Full Text
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.703 OF 1999
Deepak Manohar Deshmukh ]
Residing at Satav Wadi, Hadapasar ]
Pune. ] Appellant
Vs.
The State of Maharashtra ] Respondent
…..
Mr. Rajendra Shirodkar, Senior Advocate i/b Mr. Nihar Ghag, for
Appellant.
Dr. D.S. Krishnaiyer, A.P.P
, for Respondent – State.
…..
JUDGMENT
1. Feeling aggrieved with and dissatisfied by the judgment and order of conviction and sentence rendered by the Additional Sessions Judge, Pune in Sessions Case No.145 of 1998 on 7th December, 1999 convicting the appellant for the offences punishable under sections 498-A and 306 of the Indian Penal Code, 1860 (for short “I.P.C”), this appeal has been preferred. 1 of 22
2. Shorne of unnecessary details, a few facts germane for disposal of this appeal are summarized as follows.
3. Deceased Sharmila got married to the appellant on 27th July, 1994 at Pune. It was an arranged marriage. After the said marriage, Sharmila started cohabiting with the appellant at Satav Wadi, Hadapsar, Pune which was her matrimonial house. From the said wedlock, the couple was blessed with a son by name Arjun who was two years old at the time of the incident. However, since his birth, Arjun was staying with parents of Sharmila at Pune. Sharmila was working as Clerk in the Education Department whereas the appellant was employed as teacher in a School at Hadapsar.
4. Immediately after marriage, the appellant started feeling suspicion, in the sense, he was suspecting fidelity and character of Sharmila and, on that count, there used to be quarrels between the couple. It was alleged that the appellant used to ill-treat Sharmila. From time to time, Sharmila used to complain about such conduct of the appellant to her mother and sister’s husband. The said state of affairs continued ever after birth of their son. 2 of 22
5. On 28th November, 1997, mother of Sharmila received a telephone call at her residence from the appellant to the effect that Sharmila had sustained burn injuries at her residence and that they should come immediately. Accordingly, father and sister of Sharmila went to her house but there they learnt that Sharmila was moved at Sassoon Hospital, therefore, they went to the Sassoon Hospital. In Ward No.27 of the Sassoon Hospital, Shamila was admitted for her burn injuries. Upon inquiry, Sharmila told that on the previous day in the evening, she came home on the Scooter with her neighbour as it was raining, which her husband saw. He did not like it and, therefore, he picked up a quarrel with her and mentally tortured her for the whole night. The harassment continued till next morning. Being fed up with the same, Sharmila told her husband that if he does not stop, she would pour kerosene on herself and would set herself ablaze. On this, her husband instigated her to do so and hence, she poured kerosene on her person and set herself ablaze.
6. On the same day, at about 10.30 a.m, a Special Judicial Magistrate recorded Sharmila’s Dying Declaration in which, she had categorically stated that she received burn injuries due to an accident. However, on 29th November, 1997, she expressed her 3 of 22 desire to change the said statement and accordingly on 29th November, 1997 again the same Special Judicial Magistrate was called and he recorded another Dying Declaration of Sharmila in which, she implicated her husband i.e the appellant. An offence under section 498-A of the I.P.C came to be registered against the appellant vide C.R. No.579 of 1997. On 30th November, 1997, Sharmila succumbed to burn injuries. Accordingly, section 306 of the I.P.C was added and on the same day, the appellant was arrested.
7. After investigation, a charge-sheet has been laid before the learned Judicial Magistrate. He, in turn, committed the case to the Sessions Court.
8. Upon appearance of the appellant before the learned Sessions Judge, a charge was framed under section 498-A and 306 of the I.P.C. It was read over to the appellant, to which he pleaded not guilty and claimed a trial.
9. Defence of the appellant as emerged from the line of crossexamination as well as from his statement under Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr. P.C”) is that he 4 of 22 has been falsely implicated. The appellant has come up with a specific defence that mother of Sharmila wanted to get the custody of his son and, therefore, she had concocted a false case against him with the help of her son-in-law and brother who were working in the Police Department.
