1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.244 OF 1997. Mohan Vishwanath Shinde, Age 47 years, Occ.Agriculture, R/o Neknoor, Taluka and District Beed. ... Appellant. Versus The State of Maharashtra ... Respondent. ... Mr.S.C.Bora, advocate for the appellant. Mrs.R.D.Reddy, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 28.07.2009. ORAL JUDGMENT 1. Challenge in this appeal is to judgment rendered by the learned Additional Sessions Judge, Beed, in Sessions Case No.155/1995, whereby the appellant came to be convicted for offences punishable U/ss 306 and 323 of the 2 I.P.C. and has been sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.300/-, in default to suffer rigorous imprisonment for six months on first count and to suffer rigorous imprisonment for six (6) months on the second count. 2. The background facts leading to the prosecution may be stated in the following way : . The deceased by name Smt.Kausalyabai was married somewhere in 1981. Out of the wedlock, she was having a son and a daughter. She was residing with her husband by name Arun More for some years after the marriage. However, her husband, namely, Arun More performed second marriage and, therefore, there was matrimonial discord between them. She was deserted by her husband. She started residing with her parents at village Neknoor. After some period of about two (2) years, she hired a single room tenement in house of one Madhav Shinde (P.W.1). The appellant and deceased Kausalyabai developed extra marital sexual relationship. The appellant is a married person and has got children from his 3 lawfully wedded wife. He use to regularly visit the tenanted room of deceased Kausalyabai. He use to suspect her character. He is addicted to liquor drinking and daily he use to beat said Kausalyabai under influence of liquor. She was being ill-treated. On April 23, 1994, as usual, the appellant visited the single room tenement of deceased Kausalyabai at about 10-00 p.m. He had consumed liquor. He demanded vegetable for the meals. The children of deceased Kausalyabai had gone to other places for stay during the night. The deceased Kausalyabai told the appellant that vegetable was not available. The appellant was annoyed due to her reply. He started giving kicks and fist blows on her person. She was angry due to his beating. She immediately picked up a kerosene canister lying in the proximity and doused herself with kerosene. She set on fire to her person by means of a lighted match stick. Soon, she was engulfed in the flames of fire. The appellant rushed to extinguish the fire. His hands and person sustained burn injuries during the course of his attempt to extinguish the fire. Kausalyabai ran out of the room. The fire was 4 extinguished when a neighbouring woman poured water on her person. The appellant fled away from the place. Brother of the injured -Kausalyabai came there after receiving information about the incident. He took her to the Hospital. Her statement was recorded by Head Constable Shri Dhas. On the basis of her Police statement, crime was registered against the appellant. Her regular dying declaration also was subsequently recorded by the Executive Magistrate. The Medical Officer noticed that she had sustained 93% burns. She lateron succumbed to the burn injuries on next day in the afternoon i.e. 24.4.1994. The dead body was subjected to postmortem examination. The Police Officer visited the tenanted premises of deceased Kausalyabai. A spot panchanama was drawn. Some burnt cloth pieces, a canister of kerosene, used match stick and a match box etc. were seized from the spot. On the basis of material gathered during the course of investigation, the appellant was charge-sheeted for offence punishable U/ss 306 and 323 of the I.P.C. 5 3. The appellant denied truth into the charge (Exh.5). He submitted that he had no relations with deceased Kausalyabai. He denied that he use to harass and ill-treat Kausalyabai. His contention was that while he was passing by road in front of the tenanted room of deceased Kausalyabai, in order to search for agricultural workers, he noticed that she was burning and crying. He, therefore, attempted to extinguish the fire and was injured in his such attempt. Thus, his defence before the learned Additional Sessions Judge was of denial. 4. At the trial, the prosecution examined in all nine (9) witnesses in support of its case. The learned Sessions Judge, came to the conclusion that deceased Kausalyabai was an estranged woman and there was extra marital affair between the appellant and herself. The learned Sessions Judge held that the deceased was being subjected to cruelty by the appellant. The learned Sessions Judge came to the conclusion that the appellant was in a habit of beating deceased Kausalyabai under influence of liquor. 