High Court
Legal Reasoning
CriAppeal-508-2003+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 508 OF 2003Sudhakar s/o Shantaram Sapkale,Age : 25 years, Occupation labourer,R/o. Jalgaon, Tal. & Dist. Jalgaon.… Appellant[Orig. Accused]VersusState of Maharashtra… Respondent…..Mr. B. R. Waramaa, Advocate for the Appellant.Mrs. Uma S. Bhosale, APP for the Respondent-State...…ANDCRIMINAL APPEAL NO. 700 OF 2003The State of MaharashtraThrough PSI Police StationJalgaon C.R. No. 60/2002.… AppellantVersusSudhakar Shantaram Sapkale,Age : 25 years, Occupation labourer,R/o. Jalgaon, Tal. & Dist. Jalgaon.… Respondent[Orig. Accused]…..Mrs. Uma S. Bhosale, APP for the Appellant-State.Mr. B. R. Waramaa, Advocate for the Respondent.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 11.07.2024Pronounced on: 15.07.2024 CriAppeal-508-2003+-2- JUDGMENT : 1.Appellant convict Sudhakar, vide Criminal Appeal No. 508 of2003, has taken exception to his conviction for offence under Section498-A of the Indian Penal Code [IPC], whereas State has also filedCriminal Appeal No. 700 of 2003 questioning his acquittal fromcharge under Section 306 of IPC.Both appeal being arising out of the same judgment and order,they are heard together and decided by this common judgment.FACTS IN BRIEF, LEADING TO TRIAL2.Deceased Shobha, who was second daughter of informant PW1,after one month of her marriage, reported him that husbandsuspected her fidelity and beat her. That, his daughter was not sent tocohabit for almost a month, but when her mother-in-law came andassured that there would not be further ill-treatment and beating,deceased was allowed to go to cohabit on 21.09.2002. On27.09.2002, message was received that Shobha suffered burns. Allrelatives went there. Shobha died due to burns and so, after funeral,father set law into motion.
Legal Reasoning
CriAppeal-508-2003+-3- 3.Crime was registered, investigated and finally, accused husbandwas chargesheeted and tried by IVth Ad-hoc Additional SessionsJudge, Jalgaon vide Sessions Case No. 170 of 2002 on charge of 498-A and 306 of IPC.4.At trial, prosecution adduced evidence of in all 5 witnesses andalso relied on two dying declarations, postmortem report,panchanamas etc. After appreciating the oral and documentaryevidence adduced by prosecution, vide judgment and order dated04.07.2003, appellant came to be convicted for commission of offenceunder Section 498-A of IPC only and he was acquitted for offenceunder Section 306 IPC. 5.Said conviction for above offence is questioned by filing instantappeal, on various grounds mentioned in the appeal memo. 6.State has also preferred appeal getting aggrieved by hisacquittal from offence under Section 306 of IPC.SUBMISSIONSOn behalf of the appellant convict:7.Learned counsel for the appellant pointed out that apparently,in the case in hand there is no convincing, reliable or legally CriAppeal-508-2003+-4- acceptable evidence as, according to him, very essential ingredientsfor attracting offence under Section 498-A as well as Section 306 ofIPC are not available in the prosecution evidence. He pointed out thatlearned trial court has already acquitted accused husband fromcharge under Section 306 of IPC. Questioning the judgment of thetrial court for recording guilt for offence under Section 498-A of IPC,firstly, learned counsel took this Court through the testimony ofinformant father and the answers given by him in cross, andsubmitted that except testimony of father, there is no other evidence.According to him, cross of informant father also exposes that hisversion is not only unworthy of credence, but is also full of materialomissions and contradictions. Learned counsel reiterated that, theessential ingredients for attracting Section 498-A and the legalrequirements to attract offence of cruelty not being available, learnedtrial court ought not to have accepted prosecution version. 8.As regards the dying declarations are concerned, he took thisCourt through both the dying declarations i.e. at Exhibits 26 and 31respectively, and would submit that dying declarations are patentlyinconsistent. Different versions are stated in each of it. That apart,according to him, there are several shortfalls and infirmities whilerecording dying declarations and it is evidence from the testimony of CriAppeal-508-2003+-5- authorities who recorded the same. He took this Court through thesubstantive evidence of PW2 Senior Clerk as well as the police officerPW3 who recorded dying declarations. According to him, theinfirmities pointed out by him are itself sufficient to doubt the veryauthenticity of the dying declarations. He emphasized that thecontents of dying declarations are contrary to the prosecution versionand thus, according to him, learned trial court ought not to haverelied or considered the same for accepting the case of prosecution. On behalf of the State :9.Supporting the judgment and order of