Partly allowed

Sahebrao Bhagatram Waghmare and Ors. v. the Stae of Maharashtra

Bombay HC13 Nov 2014APEAL/547/1994

Case brief

AI extract

What is this about?

In a criminal appeal under 498-A IPC, the High Court upheld the conviction of the mother-in-law for dowry harassment causing daughter-in-law's death but acquitted the son-in-law due to lack of specific evidence and infirmities in dying declarations.

What did the court decide?

Appellant no. 2 convicted and sentenced to already undergone period; Appellant no. 3 acquitted of 498-A IPC.

Sahebrao Bhagatram Waghmare and Ors. Vs the Stae of… — Cheque Dishonour | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE JURISDICTION CRIMINAL APPEAL NO. 547 OF 1994

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Sahebrao Bhagatram Waghmare 2. Smt. Shantabai Sahebrao Waghmare 3. Ramesh Sahebrao Waghmare All R/o Kudgaon, Katrap Road, Saibaba Nagar, Taluka _ Ulhasnagar, Dist. Thane

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.....Appellants

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V/s.

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The State of Maharashtra

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....Respondent

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Mr. Tejas Hilage for Appellant Ms. P. P. Shinde APP for the State.

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CORAM : SMT. SADHANA S. JADHAV, J. DATED : NOVEMBER 13, 2014

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JUDGMENT:

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1. Appellants herein are convicted for offence punishable under section

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498 (A) r/w 34 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for 18 months and fine of Rs. 500/- each i.d. to suffer further rigorous imprisonment for 3 months in Sessions Case No. 633 of 1987 by Additional Sessions Judge, Greater Bombay vide Judgment and Order dated 23/09/1994. Being aggrieved by the said Judgment and Order, appellants have preferred this appeal. Appellant no. 1 Sahebrao Bhagatram Waghmare is reported to have expired in February 1996 and hence, by an order dated

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25/06/2012, appeal against appellant no. 1 stands abated. Merits of the appeal are being considered only as far as appellant nos. 2 & 3 are concerned. Appellant no. 3 happens to be the son of appellant no. 2. The deceased was wife of appellant no. 3.

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It is the case of prosecution that appellant no. 3 was married to Tulsabai Waghmare on 13/01/1983. Couple was blessed with two children. On 06/03/1987 Tulsabai was admitted in Rajawadi Hospital with history of burns. Her statement was recorded by the police. In her statement before the police, she has disclosed that she was married to appellant no. 3 five years ago. Ever since her marriage, her in-laws i.e. her mother-in-law and her father-in-law were ill-treating her. They used to harass her. Her husband also, at the instigation of his parents, used to abuse her and assault her. Being fed up with the ill-treatment meted out to her, she had abandoned her matrimonial house and was staying with her parents for about 2 years. After she gave birth to the son, the dispute was amicably resolved and therefore, she came to reside in her matrimonial home. Her in-laws used to abuse her quite often in order to drive her to her maternal house. On 06/03/1987 at about 1.00 pm, in the

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afternoon her mother-in-law had left the house to work as a house maid. Her sister-in-law also had left the house. Her husband was working at Badalapur. He used to visit his house once in a week. At about 2.00 pm in the afternoon,

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her father-in-law started hurling abuses at her. She was alone at home. She was fed up with the ill-treatment meted out to her and therefore, she had poured kerosene on herself and had set herself ablaze. The neighbours rushed to her and extinguished the flames by pouring water. Her mother-in-law came home and took her to Rajawadi Hospital for treatment.

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On the same day, i.e. on 06/03/1987, her statement was also recorded by the Special Executive Magistrate Hardatt Ramdas Sharma. The Statement was recorded in Hindi. It is stated in the said statement that on 06/03/1987 at about 2.00 pm, her mother-in-law had left the house for work. Her husband

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was at Badlapur. There were no vegetables available in the house and therefore, her father-in-law got enraged and abused her. She could not take insult, humiliation and ill-treatment any more and therefore had immolated herself. The statement recorded by the Special Executive Magistrate is at exhibit 15 whereas statement recorded by police at Rajawadi Hospital is at

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exhibit 20 (A). Crime no. 25/1987 was registered at R.C.H. Police Station against the accused persons for offence punishable under section 498 (A) r/w 34 of Indian Penal Code. Tulsabai was taking treatment in the hospital for 21 days. She succumbed to the burn injuries on 28/03/1987 at about 7.30 am. Thereafter, section 306 of Indian Penal Code was added. The accused were arrested. Investigation was completed and charge-sheet was filed. The case was committed to the Court of Sessions and registered as Sessions Case No. 633 of 1987. Prosecution examined 8 witnesses to bring home the guilt of the accused.

