JUDGMENT [ENTITY], J.
1. This appeal is by the State assailing the Judgment of acquittal of the accused for the offence under [SECTION] and [SECTION] of [ACT] in [CASE NUMBER] by the learned Addl. Sessions Judge, Bidar, dated 30.03.1998.
2 The case of the prosecution in brief are as follows:
The marriage of deceased-[ENTITY] took place somewhere in the year 1978. Out of their wedlock two daughters and a son were born. The deceased was a B.A., B.Ed., double graduate with typewriting qualification and for sometime she was working as High School Teacher in Kalur Lingeshwar School and left the job. Whereas, the accused was running a radio repair shop at the time of the incident at Humnabad. It is alleged by the prosecution that the accused-[ENTITY] was addicted to alcohol and that he used to come home fully drunk, assaulting his wife and also subjecting her to cruelty. That on 13.03.1988 at about 7.00 p.m. the accused having fully drunk started quarreling. [ENTITY] having fed-up herself poured kerosene on her body and lit fire. On seeing the incident, the neighbours rushed, put off the fire and she was shifted to General Hospital at Humnabad. P.W.6-Dr. [ENTITY] treated her and advised to shift her to major hospital. He sent M.L.C. report to the police. On receiving the M.L.C. report, P.W.7- [ENTITY], P.S.I., visited the hospital, recorded the statement of the victim as per Ex.P4 in the presence of the doctor, returned to the police station and registered a case in [CASE NUMBER] for the offence under [SECTION] and [SECTION] of [ACT] Later the victim was shifted to General Hospital, Solapur. It is further alleged that the statement of the victim was recorded by the Special Judicial Magistrate, Solapur, as per Ex.P6 on 14.03.1998 between 5.40 to 6.40 p.m. The victim-[ENTITY] breathed her last on 14.03.1988 at about 5.00 p.m. or so. P.W.9- Dr. [ENTITY] of Solapur General Hospital conducted autopsy on 15.03.1988 between 6.05 to 6.40 p.m. as per Ex.P8 and opined that the death was due to shock on account of 83% burns. P.W.7- [ENTITY], P.S.I. Humnabad, prepared mahazar as per Ex. P5, seized the material objects, recorded the statement of the witnesses and handed over the further investigation to C.O.D. Police Inspector i.e., P.W.8 [ENTITY]. On 11.08.1998, P.W.8-[ENTITY] took over further investigation, recorded the statement of the witnesses, collected the post-mortem report as per Ex.P8 and wound certificate of the deceased as per Ex.P2. After completion of the investigation, filed the charge sheet for the offence under [SECTION] and [SECTION] of [ACT]
The learned Addl. Sessions Judge, Bidar, secured the presence of the accused. Charges were framed for the offence under [SECTION] and [SECTION] of [ACT] The accused pleaded not guilty and claimed to be tried. The prosecution in all examined P.Ws.1 to 9 marked Exs.P1 to P8 and produced M.Os.1 to 4. The statement of the accused was recorded under [SECTION] of [ACT] The defence is one of total denial. The learned Addl. Sessions Judge, for the reasons recorded in its Judgment acquitted the accused for the offence under [SECTION] and [SECTION] of [ACT] It is this Judgment of acquittal, which is questioned by the State in the present appeal.
3. The learned High Court Government Pleader Sri. [ENTITY] contended that the reasoning of the learned Addl. Sessions Judge in not appreciating the testimony of P.Ws.1 to 3 is erroneous and the finding recorded is perverse. Secondly, contended that when the victim-[ENTITY] was taken to the hospital, P.W. 6- Dr.[ENTITY], medical Officer, General Hospital, Humnabad, treated her and sent M.L.C. report to the Humnabad Police. P.W.7 [ENTITY], P.S.I., came to the hospital, recorded the statement of the victim at the relevant point of time, which shows that as she was not able to bear the harassment and torture meted out by the accused, on account of it on her own poured kerosene and lit fire. When the injured herself stated about the harassment at the relevant point of time that no corroboration is required to prove the harassment and subjected her to cruelty. It is also clear that on account of 83% of burns, she died at Solapur Government Hospital while she was undergoing treatment.
