Bombay High Court
Pralhad S/O Baburao Bhopale vs The State Of Maharashtra on 14 February, 2020
Author: R.G. Avachat
Bench: R.G. Avachat
Cri Appeal 418 of 2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.418 OF 2002
Pralhad s/o. Baburao Bhopale,
Age : 25 years, Occ. Teacher,
r/o. Dhanora (Banjara),
Tq. Sengaon, Dist. Hingoli ..Appellant
Vs.
The State of Maharashtra ..Respondent
----
Mr.N.S.Ghanekar, Advocate for appellant
Mr.S.P.Sonpawale, APP for respondent
----
CORAM : R.G. AVACHAT, J.
DATE : FEBRUARY 14, 2020
JUDGMENT :-
This appeal is directed against the judgment and order dated 25.07.2002 passed by learned IInd Additional Sessions Judge, Parbhani, in Sessions Case No.143 of 2000, whereby the appellant (original accused no.1) came to be convicted for the offence punishable under Section 498-A of Indian Penal Code ("I.P.C.", for short) and sentenced to suffer rigorous imprisonment for one year and directed to pay a fine of Rs.500/-. He is further convicted for the offence punishable ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 2 Cri Appeal 418 of 2002 under Section 306 of I.P.C. and sentenced to suffer rigorous imprisonment for five years and directed to pay a fine of Rs.1,000/-. In default of payment of fine, the appellant has been directed to suffer rigorous imprisonment for one month and six months, respectively.
2. The facts necessary to decide this appeal, are as follows:-
Kishan (PW 6) is resident of village Dhanora, Dist. Hingoli. He has no issue. Sunita (deceased), a daughter of his co-brother, had,
therefore, been residing with him since her age of three years. It is he, who had brought her up. As Sunita came up of age, he gave her in marriage to the appellant, a son of his brother. Sunita had married the appellant two years before the incident dated 24.12.1999.
3. On the fateful day, both Kishan and Sunita had been to the field. Kishan's wife had gone to ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 3 Cri Appeal 418 of 2002 village Kapadsingi for marketing. Sunita returned home alone by little past 04.00 p.m. Someone informed Kishan that Sunita's health condition became critical. He, therefore, rushed home to find Sunita unconscious. Sunita breathed her last within minutes thereafter.
4. Kishan (PW 6) lodged First Information Report (F.I.R.) three days thereafter i.e. on 27.12.1999, alleging therein that the appellant, his two brothers and their parents had harassed and illtreated Sunita, so that he would transfer his ten acres land to the appellant. It is further alleged in the FIR that the appellant had treated Sunita well for three months after marriage. Thereafter, the appellant started illtreating her for aforesaid reason. Post three months of marriage, Sunita had, therefore, started residing at the house of Kishan.
5. Charge-sheet was filed against the appellant, his two brothers and their parents. They ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 4 Cri Appeal 418 of 2002 were charged with the offences punishable under Sections 304-B, 306 and 498-A read with Section 34 of I.P.C. The trial Court acquitted the in-laws of Sunita of all the charges. The appellant was acquitted of the offence under Section 304-B of I.P.C. The State has not preferred appeal from acquittal. Eleven witnesses were examined by the prosecution to establish the Charge.
6. The question in this appeal is, whether the trial Court was justified in convicting the appellant for the offences punishable under Sections 498-A and 306 of I.P.C.
7. Heard learned Counsel for the parties.
8. Mr.Ghanekar, learned Counsel appearing for the appellant, would submit that there was no evidence to connect the appellant with the offences he has been convicted for. Admittedly, for little over one and half years, Sunita (deceased) had been ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 5 Cri Appeal 418 of 2002 living away from the appellant. There is even no evidence to suggest Sunita committed suicide. The trial Court gave a one-line reason to hold the appellant guilty. Learned Counsel took me through the evidence on record to urge for acquittal of the appellant.
9. Learned APP would, on the other hand, support the impugned judgment and order.
10. Before adverting to the evidence in the case, it is necessary to have a look at Sections 498-A and 306 of I.P.C., which read thus:-
498A. 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.
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 ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 6 Cri Appeal 418 of 2002 extend to ten years, and shall also be liable to fine.
11. A willful act or conduct ought to be proximate cause in order to bring home the charge under Section 498-A of Indian Penal Code, while without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. There has to be clear mens-rea to commit the offence. There also requires an active or direct act, which would lead the deceased to commit suicide seeing no option and that act must have been intended to drive the deceased into such a position that he/she commits suicide (S.S.Chheena Vs. Vijay Kumar Mahajan and anr., 2010 Mh.L.J. Online (Cri.)(S.C.) 4.
