* 1 * Cri.Appeal­503/1992 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 503 OF 1992 1. Moula Elahi Bapulal Tamboli Aged about 23 years, Occ: Private Service 2. Iqbal @ Pintu Bapulal Tamboli Aged about 18 years, Occ : Education 3. Madina w/o. Bapulal Tamboli Aged : 46 years, Occ: Household, All Resident of Yelavi, Taluka­ Tasgaon, District­Sangli ....Appellants/Orig.Accused nos.1 to 3 : V E R S U S : The State of Maharashtra ....Respondent/Orig.Complainant W I T H SUO MOTO PETITION NO. 15 OF 1992 IN CRIMINAL APPEAL NO. 503 OF 1992 [FOR ENHANCEMENT OF SENTENCE] The Court on its own motion : V E R S U S : 1. Moula Elahi Bapulal Tamboli 2. Iqbal @ Pintu Bapulal Tamboli .....Orig.Accused nos.1 and 2. Mr. R.R. Bhonsale, Advocate for the appellants in Cri.Appeal­503/92 & for original accused nos.1 & 2, in Suo Moto Petition No.15/1992. Mrs. P.H. Kantharia, APP for State­respondent in Cri.Appeal­503/92. CORAM : SMT. R.P. SONDURBALDOTA, J. JUDGMENT DATED : 2nd SEPTEMBER, 2010. JUDGMENT : 1. The appellants herein by preferring this Appeal challenge their conviction under Sections 498­A, 323 read with Section 34 and 306 read with Section 109 Indian Penal Code and the punishment * 2 * Cri.Appeal­503/1992 awarded to them therefor, by the judgment and order dated 24th August, 1992 passed by the Sessions Court, Sangli. 2. The brief facts of the prosecution case are that, on 4th January, 1991 at about 2.00 p.m. Farida, the wife of appellant no.1 set herself on fire by pouring kerosene on her body. The mother­in­law extinguished the fire and the father­in­law brought her to Civil Hospital, Sangli for treatement. P.W. 7 Special Executive Magistrate recorded her statement at about 5.00 p.m. which has been treated as a dying declaration. Farida died on 5th January, 1991 at about 4.45 p.m. Based on the contents of the dying declaration, a complaint came to be registered by P.W.4­ Police Officer vide C.R. No.2 of 1991 for the offences punishable under Section 498­A, 323 read with Section 34 and 306 read with Section 109 Indian Penal Code. After completion of investigation of the offence registered, charge­sheet came to be filed and the appellants were tried for the offence. The appellants were arrested on 6th January, 1991. 3. The learned Sessions Judge accepted the evidence on record and convicted the appellants to suffer R.I. of 3 years and pay fine of Rs.1,000/­ for the offence punishable under Section 306 read with * 3 * Cri.Appeal­503/1992 Section 109 Indian Penal Code and for R.I. of one year with fine of Rs.500/­ for the offence punishable under Section 498­A read with Section 34 Indian Penal Code. 4. The prosecution in all examined seven witnesses out of which P.W.1 and P.W.3 are the panch witness for inquest panchanama and spot panchanama respectively. P.W.4 is the police officer, who is the complainant in the case. P.W.5, the Head­Constable had carried on some investigation. P.W.6 is the Doctor who has conducted post­ mortem examination on the body of Farida. P.W.7 is the Special Executive Magistrate who recorded the dying declaration of Farida. P.W.8 and 9 are the Investigation Officers. P.W.2 is the brother of the deceased. 5. Perusal of the record, shows that the entire case of the prosecution is solely dependent upon the dying declaration of Farida. The evidence of brother of Farida is of no assistance either to the prosecution or to the defence, because this witness does not know anything about the incident stated by Farida in her dying declaration. The defence of the appellants has been of denial. It has also been contended by them that the dying declaration recorded by P.W.7 is * 4 * Cri.Appeal­503/1992 not a good piece of evidence since there are several infirmities in it. According to them, P.W.7 is also an interested witness. It is next contended that there is no certainty about the time of death of Farida. There is material on record to indicate that Farida had died on 4th January, 1991 at about 4.45 p.m. i.e. within 15 minutes of her admission to the hospital. If that is accepted, the dying declaration recorded by P.W.7 between 5.00 p.m. and 5.30 p.m. would make the dying declaration, a suspect document. Since the dying declaration is the sole basis of the case of the prosecution, with the dying declaration becoming a suspect document, the entire case would be demolished. 6. Perusal of the entire record of the case including the dying declaration, deposition of witnesses and the other record, in my opinion, does not support the contentions raised as regards the dying declaration recorded by P.W.7. P.W.7 cannot be said to be an interested witness as alleged, merely because she belongs to the same caste as the deceased. The dying declaration undisputedly is not recorded in the mother tongue of the deceased, which is only a dialect, but, it is recorded in marathi. However, there is nothing to show that the * 5 * Cri.Appeal­503/1992 deceased was not proficient in marathi, or atleast not comfortable with the language. As regards P.W.7 is concerned, she was merely doing her duty and could not have known the allegations made by Farida as regards the quarrel discussed in the dying declaration, because, as can be seen from the record this was known only to four persons, who are the appellants and the deceased. Farida had not disclosed this even to her brother. Therefore, I am not impressed with the arguments advanced to dislodge the dying declaration. 