Criminal Appeal No. 587 of 2002 · Bombaybench High Court
Case Details
2024:BHC-AUG:5239 CriAppeal-587-2002-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 587 OF 200201.Amrut s/o Pundalik Marathe,Age : 42 years.02.Gokul s/o Pundalik Marathe,Age : 35 years.03.Usha w/o Gokul Marathe,Age : 30 years.04.Latabai w/o Amrut Marathe,Age : 36 years.05.Shevantabai w/o Pundalik Marathe,Age : 60 years.All residents of Dharangaon,Tq. Dharangaon, Dist. Jalgaon.… Appellants[Orig Accused nos. 1 to 5]VersusThe State of Maharashtra… Respondent…..Mr. Uday S. Malte, Advocate for the Appellants [appeared through video conference].Mr. N. D. Batule, APP for Respondent-State.….. CORAM :ABHAY S. WAGHWASE, J. Reserved on: 06.03.2024Pronounced on: 12.03.2024 CriAppeal-587-2002-2- JUDGMENT : 1.Convicts for offence under Sections 498-A, 306 r/w 34 of theIndian Penal Code [IPC] are hereby assailing the judgment and orderof conviction recorded by learned Additional Sessions Judge, Jalgaonin Sessions Case No. 56 of 2002 vide judgment and order dated03.10.2002.FACTS LEADING TO TRIAL2.Dharangaon police station chargesheeted in-laws of deceasedShobhabai i.e. mother-in-law, brothers-in-law and their wives forabove offence. Allegations that are levelled are that, accused personspersistently and continuously ill-treated Shobhabai physically as wellas mentally i.e. hurling abuses, doubting her character and asking herto leave the house premises. The ill-treatment was of such degree thatfinally she was forced to immolate herself by pouring kerosene. Thus,accused having abetted the said suicide, police chargesheeted themfor above offences and they were made to face trial before learnedAdditional Sessions Judge, Jalgaon, who permitted prosecution toadduce evidence. After appreciating the oral and documentaryevidence, learned trial Judge got convinced and vide judgment andorder dated 03.10.2002, held that accused have ill-treated deceased
Facts
CriAppeal-587-2002-3- and they have also, with common intention, further abetted her tocommit suicide, and thereby recorded conviction.Feeling aggrieved by the same, instant appeal is filed.SUBMISSIONSOn behalf of the appellants:3.Questioning the legality and maintainability of the judgment,learned counsel for the accused/appellants would point out that hereis a unique case where there are charges both, under Section 498-A aswell as Section 306 of IPC. However, according to him, husband is notmade an accused, rather, only in-laws are roped in, even whenprosecution itself has come with a case that appellants in-laws wereresiding separately. He further pointed out that marriage of deceasedwas already 25 years old and she has three teen aged sons. Hepointed out that deceased immolated herself on 09.01.2002 for thebest reasons known to her. That, it has come in the evidence ofprosecution itself that deceased was short-tempered. That, there is nomaterial in proximity to alleged suicide to link accused furtheralleging cruelty, ill-treatment or even abetment. CriAppeal-587-2002-4- 4.Learned counsel took this court through the dying declarationsExhibits 30 and 43 and would point out that in both dyingdeclarations, deceased merely informed that all accused abused herand accused Usha cursed her. He further pointed out that by nostretch of imagination, mere such solitary episode of alleged utteranceor curse could at all be said to be amounting to abetment. Hespecifically pointed out that in both dying declarations, there aregeneral and omnibus allegations. That, what role each of the accusedplayed has also not been clearly spelt out. 5.He next submitted that here, very capacity of deceased to givetwo dying declarations in quick succession on the same day, havingsuffered 100% burns, also is a mysterious question. He invitedattention to the evidence of doctor, who allegedly examined victim,and pointed out that firstly, this doctor has not recorded the vitals ofdeceased before recording her dying declaration and secondly, thereis no certification at the beginning of dying declarations regardingfitness to give statement. He pointed out that doctor has admittedthat with such degree of burns, a person could be in a confused state.Therefore, according to him, with