10. The learned Sessions Judge having gone through the evidence of the prosecution witnesses rejected the defence of the appellant and by the impugned judgment and order convicted him for the offences punishable under sections 498-A and 306 of the I.P.C. The appellant has been convicted and sentenced to undergo rigorous imprisonment for two years and fine of Rs.500/-, in default to pay fine, he was directed to undergo rigorous imprisonment for two months for the offence punishable under section 498-A of the I.P.C. For the offence punishable under section 306 of the I.P.C, he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/-, in default to pay fine, he was directed to undergo rigorous imprisonment for three months. The learned Trial Judge, inter alia, directed the sentences to run concurrently. 5 of 22
11. I heard Mr. Shirodkar, the learned Senior Counsel at a considerable length as well as Dr. Krishnaiyer, the learned A.P.P.
12. Learned Senior Counsel took me though the evidence of the prosecution witnesses, impugned judgment, Dying Declarations, Postmortem report and other documents.
13. At the outset, learned Senior Counsel would argue that the Trial Court has not correctly appreciated the evidence on record and arrived at an erroneous conclusion of guilt of the appellant. The learned Counsel took me though the evidence of P.W.[1] – Chandrakala Jaisingrao Pawar, mother of the deceased and P.W.[2] – Milind Mansing Mane, husband of the sister of the deceased, inter alia, on the point as to how and why Sharmila committed suicide and also recording of the Dying Declaration on 28th November,
1997.
14. According to Mr. Shirodkar, the Trial Court failed to appreciate the evidence of these two witnesses in its correct perspective in light of the fact that P.W.[1] – Chandrakala Pawar mother of the deceased testified that she received a call from the 6 of 22 appellant at her residence and thereafter, her husband and daughter left for the residence of the appellant. After sometime, her husband called her and informed her that Sharmila has been moved to Sassoon Hospital. Thereafter, she called her son-in-law who came to her house and alognwith him, she went to Sassoon Hospital and met Sharmila, who in turn, narrated the entire story to her. As against this, if evidence of P.W.[2] – Milind Mane is scrutinized, it gives an altogether different story.
15. According to P.W.[2] – Milind Mane, he received a call from his mother-in-law, who told him that Sharmila has been admitted in Sassoon Hospital and he should go there directly. Accordingly, he went to Sassoon Hospital directly and met Sharmila in Ward No.27. Sharmila narrated the entire story as to how she received burn injuries. It has come in his evidence that after that, he went to fetch his mother-in-law and went to the Hospital. As such, it is clear from the evidence of this witness that at the time when Sharmila allegedly stated him about the incident, P.W.[1] – Chandrakala Pawar was never present at the Hospital and hence, her contention that Sharmila told her about the cause of her injuries is falsified by the evidence of P.W.[2] – Milind Mane. 7 of 22
16. It is also worthwhile to note that the Trial Court has also not properly appreciated the evidence of P.W.[2] – Chandrakala Pawar mother of Sharmila, who was never present in Ward No.27 when Sharmila allegedly made a statement to P.W.[2] – Milind Mane, as according to him, mother of Sharmila never went to ward No.27 and talked to Sharmila. The learned Trial Judge ought to have held that in fact, Sharmila never made any statement before P.W.[1] – Chandrakala Pawar and that P.W.[1] – Chandrakala Pawar had not told the truth about Sharmila narrating her about the incident and that the evidence of these two witnesses ought to have been disbelieved. The learned Trial Judge appears to have turned Nelson’s eye to the vital discrepancy in the evidence of these two material witnesses.
17. It is also evident from the record that the Trial Court has also failed to appreciate the evidence of P.W.[2] – Milind Mane on the point of Sharmila disclosing him about cause of her burn injuries and the reason for setting herself ablaze.
18. It is significant to note that if Sharmila had in fact told P.W.2- Milind Mane about the cause of her burn injuries as alleged by him, 8 of 22 being a family member, he would not have forgotten to mention the same to P.W.1- Chandrakala Pawar while proceeding to the Hospital. P.W.[2] – Milind Mane is the husband of Sharmila’s elder sister.
