( 1 ) IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE APPELLATE APPELLATE SIDE, CRIMINAL JURISDICTION SIDE, CRIMINAL JURISDICTION SIDE, CRIMINAL JURISDICTION CRIMINAL CRIMINAL CRIMINAL APPEAL NO. 783 OF 2001 APPEAL NO. 783 OF 2001 APPEAL NO. 783 OF 2001 01. Subhash Parashram Barge ] Age 26 years, occup. ] Coolie (Labour), ] 02. Sou Mandakini Parshram ] Barge, Age about 48 ] years, occup. Household ] Both r/of Jinti Peth, ] Koregaon,Taluka Koregaon] Appellants/ District Satara. ] original (presently in Central ] accused Nos. Prison, Yerwada,Pune) ] 1 and 2. Versus Versus Versus The State of Maharashtra] through Koregaon Police ] Station, Satara. ] Respondent ------ Shri D.G.Khamkar,Advocate for Appellant No. 1. Shri Dilip Bodke, Advocate for Appellant No.2. Smt. A.M.Shringarpure, A.P.P. for Respondent. ------- Coram: Coram: Coram: N. V. Dabholkar, and N. V. Dabholkar, and N. V. Dabholkar, and Smt.V.K.Tahilramani, Smt.V.K.Tahilramani, Smt.V.K.Tahilramani, JJ. JJ. JJ. Dated: Dated: Dated: January 31, 2006. January 31, 2006. January 31, 2006. Ooal Ooal Ooal Judgment (Per: Dabholkar, J.) Judgment (Per: Dabholkar, J.) Judgment (Per: Dabholkar, J.) 1. Although, the husband and his parents were tried by II Additional Sessions Judge Satara for the offences punishable under Sections 498-A and 302 r.w. 34 of IPC, at the conclusion of Sessions Case No. 6 of 2000, by his judgment and order dated 10.08.2001, the learned trial Judge has acquitted father-in-law Parashram/original accused No.3 of both the charges. ( 2 ) Husband Subhash is held guilty on both counts and mother-in-law is said to have been in common intention so far as murder is concerned. Consequently, the husband and mother both are sentenced to suffer life imprisonment and fine of Rs.500/- each i/d S.I. for two months so far as offence under Section 302 r.w. 34 of IPC. Husband Subhash is further sentenced to R.I. for one year and fine of Rs.300/- i/d R.I. for two months for offence under Section 498-A of IPC. His substantive sentences are ordered to run concurrently. . By the present appeal under Section 374(2) of Cr.P.C., 1973, son and mother challenge the said conviction and sentence. 2. According to prosecution story, the incident in question took place on 21.9.1999 at about 6.00 a.m. Victim of the incident viz. Manisha was married to accused No.1 Subhash on 15.11.1998 at Bhairoba Temple, Koregaon. An amount of Rs.10,000/- was paid by way of dowry. A tola of gold, cot, matresses, utensils and other usual articles were also offered as gift. . After marriage, Manisha resumed cohabitation with accused and initial period of 5/6 months was without trouble. It is the claim of P.W.5 Chandrakant (father of the deceased) that accused started ( 3 ) ill-treating Manisha after lapse of six months since the marriage. She was not allowed to use soap, she was not provided adequate food, she was prevented from visiting neighbours. On one occasion, when Manisha had returned to her father, father claims to have seen weal marks on the person of Manisha. Manisha had complained of her husband beating her under the influence of liquor and by expressing suspicion about her fidelity. Father also claims that he had taken mediators to the place of husband and tried to prevail upon the husband and his relatives so that they should treat Manisha properly. . On 21.09.1999, father learnt about his daughter having sustained burn injuries from a neighbour of accused. He proceeded to Koregaon (place of the husband) and reached there at about 9.30 a.m. He learnt that Manisha was shifted to Civil Hospital, Satara. He proceeded further and visited victim Manisha at Civil Hospital Satara. It is the claim by the father that Manisha narrated of being starved for last two days, she also narrated that her mother and father in law caught her and husband had immolated her. The deposition of the father, thus, is oral dying declaration on record. . In fact, statement of Manisha recorded by P.W.3 Yuvraj Tate, A.S.I. which is at Exh.19 is treated as F.I.R. and crime was registered by Satara City ( 4 ) Police Station on the basis of the same. Subsequently, investigation was transferred to Koregaon police station since the incident had occurred within the territorial limits of that police station. On completion of investigation, P.W.6 Balkrishna Shinde, P.I. had filed the charge-sheet in the Court of J.M.F.C. Koregaon and upon committal, trial ended in conviction by Sessions Court, Satara, as described above. 