1 APEAL352.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 352 OF 2002
Shankar S/o Bapurao Bhange,
Age : 30 years, Occu. Service,
R/o. Wadhavana, Tq. Udgir,
District : Latur. … Appellant
VERSUS
The State of Maharashtra … Respondent
……….
Mr Satej S. Jadhav, Advocate for the appellant
Mr R. V. Dasalkar, APP for respondent/State
………….
CORAM : A. M. DHAVALE, J.
DATE : 10TH NOVEMBER, 2017.
ORAL JUDGMENT:
1. The appellant-husband has been convicted for subjecting
his wife to cruelty and abetting her to commit suicide and sentenced
to suffer rigorous imprisonment for two years and to pay fine of
Rs.1,000/-, in default, RI for three months u/s 498A IPC and rigorous
imprisonment for three years and fine of Rs. 1,000/-, in default, RI
for three months u/s 306 IPC, by judgment delivered by 1 st Adhoc
Additional Sessions Judge, Jalna on 19.06.2002 in Sessions Case No.
81 of 1999. Being aggrieved, the appellant has preferred this appeal.
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2. The prosecution is launched on the basis of crime
registered at C.R. No. I-32/97 at Ambad Police Station on the basis of
the dying declaration of the deceased wife Nanda on 05.06.97. It
was recorded by PW4 Naib Tahsildar Shamrao Nandedkar. It shows
that, deceased Nanda aged 21 years was married to the accused
about one year before the incident. She is resident of Ahmedpur,
which is about 200 km away from the spot. After the marriage, she
had started cohabiting with her husband at Rani Unchegaon, Tq.
Ambad, Dist. Jalna. Her dying declaration shows that, her husband
was interested in marrying to daughter of his maternal uncle by
name Varsha and there was engagement also, but his father did not
allow him to marry to her. Her husband was serving as a teacher at
Shevgal, Tq. Ghansavangi, but was residing at Rani Unchegaon.
About two months before the incident, she had given birth to a male
child. On 02.06.97, at about 9:00 to 9.30 p.m., there was a quarrel
between Nanda and her husband. On 03.06.97 at 8:00 to 8:30 a.m.
again there was a quarrel between Nanda and her husband. She told
her husband that, she would prepare tea and he should fetch water.
Her husband got annoyed and he poured 2 and 2½ ltrs. of kerosene
from a can of 5 ltrs. on her person. In view of the daily quarrels,
Nanda lit a match stick and set herself on fire. She sustained burns
to her hands, legs, back, neck and face. Her husband himself
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wrapped her up in a towel and doused the fire. People gathered
poured water. That time, her parents-in-law were present. Her
husband brought her to the hospital at Ambad and thereafter to the
Civil Hospital at Jalna. She stated that, for four days before the
incident, her husband was regularly beating her. She also alleged
that, her husband had thrown a matchbox towards her. This dying
declaration was recorded after obtaining medical certificate from the
Medical Officer that she was conscious to give statement. Before
registration of the crime, A.D. case was registered and spot
panchanama was drawn on 06.06.97. Subsequently, on 21.06.97,
Nanda succumbed to 72% burn injuries. Thereafter, the Investigating
Officer has recorded statements of material witnesses. The inquest
panchanama was drawn and postmortem was conducted. After
completion of investigation, charge-sheet was submitted in the Court.
3. In due course, the case was committed to the Court of
Sessions. The ld. Ad-hoc Addl. Sessions Judge framed charge against
the accused u/s 306, 498A of IPC. The accused pleaded not guilty.
The prosecution examined nine witnesses. It is the defence of the
accused that, Nanda was suffering from TB and therefore she has
committed suicide. He has not abetted the commission of suicide nor
subjected her to ill-treatment in any form. The ld. Sessions Judge
convicted the accused as referred to above. Hence, this appeal.
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4 APEAL352.2002
4. Shri. Satej Jadhav, ld. Counsel has taken me through the
entire evidence on record and made following submissions.
(i) There was one dying declaration recorded by Head
Constable – Hiwale showing that the deceased
committed suicide. The said dying declaration has
been suppressed by the prosecution.
(ii) The present dying declaration was not read over to
the deponent and there is no endorsement that she
admitted it to be correct before taking her thumb
impression. Besides, Nanda was studied upto 10 th
std. There is no explanation why her signature was
not taken.
