Bombay High Court
Bench At Aurangabad vs The State Of Maharashtra on 3 July, 2012
Author: T.V.Nalawade
Bench: T.V.Nalawade
1 cria217-00.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 217/2000
Jitendra Baburao Patil
Age 28 years, Occ-Service
R/o Dhule
Tq. and Dist.Dhule .. APPELLANT
VERSUS
The State of Maharashtra
[Copy to be served on the
Public Prosecutor in the
High Court of Judicature of Bombay,
Bench at Aurangabad] ..RESPONDENT
....
Shri C.R.Deshpande,Advocate for appellant.
Shri R.P.Phatake,A.P.P. for Respondent-State.
....
CORAM : T.V.NALAWADE,J.
DATE : 03/07/2012
JUDGMENT :
1] This appeal is filed against judgment and order of Sessions Case No.18/1999 which was pending in the Court of Additional Sessions Judge, Dhule. By the decision dated 6/5/2000, the appellant is convicted and sentenced by the trial Court for ::: Downloaded on - 09/06/2013 18:43:59 ::: 2 cria217-00.odt offences punishable under Section 498-A of I.P.C. Parents and the two brothers of the appellant were also charged and tried alongwith the appellant for the offences punishable u/s 306, 304- B, 498-A r.w. 34 of I.P.C. and also for offence punishable u/s 4 of Dowry Prohibition Act. Other accused are acquitted of all the offences. Both sides are heard. Original papers are perused by this Court.
In short, the facts leading to the institution of the appeal can be stated as follows :
2] Deceased Rekha was a sister of complainant Kishor Ingale.
Rekha was given in marriage to the appellant in the month of May 1995. She died due to burn injuries on 25/8/98. She has left behind a daughter who was aged about 3 years at the relevant time.
3] In the marriage, dowry was given and gold ornaments of 18 Tolas were also given by the parents of the deceased. In June 1995, more articles like Refrigerator, Cot were gifted by the ::: Downloaded on - 09/06/2013 18:43:59 :::
3 cria217-00.odt parents of Rekha to see that Rekha leads happy married life.
The parents of the complainant started hearing about the ill treatment which appellant was giving to the deceased immediately after few days of the marriage. Initially, complainant and other relatives of Rekha did not give much importance to the grievances expressed by Rekha. On 16/6/97, when Rekha came to attend the marriage of complainant, the parents saw injuries like wheel marks on the person of Rekha and when they learnt that appellant had given beating to Rekha, they took the matter seriously. On that occasion, they somehow convinced the appellant to behave well and the appellant also undertook not to repeat such instances.
4] On 26/8/97, one neighbour of appellant viz. Smt.Jangale contacted the complainant and the parents of Rekha on phone and she informed that the appellant had given beating to Rekha.
The complainant and other relatives of Rekha went to Dhule where Rekha was cohabiting with the appellant. They learnt about the ill treatment. They took the matter first to police but due to mediation of police, complaint given by Rekha was withdrawn.
::: Downloaded on - 09/06/2013 18:43:59 :::4 cria217-00.odt However, parents of Rekha took Rekha with them to their house and from that time, Rekha stayed in the house of her parents for about 8-9 months.
5] On 2/6/98, the two brothers of appellant went to the house of parents of Rekha and due to their mediation, Rekha was sent back to matrimonial house. Then appellant started demanding Rs.50,000/- from the parents of Rekha. The parents of Rekha could not meet this demand. Rekha sustained burn injuries in the matrimonial house on 24/8/98 after 20 Hrs. She died in civil hospital Dhule on 25/8/98 at about 4.45 a.m. Brother of Rekha gave report to police at about 15 Hrs. on 25/8/98.
6] P.S.I. Kamble attached to Dhule city police station made investigation of the case. Inquest was prepared on the dead body and post mortem was conducted in civil hospital. Rekha died due to 98% burn injuries. Spot panchanama came to be prepared. Statements of some neighbours of the appellant came to be recorded. Statements of relatives of Rekha on parents side also came to be recorded. Charge sheet came to be filed for ::: Downloaded on - 09/06/2013 18:43:59 ::: 5 cria217-00.odt aforesaid offences. In the trial Court, prosecution examined 6 witnesses. The trial Court has believed the evidence given by prosecution witnesses as against the appellant on the point of cruelty.