6 It has been held, therefore, that by his conduct, the appellant instigated commission of suicide by deceased Kausalyabai. The beating mounted by him in the relevant night was the last straw on the camel's back. Her life had become miserable because she was rejected by her husband and was being regularly harassed, beaten up and troubled by the appellant. The learned Sessions Judge accepted the case of prosecution and convicted the appellant as described hereinabove. 5. Heard learned counsel Mr.Bora, for the appellant and Mrs.R.D.Reddy, learned A.P.P. for the State. 6. The material points to be determined in this appeal are : "(i) Is it proved beyond reasonable realm of doubt that the appellant by his conduct, namely regular harassment and ill treatment meted out to deceased Kausalyabai, instigated, aided or goaded her to commit the suicide.? 7 (ii) Whether it is proved that in the night of April 23, 1994, the appellant voluntarily caused hurt to deceased Kausalyabai in her rented single room tenement.?" 7. Before I proceed to scan the oral and documentary evidence tendered by the prosecution, let it be noted that the fact about nature of the death of deceased Kausalyabai is not controverted by the appellant. It is duly proved that she committed suicide by self immolation in the night of 23.4.1994. The alleged incident occurred at about 10-00 p.m. The son of deceased Kausalyabai, by name Ravindra (P.W.4) had gone to house of his aunt during the relevant night, whereas her daughter had gone at another house for the overnight stay. 8. The legal position is that for purpose of Section 306 of the I.P.C., ingredients of abetment as contemplated U/s 107 of the I.P.C. are required to be satisfied. The prosecution is 8 required to prove therefore, that the accused either instigated or intentionally aided or goaded the deceased to commit the suicide. Section 107 of the I.P.C. may be reproduced as follows : "107. Abetment of a thing - A person abets the doing a thing, who - First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing." 9. The Apex Court in "2007 AIR (SCW) 4380 : 2007 AIR (SC) 2457, held that in order to prove abetment of suicide, there must be proof of 9 direct or indirect acts of incitement to the commission of suicide. It is observed that mere fact that the husband treated the deceased - wife with cruelty would not be enough. The relevant observations may be usefully quoted as follows : "7. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased wife with cruelty is not enough. (See Mahinder Singh Vs. State of M.P. (1995 AIR SCW 4570). Merely on the allegation of harassment conviction in terms of Section 306 IPC is not sustainable. There is ample evidence on record that the deceased was disturbed because she had not given birth to any child. P.Ws. 8,10, and 11 have categorically stated that the deceased was disappointed due to the said fact and her failure to beget a child and she was upset due to this." 10 Similarly, in "Sohan Raj Sharma Vs. State of Haryana" 2008 AIR (SC) 2108 : 2008 AIR (SCW)3202, the Apex Court succinctly clarified the meaning of expression "Instigate" as used in Section 107 of the I.P.C. It is held that the expression "Instigate" does imply provocation, incitement or to urge on or bring about by persuasion to do any thing. The relevant observations in this behalf would show that in case of alleged abetment, there must be proof of direct or indirect acts of incitement to the commission of suicide. 10. Keeping at back of mind the above legal position, I shall proceed to consider the prosecution evidence in order to find out whether the appellant instigated commission of the suicide of deceased Kausalyabai or that by his acts of omission or commission, he otherwise aided, goaded or mentally pushed forward deceased Kausalyabai to commit suicide. There is no direct evidence about the ill-treatment or harassment of deceased Kausalyabai at hands of the appellant. The prosecution mainly relied upon the Police statement (Exh.30) recorded by 11 Head constable Mr.Dhas and dying declaration (Exh.36) recorded by the Special Judicial Magistrate Shri Vishwanath Magar (P.W.8). The FIR was registered on the basis of the Police statement which Head constable Dhas is said to have recorded while injured Kausalyabai was admitted in the Civil Hospital at Beed for medical treatment. The evidence of other witnesses comprise of the testimonies tendered by Bajrang (P.W.3), who happens to be brother of deceased Kausalyabai and Ravindra, who happens to be her young son. Both of them narrated about illicit sexual relationship between the appellant and deceased Kausalyabai. What transpires from the record is that the young woman aged about 30 years was driven out of the matrimonial house and was in need of help. The appellant developed sexual relations with her. They were residing together like husband and wife and she was rather a mistress kept by him, though during day time, she use to do manual work as a labour. 