... 1 ... IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.487 OF 1990 CRIMINAL APPEAL NO.487 OF 1990 CRIMINAL APPEAL NO.487 OF 1990 Baban Bhau Tambe ) Resident of Bhorav, ) Taluka Mahad, ) District Raigad. ) ...Appellant Versus 1. The State of Maharashtra ) 2. Dharma Dhondu More, ) Residing at Mohot, ) Taluka Mahad, ) District Raigad. ) ...Respondents ---------- Mrs Teja Katdare for the Appellant. Shri S.R.Shinde, A.P.P for the State. Shri D.G.Bagwe for the Respondent No.2. ----------- CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. CORAM : A. S. OKA, J. DATE : DECEMBER 05/06, 2006. DATE : DECEMBER 05/06, 2006. DATE : DECEMBER 05/06, 2006. JUDGMENT: JUDGMENT: JUDGMENT: 1. I have heard the submissions of the learned Advocate appearing for the Appellant (original accused No.1), the learned A.P.P for the Respondent-State and the learned counsel appearing for the second Respondent who is the original complainant (the father of the deceased). By the impugned Judgment and Order dated 26th July, 1990 passed by the learned Additional ... 2 ... Sessions Judge, Raigad at Alibag, the Appellant has been convicted for offences punishable under section 498-A and section 306 of the Indian Penal Code. For the offence under section 498-A, the Appellant has been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.5,000/-. In default, the Appellant has been directed to suffer rigorous imprisonment for nine months. For the offence under section 306 of the Penal Code, the Appellant has been sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-. In default, the Appellant has been directed to suffer rigorous imprisonment for eighteen months. On realisation of the fine amount, the learned Trial Judge directed that compensation of Rs.7,000/- shall be paid to the second Respondent. The sentences have been ordered to run concurrently. 2. Briefly stated the case of the prosecution is that the deceased Jijabai was lawfully married to the Appellant on 16th March, 1981 according to custom and convention of Nav Baudha Community. The deceased Jijabai was the third issue out of eight issues of her father P.W.2 Dharma. Initially the deceased Jijabai ... 3 ... cohabited with the Appellant at village Bhorav and she was subjected to harassment and ill-treatment. According to the prosecution case the deceased Jijabai had to take shelter in the house of her father at village Mohot, Taluka Mahad, District Raigad. At the intervention of the accused alongwith 10 to 15 persons, a meeting was held in which the accused agreed to treat Jijabai properly. In view of this agreement, the P.W.2 Dharma sent Jijabai for cohabitation with the Appellant. According to the prosecution case, in May 1984, P.W.2 Dharma visited the matrimonial house of his daughter and witnessed the assault and filthy abuses suffered by the deceased at the hands of the Appellant as Jijabai criticized her mother-in-law. The Appellant was employed at Excel Factory at Roha, District Raigad. According to prosecution case, in July 1984 the Appellant started residing with Jijabai and his two children in a one room tenement in village Varasgaon which was very close to his place of employment. According to the prosecution case in March 1985, when marriages of two sisters of deceased Jijabai were solemnised, only the Appellant attended marriages and he did not allow Jijabai to attend marriage ceremony. According to the case of the prosecution in May 1985, ... 4 ... the P.W.2 Dharma visited the residential tenement of the Appellant at Varasgaon and he found that deceased Jijabai was suffering from severe anaemia as a result of action of the Appellant of preventing the deceased from consuming food. According to the prosecution case the Appellant used to assault the deceased. 3. After the Ganapati festival of the year 1987, the P.W.2 Dharma alongwith his unmarried daughter Sushila (P.W.3) visited Varasgaon. They were in the house of the Appellant for few hours. According to the prosecution case, Jijabai and Sushila cooked the food and went to a canal for washing the clothes. At that time Jijabai disclosed to her sister Sushila that the Appellant used to taunt her on account of her excess food consumption during the meals. Jijabai also disclosed to Sushila that the Appellant had beaten her when she asked the Appellant explanation for his absence throughout the night during the Ganpatai festival. According to the prosecution case deceased also disclosed to Sushila that during her third pregnancy she suffered vomiting of blood and still she was made to do the work of cooking food and medical treatment was not provided to her. The allegation is ... 