JUDGMENT

Anuja Prabhudessai, J. - Heard learned Counsel for respective parties.

2. This appeal filed under Section 374 of the Code of Criminal Procedure, is directed against the judgment and order dated 16.12.2008 in Sessions Case No.33 of 2004 whereby learned Additional Sessions Judge, Gadchiroli convicted the Appellant/Accused for the offence punishable under Section 498-A and 306 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- in respect of offence under Section 498-A of the Indian Penal Code and rigorous imprisonment for 5 years and fine of Rs.2,000/- for the offence punishable under Section 306 of the Indian Penal code. The Appellant shall be hereinafter referred to as 'the Accused".

3. The case of the prosecution in brief is that the Accused was married to Nirmala, who was his second wife. It is the case of the prosecution that the Accused used to beat and ill-treat his wife Nirmala as she was unable to conceive and he was interested in marrying again. Said Nirmala consumed poison on 03.05.2003. She was shifted to the Hospital, but she died on the same night at about 12.00 pm. The Post Mortem over the body of the deceased was conducted and the viscera was preserved for chemical analysis and opinion to cause of death was reserved.

4. P.W.2-Mangal, father of the deceased, lodged the First Information Report on 05/05/2003 at Exhibit 18 alleging that his daughter had committed suicide because of the ill-treatment meted out to her by the Accused. Based on the said First Information Report, Crime No.92 of 2003 was registered against the Accused for offences under Section 498-A and 306 of the Indian Penal Code.

5. The Investigating Officer conducted the spot panchnama and recorded the statements of the witnesses. He also forwarded the viscera and other incriminating material to the Forensic Laboratory, State of Maharashtra for chemical analysis. As per the report of the Chemical Analyzer, Organochloro insecticide Endosulfan (Thiodan) and petroleum hydrocarbons was found and it was opined that it was a fatal poisoning case involving Endosulfan. Upon completion of investigation, the Investigating Officer filed the charge-sheet against the Accused for offences punishable under Sections 498-A and 306 of the Indian Penal Code.

6. The case being sessions triable was committed to the Court of Sessions. The Charge was framed against the Accused to which the Accused pleaded not guilty and claimed to be tried. The Prosecution in support of its case, examined seven witnesses. The statement of the Accused was recorded under Section 313 of the Code of Criminal Procedure. The Accused denied having ill-treated his wife Nirmala. The defence of the Accused was that said Nirmala was used to be in disturbed state of mind for not being able to conceive and that she had committed suicide in the state of depression.

7. Learned Judge relied upon the evidence of PW-2 - Mangal, PW-5 - Bebitai and PW-7 - Pramila to hold that the Accused was ill-treating the deceased since her marriage. The learned Judge also relied upon the oral dying declaration allegedly made by the deceased to P.W.5 - Bebitai in presence of P.W.6 Meenabai that she had committed suicide because she was beaten by the Accused and it was unbearable. The learned Judge held that non-examination of the Investigating Officer was not fatal to the prosecution as no prejudice was caused to the Accused. Learned Judge concluded that the evidence on record proves beyond reasonable doubt that the deceased was unable to conceive, for which reason, Accused wanted to remarry. It was for these reasons that she was subjected to cruelty. Learned Judge further held that the deceased had committed suicide by consuming poison because of the ill-treatment meted out to her. Learned Judge therefore held that the Accused had abeted the suicide and hence, held him guilty for offences punishable under Sections 498-A and 306 of the Indian Penal Code