Bombay High Court
Naresh Keshaorao Ganar vs State Of Maharashtra, on 3 October, 2016
Bench: S.B. Shukre
Citation:2017 ALLMR(CRI)197
This is an appeal challenging the judgment and order dated 28/08/2015 delivered in Sessions Case No.110/2014 by the learned Additional Sessions Judge, Wardha.
02] Heard finally by consent. Paper-book is dispensed with.
03] Facts giving rise to this appeal are stated, in brief, thus :
The marriage of the appellant was solemnized with deceased Jyoti in the year 2009 and after solemnization of the marriage, deceased Jyoti started cohabiting with the appellant. At the time when the incident occurred, the appellant and his deceased wife Jyoti were residing at village Shekapur (Bai), falling within the jurisdiction of Police Station Wadner, Tahsil Hinganghat, District Wardha. Some time after the marriage, it is alleged that the appellant started harassing and treating cruelly the deceased Jyoti by subjecting her to beating under the influence of liquor. It is alleged that the appellant used to suspect character of the deceased and then under the influence of liquor, used to beat her. According to the complainant, the father of the deceased, such kind of cruel treatment of deceased Jyoti had become a regular feature before she committed suicide.
In the afternoon of 01:00 p.m. of 04/04/2014, when deceased Jyoti was present in her house, appellant returned to the house and at that time, he was drunk. As soon as he entered the house, he suspected fidelity of his wife and hurled abuses at her. This incident proved to be the last straw in the disturbed relationship between Jyoti and the appellant. It made Jyoti take extreme step of committing suicide. She went to the kitchen of her house, poured kerosene oil on her person and set herself afire. Hearing the shouts of Jyoti, appellant rushed into the kitchen and extinguished the flames by pouring water on the person of Jyoti. The appellant took her to RuralHospital, Wadner. She was admitted there for a temporary period of time.
Her dying declaration was recorded in which deceased Jyoti stated that she caught a fire in an accident triggered by sudden flare up of the kitchen stove.
Later in the evening, she was shifted to the Government Hospital at Wardha, where she succumbed to the burn injuries. Before that, her another dying declaration was recorded by a different police constable in the presence of the treating Doctor. In the second dying declaration, deceased Jyoti put the entire blame upon the appellant. It was treated as a complaint and the crime was registered against the appellant for the offences punishable under Sections 498-A and306 of the Indian Penal Code. After completion of the investigation, charge-sheet was filed against him.
On merits of the case, the learned Additional Sessions Judge found that the prosecution succeeded in proving beyond reasonable doubt the offences punishable under Sections 498-Aand 306 of the Indian Penal Code, with which the appellant was charged and accordingly, by the judgment and order rendered on 28/08/2015, convicted and sentenced the appellant for these offences by imposing imprisonments for two years and seven years together with fine amounts of Rs.2,000/- and Rs.5,000/- accompanied by default sentences of two months and six months respectively. It is the same judgment and order, which are under challenge in the present appeal.
04] The learned Counsel for the appellant submits that the impugned judgment and order are perverse and illegal, as they do not take into account the material inconsistencies between two dying declarations vide Exh.38 and Exh.33. She further submits that except for the dying declaration vide Exh.33, there is no evidence brought on record by the prosecution proving the fact that there was a cruelty of consistent nature thereby creating the desperate situation for the deceased to commit suicide.
05] The learned A.P.P. for the State supports the impugned judgment and order. He submits that the first dying declaration vide Exh.38, which exonerates the appellant, is not supported by the circumstantial evidence inasmuch as it was recorded in the presence of the appellant. Therefore, he further submits that the learned Additional Sessions Judge has rightly rejected the first dying declaration. He also submits that the second dying declaration has been recorded by PW-5 Suresh Ganpatrao Lakhe by satisfying himself about the fitness of the deceased to make a statement and his evidence is duly supported by the evidence of the Medical Officer, PW-1 Dr. Mohan Bhanudas Sute. He also submits that PW-8 Sheshrao Khandalkar, the complainant, has deposed about the consistent nature of cruelty in a specific manner and his cross-examination has not revealed anything against the prosecution.
06] Upon going through the impugned judgment and order and record of the case, I am of the view that there is great substance in the argument of the learned A.P.P. for the State and no merit in the argument of the learned Counsel for the appellant.
