Bombay High Court
Ravindra Tejram Parshuramkar vs State Of Mah. Through Its Police Station ... on 11 July, 2018
Author: Swapna Joshi
Bench: Swapna Joshi
apeal50.18.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.50 OF 2018
Ravindra Tejram Parshuramkar,
Aged 28 years, Occupation-Labour
and resident of Ward Number 3,
Channa Road, Navegaon Bandh,
Taluka-Moregaon Arjuni,
District-Gondia. .. APPELLANT
(In Jail)
VERSUS
State of Maharashtra, through
its Police Station Officer,
Navegaon Bandh, Taluka-
Moregaon Arjuni,
District-Gondia. .. RESPONDENT
..........
Shri M.N. Ali, Advocate for the Appellant,
Shri I.J. Damle, Addl. Public Prosecutor for the Respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 11.07.2018.
ORAL JUDGMENT
1] This appeal has been directed against the judgment and order dated 15.1.2018 delivered by the learned Additional Sessions Judge, Gondia in Sessions Trial No.35/2015 whereby the learned Additional Sessions Judge has convicted the appellant (hereinafter referred to as the 'accused') for the offence ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 2 punishable under section 498-A of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1000/- in default to suffer simple imprisonment for one month. The accused was further convicted for the offence punishable under section 306 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.2000/- in default to suffer simple imprisonment for two months.
2] The prosecution case, in brief, is as under :
The complainant Smt. Meerabai Uddhavji Sonwane, resident of Bhagwanpur, Tahsil-Kurkheda, District-Gadchiroli was having five daughters. Deceased Nalu was her youngest daughter. Nalu got married with the accused on 3.4.2012. After marriage, Nalu started residing with her husband and in-laws at Navegaon Bandh, District-Bhandara. After two to four months of the marriage, Nalu started complaining against her husband to her parents. Nalu complained to her mother that husband and in-laws were ill-treating her. She informed that her husband used to abuse her for household work and he used to say that she is dark in complexion and dwarf and her parents had not given sufficient gifts in the marriage and the sofa and alimarh which were given were not good. Her husband used to abuse her and assault her. The complainant however pacified her daughter and sent her to her matrimonial home. At the time of 'Holi' festival in the year 2013, the accused consumed liquor and assaulted Nalu. He also threatened her that he would arrange for killing her mother and brother. He ousted Nalu from his house. At that time, Nalu ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 3 contacted the complainant on telephone, so also the accused also contacted the complainant and asked her to take Nalu with her. The complainant then along with her son-in-law Maruti Zode went to Navegaon Bandh. At that time, the accused asked the complainant to take Nalu with her, otherwise he would commit suicide. On this, the complainant brought Nalu to her house at Bhagwanpur. At that time, Nalu was carrying two months' pregnancy. Nalu then stayed with the complainant for about two months. On 1.5.2013, there was a marriage of sister of Nalu. At that time, the accused attended the said marriage. He told the complainant that he would not ill-treat Nalu any more and thereafter he took Nalu with him to Navegaon Bandh. After few days, Nalu again made a phone call to her mother and informed her that accused used to abuse and assault her by consuming liquor. At that time, Nalu was carrying a pregnancy of seven months. In August, 2013, the accused consumed liquor and assaulted Nalu on her abdomen. Nalu again contacted the complainant on telephone about the said incident. It is the case of the prosecution that the neighbour took Nalu in the hospital of Dr. Kapgate. She was admitted in the hospital of Dr. Kapgate and further she was taken to the Primary Health Center (PHC) at Navegaon Bandh. Nalu was further admitted in Bai Gangabai Women Hospital at Gondia. The complainant then went to the hospital at Gondia. At that time, Nalu informed her that accused had assaulted her on abdomen. At that time, Nalu was hospitalized about four days. The accused assured that he would not ill-treat Nalu and thereafter he took Nalu to his house at Navegaon Bandh. Thereafter she was taken to Bhagwanpur. In October, 2013, Nalu ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 4 delivered a female child. After one month, accused again came to the complainant and told that he would keep properly to Nalu and his daughter and took them to his house at Navegaon Bandh. In December, 2013, naming ceremony of his daughter was performed. At that time, there was a quarrel between Nalu, her husband and in-laws. The accused abused Nalu and also assaulted her. Thereafter, the complainant brought Nalu to Bhagwanpur. Nalu then lodged complaint against the accused in the Court at Kurkheda, but there was settlement between the accused and Nalu. Thereafter, the accused brought Nalu in March-2014 at Navegaon Bandh. In June-2014, Nalu went to the house of the complainant and informed her that she along with the accused were residing separately from her in-laws. She however informed that the accused continued abusing and assaulting her. At that time, Nalu had consumed 10 to 12 pills of medicine as she was fed up with the ill-treatment at the hands of the accused. On 11.11.2014 at 10.45 am, the complainant received a phone call from the accused. At that time, Nalu complained her that she was not keeping well and the accused was abusing and assaulting her since morning. The complainant pacified Nalu as well as the accused. Thereafter, at about 12.00 in the noon, the complainant again received a phone call from the accused. At that time, he informed that Nalu died due to hanging. Therefore, the complainant along with her relatives went to Navegaon Bandh. After four to five days, the complainant lodged the complaint in the Police Station at Navegaon Bandh against the accused.
