Pratap vs The State Of Maharashtra
2012 Latest Caselaw 124 Bom

                                                Cri. Appeal No. 203/2000
                                        1




                                                                        
                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD




                                                
                  CRIMINAL APPEAL NO. 203 OF 2000


     Pratap s/o. Laxman Dhole,
     Age 29 years, Occu. Teacher,




                                               
     R/o. Venkateshnagar, Kandhar,
     District Nanded.                             ....Appellant.

              Versus




                                      
     The State of Maharashtra,
     Through Police Station, Kandhar,
                       
     District Nanded.                             ....Respondent.
                      
     Mr. V.B. Mantri, Advocate for appellant (appointed).
     Mr. S.N. Kendre, APP for State.
      

                             CORAM          :     T. V. NALAWADE, J.
                             DATED          :     5th October, 2012.
   



     JUDGMENT :

1. The appeal is filed against judgment and order of

Sessions Case No. 10/1997, which was pending in the Court of

Additional Sessions Judge, Nanded. The Trial Court has convicted

and sentenced the appellant for offence punishable under section

306, 498-A of Indian Penal Code. This Court has heard both the

sides and has perused the original record.

2. In short the facts leading to the institution of the

appeal can be stated as follows :-

Cri. Appeal No. 203/2000

The deceased Gangasagar was a daughter of

Govindrao Chibhade. She was given in marriage to

appellant/accused on 5.6.1995. Immediately after the marriage,

the accused started expressing that the deceased had become

pregnant even prior to the marriage. For the satisfaction of the

accused, the parents of the deceased took the deceased to the

hospital of Dr. Smt. Bhalerao for medical examination. After

medical examination, Dr. Bhalerao gave report that the deceased

had not become pregnant. The accused was, however, not

satisfied. The accused got examined the deceased medically from

another doctor. This doctor also gave similar report. Accused was

not satisfied with this report also.

3. The accused then started complaining that the

deceased was suffering from white discharge, a kind of venereal

disease. He started saying that the deceased may not be able to

procreate a child for him due to the disease and she may also get

disease like cancer due to this disease. For taking the deceased to

doctor, he started demanding money from the parents of the

deceased. On some occasions money was given, but the

illtreatment was not stopped by the accused. On few occasions,

the deceased was taken to parent's house and she was kept there

Cri. Appeal No. 203/2000

by her parents due to conduct of the accused.

4. The deceased used to disclose about the illtreatment,

which the accused was giving to her to her parents and other

relatives. The deceased used to complain that the accused had

illicit relations with a woman from Nanded. The accused used to

tease her. She used to disclose that accused used to say her that

due to white discharge, the deceased was not in a condition to

conceive the child. She had sent a letter to her parents. Accused

also use to send letters.

5. On 10.8.1996 at about 8.00 a.m. the accused started

asking the deceased to go to the house of her parents. The

deceased refused to do so. The accused then gave slap to the

deceased and he confined her in the house by putting latch on the

door from the outside. He then went to school, the place of his

employment.

6. In the noon time, the deceased set herself on fire

after pouring kerosene on her person. Due to her shouting, some

neighbourers rushed to the spot. Call was given to police and she

was shifted to Rural Hospital at Kandhar by police. It was at about

1.00 p.m. In Rural Hospital, the dying declaration of the deceased

Cri. Appeal No. 203/2000

was recorded by one Head Constable and on the basis of this

dying declaration, the crime at C.R.No. 93/96 came to be

registered in Kandhar Police Station for offences punishable under

sections 498-A of I.P.C. As it was a case of 100% burn, she was

shifted to Civil Hospital, but she succumbed to injuries at about

8.50 p.m. on the same day.

7. P.S.I. Kinnarwad made investigation of the case. He

prepared the spot panchanama in presence of the panch

witnesses. During investigation, statements of parents of

deceased came to be recorded. The father produced some letters,

which were written by the deceased and the accused to him. The

letters were seized under panchanama. The statements of some

neighboures also came to be recorded. The P.M. report was

collected and after completion of investigation, the chargesheet

came to be filed for offences under sections 498-A and 306 of

I.P.C. In Trial Court, the prosecution has examined 10 witnesses.

