The State Of Maharashtra vs Vithal Kamble

State hereby challenges the judgment and order of acquittal dated 05.05.2016 passed by the learned Additional Sessions Judge-3, Parbhani in Sessions Case No.54 of 2015, thereby acquitting the respondent herein from charge under Sections 498-A and 306 of the Indian Penal Code [IPC].

Brief snapshot of prosecution case is that, Pathri Police Station registered crime on the basis of dying declaration of Sonali, recorded by PW8 at Exhibit-36, while undergoing treatment, wherein she reported that, after marriage, deceased was treated properly for one and a half month, but thereafter accused/her husband started suspecting her character. That, the accused used to repeatedly suspect her character and, therefore, on 17.12.2014, in similar background, she incinerated herself. She succumbed to the 100% burns. The above crime was investigated by PW10, who after completion of investigation, charge-sheeted accused, who was ultimately tried by learned Additional Sessions Judge, Parbhani vide Sessions Case No.54 of 2015. At trial, prosecution has adduced evidence of as many as 12 witnesses and relied on oral as well as documentary evidence like FIR, panchanama, Dying Declaration, Postmortem report etc. On appreciation of above evidence, learned Trial Court acquitted the accused from both the charges. Hence, the instant appeal by State.

Learned APP for the appellant pointed out that the prosecution case is based on the Dying Declarations at Exhibit-36 and Exhibit-62, both of which are consistent. There was suspicion regarding the character of the deceased, and in that backdrop, the deceased committed suicide by setting herself on fire. According to the learned APP, the accused is solely responsible for the same. Learned APP further pointed out that the father and grandmother of the deceased have deposed about the harassment caused to the deceased by raising suspicion regarding her character. There is also evidence of the landlord, PW3, in this regard. PW5, the relative of deceased, has also deposed about the oral dying declaration. It is submitted that, despite sufficient evidence on the point of abetment to commit suicide, the learned Trial Court has unfortunately acquitted the accused. He further submitted that the learned Trial Court has failed to consider the settled law. For all above reasons, he prays for setting aside the impugned judgment and order by allowing the appeal.

Per contra, learned Counsel for the respondent/accused would justify the judgment and order of acquittal by submitting that there is no convincing, cogent and reliable evidence on record to show that accused had suspected character of deceased or harassed her. That, Dying Declarations are not consistent. Moreover, there are interpolations and overwriting over the same. Therefore, Dying Declarations, which were solitary pieces of evidence, fail to inspire confidence. Therefore, learned Trial Court committed no error whatsoever in acquitting the accused and resultantly, he prays to dismiss the appeal for want of merits.

PW1, the Autopsy Surgeon, who conducted postmortem, opined that cause of death of deceased was due to myocardial infarction with septicemia due to burns.

PW2, is the father of deceased, who, in his evidence at Exhibit-21, deposed that, after marriage of his daughter Sonali, accused used to take suspicion on her character and harass her. He used to beat her. In spite of understanding given to him, he did not listen. That, his daughter requested to send someone to stay with her as she feared accused and so he sent his mother-in-law. That, in presence of his mother-in-law, accused beat Sonali and when she went to fetch water, at that time, Sonali burnt herself. He went to see her at the hospital in Nanded, where she told him that the accused used to beat her from time to time, suspecting her character, and that she had, therefore, set herself on fire. While under cross-examination, he admitted that from first marriage, his daughter has obtained divorce and she was married with accused on 15.09.2014. He admitted that, deceased did not beget any child. He admitted that, accused was doing daily wages work and that prior to marriage, detailed inquiry was made about background of accused and, thereafter, marriage was performed. He admitted that, after marriage, his daughter came only once during festival of Dipawali. He admitted that, he had asked accused why he is taking suspicion on the character of her daughter, upon which he told that she was not behaving properly and so he gave understanding to his own daughter to behave properly. He admitted that, he did not lodge any complaint for beating or harassing his daughter. He admitted that, police recorded his statement on 26.12.2014. In paragraph No.6 of his cross-examination, he is unable to state whether at the time of recording statement he had informed that his daughter requested him to send someone to stay with her as she feared accused. He admitted that, he did not inform police that his mother-in-law was present in the house at the time when accused beat her and omission is brought to the extent that, his mother-in-law had been to fetch the water and after she returned, there was episode of burns by his daughter. Omission is also brought in paragraph No.7 of his cross-examination to the extent that deceased told him that she burnt herself only because of suspicion of a character by accused. Rest is all denial.

PW3 is the landlord of the premises where accused and deceased Sonali were residing.

PW4 is the Police Head Constable, who registered crime on the basis of MLC and statement of deceased.

PW5 deposed at Exhibit-28 that, on 17.12.2014, he received phone call from PW2 and so he went to the hospital and saw Sonali on the bed. According to him, Sonali told him that accused took suspicion on her character and beat her and hence, she poured kerosene on herself and set herself on fire.

