Court:BOMBAY HIGH COURT
Bench: JUSTICE A.D. Mane & R.G. Deshpande
DAGADU SHANKAR TODMAL Vs. STATE OF MAHARASHTRA On 28/29.7.1997
Altercation or conflict between husband and wife does not amount to “cruelty” and cannot attract provisions of Section 498A.
Conviction cannot be based on sentimental approach.
This appeal is filed by the original accused No. 1-Dagadu Shankar Todmal, against the judgment and order, dated 5.1.1995, passed by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No. 345 of 1994, whereby, the learned Additional Sessions Judge found the appellant-accused guilty of the offence punishable under Section 498-A of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for nine months and further found him guilty for the offence punishable under Section 307 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- and, in default, to suffer rigorous imprisonment for 1½ years. Alongwith the original accused No. 1, present appellant, his mother Kausalyabai, original accused No. 2 was also tried for the offences referred to above, however the learned Additional Sessions Judge found the evidence on record short to convict the original accused No. 2 and, therefore, she is acquitted of the offences charged with.
2. The facts of the case in nut-shell can be narrated as under :
Original complainant Vandana, who happens to be PW 3 in the present matter, was married to the accused No. 1 Dagadu on 31.3.1994, whereafter, she resided with her husband and her in-laws, including the original accused No. 2 — her mother-in-law. It is the case or the prosecution that matrimonial residential house of the complainant is situated at Mhaske Chawl, Jeur, which is just at a distance of 1½ kms. from the house of the accused No. 1 i.e. at Village Todmalwadi.
3. The prosecution story further proceeds by narrating that some time after the marriage of Vandana she had gone to her maternal aunt’s house to attend the marriage and, thereafter, she came to her parents’ house. On the next day morning, according to the prosecution story, she went to the house of her husband. However, at the time she had forgotten one of her Sarees at her parents’ house which is said to have been an excuse for the husband to get enraged on Vandana by saying that she must have sold the said Saree to somebody. On this accusation he also beat Vandana on that day. It is the case of the prosecution that Vandana was being ill-treated on various grounds, including that she was not able to cook the food well and further that she was getting fat.
4. The prosecution story mainly centres around specific allegation that at the time of marriage of Vandana with the accused No. 1 -Dagadu, it was agreed that by way of dowry Rs. 11,000/- would be paid to the accused, out of which Rs. 6,000/- were already paid and Rs. 5,000/- remained to be paid, because of which, according to the prosecution Vandana was being ill-treated.
5. On the fateful day i.e. on 30.6.1994, at about 9.30 a.m. Vandana had cleaned the house and at that time accused was present in the house. Accused again repeated his demand of Rs. 5,000/-, which were not paid to him and, therefore, he called for the explanation from Vandana as to why she did not bring the same from her father. On this pretext, he also beat her. Vandana replied that her parents were poor and it was difficult for them to make the payment of remaining Rs. 5,000/-. Thereafter, the prosecution stay narrates that, Vandana was cooking food. At that time, the accused No. 1 pooled kerosene on her person and set her on fire. According to the prosecution, the accused No. 2 at that time was present in the house. Vandana caught fire, sustained barn injuries and she ran out of the house shouting. The neighbours gathered and extinguished the fire. Message was given to Raosaheb — brother of Vandana, who came on the spot and took her in a jeep to Ahmednagar, where she was admitted in Dr. Tholar’s Hospital. Vandana had sustained burn injuries on her chest, back and on legs. She was treated in Dr. Tholar’s Hospital and Hospital Authorities informed to M.I.D.C. Police Station, Ahmednagar about the same at about 9 a.m., whereon, Police Sub-Inspector Balkrishna Waman Shinde-PW 9 reached there and recorded statement of Vandana, as per her say, which is at Exhibit 17 on the record. On the basis of the said complaint of Vandana offence was registered under Sections 498-A and 307 of the Indian Penal Code as Cr. No. 94 of 1994 and further investigation was carried out. A supplementary statement of Vandana was also recorded by the Police Authorities, on the basis of which the original accused No. 2 Kausalyabai was included as an accused No. 2. After completing usual formalities of investigation, a charge-sheet was submitted against the accused Nos. 1 and 2 in the Court of the Chief Judicial Magistrate, Ahmednagar. Considering the charges levelled against the accused persons, the learned Chief Judicial Magistrate committed the case to the Court of Sessions for its trial, according to law.
