1 APEAL 651 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APEAL NO.651 OF 1990 1. Anantrao Gyanaba Pawar, Aged 60 years. 2. Sou. Savitribai Anantrao Pawar, Aged 55 years. (died during the pendency of appeal). 3. Mrityanjay @ Sambhaji Anant Pawar, Aged 32 years. 4. Sau.Vijaya Vishwasrao Salunkhe, Age 27 years. All Residing at 44, Shukrawar Peth, Satara. .....Appellants V/s. The State of Maharashtra ..... Respondent WITH CRIMINAL APPEAL NO.884 OF 1990 The State of Maharashtra ..... Appellant V/s. 1. Anantrao Gyanaba Pawar, Aged 60 years. 2. Sou. Savitribai Anantrao Pawar, Aged 55 years. (died during the pendency of appeal) 3. Mrityanjay @ Sambhaji Anant Pawar, Aged 32 years. 2 APEAL 651 of 2010 4. Sau.Vijaya Vishwasrao Salunkhe, Age 27 years. All Residing at 44, Shukrawar Peth, Satara. .....Respondents Ms.V.V.Thorat with Mr.Ravi Kadam, for the appellants in Appeal No.651 of 1990 and for the respondents in Appeal No.884 of 1990. Mrs.V.R.Bhosale, APP, for the appellant in Appeal No.884 of 1990 and for the respondent in Appeal No.651 of 1990. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 15th OCTOBER, 2010 ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) : 1. The appeal No.651 of 1990 is directed against the judgment and order of conviction recorded by the Additional Sessions Judge, Satara, dated 10-09-1990, by which the learned Additional Sessions Judge convicted all the accused under Section 235(2) of the Code of Criminal Procedure, for the offence punishable under Section 498(a) read with Section 34 of Indian Penal Code and sentenced them to suffer rigorous imprisonment for three years and a fine of Rs.1,000/- was imposed on each of the accused and in default to suffer rigorous imprisonment for three months. Similarly, the accused have also been convicted under Section 306 read with Section 34 of Indian Penal Code, for which also same sentence is awarded. 2. Being aggrieved by the aforesaid order of the learned 3 APEAL 651 of 2010 Sessions Judge, this appeal is filed by the appellants/accused. It is pointed out that during the pendency of this appeal, the original accused No.2 Savitribai Anantrao Pawar has died. The learned APP has also confirmed the said aspect. Accordingly, the appeal stands abated as against appellant/accused No.2. Now, the appeal is required to be considered in connection with appellant/accused Nos.1, 3 and 4 only. The State has also filed an appeal bearing No.884 of 1990 for enhancement of sentence of the accused. 3. The appellant/accused No.1 is the father of appellant/accused Nos.3 and 4. As pointed out earlier, appellant/accused No.2 i.e. mother-in-law of the deceased, has already died during the pendency of the appeal. 4. The prosecution case in brief, is as under : - The marriage of Sushma (deceased) with accused No.3 was solemnized in the year 1987. The complainant Vithoba Gangadhar Surve, father of the deceased, had given various household items to her daughter at the time of marriage, including the gold ornaments. Initially, for some time, the deceased was treated with love and affection after the marriage. Thereafter, accused started illtreating the victim by demanding certain items, which ultimately were given by the brother of the deceased. It is the case of the prosecution that on 14-06-1989 at about 8.30 a.m., the 4 APEAL 651 of 2010 deceased committed suicide by pouring kerosene on her body and set herself ablaze on fire. The deceased thereafter, was taken to Civil Hospital, Satara. Mr.Eknath Anpat, Police Head Constable, recorded the dying declaration of the deceased at about 9.00 a.m. The Executive Magistrate was called by the doctor, who recorded her second dying declaration at about 10.00 a.m. Thereafter, on the same day, PSI Dalvi recorded dying declaration of the deceased at 4.00 p.m. Accordingly, PSI Dalvi registered the Medico Liego case bearing No.1827 at Satara City Police Station and started the investigation. The father of the deceased lodged a complaint on the same day and it was registered as C.R.No.257 of 1989. On the next day, the victim Sushama died at the hospital. On completion of investigation, PSI Dalvi submitted chargesheet before the Chief Judicial Magistrate and the accused persons committed for trial to the Sessions Court, Satara. 