Mainabai Gun Want Shinde; Vijay ashree Gun Want Shinde; Gun want Sopan Shinde v. The State of Maharashtra; Balachandra Pende

2 Pending appeal, appellant no.3 Gunwant (Father-in-law) has passed away. Thus, appeal abates under Section 394(1) of the Code of Criminal Procedure, 1973.

3 Prosecution case in brief is that Sonali (Deceased) sustained burn injuries on 25th March, 1997 in self-immolation, due to alleged annoyance and verbal abuses caused to her, by in-laws; appellant no.1, mother in-law; no.2, sister-in-law and no.3 father-in-law (now deceased). Sonali, succumbed to burn injuries on the next day in the hospital. Autopsy surgeon opined, cause of death was ‘shock due to burns’. Sonali had sufered 85%e burns. Soon after the alleged incident Sonali was shifted to hospital by her husband. At the relevant time, she was pregnant. While taking treatment, her statement was recorded by the headconstable and thereupon the Crime No.13 of 1997 was registered against the in-laws under Section 498A of the IPC. On the same day, at around 10.20 a.m. Executive Magistrate, Nayab-Tehsildar recorded her statement only after Sonali’s health condition was found stable. The prosecution has to a large extent relied on Exhibit 43 (statement recorded by Headconstable) and Exhibit 49 (statement recorded by Executive Magistrate) as her dying declarations. Sonali succumbed to the injuries on 29th March, 1997 and whereupon ofences under Section 306 of the IPC were registered against the accused. The learned Trial Judge after perusing the fnal report framed the charge under Section 498A, 306 of the IPC. Prosecution adduced the evidence of Sonali’s father and relied on two dying declarations as aforesaid. The learned Trial Court upon appreciating the evidence, convicted the accused for the ofences punishable under Sections 498A and 306 read with Section 34 of the IPC and sentenced accused no.1, accused no.2 (sister in law) and accused no.3 (father-in-law) now deceased, as aforesaid. All sentences were directed to run concurrently. The learned Trial Court directed that on realization of fne of Rs.25,000/-, the same be paid to Sonali’s father (PW 2) for depositing the said amount in fxed deposit in the name of Sonali’s son Abhijit for the period of ten years towards the compensation as per Section 357 of the Cr.P.C.

4 It is against the conviction and sentence, this appeal is preferred.

5 I have perused the two dying declarations; one at Exhibit 43 and another at Exhibit

49. Also perused the evidence of Executive Magistrate (P.W.8) and the evidence of Sonali’s father (P.W.2). Evidence of P.W.[2] corroborates dying declarations. Sonali, in her statement to the Executive Magistrate, alleged that the accused were annoying and pestering her to bring money from her parents. It is clearly seen from her dying declarations that she committed selfimmolation, because her in-laws were not consulting doctor/hospital for treatment though at the relevant time, she was pregnant.. Thus, the question that falls for my consideration is, “whether prosecution has proved beyond reasonable doubt that the cruelty or harassment caused by inlaws, forced Sonali, to cause grave bodily injury to herself or to commit suicide.”

6 Herein, the Sonali died due to burns and that too within seven years of her marriage. Section 113-A of the Indian Evidence Act, 1872 raises a presumption in respect of abetment of suicide in case two conditions are fulflled; frst condition is that the woman, who has committed suicide, was married within period of seven years immediate to the preceding commission of suicide and second condition is that, she was subjected to cruelty by husband or by any relative of his husband. Evidence of Sonali’s father and two dying declarations suggest that Sonali committed suicide because she was not hospitalised and/or doctor was not consulted by, her in-laws though she was pregnant and that she was not permitted to watch television. In the dying declarations, Sonali stated that accused were pestering her to bring money from parents but such allegations in the testimony of her father are vague and extremely general in nature. In fact his evidence does not suggest, that Sonali had ever made any grievance or complaint to him that she was recurringly harassed by her in-laws for not bringing money and fulflling their demand. Thus, it is to be ascertained whether allegations in two dying declarations constitute ‘cruelty’ within the meaning of Section 498A of the IPC. Cruelty within the meaning of this Section has been explained in explanation appended to Section 498A. It consists of two clauses, namely clauses (a) and (b). To attract Section 498A, it must be established that the cruelty or harassment to wife was to force her to cause grave bodily injury to herself or to commit suicide or harassment was to compel her to fulfll illegal demands for dowry or otherwise.. In the case in hand except vague accusations of ill-treatment, no specifc accusations were made against the accused. It may be stated that well constituent of the ofence under Section 498A is the ‘cruelty’, in view of the clause (a) of the Explanation appended to Section 498A, which reads as under: “Explanation Clause (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.”. The word ‘Wilful’ contemplates infexible and deliberate behaviour on the part of ofender. For it to amount to cruelty, mens-rea is an essential ingredient of the ofence, which is absent in the case in hand.

200 has held thus, “In order to give the fnding of abetment under Section 107 of IPC, the accused should instigate a person either by act of omission or commission and only then, a case of abetment is made out.”

8 In this case no overt act or illegal omissions were established by the prosecution nor it has been established that the deceased was subjected to persistent harassment by the in-laws. The allegations 1 2020 (10) SCC 200 in two dying declarations are vague and do not constitute ‘cruelty’. In fact, allegations were in the nature of ‘wear and tear of married life’. Allegations of pestering Sonali by in-laws are vague, not specifc and in past at no point of time Sonali complained of. The Apex Court in Gurcharan Singh (Supra) has held that ‘ in order to convict a person under Section 306 IPC, there has to be a clear mens-rea to commit the ofence.’ In the case in hand, prosecution has not established ‘mens-rea’’.. Thus, in consideration of the facts of the case and the evidence on record, I hold that prosecution has not proved that appellants subjected her to cruelty and further also not proved that by their acts of commission and omissions, instigated her to commit suicide.

9 It may also be stated that Sonali’s father and her uncle both in their testimonies exaggerated facts in an attempt to justify the charge of ‘cruelty’.

10 In consideration of the facts of the case and for the reasons stated, impugned conviction and sentence passed in Sessions Case No.190 of 1999 by the IVth Additional Sessions Judgje, Solapur, is quashed and set aside.

12 In the peculiar facts of the case, the learned counsel for the appellant on instructions submits that appellants shall not claim refund of the fne, which has been paid over to Sonali’s mother as compensation. Statement is accepted.