5 ... that on 19th September, 1987 Jijabai committed immolation by means of kerosene in front of her residential premises. This incident happened at 10.00 p.m. One of the neighbours Shri Pramod Bait lodged occurrence report with Kolad Police Out Post. A.S.I. Shri R.B. More recorded the report and rushed to Varasgaon. The police brought the said Jijabai to Sanjay Gandhi Trust Hospital and at about 12.35 p.m the attending medical officer (P.W.5) provided her treatment. The deceased Jijabai disclosed to P.W.5 that there used to be everyday fights between the Appellant and herself and in the said wrangling she used to suffer beating everyday at the hands of the Appellant. According to the prosecution case, on 19th September, 1987, the Appellant assaulted the deceased and thereafter proceeded to join night duty. After the Appellant left for his employment, the deceased committed suicide. 4. P.W.6 A.S.I. More reduced the narration of the deceased into writing (Exhibit 33) which is allegedly the dying declaration of the deceased Jijabai. Thumb mark of deceased Jijabai was affixed on the said dying declaration. It is stated that deceased died in the ... 6 ... midnight due to burn injuries. Accidental death report under section 174 of the Code of Criminal Procedure, 1973 was recorded by him. After P.W.7 Gaikwad recorded complaint at the instance of Dharma (P.W.No.2), offence under sections 498-A and 304-B of the Indian Penal Code was registered. 5. Before submissions were made on merits, the learned Advocate for the Appellant invited my attention to affidavit of the second Respondent Shri Dharma Dhondu More which was tendered across the Bar by Shri Bagwe, the learned Advocate appearing for the second Respondent. In the said affidavit, he stated that the Appellant has properly looked after his three children born to deceased Jijabai. He has stated that the Appellant has remarried and his second wife has properly looked after the children of the deceased and the Appellant has taken proper care to educate the said children. It is stated that the Appellant has performed the marriage of his elder daughter Nita and entire expenditure has been borne by the Appellant. The Appellant has provided proper facilities for education of two other children of the deceased. He has stated that he lodged the complaint against the ... 7 ... Appellant when condition of his mind was not proper. He has stated that now he feels that the Appellant should not be punished. He has recorded that the Appellant has remarried and his second wife has delivered two children. The learned Advocate for the second Respondent has also tendered affidavits of Hemant, the son of the deceased and of Nita, the married daughter of the deceased. By the said affidavits they also stated that the Appellant should not be punished. Apart from the submissions on merit, the learned Advocate for the Appellant tried to submit that in view of what is stated in the affidavits, power under section 482 of the Code of Criminal Procedure, 1973 for quashing the case can be exercised by this court even after conviction. The learned Advocate for the Appellant submitted that the Appellant has a very excellent case on merits and she was prepared to argue on merits. 6. Though a decision of the Division Bench of this court holds that there is a power vesting in this court under section 482 of the said Code to quash criminal proceedings which has resulted in conviction, it is obvious that said power has to be exercised provided ... 8 ... the case is fit to exercise the said power. Power under section 482 of the said Code has to be exercised very sparingly and in exceptional cases. In the present case, allegation of the prosecution against the Appellant is of commission of offence under section 306 of the Indian Penal Code. The deceased is gone and dead and therefore, only on the basis of alleged affidavits of the second Respondent and the son and daughter of the deceased, the power under section 482 of the said Code cannot be exercised in view of grave nature of allegations against the Appellant and in view of the very nature of offence under section 306 of the Indian Penal Code. Therefore, I am of the view that power under section 482 of the said Code cannot be exercised in the case. In view of this position, I have proceeded to hear the submissions on the merits of the Appeal. 7. I have heard detailed submissions of the learned Advocate appearing for the Appellant. Before adverting to the submissions made by the learned Advocate for the Appellant, it will be necessary to refer to the evidence led by the prosecution. The prosecution has examined seven witnesses. P.W.1 Shri ... 