposed that at the first visit of deceased to his house after 9-10 months of her marriage, she told him that both accused are demanding T.V. set as well golden ring. This is against the statement given in the FIR as detailed supra. PW 3 Babruwan, brother of complainant, deposed that he along with PW 2 complainant and his wife went to the house of present appellant for performing ceremony when Vaishali was pregnant and at that time, both accused asked them as to whether they have brought gold finger ring and T.V. set. Upon that, complainant told that he would give gold finger ring in the marriage of another daughter of complainant. On the other hand, the statement of complainant would show that he expressed his inability to provide gold finger ring and T.V. set and promised that he would give new clothes to appellants on a suitable occasion. From the statements of both these witnesses, it appears that present appellant as well as his mother had certain grudge of not gifting of gold ring on the occasion of pregnancy of Vaishali. The demand of T.V. set does not appear to be consistent phenomenon.
11] PW 9 Chhaya Dolare was residing at 10 feet from the house of appellant. She deposed that there used to be quarrels in the house of appellant when the deceased was pregnant. It would also go to show that grumbling started only when deceased became pregnant. She was not categoric in making statement that at any time, deceased met with cruelty by appellants. She specifically made statement to the following effect :-
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“ there was a quarrel between accused No.1 and father & mother & uncle of Vaishali, on the count of non fulfillment of demand of golden ring.”
This witness, however, did not disclose the source of quarrel. In the circumstances, whether, said statement should be taken as a hearsay statement or direct evidence, is a question which cannot be answered due to absence of any material in this regard.
12] Dying declaration of Vaishali was recorded by D.W. 1 Mr.Ramswami Selam who is Executive Magistrate of Solapur. His statement coupled with dying declaration recorded at exhibit 48, would clearly show that the deceased met with an accidental death and she had no complaint against anybody. The Executive Magistrate has specifically put a query to the deceased as to whether she has to make any further statement and whether she has complaint against anybody regarding whole episode, upon that, deceased made statement that she has no complaint against anybody and she sustained burn injuries accidentally.
13] It has been clearly brought on record that the deceased, while taking treatment at Solapur Hospital, made a statement to the Executive Magistrate that she has suffered burn injuries accidentally. PW 4 Chanubai made
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categoric statement that she herself seen the appellant pouring kerosene on the person of deceased. As against this statement, in cross-examination, she stated that for 5-6 days after the death of Vaishali, police used to press her to state that accused has committed murder of deceased Vaishali. Learned Sessions Judge, in the circumstances, ought to have noted when the prosecution has gone to the extent of charging accused for offence of murder on the basis of statement of PW 4 Chanubai and having found contradiction and improbabilities in the statements of PW 2, PW 3 and PW 9, learned Sessions Judge ought to have granted benefit of doubt as regards offence punishable under Section 498-A of Indian Penal Code as well.
14] In the circumstances, Appeal is allowed. Conviction of the appellant for offence punishable under Section 498-A of Indian Penal Code is hereby set aside and he is acquitted of the said offence. Fine amount deposited by the appellant, if any, be returned to him. His bail bonds stand cancelled.
[ M.T.JOSHI, J. ]
kbp
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Balu s/o. Balbhim Gurav
Gojarbai w/o. Balbhim Gurav
The State of Maharashtra
M.T.JOSHI
As recorded by the court registry
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