such evidence emanating from theprosecution witnesses, it is doubtful whether deceased Shobhabai wasin a fit state, physical and mental, to give any dying declaration. CriAppeal-587-2002-5- 6.He next criticized the dying declarations by pointing out thatsame cannot be said to be voluntary for the simple reason that here,doctor as well as authorities who have recorded dying declaration areadmitting in cross that relatives of patient were around at the time ofrecording dying declaration and therefore, according to him, aspect ofvoluntariness itself comes under shadow of doubt, and there to bepossibility of deceased being tutored. Therefore he submits that suchdying declarations ought not to have been relied by learned trialcourt.7.He further pointed out that though incident has taken place inthe house, no independent neighbour has been examined and ratheronly interested witnesses, who are husband and sons of deceased, andwho in fact were not available, have been examined and theirtestimonies are unfortunately relied and accepted by learned trialJudge.8.Lastly, he submitted that none of the ingredients for attractingeither Section 498-A or Section 306 of IPC are available in theevidence and moreover, according to him, there is no evidencesuggesting formation of common intention and thereafter gatheringand they inflicting cruelty or abetting suicide.
Legal Reasoning
CriAppeal-587-2002-27- 30.Likewise, PW6 husband was obviously at Lalbag in Barhanpur,i.e. in another State, and though he claims that during his previousvisits, his wife used to tell about abuses and quarrels, in cross para 10omission is brought to that extent in his statement. Therefore, histestimony in examination-in-chief is apparently an improved version.Even otherwise, he merely speaks of hearing from his deceased wifethat accused persons should not be spared. What they did, is notstated by him in his evidence. 31.Consequently, though there is oral dying declaration to PW4Jitendra, it is merely about accused persons abusing. In theconsidered opinion of this Court, the cumulative effect of evidence ofPW3 Banti, PW4 Jitendra, PW5 Aba and PW6 Pratap is that, it isdoubtful whether said episode in the morning of 09.01.2002 can besaid to be the trigger point abetting suicide.32.It is settled law that to attract abetment, prosecution has todemonstrate and establish existence of above essential ingredients.Keeping in mind the legal requirements of provisions of Section 107IPC, and testing the testimonies discussed above in the light of suchrequirements, in the considered opinion of this court, by no means actof accused could be brought under definition of abetment. Therefore, CriAppeal-587-2002-28- the residue that falls on scrutiny of oral evidence is that there is weakor no evidence on the point of abetment. Mere hurling abuses withintention to compel deceased leave the dwelling in which they wereinterested, would not mean that they intended her to end up her life.Prosecution’s own witness PW5 Aba has admitted in cross thatdeceased was hot tempered. Therefore, the episode seems to havetaken place in the heat of anger.33.On going through the impugned judgment, learned trial Judgedoes not seem to have appreciated the settled legal position beforerecording guilt. What has come before trial court was a solitaryepisode of the day in question. There is nothing to infer that theharassment was incessant in nature. Quarrels and abuses withoutintending the consequences would itself not attract instigation orabetment to commit suicide. Apparently, erroneous conclusion isreached at. Therefore, such findings cannot be allowed to besustained. Hence appellants succeed. Appeal deserves to be allowed.Accordingly, I proceed to pass the following order :ORDERI.The appeal is allowed. CriAppeal-587-2002-29- II.The conviction awarded to the appellants i.e. 1. Amrut s/oPundalik Marathe, 2. Gokul s/o Pundalik Marathe, 3. Usha w/oGokul Marathe, 4.Latabai w/o Amrut Marathe and 5.Shevantabai w/o Pundalik Marathe, by learned AdditionalSessions Judge, Jalgaon in Sessions Case No. 56 of 2002 underSections 306, 498-A r/w 34 of IPC on 03.10.2002 standsquashed and set aside.III.All the appellants stand acquitted of the offence punishableunder Sections 306, 498-A r/w 34 of IPC.IV.The bail bonds of the appellants stand cancelled.V.Fine amount deposited, if any, be refunded to the appellantsafter the statutory period.VI.It is clarified that there is no change as regards the orderregarding disposal of muddemal. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppeal-587-2002-6- 9.Consequently, it is his submission that, evidence of prosecutionwas apparently weak. According to him, learned trial court has failedto consider and appreciate the same in correct perspective and hasalso lost sight of settled legal position and has thereby renderederroneous judgment which he prays to set aside by allowing theappeal.10.Learned counsel for the appellants has placed reliance on thedecision in the case of Heera Lal and another v. State of Rajasthan(2018) 11 SCC 323.On behalf of the State :11.In answer to above, learned APP pointed out that it is true, aspointed out by learned counsel for the appellants, that this is a uniquecase, but according to him, very sons and husband of deceased havedeposed against appellants in-laws. He pointed out that husband ofdeceased was working in another State for livelihood. That, in-lawsaccused persons were indulging in harassing deceased both,physically as well mentally. That, deceased has categorically namedthem in both dying declarations which are consistent. Learned APPpointed out that apart from two consistent, trustworthy dying CriAppeal-587-2002-7- declarations, very husband and sons of deceased have stepped intothe witness box and held accused persons responsible for burns ofShobhabai. That they all have supported each other. Thus, it is hissubmission that, all necessary ingredients for attracting Sections 498-A as well as 306 r/w 34 of IPC being available, learned trial court hascommitted no error whatsoever in holding case of prosecution asproved and recording guilt. Hence, he prays to dismiss the appeal.EVIDENCE BEFORE THE TRIAL COURT12.On going through the papers which were before the trial court,it is emerging that case of prosecution in trial court is rested on thetestimony of in all 13 witnesses. That apart, prosecution also seems tohave relied on two dying declarations allegedly given by deceasedwhich are at Exhibits 30 and 43 respectively. Before ascertaining theveracity of the dying declarations, it would be desirable to first dealwith and discuss the oral evidence to find out whether testimonies aretruthful and inspiring confidence.PW1 Chudaman is the pancha who unfortunately has notsupported prosecution. CriAppeal-587-2002-8- PW2 Vijay is the pancha to inquest panchanama. He identifiedthe same to be at Exhibit 21.PW3 Banti, PW4 Jitendra, PW5 Aba and PW6 Pratap seem to bethe main witnesses for prosecution i.e. sons and husband of deceasedand friend of son Jitendra (PW4)PW3 Banti, at Exhibit 22 stated that he, his mother and theyboth brothers resided at Dharangaon. On 09.01.2002, around 8.00a.m., accused persons came and abused his mother saying that shecommits sorcery and they went away. He claims that thereafter hewent for tuition at 9.00 a.m. and returned at 10.00 a.m. According tohim, then all accused came to his house and again started abusing hismother saying that she should not reside there and went away.According to him, accused no.4 Latabai slapped his mother andthereafter all accused went away. When he went for urination,meantime, his mother came out of the house in burning condition.Her fire was extinguished. He identified all accused persons in thecourt.While under cross, he is questioned about their arrival atDharangaon and about ancestral land. He admitted that when they CriAppeal-587-2002-9- started residing at Dharangaon, his father was staying at Lalbag andhe was at Lalbag on the day of occurrence. He admitted that accusednos.1 and 4 resided together whereas accused nos. 2, 3 and 5 residedseparately. He answered that 7 to 8 months prior to the incident, theyhad come to the new house. He admitted that accused wereinterested in purchasing said house and therefore there were disputesbetween accused and his father on such count. He also admitted thattwo months back, his mother had consumed poison. He answered