Bombay High Court

Mainabai Gunwant Shinde And Ors vs State Of Maharashtra And Anr on 18 February, 2021

Bench: S. K. Shinde

                                                                        2-apeal-381-1998.odt
Shambhavi
N. Shivgan
                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
Shambhavi N.                CRIMINAL APPELLATE JURISDICTION
Shivgan
Date: 2021.02.22
18:12:27 +0530                    CRIMINAL APPEAL NO.381 OF 1998

                       1   Mainabai Gun Want Shinde,
                      age 45 years

                      2    Vijay ashree Gun Want Shinde,
                      age 18 years

                      3     Gun want Sopan Shinde,
                      age 59 years,
                      All residents of Kari, Taluka: Barshi,
                      District: Solapur                        ... Appellants
                                                         (Org.Accd.Nos.1 to 3)
                            Vs

                      1         The State of Maharashtra          ...

                      2    Balachandra Pende, resident of
                      Tuljapur, District: Solapur               ...Respondents
                                                  ...

Mr. M.V.Thorat with Mr. Anukul B. Seth for the Appellants.

Mr. R.M.Pethe, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : 18th FEBRUARY, 2021.

ORAL JUDGMENT:

Shivgan 1/12 2-apeal-381-1998.odt

It is an appeal under Section 374(2) of the

Code of Criminal Procedure, 1973 preferred by accused

nos.1,2 and 3 against the conviction recorded under

Sections 498A, 306 read with Section 34 of the Indian

Penal Code, 1860 ('IPC' for short) in Sessions Case

No.190 of 1997 by the IVth Additional Sessions Judge,

Solapur and sentenced as under:

. Accused no.1 Mainabai (mother-in-law) to sufer

rigorous imprisonment for one year and fne of

Rs.10,000/- in default, to sufer rigorous imprisonment

for one month, on each count;

. Accused no.2 Vijayashree (Sister-in-law) to sufer

simple imprisonment till rising of the Court and to pay

a fne of Rs.5,000/- in default, to sufer rigorous

imprisonment for eight days on each count;

. Accused No.3 Gunwant (father-in-law) to

sufer rigorous imprisonment for one year

Shivgan 2/12 2-apeal-381-1998.odt

and to pay fne of Rs.10,000/-, in default, to sufer

rigorous imprisonment for one month on each count.

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 25 th 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

Shivgan 3/12 2-apeal-381-1998.odt

treatment, her statement was recorded by the head-

constable 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 Head-

constable) 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

Shivgan 4/12 2-apeal-381-1998.odt

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.

Shivgan 5/12 2-apeal-381-1998.odt

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 self-

immolation, 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 in-

laws, 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

Shivgan 6/12 2-apeal-381-1998.odt

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

Shivgan 7/12 2-apeal-381-1998.odt

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."

Shivgan                                                          8/12
                                                      2-apeal-381-1998.odt




.              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.

7 The Hon'ble Apex Court in the case of

Gurcharan Singh v. State of Punjab 1 2020 (10) SCC

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 Shivgan 9/12 2-apeal-381-1998.odt

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,