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2010 DIGILAW 1184 (BOM)

Nazir @ Nasir Ahmad Billari v. State of Goa

2010-08-12

A.S.OKA, F.M.REIS

body2010
JUDGMENT A.S. Oka, J.-This is an appeal preferred by accused No.1 challenging the order of conviction and sentence for the offences punishable under Section 498-A and 302 of the Indian Penal Code (hereinafter referred to as "the Penal Code"). The appellant has been sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 3,000/- for the offence under Section 498-A of the Penal Code. In default of payment of fine, the appellant has been directed to undergo rigorous imprisonment for 6 months. For the offence under Section 302 of the Penal Code the appellant has been sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/-. In default of payment of fine the appellant has been directed to suffer further rigorous imprisonment for 6 months. The sentences have been ordered to run concurrently. 2. The appellant is the husband of the deceased. Accused No.2 is the sister of the appellant and accused No.3 is the mother of the appellant. Initially, the charge was framed against all the accused under Sections 498-A, 323, and 302 of the Penal Code, read with Section 34 of the Penal Code. Additional charge was framed under Section 304-B of the Penal Code read with Section 34 of the Penal Code on 10th September. 2008. The allegation of the Prosecution in short, is that the accused persons with their common intention used to harass abuse and used to subject the deceased to cruelty which was of such a nature as to cause grave injury or danger to her life limb or health physical or mental and soon before her death she was subjected to cruelty or harassment by the accused for their demand for dowry. It is alleged that on 24th November. 2006, at about 9.30 in night, the appellant poured kerosene on the person of the deceased and set her on fire after latching the door of the house from inside. As a result of the same, the deceased succumbed to her injuries in the hospital. It is alleged that the death was a dowry death. It is alleged that the accused committed murder by intentionally or knowingly causing death of the deceased. 3. The prosecution examined in all 28 witnesses. The prosecution relied upon the dying declaration of the deceased. It must be stated here that accused Nos. 2 and 3 were acquitted. 4. It is alleged that the death was a dowry death. It is alleged that the accused committed murder by intentionally or knowingly causing death of the deceased. 3. The prosecution examined in all 28 witnesses. The prosecution relied upon the dying declaration of the deceased. It must be stated here that accused Nos. 2 and 3 were acquitted. 4. The learned counsel appearing for the appellant has taken us through the notes of evidence and other evidence on record. He submitted that there was no evidence of cruelty. He submitted that the evidence of P.W. 22 Ismailsab Halgeri (father of the deceased) has to be ignored as he was an interested witness. He pointed out that the said witness has deposed that accused Nos. 2 and 3 were also harassing his daughter and in the alleged dying declaration the deceased had not uttered a single word against accused Nos. 2 and 3. He submitted that the evidence of the prosecution witnesses on the aspect of alleged cruelty is totally inconsistent. He submitted that the alleged dying declaration is doubtful. He submitted that the Sub-Divisional Magistrate (S.D.M.) who allegedly recorded the dying declaration admitted that the declaration was not in his handwriting and at the same time he admitted that except for the deceased and he himself, there was nobody present in the room at the time of recording the dying declaration. He submitted that the question arises as to who wrote the dying declaration. The scribe who wrote the dying declaration has not been named and has not been examined. He pointed out that only in the re-examination the SOM came out with the explanation that his clerk had written the dying declaration. He submitted that however the prosecution has failed to examine the clerk. He invited attention of the Court to the conduct of the appellant. He pointed out that the appellant himself suffered burn injuries and the appellant himself informed the relatives of the deceased and others a about the burn injuries sustained by the deceased. He submitted that the appellant was arrested by the police more than one week after the incident. He submitted that the fact that the appellant himself suffered burn injuries shows that he tried his level best to save the deceased. He submitted that in the statement under Section 313 of the Code of Criminal Procedure, 1973. He submitted that the appellant was arrested by the police more than one week after the incident. He submitted that the fact that the appellant himself suffered burn injuries shows that he tried his level best to save the deceased. He submitted that in the statement under Section 313 of the Code of Criminal Procedure, 1973. it is brought on record the state of mind of the deceased which shows that in all probability the deceased attempted to commit suicide and the appellant tried to extinguish the fire as a result he himself got injured. He submitted that when the deceased attempted to commit suicide the fact that the door of the house was bolted from inside cannot go against the appellant. 5. The learned counsel appearing for the appellant submitted that in the present case the charge was framed for the offence punishable under Section 498-A read with Section 34 of the Penal Code and the offence punishable under Section 302 read with 34 of the Penal Code. He submitted that out of the three persons charged two have been acquitted and therefore, the appellant being the third one cannot be convicted for having committed the offences under Sections 498-A and 302. He placed reliance on a decision of the Apex Court in the case of Krishna Govind Patil v. State of Maharashtra. AIR 1963 SC 1413 . He submitted that the prosecution has failed to bring home the charges against the appellant beyond reasonable doubt and. Therefore, order of conviction deserves to be quashed and set aside. On this aspect he has relied upon a decision of the Apex Court in the case of State of W.B. v. Vindu Lachmandas Sakhrani @ Deru, AIR 1994 SC 772 . He pointed out that the appellant has been acquitted of the offence punishable under Section 304-B and that the order of acquittal has not been challenged by the State. 6. The learned Public Prosecutor has placed reliance on a decision of the Constitution Bench of the Apex Court in the case of Willie (William) Slaney v. State of Madhya Pradesh. AIR 1956 SC 116 . He pointed out that in view of the said decision the decision relied upon by the appellant in the cases of Krishna Govind Patil (supra) and State of W.B. (supra) cannot be a binding precedent. AIR 1956 SC 116 . He pointed out that in view of the said decision the decision relied upon by the appellant in the cases of Krishna Govind Patil (supra) and State of W.B. (supra) cannot be a binding precedent. He placed reliance on a decision of the Apex Court in the case of State of West Bengal v. Orilal Jaiswal. 