thatboth instances which took place in the morning, lasted for 15 minutesand at that time his brother was out of the house. He answered thathe visited hospital on the next morning. Omission is brought to theextent that accused saying to his mother to go away from the place.PW4 Jitendra, another son of deceased deposed that accusedused to abuse his mother since three to four months prior to theincident. They used to utter filthy abuses and blame his mother. On09.01.2002, while he was at work, he received message and thereforehe returned back to civil hospital. He deposed that his mother toldhim that all accused came and abused her in filthy language, whereasaccused no.4 slapped her. He stated that earlier also accused hadabused his mother. Therefore she was mentally disturbed and henceshe poured kerosene. CriAppeal-587-2002-10- In cross, he stated that in his presence, the Tahsildar had cometo record his mother’s statement and he was present when her suchstatement was recorded. He is unable to state whether he informedpolice regarding his mother informing him that all accused abused herand accused no.4 slapped her and that they abused her earlier alsobut she said nothing and therefore she was mentally upset and henceshe poured kerosene and set herself on fire.PW5 Aba, claims that he knew deceased because her sonJitendra was his friend. According to him, on 09.01.2002, he heardcommotion and so he went there and saw Shobhabai in burntcondition and that she asked him to inform police, who came andthen deceased told police that all accused abused her.In cross he admitted that deceased was hot tempered. Headmitted that he personally did not see the incident. He also admittedthat police had not recorded his statement previously. PW6 Pratap, husband of deceased, at Exhibit 25 stated thatwhile he had visited Dharangaon, his wife told that accused personsabused her and quarreled with her. Then he deposed that he hadtaken the house on mortgage but accused Gopal and his father CriAppeal-587-2002-11- Pundalik met the landlord and asked him to sell the said house tothem for Rs.50,000/- and drive out family of this witness. He statedthat accused used to abuse and blame his wife and she used to tellabout it to him. On 12.12.2001, his wife told that all accused used toabuse her and used to blame her on character. On 09.01.2002, he gotnews and he came to the civil hospital and there his wife told thataccused should not be spared. In cross, he admitted that he did not lodge report previously topolice regarding abuse by accused, but volunteered that he did not doso because accused no.2 requested him. He admitted that afterreceiving dead body, he did not immediately lodge report. In para 10,following omissions are brought:i.Explaining accused no.2 that this witness was keepinghis family there because of accused and now it isimproper that accused misbehave with her as above.ii.That accused no.2 approached landlord and askedlandlord to drive out family of this witness.iii.He stated that he further told police that he had cometo Dharangaon on 12.12.2001 and that his wife toldthat accused abused her and blamed her on character. CriAppeal-587-2002-12- PW7 Dr. Alka Patil is the autopsy doctor who noticed 100%burns and attributed death due to shock due to 100% burns.PW8 Police Head Constable Solanki, who recorded Exhibit 30i.e. first dying declaration.PW9 Police Head Constable Pardeshi, who drew spotpanchanama, recorded statements of witnesses, obtained postmortemreport, inquest panchanama and death certificate etc.PW10 Sau. Nalini Joshi, the Special Executive Magistrate, whorecorded Exhibit 43 i.e. the second dying declaration. PW11 Dr. Pathan, who treated deceased and issued certificationof fitness to record statement.PW12 Dr. Vidya Deshmukh, another doctor who examineddeceased and issued certification of fitness to record statement.PW13 P.I. Sitaram Jadhav is the Investigating officer whonarrated all steps taken by him during investigation. CriAppeal-587-2002-13- 13.Appellants were made to face trial on charge under Section498-A and 306 of IPC.LEGAL POSITIONLaw is fairly settled that, for attracting the charges undersection 498A of IPC, prosecution is duty bound to prove