2002 ALL MR (Cri) 2640
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.G. DESHPANDE AND A.S. AGUIAR, JJ.

State Of Maharashtra Vs. Kamalakar Nandram Bhavsar & Ors.

Criminal Appeal No.334 of 1987

31st October, 2002

Petitioner Counsel: Mr. PRAVIN SINGHAL
Respondent Counsel: Mr. V. T. TULPULE, Mr. C. K. PENDSE

(A) Evidence Act (1872), S.32 - Criminal P.C. (1973), S.294 - Dying declaration - Not produced by prosecution as its evidence - Accused applying for production - When produced by prosecution accused not examining Special Judicial Magistrate, the doctor, and/or police officer to prove contents and thumb impression of deceased - Notice not served by accused to prosecution to admit the document - Trial Judge without clarifying anywhere as to who produced the dying declaration or at whose instance it was produced or from whose custody it was produced, directly taking it on record - Held there was serious lapse on the part of trial court in admitting declaration on record. (Paras 23-27)

(B) Evidence Act (1872), S.32 - Dying declaration - Evidence and proof - Deceased receiving 94% burns - Declaration recorded between 9.10 a.m. to 9.45 a.m. and deceased dying at 10.10 a.m. - Doctor who conducted post mortem certifying whether deceased was mentally fit to make declaration - Doctor not stating to which ward viz. burns, casualty or emergency he belonged - Deceased at 8 a.m. itself when she was admitted had not passed urine and was on oxygen or was likely to be given oxygen, It was highly improbable and suspicious that she was in a fit mental condition to give statement at 9.10 a.m. - Trial judge not recording as to from whose custody dying declaration came on record, allowing questions to doctor and P.W. about declaration when it was not before the court at all and getting their answers in favour of accused - Reference to chimney lamp in dying declaration as causing burn injury but same contradicted by spot panchanama which recorded presence of electric light, four litre can of kerosene, burnt match stick and pieces of petticoat, saree, brassier all smelling kerosene - Held all these circumstances indicated that dying declaration was forged and fabricated. (Paras 34-38)

(C) Penal Code (1860), Ss.306, 498A r.w. 34 - Deceased receiving 94% burn injuries - Dying soon after admitting in hospital - Dying within 7 years of her marriage - Her dying declaration suggestive of accidental death found to be forged and fabricated - Panchanama showed that kerosene was used - Deceased had filed application for maintenance on ground of ill-treatment and was decided in her favour - She was subjected to ill-treatment, mental and physical torture because of her black complexion, short of hearing, was brutally beaten, made to starve, brought back from her parents inspite of Satyanaryan Pooja - No attempt was made by anybody to save her and none else had received any burn injuries - Held setting aside acquittal order that all the accused were liable to be convicted and sentenced for offences under Ss.306, 498-A r.w. 34. (Paras 51-55)

JUDGMENT

D. G. DESHPANDE, J.:- This is an appeal against the acquittal filed by the State. All the accused - respondents were prosecuted for offence under Section 306 read with 34, 498 and 498A of the Indian Penal Code by the Sessions Judge, Nashik in Sessions Case No.131 of 1986.

2. The facts giving rise to the case of the prosecution were as under :

Deceased Mina was married to accused Kamalakar at Ahmednagar on 27-4-1982. She was ill-treated on account of non-payment of sufficient dowry and also because she was black in complexion. She was beaten, driven out of the house. The marriage had taken place due to intervention of Vimalabai who was the maternal aunt of Mina and who was also living in the said village where the accused used to live. Mina used to complain to maternal aunt about the ill-treatment given by the accused. Vimalabai therefore intervened and asked the accused No.3 mother-in-law to treat Mina properly. Mina went to her parents, stayed there for 6-7 months, when she was brought back by her mother, she was insulted and sent away. However before January 1983 she went to stay with them again.

3. In January 1983 parents of Mina received a telegram of accused No.1 inquiring if Mina had come to their house. Mina's brother Subhash went to Yeola to the house of the accused and he learnt that Mina was staying in the house of one Sarode Talathi. Subhash found that Mina was in very bad condition at the house and she was in semi-dead condition. At that time she told about the cruel ill-treatment given to her by the accused and about severe beating given to her. She therefore requested Subhash to take her away as her life was in danger. Accordingly Subhash brought her back to Ahmednagar. Thereafter Mina stayed with parents for over 7-8 months and filed a petition for maintenance under Section 125 of the Criminal Procedure Code. During the pendency of that petition, her husband accused No.1 approached Subhash, asked for a loan, but Subhash did not agree. Thereafter maintenance application was decided in March 1985. The maintenance was not paid but thereafter accused started showing their willingness to keep Mina in their house and then on the pretext of some Satyanarayan Puja Mina was brought back to the house on 16-2-1986 and on 28-4-1986 Mina was burnt in the house. She was removed to Civil Hospital, Nashik. Ultimately because she had 94% of burns on the next day Mina died.

4. While Mina was being removed to Civil Hospital from Yeola to Nashik one Kantilal went to Yeola Police Station and gave information about the incident. An entry was taken down in that regard by the constable Deshmukh. Panchanama was done by the said constable Deshmukh. Some articles were seized.

5. Thereafter Subhash lodged a report to the police at Sarkarwada Police Station as per Exhibit 14. It was registered as an accidental death and then ultimately after investigation charge-sheet was filed under Section 306, 498-A.

6. During the trial the prosecution examined in all eight witnesses. After the prosecution evidence was over, the accused filed an application for calling the dying declaration of Mina. The same was taken on record, exhibited and after hearing the arguments the accused were acquitted of all the charges levelled against them. The acquittal was based mainly upon the dying declaration and the so-called settlement between Mina on one side and the accused on the other side after the order of maintenance under Section 125 of the Criminal Procedure Code was passed, certain letters filed of Mina were also made the basis for acquittal. It is this judgment of acquittal that is challenged by the State in this case.

