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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: ASHOK CHOTELAL SHUKLA

DATE OF JUDGMENT:       01/08/1997

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI,J.      This appeal,  by the  State of  Maharashtra is Directed against the  common judgment  and order passed by the Bombay High Court,  in Confirmation Case No. 4 of 1986 and Criminal Appeal No. 288 of 1986. The High Court reversed the Judgment of the Court of Sessions for Greater Bombay in Sessions Case No. 585 of 1984 convicting the respondent under section 498A IPC for  subjecting his  wife Vibha  to  cruelty  and  under section 302 IPC for causing her death.      The respondent  married Vibha  on 29.5.1981.  Vibha was the daughter  of Chandrakant  Shukla, an  uneducated person, who started  his life as a salesman, but eventually switched over to  business and  in due course of time became an owner of 15  flour mills  and 3  buildings. He  had four daughters including Vibha.  Vibha had  studied upto  first year B.Sc.. Vibha’s family was staying at Jogeshwari. At the time of his marriage the respondent was staying with his father Chotelal who was  then an Assistant Commissioner of police in Bombay. They were  staying  in  a  Government  flat  at  Dadar.  The respondent was  then serving  in    local  concern.  He  had obtained some  qualification in  engineering from  a foreign private institution.  It was  the prosecution  case that the proposal had come from the respondent’s side for the hand of Vibha an during further negotiations respondent’s father had demanded dowry  of Rs. 1,50,000. Ultimately, Chandrakant had agreed to  pay Rs. 1,00,000 as dowry inclusive of jewellery, utensils and  clothes. After  their marriage  the respondent and Vibha  had started  staying in  a flat  at Mulund  which belonged  to   the  respondent’s   father.  Vibha’s   father chandrakant was  required to  pay money  for  utensils,  gas connection  and  other  articles  required  for  setting  up respondent’s home  at Mulund.  It was  also the  prosecution case that on the very first visit by the parents of Vibha to the respondent’s  father’s flat  at Dadar,  the respondent’s father had  insulted Vibha’s mother Pushpa. He considered it belows his  dignity and  status to  talk to  the parents  of vibha as  they were uneducated. The prosecution case further was that  in  September  or  October,  1981  the  respondent decided to  give up  the job and set up a plastic factory of

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his own.  He wanted  Vibha’s father  to give  money for that purpose. Vibha’s  father to be a guarantor and also obtained his signatures on some loan papers. The respondent, however, did not  invite him  on the opening day of the factory; but, when he  went on  his own to the factory after about 10 days the respondents  had told  him that  he needed more money to run his  factory. thereupon  he had  paid Rs.  30,000 to the respondent. That was in November or December, 1981.      Vibha was  by that  time pregnant  so she  went to  her parent’s house  at Jogeshwari in January, 1982 for delivery. she gave  birth to  a female  child on 27.3.1982. She had to undergo a  Caesarean operation.  even though  the respondent and his  parents were informed about the operation and birth of the female child none of them visited the hospital at the time of  the operation.  even thereafter  the parents of the respondent did  not visit  the hospital to inquire about the health of  Vibha or  to see  the female  child. None of them remained present  on 7th  April, 1982  the day  on which her naming ceremony  was performed.  The female  child was named Rachna. After  about four or five days Rachna became ill and was admitted  in a  hospital for  about 15 days. Only on the next day  the respondent  had gone  to the  hospital but his parents had  not visited  the hospital  at all. In may, 1982 the  respondent   had  visited  Vibha’s  father’s  house  at jogeshwari and  demanded rs. 5,000 as that amount was needed by him, vibha’s father had paid that amount. On the same day vibha along  with her  daughter Rachna and sister Sushma had gone to  Vibha’s in  law’s house at Dadar. Vibha was allowed to stay  but the  respondent had  told sushma to take Rachna back and  when Sushma  had shown  her inability  to take the child back  the respondent  had told  her to place the child under tyres  of a  car. On  vibha’s request  not to  quarrel Sushma had  gone back  with the  child who  was  brought  up thereafter by the parents of Vibha.      