5. On 13-08-1990, the Additional Sessions Judge framed the amended charge against the accused persons, as under - 1. On 14-06-1989 at about 8.30 a.m., Sau.Sushama Mruttyanjaya @ Sambhaji Pawar, aged 22 years, committed suicide by pouring keresone on her person in the house bearing Municipal House No.44, Shukruvar Peth, Satara and that you accused No.1 and 2 being her father-in-law and mother-in-law respectively, as well as accused No.3 being her husband and you accused No.4 being sister of accused No.3, in furtherance of common intention, abetted the commission of the said offence of committing suicide 5 APEAL 651 of 2010 resulting into act of burning herself by pouring kerosene on her person and by subjecting the said Sau.Sushama to cruelty harassment and illtreatment and thereby committed an offence punishable under Section 306 read with Section 34 of the I.P.C. And within my cognizance. 2. Secondly, that you accused No.1 and 2 being her father-in-law and mother-in-law respectively, of the deceased Sau.Sushama Mruttanjay @ Sambhaji Pawar, and you accused No.3 being the husband of the deceased Sushama and as such, you accused Nos.1, 2 and 4 being the relative of the deceased Sushama, in furtherance of common intention, prior to 14th June, 1989 subjected the deceased Sushama Mruttyanjay @ Sambhaji Pawar, to cruelty, amounting to willful demand, which was of such a nature as was likely to drive the deceased Sushama to commit suicide by burning herself by pouring kerosene and subjected the said deceased Sushama, to cruelty, harassment and illtreatment with a view to coercing her or any person related to her to meet many unlawful demand for any property or valuable security or on account of failure by her or any person related to her, to meet such demand and thereby committed an offence punishable under Section 498(a) read with Section 34 of the I.P.C., and within my cognizance. 6. The accused did not plead guilty to the aforesaid charges. The learned Additional Sessions Judge recorded the evidence adduced by the prosecution and on conclusion of the trial, passed an order of conviction, which order is challenged by the appellants/accused in appeal No.651 of 1990. The State has also filed an appeal bearing No.884 of 1990 for enhancement of the sentence. 7. On behalf of the prosecution, ten witnesses were examined. Mr.Ramesh Kashinath More was examined as (P.W.1) who is the Panch 6 APEAL 651 of 2010 witness. As per the evidence of the said witness, on 14-06-1989, he was called by the police to act as a Panch at 10.00 a.m. At that time, other Panchas namely Pradeep Vhatkar was also present. They were called in the house of the accused person. The said witness has stated in para 2 of the examination-in-chief that on the southern side corner of the room, there is a place for offering prayers. One wall shelf in which the family utensils were kept, was also found in the room. This shelf was on the southern side wall. One stove and one pot containing hot milk, were kept inside this wall shelf. One stove which was cleaned and having carried the name, “given to Sushma as Andan” was found inside the room. One tin containing kerosene was found near the stove. The above stove (Article A) was identified by the said witness as the same before the Court. The stove (Article A) was tried to be operated by the police in his presence. The stove was found in working condition. The tin (Article B) containing kerosene, is also identified by the said witness which was shown to him. 8. One written paper was found below the mattress by the police, which carried the date as “13-06-1989” and had carried the words on the top of it as “Shri Sainath Prasanna”. The last line in said chit reads as “vkiyh lq"kek LoxZoklh bkkyh" (Your Sushama has died). During the course of the evidence, the said chit was shown to the said witness and he has stated that it is the same letter/chit which was recovered at the time of 7 APEAL 651 of 2010 panchanama and it carries his signature and other panchas. The said chit is marked as Article C. 9. In the cross-examination, he denied the suggestion that one cooker was found on the northen side of the southern wall shelf. In the cross-examination, he has stated that the work of drawing panchanama was continued for about four hours and no other persons were present at the time of drawing the panchanama, except himself and other police staff. The witness denied the suggestion that he himself did not lift the mattress and pillows. The drawn panchanama was also placed on record at Exh. 32. The panchanama described the place wherein the incident in question had occurred. In the Panchanama, it is mentioned that near the bathroom beside the south north wall and its centre, there is a bench, having iron angles and on its top, there is a plank on which there are two big pots of water called as Handa. There is a steel barrel of water kept on Handas and and below the bench, there