Bombay High Court Ganesh Bhagwan Jadhav vs State Of Maharashtra on 4 November, 2003Equivalent citations: I (2005) DMC 445 Author: J Chitre Bench: J Chitre
J.G. Chitre, J.
1. Heard Mr. Agandsurve and Mr. Saste at length in context with the judgment and order, which has been challenged by this appeal and evidence, which has been adduced by the prosecution for proving the guilt of the appellant.
2. The appellant assails the order of conviction and sentence passed by the 4th Additional Sessions Judge, Sholapur, in Sessions Case No. 180 of 2000, whereby the appellant was convicted for offence punishable under Section 306 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 2000/-, in default to suffer further rigorous imprisonment for six months. The appellant was also convicted for an offence punishable under Section 498A of Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 1,000/- in default to suffer further rigorous imprisonment for three months. The substantive sentences have been directed to run concurrently.
3. The prosection case, in brief, is that on 10.5.2000 deceased Shubhangi was married with appellant and she stayed with appellant at Randivewadi, Tal. Madha, Dist. Sholapur for about a month. Appellant and Shubhangi were staying along with the parents of appellant Ganesh and along with his elder brother and his wife in one house. On 20th of June, 2000 prior to 5.30 p.m. as per prosecution case, appellant charged deceased Subhangi that she was having illicit relations with one Saudhagar Jadhav, who was residing in the neighbourhood. He told her not to speak with him by ill-treating her on that count. It is the prosecution case, that he was charging her like that prior to 20th of June, 2000 also and on that count he was ill-treating her.
4. After deceased Shubhangi was so charged by the appellant at 5.30 p.m., shew poured kerosene on her body and set her to fire. After getting herself in the flames, on account of burning sensation, Shubhangi caught hold of her father-in-law and he also tried to save her. On account of that, he also sustained burn injuries. Shubhangi and her father-in-law were taken to Sholapur Civil Hospital at about 10 p.m. or so by the family members and person residing in the neighbourhood. She was admitted there as indoor patient. At about 10.20 p.m. Police Head Constable Shaikh requested Dr. Avinash Ghorpade to examine her physical condition as well as mental condition, because he wanted to record her statement. Dr. Avinash Ghorpade examined deceased Subhangi and certified that she was in a fit condition to give her statement. The Police Head Constable Shaikh recorded her statement at 10.30 p.m. Dr. Ghorpade certified that Subhangi was . able to speak and was in fit mental condition to give the said statement. Prior to recording of that statement Police Head Constable Shaikh had sent a requisition to Special Executive Magistrate, Tambolkar, requesting him to record dying declaration of Shubhangi. Special Executive Magistrate, Tambolker arrived in Civil Hospital at about 10.40 p.m. He also requested Dr. Ghorpade to examine physical and mental condition of Shubhangi Jadhav, because he wanted to record her statement. Dr. Ghorpade certified that Shubhangi Jadhav was able to speak and was in fit mental condition to give her statement. Mr. Tambolkar recorded her statement. It has been endorsed by Dr. Ghorpade, certifying that Shubhangi Jadhav was able to speak and was in fit mental condition to give said statement.
5. Both these statements have been used by the prosecution to prove the guilt of the appellant and these statements have been considered by the Trial Court for adjudicating guilt or innocence of the present appellant.
6. The prosecution examined Medical Officer, Dr. Ghorpade, Police Head Constable Shaikh, Special Executive Magistrate, Tambolkar along with other witnesses for establishing the guilt of the appellant. The case of the prosecution mainly rests on the evidence of these witnesses.
7. The appellant set up the defence of denial. He contended that Shubhangi was not prepared to lead married life with him and was telling that she disliked him. According to him parents of Shubhangi took her to their house and gave her advice for leading married life. Hence, he brought Shubhangi to his home and started living with his parents. According to appellant after arrival at his home within 10 minutes Shubhangi set fire to herself. He stated that he himself and some 8 to 10 persons brought subhangi to Civil Hospital, Sholapur for medical treatment. He stated that he committed no offence.
8. The Trial Court after appreciating evidence on record concluded that both dying declarations were consistent with each other and those two statements were fit to be believed for adjudicating guilt of the appellant. The Trial Court concluded that prior to 5.30 p.m. on 20th of June, 2000 the appellant had ill-treated Shubhangi and on account of the said ill-treatment, she set her on fire by pouring kerosene on her body. The Trial Court concluded that the appellant abetted her to commit suicide. The Trial Court held him guilty for offence punishable under Sections 306 and 498 of Indian Penal Code and inflicted sentence on him as mentioned above.
9. Mr. Agandsurve, Counsel for appellant submitted that the Trial Court committed error in believing the dying declaration of Shubhangi and coming to the conclusion that on account of the ill-treatment, Shubhangi committed suicide. He submitted that the Trial Court committed error in coming to the conclusion that appellant abetted her to commit the said suicide. Mr. Saste, A.P.P. submitted that the dying declaration happens to be corroborated by the circumstantial evidence in this case. He submitted that the dying declaration recorded by Special Executive Magistrate, Tambolkar, is free from any doubt and that by itself is sufficient to prove the guilt of the appellant beyond reasonable doubt and the Trial Court has committed no error whatsoever in coming to the conclusion that the appellant committed the offence punishable under Sections 306 and 498-A of I.P.C.