1994 (1) SCC 73 . He also placed reliance on another decision of the Apex Court in the case of Dalbir Singh v. State of Uttar Pradesh, 2004 (5) SCC 334 . He submitted that the dying declaration of the deceased has been duly proved and the same was recorded only after the Doctor certified that the deceased was fit to give statement. He pointed out that when the deceased was set on fire the appellant was inside the house and it was the appellant who opened the door which was bolted from inside the house. He submitted that as the appellant himself had sustained burn injuries for a period of few days he was not arrested. He submitted that no interference is called for a with the impugned Judgment and Order of conviction. 7. Before dealing with the evidence of the witnesses and the documents on record it will be necessary to deal with the legal submission made by the learned counsel appealing for the appellant. The charge was framed against the appellant and two other accused under Sections 498-A, 323 and 302 of the Penal Code, read with Section 34 of the Penal Code. Similarly, a charge was also framed for the offence punishable under Section 304-B of the Penal Code read with Section 34 thereof. The learned counsel appearing for the appellant placed reliance on the deceased of the Apex Court in the case of Krishna ) Govind Patil (supra). The Apex Court held that before a Court can convict a person under Section 302 of the Penal Code, read with Section 34 of the Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons named or unnamed for committing the said offence. The Apex Court held that before a Court can convict a person under Section 302 of the Penal Code, read with Section 34 of the Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons named or unnamed for committing the said offence. The Apex Court held that as three accused charged with Section 302 read with Section 34 of the Penal Code were acquitted the fourth cannot be convicted for having committed the offence along with one or more of the acquitted persons. In the other decision in the case of State of was (supra) similar view has been taken. However, the decision in the case of Willie (William) Slaney (supra) is of a larger Bench of the Apex Court. The Apex Court held that in such a case where charge is framed for the offence under Section 302 read with Section 34 of the Penal Code and where a separate charge under Section 302 of the Penal Code is not framed the failure to frame a separate charge under Section 302 was a curable irregularity which in the absence of prejudice could not affect the legality of conviction under Section 302 of the Penal Code. Therefore, the Apex Court held that in such a case if the other accused are acquitted remaining accused can be convicted for the offence punishable under Section 302 of the Penal Code. In the present case, the case of prejudice is not made out by the appellant. Even the statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"). the case of commission of offences punishable under Sections 498-A and 302 of the Penal Code has been put to the appellant. In view of the decision of larger Bench, the decision relied upon by the learned counsel cannot be read as a binding precedent. 8. Now it will be necessary to deal with the evidence of the material witnesses. The first witness examined by the prosecution is a formal witness who was a pancha to the inquest panchanama. P.W. 2 Sainandan Satardekar deposed that he was a Law student studying in V.M. Salgaonkar College of Law at Panaji. He stated that he was staying along with his mother at Durgawadi Taleigao. The first witness examined by the prosecution is a formal witness who was a pancha to the inquest panchanama. P.W. 2 Sainandan Satardekar deposed that he was a Law student studying in V.M. Salgaonkar College of Law at Panaji. He stated that he was staying along with his mother at Durgawadi Taleigao. He stated that adjoining his house, on the right hand side his relative's house is situated. His relative Manohar Satardekar had rented one part of his house to the appellant and his wife. He identified the appellant who was sitting in the Court. He stated that the premises was rented to the appellant 8 months prior to the incident. He stated that the appellant used to consume alcohol and used to quarrel with his wife and used to assault her. 9. He stated that in the evening of 24th November. 2006 he had gone to attend music classes. He returned around 9.30 p.m. to his house. He stated that when he entered his house he heard a lady screaming loudly. Therefore, he rushed out of his house and realised that the appellant's wife was screaming from her room. He stated that he started banging on the door of the room occupied by the appellant but the door was latched from inside. He stated that after few seconds t the appellant opened the door and at that time he could see the appellant's wife had burnt clothes on her person and she had burn injuries all over her body. She was loudly shouting for help. He stated that the appellant's wife was in deep pain. He stated that at the relevant time only the appellant and his wife were present in the room of the appellant. He stated that he telephoned the Police Control Room. The witness was cross-examined at length. He stated that though he was available at his residence the police recorded his statement 14 days after the incident. He stated that during the period of 14 days the police did not make any inquiry with him. He stated that wife of c the appellant was not staying with the appellant for the entire period of 8 months but had come to stay with the appellant only 2 months' prior to the incident. 10. In the further cross-examination the witness stated that he was unable to remember the date when the deceased joined the appellant. He stated that wife of c the appellant was not staying with the appellant for the entire period of 8 months but had come to stay with the appellant only 2 months' prior to the incident. 10. In the further cross-examination the witness stated that he was unable to remember the date when the deceased joined the appellant. The witness denied various suggestions put to him. He reiterated that it was the appellant who opened the door of the room because the appellant was first at the door of the room. He admitted that after the room was opened he saw the burn injuries on the hands of the appellant. He stated that after he telephoned the police two policemen came to the spot. He stated that after looking at the condition of the deceased the police stopped one Toyota Qualis vehicle and shifted the deceased in the said vehicle for taking her to the Goa Medical College Hospital. He stated that the police also took the appellant along with them. 11. Another witness examined by the prosecution is P.W. 3 Prakash Metri who is a Pancha witness to the arrest panchanama. His evidence is relevant as far as the date of arrest of the appellant is concerned. He proved the arrest panchanama showing arrest of the appellant on 6th December, 2006. Thus, the appellant was arrested after more than 10 days from the date of the incident. P.W. 4 Manohar Satardekar is another witness. He stated that he is the owner of a house in Taleigao-Durgawadi. He stated that a room in the house was let out by him to the appellant. He identified the appellant in the Court. He stated that initially the appellant was residing alone in the room and later on his deceased wife also started residing in the room. He stated that on 24th November. 