SHRIMAL SHOBHACHAND BORA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) FOLLOWING an unfortunate incident at Goregaon on 19-10-1984 where in a young married woman by the name of Meena sustained sever burn injuries, the Police registered an offence on 20-10-1984. The father of the girl lodged a complaint to the effect that the husband, who is original Accused No. 3 Sunil Shrimal Bora, and his parents, who are original Accuied Nos. 1 and 2, were responsible for the death of Meena. It was his contention that there was an original demand for Rs. 7. 000/- by way of dowry and that his daughter had been ill-treated by the accused and that, consequently, the suicide by Meena, which had taken place on 19. 10. 1984, was caused by the three Accused who were also liable under Section 498-A of the Indian Penal code for having treated her cruelly. The couple was married in February 1982 and the marriage was about 2-1/2 years old when Meena sustained the burn injuries. On the basis of the complaint, the Police arrested the three Accused and on completion of their investigations chargesheeted all three of them. After the case was committed to the Court of Session, an application for discharge of the Accused came to be filed in which icveral contentions were raised, one of them being that the relevant Sections under which the Accused stood charged bad come on to the statute book at a point of time subsequent to some of the incidents that are alleged and that, therefore, the sections could have no application. The learned Additional Sessions Judge, Greater Bombay, who beard the respective learned Counsel, has embarked upon an elaborate discussion relating to the relevant provisional of law and, basing his decision on several reported cases, held that the contention regarding the retrospective application was devoid of substance. The learned trial judge has also, in his order dated 20-ID-1991, uphold the prosecution contention that the references in the evidence to the demand for dowry and the statements of the neighbours are sufficient to create a prima facie suspicion in (he mind of the Court that the Accused are not entitled to be discharged. It is against this order that the present Criminal. Revision Application has been filed.

(2.) THIS Court had admitted the petition on 20-! 1-1991 and granted interim stay of the proceedings. Subsequently, an application came to be filed on behalf of the original complainant for vacation of the stay, at which time a direction was issued for early hearing of this application. A further complaint was addressed to the Hon'ble the Chief Justice alleging that because of the pendency of the present proceedings the trial has been held up, pursuant to which the preient criminal Revision Application was placed on board for immediate hearing and disposal.

(3.) SHRIMATI Ponda, learned Counsel appearing on behalf of the applicants, has pointed out to me that the only evidence of any consequence in this case consists of the dying declaration of the deceased girl Meena as also the statement of her father and the statements of the witness. Shrimati Ponda has referred in detail to the dying declaration of Meena recorded on 19-10-1984 and has pointed out that she places very strong reliance on this dying declaration instead of disputing it. Shrimati Ponda has submitted that the dying declaration unequivocally makes out a case that Meena was childless and that this appeared to be the ground on which "she had to listen to the talk of persons in the house". Shrimati Ponda does not dispute the fact that having regard to the strata in life to which the Accused belonged that if the girl did not conceive a child in the early stages of a marriage that it would be a matter not only of concern hut obviously of some degree of unpleasantness to everyone concerned. She pointed out that the girl has very clearly stated that she was virtually fed up with life because of this problem and that she committed suicide of her own accord and she added that she has no complaint or grievance against anybody elie. It is the contention of, Shrimati Ponda that this dying declaration, therefore, is of no assistance to the prosecution for the purpose of establishing either of the two charge. She thereafter referred in detail to the statement of the father who has made nothing more than a vague reference to some demand for dowry which again was at a point of time far remote from the date on which the incident took place. He does refer, in passing, to the fact that according to him the Accused are responsible for the death of his daughter. This, however, is his conclusion, but he does not adduce any cogent evidence in respect of this charge. Shrimati Ponda also pointed out that the evidence of the neighbours is to the effect that she understood that the girl was being starved and was, therefore, very weak. Shrimati Ponda was also critical of a very material statement which is attributed to the father of Meena wherein he alleged that the girl had in fact, conceived on an earlier occasion and had to undergo an operation because the in-laws were not willing to spend money for her conception. She pointed out, and with some justification, that this allegation runs directly contrary to the case of childlessness which is made out by the girl in her dying declaration. It is the submission of Shrimati Ponda that in the absence of cogent, reliable and sufficient material before the Court that-the continuation of the trial would be nothing short of harassment to the Accused when it is as clear as daylight that no conviction can result therein. She, therefore, submitted that regardless of the grounds on which the learned Additional Sesssions Judge has rejected the application, namely, the correctness of the theory of retrospective application of the relevant Sections, etc. , that the Accused are still entitled to a discharge.