( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 382 OF 1997 1. Prakash s/o. Shrawan Sonawane .. Appellants Age. 25 years, Occ. Agriculture, 2. Bhikubai Shrawan Sonawane Age. 50 years, Both R/o. Chalisgaon, Dist. Jalgaon. Versus The State of Maharashtra .. Respondent Shri R.N. Dhorde, Advocate for the appellants. Shri B.R. Khekale, A.P.P. for respondent/State. CORAM : P.R. BORKAR,J. DATED : 04.11.2009 ORAL JUDGMENT :- 1. Original accused Nos. 1 and 2 have filed this appeal being aggrieved by the order of conviction and sentence passed by II Additional Sessions Judge, Jalgaon, in ( 2 ) Sessions Case No.43 of 1994, decided on 24.11.1997, whereby the appellants were convicted of offence punishable under Section 306 and 498-A both read with Section 34 of the Indian Penal Code. Each appellant is sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 3000/-, in default, to suffer rigorous imprisonment for one month for offence punishable under Section 306 r/w 34 of I.P.C. For offence punishable under Section 498 r/w 34 of I.P.C., each appellant is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 1000/-each, in default, to suffer rigorous imprisonment for one month. 2. Briefly stated facts giving rise to this appeal may be stated as below :- . Deceased Kalpana was daughter of P.W.3-Chindha Yesa Rawate. She married appellant No.1, 9 to 10 years prior to the incident on 24.06.1993. Kalpana was issueless. Appellant No.2 is mother of appellant No.1. It is case of the prosecution that appellant No.1 Prakash was having small Pan shop and wanted Rs. 10,000/- to be brought by Kalpana from her parents for expanding the business. For getting Rs. ( 3 ) 10,000/- from the parents of Kalpana, she was illtreated by the appellants. Appellant Nos. 1 and 2 used to beat Kalpana. Due to poor financial condition of P.W.3-Chindha, he was not able to satisfy the demand. Therefore, Kalpana had come and lived at her parents’ house for about nine months. Thereafter, it was appellant No.2-Bhikubai, who was mother in law of Kalpana, went to the house of P.W.3-Chindha and assured that they would not demand money and took away Kalpana to their house. Fifteen days thereafter Kalpana sustained 88% burn injury. Three dying declarations were recorded before death of Kalpana on same day. According to Kalpana, the appellant were suspecting her chastity and appellant No.2 used to pick up quarrels with her and appellant No.1 used to beat her. There was incident of such quarrel and beating at about 7 a.m. on the same day. Enraged thereby Kalpana set herself on fire. First she was taken to Hospital at Chalisgaon and thereafter she was shifted to Civil Hospital at Dhule. Her first dying declaration was recorded by P.S.I. at Chalisgaon and same was treated as F.I.R. After death of Kalpana, postmortem was carried out on dead body. Inquest panchanama was also drawn. Panchanama was drawn of the place of incident. Statement of witnesses ( 4 ) were recorded. Thereafter, charge-sheet was sent also against appellants and father and brother of appellant No.1. After trial, father and brother of appellant No.1 were acquitted and the appellants were convicted as aforesaid. Said judgment and order is challenged in this appeal. 3. Heard Shri R.N. Dhorde, Advocate for the appellants and A.P.P. Mrs. B.R. Khekale for respondent/State. 4. The Trial Court in para 25 of its judgment has come to a conclusion that P.W.3-Chindha and P.W.4-Shivaji, who were respectively father and brother of deceased Kalpana, both have stated about demand of Rs. 10,000/-. However, during 15 days’ stay in her matrimonial house, neither father or brother had occasion to visit her. Therefore, they were not knowing about the cause of illtreatment to Kalpana during those 15 days. Therefore, the learned Additional Sessions Judge has observed that it cannot be said that there is variance in the statements of father and brother and the statements of deceased. 5. In the dying declarations the deceased has not ( 5 ) referred to demand of Rs. 10,000/- and therefore, the question arises whether father and brother of the deceased were deposing truth about illtreatment for non-satisfaction of the demand of money. It is argued by Adv. Shri Dhorde that as per prosecution evidence 15 days before the incident, appellant No.2 had gone to the house of P.W.3-Chindha, assured that they would not demand money or illtreat Kalpana on that count and thereafter Kalapna accompanied appellant No.2 to the house of the appellants. So, there was reconciliation and in absence of any evidence to show that Kalpana was illtreated for demand of Rs. 10,000/-, the case cannot be said to fall under clause (b) of Section 498-A of the Indian Penal Code. He also argued that as per charge framed at Exh.14, the charge regarding cruelty is with reference to cruelty under clause (b) of section 498-A and not with reference to clause (a) of Section 498-A. 6. So far as evidence regarding demand of Rs. 10,000/- and illtreatment for getting the same is concerned, P.W.3- Chindha has stated at Exh.25 that Kalpana was complaining that her in-laws were demanding Rs. 10,000/- for installation of Pan shop and on that ground they used to illtreat her. ( 6 ) Due to poor financial condition he was not able to pay them the amount. Eight to nine months prior to her death, Kalpana had visited his house. Then he changed his version and said that at the time of Diwali, his daughter visited my house and she stayed for 15 days. Thereafter, her mother-in-law came and Kalpana was taken away by her mother-in-law. Thereafter, within one week, he received telephone of his brother-in-law Sukha Bala regarding burn injuries sustained by Kalpana. Then this witness has denied original prosecution case that for about 9 months Kalpana resided at her parental house and thereafter she was taken to the house of appellants by appellant No.2 and 15 days thereafter the incident had occurred. P.W.3-Chindha specifically stated that appellant No.2 had assured that there would not be any illtreatment to Kalpana. He then also stated that appellant No.1 had small Pan shop but he wanted to expand it. So, he changed earlier statement in examination-in-chief that for installation of Pan shop Rs. 10,000/- was demanded. P.W.3-Chindha also stated that when they went to the hospital at Chalisgaon, the dead body of Kalpana was shifted to Dhule hospital. Therefore, he did not go to Dhule. ( 7 ) 7. P.W.4-Shivaji, who was brother of Kalpana, has also stated in his examination-in-chief that whenever Kalpana used to come to his house, she used to tell that her husband was demanding Rs.10,000/- for Pan-shop and for that purpose her in-laws were illtreating her. Thereafter, he stated that for about 8-9 months Kalpana lived at their house and thereafter appellant No.2 came and said that they would not demand Rs. 10,000/- and would not illtreat Kalapna. Thereafter, Kalpana was sent with her husband. Said incident took place 2-3 days after return of Kalpana with her mother-in-law to the house of appellants. According to P.W.4-Shivaji, they received phone call between 11 a.m. to 12 noon. Therefore, they went to hospital at Chalisgaon. There they learnt that Kalpana was shifted to Dhule. They went to Dhule hospital. Kalpana was alive in the hospital. It is case of Shivaji that Kalpana told him that her husband, mother-in-law and brother-in-law were assaulting her for demand of Rs. 10,000/-. On the day of incident, her mother-in-law assaulted her with a plate kept on earthen pot. Kalpana told that she was frustrated with this intolerable illtreatment and therefore she committed suicide by pouring kerosene and setting herself on fire. It may be noted that this statement of witness that ( 8 ) his sister told him that she was illtreated for getting Rs. 10,000/-, is something which does not find place in three dying declarations recorded on the same day. Moreover, para 4 of the cross-examination of P.W.4-Shivaji clearly indicates that he much improved over his earlier statement before police. Thus, he had not stated before police in his statement that appellant No.2 had assured that they would not demand Rs. 10,000/- or would not illtreat his sister. He did not say before police that his sister had told him that mother-in-law had assaulted her with a plate on water-pot. He had also not stated before police that there was demand of Rs.10,000/-. In the facts and circumstances, it is also difficult to believe that Shivaji had occasion to talk with his sister in the hospital at Dhule. He stated in para 3 that they reached Dhule at about 7 p.m. At that time Kalpana was kept in the general ward. He further stated that Kalpana was demanding water. She had pains. Her throat had become dry. She had difficulty in breathing, still according to him she talked about ½ hours. It is also case of Shivaji that Kalpana died between 8.30 to 9 p.m. So, it is difficult to believe the word of Shivaji that Kalpana told him about illtreatment for demand of Rs.10,000/-. Moreover, I have ( 9 ) stated earlier in above all the three dying declarations there was no reference by Kalpana to illtreatment for demand of money. So, in my opinion, the case does not fall under explanation (b) to Section 498-A of I.P.C. and evidence regarding the same cannot be trusted. 8. So far as three dying declarations are concerned, first dying declaration of Kalpana is at Exh.39. It was recorded by P.S.I. Chalisgaon Police Station on 24.06.1993 at Chalisgaon. Therein, Kalpana stated that she married appellant No.1 nine years ago. She was deserted for about one year. 15 days before the incident, relatives intervened and sent her to the house of the appellants. After she came to the house of the appellant, appellant No.2 used to abuse her and harass her by saying that she was not doing work properly or behaving properly. Appellant No.2 was also instigating appellant No.1 to beat Kalpana. Appellant No.1 was always suspecting character of Kalapna and beating her. On 24.06.1993 Kalpana touched plate on earthen pot containing water. For that reason appellant No.2 quarreled with her and abused. Subsequently, when Kalpana was cooking, appellant No.2 told appellant No.1 that Kalpana was always quarreling ( 10 ) with her and then appellant No.1 beat Kalapna. Thereafter, Kalpana finished cooking, cleaned and washed utensils. At about 11 a.m., when appellant Nos. 1 and 2 had gone to their another house, Kalpana poured kerosene on her person and set hetself on fire. 9. Second dying declaration was recorded immediately thereafter at about 01.00 p.m. on 24.06.1993 by the Executive Magistrate, Chalisgaon. In the second dying declaration it is stated that three weeks before 24.06.1993, at the behest of her parents, Kalpana had come to reside with the appellants. Since she came, appellant No.2 was quarreling with her. Even on 24.06.1993 at about 7.00 a.m. appellant No.2 quarreled with Kalpana and due to that, when nobody was in the house, Kalapna poured kerosene while she was still cooking and then set herself on fire. She further stated that she would not have set herself on fire, if appellant No. 2 had not quarreled with her. It is further stated that appellant No.2 was instigating appellant No.1 to beat her and therefore she set herself on fire. Thus, in the second dying declaration it is not specifically stated that on 24.06.1992, appellant No.1 had beaten Kalpana. What was stated was a ( 11 ) general statement. It is also stated that while cooking, Kalapna had set herself on fire. This is contrary to the statement in the first dying declaration in which she stated that after cooking was over, she washed and cleaned utensils and thereafter she set herself on fire. In the first dying declaration it is stated that appellant No.2 instigated appellant No.1 and appellant No.1 beat her. 10. Third dying declaration was recorded by the Executive Magistrate at Dhule. Therein Kalpana stated that both the appellants were suspecting her character and there were always quarrels. On 24.06.1993 at about 10.00 a.m. both appellant Nos. 1 and 2 beat her and, therefore, she became angry and she set herself on fire. When she put herself on fire, both the appellants were sitting outside and when they saw her on fire, they came in and tried to extinguish the fire. Thereafter, they first took her at hospital at Chalisgaon and then to hospital at Dhule. 11. So, if we compare three dying declarations, there is material difference as to what was actually done by appellant Nos. 1 and 2. In the first dying declaration it is ( 12 ) said that appellant No.2 quarreled, abused her and instigated appellant No.1 to beat her. In the second dying declaration nothing is said about beating on the day of incident, but it is only said that appellant No.2 had quarreled with her at about 7 a.m. In the third dying declaration it is said that both the appellants had beaten her at about 10.00 a.m. There is no consistency as to whether both the appellants were present when Kalpana set herself on fire. As per first dying declaration, both had gone away to another house. In the second dying declaration, nothing is said as to whether either of two appellants was in the house. All that is said is there was verbal quarrel at about 7 a.m. between Kalpana and appellant No.2 and thereafter while she was cooking, she set herself on fire. Reference about beating was general and vague reference. So far as third dying declaration is concerned, it is said that when Kalpana set setself on fire, both the appellants were sitting outside and as soon as they saw fire, they tried to extinguish fire and then took her to hospital. 12. The learned advocate for the appellants and learned A.P.P. for respondent, both have cited several authorities. ( 13 ) In the case of Sitabai @ Sevantabai w/o. Honaji Wanje and Anr. V/s. State of Maharashtra, 2008 ALL MR (Cri.) 883. In para 13, this Court observed that every kind of harassment cannot be regarded as “Cruelty” within the meaning of sub- clause (a) of Section 498-A of the I.P.C. Regular wear and tear of the matrimonial life does not amount to such cruelty. If we consider clause (a) of Section 498-A of I.P.C. it is clear that cruelty means 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. So, mere quarrel may not always be sufficient. Wilful conduct must be of such nature as is likely to drive the woman to commit suicide or cause grave injury or danger. So, the exact nature of cruelty must be established. The cruelty must be wilful with object or intention to drive woman to commit suicide or cause herself grave injury. So, it is some what higher degree of cruelty which is contemplated. 13. Another case cited is Md. Rafiq Md. Tajoddin V/s. State of Maharashtra, 2005 ALL MR (Cri) 972. In that case there are multiple dying declarations. It is observed that ( 14 ) in the event of inter se discrepancies in the dying declarations, it is extremely unsafe to accept any one as a truthful narration, particularly in absence of any other evidence which would render a particular version as a truthful version. 14. It is argued before this Court that it is brought in the cross-examination of the Investigation Officer P.S.I. Patil that there were nearly hundred huts in the locality where the house of the appellants was situated. It was situated in a slum area. P.S.I. Patil has recorded statements of neighbours of the accused. He recorded statements of Zubedabi, Narmadabai and others. P.S.I. Patil further stated that he has collected evidence of the neighbours regarding illtreatment to deceased at the hands of the accused. It is argued that none of these witnesses is examined. 