6. The learned Additional Sessions Judge, who dealt with the matter framed charges vide Exh. 3 under Sections 498-A and 498-A read with 34 of the Indian Penal Code so also under Section 307 and Sections 307 read with Section 34 of the Indian Penal Code. Accused pleaded not guilty and, therefore, sessions commenced.
7. The prosecution in support of its case examined in all nine witnesses. PW 1 Baburao Kotkar is a Circle Officer, Jeur Circle and Village Jeur is well within his jurisdiction. He says that on 14.7.1994 a letter was received from M.I.D.C. Police Station, as regards preparation of panchanama and to draw the map of spot of occurrence. PW 2 is Dashrath Todmal who happened to be a punch witness for the panchanama Exhibit 15, as regards the spot panchanama conducted by Senior Police Sub-Inspector, M.I.D.C. Police Station, Ahmednagar. PW 3 is Vandana Todmal, who happens to be the victim of the alleged incident.
8. It is necessary to go through the deposition of Vandana in minute details to find out as to whether the original complainant could make out a case either under Section 498-A or under Section 307 of the Indian Penal Code against the accused No. 1 Dagadu. In her examination-in-chief, Vandana has narrated that she was married about three months prior to the incident to the accused No. 1. According to her when the marriage was settled, father of this witness had agreed to pay Rs. 11,000/- by way of dowry and out of which Rs. 6,000/- were paid to the accused. She further deposed that after her marriage she was staying with the accused and they only were staying together. She states that Kausalyabai is her mother-in-law. In support of her story of ill-treatment Vandana states that the accused used to beat her and was asking her to bring money from her parents. She further states that the accused had beat her 2-3 times, during that period. According to her, the accused was also saying that she had become fat and that she eats too much. Vandana further stated that she had gone to attend marriage of her cousin, Mukta, who was the daughter of maternal aunt of Vandana. According to Vandana, prior to one month of the incident, Mukta was married, which marriage was attended by Vandana. According to Vandana, after attending the marriage, she had gone to the house of her parents and, thereafter, to her own house i.e. house of the accused No. 1. However, she has stated that she had forgotten to carry her Saree which was left by her in her parents’ house. According to Vandana, the accused beat her by saying that she must have sold that Saree.
9. PW 3 Vandana, further, in her deposition, has stated that, though she could not exactly point out the day and date on which the alleged incident took place but, according to her, the incident took place after about six months of her marriage. Further, according to her, on the date of the incident, she was in the house of the accused. According to her, she, earlier, in the morning, cleaned the house. This time, she stated that, the original accused No. 2 was present in the house and her father-in-law had gone to the well. She further stated that she had started crying as her husband beat her on the ground as to why she did not bring Rs. 5,000/- from her parents. According to her, her mother-in-law did not intervene nor did she say anything at that time. She explained to her husband that it was not possible for her to bring money from her parents as they happen to be poor persons. Vandana stated that even on the ground that as she could not prepare the food well, the accused used to trouble her. She had also brought the water on that day. Vandana further stated that, thereafter, she was sitting in the hut when the accused Nos. 1 and 2 poured kerosene on her person and set her on fire. According to her, this incident occurred at about 1 to 1.30 p.m. She has further stated that it was the accused No. 2, who poured kerosene on her person and accused No. 1 set her on fire. She started running from the house. Some neighbours gathered and extinguished the fire. According to her, she was wearing a Saree at that time, which was red in colour. She says that because of burning injuries Saree had got stuck to her body.