conviction under Section498-A IPC, and criticizing the observations of the trial court foracquittal from Section 306 IPC, learned APP pointed out that theevidence is truthful and convincing on the point of husbandsuspecting character consistently. According to learned APP, itamounts to mental cruelty. That, only because of the same, deceasedpoured kerosene, and husband is solely responsible. She has namedhim in both dying declarations. Even informant father’s testimony isintact as regards the ill-treatment is concerned. For all above reasons,she canvasses in favour of the finding of guilt under Section 498-AIPC, but questions the acquittal under Section 306 IPC by submitting CriAppeal-508-2003+-6- that there was clear abetment and inducement and circumstancescreated by husband, only due to which, deceased committed suicide.Therefore, according to her, offence of Section 306 IPC was also madeout, but learned trial court did not appreciate the same and hence,she seeks to allow the appeal, i.e. Criminal Appeal No. 700 of 2003,by setting aside the judgment and order to that extent.EVIDENCE BEFORE THE TRIAL COURT10.The role and status of the five prosecution witnesses and thesum and substance of their evidence can be summarized as under :PW1Shivaji, father of deceased, stated that his second daughter i.e.deceased Shobha, was married to accused in May 2000. Aftermarriage, his daughter used to visit his house. After one monthof marriage, she told that husband raised doubt on hercharacter and even beat her. That, accused dropped her anddid not come into the house and even did not come to take herfor a month and during such period also, his daughtercomplained about beating after doubting her character. On21.09.2002, mother-in-law of deceased came and assured thather son has reformed and that there would be no ill-treatmentand so deceased was allowed to go, but on 27.09.2002, news ofburns was received. CriAppeal-508-2003+-7- PW2Sau. Nalini Yadav Joshi, a Senior Clerk in the office of Tahsil,deposed about memo being received from Shanipeth PoliceStation to record dying declaration and accordingly, she wentto the hospital, recorded dying declaration and handed copy tothe police, which she identified to be at Exhibit 26.PW3PSI Chaudhari stated that on 27.09.2002, he recorded dyingdeclaration by visiting Civil Hospital. Regarding the incident,deceased reported to him that there was quarrel with husbandand in-laws. On the next day, because of previous day’sincident, she poured kerosene and set herself on fire. Heidentified said statement at Exhibit 31.PW4PSI Pawar was the Investigating Officer.PW5Dr. Vijaya Wani, who gave certification before recording boththe dying declarations. 11.Here, after considering the above submissions and on analyzingthe above substantive evidence of five witnesses, admittedly, there isonly testimony of informant father and no other relative. Neitherappellant nor the State questioned death of Shobha to be due toburns. Even when appellant was chargesheeted for offence underSections 498-A and 306 of IPC, trial court has acquitted him from CriAppeal-508-2003+-8- charge under Section 306 IPC which is the subject matter of challengein the appeal by State. First, let us see whether there is evidenceestablishing the charge under Section 498-A of IPC. ANALYSIS12.As to what actually constitutes cruelty has been lucidly andsuccinctly dealt in the landmark cases of Giridhar Shankar Tawade v.State of Maharashtra (2002) 5 SCC 177; Gurnaib Singh v. State ofPunjab (2013) 7 SCC 108; State of Andhra Pradesh v. M.Madhusudhan Rao (2008) 15 SCC 582 ; Bhaskar Lal Sharma v.Monica (2009) 10 SCC 604 and K. Subba Rao v. The State ofTelangana (2018) 14 SCC 452.13.As stated above, father’s testimony is the only oral evidencewhich is to be appreciated. On doing so, it is noticed that he allegesthat after one month of marriage, he learnt from his daughter thathusband doubted her character and beat her. In spite of stating so inthe substantive evidence at Exhibit 16, as pointed out, para 6 of hiscross shows that he has lodged report Exhibit 17 one day after thedeath and he admitted in cross that he lodged report on the basis oforal version reported by his daughter to police. This is a material CriAppeal-508-2003+-9- omission which goes to the very root of the accusations of doubtingcharacter and beating. Para 9 of his cross also shows that there isomission about daughter, after one month of marriage, informing thathusband used to beat her. Above is the only testimony on the point ofSection 498-A IPC. There is no other corroborative piece of evidence.14.Here, there are two dying declarations. First one seems to be atExhibit 31 and it is recorded at 10.30 a.m. on 27.09.2002. Substanceof the first dying declaration is that on 26.09.2000 at 9.00 a.m.,husband, mother-in-law and father-in-law were quarreling inter sebetween them on account of giving divorce to her. That, husband saidto his parents that if she is kept in the house, he would kill her, whichannoyed her. Therefore, on 27.09.2002, around 6.30 p.m., whilecooking, in the backdrop of previous day’s quarrel, and also becauseof suspicion raised by husband, she poured kerosene and set herselfon fire. Her family members doused the fire. Husband, mother-in-law,father-in-law, uncle and others shifted her to the hospital. In this verydying declaration, she has clearly stated that for said incident, she hasno complaint and nobody should be held responsible. 