Bombay High Court

Chandrakant Maruti Magar vs State Of Maha on 8 May, 2025

2025:BHC-AUG:13590


                                                  {1}            CR APPEAL 491 OF 2004


                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 491 OF 2004

                 Chandrakant Maruti Magar
                 Age: 30 years, Occu. : Agril.,
                 R/o. Wagholi, Tq. & Dist.Osmanabad.              ....Appellant

                       Versus

                 State of Maharashtra
                 (Through Police Station,
                 Wagholi)                                         .....Respondent
                                                 .....
                 Advocate for Appellant : Mr. Mahesh P. Kale
                 APP for Respondent : Mr.N.D.Batule
                                                 .....
                                     CORAM : ABHAY S. WAGHWASE, J.

                                     RESERVED ON   : 02 APRIL, 2025
                                     PRONOUNCED ON : 08 MAY, 2025

                 JUDGMENT :

1. In this appeal, there is challenge to the judgment and order

of conviction dated 08-06-2004 rendered by the learned 4 th Adhoc

Additional Sessions Judge, Osmanabad in Sessions Case No.68 of

2001 holding present appellant guilty for offence under Sections 498-

A and 306 of the Indian Penal Code (IPC).

PROSECUTION CASE IN BRIEF

2. Present appellant was married to deceased Daivashala and {2} CR APPEAL 491 OF 2004

they had a son from their said marriage. According to prosecution,

appellant husband was addicted to liquor. He suspected her

character and repeatedly beat her after insisting her to seek share

from the property of her mother. Getting fed-up of continuous

beating and mal-treatment, deceased incinerated herself by pouring

kerosene and succumbed to the same.

On the strength of dying declaration, crime was registered,

investigated and appellant was chargesheeted and tried by learned

4th Adhoc Additional Sessions Judge, Osmanabad.

After appreciating the oral and documentary evidence, learned

trial Judge, vide judgment dated 08-06-2004, held appellant guilty

for offence under Sections 498-A and 306 of the IPC, hence, instant

appeal.

SUBMISSIONS

On behalf of appellant :

3. Learned counsel pointed out that evidence adduced by

prosecution in trial Court is weak in nature. That, necessary

ingredients for attracting offence under Section 498-A of the IPC are

patently missing. That, witnesses are not consistent. That, deceased

allegedly set herself on fire in the rage of anger. That, there was no {3} CR APPEAL 491 OF 2004

abetment, inducement, to attract offence under Section 306 of the

IPC. That, there was no mens rea. That, learned trial Court failed to

consider above legal requirements and erred in returning the guilt.

Therefore, learned counsel prays to set aside the said judgment as it

is legally not sustainable. In the alternative, he made submission that

there being no previous antecedents, benefit of probation be given.

In support of his submissions learned counsel relied on

decision of Hon'ble Supreme Court in (i) Chitresh Kumar Chopra v.

State (Government of NCT of Delhi), (2009) 16 SCC 605, (ii)

Ramesh Kumar v. State of Chhattisgarh, (2001)9 SCC 618 and

decision of High of Judicature at Allahabad, Lucknow Bench in

Smt.Budana and another v. State of U.P. in Criminal Appeal no.108

of 2005 dated 29-08-2023.

On behalf of State :

4. While opposing the appeal, learned APP pointed out that case

is based on consistent dying declarations, which are promptly

recorded, wherein deceased had named present appellant to be

responsible for creating circumstances and compelling her to end up

her life. That, there was continuous beating after getting drunk.

That, same story is reflected in both dying declarations. That, both {4} CR APPEAL 491 OF 2004

statements are voluntary, credible, reliable and worthy of credence.

That, evidence of witnesses is consistent with the statement in both

dying declarations. Therefore, learned APP urges to confirm and

uphold the judgment by dismissing the appeal.

In support of his submissions, learned APP relied on decision of

Hon'ble Supreme Court in Khushal Rao v. State of Bombay, AIR 1958

SC 22.

