Shamrao And Ors vs State Of Maharashtra

V.M. Deshpande, J

By this appeal, the appellants are challenging judgment and order passed by learned Ad hoc Additional Sessions Judge, Akola dated 09.11.2006 in

Sessions Trial No.31/2006, by which the appellants stand convicted for the offence punishable under Section 498ÂA and 306 read with Section 34 of

the Indian Penal Code (IPC). Their punishment for their respective conviction is two years and five years and payment of fine of Rs.100/Â and

Rs.200/Â​ for the said conviction.

Heard Mr. A. S. Thotange, learned counsel for the appellants and Mr. P. S. Tembhare, learned A.P.P. for the State. I have also gone through the

record and proceedings and proved the documents, especially three dying declarations of deceased Sunita, with the assistance of both the learned

counsel.

It is the submission of learned counsel for the appellants that it would be unfair to record a finding of guilt against the appellants only on the basis of

dying declarations. He submitted that close relatives of the deceased Sunita did not support the prosecution that at no point of time before deceased

was subjected to cruelty at the hands of appellants. He submitted that there was every possibility of Sunita being in hallucinations at the time of

recording her dying declaration. He submitted that there is no evidence to show that at any point of time, the appellants' intention was that the

deceased should commit suicide. He relied on decision of this Court in Shripad Arjun Kamat Vs. State of Goa; reported in 2002 ALL MR (Cri) 1055,

Mahendra Singh and anr. Vs. State of M.P., reported in 1995 Supp (3) SCC 731 and Laxman Vs. State Maharashtra, reported in AIR 2002 SC 297,3

to buttress his submissions. It is also his submission that appellant no.1 is aged about 80 years and appellant no.2 is aged about 72 years. He, therefore,

submitted that in the light of that some respite in the quantum of punishment be given.

Per contra, Mr. Tembhre, learned A.P.P. would submit that the dying declarations clearly cull out the ill treatment to the deceased, resulting into

taking the extreme step of life by her. He, therefore, submitted that the appeal be dismissed.

The facts of the case are summarised as under:

(a) The appellants are fatherÂ​inÂ​law and motherÂ​inÂ​ law of deceased Sunita. Her marriage was solemnized with Rameshwar on 12.05.2005.

(b) The incident of burning took place on 06.10.2005, which is after five months of her marriage. The incident of burning occurred in matrimonial

house of the deceased, as it could be seen from spot panchanama (Exh.Â39). Post mortem report (Exh.Â45), shows that cause of death is shock and

septicemia due to burn injuries. Post mortem report was admitted by the appellants during the course of trial. These facts are not at all disputed.

(c) Pratap Ramrao Khokale (PW5), on 06.10.2005 was discharging his duties as Police Sub Inspector at Civil Lines, Akola. On the said day, PI Patil

received an information that at Zilla Parishad Colony, Khadki, Akola one woman is burnt in the house of Kherdekar. Therefore, PSI Khokale (PW5)

along with his staff, went to the spot. There he found a woman in burnt condition. Therefore, firstly, with the help of his staff, he sent the said woman

to Civil Hospital, Akola. Further, he prepared spot panchanama (Exh.Â39) in presence of panchas. He seized burnt pieces of saree, chimni, some

clothes smelling of kerosene from the spot of incident. Thereafter, he proceeded to Civil Hospital, Akola and recorded statement of said burnt woman

who was identified as Sunita Rameshwar alias Sanjay Kherdekar. Before recording her statement, PSI Khokale (PW5) issued requisition letter

(Exh.Â50) to the Medical Officer to ascertain as to whether the patient was in a fit condition to give her statement. As per the evidence of Dr. Abhay

Patil (PW7), on 06.10.2005, police came to the hospital for recording statement of Sunita and at that time, after examining Sunita, he gave a certificate

that she was conscious, well oriented and was fit to give her statement. He, as per the evidence of Dr. Patil, gave certificate on the requisition

(Exh.Â​50) itself.

(d) Armed with certificate from Dr. Patil (PW7), PSI Khokale (PW5) proceeded with to record statement of Sunita. In her statement, she revealed

that her marriage was solemnized with Rameshwar on 12.05.2005. However, her husband is somewhat mentally unsound. Her father in law,

Shyamrao was driver in Zilla Parishad, Akola prior to his retirement. She further states that from the time of marriage itself her father in law and her

mother in law were insisting that she should conceive through her father in law. She states in her statement that due to the said, she was undergoing a

stress. On the said issue, she was beaten within 4Â​5 days of her marriage by her father in law. She had stated that her parents are very poor and they

are residents of Pangari. It is also stated in the statement that since 4Â5 days, her father in law went to village of her sister in law. From some days,

her mother in law is not providing any food to her. She also stated in her statement recorded by PSI Khokale that as her husband was mentally

unsound, she could not tell anything to him. It is further stated that at 7.00 O'clock on the day of incident, she poured kerosene on herself and set her

ablaze. She states that she committed suicide only because of harassment at the hands of her father in law and mother in law. The statement recorded

by PSI Khokale is on record at Exh.Â​48.

