Naresh S/O Keshaorao Ganar (In ... vs State Of Maharashtra, Thr. P.S.O. ...
2016 Latest Caselaw 5829 Bom

                                                                                    
    Cri.Appeal No.128/2016                         1




                                                           
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                             CRIMINAL APPEAL NO.128 OF 2016




                                                          
    Appellant                :      Naresh s/o Keshaorao Ganar,
                                    Aged about 32 years, Occupation : Labour,
                                    R/o Shekapur (Bai), Tahsil Hinganghat,




                                             
                                    District Wardha.
                                    (Confined at Central Prison, Nagpur)
                               ig   -- Versus --

    Respondent               :      State of Maharashtra, 
                             
                                    through Police Station Officer, 
                                    Police Station Wadner, Tahsil Hinganghat, 
                                    District Wardha.
      

                    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                       Ms. S.B. Saikhede, Advocate for the Appellant.
   



                    Shri C.A. Lokhande, A.P.P. for the Respondent/State.
                    =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                              C ORAM :  S. B. SHUKRE, J.

                             DATE     :  3
                                              OCTOBER, 2016.
                                           rd




    ORAL JUDGMENT :- 

This is an appeal challenging the judgment and order dated

28/08/2015 delivered in Sessions Case No.110/2014 by the learned

Additional Sessions Judge, Wardha.

02] Heard finally by consent. Paper-book is dispensed with.

03] Facts giving rise to this appeal are stated, in brief, thus :

The marriage of the appellant was solemnized with deceased

Jyoti in the year 2009 and after solemnization of the marriage, deceased Jyoti

started cohabiting with the appellant. At the time when the incident

occurred, the appellant and his deceased wife Jyoti were residing at village

Shekapur (Bai), falling within the jurisdiction of Police Station Wadner,

Tahsil Hinganghat, District Wardha. Some time after the marriage, it is

alleged that the appellant started harassing and treating cruelly the deceased

Jyoti by subjecting her to beating under the influence of liquor. It is alleged

that the appellant used to suspect character of the deceased and then under

the influence of liquor, used to beat her. According to the complainant, the

father of the deceased, such kind of cruel treatment of deceased Jyoti had

become a regular feature before she committed suicide.

In the afternoon of 01:00 p.m. of 04/04/2014, when deceased

Jyoti was present in her house, appellant returned to the house and at that

time, he was drunk. As soon as he entered the house, he suspected fidelity of

his wife and hurled abuses at her. This incident proved to be the last straw

in the disturbed relationship between Jyoti and the appellant. It made Jyoti

take extreme step of committing suicide. She went to the kitchen of her

house, poured kerosene oil on her person and set herself afire. Hearing the

shouts of Jyoti, appellant rushed into the kitchen and extinguished the flames

by pouring water on the person of Jyoti. The appellant took her to Rural

Hospital, Wadner. She was admitted there for a temporary period of time.

Her dying declaration was recorded in which deceased Jyoti stated that she

caught a fire in an accident triggered by sudden flare up of the kitchen stove.

Later in the evening, she was shifted to the Government Hospital at Wardha,

where she succumbed to the burn injuries. Before that, her another dying

declaration was recorded by a different police constable in the presence of the

treating Doctor. In the second dying declaration, deceased Jyoti put the

entire blame upon the appellant. It was treated as a complaint and the crime

was registered against the appellant for the offences punishable under

Sections 498-A and 306 of the Indian Penal Code. After completion of the

investigation, charge-sheet was filed against him.

On merits of the case, the learned Additional Sessions Judge

found that the prosecution succeeded in proving beyond reasonable doubt the

offences punishable under Sections 498-A and 306 of the Indian Penal Code,

with which the appellant was charged and accordingly, by the judgment and

order rendered on 28/08/2015, convicted and sentenced the appellant for

these offences by imposing imprisonments for two years and seven years

together with fine amounts of Rs.2,000/- and Rs.5,000/- accompanied by

default sentences of two months and six months respectively. It is the same

judgment and order, which are under challenge in the present appeal.

04] The learned Counsel for the appellant submits that the impugned

judgment and order are perverse and illegal, as they do not take into account

the material inconsistencies between two dying declarations vide Exh.38 and

Exh.33. She further submits that except for the dying declaration vide

Exh.33, there is no evidence brought on record by the prosecution proving the

fact that there was a cruelty of consistent nature thereby creating the

desperate situation for the deceased to commit suicide.

05] The learned A.P.P. for the State supports the impugned judgment

and order. He submits that the first dying declaration vide Exh.38, which

exonerates the appellant, is not supported by the circumstantial evidence

inasmuch as it was recorded in the presence of the appellant. Therefore, he

further submits that the learned Additional Sessions Judge has rightly rejected

the first dying declaration. He also submits that the second dying declaration

has been recorded by PW-5 Suresh Ganpatrao Lakhe by satisfying himself

about the fitness of the deceased to make a statement and his evidence is duly

supported by the evidence of the Medical Officer, PW-1 Dr. Mohan Bhanudas

Sute. He also submits that PW-8 Sheshrao Khandalkar, the complainant, has

deposed about the consistent nature of cruelty in a specific manner and his

cross-examination has not revealed anything against the prosecution.

06] Upon going through the impugned judgment and order and

record of the case, I am of the view that there is great substance in the

argument of the learned A.P.P. for the State and no merit in the argument of

the learned Counsel for the appellant.

