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Judgment
Pritinker Diwaker
As these two appeals arise out of the same judgment dated 14.12.1995 passed by Additional Sessions Judge Bilaspur in Sessions Trial No. 323/1993 convicting the accused/appellants of Cr. A. No. 1736/95 u/s 498-A IPC and sentencing each of them to undergo rigorous imprisonment for one year whereas convicting the accused/appellant of Cr. A. No. 1766/95 u/s 304-B IPC and sentencing him to undergo RI for ten years, they are disposed of by this common judgment. Facts of the case in brief are that marriage of deceased Sushma was solemnized with accused Ravindra Rao Bhonsle in the month of May 1992. On 27.4.93 while she was boiling milk, the said accused pushed her towards the stove saying "go and die", as a result of which she suffered 90- 100 % burn injuries and succumbed to the same in the hospital on 29.4.93 at 8.00 p.m. Immediately after her hospitalization, memo Ex.P-9 was sent by Dr. Vinay Gupta (P.W.-8) to the police on 27.4.93 for recording the dying declaration of the deceased and accordingly vide Ex.P-4 it was recorded by Arjun Singh Sisodia (P.W.-5) Naib Tahsildar on 28.4.93 and thereafter on 29.4.93 she died in the hospital. Vide Ex.P-3 the post mortem examination was done on the body of the deceased by Dr. P.C.Gupta (P.W.-4). Merg (Ex.P-3) was recorded on 29.4.93 and after merg enquiry FIR (Ex.P-19) was registered on the same day. After completion of investigation, challan was filed by the police on 23.7.93 for the offence under Sections 304-B/34 IPC.
So as to hold the accused/appellants guilty, prosecution has examined 10 witnesses. Statements of the accused/appellants were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, one Jai Kishan Sharma (D.W.-1) has also been examined in support of his case.
After hearing the parties, the trial Court acquitted the accused/appellants of Cr.A. No. 1736/95 of the charge u/s 304-B IPC but convicted and sentenced them u/s 498-A IPC. However, the accused/appellant of Cr.A. No. 1766/95 has been convicted and sentenced by the Court below u/s 304-B IPC. Hence, this appeal.
Counsel for the appellants submits that conviction of the accused/appellants in both the appeals is based on dying declaration of the deceased which has not been recorded in accordance with law. He submits that the doctor who has given fitness certificate of the deceased to make dying declaration, has not been examined in the Court and most importantly the intimation was sent to the Naib Tehsildr for recording the dying declaration on 27.4.1993 whereas the same was recorded on 28.4.1993 and this delay is fatal to the case of the prosecution. He submits that there are discrepancies in the statements of the witnesses in respect of sending information for recording the dying declaration, date on which it was recorded and confirmation to this effect. He submits that the dying declaration makes it clear that the same is nothing but a document cooked up by the police because the deceased had suffered 90-100% burn injuries and under these circumstances it was not possible for her to make such descriptive dying declaration. He further submits that only general allegations have been made against the accused/appellants in Criminal Appeal No. 1736/1995 and based on such allegations they cannot be convicted u/s 498-A IPC in the absence of any legally admissible evidence against them. He submits that at the time of recording dying declaration, relatives of the deceased were also present and therefore the entire dying declaration loses its significance. He submits that conduct of appellant Ravindra Rao Bhonsle where immediately after the incident he himself tried to extinguish the fire by putting blanket on the deceased and rushed her to the hospital goes to show that he made all efforts to save the life of his wife. As regards the accused/appellants of Criminal Appeal No. 1736/1995 he submits that at the relevant time all of them were residing separately in a different village and therefore they cannot be convicted u/s 498-A IPC. He submits that once the appellants in Criminal Appeal No. 1736/1995 have been acquitted of the charge levelled against them u/s 304-B IPC they could not have been convicted u/s 498-A IPC also as the cruelty has not been established against them by the Court below. In support of his arguments, counsel for the appellants placed reliance on the decisions of Supreme Court in the matter of State of Maharashtra Vs. Sanjay, , in the matter of Muneer Khan and Others Vs. State of M.P., and in the matter of Gananath Pattnaik Vs. State of Orissa, and various judgments of this Court as well. Lastly he submits that accused/appellant Prahlad already remained in jail for 11 months and 09 days, accused/appellant Godavari Bai for about 10 months, appellant Vijay for about 01 year and 03 months whereas appellant Nisha Pawar was throughout on anticipatory bail and in case this Court upholds their conviction u/s 498-A IPC, the sentence imposed on appellants Prahlad, Godavari Bai and Vijay may be reduced to the period already undergone by them. As regards appellant Nisha Pawar, he submits that she is a married lady may not be sent to jail. In respect of accused/appellant Ravindra Rao Bhonsle counsel for the appellants submits that as he has already remained in jail for about 03 years, his sentence may also be reduced to the period already undergone by him.
