High Court
Facts
{1} 234-06 CRIAPEALIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 234 OF 2006Vinod S/o. Khushalbhau BhosaleAge: 19 years, Occu.: BusinessR/o. Satral Shivar, Tq. Rahuri,District Ahmednagar … Appellant(Orig. Accused No.1) VersusThe State of Maharashtra … Respondent ...…Mr. Niraj Chudiwal, Advocate h/f Mr. Satej S. Jadhav, Advocate forAppellantMr. V.M. Jaware, APP for Respondent - State...... CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 06 JANUARY, 2025 PRONOUNCED ON : 09 JANUARY, 2025 JUDGMENT :- 1.In this appeal, convict in Sessions Case No.1 of 2006 takesexception to the judgment and order passed by learned 3rd Ad-hocAdditional Sessions Judge, Ahmednagar, dated 06.03.2006 convictinghim for offences punishable under sections 498-A and 306 of IndianPenal Code (IPC). {2} 234-06 CRIAPEALPROSECUTION CASE IN BRIEF 2.In brief case of the prosecution is that, deceased Surekha wasmarried to present appellant in the year 2003 and after marriage, shewent to cohabit with present appellant i.e. husband, and in-laws. Forone year, everything was smooth. However, after demise of herfather-in-law, the accused persons started addressing deceasedSurekha as a "jinx," i.e., someone who brings misfortune and bad luckto their house. Appellant/accused no.1 also beat her and remainingaccused abused her. Surekha reported about this on phone to herparents and brother and even during their visits to her house. Allaccused also demanded Rs.25,000/- for purchase of motorcycle forappellant. It is the case of prosecution that, as above demand was notmet, Surekha was ill-treated and getting fed up, she hanged herselfand committed suicide. On report of father PW-2, crime wasregistered for offences punishable under Sections 498-A and 306 ofthe IPC.After investigation, accused were charged and the trial wasconducted before the learned 3rd Additional Sessions Judge,Ahmednagar, vide Sessions Case No.01 of 2006 and afterappreciating oral and documentary evidence, learned trial court, byjudgment and order dated 06.03.2006, acquitted accused nos. 2 and {3} 234-06 CRIAPEAL3, but convicted accused no.1, i.e. present appellant, for aboveoffences.Feeling aggrieved by above conviction, the present appeal hasbeen preferred on various grounds raised in the appeal memo.SUBMISSIONSOn behalf of appellant :3.Learned Counsel for appellant submitted that there is falseimplication. That, vague, general and sweeping allegations arelevelled. He pointed out that, on the same set of evidence, accusednos.2 and 3 are acquitted, but appellant/husband is alone convicted.Learned counsel pointed out that evidence of father, mother andbrother of deceased is not consistent and there are materialomissions. That, there is no evidence to suggest the applicability ofeither offence under Section 498-A or about abetment to commitsuicide. Therefore, learned counsel prays for setting aside of theimpugned judgment and order by allowing the appeal. On behalf of State :4.Per contra, learned APP supported the judgment by submittingthat, after one year of marriage, accused persons abused deceasedSurekha and they considered her as a ‘jinx’. That, immediately after {4} 234-06 CRIAPEALshe stepped into their house after marriage, her father-in-law died,followed by her brother-in-law. That, appellant and in-laws ofdeceased were superstitious, and they ill-treated, abused Surekha onabove count. That, they also put up demand of Rs.25,000/- forpurchase of a motorcycle for the appellant. That, appellant beatdeceased Surekha and therefore, according to learned APP, learnedtrial court has correctly appreciated the available evidence andcommitted no error whatsoever in holding appellant guilty. For abovereasons, learned APP prays to dismiss the appeal. STATUS AND ROLE OF PROSECUTION WITNESSES5.In support of its case, prosecution has examined as many asfive witnesses. Their role and status and the sum and substance oftheir evidence can be summarized as under : PW1Santosh has acted as pancha to spot panchanama Exhibit 26.PW2Dagadu Keshav Salve is father of the deceased. He deposed atExh.27 as under :“1. ……. I am having 3 daughters viz. Sangita Baban, MandaBharat and Surekha Vinod. Surekha was my third daughter.Marriage of Surekha took place with accused no.1 in the year2003 as per Christian Rites and Religion. After marriage,Surekha went for cohabitation with accused no.1 When {5} 