Bombay High Court Parasharam Housabai Kamble, … vs The State Of Maharashtra on 5 August, 2005Author: R Chavan Bench: V Palshikar, R Chavan
R.C. Chavan, J.
1. By this appeal, appellants have challenged their conviction for offences punishable under sections and 498A read with section 34 of the Penal Code and the resultant sentences inflicted upon them by the learned Additional Sessions Judge, Kolhapur.
2. Facts which gave rise to prosecution of the appellants are as under:-
Appellant No. 1 was married to Alka, daughter of P.W. 5 -Indutai about five years prior to the incident. Accused No. 2 is brother of accused No. 1. Accused No. 3 is wife of accused No. 2. Accused No. 4 is the mother-in-law of victim Alka. It was the prosecution case that about 8 to 10 months after marriage, the accused persons started ill-treating Alka. Interventions by relations did not yield any positive results. Accused No. 1 was dealing in illicit liquor. When that business stopped, he started demanding money from parents of Alka for monthly expenses as also for partition of the agricultural land etc. Victim’s mother Indutai had paid some amounts to accused No. 1. However, ill-treatment of the victim continued. Alka came to reside with her parents for about six months. Accused No. 1 issued a notice to Alka and then with the mediation of a Municipal Corporator, took Alka back assuring that he would treat her well.
3. On 29/7/1997, the victim was heating water on a stove using fuel wood. When her daughter aged one and half years came near the stove, the victim slapped her. Angered thereby, the accused No. 1 slapped the victim and beat her with fists and kicks. The victim started for her parental house out of anger. Accused Nos. 2 to 4 who stay nearby came and held the victim. Accused No. 1 was, at that time, leaving the house. Accused No. 3 brought a kerosene Can and doused the victim with kerosene. She then struck a match stick and set the victim on fire. Alka came out of the house screaming and poured a bucket of water on herself. She fell unconscious. Accused No. 1 took her first to hospital at Kurundwad. She was shifted by him to Civil Hospital at Sangli. Police were informed and a statement of the victim was recorded. The victim met with her death on the next day. An offence was registered and investigation commenced.
4. In the course of investigation, after performing inquest, dead body of the victim was sent for post-mortem examination. Incriminating articles were seized and sent to the Forensic Science Laboratory. The statements of witnesses were recorded. Accused were arrested and charge-sheet was sent to the learned Judicial Magistrate, First Class, Kurundwad, who committed the case to the Court of Sessions.
5. The learned Second Additional Sessions Judge to whom the case was assigned framed charge of offences punishable under sections 302, 498A read with section of the Penal Code against all the four accused persons. They pleaded not guilty and hence were put on trial.
6. The prosecution examined in all 10 witnesses to bring home the guilt of the accused. After the accused were examined under section 313 of the Criminal Procedure Code, they tendered evidence of one Akaram Golandaj in their defence. Upon consideration of evidence tendered, in light of the rival contentions, the learned Additional Sessions Judge held all the four accused guilty of offences punishable under section 498A and 302 of the Penal Code. He sentenced the appellants to simple imprisonment for three months and fine of Rs 500/-each for offence punishable under section 498A and imprisonment for life and fine of Rs 1000/-each for the offence punishable under section 302 of the Penal Code. Aggrieved thereby, the convicts have appealed.
7. We have heard the learned Counsel for the appellants and the learned Additional Public Prosecutor for the State. The learned Counsel for the appellants contended that there was no dispute about the fact that the victim died of severe burns. But, there was no eye witness to state that any of the appellants had either ill-treated the victim or had set her on fire. He submitted that the allegations about ill-treatment are extremely vague and are not borne out by any record. He pointed out that the case rested solely on dying declaration of dubious value and, therefore, wanted the appeal to be allowed.
8. As regards the first contention of the learned Counsel for the appellants in respect of ill-treatment, it may be useful to observe that charge at Exhibit-14 recounts that all the accused persons in furtherance of their common intention demanded money from the victim or her parents and on failure to fulfil illegal demands, the accused persons harassed and ill-treated Alka and subjected her to cruelty.