(e) After recording statement (ExhÂ48), PSI Khokale came to police station and registered an offence against the appellants vide Crime

No.763/2005. The printed FIR is at Exh.Â​49.

(f) The investigation of case diary of Crime No.763/2005 was handed over to PSI Wasudeo Ambhore (PW6). He went to Civil Hospital on

07.10.2005 and recorded her statement (Exh.Â​51Â​A) as per her narration.

(g) On 10.10.2005, PSI Ambhore (PW6) received occurrence report from hospital about death of Sunita. Accordingly, he made entry in that behalf in

station diary. He, thereafter, went to mortuary and performed inquest in presence of panchas and recorded inquest panchanama (Exh. 43). He

thereafter sent the dead body for its post mortem. He also recorded statements of parents of deceased and relatives of deceased on 11.10.2005. He

sent muddemal property to Chemical Analyser (CA), Nagpur and obtained CA report (Exh.Â24) and after completion of investigation, filed chargeÂ‐

sheet.

(h) After the case was committed to the Court of Sessions, it was registered as Sessions Case No.31/2006 and the learned 2nd Ad hoc Additional

Sessions Judge, Akola framed charge against the appellant for an offence punishable under Sections 498ÂA, 306 read with Section 34 of the IPC.

They abjured their guilt and claimed for their trial. In order to prove its case, the prosecution has examined in all seven witnesses. After appreciation

of prosecution case, the Court convicted both the appellants.

Kamal Kharat (PW2) and Eknath Kharat (PW3) Gulabrao (PW4) are mother and uncles of deceased Sunita. They have turned hostile and did not

support the prosecution at all. According to these witnesses, though after marriage she had come to her parental house and she did not disclose

anything about any trouble to her, since they resiled from their earlier police statements, they were declared hostile. Portions marked were brought to

their notice during their crossÂexamination by the learned A.P.P. However, they could not furnish any explanation as to why portions marked are

appearing in their statements. The contradiction is duly proved by PSI Ambhore, the investigating officer.

There is no eye witness account and all the three close relatives of the deceased are turning hostile. Therefore, the entire case of the prosecution

revolves around three dying declarations recorded by police and Naib Tahsildar during the lifetime of Sunita from the date of her admission i.e. on

06.10.2005.

First dying declaration (Exh.Â48) was recorded by PSI Khokale on 06.10.2005 at 8.40 p.m. Second dying declaration was recorded by Pralhad

Gedam (PW2), a Naib Tahsildar. This dying declaration (Exh.Â33) was recorded on 06.10.2005 at 11.05 p.m. And third dying declaration (Exh.Â‐

51Â​A) is recorded by PSI Ambhore on 07.10.2005.

I would like to first examine the admissibility of third dying declaration, which was recorded by PSI Ambhore (PW6) on 07.10.2005.

As per the evidence of PSI Ambhore, after investigation was entrusted in his hand on 07.10.2005, he went to Civil Hospital, Akola where Sunita

was admitted. According to his evidence, she stated before him that her marriage was performed with son of appellant on 12.05.2005. Her husband is

mentally unsound and therefore both the accused persons were ill treating her and were asking her to get herself pregnant through appellant no.1. She

also stated that on 2Â3 occasions, appellant no.1 sat on her cot and demanded sexual pleasure from her, which she opposed. Similarly, her mother in

law was always insisting to have a child from her father in law. According to the evidence of PSI Ambhore, due to this, she did state before him that

she set herself ablaze.

Admittedly, before recording statement (Exh.Â51ÂA), scribe PSI Ambhore did not ascertain the fitness certificate from the doctor. Merely

because fitness certificate from the Doctor is not obtained, that by itself is not sufficient to discard the said statement, had the scribe himself was

personally satisfied about fitness of the declarant. The law settled on that aspect by the Constitution Bench of the Hon'ble Apex Court in Laxman vs.

