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2014 DIGILAW 1401 (BOM)

Uttam s/o Tukadu Sonwane v. State of Maharashtra

2014-07-02

A.I.S.CHEEMA

body2014
Judgment 1. The Appellant, original accused No.1 (hereafter referred as “accused”) faced trial in Sessions Case No.138 of 1995 before Additional Sessions Judge, Jalgaon for offence under Section 306, 498A read with Section 34 of the Indian Penal Code, 1860 (for short “I.P.C.”). The other accused No.2, his sister Nirmalabai has been acquitted. The Accused has been convicted under Section 306 of I.P.C. and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1000/-, in default of fine to suffer further rigorous imprisonment for two months. For Section 498A of I.P.C., he has been sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default to suffer rigorous imprisonment for two months. 2. The case of the prosecution in short, is as under:- Shobha, wife of Suresh Tukadu Sonwane (hereafter referred as “victim”) was married to Suresh about 1516 years before incident dated 23rd April, 1994. Suresh is brother of accused. Suresh and his brother accused Uttam were residing separate. Victim Shobha had two daughters. The accused persons used to harass and assault and beat victim. They were doubting her chastity. On the day of incident i.e. on 23rd April, 1994 at about 22.30 p.m. the accused had gone to the house of Suresh. Suresh was not present at home. The accused No.2 Nirmalabai was also with him. The accused No.1 told victim that she is of immoral conduct and should not stay in the house; she should leave behind the children and leave the house of father of accused. The victim got fed up and poured kerosene on herself and burnt herself. Police was called and the police took the victim to Rural Hospital, Yawal. Head Constable Daulat Patil went to the hospital and recorded statement of victim. She mentioned the incident as above and claimed that the accused was always quarrelling with her and alleging that she was of immoral conduct and so getting fed up she has burnt herself. On the basis of such statement, offence came to be registered at Crime No.56 of 1994 at Yawal Police Station at 6.10 p.m. on 23rd April, 1994, under Section 498A, 504 of the I.P.C. On the same day the victim expired at about 22.10 hours. Consequently, Section 306 of I.P.C. was added. A.P.I. Pandharinath Pachpute carried out the investigation. Inquest Panchnama was prepared. Consequently, Section 306 of I.P.C. was added. A.P.I. Pandharinath Pachpute carried out the investigation. Inquest Panchnama was prepared. Spot was visited and Spot Panchnama was recorded. The Postmortem of the victim Shobha was got done. It was reported that victim met death due to asphyxia by extensive burns on the body. Statements of witnesses were recorded. Completeing the investigation, chargesheet came to be filed before J.M.F.C. Yawal. The offence being sessions triable, the case was committed to the Sessions Court. 5th Additional Sessions Judge, Jalgaon framed charge under Section 306 and 498A read with 34 of I.P.C. against accused No.1 Uttam as well as accused No.2 Nirmalabai. Prosecution examined 8 witnesses and brought on record documentary evidence. The defence of the accused was of total denial. After considering the material brought before it, the trial Court convicted the accused No.1 as mentioned above and the other accused Nirmalabai came to be acquitted. 3. Being aggrieved by the conviction, present Appeal has been filed raising various grounds. 4. I have heard learned counsel for Appellant-accused as well as learned A.P.P. for the State. It has been argued on behalf of the Appellant-accused that the trial Court has wrongly relied on the dying declaration cum F.I.R. Exhibit 27 recorded by PW5 Head Constable Daulat Patil. It is argued that the said dying declaration is not at all reliable and does not inspire confidence. There is no time put on the said dying declaration as to when it was recorded. It is not recorded in question-answer form. The thumb impression taken on the dying declaration is not attested. The doctor who endorsed the dying declaration, merely recorded that victim was fit for statement but did not record that she was conscious. There is no evidence of ill-treatment or harassment of the victim by the accused. Offence under Section 498A or 306 of I.P.C. has not been proved. The Head Constable Daulat Patil in his evidence, stated that he had gone to the hospital at 7.15 p.m. to record the dying declaration, whereas the endorsement on the dying declaration by the doctor bears time as 5.45 p.m. and thus the dying declaration was not reliable. The evidence of PW1 Moolchand Tayade regarding alleged cruelty and evidence of PW8 Annapurnabai regarding alleged harassment and doubt of chastity was vague and not reliable. 