Criminal Appeal No. 289 of 2002 · Bombaybench High Court
Case Details
2024:BHC-AUG:21275 CriAppeal-289-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 289 OF 2002Mohammad Ejaz s/o Mohammad Osman,Age : 29 Years, Occ. : Service,R/o Kiradpura, Aurangabad.(At present in Central Prison,Harsool, Aurangabad.)… Appellant [Orig. Accused No.1]VersusThe State of Maharashtra… Respondent…..Mr. Niraj Pradeep Chudiwal, Advocate for the Appellant (appointed)Mrs. Chaitali Choudhari Kutti, APP for Respondent-State...… CORAM :ABHAY S. WAGHWASE, J.Reserved on: 02.09.2024Pronounced on: 10.09.2024JUDGMENT : 1.The correctness of the judgment and order of conviction dated16.05.2002 rendered by learned Additional Sessions Judge,Aurangabad in Sessions Case No. 253 of 2000, convicting presentappellant for offence punishable under Sections 498-A and 306 of theIndian Penal Code [IPC] is under challenge. CriAppeal-289-2002-2- FACTUAL MATRIXProsecution version :2.Deceased Shahana Begum was married to present appellantand after marriage, she came to reside with her husband and in-laws.Initially everything was smooth, but subsequently there was ill-treatment at the hands of accused persons. They suspected her fidelityand beat her. Two years after marriage, because of said ill-treatment,she had consumed phenyl and therefore, was brought back by herfather PW5. After compromise, she came back to reside with husbandand in-laws, but again ill-treatment began. According to prosecution,on 29.05.2000, husband beat her by suspecting her character. Finally,getting fed up of the same, she immolated herself and suffered 92%burns. PW3 Special Executive Magistrate recorded her dyingdeclaration on the strength of which, crime was registered.3.Shahana Begum succumbed to the burns and therefore,investigation was carried out by PW9, who, after gathering sufficientevidence, chargesheeted accused persons for commission of offencepunishable under Sections 498-A and 306 of IPC.
Facts
CriAppeal-289-2002-3- 4.Case being exclusively triable to the court of sessions, was onthe file of Additional Sessions Judge, Aurangabad, who commencedtrial vide Sessions Case No. 253 of 2000 on the charge of commissionof offences punishable under Sections 498-A and 306 of IPC. Afterappreciating the oral and documentary evidence adduced byprosecution, learned trial Judge, by judgment dated 16.05.2002,acquitted accused nos. 2 and 3 from all charges, but convictedhusband i.e. present appellant for commission of offence punishableunder Sections 498-A and 306 of IPC, giving rise to the presentappeal.SUBMISSIONSOn behalf of the appellant :5.Criticizing the judgment of conviction, learned counsel for theappellant pointed out that prosecution had miserably failed to bringhome the charges. According to him, neither ingredients forcommission of offence under Section 498-A, nor 306 of IPC, ascontemplated by law, are available in the prosecution evidence. Hepointed out that on the same set of evidence, accused nos. 2 and 3 arealready acquitted by learned trial court, but accused no.1 husbandalone is held guilty. He pointed out that apparently, deceased had
Legal Reasoning
CriAppeal-289-2002-13- Mundhe and PW9 PSI Dabhade, respectively. Before appreciating thecredibility and veracity of dying declarations, it would be fruitful togive brief account of settled position on the point of manner ofappreciation of dying declaration, more particularly, when they areplural in number.16.Here, there are three dying declarations. Therefore, it can besaid that there are multiple dying declarations. In such contingency,some judicial precedents need to be dealt and discussed here. Very recently, the Hon’ble Apex Court in the case of AbhishekSharma v. State (Govt. of NCT of Delhi) reported in 2023 INSC 924,while deciding Criminal Appeal No. 1473 of 2011, in para 8 discussedits own previous rulings and observations therein which are borrowedand reproduced as under :“8.1 This Court in Kamla v. State of Punjab [ (1993) 1 SCC 1,AIR 1993 SC 374] has held:“5. It is well settled that dying declaration can form the solebasis of conviction provided that it is free from infirmitiesand satisfies various tests (vide Khushal Rao v. State ofBombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958 Cri LJ106] ). The ratio laid down in this case has been referred to CriAppeal-289-2002-14- in a number of subsequent cases with approval. It is alsosettled in all those cases that the statement should beconsistent throughout if the deceased had severalopportunities of making such dying declarations, that is tosay, if there are more than one dying declaration, theyshould be consistent. If a dying declaration is found to bevoluntary, reliable and made in fit mental condition, it canbe relied upon without even any corroboration. In a casewhere there are more than one dying declaration if someinconsistencies are noticed between one and the other, thecourt has to examine the nature of the inconsistenciesnamely whether they are material or not. In scrutinising thecontents of various dying declarations, in such a situation,the court has to examine the same in the light of thevarious surrounding facts and circumstances.” 