1 AJ-25.97 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPEAL NO.25 OF 1997 1. Dilip Dhaku Rane 2. Laxmibai Dhaku Rane 3. Dhaku Krishna Rane 4. Sarita Dhaku Rane Nos.1 to 4 residing at Varavade, Tambalwadi, Taluka Kankavali, District Sindhudurg. .... Appellants - Versus - The State of Maharashtra .... Respondent Shri S.M. Railkar for the Appellants. Ms A.A. Mane, Addl. Public Prosecutor, for the Respondent-State. CORAM: R.C. CHAVAN, J. DATED: JANUARY 12, 2011 ORAL JUDGMENT: 1. This appeal is directed against the conviction of the appellants by the learned Additional Sessions Judge, Sawantwadi for the offences punishable under Sections 323, 498-A and 306 r/w Section 34 of the Indian Penal Code (for short, IPC ). The victim was married to appellant No.1 Dilip in the year 1990. It was 2 AJ-25.97 alleged that there was some ill-treatment to the victim on account of her inability to complete the domestic chores. The victim gave birth to a son and a daughter who are now looked after by the appellants. The victim and appellant No.1 had left the house of appellant No.1 s parents in Shravan of 1994 and were staying at another village. About a month before the incident which took place on 3-2-1995, the victim and her husband had returned to the house of the parents. According to the victim, the ill-treatment resumed after she came back to the house of her in-laws. On 3-2-1995, at about 9:00 a.m., the victim consumed rice which had been cooked on the previous night. This infuriated her father-in- law, appellant No.3, who slapped the victim and also hit her with the handle of a broom. Appellant No.1 Dilip, the victim s husband and appellant No.4 Sarita, the sister-in-law, also quarreled with the victim and asked her either to go to her parental home or to start residing separately. At that time appellant No.2 Laxmibai also allegedly abused the victim and asked her to go away. Tired of all this harassment, the victim poured kerosene over a quilt, lied down on the quilt and set the quilt on fire. She sustained 22% of burn injuries, 3 AJ-25.97 mostly on both legs, anterior part of the abdomen and right and left elbow. She was taken to the Rural Hospital at Kankavali where her statement was recorded by a police officer in the presence of a doctor. Thereafter, she was shifted to the Government Medical College & Hospital at Panaji, Goa, where she succumbed to her injuries on 13-4-1995, that is over two months after the incident. On a report by the victim s brother, an offence was registered and on completion of the investigation charge-sheet was sent to the Court of Judicial Magistrate, First Class, Kankavali, who committed the case to the Court of Sessions at Sawantwadi. 2. The learned Addl. Sessions Judge charged the appellants with the offences punishable under Sections 323, 498-A and 306 r/w Section 34 of the IPC. Since the appellants pleaded not guilty to the said charge, they were put on trial at which the prosecution examined as many as seven witnesses to bring home the guilt of the appellants. After considering the evidence tendered in the light of the defence of denial of complicity in the ill-treatment, the learned Addl. Sessions Judge held appellant Nos.1, 3 and 4, that is the husband, father-in-law and the sister-in-law 4 AJ-25.97 guilty of the offences punishable under Section 323 r/w Section 34 of the IPC and sentenced them to suffer RI for one month and fined them Rs.100/-, or in default further RI for seven days. He held all the appellants guilty of the offences punishable under Sections 498-A and 306 of the IPC and sentenced them to suffer RI for three years and five years with fine of Rs. 200/- or in default to suffer RI for a further period of two weeks on the two counts respectively. Aggrieved thereby, the appellants are before this Court. 3. The learned counsel for the appellants submitted that appellant Nos.2 and 3, that is Laxmibai and Dhaku died on 8-3-2010 and 2-9-2001 respectively and has produced photocopies of the death certificates of both, issued by the Gram Panchayat, for my perusal. He stated that the original death certificates would be placed on the record by day after tomorrow. In view of this, the proceedings in so far as they relate to appellant Nos.2 and 3 are concerned, abate. 4. I have heard the learned counsel for the appellants as well as the learned APP. The learned counsel for the appellants submitted 5 AJ-25.97 that there are far too many discrepancies in respect of the dying declaration which has been relied on by the trial Court and therefore urged that the dying declaration should not have been considered by the trial Judge. All the same, since the learned trial Judge has chosen to rely on the dying declaration, it may be useful to go through the dying declaration which has been proved by examining PW-5 Ganpat Babu Nerkar. This dying declaration was recorded in the presence of Dr. Tasudduk Ahmed, who has been examined as PW-3. This dying declaration was recorded on 3-2-1995, at about 6:30 p.m. in the Rural Hospital at Kankavali. In the dying declaration the victim has stated about ill-treatment before the victim and her husband shifted to village Varavade. Now since the victim had shifted with her husband in the year 1994, obviously the conduct prior to that date was not material. In any case, the conduct attributed to the in-laws is only of abusing and taunting the victim for her inability to do household work. It is doubtful whether this would qualify either as cruelty for the purpose of Section 498-A of the IPC or to be provocation enough to qualify as to abetment to commit suicide for the purpose of Section 306 of the IPC. 6 AJ-25.97 5. The events of 3-2-1995 which culminated in the victim s setting herself on fire, as recounted by the victim in her dying declaration, are material. She stated that at about 9:00 a.m. she had consumed rice which was left over on the previous night and therefore her father-in-law Dhaku was infuriated. He abused her, slapped her and hit her with the handle of a broom. Though she claimed that her hand was injured on account of this thrashing, the medico legal certificate at Exhibit-27 does not show any injury on the hand. The victim stated that at that time her husband and sister-in-law also quarreled with her and asked her either to go to her parental home or start residing separately. The learned counsel for the applicant submitted that there is nothing to show that the appellants Dilip or Sarita had participated in beating of the victim. It is doubtful whether Section 34 of the IPC could have been invoked for making Dilip or Sarita vicariously liable for the thrashing which the victim s father-in-law gave her. Therefore, the conviction of the appellants Dilip and Sarita for the offence punishable under Section 323 of the IPC is thoroughly unsustainable. 7 AJ-25.97 6. After this there seems to have been a lull in the family since the victim did not state of continuation of the quarrel. She stated that at about 1:00 p.m. her mother-in- law returned and found the other members of the family quarreling with the victim, when the mother-in-law too abused her and asked her to leave the house. The learned counsel for the applicant pointed out that the beating had taken place in the morning. The victim did not take any precipitate step at that time. In the morning itself the victim s husband had asked her to go away or to start residing separately. It is only after the mother-in-law returned and abused the victim and asked her to go away, did the victim take the precipitate step. 7. The victim further stated in her elaborate dying declaration, which runs into five pages, that she picked up a kerosene can, poured some kerosene on a quilt, lied down on the quilt and set the quilt on fire. It may be useful to refer to the panchnama of the spot which was proved by PW-1 Sharadchandra Poyekar at Exhibit-23. This panchnama shows that there was a five litre kerosene can which still contained two litres of kerosene. Thus, it seems that the victim had not emptied the can 8 AJ-25.97 on the quilt before setting herself on fire. It is also worthy to note that only the lower extremities of the victim were injured in the incident and the upper part of her body was almost intact. Considering this, the contention of the learned counsel for the appellants that it is doubtful whether the victim harboured any intention to commit suicide cannot be brushed aside as imaginary. This has to be read coupled with the fact that the victim lived for more than two months after the incident. 8. The evidence of PW-2 Suryakant, the victim s brother, is unhelpful since he had no occasion to talk to the victim. He states that he had indeed gone to the hospital in Panaji where the victim had been admitted but he was afraid to talk to the victim in that condition and hence talked from some distance and could not follow what the victim was speaking. In view of this state of evidence, the dying declaration, at its worst, would only show that on the incidental morning the victim s father- in-law had slapped her and hit her with a broom and all the members of the family had asked her to start residing separately. It is doubtful whether this would amount to abetment to commit suicide. 9 AJ-25.97 9. The learned APP submitted that for a married woman to be asked to leave the matrimonial home or to reside separately is very serious and it would not be improper to conclude that such a suggestion would trigger a married woman to commit suicide. The facts of the case have to be considered objectively and not by being emotionally swayed with what ought to be the ideal conduct in the family. The question would be whether the conduct attributed to the appellants would in ordinary course provoke a person to commit suicide since for the purpose of proving an offence under Section 306 of the IPC, abetment of such an act would have to be proved and in such cases abetment would be by provocation which should be strong enough to propel a person to commit suicide. The reasons given by the victim herself in her dying declaration do not show that there was a provocation so strong that the victim should have committed suicide or a person in the position of the victim would normally have been provoked to commit suicide. Therefore, even accepting the dying declaration at its face value, it does not show that any of the appellants had provoked the victim to commit suicide and therefore an offence 10 AJ-25.97 punishable under Section 306 of the IPC was not made out. 10. The appellants have not been stated to have been involved in harassment of the victim with the view to coerce her or any person related to her to meet any unlawful demand. Therefore, explanation (b) to Section 498-A has to be excluded. The question is whether the conduct which is attributed to the appellants was such wilful conduct which was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury, danger to life, limb or health of the woman. As already observed, the conduct attributed to the father-in-law did not result in any grave injury, rather any injury to the victim. Now the question remains whether the thrashing given by the father-in-law more than four hours before the incident or the words uttered by the appellants asking the victim to stay separately could be said to be a wilful conduct as was likely to drive the woman to commit suicide. Though the learned APP vehemently contended that such a suggestion to a married woman would drive the woman to commit suicide, it is to be seen in the context of the incident which took place. In the course of a quarrel in the house, 11 AJ-25.97 many things are said. It does not mean that they are said in order to achieve a particular unfortunate result which was reached in this case. Therefore, it is difficult to uphold the conviction of the appellants for the offence punishable under Section 498-A of the IPC. 11. Consequently, the appeal, in so far as it relates to appellant Nos.2 and 3 are concerned, abates and is disposed of as such. The appeal, in so far as appellant Nos.1 and 4 are concerned, is allowed. Their conviction for the offences punishable under Sections 323, 498-A and 306 r/w Section 34 of the IPC and the sentences with fine imposed upon them are set aside. Their bail bonds stand cancelled. Sd/- (R.C. CHAVAN, J.)