2006 at about 9.30 p.m. when he was in the aforesaid house, he heard a loud scream. Therefore, he came out of the house. He realised that the appellant's wife was screaming from the appellant's room. He stated that the front door of the room was latched from inside. He stated that P.W. 2 Sainandan Satardekar who is his nephew .knocked the door of the room of the appellant. He stated that thereafter the appellant opened the door which was bolted from inside. He realised that the appellant's wife was screaming from the appellant's room. He stated that the front door of the room was latched from inside. He stated that P.W. 2 Sainandan Satardekar who is his nephew .knocked the door of the room of the appellant. He stated that thereafter the appellant opened the door which was bolted from inside. He stated that only the appellant and his wife were in the room and there were burn injuries on all parts of her body. He stated that she was crying in pain, saying "bachao bachao" and she was also uttering some other words in Hindi. He stated that his nephew called the police and thereafter two policemen from Taleigao came and took the appellant and his wife to a hospital. In the cross-examination he stated that there was a latch outside the door of the house of appellant. He stated that he did not do anything on hearing the screams of the appellant's wife. He stated that others were there and they banged the door of the house of the appellant and thereafter the appellant opened the door. He stated that he did not see minutely as to whether any injuries were suffered by the appellant as he left the scene to bring a vehicle. He stated that he could not get any vehicle though he searched for 15 to 20 minutes. 12. P.W. 5 Angelo Fernandes was the S.D.M. (Sub-Divisional Magistrate) posted in November. 2006. He stated that he was the SDM of Tiswadi Taluka. He stated that on the request made by the Police Inspector. Panaji Police Station he proceeded to the Burns Ward of the Goa Medical College. at Bambolim. He stated that at about 6 p.m. on 27th November, 2006 he took permission from the Doctor in-charge. Dr. Akshata Powar who gave fitness certificate stating that the patient could give her declaration as she was fit. He stated that he recorded the declaration of the deceased in the presence of the Doctor and read over the same to the deceased. He stated that the statement was read over to the deceased in Hindi and she acknowledged it to be correct. He stated that he took her right hand thumb impression on the dying declaration but the thumb impression is not complete as a part of the thumb was burnt. He stated that the statement was read over to the deceased in Hindi and she acknowledged it to be correct. He stated that he took her right hand thumb impression on the dying declaration but the thumb impression is not complete as a part of the thumb was burnt. The witness stated as to what was narrated by the deceased in her dying declaration. The witness further stated that he knows Hindi language and everything was narrated to him by the witness in Hindi which he translated and reduced into writing in English language. He specifically stated that after all the contents of the dying declaration were read over to the deceased in Hindi language she admitted the same. The same witness also conducted inquest panchanama. He proved the inquest panchanama in evidence. In the cross-examination he produced the letter dated 22nd November, 2007 addressed by him to the Medical Officer of the Goa Medical College, seeking permission to record the statement. The witness identified the certificate written by Dr. Akshata Powar on the said letter, in which it was stated that the patient was oriented in C time, place and person at 6,00 p.m. on 27th November, 2006 and was in a position to give the statement. In the cross-examination, the witness stated that he did not think it necessary to record the dying declaration in the question and answer form, as she narrated everything in the form of a story. He stated that at the time of recording of dying declaration, only the Doctor and he himself were present. The witness admitted that the dying declaration at Exhibit 29 was not recorded in his handwriting. In the re-examination he stated that his clerk was also present with him who wrote the dying declaration. He stated that the clerk wrote the dying declaration strictly as per his dictation. 13. The next witness is P.W. 6 Dr. Akshata Powar. She stated that in November, 2006 she was working as Junior Resident, in the Department of Surgery, Goa Medical College. She stated that on 27th November, 2006 she was on duty in the Burns Ward. She stated that she was called upon to give a certificate as to whether the deceased was fit to give declaration. Akshata Powar. She stated that in November, 2006 she was working as Junior Resident, in the Department of Surgery, Goa Medical College. She stated that on 27th November, 2006 she was on duty in the Burns Ward. She stated that she was called upon to give a certificate as to whether the deceased was fit to give declaration. She stated that she examined the patient at 6,00 p.m. and found that the patient was oriented in time place and person and was fit to make a declaration. She identified her signature on Exhibit 33 below the certificate written on Exhibit 33. She stated that she was present throughout when P.W. 5 recorded the dying declaration of the deceased. She stated that after dying declaration was concluded, she again examined the deceased. She stated that throughout recording of the dying declaration the patient was oriented and fit to give her dying declaration. The cross-examination of the witness mostly consists of denials. 14. P.W. 7 Clare Stella D'Mello was an Officer attached to Blood Bank at Goa Medical College. He deposed regarding blood group of accused No.3 and identification marks on accused No.3. 15. P.W. 8 is one Mr. Suresh Dessai. He stated that he was a rickshaw driver by profession and he was operating from Panaji market. He stated that he knew the appellant who was a tenant of Manohar Satardekar. He stated that the house of Manohar was divided into three portions. He stated that on 24th November. 2006 at about 8,00 p.m. he returned home from Panaji. He stated that after dinner he was sleeping when P.W. 2 woke him up and informed him that-the tenant of Manohar i.e. the appellant's wife was burnt and she was required to be shifted to Goa Medical College for medical treatment. He stated that he came out of the house and he saw that the deceased was badly burnt. He stated that two policemen arrived at the spot on a motorcycle. The policemen stopped one Qualis and shifted the deceased and the appellant in the said vehicle for medical treatment. He stated that after six days he read in the newspaper that the deceased had expired. In the cross-examination, certain omissions in the statement recorded by the police were brought to the notice of the witness. He admitted that he saw that the hands of the accused were also burnt. 16. He stated that after six days he read in the newspaper that the deceased had expired. In the cross-examination, certain omissions in the statement recorded by the police were brought to the notice of the witness. He admitted that he saw that the hands of the accused were also burnt. 