Bombay High Court
Balasaheb Vitthalrao Shiwarkar & 4 Ors vs The State Of Mah on 16 September, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
APEAL.560.06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 560/2006
1) Balasaheb s/o Vithhalrao Shiwarkar
Aged about 22 years
2) Shankar s/o Vitthalrao Shiwarkar
Aged about 19 years
3) Gajanan s/o Vitthalrao Shiwarkar
Aged about 25 years
4) Tarabai w/o Vitthalrao Shiwarkar
Aged about 40 years
5) Sau.Nita w/o Gajanan Shiwarkar
Aged about 254 years,.
All R/o Sawana, P.S. Mahagaon
Dist. Yavatmal. ..APPELLANTS
versus
The State of Maharashtra
Through P.S. Mahagaon
Dist. Yavatmal. .. RESPONDENT
..........................................................................................................
Mr.A.S. Mardikar, senior counsel with Mr. Khemuka,
Advocate for appellants
Mr. T.A. Mirza, APP for respondent
.......................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 16th September, 2019
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APEAL.560.06
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ORAL JUDGMENT:
This Appeal has been directed against the judgment and order dated 28th September, 2006 delivered by learned Additional Sessions Judge, Pusad in Sessions Trial No.109/1997 convicting the appellants/accused for offence punishable u/s 306 r/ws.34 and 498A r/ws.34 of the IPC. For offence punishable u/s 498A r/ws.34 IPC, the accused were sentenced to suffer RI for three years and to pay a fine of Rs. 500/- in default, to suffer RI for six months each; whereas for offence punishable u/s 306 r/ws.34 IPC, they were sentenced to suffer imprisonment for ten years and fine of Rs. 1000/-, in default, RI for two years each. Needless to mention, both the sentences were directed to be run concurrently.
2. The prosecution case in brief is that: the complainant Shankar Gangadharrao Deshmukh was R/o Shiharinagar, Vasant Road, Parbhani. The marriage of his sister Suchita was solemnized with the A1-Balasaheb at Parbhani on 17.2.1997 as per the prevailing customs in their community. In the marriage gold ornaments weighing 150 gms. were given. Smt.Suchita (deceased) cohabited with A1 at his village Sawana, Tq. Mahegaon, Dist. ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 :::
APEAL.560.06 3 Yavatmal. All the accused persons were residing jointly. Ori.A2- Vitthal was father of A-1; A3 and A4 are brother inter se of A1; A5-Tarabai is the mother of A-1, whereas A6-Nita is the wife of A4. For about two months after the marriage, Suchita was treated well by the accused, thereafter they started ill-treating her on the count of demand of dowry. The accused persons made demand of gas cylinder, stove and bore machine. It is alleged that during the intervening night between 14 and 15th September 1997, the accused set Suchita ablaze and thus caused her death. Suchita was admitted in Government Hospital at Yavatmal, however, she was declared dead. PW3-Shankar, i.e. brother of Suchita however, lodged his typewritten report as late as on 23.9.1997 against all the accused persons. On the basis of said complaint, offence was registered vide Cr. No. 123/1997. The accused persons were arrested and the statements of the witnesses were recorded,. The seized articles were sent to the CA for its analysis. After completion of investigation charge-sheet was filed in the Court of learned JMFC who, in turn, committed the case to the court of Sessions for trial. ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 :::
APEAL.560.06 4 The learned Additional Sessions Judge recorded the evidence and after hearing both sides, convicted the accused as aforesaid.
3. The prosecution has examined in all five witnesses. The defence of the accused was of total denial.
4. At the outset, Mr.A.S.Mardikar, learned senior counsel for the accused invited my attention to the charge framed against the accused u/s 498A r/ws. 34, 302 r/ws.34 and 304B rws. 34 of IPC. It was pointed out that although charge u/s 306 r/ws. 34 IPC was not framed by the learned trial Judge, however, he convicted all the accused for offence punishable u/ss. 498A and 306 r/ws.34 and acquitted all of them for offence u/s 302 r/ws.34 of IPC and 304B r/ws. 34 IPC. It is submitted that there is no convincing evidence on record for offence punishable u/s 498A IPC. Although the prosecution relied upon the testimony of three witnesses i.e PW1-Dhropadabai, PW3-Shankar Deshmukh and PW4-Ramesh Deshmukh, however there is no corroboration to the evidence of these witnesses with each other on material aspects. So far as the allegations of cruelty against the accused are concerned, it is ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 5 submitted that there is absolutely no evidence on record to show as to under what circumstances Suchita died. For these reasons, the learned senior counsel submitted that the impugned judgment be set aside and the accused be acquitted of all the charges.