::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 5 3] I have heard Shri M.N. Ali, the learned counsel for the appellant- accused and Shri I.J. Damle, the learned Additional Public Prosecutor for the respondent-State.
4] The learned counsel for the appellant-accused has vehemently argued that the learned Additional Sessions Judge has not considered the evidence led by the prosecution witnesses in its right perspective and has erroneously convicted the accused. He submitted that there was so many improvements in the testimony of the mother and the brother of the deceased. Still those improvements are overlooked by the learned Additional Sessions Judge. He submitted that although the uncle of the deceased was serving in the police department and he was very much present when he attended the funeral of Nalu, still he did not guide the relatives of Nalu to lodge a complaint against the accused if they had any grievance against the accused. He submitted that the first information report lodged by the complainant is itself afterthought. He submitted that a false and concocted case has been filed against the accused. 5] As against this, the learned Additional Public Prosecutor has supported the judgment delivered by the learned Additional Sessions Judge and has contended that the learned Additional Sessions Judge has rightly convicted the accused, as there is sufficient evidence on record to show that Nalu was ill- treated by the accused and therefore she was constrained to commit suicide. ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 6 6] I have considered and rival submissions of both the sides. It would be advantageous to go through the evidence led by the prosecution. 7] In order to substantiate its case, the prosecution has heavily relied upon the testimony of complainant Smt. Meerabai Uddhav Sonwane (PW-6), who is the mother of the deceased, PW-5 Santosh Sukhadau Sonwane, who is the brother of the deceased and other relatives of the deceased. The prosecution has also relied on the testimony of the Medical Officer as well as the Investigating Officer. It is not disputed by the defence that Nalu died a suicidal death. The postmortem report (Exh.38) reveals the probable cause of death is asphyxia due to compression of airways and neuromuscular bundles at the neck. The viscera was however preserved and sent for chemical analysis. It was mentioned that after viscera analysis report, the final opinion would be given. The viscera report (Exh.57) indicates that no poisonous material was found in the viscera. In this context, the testimony of Medical Officer PW-12 shows that he found the surface wounds in column no.17. Imprint abrasion / pressure deep rood like, especially over anterior part of neck above the level of thyroid cartilage appeared dry, brown (no marking / or abrasion found over nape of neck), the above abrasion or marking found better over interior neck and side of neck. Total length measured of abrasion is of 19 cm. De section under the pressure abrasion dry and while compressed band of subcutaneous tissue noted with petachial hemorrhages. Congestion and hemorrhage in limps nods ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 7 above and below above mentioned imprint abrasion/grew/mark. He opined that the cause of death as asphyxia due to compression of airways and neuromuscular bundles at the neck. The cause of death has not been disputed by the defence. However, it is disputed that the accused in any manner instigated the deceased to commit suicide. The learned APP has failed to point out any evidence on record with regard to the instigation at the hands of the accused to the deceased to commit suicide. On the contrary, the testimony of the investigating officer PW-13 API Nitin Rathod shows that on the date of incident the accused had attended the duty from 8.00 am to 12 noon. Thus there is absolutely no evidence on record to show that the accused in any manner abetted Nalu to commit suicide.
