…Ms. J. R. Nawale h/f Mr v. D. Salunke
Case Details
2025:BHC-AUG:6363 CriAppeal-604-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 604 OF 20051.Dattatraya s/o Jyotiram Nakate,Age : 45 years, Occ: Driver,2.Sow. Kamalbai w/o Dattatraya Nakate,Age : 40 years, Occ: Household,Both R/o. Jalkot, Taluka Tuljapur,District Osmanabad.… Appellants [Orig. Accused]VersusState of MaharashtraThrough Jayashri w/o Angad Nakate,Age : 23 years, Occ: Household,R/o. Jalkot, Taluka Tuljapur,District Osmanabad.… Respondent [Orig. Complainant]..…Ms. J. R. Nawale h/f Mr. V. D. Salunke, Advocate for the Appellants.Mr. N. D. Batule, APP for Respondent-State. CORAM :ABHAY S. WAGHWASE, J. DATED :25.02.2025JUDGMENT : 1.The appellants-convicts hereby questioned the judgment andorder dated 01.08.2005 recording guilt in Sessions Case No. 77 of2000 for offences punishable under Sections 498-A and 306 r/w 34 ofIPC.
Facts
CriAppeal-604-2005-2- 2.At the threshold, it is to be noted that during pendency ofappeal, appellant no.1 Dattatraya is reported to have died and assuch, appeal stands abated against him. Therefore, appeal survivesonly to the extent of appellant no.2 Kamalbai.3.On the strength of two dying declarations, PW8 registeredcrime bearing no. 160 of 1990 i.e. on the statement of deceasedJayashri that, because of ill-treatment at the hands of her in-lawsDattatraya and Kamalbai, she immolated herself. Investigation wascarried out and both appellants were tried by learned IIIrd AdhocAdditional Sessions Judge, Osmanabad vide Sessions Case No. 77 of2000. During trial, prosecution adduced evidence of in all eightwitnesses and also relied on documentary evidence like FIR, dyingdeclarations, postmortem report etc. After appreciating the oral and documentary evidence, learnedtrial Judge accepted the case of prosecution as proved and held bothappellants guilty for offence punishable under Sections 498-A and306 r/w 34 of IPC and sentenced them to suffer imprisonment asspelt out in the operative part of the order. CriAppeal-604-2005-3- 4.Feeling aggrieved by the same, instant appeal has beenpreferred on various grounds spelt out in the appeal memo.SUBMISSIONSOn behalf of the Appellants :5.Learned counsel for the appellant would submit that there isapparently false implication. That, there are general, baseless andomnibus allegations of ill-treatment. She pointed out that statementof father of deceased is recorded, but his evidence does not specifythe form or nature of ill-treatment and when it was inflicted. Shepointed out that, there are allegations of demand of articles, but inthe dying declarations, on the basis of which crime has beenregistered, there is no whisper by deceased herself about any demandand on account of its non-fulfillment she being maltreated. Learnedcounsel also questioned the veracity and reliability of two dyingdeclarations which, according to her, inspite of being of same date,are not consistent. She pointed out that in the second dyingdeclaration (Exhibit 40) recorded by PW2, there is no whisper aboutany demand of articles, whereas in first dying declaration (Exhibit 52)recorded on the same day, there is detail story which is apparentlyfalse and afterthought and on being tutored by family members. Bothdying declarations being inconsistent, she prays to discard the same.
