JUDGMENT
D.G. Deshpande, J.
1. Heard counsel for the appellant – accused
and learned APP for the State.
2. Accused is convicted under Section 306 of
Indian Penal Code and sentenced to suffer R.I. for ten
years and fine of Rs.20,000/- in default R.I. for two
years, out of which compensation of Rs.15,000/- is
ordered to be given to the father of the deceased.
3. Prosecution case was that the deceased
Parvin was the daughter of Babalal – complainant.
After his retirement he was residing at Padali, Taluka
Karad with his family. Some police constables used to
visit the said village for Bandobast and in that the
accused got acquainted with Parvin, one of the three
daughters of Babalal. Both of them fell in love and
they married at Shirdi. Thereafter, both of them
started living together. Thereafter, accused got
acquainted with one Vandana (P.W. 5) he also developed
illicit relations with her. He used to go with her and
stay at Lodging house. However, the second hault at
the lodge was frustrated because of the intervention of
some people. There were quarrels between Parvin and
accused but this did not deter the accused in
maintaining his relations with Vandana. On 14.4.1988
there was Ambedkar Jayanti on that day Parvin saw the
accused carressing Vandana near their residential
quarter, therefore there was a quarrel between Parvin
and the accused. On that day itself she wrote letter
to her father expressing her plight and the mental
agony.
4. On receiving this letter, Babalal went to
Panchgani. However, accused threatened him.
Thereafter Parvins brother went to Panchgani to see
Parvin in May 1988. In June 1988 accused was
transferred from Panchgani Police Station to Vathar
Police Station. While packing of all the household
articles was going on at Panchgani, quarrel took place
between accused and Parvin, foster sister of Parvin
viz. Almas (P.W. 4) was there. At that time she had
intervened in the quarrel.
5. In this background on 22.7.1988 i.e. on the
same day, according to the prosecution Parvin burnt
herself in order to commit suicide. Instead of
admitting her in the Government Hospital at Wai, she
was admitted in Mission Hospital at Wai, by the
accused. Parvin died as a result of 65% burn injuries
on 26.7.1988. Thereafter Parvins father produced the
letter written by her and then the accused came to be
chargesheeted, after investigation. The trial court
believed the case of the prosecution and convicted the
accused as above, and hence this appeal.
6. Learned counsel for the accused – appellant
contended that conviction of the accused under Section
306 I.P.C. was wrong in as much as the prosecution has
failed to prove beyond reasonable doubt that Parvin
committed suicide. He pointed out that Parvin died as
a result of catching fire accidently, and secondly
according to him witnesses examined by the prosecution
did not inspire confidence and there was no material at
least sufficient material to hold that the accused
appellant has abated the commission of suicide.
7. On the other hand, learned APP contended
that the trial court who had opportunity to observe the
demeanor of the witnesses has heavily criticised the
action of the police officers in the instant case which
was just to protect the accused at any cost and to
prove investigation favouring the accused. He
therefore contended that the evidence of Vandana and
letter (Exhibit 14 ) written by Parvin to Babalal, and
the evidence of the neighbour of the accused who was
also a constable were sufficient to prove the
prosecution case of abatement of the suicide.
Therefore the conviction was proper.
8. So far as criticism of the trial court
regarding conduct of the police officer is concerned,
it is fully justified. The circumstances noted out and
pointed out by the trial court as against the conduct
of the police officers who were investigating the
offence are sufficient to hold that police officers
were trying to protect the accused at every cost.
9. This apart, the question is whether the
prosecution succeeds in proving that Parvin committed
suicide or accused succeeds in proving that it could be
the case of accidental death.
10. In order to contend that it was an
accidental death, counsel for the accused – appellant
pointed out that as per the panchnama kerosene lamp was
found in the room with little kerosene in the lamp and
according to the accused Parvin caught fire while
igniting the said lamp and not by committing suicide.
The observations of the trial court in this regard on
page 77 are as under:
“Secondly the tin lamp (chimani) has been
stated to be the cause for the accidental
fire. According to the defence, version
brought on record through the admission of
Almas is that the deceased at the relevant
time in the darkness was trying to ignite
the lamp, having Baby of 2.1/2 months
against her waist, and in the said course
the lamp titled and spilted kerosene and the
burning cotton wick of the said lamp caused
fire. On minute scrutiny of the said lamp,
I found the said cotton wick without any
damage on its lower end, which sucks and
supplies frame.”