16. P.W. 9 Dr. Silvano Sapeco was the Professor of Forensic Department of Goa Medical College. He is the Medical Officer who was called upon to make physical examination of accused No.3. P.W. 10 Shri Rajesh Naik is a Draughtsman who drew the sketch of scene of offence. P.W. 11 Rajendra Naik was the Assistant Engineer of P.W.D. Sub-Division of Division V. He stated that on the request made by the police he had deputed Rajesh Naik (P.W. 10) to draw the sketch of scene of offence. 17. P.W. 12 Dr. Madhu Godkirekar was working in Forensic Department of Goa Medical College since 1996. He stated that on 7th December, 2006, on the request made by the police, he examined the appellant. He noticed several burn injuries on the person of the appellant. The burn injuries described by him read thus : "(1) Dermoepidermal burns injuries, healed, painted with mercurome present over tip of nose (2 x 1 cm), lower lip (3 x 1 cm), upper lip (1 x 1 cm), mid front of neck (4 x 2 cm), entire dorsal aspect of all fingers and thumb of right palm with thenar and hypothenar surface area front of right wrist (8 x 4 cm). entire palmar and dorsal aspect of left palm, front of left fore arm (12 x 4 cm), at wrist level inner aspect of right knee (5 x 5 cm), left knee. (6 x 5 cm). Cuticle peeling present for all burn injuries except for left palm and right knee. Burns on the thenar aspect of left palm is in healing stage as slightly infected. Hospital dressing present for the right knee. Floor of all burns is shining white. Burning of mustache is present. All injuries (burns) are simple in nature and around two weeks of duration." He stated that the injuries to the appellant could have been caused if a person pours kerosene on another person and tries to set the other person on fire. Floor of all burns is shining white. Burning of mustache is present. All injuries (burns) are simple in nature and around two weeks of duration." He stated that the injuries to the appellant could have been caused if a person pours kerosene on another person and tries to set the other person on fire. He added that the aforesaid injuries could be caused if a person comes in contact with blaze of fire in this process. 18. P.W. 13 Hidyatulla Mohammad Gauns Sonsagar stated that the deceased was his sister's daughter. He stated that on 25th November, 2006, the father of the deceased called up on phone at 11,00 a.m. and told that the deceased was burnt. He stated that the father of the deceased informed him that this information was given to him by the appellant. Thereafter he stated that he saw the deceased in Ward No.109 of the Goa Medical College. 19. P.W. 14 GuIzar Mulla is a panch witness to the inquest panchanama. P.W. 15 Mr. Prakash Polekar who was at the relevant time attached to Panaji Police Station as a Police Constable. He stated that after receiving a phone call he along with another police constable Anil Parab visited the house of the appellant. He stated that he saw a lady who was burnt. He stated that along with her there was a male person whose hands were burnt. He identified the appellant as the said person. He further stated thus: "The lady who was burnt requested us to take her to the doctor. When we inquired from the said lady, she told us that her husband had set her on fire, Accused No.1 is the husband of the said lady. The said lady was in extreme pain at that time. I phoned PCR to send us jeep but as the jeep did not come quickly. I stopped one Qualis jeep which was passing on the road from Durgawadi to Amralwado. I put the said lady in the said jeep and also took accused I No.1 in the said jeep in order to proceed to GMC hospital. In the jeep, we were getting strong smell of kerosene and the said lady also requested us to put on AC. as she was in extreme pain. When we moved about 100 mts. we saw the vehicle of GATES. In the jeep, we were getting strong smell of kerosene and the said lady also requested us to put on AC. as she was in extreme pain. When we moved about 100 mts. we saw the vehicle of GATES. Then we shifted the said burnt lady in the vehicles of GATES. alongwith accused No.1 and they proceeded but I did not accompany them and thereafter I informed Panaji Police Station." In the cross-examination he stated that when he entered the room of the appellant he saw a blanket on the floor, a stove, a match-box and utensils. He stated that he did not see the condition of the blanket. He denied the correctness of the suggestion that he did not visit the house of the appellant. He stated that when he visited the room of the appellant the deceased along with the appellant were in the room and no one else was inside the room. He admitted that his statement was not recorded by the police. 20. P.W. 16 is one Sanaula Ahmad Allha. He stated that he knew the deceased as she was from the same village and he knows the brother of the deceased whose name was Javed. He deposed on 22nd November, 2006. said Javed came to Mapusa to his house and stayed with him for 2 days. He stated that on 24th November, 2006 said Javed requested him to accompany him to Taleigao to meet his sister Shabana who was residing with the appellant. He stated that he along with Javed reached the house of the deceased at 11.30 a.m.. The witness stated that when the said Javed inquired about the well being of the Shabana (deceased), she stated that the appellant was harassing her, so also her mother-in-law and the sister-in-law. He stated that Javed had informed him on many occasions that the appellant as well as her mother-in-law and her sister-in-law were harassing his sister Shabana, The witness was extensively cross examined. He denied the various suggestions put to him in the cross-examination. 21. P.W. 17 is Mr. Anil Parab, another Constable who visited the room of the appellant along with P.W. 15 Prakash Polekar. He also deposed in the terms of what was stated by his colleague P.W. 15 Prakash. He also admitted that the police have not recorded his statement. 22. P.W. 18 is Dr. 21. P.W. 17 is Mr. Anil Parab, another Constable who visited the room of the appellant along with P.W. 15 Prakash Polekar. He also deposed in the terms of what was stated by his colleague P.W. 15 Prakash. He also admitted that the police have not recorded his statement. 22. P.W. 18 is Dr. Shidramappa Hanjar, is a Medical Practitioner, running a clinic known as "Siddheshwar Clinic" at Kaginalli, Taluka Byadgi, District Haveri, Karnataka. He stated that in April, 2006 the deceased along with her father Ismail had come to him in his clinic. At that time, the deceased told him that she was suffering from stomach pain as a result of beating given by her husband. He stated that after examining her he found that there was blood clotting in the stomach and chest area on the right side. He stated that the said injury was caused to the deceased after being beaten by somebody. He stated that when he questioned Shabana she stated that the deceased told him that she was being beaten by her husband by a wooden stick. He was extensively cross examined. He stated that he does not have his letter head pad. He stated that therefore he had not written certificate on the letter head. 23. P.W. 19 Hajrat Ali stated that he knows the appellant who is the son-in-law of Ismailsab. He stated that his statement was recorded by the police. He stated that the father of the deceased had come to him in the year 2006. He stated that he along with one Babuli and one Ashraf Ali along with the deceased and Ismail Sab went to the house of the accused. The witness stated that the deceased was advised by her father to seek divorce from the appellant but the daughter stated that she does not want to give divorce to the appellant. She stated that she would like to stay with the appellant-accused No.1. At that time, the appellant gave assurance to all that henceforth he will not harass or illtreat his wife and also gave assurance that he will stop drinking liquour. 