8.2. In State of Punjab v. Parveen Kumar [AIR 2005 SC 1277,2005 (9) SCC 769], this court further observed:“10. …. The court must be satisfied that the dyingdeclaration is truthful. If there are two dying declarationsgiving two different versions, a serious doubt is createdabout the truthfulness of the dying declarations. It may bethat if there was any other reliable evidence on record, thiscourt could have considered such corroborative evidence totest the truthfulness of the dying declarations...” 8.3. In Amol Singh v. State of M.P. [AIR OnLine 2008 SC 62,2008 (5) SCC 468], CriAppeal-289-2002-15- “13. … However, if some inconsistencies are noticedbetween one dying declaration and the other, the court hasto examine the nature of the inconsistencies, namely,whether they are material or not. While scrutinising thecontents of various dying declarations, in such a situation,the court has to examine the same in the light of thevarious surrounding facts and circumstances.” 8.4. Faced with multiple dying declarations, this Court inLakhan v. State of M.P [2010 (8) SCC 514] observed-“21. … In case there are multiple dying declarations andthere are inconsistencies between them, generally, thedying declaration recorded by the higher officer like aMagistrate can be relied upon, provided that there is nocircumstance giving rise to any suspicion about itstruthfulness. In case there are circumstances wherein thedeclaration had been made, not voluntarily and evenotherwise, it is not supported by the other evidence, thecourt has to scrutinise the facts of an individual case verycarefully and take a decision as to which of the declarationsis worth reliance.” This judgment was also referred to by this court recently inMakhan Singh v. State of Haryana (2022) SCC OnLine SC1019 (2-Judge Bench). CriAppeal-289-2002-16- 8.5. In Ashabai v. State of Maharashtra [(2013) 2 SCC 224 (2-Judge Bench)] the court observed:-“15. When there are multiple dying declarations, eachdying declaration has to be separately assessed andevaluated and assessed independently on its own merit asto its evidentiary value and one cannot be rejected becauseof certain variations in the other.” 8.6. In Jagbir Singh v. State (NCT of Delhi), [2019 (8) SCC 779,AIR 2019 SC 4321] the following principles were observed:31. A survey of the decisions would show that the principlesof declarations can be culled out as follows: ….31.6. However, there may be cases where there are morethan one dying declaration. If there are more than onedying declaration, the dying declarations may entirely agreewith one another. There may be dying declarations whereinconsistencies between the declarations emerge. Theextent of the inconsistencies would then have to beconsidered by the court. The inconsistencies may turn outto be reconcilable.31.7. In such cases, where the inconsistencies go to somematter of detail or description but is incriminatory in natureas far as the Accused is concerned, the court would look tothe material on record to conclude as to which dying CriAppeal-289-2002-17- declaration is to be relied on unless it be shown that theyare unreliable;31.8. The third category of cases is that where there aremore than one dying declaration and inconsistenciesbetween the declarations are absolute and the dyingdeclarations are irreconcilable being repugnant to oneanother. In a dying declaration, the Accused may not beblamed at all and the cause of death may be placed at thedoorstep of an unfortunate accident. This may be followedup by another dying declaration which is diametricallyopposed to the first dying declaration. In fact, in thatscenario, it may not be a question of an inconsistent dyingdeclaration but a dying declaration which is completelyopposed to the dying declaration which is given earlier.There may be more than two.” 8.7. In Uttam v. State of Maharashtra, [(2022) 8 SCC 576 (2-Judge Bench)] this court observed:“15. In cases involving multiple dying declarations made bythe deceased, the question that arises for consideration is asto which of the said dying declarations ought to be believedby the court and what would be the guiding factors forarriving at a just and lawful conclusion. The problembecomes all the more knotty when the dying declarationsmade by the deceased are found to be contradictory. Facedwith such a situation, the court would be expected tocarefully scrutinise the evidence to find out as to which of CriAppeal-289-2002-18- the dying declarations can be corroborated by othermaterial evidence produced by the prosecution. Of