A.M. Khanwilkar, J.
1. This appeal takes exception to the judgmentand order passed by the Additional Sessions Judge,Sangli, dated January 21, 1987 in Sessions Case No. 26 of1986, whereby the Respondent-original accused wasacquitted of the charge of having committed offencepunishable under Sections 498A and 306 of the IndianPenal Code.
2. Briefly stated, the prosecution cases is thatthe Respondent treated his wife deceased-Kamal withcruelty, who committed suicide within 3 years from themarriage thereby induced, abetted and facilitated her tocommit suicide on 20th November 1985 at village TambhaveDhandbag, Taluka Islampur, Dist. Sangli. The accused isresident of village Tambhave Dhandbag in Taluka Islampurand is an agriculturist by occupation. The deceasedkamal hailed from Bombay and was the daughter of P.W.-2Shakuntla. The incident in question occurred on 20thNovember 1985 within around 2/3 years of the marriagebetween accused-Tanaji and deceased-Kamal. The chargeframed against the accused reads thus:
'That you being the husband of deceasedSou. Kamal Tanaji Shalke of lambayeDhandbhag subjected her to cruelty i.e.to wit, you harassed her from the dateof marriage which took place 3 yearsago till the date of incident i.e. on20.11.85 with a view to coerce her, andthat she should coerce her relation tomeet your unlawful demand of amount andclothes or valuable security and due toon account of their failure to meetsuch demands subjected her to crueltyand that by your wilful conduct ofbeating her and threatening her to takeher life and such other acts of gravenature as were likely to drive her tocommit suicide and you therebycommitted an offence punishable underSection 498-A of I.P.C. and within mycognizance.
And I further charge you, thatyou from the date of marriage till theincident i.e. on 20.11.85 at IambaveDhandbhag harassed and treated the saidKamal with cruelty and you therebyinduced and abetted her and therebyfacilitated her to commit suicide, andin pursuance of the said abetment saidKamal did commit suicide on 20.11.85 ator about 2 p.m. by pouring cook oil onher clothes and by setting fire as aresult of which she succumbed to deathon 30.11.85 and you thereby committed aoffence punishable under Section 306 ofI.P.C. and within my cognizance.'
3. The prosecution examined P.W.-1 TalukaExecutive Magistrate, who had recorded the statement ofthe deceased-Kamal on 20.11.1985, when she was admittedto hospital after the attempt of committing suicide.This statement has been proved by P.W.-1 and is broughton record as Exh.11. Besides, the Prosecution examinedP.W.-2 Shakuntla, the mother of the deceased-Kamal. Thecase as unfolded on the basis of the statement. Exh.11recorded by P.W.-1 is that the deceased-Kamal madegrievance that 2/3 days prior to the date of incidenther husband had pressed her throat and slapped herbecause she did not remove grass from firewood. Thedeceased further stated before him that on 20th November1985, accused threatened her that he would cut her neckby knife as she failed to cover the pot containing cowmilk and on account of which some ash hard fallen in themil. It is further stated that on account of the saidthreat given by the accused she became crazy andattempted to end her life by pouring kerosene on herbody and setting herself on fire in the super cane cropin the nearby land. In the process she suffered (SIC)burn injuries. In her statement she revealed that onaccount of torture and torment meted out to her due toher inefficiency in performing agricultural work shedecided to end her life. On the basis of saidstatement. P.W.-3 registered the offence on the sameday. On the next day, i.e. on 21st November, 1985 P.W.3visited the scene of offence and attached article suchas Kerosene bottle, burned saree, burned petticoat andsickle from the spot, for which panchnama was drawn atExh.6 It has come in evidence that deceased-Kamalsuccumbed to the injuries on 30th November 1985. It isonly thereafter, P.W.-3 the Investigating Officerproceeded to record the statements of the father, motherand maternal cousin of the deceased on December 3, 1985.As seen from the complaint Exh. 14, he has recordedstatements of persons who were stated to be on the sceneof offence, namely, Akkatai Bhagwan Lokhande and HirabaiShamrao Fasale as well as brother in law and sister inlaw, namely, Bhimrao Shamrao Shelke and Chandra Shalke.However, those persons have not been examined during thetrial. No reason is forthcoming for their nonexamination. The Prosecution, as aforestated, hasexamined P.W.