Legal Reasoning
CriAppeal-604-2005-25- of suicide. As explained and reiterated by this Court in thedecisions above referred, instigation means to goad, urgeforward, provoke, incite or encourage to do an act. If thepersons who committed suicide had been hypersensitiveand the action of accused is otherwise not ordinarilyexpected to induce a similarly circumstanced person tocommit suicide, it may not be safe to hold the accusedguilty of abetment of suicide. But, on the other hand, if theaccused by his acts and by his continuous course of conductcreates a situation which leads the deceased perceiving noother option except to commit suicide, the case may fallwithin the four-corners of Section 306 IPC. If the accusedplays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim tocommit suicide, the accused may be held guilty of abetmentof suicide. The question of mens rea on the part of theaccused in such cases would be examined with reference tothe actual acts and deeds of the accused and if the acts anddeeds are only of such nature where the accused intendednothing more than harassment or snap show of anger, aparticular case may fall short of the offence of abetment ofsuicide. However, if the accused kept on irritating orannoying the deceased by words or deeds until thedeceased reacted or was provoked, a particular case may bethat of abetment of suicide. Such being the matter ofdelicate analysis of human behaviour, each case is requiredto be examined on its own facts, while taking note of all thesurrounding factors having bearing on the actions andpsyche of the accused and the deceased.” CriAppeal-604-2005-26- 21.In Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200, theHon’ble Apex Court observed that whenever a person instigates orintentionally aids by any act or illegal omission, the doing of a thing,a person can be said to have abetted in doing that thing. To prove theoffence of abetment, as specified under Section 107 IPC, the state ofmind to commit a particular crime must be visible, to determine theculpability. 22.In Geo Varghese v. State of Rajasthan and another (2021) 19SCC 144, the Hon’ble Supreme Court has considered the provision ofSection 306 IPC along with the definition of abetment under Section107 IPC and observed as under :“14.Section 306 of IPC makes abetment of suicide acriminal offence and prescribes punishment for the same.. . .15.The ordinary dictionary meaning of the word‘instigate’ is to bring about or initiate, incite someone todo something. This Court in Ramesh Kumar v. State ofChhattisgarh, (2001) 9 SCC 618, has defined the word‘instigate’ as under :- CriAppeal-604-2005-27- “20. Instigation is to goad, urge forward, provoke,incite or encourage to do ‘an act’.”16.The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussedrepeatedly by this Court. In the case or S.S. Cheena v.Vijay Kumar Mahajan and Anr (2010) 12 SCC 190, it wasobserved as under : -“25. Abetment involves a mental process ofinstigating a person or intentionally aiding a personin doing of a thing. Without a positive act on thepart of the accused to instigate or aid in committingsuicide, conviction cannot be sustained. Theintention of the legislature and the ratio of thecases decided by the Supreme Court is clear that inorder to convict a person under Section 306 IPCthere has to be a clear mens rea to commit theoffence. It also requires an active act or direct actwhich led the deceased to commit suicide seeing nooption and that act must have been intended topush the deceased into such a position that hecommitted suicide.”23.In Mariano Anto Bruno & another v. The Inspector of Police,2022 SCC OnLine SC 1387, after referring to the above referreddecisions rendered in context of culpability under Section 306 IPC,the Hon’ble Supreme Court observed as under : “44. . . . It is also to be borne in mind that in cases of allegedabetment of suicide, there must be proof of direct or indirectacts of incitement to the commission of suicide. Merely on CriAppeal-604-2005-28- the allegation of harassment without their being any positiveaction proximate to the time of occurrence on the part of theaccused which led or compelled the person to commitsuicide, conviction in terms of Section 306 IPC is notsustainable.”24.In Kashibai & Others v. The State of Karnataka, 2023 SCCOnLine SC 575, it is observed that to bring the case within thepurview of ‘Abetment’ under Section 107 IPC, there has to be anevidence with regard to the instigation, conspiracy or intentional aidon the part of the accused and for the purpose proving the chargeunder Section 306 IPC, also there has to be an evidence with regardto the positive act on the part of the accused to instigate or aid todrive a person to commit suicide.25.In very recent case of Naresh Kumar v. State of Haryana 2024DGLS (SC) 224/(2024) 3 SCC 573 it is observed that, had there beenany clinching evidence of incessant harassment on account of whichthe wife was left with no other option but to put an end to her life, itcould have been said that the accused intended the consequences ofhis act, namely, suicide. A person intends a consequence when he (1)foresees that it will happen if the given series of acts or omissionscontinue, and (2) desires it to happen. The most serious level of CriAppeal-604-2005-29- culpability, justifying the most serious levels of punishment, isachieved when both these components are