Sri. [ENTITY], further submitted that the learned Addl. Sessions Judge disbelieved the evidence of the parents and sister only on the ground that there is no corroboration and that their evidence is inconsistent which is erroneous and not sustainable and that the Court has not appreciated the testimony of the prosecution witnesses properly. Therefore, prayed to set aside the Judgment of acquittal and to convict the accused for the offence charged.
4. On the other hand, Sri. [ENTITY], learned Counsel for the accused/respondent justified the judgment of acquittal and submitted that the evidence of P.Ws.1 to 3 has no assistance to the prosecution as none of them have seen the act of subjecting the deceased to cruelty or harassment. Further also submitted that the Special Judicial Magistrate recorded the statement of the deceased at Solapur shows that the accused is in no way responsible for the alleged act of deceased committing suicide which is on her own and that there is also no evidence to show that she was subjected to cruelty or harassment as such.
Learned Counsel for the accused/respondent in support of his contention relies on the Judgments [PRECEDENT], ; [PRECEDENT] and lastly and [PRECEDENT] Relying on the decisions cited supra, learned Counsel contended that the offence neither came under [SECTION] nor under [SECTION] of [ACT] Therefore, prayed to dismiss the appeal.
5. In the light of the submissions, the point for consideration that arises;
1. Whether the learned Addl. Sessions Judge, Bidar is justified in acquitting the accused for the offence under [SECTION] and [SECTION] of [ACT] with the reasoning that the evidence of P.Ws.1 to 3 are not acceptable?
2. What order?
6. Before re-appreciating the testimony of the prosecution witnesses, it is necessary to state certain admitted facts. It is not in dispute that the marriage of the deceased with the accused took place somewhere in the year 1978 and out of their wedlock the deceased gave birth to two daughters and a son. It is also not in dispute that the deceased was a B.A., B.Ed., graduate with typewriting qualification. She was also working as a high school teacher in Kalur Lingeshwar School. It is also an admitted fact that the deceased prosecuted her studies at Bidar as well, the B.A. degree at Gulbarga. During that time, the accused was running a cloth shop at Bidar and later on shifted his business of radio repair at Humnabad and at that relevant point of time, the accused and the deceased were residing at Humnabad, whereas P.Ws.l, 2 and 3 were also residing at Humnabad. It is in this back-ground, we have to examine the testimony of P.Ws.1 to 6 and also whether the complaint that was recorded by P W. 7 as per EX. P4 can be acted upon and thereby the Judgment of acquittal does call for interference.
7. In the case of [PRECEDENT] on facts it was found that;
"The deceased was undergoing mental suffering and unhappiness largely due to incompatibility of temperament and attitude"
Also found that:-
"There is no acceptable evidence subjecting the deceased with cruelty".
It is with the above reasoning, the Judgment of conviction for the offence under [SECTION] of [ACT] came to be set aside.
8. In the case of [PRECEDENT]; the accused persons were charged for the offence under [SECTION] of [ACT] on the ground that they were harassing the victim demanding cash or valuables. On appreciating the evidence, accepted the testimony of the prosecution witnesses and justified the Judgment of acquittal.
9. In the case of [PRECEDENT], it is held that;
"While recording the dying declaration of the deceased when it is not certified by the medical officer "not worthy of acceptance".
In the present case, it is in the evidence of P.W.7-[ENTITY], P.S.I., that on receiving the M.L.C. report he came to the hospital and recorded the statement of the injured. His evidence is corroborated by the testimony of P.W. 6-Dr. [ENTITY], Medical Officer of Humnabad General Hospital, who has stated that the police came and made an enquiry with [ENTITY] as to how she sustained burn injuries and recorded her statement. At that time [ENTITY] was in a position to give statement. If the Court were to come to the conclusion that the statement or complaint of the deceased were to come within the ingredients of [SECTION] of the [ACT], then no corroboration is required. This aspect of the matter will be considered while analyzing the testimony of the prosecution witnesses.