It was  also the  prosecution case that by this time at the instance  of the  respondent  Vibha  had  withdrawn  rs. 15,000 from  her bank  account and  paid to  the respondent. During one  of his  visits to  Vibha’s  parent’s  house  the respondent had  stated to  them that  he  had  no  love  and affection for  Rachna or even for Vibha and that he was more interested in  money. Right from September-October, 1981 the respondent and  his parents were harassing her for money but she was  tolerating the  harassment with  the hope of better days in future. On 26.11.1983 possibly because the situation became intolerable  Vibha had telephoned her father that she was being  harassed by  the respondent  and his  parents and that he  should come and take her and back immediately. When Vibha’s father  had gone there she was found crying. When he had inquired  about  the  reason,  respondent’s  father  had replied that  the respondent  was in  need of Rs. 30,000 and that he should pay that amount. When Vibha’s father had told him to  take his  daughter back.  He was thus forced to take Vibha back  to his  house at Jogeshwari. It was only because of the  apology and assurance given by the respondent on the Next day,  that he would treat her well that Vibha’s parents had sent  her back,  even though  she was not willing to go. Between 27.11.1983  and  22.6.1984  Vibha  had  visited  her parent’s house  on 3  or 4 occasions to see her child and on all those  occasion she  had complained about the harassment given to her for the sake of money.      On 22.6.1984  she had  sent a telephonic message to her parents that  her mother should be sent with her daughter at Mulund on  the next day as she was thereafter to go to Dadar and stay  there  for  few  days.  Therefore,  on  23.6.1984, Vibha’s mother  Pushpa (PW-8)  and her  sister Usha  (PW -2)

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along with  the child  went in  their jeep  to  Mulund.  the driver and  Rachna first  went up  in a lift. The respondent did not  allow the  driver to  enter the  flat. By  the time Pushpa and  Sushma reached the flat child Rachna had started crying so  they told  the driver  to take  her down.  Sushma pressed the bell for about 10 minutes but the respondent did not open  the door.  They could hear the respondent uttering abusive words  from inside  the flat.  When  the  respondent opened the  door and  they entered  the flat they found that Vibha was  burning in  flames and  was lying on the floor of the drawing  room. The  respondent was  found not taking any initiative for  extinguishing the  fire. So  Sushma pulled a curtain and  extinguished the  fire. Thereafter  when Pushpa inquired as  to what  had happened  Vibha had  told her that Ashok Ne  Mujhe Jala Diya ( Ashok has burnt me). Pushpa then requested he respondent at least to call a doctor. Thereupon the respondent went down, sat in the jeep of Vibha’s father, went to a hospital and got himself admitted there instead of sending  a  doctor  for  treatment  of  Vibha.  One  of  the neighbours of  the respondent  called a doctor who gave some preliminary treatment to Vibha. One of the neighbours of the respondent  called   a  doctor  who  gave  some  preliminary treatment to  Vibha and  took her  to Sion Hospital. By that time Dr.  Shah made  arrangements for  Getting her  admitted Vibha’s father  had also  arrived thee  and when he inquired from Vibha as to what had happened she told him that she was burnt  by  Ashok.  The  police  was  informed,  a  case  was registered and  ultimately the  respondent was chargesheeted and tried  for  committing  the  offences  punishable  under Sections 498A and 302 IPC.      The defence  of the  accused was  that because  he  had become fat  and bulky and his face was disfigured because of an attack of small pox after the marriage and as the parents of Vibha  believed that he had taken to smoking and drinking and was  in a  bad  company,  they  thought  that  they  had committed a  mistake in  getting their daughter married with him and therefore wanted her to take a divorce. That was the reason why  the parents  of Vibha were not sending Rachna to his house  even though  he w  as willing  to  keep  her.  As regards the  incident or   23.6.1984,  his version  was that while  he   was  talking   with  Prakash  Tambe  (PW-9)  and Maheshchandra Tiwari  (PW-10) in  the  drawing  room  driver Vijay Gari  Yadav (PW-11)  came there with Rachna. As Rachna started crying  he shouted  for Vibha.  At that  time  Vibha rushed into the drawing room in burning condition. On seeing Vibha burning  Tambe, Tiwari  and Yadav ran out of the flat. At that  moment Pushpa  and  Sushma  entered  the  flat  and started shouting  ’Aag Laga  Gaya’. While  extinguishing the fire with the help of a curtain he received burn injuries on his hands and face, so he went to a private hospital and got himself  admitted  there.  He  did  not  explain  the  other incriminating circumstances.      In order  to prove  the charge  of cruelty, prosecution had relied  upon the  following circumstances and incidents, as disclosed from the evidence of Chandrakant (PW-7), Pushpa (PW-8), Usha (PW-2), Sushma (PW-12) and Mrs. Wagle (PW-13):- 1)   insult of  Vibha’s parents  by respondent’s father when      they had  gone to  the house of respondent’s parents at      Dadar, first time after the marriage of Vibha; 2)   attitude of  the parents  of the respondent at the time      of delivery of Vibha; 3)   attitude of  the parents  of the respondent at the time      of delivery of Vibha: 4)   attitude of  the parents of the respondent while Rachna      was required to be Hospitalised  for a fortnight;