followingessential ingredients :- “(1)A woman was married; (2)She was subjected to cruelty; (3)Such cruelty consisted in - (i)any lawful conduct as was likely to drive suchwoman to commit suicide or to cause grave injury ordanger to her life, limb or health whether mental orphysical; (ii)harm to such woman with a view to coercing herto meet unlawful demand for property or valuablesecurity or on account of failure of such woman or any ofher relations to meet the lawful demand ; (iii)the woman was subjected to such cruelty by herhusband or any relation of her husband.”14. Accused are also convicted for offence under Section 306 of IPCi.e. abetment to commit suicide. Before adverting to the merits of theevidence, it would also be fruitful to spell out essentials for attractingcharge of abetment to suicide and the settled legal position. Forbringing home the said charge, it is duty of prosecution to prove that CriAppeal-587-2002-14- there was abetment to commit suicide. As to what amounts toabetment is also fairly settled. Section 107 of the IPC deals withabetment. It reads thus:“107. Abetment of a thing- A person abets thedoing of a thing, who - First. - Instigates any person to do that thing; orSecondly. - Engages with one or more otherperson or persons in any conspiracy for the doingof that thing, if an act or illegal omission lakesplace in pursuance of that conspiracy, and inorder to the doing of that thing; or Thirdly.-Intentionally aids, by any act or illegalomission, the doing of that thing.Section 306 of the IPC deals with abetment of suicide.Ingredients of this section are as under :(1) There was suicide of a person;(2) It was committed in consequence of abetment of the accused. In order to attract the charge of section 306 of IPC, it isincumbent upon prosecution to establish incitement, instigation,aiding or abetment to commit suicide. Law to this extent has beenfairly settled in series of cases. Scope of Sections 107 and 306 IPC hasbeen time and again decided by the Hon’ble Apex Court in the cases CriAppeal-587-2002-15- viz; State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73; RameshKumar v. State of Chhatisgarh reported in(2001) 9 SCC 618; Sanju @Sanjay Singh Sengar v. State of M.P. reported in(2002) 5 SCC 371;Chitresh Kumar Chopra v. State (2009) 16 SCC 605; Amalendu Palalias Jhantu v. State of West Bengal (2010) 1 SCC 707; State of WestBengal v. Indrajit Kundu and others (2019) 10 SCC 188; Rajesh v.State of Haryana (2020) 15 SCC 359; V.P.Singh etc. v. State ofPunjab and others 2022 SCC Online SC 1999 and very recently in thecase of Kumar @ Shiva Kumar v. State of Karnataka [Criminal AppealNo. 1427 of 2011 decided on 01.03.2024], In above series of cases, it has been held and reiterated thatcourt should be extremely careful in assessing the facts andcircumstances of each case as well as the evidence adduced in thetrial for the purpose of finding whether the cruelty meted out to thevictim had in fact induced her to end her life by committing suicide.Principle that is culled out is that accused persons should specificallyintent that deceased should end up her life. With that sole object inmind, they must have deliberately created circumstances, which areof such nature, that deceased is left with no other alternative but toend up her life. Only in such circumstances charge of abetment tocommit suicide can be said to be successfully brought home. CriAppeal-587-2002-16- Keeping above legal position in mind, evidence of prosecutionis to be scrutinized.15.Here, reliance by prosecution is on both, dying declarations aswell as oral testimonies. First, creditworthiness of dying declarationsis put to scrutiny. ANALYSIS OF DYING DECLARATIONS16.In the instant case, there are two dying declarations. Since thejudgment of Khushal Rao v. State of Bombay; AIR 1958 SC 22, onnumerous occasions law on manner of appreciation of dyingdeclaration has been propounded and certain principles have beenculled out from plethora of judgments by the Hon’ble Supreme Court.Very recently the Hon’ble Supreme Court in the case of State of UttarPradesh v. Veerpal and Another; (2022) 4 SCC 741, while decidingCriminal Appeal No.34 of 2022 on 01-02-2022, has reiterated