Therefore, after wearing another Saree she was taken to Hospital by her brother Raosaheb and one Pandurang. In the hospital at Ahmednagar, she was administered Saline and she says that, thereafter, she lodged a complaint with the police in the Hospital on which she put her signature. She has simultaneously stated that she did not know reading and writing. The complaint of Vandana, reduced into writing, is at Exhibit 17 on the record of the case.
10. In her cross-examination Vandana has, surprisingly, deviated too much from her original statement. In her cross-examination she had to admit that she did not make any complaints about ill-treatment which according to her she received from her husband, to anybody, including her neighbours. It is further clear from her cross-examination that the accused No. 1 was shorter than Vandana and was also black in colour, whereas, according to her she was quite a fair looking lady. She has further pointed out that she had studied upto IV standard and she wanted to take further education, which, she could not do because of the marriage. She has further specifically admitted in her cross-examination that the relations between her father and her father-in-law i.e. father of the accused No. 1 were also very much cordial because they knew each other prior to marriage of their son and daughter.
11. According to PW 3 Vandana, as deposed by her in her cross-examination, she used to cook food in the house. She has admitted that there were many houses in their neighbourhood and relations of this family were absolutely cordial with the neighbours. She has further stated that she cannot say exactly as to when and on what date the accused demanded Rs. 5,000/- which according to her, were remained to be paid to the accused. She has stated that she has not filed any complaint with the Sarpanch or Police Patil about the ill-treatment and also about the demand made by the accused. She has further stated that she has not even at any point of time informed to the neighbours about ill-treatment of the demand made by the accused, so much so, she had even to admit that at no point of time she complained about the behaviour of the accused as regards demand and ill-treatment to her brother. She at the same time again stated that there is a Police Out Post at Village Jeur, which is situated on the first floor of the Gram Panchayat which she knew, but she did not lodge any complaint against the accused there, nor did she send any letter at any point of time to her parents informing about the demand or ill-treatment at the hands of the accused or even as regards the other aspersions made by the accused as regards her physical stature. In cross-examination, she has further admitted that on the fateful day i.e. on the day of the incident, accused No. 1 had gone to the land for grazing catties and mother-in-law also had gone to the land. Raosaheb, according to her, took her to Hospital in a jeep. According to her, she did not inform to her brother or uncle about the incident after she was admitted in the Hospital. She has further stated that when her statement was recorded by Police she was unconscious and as per the say of her uncle and brother, she had put her thumb impression on the complaint. Her relatives were present at that time in the Hospital, when her statement was recorded. However, she has stated that she did not know as to whether she had given right hand thumb impression or left hand thumb impression. According to her, her father-in-law i.e. father of the accused No. 1 has paid all the medical charges of the Hospital and her father-in-law according to her, also had promised to expend for operation of her neck.
12. PW 3 Vandana has, however, denied the suggestion put to her as regards bursting of stove while filling air therein or that her clothes caught fire due to lamp. It is pertinent to note that she has specifically made a statement in the cross-examination that she did not know as to when the accused came on the spot of the occurrence. She has further denied the suggestion that the statements given to the police by her, were as per the suggestions of her parents and relatives.
