Raju Mohansingh Bhati vs State of Maharashtra

The challenge is to the judgment and order dated 02-4-2002 passed by the learned 2nd Ad hoc Additional Sessions Judge, Nagpur in Sessions

Trial 501/2001, by and under which, the appellants are convicted for offences punishable under Sections 498-A and 307 read with Section 34 of

the Indian Penal Code ("" IPC "" for short) and are sentenced to suffer rigorous imprisonment for two years and to payment of fine of Rs.500/- each

for offence punishable under Section 498-A read with Section 34 of the IPC and are further sentenced to suffer rigorous imprisonment for three

years and to payment of fine of Rs.750/- each for offence punishable under Section 307 read with Section 34 of the IPC.

Accused 1 Raju Bhati, the husband of the complainant Archana, expired during the pendency of the appeal. Accused 2 Prabha, is the mother-

in-law, accused 3 Hirasingh is the brother of deceased Raju Bhati, accused 4 Sunita is the wife of Hirasingh and accused 5 Lalita is the married

sister of deceased Raju Bhati.

Heard Shri S.A. Jaiswal, learned Advocate for the appellants and Shri N.B. Jawade, learned Additional Public Prosecutor for the

respondent/State.

Irrefutably, the complainant Archana (P.W.1) suffered burn injuries on 15-3-2001 and was admitted to the Mayo Hospital, Nagpur. Her

statement was recorded by P.W.10 Head Constable Sudhakar Patil (Exhibit 14) which is treated as the first information report, on the basis of

which Tahsil Police registered offences punishable under Sections 498-A and 307 read with Section 34 of the Indian Penal Code.

The report (Exhibit 14) recites that the complainant Archana and accused Raju Bhati entered into matrimonial alliance in 1999. The couple is

issueless. Since marriage accused Raju and accused Prabha used to berate and beat Archana since dowry was not paid. Two months prior to the

incident accused Raju and Prabha asked Archana to either bring money from her parents or to leave the house. Accused Raju and Prabha caught

hold of Archana''s hair and after subjecting her to severe beating by delivering fist blows, drove her out of the house. Archana went to her

mother''s house situated in Shanti Nagar and was treated in a private hospital for breast pain. Archana expressed desire to cohabit with her

husband Raju and her brother Prakash (P.W.3) escorted her to the matrimonial house situated at Gandhi Bagh on 15-3-2001. On her arrival at

the matrimonial house at 2.30 p.m. on 15-3-2001, accused Raju started beating Archana with fists asking her as to why she returned and then he

went away. Accused Prabha, Hirasingh, Sunita and Lalita ignited the stove, pushed Archana on the stove and catching hold of her person held her

on the burning stove due to which she suffered burn injuries on both hands, breasts, private parts and stomach. She was admitted in the hospital by

neighbours.

The material witnesses to prove the cruelty to which according to the prosecution Archana was subjected, are from the perspective of the

prosecution, P.W.1 Archana, her mother P.W.2 Bebibai and her brother P.W.3 Prakash. In so far as the prosecution case that the accused

attempted to murder P.W.1 Archana, direct evidence from the perspective of the prosecution is that of P.W.1 Archana and the evidence of P.W.2

Babibai and P.W.3 Prakash is relied upon as corroborative evidence. It would be apposite to scrutinize the evidence of P.W.1 Archana and to

search for corroboration in the first information report (Exhibit 14). It is the case of the prosecution, that although P.W.1 Archana suffered 45% to

50% burns, she was fully conscious and in a fit condition to give statement.

P.W.1 Archana has deposed that after six months of the marriage, accused Raju was beating her under the influence of liquor and was

demanding Rs.10/-, 20/- and 50/-. The other accused beat Archana. Accused Hirasingh abused her in filthy language. P.W.1 states that on one

Sunday all the accused beat her and drove her out of the house. She went to her mother''s place and since she sustained bleeding injuries was

admitted in hospital of Dr. Wali. P.W.1 was indoor patient for eight days and after discharge stayed at her mother''s house for two months. She

asked P.W.3 Prakash to escort her to the house of the accused. When she and Prakash went to the house of the accused, both were abused.