9. P.W. 5 -Indutai, mother of the victim, has stated about demands and ill-treatment in paragraphs and 2 of her deposition at Exhibit-37. It may be seen that ill-treatment had nothing to do with demand of money. In paragraph 1, while speaking of ill-treatment, Indutai does not state any thing about demand of money. In paragraph 2 she states that accused No. 1 was dealing in illicit liquor and that the business had stopped. Therefore, she was required to provide money for meeting the household expenses. She also stated about demand of Rs 7,000/-for partitioning agricultural land and claimed that she had given him Rs 5,000/-on one occasion and Rs 3,000/-on another occasion about one year prior to death of Alka. The evidence of P.W. 6 -Sunil Sadare, victim’s brother is in the same vein. It may be seen from the account of Indutai (P.W.5) that the demands were not related to dowry but, seemingly, instances of financial help to tide over crisis.
10. According to both P.W.5 -Indutai and P.W. 6 Sunil, Alka had come to her parental house after a sum of Rs 8000/-was given to the accused. Thereafter, she stayed at her parental house for about six months. The accused is stated to have issued a notice calling upon Alka to return to her matrimonial home. With the mediation of some one, Alka returned to her matrimonial home. Thus, though independent evidence of prior marital discord could have been available to corroborate the word of P.Ws. 5 and 6, prosecution does not seem to have examined any independent witness for this purpose.
11. The dying declaration of Alka is at Exhibit-35. The manner in which the declaration was recorded and other aspects would be considered little later. It may be seen that in this elaborate statement, running into almost two and half pages in the narrative form (and not in question and answer form), the victim had not made any reference to any demand of money or payment of any sums by her mother to her husband. On the other hand, the victim had stated that the accused persons used to quarrel with her for trifles and used to ill-treat her. She stated that when she informed her parents of her harassment, they had advised her not to return to the matrimonial home. During that period, the accused had sent a notice to her to give her divorce. She claimed to have returned to matrimonial home. Thus, her version about ill-treatment is altogether different. It may be safe to conclude that the allegations of demand of money appearing in evidence of P.Ws. 5 -Indutai Sadare and -Sunil Sadare could be an afterthought, may be at the advise of village barristers in order to invoke provisions of section 498A of the Penal code. Therefore, in the face of contents of Exhibit-35, the evidence of P.Ws. 5 -Indutai Sadare and 6 -Sunil Sadare about unlawful demands or ill-treatment flowing from failure to fulfil such demands cannot be believed. We, therefore, conclude that the learned trial judge erred in convicting the appellants of the charge of offence punishable under section 498A read with section 34 of the Penal Code as framed by him.
12. This takes us to the question of involvement of the appellants in the incident which led to death of the victim. As rightly contended by the learned Counsel for the appellants, the cases rests solely on the account of incident given by the victim herself, since no independent witness has come forth or rather could have come forth, to state about the manner in which the incident took place.
13. P.W. 1 -Kallappa Kambale was working as Home Guard, though he is basically a cultivator. He stated that on 29/7/1997, at about 11 to 11.45 a.m., he came from Kurunwad to Akiwat. At about 12.30 noon, he heard noise coming from the Southern side of his house and saw victim Alka in flames. He ran to the spot which was about 250 ft. away from his house. By then Alka had already poured a bucket of water on her person. He too poured once pitcher of water and extinguished the fire. He claimed to have asked Alka as to how she caught fire when she stated that while she was heating water for bath, fire wood was wet and there was some smoke and so she poured kerosene, resulting in flames engulfing her. She stated that there was none in the house. Expectedly, the witness (P.W.1 -Kallappa) was declared hostile. He admitted that whatever he stated in his examination-in-chief was not to be found in his police statement. He also contradicted several portions of his police statement which were later duly proved at Exhibit-46 and 47 by the Investigating Officer P.W. 9 -PSI Sudam Darekar casting serious doubts on the reliability of Kallappa.