15. The learned advocate for the appellants cited case of Ishwar Singh V/s. State of U.P. (1976) 4 S.C.C.355 for proposition that non-examination of some witnesses would not matter if the witnesses examined unfolded the prosecution ( 15 ) case fully. But it is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined. It is also observed that non-examination of these witnesses acquired a special significance in view of the material discrepancy between the F.I.R. and the version of the occurrence given by the prosecution in Court. It is argued before this Court that three dying declarations cannot be said to be consistent with each other. They differ so far as role of appellant No.1 is concerned. Question arises whether really there was beating to Kalpana in the morning of the day of incident. 16. On the other hand A.P.P. Mrs. Khekale cited case of Kulesh Mondal V/s. State of W.B., 2008 CRI.L.J.325. It is stated therein that it is material discrepancies which are not expected of normal person which affect credibility of evidence. Normal discrepancies do not corrode the credibility of a party’s case. In this case what had actually happened in the morning of the day of incident is material and we find material inconsistencies regarding the same. 17. The learned advocate also cited case of Kishori Lal ( 16 ) V/s. State of M.P., AIR 2007 S.C.2457. It is argued before this Court that postmortem report proved at Exh.33 by Dr. Puri does not show that there was any external injury other than burn injuries. It may be noted that in this case, there were 88% burn injuries. No doubt it is specifically stated that there was no fracture. It is also true that no external injury other than burn injuries was mentioned. But at the same time we will have to consider that after 88% burn injury, which resulted in death within 24 hours, perhaps there may not be other visible injury. So, in my opinion, it is not absence of mark of violence, but absence of examination of neighbouring witnesses that would be material. P.S.I. Patil stated that he did record statements of some of the witnesses regarding illtreatment. Thus what incident that had occurred in the morning could have been proved independently through such witnesses. 18. In this case marriage of Kalpana was solemnized 9 years before incident and so presumption under Section 113-A of Evidence Act is not available to the prosecution. I may refer to para 6 and some portion from para 7 from the case of Kishorilal (Supra), as the same discloses ingredients of ( 17 ) Section 107 of the I.P.C. which is regarding abetment. “6. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence 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.” 19. Another case cited is Mahendra Singh and another V/s. State of M.P., 1996 Cri.L.J.894, but that is case in which though Section 498-A of the I.P.C. was brought on the ( 18 ) statute book and the appellant could well have been charged under the said provision, but he was not charged and so it was observed that after so much time it would be imprudent to substitute the charge and cull out incidence of cruelty inflicted on the deceased. 20. The learned A.P.P. Mrs. Khekale also referred to case of Laxman V/s. State of Maharashtra, AIR 2002 S.C.2973 for law regarding dying declaration. It is laid down that what is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind and even in absence of certification by Doctor of the mind of declarant, the dying declaration must be considered. Thus, voluntary and truthful nature of declaration can be established otherwise. The learned A.P.P. referred to paras 3 and 5 of the said case. No doubt, in this case, there is no material infirmity in recording of dying declaration, but we find that three dying declarations, cannot be said to be consistent regarding the incident in the morning which provoked Kalpana to set herself on fire. What we have to determine is whether the act of the either of the ( 19 ) appellants was such as to bring the same in the ambit of Section 498-A of the I.P.C. and whether they abetted commission of suicide. The conduct of appellant as disclosed in third dying declaration in immediately extinguishing fire and taking Kalpana to hospital indicates that they did not desire that Kalpana should die. 21. After considering totality of the circumstances, it is not case of Kalapna that she was beaten with any weapon or object. In the first dying declaration she simply stated that she was beaten by her husband. So beating may be with hand. She did not state nor there is any other evidence to show that Kalpana had any physical injury caused by appellant Nos. 1 or 2. So, question arises whether verbal abuse or even some beating could bring the case under Section 498-A of the I.P.C. In this case, it is not disputed that Kalpana set herself on fire which resulted in her death and as such she did commit suicide. But question is whether the appellant can be said to have abetted commission of suicide. Taking into consideration totality of the circumstances, in my opinion, evidence on record is insufficient and vague. This ( 20 ) is a case where benefit of doubt could be extended to the appellants. In the result, I prefer to give benefit of doubt to the appellants. 22. In the result, the appeal is allowed. The order of conviction and sentence dated 24.11.1997 passed by the learned II Additional Sessions Judge, Jalgaon, is hereby set aside. The appellants are acquitted of offences punishable under Sections 306 and 498-A both r/w 34 of the I.P.C. Their bail bonds stand discharged. Fine, if paid, be refunded to them. [P.R. BORKAR,J.] snk/2009/NOV09/crap382.97