8] Now coming to the allegations against the accused that he had ill-treated Nalu which led her to commit suicide. It would be advantageous to go through the provisions under section 498-A of the Indian Penal Code. In this regard, Section 498-A of the Indian Penal Code reads as under :
"498-A. Husband or relative of husband of a woman subjecting her to cruelty .- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section. "cruelty"
means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 8
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Keeping in mind the aforesaid provision under section 498-A of the Indian Penal Code, the testimony of the prosecution witnesses is to be scrutinized cautiously. 9] The testimony of PW-6 complainant and mother of deceased shows that on 3.4.2012, her daughter Nalu got married with the accused at Navegaon Bandh. After marriage her daughter started residing at Navegaon Bandh with her husband and in-laws. PW-6 stated that after marriage Nalu and accused were living properly for two to three months. Thereafter, the accused started quarreling with her daughter. He used to tease her by uttering "Tu mala shobhat nahi, tu thengni ahes, tu kali ahe tasech mala andan changle dile nahi, mahe bhande dile nahi, wakda sofa dila to changla nahi, diwan wakda dila." PW-6 further stated that prior to 'Holi' festival, the accused quarreled with her daughter and dragged her out of house along with her belongings because her daughter contacted her on phone. Therefore, she along with her son-in-law Maroti Zode went to Navegaon Bandh. The accused called 2-3 panchas from the village and said before them to take Nalu with them by saying that "Nalula gheun ja nahi tar jivant rahanar hani. Maze muline tuze sobat yete ase matle". Therefore, the complainant PW-6 brought her daughter at home. At that time, she was carrying pregnancy. Her daughter stayed with her for about 2 to 4 ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 9 months.
On 1.5.2013 there was a marriage of daughter of PW-6 namely Tulsa at Bhagwantola. The accused attended the said marriage and said that he is ready to take Nalu with him and he would not ill-treat her. As understanding was given by the accused, she sent her daughter with the accused. Thereafter, again her daughter called her and informed her that the accused under the influence of liquor used to beat on the count that she could not wake up early. At that time, when Nalu was carrying pregnancy of seven months, the accused in the month of August beat her daughter mercilessly on her waist and belly and thereafter he went away. Her daughter then along with her neighbour went to the hospital of Dr. Kapgate. Thereafter, she was referred to Government Hospital at Navegaon Bandh. Dr. Kapgate contacted the accused and called him. Doctor from Government Hospital at Navegaon Bandh directed to take Nalu at the hospital of Gondia. Accordingly, Nalu was taken to the hospital at Gondia. At that place, PW-6 met her daughter in the said hospital. The accused was present in the said hospital and he informed that Nalu would deliver a child. PW-6 went to see her daughter. On enquiry, her daughter informed her that she had pain in abdomen and on the back. She stated that the accused kicked her on waist and belly. She was hospitalized for three to four days. PW-6 then stated that Nalu was taken to Navegaon Bandh and from Navegaon Bandh, she returned to her house. After few days, Nalu was brought to the house of PW-6 for delivery. In the month of October, Nalu delivered a female child. Nalu stayed in the house for one month. Accused ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 10 took Nalu to Navegaon Bandh and celebrated the naming ceremony of his daughter. PW-6 stated that when they were leaving from the function, the quarrel took place and the accused slapped her daughter. The parents of the accused said that her daughter may do anything of her life, therefore, she should take with us. They also asked her to take divorce from Arjuni Court. The mother-in-law of Nalu removed all ornaments from her person and thereafter Nalu was taken away by PW-6. PW-6 then stated that Nalu lodged complaint against the accused to Mahila Kalyan at Kurkheda as she had grievance against the ill-treatment made by the accused. The matter was then referred to the Court and thereafter there was compromised between the accused and Nalu.
10] PW-6 stated that thereafter her daughter went to stay with the accused, at that time, the daughter of Nalu was two months' old. For about 14 months, Nalu stayed happily with the accused and her daughter. Thereafter, on the occasion of 'Kartik festival', her daughter along with the accused came to her village, at that time also, she did not complain against the accused. However, after about six days, her daughter called her, at that time, she was crying on phone. Her daughter told her that accused beat her and he told that he would kill her. At that time, she heard the voice of accused and he was telling to her daughter that she should talk to her mother. At that time, PW-6 also talk to the accused and accused said that deceased is not telling her problem and he is asking her to go to the doctor, however, she is not ready. ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 11 Her daughter said that if he would not take care of her then where she would go. This was the last call received by PW-6 from her daughter. Thereafter, within half an hour, she received the phone call from the accused that Nalu hanged herself. After about 2 to 3 days, PW-6 lodged complaint (Exh.22) against the accused.