07] The evidence of PW-6 Deepak Jaganrao Tumdam, the Head

Constable, who recorded the first dying declaration (Exh.38), shows that

deceased Jyoti was brought to Rural Hospital, Wadner by her husband. This

has not been disputed by the appellant-husband as can be seen from the

cross-examination of PW-6 Deepak Tumdam. In this statement, deceased

Jyoti has stated that she caught fire because there was sudden flare up in the

flame of the stove. According to this statement, the flare up occurred when

she had kept a bowl full of water on the burner of the stove in order to

prepare tea. However, Spot-Panchnama, which is part of Crime Details Form

vide Exh.39, shows the circumstances to be of different nature. No bowl

containing water was found and no stove, which had either burst or of which

flames had flared up, was found. Therefore, a serious doubt arises about the

credibility of the first dying declaration vide Exh.38. There is another aspect

which makes one believe that this dying declaration is not voluntary and

truthful. The requisition slip given to the Medical Officer by Head Constable

PW-6 Deepak Tumdam is at Exh.36. It has been issued by him before taking

down the dying declaration of deceased Jyoti. This requisition slip mentions

the fact that the deceased caught fire when the stove, on which she was

preparing tea, got flared up. It is obvious that PW-6 Deepak Tumdam, the

Head Constable, had already made up his mind even before recording dying

declaration that deceased Jyoti caught fire accidentally. It may have been

done by PW-6 Deepak Tumdam because the appellant was present at that

time. For all these reasons, the first dying declaration vide Exh.38 cannot be

held to be reliable and has been rightly rejected by the learned Additional

Sessions Judge.

08] About the second dying declaration vide Exh.33, I find that it

inspires confidence. It has been recorded in the presence of PW-1 Dr. Mohan

Sute. His evidence shows that he was present all along when the dying

declaration was being recorded. Before starting the recording, PW-8 Dr.

Mohan Sute had satisfied himself about the physical and mental condition of

the deceased. Even after the recording was over, PW-1 Dr. Mohan Sute made

an endorsement below this dying declaration that it was recorded in his

presence. There is nothing in his evidence to entertain any manner of doubt

about the role performed by him. This dying declaration is by and large

consistent with the Panchnama forming part of Crime Details vide Exh.39. It

also receives support from the evidence of PW-1 Sheshrao Khandalkar, the

father of deceased. There is no such material in the cross-examination of PW-

8 Sheshrao Khandalkar, which would enable this Court to reject his evidence

as of untrustworthy nature. He has stated that the appellant used to abuse

and beat deceased Jyoti by raising doubt against her character and that

deceased Jyoti used to inform him of such cruel treatment at the hands of the

appellant over telephone and also personally at times, whenever she used to

visit his house. The learned Sessions Judge has, therefore, rightly held that

the second dying declaration vide Exh.33 as well the evidence of PW-1

Sheshrao Khandalkar inspire confidence and reasonably establish that the

appellant used to subject deceased Jyoti to physical and mental harassment

by beating her as well as suspecting her character.

09] Suspecting character of a married woman is cruelty for her, and

all the more so for a woman like the deceased Jyoti, raised in a society which

treats marriage a sacrament and fidelity a cherished virtue. When it is

recurrent, it amounts to instigation to commit suicide as contemplated under

the law or to be precise under Section 107 of the Indian Penal Code, 1860, as

the married woman finds herself caught between the devil and the deep blue

sea in the sense that on the one hand, doors of her parental home are closed

for her and on the other, her husband is relentless in ill-treating her. In such

a situation, a married woman would think that the only way to relieve herself

of the pain and humiliation is to a resort to the extreme step of putting an end

to her life. This is what has occurred in the present case. Therefore, there is

no reason for me to make any interference with the findings of the guilt of the

appellant for the offences punishable under Sections 498-A and 306 of the

Indian Penal Code recorded by the trial Court.

10] On the question of sentence, the learned Counsel for the

appellant submits that the applicant has no criminal antecedents and he is in

jail since April, 2014, for a period of about 2 years, 5 months or so. She

further submits that when the appellant was arrested, his son was about five

years old and because of his long incarceration in jail, he could not take

proper care of education and developmental needs of his son. She also

submits that the appellant does not know as to how his son is being looked

after by his relatives and having realized his mistake, he is very anxious to

lead a reformed life and contribute to development of his son into a good

human being. On these grounds, the learned Counsel for the appellant seeks

leniency from this Court. The learned A.P.P. for the State submits that

appropriate order in this regard which suits the interest of justice, be passed.

11] I have no reason to reject these entreaties of learned Counsel for

the appellant and I am of the view that this would be a fit case for showing

leniency to the appellant and, therefore, I find that the interest of justice shall

be served if the term imprisonments awarded to the appellant are confined to

the period of detention already undergone by him till today. In the result, the

following order is passed.

i. The appeal is partly allowed.

ii. The conviction of the appellant for the offences punishable

under Sections 498-A and 306 of the Indian Penal Code is

maintained. However, the substantive sentences of term

imprisonments imposed upon the appellant for the offences

punishable under Section 498-A and 306 of the Indian Penal

Code are modified and substituted by the sentences of

imprisonments for both these offences for the terms running

concurrently for such period as is equivalent to the period of

detention already undergone by the appellant, till the date of

this order.

iii. Rest of the impugned judgment and order are confirmed.

iv. The appellant be released accordingly.

JUDGE *sdw

C E R T I F I C A T E

I certify that this judgment uploaded is a true and correct copy of the original signed judgment.

                    Uploaded by: S.D. Waghmare                                      Uploaded on : 07/10/2016
                                            P.A. to the Hon'ble Judge.