5. The evidence of PW1 Moolchand Tayade regarding alleged cruelty and evidence of PW8 Annapurnabai regarding alleged harassment and doubt of chastity was vague and not reliable. 5. Against this, learned A.P.P. submitted that the dying declaration which has been treated as F.I.R. was reliable and that the victim committed suicide due to accused doubting her chastity. The victim had earlier told about her harassment to PW8. The learned A.P.P. referred to the reasons recorded by the trial Court as his argument, to claim that conviction should be maintained. 6. The record shows that the accused admitted the Inquest Panchnama Exhibit 17, Spot Panchnama Exhibit 18 and the postmortem report Exhibit 19. The Spot Panchnama shows that in the house of the victim there were signs of articles lying scattered and stove was on the floor with cock removed. Match box and burnt match stick was lying there. Piece of cloth with skin sticking to it was also found. The spot was shown as place where the victim burnt herself. The documents as above, are admitted. Thus victim died due to burns, is not disputed. 7. The most important evidence relied on by the prosecution is the dying declaration Exhibit 27. As such it would be appropriate to first discuss evidence on this count. In this regard, there is evidence of PW5 Head Constable Daulat Patil. He deposed that on 23rd April, 1994 at about 4.00 p.m. he was directed by the P.S.O., in writing, to go to the hospital for recording statement of the victim. According to him, he reached the hospital at 7.15 p.m. and gave written report to the medical officer whether the victim was in mentally fit condition to speak and give her statement. The written report has been proved by the witness at Exhibit 26. If Exhibit 26 is perused, it does not bear any time. The doctor endorsed that the patient is conscious of mind and fit for statement. 8. PW5 Daulat has then deposed that he then recorded statement of victim Shobhabai after realizing that she was in fit condition to give statement. He recorded statement of Shobhabai as per her dictation, in presence of doctor. According to him, he obtained endorsement of the doctor on the F.I.R. It is deposed, he obtained thumb impression also of the victim. PW5 Daulat has then deposed that he then recorded statement of victim Shobhabai after realizing that she was in fit condition to give statement. He recorded statement of Shobhabai as per her dictation, in presence of doctor. According to him, he obtained endorsement of the doctor on the F.I.R. It is deposed, he obtained thumb impression also of the victim. According to him, the contents of the document are true and correct and as per the dictation of Shobhabai, which bears her thumb impression and endorsement of doctor and signature of doctor and his signature also. He claims that then he went to the police station and registered the crime. The Dying Declaration recorded is in narrative form and the contents are as follows:- The victim stated that she was residing at Mohrale with her husband and two daughters and was doing household and agricultural labour for living. That, her husband had since 1012 days gone outside the village and she was residing in the house with her two daughters. In the second Paragraph, it is mentioned that on that day of 23rd April, 1994, in the afternoon at about 22.30 p.m. when she was at home, her elder brother-in-law Uttam Tukadu Sonwane (present accused) had come and he told her that she is of immoral conduct and should not stay in the house. He was always picking quarrel, and told her after giving abuse that she should not stay in the house of his father and leave the children. So, she got fed up and burnt herself. The third Paragraph mentions that the statement was read over and was correctly recorded as per her say. 9. There is evidence of PW7 Dr. Jagannath who has deposed that on 23rd April, 1994 the victim was brought to the hospital by one police constable Narendra of Yawal Police Station at about 5.30 p.m. She had sustained burn injuries. Then PW5 Daulat Patil had come and gave him the report Exhibit 26. The doctor has deposed that the victim had history of burns by kerosene. He claims that he had given her T.T. injection of hypotency analgis (pain reliever) and continuous 5% drip of glucose saline. The doctor has deposed that condition of the patient was quite good although she had 75 to 80% burns on the body. Pulse rate was 110 per minute. Blood