1 Cri-Appeal-564-91.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 564 OF 1991 Raju Manohar Pawar ) Age about 28 years, occupation Labour, ) resident of 1506, Sadashiv Peth, ) Pune - 411 030. ) At present in Yerwada Central Prison,Pune. ).... Appellant (Orig. accused No.1) Vs. 1. State of Maharashtra ) 2. Dinesh Raju Pawar ) 3. Nilesh Raju Pawar ) Both minor (through their guardian ) Smt. Sarojini Manohar Pawar, ) Age: 50, Occ: Service, R/at 1506, ) Sadashiv Peth, Pune - 30.) )..Respondents S/Shri Sachin S.Thombare a/w Vaibhav P.Deshmukh i/b. S.V.Kadam,Advocates, for the appellant. Smt. S.D.Shinde, APP, for the Respondent - State. CORAM: J.H.BHATIA,J. DATE : 3rd December, 2010. JUDGMENT: 1. The present appellant is the original accused No.1. He along with his father and mother, who were accused Nos. 2 and 3, was convicted in Sessions Case No.367 of 1990 by the 9th Additional Sessions Judge, Pune, for the offences punishable under Sections 306, 498A read with Section 34 of IPC and was 2 Cri-Appeal-564-91.sxw sentenced to undergo R.I. for ten years and to pay fine of Rs.2,500/- on first count and to undergo R.I. for three years and to pay fine of Rs.2,000/- on the second count. The accused Nos. 2 and 3 were also convicted, but were released by giving benefit of Probation of Offenders Act. The appellant has by this appeal challenged the order of conviction and sentence. 2. The prosecution case, in brief, is that the appellant-accused No.1 Raju Manohar Pawar was married to deceased Mangala. They were living together along with his parents. On 1.2.1990, at about 8 or 8.15 p.m., Mangala poured kerosene and immolated herself. Fire was extinguished by one Ananta and boys living in the nearby Hostel. After that, she was taken to the Sassoon Hospital by her father-in-law Manohar, who was accused No.2. She was admitted in the hospital at about 9.30 p.m. Meanwhile, her mother and brother got the information and they also rushed to the hospital. Information of her admission in the hospital was received by PW-8 ASI Bhau Tannu of Vishrambaug Police Station. He requested the Special Judicial Subhash Dahiwal to record the dying declaration of Mangala in the hospital. Accordingly, PW-6 Subhash Dahiwal went to the hospital and after the medical officer confirmed that Mangala was in a position to make statement, he recorded her dying declaration. In the dying declaration, she stated that her husband and in-laws had a misunderstanding and 3 Cri-Appeal-564-91.sxw suspicion that she had some illicit relations with a goldsmith, namely, Ananta and because of that her husband used to beat her. According to her, on that day also, her husband had beaten her in the courtyard outside the house and this was seen by the boys residing in the hostel. Due to this, being frustrated, she went into her house, closed the door, poured kerosene on herself and set herself ablaze. According to her, even when she was burning, her in-laws and the husband did not try to extinguish the fire. Fire was extinguished by the boys from the hostel and said Ananta. After recording the dying declaration, it was handed over to the Investigating Officer ASI Tannu. After recording the dying declaration and after some other preliminary enquiry, ASI Tannu himself lodged the report and registered crime No.31/90 under Sections 306, 498A read with Sec. 34 of IPC against the present appellant, his father and mother. Immediately, ASI Tannu went to the spot of the incident. He prepared the spot panchnama during the same night and seized some articles found in the house. He also seized the burnt clothes of Mangala from her mother in the Sassoon Hospital under a panchanama. During the investigation, it was also revealed that her husband was addicted to liquor and used to beat and illtreat her and on that day also he had beaten her, due to which she committed suicide. After investigation, police filed charge-sheet and in due course, the case was committed to the Court of Sessions. 4 Cri-Appeal-564-91.sxw 3. The accused pleaded not guilty. On behalf of the prosecution, in all 9 witnesses were examined. Several documents were placed on record. After trial, the learned trial Court convicted all the three accused persons and sentenced the present appellant as stated above. 