IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.442 OF 2006 CRIMINAL REVISION APPLICATION NO.442 OF 2006 CRIMINAL REVISION APPLICATION NO.442 OF 2006 Appasaheb Nivrutti Jagtap ..Applicant versus The State of Maharashtra ..Respondent Mr.D.G.Khamkar for the Applicant Mr.Dedhia for the Respondent CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 24th April, 2008. DATED : 24th April, 2008. DATED : 24th April, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The applicant faced full fledged trial in the Court of First Adhoc Asst. Sessions Judge, Solapur in regard to the charge under Section 498A and 306 of the Indian Penal Code. The applicant happens to be husband of Lalita. On 7th October, 2000 being Dassera day, said Lalita is said to have put herself on fire and thereafter she was taken to Government dispensary at Osmanabad where her statement came to be recorded by the Police Constable Ramchandra-P.W.1. Her statement was treated as FIR and the criminal law was set in motion. The applicant was arrested. He was made to face the trial in the Sessions Case No.237 of -2- 2000 as mentioned aforesaid and the learned First Adhoc Assistant Sessions Judge, Solapur by Judgment and Order dated 31st July, 2001 convicted the applicant under Section 306 of I.P.C. and sentenced him to suffer r.i. for seven years and to pay fine of Rs.1000/- and ordered that the applicant should suffer three months further r.i. i.d. of payment of fine. The applicant was also convicted under Section 498 of the Indian Penal Code and was sentenced to suffer r.i. for two years and to pay fine of Rs.500/- and to undergo r.i. for one month in default of payment of fine. The learned trial Judge directed that both the sentences should run concurrently. Being aggrieved by this judgment dated 31st July, 2007 the applicant filed appeal being Appeal No.51 of 2003 in the Court of 2nd Addl. Sessions Judge, Solapur, who by his judgment and Order dated 20th October 2004 dismissed the appeal and ordered issuance of conviction warrant. Being aggrieved by this judgment and Order, dated 20.10.2004, the applicant has filed this appeal which was subsequently converted into revision application, being revision application No.442 of 2006. The application came to be filed through jail and subsequently learned -3- Advocate Mr. D.G.Khamkar filed his Vakalatnama and appeared on behalf of the applicant. 2. Few facts necessary for the disposal of this application are as under: . The applicant and Lalita were married and according to the prosecution the applicant used to consume alcohol and ill-treat Lalita and used to even beat her, and despite repeated requests from Lalita the applicant did not give up drinking. On the fateful day i.e. on 7th October, 2000, the applicant told Lalita that he is going to consume liquor and Lalita is said to have requested the applicant that being a festival day i.e. Dassera, he should not consume liquor. The applicant declined to accept this suggestion and hurled abuses on Lalita and went out of the house. Lalita claims that she developed tension and that is how she put herself on fire at about 5.30 p.m. Lalita was taken to the hospital where the police constable arrived and the said police constable Ramchandra-P.W.1 recorded her statement after obtaining endorsement from the Medical Officer Dr.Mrs. Smita-P.W.3 and the said statement -4- registered by Lalita was treated as FIR. Lalita died at later point of time i.e. on 12.10.2000. 3. The investigating agency applied appropriate sections at the appropriate stages and that is how the petitioner was required to face trial for two charges namely Section 306 abetment of suicide by the applicant, and Section 498A. 4. Learned Advocate Mr. Khamkar appearing on behalf of the petitioner drew my attention to the evidence recorded and submitted that even if the word of Lalita is accepted as it is, it would not amount to abetment of suicide by the applicant as ingredients of abetment under Section 109 of the IPC are not complied with in as much as there was no instigation or aiding Lalita for the purpose of committing suicide or entering into conspiracy with Lalita. Learned Advocate Mr. Khamkar submitted that so far as the question of abetment is concerned the two courts below have committed manifest error and the view taken by the learned 2nd Addl. Sessions Judge, Solapur, thereby confirming the observations of the 1st Addl. Adhoc Sessions Judge, Solapur is wrong. -5- 5. Mr. Khamkar submitted that in the aforesaid facts and circumstances of the case and on the basis of the evidence before the courts, the applicant is entitled for acquittal so far as the charge under Section 306 I.P.C. is concerned. 6. He has also taken me through the evidence to submit that the word of Lalita as well as the mother in law of the applicant i.e. Sakhubai P.W.2 should not be accepted to hold that the applicant used to treat Lalita with cruelty by assaulting her as well as by consuming liquor. According to Mr. Khamkar, apart from the bare words of Lalita and Sakhubai there is no other supporting material and therefore the prosecution has failed to make out the case against the petitioner beyond the shadow of reasonable doubt. Mr. Khamkar therefore prays that both ways the conviction of the applicant under Section 306 and 498A IPC is bad in law and is required to be set aside by granting the revision. 