EVIDENCE IN TRIAL COURT

5. In support of its case, prosecution has adduced evidence of in

all seven witnesses. Sum and substance of their evidence is as

under:

PW1 Ramchandra Wamanrao Patil is the Police Head

Constable, who recorded statement of deceased at exh.21.

PW2 Vyankat Limbaji Koli was the then residential Naib

Tahsildar and Executive Magistrate. He stated that on 18-06-2000,

the constable of P.S.City, Osmanabad had come to his house at

around 12:05 midnight and delivered a letter issued by P.H.C. of

Police Chowki Civil Hospital, Osmanabad, for recording the dying

declaration of one Daivashala w/o Chandrakant Magar, r/o Wagholi,

who was admitted in the hospital because of sustaining burn injuries.

                                      {5}            CR APPEAL 491 OF 2004


He,    therefore,   immediately      rushed   towards    Civil   Hospital,

Osmanabad and reached there within 5 minutes. On reaching there,

he approached Dr.Munde, who was on duty as M.O. This witness

disclosed his identity and requested Dr.Munde to show him the

patient since he wanted to record the Dying Declaration. He also

requested Doctor to examine the patient and to give the opinion

whether she is in a position to give her statement or not.

Accordingly, this witness and Dr.Munde went towards the burn ward.

He found that Daivashala was admitted there as a indoor patient.

Dr.Munde examined her in presence of this witness and opined that

she was in a position to give her statement. Doctor also made the

endorsement to that effect on the top of the page on which he was

going to write the Dying Declaration.

Thereafter, this witness had disclosed his identity to Daivashala

and also stated that he wants to record her statement. Accordingly,

this witness enquired about her full name, age, residence, etc. and

recorded dying declaration of deceased at exh.24.

PW3 Subhadrabai Bapu Mate is mother of deceased

Daivashala. At exh.25, she deposed as under :

"1. Deceased Daivashala was my daughter, given in marriage {6} CR APPEAL 491 OF 2004

to the accused in the village itself, Accused was suspecting about the character of my daughter, and therefore, used to beat her under the the influence of liquor. Accused is heavily addicted to the liquor. Even the accused was not allowing Daivashala to visit our house.

2. My son Datta resides at Ulhasnagar to earn his livelihood. Some one month prior to the incident Datta had been to village Wagholi. Accused Chandrakant was demanding the partition of our residential house through deceased Daivashala. Moreover, he was also insisting Daivashala to bring a cow from us. Daivashala had delivered a child when Datta had been to Waghali. On one day my son Datta was sitting in our house accused Chandrakant came to our house, by holding the axe in his hand, and gave threats to him. However, Datta had kept mum since Daivashala had recently delivered a child.

3. Incident had taken place some 3 years back. I was present in my house. It was around 12.00 noon accused Chandrakant brought Daivashala to my house while beating her. On reaching to my house he insisted Daivashala to pick up the water pot and remove the tins of the house. I have only one guntha of agricultural land. Accused had also demanded the said land by making partition to the extent of share of Daivashala. Moreover, accused had stated to Daivashala that she should not come to his house, unless the partition is effected. Even thereafter accused took Daivashala to his house by beating her.

4. On the same day, in the evening I was at my house. In the evening Daivashala had committed suicide by setting herself on fire. She had committed suicide on account of the ill-treatment {7} CR APPEAL 491 OF 2004

extended to her by the accused, by suspecting her character as well as non non-fulfilment of the demands of cow, and partition of land. I learnt on the next day that Daivashala was taken to civil hospital, Osmanabad."

PW4 Datta @ Maruti Bapu Mate is brother of the deceased. At

exh.26 he deposed as under :

"1. Deceased Daivashala was my sister. She was given in marriage to the accused some 7 years back. prior to her death. Accused is addicted to the liquor. He was suspecting about character of Daivashala and therefore used to ill-treat her. Even he was not allowing any person including myself to enter in his house, and also not allowing her to go and visit any other person.