While under cross-examination, he stated that, he and his wife as well as PW2 went to the hospital. He admitted that, accused has brought Sonali for medical treatment. He admitted that, he did not lodge any complaint at Police Chowki, which is located in the hospital campus. Rest is all denial.

PW6 is the maternal uncle of deceased and he, in his evidence at Exhibit-29, stated that, after marriage of accused and Sonali, accused used to quarrel on the ground of taking suspicion on character of Sonali and therefore, she burnt herself. He also claims that, when he met her in the hospital, she told him that on earlier day of the incident between herself and accused, there was quarrel. That, on the morning of the day of incident also, there was quarrel and, hence, she poured kerosene and burnt herself. He further deposed that, during quarrel, accused took suspicion on the character of Sonali.

While under cross-examination, he admitted that after 22 days of the marriage, when he visited house of accused and met Sonali and made inquiry, at that time, she did not state anything against the accused. He admitted that, for the first time he learnt about suspicion of character and beating at Civil Hospital. He admitted that, Dhurpatabai is his mother i.e. mother-in-law of father of deceased. In cross-examination, he also admitted that on 17.12.2014 when he met deceased at the hospital, he made inquiry with her about the alleged incident. He also admitted that, condition of Sonali was serious. Rest is all denial.

PW7 is the doctor who, upon being approached by the Special Executive Magistrate, gave an endorsement certifying the fitness of the deceased to give a statement. He identified the said endorsement at Exhibits-33 and 33/1.

PW8 is the police officer, who recorded Dying Declaration of deceased at Exhibit-36 and who also received Dying Declaration recorded by the Executive Magistrate. Even according to him, deceased stated that due to harassment and ill treatment, she committed suicide by pouring kerosene and setting herself on fire.

While under cross-examination, he admitted that when he reached near Sonali for recording Dying Declaration, at that time, her relatives were present there and he recorded Dying Declaration. He admitted that, thumb impression on the Dying Declaration is not having identification or attestation. He is also cross-examined on the point of Dying Declaration recorded by Executive Magistrate.

PW9 is the grandmother of deceased and she, in her evidence at Exhibit-39, deposed that after two months of marriage, she went at the house of accused for meeting Sonali. According to her, on that day, there was quarrel going on between accused and deceased and she settled the quarrel. According to her, quarrel was on the ground of taking suspicion of character. She stayed in the house that day and in the next morning, accused asked her to bring water and so she went out of the house and when she returned, she saw accused had brought Sonali in burnt condition outside the house. While under cross-examination, omission is brought that after two months of marriage, she went to the house of accused. That, there was quarrel going on in the house between accused and Sonali, and on next day, she was told to bring water and so she went out and when she came back with water, at that time, she saw accused bringing deceased in burnt condition.

PW10 is the Investigating Officer.

PW11 is the medical officer, who examined deceased Sonali's state of mind before and after the dying declaration and endorsed it.

PW12 is the Naib Tahsildar, who recorded the Dying Declaration Exhibit-62 in question and answer form and explained the procedure.

On complete re-appreciation and analysis of evidence, here, it is seen that, marriage between accused and deceased is second marriage. The precise case of the prosecution is that the accused suspected the character of the deceased, which led to quarrels between them, and that on 17.12.2014, a quarrel took place on that count, following which the deceased immolated herself.

Admittedly, deceased died due to burns. Very case of prosecution is that, deceased committed suicide by pouring kerosene on herself and igniting herself. Prosecution primarily relies on the Dying Declaration as well as oral account of the father, grandmother and other family members of deceased.

To start with, the Dying Declarations are required to be examined to ascertain, firstly, whether they were made voluntarily, secondly, whether they inspire confidence; and thirdly, whether they are consistent with each other.

The first Dying Declaration is at Exhibit-36, which is recorded by PW8 an Assistant Police Inspector. This Dying Declaration seems to be recorded on 17.12.2014 around 11.15 a.m., wherein the deceased has reported that, she is resident of Takalgavhan, Taluka Pathri, District Parbhani and she is home maker. Her maternal place is Parbhani. She is married to accused, which was court marriage dated 15.09.2014. That, as she has completed nursing course, previous to marriage she was working in a hospital as a nurse. After marriage, she came to reside at Takalgavhan. Then she reported that for one and a half month she was treated properly, but thereafter husband used to regularly say “that you have done nursing course, you have worked as a nurse in the hospital and therefore, you must be having many friends and that, you are a footloose.” That, her parents also gave understanding to husband. That, eight days back her grandmother had come to stay with her. On 17.12.2014, in the morning at around 7.30 a.m., her husband questioned her whether she want to go to Parbhani with her grandmother and that, her friends must be waiting for her. Because of such mental harassment, getting fed up of it, she poured kerosene on herself and ignited herself.

Thus, what is discerned from the above Dying Declaration is that, deceased attributes taunting to her husband that she might be having friends and whether she was desirous of going to meet them. Beyond this, there is no instigation or abetment.