3. Evidence of P.W.2 Dattatraya Mane (Awal Karkoon/Executive Magistrate) and P.W.3 Yuvraj Tate who was then attached to Satara police station as Hawaldar and therefore, posted on duty at Civil Hospital Satara, is of greatest importance. Both these witnesses have recorded statements of victim Manisha (Exh. 17 and 19 respectively). Shri. Mane has recorded between 12.00 to 12.15 hrs and Shri. Tate has recorded between 09.25 to 09.55 hrs both on 21.09.1999. As already stated, P.W.5 Chandrakant Phalke, is the father of deceased Manisha. Dr. Shubhangi Patil, Medical Officer attached to Civil Hospital Satara was present and she has certified the fitness of the patient to make statement on both occasions i.e. while recording Exh. 17 and 19. Dr. Shubhangi has also performed post mortem and in her report (Exh.26) she has opined that Manisha died due to septicaemic shock due to 51% superficial to deep burns. P.W.1 Dnyandeo is witness to spot panchanama (Exh.14) ( 5 ) and P.W.6 Balkrishna Shinde, P.I. Koregaon police station is investigating officer. . In this matter, accused has examined one Nanda Barge as defence witness. Nanda is not only neighbour but she is also related to accused No.1. Since, she admits that her husband is the uncle of accused No.1. According to Nanda, on the date of incident, on hearing shouts of woman from the house of accused, she had proceeded to the location, she found that Manisha had suffered burn injuries and on enquiry, Manisha told her that while she was keeping the pot on the earthen fire place (-----), one side of the same collapsed, her saree end, therefore, caught fire. Thus, Nanda had deposed about exculpatory dying declaration of victim Manisha suggesting Manisha having suffered burns as a result of accident. 4. During the statements under Section 313 of Cr.P.C. both the appellants admitted the relationship. They also admitted that Manisha died as a result of burn injuries but all other averments of the prosecution are denied. The composite written statement is filed by three accused persons at that stage. In the said written statement, story of Manisha having suffered burn injuries as a result of accident is narrated thus; ( 6 ) . While accused No.1 had finished his morning duties, Manisha was trying to place a water pot on the fire place for heating the water for bath. In the process, left side of earthen fire place collapsed and while she was trying to control falling utensil, end of her saree caught fire. Accused No.1 Subhash raised shouts, he tried to extinguish the fire by his hands and in the process, he suffered burn injuries to his hands and face. Neighbours informed the parents of Manisha. It is also claimed that the couple was staying in ancestral house whereas parents were staying in the newly constructed house. Father of Manisha initially expressed suspicion and is now making false allegations of accused persons having murdered her. Thus, according to defence, Manisha suffered burns by an accident and accused are not guilty of murder. 5. For the reasons discussed in paras 10 to 13 of his judgment, the learned trial Judge was inclined to believe dying declaration Exh.19 (as recorded by Hawaldar Tate). The learned Judge found that it was recorded before 10.00 a.m. i.e. before arrival of parents of Manisha and therefore, there was no opportunity for any tutoring. The trial court also felt that evidence of P.W.5 Tate was supported by Medical Officer Dr. Shubhangi (P.W.4). Merely because the same was not recorded in question-answer form that was not ( 7 ) sufficient to look to the statement with disbelief. Other dying declaration Exh.17 is considered and dealt with by the trial Court in para 14 and for similar reasons i.e. evidence of recording Officer Shri Dattatraya Mane (P.W.2) supported by Medical Officer Dr. Shubhangi, the learned Judge found the same to be reliable. The evidence of defence witness Nanda regarding oral dying declaration suggesting accident is discarded by the trial Court in the light of Exh.39. Exh.39 is medical case record of victim Manisha and history of burns as recorded in the medical papers is "suicidal burning". In view of the conflicting theories propounded by the defence, trial court was not inclined to place any reliance upon the evidence of defence witness Nanda. . Since no overt act is attributed to father-in-law, he was exonerated of both the charges. In fact, accused No.1 Subhash is convicted under Section 498-A of IPC merely because he expressed suspicion against fidelity of deceased Manisha and thus, the husband is held guilty of two charges whereas mother-in-law of only charge of murder. 