Bombay High Court
Sau Parvatibai Baliram Jadhav And ... vs The State Of Mah.Thr.Pso Washim on 20 March, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL 263.05+1.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.263 OF 2005
WITH
CRIMINAL APPEAL NO.375 OF 2005
CRIMINAL APPEAL NO.263 OF 2005
1] Sau. Parvatibai w/o Baliram Jadhav,
Aged about 39 years.
2] Smt. Kalibai Dena Ade,
Aged about 68 years.
Both r/o. Someshwar Nagar,
Tah. Manora, District-Washim. .. Appellants
(Accused No.1 & 6)
.. Versus ..
The State of Maharashtra,
Through Police Station Officer,
Police Station, Manora,
District-Washim.
Vide Crime No.111/2001 .. Respondent
..........
Shri A.K. Bhangde, Advocate for Appellants,
Shri J.Y. Ghurde, APP for Respondent-State.
..........
WITH
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CRI.APPEAL 263.05+1.odt 2
CRIMINAL APPEAL NO.375 OF 2005
1] Sau. Subhibai w/o Mohan Jadhao,
Aged about 40 years,
Occupation-Household work.
2] Mohan s/o Tulshiram Jadhao,
Aged about 41 years,
Occupation-Labourer,
Both residents of Someshwar Nagar,
Tah. Manora, District-Washim. .. Appellants
(Original Accused nos.4 and 5
respectively)
.. Versus ..
State of Maharashtra,
Through Police Station Officer,
Manora, Tah. Manora,
District-Washim. .. Respondent
..........
Shri S.V. Sirpurkar, Advocate for Appellants,
Shri J.Y. Ghurde, APP for Respondent-State.
..........
CORAM : MRS. SWAPNA JOSHI, J.
DATED : 20.03.2019.
ORAL JUDGMENT
1] Both these appeals have been directed against the judgment and order dated 19.4.2005 delivered by the learned 2nd Ad-hoc Additional Sessions Judge, Washim in Sessions Trial No.140/2001, whereby the learned Additional Sessions Judge ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 3 convicted accused nos.1 and 6 for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code and accused nos.4 and 5 were convicted for the offence punishable under Sections 498-A and 306 read with Section 34 of the Indian Penal Code. Criminal Appeal No.263/2005 is preferred by original accused nos.1 and 6, whereas Criminal Appeal No.375/2005 is preferred by original accused nos.4 and 5 respectively.
2] The prosecution case, in brief, is that deceased Baby got married with accused no.5 Mohan s/o Tulshiram Jadhao about four years prior to the incident. She was a second wife of accused no.5 Mohan. Out of the said wedlock, she has a daughter, aged about 2½ years old. It is the case of the prosecution that accused no.5 Mohan was having illicit relationship with accused no.1 Parvatibai, who was residing in the same village. Accused no.6 Smt. Kelibai was mother of Parvatibai. Accused no.4 Sau. Subhibai was the first wife of accused no.5 Mohan. Accused no.5 Mohan and accused no.1 Parvatibai used to harass and beat Baby. Whenever Baby used to visit her parents house, she used to complain against them to her father PW-1 Birbal Sitaram Rathod. She also used to complain that Subhibai (accused no.4) also used to beat her. They were not providing food to her. Therefore, PW-1 Birbal Rathod (Complainant) went to his daughter's house and he pacified the accused persons. He also convinced his daughter and asked to reside in her husband's house. On 19.9.2001 at about 8.00 pm, PW-1 Birbal Rathod came to know that his daughter Baby consumed poison and she was admitted to hospital at Digras. PW-1 Birbal Rathod ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 4 therefore rushed to Digras, however, he learnt there that Baby was shifted to hospital at Yavatmal for further treatment. As PW-1 Birbal could not arrange for money, he returned back. On the next day, he received information that Baby died. On 20.9.2001, as Baby was admitted to the hospital at Yavatmal, the Naib Tahsildar recorded her dying declaration (Exh.77). Police Station, Manora registered accidental death case under Section 174 of the Code of Criminal Procedure. The dead body of Baby was sent for autopsy. On 23.9.2001, the oral report was lodged by PW-1 Birbal in the Police Station at Manora. On the basis of the said report, offence came to be registered vide Crime No.111/2001. The spot panchanama was also recorded on 29.9.2001. The accused was arrested. After recording the statements of the witnesses and on completing the formal investigation, the charge-sheet was filed by the police in the Court of Judicial Magistrate, First Class at Mangrulpir. The case to the Court of Sessions at Washim. The learned Sessions Judge framed the charge and on analysis of the evidence and after hearing both the sides, the learned Sessions Judge convicted the accused as aforesaid.