13. PW 3 Vandana, further, in her cross-examination stated that,”…
I have not stated before the police that the accused No. 2 poured kerosene and accused No. 1 set me on fire…” She further states that,”… I have also not stated that I was wearing red Saree and, thereafter, another Saree was given to me and, thereafter, I was taken to the Hospital…”
14. If this deposition of Vandana is read between the lines it would be clear that the story which she tried to put forward in her examination-in-chief is shaken by her own deposition in the cross-examination. It is pertinent to note that she has admitted that on the day of the incident, the accused No. 1 had gone to the land for grazing the catties and her mother-in-law also gone to the land. She does not refer to their coming back as to when both of them came home and what made them to come early to home from the field. There is no reference whatsoever as regards coming back of her husband as also her mother-in-law. This statement of Vandana, if read in the context of her subsequent statement, where she has specifically stated that she did not state before the police that the accused No. 2 poured kerosene and the accused No. 1 set her on fire, if the statements are read in proper perspective and in its true context, we feel that it would be difficult to accept the story as it is tried to be put forward by the prosecution and even very presence of the accused No. 1 on the spot becomes doubtful. If the matter is tried to be looked into from this angle, then the story of accidental burning injuries, which was tried to be put in and suggested to the witnesses cannot be said to be totally out of place or cannot be said to be mis-placed story. This deposition is also to be tested on the touchstone as to what she has complained before the police. In her statement she has tried to suggest that kerosene tin was poured on her body and, according to her, it was done by the accused No. 1 alone. There is no reference to the name of mother-in-law. If this statement is to be read then it is definitely clear that she at the instance of some one tried to enrope her mother-in-law in the incident as an accused but she has totally failed to make out any case against the original accused No. 2, which makes her other deposition doubtful and un-safe to rely upon.
15. PW 3 Vandana in her supplementary statement dated 1.7.1994 which is at page 95 of the record has tried to improve specifically by saying that in her yesterday’s statement she did not make a mention of her mother-in-law who also had ill-treated her. According to her she had forgotten to mention the same. She has further, by this supplementary statement, tried to improve the version to the maximum possible extent by making allegations that her mother-in-law did not give her food to eat. She further stated that mother-in-law used to say that she had become much fat and she will have to be reduced by beating her. She has further tried to put certain sentences in the mouth of her mother-in-law in the nature that, “… Ask your father to pay remaining amount of dowry…” etc. She also used to instigate Dagadu to give good beating to Vandana, as per the statement of Vandana, and at that time, further according to her, mother-in-law never used to save her from beating. She further tried to improve by saying that in the afternoon her husband came back and at that time her mother-in-law was at home. At that time again, the husband insisted for amount of Rs. 5,000/- and at that time, according to Vandana, her mother-in-law asked her husband Dagadu to set Vandana on fire so as to recover money from her father. According to her she was pushed inside the house and kerosene was poured on her. She started shouting. According to her, her husband and mother-in-law both ran away after the accused No. 1 set her on fire. She came out in the burning state and rolled herself on the ground, when the neighbours came and extinguished the fire.
16. It is clear that the story which was tried to be developed by the prosecution appears to be on very delicate footing that the complaint and deposition of Vandana which, itself, is all through shaky.
17. PW 7 and PW 8 are the Doctors who treated Vandana. Their statements are at Exhibits 23 and 25 respectively. Dr. Ratnakar (PW 7) has stated that on 30.6.1994 Vandana was admitted in his Hospital and she was having about 50 to 60 percent burn injuries. He examined her and found that burn injuries were on her chest, abdomen, back and both upper limbs. He issued the medical certificate, Exhibit 10. According to him, the injuries were caused well within 2 to 3 hours prior to her examination.
Dated : July 29th, 1997.
18. PW 7, Dr. Mohan Tholar has stated that Vandana was admitted in his Hospital at about 3 p.m. and further that according to Doctor all through she was conscious. Dr. Mohan (PW 7) has specifically stated that on the day of the incident when Vandana was admitted to his Hospital, Dr. Gopal Kakani was Doctor-in-charge of the Hospital, who was looking after the patients. In his cross-examination Dr. Mohan has stated that the patient was administered a pain killer and the effect of the pain killer would have remained on the patient for about six hours. The patient must have felt sleepy because of the medicine and there was possibility of feeling giddiness to the patient because of the said medicine. We have made a specific reference to his cross-examination and wordings therein, in this judgment to show that it has something to do with the report recorded in the Hospital by the Police Constable and simultaneously certificate issued by the Doctor indicating that the patient all through was conscious.