4. From the evidence of PW-5 Nandkumar, who was brother of the deceased Mangala, it is proved that Mangala was married to the accused No.1 - Raju, on 13.12.1983. This fact was not disputed anywhere in his cross- examination, though during statement under Sec. 313 of Cr.P.C. the accused No.1 tried to state that they were married on 13.12.1982 for which there is no material. Evidence was recorded in March 1991 and PW-1 Krishnabai, mother of the deceased, also stated that about 7 years before Mangala was married to the accused. Seven years before March 1991 means in the beginning of 1984 or so. In view of the specific evidence of Nandkumar that marriage had taken place on 13.12.1983, it has to be believed. 5. The medical evidence of PW-7 Dr. Popat Sonawane shows that on 1.2.1990, at about 9.30 p.m. Mangala was admitted in the hospital in the Female Ward of the Hospital and she had given history of immolating herself because of the cruelty of her husband. According to him, she had suffered 47% burns. Post- 5 Cri-Appeal-564-91.sxw mortem report Ex.25, which was admitted on behalf of the accused, shows that she had suffered 60% superficial burns and had died due to burn injuries. The death occurred on 5.2.1990. It means she had committed suicide within 7 years after the marriage. 6. Evidence of PW-1 Krishnabai, who is mother of the deceased and of PW-5 Nandkumar, who is brother of the deceased, reveals that the marriage of accused No.1 Raju and deceased Mangala was a love marriage. They wanted to marry inspite of resistance from the family of Mangala. The evidence shows that her father and brother did not agree for the marriage. Even her mother Krishnabai was not happy with the marriage, but she herself performed the marriage of Mangala with accused No.1 because Mangala was insisting for the same. After the marriage, her father never paid visit to her house. Her brother Nandakumar also paid visit only on one occasion. It appears that Krishnabai was on visiting terms with her daughter and she also used to come to her parents place. The evidence also shows that she had two children out of the wedlock. The evidence shows that till the second child was born, the relations between husband and wife were cordial. PW-5 Nandkumar specifically deposed that fact. According to him, after the birth of the second son, accused Raju was addicted to liquor. It also appears from his evidence that accused - Raju used to work with a contractor, 6 Cri-Appeal-564-91.sxw but he was removed from the job and after that he had no job and could not give any money to his wife. Because of this, Mangala started working as maid-servant. Mangala used to come to her parents' place and told her mother and brother that her husband used to beat her under the influence of liquor and did not give any money to her for household work. According to them, she also used to say that her parents-in-law used to instigate her husband. 7. PW-7 Dr. Popat Sonawane recorded the history on admission of Mangala in the hospital. According to him, Mangala had told her that she had immolated herself because of quarrel with husband. Evidence of PW-8 ASI Tannu reveals that when he was at Vishrambaug Police Station at about 10 p.m. he got message from the hospital that a woman Mangala was admitted in the hospital for burn injuries. Therefore, he immediately arranged for recording of dying declaration by the Special Judicial Magistrate. For this purpose, he approached PW-6 Subhash Dahiwal, who was Special Judicial Magistrate. Evidence of PW-6 shows that he received the Memo Ex.21 at 23.30 hours with a request to record the dying declaration. His house is at a distance of 7 Kms. from the Sassoon Hospital. He immediately rushed to the hospital and it took him 20 minutes to reach there. According to him, after going to Hospital, he straightaway went to Ward no.27 where the females were admitted. He disclosed 7 Cri-Appeal-564-91.sxw his identity and told the doctor that he wanted to record dying declaration of Mangala. The doctor took him to Mangala and certified that she was in a fit condition to make a statement. PW-6 ensured that none of the relatives of the parties were present at the time of recording the statement. Except the Magistrate and the doctor, no other person was present near Mangala at the time of recording her dying declaration. The evidence shows that police officers were at the ground floor at the time of recording the dying declaration, while ward No.27, where the dying declaration was recorded, was situated on the first floor of the building. Evidence of PW-6 Dahiwal shows that he satisfied himself that Mangala was fit to make statement. He also put preliminary questions to her and then recorded her dying declaration vide Ex.23. In the dying declaration, she told that some goldsmiths used to work in the Wada where she was residing. Her in-laws suspected