High Court
Legal Reasoning
{1} CRI APPEAL NO. 2 OF 2005IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 2 OF 20051.Suresh s/o Pralhad ShingareAge: 27 yrs., Occu.: Agri.,2.Shantiram s/o Pralhad ShingareAge: 24 yrs., Occu.: Agri.,3.Pralhad s/o Govindrao ShingareAge: 64 yrs., Occu.: Agri.,4.Housabai w/o Pralhad ShingareAge: 60 yrs., Occu.: Household.All R/o.: Kandari (Kh.), Tq.Badnapur,Dist.Jalna...AppellantsVersus.The State of Maharashtra ..Respondent…WITH CRIMINAL APPEAL NO. 323 OF 20051.The State of MaharashtraThrough : The Public Prosecutor,High Court Bench AtAurangabad...AppellantVersus1.Suresh Pralhad ShingareAge: 27 yrs., Occu.: Agri.,R/o. Kandari (Kh.), Tq.Badnapur,Dist.Jalna. ..Respondent(Ori. Accused No.1) …Advocate for Appellants - Accused : Mr. Nilesh S. GhanekarAPP for Respondent – State : Mr.S.K.Shirse... {2} CRI APPEAL NO. 2 OF 2005 CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 15 OCTOBER, 2024 PRONOUNCED ON : 18 OCTOBER, 2024 JUDGMENT :- 1. Convicts for offence under Sections 498-A and 306 read with34 of the Indian Penal Code (IPC), by way of instant appeal, aretaking exception to the judgment and order dated 28-12-2004,passed by the learned Sessions Judge, Jalna in Sessions Case No.144of 2004.PROSECUTION CASE IN BRIEF 2.On information passed by PW1 Trimbakrao, crime wasregistered, as he reported that his daughter Meena was married toappellant no.1 Suresh on 17-04-2000. He paid dowry of Rs.30,000/-and had borne marriage expenses. After marriage, Meena went tocohabit with her husband and in-laws. He reported that, initially fora period of six months, his daughter Meena was treated well butthereafter, there was ill-treatment at the hands of husband and in-laws. There was demand of Rs.1,25,000/-for arranging service forhusband. She reported it when she came to maternal house. Shehad come to maternal home for delivery, but none of the accused
Legal Reasoning
{3} CRI APPEAL NO. 2 OF 2005including husband came to either see her or the new born and rathersent a message that they would not come to see them unlessRs.1,25,000/- is paid. Informant claims to have arrangedRs.56,000/- and Rs.30,000/- on two occasions. However, inspite ofreceiving the said amount, there was ill-treatment. Meena reported itwhen she came for Nagpanchami festival. Barely after 8 to 15 daysafter Nagpanchami festival, news of Meena consuming poison wasreceived. She died. After necessary rituals, informant set law intomotion, on the strength of which, crime was registered and finallyinvestigated by PW10.After gathering sufficient evidence, accused persons came to betried by learned Sessions Judge, Jalna, who appreciated the oral anddocumentary evidence and held charges for offence under Sections498-A and 306 read with 34 of the IPC as proved and convictedthem accordingly.Precisely above judgment and order of conviction is nowsubject matter of appeal before this Court. SUBMISSIONSOn behalf of appellants :3. Learned Counsel for appellants would submit that there isfalse implication. He pointed out that there are general and vague {4} CRI APPEAL NO. 2 OF 2005allegations. That witnesses are merely deposing about ill-treatment,but none of them has clarified or specified what was the nature of ill-treatment and at the hands of which of the accused amongst the fiveaccused. He submitted that only on two occasions, deceased hadbeen to the house of informant. He pointed out that there areallegation of money for service, but none of witnesses could clarifyfor which job said amount was required. He pointed out that anotherpiece of evidence, which prosecution is relying, is at exh.35.However, he pointed out that text of inland itself shows that therewas no demand, rather husband was insisting his wife to return backto cohabit with him and this all can be gathered from exh.35 andtherefore, he submitted that said inland letter does not come to theaid of the prosecution. 