(1) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 183 OF 1997 1. Vimalbai Shantaram Patil 2. Kasturbai Mitharam Patil 3. Babu Mitharam Patil R/o Udhali, Tq. Raver, District Jalgaon. APPELLANTS VERSUS The State of Maharashtra RESPONDENT .....
Mr. P.R. Katneshwarkar, advocate for appellants.
Mr. V.H. Dighe, A.P.P. for the respondent/State.
[CORAM: V.R. KINGAONKAR, J.] DATE : 18th March, 2009
ORAL JUDGEMENT :
1. Challenge in this appeal is to judgement rendered by learned IIIrd Additional Sessions Judge, Jalgaon, in Sessions Case No. 161 of 1994 whereby the appellants have been convicted for offences punishable under section 306 and 498A read with section 34 of the I.P. Code and sentenced to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 2000/- each, in default to suffer rigorous imprisonment for three (3) months, on first count and to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 1000/- each, in default to suffer rigorous imprisonment for one (1) month, on the second count.
2. Background facts leading to the prosecution, in nutshell, are as follows.
. The appellant No. 3 married deceased – Kamal prior to about seven (7) years of the incident which occurred on 2nd January, 1994 at about 2300 hours in her matrimonial home. The appellants used to reside together under one roof. Deceased Kamal could not conceive and was thus issueless. The appellants used to trouble, ill-treat and harass said Kamal for the reason that she was unable to conceive. They used to call her “wanz’ (——). They used to express suspicion about her character. She was mentally harassed by them while she was residing in the matrimonial home. She, however, continued to bear the ill-treatment and harassment at their hands. She was unable to tolerate the ill-treatment and as such, had gone to reside with her mother. She resided with her mother for about one (1) year. However, she was lateron sent to house of the appellants when her mother-in-law i.e. appellant No. 2 went to fetch her from the matrimonial home. On account of continuous ill-treatment, in the night of 2nd January, 1994, she poured kerosene on her person and immolated herself.
The fire was extinguished by the appellants and some neighbours. Injured Kamal was shifted to hospital.
She succumbed to 100% burn injuries sustained by her, in the night between 3rd and 4th January, 1994. In the meanwhile, her three (3) dying declarations were recorded whilst she was under medical treatment. On basis of one of the dying declarations recorded by Police Head Constable Pandit Patil (PW6), offence was registered against the appellants. The police investigation indicated material to infer offences of matrimonial cruelty and abetment to the suicide of Kamal. Hence, the appellants and original accused No. 1 – Shantaram, ig who is brother-in-law of deceased Kamal, were charge-sheeted to face their trial for the offence punishable under sections 498A and 306 of the I.P. Code.
3. The appellants pleaded not guilty to the charge (Exh-24). Their defence was of simple denial.
The prosecution examined in all eleven (11) witnesses in support of its case and relied upon certain documents. The learned Additional Sessions Judge held that the three (3) dying delcarations of deceased Kamal sufficiently established the charges of matrimonial cruelty and abetment to her suicide. The learned Additinoal Sessions Judge was pleased to accept the case of prosecution on basis of material placed on the record. The appellants were, therefore, convicted and sentenced as described hereinabove.
4. Heard learned counsel for the appellants and learned A.P.P. I have gone through the record and proceedings with the help of both of them.
5. Before I embark upon scrutiny of the prosecution evidence, let it be noted that there is no reliable evidence to infer that the marriage of Kamal and appellant No. 3 Babu was performed within period of seven (7) years of the incident. There is no scope to raise presumption available under section 113A of the Evidence ig Act. The fact that deceased Kamla committed suicide by self-immolation is undisputed.
The post-mortem notes (Exh-41) are not controverted.
It is explicit that deceased Kamal had suffered almost 100% burns all over her person as described in column 17 of the post-mortem notes. There was no unlawful demand. The charge of matrimonial cruelty is said to be covered by explanation (a) appended to section 498A of the I.P. Code. The explanation (a) would make it manifest that the willful conduct alleged must be of such a nature that it would have potential to drive the woman to commit suicide or to cause grave injury or danger to her life, or limb or health. The ordinary instances of ill-treatment may not be sufficient to prove the charge of matrimonial cruelty unless it is shown that the harassment was of such nature as to drive the woman towards terminal end of the life or to cause serious injury to her person.