actually present in theaccused's mind (a "subjective" test).”26.In another recent case of Kumar @ Shiva Kumar v. State ofKarnataka [Criminal Appeal No. 1427 of 2011 decided by the Hon’bleApex Court on 01.03.2024], following observations are made : “39. Reverting back to the decision in M. Mohan (2011) 3SCC 626 , this Court observed that abetment would involvea mental process of instigating a person or intentionallyaiding a person in doing of a thing. Without a positive acton the part of the accused to instigate or aid in committingsuicide, conviction cannot be sustained. Delineating theintention of the legislature and having regard to the ratioof the cases decided by this Court, it was concluded that inorder to convict a person under Section 306 IPC there hasto be a clear mens rea to commit the offence. It would alsorequire an active act or direct act which led the deceased tocommit suicide seeing no other option and that this act ofthe accused must have been intended to push the deceasedinto such a position that he committed suicide.”27.Keeping above judicial precedents in mind, here, abovediscussed evidence falls grossly short of essential requirement on the CriAppeal-604-2005-30- point of inducement, instigation or abetment. Further, only mother-in-law is shown to be in the house. Mere questioning by her as towhom deceased was waiting for, itself would not tantamount toabetment or inducement to commit suicide. Resultantly, ingredientsof Section 306 of IPC are patently missing.CONCLUSION28.Here, taking overall survey of the evidence of PW1 and PW3 onthe point of Section 498-A IPC, evidence is weak in nature. On thepoint of abetment to commit suicide also, dying declarations do notcarry any material to show instigation or abetment to end up life ormaking life so miserable that deceased was left with no otheralternative but to end up her life. Resultantly, required ingredients toattract Sections 498-A as well as 306 of IPC are completely missingfrom the prosecution evidence.29.Perused the judgment. Learned trial court has apparently failedto appreciate the evidence in correct perspective and even whenessential ingredients for attracting the charges were not available,case of prosecution is straightway accepted by ignoring the law, andhence it needs interference. Accordingly, following order is passed :
Arguments
CriAppeal-604-2005-4- 6.It is further submitted that, though father claims that there wasdemand, it is on the basis of hearsay information of the neighbour,but evidence of such neighbour has been shaken during cross-examination. Therefore, according to learned counsel, there was noevidence about offence under Section 498-A of IPC and moreover,deceased having immolated herself without any instigation orabetment, both the charges had virtually failed, but learned trialJudge failed to consider and appreciate the same as well as the settledlegal position and erred in recording conviction. Hence, she prays toallow the appeal by setting aside the impugned judgment.On behalf of the State :7.Per contra, learned APP supported the judgment submittingthat there was harassment by in-laws. Deceased was not allowed togo to her parents’ place unless their demand of articles was met.Initially, grandfather of deceased was sent to bring her, but she wasnot allowed to go. Subsequently, neighbours were sent and theylearnt from deceased herself that, she was not allowed to go unlessdemand was met. Therefore, according to learned APP, there is notonly evidence of father, but also independent witness. Moreover,according to learned APP, there are dying declarations naming CriAppeal-604-2005-5- present appellant to be responsible for the suicide. Therefore, learnedAPP prays to not to disturb the well reasoned judgment passed by thelearned trial Judge.EVIDENCE BEFORE THE TRIAL COURT8.In support of its case, prosecution has examined as many aseight witnesses. Their role and status and the sum and substance oftheir evidence can be summarized as under :PW1Ambadas is father of deceased Jayashri. His evidence atExhibit 34 reads as under : “1.Deceased Jayashri was my daughter, and her marriagewas solemnized with son of accused Dattatraya namely,Angad, in the year 1999. I have given Rs.41,000/- dowry. Onetola gold, fan, cupboard, cot, utensils in the marriage. The saidmarriage was performed at village Jalkot, which is at thedistance of 25 to 30 K.M. from Murum. Angad was a tempodriver and his father accused Dattatraya was also a tempodriver. After marriage, Jayashri went to the house of Angadfor cohabitation. After marriage, I sent my father to Jalkot forbringing Jayashri to my house. My father returned back andtold me that Jayashri had gone to other village for religiouspurpose. Then after 8 days, I again sent my father to Jalkot forbringing Jayashri and my father returned back as Jayashri didnot return from the religious place. Then after 5-6 days, my CriAppeal-604-2005-6- father again went to Jalkot to bring Jayashri. At that time myfather returned back alone and told me that Angad and hisfather has demanded 2 tola gold, clothes and also told thatthey will not send Jayashri on failure to bring the gold andclothes. Then I myself went to Jalkot. At that time, Jayashriwas present in her house alongwith husband and in-laws.Then accused Dattatraya brought some persons namely PatneBasha to his house. Accused Dattatraya told me that thearticles