is a red colour kerosene tin of five liters, having a handle to catch. As per the Panchanama, there is 1.5 liters kerosene in the tin. Besides the tin, there was a brass stove on which the name of Sau.Sushama has been inscribed. There is about ½ to ¾ liters of kerosene in the said stove and it was in good condition and gets no smell of kerosene. The English version of the Panchanama states that kerosene 8 APEAL 651 of 2010 appears to have been scattered on the floor of the said room and it is smelling as kerosene. However, the learned counsel appearing for the appellants pointed out that there is a mistake in the translation and as per the original Panchanama which is in Marathi, it contained the word “spread of water” and according to her, kerosene as such was not found, though smell of kerosene as per the Panchanama, was coming. As per the Panchanama, water also appears to have been scattered there. The alleged chit written by the deceased, which can be said to be suicidal note, was seized during the panchanama. 10. As per the Panchanama, the chit bears the english date on the first page and it is written as “13-6-1989” and below this date, it has also written as “Tuesday” in Marathi script. There are contents such as “Shri Sainath Prasanna” in red line in middle part . The chit commences with the words “Last Namaskar to dear Maternal uncle and maternal aunt i.e. (ekek vkf.k ekeh). It is pointed out during the course of arguments that the deceased used to call her father and mother as (ekek vkf.k ekeh), which fact is not in dispute. All the three pages of the said chit have been signed by the panchas and was seized by the police which was kept in envelope. Certain photographs were also seized during the panchanama. As per the Panchanama, brass stove having kerosene in it, kerosene tin without cap, with other articles have been seized by the police. 9 APEAL 651 of 2010 11. The prosecution has examined Dr.Avinash Dattatray Ashtekar (P.W.2) at Exh.33. It has come in the evidence of P.W.2 that he was on duty on 14-06-1989 and one Sushama was brought to the Civil Hospital by Mr.Sanjay Pawar. The history was narrated to him by the relatives of the patient regarding burning injuries received by the patient due to burning stove at about 8.00 a.m. He has examined the condition of the patient and patient had 100% burn injuries. But, the heirs on the head were not totally burnt. He has stated that the general condition of the patient was poor and pulse were weak. She was restless and panic, but she was conscious. She was not in a position to understand questions put to her. As per the evidence of the Doctor, he injected bottles of ringer lactate injection, tetanus toxide injection, anti-tetanus serum injection ampicillion (500 mgs). Doctor has further stated that the condition of the patient deteriorated as the time progress. He further stated that at about 11.00 a.m., injection fortwin was given and the said injection was rather more analgesic than sedative and the same is effective for 2-3 hours. 12. The Doctor (P.W.2) further stated that PSI Dalvi recorded the dying declaration at about 4.00 p.m. on 14-06-1989 in his presence. At that time, the patient was physically conscious and mentally sound. One chit was produced by the patient before PSI Dalvi in his presence and he put his signature and wrote necessary endorsements in his writing on 10 APEAL 651 of 2010 the dying declaration and the same bears his signature. It is produced on record and marked as Exh.34. The deceased died on the next day on 15-06-1989 at 2.00 p.m. He carried out the post-mortem of the dead body. 13. In the cross-examination, he admitted that he did not tell the Police Head Constable who recorded the dying declaration at about 9.00 a.m., that the patient was not in a position to understand the things properly (this was in connection with the first dying declaration when the patient was brought to the hospital). The Doctor has stated that the Nayab Tahasildar, Satara, was present in the hospital at about 10.00 a.m. and he was informed by the police to record the dying declaration of the patient. The Executive Magistrate after consulting him, recorded the dying declaration of the patient at about 10.00 a.m., in the presence of the doctor. The doctor has further stated that the relatives of the patient had visited the hospital from 10.00 a.m., to 4.30 p.m. He stated that the condition of the patient went on deteriorating after 6.30 p.m. The mouth and throat, had received 9% burns and patient was in a position to give answers. She could hear what they were talking. Patient