Counsel for the accused submitted that the observations
of the court below are wrong. “The end of the wick”
about which the court has made the comments was the end
inside the glass container and dipped in kerosene.
This end does not catch fire because it is inside the
glass container but the other end which is outside the
holder catches fire, and therefore the conclusion
arrived at by the trial court is wrong. It appears
that there is some grain of truth in what is argued by
the counsel for the accused in this regard. However,
the panchnama Exhibit 12A dated 23.7.1988 shows that
there was a smell of kerosene to the clothes, that
there was one black can smelling of kerosene and on the
tiles there is a water and kerosene on different
places. This shows that kerosene was used in large
quantity. Admittedly, the capacity of chimni or lamp
to hold kerosene is very limited and even if that much
kerosene spreads it cannot lead to the accident as
noted in the panchnama. In addition the court has
observed that Exhibit 5 which was a saree of Parvin on
her person did not have even 1% damage by fire on any
side. Thirdly, she had suffered 65% of burns, and all
these three circumstances therefore nullifies the
contention of the accused that it is an accident and
not suicide. Flame of the burning lamp is very very
small and tiny and therefore if Parvin had caught fire
because of that, she would have easily extinguished the
fire by her own hands. Panchnama does not show that
the lamp had broken and the kerosene in the lamp had
spread nor that Parvin suffered 65% of burns as soon as
she caught fire. Use of kerosene on large scale is
necessary and considering the observations in the
panchnama, it is clear that kerosene was used by Parvin
to spread over her body.
11. In the circumstances the defence of the
accused that Parvin might have died as a result of
accident does not stand to reason and it is merely
hypothesis without any support from the record. It has
therefore to be accepted as has been done by the trial
court that Parvin died of suicide.
12. Second question is whether the accused can
be held guilty of abatement. In that regard the trial
court has relied upon the evidence of Vandana and the
neighbour and other circumstances i.e. evidence of
Babalal and the letter written by Parvin. It is this
letter which is weighed heavily by the trial court
coupled with the evidence on record to come to the
conclusion of the guilt of the accused. This letter is
at Exhibit 14. It is written on the same day when
Parvin noticed illicit behaviour of accused with the
said Vandana. The letter is properly proved and it
reveals the mental state of Parvin on account of the
treatment given to her by the accused. Most
surprisingly enough the prosecution could examine
Vandana and in her evidence she has stated the manner
in which she got acquainted with the accused, she
stayed with accused for one night in the lodge. She
stated that when she was returning to Panchgani she met
Parvin who questioned her about her stay and Parvin
also requested Vandana to keep herself away from her
husband whereupon Vandana protested that the accused
was trying to contact her on public road, though she
did not desire and he used to misbehave with her like
road side romeo. She also stated that because of the
said behaviour she had to give up her services. She
advised Parvin to control the accused. She has also
narrated about the incident that took place on Ambedkar
Jayanti behind the police station. This evidence of
Vandana goes a long way against the accused because
firstly because no woman would come to the court and
depose about her illicit relations and give such
admissions. It is true that in her cross-examination
she has admitted that because of her suspicion of
relations between Vandana and accused Parvin used to
quarrel. But this admission does not carry any
importance because of the admission in the examination
in chief given by Vandana that she had stayed with the
accused in lodge and that she was questioned by Parvin.
This evidence of Vandana is sufficient to prove the
illicit relations and its knowledge to Parvin before
commission of the suicide. Second evidence is of
Nathaji (P.W. 6) who was a neighbour of the accused.
He was also a Police Constable and he has stated that
there used to be quarrels between the accused and
Parvin and one of the reason of the quarrel was illicit
relations of the accused with Vandana. In the
cross-examination the defence has not been able to
falsify this witness or create doubt about its
testimony. Apart from these witnesses, evidence of the
father and brother of Parvin also strongly supports the
prosecution case of ill-treatment. Babalal is examined
as P.W. 2. He has clearly admitted that he was
against Parvin eloping with the accused and marrying
him. He has stated about receipt of letter dated
14.4.1988 (Exhibit 14). He has stated that after
receiving this letter he went to Panchgani to take
Parvin but the accused did not permit him to speak with
Parvin who was in the hospital i.e. dispensary and on
the contrary he threatened Babalal to leave the room.
