Bombay High Court
Shrirang Narayan Datal vs The State Of Maharashtra on 29 January, 1997
Equivalent citations: I(1997)DMC480
Author: D.G. Deshpande
Bench: D.G. Deshpande
JUDGMENT D.G. Deshpande, J.
1. Heard Mr. J.N. Pawar for the accused appellant and the learned APP Mrs. Pawar for the State. In this appeal, the accused has challenged his conviction Under Sections 498-A and 306, IPC. The matrimonial life of this accused with his wife Sunita was of three years, i.e. from their marriage in 1985 till Sunita's death on 30th July, 1988. They had a child from their wedlock and at the relevant time, Sunita was residing with the accused. She died as a result of bum injuries which were 60% spread over the body and the death occurred after 12 days,
2. Two dying declarations of Sunita were recorded in this case. First was recorded immediately by the S.E.M. on 18.7.1988 Exh. 14 and the second was recorded on 29-7.1988 Exh. 20. In Exhibit 14, Sunita did not blame her husband as being responsible for causing the burns, nor did she state anything regarding her attempt to commit suicide. She stated that she caught fire accidentally while she was preparing tea. In the second dying declaration. Exhibit 20, "she has however, put the entire blame on her husband.
3. The learned Counsel for the accused laid great emphasis on the first dying declaration and urged that in view of two contradictory dying declarations, the benefit of doubt was required to be given to the accused. On the basis of first dying declaration Exhibit 14, he contended that the second dying declaration was unnatural as it came to be recorded by the police after Sunita's brother came to the hospital and persuaded police to send S.E.M. to record fresh dying declaration of Sunita. Mr. Pawar also contended that the second dying declaration was the result of tutoring and persuasion of Sunita by her relatives including the said brother Shivaji.
4. The prosecution has relied upon letters written by Sunita. They are at Exhs. 11 to 13. Mr. Pawar however, challenged the admissibility and authenticity of the letters on the ground that there were material contradictions regarding the original custody of the letters regarding their production in Court, regarding their seizure, and consequently there were contradictions in the evidence of witness Shivaji, the Panch witness, and the Police Officers. He, therefore, urged that these letters could not have been relied upon by the prosecution.
5. So far as oral evidence is concerned, Mr. Pawar contended that it was full of contradictions and omissions and there was delay in lodging the FIR that the father of the victim girl was not examined, and therefore, according to him, the oral evidence was liable to be rejected.
6.1 have given my anxious considerations to the submissions made by Mr. Pawar. It is true that there are two dying declarations on record, one is at Exh. 14 and the other is at Exh. 20. In the first dying declaration, i.e. Exh. 14, Sunita has stated that while she was preparing tea, she stood up to take cup and saucer from the stand and at that time her polyster saree caught fire, and she received burns. As against this, in die next dying declaration, i.e. Exh. 20, Sunita has stated that her husband used to suspect her character and therefore, she poured kerosene on her person and set herself on fire. Sunita was confronted by the S.E.M. with her earlier dying declaration, but, she stated that the earlier statement was given by her at her own instance, but, she wanted to give fresh statement and she was not tutored by anybody. Admittedly, there are two dying declarations of Sunita, one of which not only exonerates the accused but shows that it was accidental death, whereas, the other shows that it was suicidal death. This fact coupled with the fact that the accused while trying to extinguish Sunita from fire suffered 14% injuries and was also admitted in the hospital, benefit of doubt is required to be given to the accused, as no reliance can be placed on the second dying declaration Exh.20.
7. So far as letters of Sunita at Exs. 11 to 13 are concerned, it is true that the prosecution has not been able to prove properly the custody of the letters, their seizure and die production in Court. The evidence of Shivaji and that of the Panch witness and the PSI is contradictory. Out of these three letters, two letters are written by Sunita and one is written by the husband i.e. the accused. Considering the fact that writing and signature of these letters is not denied or disputed, nor challenged by the accused at any time during the cross-examination, the letters can be looked into as a piece of evidence, even though there are contradictions in the prosecution evidence regarding their custody, production, seizure etc.
8. So far as oral evidence of the witnesses are concerned, it was contended by Mr. Pawar that the story of the prosecution that the accused was suspecting character of Sunita, was totally false because according to him, when Sunita was married, she was educated upto 9th standard only, accused gave her further education and she had passed her S.S.C. examination and she succeeded in procuring admission for D.E.D. course at Pune. She had also received admission call for the same and on the very next day of the incident, she was to go to Pune and it was the accused alone who had spent for her further education and was going to spend further in future.
9. The learned Counsel for the appellant therefore contended that the conduct of the accused in giving education to Sunita and his willingness to sent Sunita from Jajuri to Pune/ falsifies the case of die prosecution mat the accused was suspecting character of Sunita. This argument is prima facie attractive but, it cannot be accepted, nor can be the prosecution rejected. The evidence of the prosecution witnesses particularly of die Shivaji-PW 1, Kamalabai PW 2, regarding the narration made to them by Sunita after they reached Sasoon Hospital where the Sunita was kept on account of burns received by her, and the earlier instances given by them clearly show that Sunita was subjected to cruelty by the accused. It was argued by Mr. Pawar, me learned Counsel for the appellant that there was delay in lodging the FIR and no explanation for the delay was given by the prosecution.
10. In my opinion, firstly, there was no delay in lodging the FIR and secondly, even if there is delay there were strong reasons for the same, as because Sunita was fighting her battle with death inspite of having 60% injuries, and if she had survived, then, any report against the accused would have spoiled her future life and therefore Shivaji was justified in lodging the FIR rather late.
11. The evidence of Shivaji and Kamalabai and of the other witnesses of the prosecution coupled with the letters, was rightly accepted by the lower Courts as sufficient for holding the accused guilty Under Section 498-A. The Trial Court has considered all the facts and circumstances and the convincing reasons, to come to the conclusion regarding guilty of the accused. I, therefore, do not find any infirmity in the judgment of the Trial Court, so far as offence Under Section 498-A and the findings thereon are concerned. But, the appeal is required to be partly allowed as benefit of doubt is required to be given to the accused because of the two contradictory dying declarations. The accused is therefore liable to be acquitted Under Section 306 of the IPC but, his conviction Under Section 498-A is liable to be maintained.
12. I, therefore, pass the following order.
The appeal is partly allowed. The conviction of the accused Under Section 306 IPC is set aside and he is acquitted. The conviction of the accused and sentence granted under Section 498-A, IPC by the Trial Court is maintained. If the accused had paid fine of Rs. 1,000/- Under Section 306, IPC, the same be returned to him.