Bombay High Court
Sunil Shrikurshna Wankhade And Anor vs State Of Mah. Thru. Pso Yeoda on 11 January, 2021
Author: Pushpa V. Ganediwala
Bench: Pushpa V. Ganediwala
213Cri.apeal624.08.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 624 OF 2008
1) Sunil Shrikrushna Wankhade,
Aged about 30 years.
2) Sau. Kamalabai Shrikrushna Wankhade,
Aged about 55 years,
Both R/o. Wadnergangai,
Tq. Daryapur, Distt. Amravati
...APPELLANTS
// VERSUS //
State of Maharashtra through
P.S.O. Yeoda, Tq. Daryapur,
District Amravati
...RESPONDENT
________________________________________________________________
Shri J.Y. Ghurde, Advocate for the appellants.
Shri M.J. Khan, A.P.P. for respondent - State.
____________________________________________________
CORAM : PUSHPA V. GANEDIWALA, J.
JANUARY 11, 2021.
JUDGMENT :
This is an appeal against the judgment and order passed by the Additional Sessions Judge, Achalpur, Dist. Amravati, in Sessions Trial No. 22/2005 dated 31/07/2008 which convicted the appellants in Crime No. 81/2004 for the offence punishable under Sections 302 and 498-A read with Section 34 of Indian Penal Code (for short "IPC") registered at Police Station, Yeoda, Tah. Daryapur, Dist. Amravati. The appellant No. 1 is accused No. 1 and ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 ::: 213Cri.apeal624.08.odt 2 appellant No. 2 is accused No. 3 before the trial Court. The other two co-accused have been acquitted by the trial court.
2. I have heard Shri Ghurde, learned counsel for the appellants/accused and Shri M.J. Khan, learned Additional Public Prosecutor for the respondent - State.
3. The prosecution case, in brief, necessary for deciding the present appeal is as under :
The deceased - Ujwala was the wife of the appellant No. 1 and daughter-in-law of appellant No. 2. Her marriage with appellant No. 1 was solemnized in the year 2002. PW-2 -
Pandurang s/o Wakila Tayade and PW-5 - Rangrao s/o Baliram Gawai, were the mediators of her marriage. After marriage, for about one year, the deceased was treated properly. Thereafter, she was subjected to mental and physical harassment for demand of remaining dowry amount of Rs. 10,000/-, which was promised at the time of marriage. Fade up with the harassment, she committed suicide on 06/11/2004 at her matrimonial house. On the same day, father of the deceased - Hiraman Uttamrao Sardar, lodged report and accordingly crime came to be registered against the present appellants, father-in-law and brother-in-law of the deceased for the offence punishable under Sections 302 and 498-A of the IPC.::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
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4. After investigation, the charge-sheet came to be filed before the Court of J.M.F.C., Daryapur, Dist. Amravati. After committal, the Additional Sessions Court, Achalpur framed charge (Exh. 48) dated 22/01/2007 against all the accused for the offence punishable under Sections 302 and 498-A read with Section 34 of the IPC. To substantiate the charge, the prosecution examined in all six witnesses and also brought on record the relevant documents.
5. The learned trial Court also examined the Medical Officer as a court witness. The learned trial Court recorded statements of the accused persons under Section 313 of the Code of Criminal Procedure and after hearing both the sides, the learned trial Court found that the prosecution has failed to prove the homicidal death of the deceased and convicted the appellants herein i.e. husband and mother-in-law of the deceased for the minor offence punishable under Sections 306 and 498-A read with Section 34 of the IPC and acquitted other co-accused fully i.e. father-in-law and brother-in-law of the deceased.
6. It is the specific case of the defence that the appellant No. 1, the husband of deceased was blind with one eye and, ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 ::: 213Cri.apeal624.08.odt 4 therefore, the deceased was disliking him and, as such she was against this marriage, which prompted her to commit suicide at her own.
7. Shri Ghurde, learned counsel for the appellants/ accused submits that the prosecution witness (PW-5), who admittedly acted as a mediator for the marriage, admitted that the in-laws of the deceased were residing separately. The learned counsel further pointed out certain omissions and contradictions from the evidence of prosecution witnesses which according to him go to the root of the prosecution case, to disprove its case.
8. It is further the submission of the learned counsel for the appellants/accused that though the charge under Section 306 of the IPC was not framed, the appellants/accused have been convicted for the same. It is submitted that Section 306 of the IPC cannot be termed as a minor offence of Section 302 of the IPC.
9. The learned counsel for the appellants/accused, in support of his submission, placed reliance on the following judgments :
(i) Virendra Kumar Vs. State of Uttar Pradesh and ors. reported in 2003 Cri. L.J. 2709.
