( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 357 OF 2009 Amol s/o. Subhash Dumne .. Appellant Age. 23 years, Occ. Private Service, R/o. Kokate Nagar, Latur, Tal. & Dist. Latur. Versus The State of Maharashtra .. Respondent Mrs. S.S. Jadhav, Advocate for the appellant. Shri B.V. Wagh, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 24.02.2010 ORAL JUDGMENT :- 1. This is an appeal preferred by the original accused person being aggrieved by the order of conviction and sentence passed in Sessions Case No.52 of 2008, decided on 24.07.2009, by the Additional Sessions Judge, Latur. Appellant – Amol is thereby convicted and sentenced for offences punishable under sections 306 and 498-A of the Indian Penal Code (for short “I.P.C.”). For offence punishable under section 306 of the I.P.C., he is sentenced to suffer rigorous imprisonment for five years and to pay ( 2 ) fine of Rs. 1000/-, in default, to suffer simple imprisonment for one month; and for offence punishable under section 498-A of the I.P.C., he is sentenced to suffer simple imprisonment for two years and to pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for one month. 2. Briefly stated, it is case of the prosecuton that present appellant married deceased Ashwini on 25.07.2007. After the marriage Ashwini went to reside at the house of the appellant. At the time of Diwali and Yela Amavasya, Ashwini had gone to her parental house. At that time she complained that the appellant was beating her for not being able to conceive child. It is further case of the prosecution that the parents of Ashwini told the appellant not to illtreat Ashwini and sent back Ashwini with the appellant. On 29.01.2008 at about 8 p.m. the appellant abused and quarreled with Ashwini. He also beat her and went out for sleeping. Thereafter, at about 2.30 a.m. on 30.01.2008 Ashwini poured kerosene on herself and set herself on fire. She was admitted in the Civil Hospital, Latur. While she was admitted, her statements were recorded by P.W.4-A.S.I. Suryawanshi and also P.W.5-Vikram Gaikwad. Ashwini died of ( 3 ) burn injuries on 03.02.2007, at noon. Ashwini had sustained 89% burn injuries. As per the doctor the cause of death was shock due to burns. The complaint recorded by P.W.4-A.S.I. Suryawanshi, which is also a dying declaration (Exh.26), was considered as F.I.R. and crime was registered. Investigation was carried out. After death, post-mortem and inquest panchanama were performed on the dead body. Panchanama of spot was also drawn. Finally, charge-sheet was sent to the Court. 3. After committal in the Sessions Court, eight witnesses were examined and relying on their evidence, order of conviction and sentence as aforesaid is passed. It is this order which is challenged in this appeal. 4. In this case, it is not disputed any more that deceased Ashwini had set herself on fire and she died of burn injuries. The accused admitted the inquest panchanama Exh. 19, so also post-mortem report Exh.20. It is clear that there were in all 89% burn injuries. The doctor also opined that the cause of death was shock due to burns. ( 4 ) 5. The spot-panchanama (Exh.41) is proved by P.W.7- Vilas Kolpuke. It was drawn on 31.01.2008. The spot was located in the house of the appellant on the first floor. A kerosene can and a match box were found on the spot. There was one Diwan and a bed in the room and said bed was burnt. There is description of spot in panchanama - Exh.41. It is clear that the room was bed-room and as such presence of kerosene can was unnatural. So, it is clear case of suicide. 6. It is not case of the prosecution that it is homicidal death. The main evidence against the appellant is two dying declarations recorded by A.S.I. Suryawanshi and Special Executive Officer – Vikrant Gaikwad at Exhs. 26 and 35, respectively. 7. P.W.4-A.S.I. Suryawanshi stated at Exh.24 that on 30.01.2008, he was Chowki-Ammaldar at Civil Hospital, Latur. Said police outpost was under Gandhi Chowk Police Station. At about 5.00 a.m. he received M.L.C. Letter (Exh.25) from Dr. Patil informing that Ashwini Amol Dumne had sustained 96% burn injuries and she was admitted in the Civil Hospital and necessary steps be taken. Thereafter, A.S.I. Suryawanshi took ( 5 ) entry of the letter in the Gandhi Chowk Police Station. P.S.O. handed over said letter of A.S.I. Suryawanshi and thereafter A.S.I. went back to Civil Hospital and approached Dr. Rathod, present in the burn ward. He requested Dr. Rathod whether the patient Ashwini was in conscious state to give statement. Dr. Rathod examined Ashwini and opined that she was in conscious condition to give statement. The doctor made endorsement to that effect. Thereafter, A.S.I. Suryawanshi introduced himself to Ashwini and then recorded her statement. The statement is proved at Exh.26. In the statement Ashwini stated that she was residing with her husband, sister-in-law Anjali and mother-in-law Kalawati. Her father-in-law was dead. Her husband was working in M.I.D.C., Latur in a company of one Chapsi. Her parents are residents of Karewadi, Tal. Shirur Anantpal. She married one year before. Since she could not conceive child, there were quarrels with her husband. Her husband used to abuse and beat her. On 29.01.2009 at about 8.00 p.m. appellant – Amol abused and quarreled with her for not having child and went out to sleep. Since the appellant was constantly quarrelling and abusing with her, she was tired of life and she decided to set herself on fire and accordingly she set herself on ( 6 ) fire at about 2.00 to 2.30 a.m. After hearing shouts, her mother-in-law, brother-in-law and sister-in-law extinguished fire and admitted her in the Civil Hospital, Latur at about 3.00 a.m. She