shown to him in the marriage, was not actually givento him in the marriage. I replied accused Dattatraya that Ihave given the articles which are shown in the marriage.Accused did not sent Jayashri with me and so I returned backalone to my village. Then I again went to the house of accusedand at that time, Jayashri told me in presence of her in-lawsthat there is ill-treatment to her on account of the demands of2 tola gold and clothes, and her signatures are obtained onblank paper. Accused did not sent Jayashri with me. Then Ireturned back to my village. Thereafter I sent Dattu Chavanand Atmaram Wagh of my village to the house of accused topacify the accused. Accordingly Dattu Chavan and AtmaramWagh went to the house of accused, and returned back andtold me that accused Dattatraya had gone to Mumbai and theywill go to Jalkot on 30th day. On 30th day, Balaji Wagh of myvillage informed me that Jayashri has set herself on fire. ThenI myself, Dattu Chavan, Atmaram Wagh and other personsincluding my wife went to village Jalkot by jeep. We came toknow at Jalkot that Jayashri is referred to the hospital atSolapur. So we went to civil hospital Solapur, I saw Jayashrithere in burnt condition. Jayashri was in conscious condition. I CriAppeal-604-2005-7- asked her about the incident and she told me that due to illtreatment of her in laws, she set herself on fire. Then after 8days, Jayashri died. Accused present before the court are in-laws of Jayashri. ……”PW2Ashok Afzalpurkar, Special Executive Magistrate who recordeddying declaration of Jayashri [Exhibit 40]. Relevant portion ofhis evidence at Exhibit 35 is as under :“1.I am working as Head Clerk in north Solapur TahsilOfficer since 1997. Since 1999 I am working as SpecialExecutive Magistrate. ……. I asked questions to the patientand she answered it and she told the incident before me. Saidpatient told her name as Jayashri Angad Nakate. Said patientJayashri told before me that due to ill-treatment of her in-laws, she fed up and poured kerosene on her person and setherself on fire. I reduced the statement of patient Jayashri intowriting as per her say. The statement of patient Jayashri nowshown to me is the same and it is in my handwriting, and itbears my signature and signature of Patient Jayashri, and itscontents are correct. Patient Jayashri put her signature afterreading over her statement to her and after admitting the saidstatement. Then Doctor made endorsement at the bottom ofthe said statement. The statement bears the signature ofMedical Officer at the top and bottom of the statement. Exceptmyself, Doctor and patient, nobody was present at the time ofrecording statement. The statement of patient Jayashri is atExhibit 40.” CriAppeal-604-2005-8- PW3Dattoba, an acquaintance of father of deceased, gavefollowing evidence at Exhibit 43 :“1.I know Ambadas Shinde and his deceased daughterJayashri and the accused. Jayashri was given in marriage tothe son of accused in the year 1999. I was present for thesettlement of marriage of Jayashri. It was settled to giveRs.41,000/- dowry, 2 tola gold and utensils in the marriage,and accordingly the said articles were given in the marriage.After 2-4 months of marriage, Ambadas Shinde told me thatthe accused did not send his daughter Jayashri though he senthis father, son to bring Jayashri to his house. Ambadas Shindetold me prior to 15 to 20 days of the death of Jayashri thataccused did not send Jayashri to his house. Then I myself andAtmaram Wagh went to the house of accused at village Jalkot.I again say that I myself and Atmaram Wagh went at thehouse of Patne at Jalkot. Patne sent one person to the house ofaccused, and said person informed Patne that the father in lawof Jayashri had gone to Mumbai. Then I myself and AtmaramWagh went to the house of accused as we were called to thehouse of accused. At that time, Jayashri and her husband andmother in law were present in their house. I asked the motherin law of Jayashri why Jayashri was not sent towards herparental house. The mother in law of Jayashri told me that thefather of Jayashri did not give utensils, cot and ‘Aaher’ (Gift)and also told that old utensils were given. I asked the motherin law of Jayashri when her husband will return from Mumbaiand she replied that within 2-4 days her husband will return CriAppeal-604-2005-9- from Mumbai. Jayashri told me to inform her father about theill treatment and also tell her father to bring the gift (Aaher).Then we returned back to our house. I informed the incidentto Ambadas Shinde. Then after 8 days, we received aninformation that Jayashri set herself on fire. So I myself,Atmaram Wagh and parents and grand father of Jayashri wentto Jalkot. We came to know at Jalkot that Jayashri is referredto Civil Hospital Solapur for treatment. So we went to SolapurHospital. We saw Jayashri in the hospital at Solapur in burncondition. I asked Jayashri about the incident and she told methat due to ill treatment of accused on account of the demandof gold, she fed up and set herself on fire by pouring keroseneoil on her.”PW4ASI Sidram Sontakale, who recorded dying declaration(Exhibit 52), deposed at Exhibit 51 as under :“1.