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5)   not allowing rachna to remain in their house when vibha      returned after delivery; 6)   no love  and affection  shown by  the respondent ad his      parents for rachna; 7)   incident of 26th November, 1983 when the respondent and      his father told Vibha’s father to take her back; 8)   demand of  dowery and  payments made  by Vibha’s father      Chandrakant (PW-7); 9)   not giving  utensils and  other household  articles  to      Vibha by the parents of the respondent when she and the      respondent started  staying  at  the  Mulund  flat  and      requiring  the   parents  of  Vibha  to  purchase  such      articles; and 10)  demands for money made by the respondent and his father      for the business of the respondent.      On the  basis of first seven incidents/circumstances it was contended  by the  state that  the respondent had by his wilful conduct  caused Cruelty to Vibha. The remaining three circumstances were relied upon in support of it s contention that the respondent had harassed Vibha with a view to coerce her and   her  father to meet the unlawful demands for money and/or that  the harassment was on account of failure by her and her father to meet such demands.      The trial  court held the first incident as not proved. Circumstance number  2 was  held as  no circumstance against the respondent.  As regards the third circumstance the trial court, in  absence of  consistent evidence  as  to  how  the invitation was extended to the parents of the respondent and in view  of the  fact that  they were not personally invited but the  invitation was  extended only  over telephone, held that their not attending the function, was not indicative of any intention  to harass.  The trial court further held that in any  case their  indifference and improper attitude could not be regarded as a circumstance against the respondent. In absence of  any evidence to show that the respondent himself was informed about the naming ceremony, the trial court held that his  remaining absent could not be regarded as a wilful conduct intended  to cause  cruelty. Incidents/circumstances at serial numbers five six and seven were held proved. Fifth circumstance was  held sufficient to establish cruelty under section 498A  IPC. Sixth  circumstance was  held an  act  of torture amounting  to cruelty. Seventh circumstance was held an act  of cruelty. the trial court further held that merely because the  respondent had  apologised on  the next day and assured good  treatment to  Vibha in future, the said act of cruelty  did   not  get   wiped  out.   Thus  relying   upon circumstances/incidents at  serial numbers  5, 6  and 7  the trial court  held that  cruelty as  explained by Explanation No. 1  of Section  498A was  satisfactorily  proved  by  the prosecution.      Out of  circumstances numbers  8,9 and  10 circumstance number 8  was held not proved. Circumstance number 9 was not considered as  an unlawful demand amounting to cruelty. Only circumstance number  10 was  held proved and the trial court considered such  demands as  acts of harassment contemplated by the second Explanation to section 498A IPC.      In order  to prove the charge of murder prosecution had relied upon:- i)   Motive, as disclose by the evidence of Chandrakant (PW-      7), Pushpa (PW-8), Usha (PW-2), Sushma (PW-12) and Mrs.      Wagle (PW-13); ii)  evidence of Usha (PW-2)  and Pushap (PW-8) as regards      the events which took place on 23.6.1984; iii) evidence of  hostile witnesses  Prakash  Tambe  (PW-9),      Maheshchandra Tiwari  (PW-10) and Vijay Hari Yadav (PW-

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    11); IV)  The circumstances  disclosed by  the scene  of offence-      panchnama; v)   Immediate conduct of the respondent; and vi)  Dying declarations and medical evidence.      The trial  court believed  that the  respondent was  in need of  money for his business, that he was harassing Vibha with a  view to  coerce her to get money from her father and that Vibha’s father had shown his unwillingness to give more money to  him. It,  therefore, held  that, after having lost hope of  getting money  from Vibha’s  father, the respondent had enough motive to kill her. The trial Court believed that the hostile  witnesses Tambe  (PW-9) and  Tiwari (pw-10) had gone to  the respondent’s  flat on  23.6.1984 at  about 2.15 P.M. but  held that  it was  not possible  to  accept  their version about the main incident as they were not telling the truth. It  disbelieved their  version that when driver Yadav (PW-11) came,  they opened  the door  of the  flat whereupon Yadav   came inside and talked with the respondent, and that when Rachna  started crying  the respondent  shouted ’Vibha- Vibha’ and  at that time Vibha came into the drawing room in flames. After  considering their  evidence  along  with  the evidence of  driver Yadav   (PW-11),  who  had  also  turned hostile, the  trial court  held that ; (i) driver Yadav  had not entered  the flat along with Rachna, (ii) Vibha had come to the  drawing room  in burning  condition  and  thereafter Tambe and  Tiwari had rushed out of the flat, and (iii) when tambe and  Tiwari rushed out of the flat, driver Yadav , who had by  that time  reached the  flat along  with Rachna, had pressed the  door bell,  but the  respondent closed the door and did not allow him to enter into the flat.      