5. Per contra, Mr. T.A. Mirza, learned APP supported the impugned judgment and submitted that the trial Judge has rightly assessed the evidence on record and convicted the accused.
6. In order to appreciate the rival conditions of both sides, it would be beneficial to go through the evidence of prosecution witnesses, more particularly, the evidence of PW1- Dhropadabai, PW3-Shankar Deshmukh and PW4-Ramesh Deshmukh. The investigating officer has not been examined in the present case.
7. It is not disputed by the defence that Suchita died due to shock due to extensive burn injuries to the extent of 95%. The spot panchnama (Exh.90) shows that the incident had taken place on the first floor of the house and the kerosene was found spread on the ground. So also kerosene can was lying at the place of the incident, having 1 litre kerosene in it, the lid lead of the kerosene ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 6 can was opened. Similarly, the burnt pieces of clothes of Suchita were found at that place along with broken matchbox. All those articles were taken charge by the Police vide panchnama (Exh.90). The inquest panchnama (Exh.86) shows that the dead body of Suchita in a burnt condition. It is thus clear from the aforesaid circumstances that Suchita died under unnatural circumstances in the bedroom of her house. It is however not clear whether Suchita died a homicidal death or a suicidal death. So also, it is not clear whether she died an accidental death. As stated earlier, the investigating officer or the neighbourers has not been examined in the instant case who would have thrown some light on the aforesaid aspect. Thus, it is clear that Suchita died unnatural death.
8. On the aspect of cruelty, the prosecution heavily relied upon the testimony of PW1-Dhropadabai. PW1 is the mother of deceased Suchita. Her testimony demonstrates that the marriage of Suchita was solemnized with A1-Balasaheb on 17th February 1997. After two months of her marriage, Suchita was subjected to ill- treatment at the hands of the accused. Whenever Suchita used to visit her parents' house, she would disclose ill-treatment to her ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 7 mother. After the marriage, on the eve of Panchami festival, Suchita came to her parents' home. She stayed there till Rakhi festival. During the said period, she informed her mother that the accused persons talking with her rather sarcastically. PW1 contended that Suchita had sent a letter addressed to her brother and, therefore, he brought her at the house of PW1 on the eve of Panchmi festival. In the cross-examination PW1 stated that at the time of Panchnami festival Suchita told them about the ill treatment at the hands of the accused. An improvement was pointed out in the testimony of PW1 to the effect that deceased-Suchita came to panchami festival and stayed till Rakhi Purnima festival. The said improvement makes it doubtful as to when exactly Suchita visited the house of her parents. In the cross-examination PW1 elaborated that Suchita told them that her in-laws used to say that she sits more with her husband A1 and on that count they used to pinch her. The testimony of PW1 does not make clear as to what sort of ill-treatment was given by the accused to Suchita. PW1 further stated that in-laws of her son Ramesh used to reside adjacent to the house of accused persons, however, she did not make any ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 8 enquiry with them as to how the incident of burning of deceased had taken place. PW1 however denied that Suchita died due to accidental burns. Thus the testimony does not throw any light on the aspect of alleged ill-treatment at the hands of the accused persons.