had no burns on her ears and she used to give answers to the questions put to her. 14. The statements of the deceased recorded on 14-06-1989 at 4.00 p.m., find place at Exh. Nos.34 and 73. In her said statements, the 11 APEAL 651 of 2010 deceased stated that in the morning, she was brought in the hospital for medical treatment, as she tried to burn herself by pouring kerosene on her person. She has stated that it is not correct to say that she received injuries in view of aggrieved flame of stove. In the said statement, she has stated that at the time when the said dying declaration was recorded, she was in pain and could not explain properly what she wanted to state. But, her husband, father-in-law, mother-in-law and sister-in-law were illtreating her without any cause and was beating her from time to time. Her statement which is recorded reads as under : - “I, Sau.Sushma Mrutyunjay Pawar, age 22, Occu : Household, r/o 44, Shukrawar Peth, Satara : “Now present in Civil Hospital, Satara, states that today, in the morning I was brought in hospital for medical treatment as tried to burn myself by pouring kerosene on my person. It absolute false that I have stated before police and Magistrate that by aggrieved flame of stove it was burned. That time, it was paining to my person hence I cannot explain, what I have stated. But my husband, father- in-law, mother-in-law, sister-in-law were illtreating me without any cause and my husband was beating me from time to time. Now I am in absolute conscious and just what I have stated is correct. Before setting fire to me by this way myself, one chit which is written in the name of my father is kept under the Gadi, is written by me. Now the chit which was shown to me by police is the same and written by me. It’s contents are correct. My husband, sister-in-law Vijaya, parents-in-laws were illtreating me from time to time, I could not bare this illtreatment, hence I tried to set fire myself and tried to commit suicide. Sd/- Sau.Sushma Mrutyunjay Pawar 12 APEAL 651 of 2010 Today, in the morning I cannot sign on my statement because at that time my hands and person was paining, also my mental condition was not good. So I have affixed my thumb impression on it. Now, my mental condition is good and hence, I have signed on it. Sd/- Sau.Sushma Mrutyunjay Pawar 15. The prosecution has examined Mr.Shankar Laxman Chavan (P.W.3) at Exh.36. He was the panch witness. On 15-06-1989, he was called by the police in police station along with other panchas Mr.Krishna Ghorpade. One survey was present at that time at the police station and one chit was lying on the table. The chit was attached in presence of said panchas. The said witness confirmed the contents of the said chit at the time of evidence. The said panchanama is marked as Exh.37. 16. So far as the said Panchanama is concerned, it was drawn on 15-06-1989, which is on page 239. The said panchanama was proved during the course of examination-in-chief of the said witness. As per the said panchanama, Mr.Nitin Surve told them that his sister i.e. Sushama, was complaining about illtreatment physical and mental and in February 1989, she had came to her maternal house because of the same. At that time, she informed about the chit which was given to her by her husband, which she gave to his brother. The contents of the said chit are as under : 13 APEAL 651 of 2010 - “I will not touch you a henceforth” 17. The translated copy which is given to us is not proper. However, the learned counsel for the appellants states that what is written in the chit is “I will not touch you henceforth”. The said chit is signed by the husband of the deceased. As per the said panchanama, one joint page of notebook is also seized, which is in connection with the handwriting of the deceased. 18. The prosecution has also examined Mr.Nitin Vithoba Surve (P.W.4), brother of the deceased. He has stated that they used to call their father as ‘Mama’ and mother as “Mami’. At the time of marriage of his sister, they had offered six tolas of gold in the form of four Bangles, ear rings, ear rings, Mangal sutra, two golden rings, one for the bride and another for the bridegroom. It is stated that utensils were also given at the time of marriage, including stove, pressure cooker. The witness has shown the stove (Article A) and he identified to be the same stove, which they had given to deceased at the time of marriage. As per the evidence of the said witness, accused persons treated the deceased with love and affection and with hospitality for about 5-6 months after the marriage. Thereafter, the accused