( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 52 OF 1998 1. Ravindra Trimbak Patil .. Appellants Age. 27 years, Occ. Service, R/o. Pachora, Tq. Pachora, Dist. Jalgaon. 2. Smt. Lilabai w/o. Trimbak Patil Age 53 years, Occ. Household, R/o. As above. Versus The State of Maharashtra .. Respondent Shri K.C. Sant, Advocate for the appellants. Mrs. B.R. Khekale, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 18.12.2009 O R A L J U D G M E N T :- 1. This is an appeal preferred by original accused Nos. 1 and 2 who have been convicted of offences punishable under sections 306 and 498-A, both read with section 34 of the Indian Penal Code, by II Additional Sessions Judge, Jalgaon, in Sessions Case No. 271 of 1993, decided on ( 2 ) 07.02.1998. Each of the appellant is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for one month, for offence punishable under section 306 read with section 34 of the I.P.C. Each of them is also sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for one month for offence punishable under section 498-A read with section 34 of the I.P.C. Both substantive sentences are directed to run concurrently. 2. Briefly stated, it is case of the prosecution that deceased Shobha was wife of appellant No.1 and daughter-in- law of appellant No.2. Shobha married appellant No.1 on 26.04.1992 at Chalisgaon. Thereafter, she went to reside at the house of the appellants. However, eight days after the marriage, there was quarrel as it is said that mother of Shobha did not give proper respect to appellant No.2 and as per custom she did not touch feet of appellant No.2 on her first visit. Therefore appellant used to harass Shobha. Inspite of that Shobha continued to live with the appellants. Some time thereafter appellant No.1 gave telephone ring and ( 3 ) told P.W.3-Shivaji Marathe – father of Shobha that they were coming with Shobha and mediator More and Chavan. At that time both the appellants said that Shobha was not doing household work and they wanted divorce. When asked, Shobha complained that appellant No.1 was beating her and both the appellants were illtreating her, she was unable to stay with the appellants and she wanted to reside with her parents. Therefore, Shobha started residing with her parents. At that time Shobha complained that the appellants were demanding golden ring, sewing machine and some other articles and were harassing and beating her for that purpose. It is further prosecution case that sometime thereafter accused No. 1 had come with some persons to take Shobha to her parental house, but P.W.3-Shivaji Marathe refused. Appellant No.1 became violent and therefore P.W.3-Shivaji decided not to send Shobha to appellant No.1. Subsequently, Shobha filed maintenance application in the Court. However, there was compromise. Appellants had assured to treat Shobha well. Compromise pursis was reduced into writing and Shobha was sent to the house of the appellants. Two months thereafter P.W.3-Shivaji received message that Shobha had sustained burn injuries and was shifted to hospital. Therefore, they went ( 4 ) and met Shobha in the Civil hospital, Jalgaon, where Shobha stated that due to illtreatment, she had set herself on fire. 3. It is also prosecution case that on the day of incident i.e. on 26.07.1993 Shobha had written a letter/chit to her father, complaining therein that her brother-in-law and mother-in-law were harassing her and he should be taken away. That chit fell in the hands of appellant No.2 – mother-in-law and there was quarrel between appellant No.2 and Shobha. It is also prosecution case that Shobha was always beaten by both the appellants. Because of continuous illtretment, when mother-in-law had gone out to flour mill, her husband had gone to duty and brother-in-law had gone to school, while Shobha alone was in the house, she poured kerosene on her person and set herself on fire. Due to her shouts, neighbours came. The appellants were informed, who rushed home and took Shobha in injured state to Municipal Hospital at Pachora, where statement of Shobha was recorded. Thereafter, Shobha was taken to Civil Hospital, Jalgaon as she had serious injuries. At Jalgaon, statements of Shobha were recorded by Jalgaon Police, so also by the Executive Magistrate. On next day i.e. on 27.07.1993 at about 2.00 ( 5 ) p.m. Shobha died of the burn injuries. The first dying declaration of Shobha was treated as F.I.R. and crime was registered. Thereafter, after investigation, charge-sheet was sent against both the appellants for the offences punishable under sections 306 and 498-A both read with section 34 of the I.P.C. As against borhter-in-law – Sandip, who was 15 years of age, charge-sheet was sent to Juvenile Court. 