7] The defence has admitted record like inquest panchanama, spot panchanama and post mortem report. This record shows that Rekha died due to 98% burn injuries. Spot panchanama at Exh.33 shows that pieces of partly burnt saree of Rekha were found in sitting room of the house and also in the kitchen. There was some kerosene on the floor of kitchen. The curtain which was fixed at the door frame which was between kitchen and sitting room was found in burnt condition. Police took over the kerosene lantern from kitchen. This lantern was prepared by using a glass bottle of 180 ml. capacity.
8] In the cross examination of P.S.I. Kamble, P.W.8, it is brought on the record that atleast 2 dying declarations of Rekha were recorded in the civil hospital Dhule. One dying declaration was recorded by police officer and one was recorded by ::: Downloaded on - 09/06/2013 18:43:59 ::: 6 cria217-00.odt executive magistrate. Prosecution did not give evidence to prove these 2 dying declarations though the two dying declarations were produced alongwith the report filed u/s 173 (2) of Cr.P.C.
The papers like bed head ticket, case papers in respect of deceased prepared in civil hospital were also not collected. The investigating officer has admitted that the dying declarations revealed that the deceased had not complained against anybody in respect of the incident. On the basis of this evidence, the trial Court has given finding that the deceased probably died due to accidental injuries.
9] The provisions of Section 173 (2) and (5) of Cr.P.C. show that when the report u/s 173 (2) of Cr.P.C. is in respect of a case to which Section 170 of Cr.P.C. applies, the investigating officer is expected to produce alongwith such report all the documents on which the prosecution proposes to rely. When such record [including the dying declarations] is produced alongwith report filed u/s 173(2) of Cr.P.C., the Court is expected to go through this record at various stages of the matter. At the time of taking cognizance of the offence u/s 190(b) of Cr.P.C. the Court is ::: Downloaded on - 09/06/2013 18:43:59 ::: 7 cria217-00.odt expected to go through such record. When the case comes up for trial, at the time of framing of the charge, in view of the provisions of Sections 227 and 228 of Cr.P.C., the Court is required to consider entire record including the record of dying declaration. The Court is required to keep in mind that there is such record in existence till the conclusion of the case.
10] The wordings of Section 231 of Cr.P.C. shows that the prosecution is expected to lead all such evidence as may support the case of prosecution. As dying declaration is substantive piece of evidence, even when the prosecution does not lead evidence to prove the record of dying declaration, it becomes necessary for the Court to see that in any way evidence is given for proof of such dying declaration in a case like present one. Unless suicide is proved, the offence u/s 306 of I.P.C. cannot be proved. Only after proof of the fact of suicide, the presumption available u/s 113-A of Indian Evidence Act can be used. If the dying declaration shows that it was not the case of suicide but the injuries were sustained in accidental fire, such evidence becomes important in the case like present one as there are charges for ::: Downloaded on - 09/06/2013 18:43:59 ::: 8 cria217-00.odt offence u/s 498-A, 306, 304-B of I.P.C. The Court is expected to give finding on the nature of the death, whether it was suicidal or accidental.
11] In view of the wordings of Section 294 of Cr.P.C., either side can give notice in respect of the record of dying declaration. In the present case, it can be said that as alongwith report u/s 173(2) Cr.P.C., the record of two dying declarations was produced by investigating officer and that can be seen from the ferist also. This record was at Sr.Nos.10 to 15 of the ferist [list of documents produced with the report]. Unfortunately, neither the prosecution nor the defence took steps for proof of the two dying declarations of Rekha. The role of the Court starts here which is mentioned in Section 311 of Cr.P.C. This Section has two parts.
