1 Cri.Appeal No.180-1997 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.180 OF 1997 Sanjay Mahadev Salunkhe ..Appellant Aged : 27 years, resident of Akola (Wasud), Tauka Sangola, District Solapur. V/s. The State of Maharashtra ..Respondent Mr.M.A.Patil, Advocate, for the Appellant Mr.Y.M.Nakhawa, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 28TH JANUARY, 2011 ORAL JUDGMENT . This Appeal is directed against the appellant's conviction for the offence punishable under Sections 498-A and 306 of the Indian Penal Code and sentence of rigorous imprisonment for one year with a fine of Rs. 1000/- and rigorous imprisonment for five years with a fine of Rs.3000/- imposed on the two counts by the learned Additional Sessions Judge, Pandharpur, District Solapur by 2 Cri.Appeal No.180-1997 Judgment dated 20 th March, 1997 on conclusion of Sessions Case No.113 of 1993 before him. 2. Facts which are material for deciding this Appeal are as under :- The victim was married to the appellant on 30 th November, 1992. She committed suicide on 8 th July, 1993 by setting herself on fire. She sustained 100% burns and died as a result of those injuries. Before that, she had made Dying Declaration before the Executive Magistrate stating that she had committed suicide on account of her husband's habit of returning late. After her death, a report was made by her father whereupon an offence was registered and investigation commenced. On completion of investigation, police sent Charge sheet before the Court of Judicial Magistrate First Class, Sangola, District Solapur, who committed the case to the Court of Sessions at Pandharpur. 3 Cri.Appeal No.180-1997 3. Since appellant along with his mother had been charge sheeted, the learned Additional Sessions Judge charged both of them for the offence punishable under Sections 498- A and 306 read with Section 34 of the Indian Penal Code. Since both the appellants pleaded not guilty to the charges framed, the learned Additional Sessions Judge put them on trial at which the prosecution examined in all seven witnesses in its attempt to bring home guilt of the accused persons. Upon consideration of the evidence tendered in the light of defence of denial of complicity in any ill treatment or abetment to commit suicide, the learned Additional Sessions Judge acquitted the appellant's mother of both the charges but convicted and sentenced the appellant as mentioned in the earlier part of this Judgment. Aggrieved thereby, appellant has preferred this Appeal. 4. I have heard the learned Counsel for 4 Cri.Appeal No.180-1997 the appellant and the learned APP for the State. With the help of learned Counsel I have gone through the record. P.W.1 Dr. Mallikarjun Revappa Pattanshetti had examined the victim when she was alive after she had sustained burn injuries and on her found to be medically fit to make statement. He stated that in his presence Executive Magistrate, Sangola recorded victim's Dying Declaration. After victim succumbed to burn injuries, Dr. Mallikarjun conducted autopsy on the dead body and found that victim had died as a result of 100% burn injuries sustained by her. 5. The prosecution examined Mahmad Hanif Usman Mulani and Farooq Gani Mulla as P.W.2 and P.W.3 to prove that they had accompanied the appellant to the house of the first informant victim's father for making a demand of money. Both these witnesses, however, turned hostile. 5 Cri.Appeal No.180-1997 6. P.W.4 Rukmini Vithal Pawar is victim's aunt and P.W.5 is victim's father Mahadev, who is possibly veterinary surgeon. Both of them stated about ill treatment to the victim. P.W.4 Rukmini Pawar states that the victim had complained that since there was demand of Rs. 10,000/- which was not fulfilled she was ill treated. She also stated that the victim had reported that her husband used to come late. P.W.5 Mahadev Shinde victim's father stated that about one and half months after the marriage, the victim was brought to his house and she reported that there was some dispute about giving Gold ornaments on Makar Sankranti as informed by her mother-in-law. Mahadev is reported to have told Vaishali that it was not possible for him to provide Gold ornaments, whereupon the victim was complained if that was so then Mahadev would have to leave her for co-habitation. The witness further states that when he visited the house of appellant on the 2 nd day of Makar Sankrant, he 6 Cri.Appeal No.180-1997 was asked by the accused, who is acquitted as to why Mangalsutra was not provided to the victim. The victim knew sewing and there was an old sewing machine at the house of Mahadev. The appellant seems to have admitted the victim to stitching classes at Sangola, presumably in order that the victim should make some income. The victim and her husband wanted the sewing machine to be given to her but Mahadev expressed inability. In March, 1993, demand of a sum of Rs.10,000/- was allegedly made by the victim and her husband in order to purchase some property. This came in inland letter which is at Exhibit 22. When the victim and her husband visited Mardi on 11 th and 12 th March, 1993, Mahadev had gone for a trip to Kanyakumari, possibly with his own unmarried daughter Sharayu. This demand was allegedly again repeated when the appellant visited P.W.5's house with Mahmad Hanif Usman Mulani and Farooq Gani Mulla who have turned hostile. The appellant allegedly also sent a 7 Cri.Appeal No.180-1997 telegram calling the father-in-law to his place. When Mahadev visited the place, the appellant is alleged to have told him that he had sent the telegram because he wanted money for purchase of plot. The victim then wrote to the witness Mahadev on 29 th June, 1993 that the appellant was sick and Mahadev should visit her. Mahadev claims that when he visited, he found appellant working in appellant's laundry. Thereafter, on 7 th July, 1993, the news of death of the victim reached the father. 