(iii) Evidence of previous ill-treatment led by father,
brother and uncle of the deceased is extremely
vague and inconsistent with each other as well as
the contents of dying declaration.
(iv) It was the accused who had extinguished the fire
and taken his wife to the hospital. He himself had
also sustained burn injuries and was required to
undergo treatment.
(v) The evidence of PW1 Namdeo, PW5 father Baburao
and PW7 Balkrishna is not cogent, consistent and
reliable. Similarly, the evidence of Naib Tahsildar
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PW4 is also not reliable. He has not immediately
forwarded the dying declaration to the Police
Station and the FIR has been registered quite late
on 17.6.97. The evidence does not inspire the
confidence and therefore the ld. trial Judge erred in
relying upon it to convict the appellant.
(vii) In Shivaji Tukaram Patdukhe Vs. State of
Maharashtra 2004 ALL MR (Cri) 3220, a dying
declaration before the head constable was not
brought on record and the dying declaration relied
upon was not read over to the deponent and no
endorsement to that effect was made. These were
found to be material discrepancies resulting into
acquittal of the accused.
5. Per contra, ld. APP Shri. R. V. Dasalkar submitted that the
dying declaration is recorded by Naib Tahsildar, who is independent
person, after obtaining the opinion of the Medical Officer about
fitness of the patient. Nanda thereafter survived upto 21.06.97 i.e.
for 16 days. There is no reason why the accused would have been
falsely implicated. There is evidence to show that she was subjected
to ill-treatment and dowry demands prior to the incident and hence
there is no scope for interfering with the judgment of conviction.
6. The points for my consideration with my findings thereon
are as follows :
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6 APEAL352.2002
Sr. No. Points Findings
1 Whether the accused had subjected In the negative.
the deceased to cruelty and dowry
demands?
2 Whether the deceased Nanda In the affirmative.
committed suicide?
3 Whether the accused has abetted the Not proved.
commission of suicide by Nanda?
4 What order? The appeal is
allowed. The accused
is acquitted of the
charges.
REASONS
7. The prosecution has led following evidence.
[I] Dying Declaration :
[i] PW4 Naib Tahsildar – Nandedkar has recorded
dying declaration Exh. 25.
[ii] There is oral dying declaration before PW1
Namdeo (uncle).
[iii] PW5 Baburao, father.
[iv] PW7 – Balkrishna.
[v] PW6 – Laxmibai.
[II] Evidence of Previous Ill-treatment :
[i] PW1 – Namdeo
[ii] PW5 – Baburao
[iii] PW7 – Balkrishna.
[iv] PW6 – Laxmibai.
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[III] Other Evidence :
[i] PW2 – Asaram, the landlord, turned hostile.
[ii] PW3 – Pandurang, neighbour, turned hostile.
[iii] Head Constable – Rode, who recorded the
statements of witnesses.
[iv] PW9 PI Pawar, who carried out further
investigation and submitted charge-sheet.
8. The prosecution has not examined Medical Officer as the
PM notes Exh. 19 are admitted by the witnesses. Those show that
deceased Nanda, aged 21 years, had sustained 72% burns. Her entire
chest, back and upper parts of the body were burnt. It is not disputed
that, Nanda attempted to commit suicide on 03.06.97 at her
matrimonial place and died on 21.06.97 in the hospital due to burn
injuries.
9. Undisputed evidence on record shows that, Nanda
daughter of PW5 PW6 from Ahmedpur, married to the accused in
1996. The accused was teacher at Shevgal, Tq. Ghansawangi but was
residing at Rani Unchegaon. After the marriage, Nanda cohabited
with her husband and she gave birth to a male child within one year.
It was about two months before the incident. It is not in dispute that,
on 03.06.97, in the morning, Nanda sustained burns and her husband
– accused brought her to the hospital at Ambad and thereafter to
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Civil Hospital at Jalna. She was taking treatment in Civil Hospital at
Jalna and later she died.
