Bombay High Court
Rajesh S/O Sakharam Sheware vs State Of Maharashtra on 29 September, 2017
Author: Rohit B. Deo
Bench: Rohit B. Deo
apeal651.02.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.651 OF 2002
Rajesh s/o Sakharam Sheware,
Aged 35 yrs., Occ: Skilled Job,
R/o Old Jaitala, Nagpur
(At present Central Jail, Nagpur
since 24.10.2002). ....... APPELLANT
...V E R S U S...
The State of Maharashtra,
through P.S.O. P.S. M.I.D.C., Nagpur
vide Crime No.127/2001. ....... RESPONDENT
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Ms. Dharini Muley, Advocate for Appellant.
Shri N.B. Jawade, APP for Respondent/State.
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CORAM: ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT : 25.09.2017 DATE OF PRONOUNCING THE JUDGMENT : 29.09.2017 1] Exception is taken to the judgment and order dated 24.10.2002 delivered by the 3rd Adhoc Additional Sessions Judge, Nagpur in Sessions Trial 25/2002, by and under which, the accused is convicted of offence punishable under section 498-A and 306 of Indian Penal Code and is sentenced to suffer rigorous imprisonment for the period of two years and to payment of fine ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 2 of Rs.1000/- and is further convicted of offence punishable under section 306 of I.P.C. and is sentenced to suffer rigorous imprisonment for four years and payment of fine of Rs.1500/-.
2] Heard Ms. Dharini Muley, the learned counsel for the accused and Shri N.B. Jawade, the learned Additional Public Prosecutor for the respondent/State.
3] The case of the prosecution as is unfolded during the trial is that the appellant (hereinafter referred to as "the accused") and the deceased Leelabai entered into wedlock in 1997.
Initially, Leelabai was treated well. However, after a year accused started ill-treating Leelabai. The accused was demanding Rs.5000/- for availing electric connection. He was also physically ill-treating Leelabai under the influence of liquor. Leelabai was pregnant, her mother Sugandhabai wished to take Leelabai her home to celebrate the pregnancy, the accused however, did not oblige.
Leelabai committed suicide by consuming poison on 15.07.2001. She expired at 10:30 p.m. while under going treatment at Medical College & Hospital, Nagpur. An accidental ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 3 death inquiry was registered under section 174 of the Code of Criminal Procedure. The case of the prosecution is that Sugandhabai the mother of the deceased and other relatives noticed injuries on the face of the deceased and were not satisfied by the explanation of the accused that the injuries were caused due to a fall. Sugandhabai lodged a report on 17.07.2001, the gist of which was that the deceased was subjected to ill-treatment in connection with monetary demand of Rs.5000/- and that she was beaten by the accused under the influence of liquor. On the basis of the said report, offence was registered against the accused under section 498-A and 306 of I.P.C.
4] Investigations ensued, supplementary statement of Sugandhabai was recorded, the statements of other relatives including the brother of the deceased, neighbours were recorded and upon completion of the investigation charge-sheet was submitted in the Court of the Judicial Magistrate First Class, Court 9, Nagpur who committed the case to the Sessions Court.
The learned Sessions Judge framed charge at Exh.3, the accused pleased not guilty and claimed to b tried. The defence of the accused as is discernible from the statement recorded under ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 4 section 313 of the Cr.P.C. is of false implication. A specific defence is taken that since Leelabai was not in a position to conceive, she was depressed.
5] The learned counsel for the accused Ms. Dharini Muley submits that the prosecution has miserably failed to prove the offence under section 306 and 498-A of I.P.C. beyond reasonable doubt. She would further submit, that the learned Sessions Judge fell in serious error in invoking the presumption under section 113-A of the Evidence Act.
She would submit that since the prosecution failed to establish that the deceased was subjected to cruelty, the statutory presumption under section 113-A was not available to the prosecution.
6] Per contra, Shri Jawade, the learned A.P.P. submits that the prosecution has proved beyond reasonable doubt that the deceased was subjected to cruelty. The statutory presumption under section 113-A is activated, and in the absence of a rebuttal, the accused is rightly convicted of offence punishable under section 306 and 398-A of I.P.C.
::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 57] The mother of the deceased Sugandhabai is examined as P.W.1. She has deposed that the accused was beating the deceased under the influence of liquor and was ill-treating the deceased in accordance with demand for Rs.5000/-. P.W.1 has deposed that an amount of Rs.5000/- was demanded since the accused wished to avail an electric connection. P.W.1 has deposed that Leelabai was in the sixth month of pregnancy and P.W.1 wished to escort her to parental house for the pregnancy ceremony. The accused told P.W.1 that unless Rs.5000/- is paid, Leelabai will not be sent for the pregnancy ceremony, is the deposition of P.W.1. She states that the interaction or meeting in which she expressed desire to take Leelabai for the pregnancy ceremony and the accused told her that Leelabai will not be sent unless Rs.5000/- is paid, occurred eight days prior to the death.