10. For the purpose of coming to the conclusion whether the dying declaration is fit to be believed for adjudicating the guilt of the accused, the evidence indicating the source of said dying declaration has to be carefully examined. It has to be seen whether the deceased was able to speak properly and was in fit mental condition to give such statement. It has to be also seen whether the deceased was motivated for implicating the accused by giving a particular type of statement before the death. In that context, it has to be seen whether the deceased had any enmity with the accused or had an axe to grind against the accused. It has also to be seen whether deceased was prompted by some other interested persons to give the statement against accused and such persons had opportunity of preparing or tutoring deceased to give such statement. It has also to be seen whether any medicine capable of creating hallucinations or loss of control on mental faculties was administered to deceased immediately or within reasonable time prior to recording of said statement. Whether any drug sufficient enough to create a delirium was administered to deceased immediately prior to recording of said statement has also to be seen.
11. In this context, a careful scrutiny of the evidence on the record has been made by this Court from the medical papers. It is clear that no such medicine was administered to deceased. No person capable of prompting or tutoring the deceased was in her association prior to 10.20 p.m., when Shaikh had recorded her statement and prior to 10.50 p.m., when Executive Magistrate Tambolkar had recorded her statement. It has been also examined whether deceased had an axe to grind against the appellant/accused or whether she was having any ill-will towards him. Evidence on record shows nothing to that effect. Deceased Shubhangi had no axe to grind against the appellant though he had contended that she was disliking him. There is nothing on the record to show that she was having ill-will or any animosity with him. The appellant did not lead any defence evidence to that effect nor he was able to get some material on record to that effect during the cross-examination of the witnesses examined by prosecution for proving his guilt. If the accused takes the defence in this way, he has to get such material on record through the cross-examination of prosecution witnesses or has to adduce the evidence in his defence. If he fails to do so, the evidence adduced by the prosecution tested by cross-examination has to be appreciated as it is along with circumstances depicted.
12. In the present case, deceased Shubhangi was associated with the appellant for a month. Why she should commit suicide by sacrificing her future married life. If at all she was not liking the appellant, she would not have married him. Nowadays, girls are bold enough to tell the parents outspokenly about their love affairs or their likes or dislikes about their grooms. After marriage she would not have stayed with the appellant for a month. There is nothing on record to show that during that month, she was taken to parents’ home by her parents as she disliked her groom. There must have been some cause which hurt her womanhood. The allegations against chastity would be the first along with many other grounds hurting the pride of the womanhood of said newly wedded wife. It appears to be natural that accusation made by the appellant touching her chastity in context with young boy residing in the neighbourhood namely Saudhagar Jadhav was sufficient to make her disheartened. It was sufficient enough to humiliate her to the point of frustration. It was sufficient to molest her self-respect of womanhood after acquiring the status of a wedded wife. A young woman recently married and experiencing married life would get definitely frustrated on account of such accusation for her husband and that too within short span of married life. Though the trial Judge has not expressed himself in proper words, he has rightly concluded that the appellant was the cause for abetting deceased to commit suicide.
13. The learned trial Judge has quoted Section 113 of Indian Evidence Act, 1872 (hereinafter referred to as Evidence Act for convenience) which reads:
“When question is whether the commission of suicide by a woman had been abetted by her husband and/or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”
Explanation–For the purposes of this section, “cruelty” shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860).
14. Though the learned trial Judge did not find out the possibility of any other alleged reason or dislike on the part of Shubhangi towards her husband, the evidence on record does not even indicate the possibility of any such ground. The fact, that the appellant was serving in a Steel Furniture Mart must have been already known to deceased Shubhangi before her marriage. That must not have been the cause for “setting her ablaze. That he lost the job could not be also a ground for her to commit suicide, as evidence on record shows that she was residing with her husband and his parents and his brother and his brother’s wife. Living in joint family makes such wife to tolerate such calamities of the life. Besides that such labouring persons are in the habit of losing the job and getting it again. Therefore, that is also not material to cause disappointment to her and would not be a reason of committing suicide.
15. Even alleged dislike towards her husband would make deceased Shubhangi to go back to her parents’ house. In that case she would not come at all to such husband’s house for cohabiting. She would declare herself a rebel in that context. Therefore, the conclusion drawn by the Trial Court that she was abetted by the ill-treatment at the hands of appellant for committing suicide is the correct phenomenon explaining her said suicide which has been well clarifed by her dying declaration.
16. Leaving aside the dying declaration recorded by the Police Head Constable Shaikh, dying declaration recorded by Special Executive Magistrate, Tambolkar is free from every doubt and that dying declaration has been rightly accepted by the trial Judge. That dying declaration unequivocally states that the appellant was ill-treating her and was accusing that she was having illegal intimacy with Saudhagar Jadhav, who was residing in the neighbourhood. That is the strong evidence, which has been brought forth by the prosecution for proving the guilt of the ‘appellant and that has been rightly accepted by the Trial Court for coming to the conclusion that appellant abetted deceased Shubhangi to commit suicide and he was responsible for her suicidal death. The trial Judge was right in coming to the conclusion that appellant committed offence punishable under Section 498A of I.P.C. by ill-treating her and treating her with cruelty.
17. This Court finds that the order of conviction recorded against the appellant by the trial Judge is correct, proper and legal and confirms it.
18. Mr. Agandsurve submitted that the appellant happens to be young boy and has already suffered imprsionment for three years. He submitted that the said sentence be reduced to the terms of the sentence undergone by him. Mr. Saste opposed this prayer by submitting that the sentence which has been inflicted on the appellant is proper, correct and legal. This Court finds no ground for reducing the said sentence. In fact the sentence which has been inflicted on the appellant is by itself lenient. Thus, appeal stands dismissed. The appellant to suffer the imprisonment in appropriate prison which he is suffering. No interference in respect of the order of disposal of the property.
Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Sheristedar of this Court.