15.Second dying declaration at Exhibit 26 seems to be recorded at10.45 a.m. i.e. in quick succession to Exhibit 31, within a gap of 10 to CriAppeal-508-2003+-10- 15 minutes. In this dying declaration, she states that husband used toregularly suspect her character and pick up quarrels. One day backalso, there was quarrel between herself and husband and therefore, at6.30 a.m., in rage of anger, she incinerated herself. Her familymembers shifted her to hospital.16.There are series of judgments on the point of manner ofappreciation of dying declaration. Since the judgment in Khushal Raov. State of Bombay; AIR 1958 SC 22 to Paniben v. State of Gujarat ;(1992) 2 SCC 774, Laxman v. State of Maharashtra ; (2002) 6 SCC710, Ganpat Bakaramji Lad v. State of Maharashtra ; 2011 ALL MRCri. 2249 Surendrakumar v. State of Punjab ; (2012) 12 SCC 120,Jagbir Singh v. State (NCT of Delhi) ; (2019) 8 SCC 779 and Madanv. State of Maharashtra ; (2019) 13 SCC 464 and very recently inState of Uttar Pradesh v. Veerpal and Another; (2022) 4 SCC 741, lawon manner of appreciation of dying declaration has been propoundedand certain principles have been culled. The principle expounded inabove rulings is that dying declaration should be, firstly, voluntaryand secondly, it should be truthful and further, inspire confidence ofthe court. There is no format for recording dying declaration. CriAppeal-508-2003+-11- 17.Here, testimony of informant PW1, more particularly para 8 ofhis cross goes to show that when he reached Civil Hospital, at thattime, process of recording dying declaration was going on. Accordingto him, apart from police, one lady was also recording dyingdeclaration. That time, he himself and his wife were present there.Such answers of informant father show that dying declarations weresimultaneously recorded by two authorities, i.e. PW2 as well as PW3,at one and the same time, and that too, in presence of parents. 18.As stated above, in first dying declaration, deceased has herselfcategorically declared that nobody is to be held responsible and shehad no complaint against anybody. Even it is further worth notingthat on 26.09.2002, there were alleged quarrels, that too, inter sebetween husband and his parents, as is evident from the text of firstdying declaration. Occurrence of immolation is of next day i.e.27.09.2002. She herself stated that in rage of anger, she pouredkerosene. Therefore, here, there is nothing to hold any participationof husband in inducement or in abetment to commit suicide. Preciselyfor said reason, even trial court has acquitted accused from charge ofSection 306 IPC. CriAppeal-508-2003+-12- 19.To sum up, here, there is no convincing evidence even on thepoint of Section 498-A IPC. Marriage was of May 2000. Father’sevidence shows that she had stayed for a month in his house. Mother-in-law allegedly took her on 21.09.20002 and incident is of27.09.2002. Alleged incident appears to have taken place within aspan of one week after she came back to cohabit. Her both dyingdeclarations are only about husband suspecting character. She has notspoken about she being beaten on that count. Only informant fatherdeposed about hearing from daughter that there was beating also, buteven that is noticed to be an omission. Therefore, apparently andpalpably, evidence on the point of cruelty is weak in nature. 20.As stated above, there is nothing on record to hold eithercruelty meted out or abetment, inducement or that there was anyintentional act on the part of the husband or he creatingcircumstances compelling her to end up her life. Hence, this charge isrightly held to be failed. No case is made out on merits by State tointerfere in such findings. Hence, I proceed to pass the followingorder: CriAppeal-508-2003+-13- ORDERI.Criminal Appeal No. 700 of 2003 is dismissed.II.Criminal Appeal No. 508 of 2003 is allowed.III.The conviction awarded to the appellant Sudhakar s/oShantaram Sapkale, by learned IVth Ad-hoc Additional SessionsJudge, Jalgaon in Sessions Case No. 170 of 2002 under Section498-A of IPC on 04.07.2003 stands quashed and set aside.IV.The appellant stand acquitted of the offence punishable underSection 498-A of IPC.V.The bail bonds of the appellant stand cancelled.VI.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period.VII.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre