Bombay High Court
Chandrabhaga Jagannath More vs The State Of Maharashtra on 11 August, 2015
Bench: V.K. Tahilramani
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.105 OF 2008
Dattatraya Jagannath More, ]
Age : 25 Yrs., Occu.: Labourer, ]
R/o. Laxmi Nagar, Jinti, ] .... Appellant /
Tal. Phaltan, Dist. Satara. ] (Org. Accused No.1)
Versus
The State of Maharashtra, ]
At the instance of Phaltan Taluka ] .... Respondent /
Police Station, Phaltan, Dist. Satara.
ig ] (Org. Complainant)
ALONG WITH
CRIMINAL APPEAL NO.1068 OF 2007
Chandrabhaga Jagannath More, ]
Age : About 60 Yrs., ]
Occu.: Household, ]
R/o. Laxmi Nagar, Jinti, ] .... Appellant /
Tal.: Phaltan, Dist. Satara. ] (Org. Accused No.2)
Versus
The State of Maharashtra, ]
At the instance of Phaltan Taluka ] .... Respondent /
Police Station, Phaltan, Dist. Satara ] (Org. Complainant)
Mr. R.V. Bansode for the Appellant in
both the Appeals.
Mrs. S.S. Kaushik, A.P.P., for the
Respondent/State in both the
Appeals.
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CORAM : SMT. V.K. TAHILRAMANI &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
RESERVED ON : 31ST JULY, 2015
PRONOUNCED ON : 11TH AUGUST, 2015
JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
1. Both these Appeals take an exception to the Judgment
dated 20th September, 2007 of Additional Sessions Judge, Satara
in Sessions Case No.57 of 2007. By the impugned Judgment,
both the Appellants are convicted for the offences punishable
under Sections 498-A and 323 r/w. 34 of the IPC and sentenced
to suffer R.I. for two years and to pay fine of Rs.3,000/- each, in
default to suffer R.I. for three months, on the first count, and R.I.
for three months and to pay fine of Rs.1,000/- each, in default to
suffer further R.I. for one month, on the second count. The
Appellant/husband is further convicted for the offence
punishable under Section 302 of the IPC and sentenced to suffer
imprisonment for life and to pay fine of Rs.10,000/-, in default to
suffer further imprisonment for six months.
2. For the sake of convenience, Appellants are referred to as
"Accused No.1 and Accused No.2".
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3. Facts
, as are necessary, for deciding these Appeals can be
stated as follows :-
Deceased Jyoti, the daughter of PW-4 Kamal Suryawanshi,
was married with Accused No.1 about four years prior to the
incident. Accused No.2 is the mother of Accused No.1. After the
marriage, she was residing jointly along with Accused Nos.1 and
2. She had two children out of the said wedlock and at the time
of incident, on 2nd June, 2006, she was four months pregnant.
Her marital life was, however, not happy. From time to time, she
had complained about the demand of Rs.5,000/- and Ganthan
made by Accused No.1 to her and also the beating and physical
torture on that count. Just few days before the incident, she was
staying in the house of her mother for two - three months on
account of the said ill-treatment. Her husband, at that time, was
demanding Rs.10,000/- for getting the employment. When her
mother assured to give the said amount after two months, her
husband took Jyoti to his house. However, on 2 nd June, 2006, her
mother received the message that Jyoti was burnt and admitted
in Rural Hospital at Phaltan. When she went there to meet Jyoti,
she found burn injuries on her face, hand and chest. On enquiry,
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Jyoti told her that her husband and her mother-in-law beat her
for whole night and in the morning, her husband poured
kerosene on her and set her ablaze.
4. Meanwhile, on the receipt of requisition from Satara City
Police Station, PW-1 Shivaji Nalawade, Special Judicial
Magistrate, recorded the Dying Declaration of Jyoti vide Exhibit-
19, in which Jyoti reiterated whatever she has told to her mother.
PW-9 API Ramdas Taware of Phaltan Police Station also went to
Civil Hospital, Satara, on 4th June, 2006 and recorded the
statement of Jyoti, implicating, both, her husband and mother-in-
law, for the cause of her death. The said statement (Exhibit-36)
was treated as F.I.R. and PW-9 API Taware registered C.R. No.177
of 2006 on the said F.I.R. against Accused Nos.1 and 2 for the
offences punishable under Sections 302, 498-A, 323 and 504 r/w.
34 of the IPC.
5. Further investigation of the case was taken over by PW-11
PSI Ranjit Sawant. He took the search of the Accused and
arrested them on 14th June, 2006. On 10th July, 2006, he recorded
further statement of Jyoti (Exhibit-34) in the hospital. Jyoti
succumbed to the burn injuries in the course of medical
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treatment at hospital on 15th July, 2006. After the Inquest
Panchanama (Exhibit-24), her dead body was sent for
postmortem examination. The cause of her death was found to
be "52% superficial to deep burn injuries". The Postmortem
Report (Exhibit-25) was obtained accordingly. The statements of
witnesses were recorded. The seized muddemal articles from the
spot of incident, like, the plastic kerosene can and match box,
were sent to Chemical Analyzer vide requisition letter (Exhibit-
39). The C.A. Report is produced at Exhibit-43. Further to
completion of investigation, Charge-Sheet came to be filed in the
Court against both the Accused.
6. On committal of the case to the Sessions Court, the Trial
Court framed charge against the Accused vide Exhibit-9. The
Accused pleaded not guilty and claimed trial.
7. In support of its case, the prosecution examined in all 12
witnesses and on appreciation of their evidence, the Trial Court
was pleased to convict and sentence Accused Nos.1 and 2, as
aforesaid.
8. This Judgment of the Trial Court is challenged in these
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Appeals by learned Counsel for the Appellants submitting that
though the entire case of the prosecution is based on the
evidence of Dying Declarations alone, these multiple Dying
Declarations are not consistent with one another and as a result
thereof, the prosecution case cannot be said to have been
proved beyond reasonable doubt. According to learned Counsel
for the Accused, the allegations as to demand and ill-treatment
are general, vague and omnibus in nature. No specific instances
of the harassment and ill-treatment have been given. In view
thereof, according to him, the Trial Court has committed an error
in convicting the Appellants, as aforesaid.
9. Per contra, learned A.P.P. has supported the Judgment of
the Trial Court by submitting that though there are multiple
Dying Declarations, all of them are consistent as to substratum
of the case. They unerringly attribute the cause of burn injuries
to Accused No.1 by pouring kerosene on Jyoti and setting her on
fire. The evidence of PW-4 Kamal, Jyoti's mother, and other
relatives also goes to prove that Jyoti was since beginning
subjected to, both, physical and mental torture in order to coerce
her to meet the unlawful demands of Accused persons.
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Therefore, according to learned A.P.P., the Trial Court has rightly
convicted and sentenced the Appellants. These Appeals, in
opinion of learned A.P.P., hold no substance.
10. As aforesaid, this case stands on the evidence of Dying
Declarations. There are in all three written Dying Declarations.
First in time is (Exhibit-19) recorded by PW-1 Shivaji Nalawade,
Special Judicial Magistrate. The second Dying Declaration
(Exhibit-36) is recorded by PW-9 API Ramdas Taware in the form
of F.I.R. In addition thereto, there is one more Dying Declaration
(Exhibit-34) recorded by PW-11 PSI Sawant on 10th July, 2006.
There are also oral Dying Declarations made by deceased Jyoti
before her mother PW-4 Kamal, her maternal uncle PW-5
Janardan Shinde, her sister PW-6 Aarati and her aunt PW-7
Suvarna Joshi. The evidence relating to Dying Declaration is also
supported and corroborated with the oral evidence of her mother
and other relatives as to the demand of Rs.5,000/- and ill-
treatment meted out to Jyoti during her life-time.
11. As per facts on record, as deposed by her mother, marriage
of Jyoti with Accused No.1 was performed about four years prior
to the incident and since marriage, she was residing jointly along
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with her husband and mother-in-law. Though she had two
children out of the wedlock and she was carrying pregnancy of
four months for the third time, her marital life was not at all
happy or smooth. From time to time, she was driven out of the
house after beating and harassment, to coerce her to meet the
unlawful demands of the Accused. Initially, the Accused were
demanding Rs.5,000/- and Ganthan and thereafter Rs.10,000/-
for securing employment to Accused No.1. Resultantly, on
several occasions, after the harassment, being driven out of the
house, Jyoti had to come and stay in the house of her mother.
Ultimately, when her mother assured Accused No.1 that she
would make some arrangement for satisfying the demand, she
was accepted in the house of the Accused. But thereafter, her
mother got the message of Jyoti sustaining the burns and being
admitted in the hospital, where, on enquiries, Jyoti told her that
Accused Nos.1 and 2 beat her for whole night and then set her
on fire by pouring kerosene on her.
12. There is also corroborating evidence of PW-5 Janardan,
Jyoti's maternal uncle, who has deposed that four months after
the marriage, Jyoti was sent by her husband to parent's house
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with a demand of money and gold ornaments and for satisfying
these demands, Accused were beating and harassing her. This
witness acted as a Mediator and tried to convince Accused Nos.1
and 2 to behave properly with Jyoti and left Jyoti in their house,
but thereafter also, her harassment and demands of the Accused
continued. As per evidence of this witness, Accused No.1 had
come to his house and demanded Rs.10,000/- for securing
employment in the Port Trust. As there was Fixed Deposit Receipt
of Rs.5,000/- in the name of Jyoti, he somehow assured Accused
No.1 that the said amount will be paid after the maturity of the
Fixed Deposit Receipt. With this assurance, Jyoti was sent to the
house of the Accused. However, thereafter he received the
phone call that Jyoti has sustained the burn injuries and admitted
in the hospital. When he went there and made enquiries with
her, Jyoti told him that there were quarrels in the house. In the
morning her husband beat her by wooden stick and then poured
kerosene on her and set her on fire. Thereafter her husband,
Accused No.1, and Accused No.2 went out of the house. Then, at
the instance of the neighbours, Accused No.1 extinguished her
fire by pouring water and brought her to the hospital.
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13. Lastly, there is evidence of real sister of Jyoti, PW-6 Aarati
and PW-7 Suvarna, her maternal aunt, who have also deposed
about the demands and harassment to Jyoti, initially, for the
purpose of Ganthan and thereafter for cash amount of
Rs.10,000/-. Jyoti has informed to them also about this
harassment and beating. When, after the message, they went to
meet Jyoti in the hospital, there also Jyoti told them that it was
Accused No.1, who has poured kerosene on her and set her
ablaze.
14. In cross-examination of these witnesses, it is true that,
Defence Counsel has succeeded in eliciting some inconsistencies
or discrepancies, but, in our considered opinion, they do not
affect the core of their testimony as to the demands and
harassment mated out by Accused Nos.1 and 2 to Jyoti. Instead
of making their evidence suspect in any way, these
discrepancies act as inbuilt guarantee of their truthfulness.
Considering that marital life of Jyoti was about four to five years
and there were several instances of the cruelty meted out to her
and also of the unlawful demands, it is but natural that the
evidence of witnesses cannot be a parrot like version. To brush
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aside the evidence of these witnesses on the ground that the
allegations are of general and omnibus nature, is to adopt totally
an unrealistic and insensitive approach to the plight of a married
woman who is at the mercy of her husband and in-laws and
whose married life consists not of one or two isolated instances
of cruelty but is of constant cruelty. In our considered opinion,
therefore, the evidence of these witnesses is more than sufficient
to prove the cruelty and harassment, which was meted out to
Jyoti at the hands of Accused Nos.1 and 2, so as to prove the
charge under Section 498-A r/w. 34 of the IPC.
