1 Cri.Appeal 583-1993 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.583 OF 1993 Mahesh Tatoba Dhende ..Appellant Indian Citizen, Age : 30 yrs, Occu : Agriculturist, Resident of Savalaj, Taluka Tasgaon, District Sangli. V/s. The State of Maharashtra ..Respondent through Tasgaon Police Station, District Sangli. Mr.Prakash Naik i/b. Mr.D.R.More, Advocate, for the Appellant Mrs.R.V.Newton, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 30TH MARCH, 2011 ORAL JUDGMENT . This Appeal is directed against appellant's conviction by the learned Sessions Judge, Sangli for the offence punishable under Sections 306 and 498-A of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs.1000/- and 2 Cri.Appeal 583-1993 rigorous imprisonment for one year with a fine of Rs.500/- imposed upon the appellant by the learned Sessions Judge on the two counts. 2. Facts which are material for deciding this appeal are as under :- Victim was married to the appellant about nine years prior to the incident and had three children of the marriage. Appellant is alleged to have been addicted to liquor and therefore, used to beat the victim. About four months prior to the incident, the appellant is alleged to have written to the victim's parents a letter informing them that the victim had died when she was very much alive. She was taken to her parental home and parties resumed co-habitation amicably. Thereafter, on 27th January, 1992, the victim set herself on fire. The appellant extinguished fire and took the victim to the hospital where victim succumbed to her injuries on 28th January, 1992, after her dying 3 Cri.Appeal 583-1993 declaration was recorded by the Executive Magistrate. On the report by victim's father, an offence was registered and investigation commenced. In course of investigation, police caused an inquest to be performed on the body of victim and sent it for post mortem examination. They recorded statements of witnesses, performed panchanama of the spot and on completion of investigation, sent charge sheet to the Court of the Judicial Magistrate First Class, Tasgaon, District Sangli, who committed the case to the Court of Sessions at Sangli. 3. The learned Sessions Judge charged the appellant of the offence punishable under Sections 306 and 498-A read with Section 109 of the Indian Penal Code to which the appellant pleaded not guilty and hence, was put on trial at which the prosecution examined in all five witnesses in its attempt to bring home guilt of the accused. After considering 4 Cri.Appeal 583-1993 the prosecution evidence in the light of defence raised, namely absence of complicity in any illtreatment or abetment to commit suicide, the learned Sessions Judge held the appellant guilty on both the counts and convicted and sentenced him as aforementioned. 4. I have heard the learned Counsel for the appellant and the learned APP for the respondent  State. With the help of both the learned Counsel I have gone through the record. The evidence of P.W.1 Kerba, victim's father, who proved FIR at Exhibit No.8 and that of victim's mother P.W.2 Sushilabai shows that the only allegation against the appellant was that he used to drink and beat up the victim. They also state that appellant expressed suspicion about victim without specifying as to what was that suspicion. P.W.3 Salama Shirolkar, Special Executive Magistrate, recorded dying declaration at Exhibit No.11, after victim was certified by 5 Cri.Appeal 583-1993 the Medical officer to be fit to make such declaration. P.W.4 Dr. Mallappa Shivputre had treated the victim and had also found her to be fit when her dying declaration was recorded. This dying declaration also shows that the only allegation that the victim had to make against the appellant is that the appellant was addicted to liquor and used to beat the victim everyday expressing suspicion about her character. Hence, she set herself on fire. She also stated that her husband extinguished the fire. P.W.5 Shivaji Rupnar, API conducted investigation. 5. It is, thus, clear from the evidence that only because of suspicion by appellant, who was addicted to liquor, the victim committed suicide. There was no marital discord as such or any desire on the part of the appellant that the victim should go away. Rather the appellant's conduct in extinguishing the fire and taking the victim 6 Cri.Appeal 583-1993 to the hospital would rule out any abetment on the part of the appellant's in victim's commission of suicide. It cannot be said that the appellant had provoked victim to commit suicide. It would be wrong to hold that merely because the appellant was addicted to liquor and used to beat up his wife expressing suspicion about her, he desired that she should die and therefore, conviction of the appellant for the offence punishable under Section 306 of the Indian Penal Code recorded by the learned Sessions Judge cannot at all be sustained. 6. As far as the offence punishable under Section 498-A is concerned, there is no demand of any sort which led to ill treatment of the victim. Ill treatment emanated from only addiction of liquor which unfortunately led the victim to commit suicide. Considering the nature of allegations made and the fact that the parties were leading satisfactory marital 7 Cri.Appeal 583-1993 life for nine years in which three children were born, it cannot be said that the appellant was guilty of cruelty of high order though on the basis of the dying declaration of the victim it has to be held that the appellant was guilty of beating up the victim. 7. In view of this, technically an offence punishable under Section 498-A of the Indian Penal Code may be said to have been made out. However, the punishment of rigorous imprisonment for one year with a fine of Rs. 500/- imposed on this count has to be held to be harsh in the context of the facts unfolded, as also the fact that the incident took place way back in the year 1992 and the appellant has been living in the shadow of conviction for the last 18 years now. The appellant shown to have been in jail from 29th January, 1992 to 25th March, 1992 and thereafter, from 21st September, 1992 to 30th November, 1993. It would be unjust to send him to prison now. 8 Cri.Appeal 583-1993 In view of this, it would be sufficient if the sentence of the appellant is brought down to that already undergone. 8. In view of this, Appeal is partly allowed. Conviction of the appellant for the offence punishable under Section 306 of the Indian Penal Code and sentence of rigorous imprisonment for five years with a fine of Rs. 1000/- or in default rigorous imprisonment for three months is set aside. He is acquitted of the said offence. Conviction of the appellant for the offence punishable under Section 498-A of the Indian Penal Code is maintained further. The sentence is, however, reduced to the period already undergone with a fine of Rs.500/- which the appellant must have been deposited. (R.C.CHAVAN, J.)