that she had illicit relations with one Ananta, a goldsmith and they used to instigate her husband against her and her husband used to beat her. On that day also, her husband had beaten her in the courtyard the boys, residing in the hostel, were looking that incident. She then went into the house and due to harassment, she closed the door, poured kerosene on herself and set fire to her clothes. The husband and in-laws saw the flames, but did not extinguish the fire. The boys from the hostel and Ananta poured water and extinguished the fire. Thereafter she was taken to the hospital. There is noting on record to suspect the 8 Cri-Appeal-564-91.sxw correctness of recording the dying declaration by the Executive Judicial Magistrate. Even in the medical case papers of the deceased, there is an endorsement that dying declaration was recorded by the the Special Executive Magistrate and his signature was also obtained on the same. The defence Counsel tried It was made to show that below declaration Ex.23, there is signature of ASI Tannu and it indicated hat the police officer was also present. In fact, the evidence of Subhash Dahiwal shows that he himself had signed below the certificate of recording dying declaration. It appears that he had signed twice. On the form, used for recording dying declaration, on the right side there was space for signature or thumb mark of the person who had suffered the burn injuries and on the left side there was space for signature of the Special Judicial Magistrate. Besides that signature, below the signature of Mangala also , he put the signature. On comparison of these two signatures, there remains no doubt that the signature at the bottom of Ex.23 is of the special Executive Magistrate and not of any other person. The medical record clearly reveals that Mangala was conscious at the time of admission in the hospital at about 9.30 p.m. and she gave history of immolating herself. In the medical case papers also there is endorsement that her dying declaration was recorded at 11.55 p.m. On careful perusal of the said case papers it appears that on 2nd, 3rd and 4th Februyary 1990 also she was conscious. There is nothing on record to indicate that she was not conscious or was not 9 Cri-Appeal-564-91.sxw physically and mentally fit to make statement on 1.2.1990. 8. The learned Counsel for the accused-appellant contended that as per the post-mortem report, she had suffered superficial and deep burns on both the forearms and hands upto proximal fingers with peeling off the skin. According to him,if the skin was peeled off, she could not have put signature below the dying declaration. It may be noted that her dying declaration was recorded almost immediately after the incident, while she died on 5.2.1990 and on the same day post-mortem examination was conducted. Because of the burn injuries, the skin peeled off. No question was put to the medical officer Dr. Popat as to whether the skin of fingers was found peeled off on admission and whether she was fit to put her signature on that day. On careful perusal of the signature on the dying declaration, the signature does not appear to have been written fluently by a normal person. As she had several burn injuries, she appears to have signed with great difficulty. In these circumstances, I am unable to agree with the learned Counsel for the appellant that she was completely unable to put her signature on the dying declaration and it is not her signature. 9. Evidence of PW-1 Krishnabai reveals that prior to the incident, Mangala used to tell her that her husband had lost the job and thereafter because 10 Cri-Appeal-564-91.sxw of money problems, quarrel used to take place between herself and her husband. Because of this, she also used to take money from her mother. She used to tell her mother that her husband used to come under influence of liquor because of money problems. She also deposed that about two months prior to her death, Mangala had come to her place along with husband Raju at the time of Diwali. On that day also the accused had come there after consuming liquor. PW-1 Krishnabai told him that he should not have come in drunken condition. After that the accused abused her and took away Mangala with him. PW-5 Nandkumar also deposed about that incident at the time of Diwali. According to him, at the time of festival of Mahalaxmi, Mangala had come to his house along with her husband for Haldi Kunku. At that time, the accused had slapped her in his presence. 