equalsignificance is the condition of the deceased at the relevantpoint in time, the medical evidence brought on record thatwould indicate the physical and mental fitness of thedeceased, the scope of the close relatives/family membershaving influenced/tutored the deceased and all the otherattendant circumstances that would help the court inexercise of its discretion.” In para 9, the principles that emerged on consideration ofabove rulings, which is observed, is reproduced as under : “9.1The primary requirement for all dying declarations is thatthey should be voluntary and reliable and that suchstatements should be in a fit state of mind;9.2All dying declarations should be consistent. In otherwords, inconsistencies between such statements shouldbe 'material' for its credibility to be shaken;9.3When inconsistencies are found between various dyingdeclarations, other evidence available on record may beconsidered for the purposes of corroboration of thecontents of dying declarations. CriAppeal-289-2002-19- 9.4The statement treated as a dying declaration must beinterpreted in light of surrounding facts andcircumstances.9.5Each declaration must be scrutinized on its own merits.The court has to examine upon which of the statementsreliance can be placed in order for the case to proceedfurther.9.6When there are inconsistencies, the statement that hasbeen recorded by a Magistrate or like higher officer canbe relied on, subject to the indispensable qualities oftruthfulness and being free of suspicion.9.7In the presence of inconsistencies, the medical fitness ofthe person making such declaration, at the relevant time,assumes importance along with other factors such as thepossibility of tutoring by relatives, etc.”17.Having discussed above settled legal position, it would befurther desirable to even reproduce the translated version of dyingdeclarations at Exhibits 26, 35 and 39 in chronology. On carefulscrutiny, it is emerging that deceased Shahanabegum suffered burnson the afternoon of 29.05.2000, but Exhibits 26 and 35 are shown tobe recorded on 30.05.2000. Admittedly, time of recording both is not CriAppeal-289-2002-20- reflected on either of dying declarations. Whereas, third dyingdeclaration Exhibit 39 is recorded on 31.05.2000. Dying Declaration Exh. 26Date: 30/5/2000Statement I, Shahanabegum W/o Mohmed Ezaz, age- 22 yrs.,occupation-household, R/o Kiradpura, in front of Barkatgrocery shop, Aurangabad.Upon asking I do hereby state that, I got married fiveyears ago with Mohmed Ejaz s/o Osman, R/o Kiradpura asper Muslim customs. I have two sons.How the incident took place: - Yesterday on29/05/2000 in the afternoon my husband quarreled withmy by doubting my character. He abused me and beat mewith slaps and fist blows. So, I went to the house of mysister-in-law Saliha and stayed in her house. Later, around3 p.m., my husband brought me to our house and then hewent out to the shop. My husband Mohmed Ejaz and myfather-in-law Mohmed Osman used to harass me by raisingdoubts on my character. As I could not bear theharassment, so in the fit of the anger I poured kerosene onmy person from the plastic canister and set myself ablazeat around quarter past three to half past three. At that timemy mother-in-law Khalidabi and my sister-in-law Munnibiwere present at home and my husband, father-in-law and CriAppeal-289-2002-21- brother-in-law had went out. While I was burning, mymother-in-law and sister-in-law did not extinguish the fire.As the burns were causing more pain, I poured water onmy person and extinguished the fire. After some time, myhusband Md. Ejaz came home, and he took me to theM.G.M hospital for the initial treatment and thereafter headmitted me in Sushrut Hospital. At present I amundergoing treatment at Sushrut Hospital.Therefore, yesterday as I had quarreled with myhusband, namely Mohmed Ejaz and he used to harass meby raising doubts on my character and beat me up.Therefore, I got angry and poured kerosene on my personand set myself ablaze. My husband and father-in-law usedto harass me by raising doubts on my character.Hence this statement. [ Left toe impression]sd/-30.05.2000Sanjay Kashinathrao Jaibahar[Special Executive Magistrate]Dying Declaration Exhibit 35 Dt. 30.05.2000StatementMyself Shahana Begum w/o Mohmed Ejaz, r/atKiradpura, Near Barkat Grocery Shop,Aurangabad. I do hereby state in person that, I am residing at the CriAppeal-289-2002-22- above-mentioned place, my parents are residing at RoshanGate. I am married 5 years ago to Mohmed Ejaz s/oMohmed Osman from Kiradpura according to Muslimcustoms and have two children.Yesterday on 29.05.2000 while at home in theafternoon, I had a quarrel with my husband. So, he abused,slapped and beat me with fist blow. So, I went and sat atthe home of my sister in-law, namely Saliha. At around3.00 O’clock my husband brought me to our house frommy