234-06 CRIAPEALmarriage took place, accused no.1, his parents and his brotherwere residing together. Surekha gave birth to a male child whois not 1 ½ years of age. 2) For one year good treatment was given to deceasedSurekha. After one year, her father-in-law died. All accusedwere telling that due to her arrival in their family misfortunestarted and therefore her father-in-law died. Accused no.1 usedto beat her while accused no.2 used to abuse her. My daughtertold me about ill treatment on phone and also in our visits toher house. I and my wife used to go to her house and used toconsole her. I accused to behave properly with my daughter.However, there was no change in the behavour of the accused.After 6 months of death of father-in-law, brother-in-lawRajendra was also expired. Thereafter, accused gave more ill-treatment to my daughter. All accused were telling my daughterthat she was of “Pandharya Payachi” and were giving her ill-treatment. My daughter informed me. Therefore, I and my wifewent to the house of accused and told them to behave properly. 3) All accused before 6 months of the death of Surekhademand Rs.25,000/- to Surekha for purchasing motorcycle.Surekha told me this on phone as well as on my personal visitsto her. I and my wife told accused that we were not having thatmuch amount. I assured that we would pay the said amountlater on. Accused quarrelled with me for not giving money. 4) On 24.10.2005, my mother-in-law Shantabai Laxmanexpired. I informed accused, but they did not send Surekha. On05.11.2005, my son Prakash went to bring Surekha for Bhaubij.My son halted there. I had been to Rampur to attend the funeralof my cousine brother Dadu Bhosale. My uncle Bhivsen Salvetold my that my daughter committed suicide by hanging. I sawligature marks on the neck of my daughter’s dead body. Sarie {6} 234-06 CRIAPEALwas found hanging in a room. P.M. was conducted on followingday. After post-mortem, funeral took place in the village ofaccused. I made enquiry about my son Prakash, who waspresent there. Prakash met me. Prakash asked me why ourdaughter was given in the house of accused. She hanged herselfas accused no.2 demanded Rs.25,000/-.”PW3 Sindhubai is mother of the deceased. At Exhibit 30, shedeposed as under :“1. …. After one year of the marriage, father-in-law of Surekhadied. Therefore, father-in-law of Surekha died. Therefore,accused started giving ill-treatment to my daughter. All accusedwere giving abuses to my daughter that she was not good. Shewas not having boon of goddess Laxmi. Accused no.1 used tobeat her, while accused nos.2 and 3 were abusing her. Surekhatold me about ill-treatment on telephone. I and my husbandrepeatedly visited the house of accused and told them to behaveproperly with Surekha. After 6 months, Raju- brother-in-law ofSurekha was expired. Accused were telling her that due to her,their men expired and she would bring Rs.25,000/- forpurchasing motorcycle. Before 6 months of death of Surekhaaccused started demanding Rs.25,000/-. Surekha told us thisdemand on telephone and also on our personal visits to her. Iand my husband went to the house of accused and told themthat we have no money and amount will be paid in future. 2. My son Prakash went to bring Surekha for Bhaubij Festival.My son halted there. Accused no.3 gave threat to my son andasked him to bring Rs.25,000/-. My son told me this ontelephone. Thereafter I received phone message that mydaughter was expired.” {7} 234-06 CRIAPEALPW4 Prakash, i.e. brother of deceased, is examined at Exhibit 35wherein he deposed as under :“1.….. Surekha was my youngest sister. Marriage ofSurekha took place with accused no.1 on 11/05/2003. Surekhawent for cohabitation with accused no.1 at village Rampur. Atthe time of marriage, accused nos.1,2 and father father-in-lawand brother-in-law were residing together. Surekha has one sonof 1 ½ years. For one year good treatment was given toSurekha. 2) After one year of marriage, Surekha’s father-in-lawexpired. Accused no.2 was telling that Surekha was of“Pandharya payachi and therefore she lost her husband”.Accused no.1 was also giving abuses and beating deceasedSurekha. Accused no.3 was also giving abuses to deceasedSurekha. Deceased told me this on telephone and whenever Ivisited her house. After 6 months of the death of father-in-law,her brother-in-law Raju died. Accused No.2 was telling Surekhathat due to her her son was died, while accused nos.2 and 3were also abusing deceased Surekha. Accused No.1 was alsobeating deceased Surekha. This was also told on telephone andin my personal visits to deceased Surekha. I asked to accusednot to give ill-treatment to my sister. My parents also toldaccused to behave properly. 