The cross-examination of PW-6 shows that the daughter of accused is with him and accused did not perform second marriage. PW-6 admitted that on the day of death of Nalu, Namodeo Sonwane, who is police personnel, present in the house of the deceased. It is clear from the testimony of PW-6 as to when the police personnel was her relative, why she had not lodged the complaint either immediately or on the next day of the incident, if at all she had grievance against the accused. The explanation given by PW-6 that as she was mentally and physically not fit to give her complaint is not convincing.
11] Many improvements were pointed out in the testimony of PW-6 to the effect that big utensils were not given to her and the sofa and diwan were not good. Thereafter, the accused asked PW-6 to take away Nalu, otherwise she would not remain alive. The improvements were also pointed out to the effect that PW-6 stated that when they were leaving the function, they met her daughter and gave regards to her, at that time, the parents of accused came and stated that they were trying to instigate her daughter, at that time, the quarrel took place and in the meantime, the accused came and slapped her ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 12 daughter. At that time, the parents of accused stated that her daughter may do anything of her life and she should take her away. Thereafter the accused and his parents said that they would take her daughter and take divorce from Arjuni Court. The mother-in-law of her daughter removed all ornaments from the person of her daughter and thereafter she took away with her daughter. Further improvement was pointed out that six days after her daughter called her and her son gave her call and at that time she was crying on the phone and said that accused beat her and he would kill her. At that time, PW-6 could hear the voice of accused and she would saying her daughter that now she should talk to her mother and asked "phone karun maglis ata tuze aaisobat bol. PW-6 then talk with the accused and he said that deceased is not telling her problem and he is talking to her to come to doctor but she is not ready. PW-6 was hearing the voice of her daughter and she was saying that "mala posnar nahi tar mala ghatatun kadhun de me kothehi jaun pot bharel. The said improvement goes to the root of the case and creates serious doubt about the conversation between the deceased and PW-6 so also the conversation between the accused and PW-6 just prior to her death.
12] In this context, it is worthwhile to note that the prosecution has failed to produce the call detail record (CDR) with regard to the call made to the deceased and the accused. A case was put up to PW-6 that the marriage of her daughter was arranged with the accused with her consent and without any demand from either side. PW-6 admitted the said suggestion given to her. ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 13 She however denied that the entire marriage expenses were borne by the accused. She clarified that she gave the amount of Rs.15,000/- towards the marriage expenses to the accused. It was further suggested to PW-6 that Dr. Kapgate was regularly treating her daughter. On query made to PW-6 with regard to the fact that in the month of August-2014 her daughter would consume extra pills and therefore she was hospitalized at Navegaon Bandh. She replied that she is not aware of the said fact. She denied that due to ill-health of her daughter she died. PW-6 also admitted that after the death of her daughter, she lodged the report. She did not meet with either any doctor of any Advocate. She did not disclose to anybody that her daughter used to call her till her death. PW-6 however admitted that after the settlement between the accused and deceased, they started residing separately from the parents of the accused.
13] Thus the testimony of PW-6 does not show that she was harassed by the accused with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security. Similarly it does not show that the harassment was with an object to coerce her or any person related to her to meet any unlawful demand. The testimony of PW-6 does not throw any light on the aspect of continuous harassment at the hands of the accused to the deceased. On the contrary, the testimony shows that although it was not going well between the accused and the deceased Nalu, there was a compromise between the accused and the deceased and therefore the ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 14 deceased started residing with the accused and thereafter for a year, there was no dispute between the deceased and the accused. The testimony shows that just prior to her death, there was a phone call and at that time deceased informed to PW-6 that the accused beat her and said that he would kill her, however, the said version is in the form of improvement.