24. P.W. 20 Babuli Tilvalli was a Member of Taluka Panchayat of Kaginalli who stated that he knew Ismail and his daughter as they were residents of the same village. At that time, the appellant gave assurance to all that henceforth he will not harass or illtreat his wife and also gave assurance that he will stop drinking liquour. 24. P.W. 20 Babuli Tilvalli was a Member of Taluka Panchayat of Kaginalli who stated that he knew Ismail and his daughter as they were residents of the same village. He stated that he had gone to the house of Ismail as he had complained that his daughter was being harassed and illtreated by her husband the mother-in-law and the sister-in-law. He stated that a meeting took place between their Jamat Members accused persons and others. In the cross-examination, he stated that when the police came to him and inquired from him he told the police that he had gone to the house of the accused. 25. P.W. 21 Ashraf Ali stated that the deceased was daughter of his sister. He deposed about the illtreatment meted out to the-deceased. He stated that the deceased had told him the reason as to why the appellant was illtreating her. In the cross- examination he stated that his statement was recorded by the police. He has described, in detail, as to how the Doctor permitted him to talk to the deceased. 26. P.W. 22 is Ismailsab Halgeri. He is the father of the deceased. He has set out of incidents of alleged cruelty meted out by the appellant and two accused. The deceased was engaged with the appellant in April, 2004 and was married to the appellant in June, 2006. He stated that at the time of marriage, a number of articles a were given to his daughter, including gold ornaments. He produced on record a list of articles as well as bills of the goldsmith. He stated that he had paid a sum of Rs. 25,000/- to the appellant at the time of engagement. He stated that after the marriage the deceased started staying in her husband's house at Chickerur in Karnataka. He stated that a neighbour of appellant 2 to 3 months after the marriage of the deceased had called up and informed him that the accused persons were beating the deceased. He stated that he visited the house of the accused at Chickerur and found that the deceased was lying on the ground outside the house of the accused having injuries over her b forehead and on her right hand. He stated that he visited the house of the accused at Chickerur and found that the deceased was lying on the ground outside the house of the accused having injuries over her b forehead and on her right hand. He stated that he brought back his daughter to his house and she stayed with him for 3 to 4 months. Thereafter, the appellant approached him and assured him that he would not illtreat the deceased. On the basis of the said assurance, his deceased daughter went back to her matrimonial home with the appellant. He stated that he received a phone call from his daughter after about 4 to 5 months that the accused had assaulted her and she had sustained injuries on her stomach. Again the deceased was brought back by him to his house. He took his daughter to Dr. Shidramappa (P.W. 18). 27. The witness further stated that the appellant demanded a sum of Rs. 50,000/- or 60,000/ - from his daughter and on that count. the accused were beating his daughter. He stated that he gave a sum of Rs. 13,000/- to his daughter. He stated that his daughter stayed with him for 7 to 8 months. Thereafter, his daughter started receiving phone calls from the appellant requesting her to come back. He stated that in the year 2006 he took members of Anjuman-e-Islam to the house of the appellant at Chickerur. He stated that even his brother-in-law Ashraf (P.W. 21) visited them. He stated that in fact he had advised his daughter to give divorce to the appellant. but his daughter was not ready. He stated that in the presence of the Member of Jamat the appellant gave assurance that he would not illtreat the daughter and would keep her very happy. The appellant assured that he will shift to Goa. He stated that on the basis of the said assurance his daughter stayed with the appellant and he along with other persons returned back. As per the assurance, the appellant took his daughter to Goa and started residing in a Village close to Panaji. He stated that about 2 to 3 months thereafter the appellant contacted him on phone. He stated that on the basis of the said assurance his daughter stayed with the appellant and he along with other persons returned back. As per the assurance, the appellant took his daughter to Goa and started residing in a Village close to Panaji. He stated that about 2 to 3 months thereafter the appellant contacted him on phone. He stated that the appellant contacted him on phone on 25th or 26th November, 2006 at about 9 a.m. He stated that the call was received by his wife and the appellant informed her that their daughter has been burnt and she has been admitted to Goa Medical College Hospital. He stated that he along with his wife immediately proceeded to Goa. Before proceeding to Goa he called up P.W. 13 Hiddyatulla asking him to reach Goa Medical College Hospital. He stated that after reaching Goa, he visited the Goa Medical College Hospital 3 and found that entire body of his daughter was burnt. He stated that his daughter disclosed that the appellant poured kerosene on her person from the stove and set her on fire. According to the witness his daughter stated that the appellant had set her on fire after stating that since she was not having any child he would marry her sister. He stated that the deceased daughter disclosed to him that the accused used to beat and harass her on account of their demand for money. The witness was cross-examined at length by the Advocate for the appellant. He admitted that he never visited the house of the accused in Goa after the appellant shifted to Goa. He stated that he was not aware of the name of the neighbour of the appellant at Goa who informed him that the appellant was beating her. He admitted that on earlier occasion when he had to rush to Chickerur as the accused had beaten his daughter, he did not lodge any complaint with the police. The appellant stated that his daughter insisted that no complaint should be lodged. He denied the correctness of the suggestion that his statement that the accused were demanding a sum of Rs. 50,000/- or 60,000/- from his daughter and on that account they were beating her, was false. The said witness was also cross-examined by the Advocate for the second and third accused. Certain omissions were brought on record. He denied the correctness of the suggestion that his statement that the accused were demanding a sum of Rs. 50,000/- or 60,000/- from his daughter and on that account they were beating her, was false. The said witness was also cross-examined by the Advocate for the second and third accused. Certain omissions were brought on record. The witness stated that he did not state to the police that he paid a sum of Rs. 25,000/- to the appellant at the time of engagement. 