The accused took the defence of total denial. The Trial Court has

believed the evidence of the parents, the letters and also the

dying declaration.

8. Govindrao (PW 1), the father of the deceased, has

given evidence that there was illtreatment to the deceased from

Cri. Appeal No. 203/2000

accused right from the beginning. He has given evidence that

immediately after the marriage, the accused expressed suspicion

that the deceased had become pregnant prior to her marriage. He

has given evidence that to remove the suspicion from the mind of

the accused, he took the deceased to Dr. Smt. Bhalerao and she

gave report that there was no substance in the allegation. He has

deposed that the accused was not satisfied with the report given

by Dr. Bhalerao. He has given evidence that the accused took the

deceased to other doctor also. His evidence shows that the

accused was indirectly expressing suspicion about the character

of the deceased.

9. Govindrao (PW 1) has deposed that the accused had

kept illicit relations, at least with two women. He has deposed that

the deceased had sent him a letter. He has identified the hand

writing of the deceased in the letter at Exh. 11. He has deposed

that the deceased used to complain about the illtreatment, the

accused was giving to her. He has deposed that there was the

disclosure about the illtreatment and about the suspicion that the

accused used to express about her character. In the letter at Exh.

11, the name of a woman is given, who was allegedly instigating

the accused to give illtreatment. He has given evidence that

accused had told him that he was not satisfied with the report

Cri. Appeal No. 203/2000

given by Dr. Bhalerao and accused had said that he wanted to

take the deceased to other doctor. He has given evidence that

ultimately, the accused got the deceased examined from other

doctor also.

10. Govindrao (PW 1) has further deposed that the

accused had demanded Rs. 1,000/- from him for medical

examination. He has deposed that in the letter at Exh. 12, the

demand of money was made by him. In the evidence of this

witness, the prosecution has proved the hand writing of the

accused in letter at Exh. 12. He has deposed that the deceased

was got examined from one lady doctor from Ahmedpur. But with

the report given by this lady doctor also, the accused was not

satisfied. He has given evidence that accused used to blame that

the deceased was suffering from white discharge and he used to

say that the deceased was not in a condition to procreate a child

for him. He has given evidence that by sending other letter also,

the accused had demanded money and he used to give money to

the accused. He has given evidence that due to the conduct of

the accused, he had taken the deceased to his house atleast on 2

occasions and she had stayed there for few days.

11. Govindrao (PW 1) has given evidence that about one

Cri. Appeal No. 203/2000

month prior to the date of incident, when the deceased was living

with him, the accused had come to house and due to mediation

by one teacher, he had sent the deceased to matrimonial house.

He has deposed that the deceased was reluctant to return to

matrimonial house and the deceased was saying that the accused

was never happy, even when money was given to him by her

parents. The evidence of Govindrao shows that he had sent the

deceased to matrimonial house, but the accused had again sent

the deceased back to his house. In the past, the accused used to

keep the deceased in his house from Malsavargaon and on the

last occasion, when PW 1 insisted, the accused agreed to keep her

with him at the place of his work, at Kandhar. The incident took

place in the house from Kandhar. The evidence of PW 1 shows

that the deceased had started living at Kandhar about 15 days

prior to the incident. The cross examination of Govindrao (PW 1)

shows that it was made only with the object to show that the

accused had no illicit relations with any woman. The name of one

lady is given in F.I.R. and in Exh. 11 the deceased had taken the

name of a lady. The cross examination does not show that the

accused tried to give any explanation for the suicide of the

deceased.

12. The evidence of Nilabai (PW 3), the mother of the

Cri. Appeal No. 203/2000

deceased, is similar to the evidence of PW 1. The evidence of PW

1 and 3 shows that before they reached the hospital, Gangasagar

was dead. One Nivrutti (PW 2), the neighbour, has tried to say

that that the deceased had made disclosure to him in the

aforesaid house and he had found that there was latch from

outside on the door of the house. He has admitted that such

statement was not given by him to police. In view of this material

omission, this Court holds that there is no need to discuss the

evidence of Nivrutti (PW 2) more.