State of Maharashtra, (supra). However, from the entire evidence, it is clear that he is silent that though he did not ascertain about the fitness from the

doctor before recording statement of Sunita, he himself was satisfied about fitness of Sunita and he was satisfied that Sunita was in a position to give

her statement. In view of this fact, there is no hesitation in my mind to record a finding that dying declaration (Exh.Â51ÂA) is of no use to the

prosecution. Consequently, said dying declaration is required to be kept aside.

If the dying declaration is found by the Court to be true, the conviction of the accused could be based without the Court seeking corroboration to

the dying declaration; is the trite law. Therefore, let us examine whether other two dying declarations can be admitted in evidence and whether those

can be relied upon to record conviction.

First dying declaration (Exh.Â48) is recorded on 06.10.2005 itself. As per evidence of PSI Khokale (PW5), after getting information about the

burning incident, he along with his staff went to the spot of occurrence, which is residential house of the appellant. There he found Sunita lying in burnt

condition.

Therefore, in my view, he rightly took immediate took steps to shift her to the hospital. It appears from his evidence that thereafter he seized and

collected the evidence available on the spot by performing act of preparing spot panchanama (Exh.Â​39).

He, thereafter, went to Civil Hospital, Akola. On 06.10.2005, Dr. Patil (PW7) was Medical officer of Burn Ward of Civil Hospital, Akola. As per

the evidence of PSI Khokale, before recording statement of Sunita, in order to ascertain as to whether Sunita was in a condition to give her statement

or not, he gave requisition (Exh.Â50) to the Medical Officer. This version of PSI Khokale is corroborated by Dr. Patil (PW7), who deposed that on

06.10.2005 at about 8.40 p.m., police came to the hospital for recording statement of Sunita and at that time, he examined Sunita and found that she is

well oriented, conscious and fit to give her statement and therefore recorded certificate on requisition (Exh.Â50) itself. Armed with this certificate and

when Sunita was found capable of giving statement, PSI Khokale proceeded to record her statement. Her statement (Exh.48) reads thus:

“My marriage with my husband Rameshwar was solemnised on 12th May, 2005 at the aforesaid place.

However, my husband is somewhat mentally unsound. My fatherÂinÂlaw Shamrao Kherdekar was driver with Zilla Parishad Akola but he is retired.

From the time of marriage only, my fatherÂinÂlaw Shamrao and mother inÂlaw Kausalyabai were insisting that I should conceive from my

fatherÂinÂlaw. As a result, I was undergoing stress. Ever the said issue, my fatherÂinÂlaw had beaten me within 4 to 5 days of my marriage. My

parents are poor and reside in village Pangari Taluka Deoulgaon Raja, District Buldhana. Since 4 to 5 days my fatherÂin law has gone to village of

my Nanand (husband's sister) at Deoulgaon Raja. From some days, my mother in law is not giving my food. Similarly, as my husband was mentally

unsound, I could not tell him anything. At about 7.00 O'Clock, I poured kerosene from the steel chimney (type of lamp) on my person and set myself

ablaze. I set myself ablaza only because, I was being harassed by my motherÂ​inÂ​law and fatherÂ​inÂ​law.â€​

Another statement of Sunita is recorded by Pralhad Gedam (PW1). In the month of OctoberÂ2005, this prosecution witness was serving as Naib

Tahsildar at Akola. On 06.10.2005 at 10.45 p.m. when he was at his home, a Constable from Police Station, Civil Lines came with a requisition

(Exh.Â32) to record dying declaration of patient. Thereafter, Naib Tahsildar Gedam (PW1) went to the main hospital at Akola. As per his evidence,

at hospital, he met with the doctor. Dr. Patil, (PW7) also states in his examination in chief that at about 11.00 O'clock, the Executive Magistrate came

to the hospital to record statement of Sunita and before recording statement, the Executive Magistrate examined Sunita and issued certificate (Exh.Â‐

61) that the patient is conscious, well oriented and is able to give statement. Thereafter, Mr. Gedam (PW1) recorded statement of Sunita (Exh.Â33),

which reads as under:

“Dying Declaration

Commencement : 11.05 p.m.

Name: Sunita Sanjay Khedekar, Aged 20 Years, resident of Zilla Parishad Colony, Khadki, Bk. Taluka and District Akola

Incident : On 06/10/2005, at 7.00 p.m. as my mother inÂlaw beat me, I myself poured kerosene on my person and set myself on fire. Later on,

Homeguard B.No.192, Ashish Patil admitted me in the hospital. Someone made a phone call to him so he brought the vehicle. I have nothing more to

say (Similarly, my fatherÂinÂlaw said to me, “my son is mad. Instead of that you give birth to my childâ€. At that time (x omission x) said

nothing.â€​

Hour of conclusion of recording of Dying Declaration 11.20 O'Clock.â€​

After recording of statement, the doctor again certified and his certificate (Exh.Â​62).

