BENCH AT AURANGABAD v. Hanuman

Judgment

1. By the present appeal, the State has questioned the legality and correctness of the judgement and order, dated 25th April, 2001, passed (2) criapl338-2001 by learned IIIrd Additional Sessions Judge, Aurangabad in Sessions Case No. 262 of 1999, acquitting the respondents of the offence punishable under section 498-A, 306 read with section 34 of the I.P. Code.

2. Such of the facts as are necessary for the just decision of this appeal can be summarized as follows :

3. On 13th February, 1999, Murlidhar Bapurao Bahule, PSI attached to the City Police Station, Aurangabad, received M.L.C. No. 1257 from Ghati hospital intimating therein that one lady by name Bharti Hanumant Khare, a resident of Opposite Samrat Hotel, Chelipura was admitted in the Civil Hospital as she had sustained burn injuries. The C.M.O. on duty also intimated vide the same M.L.C. that said

Bharti had ablaze herself with fire on account of suspicion by her husband, mother-in-law and brother- in-law about her chastity. She was admitted in ward No. 23 and was under medical treatment. On receipt of this information - M.L.C. (Exh-10), immediately, (3) criapl338-2001 he addressed a letter of request to the Special Executive Magistrate to record the dying declaration of said Bharti who had sustained the burn injuries. He then rushed to the Ghati hospital where he recorded statement of victim Bharti (Exh-12). On the basis of said statement of Bharti, he registered an offence at CR No. 32/1999 against the respondents for an offence punishable under section 498-A and 504 read with section 34 of the I.P. Code. The investigation of the said crime was taken over by him and during the investigation, he visited the place of scene of offence where he drew spot panchanama (Exh-13). Thereafter he recorded the statements of Santosh, Katharbai, parents of Bharti. From the place of scene of offence, he attached certain articles, namely, burnt pieces of clothes and plastic can, which were forwarded to the Chemical Analyzer, alongwith a forwarding letter. On the same day, the respondents came to be arrested. On 14th February, 1999, around 06.00 hours, said Bharti succumbed to the burn injuries sustained by her. Thereafter, an offence punishable under section 306 of the I.P. Code is added to the CR. During the further investigation, (4) criapl338-2001 he drew Inquest Panchanama (Exh-14) on the dead body and the dead-body was referred for post-mortem. The post-mortem on the dead-body was conducted in the Ghati hospital and report of post-mortem (Exh-24) was prepared wherein the probable cause of death of Bharti was shown as `shock due to burn injuries'. In due course, the Chemical Analyzer's report (Exh-17) was received, indicating that the plastic can seized from the place of scene of offence contained the residues of kerosene. The residues of kerosene were noticed/found on the burn pieces of clothes seized from the spot. On completion of investigation, he filed chargesheet against the respondents before the learned Judicial Magistrate (First Class), Aurangabad.

4. It appears that on committal of trial, charge was framed against the respondents for an offence punishable under section 498-A and 306 read with section 34 of the I.P. Code. During the trial, prosecution has examined in all three witnesses to substantiate the charge levelled against the respondents, including Murlidhar Bapurao Bahule as (5) criapl338-2001 PW1, who had recorded the statement of the deceased (Exh-12), which was treated as FIR and on the basis of which the offence came to be registered in City Police Station against the respondents. He is also the Investigating Officer in this case. One Santosh Pralhad Tak, a neighbour near whose house the deceased and the respondents were residing in Chelipura area, was examined as PW2, who had immediately visited to the spot after the deceased had sustained burn injuries and by pouring the water on her person, he had extinguished the fire caught to deceased Bharti. One Shashikant Narayan Bomble, who recorded the dying declaration of victim Bharti (Exh-20) in the evening of 13th February, 1999, was examined as prosecution witness No. 3. The defence of the respondents was of total denial. According to them, Bharti was not knowing any other language than Telgu language and hence, the statements/dying declarations recorded in Marathi language are not the dying declarations of Bharti. It appears that though the learned trial court has accepted recording of dying declaration of Bharti, he discarded those dying declarations as those are not sufficient to prove the (6) criapl338-2001 guilt of the respondents for the alleged offences and was pleased to acquit the respondents of the offence punishable under section 498-A and section 306 read with section 34 of the I.P. Code, which judgement and order is impugned in this appeal.

5. During the course of submissions across the bar, I have heard learned A.P.P. Mr. N.R. Shaikh, appearing for the State/appellant, followed by submissions of learned counsel Mr. M.A. Tandale, appearing for the respondents. I also perused the judgement impugned.