The trial  Court found  the evidence of Usha (PW-2) and Pushpa (PW-8)  as reliable  and true and held that when they reached the  5th floor  they saw  tow persons  hastily going down stairs,  that they  told driver  Yadav   to take rachna down stairs  as she  was crying  that Usha  pressed the door bell for  about ten minutes, but the respondent did not open the door,  that when he opened the door and they entered the flat they  saw vibha  burning and lying in the drawing room, that Usha  (PW-2) pulled  a curtain  and tried to extinguish the  fire   and  that  Pushpa  (PW-8)  had  to  request  the respondent to call a doctor.      Considering their  evidence together  will the  picture emerging from the scene of offence Panchnama the trial court held as under:-      "Considering the  scene of  offence      it appears that Vibha was burnt not      in the  drawing room but major part      of the  burning has  taken place in      the   passage between  the  drawing      room and  the bed room,. It is also      in evidence of PW. 2 Mrs. usha that      the oil  can Court  Article  4  was      lying in  drawing room  and  it  is      argued by  the learned  counsel for      the   prosecution    that   it   is      impossible  to   believe   that   a      burning lady would carry oil can in      her hands  carrying it from bedroom      to drawing  room. therefore, it can      safely be  inferred that  5  or  10      minutes after  P.W. 9  and P.W.. 10      Tiwari  left  the  flat  Vibha  was      burning  and  ultimately  she  fell      down burning in the drawing room on

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    the  carpet  due  to  which  partly      carpet was  burnt and at that stage      the fire  must have been at its fag      end and  at that  time the door was      opened and  therefore, curtain  was      used to  extinguish the  fire  with      the result  that a very small patch      of the  curtain is  found burnt. If      the fire was in such huge flames at      the  time  when  P.W..  8  were  to      extinguish it,  the  whole  curtain      would have  got  burnt.  That  also      pre-supposes that  earlier to  that      no attempt  seems to have been made      with the  use of  that  curtain  to      extinguish the fire. Nothing can be      said about the use of abusive words      or shouts  of  Vibha  witnesses  it      does appear  that they  had entered      in the  flat when  Vibha was in the      last stage  of her burning. Because      of which  both these  witnesses did      not get  any burn injuries The fact      that sofa  chair  was  also  partly      burnt court Article 1 is proved and      there is  no reason  why we  should      disbelieve P.W.  2 Mrs.  usha  when      she stated  that  accused  received      burn  injuries  on  his  own  while      extinguishing sofa chair. According      to me  the fire  appeared to  be so      extensive  coupled  with  the  fact      that Vibha appears to have burnt in      the passage  and as well as she had      gone to the bath room and her saree      was  in   pieces  in   the  passage      itself. If  really any  attempt was      made to  extinguish  the  fire  the      accused   could    have    received      extensive   burn    injuries.    i,      therefore, find  that the  evidence      of P.W..  2 Mrs.  Usha and  P.W.. 8      Mrs. Pushpa  about the last fag end      of the  incident appears to be true      and they  could be believed to that      extent."      The trial  court also believed the evidence of Usha and Pushpa that  the respondent  had not  made  any  attempt  to extinguish the  fire or  helped Usha in doing so and had not shown any  initiative to  call a doctor. It also held on the basis of  the other  evidence  on  record  that  instead  of sending a  doctor for  treatment of  Vibha he  went  to  Dr. Mukhi’s hospital,  got himself admitted there even though he had only  seven percent injuries, and made a false statement to the doctor that Vibha was already admitted in a hospital. The trial court also believed the two dying declarations.      It, therefore,  held that the respondent had killed her by pouring kerosene and setting her on fire. It further held that in  view of  the cruel treatment given to Vibha and the ghastly manner  in which  the respondent  had committed  the murder, proper  punishment to be imposed was the sentence of death. It, therefore, convicted the respondent under Section 302 IPC and imposed the sentence of death. It also convicted the respondent  under Section  498A IPC  and  order  him  to suffer rigorous imprisonment of three years.