7. When matter appeared before us on 26-8-2002, the learned APP Pravin Singhal after going through the papers requested for time to personally verify the record and then prayed for calling original case papers from Civil Hospital, Nashik, pertaining to medico legal case of Mina Bhavsar. We gave necessary directions and thereafter doctor from Civil Hospital, Nashik, produced the case papers.

8. Secondly the arguments advanced by Mr. Singhal, the learned APP for the State and Mr. Pendse for all the accused were heard by us at length.

9. The learned APP vehemently and streneously urged before us that the entire judgment is perverse and this is a case where not only the trial court has erred in allowing dying declaration of Mina to come on record but according to him the learned APP who conducted the trial, the learned defence counsel, the investigating officer, the doctor from the Civil Hospital and the Judge himself have conspired together to bring on record a forged dying declaration of Mina and he therefore urged that necessary action against all these persons should be taken by us. In addition Mr. Singhal also contended that there was more than sufficient evidence to prove the charge under Section 306 and 498-A of Indian Penal Code against all the accused coupled with the fact that the presumption under Section 131-A of the Evidence Act was required to be used against the accused because Mina died within 7 years of her marriage. According to him the rejection of the evidence of the witnesses by the trial court was totally wrong. Further, according to him the assumption of the court that there must have been a settlement between the parties after the order of maintenance under Section 125 of Criminal Procedure Code and when Mina went to reside with the accused had factual basis and assumption was based on surmises. Further the blame put by the trial court upon the prosecution for non-production of dying declaration of Mina was totally uncalled for because the dying declaration and the medical certificate were totally forged and fabricated. Secondly according to him even on facts the dying declaration was proved to be false because the dying declaration of Mina which was exhibited as Exhibit 40. It was stated by Mina that she woke up at night, fell on chimney i.e. a very small burning lantern and the chimney broke, the kerosene spread on her saree and she caught fire. Mr. Singhal pointed out that in the panchanama it is mentioned mainly that there were electric lines in the house and that no chimney was found either intact or in broken condition but to the contrary circumstances found and noted in the panchanama clearly pointed out the accused as abetting suicide of Mina.

10. The learned counsel for the accused did not try to meet the arguments of Mr. Singhal about taking action against all the concerned officers who were conducting the trial including the Investigating Officer, Medical Officer and the Judge also, but he contended that dying declaration which came on record at the behest of the accused was genuine and that was rightly accepted by the court and accused were rightly acquitted. So far as the oral evidence of witnesses is concerned, the learned advocate for the accused contended firstly that the witnesses were interested, there were omissions and improvements in the evidence and the circumstances did not point out at all that Mina was subjected to ill-treatment. In the alternative it was contended by the advocate for the accused that even if same ill-treatment was there to Mina, the some stood wiped out as soon as Mina joined her matrimonial home even after the order of maintenance. It was also contended that there was no direct nexus between her death and the ill-treatment and the instances of ill-treatment were stale instances and there was no evidence of any immediate provocation to Mina to commit suicide by any of the accused. It was therefore urged that the judgment of the trial court was proper and even if other view was possible that was not a ground to allow this appeal against acquittal.

11. Since the submissions made by Mr. Singhal about forgery and fabrication of the dying declaration and achieving the said object jointly by all those involved in conducting the case including the defence lawyer, Police Prosecutor, I.O., Doctor and even the Judge are very serious, it is necessary to consider the said argument at the outset.

12. We had before us the original record of the trial. From the said record it is clear that charge against the accused was framed on 23-10-1986. Recording of evidence was started before the Sessions Judge, Nashik. Witness P.W. 8 was examined on 26-11-1986. On that date itself accused filed an application for exhibiting the dying declaration. The dying declaration was taken on record and marked Exhibit 40. Further statement of the accused was recorded on 27-11-1986, arguments were heard and on 29-11-1986 judgment was delivered and the accused were acquitted.

13. Regarding the dying declaration Exhibit 40 and the application of the accused in that regard Exhibit 39, Mr. Singhal took strong objection and exception. According to him by filing application Exhibit 39 accused had called upon the prosecution to produce the dying declaration, which meant if such an application is made, according to Mr. Singhal then the court has to pass an order calling upon the prosecution to produce the said document and the prosecution can produce document on the same day if it is with it or can take time to produce the said document and then on the next date they will produce the document along with list or pursis and thereafter the court will decide about the admissibility of the document. If the prosecution admits the document or their contents under Section 294 of the Criminal Procedure Code the document will be exhibited otherwise the defence will have to prove the contents of the document by examining the witnesses and then after the evidence the document will be exhibited.

14. According to Mr. Singhal in this case what is strange and suspicious that the application for production of the dying declaration was filed on 26-11-1986 vide Exhibit 39. The court did not pass any order directing the prosecution to produce the document. The Prosecutor did not take any time to produce document. Roznama of 26-11-1986 does not show who produced the document on record or at whose instance it was brought. Thereafter no notice was given by the defence to the prosecution to admit the said document nor the defence examined any witnesses to prove the dying declaration that is they did not examine the Special Judicial Magistrate who recorded the dying declaration nor the doctor who gave an endorsement and without following any of the procedures without taking any of the steps the court directly exhibited the document as Exhibit 40, took it into consideration and on the very next date or on 29-11-1986 judgment of the acquittal was passed.

15. Mr. Singhal on the basis of the original medical case papers which were produced by the doctor of Civil Hospital, Nashik contended that the medical papers have been tampered with. He also contended that Dr. Narayan Pawar who is alleged to have given the certificate about Mina's fitness and capacity to give the dying declaration was not concerned with the burns ward of the said hospital but was concerned with postmortem of Mina and that he has no business to give any certificate of fitness of Mina to give dying declaration.

16. In order to appreciate submissions made by Mr. Singhal, it is necessary to see the application, Exhibit 39 itself (Exhibit 39 page 143 of English File I). The title of the application is "Notice - calling upon the prosecution to produce the Dying Declaration", and the accused has called upon prosecution to produce Dying Declaration of the deceased Mina dated 28-4-1986 and has also prayed that the said be exhibited and read in evidence. Application is signed by accused Kamalakar and his advocate. The order of the court is of the same date. It is to the effect "Dying Declaration be produced and taken on record marked Exhibit." Roznama of 26-11-1986 shows as under :

"Ex. 39 - Application by accused No.1 for exhibiting the Dying Declaration.

