1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.295 OF 1993 Hanumanta Dhondiba Bhosale Convict Prisoner Central Prison at Thana (Present address) Permanent Residential Address: Sahyadri Nagar, Chawl No.2, Near Birla College, Kalyan ...Appellant. v. The State of Maharashtra ...Respondents. Mr. Subhash Jha, adv. For the Appellant. Smt. P.P.Bhosale, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : DECEMBER 23, 2010 ORAL JUDGMENT: 1 Accused has preferred this appeal against the judgment and order dated 16.4.1992 passed by the learned Additional Sessions Judge, Thane in Sessions Case No.597 of 1989 whereby the accused was convicted for the offences punishable under Sections 498A and 306 of the I.P.C. and sentenced to undergo R.I. for one year and to pay fine of Rs.500/- and to undergo R.I. for 3 years and to pay fine of Rs.500/- respectively . 2 2 Prosecution case in brief is that, the deceased Mangala was married to the accused about 10-12 years prior to her death on 23.9.1989. They had three children. Accused was addicted to alcohol and he used to always abuse and beat his wife under the influence of liquor. Several times, she had complained to her maternal uncle, P.W.1 Yashwant about the ill treatment by the accused. Said Yashwant also tried to dissuade accused against such habit of drinking and treating his wife with cruelty but in vain. On 23.9.89 also at about 12.30 p.m. accused came home under the influence of liquor and abused and beat his wife. Being fade up with such treatment given by the husband, Mangala poured kerosene and immolated herself. Her husband, who was present at the time of incident extinguished the fire. P.W.4 PSI Kadu of Mahatma Phule Chowk police station, Kalyan got information and he deputed police constable who took her to Municipal Corporation Dispensary at Kalyan. On getting information that she was serious, PSI Kadu rushed to the hospital. Taking into consideration the serious condition of Mangala, he recorded her statement on the basis of which crime no.235/89 under Section 498A of the I.P.C. was registered against the accused. He also sent request letter to the Special Executive Magistrate to record dying declaration of 3 Mangala. In view of the serious condition she was shifted from the Municipal Dispensary, Kalyan to the Central Hospital at Ulhasnagar and was admitted there at 3.15 p.m. P.W.5 Prabhavati, who was SEM, recorded the dying declaration of Mangala at the Central Hospital Ulhasnagar. In these two dying declarations, Mangala disclosed the above facts. At about 5 p.m. on the same day, she died because of the burn injuries. P.M. Report disclosed that she had died due to shock due to 100% burns. The Investigating Officer recorded spot panchanama and seized several articles including partly burnt clothes from the spot of the incident. These articles were smelling of kerosene. Said property was sent to C.A., which also confirmed that partly burnt clothes revealed presence of kerosene. After investigation, police filed charge-sheet against the accused for the offences punishable under Sections 498A and 306 of the I.P.C. In due course, the case was committed to the Court of Sessions for trial. 3 Charge was framed against the accused for the said offences vide Ex.2. He pleaded not guilty. According to him, he was falsely implicated and that Mangala had caught fire accidentally. 4 On behalf of the prosecution in all six witnesses were examined and some documents were placed on record. Some of the 4 documents, i.e., spot panchanama Ex.8, Inquest panchanama Ex.9, P.M. Report Ex.10, covering letter Ex.11 under which muddemal property was sent by the Investigating Officer to the C.A., the C.A.Report Ex.12 were admitted on behalf of the accused in response to the notice under Section 294 of the Cr.P.C. 5 P.W.1 Yashwant Bhosale is maternal uncle of the deceased Mangala. He deposed that father of Mangala had died when she was 7 or 8 years old, therefore, he had brought her up. His evidence was recorded in 1992 and according to him, Mangala was married with accused about 15 years back. P.W.1 Yashwant as well as family of the accused were inhabitant of village Aarole. For some time after the marriage accused and Mangala resided at the village Aarole and sometime, accused used to reside at Mumbai. For about 4 months prior to the incident, accused and his wife were living at Sahyadri Nagar near Kalyan, District Thane. P.W. 1 Yashwant deposed that about one year after the marriage, accused started ill treating his wife mentally as well as physically. He used to ask Mangala to