6. Learned A.P.P. would urge across the bar that considering the evidence of PW1 Murlidhar and PW3 Shashikant, no suggestion was given to them during their cross-examination about the mental fitness of deceased Bharti while her statement/dying declaration was being recorded. He would further urge that the dying declaration recorded by PW1 Murlidhar at Exhibit-12, which was treated as the FIR and the dying declaration recorded by PW3 Shashikant at Exhibit-20, both were recorded on 13th February, (7) criapl338-2001 1999 and the contents therein are consistent with each other. He would urge, by drawing the attention of the court towards the contents of dying declaration (Exh-12) and dying declaration (Exh-20) that the declarent of the dying declaration has categorically stated in her dying declaration recorded at Exh-12, so also in the dying declaration at Exh-20 that her husband (respondent No.1), her mother-in-law (respondent No.2) and her brother-in- law (respondent No.3) suspected her chastity. Since about two months of the incident, she was being harassed continuously and constantly on this count by the respondents. They were teasing her that they are suspecting about her chastity and she may go to the house of her parents and may dye there. As she was fed-up with this continuous taunting by the respondents, she was compelled to end her life by committing suicide. The learned trial court though has accepted that these are the dying declarations of deceased Bharti, but still, the learned trial court has discarded to accept those dying declarations to base the conviction of the respondents on the basis of these dying declarations on the ground that the (8) criapl338-2001 contents of the dying declarations will not amount to instigation or abetment to commit the suicide. Learned A.P.P. would urge that in the impugned judgement the learned trial court has observed that because of non-examination of the Medical Officer, who had examined deceased Bharti before her statement was recorded by PW1 at EXh-12 and the statement recorded by PW3 at Exh-20, suffers from medical corroboration about the physical fitness of Bharti and her state of mental fitness. He would further urge that so far as the element of instigation or abetment is concerned, it needs to be gathered from the utterance of the word. He would urge that the utterance of the word at the hands of the respondents are constant in the dying declaration (Exh-12) and dying declaration (Exh-20), wherein Bharti has stated that for last two months, she was being continuously and constantly tortured by the respondents on the ground that they were suspecting her chastity and they used to utter the words `go to the house of her parents and may dye there', which amounts to cruelty within the meaning of section 498-A of the I.P. Code, so also amounts to instigation to do or to commit an (9) criapl338-2001 act, in this case a suicide, which constitutes an offence punishable under section 306 of the I.P. Code. he would urge that the learned trial court has incorrectly discarded these utterances of deceased Bharti in her dying declarations and acquitted the respondents. In the circumstances, learned A.P.P. would urge that this judgement of the learned trial court requires to be interfered by this court in its appellate jurisdiction.

7. Per contra, learned counsel Mr. Tandale, appearing for the respondents, supports the impugned judgement. He would urge that apart from the fact that the Medical Officer, who had examined the victim before her statement at Exh-12 and statement at Exh-20 were recorded, was not examined. The evidence of PW1 Murlidhar and PW3 Shashikant is silent on the point that before recording these statements (Exh-12) and (Exh-20), they had put certain questions to the victim to ascertain the mental condition of the victim as the victim had sustained severe burn injuries which were measured as 70% in the M.L.C., but this percentage of burns was required to be (10) criapl338-2001 considered as she had expired at 6.00 hours of the falling day. He would further urge, by drawing the attention of this court to the answers to question Nos. 15 and 18 in the examination of the respondents under section 313 of the Code of Criminal Procedure, where the defence is very specific that the deceased did not know any other language than Telgu language. He would urge that unless it is brought to the notice of this court that the deceased was capable to understand Marathi language in which her statements were recorded by PW1 Murlidhar and PW3 Shashikant, even though the recording of the statements is accepted by the court, but the authenticity and genuineness of these two dying declarations is under the cloud of suspicion. On this count alone, the evidence in the form of dying declaration of the victim is required to be considered. He would urge that if this piece of evidence is excluded from the evidence led by the prosecution before the court below, then there is absolutely no evidence against the respondents to convict them for any offence. Lastly, he would urge that this is an appeal against acquittal and not an (11) criapl338-2001 appeal against the conviction. In an appeal against acquittal, unless it is brought to the notice of the court that the findings recorded by the court below are perverse, there shall not be any interference in the judgement of acquittal recorded and rendered by the trial court. He would urge that though two views are possible, the view taken by the learned trial court is probable one while acquitting the accused/ respondents. Merely because another view is possible, that must not be a ground to reverse the judgement of acquittal into a judgement of conviction.