Ex. 40 - Dying declaration of deceased Mina Kamalakar dt. 28-4-86".

Dying declaration Exhibit 40 is on record page 145 of English file I.

17. From the aforesaid, Exhibit 39 and the Roznama dated 26-11-1986 it is absolutely clear that as soon as the application Exhibit 39 was filed for production of the dying declaration dated 28-4-1986, the order was passed by the court and the dying declaration was taken on record and marked Exhibit 40. There is nothing anywhere on the record to show and also on Exhibit 39 and in the Roznama dated 26-11-1986 as to who produced this Dying Declaration, Police Prosecutor/APP, who was conducting the prosecution has not given his say on Exhibit 39, he has not stated whether the dying declaration was with him at that very moment and he was ready to produce it from police record, nor he has asked for time to produce the document if the same was not with him. The learned Sessions Judge in the order passed on Exhibit 39 nowhere says as to who produced the Dying Declaration or from whose custody the dying declaration was produced. The roznama dated 26-11-1986 also does not show who produced the dying declaration or at whose instance or from whose custody the dying declaration was produced.

18. Roznama of 26-11-1986 also shows that on that day deposition of P.W. 8 was recorded vide Exhibit 36 and the extract of diary dated 28-4-1986 was also taken on record and marked Exhibit 37. This order was passed requiring the accused to enter upon defence as per Exhibit 38 and in the same sequence of events, application Exhibit 39 came to be filed, and order came to be passed thereupon and the dying declaration was exhibited on the same day as Exhibit 40. The trial court recorded further statement of accused Nos.1 to 5 and adjourned the case for arguments on 27-11-1986. The said further statement is marked as Exhibit "O".

19. In fact even though the roznama dated 26-11-1986 shows that after exhibiting the dying declaration as Exhibit 40, further statement of accused Nos. 1 to 5 was recorded, the roznama of the said date does not show that prior to that statement of the accused under Section 313 of Criminal Procedure Code was recorded at all. In the sequence of happenings of 26-11-1986 whatever has happened has been produced above and if the last witness of the prosecution was examined as Exhibit 36 on 26-11-1986 and the prosecution has closed his case, first there could have been pursis by the prosecution that it has closed its case then the court should have recorded the statement of the accused under Section 313 of the Code of Criminal Procedure and if thereafter some document was produced and further statement was necessary, then the court should have recorded the further statement. The roznama of 26-11-1986 does not show that after the evidence of the prosecution was over, statement of the accused was recorded. What it shows only is that after exhibiting the dying declaration further statement of the accused Nos. 1 to 5 was recorded.

20. On the other hand statements of the accused are there on record and they show that all the statements were recorded on 26-11-1986 initially and then four lines were added to it showing recording of further statement. In the aforesaid so-called further statement only two questions are put to the accused. (1) Do you wish to examine yourself on oath as a witness on oath, and (2) Do you wish to examine any witness in your defence. The answer to both these questions obviously from all the accused were in the negative.

21. What will be clear therefore from the roznama on 26-11-1986 is that the evidence of the prosecution was over on 26-11-1986 after examining P.W. 8, thereafter no statement of the accused was recorded and immediately application for calling upon the prosecution to produce the dying declaration was made vide Exhibit 39, order was passed therein, dying declaration was tendered (by whom not known) it was exhibited and then further statement of the accused as shown to have been recorded.

22. We have already noted above that evidence in this case commended on 24-11-1986, it was concluded on 26-11-1986 and the judgment of acquittal was delivered on 29-11-1986. The speed with which the trial has proceeded before the trial court and the manner in which things took place on 26-11-1986 as noted above from the roznama, create a very suspicious picture about fairly conducting the trial.

23. Chapter XVIII of Criminal Procedure Code deals with trial before the court of sessions. Section 231 refers to evidence of prosecution, Section 232 deals with acquittal if there is no evidence but if there is evidence Section 233 requires the court to call upon the accused to enter upon his defence and adduce any evidence he may have in support thereof. Exhibit 38 is an order of the court, on the same date calling upon the accused to enter into their defence, if any. Section 233 thereafter requires "that if the accused applies for issue of any process for..........., the Judge shall issue such process or (call upon the production of document) unless the Judge decided to reject the application on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." It is therefore clear from this Section 233 that the judicial order has to be passed by the Sessions Court, if an application for production of document is made. In this case such an application was made by the accused vide Exhibit 39 and therefore the Judge should have taken care to record as to from whose custody the dying declaration is produced, who is producing it and prior to that the Judge should have called upon the Police Prosecutor/APP to file his say to the said application, ascertain whether the dying declaration was in existence, whether it was in the custody of police and then call upon the prosecution to produce the said document. Nothing has been done and directly the dying declaration is taken on record without clarifying anywhere either on Exhibit 39 or in the Roznama as to who produced the dying declaration or at whose instance it was produced or from whose custody it was produced and taken on record.

24. This is therefore a serious lapse on the part of the trial court.

25. Secondly when the dying declaration came on record, there is no explanation, nothing on record to show as to how the same came to be exhibited as Exhibit 40. The record does not show that any notice was given by the accused. When the dying declaration came on record admittedly the accused were relying upon the same because it was to their benefit. Accused did not examine any witnesses to prove the dying declaration because when they were questioned in their so-called further statement under Section 313 of Criminal Procedure Code whether they want to examine any defence witness, their reply was in the negative. Therefore Special Judicial Magistrate who recorded the dying declaration was not examined by the accused. The doctor who gave endorsement about the mental condition of the deceased Mina was also not examined. The police officer to whom the dying declaration should have been handed over by the Special Judicial Magistrate was not examined or if the dying declaration was with the Special Judicial Magistrate throughout from the date of recording till its production in court, nobody was there to examine these facts. Nobody was examined to prove the thumb impression of the deceased on the dying declaration of the deceased nor any notice was given by the accused to the prosecution under Section 294 of the Cr.P.C. to admit the document. Section 294 provides "that where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in the list and the prosecution and the accused..........shall be called upon to admit or deny the genuineness of such document." Sub-section 2 provides "that the said list as may be prescribed" and sub-section 3 provides "that where the genuineness of any document is not disputed such document may be read in evidence without proof of the signature of the person to whom it purports to be signed." Proviso to Section 294 provides "that the court may in its discretion require such signature to be proved."