P.W.1 asked Prakash to return to his house. P.W.1 was abused and beaten by all the accused. She was on her way to lodge report in police

station when the accused caught hold of her hair, closed the mouth and pulled her inside the house. All the accused beat her, poured kerosene oil

on her person and pushed her on the stove and when P.W.1 started burning, the accused fled from the spot.

In the cross-examination, P.W.1 admits that accused Lalita is residing at Lendi Talao and accused Hirasingh used to leave the house in the morning

in connection with his bardana business and return in the evening. P.W.1 admits that prior to the incident she had gone to her mother''s house

without the permission of the accused or other family members and during her stay of two months at her mother''s house, there was no

communication between the two families. She disclaims knowledge about the accused having raised the issue of P.W.1 going to her mother''s

house in the caste panchayat. She claims ignorance about the insistence of Prabha that a written undertaking be given before the panchas that

P.W.1 would not go to her mother''s house without permission. A suggestion is given to her that when she and Prakash came to the house of the

accused, there was a quarrel between them and accused Prabha since Prabha insisted that P.W.1 will not be allowed to reside in the matrimonial

home in the absence of panch. However, P.W.1 admits that a quarrel did take place between she and Prakash on one hand and accused Prabha

on the other. She denies the suggestion that after the quarrel with P.W.3, Prabha went to the police station to lodge report.

The statement that accused Prabha, Raju, Sunita used to beat P.W.1 and accused Hirasingh was abusing her in filthy language, is an omission.

P.W.1 states that she did not remember whether she disclosed to the police that she was asked to bring Rs.10/-, 20/- or 50/-. The statement that

she was beaten on face and chest and was admitted in the hospital of Dr. Wali for eight days, is an omission. The variance between the version of

the incident as stated in the first information report and the examination-in-chief is put to P.W.1 and the omissions are brought on record. I will

advert to this aspect at a later stage in the judgment. P.W.1 denies the suggestion that she suffered accidental burns and that the accused are falsely

implicated. P.W.1 states, that she was desirous of residing with accused Raju separate from other family members, even after the incident. She

admits that she was read over the report by police, but denies the suggestion that she is giving false evidence at the behest of the police.

At this stage, it would be pertinent to note the variance in the version, in the first information report and in the deposition which variance is not on

minor or peripheral aspects. The first information report attributes ill-treatment on the issue of dowry only to accused Raju and Prabha. In so far as

the incident which occurred two months prior to 15-3-2001, the version in the first information report is that accused Raju and Prabha asked her

to bring money or to leave the house, they caught hold of her hair and physically assaulted her by fist blows. In the deposition, other than Raju and

Prabha, accused Sunita and Hirasingh are implicated and P.W.1 states that on one Sunday all the accused assaulted and drove her out of the

house. Her statement that she was admitted in a private hospital as indoor patient for eight days, is an omission and the prosecution has not

produced any evidence to substantiate the said assertion.

The version in the first information report is that it was only accused Raju and Prabha who used to scold and beat her on the issue of dowry. In the

deposition, P.W.1 has implicated all the accused except accused Lalita as the family members who used to beat her. Hirasingh is further alleged to

have abused P.W.1 in filthy language. Endeavour of P.W.1 to exaggerate and over implicate demands that her evidence must be tested with

extreme caution.

The evidence on the incident which took place on 15-3-2001 is marred by glaring improvements and over implication. The first information report

implicates accused Raju only in physical assault and recites that it was after Raju left, that the other accused ignited the stove, pushed her on the

stove and catching hold of her person held her on the burning stove. In stark variance, the deposition implicates accused Raju in the incident. The

deposition is that P.W.1 and her brother P.W.3 were abused, P.W.1 was abused and beaten and when she was on her way to lodge police

report, the accused caught hold of her hair, closed the mouth and dragged her inside the house. P.W.1 was assaulted by all the accused who then

poured kerosene oil on her person and pushed her on the stove. This court is alive to the position in law that the first information report is not

expected to be an encyclopedia. The object of the first information report is to set in motion the wheels of investigation if basic facts constituting the

offence are discernible. However, if the omission in the first information report is on vital aspects illustratively as regards the presence of the