4.Pointing out to the testimonies of PW2, PW3, PW4, hesubmitted that they are not consistent. That their testimonies are fullof material omissions and contradictions. That no independentwitness has been examined and therefore, according to him withsuch quality of evidence when necessary ingredients for attractingoffence under Section 498-A and 306 of the IPC not being made,learned trial Court ought not to have accepted prosecution version. {5} CRI APPEAL NO. 2 OF 2005According to him, there is improper appreciation of evidenceand settled law has also not been appreciated by learned trial Judgeand therefore, he questions maintainability of such judgment andprays to allow the appeal by setting aside the impugned judgment. On behalf of State :5.Per contra, refuting above submissions and canvasing in favourof impugned judgment, learned APP pointed out that informantfather, brothers and sister of deceased are all in unison deposingabout proper treatment for six months and thereafter, on account ofdemand of Rs.1,25,000/- for job of husband, there was mal-treatment. That deceased also reported about such demand. Thatpart payments were paid through PW9 Rangnath. That only forfulfillment of demand, there was ill-treatment and cruelty. Thattestimonies of prosecution witnesses have virtually remained intacton the aspect of demand and ill-treatment. That only due to ill-treatment suicide is committed. Therefore, according to learned APP,as all necessary ingredients for attracting charges were available,learned trial Judge has committed no error whatsoever in returningguilt and hence, he prays to not to disturb well reasoned judgment. {6} CRI APPEAL NO. 2 OF 2005STATUS AND ROLE OF PROSECUTION WITNESSES6.In support of its case, prosecution has examined as many asten witnesses. Their status and role is as under : PW1 Trimbakrao Bajirao Ghavate is informant and father ofdeceased. PW2 Krishna s/o Trimbakrao Ghavate, is brother of deceased. PW3 Sunita w/o Vasant Madan is sister of deceased. PW4 Shriram s/o Trimbakrao Ghavate, is another brother ofdeceased.PW5 Dr.Sudhakar s/o Bhagwat Mhaske is Autopsy Surgeon, whoconducted autopsy and gave opinion that probable cause of deathmight be due to poisoning. PW6 Kalyan s/o Vithalrao Ukarde PW7 Nivruti s/o Punjaram Rautand PW8 Sanjay Uttamrao Shinde are Panchas PW9 Rangnath Yeshwant Dhaiwat is father-in-law of accused nos.5,who acted as middleman for making payment to the accused. PW10 Kundlike Kondaji Bhadag is the Investigating Officer. SUM AND SUBSTANCE OF EVIDENCE 7.PW1 Trimbakrao, father of deceased, in his evidence at exh.33testified about marriage of his daughter taking place on 17-04-2000, {7} CRI APPEAL NO. 2 OF 2005everything was smooth for six months. Thereafter, there was ill-treatment in backdrop of demand of Rs.1,25,000/-. According tohim, whenever his daughter came to his house, she reported aboutill-treatment and demand. Then, he deposed about none of theaccused coming to see the baby delivered by his daughter, rather amessage was sent back that, until there demand is met, they wouldnot come. This witness initially sent Rs.56,000/- to accused and after15 days, he received inland letter from accused issuing threats fordemand. Then he again send Rs.30,000/- through Rangnath Patil(father in law of accused no.5) and one Sampat Patil. Thereafter,there was proper treatment for 3-4 months. However, when shecame for festival of Nagpanchami, his daughter again reported ill-treatment and demand. She was given understanding and sent backto the accused. After 8-15 days, news of her death was received. 8.PW2 Krishna is brother of deceased. He also deposed that hissister was treated well for a period of 5-6 months. Thereafter, therewas ill-treatment on account of demand of Rs.1,25,000/- for serviceof accused no.1. Whenever she came for festivals, his sister reported.She came for delivery at maternal house, but none of the accusedcame to see either her or the child. Even according to him, after one {8} CRI APPEAL NO. 2 OF 2005and a half month, Rangnath, father-in-law of accused nos.5 came totake his sister and at that time, he conveyed demand of Rs.1,25,000/-and stated that unless demand is met, Meena would not be takenback. When Rs.56,000/- were paid, he took his sister back toaccused. Again after one and a half month, Rangnath came and putup demand of remaining amount. Again Rs.30,000/- were collectedand in presence of Sampat paid to Rangnath and both Rangnath andSampat went. But still ill-treatment continued. During Nagpanchamifestival, his sister reported ill-treatment and demand and after oneand half month, news of her death was received.9.PW3 Sunita is sister of deceased, who also gave evidence thatthere was proper treatment for six months and thereafter, forinsufficient