10. The admitted evidence shows that, during the cohabitation
period of one year, Nanda visited her house only once that too for
delivery purpose. The evidence of PW5 Baburao (father) and PW6
Laxmibai (mother) does not show that, during her stay at her
maternal house, she made any complaint against the accused about
ill-treatment or dowry demands. Both of them stated that, after the
marriage their son Balkrishna had gone to the house of Nandabai and
after returning from her house, he disclosed that there was demand
of cupboard, cot and other articles from Nandabai and therefore she
was subjected to ill-treatment. PW7 Balkrishna himself stated that,
about 1½ months after the marriage, he had gone to matrimonial
house of Nandabai. She complained that, the accused was
complaining that he has not received proper dowry as per his will
and the accused was ill-treating her. She used to disclose this fact to
her parents. PW1 Namdeo, uncle of Nanda, has stated that when
Nanda was burnt and was in Civil Hospital at Jalna, that time Nanda
told him that she was subjected to ill-treatment by the accused and
therefore she set herself on fire. This is the entire evidence regarding
previous ill-treatment by the accused and the alleged intimations by
Nanda about ill-treatment.
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11. In the first place, the allegations are extremely vague. No
date, time, place, manner and the nature of ill-treatment has been
deposed. Besides, on listening to it the reaction of brother and
parents is not natural. They did not take any steps to see that Nanda
would not be subjected to ill-treatment. There is no evidence that,
they tried to persuade the accused or took the help of mediators or
Nanda was brought to maternal house due to the ill-treatment meted
out to her. Such vague evidence will not be of any use. It is
pertinent to note that Nanda succumbed to the burn injuries on
03.06.97 and her maternal relatives did not make any complaint till
her death on 21.06.97. Their statements are recorded about one
month after the incident on 03.06.1997. I find that the evidence of
uncle/PW1 Namdeo, PW5-father, PW6-mother brother/PW7-
Balkrishna on the point of previous ill-treatment by the accused to
Nanda is not trustworthy and reliable.
12. It is also pertinent to note that the dying declaration on
which reliance is placed is silent with respect to the alleged dowry
demands. There is a vague statement that her husband used to
assault her after every 4-5 days. There is nothing to show that Nanda
had sustained any serious injuries and was required to be
hospitalized before the main incident of burning. I therefore discard
evidence on the point of previous ill-treatment and dowry demands.
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10 APEAL352.2002
13. As far as dying declaration is concerned, PW4 Shamrao
Nandedkar has deposed that he received one letter from Kadim Jalna
Police Station on 05.06.97 for recording dying declaration of Nanda
and thereafter he visited Civil Hospital at Jalna at 6:00 p.m. He met
the doctors present and saw the burnt patient. He stated that, while
recording her dying declaration, Nanda told him that on 02.06.97, he
had a quarrel with her husband because her husband wanted to
marry with one Varsha, daughter of his maternal uncle. Even there
was engagement, which was broken due to objection of father of the
accused. Again on the next day, there was a quarrel in between
Nanda and her husband. Nanda told PW4 that, she had told her
husband that she would prepare tea and he should fetch water. She
told that, the accused got annoyed and had poured 2½ ltrs. kerosene
on the person of deceased as disclosed in A.D. This dying declaration
is deposed in detail by PW4. He stated that, Nanda told him that her
husband poured kerosene on her body. He further deposed that, she
told him that she herself took the matchstick and set herself on fire.
He also deposed about the complaint of ill-treatment and assault
made by Nanda and her dying declaration. Evidence of PW4 shows
that, it was the accused who wrapped Nanda in towel and he along
with the help of others extinguished the fire and took her to the
hospital at Ambad. The dying declaration is at Exh. 25. PW4 deposed
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that, it bears thumb impression of Nanda and his signature but he did
not state that the dying declaration was read over to Nanda, she
admitted it to be correct and thereafter her thumb impression was
taken. He did not state that Nanda was unable to make signature on
the dying declaration.
14. It is certain that, this dying declaration was not made basis
for registration of crime on the same day. The crime is registered on
17.06.97 i.e. 12 days after recording of dying declaration. Letter
Exh.27 written by Police discloses that the police were aware about
the recording of dying declaration by PW4. However, the spot
panchanama dt. 06.06.97 shows that it was drawn in a Crime
No.115/97 u/s 309 IPC. The spot panchanama discloses different
story that Nanda was suffering from illness and therefore she herself
poured kerosene on her person and set herself ablaze.
