High Court
Facts
CriAppeal-615-2005-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 615 OF 20051.Prabhakar S/o Ramchandra Soparkar,Age 57 years,R/o. Varangaon, Tq. Bhusawal,District Jalgaon.2.Sau. Subhadra w/o Prabhakar Soparkar[Appeal stands abated against appellant no.2 vide order dated 03.10.2024]… AppellantsVersusThe State of MaharashtraThrough : Police Station,Varangaon, Dist. Jalgaon.… Respondent…..Mr. Navin S. Shah, Advocate h/f Mr. Swapnil S. Patil, Advocate forAppellants.Mrs. Ashlesha S. Deshmukh, APP for Respondent-State...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 22.11.2024Pronounced on: 28.11.2024JUDGMENT : 1.Convicts for offence under Sections 498-A and 306 r/w 34 ofthe Indian Penal Code [IPC] are hereby assailing the judgment andorder dated 26.08.2005 passed by learned IInd Adhoc AdditionalSessions Judge, Jalgaon in Sessions Case No. 40 of 2005 holding bothparents-in-law of deceased Manisha guilty of above offence. CriAppeal-615-2005-2- 2.During pendency of the appeal, as appellant no.2 Subhadradied, appeal is abated against her and now only appeal of appellantno.1 Prabhakar is for consideration before this Court.CASE OF PROSECUTION3.In nutshell, both in-laws of deceased were chargesheeted byVarangaon Police Station on accusation that they subjected theirdaughter-in-law to physical and mental cruelty. Mother-in-law used tocontinuously abuse whereas, father-in-law beat her and therefore,getting fed up of such maltreatment, she immolated herself on30.11.2004 and suffered 97% burns. While undergoing treatment,PW5 Investigating Officer recorded dying declaration under Section32 of the Indian Evidence Act and on the strength of the same,registered crime bearing no.103 of 2004 and himself carried outinvestigation and finally chargesheeted the in-laws and they weremade to face trial before Adhoc Additional Sessions Judge, Jalgaonvide Sessions Case No. 40 of 2005.4.Learned trial Judge appreciated the evidence of prosecutioncomprising of five witnesses and also analyzed the documentaryevidence. Defence did not lead any evidence. On complete CriAppeal-615-2005-3- appreciation and after hearing both sides, judgment of conviction foroffence under Sections 498-A and 306 r/w 34 of IPC has beenrendered, which is now questioned by way of instant appeal.EVIDENCE BEFORE THE TRIAL COURT5.The status and role of the five witnesses examined byprosecution, and the sum and substance of their evidence can besummarized as under :PW1Yogesh acted as pancha to spot panchanama Exhibit 14.PW2Shravan, father, who is examined at Exhibit 15, deposed thathis daughter was married to Ganesh Soparkar and she went tocohabit with husband and in-laws at Varangaon. During firstvisit paid by his daughter after 4-5 months of marriage, shereported that she was treated properly. He further deposed thatduring her second visit, which was paid after 4-6 months afterher first visit, she disclosed that her father-in-law and mother-in-law ill-treated her. Father-in-law beat her and he also had anevil eye on her. Six months before, he received message abouther burns and therefore, they all went to Civil Hospital, Jalgaonwhere, he claims that, she disclosed that under tension due tomother-in-law and father-in-law, she poured kerosene and setherself on fire.
