SHAMRAO DADARAO JADHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is filed by the appellant original accused challenging the judgment dated1-6-2000, passed by II Additional Sessions Judge, Osmanabad, in Sessions Case No. 173 of 1999, by which he is convicted for offences under Sections 498-A and 306 of Indian Penal Code and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-, in default to undergo further rigorous imprisonment for three months and to undergo rigorous imprisonment for four years and to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for six months, respectively.

(2.) ON the night of 6-4-1998, at about9. 00 p. m. the victim Sangita, the wife of accused, committed suicide in the house in the presence of accused by pouring kerosene on her person. The appellant tried to extinguish the fire in his bid to save his wife Sangita. She suffered 100 per cent burns. She was brought to the hospital and while she was undergoing treatment, police Head Constable Abdul Shaikh (PW10), who was attached to Civil Hospital Out Post Solapur, recorded her statement, after she was examined and certified to be conscious to give statement by Dr. Suryakant Kamble (PW8), who was then Medical Officer attached to Solapur Civil Hospital. In her statement, she made a disclosure that on earlier day she was ill-treated and subjected to cruelty by her husband - appellant, as she sold clandestinely some quantity of Jowar and on account of that torture by the appellant, she committed suicide by pouring kerosene on her person. She has also stated that her husband, who was very much present in the house, extinguished the fire and brought her to the hospital. This statement, which is marked Exh. 39, was accepted as dying declaration, which is first in time. This statement was forwarded to Tamalwadi police station and treated as first information report. Offence was registered under Section498-A of Indian Penal Code vide C. R. No. 8 of 1998. While Sangita was undergoing treatment in the hospital, on that night at about1. 35 a. m. the Executive Magistrate Haridas Dhobale (PW7) recorded statement of Sangita after Medical Officer Dr. Appasaheb Ingle (PW9) on examining her certified that she was conscious and well oriented to give statement. This statement, which is marked Exh. 34, is treated and accepted also as the dying declaration. In this statement also the victim Sangita made a disclosure about the incident that took place on the night of 6-4-1998, wherein she poured kerosene on her person and herself set on fire for the reason that her husband subjected her to cruelty as she sold some quantity of Jawar. The fact that her husband extinguished fire is also specifically stated and incorporated in the statement Exh.34. After the offence was registered, the Investigating Officer Police Sub-Inspector Shaukat Jamadar (PW6) took up the investigation in the matter, Sangita succumbed to injuries on9-4-1998. She died of burns, as opined by Medical Officer who carried autopsy on her body. After completing investigation, appellant was sent up for trial for offences under Sections 498-A and 306 of Indian Penal Code, first in the court of Judicial Magistrate, First Class, Tuljapur, who in turn committed the case to the court of Sessions.

(3.) AS regards the evidence of witness Hausabai (PW2) and Savita (PW3), their evidence is left out of consideration, as both of them did not support the prosecution. The trial court has rightly not taken into consideration their evidence. AS such, their evidence is of no assistance to the prosecution. But then, having regard to the fact that Sangita was married to appellant some 12 years before and she used to visit her parents house to meet her mother, sister and father, she expressed no displeasure or grudge against the conduct of the appellant of ill-treating her, is a circumstance, which, in my opinion, falsifies the claim of the victim in her statements Exhs. 39 and 34, as also the evidence of witness Sunita (PW4) and Mangal (PW5 ). In the nature of things, if really there had been constant torture, harassment and ill-treatment on the part of appellant to the victim, in all probability, the victim Sangita would have first disclosed it to her near relatives, namely, her mother, father and sister. What is surprising in this case is that Sangita has not claimed in her statements i. e. dying declarations at any time in the past even on single occasion that she had informed her parents or sister about the harassment and ill-treatment meted out to her by the appellant. I do not wish to give much emphasis on the fact that these two witnesses Hausabai (PW2) and Savita (PW3) in their evidence did not state or declined to state that Sangita informed them about ill-treatment meted out to her. But then, since both of them, being near relations of Sangita, having not supported the prosecution case, appears to be something strange. At least, the prosecution has not come out with any tangible material to justify as to why these two witnesses did not support the prosecution. Therefore,this fact of both these witnesses having not supported the prosecution has its own bearing on the credibility of the evidence of witnesses Sunita (PW 4) and Mangal (PW5 ).