….. I recorded the statement of said patient into writingas per her say. I read over the said statement to her and sheadmitted it and then put her signature on it. I also signed thesaid statement. Doctor again examined the said patientJayashri and made endorsement about the conscious conditionof patient Jayashri. The Statement of patient Jayashri nowshown to me is the same and it bears my signature andsignature of patient Jayashri. It also bears the endorsementand signature of Doctor at beginning and at bottom. Itscontents are correct and it is at Exhibit 52. Then I sent the saidstatement to Sadar Bazar Police Station, Solapur.” CriAppeal-604-2005-10- PW5Dr. Sudhir Terkar, Medical Officer, who conductedpostmortem and claims to have noticed burn injuries to theextent of 91%. He identified the postmortem report to be atExhibit 54.PW6Shankar Surwase, pancha to spot panchanama, who did notsupport prosecution.PW7Dr. Yogesh Kokadwar, Medical Officer, who endorsedcertification of fitness to give statement on both dyingdeclarations Exhibits 40 and 52.PW8PSI Devidas Patil was the Investigating Officer.On trial, charge under Sections 498-A and 306 of IPC is held tobe proved by prosecution. ANALYSISCharge under Section 498-A IPC :9.As regards charge under Section 498-A is concerned, as to whatactually constitutes cruelty has been lucidly and succinctly dealt in thelandmark cases of State of West Bengal v. Orilal Jaiswal [(1994) 1SCC 73], Giridhar Shankar Tawade v. State of Maharashtra (2002) 5 CriAppeal-604-2005-11- SCC 177; State of Andhra Pradesh v. M. Madhusudhan Rao (2008)15 SCC 582/[2008] 14 S.C. R. 1170; Bhaskar Lal Sharma v. Monica(2009) 10 SCC 604 G. V. Siddaramesh v. State of Karnataka (2010) 3SCC 152 and Gurnaib Singh v. State of Punjab (2013) 7 SCC 108; K.Subba Rao v. The State of Telangana (2018) 14 SCC 452. Relevantobservations of the Hon’ble Supreme Court in the case of Manju RamKalita v. State of Assam (2009) SCC 330 are borrowed and quotedbelow :“13.The provisions of Section 498A IPC read as under :"498A. Husband or relative of husband of a womansubjecting her to cruelty. - Whoever, being the husband orthe relative of the husband of a woman, subjects suchwoman to cruelty shall be punished with imprisonment fora term which may extend to three years and shall also beliable to fine. Explanation. - For the purposes of this section `cruelty'means - (a) any wilful conduct which is of such a nature as islikely to drive the woman to commit suicide or to causegrave injury or danger to life, limb or health (whethermental or physical) of the woman; (b) harassment of the woman where such harassment iswith a view to coercing her to any person related to her tomeet any unlawful demand for any property or valuablesecurity or is on account of failure by her or any personrelated to her to meet such demand." Cruelty has been defined by the explanation addedto the Section itself. The basic ingredients of Section498A I.P.C. are cruelty and harassment. CriAppeal-604-2005-12- 14.In the instant case, as the allegation of demand ofdowry is not there, we are not concerned with clause (b)of the explanation. The elements of cruelty so far asclause (a) is concerned, have been classified as follows :(i) any `wilful' conduct which is of such a nature as islikely to drive the woman to commit suicide; or (ii) any `wilful' conduct which is likely to cause graveinjury to the woman; or (iii) any `wilful' act which is likely to cause danger to life,limb or health, whether physical or mental of the woman.15.In S. Hanumantha Rao v. S. Ramani, AIR 1999 SC1318, this Court considered the meaning of cruelty in thecontext of the provisions under Section13 of the HinduMarriage Act, 1955 and observed that :"8. …. mental cruelty broadly means, when either partycauses mental pain, agony or suffering of such amagnitude that it severs the bond between the wife andhusband and as a result of which it becomes impossiblefor the party who has suffered to live with the other party.In other words, the party who has committed wrong is notexpected to live with the other party." 16.In V. Bhagat v. Mrs. D. Bhagat, AIR 1994 SC 710,this court, while dealing with the issue of cruelty in thecontext of Section 13 of the Hindu Marriage Act,observed as under :"16. .......It is not necessary to prove that the mentalcruelty is such as to cause injury to the health of thepetitioner. While arriving at such conclusion, regard mustbe had to the social status, educational level of the parties, CriAppeal-604-2005-13- the society they move in, the possibility or otherwise ofthe parties ever living together in case they are alreadyliving apart and all other relevant facts and circumstanceswhich it is neither possible nor desirable to set outexhaustively. What is cruelty in one case may not amountto cruelty in another case. It is a matter to be determinedin each case having regard to the facts and circumstancesof that case. If it is a case of accusations and allegations,regard must also be had to the context in which they weremade.17..…18. .... The context and the set up in which the word`cruelty' has been used in the section seems to us, thatintention is not necessary element in cruelty. That wordhas to be understood in the ordinary sense of the term inmatrimonial affairs. If the intention to harm, harass orhurt could be inferred by the nature of the conduct orbrutal act complained of, cruelty could be easilyestablished. But the absence of intention should not makeany difference in the case, if by ordinary sense in humanaffairs, the act complained of could otherwise be regardedas cruelty. …." 