Thereafter, Babalal has stated “I therefore allowed my
tears to roll on my cheek and returned by S.T. to my
village Padali.” He has stated that thereafter he sent
his son Nijamuddin to Parvin. Parvin asked Nijamuddin
to leave her house immediately otherwise accused would
have beaten him.
13. Babalal has further stated that when Parvin
was admitted in the burns ward, he talked with her,
thereupon she told him about the harassment and cruelty
she has suffered. However, he was confronted with his
statement to the police and this appears to be an
omission on his part. Therefore, the so-called oral
dying declaration given by Parvin to Babalal cannot be
believed. But other evidence of this witness Babalal
has helped the prosecution case in proving the
behaviour of accused with Parvin. Nijamuddin is the
brother of Parvin. He has talked about Exhibit 14
letter written by Parvin. He has proved to be in her
handwriting and has stated that after receiving the
letter he went to Panchgani to see her but Parvin asked
him to go because she was afraid that accused would
beat him.
14. Next witness is Almas Shaikh (P.W. 4). She
has stated that Parvin used to visit her house
frequently, that the accused used to beat her after
consuming liquor, that the accused had mistress by name
Vandana and it was for these reasons that Parvin was
beaten. Parvin also used to narrate her about the
ill-treatment given to her by the accused. Then she
has narrated one incident that took place on 22.7.1988
i.e. on the same day of committing suicide. Counsel
for the accused tried to exploit the admission given by
this witness that Parvin told her in the hospital that
she was trying to ignite chimni with her minor son in
her hand and in that process she lost balance and fell
on the chimni, the lamp splited kerosene and she caught
fire. She has also admitted that the Magistrate was
called and dying declaration was recorded in her
presence and in the presence of doctor.
15. Counsel for the accused tried to contend
that if dying declaration of Parvin was recorded and it
was favourable to the accused it was the duty of the
prosecution to produce the same on record and prove it
and since prosecution has failed to prove dying
declaration, adverse inference should be drawn against
the prosecution.
16. As against this, it is brought to my notice
by the learned APP that even if the prosecution did not
try to prove the dying declaration, the accused had
given an application for examining S.E.M. who recorded
the dying declaration, that application was allowed by
the court, summons was also ordered to be issued to the
Magistrate but then ultimately and lastly accused did
not examine the said S.E.M. and informed him
accordingly that he does not wish to examine the S.E.M.
17. If this is so then it is clear that even
though according to the accused the said dying
declaration was in his favour and he had taken steps to
examine the S.E.M. and ultimate withdrawal from that
stand by the accused and refusal to examine the S.E.M.
are circumstances going against the accused. Firstly,
therefore no adverse inference against the prosecution
can be drawn and secondly no inference can be drawn
that that dying declaration was favourable to the
accused.
18. The most important piece of evidence
tendered by the prosecution is letter (Exhibit 14)
referred to above. It is forming part of the record.
Parvin has expressed her regrets for marrying the
accused against the advise of her father, she had
informed that she is in great trouble and he should
immediately come to see her. She has also intimated
that if anything dangerous happens to her, the letter
should be kept safely. That she is being beaten and
thought of killing her is going on. She has asked the
father to treat the letter as telegram and she has
stated that she cannot say anything about her own
survival. This letter is properly proved to have been
written by Parvin and Babalal has stated that after
receipt of this letter he went to see Parvin but
accused did not allow him to meet Parvin and to the
contrary threatened him. Thereafter, brother of Parvin
also was not permitted by the accused to stay in the
house because of fear of the accused.
19. All the circumstances, namely, illicit
relations with Vandana, admission by Vandana in that
regard, evidence of the neighbour, letter Exhibit 14
and evidence of Babalal- father of Parvin and
Nijamuddin – brother of Parvin are therefore sufficient
to hold that accused abated commission of suicide. For
all these reasons judgment of the trial court is
required to be maintained.
20. Counsel for the appellant – accused lastly
submitted that looking to the circumstances of the
case, the age of the accused and that the incident has
taken place 13 years ago, sentence should be reduced.
I am therefore passing the following order :
ORDER
21. Appeal is partly allowed. Conviction of the
appellant-accused is upheld. However, his sentence is
reduced from ten years to seven years. Rest of the
impugned order to remain the same. Accused to
surrender before the trial court within four weeks from
today. Thereafter, his bail bond shall stand
cancelled. Appeal disposed of accordingly. Certified
copy expedited.