19. PW 8, Dr. Gopal Kakani was the in-charge Doctor in the Hospital, where Vandana was admitted. Dr. Kakani was contacted by PW 9, Balkrishna Shinde, Police Sub-Inspector, who had gone to the hospital to record statement of Vandana. Dr. Kakani had certified that Vandana at that time was in a fit condition to give her statement. The statement Exhibit 17 recorded by P.S.I. Shinde is counter-signed by Dr. Kakani to indicate that the patient was all through conscious and made the statement. Dr. Kakani in his cross-examination has stated that, “… I had handled many cases of bum injuries…” Dr. Kakani has further stated that,”… It is true that if the lady was wearing a nylon Saree and if there was burst of stove, then such type of injuries were possible…” He further adds,”… Even such type of injuries are also self inflicted…”
20. The evidence of Doctor suggests that Vandana did receive burn injuries, which according to PW 7, Dr. Tholar were 50% to 60%. These injuries, according to Doctor, were on her chest, abdomen, back and both upper limbs. It is worth to be noted that there was no injury either on the face or on hands of the victim.
21. P.S.I. Balkrishna Shinde is examined at Exhibit 26 as the PW 9, Shri Shinde stated that he was on duty on 30.6.1992 in M.I.D.C. Police Station, Ahmednagar. At about 9 p.m. he received an information from Tholar Hospital that one lady, namely, Vandana of Village Jeur was admitted in Krupa Tholar Hospital for the treatment of burn injuries. Shri Shinde, therefore, alongwith other staff members went to the Hospital, made necessary enquiries about the patient and with the help of Doctor, contacted the patient. The Doctor he met was Dr. Gopal Kakani. PW 9, PSI Shinde wanted to record the statement of Vandana and, therefore, he sought opinion of Doctor as regards her condition and enquired whether she was in a position to give her statement. According to this witness, after the Doctor certified, he took down the statement, that is what he has said to be a complaint, as per the say of Vandana. After recording the statement, thumb impression was obtained of Vandana on the said statement, which is at Exhibit 17, already referred to above. He then forwarded the said complaint to Police Station alongwith one Constable and after necessary registration of the offence, he himself carried further investigation in the matter. On the very same day he recorded statements of certain relatives of the complainant. On the next day he went to the spot of occurrence and drew spot panchanama.
22. According to this witness PW 9, on the spot he found a tin containing kerosene, a match box and a burnt Saree. He attached said articles under a panchanama in presence of panchas, which is at Exhibit 15. Thereafter, PW 9 recorded statements of the neighbours. He again, after completion of the recording of the statements of the neighbours went to the Hospital and made certain enquiries with the patient and recorded her supplementary statement. In this second statement PW 3-Vandana has tried to fill in the lacunae which were left by her in her first report Exhibit 17. Through this supplementary statement, she tried to implicate mother of the present accused, for the first time, attributing certain acts to her in commission of the crime. It is pertinent to note that what prompted PW 9 PSI Shinde to record supplementary statement of Vandana has not come on record.
23. After recording supplementary statement both the accused were arrested. PW 9 Shinde, again on 4.7.1994 and 7.8.1994 recorded statements of some other persons and, thereafter, had requested the Tahsildar by his letter dated 14.7.1994 to draw the map of the spot of occurrence. He had sent attached articles for the opinion of the Chemical Analyser by his letter dated 13.7.1994 and received the report of the Chemical Analyser vide Exhibit 11. Thereafter, he put up charge-sheet against the accused in the Court.
24. The sum and substance of his deposition is that he conducted necessary enquiry as was expected of him and accordingly put up the charge-sheet. However, this witness is exposed in his cross-examination, particularly, when he had to admit that he did not record the statements of two very close neighbours of the complainant, namely, Dasharath and Sukhadeo, as also statements of Raosaheb Todmal who, in fact, had taken injured to Hospital in a jeep. He has also not recorded statement of one another relative i.e. Bajirao. In fact, Dasharath happens to be the witness of panchanama Exhibit 15 and close neighbour of the accused and Vandana. PW 9 Shinde further had to admit that though he had attached Saree, kerosene can and match box from the spot of occurence, he did not attach the stove, lamp and a thali i.e. dish wherein flour was there. He had no expiration as to why he did not attach those articles. PW 9 Shinde has stated that kerosene-can was containing kerosene and, according to Exhibit 15, it appears that there was about a litre of kerosene in the said can. He had to admit that he did not mention in the panchanama as to whether there were traces of kerosene lying on the ground. He had further to admit in his cross-examination that he did not remember as to what thumb impression, either left or right, of Vandana was taken on the report. However, he has tried to deny the suggestion put to him that report was false and, at the instance of the relatives of Vandana.