17.In Mohd. Hoshan v. State of A.P.; (2002) 7 SCC414, this Court while dealing with the similar issue heldthat mental or physical torture should be "continuously"practiced by the accused on the wife. The Court furtherobserved as under :"6.Whether one spouse has been guilty of cruelty tothe other is essentially a question of fact. The impart ofcomplaints, accusations or taunts on a person amounting tocruelty depends on various factors like the sensitivity of theindividual victim concerned, the social background, theenvironment, education etc. Further, mental cruelty variesfrom person to person depending on the intensity ofsensitivity and the degree of courage or endurance towithstand such mental cruelty. In other words, each casehas to be decided on its own facts to decide whether themental cruelty was established or not." CriAppeal-604-2005-14- 18.In Raj Rani v. State (Delhi Administration); AIR2000 SC 3559, this Court held that while considering thecase of cruelty in the context to the provisions of Section498A I.P.C., the court must examine that allegations/accusations must be of a very grave nature and should beproved beyond reasonable doubt.19.In Sushil Kumar Sharma vs. Union of India, AIR2005 SC 3100, this Court explained the distinction ofcruelty as provided under Section 306 and 498A IPCobserving that under Section 498A cruelty committed bythe husband or his relation drive woman to commitsuicide etc. while under Section 306 IPC, suicide is abatedand intended. Therefore, there is a basic difference of theintention in application of the said provisions.20.In Girdhar Shankar Tawade v. State ofMaharashtra, AIR 2002 SC 2078; this Court held that"cruelty" has to be understood having a specific statutorymeaning provided in Section 498A I.P.C. and thereshould be a case of continuous state of affairs of tortureby one to another.21."Cruelty" for the purpose of Section 498-A I.P.C. isto be established in the context of S. 498-A IPC as it maybe a different from other statutory provisions. It is to bedetermined/inferred by considering the conduct of theman, weighing the gravity or seriousness of his acts andto find out as to whether it is likely to drive the woman to CriAppeal-604-2005-15- commit suicide etc. It is to be established that the womanhas been subjected to cruelty continuously/persistently orat least in close proximity of time of lodging thecomplaint. Petty quarrels cannot be termed as `cruelty' toattract the provisions of Section 498-A IPC. Causingmental torture to the extent that it becomes unbearablemay be termed as cruelty.”10.Here, evidence of PW2 father and PW3 Dattoba is crucial. PW1father Ambadas, in his evidence at Exhibit 34, which is discussedabove, has stated that twice-thrice he sent his father to fetch hisdaughter after marriage, but he returned without her and he claims tohave heard from his father about demand of 2 tola gold and clothes.He has alleged demand to husband Angad and his father Dattatraya.However, here husband is not chargesheeted and father is said to bedead. He has named Dattu Chavan (PW3) and Atmaram Wagh, i.e.his neighbours, to be also sent to fetch his daughter, but they alsoreturned without her and allegedly informed him that appellant no.1Dattatraya (deceased) had gone to Mumbai. PW1 father thus does notspeak about hearing from Dattu or Atmaram about any demand asallegedly informed to him by his own father. Father of PW1, fromwhom he claims to have received information about demand, is alsonot examined. Therefore, apparently as regards the demand isconcerned, father has hearsay information. He merely speaks that CriAppeal-604-2005-16- when he met his daughter in the hospital, she told that she was ill-treated at the hands of her in-laws. As submitted, this is general andomnibus allegation without specifying nature and form of ill-treatment meted out to her.11.Another witness who is crucial for prosecution is PW3 Dattoba.This witness in his evidence at Exhibit 43 has stated that, he wasparty to the settlement of marriage and it was decided to giveRs.41,000/- dowry, 2 tola gold and utensils in the marriage. However,in his examination-in-chief itself, he stated that all such articles weregiven in the marriage. Therefore, question arises is, on what countthere was demand as alleged by the informant father, when entiredowry amount and ornaments alleged to be agreed were given at thetime of marriage itself. This witness claims to have gone to Jalkotalong with Atmaram to bring deceased, and he claims to havequestioned mother-in-law of deceased, i.e. present appellantKamalbai, as to why deceased was not sent. However, according tohim, mother-in-law told that utensils, cot and aaher (gifts) were notgiven. Therefore, his version is totally different than that of theprosecution case and moreover, the testimony of Ambadas (father).He claims that during such visit, deceased herself told him to informher father about ill-treatment and further to bring the gifts. Again, he CriAppeal-604-2005-17- is also not speaking about any specific form or nature of ill-treatmentallegedly given to deceased and further reported by her to him. Hetoo claims to have met her in the hospital after burns and claims tohave heard that due to ill-treatment at the hands of accused onaccount of demand of gold, she got fed up and set herself on fire.Resultantly, his version is diametrically opposite than that of PW1father and even the contents of dying declarations, on the basis ofwhich crime is registered. 