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2005 DIGILAW 1151 (BOM)

State of Maharashtra v. Bhairaoprasad s/o. Shionarayan Saraf

2005-09-01

J.N.PATEL, R.C.CHAVAN

body2005
R.C. CHAVAN, J.:- Taking exception to the respondents' acquittal, by learned Additional Sessions Judge, Achalpur, of the offences punishable under Sections 306, 498-A and 304B of the Penal Code, the State has appealed. The facts which led to the prosecution of the respondents are as under: 2. Victim Mamta, daughter of one P.S.I. Gupta, was married to respondent No.6 Shamkumar on 30th November, 1989. Respondent Nos.1 and 2 are parents of Shamkumar and respondent Nos.3 and 4 are his siblings. It was alleged that Mamta was illtreated by her in-laws. The ill-treatment was such that Mamta was driven to commit suicide on 05-07-1991. She sustained severe burn injuries and was admitted to hospital but succumbed to her injuries on 14-07-1991. On a report by her father, offence was registered and investigation commenced. 3. In the course of investigation police has caused Dying Declaration of Mamta to be recorded, sent dead body of Mamta for Post-Mortem examination after conducting inquest, recorded statements of witnesses, seized incriminating articles and on completion of investigation sent charge-sheet to learned Judicial Magistrate, First Class, Achalpur. The learned Magistrate committed the case to the Court of Sessions at Achalpur, on finding that the accused were involved in commission of offence triable exclusive by the Court of Sessions. 4. The learned Additional Session& Judge, Achalpur charged the respondents of the offences punishable under Sections 306, 498-A and 304-B of the Penal Code. All the respondents/accused pleaded not guilty and hence, were put on trial. In its attempt to bring home the guilt of the accused the prosecution examined in all seven witnesses and the defence examined one witness. Upon consideration of the evidence tendered before him, the learned Additional Sessions Judge came to acquit the respondents. As already stated, aggrieved thereby, the State has preferred this appeal. 5. We have heard the learned Additional Public Prosecutor, Shri. Mirza, for State, With the help of Shri. Mirza, we have gone through the entire evidence on record in order to find out whether the learned trial Judge erred in concluding that the charges were not proved. There is absolutely no evidence about any demand of dowry being the cause of illtreatment. There is only one sentence in the evidence of P.W.1 Shivkanti, mother of the victim that, Mamta's in-laws had said that, if respondent No.6 had married some other girl dowry of Rs.80,000/- would have been received. There is absolutely no evidence about any demand of dowry being the cause of illtreatment. There is only one sentence in the evidence of P.W.1 Shivkanti, mother of the victim that, Mamta's in-laws had said that, if respondent No.6 had married some other girl dowry of Rs.80,000/- would have been received. This statement is, not corroborated by other two witnesses, P.W.2 Amita, sister of the victim and P.W.3 Vi nay, victim's brother. It seems that customary gifts had been given to the victim and her in-laws from time to time. Even a day prior to the incident, according to P.W.1 Shivkanti, respondent No.6 had come to her house and had taken new silver ornaments for Mamta. Shivkanti and two witnesses have, however, came out with very strange allegations that Mamta's father-in-law and brother-in-law, accused Nos.1 and 5, had evil eye and accused No.5 made very nasty and vulgar comments which were conveyed by victim Mamta to them. However, it is worthy to note that none of the witnesses said anything about complaint or mediation through third party in respect of the acts of cruelty. P.W.1 Shivkanti admits that though she knew that her daughter was in a trouble she sent back her daughter to the matrimonial home and could not assign any reason for so doing. It seems to us that except for normal wear and tear in the married life there might not be much substance in the allegations levelled by the three prosecution witnesses. Otherwise Mamta would not have been sent back to matrimonial home. 6. Again, except for three witnesses, there is no evidence to show that Mamta had committed suicide. Only the mother and siblings of Mamta stated that Mamta told them that she committed suicide because of harassment. 7. The police had caused Dying Declarations of Mamta to be duly recorded by summoning an Executive Magistrate who was examined as P.W.5. Shri. Mujibur Raheman, Naib Tahsildar, proved the Dying Declaration recorded by him at Exh.27, which shows that it was recorded after the Doctor had duly examined Mamta and certified her to be fit to make a Dying Declaration. The Doctor had certified at the close of Dying Declaration that the patient was fully conscious during recording of the Dying Declaration. Shri. Mujibur Raheman, Naib Tahsildar, proved the Dying Declaration recorded by him at Exh.27, which shows that it was recorded after the Doctor had duly examined Mamta and certified her to be fit to make a Dying Declaration. The Doctor had certified at the close of Dying Declaration that the patient was fully conscious during recording of the Dying Declaration. P.W.4 Special Judicial Magistrate Shri. Pathak had also been summoned to record Dying Declaration which is at Exh.41 and which too bears necessary endorsement of Doctor about fitness of Mamta. In addition to that the defence examined H.C. Nilkanthrao who had recorded statement of Mamta at Exh.55. All these statements consistently show that Mamta claimed that she had sustained accidental burns. Three statements came to be recorded at 11.00 a.m., 6.15 p.m. and about 12.30 p.m. on 5-7-1991. 8. Since the victim was a daughter of police officer, who unfortunately expired before the trial concluded and could not be examined as a witness, it is imperative that all precautions in recording Dying Declaration would have been taken and that there would have been no pressure on Mamta to hide the truth. The fact that three Dying Declarations were recorded may indicate that since the father may not be satisfied the police went on recording statements again in order to ensure that there was no pressure on the victim. P.W.4 Shri. Shriniwas Pathak, Special Judicial Magistrate as also P.W.5, Naib Tahsildar, Mujibur Raheman, had both stated that they had asked the relations of the victim to go out while recording the Dying Declarations. 9. In view of this,' though it is extremely unfortunate that the victim died of 62% burn injuries, as mentioned in note of post-mortem examination at Exh.28 and though relations of the victim viz. P.W.1 Shivkanti, P.W.2 Amita, P.W.3 Vinay and P.W.6 Santoshkumar had all stated that the victim had committed suicide, the learned trial Judge rightly rejected these accounts and preferred account of the incident given by the victim to two Magistrates and a Police Head Constable. In view of this, since the victim did not commit suicide there is no question of her having been subjected to cruelty to provoke her to commit suicide, or any unlawful demands having led to such suicide. 10. Hence, in our view, the order passed by the learned trial Judge does not call for any interference from us. In view of this, since the victim did not commit suicide there is no question of her having been subjected to cruelty to provoke her to commit suicide, or any unlawful demands having led to such suicide. 10. Hence, in our view, the order passed by the learned trial Judge does not call for any interference from us. We, therefore, dismiss the appeal and direct that the Bail bonds, if any, furnished by the respondents/accused, shall stand cancelled. Appeal dismissed.