1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 84 OF 1998 1. Ramesh s/o Baburao Gawate (Dead). 2. Kalawati w/o Ramesh Gavate, Age 26 years, Both resident of Vambori,Taluka Rahuri, District Ahmednagar. Petitioners V E R S U S The State of Maharashtra Respondent Appeal against appellant No.1 is abated as he is reported to be dead. Mr.B.P.Suryawanshi, Advocate holding for Mr. N.B. Suryawanshi, Advocate for the petitioner. Mr. N.H. Borade, A.P.P. for the respondent / State. CORAM : A.V. NIRGUDE, J. DATED : 21st April, 2010 J U D G M E N T 1. The appeal of the appellant No.1 stood abated because of his death. The order of abatement was passed on 11th March, 2010. 2. The appellant No.2 filed this appeal against the Judgment and order passed by the learned Additional Sessions Judge, Ahmednagar, in Sessions Case No. 356 of 1995, convicting the appellant No.2 for the offence punishable under sections 306 and 498-A read with Section 34 of the Indian Penal Code. The learned Judge ordered the appellant No.2 to suffer rigorous imprisonment of five years for the 2 offence punishable under Section 306 of the Indian Penal code and to undergo rigorous imprisonment of two years for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code. The prosecution case, in nutshell, was as under : 3. The appellant No.1 was married to one Malan, the sister of prosecution witness No.5 Anna. This couple had two children. The married life of Malan was quite happy till three months prior to the date of incident. Before three months of the date of incident, unfortunately, the appellant No.1 took the appellant No.2 as his mistress and brought her home. Due to this, there occurred lots of quarrels between the appellants No. 1 and 2 on one hand, and, Malan on the other. On 31st July, 1995 and on 1st August, 1995, both the appellants quarreled, abused and beat up Malan, and getting fed up of this ill-treatment, Malan committed suicide at about 10.00 a.m.on 1st August. Malan was brought to the hospital, where her two dying declarations were recorded. In both the dying declarations, Malan stated about the ill-treatment meted out to her at the hands of the appellants, and stated that, she had set herself on fire getting fed up of the ill-treatment. Malan died on 4th August, 1995. The police registered offence under Section 306, 498-A read with Section 34 of the Indian Penal Code against both the appellants and sent charge- sheet. 3 4. After hearing the submissions of the learned Advocates appearing for the parties and after going through the record, following question arose for my consideration : Whether the prosecution proves the case as against the appellant No.2, if she admittedly was a mistress of the husband of the deceased? 5. The prosecution witness No. 5 Anna, the brother of deceased Malan, stated that after the appellant No.1 kept the appellant No.2 as his mistress in the house, his sister Malan started complaining to him about beating and ill-treatment at the hands of appellant No.1. He also asserted that about two weeks prior to the incident, Malan had come to his house and told him that the appellant No.1 had demanded Rs.10,000/- for construction of a house, and on account of such demand, he had ill-treated her. This witness, thus, does not say anything against the appellant No.2. 6. The prosecution witness No.6 Salubai is Malan’s sister. She stated that she saw Malan in injured condition in the hospital, and Malan told her, that on day before the incident, both the appellants had beaten her. So much so, that the beating was going on till next morning. This witness also stated that Malan told her that the appellant No.1 was demanding Rs.10,000/- for construction of a house etc. All that this witness stated against the appellant No.2 was, Malan informed her that the appellant No.2 had beaten her up for about two days. 4 7. The prosecution witness No. 8 Navnath is a neighbour of prosecution witness No. 5 Anna. He stated that he knew Malan, his neighbour’s sister. He said, he had occasion to meet Malan about two weeks prior to the incident. He said, Malan had told him that her husband quarreled with her and assaulted her. This witness, thus, does not state anything against the appellant No.2. 8. The prosecution witnesses No. 4 and 7 are the persons, who met Malan, when she was brought to the hospital in injured condition. They recorded her dying declarations. Both of them, however, did not state in their substantive evidence, as to what they heard from Malan. They simply stated that they recorded Malan’s statement, as per her narration, obtained her thumb mark on it and then identified the statements which were produced before them in the Court. These two witnesses thus could not prove the contents of the dying declarations. Assuming that these dying declarations are proved and can be read in evidence, it reveals that Malan had stated before these witnesses that both the appellants quarreled with her on 31st July, 1995 at 05.00 p.m., when the appellant No.2 had assaulted Malan. Malan further stated that on 1st August, 1995, at about 08.00 a.m., the appellants again quarreled with her. She said, she got fed up due to these quarrels and set herself on fire. The dying declaration (Exh.23) does not contain any mention about the appellant No.1’s demand of 5 Rs.10,000/- etc. But the second dying declaration (Exh.28) contains such allegation. 9. All that we have on record against the appellant No.2 is that she quarreled, abused and assaulted Malan on 31st July, 1995, on 1st August, 1995 and on number of occasions earlier. The question is, whether this conduct on the part of appellant No.2 would amount to offence under Section 498-A of the Indian Penal Code ? Section 498-A reads as under : “498-A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation – For the purposes of this section, “cruelty” means - (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman : or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” Having perused this provision, especially the words ‘being the husband or the relative of the husband’, one would ask the prosecution, as to how would they prove the appellant No.2 was a relative of the appellant No.1? The prosecution does not say that appellants No. 1 and 2 are related to each other. It is their case that 6 the appellant No.2 was a mistress of the appellant No.1. Obviously, therefore, the appellant No.2 cannot be said to be relative of the husband of deceased Malan. The provisions of Section 498-A thus would not apply to her acts of cruelty, even though such acts of cruelty would otherwise amount to cruelty, as defined by the explanation of Section 498-A. 10. The second question that would arise before the Court is, could the appellant No.2 be accused of abetting Malan’s suicide? Section 306 and Section 109 of the Indian Penal Code are required to be read conjointly and I quote the provisions as under : “Section 306. Abetmentof suicide – If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to then years, and shall also be liable to fine.” “Section 109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment - Whoever abets any offence shall, if the act abetted is committed in consequent of the abetment, and no express provision is made by this Code for the punishment of such abetment, but punished with the punishment provided for the offence. Explanation – An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.” The prosecution has amply indicated that the appellant No.2 treated Malan with cruelty. She quarreled, abused and assaulted Malan. While she was doing this, the appellant No.1 always sided her. Thus, 7 Malan was helpless and vulnerable against the appellants No. 1 and 2. 11. The question is, whether the conduct of the appellant No.2 was such that she instigated Malan to commit suicide? The answer is in negative. There is nothing on record to show that the appellant No.2 did something intentionally so as to drive Malan to commit suicide. Even if, one believes that the appellant No.2 treated Malan with cruelty, one may not be able to say that, she intended, while treating Malan with cruelty, that Malan would commit suicide. The provisions of Section 113-A of the Indian Evidence Act would not come to help the prosecution in this case for two reasons. It has come on record that marriage between Malan and appellant No.1 was more than 10 years old and the appellant No.2 cannot be said to be a relative of the husband of Malan. The appeal should therefore succeed. The appeal is allowed. The appellant No.2 is acquitted of the offences punishable under Sections 306 and 498-A read with Section 34 of the Indian Penal Code. sd/- (A.V. NIRGUDE, J.) srm/criapl/84/98/ok 8