12.Therefore, oral evidence as discussed above, does not inspireconfidence and is weak and fragile. Neither PW1 nor PW3 specifiedthe form of ill-treatment, nor they had given instances and which ofthe accused ill-treated and in what manner. Apparently generalallegations are levelled. Law is fairly settled and the Hon’ble ApexCourt has, in a line of judgments, repeatedly held that for attractingSection 498-A IPC, not only instances and form of ill-treatment arerequired to be stated by the witnesses, but specific instances are alsoto be narrated. Further it is to be shown by prosecution that crueltymated out as well as demand was continuous and on account of itsnon-fulfillment, there was harassment. Here, evidence to this extent ispatently missing. CriAppeal-604-2005-18- DYING DECLARATIONS13.Now, let us appreciate the two dying declarations, translatedversions of which are as under :Dying Declaration at Exhibit No. 52Patient is conscious to give her statement Sd/- [30/10/99] 11.55AMMedical officer, Casualty WardSCSM Sarvopchar Hospital,SolapurStatement Date: 30/10/99I, Mrs. Jayashri Angad Nakate, age- 17 yrs., Occu-Household, R/o Jalkot, Tq. Tuljapur,Upon asking I do hereby state that, I am livingwith my husband, mother in law and father in law atthe above mentioned place. My husband works as adriver. My father in law works as a driver. My marriagetook place on 29/04/1999. I have completed myeducation up to 10th Std. My maternal home is inMurum, Tq. Omerga.Ever since I got married, my mother in law Kamaland father in law Dattatraya used to nag me about sometrivial matter and abused me. My husband used toconvince me. I am not being harassed by my husband.Fifteen days ago, I received an anonymous letterfrom my maternal hometown. It was not written whothe letter was from. It was like a love letter. My in lawsasked me to tell them who the letter was from.Otherwise, they would not let me stay in the house andtherefore, they were abusing me, harassing me andgiving minor beatings. I was tolerating it just because ofmy husband. My father was supposed to come yesterdayfor inquiry regarding this matter. CriAppeal-604-2005-19- Today at about 9.30 AM, my mother-in-law and Iwere at home. My husband and father-in-law were outfor work as a driver. My mother-in-law asked me to fillwater; I was going to fetch water. However, my mother-in-law asked me if you will not bring water, who willcome for you? As I could not bear that and fed up withthe previous harassment of my mother-in-law, andfather-in-law, I poured kerosene on my person and setmyself on fire in the house. As a result, I sustained burninjuries on my face, hands, chest, legs and back as theSaree on my person caught fire. I do not know whoextinguished the fire on my person. My mother in lawand neighbours carried me in private vehicle andadmitted me in Civil Hospital, Solapur for thetreatment.I am undergoing the treatment and I am fullyconscious.Therefore, today at about 9.30 AM in myresidential house, I poured kerosene on my person andset myself on fire over the reason of harassment causedby my mother in law Kamal and father in lawDattatraya. Therefore, I received burn injuries.Therefore, this is my legal complaint against my motherin law Kamal and father in law Dattatraya.Before,Signed/-A.S.I. C.P.C.Patient was conscious throughout the statement from11.55 AM to 12.05 PM on 30/10/99. Sd/-[30/10/99] Medical officer,Casualty Ward C.S.M.Sarvopchar Hospital, Solapur CriAppeal-604-2005-20- Dying Declaration at Exhibit No. 40(Patient is conscious to give her statement)Sd/- 30-10-99 / 12:05 p.m.MO, Casualty Ward, Sarvopchar Hospital, Solapur.Dying Declaration 30-10-99I, Mrs. Jayshri Angad Nakate, aged – 17 years,R/o – Jalkot, Tq. Tuljapur. Today on 30-10-99, at around 10 a.m. my in-lawsasked me to tell them whose love letter I was receiving.I said I don’t know. When my in-laws asked me whothese love letters were from. I said I don’t know. My in-laws were harassing me, I was not being harassed bymy husband. Due to the harassment of my in-laws Ipoured kerosene on my person and set myself on fire.Due to this fire I have received burn injuries all over mybody. I got married six months ago. My husband’s nameis Angad Dattatraya Nakate. I have not had anychildren. I do not know who extinguished the fire onmy person. I have completed my education up to 10thstd. My in-laws had been harassing me regarding thismatter for a long time. My husband works as a tempodriver. The neighbours came forward and carried me ina rickshaw and admitted me in the hospital. I amundergoing the treatment at the Civil hospital and I amfully conscious to record this statement. Before, Sd/-Sd/-, (North Solapur)Solapur. (Ashok Bapuji Abjalpurkar)Patient is conscious throughout the statement from12:05 p.m. to 12:15 p.m on 30-10-99. Sd/- 30-10-99/12:15 p.m. MO, Casualty Ward, SCSM Sarvopchar Hospital, Solapur. CriAppeal-604-2005-21- 14.On keeping above dying declarations in juxtaposition,apparently they are not consistent. In dying declaration (Exhibit 40),deceased has stated that on 30.10.1999, she was questioned byparents-in-law as to from whom she had received love letter and thenshe has stated that when she die not answer, parents-in-law ill-treatedher. But even as pointed out, dying declaration is silent about theform of ill-treatment. She claims that