8. Considering the evidence of the witnesses, adduced before the court below in the light of above submissions across the bar, one fact is clear from the evidence of PW2 Santosh Pralhad Tak that though he deposed about the incident occurred in the afternoon of 13th February, 1999, his evidence is silent on the point that there was any quarrel between victim Bharti and the respondents on any count. His evidence is also silent on the point that whether victim Bharti knew Marathi language or she knew only Telgu language. On facts, his evidence is (12) criapl338-2001 relevant to the extent that in the afternoon of 13th February, 1999, he saw that victim Bharti had sustained burn injuries in her house. On hearing her shouts, he rushed at the spot, poured water on her person and extinguished the fire. In the meantime, the respondents came there who shifted victim to the hospital for medical treatment. It is not in dispute that Bharti sustained burn injuries and she succumbed to the burn injuries. Thus, it is established that the death of Bharti is an un-natural death, whether suicidal or accidental, but at the time of incident, the respondents were not present in the house.

9. The only question which requires consideration in this appeal is whether, at the time of recording dying declaration (Exh-12) by PW1, victim Bharti was mentally fit to give her statement, so also when her statement (Exh-20) was recorded by PW3, whether she was mentally fit to give her dying declaration, as admittedly, the Medical Officer, who had examined Bharti, was not examined before the court below. In view of the observations of the Supreme Court in the matter of "Laxman vs. State of (13) criapl338-2001 Maharashtra, reported in 2002 CRI.L.J. 4095", it is not a mandate that non-examination of the Medical Officers who have examined to the victim at the time of recording dying declaration is not fatal to case of prosecution, if the recording officer is satisfied about the mental condition of the victim. In the light of these observations, as pointed out by learned A.P.P., the facts differ from case to case in criminal trials and the evidence of each trial depends on its own facts. On perusal of the evidence of PW1 Murlidhar as well as PW3 Shashikant, it is clear that they have no-where specifically stated that before dying declaration (Exh-12) was recorded by PW1 or dying declaration (Exh-20) recorded by PW3 Shashikant, they had put certain questions to the victim and satisfied themselves that the victim was in a position to give her dying declaration and thereafter, her statements/ dying declarations were recorded. In absence of any medical evidence about the mental fitness of the victim, when her statement is recorded during investigation, it is expected from the officer or person who is recording the statement of the victim, who is not available for cross- (14) criapl338-2001 examination, to get himself satisfied about the mental condition of the victim and then records the statement of the victim. On re-appreciation of evidence of PW1 Murlidhar and PW3 Shashikant, this fact is found missing.

10. Another aspect which requires consideration is whether the victim was acquainted with the language in which her statement was recorded by PW1 Murlidhar and PW3 Shashikant. During the course of submissions across the bar, attention of the court is brought to the answers given to question No. 15 and question No. 8 by the first respondent wherein he has answered that the victim was acquainted only with Telgu language and not acquainted with Marathi language. Suggestions were given to PW3 Shashikant as to whether he had ascertained that the victim was acquainted with Marathi language before he recorded her statement. No doubt, he has answered in negative to these suggestions, but doubt is created about availability of the acquaintance of the language with the victim in which her statement was recorded. (15) criapl338-2001

11. Learned trial court though concluded that the dying declaration of the victim was recorded by PW1 Murlidhar and PW3 Shashikant, but at the same time, it concluded that the contents of dying declarations are not satisfactory to convict the respondents for an offence punishable under section 498A and section 306 read with section 34 of the I.P. Code. Perusal of the evidence which is discussed by the court below is the incriminating evidence of the dying declarations, which is discarded by the court below. On re-appreciation of the evidence, in respect of the dying declarations, two facts are clear that there is no subjective satisfaction of PW1 Murlidhar and PW3 Shashikant before they recorded the dying declarations of the victim (Exh-12 and Exh-20), wherein there is allegation against the respondents about continuous and constant ill-treatment to victim Bharti on account of her chastity and utterances, which forced her to commit the suicide. In absence of proof of any mental fitness as there is no subjective satisfaction of PW1 Murlidhar and PW3 Shashikant, it cannot be inferred that the learned trial court had committed any error in concluding (16) criapl338-2001 that without ascertaining the mental fitness of the victim, her dying declaration was recorded which is not sufficient to hold the respondents guilty.

12. Secondly, a doubt was created about the acquaintance of the language by the victim in which her statement was recorded. Considering the fact that the respondents and victim were from Telgu speaking community and her statement was recorded in Marathi language, in absence of any proof being brought on record that the victim was acquainted with Marathi language, in which her statement was recorded, is doubtful. In the light of this, the finding recorded by the learned trial court that authenticity or the genuineness of the dying declaration is not sufficient to hold the respondents guilty for the offence punishable under section 498A and section 306 read with section 34 of the I.P. Code and the view taken by the learned court below appears to be a probable view. I do not find any perversity in the findings recorded by the court below, which requires interference at the hands of this court in its appellate jurisdiction. In substance, the appeal (17) criapl338-2001 is devoid of any merit and is liable to be dismissed.

13. In the result, the appeal is dismissed and stands disposed of accordingly. The bail bonds of the respondents stand cancelled. npj/criapl338-2001 [A.V. POTDAR, J.]