07] The evidence of PW-6 Deepak Jaganrao Tumdam, the Head Constable, who recorded the first dying declaration (Exh.38), shows that deceased Jyoti was brought to Rural Hospital, Wadner by her husband. This has not been disputed by the appellant-husband as can be seen from the cross-examination of PW-6 Deepak Tumdam. In this statement, deceased Jyoti has stated that she caught fire because there was sudden flare up in the flame of the stove. According to this statement, the flare up occurred when she had kept a bowl full of water on the burner of the stove in order to prepare tea. However, Spot-Panchnama, which is part of Crime Details Form vide Exh.39, shows the circumstances to be of different nature. No bowl containing water was found and no stove, which had either burst or of which flames had flared up, was found. Therefore, a serious doubt arises about the credibility of the first dying declaration vide Exh.38. There is another aspect which makes one believe that this dying declaration is not voluntary and truthful. The requisition slip given to the Medical Officer by Head Constable PW-6 Deepak Tumdam is at Exh.36. It has been issued by him before taking down the dying declaration of deceased Jyoti. This requisition slip mentions the fact that the deceased caught fire when the stove, on which she was preparing tea, got flared up. It is obvious that PW-6 Deepak Tumdam, the Head Constable, had already made up his mind even before recording dying declaration that deceased Jyoti caught fire accidentally. It may have been done by PW-6 Deepak Tumdam because the appellant was present at that time. For all these reasons, the first dying declaration vide Exh.38 cannot be held to be reliable and has been rightly rejected by the learned Additional Sessions Judge.
08] About the second dying declaration vide Exh.33, I find that it inspires confidence. It has been recorded in the presence of PW-1 Dr. Mohan Sute. His evidence shows that he was present all along when the dying declaration was being recorded. Before starting the recording, PW-8 Dr. Mohan Sute had satisfied himself about the physical and mental condition of the deceased. Even after the recording was over, PW-1 Dr. Mohan Sute made an endorsement below this dying declaration that it was recorded in his presence. There is nothing in his evidence to entertain any manner of doubt about the role performed by him. This dying declaration is by and large consistent with the Panchnama forming part of Crime Details vide Exh.39. It also receives support from the evidence of PW-1 Sheshrao Khandalkar, the father of deceased. There is no such material in the cross-examination of PW-
8 Sheshrao Khandalkar, which would enable this Court to reject his evidence as of untrustworthy nature. He has stated that the appellant used to abuse and beat deceased Jyoti by raising doubt against her character and that deceased Jyoti used to inform him of such cruel treatment at the hands of the appellant over telephone and also personally at times, whenever she used to visit his house. The learned Sessions Judge has, therefore, rightly held that the second dying declaration vide Exh.33 as well the evidence of PW-1 Sheshrao Khandalkar inspire confidence and reasonably establish that the appellant used to subject deceased Jyoti to physical and mental harassment by beating her as well as suspecting her character.
09] Suspecting character of a married woman is cruelty for her, and all the more so for a woman like the deceased Jyoti, raised in a society which treats marriage a sacrament and fidelity a cherished virtue. When it is recurrent, it amounts to instigation to commit suicide as contemplated under the law or to be precise under Section 107 of the Indian Penal Code, 1860, as the married woman finds herself caught between the devil and the deep blue sea in the sense that on the one hand, doors of her parental home are closed for her and on the other, her husband is relentless in ill-treating her. In such a situation, a married woman would think that the only way to relieve herself of the pain and humiliation is to a resort to the extreme step of putting an end to her life. This is what has occurred in the present case. Therefore, there is no reason for me to make any interference with the findings of the guilt of the appellant for the offences punishable underSections 498-A and 306 of the Indian Penal Code recorded by the trial Court.
10] On the question of sentence, the learned Counsel for the appellant submits that the applicant has no criminal antecedents and he is in jail since April, 2014, for a period of about 2 years, 5 months or so. She further submits that when the appellant was arrested, his son was about five years old and because of his long incarceration in jail, he could not take proper care of education and developmental needs of his son. She also submits that the appellant does not know as to how his son is being looked after by his relatives and having realized his mistake, he is very anxious to lead a reformed life and contribute to development of his son into a good human being. On these grounds, the learned Counsel for the appellant seeks leniency from this Court. The learned A.P.P. for the State submits that appropriate order in this regard which suits the interest of justice, be passed.
11] I have no reason to reject these entreaties of learned Counsel for the appellant and I am of the view that this would be a fit case for showing leniency to the appellant and, therefore, I find that the interest of justice shall be served if the term imprisonments awarded to the appellant are confined to the period of detention already undergone by him till today. In the result, the following order is passed.
i. The appeal is partly allowed.
ii. The conviction of the appellant for the offences punishable under Sections 498-A and 306 of the Indian Penal Code is maintained. However, the substantive sentences of term imprisonments imposed upon the appellant for the offences punishable under Section 498-A and 306 of the Indian Penal Code are modified and substituted by the sentences of imprisonments for both these offences for the terms running concurrently for such period as is equivalent to the period of detention already undergone by the appellant, till the date of this order.
iii. Rest of the impugned judgment and order are confirmed.
iv. The appellant be released accordingly.
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