1 cri.apeal 14-93 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 14 OF 1993 Maruti Haribhau Zagade ) Age-Adult, Occupation- ) Agriculturist, ) R/at Jejuri, Tal.Purandhar, ) Dist.Pune ) ...Appellant (Original Accused) vs. The State of Maharashtra ) ...Respondent Mr. Sachin Thombre and Mr.Pralhad Paranjape i/b. Mr.S.V. Kadam holding for Mr.V.B. Kakade for the Appellant. Mrs.P.P. Bhosale, APP for the Respondent-State. CORAM : J.H. BHATIA, J. DATED : DECEMBER 14, 2010 ORAL JUDGMENT :- 1 The original accused has preferred this appeal whereby he has challenged the judgment and order dated 23rd December, 1992 passed by the learned Additional Sessions Judge, Pune, in Sessions Case No.225 of 1991 whereby the accused was convicted for 2 cri.apeal 14-93 the offence punishable under Section 306 IPC and was sentenced to undergo RI for 5 years and to pay fine of Rs.500/- and also for the offence punishable under Section 498A IPC and sentenced to undergo RI for one year and to pay fine of Rs.100/-. 2 To state in brief, prosecution case is that accused-appellant Maruti and deceased Suman were married in the year 1971 and were residing at Jejuri. They had two sons, aged 19 and 15 years. For about six years prior to the incident of this case, the accused got addicted to drinking. He also used to abuse and assault his wife under the influence of liquor and used to drive her out from the house. In the evening of 29th September, 1990 also, the accused under the influence of liquor abused his wife. Being frustrated and fed up with the drinking habits and ill-treatment by husband, on 30th September, 1990 at about 8 or 8.30 a.m., Suman poured kerosene on her person and immolated herself. At that time, her husband had gone to toilet. Meanwhile, the people of 3 cri.apeal 14-93 the locality rushed there and tried to extinguish fire. He along with others took her to Sasoon Hospital where she was admitted. She was immediately examined. Intimation was given to police. ASI Bhosale attached to Sasoon Police Chowky gave a requisition to the Special Executive Magistrate, who rushed to the hospital and recorded dying declaration of Suman. Same day in the evening, her statement (Exhibit-12) was also recorded by PW 5 PSI Yashwant Ombase. That statement was treated as FIR and on that basis, Crime No.61/1990 was registered under Sections 498A IPC. On 3rd October, 1990, Suman died because of burn injuries. Post Mortem examination revealed that she had died due to shock and toxaemia due to burn injuries. After death, Section 306 IPC was added. During the investigation, spot panchnama was prepared. Articles found in the room, where the incident had occurred, were seized. After investigation, charge sheet was filed against the accused. In due course of time, the case was committed to the Court of Sessions. 4 cri.apeal 14-93 3 The charges were framed against the accused for the offence punishable under Sections 306 and 498A IPC. The accused pleaded not guilty. On behalf of the prosecution, 5 witnesses were examined. Certain documents were placed on record. After hearing, the trial court convicted the accused for both the charges and sentenced him as stated above. 4 Heard the learned Counsel for the accused- appellant and the learned APP for the State. Perused the record and proceedings of the Court. 5 The learned Counsel for the appellant contended that neither the statement (Exhibit-12) recorded by the police officer nor the dying declaration (Exhibit-15) recorded by the Special Judicial Magistrate is reliable, particularly, because there was opportunity to her relatives to instigate her to falsely implicate the husband and the relatives were also present at the time of 5 cri.apeal 14-93 recording the statement and dying declaration. The learned Counsel contended that the Medical Officer had not examined Suman nor he had certified that she was fit to make statement at the time of recording the dying declaration and the Statement (Exhibit-12). According to him, there is no evidence to show that the accused used to treat his wife with cruelty. According to him, in any case, there is no evidence to show that the accused had abetted his wife to commit suicide. According to him, the trial court committed error in convicting the accused. 6 On the other hand, the learned APP supported the conviction of the accused on both the counts. 