25. PW 9 Shinde was suggested that Raosaheb Mhaske had not told him that Rs. 5,000/- were paid a year prior to the marriage. He further specifically stated that Raosaheb did not tell him that the accused No. 2 poured kerosene on the person of Vandana. He had to admit that witness Subhadrabai (PW 5) did not tell him that the accused No. 2 poured kerosene on the person of Vandana. We are making a specific reference to these omissions/because, a new angle was tried to be given by these two witnesses i.e. PW 4 Raosaheb and PW 5 Subhadrabai to the whole incident.
26. PW 4 Raosaheb has stated in his deposition that dowry amount was settled at Rs. 6,000/- and according to him the same was paid one year prior to the marriage, whereas, if we look to the statement of Vandana herself, she has tried to say that amount was fixed at Rs. 11,000/- out of which at the time of marriage Rs. 6,000/- were paid. Raosaheb has stated that after her marriage Vandana had stayed in the house of Raosaheb i.e. her brother 2-3 times and according to him she had complained about the ill-treatment and dowry demand. Raosaheb further stated that immediately after the marriage of Mukta i.e. cousin of Vandana, father-in-law of Vandana himself had told Raosaheb to take her i.e. Vandana to his house as she was not keeping well. According to him, therefore, Vandana stayed with him for 2-3 days and then she returned to her house. According to him, it was Raosaheb Todmal, uncle of the accused No. 1 had informed him about burns sustained by Vandana. Raosaheb Todmal is not examined. Roaosaheb Todmal took her to the Hospital in a jeep. According to this witness PW 3 Vandana was conscious all through and she told him about the ill-treatment and dowry amount.
27. If we go through the cross-examination of this witness, he had to admit that he did not remember as to when and where the amount of dowry was settled. He further stated that he had not at any point of time complained about ill-treatment to his sister Vandana, which she had told to him. He has further stated that, even as regards demand of dowry, he neither did make any complaint with the Police Patil nor any one else, nor did he file any complaint against the accused and his relatives on that count. The deposition of this witness definitely shows that he has tried to improve the story particularly when he was contradicted with the omissions in his statement before the police. The reason given by him for such omissions is that he did not know as to why the same was not recorded by the police. We feel that taking into consideration the relation of PW 4 Raosaheb with Vandana, and the improvements which he has tried to make in his evidence, his deposition needs to be scrutinised very cautiously and it will have to be found out as to whether he can be trusted, particularly when, in many respects he has contradicted the evidence of his own sister, Vandana and her complaint.
28. Same is the case as regards PW 5 Subhadrabai, who happens to be the aunt of PW 3, Vandana. This witness from her version could be said to be a got-up witness, when she has tried to give exaggerated story as regards ill-treatment of Vandana. Subhadrabai has stated that on many occasions Vandana had complained about ill-treatment and demand of dowry amount. According to this witness, dowry amount was settled at Rs. 6,000/-. According to her, at the time of marriage, Rs. 11,000/- were insisted for. She had to admit that she did not know as to when Rs, 6,000/- were paid. Surprisingly, in her enthusiasm, she has deposed that Vandana’s uncle reached Vandana to the house of accused, when she alone came to stay with her parents. Who is this uncle, is not referred to. Uncle’s statement is not recorded by police nor is he cited and examined as a witness by the prosecution. In her cross-examination PW 5 Subhadrabai had to admit that she was not present when the dowry amount was settled and paid. Having confronted with her own statement as regards omissions, she has no words than just to utter that she did not know as to why police did not record in her statement, what she had told.
