Bombay High Court
Ashish S/O. Chandrabhan Raulkar vs The State Of Maharashtra Thr. Police ... on 27 March, 2019
Author: Swapna Joshi
Bench: Swapna Joshi
CRI.APPEAL.495.17
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPEAL NO. 495/2017
Ashish s/o Chandrabhan Raulkar
Aged 32 years, occu: Pvt.Service
R/o C/o Plot No. 108, Ashok Colony
Telephone Exchange, Khamla Tq.& Dist. Nagpur. ..APPELLANT
versus
The State of Maharashtra
Through Police Station
Pratap Nagar, Nagpur. ..RESPONDENT
...............................................................................................................................................
Mr. Jitendra K. Matale, Adv. (appointed) for appellant
Ms.Mrunal Barabde, Additional Public Prosecutor for respondent
................................................................................................................................................
CORAM: MRS.SWAPNA JOSHI, J.
DATED: 27th March, 2019
ORAL JUDGMENT:
1. This Appeal has been directed against the judgment and order dated 03.08.2017 in Sessions Trial No. 65/2016 delivered by learned Ad-hoc Additional Sessions Judge-3, Nagpur, convicting the appellant for the offences punishable under sections 498A and 306 of the Indian Penal Code. For offence punishable u/s. 498A, the appellant was sentenced to suffer rigorous imprisonment for a period of three years and fine of Rs.2000/-, in default, to suffer SI for two months; whereas for offence punishable u/s. 306 IPC, the appellant was sentenced to suffer RI for five years and fine of Rs. 5000/-, in default, to suffer SI for four months. Needless to mention, both these sentences were directed to run concurrently.
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CRI.APPEAL.495.17 2
2. Brief facts giving rise to the instant Appeal may be summarized as under :-
Shweta (deceased) was married with the appellant on 10.10.2010. For a few days after solemnization of marriage, the appellant behaved with Shweta nicely, however, thereafter, he started abusing and ill-treating her under the influence of liquor.
The appellant used to suspect her fidelity. Out of the said wedlock, she begotten a baby-girl, some time in the year 2011. The appellant used to say that he was not father of the child. Due to the said ill-treatment and harassment at the hands of appellant, many a times, Shweta used to reside at her mother or sister's place. The appellant used to bring her back at his home time and again and started ill-treating her.
A complaint was lodged by Shweta with the Police as well as Women Cell. She also filed the case in Special Court under the provisions of the Domestic Violence Act. So also, preferred a divorce petition. However, the appellant assured her that he would behave properly and she again went for cohabitation with the appellant. However on 7.7.2015 and two days prior to the incident, Shweta was beaten by the appellant mercilessly and continuously and as a result, she committed suicide by strangulation.
The report came to be lodged by sister of deceased, namely, PW1-Sarika Shende at Pratapnagar Police Station, Nagpur. On the basis of the said report, the offences punishable u/ss. 498A and 306 of the IPC came to be registered. The Investigating Officer-PW11 API Dambre, visited the place of the incident and recorded the spot panchnama (Exh.28). PW11 collected the letters and communications made by the deceased to various authorities in her handwriting. He then prepared the Inquest ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 3 panchnama in respect of dead body of Shweta. During the course of investigation, PW11 recorded statements of various witnesses. After completion of investigation, charge-sheet was filed in the Court of learned Judicial Magistrate, First Class. Since the case was exclusively triable by Court of Sessions, the same was committed to the Court of Sessions. Charge was framed. The defence of the appellant was of total denial. The learned trial Judge after recording the evidence and hearing both sides, convicted the appellant as aforesaid. Hence, this Appeal.
3. I have heard Mr. J.K. Matade, the learned Advocate (appointed) for the appellant and Mrs.Mrunal Barabde, learned APP for the respondent-State. I have carefully gone through the record and proceedings of the case. Learned counsel for the appellant vehemently contended that the learned trial Judge has not considered the testimony of the witnesses in its right perspective and has erroneously held that the appellant had committed the offences. He submitted that the prosecution does not prove in any manner that the appellant has treated Shweta with cruelty, so much as so that she took the extreme step. Furthermore, there is no evidence to prove that the appellant instigated or abetted the said commission of suicide by Shweta. He further submitted that Shweta was complaining against the appellant since one year after her marriage. No doubt, she lodged the complaints against him in the Police Station. She also filed divorce case against him in the Family Court, however, both of them had arrived at a settlement. Considering the fact that in divorce proceedings the parties have settled their dispute, it goes to show that Shweta had condoned all the misdeeds ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 4 of the appellant and as such she had no complaint against him, so far as cruelty is concerned.
4. Per contra, the learned APP supported the impugned judgment and submitted that even assuming that Shweta had condoned the misdeeds of the appellant right from 2011 to 2014, however, the assault on Shweta by the appellant just immediately prior to her death, was nothing but an act of cruelty at the hands of the appellant which led her to commit suicide. The learned APP submitted that the learned trial Judge has considered the evidence led by the prosecution in its proper perspective and has rightly convicted the appellant and prayed for dismissal of the Appeal.