(ii) Gurjit Singh Vs. State of Punjab reported in 2019 (16) Scale
634. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
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10. As against this, the learned Additional Public Prosecutor, while supporting the judgment of conviction, submitted that there are specific instances of cruelty at the hands of the appellants/accused which have been clearly brought on record by the prosecution. There was an incident of beating at the hands of the appellants/accused and the prosecution witnesses deposed with specific details as to beating and the injuries which were noticed. The learned A.P.P. also pointed out one incident of running away of the deceased from her matrimonial house and reached her elder sister's house at Jainpur, apprehending threats of killing.
11. In conclusion, learned A.P.P. submits that the prosecution could prove with cogent and consistent evidence that the appellants/accused i.e. husband and mother-in-law of the deceased subjected the deceased to cruelty of such a nature which drive the deceased to commit suicide. Learned A.P.P. also pressed for applicability of Section 113-A of the Evidence Act, 1872 which speaks about presumption with regard to abetment of suicide by married woman within a period of seven years from the date of her marriage as she was subjected to cruelty by the appellants/accused. The learned A.P.P. urged this Court to dismiss the appeal. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
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12. The learned Additional Public Prosecutor, in support of his submissions, relied on the judgment of the Hon'ble Apex Court in the case of Virendra Kumar Vs. State of Uttar Pradesh and ors . reported in 2003 Cri. L.J. 2709.
13. I have considered the submissions advanced by learned counsel appearing on behalf of both sides. I have also perused the records.
14. At the outset, in the present case the learned trial Court framed charge against the appellants/accused for the offence punishable under Sections 498-A and 302 read with Section 34 of the IPC, while conviction is recorded for the offence punishable under Sections 498-A and 306 read with Section 34 of the IPC.
15. Now, the first question arises for consideration is, whether framing of charge under Section 306 of the IPC was necessary in the facts of this case. Undisputedly, the death was by hanging. The whole evidence before the Court is in the context of hanging by deceased i.e. suicide, while the trial Court framed the charge for Section 302 of the IPC.
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16. The testimony of prosecution witnesses supported by medical evidence proved death by suicide. In such circumstances, there was no confusion to accused with regard to charge framed against him. Furthermore, when a married women died in an unnatural circumstance and Section 498-A of the IPC is invoked, it is quite difficult to say with certainty as to which of the offence amongst cognate offences i.e. Section 304-B, 306 and 302 of the IPC would be applied. Section 304-B of IPC would be applied in a case when an unnatural death is occurred within a period of seven years from the date of marriage of the deceased and there was ill-treatment at the hands of the appellants/accused soon before her death. Section 304-B of the IPC is a graver offence than Section 306 of the IPC. Scope of Section 306 of the IPC is wider in its compass.
17. Sections 221 of the Code of Criminal Procedure deals with the situation when it is doubtful as to what offence has been committed. For ready reference Section 221 of the Code of Criminal Procedure is reproduced below :
"221. Where it is doubtful what offence has been committed - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 ::: 213Cri.apeal624.08.odt 8 will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-
section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."
18. In the instant case, initially there was a confusion as to whether it was the case of hanging or strangulation and hence, the charge of Section 302 of IPC was framed, however, during the trial the whole case proceeded on the premise that the deceased committed suicide. The trial Court also dealt with this issue in quite detail in paragraph No. 22 of the judgment.
19. In such circumstances, absence of framing of charge for the offence punishable under Section 306 of the IPC, in the opinion of this Court, was not prejudicial to the interest of the accused and there was no injustice done to the accused and it was not a vital irregularity as per Section 464 of the Code of Criminal Procedure. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
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20. Now, the next question is whether the prosecution could prove beyond reasonable doubt, the charge under Section 498-A of the IPC. For ready reference, Section 498-A of the IPC is reproduced below :
"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 to this Section defines cruelty : (a) willful conduct on the part of the accused which is of such a nature as is likely to drive the woman to commit suicide etc. (b) harassment of the woman 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 to meet such demand.
21. In the instant case, PW-1 - Hiraman, who is the father of the deceased and also the informant, deposed that after the marriage for one year she was treated properly and thereafter whenever deceased used to visit his house, she used to say about the ill-treatment meted out to her on account of demand of money. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
213Cri.apeal624.08.odt 10 He could not satisfy the demand because of his poverty. This witness deposed about one incident of beating by wooden plank by the appellants for dowry amount. They brought her to their house and she stayed there for three months and thereafter, both the appellants/accused along with their two relatives had been to the house of this witness and there was settlement and with assurance that no such thing would happen in future, the deceased was sent back.