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    The High Court proceeded on the basis that, in order to prove the  motive, prosecution had relied upon the following three  circumstances;   (i)  unsuccessful   effort  of   the respondent and  his parents  to extort as much money as they could from  the deceased  and her  father Chandrakant;  (ii) begetting a  female instead of a male child by the deceased; and (iii) the treatment given to the deceased and her family by the  respondent and  his parents as the family members of the deceased belonged to a less sophisticated section of the society. The  High Court  believed the  prosecution evidence regarding demands  made by  the respondents  and his father, payment of  Rs. 10,000/- by Vibha’s father and withdrawal of Rs. 15,000/-  from Vibha’s account. It confirmed the finding of the  trial court that the respondent was in need of money as he  had to  pay loan  instalments. It  also believed  the incident of  26.11.83. it,  however, held  that (i)  as  the respondent had,  on the  next  day,  apologised  to  Vibha’s parents and  had given  an assurance that he would treat her well and not harass her though he had money problems (ii) no incident of any significance had taken place thereafter, and (iii) even  after the  incident of 26.11.1983 the respondent and Vibha  used to  go to  Dadar Frequently and were staying there and  there was  no  evidence  worth  considering  with regard to  any physical  ill treatment  to Vibha,  the first circumstance could  not have  provided any  motive  for  the respondent to  kill her.  The other  two circumstances  were regarded as  too weak.  More over,  in view  of the evidence that Vibha  did not  like any  criticism of  the respondent, that she  had declined  to take  a divorce  even though  her parents desired  it and  that  she  always  hoped  that  her situation would  improve in future, the High Court held that they on  the contrary  indicated that  the respondent had no reason to cause her death.      The High  Court,  after  re-appreciating  the  evidence regarding the  incident of  burning on  23.6.84, recorded  a contrary finding  that it  was a  case of  suicide  and  not homicide. Re  appreciating the  evidence of Tambe (PW-9) and Tiwari (PW-10)  , the  two hostile witnesses, the High Court held that  they were  not telling the truth but on the basis of their  evidence  and  the  other  evidence  what  can  be believed is:      " that both of them had gone to the      accused’s flat  at about  2.15 P.M.      on that  day. The  door of the flat      was  opened   by  Vibha.  They  had      entered the flat, had talk with the      accused and  were  sitting  in  the      drawing room when Vibha came to the      drawing room in flames."      The High Court also found the evidence of Yadav (PW-11) unreliable except to the following extent:      "  The   witness  had  driven  Mrs.      Shukla, Usha and the baby Rachna in      a jeep  from Jogeshwari  i.e.  from      Chandrakant’s place  to Mulund i.e.      the accused’s  house. Secondly,  he      had gone to the flat along with the      baby, and  at that  time  had  seen      both Tambe and Tiwari coming out of      the  flat.  Thirdly,  he  had  gone      downstairs with  the baby  and when      the  accused   came  down,  he  had      carried him  upto the dispensary of      Dr. Mukhi.  He  was  asked  by  the      accused to  go away  as soon as the

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    accused got  down from the jeep and      he had  returned with  the jeep  to      Harsha Apartment.  He  had  carried      Dr. Shah, Mrs. Pushpa, and Vibha in      the jeep  from Harsha  apartment to      Sion Hospital  and on  the away had      halted the  jeep at  Dr.  Chandan’s      Hospital".      The High  Court further  held  that  the  circumstance, namely, that  the act of burning had taken place while Tambe (PW-9) and  Tiwari (PW-10)  were  in  the  flat,  alone  was sufficient to  negative  any  hypothesis  of  homicide.  The second reason  given by the High Court for not accepting the prosecution version  of homicide  is that the respondent had gone inside the bed room for about 2 to 3 minutes only and , therefore, it  was not probable that he could have burnt the deceased within  that short  time. the third reason given by the High  Court   for holding  that the  evidence  was  more consistent  with  the  hypothesis  of  suicide  is  that  if respondent had  tried to  burn Vibha she would have resisted and in  that case  there would  have been  some struggle and scuffle, shouts  and screaming  or at least audible exchange of words but nothing of that sort was heard by the visitors. The fourth  reason indicating  suicide was that the visitors had left  the flat hurriedly after Vibha had appeared before them in  flames. If  Vibha was  burnt by  the respondent she would have  asked for herself from the two visitors and they would have  certainly rendered  it. Moreover, Vibha was more agile than  the respondent  and ,  therefore, she could have run out of the flat.      Partly relying  upon the  evidence of  Tambe and Tiwari and what was indicated by the scene of offence panchnama the High Court held that in all probability a quarrel leading to a scuffle  had taken  place  between  Vibha  and  respondent before the  visitors came  to their  flat and that while the respondent and  the visitors were talking outside she poured kerosene over her body, lit herself and then rushed into the drawing room.  