14] In this context, it is significant to note that the postmortem report (Exh.38) does not show any injury on the person of the deceased. Moreover, it cannot be lost sight of the fact that PW-6 lodged complaint after just five days after the incident. The testimony of PW-5 Santosh shows that few days after her marriage she was treated properly by the accused for about two to four months, thereafter, harassed her and accused used to say Nalu is dark in complexion and her parents had given bad gifts in the marriage. His sister used to inform him telephonically that at the time of 'Holi festival', accused used to beat her after consuming liquor. PW-5 stated that the accused attended the marriage of her sister Tulsa. At that time, the accused promised that he did not ill-treat his sister and he took his sister at Navegaon Bandh. However, after few days, his sister informed him that accused assaulted her and therefore she is going to Dr. Kapgate. At that time she was carrying pregnancy. She was admitted in Gangabai Hospital at Gondia. He along with his mother went to the hospital. Doctor informed that her fetus was disturbed if they went to Navegaon Bandh. However, his sister refused to stay there. She was brought to his place.
::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 15 15] Insofar as incident of assault by the accused when Nalu was carrying pregnancy, the medical papers (Exh.44) relied upon by the defence do not in any manner throw any light on the aspect of any assault at the hands of the accused to the deceased and the disturbance of the fetus. Even in this context, it is significant to note that the testimony of PW-13 Investigating Officer API Rathod shows that in none of the documents collected from the hospital in August-2013 shows that the deceased was hospitalized due to beating by anybody. In view thereof, it is very difficult to believe that when Nalu was carrying pregnancy of seven months in August-2013, she was assaulted by the accused on her belly and waist and therefore her fetus was disturbed. The medical evidence does not support the case of the prosecution in that regard. There is no corroboration to the version of PW-6 as well as PW-5 in that regard. In this context, it is not clear as to in what circumstances PW-6 permitted his daughter to go with him and stay with him at Navegaon Bandh. It is also not clear as to why there was a compromise between deceased and accused after the delivery of her daughter. It cannot be lost sight of the fact that after the delivery of her daughter for about one year there was absolutely no dispute between Nalu and accused. The evidence on record shows that they were happily residing with the accused at Navegaon Bandh, even they had separated from in-laws of deceased Nalu and they were happily residing with each other. It is already discussed above that PW-6 has not lodged any complaint against accused from the marriage of Nalu till her death. It is also discussed above ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 16 that there is no evidence on record to show that the accused and the deceased called PW-6 on the day of the incident and there was conversation between the accused and her mother and the deceased complained against the accused that he abuses and beats her. It is also not clear for what reasons accused used to abuse and assault the deceased.
16] The improvements were pointed out in the testimony of PW-5 that on 11.11.2014 his sister called him. She was crying on phone. He handed over the said phone to her mother. His sister informed her mother that accused was saying that "Tula tari maren nahi tar me maren" and thereafter the phone was disconnected. The cross-examination of PW-5 clearly indicates that prior to the marriage, accused had visited his house to see his sister and the accused used to come to meet his sister. Similarly, before the marriage, they both went to exhibition at village Bolda. PW-5 categorically admitted that the marriage of the accused and the deceased was with their consent. PW-5 admitted that certain marriage expenses were borne by the accused. A case was put up to PW-5 which he admitted that as his sister was not keeping well therefore accused and his sister went to two to three times for worship at some places. He admitted that the health of his sister was not good and therefore his mother used to take her to the doctor. He also admitted that when his sister was admitted for delivery, accused visited to Bhagwanpur as soon as he received the message regarding the hospitalization of Nalu for delivery. Even the naming ceremony was performed in the house of the accused. The testimony ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 17 of PW-5 shows that after the death of Nalu, as they discussed amongst themselves and thereafter the report came to be filed. On the point of cordial relationship between the accused and the deceased, PW-5 specifically admitted that eight days prior to death of his sister, accused and his sister came to their village on the occasion of Katrik Festival and on the next day they left by their motorcycle. Thus, the testimony of PW-5 does not throw any light on the aspect of ill-treatment at the hands of the accused. Nalu was having headache problem since before her marriage and her mother used to take her to various doctors. Even 10 to 15 days prior to the incident, the accused and the deceased had been to their house and they stayed for about four days, at that time, they took Nalu for medication.
