IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.678 OF 2007 CRIMINAL APPEAL NO.678 OF 2007 CRIMINAL APPEAL NO.678 OF 2007 Chandrakant Vitthal Chougule ) Age 44 years, Occ.: Service, ) R/o. Tardal, Taluka Hatkanangale ) Dist. Kolhapur. )..Appellant Org.Accused No.1 Versus The State of Maharashtra )..Respondent ---- Mr.Shekhar A.Ingawale for the appellant. Mrs.A.A.Mane APP for the respondent/State. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 29.08.2008 Judgment :- 1. By this Criminal Appeal, the appellant Chandrakant Vitthal Chougule (hereinafter referred to as the "accused") impugns a judgment and order dated 10.7.2007 passed by the Additional Sessions Judge, Ichalkaranji in Sessions Case No.6/2007. By the impugned judgment and order the accused has been convicted for an offence punishable under Section 306 of IPC and he has been sentenced to suffer rigorous imprisonment for six years and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for 15 days. The said accused has also been convicted for the offence punishable under Section 498-A of IPC and on this count, he has been : 2 : sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for seven days. His mother accused no.2 Shantabai was however, acquitted of all charges. 2. The brief facts of the prosecution case are as under :- (a) That sometimes in late 1994, the accused married the deceased Surekha C.Chougule. Since the marriage, the accused used to insult his wife by doubting about her character and conduct. He started demanding Rs.50,000/- for purchase of motorcycle. Since the demand was not fulfilled, the accused and his mother started ill-treating her by frequently beating her by keeping her starving and by telling her that her conduct was bad. Maternal relatives of Surekha tried to pacify the matter but the ill-treatment continued. (b) On 19.3.2006 in the afternoon the accused and his mother abused Surekha by doubting her character. Surekha felt ashamed and offended and after pouring kerosene on her body, she set herself ablaze. Accused no.1 extinguished the fire of Surekha and in this process he himself sufferred 15% burns. He took Surekha to the IGM hospital, Ichalkaranji. As condition of Surekha was serious, she was shifted to : 3 : the burn ward at Civil Hospital, Sangli. The police were telephonically informed and relephonic requisition was made by the police officer of the Vishrambag police station to record her dying declaration. Accordingly, PW-4 Vasant Khanchanale after taking fitness certificate from Dr.Dhananjay Vaze (PW-6) recorded her dying declaration between 3.10 P.M. and 3.35 P.M. After dying declaration was recorded, Dr.Dhananjay Vaze once again gave an endorsement regarding her fitness to make a statement. However, later on the next day i.e. 20.3.2006 at about 7.00 A.M. Surekha succumbed to her burn injuries. (c) On 21.3.2006 Shri Bapuso Patil PW-2 who was the cousin of the deceased Surekha lodged a FIR with the Hatkanangale police station and on this basis the police registered C.R.No.40/2006 for offences punishable under Sections 498-A, 304-B and 306 read with 34 of IPC. In the course of the investigation, an inquest panchanama (Exh.12) was prepared at Civil Hospital, Sangli. The dead body of Surekha was referred to the post mortem and Medical Officer, Sangli submitted post mortem notes (Exh.14). The post mortem notes indicated that the deceased died due to 91% burns. Investigating officer prepared a spot panchanama (Exh.17) and seized two bottles and pieces of burnt clothes from the spot of the incident situated in the kitchen room of the house : 4 : of the accused. Seized muddemal was referred to the Chemical Analyser, Pune and it was reported that kerosene residue was detected in the seized bottles and partly burn clothes seized from the spot of the incident. After recording the statements of the witnessess a charge-sheet was filed before the Judicial Magistrate, First Class, Ichalkaranji. 3. In due course the matter was committed to the Court of Sessions for trial. In order to prove its case the prosecution examined as many as six witnesses, a reference to most of them has been made above. The defence of the accused was of total denial. It was suggested on behalf of the defence that the death could have been caused by an accident. No defence evidence was led in the matter. In the circumstances, on the basis of the evidence adduced by the prosecution and the 313 statements of the accused, the trial Court passed the impugned judgment and order, convicting and sentencing accused as hereinabove. 4. On perusing the impugned judgment and order, I find that the trial Court found that the death could not be said to be accidental. To reach this finding and to sustain the conviction, the trial Court has relied upon the dying declaration of the deceased and has come to the conclusion that the same was truthful and reliable. In view of the reasoning : 5 : given by the trial Court, learned Advocate for the defence strongly attacked the dying declaration. One of the ground of attack was that Doctor had contended that he permitted the recording of the dying declaration upon seeing the copy of the written requisition of the police officer attached to the Vishrambag police station. As against this, the Police constable who recorded the dying declaration stated in his evidence that he had proceeded for recording dying declaration without written requisition but on the basis of oral requisition made on the telephone. In this regard the trial Court held that though this was a discrepancy in the evidence of the two witnesses the doctor has made a mistake after several years. On other aspect, the trial Court found that there was no infirmity in the dying declaration. The trial Court rightly concluded that the dying declaration could not be dis-carded because it was not in a question-answer form. This is a case where the case papers are also produced and the same corroborated the factum of making of the dying declaration. The dying declaration reffers to the events which occurred on the date when Surekha committed suicide. The words attributed to Surekha in the dying declaration are as follows :- " As it was sunday today i.e. 19.3.2006 my husband was at home. Since morning my : 6 : husband and my mother-in-law were abusing me on the ground that I was a women of suspicious character. My husband was sitting outside in the room correcting papers. I was in the kitchen. My husband and mother-in-law from time to time speaking ill about me and insulting me and I felt very bad. Therefore, I poured kerosene from the glass bottle on myself and set myself on fire." 5. In my view, apart from the aforesaid minor discrepancy the evidence as regards making of this dying declaration is completely corroborated by the statement of two independent witnesses i.e. Head constable PW-4 Vasant Hanmant Khanchanale and PW-6 Dr.Dhananjay Dilip Vaze. It is also corroborated with the finding of two bottles containing kerosene residue at the scene of the offence and further by the fact that inquest panchanama indicates ink mark on the right thumb and the toe of the deceased, which according to the witness were put when the dying declaration was made. The law is well settled that once the dying declaration is found to be truthful and reliable then the conviction can be based on the same without requirement of any further corroboration. Nodoubt in this case both the relatives of Surekha turned hostile. : 7 : 6. This is also a case where death occurred within seven years of the marriage and therefore, cruelty within the meaning of Section 498-A was established. The Court was entitled to draw presumption of abetment under Section 113-A of IPC. 7. In the circumstances, I find that the reasoning given by the trial Court cannot be said to be incorrect and found to be perfectly justified and correct. 8. On the sentence however, I find that there are some special circumstances in this case which would call for a more lenient sentence. It appears that immediately after Surekha caught fire, the accused made his best efforts to extinguish the fire. In the process he himself suffered 15% burns and was required to be taken to the hospital. Unfortunately, the injuries sufferred by him were not brought on record by examining any doctor but the fact that he suffered 15% burns and was admitted in the hospital is indicated in the requisition letter Exh.23. Apart from this, the dying declaration also mentioned that her husband brought her to the hospital. Though it may not have been the express intention of the accused that his wife should burn herself, the conviction must stand because of the presumption of law under which the Court may presume that an act of cruelty within the : 8 : meaning of Section 498-A, within 7 years of the marriage, amounts to abetment on the commission of suicide. In the circumstances, I feel that the ends of justice would be met if the sentence for offence under Section 306 is suitably reduced. 9. In the net result, I proceed to pass the following order :- O R D E R (a) The conviction and sentence of the accused under Section 498-A of IPC is confirmed ; (b) The conviction under Section 306 of IPC is confirmed but by a modification of the sentence, he is sentenced to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1000/-, in default to suffer rigorous imprisonment for three months ; (c) Set off permissible in law is allowed ; (d) Appeal stands disposed off. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)