further stated that she had set herself on fire due to ill-treatments by her husband, so action be taken against him. 8. It is argued before this Court that in the said dying declaration the word “Lekaru” (child) is further explained in bracket by word “Mulbal” and it is argued that this explanation cannot be by deceased Ashwini, as generally deceased will not try to further explain words used by her or him. It is argued that word “Lekaru” is a usual word. It is also argued that in the statement deceased Ashwini described the Saree on her person as ‘polyester Saree’ and ordinarily she would not describe her Saree as that of polyester, but would only say that her Saree had caught fire. 9. In the statement on oath A.S.I. Suryawanshi stated that Ashwini had told him that her husband was beating and illtreating her and we find reference to beating at the end of first para of the statement. According to the endorsement ( 7 ) made by the Medical Officer on dying declaration Exh.26, timing was recorded that on 30.01.2008 between 7.00 to 7.30 a.m. P.W.4-A.S.I. Suryawanshi further stated that after he recorded statement of Ashwini, he approached Special Executive Officer – Vikram Gaikwad (P.W.5) and gave letter to him for recording dying declaration and as per his cross- examination he handed over the letter at about 8.00 a.m. P.W.4-A.S.I. Suryawanshi also stated that he was not aware whether the parents and other relatives were sitting near Ashwini since morning. 10. P.W.5-Vikram Gaikwad, Special Executive Officer is examined at Exh.32. He stated that P.W.4-A.S.I. Suryawanshi came to his house on 30.01.2008 and gave a letter. Original letter is at Exh.33. Therefore, along with P.W.4-A.S.I. Suryawanshi, he went to Civil Hospital at about 9.00 a.m. and met the doctor. He disclosed his desire to record statement of Ashwini and asked the doctor whether the patient was in conscious condition to give statement. The doctor examined the patient and opined that she is in a position to give statement. Thereafter, he sent relatives of Ashwini out of burn ward and only he himself, patient Ashwini and the doctor ( 8 ) were present while recording the dying declaration. He proved the dying declaration at Exh.35. It is to the effect that her husband was working in a company of Chapsi in M.I.D.C., Latur. She was brought to the hospital due to burn injury. She further stated that on 29.01.2008 in the night at about 2.00 to 2.30 when she was in her in-laws house, she poured kerosene from plastic can and set herself on fire. The reason was that she was married one year ago and her husband was daily beating her for not bearing child. Even prior to the day of incident, she was beaten. Even on the day of incident on 29.01.2008 in the morning and in the evening she was beaten. So, she set herself on fire. Her husband was responsible for the said incident and he should be severely punished. 11. In further questions Ashwini stated that her husband was outside near the window. At the time of incident she was taking education in 12th standard. Her husband, mother-in-law, sister-in-law and brother-in-law brought her to the hospital. Only said persons met her in the hospital. Question No. 16 was “Who met you in the hospital?” and the answer was, sister-in-law, mother-in-law, brother-in-law and ( 9 ) husband-in-law. It is relevant when we consider other evidence. This answer indicates that no one from parental side of Ashwini had met her before recording of her statement. 12. P.W.5-Special Executive Magistrate-Vikram Gaikwad stated that he was doing social work and he is painter by profession. In cross-examination of P.W.5-Gaikwad, it is brought on record that there was another patient admitted in the room in which Ashwini was present and a relative of other patient was present with the patient. It was a woman who was sitting near other patient. P.W.5-Gaikwad did say that he did not know whether that woman was relative of Ashwini or of other burnt patient. But, he said that said woman was sitting near other patient. He further stated that he mentioned timing as 9.00 a.m. to 10.00 a.m. He also said that when statement was being recorded, Ashwini demanded water for drinking and relative of another patient gave her water. 13. P.W.3-Prabhawati examined at Exh.22 is mother of Ashwini and she stated that Ashwini had come to their house ( 10 ) at Karewadi at the time of Diwali and Yela Amavasya. On both occasions Ashwini complained that her husband was illtreating her for not having issue and was also beating her. At the time of Yela Amavasya, Ashwini even went to the extent of saying that she did not want to live, but die. P.W.3- Prabhawati consoled and pacified her. On the day of incident, they received message at 3.00 a.m. They reached hospital at about 9.00 a.m. They met Ashwini and asked her. Ashwini stated that her husband illtreated and beat her on account of having no issue and then accused went away. Due to this illtreatment she was fed up and set herself on fire. 14. P.W.3-Prabhawati further stated that her son Gajanan had not gone to the house of the accused at the time of Diwali to bring Ashwini. The witness also stated that she along with her husband, brother-in-law Vishwanath and son Gajanan immediately came to Civil Hospital, Latur. P.W.3- Prabhawati along with her husband remained with Ashwini till her death. When the witness went to the hospital, the accused so also his mother were in the hospital. Omission was brought on record that the witness has not stated that grand-father of the accused informed them on phone that ( 11 ) Ashwini set herself on fire. Omission is regarding Ashwini setting herself on fire, regarding which there is no dispute and it is not a material omission. P.W.2-Gajanan and P.W.1- Subhash, who are respectively brother and maternal uncle of deceased have stated that at the time of Diwali, so also Yela Amavasya, deceased had complained regarding illtreatment on account of not conceiving child. P.W.8-Dr. V.R. Patil has proved endorsement of Dr. Rathod and his signature on both dying declarations Exh. 26 and 35. It is stated that Dr. Rathod had left his services. 