2. In the month of October, 1999 I received a message on phone that accused had beaten Daivashala. I therefore came to village Wagholi from Ulhasnagar. At that time, the father of accused had come to my house. We were chitchatting. At that time, accused came there and started giving abuses to me and even to his father. The accused stated to his father that, he should not intervene in the quarrel between him and myself. Therefore, his father had lodged the complaint against him at police station Osmanabad rural. However, I did not prefer to lodge the complaint in order to avoid the future ill-treatment to my sister Daivashala. Thereafter. I took Daivashala to my house at Ulhasnagar. Some 8 days there-after, accused had come to my house at Ulhasnagar, and expressed his apology to Daivashala. Moreover, he also assured Daivashala that in further he will not {8} CR APPEAL 491 OF 2004

ill-treat and beat her. Accordingly, he took Daivashala with him at Wagholi, I had also accompanied them.

3. Thereafter in the month of May, 2000 on Akshaya Tritiya I came to village Wagholi. Some 3 days prior to my arrival, Davishala had delivered a male child. On one day, I was sitting in my house, accused came there by holding the axe in his hand, and gave me the threats. Since Daivashala had recently delivered a child, I did not make any counter attack. Thereafter, I returned to Ulhasnagar. Some 15 days thereafter, I received a message on phone that Daivashala was admitted in the hospital by sustaining the burn injuries. Accordingly, I immediately came to village Wagholi, I again say that I came directly to civil hospital, Osmanabad. Daivashala had burn injuries all over on her body. Daivashala was not in a position to talk. Accused was demanding the cow, the partition in landed property belonging to us and also demanding the water-pot and tins of the house. Some 4 days thereafter Daivashala died in the hospital. Daivashala had committed suicide on account of the ill- treatment extended to her. Accused before the court is the same."

PW5 Ramchandra Narayan Magar is spot pancha. His evidence

is at exh.27. Spot panchanama is at exh.28.

PW6 Pramod Arjun Koparde is the Investigating Officer. His

evidence is at exh.29.

PW7 Dr.Dhondiram Dnyanoba Munde is the Medical Officer,

who examined and treated deceased. His evidence is at exh.35.

                                  {9}             CR APPEAL 491 OF 2004




                              ANALYSIS

6. Here there are two sets of evidence; first is oral and second is

two dying declarations.

First let us discuss oral evidence of mother of victim PW3

Subhadrabai, brother PW4 Datta, as relatives of deceased.

ORAL EVIDENCE

7. On appreciating the evidence of PW3 Subhadrabai, mother of

deceased at exh.25, it is emerging that she has deposed that her son-

in-law accused firstly suspected character of her daughter and beat

her under influence of liquor. Accused also demanded partition of

residential house through her daughter and also insisted to bring a

cow for them. Once he gave threats to her son Datta. Three years

back, at around 12:00 Noon, he brought her daughter while beating

her and insisted her to pick up water pot and remove tin roof and

also demanded land by making partition to the extent of share of her

daughter. Initially he stated that Daivashala should not come to his

house unless partition is effected. But still took her to his house.

Later on she learnt that her daughter committed suicide.

While under cross-examination, in paragraph 5, she has

admitted that as she is unable to do work, she does not have any {10} CR APPEAL 491 OF 2004

bullocks, cattle. She also admitted that there is no agricultural land

at village Wagholi and she earned by doing labour work. In

paragraph 7, she denied correctness of portion marked "A" i.e. "FkksM;k

osGkrp nSo'kkyk tGkY;kps letY;kus fryk nok[kkU;kr ?ks Åu xsys gksrs Eg.kwu

nok[kkU;kr vkys-".

8. Now next witness, who is crucial is PW3 Datta @ Maruti,

brother of deceased, and his evidence is at exh.26. According to him,

accused was addicted to liquor. That, he suspected character of his

sister and ill-treat her. He did not permit any person including

himself to enter in his house and did not permit his sister to visit any

other person. Then he reported incident of October, 1999 about

hurling abuses to this witness and complaint being lodged by his own

father. He claims that in May 2000, while he was sitting near the

house, accused came and gave threats. He stated that then after 15

days, he received a message about burns suffered by his sister, but

according to him, she was not in a position to speak. He deposed

that accused was demanding cow, partition in landed property and

also demanded water pot and tin roof of the house.

