( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 153 OF 2000 The State of Maharashtra .. Appellant Versus 1. Gangubai Ramdas Thokal, .. Respondents Age 42 years. 2. Sunil Ramdas Thokal, Age 29 years. Both r/o. Waninagar, Bhistbag, Ahmednagar. Shri B.V. Wagh, A.P.P. for the appellant/State. Shri S.T. Shelke, Advocate for the respondents. CORAM : P.R. BORKAR,J. DATED : 25.01.2010 O R A L J U D G M E N T :- 1. This is an appeal filed by the State being aggrieved by the order of acquittal passed by the Additional Sessions Judge, Ahmednagar, in Sessions Case No. 60 of 1998, decided on 03.01.2000, whereby the present respondents were acquitted of offences punishable under sections 306, 498-A ( 2 ) both read with section 34 of the I.P.C. 2. Some of the facts which may not be disputed at this stage are as under:- . It is admitted position that deceased Shubhangi married Anil Thokal - son of respondent No.1 and brother of respondent No.2 on 20.05.1997. After marriage Shubhangi went to reside at the house of Anil Thokal, who was residing with his brother and mother. It is also not disputed that P.W.3- Sharda was mother, P.W.4-Surekha was sister and P.W.8-Kumar was brother of deceased Shubhangi. Shubhangi was admitted in Civil Hospital at Ahmednagar on 30.01.1998. She had 80% burn injuries. She expired as a result of the burn injuries on 31.01.1998. 3. Two dying declarations of deceased Shubhangi were recorded. In the first dying declaration that was recorded by P.W.1-Pradip Gavade, Special Judicial Magistrate, deceased Shubhangi stated that she was residing with her husband, husband’s parents and husband’s brother. There were always quarrels between Shubhangi and her mother-in-law (respondent ( 3 ) No.1). The quarrels were over house-hold work. On 30.01.1998, respondent No.1 quarreled with deceased Shubhangi. Being enraged, Shubhangi set herself on fire. At that time both the respondents were at the house, but they did not prevent her from setting herself on fire, nor they tried to extinguish fire. Neighbours came and extinguished the fire and admitted Shubhangi in the hospital. This first dying declaration recorded at about 7.00 p.m. on 30.01.1998. 4. The learned Additional Sessions Judge held that said dying declaration was insufficient to prove either offence punishable under section 498-A of the I.P.C. or offence punishable under section 306 of the I.P.C., for which the respondents were charged. If, we consider this dying declaration, it is a short dying declaration, in which all that is said is that there were quarrels between the deceased and the respondents. On the day of incident there was dispute between Shubhangi and the respondents. The disputes were over domestic work. So, the reasons were trifle and it does not appear from the dying declaration which is proved at Exh.16 by the Special Judicial Magistrate that the harassment was of a type which may drive a normal woman to commit ( 4 ) suicide or cause grave hurt to herself within the meaning of explanation (a) to Section 498-A of the I.P.C. 5. The prosecution proved another dying declaration at Exh.36. It was recorded by P.W.10-P.S.I. Karandikar on 31.01.1998 on which date detail statement was recorded, in which deceased Shubhangi stated that after the marriage both the respondents used to quarrel with her over trifle reasons and used to abuse and beat her. They used to tell her not to talk with her husband and they were also instigating husband of Shubhangi that he was pampering his wife. But it is specifically stated that her husband never illtreated or troubled his wife. It is further stated that Shubhangi was never allowed to go to her parental house, but her mother and brother had come 3-4 times. But Shubhangi was not allowed to talk with them by the respondents. In-fact, these admissions seriously affect the evidence of P.W.3-Sharda, P.W.4-Surekha and P.W.8-Kumar, in as much as they raise serious question whether Shubhangi really complained to them against the respondents. It is further stated by Shubhangi in her dying declaration Exh.36 that the respondents were asking her to bring money from her mother for construction of house to ( 5 ) which she refused and therefore she was beaten and driven out of the house and it was P.W.8-Kumar who intervened and requested the respondents. At the request and persuasion of P.W.8-Kumar, Shubhangi was taken back in the house. It is also stated that both the respondents were saying that in the marriage the parents of Shubhangi have not given customary gifts and they used to abuse her. It it also stated that the respondents were not allowing Anil to intervene or say anything. Two-three days before 31.01.1998, both the respondents beat Shubhangi and drove her out. At that time P.W.8-Kumar had come and he called husband of Shubhangi and sent Shubhangi to the house of husband. On 30.01.1997 P.W.3- Sharda had come to meet Shubhangi. Shubhangi complained to her mother that both the respondents were harassing, beating and abusing her. At that time respondent No.1 came home and when mother of Shubhangi questioned respondent No.1, respondent No.1 started beating Shubhangi and drove out P.W. 3-Sharda. Thereafter, respondent No.2 came home. He also abused her. Being aggrieved thereby at about 2.00 to 2.30 p.m. Shubhangi set herself on fire. This dying declaration was disbelieved by the Trial Court on several grounds, firstly this dying declaration was not consistent with ( 6 ) earlier dying declaration. It contained so many additional facts which were not stated before the Special Judicial Magistrate. Secondly, it is admitted by P.W.4-Surekha that after incident of burns, they had rushed to the hospital. She also stated that her mother was with Shubhangi all along and therefore it is argued that there is possibility of the dying declaration (Exh.36) being product of tutoring. The reason is also given that the statements of P.W.3-Sharda, P.W.4-Surekha and P.W.8-Kumar were not consistent with each other and all only create doubt not only regarding their own credibility but also regarding the dying declaration (Exh. 36). 6. It has also come in evidence that Shubhangi was daughter of brother of respondent No.1 and relationship between mother, sister and brother of Shubhangi were not cordial with her father and there were disputes between them and as a result thereof, respondent Nos. 1 and 2 did not like visits of P.W.3-Sharda to their house and that was reason why the respondents were involved in the false case. It is also argued by Adv. Shri S.T. Shelke that ordinarily husband is named as prime accused in the case of harassment, cruelty. ( 7 ) But, in this case clean chit is given to the husband not only by the deceased, but also by the prosecution witnesses and every blame is put on the mother and the brother of the husband and it raises serious question regarding credibility of evidence on record. 7. P.W.3-Sharda in her statement stated that for first 2-3 months Shubhangi was treated well, but thereafter both the respondents were assaulting her on trifle reasons. She had been to the house of the accused 1 - ½ months prior to the incident and met Shubhangi. When Shubhangi was alone in the house at that time Shubhangi disclosed that her mother- in-law and brother-in-law were illtreating and assaulting her. They used to abuse and drive her out. The respondents were not allowing Shubhangi to talk with her husband. On same day without meeting the respondents, P.W.3-Sharda came back. According to her P.W.8 Kumar, her son went to meet Sharda 3-4 days prior to the incident and he also informed her that respondent had beaten Shubhangi and were making demand of cash amount for construction of house and therefore on 30.01.1998 P.W.3-Sharda went to the house of the accused to meet Shubhangi. Shubhangi was alone in the house. ( 8 ) Shubhangi was in a disturbed mood. Her hair were scattered and eyes were swollen. Shubhangi disclosed that from previous 3-4 days both the respondents were continuously beating her and telling her to bring cash amount from her mother. At that time respondent No.1 came home and when P.W. 3-Sharda questioned respondent No.1 why she beat Shubhangi, respondent No.1 said that who was she to ask her and rushed at Shubhangi and scolded her and started beating Shubhangi in her presence. P.W.3-Sharda tried to pacify, but respondent No.1 drove her out. On same day at about 5 – 5.50 p.m. wife of nephew came home and informed that her husband received telephonic message regarding burn injuries to Shubhangi and Shubhangi was admitted in the Civil Hospital, Ahmednagar and therefore they went to Civil Hospital on same day. According to Sharda, Shubhangi told her that after P.W.3-Sharda left her house, both the respondents had severely beaten her. 2-3 days thereafter Shubhangi expired. Ordinarily, if this was true version, on 30.01.1998 itself as soon as P.W.3-Sharda came to know the incident from Shubhangi in the hospital, she would have immediately lodged complaint against both the respondents stating what had happened on that day. It appears that in the dying declaration recorded on 30.01.1998 ( 9 ) Shubhangi had not said