Cri. App. No. 533 of 1993. Case: Nandkishore alias Kishore Bhimrao Kshirsagar Vs The State of Maharashtra. High Court of Bombay (India)
| Case Number | Cri. App. No. 533 of 1993 |
| Counsel | For Appellant: R. D. Ovelekar with Ranjeet More, Advs. and For Respondents: K. H. Chopda, Advs. |
| Judges | G. R. Majithia , J. and V. Sahai , J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 304B, 498A(b); Evidence Act (1 of 1872) - Section 32; Criminal Procedure Code (2 of 1974) - Sections 154, 215, 464(1) |
| Citation | 1995 CriLJ 3706 |
| Judgement Date | June 15, 1995 |
| Court | High Court of Bombay (India) |
Judgment:
Vishnu Sahai, J.
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The appellant Nandkishore alias Kishore Bhimrao Kshirsagar was tried along with his father Bhimrao Dhondiram Kshirsagar, his mother Shakuntala Bhimrao Kshirsagar and his brother Sanjay Bhimrao Kshirsagar for offences punishable under Sections 302 read 34, I.P.C., 498 A read with 34 I.P.C., and 304 B read with 34, I.P.C. After the trial vide judgment and order dated 30th March 1993 passed by the Sessions Judge Sangli in Sessions Case No. 24 of 1993 the appellant Nandkishore alias Kishore Bhimrao Kshirsagar was convicted under Sections 304 B, I.P.C. and 498 A, I.P.C.; whereas on the first count he was sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs. 5000/-, in default to further undergo 6 months rigorous imprisonment; under the second count he was sentenced to a term of 2 years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo 3 months rigorous imprisonment. The substantive sentence were directed to run concurrently. It may be mentioned that the appellant was acquitted under Section 302 read with 34, I.P.C. and the other three accused persons named above were acquitted on all the counts viz. 302 read with 34, I.P.C., 304 B read with 34, I.P.C. and 498 A read with 34, I.P.C.
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The appellant challenged his conviction and sentence in this Court by preferring Criminal Appeal No. 533 of 1993. While admitting it on 11-10-1993, a Division Bench of this Court comprising of M. L. Pendse and M.F. Saldanha JJ was pleased to issue notice of enhancement to the appellant. Suo Motu Petition No. 52 of 1993 arises out of the aforesaid notice. Clubbed along with Criminal Appeal No. 533 of 1993 and Suo Motu Petition No. 52 of 1993 is Criminal Appeal No. 682 of 1993, preferred by the State of Maharashtra, under Section 377(1) Cr. P.C., for enhancement of the sentence awarded to the appellant by the learned trial Judge. The aforesaid appeal was admitted on 6-6-1994 by a Division Bench of this Court comprising of Mohta J (as he then was) and Bahuguna, J.
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Since all the three connected matters arise out of the same incident, we propose disposing them of by a common judgment.
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The prosecution case in brief, as it emerges from the recitals contained in the F.I.R. and the evidence of the witnesses recorded in the trial Court, runs as follows:
The informant Mahadeo Nana Bamane (P.W. 1) was a primary school teacher and a resident of village Atake. The deceased Surekha was his daughter and Malti, his wife. Sanjaykumar Madadeo Bamane (P.W. 2) is his son from his first wife.
The informant settled the marriage of his daughter Surekha with the appellant Nandkishore Bhimrao Kshirsagar, whose father Bhimrao Dhondiram Kshirsagar (acquitted accused) was a land Acquisition Officer at the time of the incident. Before the marriage it was settled between the informant Mahadeo and Bhimrao Dhondiram Kshirsagar, vide Exhibit 19, that he would give ornaments and Rs. 11,011/- in cash to the appellant and two golden neckless would be given to Surekha by Bhimrao Dhondiram Kshirsagar.
On 27-1-1991 Surekha was married to the appellant of Miraj. After the marriage her name was changed to Bhagyashree. In the marriage the informant spent in all about Rs. 60,000/- to Rs. 70,000/-. After the marriage Surekha went and started residing with the appellant, father-in-law Bhimrao mother-in-law Sou. Shakuntala and brother-in-law Sanjay (acquitted accused) at Miraj.
Some-times in the month of March 1991 the informant went to Miraj to bring Surekha fur their village fair and the appellant and the three acquitted accused told him that Surekha could come back, approximately after one week. The informant along with Surekha came to Village Atake. However, only after one day of Surekha's coming to Atake, the appellant came to Atake in a militant mood and told the informant that he wanted to take Surekha away with him. After consulting Surekha the informant permitted the appellant to take her away. During her stay at Atake, Surekha told the informant that the appellant and the acquitted accused persons were physically and mentally illtreating and torturing her. She confided that she had to get up early in the morning and was required to clean and wash the house and also to collect cow-dung. She also had to cook food. She complained despite slogging like a slave the appellant used to get angry with her.