28. The further cross-examination of P.W. 22 by the Advocate for the second and third accused is basically relating to the role attributed to the said accused. The said two accused have been acquitted and there is no challenge to the order of acquittal. 29. The next witness is Tommy Fernandes (P.W. 23). He stated that he is a taxi driver by profession and his taxi stand is at Dona Paula, Panaji. He stated that on 24th November, 2006 when he was returning from the taxi stand to his place of residence at Durgawadi, Taleigao, at about 10 or 10.30 p.m. he saw that near the Temple at Durgawadi people had gathered and there were two policemen from Taleigao Out Post whom he knew by face. He stated that the policemen stopped the vehicle and requested to take a lady who was burnt and her husband to the hospital. He stated that the lady was screaming in pain and the hands of her husband were also burnt. He identified the appellant who was present in the Court as the husband of the lady. He stated that along with the appellant and his wife one policeman accompanied them in his vehicle. On the way, the lady started shouting and screaming and told him to put on AC. Accordingly. AC was put on by him. He stated that after travelling for about 1 km. he noticed one ambulance and the lady and her husband were put in the said ambulance and they proceeded to the hospital by the said ambulance. In the cross-examination he admitted that his statement was not recorded by the police. He denied the correctness of various suggestions put to him by the Advocate for the appellant. In the cross-examination made by the Advocate for accused Nos. 2 and 3 he stated that he did not know the persons who had gathered near the Temple. In the cross-examination he admitted that his statement was not recorded by the police. He denied the correctness of various suggestions put to him by the Advocate for the appellant. In the cross-examination made by the Advocate for accused Nos. 2 and 3 he stated that he did not know the persons who had gathered near the Temple. He stated that it was dark at that time. 30. P.W. 24 is Dr. E.J. Rodrigues, who is Associate Professor at Goa Medical College. He stated that he along with another Medical Officer conducted post-mortem examination on the dead body of the deceased. He stated that the death was due to septicaemia, consequent to extensive infected flame burn injuries. He proved the Memorandum of Autopsy in evidence. 31. On the allegation of cruelty, the prosecution examined P.W. 25 Javed Halgeri, who is the brother of the deceased. He also deposed that 2 months after marriage, a neighbour of the appellant at Chicurur. Karnataka telephoned his father in the night stating that the appellant was assaulting the deceased. He stated that he along with his father proceeded to the house of the appellant, where they saw that the deceased was in injured condition. The deceased narrated to them that the accused persons had assaulted her. He stated that they brought back his sister to his house and she stayed there for c four months. He stated that they got her sister treated for the injuries. He stated that on assurance of the appellant that he would not repeat his actions he along with his father agreed to send his sister to her matrimonial house. 32. He stated that after his sister returned to the matrimonial house she telephoned her father that the accused persons were demanding money from her. He stated that total amount of Rs. 13,000/- was give by his father to the appellant. The witness stated that after about 6 months the deceased contacted his father on telephone and told that the accused persons had been assaulting her. She stated that she was assaulted on her stomach and she was in pain. The witness stated that his parents rushed to the matrimonial home of his sister. His sister was brought back to their residence. He stated that the deceased was treated in Siddheshwar Clinic for about 8 days. She stated that she was assaulted on her stomach and she was in pain. The witness stated that his parents rushed to the matrimonial home of his sister. His sister was brought back to their residence. He stated that the deceased was treated in Siddheshwar Clinic for about 8 days. He stated that the deceased continued to stay in her parent's home for a period of 8 months. He stated that on the request made by the appellant, he along with his father took respectable persons to-the residence of the appellant. He stated that in the meeting, the appellant gave assurance that he would keep the deceased happy and on his assurance, the deceased started residing with him. Thereafter, the appellant and the deceased started residing at Taleigao in Goa in the house of Manohar Satardekar. He stated that at that time he was also staying in Margao in Goa and sometimes he used to stay in the house of one of his friends at Mapusa. He stated that on 23rd November, 2006 he was staying at Mapusa in the house of his friend and on 24th November, he along with his friend visited the house of the a appellant. He stated that they reached the house of the appellant at 11.30 a.m. when the deceased was alone in the house. She stated that she was assaulted by the appellant. She stated that the appellant demanded a sum of Rs. 50,000/- to Rs. 60,000/- from her. She stated that the appellant started abusing her in the presence of accused Nos.2 and 3. The witness stated that he explained to her sister that if anything happens in future she should give a ling to him. Hereafter, he described as to how he came to know on 25th November, 2006 of the fact that the deceased was burnt. The witness stated that thereafter he proceeded to Goa Medical College where the deceased was admitted. He stated that the deceased informed him that her husband i.e. the appellant had set her on fire by pouring kerosene and by lighting match stick. The witness was cross-examined by the Advocate for the appellant. He submitted that when he met the deceased in the Ward, no policeman was present there. He stated that the nurse looking after the deceased had informed him that the deceased would recover. The witness was cross-examined by the Advocate for the appellant. He submitted that when he met the deceased in the Ward, no policeman was present there. He stated that the nurse looking after the deceased had informed him that the deceased would recover. He, however, stated that he did not inquire with the Doctor about the condition of his sister. He stated that when the appellant was away from his sister, she informed him that the appellant had set her on fire. He stated that his sister said all this very slowly and the appellant did not hear the same. He admitted that no police complaint was filed earlier when his sister allegedly sustained injuries. 33. P.W. 26 is Shri Tarendra Parsekar who is a panch witness to the scene of offence panchanama conducted on 30th November, 2006. He proved the panchanama in evidence. He stated that after entering the house where the incident had taken place, he saw a stove which had fallen on the floor. The said stove was attached by the police. He stated that he saw a match-box which had fallen on the floor and there were match-sticks on the floor. 