26. Therefore it will be clear that when the dying declaration came on record, it was obligatory and necessary for the accused to examine the Special Judicial Magistrate, the doctor and/or the police officer to prove the contents of the dying declaration as well as thumb impression of the deceased Mina. Examining of the doctor was necessary to prove the endorsement about the mental condition of Mina before and after the dying declaration. Admittedly this was not done by the defence or by the accused nor the defence or accused gave any notice under Section 294 of the Cr.P.C. to the prosecution to admit the genuineness of the document and no opportunity was given by the trial court in that regard. Without following any of these mandatory legal provisions the dying declaration was marked as Exhibit 40 on the same day and read in evidence, relied upon and the accused acquitted.

27. On the other hand trial court observed in para 11 of its judgment that : "The prosecution did not produce the document as its evidence though it was bound to do so." Regarding exhibiting of the document the trial court in the same para has stated : "Since the accused sought production of this document and since it is in the custody of the prosecution, there was no difficulty in exhibiting this document and admitting the same in evidence." It is surprising to note that without clarifying anything in the order of Exhibit 39 or in the roznama as to from whose custody document came to be produced, and without following any procedure or taking any caution in that regard, how the trial judge came to the conclusion that the document was in the custody of the prosecution and therefore it could be exhibited easily without following any legal provisions in that regard. Further the court has observed in para 11 : "In fact, it is the evidence of the prosecution, and normally the prosecution ought to have produced this evidence. In fact, the prosecution tried to suppress and withhold this document." These observations are also unjustified and uncalled for because the Judge himself committed grave mistake of not following the procedure and taking a document on record without clarifying as to from whose custody it was being produced or tendered. The court has accepted the dying declaration and as such in the same para observed : "If Ex. 40 is thus taken to be the piece of evidence, that negatives the case of the prosecution that Mina committed suicide."

28. The matter does not end here as is urged by Mr. Singhal. The original case papers of Mina were called from the Civil Hospital, Nashik and they were produced by the doctor of the said hospital. Production of these papers was necessary because on the dying declaration Exhibit 40 there is an endorsement of doctor in the beginning of the dying declaration as well as in the end and the endorsement in the beginning is to the following effect :

"Date 28-4-86 at 9.05 a.m. Patient is fully conscious and in condition to speak properly and give her statement properly."

An endorsement at the end is as under :

"28-4-86 at 9.40 A.M. Pt. is fully conscious and in condition to speak properly and give her statement properly." Signed by the same doctor.

29. According to Mr. Singhal, this entire dying declaration is fabricated and forged to further benefit of the accused. Some of the circumstances pointed out by him have been discussed by us as above regarding the production of the dying declaration and the order passed therein. Further it was pointed out by Mr. Singhal that this doctor who gave an endorsement is doctor Narayan Manohar Pawar who was examined as P.W. 5 and he has stated in his evidence that on 28-4-1986 at 1 p.m. the dead body of Mina Kamalakar Bhavsar of Yeola was brought to Civil Hospital, Nashik for P.M. examination and he and Dr. Doshi conducted the post mortem from 1.30 to 2.30 p.m. Mr. Singhal contended that this doctor has not stated in his evidence that he was attached to the burns ward where Mina was kept on 28-4-1986 and record does not show that Dr. Narayan Pawar, P.W. 5 was so attached to burns ward or with the casualty ward and had any duty to examine about Mina about her mental condition when the Special Judicial Magistrate allegedly recorded her dying declaration. Number of circumstances pointing to the forgery and fabrication of the dying declaration including the certificate of the doctor are pointed out in this regard and some of them are :

(i) that the original medical case papers are tampered and page No.3 is inserted therein subsequently in order to substantiate this fitness certificate given by Dr. Pawar;

(ii) Dr. Pawar was not attached to burns ward or casualty ward and had no business to give any certificate about the mental condition of Mina;

(iii) Condition of Mina was extremely serious at the time when the alleged dying declaration was recorded.

(iv) that Mina died at 10.10 a.m. when her dying declaration is alleged to have been recorded between 9.10 a.m. to 9.45 a.m.

(v) Mina was having 94% of burns and was not at all in a position to give any statement;

(vi) that when P.W. 5 Dr. Narayan Pawar was examined on 25-11-1986 by the trial court the dying declaration Exhibit 40 was not on record, there was nothing on record to suggest that any dying declaration of Mina was recorded by the police. Even then the question was put to Dr. Pawar in the cross-examination by the advocate of the accused and Dr. Patil admitted "that he was requested to examine Mina at 9.05 a.m. to find out whether she was in a position to make the statement, he then examined her and certified that she was fully conscious and in a state to make a statement properly". Thereafter her statement was recorded but he was not present. Same question is put to P.W. 7 Ramesh Manohar Patil in the cross-examination on 25-11-1986 when the dying declaration Exhibit 40 was not in record at all and P.W. 7 admitted "Mina has given dying declaration before the Special Judicial Magistrate, Nashik, I have read it and therein she has not involved any of the accused."

30. We find strong force in the contention of Mr. Singhal and all his objections about the dying declaration being forged and fabricated.

31. Admittedly on 25-11-1986 when P.W. 7 and P.W. 5 were examined dying declaration was not before the court. Dr. Narayan Pawar was not confronted with any dying declaration. No witness has stated about the dying declaration of Mina but even then in anticipation of the dying declaration being filed in future, both P.W. 5 and P.W. 7 were questioned in cross-examination and they admitted that Mina gave a dying declaration.