It did  not attach any importance to the find of kerosene  can in the drawing room as the scene of offence panchnama was  made at  about 11.50  P.M., i.e., after about nine  hours  and  anything  could  have  transpired  in  the meanwhile.      The High  Court found  the evidence  of Usha (PW-2) and Pushpa (PW-8)  inconsistent on two material points viz., who pulled the  curtain and tried to extinguish the fire and the conduct of respondent. Usha’s evidence was disbelieved as no burn injuries  were received by her or pushpa. Moreover, the small burnt  portion of  the  curtain  indicated  that  very little fire  was required  to be extinguished after they had entered the  flat. On  the basis of the burn injuries by the respondent the  High court inferred that the respondent must have tried  to extinguish the fire and that was probably the reason why  there was  some lapse  of time  in answering the door bell.  It also held that as Usha and Pushpa were called with Rachana  and the  respondent knew  about  that  it  was unreasonable to  believe  that  he  would  have  thought  of killing her at that time .      The High Court disbelieved both the dying declarations. One made to Pushpa was disbelieved mainly on the ground that after it  was stated  to have been made no further enquiries were made  by Pushpa  from her  regarding the reason and the manner in  which she was burnt and also because that was not stated to Dr. Shah by Vibha or Pushpa. The dying declaration was disbelieved on the ground that Dr. shah did not refer to the presence of Vibha’s father Chandrakant near the jeep and

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that when  Dr.Rajan Gupta  (PW-16) had asked Vibha about the history of  burns she had stated that she had received burns by kerosene  and no  further details  were given  by her. It further held  that they  were concocted with a view to boost up the charge against the respondent.      The  high  Court  believed  that  the  conduct  of  the respondent was rather unnatural and unusual but it could not be  regarded   as  an   incriminating  circumstance  as  the respondent must  have been in confused state of mind in view of the  circumstances in  which he  was placed  and possibly because he must have thought that he would become the target of attack  of his  in laws  and held responsible for Vibha’s death. The  High Court  also held  that the  silence of  the accused while  answering certain  questions put to him while he was  examined under Section 313 of the Criminal procedure code was  not indicating  of his  guilt as  " it  cannot  be forgotten that  prisoners in  the dock  mostly  act  on  the advice they  get from their lawyers" and again "our criminal jurisprudence does not require the accused to open his mouth even when he is completely innocent and no adverse inference can be drawn against him if he chooses not to speak."      With respect  to the charge under Section 498-A IPC the High Court  held that no proper charge indicating the manner in which  Vibha was  cruelly treated  was framed,  as it was extremely Vague  and "it had thus undoubtedly prejudiced the accused in the trial in no small measure". On merits it held that the  circumstances which  were relied  upon for proving that charge  were not  sufficient to lead to that conclusion because: 1)   The circumstances  that rachana was not allowed to stay      with Vibha  at her in-laws’ house at Dadar was not even      alleged to  be a cause of suicide or any other physical      or mental  injury and  no evidence was led to show that      this incident  had weighed  on her mind and had led her      to commit  suicide. (2)  The circumstance  that  neither  the  parents  nor  the      respondent liked  the female  child, in  absence of any      evidence regarding  its effect  on the  mind of  Vibha,      could not be regarded as an act of cruelty. (3)  The incident  of 26.11.83  became irrelevant  as on the      very next  day the  respondent had  tendered an apology      and Vibha  had gone with the respondent again to her in      laws place  and no  incident of  harassment  had  taken      place till  236.84 and particularly when Vibha had also      gone to  Dadar and  stayed with  parents in law on some      occasions during that period.      The High  Court found that the inferences drawn and the findings recorded by the trial court were not justified. The High Court,  therefore, allowed the appeal and set aside the conviction of  the respondent  for both  the offences  which were held proved by the trial court.      Challenging the finding recorded by the High Court that this is  a case  of suicide  and not of homicide the learned counsel of  the State forcibly contended that the inferences drawn  by   the  High   Court  from  the  proved  facts  and circumstances, are  not at  all justified. He submitted that if Vibha  wanted to  commit suicide  she would  not have run from the  bed room  to the  drawing room.  He also submitted that signs of scuffle preceding burning of Vibha not opening the door  of his  flat for  about ten minutes, find of empty plastic can  of kerosene  in  the  drawing  room,  immediate subsequent conduct  of the  respondent and a false statement made by  him to  the doctor, prove beyond any doubt that the respondent had  set her  ablaze. In  the alternative, it was contended by him that even on the basis that Vibha committed