5. With the able assistance of learned counsel for respective parties, I have gone through the record and proceedings of the case. In order to consider the rival contentions of both sides, it would be advantageous to consider the evidence led by the prosecution, viz. PW 1-Sarika Shende; PW4-Sneha Gajbhiye, who are the sisters of the deceased and PW6- Sandeep Ukey, who is the brother of the deceased.
6. It is not seriously disputed that Shweta died a suicidal death. The house search panchnama (Exh.42) shows that in the bedroom there was a wooden cot with bedding on it; there was a ceiling fan having three blades; out of those, one blade was bent towards the ground and it was revealed by appellant that Shweta hanged herself with her chunni at the said spot. At this juncture, it would not be out of place to mention ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 5 here that it was the appellant who had reported the incident of suicide to the police on the date of incident itself. The spot panchnama (Exh.28) also shows that one of the blades of the ceiling fan was bent towards the ground and the hair-clips were seen fallen on the ground. Inquest panchnama (Exh.64) demonstrates that on the face of Shweta, there is greenish coloured mark below right eye on her face and it appeared swollen. Similarly, greenish colored mark was also visible on the left portion of her chin and reddish coloured circular mark around her neck.
The PM report (Exh.53-A) shows the following injuries on the person of deceased-Shweta:-
1) Ligature mark present around neck above the level of thyroid cartilage running obliquely upwards and backwards encircling the neck completely having involved 'v' mark at the right side of nape of neck situated 3 cm. below the level of external occipital protuberance of length 24 cm, breadth is varying; it is 1.5 cm at right side of neck, 2cm at anterior aspect of neck and 3 cm. at left side of neck. 0.5 cm above and below the ligature mark is reddish coloured whereas middle part is pale in colour.
Ligature mark is brownish in colour. Ligature mark is 5 cm below tip of chin whereas 10 cm. below left mastoid and over mastoid on right side, 10 cm. Above supracastonial nutch. Ligature material not present with the body at the time of postmortem examination.
2) Crescentric abrasion over anterior aspect of neck 3 cm above supracastonial notch 1x 0.2 cm reddish;
3) Contusion present over right cheek just below right eye, 3 x 3 cm. Bluish.
4) Contusion over left elbow, 2 x 2 cm. bluish. 5) Linear abrasion over left wrist on anterior aspect x x 0.1 cm, transverse, brownish.
All the aforesaid aspects indicate that Shweta died a suicidal death. ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 :::
CRI.APPEAL.495.17 6 Moreover, the evidence of PW1, PW4 and PW6 reveals that on the date of incident Shweta talked to them on telephone and informed about the continuous beating at the hands of the appellant since last two days prior to the incident. All these facts clearly indicate that Shweta died a suicidal death.
7. In order to consider the fact whether Shweta committed suicide due to the alleged ill-treatment at the hands of the appellant, the prosecution has heavily relied upon the testimony of PW1-Sarika Shende, PW4-Sneha Gajbhiye and PW6- Sandeep Ukey. The testimony of PW1-Sarika shows that Shweta got married with the appellant in the year 2010. Initially, for a few days, the appellant treated Shweta nicely, thereafter, he started abusing and assaulting Shweta, suspecting her fidelity. The appellant was not permitting her to speak with neighbours and not allow her to talk on mobile. Whenever Shweta used to visit the house of PW1, she used to complain against the appellant. In the year 2011 Shweta gave birth to a girl child, however, the harassment continued. In April 2012, Shweta along with her daughter went to the house of her parents at Yashodanagar. At that time, she informed about the harassment to her mother, however, on the next day, the appellant took them to his house and thereafter started assaulting Shweta inasmuch as he hit her head on the wall. PW1 deposed that a complaint was filed by Shweta with Mahila Cell, Pratapnagar, Nagpur. 2/3 meetings were held. The appellant assured that he would treat Shweta properly and Shweta again went to reside with him. On 10 th July 2013 at about 10 pm, as informed by Shweta, the appellant under the influence of liquor abused Shweta ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 7 stating that their daughter is not his daughter and he tried to assault Shweta by means of a knife, however, at that time the parents of appellant rescued Shweta. Therefore on 11.7.2013, Shweta lodged a complaint at Pratapnagar Police Station against the appellant. The police referred the matter to Vasundhara Counselling Centre at Suyog Building. The Counselling Centre referred the matter to the D.V. Court. The appellant then requested for one more opportunity and Shweta again went to reside with the appellant. In September 2014, Shweta filed a divorce case against the appellant. However, in the said proceedings a settlement took place between them and she went to reside with the appellant. According to PW1, thereafter 2 to 3 times Shweta informed her on phone that there is no iota of improvement in the behaviour of the appellant. On 7th July 2015 i.e, on the date of incident at about 9.45 am, PW1 received a phone call from Shweta who informed her that since last two days the appellant was assaulting her and she should come immediately, else she will do anything to her life. Shweta then cut the phone. Thereafter PW1 tried to call back Shweta, however, she did not respond. After about half an hour, PW1 received a phone call of her husband informing that he received a message from the uncle of the appellant that Shweta was hospitalized at Padole Hospital. Thereafter PW1 came to know that Shweta committed suicide.
