Bombay High Court Sitabai @ Sevantabai W/O Honaji … vs The State Of Maharashtra Through … on 11 February, 2008Author: V Kingaonkar Bench: V Kingaonkar
V.R. Kingaonkar, J.
1. Challenge in this appeal is to judgement rendered by learned Additional Sessions Judge, Basmathnagar, in Sessions Case No. 63 of 2004 whereby both appellants have been convicted for offences punishable under Sections 306 and 498A read with Section 34 of the I.P. Code and are sentenced to suffer imprisonment for five (5) years and to pay a fine of Rs. 2000/-, in default to undergo imprisonment for six (6) months, and imprisonment for one (1) year and to pay a fine of Rs. 1000/-, in default to undergo imprisonment for three (3) months, respectively.
2. Background facts, in nutshell, are as follows:
The son of appellant No. 1 Sitabai is physically challenged since childhood. He runs a TV and Tape Recorder repairing shop. Appellant No. 2 Baby @ Babytai is unmarried daughter of appellant No. 1 Sitabai. Both the appellants used to attend domestic work and also used to deal in vegetable vending for earning of livelihood. PW1 Parasram is real brother of appellant No. 1 Sitabai and is father of deceased Sow. Savita. He gave deceased Sow. Savita in marriage to the physically challenged son of appellant No. 1 sitabai in or about 1996. The marriage was probably a sort of mutual adjustment due to blood relations. Deceased Sow. Savita was residing with the appellants and her husband under the same roof. The matrimonial life was without any serious trouble for at least first five (5) years.
3. The prosecution case is that deceased Sow. Savita was subjected to cruelty by the appellants after period of about five years of the marriage. They used to pick up quarrels with her. They used to tease her saying that she was eating food without doing work. They sometimes used to beat her. The deceased was unable to bear with the cruelty meted out to her by the appellants. In the early morning of 30th May, 2004, the appellants picked up quarrel with Sow. Savita. Both of them were abrasive and abusive to her. Sow. Savita was irked, infuriated and immediately, doused kerosene on her person after closing door of a room in which she went. She got immolated herself. She was rushed to Government Hospital after the fire was extinguished. Her police statement was recorded. Her dying declaration was recorded by learned Judicial Magistrate (First Class) while she was in the hospital. She gave oral dying declaration to her parents and other relatives. She died on account of 96 per cent of burn injuries sustained by her, on 31st May, 2004. On basis of material gathered during course of investigation, both appellants were chargesheeted for offences punishable under Section 306 and 498A read with Section 34 of the I.P. Code.
4. At trial, the prosecution examined in all seven (7) witnesses in support of its case. The main thrust of the prosecution was on the two written dying declarations given by deceased Sow. Savita. The learned Sessions Judge accepted the case of prosecution and convicted both the appellants for the offences with which they were charged. They were sentenced as stated at the outset.
5. Mrs. Chate S.P., learned advocate, appointed as Amicus Curiae, strenuously argued that there is no reliable evidence to attribute matrimonial cruelty to either of the appellants. She contended that neither appellant instigated, aided or goaded deceased Sow. Savita to commit suicide. She argued that the vague versions of PW1 Parsaram and brother of deceased Sow. Savita are inadequate to bring home guilt to the appellants. It is argued that the learned Sessions Judge did not properly appreciate the evidence on record and reached a totally wrong conclusion merely because there are two dying declarations of deceased Sow. Savita. The learned advocate would submit, therefore, that both the appellants are entitled to acquittal. Per contra, learned APP Mrs. Khekale supports the impugned judgement.