because of ill-treatment, sheimmolated herself. Thus, this dying declaration is silent about anydemand which is the core of prosecution case. 15.Another dying declaration (Exhibit 52) recorded by PW4 isapparently lengthy and therein, deceased has stated that 15 daysback, she had received one letter and it was like a love letter and herparents-in-law were questioning her as to who sent it and that shewould not be allowed to stay. Apparently, from such dying declaration, it is further emergingthat 15 days after receipt of said letter, around 9.30 a.m., whenhusband and deceased father-in-law were out of the house, she claimsthat, mother-in-law asked her as to when will she go to fetch waterand further allegedly asked her whether anybody is coming to visither, and therefore, getting angry by the same, she claims to have CriAppeal-604-2005-22- immolated herself. Thus, the very aspect of abetment, inducement orinstigation are patently missing from this dying declaration also. Legal Precedents on Sections 306 IPC :16.In umpteen judgments, Hon’ble Apex Court has time and againexpounded legal requirements for attracting the charge of Section 306IPC i.e. in the known cases, which are time and again referred to tilldate.17.In State of West Bengal v. Orilal Jaiswal (supra), the Hon’bleSupreme Court has cautioned that the Court should be extremelycareful in assessing the facts and circumstances of each case and theevidence adduced in the trial for the purpose of finding whether thecruelty meted out to the victim had in fact induced her to end her lifeby committing suicide. If it appears to the Court that a victimcommitting suicide was hypersensitive to ordinary petulance, discordand difference in domestic life, quite common to the society, to whichthe victim belonged and such petulance, discord and difference werenot expected to induce a similarly circumstanced individual in a givensociety to commit suicide, the conscience of the Court should not besatisfied for basing a finding that the accused charged of abetting theoffence of suicide should be found guilt. CriAppeal-604-2005-23- 18.In Ramesh Kumar v. State of Chhatisgarh (2001) 9 SCC 618, itis observed that, “Instigation is to goad, urge forward, provoke, inciteor encourage to do ‘an act’. To satisfy the requirement of instigationthough it is not necessary that actual words must be used to thateffect or what constitutes instigation must necessarily and specificallybe suggestive of the consequence. Yet a reasonable certainty to incitethe consequence must be capable of being spelt out. 19.In M. Arjunan v. State, represented by its Inspector of Police,(2019) 3 SCC 315, while explaining the necessary ingredients ofSection 306 IPC in detail, observed as under :-“7.The essential ingredients of the offence underSection 306 I.P.C. are : (i) the abetment; (ii) the intentionof the accused to aid or instigate or abet the deceased tocommit suicide. The act of the accused, however, insultingthe deceased by using abusive language will not, by itself,constitute the abetment of suicide. There should beevidence capable of suggesting that the accused intendedby such act to instigate the deceased to commit suicide.Unless the ingredients of instigation/abetment to commitsuicide are satisfied, accused cannot be convicted underSection 306 IPC.” CriAppeal-604-2005-24- 20.In Ude Sing & others v. State of Haryana (2019) 17 SCC 301,the Hon’ble Supreme Court held that in order to convict an accusedunder Section 306 IPC, the state of mind to commit a particular crimemust be visible with regard to determining the culpability. It wasobserved as under :-“ 16. In cases of alleged abetment of suicide, there must bea proof of direct or indirect act(s) of incitement to thecommission of suicide. It could hardly be disputed that thequestion of cause of a suicide, particularly in the context ofan offence of abetment of suicide, remains a vexed one,involving multifaceted and complex attributes of humanbehavior and responses/reactions. In the case of accusationfor abetment of suicide, the Court would be looking forcogent and convincing proof of the act(s) of incitement tothe commission of suicide. In the case of suicide, mereallegation of harassment of the deceased by another personwould not suffice unless there be such action on the part ofthe accused which compels the person to commit suicide;and such an offending action ought to be proximate to thetime of occurrence. Whether a person has abetted in thecommission of suicide by another or not, could only begathered from the facts and circumstances of each case. 16.1 For the purpose of finding out if a person has abettedcommission of suicide by another; the consideration wouldbe if the accused is guilty of the act of instigation of the act
Decision
CriAppeal-604-2005-31- ORDERI.The appeal is allowed.II.The conviction awarded to the appellant Kamalbai w/oDattatraya Nakate by learned III Adhoc Additional SessionsJudge, Osmanabad, in Sessions Case No. 77 of 2000 underSections 498-A r/w 34 and 306 r/w 34 of IPC, on 01.08.2005stands quashed and set aside.III.The appellant Kamalbai w/o Dattatraya Nakate stands acquittedof the offence punishable under Sections 498-A r/w 34 and 306r/w 34 of IPC.IV.The bail bonds of the appellant stand cancelled.V.Fine amount deposited, if any, be refunded to the appellant afterthe statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre