Sanjay Nivrutti Sathe vs The State Of Maharashtra
2017 Latest Caselaw 5476 Bom

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO.298 OF 2002

Sanjay s/o Nivrutti Sathe,
Age : 26 years, Occu.: Labour,
R/o.: Jawala (Bk.), 
Tq. and Dist. Latur                                          .. APPELLANT
                                                             (Orig. Accused)
     VERSUS

The State of Maharashtra 
Through the Public Prosecutor                                .. RESPONDENT


                          ----
Mr. B.N. Patil, Advocate for the appellant 
Mr. P.N. Kutti, A.P.P. for the respondent/State 
                          ----


                                       CORAM    : SANGITRAO S. PATIL, J.
                                  RESERVED ON   : 27th JULY, 2017
                                  PRONUNCED ON  : 3rd  AUGUST, 2017

JUDGMENT :

The appellant was prosecuted for the offences

punishable under Sections 498-A and 306 of the Indian

Penal Code ("IPC", for short). The Trial Court, as per

the judgment and order dated 29th April, 2002 passed in

Sessions Case No. 20 of 2001, acquitted him of the

offence punishable under Section 306 of the IPC, but

convicted him for the offence punishable under Section

2 criapl298-2002

498-A of the IPC and sentenced him to suffer rigorous

imprisonment for three years and to pay a fine of

Rs.500/-, in default to suffer rigorous imprisonment

for one month. The appellant paid the fine amount in

the Trial Court. He has challenged his conviction and

sentence for the offence punishable under Section 498-

A of the IPC, by this Appeal.

2. It is the case of the prosecution that the

deceased Savita had married to the appellant prior to

four years of the incident. From this wedlock, she

gave birth to a son namely Suraj, who was aged about

two years, at the time of the incident. The appellant

used to illtreat the deceased - Savita on the ground

that he was not given good garments in the marriage

and even thereafter. He used to consume liquor and

torture her mentally as well physically. On 7th

October, 2000, the appellant and one Pandit Shinde

started consuming liquor in the presence of the

deceased - Savita in the house of the appellant.

Thereafter, both of them went away from the house. The

appellant came back after consuming liquor after some

time and started hurling abuses and beating the

3 criapl298-2002

deceased - Savita. The said beating continued till

11.00 a.m. Being fed up with that illtreatment and

torture, the deceased - Savita poured kerosene on her

person at about 11.15 a.m. and set herself ablaze. She

started running out of the house with flames around

her body. The persons residing in the vicinity

extinguished the fire. She sustained burns to her

neck, chest, abdomen, hands, back etc. Her father-in-

law and mother-in-law took her to the Civil hospital

at Latur in an Auto Rickshaw and admitted her there

for treatment.

3. On the same day, ASI Sonawane of Gandhi Chowk

Police Station, Latur visited the Civil Hospital,

Latur and recorded the statement of the deceased -

Savita at about 3.30 p.m. He treated that statement as

the First Information Report ("F.I.R.", for short) and

on the basis thereof registered Crime No.61 of 2000

against the appellant for the offences punishable

under Sections 498-A, 323 and 504 of the IPC and

started further investigation. After the death of

Savita the said F.I.R. assumed the character of Dying

Declaration.

4 criapl298-2002

4. On being requested by ASI Sonawane, Naib

Tahasildar Dudhale also visited the Civil Hospital,

Latur on 9th October, 2000 at about 11.45 a.m., got it

confirmed from the Medical Officer about the fitness

of the deceased - Savita to give statement and

recorded her statement as to the cause of injuries

sustained by her.

5. The deceased - Savita died on 4 th October,

2000. Inquest panchanama of her dead body was prepared

and postmortem was conducted. The Medical Officer

opined that she died of cardio respiratory arrest due

to septicemia due to 45% superficial and deep burns.

The statements of the parents and sister of the

deceased - Savita also were recorded. After completion

of the investigation, the appellant came to be

chargesheeted for the above mentioned offences.

6. The acquittal of the appellant of the offence

punishable under Section 306 of the IPC has not been

challenged by the prosecution. The judgment and order

passed by the Trial Court, acquitting the appellant of

5 criapl298-2002

that offence, has attained finality. Therefore, it

will have to be seen whether the prosecution

established the guilt of the appellant for the offence

punishable under Section 498-A of the IPC.

7. Section 498-A of the IPC, reads as under:-

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

6 criapl298-2002

8. The prosecution has relied on the dying

declarations (Exh.22 and 20) of the deceased - Savita,

which were recorded by ASI Sonawane (PW8) on 7th

October, 2000 at 3.30 p.m. and Naib Tahasildar Dudhale

(PW2) on 9th October, 2000 between 12.00 noon and 12.30

p.m. ASI Sonawane (PW8) states that when he recorded

the F.I.R./dying declaration (Exh.22) of the deceased

- Savita, he had asked the relatives of the deceased -

Savita to go out of the room where she was admitted.