6. Heard Advocate Shri Khamkar for appellant No. 1, Advocate Shri Dilip Bodke for appellant No. 2 and ( 8 ) Shri A.M.Shringarpure, APP for Respondent No.3-State. The two lawyers representing the appellants have taken us through the entire evidence and we intend to deal with their submissions, during the course of discussion of reasons for our conclusions, in stead of enlisting the submissions, by an independent paragraph. 7. First of all, we intend to deal with the finding of guilty as recorded by learned trial judge, so far as offence punishable under Section 498-A of IPC is concerned. The issue is dealt with by the learned Sessions Judge quite summarily in paragraphs 21 to 23 of his judgment. Chandrakant, father of the deceased (PW-5) has devoted entire paragraph 2 of his chief examination towards narrating ill-treatment to his daughter. He has deposed to have heard complaints from his daughter deceased Manish against the accused persons. According to him, husband of the deceased used to beat her under influence of liquor and by suspecting her fidelity. The accused did not allow her to use soap, did not give adequate food and did not allow her to go to the neighbours. He also boasted to have noticed weal marks on the person of the deceased Manisha, when he had returned to parents, after being beaten by the accused. He also claimed that, he had tried to persuade accused persons with the assistance of 2-3 mediators. Unfortunately, when we refer to his ( 9 ) cross examination, all this narration of the father has turned out to be at the cost of improvement over and above his police statement. . Learned Judge has also referred to stories of ill-treatment, as have occurred in the two dying declarations. In Exh. 17, Manisha has stated that her in-laws used to abuse her and husband used to beat her under influence of liquor, because of suspicion about her fidelity. Other dying declaration (Exh.19) contains allegations, such as, refusal of use of soap and coconut oil and conduct of accused No. 1 beating her due to suspicion about fidelity. . Learned trial judge in paragraph 22 of his judgment, observed that, so far as accused Nos. 2 and 3 are concerned, there are no specific charges, which would fall within the ambit of ‘cruelty’ as defined in explanation to section 498-A IPC. According to him, even if allegation to the effect that she was denied use of soap and coconut oil etc are believed to be true, those cannot attract term ‘cruelty’ as contemplated by section 498-A IPC and there are no allegations against parents that they ever expressed suspicion against her fidelity. Hence, learned Judge has exonerated the parents-in-law of deceased Manisha, of the charge under section 498-A IPC. The State having preferred no appeal ( 10 ) ( 11 ) against the said acquittal, we are not required to reconsider the acquittal, as recorded by the trial judge against accused Nos. 2 and 3 on that count. . So far as accused No.1-husband is concerned, learned trial judge felt that his case stood on different footing. Expressing an opinion that, the conduct of the husband in suspecting character of the wife, was detrimental to the mental health of the woman, as no lady would be able to tolerate slur on her character, learned Judge held that, this conduct of accused No.1 comes within clutches of section 498-A IPC. . At the commencement of the argument, we have, on our own,informed the lawyer for appellant No.1 that, he need not argue for acquittal, so far as Section 498-A IPC is concerned. The definition of ‘cruelty’ as embodied in the explanation to section 498-A IPC, contemplates two types of situations, which attract penal consequences under Section 498-A. Firstly, either mental or physical treatment by the husband, or his relatives to the wife should be of such a nature that the wife is driven to commit suicide. In the matter at hands, prosecution has come with a case of homicide and not suicide. Therefore, prosecution story, even if accepted as it is, the first clause of explanation to ( 12 ) Section 498-A IPC, is not applicable. Harassment or ill-treatment of the wife by husband and his relatives comes within the clutches of Section 498-A, even though the wife is not psychologically driven to commit suicide, provided such harassment / ill-treatment is aimed at coercing the wife or her relatives for the purpose of satisfaction of illegal demands of the husband and/or his relatives. In the matter at hands, it is not the case of the prosecution that ill-treatment was aimed at coercing the wife or her relatives to satisfy any illegal demand of husband and/or his relatives. In fact, there is no averment of husband, or his relatives making any demand. The contention that the husband was drunkard or that he expressed suspicion against character of the wife and, therefore, he used to beat her would not fall within the ambit of definition of ‘cruelty’. Appeal to the extent, it challenges conviction u/s 498-A IPC, therefore, succeeds. 