dowry, demand of Rs.1,25,000/- was put up. Afterdelivery of her sister at maternal home, none of the accused came.Her brother Shriram went to accused, but accused said that unlessRs.1,25,000/- is paid, they will not receive his sister. He alsodeposed about Rs.56,000/- paid through Rangnath. That propertreatment was given for two months, but again demand was raised.His cousin uncle and brother took Rs.30,000/- alongwith his sister tothe accused. Thereafter, he also deposed about news of her death {9} CRI APPEAL NO. 2 OF 2005being received.10.PW4 Shriram is another brother of deceased, who alsoreiterated as above. ANALYSIS11.Here out of ten witnesses, PW1 Trimbakrao is informant father,PW2 Krishna and PW4 Shriram are brothers whereas PW3 Sunita issister of deceased. PW9 Rangnath has acted as mediator. Rest of thewitnesses are panchas, Police officials and autopsy surgeon. First Charge - Section 498-A :12.There is no dispute that marriage of appellant no.1 wasperformed with deceased on 17-04-2000 and she died on 06-09-2003. Appellant no.1 and deceased had one year old child.Therefore, total cohabitation is of almost three years. Prosecutionalleges that there was ill-treatment in the backdrop of demand ofRs.1,25,000/- for service of accused. Twice amount was paid, but forbalance Rs.25,000/- there was cruelty and ill-treatment is what is thecase of prosecution is and due to it Meena allegedly consumed poisonand ended up her life. {10} CRI APPEAL NO. 2 OF 200513.On meticulous re-appreciation of testimonies of PW1 father,PW2 and PW4 brothers and PW3 sister of deceased, it is emergingthat they are consistent about proper treatment given for a period of5-6 months after marriage. Thereafter, they all deposed aboutdemand of Rs.1,25,000/- for service of accused husband and thenthey alleged ill-treatment. However, it is pertinent to note thatinformant father merely used the word ill-treatment. Similarly evenbrothers and sister alleged ill-treatment but it is noticed that neitherof them has clarified or elaborated about mode of ill-treatment,nature of ill-treatment and by which of the accused persons. Whenthe alleged ill-treatment was inflicted is also not specified by them.None of them also deposed about what was the nature of job whichappellant husband intended to procure for which there was said to bedemand of Rs.1,25,000/-. It is also noticed that informant father hasadmitted that marriage was performed happily. None of themuttered that prior to marriage there was any talk about occupation ofhusband or there was any assurance to arrange for his job, resultinginto demand of Rs.1,25,000/-. First time, after six month’s ofmarriage there are allegations of demand of Rs.1,25,000/-. 14.Unlike PW1 informant, PW3 Sunita, who is married and {11} CRI APPEAL NO. 2 OF 2005resident of Jalna, deposed that there was ill-treatment for bringinginsufficient dowry. PW1 Informant and PW2 another brother ofdeceased have not uttered a word about dowry decided or settledprior to marriage. Consequently, only general and omnibusallegations are made by deposing “they ill-treated”. None has givendetails of instances of ill-treatment during cohabitation of threeyears. As pointed out informant father merely speaks of hearingfrom his daughter that there was demand of Rs.1,25,000/- but ininitial part of his testimony, he has not uttered about any crueltybeing mated out. Though PW3 sister spoke about ill-treatment in thebackdrop of demand of money, it is shown to be material omissionwhich has cropped up in paragraph 2 of the cross-examination.Informant father in paragraph 7 of the cross-examination hascategorically admitted that at the time of marriage, there were noquarrels and that marriage was performed peacefully. 