sister-in-law’s house and he went outside to the shop.As my husband and father-in-law, Mohmed Osman used toharass me by raising doubts on my character and yesterdaythey quarreled with me and beat me up, so in the fit of theanger I poured kerosene on my person from the canisterand set myself ablaze at around quarter past three to halfpast three. At that time my mother-in-law Khaledabi andmy sister-in-law, Munnibi were present at home. They didnot extinguish the fire. As the burns were causing morepain, I poured water on my person and extinguished thefire. After some time, my husband Mohmed Ejaz camehome and at first, he took me to the M.G.M hospital for theinitial treatment and thereafter he admitted me in SushrutHospital. Therefore, yesterday I had quarreled with myhusband namely Mohmed Ejaz s/o Mohmed Osman and hebeat me up; similarly, as my husband Mohmed Ejaz andmy father-in-law Mohmed Osman used to harass me by CriAppeal-289-2002-23- raising doubts on my character. Therefore, as I could notbear the harassment, I got angry and poured kerosene fromthe canister on my person and set myself ablaze. At presentI am undergoing treatment at Sushrut Hospital,Aurangabad. Hence, you are requested to take actionagainst my husband and father-in-law.The above statement of mine is written as per my sayand it is correct and true. Before me Statement by Sd/- Sd/-ASI Left Toe Impression. Jinsi, Police Station,AurangabadDying Declaration Exhibit 39 31/5/2000 Sushrut Hospital A’bad.Statement I, Shahana Begum w/o Mohmed Ejaz, Age -22 years,Occupation- Household, R/o. Kiradpura, Near BarkatGrocery Shop, Aurangabad.I do hereby state in person that, I am residing at theabove-mentioned place. My parents reside at Roshan Gate.I got married before 5 years ago with Md. Ejaz s/o. Osmanfrom Kiradpura as per Muslim customs. I have twochildren; one is 4 years old and the other is 2 1/2 years old. CriAppeal-289-2002-24- The day before yesterday i.e. on 29/5/2020 in theafternoon while I was at home my quarrel took place withmy husband namely Md. Ejaz. He abused me and beat mewith slaps and fist blows. So, I went to the house of mysister-in-law Saliha, who lives next door, and stayed in herhouse. Around 3 p.m., my husband brought me from thehouse of my sister-in-law Saliha to our house and then hewent to the shop. My husband, father-in-law, and eldersister-in-law Munnibi used to harass me by raising doubtson my character and abuse me in filthy language. As daybefore yesterday my husband quarreled with me and beatme up, I got angry and around three or quarter past threeo'clock in the afternoon I poured kerosene from thecanister on my person and set myself ablaze. At that timemy mother-in-law Khalidabi and my elder sister-in-lawMunnibi were present at home, and they did not extinguishthe fire. As the burns were causing more pain, I pouredwater on my person and extinguished the fire. After sometime, my husband Md. Ejaz came home, and he took me tothe M.G.M hospital for the initial treatment and thereafterhe admitted me in Sushrut Hospital. Therefore, the day before yesterday as I hadquarreled with my husband namely Mohmed Ejaz s/oMohmed Osman and he beat me up; similarly, as myhusband Mohmed Ejaz and my father-in-law MohmedOsman, my elder sister-in-law Munnibi alias Surraya usedto harass me by raising doubts on my character, beat meand abuse me. Therefore, I got angry and poured kerosene CriAppeal-289-2002-25- from the canister on my person and set myself ablaze. Atpresent I am undergoing treatment at Sushrut Hospital,Aurangabad. Hence, you are requested to take actionagainst my husband, father-in-law and elder sister-in-law.My above statement is read over to me, and it is trueand correct as per my narration.Before.Sd/PSI, Dabhade, P.S. Jinsi31.05.2000[Translated by Senior Translator of this Establishment] 18.What is noticed from above dying declarations is that, firstly,there is no prompt recording of dying declarations since afternoon of29.05.2000 till noon time of 30.05.2000. As pointed out by learnedcounsel for the appellant, on none of the three dying declarationsExhibits 26, 35 and 39, time of its recording is reflected, andsurprisingly, on none of them there is certification of fitness ofShahanabebum to give dying declaration. In the considered opinion ofthis Court, it was crucial for the simple reason that she had sufferedover 92% burns and there was already delay in recording promptdeclaration. It is further surprising to note that PW3, who was at thatpoint of time, Special Executive Magistrate, was a tailor byoccupation. He claims that he received intimation from police at 4.00to 4.30 p.m. on 29.05.2000 itself, but Exhibit 26 is recorded by him CriAppeal-289-2002-26- on next day and not on same day. In cross he has answered that whenhe visited hospital, he learnt from police that patient was not in fitcondition