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CASE NO.: Appeal (crl.)  292 of 2007

PETITIONER: Sanjay

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 08/03/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T (Arising out of SLP(Criminal) No. 5397/2006)

MARKANDEY KATJU, J.

       Leave granted.

       This appeal has been filed against the impugned judgment  of the Bombay High Court (Nagpur Bench) dated 17.8.2006 in  Criminal Appeal No.135 of 1996.

       Heard learned counsel for the parties and perused the  record.

       The facts of the case are that the father of the appellant  and the father of Seema were serving in Forest Department.   They were also related.  The appellant and Seema fell in love  with each other.  However, since they were within the  prohibited degrees of relationship, the parents of both the  appellant as well as Seema were against their marriage.  Hence  the appellant and Seema eloped from their parental houses and  got married at Katol on 9.4.1991.  After marriage they came  back to Mouda.  For some time, they resided separate from the  appellant’s parents, but after intervention of some relatives,  they went to reside with the parents of the appellant.  However,  they could not pull on there for long and they again started  residing separately in a rented house owned by one Sunil  Anandrao Nimje.           The appellant has a shop of electronic goods and he is  also doing the work of repairing T.V. and giving cable  connections.  His shop is just in front of the rented premises.

       On 21.2.1992 the appellant and Seema were blessed with  a son namely Mandar.  However, it is alleged that the relations  between the appellant and Seema did not remain cordial.  It  was noticed by Seema that the appellant returned late at night  and that too in a drunken state.  The appellant also neglected  his business.  He started neglecting his wife Seema and son  Mandar.  Seema complained to her parents by sending them  letters.

       On the fateful night intervening between 28.12.1994 and  29.12.1994, it is alleged that the appellant returned home in the  midnight in a drunken state.  There was a quarrel between him  and Seema with the result that Seema poured kerosene on her  person and set herself ablaze.  She was immediately taken to

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the hospital of Dr. Chandak in Nagpur and thereafter to  Government Medical College and Hospital, Nagpur.

       On 29.12.1994 in the noon, H.C. Pimpalkar (PW-6)  recorded the dying declaration of Seema (Ex.51).  On the same  day in the afternoon, Shri Manekar, Executive Magistrate  (PW-9) recorded her dying declaration (Ex.61).  On the next  day i.e. on 30.12.1994, H.C. Nirgulkar (PW-4) recorded her  statement (Ex.40).  On 5.1.1995, Seema succumbed to the burn  injuries.  The post mortem examination revealed that the burns  were 79% and the cause of death was septicimea as a result of  infected burns.

       Initially offences under Section 498-A read with Section  34 of I.P.C. were registered at P.S. Mouda and subsequently  offence under Sections 306/34 of I.P.C. was added.

       The trial court after considering the evidence held that the  offences have been proved against the appellant but acquitted  the appellant’s father and mother.

       Against the said judgment the appellant filed an appeal  which has been dismissed by the High Court and hence this  appeal by special leave.

       In our opinion this appeal deserves to be allowed by  giving the benefit of doubt to the appellant.  The only evidence  against the appellant are the three alleged dying declarations of  the appellant’s wife Seema.  In the first dying declaration  Seema stated that while she was pumping the stove it suddenly  burst and her saree caught fire.  She shouted loudly and then  her husband rushed towards her and extinguished the fire by  pouring water on her.  This is the first dying declaration and  nothing has been alleged against the appellant in it.  Rather it  shows that the appellant tried to save his wife Seema.  In the  subsequent dying declaration Seema is said to have stated that  she poured kerosene on her in person and set herself ablaze  because she was angry with her husband.                  The prosecution version is that the subsequent dying  declarations made by Seema alleging that she committed  suicide because there used to be quarrels between her and her  husband (the appellant) are corroborated by two letters alleged  to have been written by Seema to her parents.  The first letter  (Ex.28) appears to be dated 24.1.1994.  It shows that her  husband (the appellant) does not behave properly with her, he  daily returns home late at night in a drunken state and because  of it there used to be quarrels between her and the appellant.   She also expressed in the said letter that the appellant was also  willing to give her divorce.  Seema expressed that she felt  repentful as she married the appellant of her own will.  She  further expressed that she felt no charm in leading such life.         Another letter (Ex.29) is dated 26.7.1994 i.e. about five  months before the incident of suicide.  The said letter reiterates  the same state of affairs mentioned in the earlier letter (Ex.28).   The evidence of PW-1 Vimal (the mother of Seema) and PW-2  Wamanrao (the father of Seema) corroborates the unhappiness  faced by Seema.  Hence it is alleged that the so called first  written dying declaration (Ex.51) would not render the  voluminous evidence untrustworthy.  

       The trial court, as well as High Court, were of the view  that the evidence on record shows there was cruelty on the part  of the appellant which drove his wife to suicide.  

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       In our opinion in view of the different dying declarations  it would not be safe to uphold the conviction of the appellant  and we have to give him the benefit of doubt.  It cannot be said  in this case that the prosecution has proved the appellant’s guilt  under Section 306 I.P.C. of abetting the suicide beyond  reasonable doubt.

       For the reasons given above the appeal is allowed.  The  judgments of the High Court and trial court are quashed.  The  appellant is directed to be released forthwith if not wanted in  connection with any other case.