13. Police Head Constable Kendre (PW 8) has given

evidence to prove the dying declaration of Gangasagar. He has

deposed that Police Constable Kamble, he and other staff went to

the spot after learning about the incident and from there, they

shifted Gangasagar to Rural Hospital, Kandhar. He has given

evidence that before recording dying declaration, he sought the

opinion of Dr. Chavan regarding fitness of the patient to give

statement. He has deposed that Dr. Chavan gave opinion that she

was in a condition to give statement and then he recorded the

statement. In his evidence, dying declaration of Gangasagar is

proved as Exh. 29. He has pointed out the endorsement made by

Dr. Chavan and the signature of Dr. Chavan appears on Exh. 29.

His evidence shows that from Rural Hospital, the deceased was

Cri. Appeal No. 203/2000

shifted to Civil Hospital as it was the case of 100% burns.

14. Dr. Chavan (PW 10) has given evidence that after the

admission of the patient Gangasagar in Rural Hospital, he had

recorded the history given by the patient on the case paper. The

case paper which is in hand writing of the doctor is proved as Exh.

35. This history is to the effect that right from the marriage, there

was illtreatment to the deceased from the husband and due to the

illtreatment, she had set herself on fire.

15. Dr. Chavan (PW 10) has deposed that when police

came and requested him to give opinion about the fitness of the

patient, he examined the patient and gave opinion that she was in

a position to give statement. He has deposed that in his presence,

the statement of Gangasagar was recorded by one Head

Constable. He has deposed that after recording of the statement,

he made endorsement on the statement and the endorsement is

signed by him. He has given evidence that the patient was

conscious during recording of the statement. Much was argued for

the appellant in respect of the wordings used in the endorsement.

It was submitted that the endorsement does not show that the

deceased was fit to give statement though it is mentioned that

she was conscious. This Court holds that it is not possible to

Cri. Appeal No. 203/2000

discard the evidence of dying declaration on this count. The

evidence shows that doctor had examined patient and he had

given opinion that she was conscious and her statement could

have been recorded. As Exh. 35 is there and there is direct

evidence of doctor about the fitness of the patient, this Court sees

no reason to disbelieve the evidence of Dr. Chavan and Police

Head Constable Kendre. This Court holds that the record like Exhs.

35 and 29 can be safely used in this case as the record of dying

declaration.

16. The record of dying declaration is consistent with the

oral evidence of the parents of the deceased. There is evidence of

Dr. Rajendra (PW 6) that Gangasagar died due to 100% burns. His

evidence shows that there was smell of kerosene to the body. The

spot panchanama is duly proved in the evidence of Bhujangrao

(PW 5). The incident took place at about 1.00 p.m. On the floor of

the room, there was kerosene and in the room, there was a smell

of kerosene. There was not a single circumstance to create the

probability that the deceased caught fired accidentally. Further,

the deceased made specific allegation in the dying declaration

that the accused had put the latch on the door from the outside.

The spot panchanama shows that the deceased ran only inside

the room and she could not come outside the room when she was

Cri. Appeal No. 203/2000

in flames. This evidence is sufficient to prove that the deceased

had set herself on fire to commit suicide and it is the case of

suicide. This evidence is consistent with the record of dying

declaration.

17. The letter of deceased at Exh. 11 shows that it has

stamp of post office dated 26.9.1995. This letter of deceased

shows that accused used to demand money from her parents and

on that count, he used to give harassment to her. The name of

one woman Khoklebai is given in letter at Exh. 11, who was

allegedly giving instigation to accused to give illtreatment. In this

letter, the deceased had expressed that all her dreams were

shattered in to pieces. Exhs. 12 and 13 are the letters of the

accused. Exh. 12 is on inland letter of post office, though Exh. 13

is a chit and envelop is absent. They are dated 14.8.1995 and

5.11.1995. In the chit, Exh. 13, dated 14.8.1995, the demand of

Rs. 1,000/- was made by the accused as he was in need of money.