He then closed the door of that room and recorded the

statement of the deceased - Savita as per her say.

After recording her statement, he read over it to her

and then obtained her thumb impression thereon. There

is nothing in the cross examination of this witness to

indicate that the deceased - Savita was not in a fit

condition to give statement. There is nothing in his

cross examination to indicate that the deceased Savita

was influenced by any of her relatives to narrate the

facts demonstrating the ill-treatment meted out to her

by the appellant. The deceased-Savita had sustained

only 45% burns. She survived till 4 th November, 2000

7 criapl298-2002

i.e. after about 28 days of the occurrence of the

incident. In the circumstances, it cannot be held

that she was not in a fit condition to give a

statement when ASI Sonawane (PW8) recorded her dying

declaration (Exh.22) on 7th October, 2000.

9. In the dying declaration (Exh.22), the

deceased - Savita has specifically mentioned that

after the marriage, the appellant treated her properly

for one year. Thereafter, he started illtreating her

physically and mentally on the ground that he was not

provided good garments in the marriage and even after

the marriage. In respect of the event that took place

on 7th October, 2000, she states that the appellant and

one Pandit Shinde started consuming liquor in her

house and in her presence, at about 8.00 a.m. Both of

them then went away. The appellant came back after

some time after consuming liquor and started hurling

abuses against her and beating her continuously till

11.00 a.m. She then states that because of the

frequent beating and ill-treatment given by the

appellant and because he had beaten her on that day,

she got annoyed, poured kerosene on her person and set

8 criapl298-2002

herself ablaze. She, thereafter, got frightened and

started running out of the house. The persons in the

vicinity extinguished fire. She sustained burn

injuries on her neck, chest, abdomen, both hands and

back. Her in-laws took her to the Civil Hospital at

Latur in an Auto Rickshaw and admitted her there.

Thus, the deceased - Savita specifically alleged that

the appellant was always beating and subjecting her to

cruelty and therefore, she was driven to commit

suicide.

10. Naib Tahasildar Dudhale (PW2) states that on

9th October, 2000, he visited the Civil Hospital at

Latur at about 11.45 a.m., enquired with Dr. Patil

whether the deceased - Savita was in a fit condition

to give statement, whereon Dr. Patil (PW7) examined

her and opined that she was in a fit condition to give

statement. He, therefore, recorded the statement

(Exh.20) of the deceased - Savita as per her say. He

states that the statement of the deceased - Savita was

read over to her and thereafter he obtained her left

big toe impression thereon.

9 criapl298-2002

11. Dr. Patil (PW7) also states that on being

requested by Naib Tahasildar-Dudhale (PW2), he

examined the deceased - Savita and found that she was

conscious and able to give statement. Accordingly, he

made endorsement on Exh.20 prior to recording thereof.

After completion of recording the statement of

deceased - Savita, he again endorsed under his

signature below that statement that she was conscious

and able to give statement.

12. There is absolutely nothing in the cross-

examinations of Naib Tahasildar - Dudhale (PW2) and

Dr. Patil (PW7) to show that the deceased - Savita was

not in a fit condition to give statement when the

dying declaration (Exh.20) was recorded by Dudhale

(PW2). In that dying declaration (Exh.20) also, the

deceased - Savita narrated about the illtreatment

meted out to her by the appellant. She specifically

stated that on the day of the incident i.e. on 7 th

October, 2000, the appellant started beating her right

from the morning under the influence of liquor. Her

in-laws tried to rescue her. However, the appellant

still continued to beat her. She stated that the

10 criapl298-2002

appellant was not paying any heed to his parents

advice. She then states that she got annoyed and in

the heat of anger, she poured kerosene on her person

and set herself ablaze. This dying declaration

(Exh.20) cannot be said to have been given by the

deceased - Savita at the instance of any of her

maternal relations. It is consistent with the dying

declaration (Exh.22) on all material points. Both

these dying declarations have been given by the

deceased - Savita voluntarily without being influenced

by anybody else. They inspire a great confidence. The

learned Trial Judge rightly relied on the dying

declaration (Exh.22). However, he wrongly disbelieved

the dying declaration (Exh.20) recorded by Naib

Tahasildar (PW2). Both these dying declarations

clearly show as to how the appellant was subjecting

the deceased - Savita to physical and mental cruelty.