9 ... Suryakant Mayaji Patil is a formal witness. He was working as a Revenue Circle Inspector at the relevant time. He has drawn a sketch of the place of the incident. The said sketch (Exhibit 26) is proved in his evidence. In the said sketch he has shown the room No.2 occupied by the Appellant by red colour. In the cross-examination he admitted that there is another building comprising of four tenements to the south of the building in question. He stated that there is a lane having width of two to three feet in between the two buildings. In the cross-examination he stated that he noticed that rest of the rooms in the building except the room No.2 of the Appellant were locked. He has noted on the sketch (Exhibit 26) that room No.4 in the same building is occupied by one Pandurang Parshuram Shinde. 8. P.W.2 Dharma Dhondu More is the father of deceased. He deposed that out of his six daughters, five are married and deceased Jijabai was his third daughter. He stated that the marriage was solemnised between Jijabai and the Appellant on 16th March, 1981 in his house at village Mohat, Taluka Mahad, District Raigad. He stated that after marriage, Jijabai ... 10 ... cohabited with the Appellant at village Bhorav for a period of about two years. He stated that due to some domestic complications, he brought Jijabai to his home. Jijabai stayed with him for a period of two months. He stated that accused No.2 (elder brother of the Appellant), the mother-in-law of Jijabai and sister-in-law of Jijabai came to his house at Mohat. He stated that there was a meeting held in presence of local persons. In the said meeting the accused and Jijabai agreed to reside peacefully and with that understanding the Appellant took Jijabai to his house. 9. He stated that in May 1984 the deceased brother of the Appellant came to his house and took him to the matrimonial home of Jijabai. He stated that at that time he found Jijabai to be too weak as she was subjected to starvation by the accused persons. He stated that the Appellant assaulted her and hurled filthy abuses at her in his presence as Jijabai criticised the conduct of her mother-in-law. He stated that two months thereafter the Appellant took Jijabai to Varasgaon and started residing in the said village separately from his parents. In March 1985, the said witness performed marriages of his two other daughters. ... 11 ... He stated that the Appellant did not allow Jijabai to attend the said marriages and he himself attended the marriage ceremony. He stated that in May 1985, he alongwith his wife visited Varasgaon and met his daughter. He found that Jijabai was suffering from severe anaemia. When he questioned Jijabai, she informed him that the Appellant was not providing food and clothing to her and he was beating her. He stated that he provided a petty amount to his daughter and promised to bring one saree after returning home. He stated that prior to Ganesh festival of 1987, he visited the matrimonial home of Jijabai alongwith his unmarried daughter Sushila. At that time, he gave a saree to Jijabai. At that time he found that condition of Jijabia was severely anaemic. He stated that while Sushila accompanied the deceased to a canal for washing the clothes, Jijabai disclosed her sufferings to her sister Sushila. He stated that he alongwith Sushila came back on the same day. He stated that 7 to 8 days thereafter at 4.00 p.m one police constable contacted him in his place of employment and informed him that Jijabai has expired due to burn injuries after she was admitted to Cottage Hospital at Roha. He stated that he alongwith his wife, his son and two local persons ... 12 ... reached Roha at about 5.00 p.m and visited Sanjay Gandhi Hospital at Roha where dead body of Jijabai was kept. He stated that on 20th September, 1987 the police recorded his complaint. He proved the complaint in evidence. P.W.2 was extensively cross-examined by the Advocate appearing for the Appellant. First part of the cross-examination was as regards the date of marriage. P.W.2 has stated in examination-in-chief that the date of marriage was 16th March, 1981. Various questions were asked in the cross-examination as a result of which P.W.2 admitted that the date of marriage may not be 16th March, 1981. However, this controversy may not be addressed to any further as the learned Trial Judge after considering the evidence of P.W.2 has himself recorded a finding that the marriage between the Appellant and deceased Jijabai must have been solemnised in the year 1979. Considering the said finding, it is obvious that the death has not occurred within a period of seven years from the date of marriage. 