15.It has further come in the evidence of father and siblings ofdeceased that inspite of delivery of child at her parents house, noneof the accused came to see her or the child. Prosecution claims thataccused persons conveyed that unless said demand of amount is met,they will not come. In support of such assertion PW9 was examined. {12} CRI APPEAL NO. 2 OF 2005This witness Rangnath allegedly visited house of informant to bringdeceased i.e. pre as well as post delivery and through him they allclaim demand of money to be raised. They also alleged that onceRs.56,000/- and once Rs.30,000/- were handed over to PW9Rangnath to be paid to accused and it is this witness, who was starwitness for prosecution. But inspite of he having examined atexh.56, he has not supported prosecution on any count and wastherefore, required to be subjected to cross by prosecution itself, butit turned out to be of no use for prosecution. Consequently, star witness for prosecution PW9 Rangnathhaving not supported prosecution, the very linchpin, who held boththe parties together, did not support prosecution. Prosecutionversion suffered severe blow because he resiled and retracted fromhis earlier version. That apart, Sampat Patil, who allegedlyaccompanied PW9 Rangnath to handover amount of Rs.30,000/- toaccused, is also not examined by the prosecution. Consequently, only family members’ testimony is available andas stated above their evidence is only about deceased being ill-treated, as none has clarified or elaborated its nature or form andwhen instances took place. {13} CRI APPEAL NO. 2 OF 200516.In the light of above, mere testimony alleging ill-treatment isnot sufficient to attract charge of Section 498-A of the IPC. As towhat amounts to cruelty is fairly settled in following rulings by theHon’ble Apex Court : (i)State of Andhra Pradesh v. M.Madhusudhan Rao, (2008) 15 SCC 582.“Harassment simplicitor is not cruelty. Only when suchharassment is committed for the purpose of coercing a womanor any other person to meet an unlawful demand or propertyetc. alone would amount to cruelty punishable under Section498-A IPC.”(ii)Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC177."3. The basic purport of the statutory provision is to avoid"cruelty" which stands defined by attributing a specific statutorymeaning attached thereto as noticed hereinbefore. Two specificinstances have been taken note of in order to ascribe a meaningto the word "cruelty" as is expressed by the legislatures: whereasExplanation (a) involves three specific situations viz. (i) to drivethe woman to commit suicide or (ii) to cause grave injury or(iii) danger to life, limb or health, both mental and physical,and thus involving a physical torture or atrocity, in Explanation(b) there is absence of physical injury but the legislature {14} CRI APPEAL NO. 2 OF 2005thought it fit to include only coercive harassment whichobviously as the legislative intent expressed is equally heinousto match the physical injury : whereas one is patent, the otherone is latent but equally serious in terms of the provisions of thestatute since the same would also embrace the attributes of"cruelty" in terms of Section 498-A.” 17.The second piece of evidence which prosecution seems to becatching hold of is letter written by accused husband when deceasedwas put up with her parents where she had been for delivery. Thesaid letter exh.34, for the sake of comprehension and analysis intranslated version is as under : “Exhibit No. 34Many Many blessings to Meena. Reason for writing a letter is that,you left (me) on your father's trust. But what was done was well done. Butnow I am giving you as an advice, without ordering or warning you toreturn by the 10th of March last. Because you never thought of me. And ifyou had that thing called honor, you would come here and die, but youwould not stay there. I think so from what happened in the past. And yourparents have an attitude. They have nothing to do with this. Because theycan bear all this. If you come till last March 15th, if you don't come, yourrelationship with me will be broken. And afterwards look at everything else.This is the only advice to your father. If they don't send you by March 15th,please don't wait. And don't come. Don't even think about me. Now we havecompleted three years of marriage. Now giving only last 15 days. Is it theend of our relationship? You can lie this too. And if you have the strength atlast, put it on, do anything I'm ready to answer. After 15th do not come. Because I can't bear it. I can do anything to {15} CRI APPEAL NO. 2 OF 2005you if I find you there.Signatures of Seizure Panchas: 1…… ………….