13. The deceased Savita had a son aged about 2

years at the time of the incident. Being the mother,

she must have great love and affection for him. She

did not even care for her son also and decided to

finish her life. One can imagine how it must have been

11 criapl298-2002

difficult for her to take decision to finish herself

by forgetting her lovely son. It is only because the

cruelty meted out to her by the appellant had become

so unbearable that she was constrained to take such an

extreme decision. The appellant created such

circumstances which left the deceased Savita with no

alternative but to commit suicide. This amounts to

cruelty as explained under Section 498-A of the IPC.

14. The conduct of the appellant after the

incident of burning is worth noting. He did not try to

extinguish fire that was on the person of the deceased

Savita. He did not take her to the Hospital for

treatment. This subsequent conduct speaks about the

cruel attitude of the appellant against the deceased

Savita and shows his guilt.

15. The learned counsel for the appellant submits

that Ayub (DW1) and Pandit (DW2) are the independent

witnesses examined by the appellant in his defence.

The trial Court has wrongly disbelieved their

evidence. I am not inclined to accept this contention.

Both of these witnesses state that the deceased Savita

12 criapl298-2002

was residing happily with the appellant and there was

no dispute between them. However, they made a

contradictory statement to suggest that she was not

happy because, as told to them by the appellant, she

wanted to reside at Latur. Both of these witnesses had

no occasion to hear the deceased Savita insisting upon

the appellant to reside at Latur. Pandit (DW2) is the

same person, who has been named by the deceased -

Savita as the person drinking liquor with the

appellant at his house since morning on the day of the

incident. Both of these witnesses were not present

when the incident of burning took place. They seem to

have deposed in favour of the appellant at his

instance. Their evidence does not inspire confidence.

Their evidence has been rightly disbelieved by the

trial Court.

16. The prosecution relied on the evidence of

Subhash (PW5), Shantabai (PW6), Anita (PW4) (Exh.23),

who are the father, mother and sister respectively of

the deceased - Savita. It has come in their evidence

that the appellant used to beat and illtreat the

deceased-Savita under the influence of liquor and that

13 criapl298-2002

the deceased Savita used to tell them about that

illtreatment whenever she used to meet them. The

evidence of these witnesses corroborates the dying

declarations (Exh.20 and 22). In fact, these witnesses

are not the eye witnesses to the illtreatment meted

out by the appellant to the deceased - Savita. Even if

the evidence of these witnesses is kept out of

consideration, still in view of the dying declarations

of the deceased Savita, which are believable being

made voluntarily, in my view, the prosecution has

established guilt of the appellant beyond reasonable

doubt for the offence punishable under Section 498-A

of the IPC.

17. The prosecution has established that the

appellant subjected the deceased - Savita to cruelty.

The Trial Court has rightly convicted the appellant

for the offence punishable under Section 498-A of the

IPC.

18. The appellant was in the habit of consuming

liquor and beating the deceased-Savita. Because of the

illtreatment meted out to her by the appellant, she

was driven to commit suicide. The result of misdeeds

14 criapl298-2002

of the appellant has been proved to be very fatal. The

son of the appellant is deprived of the love and

affection of his mother. In the circumstances, I am

not inclined to extend the benefit of the Probation of

Offenders Act to the appellant.

19. The incident took place in the year 2000. The

period of about 17 years has been elapsed after the

date of the incident. It has come in the evidence of

Anita (PW4) that the son of the appellant, born from

the deceased - Savita, is residing with him. The

appellant is not a previous convict. The appellant has

deposited the amount of fine in the Trial Court. In

the circumstances, leniency will have to be shown to

him in the matter of punishment. In my view, if the

sentence of rigorous imprisonment of three years

imposed by the Trial Court is reduced to rigorous

imprisonment for one year, it would meet the ends of

justice. Hence, the order:-

O R D E R

(i) The Appeal is partly allowed.

                                        15                      criapl298-2002

(ii)             The   impugned   order   of   conviction   of   the 

appellant for the offence punishable under Section 498-A

of the Indian Penal Code is confirmed.

(iii) The impugned order of sentence of imprisonment

passed against the appellant is modified and the

appellant is sentenced to suffer rigorous imprisonment

of one year.

(iv) The sentence of fine is maintained as it is.

(v) The appellant be given set off for the period

of his detention in respect of the present case.

(vi) The appellant shall surrender to his bail bonds

and appear before the trial Court on or before 10 th

August, 2017 for serving the sentence of imprisonment.

(vii) In case the appellant fails to surrender as

stated above, the Trial Court shall issue coercive

process to secure his presence.

(viii) The Criminal Appeal stands disposed off

accordingly.

Sd/-

[SANGITRAO S. PATIL] JUDGE sam/criapl298-2002