15. The learned A.P.P. has relied upon case of Laxman V/s. State of Maharashtra, AIR 2002 S.C. 2973. In that case it is observed in para 5 that it is indeed a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind. In this case, the doctor’s endorsement is required for satisfaction of the Court and for corroboration. Ultimately, ( 12 ) the value of dying declaration depends upon voluntary nature of dying declaration, its truthfulness and whether it inspires confidence. In para 3 of Laxman (Supra) that Court insisted that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The Court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. 16. In this case the learned advocate for the appellant argued that P.W.3-Prabhawati has stated that after they came to Latur, she along with her husband were near Ashwini till her death. The learned advocate for the appellant argued that in para 2 of the deposition P.W.3-Prabhawati stated that they received phone message at 3.00 a.m. and in cross- examination in para 3 while answering a question, she said that they came to Civil Hospital within two hours. However, P.W.1-Subhash Sindalkar, P.W.2-Gajanan and P.W.3-Prabhawati have all consistently stated that they reached Civil Hospital at 9 a.m.. Merely because two hours taken for journey, it does not mean that they had reached at 6.00 or 6.30 a.m. ( 13 ) There is no such suggestion made to any of the witness. In my opinion, no such conclusion can be drawn from such stray sentences here and there. 17. The learned advocate for the appellant Mrs. Jadhav argued that in this case addition of word “Mulebal” (children) after word “Lekaru” and description of Saree as polyester Saree shows that the dying declaration is not recorded in verbatim. In this case two dying declarations are recorded. They are consistent with each other. The reason given for disbelieving them is not sufficient. It is also argued before this Court that only one year had passed and under the circumstances it is difficult to believe that the woman would be illtreated for not conceiving child. It all depends upon mental set up of a man and there cannot be hard and fast rule. That will not take away merit of the case or raise doubt regarding truth of dying declaration. 18. The learned advocate for the appellant cited certain authorities. First case is Sanju alias Sanjay Singh Sengar V/s. State of Madhya Pradesh, 2002 AIR SCW 2035. In that case the accused had told the deceased to go and die ( 14 ) during quarrel between the accused and the deceased. It was held that it would not amount to instigation. There was no mens rea which is concomitant of instigation. The suicide note left by the deceased showed that he was in distress and under depression. Statement of his wife also showed that he was frustrated man and was in habit of drinking. In para 13 it is observed that the word ‘instigate’ denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion. It is also held that such language is not always taken seriously. 19. In the case of State of Maharashtra V/s. Sanjay D. Rajhans, 2004 AIR SCW 6320, in para 8 for various reasons the dying declaration was discarded and one of the reason was that the deceased described that she was wearing Terricot Punjabi dress. But that was not the only reason. Para 8 of the said case clearly shows that there were several reasons which indicated that the dying declaration was not truthful. ( 15 ) 20. In the case of P. Mani V/s. State of Tamil Nadu, 2006 AIR SCW 1053, the deceased wife who was not keeping good relation; was labouring under belief that husband was having an affair. She was suffering from depression and had made attempt earlier to commit suicide. All prosecution witnesses stated that deceased bolted doors from room from inside. The witnesses along with accused had forced open door and doused fire. The accused himself had taken the deceased to hospital. In the circumstances, the dying declaration was held not disclosing truth and not reliable. 21. Another case cited by the learned A.P.P. is State of Punjab V/s. Iqbal Singh, AIR 1991 S.C.1532. In that case in para 8 it is observed that where the husband by his wilful conduct creates a situation which he knows will drive his wife to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306 of the I.P.C. In such case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing ( 16 ) suicide. 22. In this case the death occurred within a period of almost one and half years after the marriage. Both dying declarations clearly indicate that there was constant abusing and beating by the appellant. At the time of Yela Amavasya, the deceased Ashwini disclosed to her mother that she was fed up and wanted to die and her mother pacified her. In my opinion, in the totality of the circumstances, the order of conviction and sentence is well merited. The deceased was subjected to cruelty within the meaning of section 498-A of the I.P.C. In view of presumption under section 113-A of the Evidence Act, the appellant was rightly convicted of abetment of suicide. No interference is required in the appeal. 23. In the result, the criminal appeal is dismissed. The order of conviction and sentence passed by the trial court is hereby confirmed. [P.R. BORKAR,J.] snk/2010/FEB10/crap357.09