17] In this context, the testimony of PW-12 Dr. Vilas Dakhole, who is the Medical Officer, shows that on 13.8.2014 Nalu was admitted in the hospital at Navegaon Bandh, at that time, she had consumed paracetamol pills and there was history of injesion of 8 to 10 tables of multivitamin and haematinic syrup 40 to 50 ml at around 6.00 pm. It appears that deceased Nalu was in the habit of consuming medicine pills as she was having some headache and stomachache problem. The testimony of PW-10 Vijaya Kapgate, who was a neighbour of deceased Nalu, shows that when she was pregnant, she had complained about stomachache. The said witness was declared hostile, however, during the cross-examination she has admitted that deceased had consumed some pills and therefore she was hospitalized. She further clarified ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 18 that deceased was having headache problem and therefore she had consumed the pills. PW-10 further admitted that on the day of the incident accused had been to his work as usual and accused came back at 12.00 noon and at that time he came to know that his wife is dead.
18] In 2012 CRI.L.J. 658 : [2012 ALL SCR 1138], the Hon'ble Apex Court has observed that every quarrel between a husband and wife which results in a suicide cannot be taken as an abetment by the husband and the standard of a reasonable and practical woman as compared to a headstrong and over sensitive one has to be applied. The Apex Court in the case of Amalendu Pal alias Jhantu .vs. State of W.B. reported in AIR 2010 SC 512 :
[2009 ALL MR (Cri) 3755 (S.C.), has categorically observed that before holding accused guilty of offence u/s 306, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative except to put an end to her life. Thus, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable. To attract offence u/s 306 of IPC, there must be positive act on the part of the person who is said to have abetted the commission of suicide. The person must have played an active role either ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 19 to instigate or to facilitate the commission of suicide by the person committing suicide. In the instant case, there is no iota of evidence even to remotely connect the accused to infer that the accused committed such act with a view to abet the deceased to commit suicide. Neither any act of instigation nor any act of facilitation to commit suicide by the deceased can be inferred on the part of the accused in the light of the evidence on record.
19] A useful reference can be made of the case Sanju alias Sanjay Singh Sengar .v. State of M.P. reported in (2002) 5 SCC 371 wherein a quarrel took place between the appellant and the deceased. The appellant said to the deceased 'to go and die" and two days thereafter the deceased committed suicide. She made a suicide note. The Hon'ble apex Court observed that "to go and die" itself does not constitute the ingredient of instigation. The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. It is further held that the presence of mens rea is the necessary concomitant for instigation.
20] In (2017) 1 SCC 433 in case of Gurcharan Singh v. State of Punjab, the Hon'ble apex Court has observed in para 21 as under :-
"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 20 absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."
21] The Hon'ble apex Court in the case of S. S. Chheena .vs. Vijay Kumar Mahajan and another, reported at 2010 Mh.L.J. Online (Cri.) (S.C.) 4 = (2010) 12 SCC 190, in para 25 observed that, the abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under section 306 of the Indian penal Code there has to be a clear mens rea to commit the offence. It also requires an overt act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide. 22] Thus the meticulous testimony of the prosecution witnesses does not show that Nalu was subjected to cruelty at the hands of accused and therefore she committed suicide. The delay of five days in lodging the complaint is fatal and no satisfactory explanation comes forward from the prosecution in respect of the said delay. In the instant case, it is not at all the case of the prosecution that at any point of time the deceased was subjected by ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 ::: apeal50.18.odt 21 the accused to meet any unlawful demand for any property or valuable security. In the absence of such allegations the conviction under sections 498-A as well as 306 of the Indian Penal Code is not sustainable.
23] In view of the facts and circumstances of the case, the learned Additional Sessions Judge should have considered the evidence led by the prosecution in its right perspective. In view thereof, the judgment and order passed by the learned Additional Sessions Judge needs to be quashed and set aside. Hence, the following order :
ORDER
(i) Criminal Appeal No.50/2018 is allowed.
(ii) The judgment and order dated 15.1.2018 delivered by the learned Additional Sessions Judge, Gondia in Sessions Trial No.35/2015 is hereby quashed and set aside.
(iii) The accused is acquitted of the offence punishable under sections 498-A and 306 of the Indian Penal Code.
(iv) The accused is in custody, he be set at liberty, if not required in any other case.
(v) Muddemal properties being worthless be destroyed after appeal period is over.
JUDGE Gulande ::: Uploaded on - 19/07/2018 ::: Downloaded on - 20/07/2018 00:17:53 :::