In cases of abetment of suicide, there must be clear mens rea and active instigation or aid, and the prosecution must prove the mental and physical fitness of the deceased at the time of making the dying declaration.

1. This appeal has been directed against the judgment and order passed by the learned Additional Sessions Judge, Kelapur in Sessions Trial No. 325 of 2002 (Old Case No. 168 of 2001) delivered on 30-06-2003, thereby the learned trial Judge had convicted appellant no. 1 (accused no. 1Manda (since dead)) and the appellant no. 2 (accused no. 2) under Section 498A r/w 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/- each, in default to suffer imprisonment for six months. The appellants were further convicted for the offence punishable under Section 306 r/w 34 of the IPC and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 500/- each, in default to suffer imprisonment for six months. During the pendency of the appeal appellant no. 1-Smt. Manda died on 22-02-2005 and the appeal against her abated vide order dated 14-06-2007.

2. I have heard Mr. M.I. Dhatrak, the learned Counsel for the appellant and Mr. S.B. Bissa, the learned Additional Public Prosecutor for the State.

3. The facts leading to prefer this appeal can be summarised as under:

The appellant (accused no. 2) was married with Jyoti on 24-05-2001. The victim was daughter of Indrajeet Kubade (PW-1). The appellant and the victim were related to each other. After the marriage Jyoti went to cohabit with her husband at Ralegaon. Her parental place was Katkhed. It is the case of the prosecution that, on the occasion of ‘Akhadi’ the father of Jyoti (PW-1) went to fetch Jyoti at Ralegaon. Jyoti accompanied her father and went to Katkhed. The appellant had a talk on telephone with Jyoti as well as PW1. It is the case of the prosecution that, the appellant told on phone to Jyoti that she had left his house without his consent and she should not return back to the matrimonial house. Therefore, on the next day at 9.00 am, PW1 along with Jyoti came to Ralegaon. The father of the appellant objected as to why Jyoti had come to their place. At about 5.00 pm, PW1 alone returned back to Ralegaon. PW1 then received a telephonic message that Jyoti was burnt and she was admitted in the hospital at Yavatmal. Therefore, PW1 rushed to the hospital. He noticed that Jyoti was completely burnt. On making enquiry with Jyoti, Jyoti informed him that due to the ill-treatment at the hands of the appellant she got annoyed and set herself on fire in the compound of the house of the appellant. At the relevant time, APIKadu was attached to Ralegaon Police Station. It appears that he came to know about the said incident. Therefore, he attended the hospital and recorded the statement of Jyoti. On the basis of the said statement (PW5) API-Kadu registered the offence under Section 498A r/w 34 of IPC. Thereafter, the Special Executive Magistrate recorded the statement of Jyoti on 24-06-2001 at about 4.30 pm i.e. on the same day. Jyoti succumbed to the injuries on 26-02-2001. The dead body of Jyoti was sent for autopsy. The cause of death revealed as ‘septicemia due to burn’. It is noticed that Jyoti had received 87% burn injuries. After recording the statement of relatives of witnesses and conducting the investigation charge sheet was filed in the Court of JMFC, Kelapur. The learned trial Judge framed the charge. After conducting the trial and on analysis of the evidence, the learned trial Judge convicted the appellant/accused as aforesaid. The defence of the appellant was of total denial.

4. Mr. M.I. Dhatrak, the learned Counsel for the appellant vehemently argued that the dying declarations relied upon by the prosecution are shrouded with suspicious circumstances and serious infirmities and there is absolutely no evidence on record to show that deceased Jyoti was physically and mentally fit while making her dying declaration.

5. The Mr. S.B. Bissa, the learned APP contended that the learned trial Judge has rightly convicted the appellant on relying upon the dying declarations and the evidence of the father