1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 455 OF 1999 The State of Maharashtra, through Police Station, Shivajinagar, Nanded, Appellant/ori. Taluka & District Nanded. complainant versus Ramesh s/o Ganpat Kale Age 26 years, occupation Labour, r/o Dattanagar, Respondent/ori. Nanded. accused. ---------- Shri B.V.Wagh, A.P.P. for the appellant-State. Shri R.D.Mane,Advocate,for the respondent-accused. Coram : P.R. Borkar, J. Date : December 5, 2009. ORAL JUDGMENT. 01. This is an appeal preferred by the State being aggrieved by the order of acquittal passed by the II Additional Sessions Judge, Nanded, in Sessions Case No.79 of 1997 decided on 9.8.1999, whereby the Respondent-accused is acquitted of the offences punishable under Sections 498-A and 306 of the Indian Penal Code. 2 02. It is the prosecution case that the deceased Meena had married Respondent on 30.5.1996. After the marriage, she came back to her mother's house at the time of Adhik Maas. At that time, she told her mother Ratnamala (PW-1) that her husband was suspecting her character and on that count she was subjected to mental and physical cruelty and he also asked her to bring Rs.10,000/= from her parents for starting business. At that time, Ratnamala (PW-1) persuaded Meena and her husband, by saying that she had no money and after the children were begotten and if they live happily, she would sell one acre of land and would give money to Meena for her husband's business. 03. Thereafter on 22.9.1996, PW-1 Ratnamala was informed by police that Meena was admitted in the Civil Hospital, Nanded and so Ratnamalabai went to see Meena. At that time, Meena told her mother that since 3-4 days previous to the incident, her husband was suspecting that she had illicit relations with some boy who had twinkled 3 eye on seeing Meena and,therefore, Respondent beat her with fist and kick blows. Meena further told her mother that being tired of the ill-treatment she had put herself on fire. Meena expired on 29.9.1996 and on that day itself, PW-1 Ratnamalabai lodged complaint with police. Accordingly, police registered the crime, performed inquest, sent dead body for post mortem, drew spot panchanama, recorded statements of various witnesses and finally sent charge-sheet to court. 04. It is also the prosecution case that when Meena was admitted in the hospital on 22.9.1996, on that day her statements were recorded by Head Constable Prabhakar Kulkarni (PW-3 who is examined at Exhibit 18) and thereafter by Special Judicial Magistrate Nivrutti Sahadeo (PW-4 examined at Exhibit 21.) In those statements also, she spoke about allegation by her husband on account of her alleged illicit relations and consequential ill- treatment by husband. 4 05. The prosecution in all examined six witnesses. Spot panchanama, inquest panchanama and post mortem report were admitted under Section 294 of the Code of Criminal Procedure, 1973. The learned Judge recorded the finding of acquittal and as against the same, present appeal has been filed by the State. 06. PW-5 Balaprasad Ankamwar examined at Exh. 24 is the brother of landlady in whose house the Respondent along with Meena was residing. He stated that on 22.9.1996, he was in the house and heard commotion and also saw fire coming out of the house of Respondent. He removed inner latch of the house and saw that Meena was burning. At that time, accused was in the bathroom. He came out and extinguished fire. PW-5 Balaprasad further stated that there were quarrels between Meena and her husband as the accused used to suspect her character. In the cross examination of PW-5, it is brought on record that about 15 days before prior to the incident, the accused and Meena had come to reside in the said rented house. 5 Balaprasad was also working in a medical shop at the relevant time and his duty hours were from 9.30 a.m. to 4.00 p.m. and 6.00 p.m. to 9.00 p.m. It may be noted that all that is stated by PW-5 Balaprasad is only that there used to be quarrels between the deceased Meena and her husband-accused, as the accused was suspecting her chastity, and nothing more. It may be noted that PW-5 is independent witness and had no reason to take side of either the prosecution or the defence. 07. PW-1 Ratnamala and PW-2 Renukabai examined at Exhibits 15 and 17 are sisters of each other and mother and aunt respectively of Meena. Both have deposed that there was demand of Rs. 10,000/=by accused to Meena for his business and due to inability of Meena to bring the amount,there used to be physical and mental cruelty to her. Both have further deposed that they learnt about Meena having suffered burn injuries. PW-1 Ratnamalabai deposed that Meena told her that 3-4 days prior to the incident,the 6 accused was ill-treating her on account of her suspicious character as he was carrying impression that Meena was signaling one boy who was residing in the same building. As against that Renukabai (PW-2) in her examination-in-chief that Meenabai told her that accused beat her 2-3 days before the incident, saying that she had twinkled eye on seeing a boy and was, therefore,there was harassment to her. It may be noted that the allegation of demand of Rs.10,000/= is not supported by Meena herself in her dying declarations. It is not her say in either of the two dying declarations that due to non fulfillment of demand of Rs.10,000/= there was ill-treatment to her. Moreover, it has also come in the evidence that PW-1 Ratnamalabai did not lodge complaint during life time of Meena. In the circumstances, the learned Judge observed that the evidence of the mother and aunt of deceased Meena could not be believed as perhaps the two sisters might be deposing falsely being aggrieved by death of Meena and being her close relatives. In the words of the learned Additional Sessions Judge, 7 "they might have become aggrieved due to untimely death of Meena.". 08. There is also evidence in the form of dying declarations recorded by PW-3 Head Constable Prabhakar Kulkarni and PW-4 Nivrutti Sahadeo. PW-3 Head Constable Kulkarni stated that on 22.9.1996 he was on duty at Shivaji Nagar Police Station, Nanded and was directed by Police Station Officer to go to the Civil Hospital and record statement of injured Meena. Accordingly, he went to the Civil Hospital, met the Medical Officer and recorded statement of Meenabai which is proved at Exhibit 19. He also stated that he had first met the doctor who then examined Meena and certified that she was conscious and able to give statement. It is thereafter that he recorded statement of Meena. Dying declaration at Exh.19 is to the effect that husband of Meena was not doing anything. It was her mother-in-law who used to do the work. For two days prior to 22.9.1996, the husband of Meena was suspecting her as he felt that some boy had twinkled eye on seeing Meena and 8 on that count the husband was beating her. Her mother-in-law had gone to some other place. On 22.9.1996,at about 11.a.m. she removed bamboo basket from underneath the cot, but husband felt that she had forcefully hit the same on the ground and beat her with fists and kicks and also gagged her mouth. Being tired of such treatment, she set herself on fire. When she was on fire, she raised shouts and her husband came, extinguished fire and took her to the hospital.It is clear that Meena was categorical in saying that her husband did not set her on fire, but she herself put her on fire. This statement is recorded in between 5.30 to 6.30 p.m. Though this statement was handed over to P.S.O. at 6.30 p.m. as per the endorsement thereon, was not treated as F.I.R. 09. At Exhibit 23, there is another statement of the deceased Meena recorded by PW-4 Nivrutti Sahadeo who stated that he received requisition letter (Exh.22) from the police and, therefore, he went to the Civil Hospital, met the Medical Officer and told him that he wanted to 9 record statement of Meena. Doctor told him that Meena was conscious and was able to give statement and therefore he obtained endorsement of the doctor to show that Meena was able to give the statement. Thereafter he recorded the statement which is proved at Exhibit 23. This witness in cross examination admitted that he had not obtained certificate of the doctor regarding Meena being able to give statement before recording statement. The endorsement of the doctor was obtained after completion of statement of Meena. The statement before the Special Judicial Magistrate is very short. It was in question- answer form. Meena stated that the incident took place at the house which they had taken on rent. The incident took place on 22.9.1996 at about 4.30 p.m. She further stated that on 22.9.1996 at 4.30 p.m. due to anger, she poured kerosene on her person and set herself on fire. He husband was quarreling with her as to why she was looking at other boys and so she set herself on fire. In other words, the only statement made is that the husband questioned her fidelity and suspected that 10 she might be having some affair with somebody. 10. The learned Additional Sessions Judge observed that when the dying declarations recorded by the Special Judicial Magistrate and the Police Head Constable, value of the dying declaration recorded by the Special Judicial Magistrate will be more. He also observed that only in case the Special Judicial Magistrate is not available, police can record the dying declaration. That may not be correct observation in law. But, still the fact remains that there are two dying declarations. There is no dispute regarding credibility of the Special Judicial Magistrate. 11. Assuming that the dying declarations are true, at the most what they show is that 2 to 3 days prior to the date of incident i.e. 22.9.1996, the respondent-accused suspected fidelity of his wife and, therefore, there was quarrel between the spouses. The question is whether that is sufficient to prove the cruelty under Section 498- A, explanation (a). Explanation (a) is to the 11 effect that cruelty means willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, or health of the woman. One thing is very clear that the husband not only had extinguished fire, but also took the wife to the hospital. So, it is clear that the husband never intended that his wife should set herself on fire and commit suicide. Another thing which is clear is that at the material time, he was taking bath and when he was in the bathroom, wife set herself on fire. So, it is not that during continuation of quarrel, the wife had set herself on fire. The learned Additional Sessions Judge came to the conclusion that the evidence on record is not sufficient to hold that it was at the instigation of husband that Meena committed suicide. In the dying declaration recorded by the Special Judicial Magistrate, no overt-act was attributed to the accused. Quarrel by itself may not always be sufficient to hold that the husband is guilty of offence punishable under Section 498- A of the I.P.C. 12 12. In my opinion, considering the totality of the facts and circumstances so also the evidence on record, this is a border line case, wherein both views are possible and the law is well settled that when two views are possible, in the appeal against acquittal the appellate court should not disturb and interfere with the view taken by the trial court. 13. In this view of the matter, this appeal deserves to be and is, accordingly dismissed. pnd/criapl455.99 (P.R.BOKRAR, J.)