IMPORTANT POINT
The court established that mere allegations of harassment without direct evidence of instigation or cruelty do not suffice for conviction under Sections 498-A and 306 IPC.

JUDGMENT :

1. The correctness of the judgment and order of conviction dated 16.05.2002 rendered by learned Additional Sessions Judge, Aurangabad in Sessions Case No. 253 of 2000, convicting present appellant for offence punishable under Sections 498-A and 306 of the Indian Penal Code [IPC] is under challenge.

FACTUAL MATRIX

Prosecution version :

2. Deceased Shahana Begum was married to present appellant and after marriage, she came to reside with her husband and in-laws. Initially everything was smooth, but subsequently there was ill- treatment at the hands of accused persons. They suspected her fidelity and beat her. Two years after marriage, because of said ill-treatment, she had consumed phenyl and therefore, was brought back by her father PW5. After compromise, she came back to reside with husband and in-laws, but again ill-treatment began. According to prosecution, on 29.05.2000, husband beat her by suspecting her character. Finally, getting fed up of the same, she immolated herself and suffered 92% burns. PW3 Special Executive Magistrate recorded her dying declaration on the strength of which, crime was registered.

3. Shahana Begum succumbed to the burns and therefore, investigation was carried out by PW9, who, after gathering sufficient evidence, chargesheeted accused persons for commission of offence punishable under Sections 498-A and 306 of IPC.

4. Case being exclusively triable to the court of sessions, was on the file of Additional Sessions Judge, Aurangabad, who commenced trial vide Sessions Case No. 253 of 2000 on the charge of commission of offences punishable under Sections 498-A and 306 of IPC. After appreciating the oral and documentary evidence adduced by prosecution, learned trial Judge, by judgment dated 16.05.2002, acquitted accused nos. 2 and 3 from all charges, but convicted husband i.e. present appellant for commission of offence punishable under Sections 498-A and 306 of IPC, giving rise to the present appeal.

SUBMISSIONS

On behalf of the appellant :

5. Criticizing the judgment of conviction, learned counsel for the appellant pointed out that prosecution had miserably failed to bring home the charges. According to him, neither ingredients for commission of offence under Section 498-A, nor 306 of IPC, as contemplated by law, are available in the prosecution evidence. He pointed out that on the same set of evidence, accused nos. 2 and 3 are already acquitted by learned trial court, but accused no.1 husband alone is held guilty. He pointed out that apparently, deceased had suicidal tendency. Initially also she had attempted to end up her life without any just and reasonable cause. He pointed out that even regarding second episode of burns, husband appellant was not in the house and it is so evident from the very dying declarations.

6. Challenging the veracity of dying declarations, learned counsel for the appellant submitted that firstly, the dying declarations are undated, and secondly, there is no endorsement of fitness of deceased to give statement, that too when she had allegedly suffered 92% burns. He took this Court through all three dying declarations Exhibits 26, 35 and 39 and submitted that dying declarations are recorded in Marathi whereas deceased was only conversant with Urdu. There is no remark or statement in the dying declaration that statement was read over to deceased. According to learned counsel, this was fatal to the prosecution.

7. On this count, learned counsel for the appellant takes recourse to the following rulings of the Hon’ble Apex :

1. Laxman v. State of Maharashtra 2002 Cri.L.J. 4095.

2. P. Mani v. State of T.N. AIR 2006 SC 1319.

3. Kanti Lal v. State of Rajasthan AIR 2009 SC 2703.

4. Sanju alias Sanjay Singh Sengar v. State of M.P. AIR 2002 SC 1998.

5. State of Maharashtra v. Sanjay D. Rajhans AIR 2005 SC 97.

6. Tukaram Dashrath Padhen v. State of Maharashtra 2013 Cri.L.J. (NOC) 113 (Bom.) (Nagpur Bench).

7. Ashok Pandurang Jadhav v. State of Maharashtra 2011 (4) AIR Bom R 10.

8. Radhakisan