34. P.W. 27 Shri Deepak Pednekar, who was a Police Sub-Inspector attached to Panaji Police Station at the relevant time. He described as to how information regarding the offence was received and as to how request was made to S.D.M. to record a dying declaration. He stated that on the basis of the dying declaration he registered the offence. He stated that he conducted the scene of offence panchanama. 35. P.W. 28 is Shri Mahesh Gaonkar, who was attached to Panaji Police Station as Police Inspector. He took over the investigation from P.W. 27 Shri Deepak Pednekar. He stated that after the death of the deceased, he added charge under Section 302. 36. Now the first question to be considered is whether the offence under Section 498-A has been established. For dealing with the said aspect, it will be necessary to consider the dying declaration of the deceased. As stated earlier, it is the case of the prosecution that P.W.5 Agnelo Fernandes. SDM recorded the dying declaration. In the dying declaration recorded on 27th November. 2010 (Exhibit 29), the deceased stated that on 24th November. 2006 at about 21.30 hours the appellant put kerosene on her person and set her on fire. As stated earlier, it is the case of the prosecution that P.W.5 Agnelo Fernandes. SDM recorded the dying declaration. In the dying declaration recorded on 27th November. 2010 (Exhibit 29), the deceased stated that on 24th November. 2006 at about 21.30 hours the appellant put kerosene on her person and set her on fire. She stated that the appellant used to abuse her and harass her as she was not conceiving. She stated that she was subjected to regular beating by her husband, her mother-in-law and her husband's sister. She stated that on 24th November, 2006 in the morning, her brother had met her. She stated that on hearing her screams, the appellant tried to put off the flames by wrapping a blanket around her and he brought her to the Goa Medical College. She stated that on 24th November, 2006 at 21,00 hours, the appellant again started beating her and thereafter emptied kerosene from the stove on her person. She stated that she was too frightened. She stated that she remembered that the appellant had latched the door from inside. She stated that her husband deliberately had set her on fire in order to kill her. In the dying declaration it is recorded that her statement was recorded in English language which was read over to her in Hindi language and she had understood and acknowledged the contents of the same. The P.W. 5 intially stated that he had himself written the dying declaration. In the re- examination, the said witness stated that his clerk who was present along with him had written the dying declaration in his handwriting. He stated that the clerk wrote the said dying declaration strictly as per his dictation. The only cross- examination of the said witness on the re-examination is in the form of suggestion that his statement that his clerk wrote the dying declaration strictly as per dictation is false. There is no challenge to the statement that the clerk of the witness was present. The letter dated 27th November, 2006 at Exhibit-33 is written by Shri Deepak Pednekar, Investigating Officer to the Medical Officer of the Goa Medical College. By the said letter, a permission was sought to record a statement of the deceased. On the said letter, there is an endorsement made by Dr. Akshata (P.W. 6) that the patient was oriented in time, place and person on 27th November. By the said letter, a permission was sought to record a statement of the deceased. On the said letter, there is an endorsement made by Dr. Akshata (P.W. 6) that the patient was oriented in time, place and person on 27th November. 2006 at 6.00 p.m. and could give statement. P.W. 6 Dr. Akshata deposed before the Court and stated that when she examined the patient at 6.00 p.m. she was oriented in time, place and person and was fit to make declaration. She stated that she was present throughout at the time of recording of the dying declaration. She stated that after recording was complete, she again examined the deceased and found that she was fit to give her dying declaration. The witness identified her own signature appearing below the dying declaration. Considering the aforesaid evidence, it is not possible to doubt the genuineness of the dying declaration. The fact that the appellant put kerosene on the person of the deceased and set her on fire has been disclosed by the deceased not only before the S.D.M. but she narrated the same to other witnesses including her father and brother. She disclosed this even to Mr. Prakash (P.W. 15), a Police Constable. The dying declaration also notes that she was regularly subjected to assault by the appellant and other two accused. Material part of the a dying declaration is that after hearing the screams the appellant tried to put off the flames by wrapping a blanket around her and the appellant brought her to Goa Medical College. 37. When the deceased was staying in Chickerur Village in Karnataka along with the appellant, on two occasions after the deceased was assaulted her parents went to her matrimonial home and brought her back. The father deposed that she had sustained injuries and therefore, he had taken the deceased to Dr. Shidramappa Hanjar in his clinic at Kaginalli. Taluka Byadgi. District Haveri, Karnataka. The said Doctor also deposed that the deceased had informed him that she was being beaten by her husband with wooden stick. He stated that there was blood clotting in her stomach and chest area. Thus the examination of the said witness corroborates the testimony of the father and brother of the deceased. 38. On the aspect of cruelty, apart from the father and brother of the deceased and Dr. He stated that there was blood clotting in her stomach and chest area. Thus the examination of the said witness corroborates the testimony of the father and brother of the deceased. 38. On the aspect of cruelty, apart from the father and brother of the deceased and Dr. Shidramappa Hanjar the prosecution has examined the witness Ashraft Ali, who is the maternal uncle of the deceased. He deposed that he met the deceased in his sister's house when the deceased disclosed to him that she was being harassed and beaten up by her husband for not conceiving. He has also deposed that the members of Jamat and senior persons of the community were taken to the house of the appellant. He also deposed that in fact the deceased was advised to give divorce to the appellant but the deceased was not ready for the same. 39. As far as cruelty is concerned. P.W. 2 Satianandan Satardekar has deposed that the appellant used to consume alcohol and used to quarrel with his wife. He stated that he used to utter filthy words to his wife and also used to harass her. As stated earlier the said witness was a Law student who was residing in the room in the same house where the appellant was residing. Apart from P.W. 2 Satianandan the prosecution examined P.W. 8 Suresh Dessai who also stated that the deceased was coming home trunk and used to quarrel with his wife and used to assault her. As far as this witness is concerned, when he was confronted with his statement recorded by the police, he admitted that it is not mentioned in the said statement that the appellant used' to assault the deceased. The father, brother and the maternal uncle of the deceased are consistent that the deceased was being treated with cruelty as she was unable to conceive. The dying declaration proves the said fact. Thus, it can be safely said that the mental and physical torture by the appellant to the deceased for not conceiving a child has been established by the prosecution. The learned Sessions Judge has, however, recorded a finding that the torture was on account of not complying the demand of money has not been proved beyond reasonable doubt. 