-1 Taluka Executive Magistrate who hasdeposed the fact that he had recorded the statement ofthe deceased-Kamal on 20th November 1985 as per theinformation given by her to him in the presence ofMedical Officer Yadav. For establishing the allegationof cruelty, the Prosecution has relied on the evidenceof P.W.-2, who is the mother of the deceased. In herexamination-in-chief she alleges that till one yearafter the marriage the couple had cordial relations, butafter one year accused started beating his wife andstarted tormenting her. She has further deposed thatthe deceased used to tell her about the treatment metedout to her by the accused and also told her not todisclose the said fact. She has further deposed that 6months prior to the death of Kamal, the accused wasdemanding money and valuable securities such as clothes.She further deposed that the accused was ill-treatingher wife and she had noticed wheel marks on the back ofthe deceased 6 months prior to her death. The accusedhad denied the charge and claimed to be tried. At theconclusion of the trial, the Sessions Court by judgmentdated January 21, 1987 recorded the order of acquittalin favour of the accused on both the counts, holdingthat the Prosecution had failed to bring home the guilt.The trial court has mainly discarded the evidence ofP.W.-2 as in its view the same was 'hearsay' evidenceand, therefore, inadmissible in law. In so far thestatement recorded by P.W.-1, purported to be the DyingDeclaration, Exh. 11, the court has observed that thequestion regarding the cause of death was not in issueand, therefore, the said statement would beinadmissible, having regard to the provisions of Section32 of the Evidence Act. Having discarded the saidstatement as well as the evidence of P.W.-2 as hearsay,the trial court found that there was no other legalevidence to record the finding of guilt against theaccused of the alleged offence. Accordingly, the trialcourt proceeded to record acquittal in favour of theaccused, which decision is the subject matter of thechallenge in the present appeal.
4. Ld. A.P.P. contends that the approach ofthe trial court in discarding the oral evidence ofP.W.-2 is inappropriate. According to him, the evidenceof P.W.-2 cannot be said to be hearsay evidence but wasin the nature of direct evidence and was, therefore,admissible. He further contends that the trial courthas also committed error in discarding the dyingdeclaration as inadmissible. he contends that thestatement narrated by the deceased before P.W.1 wasdisclosed by the P.W.-1 before the court as having beenrevealed to him by the deceased herself, therefore, wasrelevant evidence and in the nature of direct evidencewith regard to the said fact. According to him,therefore, there was legal evidence to proceed againstthe accused. He has further submitted that the evidenceas has come on record was more than sufficient to recordthe finding of guilt against the accused on both thecounts.
5. On the other hand, Ld. Counsel for theaccused contends that assuming that the view taken bythe trial court that the evidence of P.W.-2 is hearsayevidence and inadmissible is inappropriate, even thenhaving regard to the nature of evidence which has comeon record, by no stretch of imagination finding of guiltcan be recorded against the accused either under Section498-A or 306 of Indian Penal Code. He submits thatsince this is an appeal against the acquittal, thecourt, no doubt, could re-appreciate the evidence butthen the court should be slow in interfering with theorder of acquittal unless it is possible to rule thatthe decision of the trial court is manifestly wrong orwould cause miscarriage of justice.
6. Having considered the rival submissions,since Mr. Ingale for the accused has fairly submittedthat it is not possible to hold that the evidence ofP.W.-2 is in the nature of hearsay, it is not necessaryfor me to burden my judgment with that aspect, which hadweighed with the trial court. However, it cannot bedisputed that the trial court has not analysed orevaluated the evidence of P.W.-2 having found the samewas in the nature of hearsay. Therefore, it will be now necessary for this court, for the firsttime, to undertake the exercise of evaluating theevidence of P.W.-2. Before doing so, I would like torevert back to the said statement recorded by P.W.-1,Exh.11, which is stated to be the Dying Declaration. Inthe said declaration only allegation made by thedeceased as can be discerned, reads thus:
'.....Prior to 2-3 days my husbandpressed my throat and slapped me on thecount, because, I did not remove the grassfrom near fuel wood, and bet me.