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suicide, the  High Court  ought to  have held  that  it  was because of  the cruel treatment given by the respondent and, therefore, he  was held  guilty under  Section 498A  IPC. He submitted that  the High  Court having  believed that  there were demands  for money  from Vibha and her father, that her father was  unwilling to  give more money to the respondent, that the  respondent  was  not  showing  any  affection  for Rachna, that  Rachna was  not allowed  to stay with Vibha at his place  and that  on 26.11.1983  in  the  respondent  had driven out  Vibha from  his house  as  his  father  was  not willing to pay Rs. 30,000/-, ought to have further held that Vibha  committed   suicide  because  she  was  subjected  to harassment and cruelty by the respondent.      On the  other hand,  it was  contended by  the  learned counsel for  the respondent  that this  being  an  acquittal appeal what  this court  has to consider is whether the view taken by  the  High  Court,  after  considering  the  entire evidence and  the circumstances  found proved,  has recorded the finding  that they  do not  lead to  the only conclusion that the  respondent had  caused the death of Vibha and that this was not a case of Suicide. Moreover, the High Court has given good  reasons in  support of  its findings.  The  High Court has  recorded the  finding that  harassment or cruelty was not  really the cause for committing suicide. He further submitted that  as there  was no  incident of  physical  ill treatment or  any type  of harassment between November, 1983 and June,  1984 and as the evidence disclosed that Vibha and the respondent  were to  go to  her in  laws’ flat  at Dadar because she  was not  keeping  good  health,  harassment  or cruelty being  the because of suicide becomes very doubtful. Therefore, it cannot be said that the view taken by the High Court is unreasonable.      In view of the rival submissions and seriousness of the offence we  have scrutinised  the evidence  and examined the judgments of  both  the  courts  below  with  due  care  and caution. it  is very  unfortunate that  a young girl without any fault of her lost her life. It is also a matter of shame that the  respondent did not treat his wife properly because her father  was not  willing to give more money had for that reason on  one occasion  he had  driven her out of his house and also  because she had given birth to a female child. The facts and  circumstances which  can be accepted as proved no doubt create  a strong suspicion that on the fateful day the respondent had, after some quarrel, poured kerosene over her and put her to flames. But this is a  case of circumstantial evidence and  on re  appreciation of  the evidence  the High Court has  found it fit to acquit the respondent. Therefore, unless, we come to the conclusion that the view taken by the High Court  is so unreasonable as to warrant interference by this court  it will  not be   proper  to interfere  with the order of  acquittal,  only  because  on  re-appreciation  of evidence it is possible to take a different view.      On the  question of  homicide what  we find is that the high Court  heavily relied  upon the  fact that  prosecution witnesses Tambe  and  Tiwari  were  in  the  flat  when  the incident of  burning of  Vibha took  place. The  prosecution evidence shows that they hurriedly left the flat and did not wait for  putting on  their shoes  before leaving the flat . This conduct  of Tambe  and Tiwari  indicates that something very unusual  had taken place in their presence and that had obliged them to leave the flat in such a hurry. If they were told to leave the flat either because the respondent told to leave the  flat either because the respondent told them that he had to go out or because there was some exchange of words between Vibha  and the  respondent, they would not have left

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in such  a manner. If it is believed that the respondent had left them  in the drawing room and gone inside for about two or three  minutes had  then Vibha  was seen rushing into the drawing room  in burning  condition, as deposed by these two witnesses,  then  also  it  becomes  very  doubtful  if  the respondent would have tried to burn his wife while outsiders were present  in his  house. Moreover,  the  respondent  was aware that  her mother  in law  was to  come with  Rachna at about that  time and,  therefore, it  was unlikely  that the respondent would  have thought  of murdering  Vibha at  that point  of   time.  All   these  factors   were  taken   into consideration by  the High Court and, therefore, the finding recorded by  it cannot be regarded as unreasonable. There is no evidence on record to show when the scuffle, as indicated by what has been recorded in the scene of offence panchnama, had taken  place. There is some substance in the contentions raised by  the learned  counsel for the State that Vibha, if she really  wanted to commit suicide, would not have run out of the  bed room  and that  she must  not have  carried  the plastic can of kerosene, as it would have immediately caught fire and  would not  have been  found in the drawing room in the condition  in which  it  was  found.  