to give statement and therefore he returned back. Policewere not at all competent to inform him regarding fitness of the ladyto give dying declaration. But it seems that believing police, he didnot record statement on 29.05.2000 itself. As pointed out, the ladygave dying declaration in Urdu but this witness claims to havetranslated it in Marathi. There is nothing to show that he wasconversant in Urdu so as to enable him to translate it in Marathi. Asstated above, he has admitted that he did not note the timing andeven did not take certification of doctor. Doctor PW7 has not statedabout visit of PW3 for recording any dying declaration as said doctoronly speaks about police approaching him. Such circumstancescompel this court to doubt the veracity of dying declaration. 19.As regards second dying declaration Exhibit 35 is concerned, itis recorded by PW8 ASI Mundhe, who, in his evidence at Exhibit 33,claims that after giving communication to Special ExecutiveMagistrate on 29.05.2000, he approached Sushrut Hospital. He claimsthat the doctor on duty certified Shahanabegum to be fit to givestatement. Such certification is obtained on the carbon copy ofcommunication at Exhibit 34, but it carries date as 29.05.2000, CriAppeal-289-2002-27- however, dying declaration Exhibit 35 is surprisingly carrying date as30.05.2000. Such material clearly suggest that documents areprepared later on. Had PW8 issued letter to PW7 on 29.05.2000which carries certification of doctor of same day, then, why dyingdeclaration was not recorded at that very time, is not explained byprosecution or even this witness. Rather, he has identified statementof deceased at Exhibit 35 which is apparently of 30.05.2000. 20.PW9 also has recorded 3rd dying declaration on 31.05.2000 andthe same is at Exhibit 39. PW9, in his evidence at Exhibit 37, deposedabout receiving case papers on 30.05.2000 but he appears to havevisited Sushrut Hospital, not on same day, rather on next day i.e. on31.05.2000 and then recorded statement Exhibit 39. It is alsopertinent to note that certification is not on statement, rather on acommunication Exhibit 38 which is also a carbon copy ofcommunication to hospital authorities. Even time of recording dyingdeclaration Exhibit 39 is not reflected nor there is thumb impressionof deceased lady over it. Above are the stark features emanating on meticulousexamination of Exhibits 26, 35 and 39. There is perfunctory or casual CriAppeal-289-2002-28- approach by investigating authorities in not recording dyingdeclaration promptly or with due care and caution. 21.On careful scrutiny of Exhibit 26, it is noticed that deceasednamed husband alone for suspecting character and picking up quarreland beating her. In Exhibits 35 and 36, she merely informed thatthere was quarrel between husband and wife, as such, reason statedin Exhibit 26 about suspicion of character is not finding place inExhibits 35 and 39. It is also emerging from Exhibits 26, 35 and 39that, after she was brought home back from his sister’ place byhusband accused, he had left the house, as according to deceased, hewent to shop. Her such statement shows that husband was notpresent around at the time of immolation. She categorically statedthat in rage of anger, she poured kerosene and incinerated herself. 22.Resultantly, on carefully analyzing and re-appreciating threedying declarations, the distinct features which are emerging could besummarized as, firstly, there is delay in recording dying declarations,secondly, time of recording dying declaration is not appearing on anyof the dying declarations. Thirdly, none of the dying declarationscarry certification of doctor regarding fitness to give statement.Exhibit 39 recorded by Investigating officer on 31.05.2000 also does CriAppeal-289-2002-29- not carry thumb impression. For such reasons, there is considerabledoubt about veracity and credibility of multiple dying declarations. Inview of deceased having suffered 92% burns, it is also doubtfulwhether she was in capacity to give multiple dying declarations. Onthis count, support can be taken of the judgment of Hon’ble ApexCourt in the case of Surinder Kumar v. State of Haryana (2011) 10SCC 173. 