Dadasaheb Mahadeo Ingale, Age 27 ... vs State Of Maharashtra And Babalal ...
2002 Latest Caselaw 314 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard counsel for the appellant - accused and learned APP for the State.

2. Accused is convicted under Section 306 of Indian Penal Code and sentenced to suffer R.I. for ten years and fine of Rs.20,000/- in default R.I. for two years, out of which compensation of Rs.15,000/- is ordered to be given to the father of the deceased.

3. Prosecution case was that the deceased Parvin was the daughter of Babalal - complainant. After his retirement he was residing at Padali, Taluka Karad with his family. Some police constables used to visit the said village for Bandobast and in that the accused got acquainted with Parvin, one of the three daughters of Babalal. Both of them fell in love and they married at Shirdi. Thereafter, both of them started living together. Thereafter, accused got acquainted with one Vandana (P.W. 5) he also developed illicit relations with her. He used to go with her and stay at Lodging house. However, the second hault at the lodge was frustrated because of the intervention of some people. There were quarrels between Parvin and accused but this did not deter the accused in maintaining his relations with Vandana. On 14.4.1988 there was Ambedkar Jayanti on that day Parvin saw the accused carressing Vandana near their residential quarter, therefore there was a quarrel between Parvin and the accused. On that day itself she wrote letter to her father expressing her plight and the mental agony.

4. On receiving this letter, Babalal went to Panchgani. However, accused threatened him. Thereafter Parvins brother went to Panchgani to see Parvin in May 1988. In June 1988 accused was transferred from Panchgani Police Station to Vathar Police Station. While packing of all the household articles was going on at Panchgani, quarrel took place between accused and Parvin, foster sister of Parvin viz. Almas (P.W. 4) was there. At that time she had intervened in the quarrel.

5. In this background on 22.7.1988 i.e. on the same day, according to the prosecution Parvin burnt herself in order to commit suicide. Instead of admitting her in the Government Hospital at Wai, she was admitted in Mission Hospital at Wai, by the accused. Parvin died as a result of 65% burn injuries on 26.7.1988. Thereafter Parvins father produced the letter written by her and then the accused came to be chargesheeted, after investigation. The trial court believed the case of the prosecution and convicted the accused as above, and hence this appeal.

6. Learned counsel for the accused - appellant contended that conviction of the accused under Section 306 I.P.C. was wrong in as much as the prosecution has failed to prove beyond reasonable doubt that Parvin committed suicide. He pointed out that Parvin died as a result of catching fire accidently, and secondly according to him witnesses examined by the prosecution did not inspire confidence and there was no material at least sufficient material to hold that the accused appellant has abated the commission of suicide.

7. On the other hand, learned APP contended that the trial court who had opportunity to observe the demeanor of the witnesses has heavily criticised the action of the police officers in the instant case which was just to protect the accused at any cost and to prove investigation favouring the accused. He therefore contended that the evidence of Vandana and letter (Exhibit 14 ) written by Parvin to Babalal, and the evidence of the neighbour of the accused who was also a constable were sufficient to prove the prosecution case of abatement of the suicide. Therefore the conviction was proper.

8. So far as criticism of the trial court regarding conduct of the police officer is concerned, it is fully justified. The circumstances noted out and pointed out by the trial court as against the conduct of the police officers who were investigating the offence are sufficient to hold that police officers were trying to protect the accused at every cost.

9. This apart, the question is whether the prosecution succeeds in proving that Parvin committed suicide or accused succeeds in proving that it could be the case of accidental death.

10. In order to contend that it was an accidental death, counsel for the accused - appellant pointed out that as per the panchnama kerosene lamp was found in the room with little kerosene in the lamp and according to the accused Parvin caught fire while igniting the said lamp and not by committing suicide. The observations of the trial court in this regard on page 77 are as under:

"Secondly the tin lamp (chimani) has been stated to be the cause for the accidental fire. According to the defence, version brought on record through the admission of Almas is that the deceased at the relevant time in the darkness was trying to ignite the lamp, having Baby of 2.1/2 months against her waist, and in the said course the lamp titled and spilted kerosene and the burning cotton wick of the said lamp caused fire. On minute scrutiny of the said lamp, I found the said cotton wick without any damage on its lower end, which sucks and supplies frame."

Counsel for the accused submitted that the observations of the court below are wrong. "The end of the wick" about which the court has made the comments was the end inside the glass container and dipped in kerosene. This end does not catch fire because it is inside the glass container but the other end which is outside the holder catches fire, and therefore the conclusion arrived at by the trial court is wrong. It appears that there is some grain of truth in what is argued by the counsel for the accused in this regard. However, the panchnama Exhibit 12A dated 23.7.1988 shows that there was a smell of kerosene to the clothes, that there was one black can smelling of kerosene and on the tiles there is a water and kerosene on different places. This shows that kerosene was used in large quantity. Admittedly, the capacity of chimni or lamp to hold kerosene is very limited and even if that much kerosene spreads it cannot lead to the accident as noted in the panchnama. In addition the court has observed that Exhibit 5 which was a saree of Parvin on her person did not have even 1% damage by fire on any side. Thirdly, she had suffered 65% of burns, and all these three circumstances therefore nullifies the contention of the accused that it is an accident and not suicide. Flame of the burning lamp is very very small and tiny and therefore if Parvin had caught fire because of that, she would have easily extinguished the fire by her own hands. Panchnama does not show that the lamp had broken and the kerosene in the lamp had spread nor that Parvin suffered 65% of burns as soon as she caught fire. Use of kerosene on large scale is necessary and considering the observations in the panchnama, it is clear that kerosene was used by Parvin to spread over her body.

11. In the circumstances the defence of the accused that Parvin might have died as a result of accident does not stand to reason and it is merely hypothesis without any support from the record. It has therefore to be accepted as has been done by the trial court that Parvin died of suicide.

12. Second question is whether the accused can be held guilty of abatement. In that regard the trial court has relied upon the evidence of Vandana and the neighbour and other circumstances i.e. evidence of Babalal and the letter written by Parvin. It is this letter which is weighed heavily by the trial court coupled with the evidence on record to come to the conclusion of the guilt of the accused. This letter is at Exhibit 14. It is written on the same day when Parvin noticed illicit behaviour of accused with the said Vandana. The letter is properly proved and it reveals the mental state of Parvin on account of the treatment given to her by the accused. Most surprisingly enough the prosecution could examine Vandana and in her evidence she has stated the manner in which she got acquainted with the accused, she stayed with accused for one night in the lodge. She stated that when she was returning to Panchgani she met Parvin who questioned her about her stay and Parvin also requested Vandana to keep herself away from her husband whereupon Vandana protested that the accused was trying to contact her on public road, though she did not desire and he used to misbehave with her like road side romeo. She also stated that because of the said behaviour she had to give up her services. She advised Parvin to control the accused. She has also narrated about the incident that took place on Ambedkar Jayanti behind the police station. This evidence of Vandana goes a long way against the accused because firstly because no woman would come to the court and depose about her illicit relations and give such admissions. It is true that in her cross-examination she has admitted that because of her suspicion of relations between Vandana and accused Parvin used to quarrel. But this admission does not carry any importance because of the admission in the examination in chief given by Vandana that she had stayed with the accused in lodge and that she was questioned by Parvin. This evidence of Vandana is sufficient to prove the illicit relations and its knowledge to Parvin before commission of the suicide. Second evidence is of Nathaji (P.W. 6) who was a neighbour of the accused. He was also a Police Constable and he has stated that there used to be quarrels between the accused and Parvin and one of the reason of the quarrel was illicit relations of the accused with Vandana. In the cross-examination the defence has not been able to falsify this witness or create doubt about its testimony. Apart from these witnesses, evidence of the father and brother of Parvin also strongly supports the prosecution case of ill-treatment. Babalal is examined as P.W. 2. He has clearly admitted that he was against Parvin eloping with the accused and marrying him. He has stated about receipt of letter dated 14.4.1988 (Exhibit 14). He has stated that after receiving this letter he went to Panchgani to take Parvin but the accused did not permit him to speak with Parvin who was in the hospital i.e. dispensary and on the contrary he threatened Babalal to leave the room. Thereafter, Babalal has stated "I therefore allowed my tears to roll on my cheek and returned by S.T. to my village Padali." He has stated that thereafter he sent his son Nijamuddin to Parvin. Parvin asked Nijamuddin to leave her house immediately otherwise accused would have beaten him.

13. Babalal has further stated that when Parvin was admitted in the burns ward, he talked with her, thereupon she told him about the harassment and cruelty she has suffered. However, he was confronted with his statement to the police and this appears to be an omission on his part. Therefore, the so-called oral dying declaration given by Parvin to Babalal cannot be believed. But other evidence of this witness Babalal has helped the prosecution case in proving the behaviour of accused with Parvin. Nijamuddin is the brother of Parvin. He has talked about Exhibit 14 letter written by Parvin. He has proved to be in her handwriting and has stated that after receiving the letter he went to Panchgani to see her but Parvin asked him to go because she was afraid that accused would beat him.

14. Next witness is Almas Shaikh (P.W. 4). She has stated that Parvin used to visit her house frequently, that the accused used to beat her after consuming liquor, that the accused had mistress by name Vandana and it was for these reasons that Parvin was beaten. Parvin also used to narrate her about the ill-treatment given to her by the accused. Then she has narrated one incident that took place on 22.7.1988 i.e. on the same day of committing suicide. Counsel for the accused tried to exploit the admission given by this witness that Parvin told her in the hospital that she was trying to ignite chimni with her minor son in her hand and in that process she lost balance and fell on the chimni, the lamp splited kerosene and she caught fire. She has also admitted that the Magistrate was called and dying declaration was recorded in her presence and in the presence of doctor.

15. Counsel for the accused tried to contend that if dying declaration of Parvin was recorded and it was favourable to the accused it was the duty of the prosecution to produce the same on record and prove it and since prosecution has failed to prove dying declaration, adverse inference should be drawn against the prosecution.

16. As against this, it is brought to my notice by the learned APP that even if the prosecution did not try to prove the dying declaration, the accused had given an application for examining S.E.M. who recorded the dying declaration, that application was allowed by the court, summons was also ordered to be issued to the Magistrate but then ultimately and lastly accused did not examine the said S.E.M. and informed him accordingly that he does not wish to examine the S.E.M.

17. If this is so then it is clear that even though according to the accused the said dying declaration was in his favour and he had taken steps to examine the S.E.M. and ultimate withdrawal from that stand by the accused and refusal to examine the S.E.M. are circumstances going against the accused. Firstly, therefore no adverse inference against the prosecution can be drawn and secondly no inference can be drawn that that dying declaration was favourable to the accused.

18. The most important piece of evidence tendered by the prosecution is letter (Exhibit 14) referred to above. It is forming part of the record. Parvin has expressed her regrets for marrying the accused against the advise of her father, she had informed that she is in great trouble and he should immediately come to see her. She has also intimated that if anything dangerous happens to her, the letter should be kept safely. That she is being beaten and thought of killing her is going on. She has asked the father to treat the letter as telegram and she has stated that she cannot say anything about her own survival. This letter is properly proved to have been written by Parvin and Babalal has stated that after receipt of this letter he went to see Parvin but accused did not allow him to meet Parvin and to the contrary threatened him. Thereafter, brother of Parvin also was not permitted by the accused to stay in the house because of fear of the accused.

19. All the circumstances, namely, illicit relations with Vandana, admission by Vandana in that regard, evidence of the neighbour, letter Exhibit 14 and evidence of Babalal- father of Parvin and Nijamuddin - brother of Parvin are therefore sufficient to hold that accused abated commission of suicide. For all these reasons judgment of the trial court is required to be maintained.

20. Counsel for the appellant - accused lastly submitted that looking to the circumstances of the case, the age of the accused and that the incident has taken place 13 years ago, sentence should be reduced. I am therefore passing the following order :

ORDER

21. Appeal is partly allowed. Conviction of the appellant-accused is upheld. However, his sentence is reduced from ten years to seven years. Rest of the impugned order to remain the same. Accused to surrender before the trial court within four weeks from today. Thereafter, his bail bond shall stand cancelled. Appeal disposed of accordingly. Certified copy expedited.