9. The testimony of PW3-Shankar Deshmukh, who is the brother of the deceased-Sucheta, shows that in the marriage a total of 150 gms. gold was given to A1 and the marriage expenses were borne by them. Two months after the marriage, Suchita informed them that she is being ill-treated by the accused persons. According to PW3, he noticed that health of Suchita was deteriorated. On 14.7.1997 one Dattarao Deshmukh Saonerkar who is the father-in-law of PW4-Ramesh brought a letter of Suchita dated 14.7.1997. According to PW3 in the said letter (Exch.83) she wrote that she was being ill-treated at the hands of the accused. According to PW3 on the eve of Nagpanchmi festival Ramesh (elder brother of Suchita) brought Suchita to his house and she stayed there till the festival of Rakhi purnima. At that time Suchita told them that accused perosns had made demand of Gas ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 9 cylinder and stove. At that time, A1-Balasaheb stayed in their house for 2 to 4 days. He told them that his jeep is not in working condition and therefore he asked to make some arrangement for starting other business. PW3-Shankar assured him to give bore machine for starting a business, however, they could not do so as it was costing about Rs. 18,000/- which was beyond the pale of their financial position. The testimony of PW3 on the point of alleged ill- treatment to Suchita has not been corroborated by the testimony of PW1-Dhropadabai and PW4-Ramesh. PW1-Dhropadabai is silent on the aspect of allegations made by Suchita against the accused with regard to the alleged demand.
10. The testimony of PW4-Ramesh Deshmukh shows that he did not fetch Suchita to her parental home, after receipt of letter Exh.83. According to him, they assured to purchase an old bore machine to the A1 for his business. However as the price of bore machine was exorbitant, they assured A1 that after negotiations on installments they would provide him bore machine. Thus, there is no corroboration to the version of PW4 so far as the alleged demand of bore machine by A1 in respect of gas cylinder ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 10 and stove. So far as the letter Exh.83 is concerned, it is simple and short letter inasmuch as it does not throw any light on the aspect of ill-treatment at the hands of accused to Suchita.
11. It has came in the evidence of PW4-Ramesh that after marriage, for the first time Suchita came to their house on the eve of Partava, second time on the occasion of Ekadashi. At that time, she stayed with sister of his father and also at the house of cousin i.e. younger brother of his father and thereafter she was reached back to her matrimonial home. He contended that third time Suchita was bought to her house and she stayed there for about 10 to 15 days. During that period she told PW4 that the accused were ill-treating her and requested to persuade them not to do so. According to PW4, he called A1-Balasaheb and told him that they have incurred heavy expenses on account of the marriage and assured him to give LPG Gas; however told A1 that they are not in a position to provide a vehicle or jeep to him; however assured A1 to provide old bore machine for his business. The testimony of PW4 shows that he himself has offered to give bore machine to the accused and LPG gas. According to PW4, he did not go immediately ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 11 after receiving the letter of Suchita to fetch her at her parental home. The said conduct of PW4 indicates that he did not find it necessary to bring Suchita to her parental home, as it was revealed from the letter that she was ill-treated by the accused. In fact, as discussed above, letter( Exh.83) in no manner indicates that there is a ill-treatment by any of the accused to Suchita.
12. The evidence of PW3-Shankar shows that he got typed the report on 17.9.1997 whereas the incident had taken place at about 4.45 am on 15.9.1997 and FIR was lodged on 22.9.1997. The delay has not been explained by the prosecution satisfactorily.
13. It would be advantageous to go through the provisions under section 498-A of the Indian Penal Code,which 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 ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 12 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."
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.
15. 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 ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 13 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.
15A. 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.
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16. 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.
17. 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 ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 15 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."
18. 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.
19. On going through the entire evidence on record, I am of the view that there is no convincing evidence on record to the effect that Suchita was ill-treated by the accused so much so that ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 ::: APEAL.560.06 16 she was driven to commit suicide. The CA report dated 30.4.1998 does not show kerosene residues at the place of incident and the clothes of the deceased. However the clothes of the accused were taken charge and sent to CA for its analysis. Therefore, it cannot be said that at the time of incident, the accused were present near Suchita, though the incident had taken place in the house of the accused persons. The prosecution has utterly failed to prove that it is a suicidal death. There is delay in lodging the FIR. For all these reasons, the impugned judgment and order needs interference. Hence, the following order.
ORDER:
(i) Criminal Appeal No. 560/2006 is allowed. (ii) The judgment and order passed by learned Additional Sessions Judge, Pusad in Sessions Trial No.109/1997 on 28th
September, 2006 convicting the appellants/ accused, is set aside and they are acquitted of the offences with which they were convicted.
(iii) The bail bonds of the appellants shall stand cancelled. ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 :::
APEAL.560.06 17
(iv) Fine amount if paid by the appellants/accused, be returned to them.
JUDGE sahare ::: Uploaded on - 26/09/2019 ::: Downloaded on - 19/04/2020 06:44:25 :::