While under cross-examination, he admitted that there was no

agricultural land in his name or in name of his mother, but again he {11} CR APPEAL 491 OF 2004

volunteered that agricultural land is in the name of his father and

grandfather.

In paragraph 5 of the cross-examination there is material

omission and improvement brought to the extent of accused not

allowing him to meet his sister or he is not allowing her to meet

them.

9. Therefore, on critical analysis of evidence of PW3 Subhadrabai

and PW4 Datta, there seem to be allegations about accused addicted

to liquor, suspecting character of deceased, demanding share in

agricultural land. What PW3 Subhadrabai stated about share in

house is not stated by her own son PW4 Datta, but in cross-

examination both of them have admitted that there is no agricultural

land in their individual name. Therefore, question arises how there

could be demand of partition and share. PW3 Subhadrabai states

that accused demanded cow for them, but she admitted that she had

no live stock at all. However, both PW3 Subhadrabai and PW4 Datta

are consistent that appellant after getting drunk beat Daivashala. He

also suspected her character. Therefore, there is evidence as regards

to offence under Section 498-A of the IPC.

                                    {12}            CR APPEAL 491 OF 2004




                        DYING DECLARATIONS

10. Another piece of evidence are two dying declarations recorded

by PW1 Patil (PHC) and PW2 Koli (Naib Tahsildar) at exh.21 and

exh.24 respectively.

Before adverting to the creditworthiness of dying declarations,

it would be desirable to spell out legal requirements and judicial

precedent to be borne in mind while appreciating multiple dying

declarations.

Very recently, the Hon'ble Apex Court in the case of Abhishek

Sharma v. State (Govt. of NCT of Delhi) reported in 2023 INSC 924,

while deciding Criminal Appeal No. 1473 of 2011, in para 8

discussed its own previous rulings and observations therein which are

borrowed and reproduced as under :

"8.1 This Court adverting in Kamla v. State of Punjab [ (1993) 1 SCC 1, AIR 1993 SC 374] has held:

"5. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests (vide Khushal Rao v. State of Bombay [AIR 1958 SC 22 : 1958 SCR 552 : 1958 {13} CR APPEAL 491 OF 2004

Cri LJ 106] ). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all those cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is to say, if there are more than one dying declaration, they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declaration if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

8.2. In State of Punjab v. Parveen Kumar [AIR 2005 SC 1277, 2005 (9) SCC 769], this court further observed:

"10. .... The court must be satisfied that the dying declaration is truthful. If there are two dying declarations giving two different versions, a serious doubt is created about the truthfulness of the dying declarations. It may be that if there was any other reliable evidence on record, this court could have considered such corroborative evidence to test the truthfulness of the dying declarations..."

{14} CR APPEAL 491 OF 2004

8.3. In Amol Singh v. State of M.P. [AIR OnLine 2008 SC 62, 2008 (5) SCC 468],

"13. ... However, if some inconsistencies are noticed between one dying declaration and the other, the court has to examine the nature of the inconsistencies, namely, whether they are material or not. While scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances."

8.4. Faced with multiple dying declarations, this Court in Lakhan v. State of M.P [2010 (8) SCC 514] observed-

"21. ... In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the court has to scrutinise the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."

This judgment was also referred to by this court recently in Makhan Singh v. State of Haryana (2022) SCC OnLine SC {15} CR APPEAL 491 OF 2004

1019 (2-Judge Bench).

8.5. In Ashabai v. State of Maharashtra [(2013) 2 SCC 224 (2- Judge Bench)] the court observed:-

"15. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other."

8.6. In Jagbir Singh v. State (NCT of Delhi), [2019 (8) SCC 779, AIR 2019 SC 4321] the following principles were observed:

31. A survey of the decisions would show that the principles of declarations can be culled out as follows: ....

31.6. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the declarations emerge.

The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable.