Though from the letters of the accused at Exhs. 12 and 13,

inference cannot be drawn that this demand was made to extract

money and on that count, there was illtreatment, the letter of

deceased at Exh. 11, cannot be ignored. Exh. 11 gives

corroboration to the case of the prosecution.

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18. Kamble (PW 4), Police Head Constable, has given

evidence that in Rural Hospital, when he made inquiry with the

deceased, she disclosed that she had set herself on fire and she

was suffering from white discharge and she was not able to

procure a child. It can be said that this evidence on so called

dying declaration is not complete. There is record created by

other Head Constable and so, not much can be made out of this

evidence of Kamble in favour of the accused.

19. The prosecution evidence does not show that the

accused had rushed to the spot after the incident. His presence

was not shown even in the hospital. This conduct of the accused

is relevant and this needs to be considered in view of the nature

of allegations made against him in the recorded dying declaration.

20. Conviction can be based only on the basis of dying

declaration. In the present case, there is corroboration of the

circumstances, which are already discussed, to the recorded dying

declaration. Though the dying declaration was recorded by the

Police Head Constable, there is nothing to create doubt about the

dying declaration. There is support of independent evidence of Dr.

Chavan and of record Exh. 35. On the basis of this evidence, this

Court has no hesitation to hold that there was illtreatment to the

Cri. Appeal No. 203/2000

deceased, there was the demand of money, there was the

allegation against the deceased that she had become pregnant

before the marriage, there was allegation against the deceased

that she was suffering from white discharge and due to that she

was not in a position to procure a child and there is record to show

that the deceased had become frustrated due to the conduct of

the accused. This evidence is sufficient to prove the "cruelty" as

defined in section 498-A of I.P.C. This Court has no hesitation to

hold that due to this cruelty, the deceased committed suicide. The

suicide was committed within seven years of the marriage and so

the presumption under section 113-A of the Evidence Act needs to

be drawn in this case. Thus, the prosecution evidence is sufficient

to prove the offence punishable under sections 498-A and 306 of

I.P.C. The Trial Court has not committed error in holding that both

the offences are proved by the prosecution.

21. The advocate for the appellant advanced argument

for taking lenient view. He pointed out certain circumstances like

financial crunch. He submitted that accused was working as a

teacher and this appeal is being decided after many years. The

letter of deceased at Exh. 11 and the letter of the accused do

create probability that this family was facing some financial

problem. There is probability that the accused was not getting

Cri. Appeal No. 203/2000

salary from the school. There is mention in the letter Exh. 11 that

the deceased was frustrated and she had expressed that all her

dreams were shattered in to pieces. Thus, there is the possibility

that the financial condition has aggravated the things. In view of

these circumstances, this Court holds that some lenient view can

be taken. The Trial Court has given imprisonment for the period of

five years for the offence punishable under section 306 of I.P.C.

This Court holds that this imprisonment can be reduced to four

years and the other part of the order can be maintained. So the

order.

ORDER

1. The appeal is partly allowed.

2. The judgment and order of Joint District Judge and Additional Sessions Judge, Nanded, delivered in Sessions Case No. 10/1997 is modified for reduction of sentence.

3. The appellant Pratap s/o. Laxman Dhole stands convicted of the offence punishable under section 306 of I.P.C. and he is sentenced to suffer R.I. for four years and to pay fine of

Rs. 1,000/- (Rupees one thousand) and in default of payment of fine, he is to suffer S.I. for six months.

4. He is also convicted of the offence punishable under section 498-A of I.P.C. and he is sentenced to suffer R.I. for one year and to pay fine of Rs. 1,000/- (Rupees one thousand), and in default of payment of fine, he is to suffer S.I. for six months.

Cri. Appeal No. 203/2000

5. Both the substantive sentence is to run concurrently.

6. He is entitled to set off for the period from 11.8.1996 to 20.8.1996.

7. The other part of the operative order is maintained.

8. He is to surrender to bail bond for undergoing sentence immediately.

9. Fees of the advocate appointed is quantified as Rs.

4000/- (Rupees four thousand).

[ T. V. NALAWADE, J. ]

ssc/