anything about the incident that took place on that day. It is difficult to believe that Shubhangi would not say anything about the incident that took place in the morning of 30.01.1998, in her first dying declaration, if really such incident had taken place. It has immediately preceded the act of commission of setting herself on fire. 8. The evidence of P.W.8-Kumar is to the effect that when he went to meet his sister Shubhangi, she told him that there was quarrel between her and the respondents. Both were illtreating her on account of remaining amount of dowry and expenses on account of clothing at the time of marriage. P.W.8-Kumar asserted that no other thing was told by Shubhangi. According to P.W.8-Kumar, he told about cause of illtreatment to his mother. So, there is clear inconsistency as to for what purpose the amount was demanded by the respondents. As per P.W.3-Sharda, the amount was demanded for construction of house and that was what P.W.8-Kumar told her. As per P.W.8-Kumar, it was not demand for construction of house, but there was grievance regarding non-payment of part of the dowry amount and regarding expenses of clothing in the marriage. P.W.8-Kumar also said that when he heard ( 10 ) about burn injuries, he went to meet his sister Shubhangi and Shubhangi told him that due to illtreatment at the hands of the accused person, she set herself on fire. So, no other details were given to him by Shubhangi. 9. Other evidence is of P.W.4-Surekha at Exh.19. She is sister of deceased Shubhangi. She said that 2-3 months prior to the incident she had been to the house of the respondents to meet Shubhangi. She stayed there 2-3 days. She noticed that both the respondents were abusing and illtreating her sister Shubhangi on petty reasons. During her stay once accidentally soccer broke at the hands of Shubhangi and on that count respondent No.1 rushed at Shubhangi. P.W.4-Surekha also said that after the incident of burn injuries, she went to meet Shubhangi, Shubhangi disclosed that she could not tolerate the illtreatment at the hands of the accused and therefore, she tried to commit suicide. No other details were given. The witness has stated in the cross-examination that at about 5.30 p.m. she learnt about the incident of burn injury and immediately within 15 to 20 minutes along with her mother she reached the Civil Hospital. Thereafter, her mother was continuously ( 11 ) sitting by the side of her sister Shubhangi till her death. So, it is argued before this Court relying on these admissions that the second dying declaration might be result of tutoring. Omission was also brought on record that the witness had not stated before police regarding the incident of breaking of soccer at the hands of Shubhangi and consequent assault etc. Omission was also brought on record that this witness has not stated before police that there was illtreatment to or beating of Shubhangi at the hands of the respondents in her presence. So, the witness has improved her story in material particulars. 10. It is case of defence which is accepted by the Trial Court that P.W.3-Sharda was not residing with her husband and both the respondents were not liking Sharda visiting their house. In cross-examination P.W.3-Sharda also admitted that the house of the accused is perfectly constructed house. So, it is argued that there was no necessity to ask money for construction of house. In her statement before Police, Sharda has not stated that when she met Shubhangi in the morning of 30.01.1998, Shubhangi was disturbed, her hair were scattered and eyes were swollen. It ( 12 ) is also argued that if that was condition, P.W.3-Sharda would have immediately taken Shubhangi to Police for lodging complaint. But she did not even lodge complaint after knowing that Shubhangi had attempted to commit suicide due to illtreatment. It was suggested that visits by Sharda who was residing away from her husband (who was brother of respondent No.1) were not liked by the respondents and therefore they were involved in the case. 11. Considering totality of the circumstances, though another view is possible, the view taken by the Trial Court cannot be said to be improbable, perverse or unreasonable. It is also a possible view. Law is now well settled that when two views are equally possible, the appeal against acquittal should not be allowed. In the circumstances, the appeal must fail. In the result, the order of acquittal is confirmed. The Criminal Appeal stands dismissed. The bail bonds of the respondents stand discharged. [P.R. BORKAR,J.] snk/2010/JAN10/crap153.00