The first part is about the discretionary power of the Court and the second part shows that some statutory duty is imposed on the Court and it is mandatory in nature. The second part of Section 311 of Cr.P.C. compels the Court to summon and examine the relevant witnesses if their evidence appears to be essential for the just decision of the case. When in a case like present one, ::: Downloaded on - 09/06/2013 18:43:59 ::: 9 cria217-00.odt there is the evidence of relatives of the deceased to the effect that the deceased probably committed suicide and on other hand, there is a record of dying declaration showing that the deceased lastly disclosed that she sustained injuries in accidental fire and when both sides did not take steps for proof of the record of the dying declaration, it becomes virtually impossible for the Court to draw conclusive inference about the nature of death. The Court cannot ignore such record only because it is not proved. In such a case, it becomes incumbent on the part of the Court to get the record of dying declaration proved. This Court has no hesitation to hold that such a case falls under the second part of Section 311 of Cr.P.C. and in such case, the evidence of dying declaration is essential to the just decision of the case. The object of provisions of Section 311 is to see that the Court arrives at the truth which is necessary for just decision of the case. The Court is required to take all the steps which are necessary to bring all the relevant record with regard to dying declaration before it and to get it proved. Not only the recorded dying declarations need to be duly proved by calling the witnesses who recorded them, but the record like bed head tickets [case papers] ::: Downloaded on - 09/06/2013 18:43:59 ::: 10 cria217-00.odt prepared by hospital where the deceased received treatment due to such injuries and where the dying declarations were recorded, needs to be brought to the Court and duly proved. The Court cannot avoid the discharge of such duty and the Court cannot take support of few admissions like given by investigating officer in the present case. The investigating officer had no personal knowledge and his evidence cannot be called as the best evidence available with regard to the dying declaration. Further, not only the nature of death is required to be ascertained, the other contents also need to be seen to ascertain the reason behind the incident. In this case, the trial Court has failed to discharge the said duty. Not only Section 311 [second part] is there in aforesaid regard, there is one more section like Section 165 of Evidence Act. This provision is available as a complimentary provision to the provisions of Section 311 of Cr.P.C. Neither the defence nor prosecution can come in the way of the Court in such a case. Such evidence can help either the prosecution or the defence and so it cannot be said that it is a matter of causing prejudice to either side. In any way, in view of wording of the second part, argument on prejudice is not tenable.
::: Downloaded on - 09/06/2013 18:43:59 :::11 cria217-00.odt 12] The aforesaid provisions of Cr.P.C. and the facts of the present case show that record of dying declaration was available to both sides but both the sides did not give evidence to prove the dying declaration. As the record was available to both sides, it is not possible in such a case for the Court to draw the inference against the prosecution by using the provisions of Illustration [g] of Section 114 of Evidence Act. In view of nature of the evidence which needs to be given for proving of the dying declaration and surrounding circumstances, it is always desirable to have the best evidence and such evidence can be made available by taking the aforesaid steps. It can be said that if either side uses the provisions of Section 294 of Cr.P.C. and the other side admits the record, the Court may dispense with the formal proof of the record of dying declaration and Court may read the record in evidence. However, if genuineness of the documents is disputed, or the Court refuses to dispense with the formal proof, all the relevant evidence which is mentioned above with regard to dying declaration needs to be given either by the prosecution or by the defence. When both sides do not show interest in leading such ::: Downloaded on - 09/06/2013 18:43:59 ::: 12 cria217-00.odt evidence, it becomes necessary for the Court to discharge the statutory duty imposed on it by Second part of Section 311 of Cr.P.C.
13] In the present case, the trial Court has given finding on the basis of some circumstances and the admissions given by the Investigating Officer that it was not suicide. This finding is not challenged by the State. The trial Court has however, not segregated the evidence on cruelty which can be of two types viz. the evidence in the form of so-called disclosure made by the deceased and the direct evidence, the cruelty witnessed by the prosecution witnesses. In view of the wordings of Section 32(1) of Evidence Act and its interpretation made by the Apex Court in the case reported as Inderpal V/s State of M.P. reported in 2003 S.C.C. [Cri] 1049, when suicidal death is not proved by prosecution in such a case, the evidence in the form of disclosures made by the deceased is not admissible in evidence.
Thus, if suicide is not proved in the case like present one, the disclosures allegedly made by deceased do not fall within the purview of Section 32(1) of Evidence Act and such evidence ::: Downloaded on - 09/06/2013 18:43:59 ::: 13 cria217-00.odt cannot become base for conviction. So it needs to be seen as to whether there is evidence in other form in the present case, the direct evidence on cruelty.