15. Though the contents of the spot panchanama cannot be
treated as substantive evidence, it is certain that the prosecution is
suppressing the material facts. The cross-examination of Investigating
Officer PI Pawar shows that, one Head Constable – Hiwale had
recorded the statement of Nanda at Ambad, on the basis of which
crime C.R. No. 115/97 was recorded u/s 309 of IPC. If at all her
husband had abetted her by pouring kerosene on her person by
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providing her matchstick the offence could have been registered
against her husband and not against her. There is no proper
explanation why the dying declaration Exh. 25 was not immediately
sent to the police station by PW4 and why the crime was not
registered immediately. There was a long delay upto 17.06.97 for
registration of crime.
16. It is pertinent to note that, after the incident of burning, the
parents, brother and uncle of the deceased Nanda would have
immediately reported to the police about the alleged oral dying
declaration given by Nanda to them but they have not disclosed
anything to the police for a period of one month. The delay is highly
suspicious and it creates doubt about the truthfulness of the evidence
of these witnesses. In this regard, I rely upon Sanju Samson Vs
State of Maharashtra AIR 2002 SC 1998.
17. The story narrated in dying declaration itself appears to be
doubtful. If the accused would have poured kerosene on the person
of Nanda, she would have run away. The accused could not have
tried to extinguish the fire and got himself burn. PW9 has admitted
that, as per first dying declaration, Nanda was suffering from TB and
therefore she attempted to commit suicide. The accused himself had
sustained burn injuries and he had admitted her in Civil Hospital at
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Ambad. There is no dispute that he had taken Nanda for medical
treatment. The conduct of the accused is not consistent with the
allegations in the dying declaration that he poured kerosene on her
person and provided her matchstick.
18. Pertinently, I find that there was no occasion for the
accused to take such a drastic step and abet Nanda to commit suicide.
The marriage was hardly one year old. The cross in the dying
declaration regarding interest of the accused in his maternal cousin is
not disclosed by Nanda to any of the maternal relations as PW1,
PW5, PW6, PW7 have not deposed about this angle of the allegations.
Nanda had given birth to a son just two months before the incident.
Nanda had made no complaint to her maternal relatives during her
stay at her maternal house at the time of delivery. When all these
facts are taken together, there are grave doubts created in my mind
about truthfulness of dying declaration. Ld. Advocate Shri.Satej S.
Jadhav has rightly argued that PW4 ought to have read over the
dying declaration to the patient and after getting admission about
correctness, then only he should have obtained her thumb
impression. Besides, he should have tried to obtain her signature and
in case she was unable to sign, then only her thumb impression
should have been taken.
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19. Mr Satej Jadhav relied on Girdhar Tawade Vs State of
Maharashtra AIR 2002 SC 2078, wherein it is held that the acquittal
of the accused u/s 306 would not necessarily entail the acquittal u/s
498A, but there should be cogent evidence to bring home the charge
u/s 498A. He also relied on Sanju Samson Vs State of Maharashtra
AIR 2002 SC 1998 wherein relying upon Ramesh Kumar v. State of
Chhattisgarh (2001) 9 SCC 618, it is held that, “a word uttered in a
fit of anger or emotion without intending the consequences to
actually follow cannot be said to be instigation. If it transpires to the
court that a victim committing suicide was hypersensitive to ordinary
petulance, discord and differences in domestic life quite common to
the society to which the victim belonged and such petulance, discord
and differences were not expected to induce a similarly
circumstanced individual in a given society to commit suicide, the
conscience of the court should not be satisfied for basing a finding
that the accused charged for abetting the offence of suicide should be
found guilty.”
20. It is well settled that, the conviction can be based on
uncorroborated dying declaration, however, such dying declaration
should be cogent, reliable, trustworthy and should inspire confidence.
It should be consistent with the other factual aspects. I find that, the
present dying declaration does not inspire confidence in my mind.
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21. The ld. trial Judge has not paid proper attention to the
discrepancies, variances and lacunae in the prosecution case and has
arrived at incorrect findings which are not sustainable. Hence, the
appeal deserves to be allowed and the appellant deserves to be
acquitted.
22. The appeal is allowed. The conviction of the accused is set
aside. The accused is acquitted of all the charges. His bail bonds
stand cancelled. He shall furnish P.R. bond of Rs. 20,000/- u/s. 437A
of Cr.P.C. within fifteen days.
[ A. M. DHAVALE ]
JUDGE
sgp
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