14. The learned Counsel for the appellants submitted that Kallappa (P.W.1) was the first person to know of the incident from the victim and, therefore, the account of the incident conveyed by Kallappa ought to be believed. In any case, that account would cast a doubt on the subsequent statements made by the victim. We are afraid that we cannot place the same amount of confidence in the truthfulness of P.W.1 -Kallappa as the learned Counsel for the appellants would like us to have. This is so, not because Kallappa turned hostile, but because he has actively collaborated with the defence in even changing the time of incident. The dying declaration at Exhibit-35 shows that, according to victim, incident took place at about 7.00 a.m. Kallappa (P.W.1), however, wanted the Court to believe that the incident took place at 12.30 noon in order to rule out the possibility of presence of accused No. 2 -Bharma. The defence wanted to show that, at that time, accused No. 2 was working in the Powerloom Factory of D.W. 1 -Akaram. But while so trying to twist the story, P.W 1 -Kallappa forgot that he was still mentioning that the victim was trying to heat water for bath. Stroking fire in a fire wood stove is common sight in village in mornings and not at noon time. By the noon time, the fire in these stoves burns off. Therefore unwittingly P.W. -Kallappa was speaking of a wrong event taking place at a wrong time. Therefore, evidence of Kallappa has to be discarded in its entirety. It does not dilute the effect of evidence of other witnesses.
15. P.W. 3 -Dr. Yadav was working in Civil Hospital, Sangli. It may be recalled that the incident took place at Akiwat in Shirol Taluka. The victim was first taken to the hospital at Kurundwad and from there to Civil Hospital at Sangli. Dr. Yadav (P.W.3) stated that Alka was brought to the hospital at 5.15 p.m. This is not abnormal, considering that she was first taken to the hospital at Kurundwad where she was given some treatment and then shifted to Sangli. Dr. Yadav (P.W.3) stated that he had taken history of the patient from the patient herself and the patient had given history of alleged homicidal burns by her mother-in-law, brother-in-law and sister-in-law, after quarrel and beating by husband. He proved his notings to that effect in the case papers at Exhibit-32.
16. Dr. Yadav (P.W.3) then stated that the police had approached him for recording statement of the victim. Recording of this statement commenced at 8.15 p.m. when the patient was fully conscious and well oriented. He stated that he was present throughout the recording of statement and he made the requisite endorsement on the statement. This statement of the victim at Exhibit-35 was duly proved by P.W.-4 -PSI Kadam, who stated that he had requested Dr. Yadav (P.W.3) to examine the patient and certify whether the patient was in a condition to make statement. P.W.4 PSI Kadam clarified that as a Magistrate was not available, the statement was recorded by him. The fact that the Magistrate was not available has also been corroborated by P.W. 7 -PHC Vithal Surve, who stated that he had sent a Constable to call Executive Magistrate but could not find such Magistrate. PHC Surve (P.W.7) had also proved Station Diary Entry at Exhibit-41 which shows that search for Tahsildar was made but he was not found. It is obviously not expected of a Police Officer to avoid recording statement in the false hope that a Magistrate would come sooner or later. PSI Kadam (P.W.4) has done his duty properly in proceeding to record the statement of the victim without waiting for the Magistrate.
17. In cases of injuries by burns, many times doctor had to administer pain killer and sedatives which may affect orientation of the patient. However, in this case, the cross-examination of P.W. 3 Dr. Yadav by defence itself brought out that the sedative was administered to the patient after recording of statement and this fact was duly noted in the case-papers. Thus, there is absolutely no reason to doubt the correctness of the statement recorded by P.W. 4 -Kadam in the presence of P.W. 3 -Dr. Yadav. In this statement, the victim stated that, at about 7.00 a.m. when she was heating water on wood stove, her daughter came near the stove and, therefore, she slapped her daughter. This led her husband to beat her up, followed by her starting for parental home. She then states that her mother-in-law, brother-in-law and brother-in-law’s wife came to her house. She stated that her brother-in-law’s wife Shobha brought a Can of kerosene, poured kerosene on her person and set her on fire by striking a match stick, while her mother-in-law and brother-in-law held her. She is categorical that her husband was, at that time, leaving the house. The cross-examination of P.W. 4 Kadam does not bring out any infirmities in recording of this dying declaration.