32. Secondly the time of recording of the dying declaration is shown in Exhibit 40 as between 9.05 to 9.35 a.m. The time is written by Special Judicial Magistrate, Nashik Mr. P. S. Bawiskar, Original medical case papers show that when Mina was examined by doctor at 8.00 a.m. doctor noted 'urine not passed' and when she was admitted at 4.50 a.m. doctor has noted "inform seriousness of the patient to relatives." Further it was noted oxygen elasation SOS meaning thereby she was on oxygen right from the time she was admitted. The exact words used by Doctor are "02 inhalation". Therefore if the condition of Mina was so critical at the time of admission and at 8 O'clock she had not passed urine and was on oxygen or was likely to be given oxygen any time then certifying by Dr. Pawar on 28-4-1986 that Mina was fully conscious and in a condition to speak properly and give her statement properly at 9.05 a.m. and at 9.45 a.m., is highly improbable and suspicious.

33. Not only Dr. Pawar has given endorsement on Exhibit 40 but on the medical case papers also he has given his endorsement. The original case papers are running from 1-7 pages. On the first page history is given in the form and noting dated 28-4-1986 recorded at 4.50 a.m. on the third page is the noting regarding 28-4-1986 at 10 a.m. and then at 10.10, noting about her health, on page No.5 there is noting of Mina at 8 a.m. on 28-4-1986 that urine not passed. However, Dr. Pawar gave his note on 2nd page on 28-4-1986 at 9.05 a.m. about the fitness of mental condition of Mina, neither the earlier noting nor the subsequent noting are in the handwriting of Dr. Pawar. In his evidence also he has nowhere stated that he was attached to burns ward or casualty ward or emergency ward. He has not stated who requested him to examine Mina and how he was authorised to deal with the patient. He came to be examined as prosecution witness because he has performed post mortem of Mina but inspite of that he gave admission in favour of the accused in the cross-examination that he examined Mina and found her fit to give statement and that he examined her.

34. All these circumstances i.e. the manner in which Exhibit 40 came on record, roznama, original medical case papers, putting question to doctor and P.W. 7, in the cross-examination with reference to the dying declaration, when dying declaration was not before the court at all, getting their admission in favour of the accused, critical condition of Mina right from the stage of admission and her immediate death at 10.10 a.m. and giving of fitness certificate by Dr. Pawar (P.W. 5) when he was not attached nor concerned with the burns ward, casualty ward or emergency ward. Whatever that may be are the circumstances that justify the submissions of Mr. Singhal that the dying declaration Exhibit 40 is forged and fabricated so also endorsement of the doctor thereupon. Non explanation by the court as to from whose custody the dying declaration came on record is also a serious factor which throw serious doubt about the genuineness of the dying declaration.

35. Mr. Singhal also argued that even on facts this dying declaration has to be considered as a forged and fabricated one and therefore totally false one. As per this dying declaration, Exhibit 40, Mina alleged to have stated to Answer No.4 that she woke up at 1 a.m. night for drinking water at that time she gave dash to the chimney i.e. a small lantern. It was kept on tin. The said chimney fell on her person. She was therefore burn and at that time she was wearing nylon saree (chimney is a small lamp which burns on a kerosene with glass around it and a glass to hold kerosene and holder of tin by which the chimney attached to wall or kept on anything so required, it contains kerosene maximum upto 50 or 70 mili liters). In order to substantiate its contention Mr. Singhal pointed out that spot panchanama of the house was recorded by the police in the morning of the same day i.e. on 28-4-1986 between 8.25 a.m. to 9 a.m. and in the spot panchanama it is noted that the house and electric light fittings had electric lights. There are two rooms one of 6' x 12' and the other kitchen of the same size and measurement and there is no mention in the panchanama of any chimney. There is no cross-examination of the witnesses to the effect that they had not prepared the panchanama according to the spot or that they had made false entries or deliberately avoided to make mention about the chimney. To the contrary, this panchanama was proved by witness Prabhakar P.W. 4. There is no suggestion about the chimney. Only one question was asked wherein the witness admitted that there was a lantern but its glass was not broken. It needs to be clarified that lantern is much big in shape and size than chimney. It will therefore be clear that the panchanama so far as it does not mention the finding of any chimney is concerned has gone unchallenged.

36. We find considerable force in the contention of Mr. Singhal that the dying declaration Exhibit 40 is belied by the panchanama as chimney was not found. To the contrary what is found in the room where the incident has taken place is the saree, petticoat, blouse, brassier. Burnt pieces of all these clothes were found and all were smelling of kerosene. There was a can of 4 litres which was also smelling of kerosene and it was empty and one match box having 3-4 match sticks and one burnt match stick was found on the ground.

37. The panchanama therefore belies dying declaration and lends strong support to the contention of Mr. Singhal that it is a forged and fabricated dying declaration. All the clothes which Mina was wearing at the time and the burnt pieces which were found as stated above were smelling of kerosene shows that kerosene was poured upon her. If chimney was there and Mina had fell down and the glass container containing 50 to 70 mili litres kerosene was spread, it cannot spread over all the clothes. Further finding of one burnt match stick falsifies the dying declaration totally and completely.

38. In view of the aforesaid facts, it is clear that reliance placed by the trial court on the dying declaration of Mina is wholly unjust, illegal and improper. The said dying declaration, Exhibit 40 should not have been relied upon and no benefit of the same should have been given to the accused. The finding of the trial court in that regard are therefore perverse and are required to be quashed.

39. So far as the case on merits is concerned, it was contended by Mr. Singhal that prosecution has succeeded in proving its case under Section 306 and 498-A read with 34 of I.P.C. beyond reasonable doubt and order of acquittal is totally wrong and it has to be set aside. He also contended that on other counts the judgment of the trial court is perverse. Mina died on 28-4-1986 soon after at 10 O'clock after she was admitted in the hospital. She was married to the accused Kamalakar on 27-4-1982. She died within 7 years of her marriage and since the dying declaration has to be totally disregarded as fabricated document and since panchanama shows that kerosene was used, it has to be held that Mina committed suicide. Since the accused are charged under Section 306 it has to be seen whether there is evidence for abatement of the suicide.