4. The prosecution in all examined 11 witnesses. On behalf of defence, two witnesses were examined. After considering the evidence, the learned Additional Sessions Judge, passed order of conviction and sentence as stated above and therefore this appeal is filed by the appellants challenging their conviction and sentence. 5. There is evidence in the form of dying declarations, testimonies of witnesses and other circumstantial evidence. The postmortem report is admitted under Section 294 of the Cr.P.C., which is at Exh.20. It shows that deceased Shobha had sustained 98% burn injuries and she died as a result of shock due to 98% deep burns. ( 6 ) Panchanama of attachment of clothes of deceased made in the Municipal Hospital at Pachora and the same is also admitted under section 294 of Cr.P.C. Said panchanama at Exh.17 shows that they were half burnt pieces of saree and blouse. All were smelling of kerosene. Inquest panchanama Exh.18 is also admitted. It shows that there were burn injuries all over the body. At Exh.19, there is another panchanama, which is admitted under section 294 of Cr.P.C. under which P.W.3- Shivaji produced one note-book of Shobha as specimen handwriting of Shobha. 6. Spot panchanama Exh. 25 shows that the incident had occurred inside the kitchen. There was one room outside. There were burnt pieces of saree. Pieces of saree were smelling of kerosene. There was also water fallen on the flour. One match box and a tin of kerosene containing three liters kerosene were also seen at the spot. 7. P.W.2-Rajaram Jangalu has proved panchanama at Exh. 27, whereby post-card and a letter were attached under the panchanama. Same were produced by P.W.3-Shivaji-the father of Shobha. ( 7 ) 8. At Exh. 28 there is statement of P.W.3-Shivaji Marathe, who spoke mainly in terms of paras 2,3 and 4 above. He stated about the complaint of illtreatment. He also spoke about the appellant No.1 bringing Shobha, mediators and others after making a call at about 11.00 p.m. and Shobha saying that she was illtreated & beaten and therefore she would not reside with the appellants. Shobha was saying that there was demand of golden ring, sewing machine and some articles. P.W.3-Shivaji also sopke about earlier incident of disrespect shown by mother of Shobha by not touching feet of appellant No.2, at latter’s first visit to their house. P.W. 3-Shivaji also said that 8 – 15 days after Shobha started residing at his house appellant No.1 along with 2-3 persons had came. Appellant No.1 had became violent, when P.W.3- Shivaji refused to send Shobha. Thereafter, maintenance application was filed, but it was compromised. Father had brought xerox copy of compromise pursis marked “A” as document to show the terms of compromise, but same was not admitted in evidence, but only marked “A”. It was not certified copy. But fact remains that on the ground of illtreatment deceased had earlier refused to live at the ( 8 ) house of the appellants. She filed application for maintenance. She continued to live at the house of father for about 7-8 months and thereafter there was compromise. Immediately, thereafter the incident has occurred. It may be noted that the marriage had taken place on 26.04.1992, on 26.07.1993 the incident of burns occurred and Shobha died on 27.07.1993. 9. P.W.3-Shivaji proved two letters sent by Shobha. First is post-card letter dated 22.07.1993 addressed to both the appellants by Shobha and therein she requested for sending of suit-case for her. It was said therein that she was taking some medicine regularly and she was feeling good. Said post-card is at Exh.30. At Exh.31 a letter proved by P.W.3-Shivaji as a chit sent by Shobha to her advocate. Therein it is stated that earlier chit sent to the advocate was under pressure of her husband – appellant No.1. Daily she was beaten. Her younger brother-in-law also gave threat of beating. Appellant No.2 was also beating. She said that she wanted to live with her in-laws but what she should do. P.W.3-Shivaji stated that this chit was given by Shobha to her mother and then he handed over it to Shri More Advocate. ( 9 ) But Shri More Advocate said that maintenance application was still pending and due to said chit, they would not withdraw the maintenance application and he returned back the said chit to P.W.3-Shivaji. In my opinion, this chit describes the state of things just prior to incident. It is consistent with the allegations made in the dying declaration. 