18. P.W. 7 -PHC Surve has proved the extract of Station Diary Entry at 5.25 p.m. on 29/7/1997. This extract also shows that one Dr Vanjari from Civil Hospital, Sangli had informed the Police Station on phone that Alka had reported that at about 7.00 a.m., Alka’s brother-in-law, mother-in-law and brother-in-law’s wife had set Alka on fire and that Alka’s husband had admitted Alka to Civil Hospital. This extract at Exhibit-40 corroborates the version in the dying declaration as well as the one recorded in case-papers by P.W.3 -Dr. Yadav. A requisition was issued to PSI -Kadam (P.W.4) for recording statement of the victim which is at Exhibit-42. This too shows that information received pertained to involvement of accused Nos. 2, 3 and 4.
19. It may thus be seen that the account of the incident given by Alka to Dr. Yadav and police authorities implicate only accused Nos. 2 to 4 in the incident of burning. P.W. 5 -Indutai too states that, she learnt that at the time of incident, victim’s husband was standing idle with his sister. Thus, Indutai (P.W.5) too does not convey to the Court that accused No. 1 actively participated in setting the victim on fire. P.W.6 -Sunil also recounts what his sister told him. In his account, however, he states that all the four accused restrained Alka and caught her but this must be read in the context of the victim’s proceeding to parental house in a huff. Even this witness (P.W.6 -Sunil) does not attribute any setting the victim on fire.
20. This is consistent with the fact that the accused No. 1 himself took his wife first to the hospital at Kurunwad and from there to Civil Hospital at Sangli. Passiveness of accused No. 1 at the time of incident may not be excusable, but cannot be equated to connivance or sharing of an intention to put an end to the life of the victim. One may visualise the incident occurring in such a short time that the accused No. 1 may have been out of his wits due to the altercation which just preceded the incident. Therefore, accused No. 1 must get the benefit of doubt that he may not be sharing the same intention as accused Nos. 2 to 4 had when they pinned down the victim, poured kerosene and set her on fire. To this extent, in our opinion, the learned trial judge erred. He ought to have acquitted the appellant No. 1 of the offence of murder of his wife.
21. The learned Counsel for the appellants submitted that accused No. 2 was not at the scene of offence and was, in fact, at his place of work as stated by D.W. 1 -Akaram Golandaj. It may be seen that the incident had taken place at 7.00 a.m. and not in the noon. Even according to D.W. 1 -Akaram, duty hours of accused No. 2 were from 8.00 a.m. to 4.00 p.m. with an interval from 12.00 noon to 2.00 p.m. Thus, accused No. 2 could have easily participated in the incident at 7.00 a.m. at his house and reported for duties at 8.00 a.m. as stated by D.W. 1 -Akaram. We may also observe that even if the incident took place in the noon as stated by P.W. 1 -Kallappa, participation of accused No. 2 is not ruled out by evidence of D.W. 1 -Akaram, since Akaram states that accused No. 2 had a recess from 12.00 noon to 2.00 p.m. He (D.W.1) had also stated that it takes about 15 to 30 minutes for reaching Akiwat (place of incident) from Kurundwad where accused No. 2 was working. In view of this, the learned trial judge rightly rejected the plea of alibi raised by the the accused No. 2.
22. The foregoing discussion would show that the learned trial judge rightly convicted appellants Nos. 2 to 4 for the offence punishable under section 302 read with section 34 of the Penal Code. However, he ought to have extended benefit of doubt to accused No. 1. Also he ought to have seen that the offence punishable under section 498A of the Penal Code was not proved in the terms in which the charge was framed. Therefore, he ought to have acquitted all the accused of the offence punishable under section 498A of the Penal Code.
23. In this view of the matter, we allow the appeal partly, set aside the conviction of all the appellants for the offence punishable under section 498A read with section 34 of the Indian Penal Code and that of appellant No. 1 alone for the offence punishable under section 302 of the Indian Penal Code. Conviction of appellants 2 to 4 for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentences imposed upon them are maintained. Appellants 2 to 4 shall surrender to their bail within four weeks before the Sessions Judge of the concerned Session Division, who shall then commit the appellants 2 to 4 to prison to serve out their sentences.