10. In the case of [PRECEDENT] [CASE NUMBER]; while considering the statement made by the deceased to a witness held "not admissible under [SECTION] of the [ACT]" i.e., in respect of husband and in-laws demanding balance dowry amount. In the present case, the deceased has not made statement with any of the witnesses. When she was brought to the hospital, the P.S.I. - P.W.7 came there and recorded the statement of the victim, which reveals that as she was not able to withstand the harassment and on her own she poured kerosene and lit fire.
11. It is well settled principle that each case has to be examined on its own facts and circumstances, that no case can be disposed of relying only on the judicial pronouncement without application of mind. It is with this background, the evidence of witnesses have to be appreciated to find out whether there is any truth in the case of the prosecution.
12. P.W.1 is the father of the deceased. His testimony shows that her daughter-[ENTITY] as well as the accused were residing at Humnabad and that after the birth of third child, the relationship was little bit strained between the accused and the deceased. His evidence shows that the accused used to come home fully drunk and was always under intoxication. The women folk who were living in the neighbourhood used to inform his family members about the quarrel between the accused and the deceased. On coming to know the fact of his daughter sustaining burn injuries, rushed to the General Hospital, Humnabad, the doctor told him to shift to some major hospital. Accordingly, he shifted her to Solapur Hospital for further treatment. It is pertinent to note that she died on 14.03.1988. It is also in his evidence that [ENTITY] was finding difficult to breathe. On seeing her condition, he was able to make out that she will not survive. When [ENTITY] was not in a position to breathe, it is not coming out as to how the Special Judicial Magistrate, Solapur, has recorded the alleged dying declaration as per Ex.P6, which is said to have been recorded on 14.03.1988 between 5.15 to 6.40 p.m.
13. It is in the evidence of P.Ws.1 and 2 that [ENTITY] died at about 5 p.m. on 14.03.1988. But it is not coming out as to how the dying declaration came to be recorded, which throws a serious doubt of such recording in the absence of examining the author of Ex.P6. Therefore, the contents of Ex.P6 cannot be acted upon and has to be rejected in toto.
14. The evidence of P.W.1 shows that the accused had illicit relationship with a lady by name [ENTITY] and the same is elicited in the cross- examination. That apart, P.W.1 in the cross-examination has clearly stated that the accused was doing cloth business at Bidar. Thereafter, started radio repair work at Humnabad. It is also in his evidence that it is he who sent the accused for radio repair training and that the accused opened a radio repair shop by the side of his house at Humnabad. It is also in his evidence that his wife P.W.2 [ENTITY] was informed by the neighbours about ill-treatment meted out by the accused on the deceased. In this regard, P.W.2 has also requested the accused to behave properly.
15. P.W.2-[ENTITY], mother of the deceased has clearly stated that while the accused and the deceased were residing in their house, the accused used to come home fully drunk and abusing P.W.1 creating a bad scene whenever the perspective bride-grooms used to come for the proposal of her other two daughters. It is also in her evidence that at the time of the incident, the accused and the deceased were living separately in Koliwada Galli, Humnabad. The relationship of [ENTITY] and the accused had worsened as the accused had illicit relationship with one lady viz., [ENTITY]. It is in her evidence that while the accused and the deceased were residing in a rented house, her daughter used to visit her house once in a week or so and was telling about the cruelty and ill-treatment meted out by the accused.
16. The evidence of P.W.3-[ENTITY], younger sister of the deceased shows that even after the accused and the deceased started living at Koliwad Galli, Humnabad, the accused was quarreling with his wife. It is in her evidence that almost every day [ENTITY] used to come to their house and informed her and others about the accused beating and ill-treating her. It is also in her evidence that [ENTITY] was working as a typist on daily wages and was contributing her income for the maintenance of the family.