On the other hand counsel for the respondent/State submits that Dr. Vinay Gupta (PW-8) who first attended the deceased in the hospital and then issued fitness certificate making endorsement on the dying declaration has categorically stated that she was in a fit state of mind to give dying declaration. He submits that dying declaration recorded by Arjun Singh Sisodiya - Naib Tehsildar (PW-5) has been duly supported by him in accordance with law. This witness in paragraph 2 of his evidence has categorically stated that prior to and after recording the dying declaration the doctor examined the victim in his presence and opined that she was in a fit state of mind to give the dying declaration. He submits that in the dying declaration the deceased had made specific allegation against all the accused/appellants and clarified by mentioning their names as to in what manner she was subjected to cruelty by them. He further submits that Ganpat Rao Bhonsle (PW-1) - the father of the deceased and Maiya Bai (PW-3) mother of the deceased have also supported the case of the prosecution. He submits that marriage of the deceased with appellant Ravindra Rao Bhonsle was solemnized in the year 1992 and in less than one year she died on account of burn injuries caused by appellant Ravindra Rao Bhonsle and therefore no leniency can be shown to the accused/appellants.
Ganpat Rao Bhonsle (PW-1) - the father of the deceased has stated in his evidence that accused/appellants Prahlad Rao, Godavari Bai, Nisha Pawar, Vijay and Ravindra Bhonsle are father-in-law, mother-in-law, sister-in-law, brother-in- law and husband of the deceased respectively. According to this witness, marriage of the deceased with appellant Ravindra Bhonsle had taken place on 4.5.1992 as per the Hindu custom. He has further stated that accused/appellant Ravindra Rao Bhonsel was working as constable in the police department who was residing in a rental house along with the deceased where the accused/appellants used to visit them in every 2-4 days. He has further stated that the deceased succumbed to the burn injuries on 27.4.2003 and on that day at about 10.30 a.m. when he was in his office, one boy whose name he did not know, came to him and informed that his daughter had suffered burn injuries and was admitted in the hospital. When he went to the hospital, his daughter having been badly burnt was writhing. On being asked, she told him that when she was boiling milk, her husband came there, started beating her, poured kerosene on her and saying "go and die" pushed her towards the stove and then by bolting the door from outside he left the room taking with him his 7 month old daughter who at the time of incident was also there. According to this witness, at the relevant time, accused Ravindra Rao Bhonsle was in intoxicated condition. This witness has further stated that in marriage he had given sufficient items including scooter. He has further stated that after marriage whenever the deceased visited his house, she used to inform her that the accused/appellants were harassing her raising a demand of Rs. 10,0000. He has further stated that the scooter given by him was pledged for Rs. 4000 and whenever the deceased asked him to get the same back, he indulged himself in beating her. This witness has further given many other instances as to in what manner the deceased was subjected to cruelty by her husband Ravindra Rao Bhonsle. In cross examination, this witness remained firm to what he has stated in the examination-in-chief. Naval Singh Thakur (PW-2) is the witness to inquest Ex. P-1. Maiya Bai (PW-3) - the mother of the deceased has stated almost the same thing as has been stated by her husband (PW- 1) stating as to in what manner the deceased was subjected to cruelty by the accused/appellants. Dr. P.C. Gupta (PW-4) is the witness who performed post mortem examination on the body of the deceased vide Ex. P-3 and opined that deceased had sustained 95% burn injuries. Naib Tehsildar Arjun Singh Sisodiya (PW-5) is the witness who recorded dying declaration of the deceased vide Ex. P-4. He has stated as to in what manner the dying declaration was recorded. According to him, before recording the dying declaration, the deceased was examined by Dr. Vinay Gupta (PW-8) who had issued certificate to the effect that she was in a fit state of mind to give dying declaration. Dr. Nilima Ghatge (PW-6) is the witness who attended the deceased in the hospital. She has stated that when the deceased was brought to the hospital, smell of kerosene was coming from her body and the clothes. Report given by this witness is Ex. P-5. Dr. B.L. Pandey (PW-7) is the witness who made the seizure of certain articles vide Ex. P-6. Dr. Vinay Gupta (PW-8) is the witness who has stated that deceased informed him that half an hour before the examination; the deceased had suffered burn injuries. According to him, smell of kerosene was coming from the body of the deceased and that at that time she was fully conscious. Vide Ex. P-9 this witness had also requested for recording dying declaration of the deceased. From Ex. P-9 it is apparent that this witness has very specifically mentioned that "she is fit to give statement at present. Kindly arrange for dying declaration also". It is relevant to note that no question was put to this witness in respect of physical or mental condition of the deceased at the time of recording dying declaration. N.L. Dhritlahre (PW-9) is the investigating officer who has supported the case of the prosecution. J.S. Bhadoria (PW-10) is the witness who recorded FIR Ex. P-19 and then handed over the matter to N.L. Dhritlahre (PW-9) for further investigation. Jai Kishan Sharma (DW-1) has stated that on the date of incident when he was sitting at the doorstep of his house, accused Ravindra Rao Bhonsle was also standing there carrying his daughter with him. Thereafter, on hearing the shrieks and seeing the fire in the house of the accused/appellants when he went there, he found that the deceased was burning. Then he tried to extinguish fire by putting blanket and then as per the instructions of accused Ravindra he went to the maternal house of the deceased and informed her parents about the incident.