12. Although the prosecution has examined eleven witnesses to establish the charge, relevant evidence is of only 4-5 witnesses. Admittedly, Sunita (deceased) had married the appellant two years before the incident dated 24.12.1999. She had been treated ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 7 Cri Appeal 418 of 2002 well for initial period of three months. Thereafter, the appellant, allegedly, started illtreating/ harassing her, so as to compel the informant - Kishan (PW 6) to give the appellant his ten acres of agricultural land. Admittedly, for three months of her marriage, Sunita had been residing with the appellant at her matrimonial home. Thereafter, she was staying with her foster father (Kishan). The fact, however, is that the matrimonial home of the deceased and the house of her foster father were in one Wada. Both these premises were separated by an intervening wall.
13. The appellant is none other than a son of real brother of the informant - Kishan (PW 6). Since Kishan had no issue, the deceased, daughter of his co-brother, had been brought up by him since her childhood. It is in the evidence of Kishan (PW 6) that the appellant treated Sunita well for about three months and thereafter, the appellant and in- laws of Sunita, started asking him to give them ten ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 8 Cri Appeal 418 of 2002 acres of agricultural land by executing sale deed, else they would not allow Sunita to reside at her matrimonial home. It is further in his evidence that he had reasoned with them, stating that after his demise, all of his property would belong to Sunita and the appellant. The appellant, however, did not listen. Since three months of her marriage, Sunita had been residing at the house of the informant - Kishan (PW 6) and not at her matrimonial home. It is further in his evidence that the appellant would abuse Sunita with a view to ensure that his demand for ten acres of land would be met with. It is further in his evidence that Sunita committed suicide by consuming poison. He meant to say that Sunita took this extreme decision as the harassment meted out to her by the appellant became unbearable.
14. Fakir (PW 7), a cousin of the appellant, testified somewhat on the lines of the evidence given by Kishan (PW 6). It is in his evidence that the appellant was insisting Kishan (PW 6) to transfer his ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 9 Cri Appeal 418 of 2002 agricultural land in his name. It is further in his evidence that Sunita had related him that the appellant was demanding ten acres of land and therefore, she did not have cordial relations with the appellant.
15. Then comes the evidence of Sakharam (PW 8). It is in his evidence that after two-three months of marriage, the appellant started harassing Sunita in connection with the demand of ten acres land. He (appellant) had told Kishan (PW 6) to meet his demand, else he would not maintain Sunita. Sunita had related him that she was subjected to illtreatement by the appellant in connection with the demand of ten acres of land. Sakharam (PW 8) went on to state that he had attempted to work out an understanding between the appellant and Kishan (PW 6).
16. A close reading of the evidence of PW 6 to PW 8 would, undoubtedly, indicate that Sunita had been treated well for about three months of her ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 10 Cri Appeal 418 of 2002 marriage. Thereafter, she was illtreated by the appellant. She had, therefore, started residing at the house of her foster father Kishan (PW 6). The evidence of the aforesaid witnesses is, however, silent as to in what way Sunita had been illtreated. True, Kishan, being real uncle of the appellant, appears to have no reason to falsely implicate him. The evidence on record has, however, to be such, which would make out ingredients of the offence. For little over one and half years next before Sunita, allegedly, committed suicide, she was not residing at her matrimonial home.
17. The evidence of the aforesaid witnesses is silent to state the nature of illtreatment meted out to Sunita. Their evidence indicate that the appellant would ask Kishan (PW 6) to transfer his ten acres land in his name. Even there is evidence to indicate that Kishan executed a will bequeathing his five acres land to Sunita and the appellant. The fact, however, remains that the evidence of the prosecution ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 11 Cri Appeal 418 of 2002 is silent to state the nature of illtreatment. Moreover, there is also no evidence to indicate the appellant to have illtreated the deceased during the period proximate to her breathing last.
18. On the same evidence, it has to be appreciated, whether it constitutes the offence of abetment of suicide. Admittedly, Sunita did not leave behind a suicide note. So as to bring home charge of abetment of suicide, the factum of suicide is condition precedent. Post mortem report (Exh.32) states the cause of death to be - cardio respiratory arrest due to unknown poisoning. Viscera was preserved for chemical analysis. On receipt of the report, it was found that the viscera contained Organochlorine insecticide Endosulfan and organo- phosphorous insecticide dimethoate (Rogor).