11. Both the Panchas viz; Madhav Rama Shinde (P.W.1) and Ahmed Pasha S/o Sk.Mehetab 12 (P.W.2) declined to support the spot panchanama (Exh.16). They were declared hostile. Their versions are of no avail to either side. It is explicit from the recitals of the PM notes that deceased Kausalyabai had received 94% burn injuries from right upper limb upto the lower extremity. The Medical Officer noticed presence of soot particles in the Larynx Trachea of the deceased. Her clothes were completely burnt away and the body was naked. 12. Head constable Shivaji Dhas (P.W.7) and Special Judicial Magistrate (P.W.8) are the star witnesses examined by the prosecution in support of the two dying declarations which came to be recorded. The version of Head constable Shivaji Dhas reveals that he recorded statement of Kausalyabai after obtaining endorsement of the Medical Officer to the effect that she was fit to give her statement. He states that he obtained thumb impression of the left thumb of toe of the patient below the statement. She admitted the contents thereon as true and correct. Thus, he corroborates recitals of the dying declaration 13 (Exh.30). He admits that there is overwriting of the endorsement of the Medical Officer. His version purports to show that the statement was recorded in the morning of April 24, 1994 at about 9-00 a.m. However, the time of recording the statement of Kausalyabai is not stated on the dying declaration (Exh.30). The text of the dying declaration would show that it was recorded in narrative form. In the said dying declaration Kausalyabai narrated to Head constable Shivaji Dhas that the appellant had developed sexual relations with her since about 4/5 years. He narrated that he always use to meet her after consuming liquor and use to suspect her character. She further narrated that in the relevant night she had slept in the room when the appellant visited her room. She further narrated that the appellant asked her to serve the meals. Thereupon she told him that stock of the vegetable was not available. He immediately started beating her by means of kicks and fist blows. She further narrated that she was fade up with his frequent harassment. She, therefore, poured kerosene on her person, lighted a match 14 stick and set her ablaze. She narrated before the Police Head constable that the appellant attempted to extinguish the fire and, therefore, was injured. She stated further that one Bandi daughter of Laxman Shinde poured water on her person and extinguished the fire. The prosecution did not examine the Bandi as a witness. Obviously, immediate utterances and conduct of Kausalyabai are not available for consideration. 13. As regards the second dying declaration, recor4ded by Vishwanath (P.W.8), it may be stated that the same has been recorded in question and answer form. It is pertinent to note that Vishwanath, the Special Judicial Magistrate, is a practising lawyer. He narrated as to how he recorded the dying declaration of Kausalyabai in the relevant morning between 8-10 a.m. to 9-30 a.m. He corroborates the dying declaration (Exh.36). His version shows that he did not personally verify the physical condition of Kausalyabai. He obtained endorsement from the Medical Officer about her capability to 15 understand the import of questions. 14. The recitals of the second dying declaration (Exh.36) purport to show that she narrated somewhat different story regarding genesis of the incident. She stated that she had served meals to the appellant. He was served the bread (...............). He asked her why only Chatni and bread was served. He thereafter started beating her under intoxication of liquor. He threatened her that some day he would kill her. She then told him that why he would kill her and that she herself would die. She stated before the Special Judicial Magistrate that in a fit of anger she poured kerosene on her person and set herself ablaze. 15. The first dying declaration (Exh.30) does not show that the appellant was in drunken condition in the relevant night. It also does not show that he was served with meals by Kausalyabai. The second dying declaration does not refer to demand of the appellant for vegetables and absence of the stock of vegetables 16 in the room. According to the version indicated in the first dying declaration (Exh.30), the appellant started beating her because she did not serve vegetables. The second dying declaration, however, does not refer to any such cause of annoyance and commencement of the beating by the appellant. Needless to say, there is variance between the two dying declarations as regards genesis of the incident. In the second dying declaration (Exh.36), Kausalyabai categorically stated that she was annoyed and was unable to control the anger and, therefore, she poured kerosene on herself and set on fire to herself. In the second dying declaration she did not refer to act of the appellant of extinguishing the fire. There is material variance in the two dying declarations as regards the reason for her act of self-immolation. The second dying declaration does not show that the appellant use to suspect her character. However, the first dying declaration shows that he use to suspect her character. 16. It has come on the record that the 17 appellant had suffered 35% burn injuries during the course of incident. In her first dying declaration itself, Kausalyabai stated that hands of the appellant were injured due to burns because he had attempted to extinguish the fire. 17. Cross-examination of Bajarang, (P.W.3), who is real brother of Kausalyabai, clearly shows that she was hot tempered woman. One can not be oblivious of the fact that she could not pull on well with her husband. Her second dying declaration (Exh.36) reveals that she could not control her anger and therefore, immolated herself. The fact situation available on record reveals that due to the hot temperament, deceased Kausalyabai ended her life at spur of the moment when she disapproved beating at hands of the appellant. 18. The Apex Court in "Amol Singh Vs. State of M.P." 2008 (8) Scale 63, held that the dying declaration does not need corroboration if it is made voluntarily and in fit mental condition. However, in case of plurality of dying 18 declarations, it has been held, the Court has to examine nature of inconsistencies as to whether they are material or not. Where the inconsistencies found relate to motive and secondly as to modus operandi then such inconsistencies are material. In the present case, it is difficult to say whether Kausalyabai was annoyed because the appellant use to suspect her character or because he started beating her when she served him meals without vegetables. There is also inconsistencies between the two dying declarations as regards inebriated condition of the appellant. The first dying declaration does not refer to his being under state of intoxication, whereas the second dying declaration shows that he was in drunken condition. 19. Even assuming that the appellant had threatened that one day or the other, she will be killed, then also it is difficult to say that such utterances could amount to his instigation for her commission of suicide. The deceased was having extra marital relations with him since 19 about 4/5 years. It is but natural to assume that she had accustomed herself with his nature. The conduct of the appellant may be somewhat rude but after 4/5 years of consortium, it could not be regarded that his rudeness was with intention to drive her to commit the act of suicide. Considering available evidence on record, it is difficult to hold that the appellant instigated or intentionally aided commission of suicide by deceased Kausalyabai. It is probable that she was unhappy, frustrated and disappointed due to the broken marriage. It is also probable that she was dissatisfied due to the conduct of the appellant. Being a hot tempered woman, probably she decided to end her life at the spur of moment when the appellant subjected her to some beating. It is pertinent to note that the Medical Officer did not notice marks of violence on her person. It is difficult, therefore, to say that she was seriously beaten up by the appellant at the relevant time. Considering these aspects of the matter, I find that the impugned judgment is quite unsustainable. The learned Sessions Judge did not consider the circumstances, including act 20 of the appellant to extinguish the fire at the cost of his own sufferance of burn injuries to the extent of 35%. The conduct of the appellant could be interpreted as of the person who wanted to save Kausalyabai and not of the person who wanted her to commit suicide. 20. For the reasons aforestated, I have no hesitation in holding that the charge is not proved and the appellant is entitled to claim acquittal. The appeal is, therefore, allowed. The impugned judgment of conviction and sentence rendered by the learned III rd Additional Sessions Judge,Beed, in Sessions Case No.155/1995 is set aside. The appellant is acquitted for offences punishable U/ss 306 and 323 of the I.P.C. and the order of sentence is set aside. His bail bonds be deemed as cancelled. The fine amount, if deposited, be refunded to him. The articles being worthless, shall be destroyed. (V.R.KINGAONKAR,J.) asp/office/Crappeal24497 21