theprinciples to be borne in mind while analyzing and accepting dyingdeclaration. The settled principles are as follows :“1. It cannot be laid down as an absolute rule of law thata dying declaration cannot form the sole basis ofconviction unless it is corroborated; CriAppeal-587-2002-17- 2. Each case must be determined on its own factskeeping in view the circumstances in which the dyingdeclaration was made; 3. It cannot be laid down as a general proposition that adying declaration is a weaker kind of evidence thanother pieces of evidence; 4. A dying declaration stands on the same footing asanother piece of evidence and has to be judged in thelight of surrounding circumstances and with referenceto the principles governing the weighing of evidence; 5. A dying declaration which has been recorded by acompetent Magistrate in the proper manner, that is tosay, in the form of questions and answers, and, as faras practicable, in tevidencehe words of the maker ofthe declaration, stands on a much higher footing thana dying declaration which depends upon oraltestimony which may suffer from all the infirmities ofhuman memory and human character : and 6. In order to test the reliability of a dying declaration,the court has to keep in view, the circumstances likethe opportunity of the dying man for observation, forexample, whether there was sufficient light if thecrime was committed at night; whether the capacity ofthe man to remember the facts stated, had not beenimpaired at the time he was making the statement, bycircumstances beyond his control; that the statementhas been consistent throughout if he had severalopportunities of making a dying declaration apartfrom the official record of it; and that the statementhad been made at the earliest opportunity and was notthe result of tutoring by interested parties.” CriAppeal-587-2002-18- Other celebrated and water-shedding judgments on aboveaspects are Paniben v. State of Gujarat ; (1992) 2 SCC 774, Laxman v.State of Maharashtra ; (2002) 6 SCC 710, Ganpat Bakaramji Lad v.State of Maharashtra ; 2011 ALL MR Cri. 2249 Surendrakumar v.State of Punjab ; (2012) 12 SCC 120, Jagbir Singh v. State (NCT ofDelhi) ; (2019) 8 SCC 779 and Madan v. State of Maharashtra ;(2019) 13 SCC 464.17.In the light of above legal position, dying declarations are putto scrutiny. For better comprehension and ready reference, translatedversion of both dying declarations, Exhibits 30 and 43, is reproducedbelow :Dying declaration at Exhibit 30 :Rural Hospital, DharangaonDated 9-1-2002.STATEMENT I, Mrs. Shobhabai Pratap Marathe, aged 40 years,Occ.: Housewife, R/o Dharangaon, near Teli Lake, dohereby state in person and in writing that, I reside at theabove mentioned place with my three children. Myhusband is in service of a cloth mill at Burhanpur. Myfather is dead and I have three brothers, 1. Kailas ParbatSonwane, 2. Bhagwan Sonwane and 3. Prakash Sonwane. CriAppeal-587-2002-19- Today, on 9-1-2002, my mother-in-law ShevantabaiPundalik Marathe, brothers-in-law Gokul PundalikMarathe, Amrut Pundalik, Latabai Amrut Marathe came tomy house at about 10:15 hrs. They started abusing me andUshabai, wife of Gokul also came and cursed me, therefore,I said to her why she has cursed me and she abused meagain without listening to me. My marriage took placetwenty-five years ago and since then the above mentionedpersons harassed me mentally and physically and after thequarrel they left my home at about 10:15 hrs in themorning, I, in the fit of anger, poured kerosene on myperson and set myself ablaze. Then I came in the front-yardand started shouting and then my neighbours doused thefire and I was lying in front of the house and police camethere and took me to the Civil Hospital for treatment byputting in a rickshaw and admitted.Therefore, today on 9-1-2002 at about 10:15 hrs, inmy house near Dharangaon Teli Lake, my mother-in-lawShevantabai Pundalik Marathe, brothers-in-law GokulPundalik Marathe, Amrut Pundalik, Latabai Amrut Maratheand Ushabai Gokul Marathe came to my home and abusedme and cursed me and as these persons have beenharassing me physically and torturing mentally always, Ipoured kerosene on my person and have set myself ablazein a fit of anger. No one