3] Learned advocate for the appellants vociferously argued that the trial Judge has not assessed the evidence led by the prosecution in its right perspective. It is submitted that there is absolutely no convincing evidence on record to show that all the accused were treated with cruelty to Baby and therefore she committed suicide. According to them, the judgment passed by the trial court is on erroneous findings. ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 5 4] As against this, learned Additional Public Prosecutor appearing on behalf of the respondent-State supported the judgment delivered by the learned Additional Sessions Judge and submitted that the learned Additional Sessions Judge has rightly convicted the accused on the basis of the evidence adduced by the prosecution witnesses.
5] So far as allegations of cruelty at the hands of accused nos.4 and 5 are concerned, the prosecution has relied upon the testimonies of PW No.1 Birbal, PW-3 Sunita, PW-4 Balu and PW-5 Tukaram and on the point of allegations under Section 306 of the Indian Penal Code, the prosecution relied upon the dying declaration (Exh.77) recorded by the Executive Magistrate.
6] The testimony of PW-1 Birbal Rathod, who is father of deceased Baby, shows that after marriage of Baby with accused no.5 Mohan, for few days, Baby was treated well by accused nos.4 and 5. Thereafter, they started ill-treating her. According to PW-1 Birbal, accused no.5 Mohan was having illicit relationship with accused no.1 Parvatibai. All the accused used to beat his daughter. They used to say that Baby is not required any more to them. Whenever PW-1 Birbal used to visit the house of accused no.5 Mohan, he used to pacify the accused persons PW-1 Birnal further deposed that accused nos.1 to 6 were not providing meals to his daughter and were beating her. Accused nos.1 and 5 used to send message that he should take his daughter with him. PW-1 Birbal stated that reason of dispute between his daughter ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 6 and accused no.5 Mohan was illicit relations with accused nos.1 and 5. During the cross-examination of PW-1 Birbal, the contradiction was marked vide portion mark A. PW-1 Birbal denied that his son Balu told him that in search of key of the house of Baby, they went to the house of Parvatibai there his daughter was severely beaten by accused no.1 and her mother, likewise accused no.5 brought Baby to his house dragging her and beat her at the house of accused no.5. The said portion was marked as 'A' and thereafter it was proved by the investigating officer. Thus PW-1 Birbal denied that on the day of incident when his daughter went to the house of accused nos.1 and 6 she was beaten there, accused no.5 dragged her to his house and in his house also Baby was beaten by him. Thus the incident which had immediately taken prior to the incident of Baby consuming poison has been denied by PW-1 Birbal. However, testimony of PW-1 Birbal do not indicate any continuous cruelty at the hands of the accused persons particularly accused nos.4 and 5. There is no consistent evidence on record to show that they both treated Baby with cruelty so much so that she was driven to commit suicide. The testimony of PW-1 Birbal shows that general allegations are made against all the accused persons that they used to ill-treat Baby, they were not providing food to her and used to beat her. The testimony of PW-1 Birbal is not found to be reliable one.
7] The deposition of PW-3 Sunita Rathod, who is sister of Baby, depicts that accused no.1 Parvatibai used to instigate accused no.5 Mohan to beat Baby, so also accused nos.2 to 4 and others used to beat her sister. They used to say that Baby was ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 7 not good looking and accused no.5 Mohan will perform marriage with some other lady. All these allegations were made by Baby to PW-3 Sunita. She further deposed that accused no.3 Sheshrao used to beat and quarrel with her. Thus the testimony of PW-3 Sunita shows that general allegations are made against all the accused. No specific allegations are made against accused nos.4 and 5 that they were treating her with cruelty so much so that she was driven to commit suicide.
8] The deposition of PW-4 Balu Rathod reveals that for trivial reasons accused persons used to beat his sister. He deposed that his father told him that accused nos.1 and 4 used to beat his sister and the accused persons used to treat her with cruelty. He went with Baby to her house. Her house was locked. Baby asked him to stay in front of her house and said that she will bring key. She then went near the house of accused no.6 Kelibai which was just near the house of accused no.5. Accused no.5 Mohan was present at that place. Accused no.5 Mohan asked his sister as to why she came there. Thereafter, accused nos.1, 5 and 6 started beating his sister. Accused no.5 then brought his sister dragging from the house of accused no.6 towards his own house. Thereafter, PW-4 left that place. Around 7 to 7.30 pm he received message that Baby consumed poison. During the cross-examination, PW-4 categorically stated that he had no occasion to go to the house of accused nos.1 and 6. He halted at the house of accused no.5. Baby alone went to the house of accused nos.1 and 6. He was there for about five to ten minutes. He did not wait in the house of accused no.5 after his sister returned from the house of accused nos.1 and 6. ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 8 Thus the testimony of PW-4 shows that he had not witnessed the incident of quarrel between Baby with accused nos.1, 5 and 6, so also he has not seen those three accused assaulting Baby. Thus the testimony of PW-4 does not throw any light on the aspect of the incident which had taken place prior to the incident of death of Baby as he had not witnessed the said incident, so also his testimony does not inspire confidence as regards the ill-treatment at the hands of the accused.