6. Before I embark upon scrutiny of the prosecution evidence, it may be mentioned that deceased Sow. Savita committed the suicide in the matrimonial home after period of about eight (8) years of the marriage. The provisions of Section 113A of the Evidence Act will not come into play. The presumption under Section 113A of the Evidence Act is not attracted for the reason that the suicide is not committed within period of seven (7) years from the date of the marriage. So, it cannot be presumed that the appellants abated commission of the suicide only because she was subjected to alleged cruelty. Nor presumption under Section 113B of the Evidence Act would be attracted in as-much-as there is absolutely no allegation that any unlawful demand for dowry was being made. The prosecution case reveals that deceased Sow. Savita was given in marriage to son of appellant No. 1 Sitabai as she is real sister of PW1 Parasram. Obviously, there was atmosphere known to her when she entered the matrimonial house. For, the appellants were not the strangers to deceased Sow. Savita. It is pertinent to note that so far as charge of cruelty is concerned, the prosecution asserted that the alleged cruelty was within the meaning of Explanation (a) of Section 498A of the I.P. Code. There was no harassment of deceased Sow. Savita with a view to coerce her or any of her paternal relations to fulfill any unlawful demand. Needless to say, it is essential to find out whether the appellants by their willful conduct, drove deceased Sow. Savita to commit the suicide.
7. The prosecution was required to establish that the appellants by their conduct made the life of Sow. Savita miserable. The dying declarations relied upon by the prosecution only show that there used to be frequent quarrels between deceased Sow. Savita and the appellants. The police statement of deceased Sow. Savita (Exh-35) was recorded by PW7 Hanmant (H.C. No. 190). The version of PW Hanmant reveals that he took necessary precaution to verify that Sow. Savita was able to give her statement. He recorded her statement around 4 p.m. The statement reveals that in the early morning, Sow. Savita prepared a cup of tea and served it to her husband by name Raosaheb. Her husband left the house to attend his shop and thereafter, the appellant No. 1 addressed obscenities to her. She narrated that when she asked as to why she was being abused, both appellants started beating her. She further narrated that she was annoyed and thought that it would be better to die instead of living. She thereafter went inside a room of the house, got doused herself with kerosene and set her ablaze at about 8 a.m. Her police statement shows that when she was screaming, both the appellants extinguished the fire. Thereafter, her husband returned from the shop and took her to the Government Hospital in an auto-rickshaw. The entire police statement (Exh-35) does not show as to since when she was being subjected to cruelty by the appellants. it is vaguely stated that they used to abuse her frequently and used to beat her.
8. Coming to another dying declaration recorded by the learned Judicial Magistrate (First Class), which is duly proved by PW4 Shri Chaudhary, it can be gathered that the allegations of beating and abusing by the appellants are not reiterated by her. The recitals of the dying declaration (Exh-23) need to be carefully scanned. For, this is the dying declaration recorded by the learned Judicial Magistrate and is more reliable document. In her dying declaration, she narrated that in the relevant morning, she had quarrel with the appellants over trivial reason. She vaguely narrated that she was troubled by mother-in-law because due to trivial reasons, she used to quarrel with her. She stated before learned Judicial Magistrate that after the quarrel, she immolated herself. The quarrel which took place in the said morning is the main reason which prompted deceased Sow. Savita to immolate herself. This is the singular instance stated in the dying declaration which eventually gave rise to the incident of her suicide.
9. The evidence appearing from the recitals of both the dying declarations is at variance in so far as the nature of alleged matrimonial cruelty is concerned. In the second dying declaration, recorded by learned Judicial Magistrate Shri Chaudhari, Sow. Savita did not narrate about abuses or beating by the appellants. The only reason shown is that the mother-in-law used to frequently quarrel with her. There are no instances as regards particular manner of cruelty meted out to Sow. Savita and the period of such cruel treatment.