PW8, who has recorded the above Dying Declaration, is examined at Exhibit-34 and it has come in his evidence that while on duty at police Chowki, in the very campus of police station, he received MLC by one Peon of the hospital and on the strength of it, he approached doctor, took endorsement of fitness and recorded Dying Declaration, which he identified to be at Exhibit-36. While facing cross-examination, he is unable to state when exactly MLC was received, what was the name of the peon, who brought it to him. He has nothing to show that, he intimated about receipt of MLC to police station. He admitted that, when the peon came, at that time, he was in police Chowki i.e. 150 feet away from the hospital. He answered that dying declaration was recorded in question answer form and further stated that he might have asked over 25 to 30 questions to deceased Sonali, but further admitted that Dying Declaration recorded by him is not in question answer form. Then, he admitted that Dying Declaration was actually noted by writer Karad and not by him. He also admitted that there is no identification to the thumb impression over Dying Declaration.

Above testimony of PW8 shows that this witness is unable to state, who brought MLC. It is pertinent to note that in spite of he claiming to have received it on 17.12.2014, apparently, crime seems to be recorded on said Dying Declaration on 20.12.2014 and not promptly on 17.12.2014. His assertion that he recorded Dying Declaration in question answer form is also falsified in his own cross-examination, as apparently it is not in question answer form. There is also no attestation or identification of the thumb impression. Resultantly, for above reasons, recording of Dying Declaration Exhibit-36 comes under the shadow of doubt.

The second Dying Declaration is at Exhibit-62, which is recorded by PW12 Naib Tahsildar. Exhibit-62 seems to be in a typed format, but surprisingly it is also shown to be recorded on 17.12.2014 at around 3.30 p.m. In the said Dying Declaration, it is merely reported by deceased that on 17.12.2014 around 7.30 a.m. she poured kerosene on herself and its reason is suspicion raised by husband. Except this, nothing is stated. Therefore, this Dying Declaration is cryptic.

Its author, PW12, in his evidence at Exhibit-61, has stated that deceased told during Dying Declaration, that she was committing suicide by burning only due to ill treatment and harassment at the hands of accused on the ground of suspicion of character as well as accused beating her. Apparently, this witness has exaggerated the version to the extent of ill treatment and beating, which is patently missing from the text of Dying Declaration Exhibit-62.

Now, let us analyze the oral evidence of prosecution witnesses as stated above.

PW2, who is the father of deceased, stated that accused suspected his daughter’s character, ill treated and harassed her, but when such instances took place is not specified by him. General allegations seems to be levelled by him. He admitted that, at no point of time, he lodged complaint.

PW3, who claims to be the landlord, deposed that, in his presence, grandmother told that there was fire at the house of accused, but he does not know what happened. In cross-examination, he admitted that grandmother of deceased lived with them and there was proper cohabitation and that, he learnt about ill treatment at the hands of police. Therefore, he has hearsay information.

PW5 Bhagwan, who claims to be relative, though deposed that at Civil Hospital deceased personally told him that she committed suicide because accused suspected her character, while under cross-examination, he admitted that there were never any talks between him and Sonali after marriage.

PW6, the maternal uncle of deceased, in his evidence at Exhibit-29, only deposed about quarrels and accused saying to deceased that she was footloose and valueless. He also in cross-examination claims to have learnt about ill treatment for the first time in the Civil Hospital.

PW9, the mother-in-law of deceased, is yet another important witness. Deceased had named this witness to be present in the house, as she has come to stay there. However, though she stated that there used to be quarrel on account of suspicion by accused, on the relevant day, she was out of the house to fetch water and only when she returned, she noticed episode of burning. Therefore, she was not party to the quarrel in the morning of 17.12.2014 which allegedly led to suicide by burns.

In the light of above discussion, here, firstly, deceased was taken to multiple hospitals, but no prompt Dying Declaration is recorded at earlier hospital. The Dying Declaration, which is relied at Exhibit-36, apparently was noted on 17.12.2014, but surprisingly crime over the same seems to be recorded on 20.12.2017. In the light of answers given by PW8, who was the author of the Dying Declaration Exhibit-36, in the cross-examination, it is doubtful whether he received MLC and whether he recorded Dying Declaration of only and only deceased. There is no attestation on the Dying Declaration. Secondly, second Dying Declaration Exhibit-62 is very cryptic and differs from Dying Declaration Exhibit-36. Hence, Dying Declarations cannot be directly relied.

Oral account discussed above merely shows that there was suspicion and taunting by husband, but that does not mean that he desires that she should commit suicide. Reliance can be placed on the judgment of Hon'ble Supreme Court in the case of K. V. Prakash Babu vs. State of Karnataka, [AIR 2016 SC 5430], wherein it has been held that suspicion regarding extra-marital affair cannot be regarded as mental cruelty for satisfying the ingredients of Section 306 of IPC.

Perused the judgment under challenge. No infirmity or perversity is brought to the notice of this Court so as to interfere. There being no merits in the appeal, it deserves to be dismissed. Hence, the following order is passed :-

Criminal Appeal stands dismissed.