started harassing, illtreating the deceased. In para No.8 of the examination-in-chief, the said witness has stated that accused 14 APEAL 651 of 2010 No.3, husband of the deceased, had illicit relations with other lady and therefore, he used to return late in the night. He further stated that when his sister made inquiries with accused No.3 for his late arrival in the house, the accused No.3 replied that for the purpose of rehearsal of drama, he was required to stay there and hence, accused No.3 used to come late at night. The said witness further stated that accused No.3 used to get annoyed and used to asked her sister Sushma that what authority she has got to inquire about his late arrival at the house and he used to beat her. The witness stated that this aspect was informed to him by the deceased whenever she used to come to her maternal house and thereafter, accused No.3 continued to harass and illtreat the deceased. 19. It has come in the evidence of P.W.4 that in the month of December, 1987, the accused No.3 started demanding Godrej Cupboard from his sister and on this count, she was being harassed and illtreated by the accused No.3. He further stated that accused No.3 used to assault the deceased in order to fulfill his demand of Godrej cupboard. He stated that he personally purchased a steel cupboard for Rs.2,300/- for Sushma, in view of the demand made by accused No.3. After getting the said cupboard, for few days, the accused behaved properly with the deceased, but again started harassing her. He further stated that in the month of March 1988, the deceased attempted to commit suicide by consuming 15 APEAL 651 of 2010 ‘Dettol’ at about 8.00 a.m., and on the said date, the brother of accused No.3 informed them on telephone about the said aspect. He further stated that Sushma was admitted in a civil hospital. On inquiry, Sushma told that she was being subjected to cruelty, harassment and illtreatment by the accused and therefore, she tried to commit suicide. At that time, no police complaint was filed keeping in view the future of Sau.Sushma. She was then brought to their house, wherein she stayed for 5-6 days. Thereafter, his father and mother accompanied his sister to the house of accused No.3. He further stated that their parents requested the accused Nos.1 and 2 to treat Sushma with love and affection and not to harass and illtreat her. The accused No.1 and 2 asked his parents not to visit their house in future and accused No.3 threatened to Sushma that he would kill her if her parents again visited their house. He stated that thereafter, his parents did not visit the house of the accused. 20. Mr.Nitin Vithoba Surve (P.W.4) further stated that he used to visit his sister’s house occasionally. He was told by the deceased that in March 1988, the accused persons made a demand of tape-recorder, which demand was made after 5-6 months after Sushma consumed ‘Dettol’. Accordingly, he purchased a tape recorder from ‘Prakash Radio, Satara’, for Rs.1,350/-, for which a receipt was produced on record. 21. On 24-08-1988, there was a family function in their house 16 APEAL 651 of 2010 in connection with birth day of Chetan Pawar and on that day, the tape- recorder was handed over to the accused No.3. A photograph in this behalf, was also produced on record which is at Exh.40. The said witness further stated that accused No.3 wanted to purchase a plot situated near his house, for which he demanded gold bangles from his sister. At that time, the said witness had visited the house of his sister and was requested by his sister to convince accused No.3 not to sale the bangles. Thereafter, he told his sister that the family members of accused No.3 did not like his advise and told her to convince the accused No.3 on her own accord. He further stated that subsequently, his sister expressed her unwillingness to handover her bangles to accused No.3, which resulted in further harassment to her on the part of accused Nos.1, 2 and 4 at the instance of accused No.3. The said witness further deposed that this aspect was told to him by his sister. He further stated that after taking permission from accused Nos.1 and 2, he took his sister to their house and she stayed with them for 5-6 days. Thereafter, accused No.3 came to their house and told his sister to come back to the matrimonial house. At that time, accused No.3 executed a writing stating that “he will not touch you in future (meaning thereby that he will not beat her in future). The said writing was handed over by the deceased to the said witness, which was later on produced at the police station