8. The cross-examination of PW1 shows that she had made improvements with regard to the fact that on 10.7.2013 at about 10.00 pm, appellant told Shweta that daughter is not his daughter and appellant started quarelling with her. So also ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 8 Shweta informed the same to her, on phone. It is also an improvement made by PW1 that on 2/3 occasions, Shweta informed her that there is no change in the behaviour of the appellant. PW1 admitted that Shweta used to inform her that they shall reside separately from the parents of the appellant, but the appellant refused. She further admitted that the financial condition of the appellant was precarious as he had left his job and as such, quarrel used to take place between Shweta and appellant. She further admitted that Shweta used to demand money for household expenses but as the appellant was not providing it, Shweta was frustrated to the hilt. PW1 also admitted that the appellant was in the habit of consuming alcohol and he sold the gold ornaments of Shweta and as such, hre mental condition deteriorated.
9. A careful scrutiny of the testimony of PW1 shows that so far as the incidents of 2011 to 2014 are concerned, Shweta had condoned the alleged ill- treatment at the hands of the appellant and she settled the matter with him and started residing with him. Shweta condoned the misdeeds of appellant time and again in order to save her message, and started residing with him. However so far as the incident of 7th July 2015 is concerned, the testimony of PW1 that on 7.7.2015 at about 9.45 am she received a phone call from Shweta informing that since last two days appellant is assaulting her. Thus the testimony of PW1 has not been shaken in the cross-examination. So also, her testimony that Shweta requested PW1 to come and take her, otherwise the appellant would kill her or she will do anything of her life, is also not shattered in the cross-examination. There is nothing to disbelieve the testimony of ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 9 PW1 so far as the incident of 7th July 2015 is concerned.
10. The testimony of PW1 is well supported by PW 4-Sneha Gajbhiye and PW6-Sandeep Ukey,, which is on the same lines. PW4 also stated that on 7.7.2015 she received a phone call from his sister Sarika (PW1) informing that the appellant was beating Shweta and therefore she should immediately go to her house.
11. The testimony of PW6-Sandeep Ukey shows that on the date of incident, her older sister PW1 made a phone call and told her that Shweta was suffering from physical problem and she was admitted at Padole Hospital.
12. The overall assessment of the evidence of prosecution witnesses PW1, PW 4 and PW6 indicate that since two days prior to 7.7.2015, Shweta was severely beaten by the appellant. The postmortem report (Exh. 53A) supports the evidence of PW1. The contents of FIR which are in consonance with the testimony of these witnesses, go to shows that immediately prior to her death, Shweta was beaten by the appellant and she has informed about the said assault to PW1.
13. Now coming to the allegations against the appellant that he had ill- treated Shweta 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 :
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CRI.APPEAL.495.17 10 "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."
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 ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 11 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 appellant 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 appellant 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. ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 :::
CRI.APPEAL.495.17 12
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 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 ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 13 suicide.
18. Thus, the evidence on record shows that the prosecution has established that soon before death, Shweta was subjected to cruelty, so much so that she was driven to commit suicide. No doubt, it is gathered that every time deceased Shweta tried to save her marriage by arriving at a compromise with the appellant. However the conduct of the appellant was of such a nature that Shweta was driven to commit suicide. In view thereof, it is held that the prosecution has established that the appellant committed the offence punishable u/s 498A of the IPC. However the quantum of sentence needs to be considered rather sympathetically. So far as the allegations against the appellant that he has aided and abetted the commission of suicide, there is no convincing evidence on record. The version of PW1, PW 4 and PW6 simply indicates that since two days prior to the incident 7.7.2015 the appellant was continuously beating Shweta. The testimony of PW 1 is not sufficient to indicate that the appellant aided and abetted the commission of suicide. I am of the opinion that the appellant is entitled to be acquitted for offence punishable u/s 306 of the IPC. The learned trial Judge should have assessed the evidence of prosecution in its proper perspective. Hence, the following order:-
ORDER
(i) Criminal Appeal No.495/2017 is partly allowed.
(ii) The judgment and order dated 3.8.2017 in Session Trial No. 65/2016 delivered by learned Ad-hoc Additional Sessions Judge-3, Nagpur convicting the appellant u/s ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 ::: CRI.APPEAL.495.17 14 306 of the IPC, is hereby set aside.
(iii) The conviction of the appellant for offence punishable under section 498A of the IPC is hereby modified and altered to one year. The amount of fine of 2000/-, in default, SI for two months, is maintained.
(iv) The professional fees of the Advocate appointed for the appellant, are quantified at Rs.5000/-only.
JUDGE sahare ::: Uploaded on - 05/04/2019 ::: Downloaded on - 05/04/2020 01:14:55 :::