14] The deceased was educated upto S.Y.B.A. The mother of deceased Pushpalata, P.W.4 has given admission in cross examination that the deceased used to send letters to her and deceased had informed in the letters that everything was alright.
Though no such letters are produced, the admission given by mother of the deceased needs to be kept in mind while appreciating the other evidence.
15] The marriage took place in the month of May 1995 and Rekha died on 25/8/98. Kishor [P.W.1] the brother of deceased has given evidence that on 16/6/97, they saw wheel marks on left hand of Rekha and then they realized that it was marks of violence. He has deposed that accused gave promise on this occasion not to repeat such instances of violence. He has deposed that on one day, a neighbour of appellant viz.
Smt.Jangale informed that Rekha was beaten severally by the ::: Downloaded on - 09/06/2013 18:43:59 ::: 14 cria217-00.odt husband, appellant. He has deposed that he and the other relatives went to Dhule and they gave report to police. He has deposed that there was demand of Rs.50,000/- from the appellant and on that count, the appellant was giving beating to Rekha. He has deposed that accused tendered apology in the police station and so complaint of Rekha was withdrawn. He has however given evidence that from that date, Rekha stayed in the house of her parents for about 8-9 months. He has deposed that two brothers of appellant came to their house and so they sent Rekha back to matrimonial house. He has given evidence that even after the resumption of cohabitation, the appellant continued his making the demand of Rs.50,000/-.
16] The F.I.R. at Exh.45 is consistent on material points with the substantive evidence given by P.W.1. The evidence shows that about 2½ months prior to the death of Rekha, she had resumed cohabitation. The evidence of P.W.1 does not show that during this period of 2½ months, Rekha had made any disclosure of ill treatment or he had witnessed the incident of ill treatment during this period. Though the evidence is given by P.W.1 that accused ::: Downloaded on - 09/06/2013 18:43:59 ::: 15 cria217-00.odt no.1 was demanding Rs.50,000/-, on phone, the reason for which he wanted the money is not given. The evidence of Pushpalata, [P.W.4] mother of Rekha is similar to the evidence of P.W.1. In addition, she has tried to say that the appellant was making allegations in respect of the character of Rekha.
17] Smt.Jangale [P.W.3] has given evidence that about 1 year prior to the death of Rekha, Rekha had disclosed that the appellant was giving beating to her. She has given evidence that due to disclosure made by Rekha, she called the relatives of Rekha to Dhule. She has given evidence that the relatives of Rekha came to Dhule and they took Rekha to the parents house.
This lady has not made a whisper about the demand of Rs.
50,000/- which the appellant was allegedly making. This lady has not made a whisper about the giving of the report to police on this occasion by Rekha. In cross examination, she has tried to exaggerate the things by saying that the appellant was also expressing suspicions about the character of Rekha. The complainant has not come with such a case. In any case, the evidence given by Smt.Jangale is in respect of so called ::: Downloaded on - 09/06/2013 18:43:59 ::: 16 cria217-00.odt disclosure made about one year prior to the death and her entire evidence is based on the so-called disclosure made by Rekha which is not admissible in evidence.
18] Zine P.W.5, the P.I. who was incharge of the police station, when the report was made by Rekha on 28/6/97, has given evidence that one P.S.I. Borale had brought Rekha and relatives to the police station. Borale is said to be a relative of the parents of Rekha. He has given evidence that complaint was made that appellant had given beating to Rekha. He has given evidence that as appellant tendered apology and Rekha withdrew the complaint, the matter was closed. His evidence shows that no record was made in the police station about giving of complaint by Rekha or anybody on that occasion. In ordinary course, atleast entry could have been made in station diary. Further, the evidence can be said to be the evidence of disclosure. It is also in respect of so-called disclosure made about one year prior to the death. This officer has not also made whisper about the so-
called demand of Rs.50,000/- made by the appellant. So, this Court holds that the evidence of Zine is of no use for proving the ::: Downloaded on - 09/06/2013 18:43:59 ::: 17 cria217-00.odt offence.