19. Conduct of the witness has not been properly appreciated by the Trial Court, in the sense, P.W.[2] – Milind Mane did not disclose the said fact to his mother-in-law. It seems that the Trial Court has similarly failed to appreciate the conduct of P.W.[2] – Milind Mane in not informing the Police immediately about the said disclosure made to him by Sharmila. This conduct of the witness was most inconsistent with the ordinary human behaviour and thus, the Trial Court ought to have held that P.W. 2 – Milind Mane was not telling the truth about the incident and, therefore, his evidence ought to have been discarded on the point of Dying Declaration and also his presence at the Hospital. The learned Trial Judge ought to have recorded demeanour of the witness in view of section 280 of the Cr.P.C.
20. It is quite apparent from the record that the Trial Court has not appreciated the omissions and contradictions in the evidence of 9 of 22 P.W.[2] – Milind Mane on material aspects. This witness, in his evidence before the Court had stated that Sharmila had told him about the ill-treatment being meted out to her by the appellant on account of suspecting her fidelity. He has also deposed that he went to the Hospital and met Sharmila. She told him the reason for committing suicide. It will be significant to note that on both these vital aspects, P.W.[2] – Milind Mane did not state anything to the Police at the time of recording of his statement and had spoken about it for the first time in his evidence before the Court.
21. In view of these material omissions which amount to contradictions on vital aspects of the matter appearing in the evidence of this witness, the Trial Court ought to have held that this witness is not a witness of truth but in order to corroborate the second Dying Declaration, for the first time in the Court, he concocted a story. His evidence appears to be nothing but a patent lie only to give support and corroboration to the second Dying Declaration made by the deceased. His evidence, therefore, was unworthy of credit. The Trial Court has, in fact, committed a patent error in seeking assurance of P.W.[1] – Chandrakala Pawar and P.W.[2] – Milind Mane as regards second Dying Declaration while 10 of 22 arriving at a conclusion that second Dying Declaration was worth accepting in preference to the first one.
22. It is apparent that the Trial Court has placed implicit reliance on the evidence of these two highly interested and partisan witnesses in seeking corroboration to the Dying Declaration. The Trial Court also failed to appreciate that the Police had recorded the statements of independent witnesses in this case, but for the reasons best known to them they were not examined as witnesses. No explanation has been tendered by the prosecution for not examining these independent witnesses and as such, adverse inference can be drawn against the prosecution for withholding the evidence of material independent witnesses. Had those witnesses been examined, falsity of the evidence of P.W.[1] – Chandrakala Pawar and P.W.[2] – Milind Mane could have been surfaced as regards alleged illtreatment meted out by the appellant to the deceased.
23. “Cruelty” as contemplated under Section 498-A I.P.C is to be of such a magnitude and of such a gravity which would lead a woman to commit suicide. Thus, it is not every cruelty or illtreatment which can be a subject matter of an offence under 11 of 22 sections 498-A or 306 of I.P.C beyond reasonable doubts.
24. In so far as the “Abetment” contemplated in Section 306 of the I.P.C is concerned, it necessarily means that in order to constitute ‘Abetment”, there has to be a positive overt act on the part of a person before he could be said to have abetted an act. In this case, there has been no overt act attributed to the appellant which would be termed as “abetment” in a strict sense. There is no evidence at all on record either in Dying Declaration or in the evidence of P.W.[1] – Chandrakala Pawar and P.W.[2] – Milind Mane to even remotely suggest that the appellant did something at the time when the deceased allegedly threatened to commit suicide, which would amount to abetment. As such, the Trial Court ought to have held that an offence under section 306 of the I.P.C has not been made out and ought to have given benefit to the appellant.
25. Turning to the medical evidence, it has also not been correctly appreciated by the learned Trial Court. It is an admitted fact that Sharmila sustained 98% burn injuries and was in a serious condition right from the time of her admission in the Hospital. P.W.[5] – Dr. Abhijit Manohar Bhosale was the Medical Officer attached to 12 of 22 Sassoon Hospital at the relevant time. According to this witness, he was in the Burn Patient Ward where Sharmila was directly sent from the Casualty. She was brought by one Deepak Deshmukh. She was first treated by Dr. Dharma Zopade who was on duty in Ward No.27. P.W.[5] – Dr. Abhijit Bhosale started treatment to the patient in the morning at about 8.30 a.m. He testified that she had sustained 98% of burn injuries. She was already on antibiotics and IV fluids. She was conscious and well oriented. Her mental condition was sound. On 29th November, 1997 at about 10.00 a.m, while he was attending the patient, she said to him that she wanted to change her statement. Accordingly, he informed to R.M.O and also made corresponding entry in her case papers. He had proved case papers in the Trial Court. He further testified that he treated the patient till her death on 30th November, 1997 at 5.45 a.m. His evidence also reveals that the patient who was in a fit condition to give statement had intended to change the same. Accordingly, Dying Declaration was signed by the Doctor as well as by the Magistrate. Since the patient was not in a position to sign due to the burn injuries, the Magistrate obtained her thumb impression over Dying Declaration. Admittedly, autopsy report of the deceased reveals probable cause of her death as “death due to shock following burns”. 13 of 22
26. Had the Trial Court properly appreciated the evidence of P.W.[4] – Dr. Gayatri Kulkarni who performed autopsy, the Trial Court would have come to the conclusion that looking at the serious condition of Sharmila, she should not have been in a position to give a second statement and could have further held that second Dying Declaration was got up one and was fabricated at the instance of mother and brother-in-law of Sharmila i.e P.W.[2] – Milind Mane.
27. There is one more crucial aspect about evidence of Dr. Bhosale. Presence of Dr. Bhosale itself is doubtful in view of the endorsement on the medico-legal papers which essentially indicates the name of Dr. Gokhale and not Dr. Bhosale. This gives rise to a doubt as to whether Dr. Bhosale was in fact present at the time of recording Dying Declaration of Sharmila.
28. It is worthwhile to note that had Sharmila told her mother on 28th November, 1997 itself about the reasons for sustaining injuries, then surely, mother would have informed the Police immediately and that there was no need for Sharmila to make a second statement. The very fact that till 30th November, 1997, no action 14 of 22 was taken by the Police to register an F.I.R itself would indicate that second Dying Declaration was never made.
29. There is one more interesting aspect to this case. The Trial Court appears to have turned blind eye to the evidence of Police Officer Koli who has testified that till 30th November, 1997, he had no evidence to say that this was a case falling under section 306 of the I.P.C that itself goes to show that the story projected in the second Dying Declaration was concocted and made at the instance of relatives of Sharmila with a sole object to implicate the appellant. The same discussion is required to be made on the crucial evidence of P.W.[6] - Ulhas Koranne – Special Judicial Magistrate who had recorded both the Dying Declarations of Sharmila. He testified that on 28th November, 1997, Head Constable V.B. Patil of Sassoon Police Station has given requisition to record Dying Declaration of Sharmila who was admitted in Ward No.27 of the Sassoon Hospital with history of burn injuries. This witness went to the Hospital. Doctor on duty was present in Ward No.27. He was one Dr. Jopale. Upon inquiry with Dr. Jopale, this witness was informed that the patient was conscious and was capable of giving her statement. Doctor examined the patient in his presence and 15 of 22 informed this witness that the patient is conscious and in a position to give statement. Accordingly, an endorsement was made on the form of Dying Declaration in the margin. This witness also personally verified whether the patient is in a fit condition to give the statement. This witness also appears to have put certain questions to the patient to ascertain fit condition of the patient such as her name, age, occupation etc. Having ascertained the fitness of the patient to give statement, he recorded her statement in the form of Dying Declaration. Evidence of this witness clearly indicates that patient viz: Sharmila stated that in the morning at about 8.00 a.m she lighted the gas stove for heating the milk. After cutting the milk bag, when she was putting the scissor on the shelf, kerosene lamp fell down and kerosene spread on her body. While she was keeping the kerosene lamp again on shelf, her gown caught fire due to the lightened gas stove and hence, she sustained burn injuries. When this witness asked her as to who extinguished the fire, she replied her husband i.e the appellant extinguished fire. Having made this statement before the Special Judicial Magistrate on 28th November, 1997 immediately on 29th November, 1997, this witness received another requisition from A.P.I Koli attached to Wanwadi Police Station to record her Dying Declaration again. This witness again 16 of 22 went to Ward No.27 and made inquiries with Dr. Gokhale who was on duty. This witness has not stated that it was Dr. Bhosale who was on duty and, therefore, prosecution story appears to be doubtful on the point of examination of the victim at the time of recording her second Dying Declaration. This witness thereafter made again the same inquiry and questioned victim as regards her fitness to give statement. Then he started recording her statement at
10.35 a.m. In her second statement, the victim now took an “U” turn by saying that there was quarrel between her and her husband at 8.00 p.m because she returned with one Jedhe on his scooter. The appellant severely harassed her over the whole night and in the morning, he scolded her and asked her to set herself on fire. At her husband’s instance, she poured kerosene on her person and set herself on fire.