Pressure was 180 X 90. He claims that he had given her T.T. injection of hypotency analgis (pain reliever) and continuous 5% drip of glucose saline. The doctor has deposed that condition of the patient was quite good although she had 75 to 80% burns on the body. Pulse rate was 110 per minute. Blood Pressure was 180 X 90. Respiration rate 30 per minute. According to the PW7 Dr. Jagannath, general condition of the patient was good when she was admitted in the hospital. The doctor has referred to his endorsement made on memo Exhibit 26. Doctor claims that Police Constable recorded statement and he was near the patient and that he certified the statement recorded by the Head Constable by making endorsement that the patient was fit for statement and that it was recorded in his presence. The evidence of PW7 is that the patient affixed thumb impression in his presence. 10. The question is whether the above dying declaration is reliable and trustworthy. Following are material facts in this regard: (A). Evidence of PW5 Daulat that he reached the hospital at 7.15 p.m. to record the dying declaration does not match with dying declaration Exhibit 27. Endorsement of doctor on the document is of 17.45 hours and the document purports that the F.I.R was registered at 6.10 p.m. Exhibit 27, the dying declaration does not bear time of its own although the endorsement of the doctor has the time in addition to the date. Prosecution has not reconciled the above differences. (B). Although in Exhibit 27 the last sentence recorded by the Head Constable is that the statement was read over and correctly recorded, in oral evidence PW5 Head Constable Daulat as well as PW7 Dr. Jagannath have not deposed that the statement after having been recorded, was read over to the victim and that she had accepted the same to be correct. Victim was illiterate and on her own could not have dictated that the statement was read over and correctly recorded, unless she was asked about it. Merely writing at the foot of the dying declaration that it was read over and the victim admitted the same to be correct will not be enough and it would be necessary to actually read over and explain the statement to the victim. Merely writing at the foot of the dying declaration that it was read over and the victim admitted the same to be correct will not be enough and it would be necessary to actually read over and explain the statement to the victim. It is also necessary that at the time of evidence in Court, the person recording the statement must testify that indeed the statement was read over and that the victim accepted the contents to be correct and that the endorsement was accordingly made. (C). The evidence of Dr. Jagannath (PW7) shows that victim had 7580% burns. I have already referred to his evidence as regards the treatment he had started for the victim when the victim was brought to the hospital, which includes giving the victim pain relievers. Although the doctor has deposed that the victim was in a condition to give statement, it cannot be forgotten that the condition of the patient was such that for the incident which took place at 22.30 p.m. on 23rd April, 1994, she expired in the same evening. The evidence of PW5 Daulat Patil and PW7 Dr. Jagannath needs to be read with evidence of PW8 Annapurnabai, the mother of the victim. The evidence of PW8 Annapurnabai shows that police had come and informed her regarding her daughter getting burnt and that she went to the government hospital Yawal with police but her daughter Shobha did not speak with her and that she had sustained burns. In the cross-examination PW8 clearly admitted that when she had gone to the victim, the victim was not in a position to speak. The Inquest Panchnama Exhibit 17 mentions that the victim expired on 23rd April, 1994 at 22.10 hours. Thus, for the incident which took place around 2.30 p.m., the victim had expired at about 10.10 p.m. i.e. within about 4 and ½ hours of alleged Dying Declaration of 05.45 p.m. As such the evidence of PW8 Annapurnabai that when she went to her daughter, the daughter was not in a position to speak, creates doubt regarding the dying declaration if really the victim was in a condition to give the statement. 11. The above factors considered cumulatively, create doubt regarding the reliability and trustworthiness of the Dying Declaration Exhibit 27. 12. 11. The above factors considered cumulatively, create doubt regarding the reliability and trustworthiness of the Dying Declaration Exhibit 27. 