15. Now coming to the evidence relating to Dying Declaration,
the evidence of PW-1 Shivaji Nalawade, Special Judicial
Magistrate, goes to prove that on 3 rd June, 2006, he received
requisition (Exhibit-18) at 11:45 pm for recording Dying
Declaration of Jyoti. Hence, on the next day, he went to Civil
Hospital, Satara and after verifying from the Doctor, who was on
duty, as to whether Jyoti was in a condition to give the
statement, he has recorded her statement. He has deposed that
Doctor was present there and confirmed that she was in a
condition to give the statement. At the time of recording the
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statement, except for the Doctor, no one else was present near
Jyoti. He explained to Jyoti that he was a Special Judicial
Magistrate and asked her question as to how it happened. Then
whatever she has stated before him, he has recorded it in writing
as per her narration. As she was unable to sign due to burn
injuries, he obtained her thumb impression at the foot of the
statement. He himself signed on it and then handed over the
original statement to Chief Judicial Magistrate, Satara. The said
Dying Declaration is at Exhibit-19.
16. In this Dying Declaration (Exhibit-19), Jyoti has stated that,
on the previous night, her husband has told her to get up at 5
am. When she asked him for what purpose, her husband gave
her two slaps. Then on the next day, in the morning, her
husband again picked-up a quarrel with her and severely
assaulted her with stick. When she shouted, he again slapped
her. Then he picked-up the kerosene can, poured kerosene on
her and set her ablaze with match stick. When she shouted, her
husband and mother-in-law went out of the house. The persons
nearby shouted that she was ablaze. Then her husband returned
to the house and poured water on her. Both, her husband and
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her mother-in-law, gave her abuses and threatened her not to
disclose the true facts. She has further stated that her husband
and mother-in-law were always harassing her and beating her
like they were beating to dog.
17. There is absolutely no cross-examination of PW-1 Shivaji
Nalawade, Special Judicial Magistrate, to challenge his evidence
in any way. The only infirmity brought out in his cross-
examination is that there is no endorsement of the Doctor on the
Dying Declaration (Exhibit-19) that Jyoti was in a physically and
mentally fit state to give the statement. In our considered
opinion, absence of such endorsement does not constitute a
lacunae in Dying Declaration, because his evidence that Doctor
was present and he confirmed from the Doctor that she was in a
position to give the statement, is not at all shattered in the
cross-examination.
18. Moreover, the evidence on record proves that the burn
injuries sustained by Jyoti were only 52% and she has survived
thereafter for more than one and a half month. Therefore, it is
not the case that she had sustained 100% burns and, therefore,
her condition can be said to be critical so as to disbelieve the
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Dying Declaration merely because it does not bear the
endorsement of a Doctor.
19. There is also one more Dying Declaration of Jyoti recorded
by PW-9 API Ramdas Taware on 4 th June, 2006. As per his
evidence also, he met the Doctor, who was present in the Burn
Patients' Ward, and confirmed that Jyoti was in a position to give
the statement. Doctor opined that she was conscious and
oriented to give the
ig statement. Doctor also made an
endorsement to that effect on the said statement and then, in
the presence of the Doctor, he recorded the statement of Jyoti,
as narrated by her. He read over the said statement to her in
order to verify whether it is recorded as per her narration. She
admitted it to be correct and then he obtained her thumb
impression at the foot of the statement and signed below it.
20. This statement (Exhibit-36), which is subsequently treated
as F.I.R., clearly bears the endorsement of the Doctor that she
was conscious and oriented to give the statement. This
statement reveals that she was subjected to harassment and ill-
treatment by her husband and mother-in-law since three months
after the marriage. The demand was of Rs.5,000/- initially. They
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were abusing and beating her. On 1st June, 2006, her husband
beat her and when she got up in the morning on 2 nd June, 2006,
he again beat her by stick, asking as to why she did not get up
early in the morning. Then he poured kerosene on her and set
her on fire. He went out of the house, but, at the instance of
neighbours, he again returned and extinguished her fire.
Thereafter, she was taken to the hospital.
21. This statement (Exhibit-36) thus completely supports and
corroborates the Dying Declaration (Exhibit-19) as to the core
substance.
22. There is one more Dying Declaration of Jyoti recorded by
PW-11 PSI Ranjit Sawant on 10th July, 2006 i.e. few days before
her death on 15th July, 2006. In this statement (Exhibit-34) also,
which was recorded in the presence of PW-8 Dr. Jeevan Lahoti,
Jyoti has attributed the cause of her burn injuries to her husband.