Today morning on 20.11.1985,I did not but cover on the cow-milk and soash fell in the milk and my husband said methat he would cut my neck by knife. Onaccount of such talking. I became crazy andat noon time, about 2.00 p.m., I went to theland near my house in the sugar cane crop,I poured kerosene on my person and setmyself on fire by matchies......My husband admitted mein the Krishna Hospital Karad, bringing me byTaxi. On account of torture and torment tome by the husband and on account ofnon-efficiency in agricultural work I gotpoured Kerosene on my person and set myselfon fire. I have no suspicion or doubt toanybody. I have no use to alive hence I setmyself on fire. Due to cruelty of myhusband I myself set on fire.....'
7. The statement so recorded has been proved byP.W.-1, the Taluka Executive Magistrate. P.W.-1 wascross examined but there is nothing in the crossexamination so as to discard his version that thestatement of the deceased was recorded by him when shewas conscious and was in a fit state of mind. Even thetrial court on analysing the evidence has recorded afinding in paragraph 12 of the judgment in that behalf.There is no infirmity in the said finding recorded bythe trial court.
8. However, the question is whether thecontents of said statement can be said to besufficient so as to record finding of guilt against theaccused within the meaning of Section 498-A of the Act?Before dealing with that aspect, I would now advert tothe evidence of P.W.-2. The P.W.-2 in theexamination-in-chief in para 2 thereof has admitted thatafter the marriage for almost one year relations betweenthe deceased and the accused was cordial. This witness,however, has made following allegations, which is theonly material brought on record against the accused,which reads thus:
'After the year, accused started givingbeating to his wife Kamal and started totorment her. Deceased Kamal used to tell meabout the treatment meted to her by theaccused and was also telling me not todisclose to my house. Six month prior toher death, deceased had come to our house.The accused was demanding money and wantedvaluable securities such as clothes. Alsothe accused was ill-treating his wife Kamal.When deceased Kamal had come, to our house,six months prior to her death. I had seenwheel marks on her back.'
P.W.-2 has been cross-examination. Suggestionhas been put to her that that the deceased was eccentricand hot tampered woman and she did not approve hermarriage with the accused. During thecross-examination, above referred allegation made by theP.W.-2 in the examination-in-chief has been suggested tobe false by the defence, which, however, has been deniedby P.W.-2. During the cross-examination suggestion wasalso given that the but in which couple was living gotfire end the accused meted out ill-treatment to thedeceased-Kamal on account of the burning of the hut.What is relevant to note is that this witness hasadmitted that she did not complain to the police againstthe accused. It is already noticed that the incident inquestion occurred on November 20, 1985 on which date theF.I.R. came to be filed. However, statement of P.W.-2was recorded on December 3, 1985, only after the deathof Kamal on November 30, 1985. Even after gap of morethan 14 days the witness has not complained to thepolice against the accused. Besides P.W.-2, the otherwitnesses examined by the Prosecution is P.W.-3, theInvestigating Officer. However, that evidence cannotestablish the allegation made against the accused forhaving committed the alleged offence. In substance, theonly evidence that has come on record is of P.W.-2 andthe statement recorded by P.W.-1. The relevant portionof both these evidence is already reproduced above.Even on close reading of the said statements, it is notpossible to suggest that the accused by his willfulconduct, which is of such a nature as was likely todrive the deceased to commit suicide. Ld. Counsel forthe Respondent-accused has rightly placed reliance onthe decision of the Apex Court reported in : 2000CriLJ4672 , in the case of Rajarani v. State. In paragraph5 of that decision the Apex Court has observed that itis not enough that the deceased felt those wordshurting, it must be subjected to judicial scrutiny andthe court must be in a position to hold that those wordswere sufficiently hurting enough as to amount to'cruelty' falling within the parameters fixed in Section498-A of the Indian Penal Code. Taking the prosecutioncase as it is, it only reveals that the accused had, onthe date of incident, threatened the deceased that hewould cut her neck by knife. Besides, the evidencewould