22. This witness further deposed that after one month, the father-in-law of the deceased inquired about whereabouts of the deceased as she was missing from the house. The deceased was found at Jainpur at her elder sister's and brother-in-law's house. She informed that she was beaten for the amount of dowry and, therefore, she ran away from her in-laws house. The deceased was again sent with her cousin father-in-law to her matrimonial house.
23. After two months i.e. on 06/11/2004, the informant received a telephonic message about the death of his daughter. This witness along with his wife reached her matrimonial house, she was found lying dead with ligature marks around her neck. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
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24. Now, the question is, whether the facts narrated above would fall under the definition of cruelty, as contemplated under Section 498-A of the IPC. On a careful and comparative reading of the deposition of PW-1 and the contents in the F.I.R., one thing is discernible that there was harassment to the deceased on account of money though the wordings in the deposition and the F.I.R. do not match exactly, however, the import is that there was physical and mental harassment.
25. Now, the question is, whether this harassment can be seen as a willful conduct on the part of the appellants/accused to drive her to commit suicide. Admittedly, whenever the deceased left her matrimonial house on account of harassment, her husband or in-laws used to come to take her and there used to be settlement and, therefore, the harassment as has been brought on record can be said to be 'a willful conduct' of such a nature to drive her to commit suicide. However, it does come under explanation (b) that the beating was for unlawful demand of some dowry.
26. As rightly pointed out by the learned defence counsel, the amount of Rs. 10,000/- which PW-1 deposed before the Court is missing from his statement in the First Information Report. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
213Cri.apeal624.08.odt 12 However, as stated above, the import of the whole of the contents in the report would unerringly reflect that there was some tussle on account of money / dowry. In such circumstances, the prosecution could establish the offence of cruelty under Section 498-A of the IPC.
27. With regard to the offence punishable under Section 306 of the IPC, PW-1 deposed that after two months when she was sent to her matrimonial house, he received a call about the death of his daughter but what happened during the period of two months, there is absolutely nothing on record. The two incidences of cruelty, as narrated above, are not sufficient to say that the appellants/ accused had instigated the deceased to commit suicide.
28. In the absence of any concrete material on record, the presumption under Section 133-A of the Evidence Act, 1872, as pressed by Shri Khan, learned Additional Public Prosecutor, could not come into play. It is a rebuttable presumption. Shri Ghurde, learned counsel appearing on behalf of the appellants/accused has relied on the judgment of the Hon'ble Apex Court in this regard in the case of Gurjit Singh Vs. State of Punjab reported in 2019 (16) Scale 634. The learned counsel has drawn the attention of this ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 ::: 213Cri.apeal624.08.odt 13 Court to paragraph No. 23 of the said judgment, which is reproduced below :
"23. It will be relevant to refer to the following observations of this Court in the case of Pinakin Mahipatray Rawal Vs. State of Gujarat :
26. Section 113A only deals with a presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established.
Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when 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 terms defined in Section 498-A of the IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 ::: 213Cri.apeal624.08.odt 14 Section 498-A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extramarital affair was of such a degree which was likely to drive the wife to commit suicide.
27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused.
The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 ::: 213Cri.apeal624.08.odt 15 that the accused had provoked, incited or induced the wife to commit suicide."
29. The Hon'ble Apex Court in the aforesaid judgment relied on the case of Mangat Ram Vs. State of Haryana reported in 2014 (12) SCC 595, wherein it is held that "in the matter of an offence punishable under Section 306 of the IPC, abetment must attract the definition thereof in Section 107 of the IPC. The 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 of the IPC that, in order to make 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."
30. In the instant case, the facts and circumstances discussed above do not make out a case of abetment at the hands of the appellants/accused to drive the deceased to commit suicide. ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::
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31. In this view of the matter, this Court partly allows the Appeal. The judgment of conviction for the offence punishable under Section 306 of the IPC is set aside. The conviction of the appellants/accused for the offence punishable under Section 498-A of the IPC is confirmed.
32. It is stated that appellant No. 2 - mother-in-law is aged about 65 years and she is a paralytic patient confined to bed and appellant No. 1 had already undergone five months sentence. There is no minimum sentence prescribed for the offence punishable under Section 498-A of the IPC. In such circumstances, the sentence which is already undergone by the appellants/accused is justified for conviction for the offence punishable under Section 498-A of the IPC. The bail bonds of the appellants/accused stand cancelled.
JUDGE D.S.Baldwa ::: Uploaded on - 22/01/2021 ::: Downloaded on - 07/02/2021 09:43:57 :::