23.There is conviction for offence under Section 306 of IPC. Beforeattracting and applying said charge, it is bounden and statutory dutyof prosecution to establish that there was abetment, inducement,instigation to commit suicide. Coupled with mens rea, positive rolemust be shown to have been played by accused. Law to the above extent is time and again dealt and discussedin numerous judgments, including recent judgment of Kumar @ ShivaKumar v. State of Karnataka 2024 SCC OnLine SC 216, wherein, frompara 60 onwards, the Hon’ble Apex Court has discussed the legalaspect of abetment to suicide, as to what amounts to abetment asdealt under Section 107 of IPC and also, after discussing previouslegal pronouncements in M. Mohan v. State (2011) 3 SCC 626;Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, Chitresh CriAppeal-289-2002-30- Kumar Chopra v. State (2009) 16 SCC 605; Amalendu Pal aliasJhantu v. State of West Bengal (2010) 1 SCC 707; Rajesh v. State ofHaryana (2020)15 SCC 359 and State of West Bengal v. OrilalJaiswal (1994) 1 SCC 73, culled out a principle that in order to proveguilt of accused for abetment to commit suicide, prosecution has toprove :(i) the accused kept on irritating or annoying the deceasedby words, deeds or wilful omission or conduct whichmay even be a wilful silence until the deceased reactedor pushed or forced the deceased by his deeds, words orwilful omission or conduct to make the deceased moveforward more quickly in a forward direction; and (ii) that the accused had the intention to provoke, urge orencourage the deceased to commit suicide while actingin the manner noted above. Undoubtedly, presence ofmens rea is the necessary concomitant of instigation. Referring to the case of Amalendu Pal (supra), it has beenobserved in para 69 that :69.… this Court after referring to some of the previousdecisions held that it has been the consistent view thatbefore holding an accused guilty of an offence underSection 306 IPC, the court must scrupulously examine thefacts and circumstances of the case and also assess the CriAppeal-289-2002-31- evidence adduced before it in order to find out whether thecruelty and harassment meted out to the victim had left thevictim with no other alternative to put an end to her life. Itmust be borne in mind that in a case of alleged abetment ofsuicide, there must be proof of direct or indirect act(s) ofincitement to the commission of suicide. Merely on theallegation of harassment without there being any positiveaction proximate to the time of occurrence on the part ofthe accused which led or compelled the deceased to commitsuicide, conviction in terms of Section 306 IPC would notbe sustainable. Thereafter, this Court held as under:13. In order to bring a case within the purview ofSection 306 IPC there must be a case of suicideand in the commission of the said offence, theperson who is said to have abetted thecommission of suicide must have played anactive role by an act of instigation or by doingcertain act to facilitate the commission ofsuicide. Therefore, the act of abetment by theperson charged with the said offence must beproved and established by the prosecution beforehe could be convicted under Section 306 IPC.”24.To sum up, here it is emanating from oral evidence of parentsthat husband suspected and doubted character of deceased and beather. But when such instances occurred, is not specified. There ismaterial omission regarding beating on the day of episode of burns.As discussed in para 14, parents are not consistent on the point ofbeating. Therefore, in the considered opinion of this Court, there is no
Arguments
CriAppeal-289-2002-4- suicidal tendency. Initially also she had attempted to end up her lifewithout any just and reasonable cause. He pointed out that evenregarding second episode of burns, husband appellant was not in thehouse and it is so evident from the very dying declarations.6.Challenging the veracity of dying declarations, learned counselfor the appellant submitted that firstly, the dying declarations areundated, and secondly, there is no endorsement of fitness of deceasedto give statement, that too when she had allegedly suffered 92%burns. He took this Court through all three dying declarationsExhibits 26, 35 and 39 and submitted that dying declarations arerecorded in Marathi whereas deceased was only conversant withUrdu. There is no remark or statement in the dying declaration thatstatement was read over to deceased. According to learned counsel,this was fatal to the prosecution.7.On this count, learned counsel for the appellant takes recourseto the following rulings of the Hon’ble Apex :1.Laxman v. State of Maharashtra 2002 Cri.L.J. 4095.2.P. Mani v. State of T.N. AIR 2006 SC 1319.3.Kanti Lal v. State of Rajasthan AIR 2009 SC 2703. CriAppeal-289-2002-5- 4.Sanju alias Sanjay Singh Sengar v. State of M.P. AIR 2002SC 1998.5.State of Maharashtra v. Sanjay D. Rajhans AIR 2005 SC 97.6.Tukaram Dashrath Padhen v. State of Maharashtra 2013Cri.L.J. (NOC) 113 (Bom.) (Nagpur Bench).7.Ashok Pandurang Jadhav v. State of Maharashtra 2011 (4)AIR Bom R 10.8.Radhakisan Dhondiba Bhalekar v. State of Maharashtra2018 (2) ABR (Cri) 269.9.Arjun Uddhav Arbad v. State of Maharashtra 2017 (3) ABR(Cri) 65.8.Learned counsel for the appellant next took this Court throughthe observations of learned trial Court and would submit that there isimproper appreciation as, according to him, specific instances andspecific role of beating is not defined in the testimony of any of thewitnesses. There was no previous