3) Before 6 months of the incident, accused demandedRs.25,000/- to my parents for purchasing motorcycle. My sistertold me this demand of accused. My father told accusedhusband, mother-in-law and father-in-law of deceased Surekhathat he would pay money in future. However, ill-treatmentcontinued. 4) On 24/10/2005, my grandmother Shantabai Laxman died.We requested accused to send deceased Surekha for funeral but {8} 234-06 CRIAPEALaccused is not send Surekha. 5) On 05/11/2005, I went to bring Surekha for Bhaubijfestival. Accused no.2 was out of station. Accused no.1 told meto ask his mother on her arrival in the village and then takeaway Surekha. I halted there. On following day till 1.30 p.m.,accused no.2 did not come. So I asked accused no.3 andaccused no.1 that I should take my sister for Bhaubij and also togive treatment to her as she was suffering from illness but bothaccused refused. Accused no.3 told me that if I would take maysister, she should not be brought back and if I visit their houseagain, he would cut my hands and legs as we could not providetheir demand. There was also quarrel between me and accusedno.3 who asked me to bring my father. I searched my father inRampur, but I could not trace. Therefore, I made phone call tomy mother and narrated her incident. My mother asked me tostay at Rampur and took my father to the house of accused. Ithen went to the house of accused no.3 and his children weresitting outside the house. I went in the middle room and foundthat my sister Surekha was hanged by sarie to the roof. I calledShashikant Bhosale and he released my sister from hangingwith a hope that she might be alive, but in vain. Accused no.1was also present who took Surekha to the hospital. Doctordeclared her dead. On the following day funeral took place.Accused before the court are the same.” PW5Ramdas Raykar, API, is the Investigation Officer. LEGAL PRECEDENTS6.Before adverting to the facts of the case in hand, it would beapt to discuss the settled legal position on the aspect of charge underSections 498-A and 306 of IPC. {9} 234-06 CRIAPEALLaw on Section 498-A IPC :There are series of judgments wherein Hon’ble Apex Court hasrepeatedly observed and held that in case of general, vague andomnibus allegations without specifying role or giving specificinstances of cruelty, charge of Section 498-A would not automaticallyget attracted. Such observations are reflected in Kans Raj v. State ofPunjab and others [Appeal (crl.) 688-90 of 1993 decided by theHon’ble Apex Court on 26.04.2000]; State of Andhra Pradesh v. M.Madhusudhan Rao (2008) 15 SCC 582; Neelu Chopra and another v.Bharti (2009) 10 SCC 184; Geeta Mehrotra Vs. State of U.P. (2012)10 SCC 741; Bhaskar Lal Sharma and Anr. v. Monica and Ors AIR2014 SC (Supp) 1310; K. Subba Rao v. The State of Telangana ;(2018) 14 SCC 452 wherein, as to what constitutes offence underSection 498-A and when it can be said to be made out has been dealtand discussed. Even very recently, the Hon’ble Apex Court, in the case ofNaresh Kumar v. State of Haryana (2024) 3 SCC 573 observed that,to constitute offence of cruelty, there has to be incessant orcontinuous form of cruelty. Likewise, in the case of Yashodeep Bisanrao Vadode v. State of {10} 234-06 CRIAPEALMaharashtra (2024) SCC Online SC 2989, the Hon’ble Apex Courtobserved that, by way of evidence, specific acts and role of accusedhas to be demonstrated for attracting Section 498-A IPC. Again, in the most recent case of Dara Lakshmi Narayana andothers v. State of Telangana and another 2024 SCC Online SC 3682,the Hon’ble Apex Court obseved, “mere reference to the names offamily members in a criminal case arising out of matrimonial dispute,without specific allegation, indicating their active involvement shouldbe nipped in the bud”. Law on Section 306 of IPC :7.In State of West Bengal v. Orilal Jaiswal (supra), the Hon’bleSupreme Court has cautioned that the Court should be extremelycareful in assessing the facts and circumstances of each case and theevidence adduced in the trial for the purpose of finding whether thecruelty meted out to the victim had in fact induced her to end her lifeby committing suicide. If it appears to the Court that a victimcommitting suicide was hypersensitive to ordinary petulance, discordand difference in domestic life, quite common to the society, to whichthe victim belonged and such petulance, discord and difference werenot expected to induce a similarly circumstanced individual in a {11} 234-06 CRIAPEALgiven society to commit suicide, the conscience of the Court shouldnot be satisfied for basing a finding that the accused charged ofabetting the offence of suicide should be found guilt. 8.In Ramesh Kumar v. State of Chhatisgarh (2001) 9 SCC 618, itis observed that, “Instigation is to goad, urge forward, provoke, inciteor encourage to do ‘an act’. To satisfy the requirement of instigationthough it is not necessary that actual words must be used to thateffect or what constitutes instigation must necessarily and specificallybe suggestive of the consequence. Yet a reasonable certainty to incitethe consequence must be capable of being spelt out. 9.In M. Arjunan v. State, represented by its Inspector of Police,(2019) 3 SCC 315, while explaining the necessary ingredients ofSection 306 IPC in detail, observed as under :-“7.The essential ingredients of the offence underSection 306 I.P.C. are : (i) the abetment; (ii) the intentionof the accused to aid or instigate or abet the deceased tocommit suicide. The act of the accused, however, insultingthe deceased by using abusive language will not, by itself,constitute the abetment of suicide. There should beevidence capable of suggesting that the accused intendedby such act to instigate the deceased to commit suicide.Unless the ingredients of instigation/abetment to commit {12} 234-06 CRIAPEALsuicide are satisfied, accused cannot be convicted underSection 306 IPC.”10.In Ude Sing & others v. State of Haryana (2019) 17 SCC 301,the Hon’ble Supreme Court held that in order to convict an accusedunder Section 306 IPC, the state of mind to commit a particularcrime must be visible with regard to determining the culpability. Itwas observed as under :-“ 16. In cases of alleged abetment of suicide, there must bea proof of direct or indirect act(s) of incitement to thecommission of suicide. It could hardly be disputed that thequestion of cause of a suicide, particularly in the context ofan offence of abetment of suicide, remains a vexed one,involving multifaceted and complex attributes of humanbehavior and responses/reactions. In the case of accusationfor abetment of suicide, the Court would be looking forcogent and convincing proof of the act(s) of incitement tothe commission of suicide. In the case of suicide, mereallegation of harassment of the deceased by another personwould not suffice unless there be such action on the part ofthe accused which compels the person to commit suicide;and such an offending action ought to be proximate to thetime of occurrence. Whether a person has abetted in thecommission of suicide by another or not, could only begathered from the facts and circumstances of each case.
Legal Reasoning
{13} 234-06 CRIAPEAL16.1 For the purpose of finding out if a person has abettedcommission of suicide by another; the consideration wouldbe if the accused is guilty of the act of instigation of the actof suicide. As explained and reiterated by this Court in thedecisions above referred, instigation means to goad, urgeforward, provoke, incite or encourage to do an act. If thepersons who committed suicide had been hypersensitiveand the action of accused is otherwise not ordinarilyexpected to induce a similarly circumstanced person tocommit suicide, it may not be safe to hold the accusedguilty of abetment of suicide. But, on the other hand, if theaccused by his acts and by his continuous course ofconduct creates a situation which leads the deceasedperceiving no other option except to commit suicide, thecase may fall within the four-corners of Section 306 IPC. Ifthe accused plays an active role in tarnishing the self-esteem and self-respect of the victim, which eventuallydraws the victim to commit suicide, the accused may beheld guilty of abetment of suicide. The question of mensrea on the part of the accused in such cases would beexamined with reference to the actual acts and deeds ofthe accused and if the acts and deeds are only of suchnature where the accused intended nothing more thanharassment