8] P.W.1 has deposed that she saw marks of beating on the body of Leelabai and asked the accused why did he kill Leelabai. The response of the accused was that Leelabai sustained injuries due to fall. In the cross-examination, P.W.1 admits that the relatives of the accused and the family members of the deceased were present during the last rites. P.W.1 further admits ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 6 that none of the relatives of Leelabai approached the police.
She states that when she returned to the village, the police made inquiries with her. She however, states that the police had not read over the report. P.W.1 admits that after marriage Leelabai was unable to continue with the conception. She further admits that one or two months prior to the death, Rajesh had obtained electric connection. She admits that neither Rajesh nor Leelabai were visiting her house. She denies the suggestion that Leelabai was not pregnant.
9] Be it noted that, the postmortem report of the deceased does not reveal that she was pregnant. The evidence of Sugandhabai that she wished to take Leelabai for pregnancy ceremony and that the accused refused saying that she will be sent only if Rs.5000/- is paid, is rendered suspect. Moreover, she has admitted that one or two months prior to the death the accused obtained the electric connection. This is inconsistent with the version of P.W.1 that eight days prior to the death there was a demand for Rs.5000/- to avail the electric connection.
10] Gautam, the brother of the deceased is examined as ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 7 P.W.2. He states that when he visited the house of the deceased, she said that she was beaten by the accused and asked P.W.2 to send her mother (P.W.1). He has deposed that Leelabai was telling that the accused demanded money for electricity connection. He has deposed that the body had bleeding marks on the face. In the cross-examination P.W.2 states that he visited Leelabai 4 to 5 times. He admits that Leelabai did not come to his house since two years prior to her death. Nirmala who is the maternal aunt of the deceased and sister of P.W.1 is examined as P.W.4. She has deposed that the deceased came to her house twice or thrice after marriage. The deceased told Nirmala that the accused was beating her and demanded Rs.5000/- for availing electric connection. P.W.4 has then deposed that when Leelabai was seven months pregnant Sugandhabai P.W.1 went to fetch her and the accused did not sent Leelabai. She has also deposed that the signs of bleeding were visible on the face of the body. She has deposed that according to the accused the injuries were caused due to fall.
11] In the cross-examination P.W.4 Nirmala admits that she met Leelabai in her home after one year of marriage and thereafter she did not visit the home of the deceased. She further ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 8 admits that Leelabai did not come to meet her. She further admits that Leelabai was not in a position to continue with the conception-pregnancey.
12] Ramdas, a close relative of the deceased, is examined as P.W.5. He claims that Leelabai told him that he was ill-treated by the accused under the influence of liquor. He further claims that Leelabai told him that Rajesh was demanding an amount of Rs.5000/- for availing electric connection. P.W.5 has deposed that the deceased stayed at his residence for 2 to 4 days.
14] P.W.6 Pramila, a neighbour of the accused did not support the prosecution. She was cross-examined on behalf of the prosecution. However, nothing is brought on record to assist the prosecution.
15] Ms. Dharini Muley, the learned counsel for the accused would submit that the evidence on record is absolutely unreliable. She would submit that the demand of Rs.5000/- for availing electric connection, which is the common thread in the evidence of the relatives of the deceased, is not proved. In fact, ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 9 the evidence of P.W.1 that eight days prior to the death of the deceased the accused demanded Rs.5000/- for electric connection is falsified from the admission in the cross-examination that the electric connection was already obtained a month or two prior to the death. The learned counsel would submit that the defence of the accused that Leelabai committed suicide since she was depressed due to inability to continue with the pregnancy is more than probablized on the touchstone of preponderance of probabilities. The postmortem report rules out pregnancy. P.W.1 admits that Leelabai was not able to continue with the conception and was uneasy which supports the defence that Leelabai committed suicide since she was depressed. Allegation that Leelabai was beaten under the influence of liquor or was ill-
treated otherwise is absolutely vague, lacking in material particulars, sketchy and therefore, not reliable, is the submission.
She would invite my attention to the following observations of the Hon'ble Supreme Court in Amalendu Pal Alias Jhantu v. State of Bengal (2010) 1 SCC 707:
12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the court must scrupulously examine the facts and circumstance of the case and also ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 10 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 but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there 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.
