1 Cr. Appeal 138.98 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 138 OF 1998 1. Kakasaheb S/o Mahadeo Shinde Age : 25 years, Occ : Agriculture, R/o Village Dhoki, Tq. & Dist. Osmanabad (Now in Jail). 2. Mahadeo S/o Anna Shinde Age : 55 years, Occ : R/o Village Dhoki, Tq. & Dist. Osmanabad. 3. Kasturbai W/o Mahadeo Shinde Age : 45 years, Occ : Household, R/o Village Dhoki, Tq. and District Osmanabad. ..APPELLANTS -VERSUS- The State of Maharashtra (Through the Government Pleader, High Court, Aurangabad) ..RESPONDENT ......... Mr. B.A. Dhengle holding for Mr. S.A. Dhengle, advocate for appellants Mr. B.J. Sonawane, A.P.P. for respondent ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 29 th November, 2010. ORAL JUDGMENT : 1. Challenge in this appeal is to the judgment rendered by the learned Additional Additional Sessions Judge, Osmanabad, in Sessions Case No. 179 of 1994. The appellants are convicted for the offence punishable under Section 498A r/w 34 of the Indian 2 Cr. Appeal 138.98 Penal Code and have been sentenced to suffer simple imprisonment for six months, each and to pay fine of Rs. 1000/- each, in default, to suffer simple imprisonment for a period of one month. In addition, the appellant no.1 i.e. husband of the deceased woman is further convicted for the offence punishable under Section 306 of the Indian Penal Code and has been sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for three months. 2. Briefly stated, the prosecution case is that deceased Sangita and the appellant no.1 were married on 21st April, 1992. She was the eldest daughter of P.W.2-Raghunath Lomte. After the marriage, she resided with the appellant in the common house. She was subjected to matrimonial cruelty by the appellants during the short span of matrimonial life. When she was first brought to the parents house on occasion of Nagpanchami festival, she narrated to the parents that she was being subjected to cruelty by the appellants due to non-fulfillment of demand to provide cupboard. She resided in the parents house for about a period of one month. She was reached back to the house of the appellants with the intervention of some respectable persons. She was pregnant at the relevant time. The ill-treatment, however, continued 3 Cr. Appeal 138.98 and ultimately pregnancy stood terminated. She became pregnant for second time and a programme of `Dohalejevan' (launch/dinner) was arranged at the house of the appellants. The prosecution alleges that demand of gold ring of one tola (10 grams) was put forth on that occasion. 3. The prosecution further alleges that on 2nd June, 1994, Sangita immolated herself in the matrimonial home due to unbearable harassment, trouble and cruelty meted out to her by the appellants. The matrimonial cruelty was on account of non- fulfillment of demand for presentation of gold ring of 10 grams. The father lodged F.I.R. (Exhibit 46). While injured Sangita was under medical treatment, her condition deteriorated on 3rd July, 1994. She was medically treated for burn injuries received by her to the extent of 43%. On 5th July, 1994, she died in the medical hospital. The postmortem examination revealed that she died due to septicemic shock which had developed on account of the burn injuries sustained by her. 4. The appellants denied the truth in to the charges levelled against them vide Exhibit-33. Their defence was of total denial. The prosecution examined in all six witnesses in support of its case. The learned Sessions Judge held that the appellant no.1 4 Cr. Appeal 138.98 instigated the suicide of deceased Sangita i.e. his wife and thereby abeted the commission of suicide. The learned Sessions Judge further held that all the three appellants subjected deceased Sangita to matrimonial cruelty, in furtherance of their common intention, and as such, have committed offence punishable under Section 498A r/w 34 of the Indian Penal Code. In keeping with such findings, the appellants are convicted and sentenced as indicated at the outset. 5. Mr. Dhengle, would submit that the learned Sessions Judge committed patent error while holding the appellant no.1 guilty as abettor of the alleged suicide. He would submit that the interested and solitary version of P.W. 2-Raghunath is insufficient to convict the appellants for the offence punishable under Section 498A r/w 34 of the Indian Penal Code. He contended that the learned Sessions Judge erroneously evaluated the evidence of the prosecution witnesses and rendered incorrect findings. The learned A.P.P., however, supports the impugned judgment. The learned A.P.P. invited my attention to the observations made in "Sahebrao and anr V/s State of Maharashtra" {2006 All M.R. (Cri) 1842 (S.C.)}. 6. The questions to be determined in this appeal are : 5 Cr. Appeal 138.98 (i) Whether it is proved that the appellant no.1 intentionally aided, assisted or goaded commission of the suicide by deceased Sangita and, in fact, she committed suicide in matrimonial home on 2nd June, 1994 ? (ii) Whether it is proved that deceased Sangita was being harassed, ill-treated and subjected to the matrimonial cruelty on account of her failure to meet unlawful demand for gold ring of 10 grams and other presents, which was to be presented on the occasion of dinner party (Dohalejevan) ? 7. Before I proceed to scrutinize the evidence of the prosecution, let it be noted that the F.I.R. was lodged by P.W.- Raghunath after 12 days of the alleged incident, wherein Sangita suffered the burn injuries. It is an admitted fact that in the same morning she was taken to house of P.W.-Raghunath and he had been fully informed by the appellants that they were taking her to the hospital due to burn injuries. 8. So far as the charge of matrimonial cruelty is concerned, there is no evidence except solitary version of PW- Raghunath. He is the father of deceased Sangita. His version purports to show that the marriage between deceased Sangita and appellant no.1-Kakasaheb was performed on 21st April, 1992. His 6 Cr. Appeal 138.98 version further purports to show that he had agreed to give a cupboard by way of gift to the appellants but it was not given to them, and therefore, deceased Sangita was subjected to cruelty. He submits that Sangita resided with him for a period of about one month when she had come to his house on the occasion of Nagpanchami festival. He sent her back to the house of the appellants after about one month. His version purports to show that deceased Sangita was pregnant when she was sent back to the house of the appellants. He narrated that since she was beaten up, there was abortion of deceased Sangita. There is absolutely no evidence to corroborate the allegations that deceased Sangita was beaten up by the appellants during her pregnancy and as such there was abortion of child in womb. The probability that she was depressed and frustrated due to the termination of her pregnancy can not be ruled out. It is version of PW-Raghunath that on second occasion of pregnancy of deceased Sangita, the appellant nos.2 and 3 asked him to give gold ring of 10 grams for the purpose of attending dinner ceremony (Dohalejevan). His version does not show as to whether the ceremony was performed later on or it was deferred. His version purports to show that on 02.06.1994 Sangita was brought to his house at about 10 p.m. and he was informed by the appellants that she had suffered burn injuries. They had taken her to the hospital together in a vehicle which was brought by the 7 Cr. Appeal 138.98 appellants. Thus, it is amply clear that he was immediately informed about burn injuries suffered by Sangita. Not only that but he accompanied deceased Sangita and the appellants in the same vehicle at the relevant evening. 9. The version of PW-Raghunath further purports to show that for about couple of days, Sangita did not narrate anything to him while in the hospital. He states that in absence of the appellants, on one day after couple of days, she narrated him that she was subjected to cruelty by the appellants. She narrated to him that on 02.06.1994 that the appellant no.1 gave her fist blows and asked her why her father has not given cupboard and gold ring of 10 grams. She further told him that the appellant no.3 used to insist for such gold ring and the cupboard and used to tell her that either Sangita shall die or he would die. Then Sangita narrated to him that she had poured kerosene on herself and set fire to her person. He then lodged the F.I.R. (Exhibit-46). It is important to notice that if this was the fact situation then the F.I.R. should have been lodged on 4th or 5th June, 1994. However, the F.I.R. (Exhibit-46) is lodged after considerable period of about 12 days after the incident, precisely on 14th June, 1994. It has come on record that Sangita succumbed to the burn injuries on 3rd July, 1994. Her Dying Declaration was recorded by the Special Judicial 8 Cr. Appeal 138.98 Magistrate, namely, P.W.1-Vithal on 20th June, 1994. 10. Coming to the testimony of PW1 Vithal Tidke, who recorded the dying declaration of deceased Sangita, it may be gathered that he was working as Naib-Tahsildar-cum-Executive Magistrate at Osmanabad on 20th June, 1994 when he received requisition letter from the Police Station to record the dying declaration of injured Sagita. He stated that he obtained medical opinion from the attending Medical Officer about the fitness of Sangita to give her statement. He noticed that she was conscious and appropriately oriented to give her statement. He then inquired with Sangita as to how the incident of burning did occur. She then narrated to him that at about 9 p.m., she was in the shop alongwith her husband. She further narrated to him that her husband Shriram told her that he will ablaze himself or she should set on fire to her person. She further told him that she informed the husband that he should not set on fire to himself, but she will set fire to her person. She immediately poured kerosene on her person from a nearby stove and set on fire to her person. Thus, the purport of the dying declaration reveals that there was some fracas between the spouses in the premises of the shop in the relevant night around 9 p.m. The recitals of the dying declaration (Exh-43) would show that the appellant No. 1 Kakasaheb attempted to extinguish the fire. It 9 Cr. Appeal 138.98 is the sweeping statement of deceased Sangita that there was consistent trouble caused by her mother-in-law and on two (2) occasions, she was beaten up, yet, her husband i.e. appellant No. 1 did not say anything to the mother-in-law and continued to listen to her. She vaguely stated that in the fit of anger, due to the harassment of the husband and the mother-in-law, she immolated herself. 11. It is important to note that the recorded dying declaration (Exh-43) makes no reference, whatsoever, to the termination of first pregnancy of Sangita due to the alleged beating mounted by the appellants or either of them. The recorded dying declaration of Sangita (Exh-43) does not refer to any demand for a gold-ring of 10 grams on account of the dinner party arranged to celebrate the second occasion of pregnancy i.e. "Dohale-Jevan". The recorded dying declaration also does not refer to any unlawful demand regarding the cupboard and cruelty caused to her due to non-involvement of the said demand. Thus, the recorded dying declaration of Sangita is discrepant with that of the oral testimony of her father i.e. PW Raghunath. In other words, the cause of harassment or trouble to Sangita is rather rendered in obscurity if her written dying declaration is to be considered. The so called unlawful demand regarding a cupboard or a gold-ring of 10 grams 10 Cr. Appeal 138.98 is not stated by anyone else including deceased Sangita, other than her father. Needless to say, the genesis of harassment and matrimonial cruelty is not clear and the interested version of PW Raghunath cannot be implicitly trusted in this behalf. 12. It is pertinent to note that the incident occurred in the shop premises where the spouses were the only two (2) persons present. The appellants No. 2 and 3 were not present in the shop at the relevant time. The allegations of matrimonial cruelty against them are based upon vague and uncorroborated version of PW Raghunath. He referred to oral dying declaration of Sangita in the context of the alleged matrimonial cruelty. But such oral dying declaration is inconsistent with the written dying declaration (Exh-43). What transpires from the record is that there was some minor incident of fracas between the spouses in the relevant evening at about 9 p.m. The appellant No. 1 then told the wife that he would immolate himself and threat was taken in some different manner by her. She thereafter committed suicide by self- immolation in fit of anger. The recitals of the recorded dying declaration (Exh-43) purport to show that deceased Sangita was annoyed as a result of the fracas between the spouses. Thus, it is more probable that she lost temper and control and as such, immolated herself. 11 Cr. Appeal 138.98 13. The cross-examination of PW Raghunath reveals that the appellant No. 1 - Kakasaheb also was found to have sustained some burn injuries caused to him while extinguishing the fire from person of Sangita. He admits that the appellant No. 1 was hospitalized on account of the burn injuries for period of nine (9) days. It is thus amply clear that the appellant No. 1 Kakasaheb also received severe burn injuries and was required to obtain medical treatment for nine (9) days as indoor patient. It has come on record that the appellant No. 1 had taken injured Sangita to house of her father i.e. PW Raghunath in the same night before taking her to the hospital and that PW Raghunath had joined them while admitting her in the hospital. The conduct of PW Raghunath is not free from doubt. He did not file immediate FIR. The delay caused in filing of the FIR is rather inexplicable. On the other hand, the appellant no.1 immediately took steps to save her life. His conduct reflects his innocence. 