Legal Reasoning
CriAppeal-615-2005-13- would 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. 16.1 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 of conductcreates a situation which leads the deceased perceiving noother option except to commit suicide, the case may fallwithin the four-corners of Section 306 IPC. If the accusedplays an active role in tarnishing the self-esteem and self-respect of the victim, which eventually draws the victim tocommit suicide, the accused may be held guilty of abetmentof suicide. The question of mens rea on the part of theaccused in such cases would be examined with reference tothe actual acts and deeds of the accused and if the acts anddeeds are only of such nature where the accused intended CriAppeal-615-2005-14- nothing more than harassment or snap show of anger, aparticular case may fall short of the offence of abetment ofsuicide. However, if the accused kept on irritating orannoying the deceased by words or deeds until thedeceased reacted or was provoked, a particular case may bethat of abetment of suicide. Such being the matter ofdelicate analysis of human behaviour, each case is requiredto be examined on its own facts, while taking note of all thesurrounding factors having bearing on the actions andpsyche of the accused and the deceased.”20.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. 21.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 : CriAppeal-615-2005-15- “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‘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 a personin doing of a thing. Without a positive act on thepart of the accused to instigate or aid in committingsuicide, conviction cannot be sustained. Theintention of the legislature and the ratio of thecases decided by the Supreme Court is clear that inorder to convict a person under Section 306 IPCthere has to be a clear mens rea to commit theoffence. It also requires an active act or direct actwhich led the deceased to commit suicide seeing nooption and that act must have been intended topush the deceased into such a position that hecommitted suicide.” CriAppeal-615-2005-16- 22.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 of allegedabetment of suicide, there must be proof of direct or indirectacts of incitement to the commission of suicide. Merely onthe allegation of harassment without their being any positiveaction proximate to the time of occurrence on the part of theaccused which led or compelled the person to commitsuicide, conviction in terms of Section 306 IPC is notsustainable.”23.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. CriAppeal-615-2005-17- 24.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 ofculpability, justifying the most serious levels of punishment, isachieved when both these components are actually present in theaccused's mind (a "subjective" test).”25.In another recent case of Kumar @ Shiva Kumar v. State ofKarnataka [Criminal Appeal No. 1427 of 2011 decided by the Hon’bleApex Court on 01.03.2024], following observations are made : “39. Reverting back to the decision in M. Mohan (2011) 3SCC 626 , this Court observed that abetment would involvea mental process of instigating a person or intentionallyaiding a person in doing of a thing. Without a positive acton the part of the accused to instigate or aid in committingsuicide, conviction cannot be sustained. Delineating theintention of the legislature and having regard to the ratioof the cases decided by this Court, it was concluded that in CriAppeal-615-2005-18- order to convict a person under Section 306 IPC there hasto be a clear mens rea to commit the offence. It would alsorequire an active act or direct act which led the deceased tocommit suicide seeing no other option and that this act ofthe accused must have been intended to push the deceasedinto such a position that he committed suicide.”26.In the instant case, in the light charge under Section 306 IPC,again one has to fall back on the dying declaration. Learned counselfor the appellant has objected to the veracity of dying declaration onthe ground that deceased having sustained over 97% burns, was notin a position to give statement. Secondly, doctor who examined herand gave certificate, admitted that there was incoherent talk bydeceased. Thirdly, there is no certification of fitness. 27.In the light of such objections, the dying declaration as well asevidence of doctor PW4 is put to minute scrutiny. Though doctor hasstated while under cross, that talks were incoherent, on court query asto whether he was in position to understand what was said bydeceased, this medical expert has answered in affirmative. In hispresence and on his examination and certification, the InvestigatingOfficer has recorded dying declaration. The translated version of whatdeceased reported in dying declaration is reproduced as under: CriAppeal-615-2005-19- “Today, on 30.11.2004, at 06:30 pm, when I was in thehouse, busy in the household chores, my mother-in-lawSubhadrabai came near me and raised quarrel over somehousehold reason and abused me. When I tried to replyher, my father-in-law beat me up and as this has becomeregular practice and as I am fed up with harassment attheir hands, I poured the kerosene kept from a plasticecan in the house on my person and set myself ablaze.”28.Bearing above settled legal position in mind and reverting backto the facts and evidence in the case in hand, precisely what isemerging from dying declaration is that, on that day, there wasinitially abuse by mother-in-law and because deceased back-answeredher mother-in-law, appellant father-in-law appears to have beatenher. At what time the incident of beating took place, even byapproximation, is not coming in the dying declaration, however,regarding beating by father-in-law is also consistently coming fromthe testimony of parents of deceased. There is nothing to show thataccused intended