10. Upon marshalling the versions of PW1 Parasram and PW2 Gyanba, who are the father and brother of deceased Sow. Savita, it may be gathered that they gave vague account regarding the alleged matrimonial cruelty meted out by the appellants. According to PW Parasram, after 4/5 years, the appellants used to quarrel with Sow. Savita and teased her. He states that as and when he used to visit house of the appellants, Sow. Savita used to narrate to him about such cruelty. He further added that he advised Sow. Savita not to quarrel and behave properly. In other words, he found fault with the behaviour of Sow. Savita. He does not say that he gave any word of advice to the appellants after hearing the complaints of Sow. Savita. He admits, unequivocally, that Sow. Savita was immediately hospitalized after the incident of the burning. Though the father does not refer to alleged beating and abuses by the appellants, in relation to deceased Sow. Savita, yet PW Gyanoba goes a step ahead. He states that Sow. Savita complained to him that both appellants used to beat her and used to tell her that she was eating food without doing anything. He further states that about a month prior to her death, he had gone to house of the appellants and inquired with them as to why Sow. Savita was being ill-treated. He states that both the appellants told him that if she was his affectionate sister, then he should take her to his house and further told that she must work like daughter of appellant No. 1 – Sitabai. There is glaring omission in the statement of PW Parasram regarding such kind of visit of his son to house of the appellants prior to about one month of the incident.
11. The entire evidence on record purports to show that deceased Sow. Savita and the appellants used to quarrel on some occasions. The allegations are unspecific. There is nothing on record to show that the appellants, in fact, by their conduct, desired to drive her to cause some injury to her person or to commit the suicide. The prosecution has not examined any neighbour of the appellants. Nor there is any reliable evidence to show that Sow. Savita was being continuously harassed by the appellants, which would amount to cruelty within the meaning of Explanation (a) of Section 498A of the I.P. Code.
12. The evidence of the prosecution reveals that in the relevant morning, there was quarrel between the appellants and deceased Sow. Savita. She could not tolerate the words used by the appellant No. 1 and immediately, went inside the room where she got immolated herself. The immediate reaction of the deceased by itself cannot be of much avail. The single instance seems to have been blown out of proportion by the learned Sessions Judge. In “Mahendra Singh and Anr. v. State of Madhya Pradesh 1996 Cri.L.J. 894”, the Apex Court came across somewhat identical text of the dying declaration. The dying declaration of the deceased in that case, namely, Khemabai, was as follows : “My mother-in-law and husband and sister-in-law (husband’s elder brother’s wife) harassed me. they beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning.”
The Apex Court observed that mere allegation of harassment made by the deceased in her dying declaration against accused was not sufficient to constitute the offence. Once it is found that overall account of harassment or trouble as stated by PW Parasram and PW Gyanba is at variance and is unacceptable, then it follows that the vague allegations in the dying declarations of Sow. Savita are of no much evidentiary value.
13. For the reasons stated hereinabove, I am of the opinion that the appellants could not be convicted for offence of matrimonial cruelty under Section 498A of the I.P. Code, nor they could be convicted for offence under Section 306 of the I.P. Code. It is not proved that by willful conduct, the appellants drove deceased Sow. Savita to the path of her suicide. So also, it is not proved that the appellants, merely on account of the quarrel which occurred in the relevant morning, abetted the suicide. It is well settled that for the purpose of abetment of the suicide, necessary ingredients of Section 107 of the I.P. Code are required to be proved. The acts of the appellants do not amount to intentional aiding, inducement, goading or in any way assisting the suicide of deceased Sow. Savita. Nobody can deny that sometimes, the suicide is end product of imbalanced mind. The human mind cannot be easily fathomed. Though deceased Sow. Savita was given in marriage as per wish of PW Parasram to the physically challenged son of appellant No. 1, yet, she did not conceive any child. For about eight (8) years, she was living with the crippled husband. The minor quarrels between the appellants and deceased Sow. Savita were said to be for trivial reasons. Every kind of harassment cannot be regarded as “cruelty” within the meaning of Sub-clause (a) of Section 498A of the I.P. Code. The regular ware and tear of the matrimonial life, the ground realities of the rural life and the fact that both appellants were also earning their livelihood by doing business of vegetables vending besides attending the regular domestic chores, could be the reason for expectations from deceased Sow. Savita that she shall also toil like them. Their expectations were perhaps frustrated by her and hence, there was sometimes the outburst which she could not tolerate. Under these circumstances, the appellants cannot be convicted for the offences with which they were charged.
14. In the result, the appeal is allowed. The impugned judgement and order of conviction and sentence is set aside. Both appellants are acquitted of the offences with which they were charged. They shall be set free, if not required in any other case.