Home > 498A, Judgments > No proof of ILL-Treatment. Another Man acquitted in 498a by Bombay High Court.

No proof of ILL-Treatment. Another Man acquitted in 498a by Bombay High Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE  CRIMINAL
CRIMINAL APPEAL NO.70 OF 2010

Vilas Narayan Shelke,
age 31 years, r/o Vihitgaon,
Bagul Nagar, Nasik Road. …. Appellant
– Versus –
1. The State of Maharashtra
2. Dadurao Bhivsan Mohite,
r/o Ghankheda, Sangampur,
Talula  Jafrabad,
District: Jalna. …. Respondents
S/Shri M.S. Karnik with Hemant Inamdar
for the Appellant.
Ms S.D. Shinde, Addl. Public Prosecutor,
for the State.
CORAM: R.C. CHAVAN, J.

DATED: SEPTEMBER 14, 2010
ORAL JUDGMENT:
1. This appeal is directed against the judgment and order of the learned Additional Sessions Judge, Nasik, passed in Sessions Case  No.42 of 1998, convicting the appellant for the offence punishable under Section 498-A of the
Indian Penal Code (hereinafter referred to as  the IPC ) and sentencing him to suffer RI for three years and to pay a fine of Rs.3,000/-.
2. The facts which are material for deciding this appeal are as under:
The victim Rekha was married to the appellant about one-and-half year before the incident. It was alleged that the appellant and his relations were asking Rekha to bring a sum of Rs.50,000/- from her parents for purchasing an autorickshaw. The appellant and the other members of his family used to ill-treat Rekha because of her failure to bring this money. She was forced to sleep on a gunny bag and also used to be starved at times. On 8-1-1998 Rekha
sustained severe burn injuries and was taken to a hospital. In her first statement recorded, she stated that she had sustained accidental burns. In the second statement, she stated that she had been set on fire by the appellant and
his mother. After registering an offence, the police started investigation and in the course of which they recorded statements of several witnesses. Rekha succumbed to her injuries on 14-1-1998. After performing the inquest on her
dead body, her body was sent for post mortem examination which revealed that Rekha died as a result of shock due to 80% burns. On completion
of the investigation, charge-sheet was sent. Upon commitment of the case by the learned Magistrate, the learned Addl. Sessions Judge, Nasik to whom the case was assigned, charged the appellant and his relations for the offence
punishable under Sections 498-A and 302 r/w Section 34 of the IPC. Since they pleaded not guilty, they were put to trial at which the prosecution examined as many as 16 witnesses. The defence of the appellant and the other accused persons was that of denial. After considering the prosecution evidence in the
light of the defence raised, the learned trial Judge by his impugned judgment and order acquitted all the accused persons of the offence punishable under Section 302 r/w Section 34 of the IPC and also acquitted all the accused persons, excepting the appellant, of the offence punishable under Section 498-A of the IPC. He, however, convicted and sentenced the appellant, as aforementioned, for the offence punishable under Section 498-A of the IPC.
3. I have heard the learned counsel for the appellant and the learned APP for the State. I have also gone through the record and proceedings of the case.
4. The learned counsel for the appellant submitted that after having held that the accused persons were not guilty of murder, the trial Judge should have seen that the victim s relations had levelled a false charge of murder unnecessarily aggravating the incident. He should have, therefore, seen that they were thoroughly unreliable. The learned counsel also submitted that the statements about illtreatment of the victim, on which the learned trial Judge relied, should have been disbelieved because none of those witnesses had
referred to any ill-treatment to Rekha in their statements made before the investigation officer.
5. The learned APP, on the other hand, submitted by drawing my attention to the panchnama of the spot that Rekha was in all probability burnt by the appellant and others and the statements of the neighbours clearly indicated that she was subjected to illtreatment. First, there is no appeal by the
State against the acquittal of the appellant and others of the offences punishable under Section 302 of the IPC. It is not that the learned trial Judge has held that Rekha was burnt by the appellant and others and that such
burning did not amount to murder but only constituted an offence of cruelty. He has held that the probability of Rekha having caught fire accidentally was more and, therefore, ruled out the theory of her having been set on
fire. If that be so, there has to be some independent evidence of independent incident of the victim being subjected to ill-treatment by the appellant.
6. The learned APP submits that there are four neighbours, PW-7 Bhanudas Hiraman, PW-8 Kishore Wagh, PW-9 Sham Unavane and PW-10 Aminabai Khan. All of them except one state that Rekha was subjected to ill-treatment by
the appellant and others. These witnesses had not disclosed about such ill-treatment in their statements before the police. When confronted with those statements, they admitted that their police statements did not contain anything indicative of the victim having been subjected to ill-treatment by the appellant. The claim of some of the witnesses that they had so stated before the investigation officer was debunked by PW-16 PSI Bhaskar Badgujar who conducted the investigation. He states that none of these witnesses had disclosed any such thing to him.
7. According to the learned APP, the learned trial Judge observed that if the I.O. does not ask the question and witness would have no occasion to narrate or convey the information, then in that case the statement of witness in the Court would not amount to omission. Now this pre-supposes too many things
which may not be permissible. First, the I.O. would be under an obligation to ask all relevant questions and in case of death of a young married woman, where there is a complaint of ill-treatment by the father of such woman,
the I.O. would be obliged to ask the neighbours about ill-treatment. Absence of reference to any such ill-treatment in the statements recorded by the I.O. would be indicative of absence of such a mention by the witnesses themselves and, therefore, the learned trial Judge should not have readily accepted the case on post facto statements of the witnesses about ill-treatment of the victim at the hands of the appellant. In view of this, the conviction of the appellant for the offence punishable under Section 498-A of the IPC cannot be sustained.
8. The appeal is, therefore, allowed. The The appellant s conviction for the offence punishable under Section 498-A of Indian Penal Code and sentence of RI for three years and fine of Rs.3000/- are set aside. Fine, if paid, be refunded. The bail bond stands cancelled.
Sd/-
(R.C. CHAVAN, J.)

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