Bombay High Court
Mahadeo Dnyanoba Shinde vs The State Of Maharashtra on 18 May, 2017
Bench: S.S. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL NO. 665 OF 1998
Mahadeo Dnyandoba Shinde ... Appellant
R/o. Village Kathe Manoli, Post
Suchak Naka, Dongri, Taluka: Kalyan.
Dist. Thane.
Vs.
The State of Maharashtra ... Respondent
Mr. S. R. Phanase, Advocate for Appellant.
Mr. S. R. Agarkar APP for the State.
CORAM: SMT. SADHANA S.JADHAV, J.
DATED : MAY 18, 2017.
JUDGMENT:
1) None appears for appellant. This Court had requested Advocate S. R.
Phanase to appear on behalf of appellant. He has graciously accepted to
espouse the cause of the appellant.
2) Appellant herein is convicted for offence punishable under section 498
(A) of the Indian Penal Code and sentenced to suffer rigorous imprisonment
for three years and fine of Rs. 3000/- in default to suffer rigorous
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imprisonment for three months by 5th Additional Sessions Judge, Thane in
Sessions Case No. 566 of 1993 vide Judgment and Order dated 02/06/1998.
Hence, this appeal.
3) Such of the facts necessary for the decision of this appeal are as
follows.
(i) Appellant herein was married to Padminibai on 05/05/1992. That she
was the only earning member in the family as her husband was unemployed.
That on 13/03/1993, Padminibai had sustained burn injuries. She was
admitted n the hospital with history of burns at about mid night.
(ii) On 14/03/1993, statement of injured was recorded by Special Executive
Magistrate Mr. M. Vishwakarma. It is marked at Exhibit 23. She had
disclosed to the Magistrate that her husband was unemployed. He made no
efforts to get employment. She was frustrated and therefore, on 13/03/1993 at
about 8.00 p.m. she poured kerosene on herself and set herself ablaze. In the
process of extinguishing flames, her husband i.e. appellant had also sustained
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burn injuries. The said dying declaration was recorded in the intervening night
of 13/03/1993 and 14/03/1993 at about 01.15 a.m.
(iii) On 14/03/1993, police officer from Kashimira Police Station also
recorded an elaborate statement of the injured. It is marked at Exhibit 28. She
disclosed to the police that she was the only earning member in the family.
That she was married to the appellant on 05/05/1992. There used to
intermittent quarrels between the couple since the appellant was not working.
According to her, her in-laws who were residing at Taluka: Kaij, District :
Beed used to visit them every month and demand golden chain, golden ring
and other valuables from her. Being instigated by them, her husband also used
to demand valuables. According to her, her sister-in-law namely Surekha who
was married to brother of Padminibai used to instigate her husband to assault
her. She has further disclosed to the police that on 13/03/1993 at about 5.00
p.m., she returned home. She told her husband that there was a job of tailoring
at Jogeshwari and that he should report for his job, however, her husband
flatly denied and had informed her that she should get the fixed deposit of Rs.
5000/- which was deposited in her name by her father and also that she should
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get auto-rickshaw of her brother. Padminibai was enraged with the reaction
and she lost her temper, poured kerosene on herself and got immolated. Her
husband had also sustained burn injuries while attempting to save her.
(iv) Needless to say that the case rests on dying declaration of the victim.
The case was committed to the Court of Sessions and registered as Sessions
Case No. 566 of 1993. Prosecution examined 10 witnesses to bring home the
guilt of the accused.
4) Parents of Padminibai have deposed before the Court that their
daughter was harassed by all the accused persons i.e. present appellant and his
parents and that being fed up of the said harassment, she had committed
suicide. The in-laws were also charge-sheeted and tried along with present
appellant. According to the sister of the deceased Padminibai, appellant herein
was annoyed with her as she had not conceived pregnancy within one year.
5) P.W. 1 Satyabhama has admitted in her cross-examination that there
was no specific demand by present appellant. P.W. 2 Vishwanath Raut has
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also reiterated the same.
6) P. W. 8 Sanjay Sangle is the Special Executive Magistrate who has
recorded the dying declaration at Exhibit 23. He has deposed before the Court
that on the requisition of the police, he had been to the hospital to record the
statement of the injured. He has not deposed before the court the contents of
Exhibit 23.
7) The learned counsel appointed for the appellant submits that all that can
be said to be proved is the fact that the statement of the injured was recorded
at 01.00 a.m. On 14/03/1993, whatever she had disclosed has not been
proved. It is also submitted that after the statement was recorded by Special
Executive Magistrate, it was not necessary for the police to record the
statement.
8) As against this, the learned APP vehemently submits that irrespective of
the lacunas in the dying declaration, the fact remains that Padminibai had
committed suicide in her matrimonial home within one year of marriage and
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that she was the only earning member in the family and maintained the family
as well as carried on domestic chores of the family. The learned APP submits
that the very fact that she has disclosed to the Magistrate as well as the police
that she was frustrated due to unemployment of her husband, coupled with the
fact that he was demanding valuables from her parents and had also refused to
go for work is more than sufficient to uphold the conviction of the appellant
under section 498 (A) of the Indian Penal Code.
9) Upon perusal of evidence, it appears that Padminibai was frustrated
with the state of affairs in her matrimonial home. She was, in all probabilities
tired of making both ends meet and also carry on the domestic chores,
coupled with the fact that she was being harassed by her husband and in-laws.
The learned Sessions Judge has rightly acquitted the accused of the offence
punishable under section 306 of the Indian Penal Code as it prima facie
appears that in a fit of rage and frustration, Padminibai had immolated herself.
It could not have been said that the appellant had instigated or abetted the
commission of suicide.
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10) In view of the above discussion, conviction of the appellant for offence
punishable under section 498 (A) of the Indian Penal Code deserves to be
upheld.
11) It appears from the records that appellant was arrested on 14/03/1993
and was enlarged on bail by an order dated 15/05/1993. Investigation was
completed and charge-sheet was filed on 16/06/1993. Appeal is of the year
1998 and it would not be appropriate to uphold the sentence awarded to the
appellant by the learned Additional Sessions Judge and hence, he deserves to
be sentenced to the period already undergone.
12) This Court cannot part with the Judgment without recording
appreciation for the efforts put in by the learned counsel Mr. S. R. Phanase.
The professional fees are quantified as per rules and be paid to the learned
counsel appointed for the appellant within three months from today.
ORDER
(i) Appeal is partly allowed.
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(ii) The conviction and sentence passed vide Judgment and Order dated
02/06/1998 passed by 5th Additional Sessions Judge, Thane in Sessions Case
No. 566 of 1993 is hereby upheld.
(iii) Appellant is sentenced to the period already undergone.
(iv) Sentence of fine is maintained.
(v) Bail bonds of the appellant stand cancelled.
(vi) Appeal stands disposed of.
(SMT. SADHANA S. JADHAV, J.)
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