further reveal that 2/3 days prior to the date ofincident the accused had possed the throat of thedeceased and slapped her. Both these incidents tookplace because of the quarrel between the husband andwife on account of her inability to handle the domesticwork properly. That by itself, as rightly contended onbehalf of the accused, cannot be suggestive of the factthat it was of such a nature so as to drive the wife tocommit suicide. There is absolutely no legal evidencemuch less corroborated by independent witness to showthat such ill-treatment was meted out to the deceased bythe accused repeatedly. The record indicates that theInvestigating Officer had examined some of the personswho were found to be on the scene of offence, but thosepersons have not been examined and no reason isforthcoming. Ld. Counsel for the accused has alsorightly placed reliance on the decision of the ApexCourt reported in (2001) 9 SCC 518 Ramesh Kumar v.State of Chhattisgarh, is particular in para 8,wherein it is observed that leasing by theaccused of the deceased, ill-treating her for hermistakes which could have been pardonable. Strongreliance has been placed on the above enunciation tocontend that the Prosecution evidence even if acceptedas it is, would only indicate that the accusedill-treated the deceased on account of her mistakes indischarge of her domestic work properly. Besides, thesuggestion has, also been put during thecross-examination to P.W.-2 that the deceased theeccentric and hot tempered woman. No doubt, thatsuggestion has been denied by P.W.-2. It is, therefore,probable that the deceased must have re-acted in a fitof anger or emotions and the alleged conduct of theaccused was not one intending the consequences to flowtherefrom. If that is so, it necessarily follows thatthe Prosecution has failed to bring home the guilt andthe allegation of cruelty against the accused within themeaning of Section 498-A or for that matter Section 306of the I.P.C. It needs to be mentioned that theallegation regarding demand of property or valuablesecurity has not been corroborated at all. Moreover,even the Ld. APP was not able to point out any materialthat would persuade this court to record finding ofguilt against the accused on that basis. In thecircumstances, the only question that needs to beexamined in the present case and as discussed above iswhether the alleged conduct of the accused was of such anature as was likely to drive the deceased to commitsuicide? To my mind, the general nature of allegationswhich have come on record cannot be the basis to draw aninference against the accused, and therefore, it is notpossible to conclude that the Prosecution hasestablished beyond reasonable doubt that the accusedsubjected the deceased to cruelty within the meaning ofSections 306 or 498-A of the I.P.C.
9. According to the Ld.APP to DyingDeclaration was clearly indicative of the fact that thedeceased was subjected to repeated torture andfomentation by the accused and the deceased has,therefore, disclosed that she wanted to commit suicidebecause of that cruelty meted out to her. Once again,it is not possible to accept this submission because thenature of allegation about ill-treatment as has come inthe statement is too routine, which can be very commonlyobserved in the families such as the accused and thedeceased, who were small time agriculturists and livingin a hashed but in remote village. Those instances ofill-treatment were obviously on account of the mistakescommitted by the deceased in her domestic activities andagricultural work. If, the deceased was ill-treated forsuch lapses, it cannot be inferred that theill-treatment was of such a nature that it would likelyto drive the wife to commit suicide so as to attract therigours of Section 306 or 498-A of the I.P.C.
10. In my view, therefore, it will not bepossible to upset the ultimate conclusion reached by thetrial court in recording the order of acquittal infavour of the accused on both the counts, in as much asit is well settled that the offence under Section 498-Aand one under Section 306 are independent and constitutedifferent offences. There is no material on record evenremotely to suggest that that there was instigation,Ld. Counsel for the accused has rightly relied on thedecision in Rameshkumar (Supra) to buttress hiscontention that there is no legal evidence to assumethat the accused had indulged in instigation and,therefore, abetted in the commission of suicide by hiswife. Understood thus, this appeal is devoid of meritsand the same, therefore, deserves to be dismissed.
11. Accordingly, this appeal is dismissed.