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P. W. 1 Milind Kamble happens to be the neighbour of appellants. He has disclosed that accused persons used to quarrel with Tulsabai frequently. She used to complain to the neighbours about the same. They were advised by the neighbours not to ill-treat Tulsabai. However, neighbours were warned by the accused persons. According to P. W. 1, Tulsabai had been to their house 2 to 3 days before. She was pregnant at that time. She had informed the mother of P. W. 1 that she has been kept in starvation by her in laws and had demanded something to eat. She had food at the house of P. W. 1.

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P. W. 2 Smt. Mahadevi Gajare is also the neighbour of the accused persons. She has specifically deposed before the Court that Tulsabai was harassed and ill-treated by her in-laws. According to P. W. 2, at the time of incident, father-in-law had snatched child from Tulsabai and at that time Tulsabai was murmuring that she does not wish to live anymore. Tulsabai was seen in flames and the same was extinguished by the neighbours.

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P. W. 3 Narsamma Katke is also neighbour who has specifically alleged that Tulsabai was ill-treated by her in-laws. Accused persons had told the neighbours not to interfere in their matrimonial disputes. P. W. 3 has admitted that the happenings in the house of the accused were not visible from her house. She had heard the quarrels from the house of the accused persons. There are inherent omissions and contradictions in the evidence of P. W. 1, 2

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& 3.

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P. W. 4 Abdul Rahim Mujawar is also a neighbour of the accused. According to him, quarrels between the accused and deceased were domestic

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quarrels and it was a routine course.

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P. W. 5 Haridatt Sharma is Special Executive Magistrate who had recorded the statement of Tulsabai on 06/03/1987. He admits recording of the statement of Tulsabai in Rajawadi Hospital. He has deposed before the Court about the narration made before him by the deceased. He has proved the contents of the statement which is at exhibit 15 which was recorded by him. It is pertinent to note that principal allegations are levelled against father-in-law whose appeal stands abated. In the cross-examination he has admitted that this was the first case where he has recorded the dying declaration. He has admitted in the cross-examination that he had not obtained the opinion of the doctor about the health of Tulsabai before recording her statement. After recording the statement also, he had not sought opinion of the doctor in respect of evidence of Tulsabai. It is admitted that the time of recording of the statement has not been mentioned at exhibit 15. The thumb impression of Tulsabai is not attested. He has also stated that the contents of the statement

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were not read over to the deponent and verified to be true and correct.

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The Division Bench of this Court, Nagpur Bench (Coram: A. H. Joshi and Smt. Sadhana S. Jadhav, JJ) in the case of Paikuji s/o Shankar Ataram Vs. State of Maharashtra had placed reliance on the Judgment of Hon'ble Apex Court in the case of Sheikh Bakshu and others Vs. State of Maharashtra reported in (2008) 1 Supreme Court cases (Criminal), 679. It is held by the Apex Court that :-

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“There was no mention in the dying declaration that it was read over and explained to the deceased. The trial court and the High Court concluded that even though it is not stated, it has to be presumed that it was read over and explained. The view is clearly unacceptable.”

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In the present case also, the statement of the deponent was not read over to her and verified by her to be true and correct, hence, no implicit reliance can be placed upon the same to convict the present appellants.

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P. W. 6 Doctor Bipin Lal has proved the medical case papers of patient Tulsabai. The doctor who had admitted Tulsabai had endorsed that patient was brought by mother-in-law with case of history of suicidal burns with kerosene. Patient was conscious and had sustained burns to the extent of 60%. Tulsabai was pregnant of 6 months at the time of incident. Due to the burn

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injuries, she had delivered premature female child and the child had died at birth. It is specifically admitted in the cross-examination that the death was due to complications of burns. There was infection, septicemia was caused.