40. Thus, it can be safely said that the mental and physical torture by the appellant to the deceased for not conceiving a child has been established by the prosecution. The learned Sessions Judge has, however, recorded a finding that the torture was on account of not complying the demand of money has not been proved beyond reasonable doubt. 40. Section 498-A of the Penal Code reads thus : "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section "cruelty" means – (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." It is obvious that in view of the findings recorded by the learned Sessions Judge, clause (b) of Explanation to Section 498- A of the Penal Code may not be applicable. However, the evidence on record clearly establishes that the appellant assaulted the deceased more than once, P.W. 18 Dr. Shidramappa who examined the deceased in April. 2006 has stated that there was blood clotting in the stomach and chest area on the right side of the deceased. He stated that according to his opinion the injury was caused to the deceased after being beaten up by somebody. A finding has been recorded by the learned Sessions Judge that the prosecution has proved beyond reasonable doubt the willful conduct of the appellant which was of such a nature as was likely to cause grave injury to the physical and mental health of the deceased. A finding has been recorded by the learned Sessions Judge that the prosecution has proved beyond reasonable doubt the willful conduct of the appellant which was of such a nature as was likely to cause grave injury to the physical and mental health of the deceased. It is brought on record that at least on two occasions the deceased was assaulted by the appellant and the parents of the deceased had to rush to her matrimonial home and bring her back to their residence. It is true that there is no F.I.R. lodged at that time. It must be remembered here that we are appreciating conduct of a married woman and her parents in a tradition bound Indian society. In fact, the father of the deceased has stated that after the second occasion when the deceased was required to be brought home he had advised the deceased to seek divorce. But the deceased declined. Perhaps an attempt was made by the deceased and her parents to save the marriage. Perhaps that was the reason for not lodging a complaint with the police. The said conduct is natural and it does not affect the substratum of the prosecution case at all. Therefore, the conviction of the appellant under Section 498-A of the Penal Code will have to be confirmed. 41. Now the second question is whether the offence punishable under Section 302 of the Penal Code has been established. We have already accepted the dying declaration of the deceased at Exhibit-29 as a genuine statement of the deceased. In the dying declaration, the deceased had herself stated thus: "My husband on hearing my screams tried to put off the flames by wrapping a blanket around me & brought me to the Goa Medical College. Bombolim." It true that the witnesses have consistently stated that the door of the residential premises of the appellant was bolted from inside and only after the witnesses knocked the door the appellant opened the door. The witnesses also are consistent in stating that on both the hands of the appellant, there were burn injuries. The evidence on record shows that both the appellant and the deceased were put in a Qualis vehicle by the policemen. After travelling for some distance, an ambulance was noticed and, thereafter, the appellant and the deceased were taken by the ambulance to the Goa Medical College Hospital. The evidence on record shows that both the appellant and the deceased were put in a Qualis vehicle by the policemen. After travelling for some distance, an ambulance was noticed and, thereafter, the appellant and the deceased were taken by the ambulance to the Goa Medical College Hospital. In fact none of the policemen accompanied them to the hospital by the ambulance. The appellant was around the deceased in the hospital and in fact he was arrested 10 days after the incident. Taking the dying declaration as it is, the prosecution has no doubt proved that the act of pouring kerosene on the person of the deceased and setting her on fire by lighting a match-stick was done by the appellant with the knowledge that it is likely-to cause the death. The conduct of the appellant of putting off the flames by wrapping a blanket around the deceased and taking her to the Goa Medical College Hospital has to be considered. The appellant himself informed his mother-in-law on the phone about the fact that the deceased had suffered burns. In view of this factual position, it is very difficult to infer that there was an intention on the part of the appellant to cause death of his wife. The act of pouring kerosene and lighting fire is done with the knowledge that it is likely to cause death, but without intention of causing death. Therefore, taking the prosecution case as correct, this is a case where the offence punishable under the second part of Section 304 of the Penal Code is established. Therefore, the conviction of the appellant under Section 302 of the Penal Code cannot be sustained. To that extent, the impugned Judgment and Order will have to be modified. 42. The learned counsel appearing for the appellant prayed for showing leniency. The evidence on record establishes that the at least on two occasions, when the appellant and the deceased were residing in Chickerur Village in Karnataka, the appellant assaulted the deceased and the parents of the deceased were required to rush to the matrimonial home of the deceased. Moreover, when the deceased was alone in the house, the appellant bolted the door of the room from inside and poured kerosene on her person and lighted a match stick. Moreover, when the deceased was alone in the house, the appellant bolted the door of the room from inside and poured kerosene on her person and lighted a match stick. Therefore, this is a case where the maximum punishment of rigorous imprisonment for a period of 10 years will have to be awarded and the fine amount shall be Rs. 5,000/-. In default of payment, of fine, the appellant shall suffer further rigorous imprisonment for a period of six months. 43. The appeal is disposed of by passing the following order : (1) The conviction and sentence of the appellant for the offence punishable under Section 498-A of the Indian Penal Code is confirmed. (II) The conviction for the offence punishable under Section 302 of the Indian Penal Code is set aside and the appellant is convicted for the lesser offence punishable under the second part of Section 304 of the Indian Penal Code. The appellant is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he shall undergo further rigorous imprisonment for six months. (III) Both the sentences shall run concurrently. (IV) The appeal is partly allowed in the above terms.