bring money from the maternal uncle P.W.1 Yashwant. He had taken vice of drinking and under the influence of liquor, he used to beat Mangala. Mangala used to tell her maternal uncle about it. As accused as well as P.W.1 Yashwant were residing in the same village, he 5 had seen accused beating his wife on many occasions. According to him, on 17.3.1988 also on returning to Village Aarole from Satara, he had come to know that accused had severely beaten Mangala and had also abused her. Yashwant went to the accused and asked him as to why he had behaved like that. On that accused rushed towards P.W.1 Yashwant with an axe. P.W.1 Yashwant also approached the police and the accused was taken to the police station. He had requested police for protection against the accused and the police had taken a promise of good behavior in writing from the accused. He deposed that on 23.9.89, he was at village Aarole. On that day a police message was given to the parents of the accused that Mangala had committed suicide. P.W.1 Yashwant also came to know about it from the villagers. Therefore, he rushed to the Central Hospital, Ulhasnagar. On next day he reached the hospital but Mangala had already died. He was cross-examined at length but nothing could be brought in the cross-examination to shatter his evidence. About the incident dated 17.3.1988, he admitted that he had not stated before the police in his statement recorded on 25.9.89, i.e., two days after the incident and next day after he had reached the Central Hospital, Ulhasnagar. According to him, he did not state all the details because at that time, he was in grief due to death of Mangala and it was but natural, 6 as after the death of her father, P.W.1 Yashwant had brought her up like a daughter. 6 Evidence of P.W.4 Eknath Kadu shows that on 23.9.89 at about 1.15 p.m., he received telephonic message from the police control room that one woman had received burn injuries at Sahyadri nagar building no.21. Soon thereafter one Kashinath of Sahyadri Nagar also came to the police station and informed that his neighbour Mangala had received burnt injuries. P.W.4 PSI Kadu took an entry in the station diary and deputed two police constables to take Mangala to the Municipal Dispensary at Kalyan. Those constables took her to municipal dispensary and informed PSI Kadu that the condition of Mangala was serious. Therefore, he immediately rushed to the hospital and ascertained from the Doctor on duty that Mangala was in a position to give statement. Thereafter he recorded her statement and also obtained her thumb mark, as due to burn injuries, she was unable to put signature. He also obtained endorsement and signature of the medical officer on duty. Ex.17 is that statement and it was treated as F.I.R. On the basis of the same on 23.9.89 at 15.20 hrs. Crime No.235 of 1989 was registered. 7 Evidence of P.W.3 Dr. Vijaya Jagtap shows that on 23.9.89, she was on duty at the Municipal Corporation Dispensary at Kalyan 7 Mangala wife of Hanumant Bhosale was brought and admitted in the hospital. Immediately after admission, at 2.25 p.m. she examined her. Police officer came there immediately after she had examined her and he also recorded statement of Mangala. According to her, during the recording of statement, Mangala was fully conscious and fit to make statement. Accordingly she also put her signature below the said statement, Ex.17. After recording her statement, she was transferred to Central hospital, Ulhasnagar for further treatment. 8 Evidence of P.W.2 Dr. Arjun Jagtap, who was medical officer on duty at the Central Hospital, shows that on 23.9.89 Mangala Bhosale was brought to the Central Hospital from Kalyan Hospital for burn injuries and he himself examined her at 3.15 p.m. It was the case of suicidal burns. He found her fully conscious. Police had summoned SEM P.W.5 Mrs. Prabhavati to record dying declaration of Mangala. According to P.W.2 Dr. Arjun Jagtap, he had examined Mangala before as well as after recording of her statement. During that period, she was fully conscious and was in a position to give her statement. P.W.5 Mrs. Prabhavati SEM also deposed that on getting requisition from the police, she went to the Central Hospital, Ulhasnagar. Medical Officer told her that she was fit to make statement. According to her, she recorded 8 statement of Mangala in question and answer form in her own words and correctly. After recording the same, statement was read over to Mangala. Thereafter, she obtained thumb mark of the patient and she herself signed on it. Even the medical officer on duty put signature on the said statement. Ex.15 is the same dying declaration. P.W.2 also confirmed in his evidence that he had put signature on the same. 9 Her statement Ex.17 was recorded by PSI Kadu. Endorsement of the medical officer shows that below said statement, medical officer had signed and put time 3.05 p.m. and evidence shows that immediately she was shifted to Central Hospital, Ulhasnagar where she was admitted at 3.15 p.m. In the statement, Ex.17 before the PSI, Mangala stated that she was married to the accused Hanumant about 11 years before. They had three children namely Vishal aged about 7 years, Sudhir aged about 5 years and daughter Shilpa aged about 11 years. In that statement she stated that her husband was addicted to drinking alcohol and he always used to abuse and beat her after drinking liquor. On 23.9.89 at about 12.30 p.m. her husband, Hanumant had come home having drunk liquor and began to abuse her. As she asked him not to abuse, he began to abuse more severely. Therefore, in the heat of anger, she had poured kerosene from a plastic can and with the matchstick 9 immolated herself . 10 Her second dying declaration, Ex.15A was recorded between 15.45 to 16 hours on the same day by SEM P.W.5 Prabhavati. In this dying declaration Mangala had stated that she was married to the accused ten years before and they had three children aged about 7 years, 4 and half years and 9 years respectively. She also stated that her father had died. She had no brother. She used to go to meet his maternal uncle Yashwant, resident of village: Aarole, District: Satara. After giving this background in the initial four questions, in response to the fifth question as to how she had suffered burn injuries, she stated that since after the marriage, her husband Hanumant used to drink liquor and after drinking liquor, he always used to beat her. Being fade up with this harassment, on that day, i.e., 23.9.89 at 12.30 hours she had poured kerosene from the plastic can on herself and had immolated herself with matchstick with intention to die. In the next question, she also stated that her husband had put godhadi or quilt around her and had extinguished the fire and then she was taken to Kalyan Hospital by police and from there she was taken to the Central Hospital, Ulhasnagar. 11 It is settled position of law that conviction can be based on a dying declaration even without any further corroboration if Court finds 10 the dying declaration to be true and voluntary. In Khushal Rao v. State of Bombay, AIR 1958 SC 22, the Supreme Court has laid down parameters for appreciation of the dying declaration. It is settled that at the time of recording the statement, deceased must be in fit state of mind. The person recording the dying declaration must be satisfied that the person making the statement was conscious and was making voluntary statement with normal understanding. Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of imagination of the dying person. Mr. Zha the learned counsel for the appellant/accused placed reliance upon State of Punjab v/s. Savitri Devi AIR 1983 Punjab & Haryana 305 wherein Full Bench of Punjab High Court also laid down same principles after referring to the law enunciated by the Supreme Court in Khushal Rao (Supra). 12 In the present case, the facts, as revealed above, would show that incident occurred at 12.30 p.m. on 23.9.89. She was taken to Municipal Dispensary at Kalyan at about 2.15 pm. by police. Immediately PSI Kadu came there and he recorded her statement, Ex.17. As soon as recording was completed at 3.05 p.m., she was taken to the Ulhasnagar Central Hospital where she was examined by medical officer 11 at 3.15 p.m. Her dying declaration Ex.15A was recorded by SEM between 3.45 and 4.15 p.m. and medical papers reveals that she had died at 5 p.m. Evidence of PSI Kadu shows that he had recorded statement of Mangala immediately, taking into consideration her serious condition and it was natural conduct of a responsible police officer. At the same time, he also sent requisition to the Magistrate for recording dying declaration, which was also promptly done. Evidence on record shows that none of the relatives of Mangala was present around her from the time of the incident till her death. In fact, only her husband was with her at the time of incident and also at the time of her admission in the hospital. Her maternal uncle P.W.1 Yashwant was at village Aarole and according to him, he got the information in the evening after police message and on the next day, he reached Central