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P. W. 7 Chandar Kashiram Dhambale is the father of deceased Tulsabai.

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He has deposed before the Court that initially Tulsabai was happy in her matrimonial home. Thereafter, she has informed that she was ill-treated by the accused. She had denied to return to her maternal house. She had sent letters to her father complaining about the accused no. 1 i.e. father-in-law. According to the witness, appellant no. 3 had also assaulted Tulsabai in his presence and therefore, he had sought intervention from the maternal uncle. He had taken Tulsabai to her maternal house. It is pertinent to note that in the crossexamination P. W. 7 has specifically admitted that appellant no. 2 i.e. motherin-law of Tulsabai happens to be his step sister.

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P. W. 8 Ashok Jagadale is P.S.I. who had investigated in the said offence. He has proved the omissions and contradictions in the evidence of the witnesses.

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The case mainly rests upon two dying declarations of the deceased which are at exhibit 15 & 20 A. It is pertinent to note that both the dying declarations are recorded on the same day. The time of recording the said statement does not find place on the said statements and hence, it cannot be ascertained as to which of the two statements is first in point of time. There is no endorsement of the doctor on the statement recorded by the Special Executive Magistrate. However, doctor has deposed, on the basis of medical case papers that she was conscious at the time of admission. Patient had sustained 60% burn injuries and therefore, the said statement can be relied upon. It is seen that the said statement was not read over to the deponent and not verified to be true and correct. Recording of dying declaration is not an idle formality. It is incumbent upon the prosecution to prove beyond reasonable doubt that the said statement is recorded as per the narration of the deceased and in the language of the deceased. At this stage, learned counsel (Appointed for the appellant) rightly submits that only because Special Executive Magistrate was acquainted with Hindi language, he has recorded the statement in Hindi, whereas, deceased who has studied up to 6^th standard

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was normally speaking in Marathi and therefore, it cannot be said that narration of the said statement is in the language of the deceased. The statement which is recorded by the police officer is in Marathi language and is in the language of the deceased. The thumb impression is not attested by the Special Executive Magistrate. Exhibit 20 (A) bears thumb impression of the deceased.

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Be that as it may, upon plain reading of both dying declarations, it is clear that principal allegations are against father-in-law i.e. appellant no. 1 whose appeal stands abated. There is no overt act attributed to appellant no. 3. In fact, on the date of incident, he was not in the house along with deceased Tulsabai and he was at Badlapur. The only statement as against appellant no. 3 is by the father-in-law i.e. father of the deceased. The neighbours have also categorically stated that Tulsabai was harassed and ill-treated by her in-laws. They have not attributed any specific role to appellant no. 3. There are serious infirmities in the dying declarations. Appellant no. 3 deserves to be acquitted of the offence punishable under section 498 (A) of Indian Penal Code, where as conviction of appellant no. 2 for offence punishable under section 498 (A)

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of Indian Penal Code is upheld.

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Before parting with the Judgment, this Court record appreciation for the efforts taken by Mr. Tejas Hilage, Advocate appointed from High Court Legal Services Committee, Bombay to represent the appellant. The legal fees to be paid to him by the High Court Legal Services Committee are quantified at Rs. 3000/-. The said fees be paid to Advocate Mr. Tejas Hilage within three months from today.

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O R D E R

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(i) Appeal is partly allowed.

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(ii) Appeal against appellant no. 1 stands abated.

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(iii) Conviction of the appellant no. 2 for offence punishable under

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section 498 (A) of Indian Penal Code is maintained. She was approximately 65 years old at the time of recording of her statement under section 313 of Code of Criminal Procedure, 1973 i.e. in the year 1987. Appeal has come up for hearing after 20 years and in all probabilities she would be 85 years old. Hence, she is sentenced to the period already undergone by her during the trial.

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(iv) Appellant no. 3 is acquitted of the offence punishable under

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section 498 (A) of Indian Penal Code.

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