40. The admitted facts in that regard are that Mina had filed proceedings under Section 125 of Criminal Procedure Code against husband on 12-10-1983 and the same came to be decided in her favour on 6-3-1985. Filing of maintenance proceedings clearly show that Mina was not satisfied with the treatment given to her by her husband. The judgment of the Magistrate under Section 125 also forms part of the record and in the said judgment the Magistrate who decided her application has given a specific finding. Copy of the judgment is forming part of the paper book it is at Exhibit 13. It is an admitted fact that the accused did not challenge the judgment by filing appeal. The following four points out of six are held by the Magistrate in the affirmative. They are :

1) Whether Mina proves ill-treatment to her on the part of the opponent ?
Affirmative.
2)

Does she prove neglect- ion and refusal to main- tain her on the part of the opponent ?
Affirmative.

3) Whether she is ready to maintain herself ? and
4) Whether she is entitled to maintenance ?
Both in Affirmative.

The date of the order of judgment as stated above is March 1985.

41. The trial court has taken note of this judgment and the Magistrate has observed in paragraph 12 of the judgment that the reasons and findings therein are stated to be not relevant in the present case. The trial court also accepted that there was a settlement between the parties about the past and that whether whatever ill-treatment or cruelty was there was condoned and matrimonial offence was washed away. About this the trial court has further given its finding in paragraph 13 as under :

"Even accepting the submissions of Mr. Pawar, A.P.P. for moment that circumstances, of Mina going to her maternal aunt and complaining about ill-treatment just after 8-10 days, her going to parents and complaining to the same effect, her stay in the house for 6-7 months just after marriage, her finding in feable condition in the house of P.W. 3 Radhikabai and complaint made at that time, filing of maintenance application and the decision there in based on the ground of ill-treatment, would indicate some kind of cruelty, yet as submitted by Mr. Abhyankar, all that episode had come to an end on 16-2-86 when Mina went to stay with accused."

Further the trial court has observed in the same para :

"However, just thereafter on 16-2-86, Mina was taken to the house of accused and this would go to show that there must have been settlement of the disputes between the parties."

The trial court further gave finding :

"As rightly submitted by Mr. Abhyankar, therefore, if cruelty is assumed on the basis of the circumstances enumerated above, that must have been condoned and no longer existed after 16th February 1986."

All these findings are absolutely perverse. There is no evidence at all to show that either Mina or her parents had condoned earlier instances of cruelty, placing reliance upon certain letters to which we will refer subsequently by the trial court was wholly unjustified. Therefore, in this background of the matter further finding of the trial court that :

"If the possibility of ill-treatment after 16-2-86 is thus ruled out, there remains no cause for Mina to commit suicide and that the letters relied upon by the accused and brought in evidence negatived the possibility of suicide."

42. So far as not finding of lantern or chimney in the house as per the panchanama is concerned, the trial court has given very strong reasoning in paragraph 14 again while considering the submission of A.P.P. In this regard the trial court has held that submissions made by the A.P.P. do not arise at all because existence of chimney is not the case or the defence of the accused but that is the case of the Mina stated by Mina in dying declaration. The trial court has stated :

"If anything is to be disbelieved from the circumstances that no lantern was found, that would be the dying declaration."

About clothes smelling of kerosene the trial court has stated those clothes were not forwarded to the Chemical analyser. These reasonings are totally devoid of any merit and they are perverse. If factual position on record falsify the dying declaration, then the court would have rejected the dying declaration and if the clothes smelling of kerosene, namely, saree, blouse, petticoat, brassier etc. were not sent to the Chemical analyser, the court should have taken the I.O. to task.

43. About the smell of kerosene to all the clothes of Mina namely, saree, blouse, petticoat and brassier, the trial court held in paragraph 14 that :

"It is equally possible that kerosene might have spread on the clothes and perhaps that might be giving the smell of kerosene."

It pains us to note that the Judge who conducted the trial or before whom the trial proceeded was knowing very well about the quantity of kerosene in chimney cannot be more that 50 to 70 mili litres and if chimney fell and kerosene spread it can almost spread to some negligible part of the saree and petticoat touching the ground and the blouse cannot smell of kerosene but even this aspect appears to have been twisted by the trial court to the benefit of the accused.

44. Mina's maternal aunt Vimlabai is an important witness for the prosecution. She is examined as P.W. 2. She stays at Yeola where the accused are staying. She has arranged the marriage of Mina with the accused Kamalakar. She has stated that after 8-10 days of marriage Mina came to see her and told her that her mother-in-law, sister-in-law and husband were ill-treating her on the ground that she was black in complexion and that she was short of hearing. 7-8 days thereafter P.W. 1 Subhash came to her house and asked that if Mina had come to her. He also stated that he has also received a telegram from accused No.1 two months before the incident. According to this witness mother of Mina had brought Mina and left her in the house of the accused. There is no cross-examination of this witness by accused Nos. 2 to 5 and only one question was asked by accused No.1 in cross-examination and that if the witness had not herself seen ill-treatment to Mina.

45. Next witness is P.W. 3 Radhikabai Sarode. This witness has stated that 2-3 months after the marriage of Mina she came to her house at about 8.15 a.m. and told her that her husband, mother-in-law and sister-in-law had beaten her previous night and she would commit suicide if she was required to go back. This thing was conveyed to Vimlabai by P.W. 3 Radhikabai. He said that he will send telegram to the father of Mina. At about 2 p.m. accused No.1 Kamalakar went to the house of P.W. 3 and enquired about Mina but since Mina started crying P.W. 3 told accused No.1 that Mina was not in their house. In the same manner accused No.3 went to the house of this witness to enquire about Mina but she was also told that Mina was not in the house. In the night the accused No.2 went to the house of P.W. 3 and saw Mina. He asked Mina to come with him. Mina got frightened and started weeping, then the husband of P.W. 3 intervened and asked accused No.2 to allow Mina to stay in the night. Next morning P.W. 1 Subhash brother of Mina came and took Mina away. There is no cross-examination worth consideration at all of this witness.