complaint of any sort at any place.Moreover, according to him, on the day of burns, victim was at herparents house and therefore there is no question of husband beingresponsible for the burns. He pointed out that all such crucial aspectsare lost sight of by the learned trial Judge. Thus, according to him, onmere allegation of suspicion of character and on the basis of omnibusand general allegations, case of prosecution has been straightwayaccepted without assigning appropriate and sound reasons, and CriAppeal-289-2002-6- therefore, according to him, such judgment being not sustainable inthe eyes of law, is required to be interfered with by allowing theappeal and setting aside the impugned judgment.On behalf of the respondent-State :9.Per contra, supporting the judgment of conviction, learned APPpointed out that there are three dying declarations which areconsistent. That, just before the incident of burns, husband hadbeaten her. That, ill-treatment meted out to her was regularlyreported by deceased to her father and mother. That, they both areexamined by prosecution. Their statements are consistent. Onlybecause of suspicion of character and beating, deceased was forced tocommit suicide and there was no other reason. She pointed out thatrequired ingredients for attracting Section 498-A as well as Section306 of IPC are readily available in the prosecution evidence andtherefore, according to her, learned trial court has not committed anyerror. Rather, trial court’s findings are infallible and do not warrantany interference at the hands of this Court. Hence, she prays todismiss the appeal. CriAppeal-289-2002-7- EVIDENCE BEFORE THE TRIAL COURT10.Prosecution has examined 9 witnesses in support of its case.Their role and status, and the sum and substance of their evidencecan be summarized as under: PW1Dr, Aparna, Medical Officer at MGM Hospital, deposed aboutadmission of deceased on 20.04.1997 on the history ofconsumption of phenyl and she being treated from 20.04.1997to 22.04.1997.PW2Dr. Jinturkar, autopsy surgeon, who, after conductingpostmortem, gave percentage of burns to be 92% and cause ofdeath to be “shock due to burns”. PW3Sanjay, Special Executive Magistrate, who, on requisition frompolice, visited Sushrut hospital on 30.05.2000 and recordedher dying declaration Exhibit 26.PW4Iqbalbegum is mother of deceased. Sum and substance of herevidence is that accused persons doubted character of herdaughter and beat her. Due to ill-treated at their hands, onceshe consumed poison, but was taken back by husband. Ill-treatment and beating continued and so she committedsuicide on 01.06.2020. CriAppeal-289-2002-8- PW5Harunbaig is father of deceased. Sum and substance of hisevidence is that after two to four months, accused personsdoubted character of his daughter and she reported whenevershe visited him. After two to three years, due to cruelty, sheconsumed poison. On 29.05.2000, husband took her back andlater on they learnt about incident of burns suffered by her.PW6Sk. Roshan is the pancha to spot panchanama Exhibit 30.PW7Dr. Yelikar, who gave endorsement about fitness of patientbefore recording dying declaration by police.PW8 A.S.I. Mundhe|are the Investigating Officers whoand|recorded dying declarations ExhibitsPW9 P.S.I. Dabhade| 35 and 39 respectively.ANALYSIS11.Here, there are two sets of evidence, first set - oral evidenceand second set – three dying declarations. First, let us appreciate the oral evidence, i.e. of parents ofdeceased. CriAppeal-289-2002-9- ORAL EVIDENCE12.PW4 Iqbalbegum, mother of deceased, who is examined atExhibit 27, initially deposed about marriage of her daughter withaccused, for some time husband treating her daughter well, however,thereafter, she being ill-treated. She deposed that accused nos. 1 to 3along with mother-in-law of her daughter were beating her bydoubting her character and they were saying that she was havingillicit relations with somebody. When her daughter came home, shedisclosed this fact to her. After two years of marriage, she stated that,due to ill-treatment, her daughter consumed poison. After spendingfive days in the hospital, she was brought to her house for about twomonths. Matter was compromised and her daughter went to cohabitwith accused no.1. After some days, again ill-treatment started.Regarding incident, she deposed as under :“On the day of incident, at about 3.10 p.m., accused no.1had been to my house with deceased Shahana. Shahanatold me that accused nos. 1 to 3 beat her and they weretaking doubt on her character. After 10 minutes, accusedno.1 took away deceased at his house. Thereafter, we cameto know that deceased had committed suicide. After wecame to know the incident, we had been to M.G.M.Hospital. We have seen the deceased Shahana in burntcondition. By seing us the accused persons left the hospital. CriAppeal-289-2002-10- Thereafter we have taken the deceased at Sushrut hospitalat Bansilal Nagar, Aurangabad. At Sushrut hospital, onenquiry deceased told me that she was illtreated by accusednos. 