…..sd/-2. Sanjay Shinde Before meSd/-I.O. PSI Police Station, Badnapur,Dist. Jalna.” (As translated by Sr. Translator, High Court, Aurangabad)18.In the considered opinion of this Court, bare reading of theletter allegedly authored by husband, would show that letter itselfhas commenced by extending blessings to deceased. He seems tohave conveyed message asking her to come back to reside with himwithin stipulated time i.e. by 15th March. However, when letter waswritten by husband and when it was received by deceased, is notclear. There is postal stamp of Badnapur Post Office on the letterindicating date of despatch as 05-03-2003. Be it so, prosecutionclaims that there are clear threats by husband. But on repeatedevaluation of the text, it does not seem to be so. He has conveyedthat if she is not sent back by 15th March by her parents, do notexpect him to come or wait for him and then do not come at all andeven stop thinking about him. He has posed a question also as towhether it is the end of their relationship and even challenged herand that he is ready to answer back. {16} CRI APPEAL NO. 2 OF 2005Above is the communication between married couple. In saidletter, there is no material suggesting that vide exh.34 again demandfor amount was raised as is tried to be submitted by learned APP. Forabove reasons, exh.34 has nothing incriminating nor can be said tobe carrying any foundation for prosecution version. 19.In the light of above discussion, in the considered opinion ofthis Court, cruelty as contemplated under law is not firmly, cogentlyproved beyond reasonable doubt so as to attract offence underSection 498-A of the IPC. Second Charge - Section 306 of the IPC :20.Second charge is of abetment to commit suicide. Learned trialJudge has held appellant guilty for offence of 306 of the IPC. Before analyzing the evidence on this charge, it would befruitful to first give a brief account of settled judicial precedent as towhen said charge can be said to brought home. Before attracting and applying charge under Section 306 of theIPC, it is bounden and statutory duty of prosecution to establish thatthere was abetment, inducement, instigation to commit suicide.Coupled with mens rea, positive role must be shown to have been {17} CRI APPEAL NO. 2 OF 2005played by accused. Law to the above extent is time and again dealt and discussedin numerous judgments, including recent judgment of Kumar @Shiva Kumar v. State of Karnataka, 2024 SCC OnLine SC 216,wherein, from para 60 onwards, the Hon’ble Apex Court hasdiscussed the legal aspect of abetment to suicide, as to what amountsto abetment as dealt under Section 107 of IPC and also, afterdiscussing previous legal pronouncements in M. Mohan v. State(2011) 3 SCC 626; Ramesh Kumar v. State of Chhattisgarh (2001) 9SCC 618, Chitresh Kumar Chopra v. State (2009) 16 SCC 605;Amalendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707;Rajesh v. State of Haryana (2020)15 SCC 359 and State of WestBengal v. Orilal Jaiswal (1994) 1 SCC 73, culled out a principle that,in order to prove guilt of accused for abetment to commit suicide,prosecution has to prove :(i) the accused kept on irritating or annoying the deceasedby words, deeds or wilful omission or conduct whichmay even be a wilful silence until the deceased reactedor pushed or forced the deceased by his deeds, wordsor wilful omission or conduct to make the deceasedmove forward more quickly in a forward direction; and(ii) that the accused had the intention to provoke, urge or {18} CRI APPEAL NO. 2 OF 2005encourage the deceased to commit suicide while actingin the manner noted above. Undoubtedly, presence ofmens rea is the necessary concomitant of instigation. Referring to the case of Amalendu Pal (supra), it has beenobserved in para 69 that :69.… this Court after referring to some of the previousdecisions held that it has been the consistent view thatbefore holding an accused guilty of an offence underSection 306 IPC, the court must scrupulously examine thefacts and circumstances of the case and also assess theevidence adduced before it in order to find out whether thecruelty and harassment meted out to the victim had left thevictim with no other alternative to put an end to her life. Itmust be borne in mind that in a case of alleged abetmentof suicide, there must be proof of direct or indirect act(s)of incitement to the commission of suicide. Merely on theallegation of harassment without there being any positiveaction proximate to the time of occurrence on the part ofthe accused which led or compelled the deceased tocommit suicide, conviction in terms of Section 306 IPCwould not be