17. The evidence of P.Ws.1 and 2 being the parents establishes the fact that the accused used to come home fully drunk and quarrelling with his wife [ENTITY]. It is no-doubt true that there is no direct evidence they witnessing the quarrel between the accused and the deceased. But the fact remains that the accused, deceased as well as P.Ws.1 to 3 were residing at Humnabad. Therefore, it is quite natural that the deceased being the daughter of P.Ws.1 and 2 visiting their house, informing about the ill- treatment and harassment by the accused cannot be ruled out. That apart, it is common knowledge that P.W.3 being the sister of the deceased disclosing her personal life regarding the harassment and cruelty meted out by the accused also cannot be ruled out.
18. In the present case, the victim was taken to the hospital and was treated at the General Hospital, Humnabad by P.W.6-Dr. [ENTITY] and sent the information and M.L.C. report to the Police. Thereafter, P.W.7-[ENTITY], P.S.I, goes to the hospital and recorded the statement of [ENTITY] as per Ex.P4, which is attested by a medical officer. On examining the said statement, it clearly reveals that on 13.03.1988 at 7 p.m. her husband came home fully drunk, started quarreling and assaulted her to demand her parents to provide a room for stay. It is on account of harassment and cruelty meted out to her, she committed suicide.
19. [SECTION] of the [ACT] thus reads;
"32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
(2) to (8) x x x x x x x x x x x x x "
20. When a statement is made regarding any of the circumstances, which resulted in the death, the same is admissible in evidence. Though Ex.P4 does not say anything about the accused abating the deceased to commit suicide, it makes out a case for harassment and cruelty punishable for the offence under [SECTION] of [ACT]
21. The learned Addl. Sessions Judge without considering Ex.P4-Statement of the deceased, recorded by P.W.7, by picking some paras in the chief examination and some paras in the cross-examination of P.Ws.1 to 3 recorded a finding that there is no corroboration in their evidence. With such a reasoning acquitted the accused. This itself shows that the learned Addl. Sessions Judge has not applied his mind properly in scrutinize the testimony of the prosecution witnesses. The learned Addl. Sessions Judge has also not considered Ex.P4-Statement made by the deceased, which directly points that it is the accused who subjected her to harassment and cruelty. To attract the provisions of [SECTION] of [ACT], there must be harassment and cruelty of a woman and it must be by the husband or by his relatives. Such cruelty with a view to drives her to commit suicide.
22. In the present case, there is sufficient evidence to show that there was harassment and cruelty by the accused to the deceased ([ENTITY]). Ex.P4 itself is sufficient to hold that the harassment and cruelty meted out by the accused without any corroboration of the evidence.
23. In the case of [PRECEDENT] it is held that;
"If a dying declaration is accepted as trustworthy piece of evidence, it can be acted upon".
It is also further held that;
"The acquittal of the accused for the offence under [SECTION] of [ACT] would not entail for an acquittal under [SECTION] of [ACT]"
Applying the same principles to the facts of this case, Ex.P4 the statement of the deceased recorded by P.W.7 in the presence of the Medical Officer, General Hospital, Humnabad, is trustworthy piece of evidence and can be acted upon even without any corroboration as to the fact of subjecting her to harassment and cruelty. For which, the accused is liable to be convicted for the offence under [SECTION] of [ACT] Whereas the acquittal of the accused for the offence under [SECTION] of [ACT] does not call for interference.
For the foregoing reasons, the Judgment of acquittal insofar as [SECTION] of [ACT] is set aside, convicting the accused for the offence under [SECTION] of [ACT] and confirming the Judgment of acquittal of the accused for the offence under [SECTION] of [ACT]
Heard the learned Counsel Sri [ENTITY] for the accused/ respondent regarding sentence.
Learned Counsel for the accused/respondent submits that the incident has taken place about 15 years back. Now the accused is aged more than 55 years having 3 children staying with him. Therefore, prayed to take a lenient view.
Learned High Court Government Pleader Sri [ENTITY] prays to impose the maximum punishment.
Considering the facts of this case and also the age of the accused and the children are residing with him, the accused is sentenced to undergo R.I. for a period of 3 months and to pay a fine of Rs. 2,000-00, in default of payment of fine to under go R.I. for a period of one month. The bail bond stands cancelled. The accused shall under go sentence as stated above.
Accordingly, the appeal is allowed in part.