31.7. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in {16} CR APPEAL 491 OF 2004

nature as far as the Accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;

31.8. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the Accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two."

8.7. In Uttam v. State of Maharashtra, [(2022) 8 SCC 576 (2- Judge Bench)] this court observed:

"15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying {17} CR APPEAL 491 OF 2004

declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion."

In para 9, the principles that emerged on consideration of

above rulings, which are observed, are reproduced as under :

"9.1 The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;

9.2 All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;

9.3 When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the {18} CR APPEAL 491 OF 2004

contents of dying declarations.

9.4 The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.

9.5 Each declaration must be scrutinized on its own merits.

The court has to examine upon which of the statements reliance can be placed in order for the case to proceed further.

9.6 When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, subject to the indispensable qualities of truthfulness and being free of suspicion.

9.7 In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc."

11. Having discussed above settled legal position, it would be

further desirable to even reproduce the translated versions of dying

declarations at Exhibits 21 and 24.

Translated version of statement recorded at exh.21 is as

under :

                                       {19}              CR APPEAL 491 OF 2004


                              "STATEMENT

I Daivshala w/o Chandrakant Magar, age 25 yrs, Occupation :

household, Tal. Wagoli, Dist. Osmanabad.

When asked in person at Government Hospital, Osmanabad state that, I have two daughters and one son and residing with my husband and children. I have in-laws too, I have three brothers-in-law, they are residing separately there. I have been married for 7 years. My family is from Wagholi village and I live with my children and husband in the above place. My husband has a habit of drinking alcohol and he always beats me when he is drunk.

Today on date 17.06.2000 at around 12.00 o'clock my husband came to the house consuming liquor and said to me that He said to bring a cow for milk of our little son from your mother or to divide your mother's farm land for us and abused (using filthy language) me. I told him not to abuse her and he beat me with fists and kicked me. He always used to fight and beat me for the above reason, so today at around 10 o'clock, tired of him, I poured kerosene from the stove in the house on myself and lit it with a stick. Due to this, my saree caught fire and my hair, my face, both hands, cheeks, chest, stomach, both legs, thighs and back were burnt. When I started burning, I ran out of the house screaming loudly. Then my brother- in-law Dattatray Magar and the people of the village extinguished the fire by putting clothes on my person. Then my brother-in-law Dattatray Magar and mother-in-law Shantabai took me in a private jeep to the Government hospital, Osmanabad, for medical treatment. The doctor has admitted me and I am currently undergoing medical treatment. I am completely conscious.

However, my husband Chandrakant Magar always beats me up when he is under the influence of liquor and asks me to take my cow and farm from my husband and today at 12 noon, he beat me up with kicks and punches and abused me. Tired of his constant harassment and beatings, I poured kerosene on myself and set myself on fire at around 10 o'clock today. However, I have a legal complaint against my husband.

The above statement of mine is read over to me and it is correct and {20} CR APPEAL 491 OF 2004

true as per my narration.

  Patient is conscious.                                 TI
       Sd/-
  Medical Officer,                           Daivshala w/o Chandrakant Magar
  Osmanabad.
                                                    before me
                                                      sd/-
                                         Police Station Amaldar,
                                         Sadar Bazar,PS, General Hospital,
                                         Osmanabad.(city)"

(As translated by Sr. Translator, High Court, Bench at Aurangabad)

Translated version of dying declaration recorded at exh.24 is

as under :

" Date: 18.06.2000 Time: 00.35 am Exh.24 DYING DECLARATION Myself Daivshala w/o Chandrakant Magar, Age 25 yrs, occupation household work, R/at Wagholi, Tal & Dist. Osmanabad, I am currently undergoing medical treatment and I am completely conscious and narrating the true story of incident as following, I have two daughters and one son and residing with my husband and children. I have in-laws too, I have three brothers-in-law, they are residing separately there. I have been married for 7 years. My family is from Wagholi village. My husband has a habit of drinking alcohol.