46. Evidence of cruel treatment to Mina is given by Subhash P.W. 1. He corroborates P.W. 2 and further stated that after a month of the marriage, his father went and brought Mina back and at that time Mina told the same story and also further stated that she was not allowed conjugal happiness by accused No.1. Mina stayed with her parents for about 6-7 months thereafter. Thereafter mother of Mina took Mina to her husband's house but at that time accused No.3 threw rubbish on them and told them accused No.1 would keep mistress instead of keeping Mina and she would not be even allowed to wash clothes of accused No.1, therefore Mina and her mother returned back. Then accused No.1 approached Subhash in January 1983 and asked for Rs. 2000-3000 as hand loan for starting new business and put the condition that if the amount is paid then he will take Mina for cohabitation. That this incident took place in January 1983. Subhash has stated that in January 1983 he received a telegram from accused No.1 as to whether Mina had come to their house. He went to Yeola along with Bhaskarrao Chavan, contacted maternal aunt P.W. 2, Mina was not there. Then he went to the house of the accused and learnt that Mina was in the house of Sarode Talathi. At that time he found that Mina was lying in semi-conscious condition in the house of Sarode. She was found to have been put to starvation and froth was coming from her mouth and Mina told her that she was being harassed severelly and that she should be taken away. Mina narrated her ghast ?? and told that sisters of Kamalakar accused Nos. 4 and 5 were saying that Kamalakar accused No.1 should perform second marriage. Mina also told that she was severelly beaten. Mina was taken to Bhagirathseth - a prominent panch of Yeola. He advised them to take back Mina to Ahmednagar.

47. Thereafter according to P.W. 1 Subhash, Mina filed maintenance proceedings and he has also stated that accused did not pay maintenance inspite of the order of the Court. Further according to her at the time of Rathasapatami festival of 1986 mother of accused No.1 came to their house and offered to take away Mina. Mina was however not sent. Thereafter accused No.3 alone came and asked them to send Mina because of some Satyanarayan Puja but Mina was not sent with her. On 16-2-1986 the mother of Mina took Mina to the house of the accused but she found that there was no Satyanarayan Puja. Soon thereafter i.e. on 28-4-1986 Subhash learnt that Mina was burnt and was admitted in the hospital. He then lodged complaint to the police.

48. The aforesaid evidence of P.Ws. 1, 2 and 3 was challenged by the counsel for the accused on the ground that Mina stayed in Sarode's house. Her narration of torture to P.W. 3 Radhikabai does not say a word. Further it was argued that from the letters on record it is clear that all these instances of cruelty were forgiven and were the thing of the past since Mina came to reside with the accused from 18-2-1986.

49. At this juncture therefore it is necessary to consider the letters with which P.W. 1 was confronted. Those letters are Exhibits 17, 18, 19, 20, 21, 22, 23, 24 and 25. They are dated respectively.

Exhibit 17 is letter dated 16-8-1982,

Exhibit 18 is letter dated 11-9-1985,

Exhibit 19 is letter dated Nil,

Exhibit 20 is letter dated 5-2-1986,

Exhibit 21 is letter dated 19-2-1986,

Exhibit 22 is letter dated 25-2-1986,

Exhibit 23 is letter dated 7-3-1986,

Exhibit 24 is letter dated 6-4-1986, and

Exhibit 25 is letter dated Nil.

Out of these letters Mina has written Exhibit 20 letter dated 5-2-1986 and Exhibit 25 letter - no date. It will be seen that out of all these letters only two are written by Mina. In none of these two letters Mina has ever expressed that she has pardoned the accused for ill-treatment given to her or that forgiven them. In Exhibit 25 Mina has shown her willingness to go to the house of the accused because of Puja. Year and month of Puja cannot be ascertained from this letter. Exhibit 20 is a general letter not throwing any light upon the relationship of the parties. Exhibit 19 is a letter without any date and does not reflect upon the relationship of the husband or the wife or between Mina and her in-laws. Exhibit 21 is written by Tarabai. It is written to Aunty. It is about safe arrival of Mina and her mother at Yeola. This letter appears to have been written by accused No.3. Exhibit 22 is addressed to accused Nos. 2 and 3. It also does not speak anything about the relationship between Mina and her in-laws or the husband. Exhibit 23 is addressed to accused Nos. 2 and 3. It is dated 7-4-1986 and it is about informing Mina's well being. Exhibit 24 is written by Subhash to accused No.1 and Mina. It is dated 6-4-1986. It is also a letter general in nature. However, counsel for the accused pointed out from this letter that Subhash P.W. 1 has written that Mina should presume family of her husband to be her own family and she should serve them as far as possible and it should be her duty as a wife. Exhibit 25 is written by Mina as stated earlier.

50. It will therefore be clear that in none of her two letters, Mina has ever forgiven accused or has stated that she is ready to join the company of the accused by forgiving the past nor in the other letters particularly those written from her parents or brother, there is no mention that his past ill-treatment was to be pardoned or forgiven. The trial court has however drawn totally wrong and perverse inference on the basis of these letters to the effect that these letters show that Mina has forgiven the accused and the ill-treatment given to her was and cannot be taken into consideration for the purpose of this case.

51. What emerges from the evidence of P.Ws. 1, 2 and 3 that Mina was subjected to mental and physical torture and ill-treatment because of her black complexion, because of the allegation that she was short of hearing. She was brutally beaten and assaulted, made to starve and she was brought back to home by the accused inspite of the maintenance order and inspite of his failure to pay the maintenance on the false pretext of Satyanarayan Puja, the accused have therefore strong motive to further torture and harass Mina. About Satyanarayan Puja Question No. 23 was put to the accused in their statement under Section 313 and they admitted that Mina's mother brought Mina to their house but there was no Satyanarayan Puja. The accused have admitted that Mina was brought by her mother but due to some difficulty Puja could not be performed. This lends support to the submission of Mr. Singhal that it was on the pretext of Satyanararyan Puja that Mina was brought in the house.