7 At the outset, it will be useful to refer to certain admitted facts and documents. The accused and Suman were married about 19 years before the incident of this case and had two sons, viz. Parag and Rahul, who were aged about 19 and 15 years, 6 cri.apeal 14-93 respectively. All these family members were living together at village Jejuri. On 30th September, 1990 at about 8 or 8.30 a.m., Suman suffered burn injuries at her house. People from the locality extinguished the fire and immediately, she was taken to hospital. The accused himself got her admitted in Sasoon Hospital. As per the Medical report, on 3rd October, 1990, she died as Indoor Patient in the hospital and on the same day, Post Mortem on her body was conducted. As per the Post Mortem Report (Exhibit-10), she had suffered 80% second and third degree burns on face, chest, abdomen, both the upper and lower extremities. The Post Mortem report shows that she had died due to shock and toxaemia due to burns. The Post Mortem report was admitted on behalf of the accused in response to notice under Section 294 Cr.P.C. 8 The question is whether she had committed suicide or it was accidental fire. Evidence of PW 2 Rajaram Shankar Retawade, who was Special Judicial 7 cri.apeal 14-93 Magistrate, reveals that on 30th September, 1990, ASI Bhosale of Sasoon Police Chowky gave a requisition (Exhibit-14) to him to record dying declaration of Suman Maruti Zagade, who was admitted in the hospital for burn injuries. The requisition was received by him at 11.30 a.m. and it was endorsed by him below Exhibit-14. According to him, he immediately went to Ward No.27 of the Sasoon Hospital where the burnt patients were admitted. PW 2 Rajaram deposed that the Medical Officer, Dr.Nagpure, informed him that the patient was in fit condition to give a statement and also that her relatives were not present by her side. Dr.Nagpure showed the patient to PW 2 Rajaram. PW 2 Rajaram deposed that at the time of recording the dying declaration, doctor was present by himself. He recorded her dying declaration as per her version, which was read over to her. she admitted the correctness of the same and then, he obtained her left hand thump impression below the said dying declaration. He also obtained endorsement of 8 cri.apeal 14-93 Dr.Nagpure. He himself put the signature on it. Exhibit-15 is that dying declaration. It shows that this dying declaration was recorded on 30th September, 1990 at 12 noon. It also shows that Suman stated thus :- Since last 6 years daily in the evening time my husband used to drink liquor and used to pick up quarrels with me. I became tired to such illtreatment and today in the morning at about 6-30 a.m. I poured kerosene on my person and with the help of burning match stick I myself set me on fire and therefore I sustained burns. This shows that she had poured kerosene on her person and had immolated herself with the burning match stick. 9 Coming back to the dying declaration, PW 2 Rajaram, Special Executive Magistrate, has clearly deposed that the patient was shown to him by the Medical Officer, Dr.Nagpure, no other relatives were present at that time. Dr.Nagpure was present at the 9 cri.apeal 14-93 time of recording the statement and the doctor had also endorsed on Exhibit-15 of recording dying declaration. The contents of Exhibit-15 fully support the evidence of PW 2 Rajaram. On this, there is clear endorsement under the handwriting and signature of Dr.A.P. Nagpure, which reads thus :- Patient was fully conscious and well oriented before, during and after recording of this statement which was recorded in my presence. 10 Not only this, perusal of Exhibit-19, the bunch of Indoor case papers of Suman, also shows that the Doctor had recorded on the case papers on 30th September, 1990 at 12 hours about recording of dying declaration. In fact, he has noted down the complete dying declaration of Suman in the case papers. In view of this, I have no doubt that the dying declaration was correctly recorded by the Special Executive Magistrate. It was recorded almost immediately after she was admitted to the hospital at about 10 a.m. Dr.Nagpure has also deposed on oath 10 cri.apeal 14-93 that, at the time of recording the statement, she was fully conscious and well oriented before, during and after recording of this statement. 11 PW 1 Arun is brother of deceased Suman. He deposed that he had gone to the hospital on getting information about the incident. He deposed that she had suffered burn injuries and in the hospital, she had stated that due to mental tension, she had poured kerosene on her person and lit the fire to herself. According to him, he himself heard her saying so in the hospital. He also deposed that her statement (Exhibit-12) was recorded by the police on which he himself counter singed. According to him, she had stated that there was trouble to her by her husband and she was under mental tension and therefore, she had poured kerosene on herself and lit the fire. In the cross-examination, he also deposed that due to addiction of accused to liquor, his sister Suman was worried about the future of her sons and she was under constant mental tension. PW 1 11 cri.apeal 14-93 Arun and Suman, both had tried to dissuade the accused from the habit of drinking but in vain. PW 3 Sadanand is neighbour of the accused and according to him, for last 8 years, he was on visiting terms with accused and his family. He deposed that the accused was in the habit of drinking liquor and there used to be quarrel between the husband and wife. On 30th September, 1990, incident occurred at about 6.30 a.m. He saw Suman coming out