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2015 DIGILAW 2174 (BOM)

Sanjay v. State of Maharashtra

2015-09-15

V.M.DESHPANDE

body2015
JUDGMENT : V.M. Deshpande, J. 1. The present appeal is directed against the judgment and order of conviction passed by the learned Additional Sessions Judge, Washim, in Sessions Trial No. 20 of 2006 on 15.01.2007, thereby convicting the present appellant for the offence punishable under Section 498-A of Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000/-, in default to suffer further rigorous imprisonment for two months. By the said order, the appellant was also convicted for the offence punishable under Section 306 of Indian Penal Code and sentenced to suffer rigorous imprisonment for ten years and to pay fine of Rs. 1,000/-, in default to suffer further rigorous imprisonment for two months. 2. It appears that the appellant was penniless and, therefore, Legal Aid Committee of this Court extended the legal aid to him through an appointed Advocate. Though legal aid was extended, the appeal was not filed within the time of limitation. The appeal was barred by limitation by 2240 days. Ultimately, the appeal along with an application for condonation of delay was filed on 9.5.2013. This Court on 08.10.2013 allowed the application for condonation of delay and the appeal was registered. The appeal was admitted and record and proceedings were called. When record and proceedings from the trial Court were called, only copy of the judgment along with the warrant to the Jailor is transmitted to this Court, since other files were already destroyed. 3. The Legal Aid Committee of this Court received a communication from the Superintendent, Akola District Jail. It is dated 13.8.2015. By the said communication it was intimated that the appellant is already released from jail. Today, learned A.P.P. has placed on record a communication dated 08.9.2015 from the Superintendent, Akola District Jail. Same is taken on record and marked "X" for the purpose of identification. Perusal of the said communication would reveal that remission of 839 days was given to the appellant by the jail administration and thereafter on 09.7.2014 he is released from jail on completion of sentence that was imposed upon him by the learned trial Court. This Court could have dismissed the appeal as infructuous, however the blot of conviction will be there. Therefore, this Court has examined the only available material on record, i.e. the impugned judgment. 4. Heard Mr. Bhoyar, learned APP, in extenso. This Court could have dismissed the appeal as infructuous, however the blot of conviction will be there. Therefore, this Court has examined the only available material on record, i.e. the impugned judgment. 4. Heard Mr. Bhoyar, learned APP, in extenso. Deceased is Lata. Appellant is her husband. A quarrel took place on 19.11.2005. The cause of quarrel was the demand of Rs. 20/-from the appellant to his wife for purchase of liquor. The said demand was not obliged by Lata. Therefore, the present appellant gave fist blow and kick blow to her. According to prosecution, Lata got annoyed and she poured kerosene on her person and set herself ablaze. The appellant did not extinguish the fire. 5. According to prosecution, the dying declaration of Lata was recorded firstly by the police authorities and after five hours it was recorded by the Special Executive Magistrate. The learned Judge of the Court below relied upon the aforesaid two dying declarations and convicted the appellant, as stated in the opening paragraphs of this judgment. 6. The first dying declaration was made before P.W.7 Sudam, who is Police Sub Inspector of police station Mangrulpir. P.W.4 is Dr. Rajratna, Medical officer of P.H.C. Dhenaj, second dying declaration was recorded by the Special Executive Magistrate Satish Madhukar Shinde (P.W.5) in presence of P.W.6 Dr. Vidya Wathodkar. The gap between these two dying declarations is five hours. 7. The dying declarations, as could be seen from the recitals of the judgment of the court below, are identical. Both these dying declarations would reveal that an amount of Rs. 20/-was demanded by the appellant from Lata which was refused and, therefore, he gave fist and kick blows resulting into pouring of kerosene by Lata herself and setting her ablaze. Moot question is, whether the appellant could be held responsible for the offence under Section 306 of Indian Penal Code? 8. Section 107 of Indian Penal Code deals with abetment. It reads as under : "107. Moot question is, whether the appellant could be held responsible for the offence under Section 306 of Indian Penal Code? 8. Section 107 of Indian Penal Code deals with abetment. It reads as under : "107. Abetment of a thing.--A person abets the doing of a thing, who First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." 9. Section 108 of Indian Penal Code speaks about a person who could be said to be abettor. From the dying declarations it is clear that it was never the intention on the part of the present appellant that his wife should commit suicide. From the dying declarations, at the most, one can reach to a conclusion that the appellant is most irresponsible person in his life. It shows that he is habituated to drinking. Since he was demanding money from his wife for purchasing liquor, it clearly speaks that this man must not have been doing any work. Merely because the amount is demanded by the appellant from his wife, upon refusal of which by the wife if the appellant assaults his wife, the appellant may be responsible for commission of any other offence, but surely it cannot be said that it was the intention on the part of the appellant that his wife should commit suicide. 10. Perusal of the dying declarations would also show that the wife was infuriated due to the assault on her by the appellant and therefore, she committed suicide. 10. Perusal of the dying declarations would also show that the wife was infuriated due to the assault on her by the appellant and therefore, she committed suicide. In the heat of passion, it appears that Lata has poured kerosene on her person and set herself ablaze. In that view of the matter, conviction of appellant under Section 306 of Indian Penal Code is unsustainable and hence the appellant is acquitted of the offence punishable under Section306 of Indian Penal Code. 11. The appellant is also convicted of the offence punishable under Section 498-A of Indian Penal Code. Section 498-A reads as under : "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." From the dying declarations it is clear that the incident in question was not a solitary incident. From the impugned judgment of the court below, which has discussed the dying declarations elaborately, it is clear that the deceased was receiving harassment at the hands of the appellant. 12. Further, the dying declarations show that even after pouring kerosene on herself and setting herself ablaze, the appellant did not take any steps or no attempts were made on his part to extinguish the fire, though the appellant was very much present on the spot. In my view, such act or omission on his part not to extinguish the fire will be one of the shed of cruelty to the wife. In that view of the matter, the conviction imposed upon the appellant under Section 498-A of Indian Penal Code is required to be upheld. In my view, such act or omission on his part not to extinguish the fire will be one of the shed of cruelty to the wife. In that view of the matter, the conviction imposed upon the appellant under Section 498-A of Indian Penal Code is required to be upheld. That leads me to pass following order. ORDER "(i) Criminal Appeal is partly allowed. (ii) Conviction of the appellant for the offence punishable under Section 306 of Indian Penal Code is set aside. (iii) Conviction of the appellant for the offence punishable under Section 498-A of Indian Penal Code is upheld. (iv) Since the appellant has already undergone the entire jail sentence imposed upon him by the trial Court and he is released from the jail, there is no necessity of passing any order in respect of sentence or his release from the jail.