has set me ablaze. I have made the statement in full consciousness andsame is true and correct as narrated by me. CriAppeal-587-2002-20- Patient is consciousand given to the statementSigned/- 9-1-2002 at 11.45 PMDharangaon Police Stn.Part V, Crime No. 6/2002u/s 498 [A], 504, 34 of IPC registered and Station Diary Entry no. 9/2002 at inward no. 24 at 12.20 hrs taken. Signed/- SHO, PS Dharangaon.Before,Hence deposedSigned/- Police Head Constable Thumb impressions of Mrs. Shobhabai Pratap Marathe.Dying Declaration at Exhibit 43:BEFORE THE EXECUTIVE MAGISTRATE, JALGAON AT THE CIVIL HOSPITAL, JALGAON AT 9-1-2002Statement commenced at 2.00 PM.Question:What is your name? Where do you live? How old are you?Answer:My name is Shobhabai Pratap Marathe, aged 40 years, I reside at Dharangaon.Question:Can you tell me when and how the incident took place?Answer:Yes. The incident took place at my house atabout 10:10 to 10:30 Hrs. I and my children reside in thehouse. My husband stays at Burhanpur due to job. Hevisits us once or twice a month. My children were not CriAppeal-587-2002-21- present in the house when the incident occurred. I was inquarrel with my brother-in-law Gokul Marathe, co-sisterLata Amrut Marathe, Asha Gokul Marathe, PundalikMarathe, Shevantabai Marathe, all my in-laws, from lastfive to six months. They were harassing me much out ofsuspicion and were raising quarrels. Therefore, I pouredkerosene on my person at 10:00 to 10:30 hrs in a fit ofanger and set myself ablaze being fed up by the quarrelswith my in-laws. My neighbours rushed and doused thefire off by water after hearing my shouts and took me toDharangaon Hospital. I have also made statement there.The statement is made by in full consciousness andwithout any pressure from anyone. I again state that,Vandana had beaten me two months back. That time also Ihad consumed poison. Therefore, maximum punishment beawarded to these relatives. Hence the statement. Therecording of statement concluded at 2:15 hrs on 9-1-2002.Before,Signed/- Left hand Thumb impression of ShobhabaiExecutive Magistrate, Jalgaon.Copy received/-Patient is in condition to give statement. Signed/- 2PM 9-1-2002 18.On placing both dying declarations in juxtaposition to eachother, it is noticed that in first dying declaration, which is recorded byPolice Head Constable at about 11.45 p.m., declaration is given that CriAppeal-587-2002-22- accused persons came at 10.15 a.m., abused her and accused Ushauttered curses and even earlier there was abuse. She claims that inanger, she poured kerosene on herself and set herself on fire. In thisdying declaration, it is pertinent to note that role of slapping, as isattributed by PW3 Banti and PW4 Jitendra, is not finding place in thedying declaration.19.In second dying declaration at Exhibit 43, which is recorded at2.00 p.m., she has informed that since 5 to 6 months, there used to bequarrel with accused persons. She informed that they suspected herand troubled her much and raised quarrel and therefore in anger, shepoured kerosene. 20.Version in second dying declaration is not like the one given infirst dying declaration which is, though recorded on the same day.The aspect of suspicion of character spelt out in second dyingdeclaration is missing from first dying declaration. Therefore, dyingdeclarations cannot be said to be consistent.21.Law is clear on the manner of appreciation of dying declaration,that dying declaration should be firstly, voluntary and secondly, itshould inspire confidence of the court. Here, as regards the first CriAppeal-587-2002-23- aspect is concerned, PW3 son admits that Tahsildar recorded dyingdeclaration in his presence. Husband is not there to tutor her. Secondaspect, as pointed out is that there is apparent inconsistency asdiscussed above and therefore, dying declarations cannot be said tobe consistent so as to act upon it.22.Therefore, in the totality of all circumstances discussed above,here, unfortunately mother of PW3 and PW4 has suffered 100%burns, while her husband PW6 was out. Charge is under Section 306of IPC, but further unfortunately, it is not the case which could attractabetment to commit suicide. On petty count, in a fit of anger,deceased Shobhabai