1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.264 OF 1998 Sharad s/o Wamanrao Deshpande, Age 36 years, R/o Jalna ..APPELLANT (Accused) VERSUS The State of Maharashtra ..RESPONDENT (Complainant) Mr.S.D.Ghayal, Advocate (appointed) for the appellant Mr.B.V.Wagh, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS, J. DATE : 27th SEPTEMBER 2010 ORAL JUDGMENT 1. The appellant, who stands convicted under Section 498-A and section 306 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and to pay fine of Rs.500/-; in default to undergo rigorous imprisonment for one month and rigorous imprisonment for seven years and to pay fine of Rs. 500/-; in default to undergo rigorous imprisonment for one month, in the event of non payment of fine, by the 2nd Additional Sessions Judge, Jalna, by judgment dated 16.8.1998, in Sessions Case No. 6/1998, by this appeal questions the correctness of his conviction and sentence. 2 2. P.W.9 Laxman Kadam, who was attached to the Police Chowki at the civil hospital, Jalna, received a M.L.C. on 22.12.1997 at about 11.00 p.m. regarding admission of Kalpana wife of the appellant with burns. He accordingly inquired from P.W.7 Dr.Paropkari and requested about the condition of Kalpana to give her statement and on P.W.7 Dr.Paropkari certifying that Kalpana was in a fit condition to give her statement, he recorded her statement Kalpana in the aforesaid statement alleged that on 22.12.1997 at about 10.30 p.m. appellant quarreled with Kalpana and alleged that she was having illicit relations with one Bablu. Kalpana had explained that she was treating Bablu as her brother. She claimed that on account of the allegations levelled by the appellant, Kalpana rushed to the bathroom and poured kerosene on her and set herself ablaze. The statement of Kalpana at Exh.31 was treated as first information report and on the basis of which an offence came to be registered. Thereafter, a letter at Exh.32 was addressed to Taluka Executive Magistrate for recording the dying declaration of Kalpana. P.W.8 Shamrao Nandedkar, a Naib Tahsildar, received the communication at Exh. 22 and accordingly proceeded to the Civil Hospital, Jalna for recording the dying declaration. He contacted P.W.7 Dr.Paropkari and requested him to ascertain the condition of Kalpana and on the Medical Officer certifying that Kalpana was in a fit condition to give her statement recorded her statement. Kalpana reiterated 3 what she had stated to P.W.9 Laxman. The dying declaration of Kalpana is at Exh.24. It appears that on the basis of the statement of Kalpana at Exh.31 an offence vide Crime No.274 of 1997 came to be registered. Investigation of the said crime was entrusted to P.W.10 P.S.I. Khedkar. He accordingly rushed to the scene of the offence and drew the scene of the offence panchnama at Exh.10 and from the scene of the offence seized one can and a match box. He recorded the statements of the witnesses on that day as well as on the next day. On 24.12.1997 Kalpana succumbed to her injuries and he accordingly drew the inquest panchnama of Kalpana and arrested the accused. Post mortem on the dead body was performed and the Medical Officer attached to the Civil Hospital at Jalna opined that cause of death was due to cardio-respiratory failure due to shock due to 100% superficial to deep extensive burns. The post mortem report is at Exh.8. Further to the completion of investigation a charge-sheet against the appellant-accused came to be filed. 3. On committal of the case to Court of Sessions, charge vide Exh.2 was framed against the appellant for offence punishable under Section 498-A and 306 of the Indian Penal Code. The appellant-accused denied his guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses. P.W.3 Neha, P.W.4 Umakant, P.W.5 Milind and P.W.6 Prabhakar, 4 brothers of deceased Kalpana declared hostile and were cross- examined by the prosecution. The entire case against the appellant-accused, therefore, rests on the two dying declaration at Exh.31 and Exh.24. 4. With the assistance of the learned Counsel for the appellant and the learned Assistant Public Prosecutor I have perused both the dying declarations. Both the dying declarations are similar in their contents and P.W.7 Dr.Paropkari had opined that Kalpana was in a fit condition to give her statement. Sole question is whether the appellant has committed the offence punishable under Sections 498-A and 306 of the Indian Penal Code. Section 498-A of the Indian Penal Code reads thus : “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 whichmay extend to three years and shall also be liable to fine. Explanation – For the purpose 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 5 (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.] “ Explanation (a) to Section 498-A contemplates such deliberate and intentional 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 her life. In the present case the appellant on that day had quarreled with his wife and had alleged that she was having illicit relations. Deceased Kalpana does not state nor is it the evidence of the prosecution that the appellant had been on earlier occasions making similar accusations. The appellant had alleged that Kalpana was having illicit relations on the day of the incident only. In such circumstances, therefore, according to me it is extremely difficult to come to the conclusion that the appellant had intended that his accusations would drive Kalpana to commit suicide or to cause grave injury or danger to her life. Similarly, Section 107 of the Indian Penal Code defines what is abetment. It cannot be said that the appellant had labeled the aforesaid accusations with an intention that Kalpana can commit suicide. The appellant married Kalpana on 16.5.1985. There are no allegations that the appellant had been ill treating Kalpana during the past twelve years of their marriage life. Therefore, 6 according to me the two dying declarations have been proved in the sense that the prosecution has led ample evidence to establish the recording of the two dying declarations. The contents thereof do not make out any offence against the appellant. In such circumstances, the appellant, according to me is entitled to be acquitted. 5. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine, if paid by the appellant be refunded to him. His bail bonds stand cancelled. I quantify the fees payable to the learned Counsel appointed on behalf of the appellant at Rs.5,000/- (Rs.Five thousand). ( P.V.HARDAS ) JUDGE (vvr/264.98criapeal) 7