7. Learned Advocate Mr. Dedhia appearing on behalf of the State supported the view taken by the learned 1st Adhoc Asst. Sessions Judge, Solapur -6- and also the 2nd Addl. Sessions Judge, Solapur and submitted that both the courts had considered the material evidence on record in the proper perspective and they are right in convicting the applicant under the respective sections. Mr. Dedhia, therefore, prays for dismissal of the application. 8. After having considered the entire record and after having considered the rival contention, I am inclined to observe that the view taken by the courts below, so far as the charge under section 498A will have to be confirmed. The reasons are as under. 9. Lalita has in detail in her statement before the police has narrated as to how she was being ill-treated by the applicant and in particular by consuming liquor from time to time. She has stated the incident of 7.10.2000 i.e. on the day of festival Dassera. The applicant showed courage to express that he would like to consume liquor. The statement of Lalita was sought to be brought on record through the evidence of police constable Ramchandra P.W.1. Statement of Lalita -7- recorded by said Ramchandra will have to be treated as dying declaration. The case of prosecution is that the applicant used to ill-treat Lalita. Evidence of Sakhubai nodoubt points in the direction of ill-treatment having been meted out by the applicant to Lalita. She however seems to make some improvements with regard to the incident of 7.10.2000, in as much as she claimed that the applicant poured Kerosene on the person of Lalita and put her on fire which is not so as is evident from the statement of Lalita. Be that as it may. Evidence of P.W.2 Sakhubai can be used against the applicant since she is the mother of Lalita. She confirms the version of Lalita as regards cruelty. It is only to that extent her evidence can be used. That is so when the words of Lalita that the applicant used to ill-treat her is being accepted. It is true that there are no other independent witnesses. However, as observed by both the courts below, there was no need for the prosecution to prove the overtact on the part of the applicant to say that the applicant ill-treated Lalita. To that extent the conviction of application under Section 498A will have to be confirmed and appropriate order will have to be passed herein. -8- 10. In so far as the conviction under Section 306, namely abetment to commit suicide, keeping in view the statement of Lalita it can hardly be said that the conduct on the part of the applicant amounted abetment to commit suicide. It may be true that the applicant was not treating Lalita properly. However, the reasons mentioned by Lalita in her dying declaration, do not show that the applicant abetted commission of suicide by Lalita. Lalita states in her statement that she developed tension on account of behaviour of the applicant and that is how she poured kerosene and set herself on fire. On the basis of the record before this Court, I am of the view that it can hardly be said that the applicant abetted commission of suicide by Lalita and therefore it will have to be observed that prosecution has failed to prove the charge under Section 306 IPC beyond the shadow of reasonable doubt. 11. Both the courts below did not consider the aspect of abetment as understood under Section 109 of IPC and to that extent the two courts fell in error. In view of the aforesaid discussion, I am -9- inclined to accept the arguments of learned Advocate Shri Khamkar to the extent of charge under Section 306 IPC and that the conviction of the applicant so far as the charge under Section 306 IPC will have to be set aside. 12. For the reasons mentioned aforesaid, I pass the following order: ORDER ORDER ORDER 1. Revision is partly allowed. 2. Conviction of the applicant under Section 498A of the Indian Penal Code and sentence imposed upon the applicant under Section 498A of I.P.C. vide Order dated 31st July, 2007 passed by the learned 1st Adhoc Assistant Sessions Judge, Solapur and confirmed by the 2nd Addl. Sessions Judge, Solapur in Criminal Appeal No.51 of 2003 is confirmed. 3. The order dated 31.7.2007 in S.C. No.237 of 2000 passed by the 1st Adhoc Assistant Session Judge, Solapur, confirmed by the learned 2nd Addl. -10- Sessions Judge, Solapur in Criminal Appeal No.51 of 2003 being Order dated 20.10.2004 in so far as conviction under Section 306 of I.P.C. is set aside. Accordingly the conviction of the applicant under Section 306 of IPC and sentence imposed upon the applicant therefor is set aside. The applicant is acquitted of the charge under Section 306 of I.P.C. Fine of Rs.1000/- (Rupees One Thousand Only) paid by the applicant be returned to the applicant after the appeal period is over. 4. The applicant is presently in custody and is in jail. If the applicant has suffered the rigorous imprisonment for two years the jail authorities are directed to release the applicant if he is not required in any other case. 5. The applicant has paid fine of Rs.500/- (Rupees Five Hundred) for his conviction under Section 498A of IPC and hence there is no need for the applicant to undergo sentence in default the payment of fine. 6. Office to send the Operative Order to the Yerwada Central Prison, Pune for acting upon it. -11- (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)