14. The remaining evidence of the prosecution comprises of the statements of PW Kashinath, PW4 Dr. Ashok Jalnapurkar, PW5 Narayan and PW6 PSI Kisan Sable. The statement of PW Kashinath is of formal character. He recorded FIR as per version of PW Raghunath, while working as PSO at Dhoki Police Station 12 Cr. Appeal 138.98 on 14th June, 1994. So also, statement of PW Narayan is of formal character. He is a witness to the spot panchanama (Exh-55). He corroborated the spot panchanama drawn on 14th June, 1994. There is no dispute about the fact that Sangita immolated herself at the place inside the shop in the relevant evening. 15. The testimony of PW4 Dr. Ashok Jalnapurkar reveals that Sangita was fit to give her statement, when the Executive Magistrate visited the Civil Hospital on 20th June, 1994. He corroborated the medical opinion appended to the dying declaration (Exh-43). The statement of PW6 PSI Kisan Sable gives the account regarding steps taken during course of investigation. The versions of PW3 to PW6 have no direct bearing on the question of the alleged matrimonial cruelty and the manner under which Sangita committed the suicide in the relevant evening. 16. It appears from version of DW1 H.C. B. No. 696 - Mesaji that he immediately recorded statement of injured Sangita soon after her admission in the hospital. At the relevant time, DW1 Mesaji was attached to the outpost within the campus of Civil Hospital, Osmanabad and recorded her statement in pursuance to information given by the Medical Officer. He corroborated the 13 Cr. Appeal 138.98 statement of Sangita which was as per her narration and came to be reduced into writing vide Exh-62. It is important to note that the story narrated by Sangita at the first available opportunity was that she was engaged in cooking at the relevant time and accidentally, received the burn injuries due to sudden bursting of the stove. She narrated to DW Mesaji (H.C. B. NO. 696) that her husband attempted to extinguish the fire and, therefore, was injured. At that time, she had no grouse against any of the appellants. The contents of the said police statement are not, however, reproduced during the testimony of DW Mesaji, yet, the facts remain that she did not implicate either of the appellants as the author of the burn injuries or that of the matrimonial cruelty. 17. Taking overall view of the matter, it is explicit that there is no reliable and sufficient evidence to establish the charge of matrimonial cruelty and abetment of the suicide committed by deceased Sangita. It may be mentioned that the learned A.P.P. invited my attention to certain observations in "Sahebrao & another vs. State of Maharashtra" 2006 ALL MR (Cri) 1842 (S.C.). The fact situation in the given case indicates that the suicide was committed within four (4) months of the marriage and there was unlawful demand of Rs. 10,000/- alongwith tape- recorder since day one of the marriage. The deceased, in the given 14 Cr. Appeal 138.98 case, had visited house of her parents prior to about 8 days of the incident and had showed marks of beating on her body to the parents and others. The fact situation in the present case is on different footings and, therefore, the case-law, with due respect, is inapplicable. 18. Having regard to the totality of the circumstances and the relevant evidence, the only deducible inference is that the charge of matrimonial cruelty is not proved beyond reasonable realm of doubt, nor it can be said that the appellants or any one of them assisted, instigated or goaded deceased Sangita to commit the suicide. Under these circumstances, the impugned judgement is unsustainable. 19. In the result, the appeal is allowed. The impugned judgement and order of conviction and sentence is set aside. The appellants are acquitted of the charges levelled against them. The fine amount paid, if any, be refunded to the appellants as per the payments made by them. The appellant No. 2 Mahadeo Shinde is said to have died and, therefore, the fine amount deposited by him, be refunded to his legal representatives. The bail bonds of the appellants stand cancelled. [ V.R. KINGAONKAR ] JUDGE gas/cria138.98