10. P.W.2 was cross-examined at length on several other aspects. In the cross-examination he admitted that during the period when Jijabai was living in room ... 13 ... No.2 in Shinde Chawl in Varasgaon, there were three tenements in western row and three tenements in the eastern row of the said chawl. He admitted that there was no disagreement on the count of any demand either at the time of marriage or even subsequently thereafter. He admitted that there is a panch committee of the community to which he belongs for resolving the disputes. He admitted that he did not take the issue of harassment of his daughter before the panch committee. He admitted that there were families in the adjoining tenements of room No.2 in Shinde Chawl. He admitted that because of good pay of the Appellant everything was available in the tenement of the Appellant in Shinde Chawl including the facilities of food and clothes to deceased Jijabai. He admitted that after the marriage Jijabai has suffered epiliptic attack. He, however, denied the suggestion that she used to experience loss of senses for few hours after suffering the attack of epilopsy. He admitted that Jijabai had to stay at his house for two months as there was a purely domestic problem existing in the family of the Applicant. He stated that father of the Applicant had expired and after the demise of father, there was a dispute between the Appellant and his ... 14 ... brothers. He stated that as an elderly person he was called to attend a meeting for resolving the said domestic problem and he participated in the meeting and ultimately amicable settlement was arrived at. Only after the said settlement he permitted his daughter to resume cohabitation with the Appellant. He admitted that though he has referred to a meeting held at village Mohat in examination-in-chief, there is no reference to the said meeting in the F.I.R lodged by him. He admitted that in F.I.R he did not refer to dearth of clothes faced by the said Jijabai. He admitted that when the Appellant attended the marriage of his two other daughters, the Appellant gave presents. In the cross-examination, he further admitted that he visited Varasgaon 5 to 6 days prior to death of Jijabai. He stated that accused Nos.2 and 4 were not residing with Jijabai for 3 to 4 months prior to her death. 11. P.W.3 Sushila Dharma More is the younger sister of deceased Jijabai. She stated that after immersion of Ganesha in the year 1987, she visited Varasgaon alongwith her father. He stated that she visited Varasgaon as her deceased sister had invited her. She ... 15 ... stated that after taking meals she alongwith Jijabai went towards a canal for washing clothes. At that time Jijabai told her that the Appellant used to taunt her with reference to excess food quantity enjoyed by her. She stated that the deceased informed her that when deceased asked the appellant as to why he had spent entire night outside after attending Ganesh Puja, the Appellant had assaulted her. She stated that the deceased informed her that during her third pregnancy, she vomited blood and the Appellant did not provide medical treatment to her but forced her to cook food. In the cross-examination she stated that when she visited Varasgaon, deceased was wearing a torn saree. She stated that her sister complained that the Appellant used to take side of accused No.3 by stating that she should not serve food to accused No.3 and accused No.3 should be given liberty to enjoy food as per her desire. She admitted that her statement was recorded on 21st October, 1987 by the police and she did not refer to the allegation that the Appellant used to taunt deceased as regards excess food allegedly consumed by her. She also admitted that she did not tell police about blood alleged blood vomiting by Jijabai during her third pregnancy. She admitted that ... 16 ... Jijabai was taller and was having heavy frame than the Appellant. 12. P.W.4 Dattatraya Bapuji Shinde claimed to reside in the vicinity of the room of the Appellant at Varasgaon. He stated that in September 1986, he retired as A.S.I. He stated that the building of Balasaheb Shinde in which the Appellant was residing is located on the eastern side of his building at a distance of about 200 to 250 feet. According to him, Balasaheb Shinde is his brother. At about 10.00 p.m on 19th September, 1987 he heard screaming voice of a lady. After hearing the voice he rushed to the building and called two or three persons residing in the said building. When he came in front of room No.2, he noticed that a lady residing in that room was lying in the front side of the room in burning condition. He instructed his companions to extinguish the fire by throwing water. In the light of a torch he could notice one kerosene tin and one match box lying there. He further stated that he asked the injured lady and she told that that she has voluntarily committed self-immolation. He instructed his companions to report the matter to the police station and take the ... 17 ... lady to the hospital. He identified the said lady to be the wife of the Appellant. 13. In the cross-examination he stated that the distance between his house and the tenements of the Appellant is about 50 to 60 paces. He admitted that the said distance enables him to hear conversation in the tenement of the Appellant while in his house. He stated that he did not notice any untoward incident in the room of the Appellant and there was a peaceful cohabitation between the Appellant and his wife without any dispute or quarrel. He admitted that Shri More and Shri Shinde were immediate neighbours of the Appellant and three tenements in the side were also occupied by three tenants. He pointed out that four other tenements in the adjoining building on the southern side were occupied by four persons. He stated that out of the neighbours of the Appellants the police recorded statement of Shri Kharat and Shri Ramchandra More. He admitted that after the initial dialogue, the lady did not have any dialogue with him. He stated that he had seen deceased number of times. He stated that the deceased was having good height and heavy frame. The deceased used to attend his house for enjoying TV ... 18 ... programme. He stated that he always found the deceased to be in good mood and she never complained against the Appellant to him. He stated that he never found the deceased in anaemic condition till her death and she used to be properly dressed with good clothes. 14. Evidence of P.W.5 Dr. Nishidh Natwar Dhruw is very important as according to the prosecution he recorded dying declaration of the deceased. P.W.5 stated that he has done post graduation in General Surgery. He was medical officer incharge of Sanjay Gandhi Trust Hospital at Roha at the relevant time. He stated on 19th September, 1987 though the police had not referred but the relatives brought deceased in burnt condition in the Trust Hospital at about 11.30 p.m. He stated that he provided emergent treatment to her. He produced the case papers in the court. He stated that the condition of the patient was very poor and even blood pressure was not recordable. He pointed out that there was lot of secretion from her throat and she was gasping. He asked history to the patient. He stated that the patient disclosed that she had three children, one male and two female. The patient disclosed to him that there were constant fights ... 19 ... between husband and wife and she used to receive beating daily from her husband. She stated that there was a fight and beating on 19th September, 1987 after which the Appellant left for work. She stated that she sprinkled kerosene on her own body and lighted a match stick. He deposed that after disclosing the aforesaid history, the patient became unconscious and expired at 12.00 in the midnight. He stated that he recorded the statement in writing and signed the same. He stated that the hospital clerk had called the police. Accordingly, P.S.I. came to the hospital and recorded the statement of the deceased in his presence. He stated that on dying declaration which was recorded at 11.45 a.m, the patient affixed her thumb mark and it was attested by the P.S.I. He stated that the dying declaration bears his endorsement. In the cross-examination he admitted that his conversation with the patient started at about 11.40 p.m. He admitted that the lady was badly burnt almost to the extent of 100%. He admitted that blood pressure below 60 is treated as non-recordable blood pressure. He denied the suggestion that with 100% burns the patient goes in comma before he dies. He stated that in case of 100% burns if the trachea and larynx are not damaged ... 20 ... the patient may talk till before death. He stated that during his conversation with the patient no relative was allowed to enter the room. He denied that he has obliged the local police by maintaining false case papers and by giving the false advise. 15. P.W.6 Shri Raya Bhambu More was A.S.I attached to Roha Police Station at the relevant time. He stated that he recorded the statement of the deceased while conversation between