12. Prosecution tried to bring on record other evidence, apart from the dying declaration, to claim that the accused was harassing the victim taking doubts regarding her chastity. The same facts are claimed by the prosecution to be amounting to cruelty as contemplated under Section 498A of I.P.C. also. For this, there is evidence of PW1 Moolchand Tayade. He is real brother of the victim Shobha. He deposed that the marriage took place 1516 years before the incident. This witness claims that the victim was telling him that the accused persons were “assaulting and beating her” and that the accused were telling her that “they will burn and kill her.” While PW1 Moolchand deposed that the accused were assaulting, beating and threatening her, PW8 Annapurnabai, mother of the victim did not depose that her daughter was being assaulted or beaten or that she was being threatened. What PW8 Annapurnabai has deposed is that her daughter had visited her house 1530 days before the incident and had told her (see Marathi version) that people from her house (read place of inlaws) “Boltat” “cksyrkr” (i.e. speak against her) and that “Pap lavtat” “iki ykorkr” i.e. allege unchastity. PW8 has deposed that this was being done by the elder brother-in-law and husband of her daughter, was told by the daughter. It is clear that the evidence of PW1 Moolchand, the brother and PW8 Annapurnabai, the mother regarding the alleged cruelty does not match. The same is also general in nature and vague. In fact PW1 Moolchand after deposing that the victim was telling that the accused were assaulting, beating and threatening her, was unable to say as to “why” the accused were illtreating and assaulting her. If the sister was to complain to her brother that her inlaws were assaulting, beating and threatening her, the most natural conduct of the brother would be to ask the sister as to what was the reason for such behaviour. The very fact that PW1 deposed that he does not know as to why the accused were assaulting, illtreating her, indicates that the evidence given by him regarding harassing, beating, threatening, is vague and doubtful. He may be speaking so getting angry due to death of his sister. The very fact that PW1 deposed that he does not know as to why the accused were assaulting, illtreating her, indicates that the evidence given by him regarding harassing, beating, threatening, is vague and doubtful. He may be speaking so getting angry due to death of his sister. In fact PW1 Moolchand went to the extent of claiming that when he went to the hospital victim told him that the accused persons burnt her. Thus although it is the case of the prosecution that the victim committed suicide, this witness PW1 Moolchand claims that the victim told him that the accused had burnt her. PW1 was declared as hostile by the prosecution and went back from his earlier statement Exhibit 29 and 30 which related to victim saying that she had committed suicide. 13. PW2 Sarika, daughter of victim deposed that her mother had sustained burn injuries on her own. The witness was declared hostile and disowned portions of her statement marked Exhibit 31 and 32. The Police Patil of the village PW3 Rambhau Patil deposed that he came to know about the incident and went to the house of the victim and saw that she had sustained burns. Sarpanch Ashok Patil had telephoned the police and the police came and took the victim away. This Police Patil has also not supported the State regarding the case of prosecution that the victim committed suicide due to ill-treatment by the accused. 14. Prosecution examined PW4 Saraswatibai, mother of the accused. It appears that she was summoned to depose that the victim had illicit relations with one Jabra Tadvi and that they were asking the victim to discontinue the relations with said Jabra and in that context accused had gone to the victim to make her understand. PW4 Saraswatibai however turned hostile and has not supported the prosecution disowning the portions of her statement Exhibit 35 and 36. There is evidence of I.O. PW6 A.P.I. Pandharinath Pachpute claiming that these witnesses did make the statements disowned by them. But the fact remains that these witnesses did not support the prosecution that due to the conduct of the accused the victim committed suicide. 15. I have referred to the evidence of PW7 doctor that the victim was brought to the hospital by Police Constable Narendra of Yawal Police Station. This witness is not examined. But the fact remains that these witnesses did not support the prosecution that due to the conduct of the accused the victim committed suicide. 