or snap show of anger, a particular case mayfall short of the offence of abetment of suicide. However, ifthe accused kept on irritating or annoying the deceased bywords or deeds until the deceased reacted or wasprovoked, a particular case may be that of abetment of {14} 234-06 CRIAPEALsuicide. Such being the matter of delicate analysis ofhuman behaviour, each case is required to be examined onits own facts, while taking note of all the surroundingfactors having bearing on the actions and psyche of theaccused and the deceased.”11.In Gurcharan Singh v. State of Punjab, (2020) 10 SCC 200, theHon’ble Apex Court observed that whenever a person instigates orintentionally aids by any act or illegal omission, the doing of a thing,a person can be said to have abetted in doing that thing. To prove theoffence of abetment, as specified under Section 107 IPC, the state ofmind to commit a particular crime must be visible, to determine theculpability. 12.In Geo Varghese v. State of Rajasthan and another (2021) 19SCC 144, the Hon’ble Supreme Court has considered the provision ofSection 306 IPC along with the definition of abetment under Section107 IPC and observed as under :“14.Section 306 of IPC makes abetment of suicide acriminal offence and prescribes punishment for the same.. . .15.The ordinary dictionary meaning of the word‘instigate’ is to bring about or initiate, incite someone todo something. This Court in Ramesh Kumar v. State ofChhattisgarh, (2001) 9 SCC 618, has defined the word {15} 234-06 CRIAPEAL‘instigate’ as under :-“20. Instigation is to goad, urge forward, provoke,incite or encourage to do ‘an act’.”16.The scope and ambit of Section 107 IPC and its co-relation with Section 306 IPC has been discussedrepeatedly by this Court. In the case or S.S. Cheena v.Vijay Kumar Mahajan and Anr (2010) 12 SCC 190, it wasobserved as under : -“25. Abetment involves a mental process ofinstigating a person or intentionally aiding aperson in doing of a thing. Without a positive acton the part of the accused to instigate or aid incommitting suicide, conviction cannot besustained. The intention of the legislature and theratio of the cases decided by the Supreme Court isclear that in order to convict a person underSection 306 IPC there has to be a clear mens rea tocommit the offence. It also requires an active act ordirect act which led the deceased to commit suicideseeing no option and that act must have beenintended to push the deceased into such a positionthat he committed suicide.”13.In Mariano Anto Bruno & another v. The Inspector of Police,2022 SCC OnLine SC 1387, after referring to the above referreddecisions rendered in context of culpability under Section 306 IPC,the Hon’ble Supreme Court observed as under : “44. . . . It is also to be borne in mind that in cases ofalleged abetment of suicide, there must be proof of direct or {16} 234-06 CRIAPEALindirect acts of incitement to the commission of suicide.Merely on the allegation of harassment without their beingany positive action proximate to the time of occurrence onthe part of the accused which led or compelled the personto commit suicide, conviction in terms of Section 306 IPC isnot sustainable.”14.In Kashibai & Others v. The State of Karnataka, 2023 SCCOnLine SC 575, it is observed that to bring the case within thepurview of ‘Abetment’ under Section 107 IPC, there has to be anevidence with regard to the instigation, conspiracy or intentional aidon the part of the accused and for the purpose proving the chargeunder Section 306 IPC, also there has to be an evidence with regardto the positive act on the part of the accused to instigate or aid todrive a person to commit suicide.15.In very recent case of Naresh Kumar v. State of Haryana 2024DGLS (SC) 224/(2024) 3 SCC 573 it is observed that, had there beenany clinching evidence of incessant harassment on account of whichthe wife was left with no other option but to put an end to her life, itcould have been said that the accused intended the consequences ofhis act, namely, suicide. A person intends a consequence when he (1)foresees that it will happen if the given series of acts or omissionscontinue, and (2) desires it to happen. The most serious level of {17} 234-06 CRIAPEALculpability, justifying the most serious levels of punishment, isachieved when both these components are actually present in theaccused's mind (a "subjective" test).”16.In another recent case of Kumar @ Shiva Kumar v. State ofKarnataka [Criminal Appeal No. 1427 of 2011 decided by theHon’ble Apex Court on 01.03.2024], following observations aremade: “39. Reverting back to the decision in M. Mohan (2011) 3SCC 626 , this Court observed that abetment wouldinvolve a mental process of instigating a person orintentionally aiding a person in doing of a thing. Without apositive act on the part of the accused to instigate or aid incommitting suicide, conviction cannot be sustained.Delineating the intention of the legislature and havingregard to the ratio of the cases decided by this Court, itwas concluded that in order to convict a person underSection 306 IPC there has to be a clear mens rea tocommit the offence. It would also require an active act ordirect act which led the deceased to commit suicide seeingno other option and that this act of the accused must havebeen intended to push the deceased into such a positionthat he committed suicide.”ANALYSIS17.Keeping in mind the above settled legal position, here, there is {18} 234-06 CRIAPEALno dispute about marriage between present appellant and deceasedSurekha taking place in 2003. Informant (father), mother andbrother are consistent that after one year, there was ill-treatment. It isalleged that accused/husband beat and abused Surekha anddemanded Rs.25,000/-. However, none of the above witnesses havequoted as to when and on what count accused-husband/presentappellant beat her. Apparently, sweeping allegations of abuse, ill-treatment, and demand are leveled against all accused. Prosecutionhas claimed that deceased was addressed as a ‘jinx’ for inviting badluck. However, apart from delayed F.I.R., i.e. in spite of theoccurrence taking place on 05.11.2005, report was lodged on09.11.2005 i.e. after five days, and there is also no plausibleexplanation for delayed reporting.18.Father and brother i.e. PW-2 and PW-4, apparently appear tohave improvised their version as their statements are silent aboutaccused/husband beating and raising demand. There is materialomission on that regard. Version of son materially differs fromversion of his own parents on the count that deceased herself wassuffering from illness. Even both parents are silent that accused No.3stating PW-4 that if he takes his sister, then she should not be broughtback. It also transpires that on the day of hanging, brother Prakash {19} 234-06 CRIAPEALwas very much in house of accused. In paragraph 5, he stated that hissister hanged herself with a saree on the roof. However, in cross-examination, in paragraph 9, he admitted that accused no. 1/presentappellant was present in the house, but he entered the room afterthis witness arrived. Resultantly, there is no evidence of anyabetment, instigation or ill-treatment to suggests that deceased wascompelled to take the drastic step of hanging herself as stated above.What actually happened in proximity to hanging is not stated bybrother. There are vague, omnibus and sweeping allegations againstall accused, however except the appellant/husband, all remainingaccused are already acquitted from the said charge. Therefore, withsuch quality of evidence, charges under Sections 498-A and 306 ofthe IPC cannot be said to be proved beyond reasonable doubt. For allabove reasons, appeal succeeds. 19.Perused the judgment under challenge. Learned trial Court hasapparently failed to appreciate the material omissions, improvisationmade by prosecution witnesses and that they are inconsistent onmaterial count. Therefore, there being non-appreciation of thevaluable evidence in proper perspective, interference is called for.Accordingly, I proceed to pass following order: {20} 234-06 CRIAPEALORDERI)Criminal Appeal No.234 of 2006 is allowed.II)The conviction awarded to appellant Vinod KhushalbhauBhosale in Sessions Case No.1 of 2006 by the learned 3rdAd-hoc Additional Sessions Judge, Ahmednagar on06.03.2006 for offences punishable under Sections 498-Aand 306 of the Indian Penal Code, stands quashed and setaside.II)The appellant Vinod Khushalbhau Bhosale standsacquitted of the offences punishable under Section 498-Aand 306 of the Indian Penal Code.IV)The bail bonds of appellant stands cancelled. V)The fine amount deposited, if any, be refunded to theappellant after the statutory period. VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. ( ABHAY S. WAGHWASE ) JUDGE S P Rane