that she should incinerate herself. Beating by father-in-law appears to be a reaction for back answering. At that point oftime, neither of the accused intended or knew that she would takeextreme steps of setting herself ablaze. On the contrary, deceasedherself has reported in the dying declaration that in anger and out of CriAppeal-615-2005-20- tension, she incinerated herself. Consequently, in the consideredopinion of this Court, the sine qua non regarding abetment,inducement or instigation to commit suicide are patently missing inthe prosecution evidence and as such, charge under Section 306 IPCcannot be attracted.29.To sum up, for above reasons, only charge of Section 498-A IPCstands proved but only against surviving appellant father-in-law.Learned trial court has sentenced him under Section 498-A IPC tosuffer imprisonment for two years. However, as stated above, onlyallegation which stand substantiated is regarding beating. For hissuch act, sentence of two years appears to be on higher side. In viewof the judgment of the Hon’ble Apex Court in Suo-Motu Writ Petition(C) No.3 of 2023 in the case of Right to Privacy of adolescents withCriminal Appeal No.1451 of 2024, the appellate court whileconfirming the conviction is also expected to get satisfied on theadequacy and sufficiency of sentence awarded by trial court. 30.Learned counsel submitted that appellant is over 70 years ofage. On visiting the impugned judgment passed by the Sessions Court,it is evidence that at that time appellant was 57 years of age, andhence there is reason to hold that as on today, he is more than 70 CriAppeal-615-2005-21- years old. Therefore, in view of above discussion and also taking intoaccount that the episode in question had taken place almost twodecades back and appellant as on today is reported to be over 70years of age, keeping in mind the sentencing policy that sentenceshould commensurate with the gravity of the act, the sentence fromtwo years is required to be scaled down. Hence, following order ispassed:ORDERI.The appeal is partly allowed.II.Conviction awarded to the appellant Prabhakar S/oRamchandra Soparkar, by the IInd Adhoc Additional SessionsJudge, Jalgaon in Sessions Case No. 40 of 2005 for offencepunishable under Section 498-A of IPC is hereby maintained,however his conviction under Section 306 of IPC standsquashed and set aside.III.The appellant stands acquitted of the offence punishable underSection 306 of IPC.IV.The sentence awarded to the appellant for offence underSection 498-A IPC is modified and reduced and instead ofrigorous imprisonment for two years, he is sentenced to sufferrigorous imprisonment for a period of six (06) months and topay fine of Rs.2,000/-, in default of payment, to undergofurther rigorous imprisonment for one (01) month. CriAppeal-615-2005-22- V.Rest of the impugned judgment and order is maintained. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppeal-615-2005-4- PW3Mother Tarabai also deposed that after marriage, theirdaughter used to visit their house on occasions of festivals andshe disclosed that both accused used to ill-treat her. That, shewas not provided proper food, she was beaten and scolded ontrifle reasons. She came for delivery and later on returned toher matrimonial house. The incident took place 4-5 monthsprior and they received phone call and so they visited CivilHospital. There, on being asked as to what happened, witnessclaims that, her daughter replied that accused prevented herfrom accepting telephone calls received from them and alsodisclosed that father-in-law had evil eye on her and hence, dueto tension, she committed suicide.PW4Medical Officer, who attended deceased on admission on30.11.2004 at 6.45 p.m., deposed about police approachinghim for recording dying declaration and he issuing opinion atExhibits 20 and 21.PW5PSI Damale is the Investigating Officer.SUBMISSIONSOn behalf of the Appellant:6.Pointing to the above evidence, learned counsel for theappellant submitted that prosecution had miserably failed to bringhome the charges. According to him, essential ingredients forattracting neither of the charge were available in the prosecution CriAppeal-615-2005-5- evidence. Taking this court through the evidence of parents, hesubmitted that they are not corroborating each other and are notconsistent on material count. He pointed out that except parents, noindependent witness or neighbour is examined. Even whenInvestigating Officer has admitted that statements of neighbours wererecorded, still none of them spoke about any ill-treatment. Therefore,according to learned counsel, there is suppression of materialevidence. 7.As regards to dying declaration is concerned, he criticized thesame to be unworthy of credence as, according to him, deceased hadsuffered 97% burns. Doctor, who examined her, has admitted thatdeceased talked in incoherent manner. There is no thumb impressionand for such reasons, the sole dying declaration comes under shadowof doubt.8.Learned counsel further submitted that for attracting Section306 IPC, it is incumbent upon prosecution to prove abetment,instigation or active role in commission of suicide. Here, there was nodowry demand or any harassment in that regard and therefore, it ishis submission that, neither charge of Section 498-A nor Section 306of IPC would be attracted. That, learned trial court failed to consider CriAppeal-615-2005-6- and appreciate the settled legal position and erred in rendering guiltand hence he prays to set aside the same.9.In support of above submissions, learned counsel seeks relianceon following rulings :1.Sohan Raj Sharma v. State of Haryana 2008 AIR SCW3202.2.State of Andhra Pradesh v. M. Madhusudhan Rao [2008]14 S.C. R. 1170.3.Mariano Anto Bruno & Another v. The Inspector ofPolice 2022 LiveLaw (SC) 834.4.Naresh Kumar v. State of Haryana (2024) 3 SCC 573.5.Amrut Pundalik Marathe & ors. v. State of Maharashtra2024(2) Bom. C. R. (Cri.) 