52. In this regard it was strenuously urged by counsel for the accused that from evidence of the prosecution it cannot be said that any ill-treatment was meted out to Mina in the near proximity of her death. It was further contended that old and stale instances of ill-treatment could not be taken as abetment to suicide. We do not find any substance in this argument because the fact of ill-treatment is amply proved by the prosecution, the fact of an order in favour of Mina is also proved, the fact of non-payment of maintenance is also proved and the pretext of Satyanarayan Puja that was given by the accused for taking back Mina is also proved to be false. It is therefore clear that while maintenance order was hanging on their head accused took Mina to their home. There was no intervention of any elderly members for this, nor any compromise after the maintenance order between Mina and husband, nor Mina had forgiven or pardoned the accused for the ill-treatment given to her.

53. Writing letter by Subhash asking Mina to accept the house of the accused as her own is a general advice given by any man to his wife or to daughter. It cannot be interferred from such advice or from Mina's letter that she had decided to treat the chapter of ill-treatment as closed for ever. There is therefore strong and sufficient evidence to connect the accused with the offence charged, namely Section 498-A and 306 of the I.P.C.

54. Mr. Singhal also further contended that when Mina was having 94% burns and a valuable period of 4-5 hours was wasted in the Government Hospital, Nashik, it was impossible that Mina would be in a fit physical and mental condition to give any declaration. He further contended that conduct of the accused No.1 husband or of the other accused was also suspicious in as much as there were only two rooms to the house. The accused and Mina were sleeping in kitchen and others were sleeping in the front room. If Mina had accidentally caught fire as alleged in the dying declaration there would have been an attempt on the part of the accused No.1 or other accused to extinguish the fire and it would not have been difficult to extinguish the fire because it was caught (if story of dying declaration is accepted by breaking of chimney and catching fire by the lower portion of the petticoat and saree). Further according to Mr. Singhal record shows that none of the accused made any attempts to extinguish the fire. There are no burn injuries to any one including the accused No.1 and this is therefore a strong circumstance which has to be taken into consideration. We also find considerable force in this arguments. Even in their statement under Section 313 of the Cr.P.C. none of the accused have given any explanation as to what they were doing at the house and why no attempts to extinguish the fire were made.

55. In the aforesaid background and for the reasons stated above, this appeal is to be allowed and accused are required to be convicted.

56. The learned APP Mr. Singhal also submitted that this court should take action against all those who were concerned for fabrication of the dying declaration including the Judge of the trial court, we have given consideration to the submissions regarding this prayer. The only contention of the respondents-accused through their advocate was that there is no forgery or fabrication. We are disagreeing with the same and rejecting the same. There is more than sufficient material on record to hold that the dying declaration, Exhibit 40 is forged and fabricated in all respects. So far as taking action is concerned it is true that the trial court committed serious lapses in that regard, however, it cannot be held that the trial court was a party to the conspiracy of fabrication of the dying declaration, it could be a bonafide mistake on the part of the trial court.

57. However so far as Additional Public Prosecutor (Mr.B.A.Pawar), defence lawyer (Mr.B.J.Abhyankar), Dr. Narayan Manohar Pawar Civil Hospital, Nashik, PSI Ramesh Manohar Patil - Yeola City Police Station is concerned action is required to be taken and also against Mr.P.V.Baviskar, Special Judicial Magistrate.

58. Section 340 of the Criminal Procedure Code has laid down procedure in that regard and as per it if in the opinion of the court it is expedient in the interest of justice to make an enquiry into any offence referred to in sub clause (b) of sub section (1) of Section 195 in relation to a proceeding in that court or in respect of document produced or given in evidence the court may as per sub section (2). These powers can be exercised by any court to which the sessions court is subordinate and therefore those powers can be exercised by this Court. Section 340 empowers the court to record the finding and to make a complaint in writing. However before filing such complaint it would be appropriate that the persons concerned abovenamed are given notice to show cause. Section 344 of the Cr.P.C. gives summary powers to the court to try offenders for giving false evidence. According to us this is a fit case to take action under Section 344 after giving reasonable opportunity to those offenders to show cause and therefore we are passing the following order. However, a note of appreciation for the commendable job done by the learned APP Mr. Pravin Singhal in this case in going through all the papers thoroughly, unearthing the truth is required to be made before parting with this case.

ORDER

Appeal of the State against the acquittal is allowed.

Order of acquittal of the Sessions Court, Nashik, is quashed and set aside.

All the accused are found guilty of offence under section 498-A of Indian Penal Code. They are sentenced to imprisonment for three years and to pay a fine of Rs. 5,000/- each under Section 498-A in default of payment they shall undergo R.I. for six months.

All the accused are also convicted under Section 306 of IPC and they are sentenced to suffer R.I. for ten years and to pay a fine of Rs. 5,000/- each in default of fine R.I. for one year.

Substantive sentences to run concurrently.

If the amount of fine is paid, 80% thereof shall be paid to the parents of the victim girl towards compensation.

Accused-Respondents to surrender before the trial court for undergoing sentence within four weeks from today.

Issue show cause notice to Mr.B.J.Abhyankar Advocate for the accused, Mr. B.A.Pawar Additional Public Prosecutor, Dr. Narayan Manohar Pawar, Civil Hospital, Nashik, PSI Ramesh Manohar Patil, Yeola Police Station and Mr. P.S.Baviskar, Special Judicial Magistrate, Nashik, why action under Section 344 of the Criminal Procedure Code should not be taken against them and they should not be summarily tried for knowingly and wilfully giving false evidence or fabricating false evidence with an intention that such evidence should be used in trial court, or in the alternative why they should not be prosecuted for offences under Sections 193, 196, 466, 471 and 474 read with 109 of Indian Penal Code. Show cause notice returnable on 12-12-2002 before the Regular Division Bench.

All the papers of the trial court and the papers produced by the Medical Officer of Nashik should be kept in seal in the custody of the Registrar of this Court.

Order accordingly.