from her house. At that time, she was burning. PW 3 Sadanand poured water and extinguished fire. He did not say anything as to how she had caught fire. 12 Evidence of PW 5 PSI Yashwant Ombase reveals that he went to spot of incident on 30th September, 1990 itself and prepared the spot panchnama and seized a plastic can, partly burnt clothes, match box, etc. Spot panchnama (Exhibit-9) was admitted on behalf of the accused in respect of notice issued under Section 294 Cr.P.C. It is an important document. It shows that the spot of 12 cri.apeal 14-93 incident was in a room admeasuring 10 x 15 ft. Near the eastern wall in the north corner, there was gas cylinder and near it, there was small tin cupboard. At the distance of 3 ft. from the gas cylinder, there was one 5 litre plastic can and its lid (cork) was found kept on a chair. Near that, there was a match box. The plastic can contained some quantity of kerosene. Burnt pieces of saree, petticoat and blouse were seen lying and they were smelling of kerosene. On floor (pharashi), some kerosene was found spread and the complete room was smelling of kerosene. The articles found there were seized. In view of the scene of offence noted above, it is clear that there was kerosene in the plastic can, that kerosene was poured and therefore, some kerosene was lying spread in the room. The burnt pieces of the clothes of the deceased were also smelling of kerosene. This evidence corroborates the dying declaration of Suman before the Special Judicial Magistrate as well as the statement of her brother that she had immolated herself. This goes to 13 cri.apeal 14-93 show that she committed suicide and it was not an accidental fire. 13 The learned Counsel for the accused contended that when Suman was admitted in the hospital, history of accidental burns was given, as noted down and as deposed by PW 4 Dr.Nagpure. It may be noted that she was admitted in the hospital by her husband Maruti i.e. the accused himself. The case papers nowhere show that the history of accidental burns was given by Suman herself. Therefore, there is every possibility that the accused might have given that history and it was accordingly recorded by the doctor but the facts and circumstances coming from the dying declaration of the deceased, her statement before brother and the spot panchnama go to positively prove that she had immolated herself and it was not accidental fire. Therefore, no importance can be given to the history of accidental fire given in the medical papers. 14 cri.apeal 14-93 14 Evidence of PW 1 Arun, as well as her dying declaration (Exhibit-15), go to show that for about 6 years prior to the incident, the accused was addicted to drinking liquor and he used to pick up quarrel with his wife. She and her brother PW 1 Arun tried to dissuade the accused from drinking habit but in vain and finally, she, being tired of this problem, immolated herself and committed suicide. It may be noted here that according to PW 5 PSI Yashwant, on the same day, he had also recorded statement of Suman in the hospital. That statement was signed by the PSI as well as PW 1 Arun in whose presence statement was recorded. However, signature or thumb impression of Suman was not taken on that statement. In the said statement (Exhibit-12), it is recorded that under the influence of liquor, the accused used to abuse and beat her and also used to drive her out from the house. It is material to note that in the dying declaration recorded by the Magistrate, there is no mention that the accused used to abuse and beat her and drive her out of the 15 cri.apeal 14-93 house. Such statement is also not found in the evidence of PW 1 Arun. It is also material to note that PW 5 PSI Yashwant Umbase had not secured the certificate from the Medical Officer that Suman was fit to make a statement when her statement (Exhibit-12) was recorded. It is material to note that the statement (Exhibit-12) appears to have been recorded at about 6 or 6.30 p.m. as per admission of PW 1 Arun. The dying declaration (Exhibit-15) was already recorded by the Special Judicial Magistrate at about 12 noon. In view of the said position, there were no need for further recording of dying declaration by the police. In view of these circumstances, it is difficult to place reliance on the contents of the statement (Exhibit-12), particularly, to the effect that the accused used to abuse, beat and drive her out from the house. This part of the statement does not find any corroboration from the dying declaration or evidence PW 1 Arun or PW 3 Sadanand who was the neighbour. Therefore,, it is difficult to place any reliance on 16 cri.apeal 14-93 that part of the statement. 15 Evidence of PW 1 Arun and that of PW 3 Sadanand go to show that the accused was addicted to drinking liquor for about 6 years prior to the incident. Because of that, quarrel used to take place between husband and wife. Her attempts to dissuade him from drinking his habit had failed. Evidence of PW 1 Arun shows that because of drinking habit, she was under metal tension. The dying declaration shows that for six years, daily in the evening, accused used to drink liquor and pick up quarrel with her. She was tired of such ill- treatment and due to that, she immolated herself. If her statement (Exhibit-12) recorded by PSI is not taken into consideration, particularly, in respect of beating, etc., there is no evidence of physical cruelty. However, cruelty as defined in the explanation under Section 498A means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave 17 cri.apeal 14-93 injury or danger to life, limb or health, whether mental or physical, of the woman. Therefore, it is not necessary that the cruelty should be physical. Even Suman did not state in the dying declaration nor has deposed by her brother Arun and PW 3 Sadanand deposed about beating by the accused under the influence of liquor. His everyday habit of drinking and quarrel with the wife after drinking amounted to mental cruelty and it was likely to drive her to commit suicide or to cause grave injury or danger to her life. The drinking liquor and then quarreling with the wife everyday was a wilful conduct of the accused. He was not forced by somebody to drink and pick up the quarrel. Therefore, it must be held that the accused had treated his wife with cruelty as defined under Section 498A IPC and therefore, he is liable to be convicted for the offence punishable under Section 498A IPC. 16 Now the question is whether accused can be 18 cri.apeal 14-93 held guilty for the offence of abetment to commit suicide punishable under Section 306 IPC. From the evidence on record and the dying declaration of the deceased, it is clear that they were married for about 19 years and had two sons aged about 19 and 15 years. It appears that for about 12 to 13 years after the marriage, their relations were cordial. The accused got addicted to drinking about 6 years prior to this incident. From the admission of PW 1 Arun and PW 3 Sadanand, it is clear that except his drinking habits and quarrel, there were no other disputes between them. In such circumstances, though the act of accused amounted to causing mental cruelty to the wife, it is difficult to come to the conclusion that the accused had intention that his wife should commit suicide. Under Section 107, abetment is defined. It reads thus :- 107. Abetment of a thing.-A person abets the doing of a thing, who- First.- Instigates any person to do 19 cri.apeal 14-93 that thing; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing. 17 In view of this language, it is clear that a person who instigates any person to do a thing or engages one or more other person or persons in any conspiracy for doing that thing, or intentionally aids, by any act or illegal omission, for doing that thing, is said to have abetted the crime. To prove the charge of abetment, the prosecution is required to prove that the abettor had instigated the doing of a particular thing or engaged with any one or more other person or persons in any conspiracy for doing that thing or intentionally aided, by any act or illegal omission, for doing of that thing. The word instigate means to goad or urge forward or to 20 cri.apeal 14-93 provoke, incite or engage to do an act. 18 In view of the facts of the case, it is difficult to believe that the accused wanted that his wife Suman should commit suicide and for that purpose, he had instigated her or aided her, in any manner. Under Section 113A of the Indian Evidence Act, if a married woman commits suicide within seven years after the marriage and it is proved that she was treated with cruelty by her husband or any relative of the husband, taking into consideration all other circumstances, it may be presumed that the husband or such relative had abetted her to commit suicide. However, that presumption is not available in the present case because the accused and Suman were married about 19 years before she committed suicide. In absence of such presumption, the prosecution has to positively prove that the accused had abetted his wife to commit suicide. In view of the evidence on record, including the dying declaration of the deceased, I do not find any such 21 cri.apeal 14-93 evidence to prove the abetment. Therefore, the accused could not be convicted for the offence punishable under Section 306 IPC. The learned Additional Sessions Judge committed error in convicting the accused for that offence. To that extent, the appeal deserves to be allowed. 19 For the aforesaid reasons, the appeal is partly allowed. The order of conviction and sentence for the offence punishable under Section 306 IPC is hereby set aside. The accused-appellant is acquitted of the charge under Section 306. However, the conviction and sentence for the offence punishable under Section 498A is maintained. The accused- appellant shall surrender before the trial court on or before 10th January, 2011 to undergo sentence for the said offence. (J.H. BHATIA, J.)