7. P.W.6 Rajendra Murlidhar Bhambhare, Senior Intelligence Officer conducted investigation into the matter and P.W.7 Arun Namdev Bangale had registered FIR. According to the learned Trial Judge, the prosecution had duly proved demand of money by the appellant when co related with the fact that the victim had committed suicide within about seven months of her marriage. The learned 8 Cri.Appeal No.180-1997 Judge found that the evidence of P.W.4 Rukmini Vithal Pawar and P.W.5 Mahadev Gajanan Shinde coupled with the letters exchanged was enough to draw the conclusion that the victim was subjected to cruelty and also the conduct of the appellant drove the victim to commit suicide. 8. The learned Counsel for the appellant questions these conclusions. I have carefully gone through the Dying Declaration which is marked as Article A as also various letters written by the appellant as also the victim. Dying Declaration itself makes it clear that the victim had committed suicide not only on account of her ill treatment for any unlawful demand but because her husband used to return home late. This Dying Declaration was recorded by Executive Magistrate in the presence of P.W.1 Dr. Mallikarjun Revappa Pattanshetti, who had certified that the victim was medically fit to make statement. 9 Cri.Appeal No.180-1997 Therefore, there is no reason to disbelieve the version of Dr. Mallikarjun Revappa Pattanshetti that victim did make such a statement. It is not that the victim had left appellant without any blame or had claimed she had caught fire accidentally. She had blamed him and specifically stated that she committed suicide because the appellant used to return home late. Therefore, it is not open for the prosecution to contend that the Dying Declaration is unreliable, since it was recorded in the absence of victim's relations. Now, if in the Dying Declaration the victim has not made any statement about ill treatment or any unlawful demand being the cause of her commission of suicide, the learned Trial Judge should have taken into consideration this aspect and extended benefit of doubt to the appellant. 9. This is not all. The learned Trial Judge seems to have been influenced by the 10 Cri.Appeal No.180-1997 fact that the appellant had raised a demand of Rs.10,000/- from the victim's father. The letter in which such demand is made is at Exhibit 22. The entire tenor of this letter that the appellant had made entreaties to his father-in-law to advance a sum of Rs.10,000/- since he had to take the entire property and avoid a partition and had stated that he would refund the money as soon as possibly within a period of three to four months. This cannot be equated to demand of money. If the appellant did send the telegram to his father- in-law and asked for money because he wanted to purchase some property, that cannot be said to be an unlawful demand for which victim was subjected to any ill treatment. There is nothing to show that Post Card at Exhibit 24 was sent by the victim to her father at the instance of the appellant making a false statement that the appellant was not well. There is nothing to show that the appellant was in fact hail and hearty. The Post Card at 11 Cri.Appeal No.180-1997 Exhibit 24 does not show that the victim had complained of any ill treatment or harassment. One of the letters filed on record which is at Exhibit 26 shows that the victim in fact wanted her books to be sent, since her mother- in-law wanted that she should study further and complete her 12 th std examination and appear for D.Ed.. Now, this would rule out any harassment or ill treatment. There is another letter by the victim at Exhibit 27 which is dated 14 th May, 1993 (wrongly mentioned as 1992). In this letter, the victim has, in fact, a grievance that her father had mentioned about the expenses of Rs. 20,000/- in searching a proper groom for her and she had also a grievance that her father also stated so in presence of her in-laws which hurt her. There is another Post Card at Exhibit 28 dated 5 th May, 1993 where the victim had stated that several persons came to see Bhau, (possibly appellant) when Bhau had under gone some operation but victim's father did 12 Cri.Appeal No.180-1997 not come. She mentioned that said Bhau was expecting Mahadev to come and therefore, she had to suffer taunts. She reminded her father, since she had to stay with her husband, her father should not give more importance to money than humanitarian consideration. 10. The learned APP stated that the letter at Exhibit 22 would in fact show that the victim was suffering. The letter at Exhibit 22 is in two parts. The first part is written by the appellant and the second part by the victim. The second part which is addressed to victim's unmarried sister Sharayu mentions that Sharayu was very fortunate that she saw so many places. The victim then blamed her own fate and stated that she had come with such a misfortune. According to the learned APP, this would show that the victim was not happy. As rightly pointed out by the learned Counsel for the appellant that this has 13 Cri.Appeal No.180-1997 reference to the trip to Kanyakumari which Mahadev had made where possibly Sharyu had accompanied him. Therefore, if she expressed her feelings that her unmarried sister Sharayu is very lucky, it could not be equated to any ill treatment at the matrimonial home. 11. Considering the evidence tendered, though the victim did commit suicide within seven months of the marriage, the evidence is ambivalent and points to the appellant's returning home late as the cause of the victim's suicide. This can by no stretch of imagination equated to cruelty as defined under Section 498A of the Indian Penal Code or could be said to be provocation enough for the victim to commit suicide and therefore, victim's conviction for the offence punishable under Sections 498A and 306 cannot be sustained. 12. Criminal Appeal is, therefore, 14 Cri.Appeal No.180-1997 allowed. The order convicting the appellant for the offence punishable under Sections 498A and 306 of the Indian Penal Code and sentences of rigorous imprisonment for one year with a fine of Rs.1000/- and rigorous imprisonment for five years with a fine of Rs.3000/- are set aside. The appellant is acquitted of the charges levelled. His bail bonds stand cancelled. (R.C.CHAVAN, J.)