29. If we look to the deposition of PW 5 Subhadrabai and PW 4 Raosaheb, we cannot resist from making observations that the evidence of these two persons is of no avail to the prosecution to come to the conclusion that there was any ill-treatment much less the alleged one, meted out to Vandana. The inference in that respect is difficult to be drawn on the basis of deposition of these witnesses. The important aspect, which cannot be forgotten is that, both these witnesses also happen to be close relatives of Vandana. We are aware that it is not always necessary to disbelieve the evidence of such relatives, but at the same time we have to see as to whether the same is a clinching one to bring home the guilt to the accused.
30. A thought which is consistently pinching the mind of the Court is as to what prevented the prosecution from adducing best possible evidence which was available in the nature of parents of Vandana. Neither the mother nor the father of Vandana is examined in the matter who, in fact, could have been the best evidence on the point of alleged ill-treatment meted out to Vandana and also on the point of dowry. It is seen that the parents of the girl have not been referred to anywhere except in the statement of Vandana, when she says that she complained about ill-treatment to her parents. The best evidence to corroborate the evidence of Vandana would have been her father and mother. We, therefore, find it difficult to accept the statement of Vandana as regards ill-treatment and particularly when the support which was tried to be sought from the deposition of PW 4 Raosaheb and PW 5 Subhadrabai fall too short to bring home guilty to the accused.
31. The learned Additional Sessions Judge appears to have proceeded in the matter on certain assumptions, particularly when the learned Judge has observed that, it was an admitted position that lady Vandana had no grudge whatsoever as regards the illiteracy of the accused, his being black and short than Vandana, he being poor as compared to the family of Vandana’s parents. The learned Judge appears to have lost sight of the statement under Section 313 of the Criminal Procedure Code of the accused, wherein he made it clear that she had dislike for the accused, because of the above shortcomings. The learned Judge further observes that the evidence of Vandana and Raosaheb was sufficient to demonstrate the ill-treatment meted out to Vandana. In fact, there is no cogent evidence whatsoever on the record as regards beating. No clear instances have been referred to, nor is there any evidence in the nature of any injury on the person of Vandana by beating. No injury has been referred to even by Doctors saying that any particular injury on her person was because of the beating given to her.
32. The another point which needs a thought to approach towards the matter is as regards lodging of the complaint at a very late stage. It is the prosecution case that the alleged incident took place at about 1.30 p.m. and immediately victim-Vandana was taken to Hospital. Her brother Raosaheb was with her. However, it was for the first time, Raosaheb informed the police, at about 9 p.m. and, thereafter, statement of Vandana was recorded. There is no explanation whatsoever on behalf of the prosecution as regards this inordinate delay in lodging the complaint, and more so when, it is the prosecution case that Vandana all through was conscious. The very conduct, in this respect, of Vandana and her brother Raosaheb appears to be doubtful.
33. The question that needs consideration now is as to whether could it be said that the prosecution has proved that the accused No. 1 had subjected Vandana to cruelty within the meaning of Section 498-A of the Indian Penal Code. The evidence as regards ill-treatment and cruelty as is brought on record by the prosecution, as pointed out earlier is only through the statement of Vandana, her brother’s and her aunt’s deposition. If the evidence of these witnesses is minutely scanned, it can be said, that the said evidence is insufficient to bring home guilt to the accused under Section 498-A of the Indian Penal Code. The incidents referred to, as regards the dispute between the husband and wife because of which, it is stated that she was beaten by accused, such as not cooking the meals properly by Vandana or that the accusation against her as regards selling of Saree after marriage of Mukta, appear to be so trifle to reach to the conclusion that this was ill-treatment of such a nature which would have prompted the accused to burn his own wife. The evidence in this respect is not convicing. Same is the case as regards demand of dowry amount, but for the statement of Vandana other evidence on the record do not corroborate her in any material particulars. If Vandana’s evidence is seen alongwith her report to the police, but for her bare statement that she had complained to her parents, there is nothing on record that really there was insistence for demand of dowry amount. Vandana has nowhere stated in her deposition that she has made any complaint to her brother. Whereas, if we see deposition of her brother he has tried to paint a picture saying that many a time, complaints were made to him by his sister Vandana. PW 4 – Raosaheb nowhere states that in his presence Vandana at any point of time made complaints about the ill-treatment and demand of dowry with her parents. Since the story appears to be false and concocted one, adverse inference has to be drawn because of the non-examination of the parents of Vandana, to whom she alleged to have several times made complaints about the illeged ill-treatment and demand of dowry amount.