19] Anita P.W.2 has given evidence that on one occasion, Rekha had disclosed that there was demand of Rs.50,000/- and on that occasion, appellant was giving beating to her. She has not given any specific month etc. of such disclosure. In any case, the evidence is based on the so-called disclosures which were made by Rekha and for the reasons already given, such evidence cannot be used to base the conviction.
20] Anita P.W. 2 has given evidence that on the day of the incident, at 8 p.m., electricity went off, and after some time, she heard shouting of the appellant. She has deposed that appellant was extinguishing fire when she went to his house. This evidence of Anita could have corroborated the substantive evidence of dying declaration. The appellant admittedly sustained 10% burn injuries in the same incident and he was also admitted in the hospital alongwith Rekha on that day.
21] Though Anita P.W.2 has tried to say that she learnt about ::: Downloaded on - 09/06/2013 18:43:59 ::: 18 cria217-00.odt the ill treatment from Rekha 15-20 days prior to the date of incident of fire also and she learnt that the accused wanted the amount for purchasing a plot, in view of the reasons already given, and as no such evidence is given by relatives, the evidence on the disclosure cannot be used. The near relatives of Rekha have not given the reason for which the appellant was making demand of money.
22] The evidence of the two neighbours of appellant and the evidence of the two relatives of the deceased of parents side is not consistent with each other on many points. It is already observed that there is no convincing evidence given by prosecution in respect of the incident if any had happened during last 2½ months of the cohabitation. In such a case, it is necessary for prosecution to prove that there was harassment and there was demand of money to make out the offence punishable u/s 498-A of I.P.C. and such evidence needs to be of convincing nature. The appellant was gainfully employed with Government Medical College and Hospital at the relevant time.
There is no convincing evidence on record to show that appellant ::: Downloaded on - 09/06/2013 18:43:59 ::: 19 cria217-00.odt was in need of money for any reason at any time. So, the case that appellant was always demanding Rs.50,000/- is not at all convincing.
23] For the appellant, following 6 cases were cited. [1] State of West Bengal V/s Vindu Lachmandas Sakhrani @ Deru reported in 1994-AIR (SC)-0-772; [2] Bala Seetharamaiah V/s Perike S. Rao and Ors AIR 2004 SC 2172; [3] Subran @ Subramanjan V/s State of Kerala 1993-UJ-1-478; [4] Dwarka Prasad V/s State of Uttar Pradesh 1993 SCR[2] 70; [5] Mohan Rai bharath Rai V/s State of Bihar 1968 Cr.L.J. 0-1479 and [6] Lakshmi Singh and Ors V/s State of Bihar AIR 1976 S.C. 2263. Argument was advanced that when other accused are acquitted and all of them were charged and tried by using Section 34 of I.P.C., the appellant could not have been convicted as the other accused are acquitted. This proposition is not all acceptable in the case like present one. It is settled position of law that when Section 34 of I.P.C. is used and the allegations are made for offence punishable u/s 498-A of I.P.C., even if some accused are acquitted, on the basis of the evidence available, the ::: Downloaded on - 09/06/2013 18:43:59 ::: 20 cria217-00.odt others can be convicted. Only one accused also can be convicted, if the evidence is found sufficient as against him. The facts of most of the cases were altogether different and they are of no use to the appellant in this case.
24] In view of the facts of the case, this Court holds that the benefit of doubt needs to be given to the appellant in respect of evidence given on the point of cruelty also. So, the following order :
25] Appeal is allowed.
26] The judgment and order in Sessions Case No.18 of 1999, which was pending in the Court of Additional Sessions Judge, Dhule by which the appellant is convicted and sentenced for an offence punishable under Section 498-A of I.P.C., is hereby set aside. The appellant is acquitted of the offence punishable under Section 498-A of I.P.C.
27] Bail bonds of the appellant stands cancelled.::: Downloaded on - 09/06/2013 18:43:59 :::
21 cria217-00.odt 28] The fine amount, if any, is to be returned to the appellant.
[T.V.NALAWADE,J.] umg/cria217-00 ::: Downloaded on - 09/06/2013 18:43:59 :::