15. I have referred to the evidence of PW7 doctor that the victim was brought to the hospital by Police Constable Narendra of Yawal Police Station. This witness is not examined. The evidence of PW3 Police Patil revealed that the Police had reached the spot as the Sarpanch Ashok Patil had telephoned the Police. The Police had reached the spot because they must have been informed. The Sarpanch Ashok Patil or whoever informed the Police about the incident, have not been examined, nor it was brought on record as to what was the information received by Police due to which they went to the spot and took the victim to the hospital. 16. I have discussed that the oral evidence available regarding alleged cruelty is vague and general in nature. No specific instances have been brought on record regarding the alleged cruelty. The record shows that the victim was residing with her daughters and her husband separately. It is not a case that the accused was residing jointly in the same house and making life miserable for the victim. With such background, even if the Dying Declaration Exhibit 27 was to be relied on, it would show that the accused went to the house of his brother and had alleged against the victim that she was of immoral conduct. Even if it was to be said that what the accused alleged was not true, that by itself cannot be calculated as mensrea of instigation to commit suicide. In the matter of “State of Maharashtra vs. Vijay Pandurang Pawar”, reported in 2005 ALL MR(Cri) 1487, the facts were that the Appellant therein was suspecting his wife's fidelity and used to beat her and on the day of incident dated 1591990 at about 9.00 p.m. there was quarrel and the appellant-accused therein was alleging to his wife that she has illicit relations with others whereafter the wife at 11.00 p.m. committed suicide by fire. The Sessions Court had acquitted the accused in that matter and when the appeal was carried to this Court, it was observed in Para 6 as under: “6. The Sessions Court had acquitted the accused in that matter and when the appeal was carried to this Court, it was observed in Para 6 as under: “6. In a case where accused is charged for having committed offences punishable under section 498A read with section 306 of the Indian Penal Code, the prosecution has to establish beyond reasonable doubt that the accused has, as result of his wilful conduct brought the deceased to the brink of committing suicide and, therefore, abetted the offence under section 306 of the I.P.C......” In the present matter also it cannot be said that the accused had driven the victim to the wall where she had no option but to commit suicide. The accused was not even residing in the same house and only because he visited and made such allegations, with no other or further acts of cruelty proved, the act cannot be construed as abetment to commit suicide or cruelty as contemplated under Section 498A of I.P.C. 17. I have gone through the Judgment of the trial Court. The trial Court came to the conclusion that the victim had committed suicide. The victim committed suicide is not challenged by the learned counsel for the Appellant-accused before me. The counsel for Appellant-accused however found fault with the reasonings recorded by the trial Court to accept the dying declaration as reliable. According to the learned counsel the trial Court did not take comprehensive view of the evidence and wrongly accepted the dying declaration as duly proved although there was mismatch of time and the attending factors were ignored. 18. Reappreciating the evidence, I do not find myself agreeing with the trial Court that the offence under Section 306 or Section 498A of I.P.C. has been proved. Dying declaration recorded does not appear to be reliable and trustworthy and the evidence regarding alleged cruelty is scanty, vague and for reasons already discussed, needs to be ignored. Prosecution fails to prove the offence beyond reasonable doubts. 19. For the above reasons, I pass following order: ORDER (A) The Appeal is allowed. (B) The conviction and sentence imposed on the Appellant-accused by the trial Court in Sessions Case No.138 of 1995 under Section 306, 498A of I.P.C. is quashed and set aside. (C) The Appellant-accused is acquitted of the offence punishable under Section 306, 498A of I.P.C. (D) The bail bonds of the Appellant-accused are cancelled. (B) The conviction and sentence imposed on the Appellant-accused by the trial Court in Sessions Case No.138 of 1995 under Section 306, 498A of I.P.C. is quashed and set aside. (C) The Appellant-accused is acquitted of the offence punishable under Section 306, 498A of I.P.C. (D) The bail bonds of the Appellant-accused are cancelled. (E) Fine, if paid, be returned to the Appellant-accused.