Bombay High Court

Sou.Shantabai W/O Supada Bochare vs State Of ... on 23 August, 2017

Bench: R. B. Deo

 apeal219.02.J.odt                         1




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

                     CRIMINAL APPEAL NO.219 OF 2002

          Sou. Shantabai w/o Supada Bochare,
          Aged about 67 yrs., Occ: Nil,
          R/o Rohana, Tq. Khamgaon,
          Dist. Buldana, P.s. Khamgaon Rural. ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra through
          Police Station Officer,
          Police Station Klamgaon Rural,
          Tq. Khamgaon, Dist. Buldana.                       ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          None for Appellant.
          Shri H.R. Dhumale, APP for Respondent/State.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J.

          DATE:                rd
                            23    AUGUST, 2017.


 ORAL JUDGMENT



 1]               The appellant seeks to assail the judgment and order

dated 08.01.2002 delivered by the 1 st Ad hoc Additional Sessions

Judge, Khamgaon in Sessions Case 74/1997, by and under which,

the appellant is convicted for offence punishable under section

498-A and 306 of the Indian Penal Code and is sentenced to suffer

rigorous imprisonment for three months and to additionally pay a

fine of Rs.5000/- for both the offences. The substantive sentence

in both the offences is directed to run concurrently.

2] None appears on behalf of the appellant. With the

able assistance of Shri H.R. Dhumale, the learned Additional

Public Prosecutor, I have given my anxious consideration to the

record and the reasoning of the learned Sessions Judge as is

discernible from the judgment impugned.

3] The learned Additional Public Prosecutor, in all

fairness, would urge that the case of the prosecution hinges only

on the dying declaration Exh.30. The learned Additional Public

Prosecutor fairly invites the attention of this Court to the fact that

every material witness examined on behalf of the prosecution has

turned hostile. The 13 year old son (P.W.1) of the deceased, the

brother of the deceased (P.W.2) and P.W.3 and P.W.4 (neighbours

of the deceased), have not supported the prosecution. Nothing is

brought out in the cross-examination of the aforesaid four

witnesses to assist the prosecution. The son of the deceased, who

was aged 13 when the evidence was recorded, categorically states

in the examination-in-chief that his mother was preparing tea and

accidentally her sari caught fire. The version of P.W.2-Ganesh

Shankar Ingle who is the brother of the deceased is that his sister

did not have any grievance nor did she make any complaint about

her parent-in-law. In the examination-in-chief, Ganesh Shankar

Ingle-P.W.2 states that when he visited the Government Hospital,

Khamgaon to meet deceased, he was told by the deceased that she

suffered burn injuries while preparing tea. Subhadrabai w/o

Laxman Wavage and Dnyandev Dattu Rothe, who are examined as

P.W.3 and P.W.4 assert that the relationship between the

deceased and the accused was cordial, and that the deceased was

seen by them running from her house while burning. P.W.4

further states that he and Subhadrabai (P.W.3) doused the fire

with water.

4] The learned Additional Public Prosecutor is absolutely

right in stating that the entire prosecution case is, under the

circumstances, entirely based on the dying declaration. The dying

declaration Exh.30 is recorded by Mr. Dattatray Aatmaram Joshi,

the Executive Magistrate who is examined as P.W.6. It is

axiomatic that the contents of the dying declaration are at

variance with the testimony of P.W.1 and P.W.2, the son and

brother respectively, of the deceased. The learned Public

Prosecutor would however, urge that the prosecution has proved

that the deceased was in a fit state of mind to give her statement

and that the precaution which are required to be taken while

recording a dying declaration, which are at inter alia, mandated

by the judgment of the Hon'ble Supreme Court in (2007) 11 SCC

269 Shaikh Bakshu and others vs. State of Maharashtra, have been

taken. He would invite my attention to the fact that P.W.6, the

Executive Magistrate who recorded the dying declaration, has

proved that the contents of the dying declaration were read out to

the injured and were admitted by her to have been correctly

recorded. The learned A.P.P. would further emphasis that the

Medical Officer certified that the injured was in a fit condition to

record the dying declaration and that post recording, the Doctor

has certified that the patient was conscious during the recording

of the dying declaration. I am inclined to agree with the

submission of Shri Dhumale, the learned A.P.P. that the

prosecution has proved that the injured was in a fit condition to

record the dying declaration.

5] However, notwithstanding that the prosecution has

duly proved that the injured was in a fit condition to record the

dying declaration; two more questions will have to be answered.

The first question is whether a dying declaration which is

manifestly inconsistent with the oral testimony of two witnesses

who are the son and the brother of the deceased, should be made

the sole basis for depriving the accused of her liberty. The second

question is, even if it is assumed arguendo, that the dying

declaration needs to be believed and accepted, do the conduct and

the words attributed to the accused, establish that the accused

instigated the deceased to commit suicide. I am not inclined to

hold that the conviction can be solely based on the dying

declaration Exh.30 in the teeth of the evidence on record, and

particularly the testimonies of the son and brother (P.W.1 and

P.W.2) which is that the deceased did not have any grievance as

regards the behaviour or conduct of the accused, and that the sari

of the deceased caught fire when she was preparing tea.

Even de hors the evidence on record which is suggestive of an

accidental death, even if the contents of the dying declaration are

taken at face value, I am not persuaded to hold that incitement by

the deceased within the meaning of section 107 and 306 of the

Indian Penal Code is made out. The dying declaration contains a

general allegation that after the death of the husband of the

deceased, the accused used to quarrel with the deceased, the

father-in-law used to maintain silence, the deceased was asked to

go to her parent house and leave the two children behind.

It would be apposite to refer to the relevant observations in the

judgment of the Hon'ble Supreme Court in Sanju alias Sanjay

Singh Sengar vs. State of Madhya Pradesh AIR 2002 SC 1998 which

read thus:

13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25 th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27 th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive

language uttered by the appellant on 25 th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25 th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below.

In the teeth of the evidence on record, it would not be permissible

to record a finding that the accused had mens rea and the

necessary intent to instigate or push the deceased to take the

extreme step.

6] The conviction for offence punishable under section

498-A of the Indian Penal Code is equally bad in law.

The prosecution has not established the sine quo none for bringing

home the charge under section 498-A of the Indian Penal Code.

The cruelty envisaged by explanation (a)(b) of 498-A of the

Indian Penal Code is not necessarily the cruelty which the

prosecution has to prove to establish a matrimonial offence.

Even if the contents of the dying declaration are taken at face

value, the ingredient of section 498-A of the I.P.C., are not

established. Section 498-A reads thus:

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.

7] It is axiomatic, that the cruelty as is defined under

explanation (a)(b) would not be established even if the contents

of the dying declaration are taken at face value.

8] The distance between suspicion and proof has to be

covered by unimpeachable and cogent evidence.

Suspicion, howsoever strong cannot be a substitute for proof. I am

satisfied that in the light of the material on record, it would be

extremely unsafe and hazardous to convict the accused solely on

the basis of the dying declaration. The prosecution has not proved

the offence under 498-A and 306 of the I.P.C. beyond reasonable

doubt.

9] I would set aside the judgment and order impugned