MOHD.YAMIN, J. - (1.) THIS is petition under Section 482 Cr.P.C. against the order dt. 30.1.1996 passed by the learned Sessions Judge, Rajsamand in Cr. Regular Case No. 14/96 pending in the Court of the Chief Judicial Magistrate, Rajsamand.
(2.) I have heard learned counsel for the petitioner as well as counsel for non-petitioner No. 2 Smt. Tamu Bai and the learned Public Prosecutor. Facts may be briefly stated. Smt. Lila was admitted in General Hospital, Udaipur and she gave statement to the Station House Officer, Rajsamand on 10.1.1994 to the effect that she was married to Madhav Lal and was happily living with him. Smt. Tamu Bai was her mother-in-law. She used to harass her and even gave beatings on account of house-hold chores. She decided to live separately in the same house. On 15.1.1994 when she was cooking vegetables in kitchen, she poured kerosene oil from the stove and burnt herself. After investigation challan was presented under Sections 306 and 498-A of Indian Penal Code. The case was committed to the learned Sessions Judge and after hearing arguments on charge, he discharged the petitioner from the offence under Section 306 IPC but found that a case under Section 498-A IPC was made out against the petitioner. He therefore passed an order under Section 228 Cr.P.C. and remitted the case to the Chief Judicial Magistrate, Rajsamand to try Tamu Bai under Section 498-A IPC. Ramesh Chandra, brother of Lila, submitted this petition under Section 482 Cr.P.C. Counsel for the petitioner submitted that the learned Sessions Judge committed an error by discharging Tamu Bai from the offence of Section 306 IPC. It is also submitted that the learned Sessions Judge has not correctly appreciated the ruling relied by him, Mahendra Singh and another v. State of M.P., 1995 Supp (3) SCC 731 is not applicable. In this citation, the deceased committed suicide and her dying declaration read as follows : "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in- law. Because of these reasons and being harassed I want to die by burning."
(3.) IN this citation word "abetment" as used in Section 107 IPC has been considered to mean that a person abets the doing of a thing who firstly instigates any person to do a thing, or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. The dying declaration was considered keeping in view of this provision. It was held that neither of the ingredients of abetment are attracted on the statement of the deceased. Therefore, the accused-appellant was acquitted from the offence under Section 306 IPC. Learned counsel for the petitioner submitted that statement of Smt. Lila which comes within the definition of dying declaration is that her mother-in-law used to abuse her and her parents every day and quarrelled, she was not in a position to do agricultural work. She was married 8 years ago. She used to do agricultural work for two or two and a half years. Thereafter she stopped doing so. Her mother-in-law was not happy. On the day of incident her mother-in-law abused her parents which she could not tolerate; therefore, she poured kerosene oil on herself and burnt.;