8. Although the husband and his mother have engaged independent lawyers, realizing that the dying declarations on record, couple recorded and one oral, being main stem of the prosecution story, the two lawyers have assailed the dying declarations in their own way. We are aware that, if we arrive at a conclusion that the dying declarations are not reliable, being convinced by the submission of counsel for either ( 13 ) appellant, the benefit would go also to other appellant. 9. Dying declaration (Exh.19) is recorded by the then Havaldar (now A.S.I.) Yuvraj Tate (PW-3) on 21.9.1999 between 9.25 am to 9.55 am. (The incident is said to have occurred on the same day at 6.00 am. This dying declaration is treated as FIR and offence was registered on the basis of the same, by Satara City Police Station under zero number and subsequently transferred to Koregaon Police Station, which registered it as CR No.85/1999 at 18.05 hours on 21.9.1999. Shri Tate was on duty at civil hospital, Satara, from 9.00 am to 9.00 pm on that day. Police Constable Ghodke was his companion on duty. When Manisha was admitted to the hospital, PW-3 Tate was called by Casualty Medical Officer (CMO) and his attention was drawn to the burnt patient (Manisha) admitted in the hospital. Accordingly Shri Tate himself, Police Constable Ghodke and doctor went to the casualty room, doctor examined the patient and informed Shri Tate that manisha was in a position to make a statement. He, thereafter, recorded statement of Manisha, as at Exh.19. Although PW-3 Tate has not so deposed, Exhibit 19 within itself contains a recital that the statement was read over and was admitted by her to be correctly recorded. PW-3 Tate has denied suggestion that he has prepared the dying declaration at the instructions of parents of the patient. ( 14 ) ( 15 ) . Dying declaration (Exh.17) recorded by Tahsil Awal Karkoon Shri Mane (PW-2) and it was second in time and was recorded between 12.00 noon to 12.15 p.m. According to Shri Mane, police constable had come to invite him for recording dying declaration at civil hospital, at about 11.30 a.m. After permission from his superior, he reached civil hospital, within five minutes. On reaching hospital, he contacted the Medical Officer. The Medical Officer accompanied him to the burn Ward. Nobody was near the patient at that time. The Medical Officer ascertained, by asking some questions to the patient, that the patient was in a condition to make statement. Thereafter, he recorded statement between 12.00 noon to 12.15 p.m. Shri Mane has also produced on record at Exh.16, a letter of request from P.S.O., Satara Police Station. . The prosecution has not left the matter, by relying upon depositions of two recording officers. It has also examined Dr. Shubhangi Patil (PW-4), who had certified fitness of the patient to make a statement on both the occasions. Deposition of Dr. Shubhangi is at Exhibit 25. According to her, she was Cacualty Medical Officer, from 8.00 a.m. to 2.00 p.m. at the civil hospital on 21.9.1999. Manisha was referred by Koregaon rural hospital and was admitted as burnt patient, when ( 16 ) she was on duty. She had examined the patient immediately after admission at 9.15 a.m and had informed the police, whereafter the police recorded statement of the patient in her presence, while patient was conscious and well-oriented. She confirms that the police man recorded the statement (Exh.19) only after consulting her. She has also deposed that at about 12.00 p.m., the Magistrate had come to record the statement and had consulted her. She had accompanied the Magistrate to the bed of the patient and before recording of the statement by the Magistrate, she had informed the Magistrate that the patient was conscious and oriented. Deposition of Dr. Shubhangi is duly supported by existence of her endorsement on both the dying declarations (Exhs.19 and 17). She has put her endorsement only once, to the effect that the patient is conscious and in a condition to give statement, between 9.25 a.m. to 9.55 a.m., and 12.00 noon to 12.15 p.m. 9. Shri Bodke, learned Advocate for appellant No.2, tried to assail Exhibit 19, by submitting that the prosecution has not examined Police Constable Ghodke, who had accompanied PW-3 Tate, when Tate recorded the dying declaration. It is settled legal position that evidence is to be weighed and not counted. After all, Police Constable Ghodke was not going to depose anything ( 17 ) different than what PW-3 