34. Another important aspect which needs consideration is deposition of PW 2 Dasharath, who happens to be a panch witness for Exhibit 15. Dasharath had to accept in his cross-examination that he happens to be neighbour, just at a distance of 10 to 15 feet from the house of the accused. He has about 8 to 10 members in his family. Dasharath had to admit that he did riot find any smell of kerosene in the hut or he did not see traces of kerosene sprayed in the hut. He has further stated that he had not seen whether really was there any kerosene in the tin or not. A reference is made in the panchanama that kerosene about a litre was there in the tin. This statement is not supported by PW 2 Dasharath. He has specifically stated that at no point of time he had no occasion to see any ill-treatment to Vandana at the hands of the accused. He had not any occasion to note that the accused was making demand for the dowry amount from his wife.
35. There is no explanation as to why the stove, the thali i.e. dish in which flour was there and the lamp were not seized, which otherwise would have been helpful to dislodge the probability of accidental case. It is also not clear as to what prompted the police authorities to record supplementary statement of Vandana, particularly when, according to the prosecution, Vandana while giving her first statement was fully conscious. It is also surprising that if Vandana was educated upto IV standard, why her thumb impression was obtained on Exhibit 17. There is nothing on the record to indicate that her hands were injured or that because of some other reason she was not in a position to sign the document Exhibit 17. All these aspects and lacunae in the prosecution compel us to think it unsafe to convict the accused on the basis of such a delicate and fragile evidence on the record. The conviction appears to have been based on the testimony of Vandana and the sentimental approach of the Court towards the matter.
36. We cannot forget that it is well settled principle of law that to interpret the penal statute, the principles of strict construction are to be applied. If the evidence on record appears doubtful even in the slightest way to bring home the guilt to the accused, then it would be un-safe to convict the accused on the basis of such evidence. We cannot also forget that if there would have been any altercations in between the husband and wife, that altercations or the conflict arising therefrom cannot be said to have been covered by the definition “cruelty” and cannot attract the provisions of Section 498-A of the Indian Penal Code. In the result, we find it difficult to agree with the conclusions arrived at by the learned Additional Sessions Judge, Ahmednagar.
37. Since, according to us, the evidence as regards Section 498-A of the Indian Penal Code is absolutely insufficient, then the question comes as regards the consideration of an offence under Section 307 of the Indian Penal Code. There is absolutely no evidence whatsoever to show that the accused involved himself in such an act with such an intention or knowledge to cause any such injury which ought to have resulted into the death of Vandana. There is absolutely no evidence to indicate that the accused in a slightest manner attempted to commit murder of Vandana. When the very foundation of the case is shaky, we even without slightest vacillation of mind reach to the conclusion that there is no case made out by the prosecution against the accused under Section 307 of the Indian Penal Code. The evidence on record is not enough to enrope the accused under Section 498-A so also Section 307 of Indian Penal Code. We, therefore, set aside the judgment and order of conviction of the accused for the offences charged with and also quash and set aside the order of sentence and the fine imposed.
38. In the result, the appeal is allowed. The accused stands acquitted of the offences charged’ with and he be set at liberty forthwith, if not required in any other case. The amount of fine, if paid, shall be refunded to the accused