1 to 3 and her mother-in-law, and therefore, shecommitted suicide. On 1.6.2000 deceased died in thehospital.While under cross, she is unable to give time and date of herdaughter being beaten by accused persons. She admitted that afterevery 15 days to 1 month, her daughter was coming to her house andshe was reached by accused no.1 and taken away after some time.She also admitted that some months before the incident, her daughterwas doing tailoring work. Material omission is brought to the extentthat “on the day of incident, accused no.1 along with deceased hadbeen to her house and her daughter disclosed her about beating toher”. Rest is all denial.13.PW5 Harunbaig, father of deceased, who is examined at Exhibit28, deposed that after marriage, for about two to four months,deceased was treated well. Thereafter, accused nos. 1 to 3 weretaking doubt on her character. On that count, accused no.1 used tobeat deceased. That, whenever deceased came to the parents’ house,she disclosed the ill-treatment. According to him, sometimes they CriAppeal-289-2002-11- were keeping daughter to their house, but accused no.1 wasthreatening to kill her sons. Three years back, his daughter hadconsumed phenyl because of ill-treatment meted out to her. That,after spending 5 to 6 days in MGM, his daughter was brought to thehouse and kept for three months. After compromise before panchas,his daughter was sent to the house of accused no.1, but ill-treatmentwas continued from accused persons. Regarding the incident, hedeposed as under :“On 29.05.2000, accused no.1 had been to my house withdeceased Shahana at around 3.30 p.m.. By leaving Shahanain my house, accused no.1 went away. Accused no.1 wasstanding outside my house. Accused no.1 has taken awaydeceased at 4.00 p.m. from my house. Now says after 5 to 7minutes of stay of Shahana at my house, accused no.1 hastaken away her. At about 7.00 p.m. I came to know aboutthe incident. Thereafter my wife has admitted deceased toSushrut hospital by taking her from M.G.M. hospital. Oninquiry, deceased Shahana told me that she was having ill-treatment from accused nos. 1 to 3. She further told methat after leaving my house on 29.05.2000, accused no.1has beaten her and therefore, she committed suicide.”In cross, omission is brought that accused nos. 2 and 3 weretaking doubt on the character of his daughter. That, accused no.1 had CriAppeal-289-2002-12- been to his house with Shahanabegum at about 3.30 p.m. on29.05.2000. Rest is all denial.14.On analyzing the evidence of parents, i.e. PW4 and PW5, theyboth are found to be deposing about proper treatment for some timeafter marriage, but there was said to be ill-treatment thereafter.According to mother, all accused beat her daughter after doubting hercharacter. Whereas, according to father, only accused no.1 husbandbeat her by doubting her character. Therefore, they are not consistenton the point of beating due to suspicion of character. Thus, generalallegations are levelled against all in-laws. Regarding visit of deceasedon 29.05.2000, material omission is brought that on said date,accused brought deceased to their house and she told that she wasbeaten by husband that day. For said reasons, oral evidence of parentsis not consistent and also carries material omission regarding beatingon the day of episode of burns. SECOND SET – DYING DECLARATIONS15.On appreciating the dying declarations which are Exhibits 26,35 and 39 respectively, the same are recorded by PW3 Sanjay -Special Executive Magistrate and two Police Officials i.e. PW8 ASI
Decision
CriAppeal-289-2002-32- convincing evidence on the point of subjecting deceased to mentalcruelty. Resultantly, he cannot be held guilty of commission of offenceunder Section 498-A IPC. For above discussed reasons, as essentialingredients for attracting Section 306 IPC are patently missing in theprosecution evidence to hold him guilty for the same, he also deservesto be acquitted from charge under Section 306 IPC.25.In view of the above discussion, the following order is passed :ORDERI.The appeal is allowed.II.The conviction awarded to the appellant-original accused no.1by learned Additional Sessions Judge, Aurangabad in SessionsCase No. 253 of 2000 for offence under Sections 498-A and 306of IPC on 16.05.2002 is hereby quashed and set aside.III.The appellant stands acquitted of the offence punishable underSections 498-A and 306 of IPCIV.The bail bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. CriAppeal-289-2002-33- VII.Fees of the counsel appointed to represent the appellant isquantified at Rs. 15,000/- [Rupees fifteen thousand only] to bepaid by the High Court Legal Services Sub-Committee,Aurangabad. [ABHAY S. WAGHWASE, J.]vre