Today on date 17.06.2000 at around 12.00 o'clock my husband came to the house consuming liquor and said to me that let us bring a cow for milk of our little son from your mother or to divide your mother's farm land for us and started abusing (using filthy language) me and he beat me with his fists and kicks. He always used to quarrel and beat me for the above reason, so today at around 10 o'clock, tired of his behaviour, I poured kerosene from the stove in the house on my person and lit it with a stick. Due to this, my saree caught fire and my whole body was burnt. When I {21} CR APPEAL 491 OF 2004

started burning, I ran out of the house screaming loudly. Then my brother- in-law, Dattatraya Magar and other people of the village extinguished the fire by putting clothes on my person. Then my brother-in-law Dattatraya Magar and mother-in-law Shantabai took me in a private jeep to the Government Hospital, Osmanabad, for medical treatment. The doctor has admitted me. I have a legal complaint against my husband.

The above statement of mine is read over to me and it is correct and true as per my narration.

TI Daivshala w/o Chandrakant Magar."

(As translated by Sr. Translator, High Court, Bench at Aurangabad)

12. After carefully going through above two dying declarations, it

is emerging that there was alleged episode of beating to deceased on

17-06-2000 at 12:00 noon or so. Alleged immolation is of around

10:00 p.m. Therefore, there is gap of almost ten hours between both

episodes. What exactly happened in the intervening period is not

getting clear. If abetment and inducement is to be attributed, then

the same has to be in immediate proximity to alleged immolation.

Deceased does not mark presence of husband in both dying

declarations. Resultantly, when appellant is not shown to be around,

what triggered the pouring of kerosene on herself and igniting is not

getting clear, hence, charge of offence under Section 306 of the IPC

cannot be straightway accepted. For attracting charge of Section

306 of the IPC, there has to be legally acceptable evidence about {22} CR APPEAL 491 OF 2004

instigation, inducement or abetment. On the contrary, deceased has

stated that because appellant used to beat and fight with her, she

poured kerosene from the stove in the house and ignited herself with

a match stick and then she ran out screaming, but she names her

brother-in-law and mother-in-law shifting her to hospital. No

independent witness is examined to show that appellant was also

present around at 10:00 p.m. when alleged episode of burns took

place. In absence of concrete evidence of appellant to be present at

that point of time, it would not be safe to draw inference, that he

abetted suicide because alleged episode of beating has taken place at

12:00 noon i.e. almost 10 hours earlier. Therefore, it is a case of

benefit of doubt as regards to Section 306 of the IPC is concerned.

13. Perused the impugned judgment. The learned trial Court has

merely held that there is evidence about commission of offence

under Sections 498-A and 306 of the IPC. But trial Court has not

appreciated the available evidence on record in its correct perspective

and thereby committed error in holding appellant guilty for the

offence under Section 306 of the IPC. The essential ingredients for

attracting offence under Section 306 of the IPC are missing in the

present case. However, in the considered view of this Court, learned {23} CR APPEAL 491 OF 2004

trial Court has correctly held appellant guilty for offence under

Section 498-A of the IPC. Taking into account the facts in the case in

hand, punishment of rigorous imprisonment for one year for offence

under Section 498-A of the IPC would be just and proper.

Accordingly, following order is passed :

ORDER

I) Appeal is partly allowed.

II) The conviction and sentence awarded to appellant in Sessions Case No.68 of 2001 by the learned 4th Adhoc Additional Sessions Judge, Osmanabad on 08-06-2004 for the offence punishable under Section 306 of the IPC, stands quashed and set aside.

III) The appellant stands acquitted of the offence punishable under Section 306 of the IPC.

IV) Conviction of appellant for offence under Section 498-A of the Indian Penal Code is hereby maintained.

However Sentence awarded to appellant for offence under Section 498-A of the IPC is hereby modified and reduced to the following effect :

Appellant to suffer Rigorous Imprisonment for one year and to pay fine of Rs.250/-, in default of payment of fine, he should suffer further rigorous imprisonment for one month.

                                      {24}             CR APPEAL 491 OF 2004




      V)    It is clarified that there is no change as regards the order
      in respect of disposal of muddemal.