10. Evidence of PW-1 Krishnabai and PW-5 Nandkumar shows that after closing the shop, Nandkumar went to his house and then he came to know from neighbours that his mother had gone to the hospital as Mangala was burnt. Therefore, immediately he went to the Sassoon Hospital. Krishnabai also reached there. According to both of them, at about 10 or 10.30 p.m. when they went to the hospital, Mangala was there in burnt condition. When Krishnabai reached there, even accused No.2 Manohar, father of the present appellant, was sitting near 11 Cri-Appeal-564-91.sxw Mangala. Seeing her mother, Mangala began to cry and she told her mother as to till what time she should suffer from the trouble. She also said that her mother-in- law and father-in-law had started quarrel with her and her husband had then come under influence of liquor and he had started beating her in the courtyard by holding her hair. According to her, she could not bear this and therefore being fed up, she put kerosene on herself and immolated. She also stated that after burning, she fell down. Some discrepancies and improvements have been pointed out in the statements of witnesses, but none of them go the root to the case. 11. PW.4 Vinod is a cousin of the present accused. He was one of the persons, who came to the site immediately after the incident. According to him, he was watching "Chitrahar" on the T.V. At that time, suddenly there was a noise saying `Petle' i.e. "got burnt". He immediately rushed out and saw that Mangala was rushing from her house with fire on her person and she was saying "Petle" i.e. got burnt. According to him, the accused tried to extinguish fire and he also suffered burns on his hand. Then, her husband Raju, his father and Vinod himself took her to the Sassoon Hospital by auto rickshaw. As this witness did not support the prosecution on material particulars, he was declared hostile and was confronted with the portions marked "A", "B" and "C" in the police statement. The portions marked "A", "B" and "C" Exhibit 39 were proved by the 12 Cri-Appeal-564-91.sxw Investigating Officer PW-8 ASI Tannu. It appears that this witness had stated before the police that the accused suspected that his wife Mangala had illicit relations with Ananta and, therefore, he used to quarrel with her. Such quarrels were routine. He also stated before the police that Mangala had told that she had immolated herself due to mental harassment at the hands of the husband. However, he denied to have made any such statement. It appears that PW-4 Vinod, being the close relative of the accused, did not stick to the original statement. There was no reason for the Investigating Officer to record his statement falsely. In these circumstances, no reliance can be placed on the testimony of PW-4 Vinod. 12. Evidence of PW-8 ASI Tannu, ,the Investigating Officer and PW-3 Gulab Devre goes to show that during the same night, spot panchnama Ex.17 was prepared, several articles were found in the room. Some partly-burnt articles and clothes were also seized. There was also a plastic Can without lid smelling of kerosene. Besides that, there was a match box having sticks in it. A stove was lying at a distance of 15 inches from a Pat, i.e. was a short stool for sitting in the kitchen. 13. The evidence of the Investigating Officer and PW-2 Ramesh 13 Cri-Appeal-564-91.sxw Nagarkar goes to show that on 2.2.1990 i.e. the next morning at about 9.30 a.m., police called the panches in the Female Ward No.27 of the Sassoon Hospital where PW-1 Krishnabai produced the partly burnt clothes of Mangala. They included, Nylon Saree, blouse and the brassier. Each of these articles was smelling of kerosene. PW-2 Ramesh stated that he did not smell the clothes, but he admitted that the contents of the panchnama were correctly recorded. This witness was not cross-examined on behalf of defence. There was no reason for I.O. to falsely record that clothes were smelling of kerosene. This provides corroboration to written and oral dying declaration that she had poured kerosene before immolating herself. The dying declaration recorded by the Magistrate, the history recorded by the Medical Officer and the oral dying declaration before PW-1 Krishnabai and PW-5 Nandakumar goes to show that she had immolated herself and because of that she died on 5.2.1990. Therefore, there remains no doubt that she died suicidal death. Taking into consideration all these circumstances, it is difficult to accept the contention of the learned Counsel for accused that it was an accidental fire. 14. The learned Counsel for the accused tried to contend that the accused had himself tried to extinguish fire and in that he had also suffered burn injuries on his hand as is reflected in the medical certificate Ex.41. According to him, this 14 Cri-Appeal-564-91.sxw conduct of the accused, which is supported by the evidence of PW-4 Vinod, goes to show that accused had tried to extinguish fire and therefore it can be inferred that he had no intention nor he desired that his wife should commit suicide. As noted above, evidence of PW-4 Vinod cannot be believed because he has turned hostile on material aspects. The conduct of the accused actually goes against him. If he had no guilty mind, he would take his wife to the hospital, but the record reveals that he himself did not accompany her to the hospital. His father accused No.2 Manohar took her to the hospital, got her admitted and this fact is recorded in her case papers by P.W.7 Dr. Popat and this is also stated by PW-1 Krishnabai. Mangala died of burn injuries on 5.2.1990. Her husband was arrested on 7.2.1990. Since after the incident, he a was bsconding till he was arrested on 7.2.1990. His absconding for a period of about 5 - 6 days immediately after his wife had suffered burn injuries shows his guilty mind. The learned trial Court noted that the medical certificate Ex.41 of the accused Raju indicated that he had a small burn injury which was healed. Such a small burn injury could also be self inflicted to create evidence in support of his defence. Even if it is assumed that he had suffered such a small burn injury in the incident, that will not absolve him from the responsibility, if by his conduct he had abetted his wife to commit suicide. 15 Cri-Appeal-564-91.sxw 15. As per the Explanation to section 498A of IPC, "cruelty" mans any 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 life, limb or health (whether mental or physical) of the woman. It is true that in the present case, accused had never made demand for money from his in-laws nor he had pressurised his wife to bring money or other articles from her parents. The evidence also shows that for about 5 years or so, i.e. till birth of their second child, their relations were cordial. From the evidence, it appears that for about 8 - 9 months before this incident, the accused had started abusing and beating his wife. Her Dying declaration shows that the accused suspected her character and illicit relations with Ananta and on this ground he used to abuse and beat her. He had beaten her in the presence of her mother and brother. As per the dying declaration, just before the incident also he had beaten her in the courtyard of the house and that was seen by the boys living in the nearby hostel and, therefore, she could not tolerate it and being frustrated, she immolated herself. Making a false allegation of illicit relationship against wife itself is mental cruelty and it is likely to lead her to commit suicide. Taking into consideration the facts and circumstances, it can be held that accused had subjected his wife to mental and physical cruelty during the period of 8 - 9 months prior to the incident and also immediately before the incident. 16 Cri-Appeal-564-91.sxw 16. Section 113-A of the Evidence Act provides that when the question is whether the commission of suicide by a woman had been abetted by her husband or his relative and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband. As noted above, she was married to the accused on 13.12.1983 and she immolated herself on 1.2.1990 and died on 5.2.1990. Thus, she had committed suicide within 7 years of the marriage. The circumstances clearly show that the accused had subjected her to mental and physical cruelty on the allegation that she had illicit relations with one Ananta. In view of this, it can be presumed that the accused had abetted her to commit suicide. Therefore, the accused is liable to be convicted for the offence punishable under Section 306 as well as Section 498A of IPC. I find no fault with the conviction of the accused by the trial Court. 17. Coming to the point of sentence, it appears that the trial Court awarded the maximum sentence of imprisonment prescribed by law for the offence under Section 306 as well as for the offence under Sec.498A of IPC. In 17 Cri-Appeal-564-91.sxw my opinion, the sentence is excessive and too harsh. The fact that the relations between the husband and wife were cordial for about five years or so, till the birth of their second child, and that the accused had never made any demand for money either from the wife or from the in-laws, are the circumstances in his favour. It appears from the dying declaration of