Tate deposed. In fact, Tate himself recorded the statement and thus the prosecution has led the best possible evidence. Non-examination of his companion Shri Ghodke is, therefore, not sufficient to look to the dying declaration with suspicion. . Because none of the recording officers specifically deposed that they themselves had satisfied about the fitness of the patient to make statements, Advocate Shri Bodke argued that the statements cannot be treated as reliable piece of evidence and for the purpose, Shri Ghodke placed reliance upon judgment of the Hon’ble Apex Court in the matter of Laxman vs. State of Maharashtra, 2002 AIR SCW 3479. In fact, we are of a considered view that reliance placed on the said judgment by Advocate Shri Bodke, is misplaced. The reported judgment has overruled the ratio laid down by the Hon’ble Apex Court in its earlier judicial pronouncement in the matter of Paparambaka Rosamma v. State of Andh.Pra.1999 AIR SCW 3440. Shri Bodke placed reliance upon following observations, contained in head note. " What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state ( 18 ) of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. " . In fact, further observations in the same paragraphs read thus:- " A certification by the doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise. " . In fact, we must say that rigours of procedural aspect of recording dying declarations, which were imposed by earlier judicial pronouncements, were relaxed to quite a considerable extent by the ratio laid down by the Hon’ble Apex Court in the matter of Laxman Laxman Laxman (supra) (supra) (supra). This is evident from observations in paragraph 5, which read: " It is in deed, a hyper-technical view that the certification of the doctor was to the effect that the patient is conscious and there ( 19 ) was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his ( 20 ) 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 whereafter he recorded the dying declaration. " . Ratio laid down in the case of Laxman (supra), does not require the recording officer himself to satisfy fitness of the patient, even after the same is certified by the medical officer taking care of the patient. On the contrary, even if there is no certification by the medical officer, but in that case, if the recording officer has satisfied himself of fitness of the patient to make a statement, absence of certification by the medical officer, does not obstruct admissibility of the dying declaration and reliance upon the same, if found to be voluntary and truthful. . In the matter at hands, the prosecution has not relied only upon the statements of the recording officers that they had consulted the medical officer and recorded the dying declaration only after the medical officer had certified fitness of the statement to make a statement to them, but the prosecution has also examined Medical Officer, who has supported the recording officers, about her having examined the patient and ( 21 ) having conveyed them fitness of the patient to make a statement. . Even otherwise, Shri Mane (PW-2) has deposed that he put certain questions to the patient, asked her name, age, address, whether she was married, and he took down replies to these questions and thereafter he recorded the statement. Even the Head Constable Tate had asked patient, her name and address and only thereafter he had asked her to narrate the incident. Both the recording officers had ascertained the fitness of the patient to make a statement, with the assistance of the Medical Officer and thereafter, it was not necessary for them to independently assess and acertain the fitness. . Yet, it appears that they themselves had put preliminary questions to the patient, which satisfied them about patient being oriented and only thereafter they recorded the statements. We are unable to find any procedural flaw in recording the dying declarations by Havaldar Tate and Executive Magistrate Shri Mane. We are, therefore, unable to accept submissions of both the learned Counsel for the appellants that, possibly, the patient was not in a condition fit to make a statements or that, the statements were recorded without ascertaining such fitness of the patient. Merely ( 22 ) because Shri Mane did not introduce himself to the ( 23 ) patient, as Magistrate, or because he did not specifically question the patient whether she was physically and mentally fit, or because he did not mention in the statement, whether the patient was under any pressure or not, that by itself will not be sufficient to infer that the patient was not fit to make statement, or that the patient was making