PW-8 Dr. Lahoti has proved recording of this Dying Declaration by
PW-11 PSI Sawant and also proved that at the relevant time, Jyoti
was conscious and well oriented to give the statement.
23. Further, there is evidence relating to oral Dying
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Declarations of Jyoti before her mother PW-4 Kamal, her
maternal uncle PW-5 Janardan, her sister PW-6 Aarati and her
maternal aunt PW-7 Suvarna.
24. In this case, therefore, though there are multiple Dying
Declarations, all of them are consistent with one another as to
the inculpatory act attributed to Accused No.1 of pouring
kerosene on her and setting her ablaze. Since the time of
incident till the last, Jyoti was consistent about the cause of her
burns. These Dying Declarations are also thoroughly consistent
as to the harassment and ill-treatment in her marital life and also
as to the beating with stick on the night before and on the day of
incident. We have, therefore, absolutely no hesitation to place
implicit reliance on these Dying Declarations to prove the guilt of
Accused Nos.1 and 2 for the offence punishable under Section
498-A r/w. 34 of the IPC and of guilt of Accused No.1 for the
offence punishable under Section 302 of the IPC.
25. If at all any corroboration is required, then there is also
corroborating evidence of the Inquest Panchanama (Exhibit-24)
and the Postmortem Report (Exhibit-25), which are admitted in
evidence by learned Counsel for the Accused, and they go to
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prove that the cause of Jyoti's death was "52% superficial to
deep burns". The Accused have also not set out any case of
accidental burns. No such suggestions have been given to any of
the witnesses. The presence of burn injuries on the back and
lower limbs also goes to prove the case of homicidal burns. The
Spot Panchanama (Exhibit-23), proved through the evidence of
PW-2 Panch Shamrao Aadagale, and the C.A. Report (Exhibit-43)
goes to further prove that the burn injuries were caused to Jyoti
by pouring kerosene from the can.
26. Thus, prosecution case, taken as a whole, leaves no
manner of doubt about the complicity of Accused Nos.1 and 2.
The entire evidence brought on record points to the guilt of
Accused No.1 alone for the offence punishable under Section 302
of the IPC and of Accused Nos.1 and 2 for the offences
punishable under Sections 498-A and 323 r/w. 34 of the IPC.
Hence, as regards the Appeal preferred by Accused No.1, Jyoti's
husband, we find no reason at all to make any interference
therein. Hence, it deserves to be dismissed.
27. As regards the Appeal preferred by Accused No.2, the
mother-in-law of Jyoti, she is held guilty only for the offences
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punishable under Sections 498-A and 323 r/w. 34 of the IPC. The
maximum sentence imposed on her is of R.I. for two years. The
impugned Judgment of the Trial Court reveals that she was in Jail
for four months from 14th June, 2006 to 13th October, 2006. After
conviction, she was again in Jail from 20 th September, 2007 to
21st February, 2008. Therefore, the total period of imprisonment
already undergone by her is of nine months. Hence, considering
that the incident had taken place in the year 2006 and at the
relevant time also, she was of the age of 45 years, the
submission advanced by learned Counsel for the Appellants that
punishment already undergone by her be considered sufficient,
deserves to be accepted. Hence, the order.
"O R D E R"
(1) Criminal Appeal No.105 of 2008 preferred by
Appellant No.1 / husband - Dattatraya
Jagannath More stands dismissed.
(2) Criminal Appeal No.1068 of 2007 preferred
by Appellant No.2 / mother-in-law -
Chandrabhaga Jagannath More is allowed
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partly. Her conviction for the offences
punishable under Sections 498-A and 323
r/w. 34 of the IPC is maintained. Sentence of
imprisonment imposed on her by the Trial
Court is, however, modified to the period of
imprisonment already undergone in Jail. Fine
amount and the default sentence, as
imposed by the Trial Court, is, however,
maintained. Her Bail Bonds stand cancelled.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [SMT. V.K. TAHILRAMANI, J.]
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