67.On behalf of respondent State : 10.Strongly opposing above submissions, learned APP submittedthat there is convincing, cogent and trustworthy evidence of parents.They have both deposed about physical as well as mental cruelty. It ispointed out that there were regular quarrels, abuses and even beatingby father-in-law. There are no allegations against husband. However,parents-in-law maltreated her. She reported it whenever she visitedparents. Learned APP pointed out that only because of such ill-treatment, deceased immolated herself. She gave dying declaration to CriAppeal-615-2005-7- the Investigating Officer and named them therein. Dying declarationwas recorded in presence of Medical Officer who examined her andpermitted recording dying declaration. Such doctor is made to stepinto the witness box and was examined as PW4. Therefore, coupledwith the evidence of parents and proved dying declarations, it is hersubmission that, charges are substantiated and proved. Consequently,for want of merits, she urges to dismiss the appeal.ANALYSISCharge under Section 498-A IPC :11.On trial, charge under Sections 498-A and 306 of IPC are heldto be proved by prosecution. As regards charge under Section 498-A isconcerned, as to what actually constitutes cruelty has been lucidlyand succinctly dealt in the landmark cases of State of West Bengal v.Orilal Jaiswal [(1994) 1 SCC 73], Giridhar Shankar Tawade v. Stateof Maharashtra (2002) 5 SCC 177; State of Andhra Pradesh v. M.Madhusudhan Rao (2008) 15 SCC 582/[2008] 14 S.C. R. 1170;Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604 G. V. Siddarameshv. State of Karnataka (2010) 3 SCC 152 and Gurnaib Singh v. State ofPunjab (2013) 7 SCC 108; K. Subba Rao v. The State of Telangana(2018) 14 SCC 452. CriAppeal-615-2005-8- 12.In support of charge of Section 498-A IPC, evidence of parentsi.e. PW2 and PW3 is relevant. Learned counsel for the appellant,though submitted that there is no independent evidence, in matters ofsuch nature, obviously there is evidence of family members of marriedwoman. PW2 father, whose evidence is already discussed above, isregarding marriage of his daughter and she going to cohabit withhusband and in-laws. It has come in his evidence that during firstvisit, which was paid by her after 4-5 months of marriage, on theirquery, deceased informed that she was being properly treated. Hisevidence further shows that second visit was paid by his daughter 4-6months after her first visit. Therefore, second visit has to besomewhere after 10 months of marriage. This time, he alleges that,she disclosed that mother-in-law and father-in-law ill-treated her andfather-in-law used to beat her. As pointed out, what was the form ofill-treatment by mother-in-law has not been stated by father.However, there are specific allegations that father-in-law used to beather. Second allegation against preset appellant father-in-law is that,he had an evil eye on deceased. However, it is pertinent to note thatevidence of PW3 mother is absolutely silent about deceased, duringher second visit, reporting that father-in-law had evil eye on her. CriAppeal-615-2005-9- 13.PW3 mother also in her evidence speaks of visits of theirdaughter on festivals and disclosing about ill-treatment. Again, herevidence is distinct than that of her husband i.e. PW2 as, according toher, their daughter disclosed that accused persons did not provideproper food and used to beat her and scold her on trifle counts. Tothis extent, evidence of PW1 is silent. In para 2 of the evidence ofPW3, she stated that after burns, deceased told that she wasprevented from talking on phone and she also disclosed that father-in-law had evil eye on her and because of tension of both accused, sheincinerated herself.14.Learned APP has invited attention of the court to the dyingdeclaration. In the said dying declaration, deceased has reported thaton the day of incident itself, initially, mother-in-law abused andthereafter father-in-law beat her. Therefore, evidence of informant aswell as dying declaration carries material against father-in-law forbeating deceased. There are allegations that father-in-law had evileye, but this is a vague allegation. Therefore, on complete re-appreciation of evidence of parents, allegations against father-in-lawfor beating deceased is forthcoming on record. CriAppeal-615-2005-10- Charge under Sections 306 IPC :15.Apart from Section 498-A IPC, appellant was made to face trialfor above offence. The precise accusation and charge of prosecution isthat, because of maltreatment at the hands of parents-in-law,deceased incinerated herself and they are responsible for her suicide.Having come with such specific case, it is incumbent uponprosecution to substantiate that there was abetment to commitsuicide. Prosecution has to prove necessary ingredients incorporatedin Section 107 of IPC which deals with abetment. In umpteenjudgments, Hon’ble Apex Court has time and again expounded legalrequirements for attracting the charge of 306 IPC i.e. in the knowncases, which are time and again referred to till date.16.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, discord CriAppeal-615-2005-11- and 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 givensociety to commit suicide, the conscience of the Court should not besatisfied for basing a finding that the accused charged of abetting theoffence of suicide should be found guilt. 17.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. 18.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 to CriAppeal-615-2005-12- commit 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 commitsuicide are satisfied, accused cannot be convicted underSection 306 IPC.”19.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 particular crimemust be visible with regard to determining the culpability. It wasobserved 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 person