accused on the spot or the names or identities or in certain circumstances the role played by the accused in the incident, the omission in the first

information report and the inconsistencies and improvements must put the Court on guard to rule out the possibility of false or over implication. The

fact that the first information report states that accused Raju left and then the other accused caused the burn injuries is incompatible with the

deposition that all the accused including Raju are responsible for the incident. The first information report makes no reference to the accused having

forcibly dragged her inside the house and then assaulting her and pouring kerosene oil on her person. The version of the incident in the first

information report is that accused Raju left after assaulting P.W.1 with fists and thereafter the other accused ignited the stove, pushed P.W.1 on the

stove and held her on the burning stove causing injuries. The deposition is that all the accused including Raju abused and beat P.W.1 and when

P.W.1 was proceeding to the police station to lodge report, the accused caught hold of her hair, closed her mouth and dragged her inside the

house, she was again assaulted and the accused poured kerosene oil on her person and pushed her on the stove.

The testimony of an injured witness is ordinarily on a higher pedestal than that of other witnesses. However, the evidence of P.W.1 is not per

se implicitly reliable and confidence inspiring and it is, therefore, necessary to search for corroboration to satisfy the conscious of the Court that the

offence is proved beyond reasonable doubt. P.W.3 Prakash, who escorted P.W.1 to the matrimonial house, states that at 12-30 p.m. he and

Archana arrived at the house of the accused. Accused Prabha quarrelled with P.W.1 Archana. Rest of the accused were also there. The accused

threatened that if P.W.1 Archana does not go back, she will be set on fire. P.W.3 asked Archana whether she was willing to come back and the

response was that P.W.3 should go back and she will stay. This evidence is proved omission. That apart, if such serious threats were really issued,

the conduct of P.W.3 Prakash to leave his sister P.W.1 in matrimonial house at the mercy of the accused is unnatural. The evidence that two

months prior to the incident the accused assaulted Archana and she was admitted in the hospital of Dr. Wali as indoor patient for eight days, is

again an omission. The evidence on harassment and beating in connection with monetary demand, is hearsay.

P.W.2 Babibai has deposed that Archana was harassed for monetary demand of Rs.10, 20 and 50 thousand and that prior to two months of

the incident she was driven out of the house by the accused. In the cross-examination, she admits that she stated before the police that Archana

told her that she was treated well for one year.

The prosecution witnesses have admitted that there is only one entrance and exit to the residence of the accused. P.W.4 Renuka is a neighbour

who has deposed that on hearing commotion, she reached the first floor of the building and saw P.W.1 burning. Another neighbour Pushpa

(P.W.5) joined her and since her husband Narendra owns auto-rickshaw, P.W.1 Archana was taken to the Mayo Hospital in the auto-rickshaw.

P.W.4 states that P.W.1 was shouting ""save, save"". She admits in the cross-examination that when she entered the house of the accused and saw

Archana burning, none of the accused was present. Similar is the deposition of P.W.5 Pushpa.

On a holistic appreciation of the evidence on record, it is difficult to record a finding that the prosecution has proved the offence beyond

reasonable doubt. The evidence is not compatible only with the guilt of the accused. The version of the prosecution is rendered doubtful in view of

the inconsistencies, discrepancies and embellishments which are noted supra. The benefit of such doubt, must be given to the accused. The

conviction cannot be recorded on suspicion, howsoever strong the suspicion may be. The deposition of P.W.1 Archana that even after the

incident, she was desirous of residing with accused Raju separate from the other family members, is of some significance since even in the tradition

bound Indian society, a victim of attempt to murder would rarely, if at all, desire to cohabit with the person who attempted to kill her.

In the light of the discussion supra, I am impelled to give the benefit of doubt to the accused and to hold that the prosecution has not

established the offence punishable under Sections 498-A and 307 read with Section 34 of the IPC beyond reasonable doubt.

The judgment and order impugned is set aside.

The accused are acquitted of the offence punishable under Sections 498-A and 307 read with Section 34 of the IPC.

The bail bonds of the accused shall stand discharged.

Fine paid by the accused, if any, be refunded to them.

The appeal is allowed.