She would rely on the following observations in M. Mohan v. State represented by the Deputy Superintendent of Police (2011) 3 SCC 626:
42. In State of W.B. v. Orilal Jaiswal this Court has cautioned that (SCC p.90, para 17) the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 11
44. Abetment involves a 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 learned counsel would submit that since cruelty within the meaning of section 498-A of I.P.C. is not established, the presumption under section 113-A of the Evidence Act is not activated. She relies on the following observations of the Hon'ble Supreme Court in Mangat Ram v. State of Haryana (2014) 12 SCC 595:
29. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113-A of the Evidence Act could be raised.
Section 113-A of the Evidence Act reads as follows:
"113-A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman hand been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
30. We are of the view that the mere fact that if a married woman commits suicide within a period of ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 12 seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, th presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstance of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstance of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.
31. In this connection,, we may refer to the judgment of this Court in Hans Raj v. State of Haryana, wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 13 was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC.
32. We are of the view that the circumstances of the case pointed out by the prosecution are totally insufficient to hold that the accused had abetted his wife to commit suicide and the circumstance enumerated under Section 113-A of the Evidence Act have also not been satisfied.
33. In Pinakin Mahipatray Rawal v. State of Gujarat, this Court has examined the scope of Section 113-A of the Evidence Act, wherein this Court has reiterated the legal position that the legislative mandate of Section 113-A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, as per the presumption defined in Section 498-A IPC, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. The court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide. In the instant case, there is no evidence to show whether it was an accidental death or whether the deceased had committed suicide.
16] The submission of the learned A.P.P. is that cruelty within the meaning of explanation (a) and (b) of section 498-A of I.P.C. is established. The statutory presumption is 113-A is activated and axiomatically offence under section 306 of I.P.C. is ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 14 proved.
17] It would be apposite to consider the scope and ambit of section 306 of I.P.C. Ms. Dharini Muley invites my attention to the judgment of the Hon'ble Supreme Court in Mangat Ram vs. State of Haryana (2014) 12 SCC 595 and in particular to the following observation to paragraphs 28, 29, 30, 31 and 33 which read thus:
28. We have already indicated that the trial court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused.
The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below. Section 306 IPC reads as under:
"306. Abetment of suicide.-- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 15 out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.
18] Ms. Dharini Muley, the learned counsel for the appellant also relies on the following observation in Sanju alias Sanjay Singh Sengar v. State of M.P. 2002 Cri. L.J. 2796 (SC) to contend that even if the entire evidence is taken at face value, the necessary mens rea is not proved and the prosecution has not established that the accused instigated deceased Saroja to commit suicide and relies in particular on the following observations in paragraphs 7 to 13 which read thus:
7. Section 107, I.P.C. defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that 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.
8. Before we advert further, at this stage we may notice a few decisions of this Court, relevant for the purpose of disposal of this case.::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 16
9. In Swamy Prahaladdas v. State of M.P. and Anr., 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306, I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.
10. In Mahendra Singh v. State of M.P. 1995 Supp. (3) SCC 731, the appellant was charged for an offence under Section 306, I.P.C. basically based upon the dying declaration of the deceased, which reads as under:
"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 those reasons and being harassed I want to die by burning."
11. This Court, considering the definition of 'abetment' under Section 107, I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.
12. In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306, I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:
::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 17"A word uttered in a fit of anger of emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference were not, expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged for abetting the offence of suicide should be found guilty."
13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25 th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 18 told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27 th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25 th July, 1998. The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25 th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below 19] If the evidence is appreciated on the anvil of the settled position of law I am not persuaded to hold that the prosecution has established that the deceased was subjected to cruelty within the meaning of explanation (a) and (b) of section 498-A of I.P.C. and as a necessary consequence the offence under section 306 of I.P.C. is also not proved. The evidence is not at all confidence inspiring on the aspect of the alleged demand of Rs.5000/- for electric connection. The omnibus allegation, which is absolutely lacking in material details, that the deceased was ill-treated by the accused under the influence of liquor, is not sufficient to bring home the charge under section 498-A I.P.C.
The possibility, as is suggested by the defence, that since the ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 ::: apeal651.02.J.odt 19 deceased was not in a position to continue with the conception, she was depressed, cannot be ruled out. The burden on the accused is not to prove the defence beyond reasonable doubt.
It would suffice for the accused to create a reasonable doubt about the prosecution case.
20] I am inclined to grant the benefit of doubt to the accused and to acquit the accused of offence punishable under section 306 and 498-A of I.P.C.
21] The judgment impugned is set aside. The accused is acquitted of offence punishable under section 306 and 498-A of I.P.C.
22] The accused be released from custody forthwith.
23] The fine paid by the accused, if any, be refunded to him. The appeal accordingly stands disposed of.
JUDGE NSN ::: Uploaded on - 29/09/2017 ::: Downloaded on - 30/09/2017 01:52:18 :::