6. So far as the charge of matrimonial cruelty is concerned, out of the eleven (11) witnesses examined by the prosecution, only two (2) witnesses, namely, Smt. Sunandabai (PW7) and Mandabai (PW8) gave oral account in this behalf. They are respectively the sister-in-law and mother of deceased Kamal. The version of Mandabai (PW8) purports to show that Kamal used to visit her house on occasions of festivals.
She vaguely states that Kamal was ill-treated by the appellants as ig she was issueless. The nature of ill-treatment, harassment or cruelty is not at all spelt out by Mandabai. According to her version, Kamal had resided with her for about one year and was sent before about a fortnight when the appellant No. 2 urged to send her to their house. Her version purports to show that she inquired with deceased Kamal, during her visit to the hospital, as to the cause of the burning and thereupon, the latter told
her that she was harassed by the appellants as she was issueless. This part of her version appears to be untrue. For, version of Smt. Sunandabai (PW7) would show that after returning home, Mandabai informed her that Kamal was unconscious.
7. Cross-examination of Mandabai blows up her version. She admits, unequivocally, that she never visited residential house of the appellants. She admits that Kamal used to visit her house only on occasions of festivals. She further admits that whenever Kamal used to visit her house, sometimes her husband, sometiems her mother-in-law used to visit her house in order to fetch her back. She gave a very significant admission which is reproduced as follows :
“Kamal was staying happily at her matrimonial house at Udhali.”
8. Considering ig the above admissions of Mandabai, who is real mother of deceased Kamal, it is difficult
to infer any matrimonial cruelty meted out to Kamal by the appellants. It is important to note that Mandabai (PW8) did not, even remotely, refer to any suspicion expressed by the appellants about chastity of Kamal.
So also, Smt. Sunandabai (PW7) did not refer to any kind of ill-treatment on the ground of suspicion entertained by the appellants about character of deceased Kamal. According to Smt. Sunandabai, deceased Kamal used to tell her that she was being ill-treated by the appellants on ground of her being issueless. It is the version of Smt. Sunandabai that deceased Kamal narrated to her that she was being abused by the appellants and they were telling her that she was ‘wanzoti’ (———-). The version ofSmt. Sunandabai is rather vague. Both the witnesses did not spell out any particular kind of cruelty meted out to deceased Kamal.
9. It may be noticed that there are three (3) dying declaratinos of deceased Kamal, which were purportedly recorded whilist injured Kamal was under medical treatment in the burn injuries sustained during course of the incident. The first dying declaration (Exh-36) is treated as F.I.R. This dying declaration was recorded by Pandit Patil (PW6), a police Head Constable attached to Savda Police Station at the material time.
ig He received intimation letter from the Medical Officer to the effect that Kamal was admitted in the hospital due to burn injuries. He visited the hospital and contacted the Medical Officer. He claims to have recorded statement of injured Kamal as per her narration. The dying declaration (Exh-36) purports to show that deceased Kamal narrated to Pandit (PW6) that in the relevant night at about 11 p.m., one man was passing in front of her residential house. He had conversation with her and, therefore, the appellant No. 1 expressed suspicion. There was quarrel between the appellants Shantaram on one hand and deceased Kamal on the other hand. She narrated further that always, they used to quarrel with her and, therefore, she was annoyed. She further narrated that in the fit of anger, she immolated herself. There is no whisper in the first dying declaration that deceased Kamal was being harassed or ill-treated on account of her being issueless. The first dying delcaration does not make any reference to the so called taunts given by the appellants to deceased Kamal on account of her inability to conceive and that, she was being called "wanz" (-------), nor this dying dedclaration would
show that there was any particular matrimonial cruelty except and save the quarrels on account of suspicion about her character.
10. It is in the background of above first dying declaration that the second dying declaration (Exh-34) may be examined. The second dying declaration (Exh-34) is corroborated by Vasant Chaudhary (PW4).
He was working as Executive Magistrate, Jalgaon on 3rd January, 1994. He visited Civil Hospital on basis of requisition memo (Exh-33). He states that he ascertained from the Medical Officer that injured Kamal was conscious and fit to give her statement. He thereafter recorded her statement in question and answer form. He states that he recorded her answers verbatim. He corroborated recitals of the second dying declaration (Exh-34). The tenor of second dying declaration (Exh-34) would show that Kamal gave a different version as regards the cause of her suicide.
She narrated before the Executive Magistrate i.e. Vasant (PW4) that in the relevant evening, there was quarrel and many abuses were hurled by the appellants No. 1 and 2. She further narrated that due to her being issueless, she was being troubled and, therefore, she immolated herself. In other words, the cause of her self-immolation is totally different from what she had spelt out in the first dying declaration.
11. The third dying declaration (Exh-50) was recorded by Gangadhar Rane (PW10). He was attached to Jilha Peth Police Station as a constable. He claims that on 3rd ig January, 1994, he visited the Civil Hospital and recorded statement of injured Kamal. He claims further that after recording her statement, he had taken her thumb impression at the bottom of the dying declaration (Exh-50). In her third dying declaration, deceased Kamal is said to have narrated that due to her being issueless, the husband (appellant No. 3) used to trouble and abuse her. She further narrated that on 2nd January, 1994, he quarrelled with her as usual and, therefore, she immolated herself at about 11 p.m. It is most important to notice that in her third dying declaration (Exh-50), there is no reference, whatsoever, to the quarrel with the appellants No. 1 and 2. Nor, there is any whisper about the
matrimonial cruelty meted out to her by the appellants No. 1 and 2. Thus, it is explicit that first dying declaration and the third dying declaration are contradictory to each other. The first dying declaration does not refer to any quarrel with the husband and the third one does not refer to any quarrel with the mother-in-law and the sister-in-law.
The causes shown in both these dying declarations are also quite different from each other. Needless to say, all the three (3) dying declarations are discrepant with each other. These dying declarations cannot be reconciled. They do not indicate identical story. Though small changes could be permitted if the core of narration was the same, yet such major discrepancies would impair credibility of the dying declarations.
12. The law in case of multiple dying declarations is well settled. If there are more than one dying declaration, then there must be sufficient harmony between them. The dying declarations can be accepted if they stand test of credibility. In the present case, I find it difficult to place implicit reliance on the mere dying declarations which are of discrepant nature and outside the realm of reconciliation.
13. It is not necessary to elaborately discuss the remaining evidence of the prosecution. The version of A.P.I. Tukadu Gadhari (PW11) shows as to how the investigation was carried out. The versions of Bhaskar (PW2) and Jagannath (PW3) are of no avail to the prosecution. They are the neighbours of the appellants. They did not subscribe to the charge of matrimonial cruelty meted out to deceased Kamal at hands of the appellants.
14. The Apex Court in "Lella Lella Shrinivasa Rao v. State of Andhra Pradesh" 2004 (9) SCC 713 held that where there was inconsistency in two dying declarations and there was no evidence to support torture and harassment of the wife, the conviction of
the husband of the deceased could not be sustained for offence punishable under section 498A and 306of the I.P. Code. The Apex Court in “Girdhar Girdhar Shankar Tawade v. State of Maharashtra” 2002 (5) SCC 177, 177 held that cogent evidence is required to be produced to bring home the charge under section 498A. The Apex Court in “Sanjay Sanjay v. State of Maharashtra” (2007 AIR SCW 1710), 1710) held that in case of multiple dying declarations, which were inconsistent with each other, the accused was entitled to benefit of doubt. A Division Bench of this Court in “Suresh Suresh s/o Arjun Dodorkar (Sonar) v.
State of Maharashtra" 2005 ALL MR (Cri) 1599, 1599 held that in cases where there are multiple dying declarations and acceptance of one dying declaration falsifies the other, the dying declarations will have to be necessarily rejected. In view of the settled legal position and the nature of evidence discussed hereinabove, I am of the opinion that the prosecution failed to establish the charge levelled against the appellant. The impugned judgement of conviction and sentence is quite unsustainable. 15. In the result, the appeal is allowed. The impugned judgement of conviction and sentence is set aside. The appellants are acquitted of the charge for the offences punishable under section 498A and 306 read with section 34 of the I.P. Code. Their bail bonds be deemed as cancelled. The fine amount, if deposited, shall be refunded to each of them as per the deposited amounts. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL183-97