7. The contents of the dying declaration, as can be seen thereafter, are not sufficient to fasten the guilt upon the appellants. While recording the dying declaration, when Farida was asked for reason to set herself on fire, she stated that four days prior to the incident, appellant no.3 had demanded Rs.2 from her for going to Cinema. When Farida told him that she did not have the money with her, he asked her to go to anybody and get him the money. When Farida complained about this to her mother­in­law and husband, the husband said that she was lying and assaulted her with fists and kicks. As Farida could not bear that, she set hereself on fire. It is to be noted here that Farida did not set herself on fire immediately * 6 * Cri.Appeal­503/1992 after this alleged incident of assault. She set hereself on fire four days thereafter. Immediately after the alleged incident, she alongwith her husband had visited her brother­P.W.2, but, she did not disclose the incident to him. The dying declaration refers to a solitary instance. An innocuous demand made by the younger brother­in­law (appellant no.3) of money to watch a movie. When Farida was unable to meet it, he insisted by saying that she may get the money from anyone but give it to him. This comment by him is not something which would drive a person to take her life. Similarly, the complaint in the dying declaration against the mother­in­law (appellant no.2) is that she did not believe Farida when she complained about appellant no.3 and passed some comments. There is allegation that appellant no.2 assaulted her. Also there are no particulars of the comments made by her. Therefore convictions of appellants no.2 and 3 on no count can be sustained. 8. As regards appellant no.1­the husband is concerned, it is alleged that after Farida complained to him about the comment of appellant no.3, he did not believe her and said that she was lying. He also assaulted her with fists and kicks. Farida was pregnant by few * 7 * Cri.Appeal­503/1992 weeks. It is not known as to on which part of the body of Farida were the kicks and fist blows were given by appellant no.1. In any case, immediately after that incident she had visited her brother accompanied by the husband without making any issue about the same. Though she had an opportunity to complain about the behaviour of the accused persons, she did not deem it necessary to do so. The learned counsel for the appellant, submits that, even if the statements made by Farida in the dying declaration are to be taken at the face value, the same would hardly be covered by the meaning of cruelty given in the explanation to Section 498­A Indian Penal Code. The same reads as follows : 498­A Husband or relative of husband of a woman subjecting her “ to cruelty­ Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation­ For the purpose of this section, cruelty means­ “ ” (a). any wilful 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; or (b)............... * 8 * Cri.Appeal­503/1992 . The incident alleged in the dying declaration would not be covered by the meaning of cruelty set out in the provision “ ” above. P.W.2 brother of Farida in his cross­examination stated that mother of Farida is a lunatic. It is not known whether Farida was also an extra sensitive person who would take even a trifle issue to the heart and feel driven to commit suicide. In these circumstances, in my opinion, the conviction of appellant no.1 also cannot be sustained. 9. The genesis of the entire incident was the demand for money by appellant no.3 and his comment when Farida expressed her inability to pay money. The learned Sessions Judge at paragraph­1 of the impugned judgment while narrating the prosecution case and at paragraph­15 while giving reasons for the decision attributes a very serious comment to appellant. He is alleged to have asked Farida to share bed with anybody and get money for cinema. Such a comment had really been made would undoubtedly be very insulting and humiliating. Perusal of the original dying declaration shows that the comment made was not as alleged above but was an innocuous comment that she may get money from anybody. The record contains * 9 * Cri.Appeal­503/1992 translation of the dying declaration into English. Apparently, translated version was looked into for the purpose of deciding the case. The comment of appellant no.3 that Farida can get the money from anyone, has been translated as appellant telling her that she “ should sleep with anybody to get the money . By no stretch of ” imagination that can be the translation of the contents of the answer. Further, there is another serious error of the translation of the very answer. In the original, Farida is making allegation of assault only against her husband and not against her mother­in­law. In an answer to the next question, she had stated that after she told the comment of appellant no.3, her mother­in­law did not believe her and she passed some comments thereon. Obviously, the learned Sessions Judge had not read the original dying declaration and went only by its translation in English. Had he been careful enough to go through the original dying declaration, he could have noticed the above­mentioned aspects of the matter. 10. In the circumstances, the appeal is allowed. The impugned judgment and order dated 24th August, 1992 passedin Sessions Case No.40 of 1991, is set aside. The appellants are acquitted of the * 10 * Cri.Appeal­503/1992 offences punishable under Sections 498­A, 323 read with Section 34 and Section 306 read with Section 109 of Indian Penal Code. Their bail bonds stands cancelled. 11. At the time of admission of the appeal on 24th September, 1992 this court had suo­moto issued notice of enhancement against appellants no.1 and 2, being Suo Moto Petition No. 15 of 1992. In view of acquittal of the appellants, the notice stands discharged. Suo Moto Petition No.15 of 1992 stands dismissed as infructuous. [SMT. R.P. SONDURBALDOTA, J]