From the aforesaid evidence, it is clear that both scribes, before recording statements of Sunita, firstly contacted Dr. Patil (PW7) and sought his

opinion as to whether Sunita is in a position to give her statement. It is only after Dr. Patil's certification that Sunita is conscious, well oriented and able

to give her statement, they recorded respective statements of Sunita.

Though, learned counsel for the appellant submitted that at one place Dr. Patil has admitted that Sunita was having severe pain due to 70% burn

and various medicines were given to her that may affect the brain of the patient, Dr. Patil (PW7) clearly refuted that administration of drugs like

contramal, diclophenal, and nimusulide, affect the brain of a patient. He also stated that due to these drugs there is no possibility of any hallucination

with the patient. Except the suggestion in that behalf nothing was pointed out to the Doctor that due to administration of medicines, the patient could be

in the stage of hallucination.

It is not the case of the appellants that the deceased was under the influence of any drugs at the time of recording of her aforesaid two dying

declarations. In discharge of their respective duties, PSI Khokale and Naib Tahsildar Gedam, have recorded statements of the deceased.

There is only one variance in the dying declarations (Exh.Â48) and dying declaration (Exh.Â33). In dying declaration (Exh.Â33), it is stated that

on 06.10.2005, at 7 O'clock, she was assaulted by her mother in law. However, this fact does not find place in dying declaration (Exh.Â48). However,

only because of this, I am not prepared to accept the submission of the learned counsel for the appellant that both the dying declarations, therefore, are

not trustworthy.

There need not be only physical cruelty for all the time. Mental cruelty, in my view, is more severe than the physical one to drive a person to take

an extreme step in life.

As per both the dying declarations, husband of deceased was mentally challenged. It appears that in spite of that, her marriage was performed

with him. Both the dying declarations would show that appellant no.1 used to demand sexual pleasure from her because his son is mentally unfit. Both

the dying declarations would show that appellant no.1 used to ask the deceased to become pregnant from her father in law. Dying declaration (Exh.Â‐

48) clearly shows that due to this, the deceased Sunita was under stress.

A newly married girl when she comes to her matrimonial house, when notices that her husband is not mentally fit and her parents in law are

insisting upon her that she should have sexual relations with her father in law to have a progeny, in my view, is the most severe mental cruelty

practiced upon a married woman. The duration of life after the marriage of Sunita was just five months. Her dying declarations would show that right

from 4thÂ5th day of her marriage, she was subjected to the mental cruelty. Not only that, in dying declaration (Exh.Â48), she narrated that she was

deprived of food by the mother in law. In my view, the cumulative effect of these acts on the part of the appellants is nothing but an abetment to the

deceased to commit suicide. In view of the said, when the the prosecution has proved mental cruelty upon the deceased, the statutory presumption

available under Section 113Â​A of the Evidence Act gets activated.

On reapprecaition of the entire facts, I find that for obvious reason, close relatives of the deceased have turned hostile. Merely because close

relatives of the deceased have turned hostile, it cannot be a factor to discard the prosecution case especially when the Court noticed that dying

declarations (Exh.Â​33 and 48) are trustworthy and sufficient to record conviction of appellants to give justice to the deceased.

In that view of the matter, I confirm the judgment and order of conviction recorded by both the Courts below.

Insofar as quantum of punishment is concerned, merely because the appellants are at the fag end of their life, that cannot be a criteria for

reduction of punishment. The appellants, in my view, have practiced one of the most heinous and severe mental cruelty upon the deceased. Therefore,

a young woman was required to take extreme step of her life to commit suicide. In my view, this is not a fit case wherein this Court should exercise

any discretion in favour of father in law and mother in law of the deceased. Consequently, I pass the following order.

ORDER

(i) The appeal is dismissed.

(ii) Judgment and order of conviction passed by Ad hoc Additional Sessions Judge, Akola in Sessions Trial No. 31/2006 on 09.11.2006, thereby

convicting the appellants for an offence punishable under Sections 498Â​A and 306 read with Section 34 of the Indian Penal Code, is maintained.

(iii) The appellants, who are on bail, shall surrender to their bail bonds within a period of four weeks from today, before the learned Judge of the trial

Court, who is further directed to take necessary steps to procure their presence to send them in jail for serving out remainder of their jail sentence.