It is alleged that on 9th March 1991 Surekha's step brother Sanjaykumar (P.W. 2) and mother went to meet her at Miraj. She also complained to them about the cruelty and ill-treatment meted out to her by all the accused persons. She told them that the accused persons used to wake up her up at mid-night and ask her to do every type of menial work like cleaning of clothes, collecting cow-dung etc. Surekha also told them that she was not getting sufficient food and was also denied articles of bare necessity, like towel, hair oil, tooth-brush, tooth-paste and clothes etc. On hearing this, understandably Sanjay and his mother advised Surekha to hear the treatment for some days as they were married recently and the accused persons were rich.
On 7th April 1991 the informant went to the house of the appellant and acquitted accused at Miraj. At that time Surekha was at Bedag where her husband had a one room country house, along with a shed, in which he ran his poultry farm. Acquitted accused Bhimrao Dhondiram Kshirsagar at the aforesaid time was at the house and the informant along with him went to Bedag. He found that both the appellant and Surekha were present at their country house in Bedag. The informant found Surekha was in a depressed mood. Her face was pale. When he gave her coconut oil, tooth paste and comb she told him that instead he should give Rs. 50,000/- to her husband for his poultry-farm. The informant expressed his inability to Surekha to pay the aforesaid amount on the ground that he had been drained of his resources in her marriage which had barely taken place 2 1/2 months ago. However, he told Surekha's father-in-law Bhimrao that he should personally look into the treatment which was being meted out to Surekha and at that Bhimrao replied that there was nothing to worry, for these were the usual problems, common to all marriages and that in due course Surekha and Nandkishore would get adjusted with each other. On the night of 7-4-1991 the informant returned from Miraj to Atake.
On the evening of 8th April 1991 at about 8/8.30 p.m. when the informant returned home he learnt form his younger son Pratap that Surekha had been burnt and was admitted in hospital at Miraj. He also learnt that his wife in a car sent by the accused persons, at about 4 p.m. that very day, had left for Miraj.
The next day, that is, on 9th April 1991 first the informant's son Sanjaykumar (P.W. 2) and then the informant left for Miraj. There at their house and there acquitted accused persons told the latter that on account of having of a stove Surekha was burnt but there was nothing to worry for she had only sustained minor injuries on her legs and thighs. The same day informant came to Mission Hospital Miraj where Surekha was admitted in the intensive care unit. However he was not allowed by the doctors to meet her. At the hospital the informant met the appellant who consoled him, saying that Surekha had sustained minor burn injuries only and there was nothing to worry. The next day i.e. on 10th April 1991 he was only permitted to see her from a distance of 10 feet, for a very short time.
On 13th April 1991 Surekha is said to have succumbed to the injuries in the hospital.
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Going backwards, the evidence on record shows that Surekha was admitted late on the night of 7th April 1991 at Mission Hospital, Miraj, as a case of accidental burns. Police constable on duty, at the Mission Hospital, informed Miraj Rural Police Station above the accidental burns of Surekha and on 8-4-1991 at about 11 a.m. an entry to this effect was made at Miraj Rural Police Station.
On 8-4-1991 her two dying declarations were recorded there; one by Executive Magistrate of Miraj and the other one by P.S.I. Sureshkumar Ganapati Patil. In the aforesaid dying declarations she is alleged to have stated that she got accidentally burnt when the stove on which she was making tea burst and that she had no complaint against anybody. She also stated that relations between her and her husband were good. In the dying declaration recorded by P.S.I. Patil she went on to the extent of saying "Nothing remains to be paid or received in connection with the said marriage. I did not suffer any kind of ill-treatment at the hands of my husband, brother-in-law, sister-in-law, mother -in-law or father-in-law."
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P.S.I. Patil P.W. 12 made an enquiry on the allegations of the appellant and the acquitted accused persons to the effect that Surekha had been accidentally burnt. He draw up the panchanama of the place of the incident. He found one stove, and burnt pieces of sari and blouse at the place of the incident. He attached the stove under a panchanama. On 9-4-1991, he recorded statement of the informant. On 13-4-1991, he made inquest panchanama of the dead body of Surekha. On 2-5-1991, he handed over the investigation to Smt. Rashmi Avasti, A.S.P. Sangli.
The investigation conducted by Smt. Avasti, A.S.P. was proved by police constable Ashok Kamble P.W. 9 who accompanied her during investigation and recorded the statements dictated by her. On 2-5-1991 the supplementary statement of the informant Mahadeo and the statement of Sanjaykumar (P.W. 2) were recorded. On 6-5-1991 the statement of the informant was recorded in her own hand-writing by A.S.P. Avasti.
On 17-8-1991 P.I. Bhaskar Bapu Shinge (P.W. 11) of C.I.D. Crime Branch, Sangli was entrusted with the investigation. Between 17-9-1991 to 24-10-1991 he recorded statement of some persons. On 24-10-1991 the F.I.R. of the instant case was lodged by the informant Mahadeo...
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