Hospital, Ulhasnagar. Admittedly, Mangala had died long before arrival of P.W.1 Yashwant. In such circumstances, there was no relative of Mangala to tutor, prompt or instigate her to make any false statement. Evidence of both the doctors, P.W.3 Dr. Vijaya Jagtap of Municipal Dispensary, Kalyan and P.W.2 Arjun Jagtap medical officer of Central Hospital, Ulhasnagar, goes to show that she was fully conscious. As per their evidence, she had suffered 100% burn injuries. P.W.2 Dr. Arjun Jagtap deposed in the 12 cross-examination that in the burn injuries, patient is fully conscious till last stage of life and it is but natural because due to severe pain and burning sensation, patient does not become unconscious. To alleviate the pains, Doctors may administer some pain killers or sedative drugs to the patient and if such drugs are administered, person may feel drowsy and in those circumstances, may not be fit to make statement. In the present case, no question was put in the cross-examination to either of the two doctors to show that any pain killer or sedative drug was administered to Mangala. Ex.20 is medical case record from Ulhasnagar Central Hospital. On careful perusal of the same, it appears that no sedative or pain killer medicine was administered to her. As per this record at 3.15 p.m., i.e., immediately after her admission, injection Ampiciline was administered to her. Ampiciline is an antibiotic and not a pain killer or sedative drug. Recording of dying declaration was completed at 4.15 p.m. After that at 4.30 p.m. fortiwin injection was administered and again at 4.50 p.m. injection decadron and injection Mephintin were administered. These could be sedative drugs. However, they were administered after recording of the dying declaration and a few minutes before she died. Thus, there is reliable evidence of both the doctors that from the time, she was taken to the Municipal Hospital at Kalyan till 13 recording of her dying declaration at 4.15, she was fully conscious. Evidence of medical officers could not be shattered in any manner. 13 As per the dying declaration recorded by PSI Kadu as well as the SEM, she had poured kerosene on herself from plastic can and had immolated herself with the help of matchstick. Spot panchanama was recorded by PSI Kadu between 15.30 hrs. to 16.15 hours. As per the spot panchanama, in the room where this incident had occurred, police and panchas found a white coloured plastic can containing about half a liter kerosene lying in the middle of the room. Near it two burnt matchsticks were lying. Partly burnt pieces of saree, lungi, petticoat, blouse, raincoat, etc. were found. All these articles were smelling of kerosene. These articles were seized and sealed in presence of panchas. As stated earlier, this panchanama was admitted on behalf of the accused. This property was sent to C.A., by the Investigating Officer with covering letter, Ex.11, which was also admitted. C.A. Report, Ex.12 shows that plastic can was containing kerosene and partly burnt clothes being Exhibits 3,4,5,6 and 7/1 and 7/2 were examined and results of the test for detection of kerosene residue on these exhibits was positive. Thus, C.A. Report reveals that kerosene was detected on partly burnt clothes seized from the spot of the incident. Thus, spot panchanama and the C.A.Reports 14 corroborate the version of the deceased in dying declarations that she had poured kerosene and then immolated herself with matchstick. P.M. Report, which was also admitted by the accused shows that she had suffered 100 % burns and had died because of the said burns. Thus, it is proved that Mangala had committed suicide. 14 In both the dying declarations, she had stated that her husband was addicted to drinking liquor and was in habit of abusing and beating her under the influence of liquor and this was going on since time of her marriage. In the dying declaration Ex.17 which was recorded by PSI Kadu and which was first in time, she had stated that on that day at about 12.30 p.m., her husband had come after drinking liquor and abused her. On her asking as to why he was abusing, he continued to abuse more severely, therefore, in the heat of anger, she poured kerosene from the plastic can and immolated herself. In the second dying declaration, Ex.15A recorded by the SEM she only stated that since time of the marriage, her husband was addicted to drinking and he also used to abuse and beat her after drinking. Being fade up with this harassment, she had immolated herself at 12.30 p.m. The learned counsel for the accused vehemently contended