sustainable. Thereafter, this Court held asunder:13. In order to bring a case within the purview of Section306 IPC there must be a case of suicide and in thecommission of the said offence, the person who is said tohave abetted the commission of suicide must have played {19} CRI APPEAL NO. 2 OF 2005an active role by an act of instigation or by doing certainact to facilitate the commission of suicide. Therefore, theact of abetment by the person charged with the saidoffence must be proved and established by the prosecutionbefore he could be convicted under Section 306 IPC.”21.Prosecution witnesses have received message that Meenaconsumed poison on 06-09-2003. FIR is lodged on next day. Autopsysurgeon, who conducted post mortem, gave opinion about probablecause of death “death of deceased “might” have been caused due topoison”. Said opinion explicitly shows that autopsy surgeon has notgiven any concrete opinion as he seems to be unsure. Autopsysurgeon has preserved viscera (CA report does not find place in thechargesheet). Therefore, question is what is the cause of death. Ifcase is of consumption of poison, then there has to be supportivematerial. Spot panchanama drawn on next day is explicit thatnothing is seized from the spot. With such state of affairs, questionarises is on what basis PW5 Dr.Mhaske, autopsy surgeon, expressedpossibility of death due to poison. Admittedly, burden is onprosecution to prove mode of death because there is charge of 306 ofthe IPC. {20} CRI APPEAL NO. 2 OF 200522.Prosecution witnesses i.e.PW1 father, PW2 brother, PW3 sister,PW4 brother of deceased claim that visit of Meena to their house wasat the time of Nagpanchami, which as per Indian calendar falls in themonth of August. There are no medical papers suggesting deceasedMeena being taken to hospital. Deceased Meena was declared deadon 06-09-2003. What preceded the consumption is unclear. There isa gap of almost two weeks between visit of deceased to informantand meeting them and this is axiomatic from testimony of informantin paragraph 4. When she returned back to accused is not broughton record. In view of the charge, it is expected of the prosecution to showthat during her stay with accused, there was cruelty, harassment,which was so incessant and continuous in nature that she was leftwith no other alternative but to end up her life. It is expected ofprosecution to demonstrate that accused persons abetted or inducedthe suicide. Their role has to be crystallized to make themanswerable for suicide by Meena. Unless above legal requirementsare available, mere unnatural death taking place in their house,would not be sufficient to bring presumption into play i.e. unlessfoundational facts are proved. What triggered the suicide hasvirtually remained a mystery. Unfortunately, death has taken place {21} CRI APPEAL NO. 2 OF 2005but to attribute it to accused persons, charges have to be provedbeyond reasonable doubt and that is the fundamental principle ofcriminal jurisprudence. Here it is not proved beyond reasonabledoubt that only and only because of cruelty or ill-treatment byaccused in the backdrop of their demand, Meena committed suicide.Therefore, with such quality of evidence on record, it is unsafe tohold charge of 306 to be proved and same also fails. Consequently,Criminal Appeal No.2 of 2005 deserves to be allowed. 23.State has preferred Criminal Appeal No.323 of 2005 i.e. gettingdissatisfied by the quantum of sentence, but as this Court hasreversed the conviction, said appeal becomes redundant. Accordingly,I proceed to pass following order : ORDERI)Criminal Appeal No.2 of 2005 is allowed.II)The conviction awarded to appellants in Sessions CaseNo.144 of 2004 by Sessions Judge, Jalna on 28-12-2004 forthe offence punishable under Sections 498-A and 306 read with34 of the Indian Penal Code, stands quashed and set aside. III)The appellants stand acquitted of the offence punishableunder Sections 498-A and 306 read with 34 of the Indian PenalCode. {22} CRI APPEAL NO. 2 OF 2005IV)The bail bonds of appellants stand cancelled. V)The fine amount deposited, if any, be refunded to theappellants after the statutory period.VI)It is clarified that there is no change as regards the orderin respect of disposal of muddemal. VII)Criminal Appeal No.323 of 2005 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT