High Court
Legal Reasoning
-1- Cri.Appeal.224.2002IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 224 OF 2002Sunil Bharat Pardeshi, Age : 27 years, Occ. : Agril., R/o. Savkheda Khd. Tq. Pachora, District Jalgaon.… Appellant. (Orig. Accused No.1)VersusThe State of Maharashtra, (At the instance of PSI, Pimpalgaon, Haareshwar P. Stn.,C.R. No. 49/1998,Through Public Prosecutor, High Court Bench, at Aurangabad.… Respondent. (Orig. Complainant)…Mr. Rajendrraa Deshmukh, Senior Counsel a/w Mr. Vishal A.Chavan i/b. Mr. Devang R. Deshmukh, Advocate for Appellant. Mr. N. D. Batule, APP for Respondent - State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 21st FEBRUARY, 2024PRONOUNCED ON : 23rd FEBRUARY, 2024JUDGMENT : 1.Deceased Asha, who consumed poison on 02.12.1998while at her matrimonial house and died. Therefore, husband, whohas been held guilty for offence punishable under sections 498Aand 306 of Indian Penal Code (IPC), thereby sentencing him tosuffer rigorous imprisonment for three years and five years,respectively and to pay fine, has preferred instant appeal -2- Cri.Appeal.224.2002challenging the judgment and order passed by learned IIIrdAdditional Sessions Judge, Jalgaon dated 20.04.2002 in SessionsCase No. 75 of 1999. PROSECUTION CASE IS AS UNDER2.Husband, mother-in-law and sister-in-law were charge-sheeted by Pimpalgaon Haareshwar police station on accusationthat after marriage in 1998, when deceased Asha went to cohabitwith her husband and in-laws, she was treated properly for initialperiod. However, subsequently, husband, mother-in-law and sister-in-law put up a demand of Rs.15,000/- to clear their loan and onsuch count, she was subjected to both physical and mentalharassment. Deceased used to promptly report regarding suchtreatment meted out to her to her parents. On understanding beinggiven, they undertook to treat her properly. However, on02.12.1998 while deceased was in the house and in company ofaccused, she consumed insecticide and end up her life. Therefore,father lodged report. 3.PW10 Vinayak Lokare, who entrusted with theinvestigation, after gathering sufficient evidence, charge-sheetedhusband and in-laws and they were made to face trial beforelearned IIIrd Additional Sessions Judge, Jalgaon, who conducted
Legal Reasoning
-3- Cri.Appeal.224.2002trial, appreciated oral and documentary evidence and finallyreached to a conclusion that prosecution established the charges,but only as against the husband and thereby held him guilty foroffence under sections 498A and 306 of IPC, whereas acquittedmother-in-law and sister-in-law. It is the above judgment and order of conviction, whichis now assailed by filing instant appeal on various grounds raised inthe appeal memo.SUBMISSIONSOn behalf of Appellant :-4.Learned Senior Counsel Shri Deshmukh on behalf ofappellant would submit that, apparently implication is false andout of mere annoyance of loosing deceased. He would point outthat, general and omnibus allegations are raised about demand,harassment and ill treatment without specifying and proving forwhat demand was made, when ill-treatment was subjected and inwhat manner. He further pointed out that, it is pertinent to notethat on same set of evidence accused nos.2 and 3 are acquitted, butunfortunately husband alone is held guilty. According to him,except near and dear ones, no independent witnesses areexamined. -4- Cri.Appeal.224.20025.He further pointed out that, here, there was charge forabetment to commit suicide, however prosecution had miserablyfailed to establish very abetment, which is essential and sine quonon for both framing the charge as well as recording findings tothat extent. He pointed out that, there is no iota of evidence thathusband abetted consumption of poison and therefore according tohim, learned trial Court ought not to have held the charges proved. 6.It is next submitted that, there is said to be a dyingdeclaration, but it is not voluntary as the very language in whichalleged dying declaration is noted, was not apparently a version ofdeceased. That, said dying declaration does not specify the reasonof consumption nor on its contents it can be said that accusedabetted the suicide.7.He took this court through the testimonies ofprosecution witnesses and pointed out that, apart from not lendingsupport to each other, there are material omissions and variancesin their testimonies. He specifically pointed out that initiallyoccurrence was reported as AD and during its enquiry nothingincriminating was revealed against husband also, but still learnedtrial Court has erroneously appreciated the evidence and has erredin accepting the case of prosecution as proved as regards to -5- Cri.Appeal.224.2002husband is concerned. Consequently, finding fault in the conclusionreached at by learned trial Judge, he prays to allow the appeal bysetting aside the impugned judgment. On behalf of Prosecution :-8.In answer to above, learned APP pointed out that,within less than a year of marriage, demand of cash was made. Onits non fulfillment, deceased was subjected to both physical andmental cruelty. She promptly reported the same to her parents.Both parents have stepped into the witness box. Their testimonieshave remained unshaken. Deceased has consumed poison whileshe was cohabiting with husband. There was no other reasonexcept cruelty of such nature and extent that deceased was leftwith no other alternative, but to end up her life. Consequently, it ishis submission that, husband being responsible, is rightly heldguilty and so he prays not to interfere with the findings reached atby learned trial Judge.9.Here, after hearing submissions of both sides and ongoing through the charges, it transpires that, apart from appellant,his mother and sister were also charge-sheeted. Admittedly,mother-in-law and sister-in-law of deceased have been acquitted bythe learned trial Judge by its judgment and order dated20.04.2002. -6- Cri.Appeal.224.2002EVIDENCE ON BEHALF OF PROSECUTION10.Record shows that, as many as many 10 witnesseswere taken support of in the trial court for establishing charges ofsections 498A and 306 of IPC. The witnesses examined are asunder :- PW1 Bhagchand father; PW2 Kamalbai mother; PW3Vilas panch to spot panchanama (Exh.27); PW4 Satish secondpanch to the panchanama of seizure of bottle; PW5 Govindmaternal uncle; PW6 Kartarsing uncle of accused, PW7 MalhariSardar, police head constable, who recorded statement of deceased;PW8 Dr. Pruthaviraj Chavan, examining doctor on the point ofcertification to give dying declaration; PW9 Dr. Sampat Wankhedeautopsy surgeon; PW10 Vinayak Lokare, Investigating Officer.11.On going through the above evidence, it seems that,alleged consumption by Asha is of 02.12.1998. There is no disputethat, such consumption is while she was with her husband and in-laws. It is also not in dispute that, initially AD was registered andsame was inquired. Record shows that, after consumption deceasedwas taken to Rural Hospital, Pimpalgaon, where her dyingdeclaration was recorded. In the dying declaration, she has statedthat, mother-in-law and sister-in-law taunted her for not doingproper work and on domestic count. Husband beat her and she -7- Cri.Appeal.224.2002was forcibly sent her parents house. Her version is that, on01.12.1998 around 8:00 to 8:30 p.m. demand of Rs.15,000/- wasraised and on its non fulfillment, she was abused and thereby herlife was made miserable and consequently she consumed one spoonof poison. Very dying declaration itself shows that husbandshifted her to the hospital.12.Apart from above dying declaration, prosecution seemsto be seeking reliance on testimonies of parents PW1 Bhagchandand PW2 Kamalbai. However, on carefully going through the same,as pointed out, there are no details for repayment of which loandemand of Rs.15,000/- was made is not clear. Their evidenceshows that, she was with parents for long time i.e. upto 2 to 3 daysprior to the alleged consumption. Alleged consumption is ofintervening night of 01.12.1998 and 02.12.1998, but what exactlytriggered the occurrence is not coming on record. The abovediscussed dying declaration merely shows that, demand ofRs.15,000/- to repay some credit was made, but from whom creditwas raised has not been investigated by Investigating Officer.There is no material in the testimonies of parents or uncle thatalleged demand and cruelty was persistent, as a result of which,she was brought to the point of taking decision to end up her life. In -8- Cri.Appeal.224.2002dying declaration apart from allegation of failure to bringRs.15,000/-, there was taunting that she is not like by them andthat she is unable to do household work, there are no seriousallegations. Deceased merely narrated that, getting fed up, sheconsumed poison.13.Law is fairly settled that, for attracting the chargesunder section 498A of IPC, prosecution is duty bound to provefollowing essential ingredients :- “(1)A woman was married; (2)She was subjected to cruelty; (3)Such cruelty consisted in - (i)any lawful conduct as was likely to drive suchwoman to commit suicide or to cause grave injury ordanger to her life, limb or health whether mental orphysical; (ii)harm to such woman with a view to coercing her tomeet unlawful demand for property or valuable security oron account of failure of such woman or any of her relationsto meet the lawful demand ; (iii)the woman was subjected to such cruelty by herhusband or any relation of her husband.” However, above required essentials are not met in theavailable evidence. Nature of ill treatment is not clarified excepttaunting. What was the physical cruelty is also not specified. Evenwhen such instances took place has not been stated by parents and -9- Cri.Appeal.224.2002uncle in spite of claiming to be duly informed to that extent bydeceased. Resultantly, allegations to that extent seem to be generaland omnibus in nature. 14.Accused is convicted for offence under section 306 ofIPC i.e. abetment to commit suicide. Before adverting to the meritsof the evidence, it would also be fruitful to spell out essentials forattracting charge of abetment to suicide and the settled legalposition. For bringing home the said charge, it is duty ofprosecution to prove that there was abetment to commit suicide.As to what amounts to abetment is also fairly settled.Section 107 of the IPC deals with abetment. It reads thus:“107. Abetment of a thing- A person abets the doingof a thing, who - First. - Instigates any person to do that thing; orSecondly. - Engages with one or more other person orpersons in any conspiracy for the doing of that thing,if an act or illegal omission lakes place in pursuanceof that conspiracy, and in order to the doing of thatthing; or Thirdly.-Intentionally aids, by any act orillegal omission, the doing of that thing.Section 306 of the IPC deals with abetment of suicide.Ingredients of this section are as under :“The accused kept on irritating or annoying thedeceased by words, deeds or willful omission orconduct which may even be a willful silence until thedeceased reacted, or pushed or forced the deceasedby his deeds, words or willful omission or to conductto make the deceased move forwards more quicklyand (ii) that the accused had the intention to -10- Cri.Appeal.224.2002provoke, urge or encourage the deceased to commitsuicide while acting in the manner noted above.Undoubtedly, presence of mens rea is the necessaryconcomitant of instigation.”15.In order to attract the charge of section 306 of IPC, it isincumbent upon prosecution to establish incitement, instigation,aiding or abetment to commit suicide. Law to this extent has beenfairly settled in series of cases, scope of Sections 107 and 306 hasbeen time and again decided by the Hon’ble Apex Court in the casesviz; Ramesh Kumar v. State of Chhatisgarh reported in(2001) 9SCC 618; Sanju @ Sanjay Singh Sengar v. State of M.P. reportedin(2002) 5 SCC 371; State of West Bengal v. Indrajit Kundu andothers reported in (2019) 10 SCC 188 and very recently in thecase of V.P.Singh etc. v. State of Punjab and others reported in2022 SCC Online SC 1999. In above series of cases, it has been held and reiteratedthat accused persons should intent that deceased should end upher life. With that object in mind, if they deliberately createcircumstances, which are of such nature, that deceased is left withno other alternative but to end up her life, only then charge ofabetment to commit suicide can be said to be successfully broughthome. Abetment is equally an essential factor to be proved byprosecution. -11- Cri.Appeal.224.200216.Here, evidence of prosecution is patently lacking on thepoint of inducement or abetment to commit suicide. No role isattributed to the husband for forcing her to end up her life. In whatform husband abetted the suicide is not established. 17.It is pertinent to note as pointed out by learned SeniorCounsel that, on same set of evidence, mother-in-law and sister-in-law were acquitted from both the charges, but same evidence isapplied by learned trial Judge for holding husband aloneresponsible, without assigning sound reasons for doing so. Resultantly, in the considered opinion of this court, onre-appreciation and re-analysis, when evidence of prosecution isfalling short to attract the charges, benefit of doubt ought to havebeen extended by the learned trial Judge. Learned trial Judgehaving failed, interference is called for. Hence, I proceed to passthe following order :- ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to appellant - Sunil BharatPardeshi in Sessions Case No. 75 of 1999 by the learnedIIIrd Additional Sessions Judge, Jalgaon on 20.04.2002 -12- Cri.Appeal.224.2002for the offences punishable under Sections 498A and306 of Indian Penal Code, stands quashed and set aside. III)The appellant stands acquitted of the offence punishableunder Sections 498A and 306 of Indian Penal Code.IV)Bail bonds furnished by the 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, J.) Tandale