that in the dying declaration Ex.15A recorded by the SEM , there is no mention that on 15 that day also immediately before the incident, accused had abused or beaten her. The learned counsel contended that even if it is believed that accused was in the habit of drinking liquor and abusing or beating her wife, unless it is proved that soon before the incident also he had abused or beaten her, it can not be said that she was prompted or was driven to commit suicide because of the cruelty at the ends of the accused. The learned counsel placed reliance on Sham Lal v/s. State of Haryana (1997) 9 Supreme Court Cases 759 in support of his contention that it was necessary to establish that soon before her death, she was subjected to cruelty. The Supreme Court while determining as to in what circumstances, presumption under Section 113-B of the Evidence Act can be invoked, observed thus, “11 It is imperative, for invoking the aforesaid legal presumption, to prove that “soon before her death” she was subjected to such cruelty or harassment. Here, what the prosecution achieved in proving at the most was that there was persisting dispute between the two sides regarding the dowry paid or to be paid, both in kind and in cash, and on account of the failure to meet the demand for dowry, Neelam Rani was taken by her parents to their house about one and a half years before her death. Further evidence is that an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the nuptial home pursuant to which she was taken by the husband to his house. This happened about 16 ten to fifteen days prior to the occurrence in this case. There is nothing on record to show that she was either treated with cruelty or harassed with the demand for dowry during the period between her having been taken to the parental home and her tragic end.” In the present case, first dying declaration was recorded at about 3 p.m. by PSI Kadu, he had come to the hospital immediately after he was informed that condition of Mangala was serious and immediately he recorded her statement, which was treated as F.I.R., and which could be treated as dying declaration as she had succumbed to the injuries thereafter as pointed out earlier, there was no relative of Mangala near her from the time of the incident till her death, therefore, nobody could have tutored, prompted or instigated her to make any false statement. There was no reason for PSI Kadu to record statement falsely, therefore, it must be believed that he had recorded statement correctly as per the version of Mangala. In that statement, she clearly stated that at about 12.30 p.m. her husband had come in drunken condition and abused her and thereafter she immolated herself. Thus, soon before the act of immolation, she was treated with cruelty by her husband. 15 Though in the second dying declaration, it is not specifically mentioned that her husband had come in drunken condition and had 17 abused her at 12.30 p.m. She had stated that because of his habit of drinking and abusing and beating her always she was fade up and, therefore, she had immolated herself. In my considered opinion, there is no reason to suspect truth in both the dying declarations and the dying declarations lead to only one conclusion that because of the constant cruel treatment at the hands of the husband since after the marriage, Mangala had committed suicide. 16 The learned counsel for the accused contended that in every family there may be some bickering or some dispute between the husband and wife and because of that it can not be presumed that the woman was subjected to such cruelty that she would be driven to commit suicide nor it can be held that husband had abetted her to commit suicide. In support of this the learned counsel placed reliance upon Bhagwan Das v/s. Kartar Singh and Others (2007) 11 Supreme Court Cases 205. That was an appeal preferred by the relative of the deceased against the order of discharge. In paragraphs 15 and 16, the Supreme Court observed thus, “15 In our opinion, the view taken by the High Court is correct. It often happens that there are disputes and discords in the matrimonial home and a wife is often harassed by the husband or her in-laws. This, however, in our opinion would not by itself and without 18 something more attract Section 306 IPC read with Section 107 IPC. 16 However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of dowry soon before her death then Section 304-B IPC may be attracted, whether it is a case of homicide or suicide. (Vide Kans Raj v. State of Punjab, Satvir Singh v. State of Punjab