19. On the fateful day, Kishan (PW 6) was away in the field along with Sunita. Sunita returned home alone by little past 4.00 p.m. Someone informed ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 12 Cri Appeal 418 of 2002 Kishan (PW 6) that Sunita's condition was critical. He, therefore, immediately rushed home. Within minutes of his returning home, Sunita breathed her last. There is no witness to state to have seen Sunita consumed insecticide. Admittedly, Sunita's mother, wife of Kishan, and other 4-5 persons had been to the police station same day. Report of accidental death was lodged. For about three days, everyone kept silence. It is only on 27th, Kishan lodged the report, alleging the appellant and his relations to have illtreated the deceased and as a result thereof, she committed suicide. The deceased committed suicide, was the inference drawn by Kishan. There is another aspect of the matter that is when the inquest was conducted, a chit was found on the person of the deceased. The chit contained following matter :-
" मास्तर साहेबरराव मला मारायला आले होते व मी पळू न गेली. माझी मावशी गावाला गेलती. मला कुराड घेवून मारायला आले. प्र्ल्हादन, साहेबरराव औषध पाझल नरडी दाबरली मेली मनू ठाकली कागी मनू लागली मेललका पहा जेलमठे प करा माझया मावशीला काकाला धका लाव नका. जवान माझी झझपोटी धरली"::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 :::
13 Cri Appeal 418 of 2002
20. So as to find whether the chit was in the handwriting of the deceased, two answer-sheets in her handwriting, were obtained from her school. The handwriting expert - Parshuram Dhotre (PW 11) examined the questioned handwriting and the handwriting in the answer sheets, to conclude that all the three documents were in the handwriting of one and the same person. The prosecution, therefore, meant to say that the chit was in the handwriting of the deceased.
21. Surprisingly, the Investigating Officer did not make investigation to ascertain, whether it was a case of homicidal death. In spite of there being such a chit, Kishan (PW 6) and others kept silent. Kishan (PW 6), informant, is the real uncle of the appellant. Be that as it may. It cannot be observed that the chit was lateron planted and made part of the police papers. True, after having consumed insecticide like Rogor, it may be impossible for a ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 14 Cri Appeal 418 of 2002 person consuming insecticide even to scribble three- four lines. Even, it may be said that the chit might have been brought into existence before the incident of alleged administration or consumption of insecticide. As such, there are three versions of the said incident. The contents of the chit suggest it to be a case of homicide. The mother of the deceased and other relations first reported the police it to be a case of accidental death and after three days, Kishan (PW 6) lodged the FIR, stating it to be a case of suicide. The evidence on record is not clear enough to conclude it to be a case of suicide. Assuming but not admitting it to be a case of suicide, aforesaid evidence that the appellant illtreated the deceased in connection with the demand for ten acres of land, would be short of observing it to be a case of mens rea attributing intention to the appellant to drive the deceased to commit suicide.
22. Based on the aforesaid evidence, the trial Court, in my view, was not justified in observing ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 15 Cri Appeal 418 of 2002 that the appellant was greedy to get ten acres of agricultural land from Kishan (PW 6) and for that purpose, he had deserted Sunita and he used to abuse her when she was residing with Kishan (PW 6).
23. The observations of the trial Court begin with the words "it appears that". These words, undoubtedly, indicate that the trial Court was not firm of its conclusion drawn on the basis of the evidence on record. The trial Court further observed that the appellant deserted Sunita and abused her, was a harassment that drove her to commit suicide. This inference has no evidential base. This is nothing short of conjectures and surmises.
24. It is reiterated that the prosecution has not conclusively established that Sunita committed suicide. There is also no evidence to suggest that Sunita was subjected to such illtreatment as was enough to constitute a compelling circumstance to take decision to end her own life. I am, therefore, ::: Uploaded on - 25/02/2020 ::: Downloaded on - 09/06/2020 19:03:39 ::: 16 Cri Appeal 418 of 2002 not at one with the findings recorded by the trial Court. Inference therewith is, therefore, called for.
25. In the result, the appeal succeeds. Hence, the following order :-
(i) The Criminal Appeal is allowed. (ii) The judgment and order of conviction and
sentence dated 25.07.2002, passed by learned IInd Additional Sessions Judge, Parbhani in Sessions Case No.143/2000 is quashed and set aside.
(iii) The appellant is acquitted of the offence punishable under Sections 306 and 498-A of the Indian Penal Code.
(iv) His bail bonds are cancelled.
(v) Fine amount, if paid, be returned to him.
[R.G. AVACHAT, J.]
kbp
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