30. As such, there are two contradictory Dying Declarations recorded within span of two days. As already stated, the learned Trial Court has not correctly appreciated the facts and the entire evidence as to why she accepted and believed the second Dying Declaration over the first one. There is every likelihood of the victim being tutored by the kith and kin before recording her 17 of 22 second Dying Declaration. Even if it is presumed for a moment that because the appellant asked her to set herself on fire, the question would be whether that is sufficient to invoke section 306 of the I.P.C?
31. Before considering the said aspect, it would be essential to understand the definition of “abetment” as provided in section 107 of the I.P.C and the definition of “Abettor” as provided in section 108 of the I.P.C. Sections 107 and 108 of the I.P.C read as under;
18 of 22
32. As already discussed, the offence of abetment of instigation depends upon the intention of the person who abets and not upon which is done by the person who has been abetted. Abetment may be by instigation, conspiracy or intentional aid as provided under section 107 of the I.P.C. However, the words uttered in a fit of anger or emotion without any intention cannot be termed as instigation. In the case at hand, from the overall circumstances and evidence on record, it can be inferred that perhaps the appellant might have uttered in a fit of anger asking the victim to set herself on fire and, therefore, that cannot be termed to be abetment by the appellant instigating the victim to commit suicide. A useful reliance can be placed on a decision in case of Praveen Pradhan Vs. State of Uttaranchal and another.[1] It would be apposite to reproduce paragraphs 16, 17 and 18 of the said decision. “16. This Court in Ramesh Kumar v. State of Chhattisgarh, AIR 2001 SC 3837, while dealing with a similar situation observed that what constitutes ‘instigation’ must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. More so, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.
17. The offence of abetment by instigation depends upon the intention of the person who 1 2012 (9) Supreme Court Cases 734 19 of 22 abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation. (Vide: State of Punjab v. Iqbal Singh, AIR 1991 SC 1532; Surender v. State of Hayana, (2006) 12 SCC 375; Kishori Lal v. State of M.P., AIR 2007 SC 2457; and Sonti Rama Krishna v. Sonti Shanti Sree, (2009) 1 SCC 554)
18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straight-jacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. More so, while dealing with an application for quashing of the proceedings, a court cannot form a firm opinion, rather a tentative view that would evoke the presumption referred to under Section 228 Cr.P.C.”. The ratio in this decision is squarely applicable to the case in hand. 20 of 22
33. Turning to the definition of “Abettor” enunciated above. It is essential to understand the first explanation of Section 108 of the I.P.C. “Explanation 1._ The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act”.
34. “Abettor” under Section 108 of the Code is a person who abets an offence and it includes both the person who abets either the commission of an offence or the commission of an act which would be an offence. None of these ingredients are attracted in the given case as already discussed. If that being so, there is no question of the appellant being responsible for the suicide of the victim due to the abetment. The learned Trial Court has failed to appreciate the legal position enunciated in the aforesaid decisions. As such, corollary of the aforesaid discussion is that the impugned judgment and order of conviction and sentence warrants interference in appeal and accordingly following order is expedient. 21 of 22:O R D E R: [a] The appeal is allowed. [b] The judgment and order of conviction dated 7th December, 1999 passed by the Additional Sessions Judge, Pune in Sessions Case No.145 of 1998 is quashed and set aside. [c] The appellant is acquitted of the offences punishable under Sections 498-A and 306 of the I.P.C. [d] His bail bonds shall stand cancelled. [e] Fine amount, if paid, be returned to the appellant.
35. The appeal is disposed of. [PRITHVIRAJ K. CHAVAN, J.]