has immolated herself. Mere an episode ofquarrel in the morning of 09.01.2002, including allegations of beingslapped by one of the accused amongst five, which also is shown to bea material omission, by no stretch of imagination can it be held asamounting to abetment to commit suicide.23.Now let us advert to the oral evidence i.e. of husband, sons andother witnesses.24.Evidence of PW3 Banti, PW4 Jitendra, PW5 Aba and PW6Pratap is crucial. This court has already reproduced the sum and CriAppeal-587-2002-24- substance of their testimonies above. On re-appreciation, this courtfound that at the time of incident, deceased Shobhabai and her sonsPW3 Banti and PW4 Jitendra were residing together whereas, PW6husband was residing at other place. Admittedly, he had reached lateron and therefore, he is not aware of the actual occurrence. 25.According to PW3 Banti, younger son, on 09.01.2002, therewere two visits by accused i.e. at 8.00 a.m. and 10.00 a.m. Regardingfirst visit, he says that they came and abused his mother saying thatshe commits sorcery and they went away. During second visit, he hasdeposed that, they abused his mother and accused no.4 slapped hismother and they all went and thereafter, he found his mother inburning condition. His cross shows that prior to the incident inquestion, deceased had attempted suicide by consuming poison.Answers given by him in cross para 10 show that after first episode,deceased had resumed her daily course. But, according to him, therewas second incident which lasted for 15 minutes. In dying declarationExhibit 43, in fact deceased gave statement that her children were outof house. Therefore, presence of PW3 in house has come undershadow of doubt. CriAppeal-587-2002-25- 26.Whereas evidence of PW4 Jitendra, another son, goes to showthat he was at Jalgaon and he had reached Dharangaon around 1.00p.m., but according to him, he learnt from his mother that accusedcame and abused her in filthy language and accused no.4 slapped her.He went ahead and stated that because of abuse, his mother wasmentally disturbed and therefore she set herself on fire.27.Therefore, on carefully scrutinizing evidence of PW3 Banti andPW4 Jitendra, though they speak of abuse in filthy language, detailsof it are not finding place in the testimony of either of the witnesses.However, they both are speaking about accused no.4 slapping hismother. In chief itself, elder son speaks about his mother gettingmentally disturbed and setting herself on fire. Except said episode on09.01.2002, there is nothing on record to show that there wasconsistent harassment by way of abuses and that too, of such degreeand extent that deceased was left with no other alternative but to endup her life. It was open for deceased to retaliate or even take recourseto police authorities and lodge report, but in stead, she seems to havepoured kerosene on herself and in anger, set herself on fire. PW3Banti, who was in the vicinity of the house, does not speak aboutaccused to be present at that spot at that moment when he saw hismother coming out. He has already stated that after second episode of CriAppeal-587-2002-26- abuse and alleged slapping, accused persons had already left.Therefore, the moot question that arises is, what prompted Shobhabaito ignite herself is not clear.28.PW4 admittedly had reached later. However, according to him,when he met his mother in the civil hospital, he claims to have merelylearnt from her that accused abused in filthy language. Here, thereare in all five accused persons. Who amongst them actually abusedand what was the utterance has not come on record. Cross of PW4shows that it is full of material contradictions and omissions oncrucial points, more particularly answers given in para 6.29.Evidence of PW5 Aba, an independent witness, is of no avail tothe prosecution because though he has claimed about hearingdeceased informing police about she being abused, there is no directinformation to this witness as he has merely allegedly overheard theinformation by deceased. Moreover, he went to the extent ofadmitting in cross that deceased was short tempered. Furthermore, healso admitted that his statement under Section 161 of Cr.P.C. was notrecorded by police.