10. This evidence of P.W.3-Shivaji is further corroborated by P.W.4-Vasanti Patil, who was friend and classmate of deceased Shobha. She stated that whenever Shobha came to visit her parent’s house, she used to met her and Shobha used to complain that since golden ring was not given as promised in the marriage, her husband and mother-in- law were ill-treating her and beating her. It is true that this witness P.W.4-Vasanti admitted that her father and father of Shobha were friends and therefore there were family relation between them. Their houses were also nearby each other. Shobha had met her two days after the compromise. At that time, she did not tell about golden ring. The witness denied that Shobha was suffering from any mental disease. 11. Then there is evidence of P.W.5-Bhaskar Marathe, ( 10 ) uncle of deceased Shobha, who also stated that Shobha was illtreated and she lived at the house of father for 7-8 months and due to intervention of Vishwanath More, there was compromise and Shobha went to reside at her in-law’s house. In his cross-examination he said that on third visit, Shobha had complained to him about illtreatment at the hands of the accused. He also stated in the cross-examination that at the time of compromise the appellants had agreed not to illtreat Shobha. 12. There are three dying declarations. First is recorded by P.W.7-Yadavrao Patil, who was then working at Pachora Police Station. He stated that he received written memo from Medical Officer, Pachora Municipal Hospital informing that Shobha was admitted in hospital due to burn injuries. So, he went to the hospital, gave memo Exh.44 to the Medical Officer, calling upon the doctor to state if Shobha was in a position to speak and the doctor opined by putting endorsement on the letter itself at 12.40 that Shobha was in a position to give statement. Thereafter, A.P.I. recorded statement of Shobha, in which she stated that at 27.07.1993, she had written chit to her father in which she ( 11 ) complained that her mother-in-law and brother-in-law were harassing her and he should come and take her away. That chit fell in the hands of her motor-in-law and thereafter there was quarrel between mother-in-law and Shobha. Then, mother-in-law went out to flour-mill, husband went to duty and brother-in-law went to school. She was alone in the house. She set herself on fire. Her mother-in-law was demanding her to bring sewing machine from her parents and brother-in-law was beating her. 13. Second dying declaration is proved by the Executive Magistrate, P.W.6-Vithal Patil. It was recorded at Civil Hospital, Jalgaon. He stated that he went to Civil Hospital and enquired with the doctor. The doctor examined Shobha and told him that the patient was in a position to give statement. Thereafter, he recorded dying declaration Exh.39. It is a detail dying declaration in question-answer form. There is endorsement of doctor about the patient was in fit state of condition. First endorsement is at 3.30 p.m. Thereafter, there is endorsement of doctor at about 4.20 p.m. saying that statement was recorded in his presence. In the said detail statement, Shobha stated as above. She also ( 12 ) further stated that her husband Ravindra was always beating her on the instigation of his mother and brother. Due to beating by her husband, demands and harassment, she had set herself on fire. P.W.8-Dr. Teli examined at Exh.48 was present when A.P.I. Patil recorded dying declaration Exh. 46 and P.W.9-Dr. Sontakke examined at Exh.49 was present when Executive Magistrate recorded dying declaration at Exh.39. 14. One more dying declaration is also recorded when Shobha was in the Civil Hospital, Jalgaon. It is at Exh.50- A. It is proved by Dr. Kavita Sontakke, as given in her presence and it is consistent with the dying declaration recorded by the Executive Magistrate at Exh.46. Therein, Shobha specifically stated that for demand of sewing machine, golden ring and other articles, her husband and mother-in-law and brother-in-law were always beating her. On the day of incident there was quarrel between mother-in-law and Shobha. 15. One of the major arguments made by the learned advocate for the appellants is that Shobha was suffering from psychological disease and as such she might have committed suicide, though there was no illtreatment. He relied upon ( 13 ) admission given by P.W.3-Shivaji, in his cross-examination at Exh.28. P.W.3-Shivaji admitted in his cross-examination that Shobha was suffering from head disease and therefore in Exh. 31 – post-card it is written that she was taking medicine regularly. She was suffering from said sickness since prior to her marriage. Prior to her marriage and after marriage Shobha was taking treatment of D.W.1-Dr. Pradip Joshi. 16. Dr. Pradip Joshi is examined as defence witness at Exh.58. He stated that he was practising as a psychiatrist from 1980. He was not general practitioner. He was not in a position to recollect if in 1983 patient Shobha was brought to his hospital. Article “B”, which is produced by the accused and which was prescription was shown to him. He said that without hospital record, he was not in a position to give details of exact nature of illness of the patient. However, considering prescription, he stated that the patient might be psychotic patient. He further stated that when such tablets are given to psychotic patient, the patient remains in drowsiness till effect of the tablets. There are different types of psychotic diseases. Unless particular type of disease is primarily diagnosed, then only such type ( 14 ) of tablets are given (sic). He further stated that though patient feels drowsiness, his duly routine movements remain normal. Normally such tablets shown to him were available in any medical shop. However, from the tablets, the doctor was not in a position to tell exact nature of disease. 17. It is argued before me that it was duty of Investigating Officer to bring evidence regarding the same. In cross-examination, P.W.11-P.S.I. Kulkarni was asked about it. He said that during investigation it was revealed that Shobha was suffering from headache and was taking treatment of Dr. Joshi. He personally met Dr. Joshi, but the doctor told that unless case-papers are shown, he was unable to tell anything. P.S.I. Kulkarni also stated that he made enquiry regarding case-papers with parents of deceased Shobha and they told him that case-papers were not available with them, but one prescription was found which was issued by Dr. Joshi, but on the basis of same, the doctor could not tell anything and the prescription was included in the case-papers. So, it is also argued before this Court that here deceased Shobha was patient who was suffering from mental disease and as it was suppressed, benefit must go to the accused. ( 15 ) 18. It may be noted that the accused themselves are not coming out with any positive case. Their defence is of general denial. It is argued before this Court that it might be case of accident and not suicide. However, evidence of D.W.2-Supadu Chitte examined at Exh.59 showed that smoke was coming out of the house. So, he went near the door and saw a lady was lying in burnt condition. Therefore, he raised shouts. Adjoining ladies came, poured water. Thereafter, message was given to the appellants, who came and took Shobha to hospital. He had seen that Shobha was unconscious but that does not appears to be true. Two medical officers and two police officers and one Executive Magistrate have stated that Shobha was in a position to give statement and Shobha did give statement before them which was recorded at Exhs. 39, 46 and 50-A. 19. Those statements, post-card Exh.30 and chit Exh.31 clearly indicate that Shobha was normal. Dying declarations and the evidence of persons who were present at the time of recording of dying declarations, clearly indicate that Shobha was in a position to give said statements. There is nothing ( 16 ) on record to show that Shobha was suffering from abnormality. No suggestion is given to any prosecution witness that her conduct was abnormal just before the incident. It is true that P.W.3-Shivaji in his cross-examination para 6 admitted that he noticed that whenever Shobha was suffering from attack at that time she was not knowing what she was doing and when she used to recover from the attack, she was not remembering anything and therefore it appeared serious to him and he took Shobha to Dr. Joshi. But, it is common knowledge that mental diseases are curable or at least could be kept under control by medication. Evidence of two Medical Officers, two police officers, Executive Magistrate shows that Shobha was in a position to give statements. These statements show that Shobha was remembering all that happened on that day. There was no one to tutor her. Letter Exh.30 shows that she was taking medicines regularly. So, there is nothing to show that in a fit of mental attack, Shobha committed suicide. 20. The learned advocate for the appellants has taken me through entire evidence of witnesses and absolutely there is no sufficient reason to disbelieve the dying declarations ( 17 ) or other oral evidence, particularly that of the father (P.W. 3). The learned Sessions Judge in para 26 of his judgment considered that in dying declaration Exh.46, which was recorded by A.P.I. Patil of Pachora Police Station that there is no name of husband. The learned Sessions Judge has observed as under :- “26. It is further argued by the learned defence counsel that in first dying declaration which is at Exh.46 deceased made reference about mother-in-law and brother-in-law and not of husband. But in the subsequent two dying- declarations she named all three accused, i.e. husband, mother-in-law and brother-in-law. True it is that the dying declaration which is in first in time which is at Exh.46, was recorded immediately after her admission, but this fact cannot be ignored that, that time she was in shock and, therefore, the said dying declaration is very short and cryptic. It is also seen that the first aid was given to Shobha at Pachora Hospital and therefore she was shifted to Jalgaon hospital and at Jalgaon in her full senses she gave her dying declaration in detail and both the dying declarations recorded in Jalgaon hospital are consistent, there is no discrepancy and in both the dying declarations she stated that she married just one year prior to this incident. She was honest enough in stating that when she committed suicide, nobody was present in the house but she also referred that before committing suicide there was quarrel in her house as her mother-in-law had seen the letter which she was writing to her father. It is also brought on record in the dying declaration so also in the evidence of father of deceased that just two months prior to the incident Shobha came to her matrimonial house, prior to that ( 18 ) due to the illtreatment at the hands of accused, she was staying in her father’s house and during her stay in her father’s house, she filed maintenance proceedings which was compromised between the parties and she again come to her matrimonial house. In her dying-declarations she has stated that since she came to stay in her matrimonial house accused were insisting her that she should bring golden ring, sewing machine and other articles from her parents’ house. She also stated that her husband always assaulting her at the instance of his mother and brother. .......” 21. The learned A.P.P. relied upon case of Pratapaneni Ravi Kumar alias Ravi and another V/s. State of Andhra Pradesh. Etc. AIR 1997 S.C.2810. In that case in the first dying declaration recorded by Police, immediately after deceased had gained consciousness after attack, names of all accused were not given. However, in second dying declaration recorded by the Magistrate, after half an hour later, names of all accused were stated. There was no evidence to show that in between recording of the statements, anyone was allowed to go near the deceased. Further details as given in second dying declaration cannot be treated as improvement over the first one. So second dying declaration was relied upon. The same is case in this matter also. There is nothing on record to show that the parents and other relatives of deceased Shobha had met Shobha before two dying ( 19 ) declarations were recorded at Jalgaon. It may be noted that when first dying declaration was recorded, Shobha must be under shock and therefore I fully agree with the observations made by the learned Sessions Judge. 22. The learned A.P.P. relied upon case of Gopal Mahadeo Tambada V/s. The State of Maharashtra, 1997 Cri.L.J. 2425, wherein this Court observed that merely because witnesses being Police Officers, is no reason to disbelieve them. The witnesses not having any grudge or rancour against the accused. Presumption that a person acts honestly would equally apply to such a witness. Same is true of the Executive Magistrate, Doctors and two Police Officers, who proved dying declarations. 23. The learned advocate for the appellants also cited certain authorities. First is Vithal Baliram Dhamne and Ors., V/s. State of Maharashtra, 1996 (1) Mah.L.R.105. That case is mainly decided on the facts of that case. However in para 4 it is stated that under Section 498-A of I.P.C. the standards of proof of cruelty are higher in degree in criminal law than in civil and the intention or mene rea on ( 20 ) the part of one spouse to injure the other is an essential element in criminal case and the conduct of cruelty has to be proved beyond all reasonable doubt. The adjuctive ‘wilful’ qualifying the word ‘conduct’ contemplates obstinate or deliberate behaviour on the part of the offender for it to amount to ‘cruelty’ and the term ‘wilful’ conduct is thus explicit in character. It is not every harassment or every type of cruelty that would attract Section 498-A. It must be established that beating and harassment was with a view to force wife to commit suicide or to fulfill illegal demands of husband and in-laws. It may be noted that because of such conduct in the past, deceased Shobha refused to live with the accused and she lived with her parents for 8-9 months. Thereafter, there were assurances and compromise. Therefore, Shobha went to reside with the appellants. Shobha stated that daily she was beaten by her husband & her mother-in-law. Daily they were quarreling with