In the present case apart from the oral evidence of Ganpat Rao Bhonsel (PW-1), Maiya Bai (PW-3) - the mother and father of the deceased who have categorically deposed that the deceased was subjected to cruelty by the accused/appellants, most important piece of evidence is Ex. P-4 - the dying declaration of the deceased in which she has categorically stated that on 27.4.1993 when she was boiling milk in her house, her husband (appellant Ravindra Rao Bhonsle) reached there, started beating her and pushed her towards the stove saying "go and die" as a result of which she fell down and her sari and blouse caught fire, on hearing her cries her neighbours came there and tried to extinguish fire and her husband also put blanket on her. She has categorically stated that after marriage she was subjected to cruelty by her father-in-law, mother-in-law, sister-in-law and brother-in-law ( the appellants in Criminal Appeal No. 1736/1995). She has further stated that the scooter given by her father at the time of marriage was pledged by her husband and that her mother-in-law and father- in-law used to make demand for money. She has named all the accused/appellants in her dying declaration making allegations of cruelty against them. Dying declaration Ex. P- 4 further reflects the endorsement of the doctor saying that at that time the deceased was in a fit state of mind to make the statement. Dying declaration has been duly supported by the Naib Tehsildar (PW-5) and the doctor (PW-8). Thus there is absolutely no occasion for this Court to disbelieve the dying declaration of the deceased and the statements of the witnesses. In these circumstances, this Court is of the considered opinion that the findings recorded by the Court below convicting the accused/appellants as mentioned above are based on the evidence of the witnesses and therefore they do not call for any interference in this appeal. The decisions of the Supreme Court and various High Courts taken support of by the counsel for the appellants being entirely on different footing are of no help to the accused/appellants herein.
Now the only question is the sentence imposed on the accused/appellants. Accused/appellants of Cr. A. No. 1736/95 have been convicted u/s 498-A IPC and sentenced to undergo rigorous imprisonment for one year whereas accused/appellant of Cr. A. No. 1766/95 has been convicted u/s 304-B IPC and sentenced to undergo RI for ten years. Since accused/appellant Prahlad already remained in jail for 11 months and 09 days and accused/appellant Godavari Bai for about 10 months, considering the fact that at present they might be in their advanced age, their sentence is reduced to the period already undergone by them. Appellant Vijay is reported to have remained in jail for about 01 year and 03 months and thereby he has already completed the entire sentence imposed on him. Appellant Nisha Pawar the sister-in-law of the deceased was throughout on anticipatory bail. Considering the fact that she is a married lady and must have attained the age of 40 years by now, she is sentenced to undergo rigorous imprisonment for 15 days and pay fine of Rs. 5000, in default of payment of fine to further undergo rigorous imprisonment for 15 days. She be sent to jail forthwith for undergoing the sentence imposed on her.
As regards accused/appellant Ravindra Rao Bhonsle, the record goes to show that he was an employee of police department and thereby in stead of protecting the deceased who happened to be his wife his act in subjecting her to cruelty by pushing her towards a burning stove as a result of which she lost her life, does not call for any leniency. Accordingly, his conviction u/s 304-B IPC and resultant sentence of RI for ten years imposed by the Court below being just and proper is hereby maintained. He is reported to be on bail. He be sent to jail forthwith to serve out the sentence imposed on him. In the result, Criminal Appeal No. 1736/1995 is allowed in part to the extent indicated above. However, Criminal Appeal 1766/1995 being devoid of any substance is liable to be dismissed.