Research › Search › Judgment

Bombay High Court · body

2006 DIGILAW 1958 (BOM)

STATE OF MAHARASHTRA v. JUBEDABAI w/o SHABBIRSHAH

2006-12-04

C.L.PANGARKAR, K.J.ROHEE

body2006
ORAL JUDGMENT C. L. PANGARKAR, J. :- The respondent-State of Maharashtra has preferred this appeal against the order of acquittal passed by Additional Sessions Judge, Akola whereby he acquitted the respondents of the offences punishable under sections 498-A, 304-B and 302 read with section 34 of the Indian Penal Code. 2. The facts giving rise to this appeal are as under :- Deceased Nasimbano was married to accused No.2 seven years ago. She was living with accused Nos. 1 and 2. Accused No.1 is the mother in-law of the deceased. It is alleged that accused Nos. 1 and 2 used to ill-treat Nasimbano in order to pressurise her to bring money from her parents. As a result of this, Nasimbano once filed a complaint against accused persons under section 498-A of the Indian Penal Code. Later accused persons assured to treat said Nasimbano properly, as a result of which the complaint was withdrawn. It is alleged that even after this complaint was withdrawn, she was being ill-treated by the accused persons. On the day of the incident, while Nasimbano was at home, she was set on fire by the accused persons by pouring kerosene on her person. She was removed to hospital where she died. She had suffered 60% burns. It is alleged that before her death, her dying declaration was recorded by the Executive Magistrate and she also made a oral dying declaration wherein she implicated accused No. 1. It was alleged by her in the said dying declaration that accused No. 2 was merely watching the incident. After the statements of witnesses were recorded, charge-sheet was filed against the accused persons. The case was committed to the court of Sessions. 3. The learned Sessions Judge framed charge against the accused persons, to which they pleaded not guilty and claimed to be tried. Their defence was of total denial. The learned sessions Judge, after consideration of the evidence, acquitted both the accused of the offences with which they were charged. It is against this order of acquittal that this appeal has been preferred. 4. We have heard the learned Additional Public Prosecutor for the appellant/State and the learned counsel for the respondent-accused. 5. The prosecution, in order to bring home guilt to the accused, had examined eleven witnesses. None of the witnesses is an eye witness. It is against this order of acquittal that this appeal has been preferred. 4. We have heard the learned Additional Public Prosecutor for the appellant/State and the learned counsel for the respondent-accused. 5. The prosecution, in order to bring home guilt to the accused, had examined eleven witnesses. None of the witnesses is an eye witness. The prosecution relies on the dying declaration said to have been made by the deceased. 6. In an appeal against acquittal, the appellate court can set aside the acquittal only if the conclusions drawn by the trial court on the evidence on record are found to be unreasonable, perverse or unsustainable. Even when two views are possible on the same set of facts and evidence, the appellate court is not supposed to interfere with the finding of acquittal. 7. The prosecution had examined twelve witnesses. None of them is an eye witness. The case rests on dying declaration. 8. The accused have been charged for commission of offence under section 304-B of the Indian Penal Code. Section 304-B of Indian Penal Code speaks of dowry death. There are three ingredients of this section. First is that - the Death of a woman must occur due to bum or bodily injury otherwise than under normal circumstances. Second - it must occur within seven years of the marriage, and third - she must have been subjected to cruelty or harassment in connection with the demand of dowry. If anyone of the ingredients is not proved then the charge under section 304-B must fail. It is admitted by PW 2 - Kalimunissa, sister of the deceased, that the marriage of the deceased had taken place more than seven years prior to the date of incident. If she was married for more than a period of seven years of the date of the incident then certainly one of the ingredients of section 304-B of the Indian Penal Code is not fulfilled. Further the evidence of the witnesses PW 2 Kalimunissa and PW 3 Ahmadshah would show that the accused had made a demand of Rs.1500/- once and Rs.1000/- once again, but their evidence does not go to show that that demand was in connection with the dowry agreed to be paid to the accused. Further the evidence of the witnesses PW 2 Kalimunissa and PW 3 Ahmadshah would show that the accused had made a demand of Rs.1500/- once and Rs.1000/- once again, but their evidence does not go to show that that demand was in connection with the dowry agreed to be paid to the accused. There is no evidence whatsoever that the father of the deceased had agreed to pay any kind of dowry to accused No.2 and that accused No. 2 was demanding that amount, which was agreed to. Since there is no evidence that this demand related to dowry, it certainly does not fall under section 304-B of the Indian Penal Code. Furthermore, the evidence of Ahmadshah would show that the amount, which he had paid to accused No.2, was in connection with the business which he wanted to carry out and accused No.2 had returned that amount to him after three months. Since the father of deceased himself says that he had lent the amount to accused No.2 for the purpose of the business and the accused had returned that amount, the demand that was made by accused No.2 was certainly not in respect of dowry and since accused No. 2 had really returned the amount to the father of the deceased, it is just difficult to believe that accused No.2 would illtreat the deceased to bring money from her parents. Charge under section 304-B of the Indian Penal Code is, therefore, rightly held to be not proved. 9. It is also in the evidence of Ahmad shah - father of the deceased - that his daughter was never illtreated by accused and she never made any complaint to him. What PWs 1 and 2 have stated is that Nasimbano used to make complaint about illtreatment and that was in connection with the demand of money. We have already seen from the evidence of Ahmadshah that amount was returned by accused No.2 to him. When accused No.2 had really returned the amount, which was lent to him, we find it difficult to believe in the words of PW 1 and 2 that accused No.2 would in any way harass his wife i.e. the deceased for bringing money from her parent i.e. PW 3. Furthermore, it may be mentioned that none of the witnesses has given any date, time or place of the alleged illtreatment or nature of the illtreatment. Furthermore, it may be mentioned that none of the witnesses has given any date, time or place of the alleged illtreatment or nature of the illtreatment. Simply saying that the deceased was being harassed would not be enough. Harassment must amount to cruelty. In order to prove cruelty, some overtact on the part of the accused must be established. None of the three witnesses has stated even a single word as to in what manner the deceased was being harassed or illtreated. We, therefore, find that the learned Sessions Judge was right in holding that charge under section 304-B and 498-A of the Indian Penal Code is not proved. 10. There are two dying declarations - one is written and other is oral. If there are more than one dying declarations, they should be consistent. They should be free from infirmities and there should be no possibility of deceased being tutored. 11. PW 2 - Kalimunissa is the real sister of the deceased, who lives nearby the house of the accused persons where deceased was living. She was the first to reach at the house of the deceased upon hearing of the news. She is the person who carried her to the hospital in the Rickshaw. It is in the evidence of PW 3 Ahmadshah, the father of the deceased, that PW 2 Kalimunissa was all along with the deceased and also in the hospital she was by her side. Surprisingly, this witness does not utter a word about deceased's telling her about the cause of bums. Kalimunissa can be said to be the person close to the deceased, since she is the real sister. If she is the real sister, it is just difficult to accept that deceased would not disclose the cause of death to her sister but disclose it to others. PW 1 Ajijsha-husband of Kalimunissa-tells of deceased having told him that accused No. 1 burnt her by pouring kerosene. He tells this only after he was declared hostile by the prosecution and leading questions were put to him. This evidence of PW 1 Ajijsha does not inspire confidence for two reasons. Firstly, he did not make a clean breast. Secondly, it is difficult to accept that any woman would tell about the cause of death to her sister's husband instead of directly to the sister when she was all along her side. This evidence of PW 1 Ajijsha does not inspire confidence for two reasons. Firstly, he did not make a clean breast. Secondly, it is difficult to accept that any woman would tell about the cause of death to her sister's husband instead of directly to the sister when she was all along her side. We have seen that Kalimunissa, who was all along her side, did not utter a word about deceased's telling her as to the cause of death. We find it to be very strange. For this reason, we find it difficult to accept the testimony of PW 1 Ajijsha that deceased has made any dying declaration to him. The learned Sessions Judge has rightly, therefore, rejected this dying declaration. 