1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 86 OF 1998 Gopal Bhagwat Sonwane age 37 years, occ.peon ( Now under suspension) Residentof Anjale, Tq. Yawal Dist. Jalgaon. .. APPELLANT VERSUS State of Maharashtra .. RESPONDENT Shri V.T. Choudhari, Advocate for the appellant. Shri Dilip Bankar Patil, APP for the State. ===== CORAM : R. M. BORDE, J. DATE : 29 th June, 2009. ORAL JUDGMENT : 1 The accused / appellant has approached this court raising exception to the judgment and order of conviction and sentence recorded by the 2 nd Additional Sessions Judge, Jalgaon on 2­3­1998 in Sessions Case no. 322/94. 2 Accused has been held guilty for commission of offence punishable under section 498A of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/­, indefault of payment of fine to suffer simple imprisonment for 15 days. The accused is acquitted of the charge in respect of commission of offence punishable 2 under section 306 of the Indian Penal Code. 3 According to the prosecution, accused was married to one Jijabai in the year 1978. According to prosecution, accused was harassing the deceased and was ill­treating her. He always used to consume liquor and abuse the deceased in filthy language. Being fed up with the daily abuses and mis­behaviour of the husband, deceased set herself ablaze by pouring kerosene on he person. She sustained burn injuries as a result of which she met with death. According to prosecution, accused was instrumental in causing her death. As such, he is guilty for commission of offence charged against him. At trial, defence of the accused is of total denial. According to him, his relations with the deceased were cordial and there was no ill­ treatment meted out to the deceased. 4 Prosecution in order to bring home guilt of the accused has examined as many as 8 witnesses. After recording evidence of the prosecution witnesses and statement of the accused, the learned trial Judge found the accused guilty for commission of offence punishable under section 498­A of the Indian penal Code and sentenced to suffer imprisonment as stated above. . PW 1 Mukesh is the son of accused and deceased who was about 11 years of age at the time of incident. He has deposed before the court that the relations between his father and mother were cordial. He has also stated that his father was not present at the house when the incident had occurred. He has further stated that his mother poured kerosene on her 3 person and set herself ablaze. He has also feigned ignorance as to why his mother set herself on fire. Evidence of the son is not helpful for prosecution to establish ill­treatment meted out to deceased at the hands of the accused. . PW 2 is the mother of the deceased. She has stated in her cross examination before the court that the family life of deceased and the accused was going on smoothly. She has also stated that deceased had never made complaint in respect of ill­treatment given by accused. Although during her cross examination she has admitted in her statement given to the police, however, again while she was cross examined before the court by the learned counsel for the accused, she has denied whatever has been stated by her before the police. She has categorically denied that her son in law was suspecting chastity of her daughter. . PW 3 is the land lady of deceased and her husband. The accused was tenant of residential premises. The land lady has also categorically stated that the relations between the husband and wife were cordial. She has stated that accused had no bad vices. 5 Reliance is placed by the prosecution on the statement of the deceased recorded by police constable as well as by the Executive Magistrate. In her statement, deceased has stated that the accused used to consume liquor and also used to abuse her. In her statement before police, she has stated that at about 3’O clock she came back from the field. At that time she asked her husband as to what he did in respect of 4 money whereupon he informed that he had spent the amount and further started abusing her. In the fit of anger she picked up the kerosene can and poured kerosene on her person and set herself on fire. Her son Mukesh was present in the house. He poured water on her person. Thereafter she was taken to the hospital. In the statement before the Executive Magistrate she has stated that on the relevant day she returned to her house at about 3.00 to 3.30 pm. At that time, accused initiated quarrel and started abusing her. In a fit of anger therefore, she poured kerosene on her person and set herself on fire. Her son Mukesh poured water on her person. Her husband ran away. She was thereafter taken to the hospital by her cousin brother in law. In the dying declaration recorded by the Executive Magistrate as well as by police constable, deceased has categorically stated that her husband used to consume liquor and used to abuse her. There are no allegations in the dying declaration that her husband used to suspect her chastity. However, as stated above, prosecution witnesses examined before the court have not supported the version in respect of ill­treatment meted out to deceased at the hands of the accused. Only dying declaration recorded by the Executive Magistrate as well as police constable makes a reference in respect of drinking habits of the accused as well as his intemperate behaviour. However, only such allegations contained in the dying declaration are not sufficient to hold the accused guilty in respect of offence under section 498A of the Indian Penal Code. Dying declaration sets out the reasons or the circumstances in which the death has occurred and, an inference cannot be drawn on the basis of statement contained in dying declaration that the conduct of the accused was of such a nature which was likely to drive the woman to commit suicide. In the facts and 5 circumstances of the case wherein the prosecution has failed to clearly establish that the accused was ever ill­treating his wife, reliance cannot be placed to the dying declaration to reach such finding. Ocular evidence of the witnesses is not helpful for the prosecution to establish that the accused was ever ill­treating his wife. However, evidence of the prosecution witnesses suggests that the relations between the husband and wife were cordial. 6 In these circumstances, therefore, conviction of the accused cannot be based on the statement contained in the dying declaration that the accused used to beat deceased after consuming liquor. Reliance can be placed on the judgment of this court in the matter of Sou. Bhagirathibai Ramchandra Belurkar & ors. vs. State of Maharashtra reported in 2006 ALL MR (Cri) 2595. It has been held in paragraph no. 20 of the judgment thus : . Dying Declaration is a piece of evidence which can be used as a proof of cause of death or circumstances which immediately existed in the past leading to the fact of death. In this background, the story of ill­treatment revealed by the deceased in her Dying declaration cannot be made foundation for holding the accused guilty of offence punishable under section 498­A of Indian Penal Code, while the said Dying Declaration is valid evidence to hold the accused guilty of offence under Section 498­A of the Indian Penal Code. . In the facts and circumstances of the case, therefore, the order of conviction and sentence imposed against the accused is not sustainable in law and the same deserves to be quashed and set aside. Appeal is thus 6 allowed. Judgment and order of conviction and sentence recorded by the 2 nd Additional Sessions Judge, Jalgaoon 2­3­1998 in Sessions Case no. 322/94 is quashed and set aside and the accused stands acquitted of the charge levelled against him. Bail bonds of accused / appellant ``stand cancelled. ( R. M. BORDE, J.) dyb/office/criapp86.98