These  are  indeed incriminating circumstances  suggesting that  the respondent followed with  the said  tin and poured kerosene over her in the drawing  room and placed it there. But eh possibility of the said  plastic can  having been  placed there by some one else cannot  be ruled  out. It  is true, as submitted by the learned counsel  for the State, that the reason given by the High Court  that planting of the plastic can cannot be ruled out because  of the  time lag  between  the  time  when  the incident took  place and  the scene of offence panchnama was made, is  not quite  correct. The mother of Vibha along with Vibha and  other persons  had left  the flat  within a short time for  taking her to a hospital and at that time they had closed the door and the flat could be and was in fact opened only after  the police obtained the key of the flat from the respondent. Therefore, it was not correct to say that during these six to eight hours anybody could have planted the said plastic can  in the drawing room. But even during that short period besides Vibha’s mother Pushpa, her sister Usha, other persons had  gathered in  the flat an d anyone of them could have placed  the said  plastic can at the place where it was found. If respondent had carried the said can to the drawing room and  poured more  kerosene over Vibha more damage would have been  caused to the articles lying in the drawing room. The evidence discloses, and that is what  the High Court has found, that  the damage  caused to the articles lying in the drawing room was very less.      We also  find considerable force in the submission made by the learned counsel for the state that the conduct of the respondent soon  after the incident was highly unusual, that he made a false statement to the doctor to whose hospital he had gone  for treatment  and  that  he  has  not  given  any explanation in  his 313  statement as  regards some  of  the highly  incriminating   circumstances  and   they  are   all indicative of  the fact  that he  had caused  the  death  of Vibha. It  was submitted by the learned counsel that if this was a  case of  suicide by  Vibha then  the respondent would have tried  to put  out the  fire and  in that case he would have received more burn injuries than what were found on his person. The  curtain with  which he had tried to put out the fire had  only a small burnt portion and that indicates that he had tried to extinguish the fire only at the last moment. and that  too to  make  a  show  that  he  was  not  guilty, particularly when  he found that mother of Vibha had already

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arrived. It was also submitted that if  it was really a case of suicide  he would  have at  once tried  to secure medical help for  Vibha.  Instead  of  doing  that  he  got  himself admitted  in   a  hospital.  This  unusual  conduct  of  the respondent  and   his  failure   to  explain   some  of  the incrimination circumstances  create a strong suspicion about his involvement but it does not lead  to the only conclusion that Vibha  had not  committed suicide but he had caused her death. He was the only person staying in the flat with Vibha and , therefore, he might have felt that he would be falsely involved by his in laws. If in this state of mind he did not do what  he was  expected to  do that  cannot  lead  to  the conclusion that  he behaved  in that  manner because  he had committed the murder of Vibha. The High Court has considered all these  factors and  given good  reasons for holding that this was  not a  case of  homicide., We  also find  that the reasons given  by the  High Court  for not  relying upon the two dying  declarations are  not  improper.  Therefore,  the finding recorded by the High Court, that the prosecution has failed  to   establish  beyond  reasonable  doubt  that  the respondent  caused   her  death,   does  not  call  for  any interference.      Even with  respect to  the evidence  of harassment  and cruelty, the High Court has held that it is insufficient for holding that  Vibha was  driven to commit suicide because of harassment and  cruel treatment  by the respondent. The fact that after  the incident  of 26.11.1983  the respondent  had approached Vibha  and her  parents on  the very next day and apologised and  no other  incident either of demand of money or ill  treatment had  taken place  after that date makes it doubtful if  harassment and  cruel treatment  given  by  the respondent was  the immediate  cause of  committing suicide. Before a  person can be convicted under Section 498A IPC the prosecution  has   to  prove   that  he  committed  acts  of harassment of  cruelty as  contemplated by  that Section and that harassment  or cruelty  was the reason for the suicide. What we  find in  this case  is that  no specific charge was framed against the respondent. As rightly pointed out by the High Court  no evidence  was led  to show  that  either  her separation from  Rachna or  the incident  of 26.11.1983  had weighed heavily  on her  mind and  that had  driven  her  to commit suicide.  Neither the parents nor the sister of Vibha have deposed  about any  complaint made by her regarding any ill treatment  by  the  respondent  after  the  incident  of 26.11.1983. Moreover,  the evidence  of these witnesses show that Vibha  was to go to her in laws place at Dadar and stay with them  as she  was not  keeping good  health. If she was under  mental   strain  because  of  any  ill  treatment  or harassment by  the respondent  or her in laws she would have preferred to  go and  stay with  her parents.  These are the factors which  were taken  into consideration  by  the  High Court for  arriving at  the conclusion  that the prosecution has failed  to establish  beyond reasonable doubt that Vibha committed suicide because of ill treatment or cruelty by the respondent.  The   view  taken   cannot   be   regarded   as unreasonable.      In the  result the  appeal is  dismissed and  the  bail bonds of the respondent are ordered to be cancelled.