9] PW-5 Tukaram Rathod is the neighbour of Baby. According to him, Baby disclosed him that she was beaten by six persons and the reason for beating was that she was not good looking and she was not doing domestic work properly. The testimony of PW-5 is not found to be convincing one. He is not found to be a reliable witness. Thus there is no evidence on record to show that Baby was treated with cruelty by accused nos.4 and 5.
10] Now coming to the allegations that the accused persons instigated, aided and abetted Baby to commit suicide. The testimony of PW-4 Balu, as discussed above, with regard to assault by accused nos.1, 5 and 6 on the date of incident has not been proved. He had not witnessed the said incident. The prosecution relied upon the dying declaration (Exh.77) of Baby which was allegedly recorded by Executive Magistrate Shri Bhagvant Patil (PW-8). It may be mentioned here that it is not disputed that Baby died due to the consumption of poisonous material. In Chemical Analyser report, it is not seriously disputed that Baby committed suicide by consuming insecticide. ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 9 11] The evidence of PW-8 Naib Tahsildar Shri Bhagvant Patil shows that on 19.9.2001 he was requested to record the dying declaration of Baby. Accordingly, he visited the hospital. He met with Doctor. He was satisfied that patient was able to speak, besides this he asked doctor whether the patient was conscious and able to give statement accordingly. Doctor examined the patient and issued certificate that patient is conscious and able to give dying declaration. Doctor endorsed to that effect on dying declaration form.
12] In this context the testimony of Medical Officer PW-9 Dr. Abhay Patil shows that around 9.15 pm, Naib Tahsildar made enquiry with him about the patient who was admitted in the hospital. He examined the patient and certified that patient is in a position to give the dying declaration. PW-9 then issued certificate to that effect. It is significant to note that the doctor did not state that the patient was mentally and physically fit to give the statement. In the cross examination, no doubt, he stated that the patient was conscious. However, the Medical Officer was supposed to state in clear terms that the patient was mentally and physically fit to give a statement. The endorsement made by the doctor does not show that he has mentioned on the statement that the patient was mentally and physically fit to give a statement. In view thereof the dying declaration cannot be relied upon. It is not clear whether Baby was physically and mentally fit to give a statement. Moreover, the dying declaration (Exh.77) shows that as quarrels used to take place with Kelibai who was residing in her ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 10 neighborhood, in a fit of anger at 4.00 pm she consumed poisonous substance. At that time her husband Mohan was present. Thereafter, at 8.00 pm in the evening her husband admitted her in the hospital. Thus even the dying declaration in no manner indicates that the accused persons aided, abetted and instigated Baby to commit suicide. Thus the prosecution has failed to prove the accused treated Baby with cruelty and abetted and aided her to commit suicide.
13] Now coming to the allegations against the accused that they had ill-treated Baby 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
(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."::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 11
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. 14] 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 of IPC 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 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 ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 12 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.
15] 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.
16] 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 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 ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 13 abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."
17] 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.
18] In the instant case there is no convincing evidence or record to show that the accused treated Baby with cruelty which was of such a grave nature that Baby was constrained to end her life by committing evidence. There is no satisfactory evidence on record to show that the accused instigated or abetted Baby to commit suicide. 19] In view of the facts and circumstances of the case, it is held that the learned trial Judge should have assessed the evidence led by the prosecution witnesses in its proper perspective. Hence the judgment delivered by the trial Court ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 ::: CRI.APPEAL 263.05+1.odt 14 needs to be set aside and both the appeals are required to be allowed. Hence the following order :
ORDER 1] Criminal Appeal Nos.263/2005 and 375/2005 are allowed.
2] The judgment and order passed by the learned Additional Sessions Judge, Washim is hereby quashed and set aside. All accused are acquitted of the offences punishable under Sections 498-A and 306 r/w 34 of the Indian Penal Code.
3] All accused are on bail, their bail bonds shall stand cancelled.
4] Since Appellant no.2 Mohan s/o Tulshiram Jadhao in Criminal Appeal No.375/2005 is in jail, if not required in any other case, he may be set at liberty forthwith from Central Jail, Nagpur.
JUDGE Gulande ::: Uploaded on - 28/03/2019 ::: Downloaded on - 04/04/2020 12:24:07 :::