12. Turning to the second dying declaration, the learned Sessions Judge has observed that this dying declaration (Exh.35), which was taken down by the' Executive Magistrate, could not be relied upon because of the fact that even before this dying declaration the deceased has had any opportunity to disclose the cause of death to many persons but she did not. It must be said that the deceased had many opportunities to give information to her sister, to her father and other relatives but she did not disclose it to anyone, who were, in fact, very close to her. If at all anything was told by deceased to her sister and father, they did not make the clean breast and did not tell anything about deceased's having told them about the cause of the bums. This, to our mind, is very strange thing and very suspicious thing. The fact remains that the deceased, though had an opportunity did not disclose the cause of her death either to her father or to her sister. It may be observed here that this circumstance makes it doubtful if deceased was at all in a position to give a statement and if she was, whether she really implicated her mother-in-law. 13. There are further two more reasons why dying declaration (Exh.35) recorded by the Executive Magistrate could not be relied upon. First is that, the dying declaration is contrary to the endorsement made by the Medical Officer on the case papers of the deceased, which were prepared in the hospital. Those papers are Exh. 40. 13. There are further two more reasons why dying declaration (Exh.35) recorded by the Executive Magistrate could not be relied upon. First is that, the dying declaration is contrary to the endorsement made by the Medical Officer on the case papers of the deceased, which were prepared in the hospital. Those papers are Exh. 40. On this, there is an endorsement that the relatives had given an information that there was explosion of stove. It was Kalimunissa (PW 2) alone, who was with the deceased at the time of admission. PW 10 - Dr. Sunil Mahankar has positively stated that this history was given by the relatives of deceased Nasimbano. Kalimunissa had carried the deceased to the hospital and she was with the deceased at the time of admission, as said earlier, and it is therefore she alone who could have given information to the Medical Officer at the time of admission. It is an admitted position that none of the accused or their relatives had come to the hospital. In any case this information could not have been given by anybody, who was interested in the accused. Hence, if Kalimunissa, the real sister of the deceased, had given this kind of information that just cannot be brushed aside. It is clear from the evidence that Kalimunissa's husband and deceased's father were only with the deceased in the hospital throughout. It is in the evidence of PW 3 Ahmadsha that Kalimunissa was sitting by the side of the deceased in the hospital. Hence, till the time of recording of dying declaration by the Executive Magistrate, her relatives were with her. Hence, the possibility of deceased having been tutored by Kalimunissa cannot be ruled out. It appears that this statement of deceased is result of tutoring because of the fact that Kalimunissa had already told the Medical Officer and others that the death had occurred due to explosion of the stove. 14. There is yet another reason why this dying declaration cannot be relied upon. In the dying declaration (Exh.35), the deceased had stated that accused No. 1 - mother-in-law had set her on fire and accused No.2 - the husband was merely watching. 14. There is yet another reason why this dying declaration cannot be relied upon. In the dying declaration (Exh.35), the deceased had stated that accused No. 1 - mother-in-law had set her on fire and accused No.2 - the husband was merely watching. The evidence that is led by the prosecution, was in respect of illtreatment by the husband i.e. accused No.2 alone and such illtreatment is said to have been given by accused No.2 - husband in order to coerce the deceased to fulfil the demand of money. Even the first complaint under section 498-A of the Indian Penal Code, which was withdrawn, was against the husband alone. It is, therefore, difficult to digest that husband would be mere spectator and the mother would for no reason bum her. In the evidence of PW 2 - Kalimunissa and PW 3 Ahmadshah - the father, there is not even a single word, about the illtreatment at the hands of accused No.1 - mother in-law. If mother-in-law had never illtreated the deceased, there is no reason for her to kill the deceased. If at all deceased had any grudge she has had against accused No.2 but she exonerates accused No.2her husband and implicates mother-in-law. It is precisely for this reason that we also find that what may have been stated by the deceased to the Executive· Magistrate may be the result of tutoring. 15. It is also further in the evidence of PW 3 Ahmadshah that deceased and her husband were living separately from accused No. 1 and her husband since 1987. If that is so, the presence of accused No. 1 in the house of the deceased becomes doubtful. For this reason too, we find that the dying declaration may not be truthful. There is also no corroboration from any source to this dying declaration and it would be too risky to rely solely on the dying declaration. We, therefore, find it difficult to take a view different than what has been taken by the learned Additional Sessions Judge. We, therefore, see no merit in the appeal and same is dismissed. Appeal dismissed.