1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Revision Application No.194 of 1999 Ram Devidas Cittampalii .. .. Applicant v/s. The State of Maharashtra .. .. Respondent Mr.S.V. Kotwal i/by Mr.V.V. Purwant for Applicant. Mrs.A.A. Mane, APP for State. ---- CORAM : SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 6th November, 2009 Date of pronouncing the judgment : 5th December, 2009 JUDGMENT : 1.This Revision Application is filed against the judgment and order of the learned Sessions Judge, Solapur dated 10.8.1999 in Appeal from an order and judgment of the Assistant Sessions Judge, Solapur dated 22.2.1997. Both of whom have acquitted the Applicant herein of having committed offences under Sections 498A and 306A of the Indian Penal Code (IPC). Under the first judgment of the Assistant Sessions Judge, the Applicant has been sentenced to suffer rigorous imprisonment for 1 year, upon his conviction under Section 498A of the IPC and to pay a fine of Rs.500/- and in default, to suffer imprisonment for 3 months. He has further been sentenced to suffer rigorous imprisonment of 4 years upon his conviction under Section 306 of the IPC and to pay a fine of Rs.3,000/- and in default, to suffer 2 further imprisonment of 1 year. 2.The case under Sections 498A and 306 has been made out by the prosecution, essentially upon the two dying declarations of the victim lady, the wife of the Applicant (deceased). 3.It is the case of the prosecution that the Applicant, the husband of the deceased, used to ill-treat and harass the deceased. The case of cruelty, ill-treatment and harassment is made out upon the oral evidence of some of the witnesses and two dying declarations of the deceased. It is the prosecution case that the accused used to get drunk and beat up his wife. They were married in 1985 and this incident took place on 2.11.1996 after about 11 years of marriage. In the incident that transpired the accused came home drunk and demanded money from his wife. She did not pay the accused and the accused told her to kill herself by setting her on fire. He gave her a match-stick and told her to set herself on fire by the time he went to fetch the elder son, then aged about 10 years, from the school. Because of his continuous beatings and demand for money, the deceased actually committed suicide as directed by her husband. When he returned, she was burnt. He removed her to the hospital in a vehicle of the fire brigade. The history upon admission shows a 3 case of suicidal burns upon quarrel with the husband. She was admitted on 2.11.1996. 4.Her statement was recorded by the Police in the presence of one social worker. The relevant Tahsildar, who was SEM, was also called to record her statement. Her father, sister and aunt came to the hospital. She made oral dying declarations to each of them. It is based upon such evidence that a case, under the aforesaid sections, is sought to be made out because the statement under Section 313 of the Criminal Procedure Code recorded by the Court is of denial. The accused has stated that a false case has been filed at the instance of his brother-in-law, Rajkumar, with whom he had a quarrel though the case put by him to one of the witnesses is that the stove had burst. 5.The prosecution has examined 8 witnesses. PW1 is the Spot Panch, who has, inter alia, seen a tin of kerosene and a match-stick at the residence of the deceased where she is stated to have committed suicide. The stove is not shown to have burst. PW2 is the father of the deceased, who has deposed about the cruelty upon his daughter as well as the oral dying declaration made by his daughter to him. PW3 and PW4 are the aunt and sister of the deceased respectively, who have similarly deposed. PW5 is the social worker, who was present 4 when the Police Officer recorded the initial statement of the deceased soon after her admission in the hospital. She has deposed about certain inquiries made by her with the deceased. In her presence, she has signed and attested the statement recorded by the Police. PW6, serving as the Nayab Tahsildar, was the Executive Magistrate, who had also recorded her dying declaration a little later. He has deposed about what transpired at the time of recording. PW7 is a neighbour who has turned hostile. However, he has deposed in his cross-examination that he had seen the stove in the room. He has not deposed that the stove had burst. PW8 is the Police Officer, who recorded her initial statement in the presence of the social worker, PW5, and he called the SEM to record a separate dying declaration. He has deposed about what transpired when he was recording the statement of the deceased. PW9 is the Doctor, who admitted the deceased in the hospital and in whose presence the statements were recorded. She has deposed about the medical condition of the deceased. 6.The two concurrent findings of fact show the appreciation of this oral and documentary evidence contained in the aforesaid statements substantiated by the two dying declarations. The essential case of the prosecution is, therefore, upon the two dying 5 declarations, though the evidence of the three witnesses being PW2, PW3 and PW4 is not disturbed in the cross-examination. The oral dying declarations of the deceased, as reflected in the oral evidence of the relatives is essentially the same as her written dying declarations recorded by and in the presence of 4 independent witnesses which are fully consistent with one another. The two dying declarations recorded by the SEM and the Police Officer are marked Exhibits 22 and 25, respectively in evidence. In point of time, the first dying declaration was recorded by the Police Officer. It shows, inter alia, the statement of the deceased that her husband used to beat her after drinking and ask for money from her for liquor. On 2.11.1996, in the morning he inquired about the money given by her mother-in-law. They were quarreling at 1.30 p.m. He was to go to pick up the elder son from school. The younger son was with her at home. He used to beat her regularly after getting drunk, demand money and harass her. Being harassed by him that day, she had poured rokel (kerosene) on herself and lit herself. 7.This statement has been recorded in the presence of a social worker. Both the Police Officer and the social worker have put questions to her. It is actually scribed by a Police Constable. It is attested by the 6 social worker and signed by the Police Officer, who investigated the case. It makes out a case of continuous cruelty, due to which being fed up she ended her life on the date of the incident. 8.The statement recorded by the SEM also shows that her husband used to beat her and that she had always complained to the Police. It also shows that her husband had not given her food for 2 days. In the morning of the date of the incident, he had beaten her when her younger son was present. 9.A reading of the 2 statements shows that they are consistent all material particulars. The material particulars are the fact of the husband drinking and beating his wife. A judicial notice is required to be taken of the fact that a husband, who consistently drinks liquor, does beat up his wife. Aside from the wife narrating this fact to her relatives and/or in her dying declaration, no further documentary proof can be given of such a fact. The cross-examinations of the witnesses do not at all show that the husband was not prone to drinking liquor. The evidence shows that he was a Rickshaw driver and had some immovable property, but was not working since a few years. He used to drink and demand monies from the deceased. The dying declaration of the deceased shows that he demanded 7 money given to the deceased by her mother-in-law, upon which a quarrel took place. This is the usual malaise in matrimonial relationships tainted by the susceptibility to the drinking habit. 10.Three oral dying declarations and the written dying declarations being consistently showing the earlier acts of drinking and beating make out the incident, as narrated in the dying declarations, credible, reliable and worthy of acceptance. 11.Mr.Kotwal,learned Advocate on behalf of the Applicant has tried to show some inconsistencies in the written dying declarations. Whereas the dying declaration recorded by the SEM shows that no one extinguished the fire, the dying declaration recorded by the IO shows that her husband extinguished fire after returning with her elder son from school. This inconsistency is not in material particulars of the dying declarations. The fact remains that the husband took her in the fire brigade vehicle and admitted her to the hospital after she actually committed suicide as directed by him. 12.It is shown by Mr.Kotwal on behalf of the Applicant that the dying declaration recorded by the Police Officer and signed by him is not actually written by him. The dying declaration is thumb impressed by the 8 deceased. It is signed by the Police Officer who put her questions and dictated the contents to the Police Constable. It is counter-signed by the social worker who was present during its recording and who had also put her some questions and is endorsed by the Doctor stating that the patient is conscious. The endorsements are put on the top of the dying declaration at the time of its commencement at 3.30 p.m. and at the foot of the dying declaration upon its completion at 3.45 p.m. by the Doctor. There is no irregularity in the Constable actually scribing the dying declaration. The dying declaration recorded by the Police Officer in the presence of the social worker and the Doctor is, therefore, perfectly legitimate and correct. 13.Nevertheless, another dying declaration is recorded by the SEM. It is argued that the SEM has not put his signature and seal on the dying declaration, Exhibit-22. That aspect is correct. It is, however, thumb impressed by the deceased. The SEM in his cross- examination has justified the inadvertent error. He was called for recording another dying declaration on the same day whilst he was recording the dying declaration of the deceased. He had recorded 6 dying declarations on that day. The dying declaration recorded by the SEM also has an endorsement of the Doctor in the margin. It 9 shows the later time when it was recorded from 3.50 p.m. to 4.10 p.m. 14.From a reading of the two dying declarations, the case of the deceased of committing suicide due to the cruelty, ill-treatment and harassment of her husband is clearly made out. Neither of the dying declarations can be discarded by the Court. It is for the Court to see the truth of the case of the parties and not technical anomalies or errors. 15.The two concurrent findings of fact of the Sessions Courts below are correct. The conviction is proper. No material irregularity is seen in the two judgments. No case for interference is called for. The Criminal Revision Application is dismissed. 16.The Applicant shall be forthwith taken in custody by the trial Court and shall serve out his sentence. The Assistant Public Prosecutor shall instruct the senior PI of the relevant Police Station to take the Applicant-accused in custody. 17.Criminal Revision Application disposed of accordingly. [SMT.ROSHAN DALVI, J.] 10