Criminal Appeal No. 413 of 2004 · Bombaybench High Court · 2024
Case Details
2024:BHC-AUG:29772 Cri.Appeal.413.2004-1-IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 413 OF 20041.Satish Bhagwan Patil,Age : 25 years, Occu. : Agri.,2.Bhagwan Khandu Patil, Age : 56 years, Occu. : Agri., 3.Sow. Meerabai Bhagwan Patil,Age : 55 years, Occu. : Agri.,4.Vijay Bhagwan Patil, Age : 19 years, Occu. : Agri., All are R/o. Jamod, Tq. Jalgaon,Dist. Jalgaon.5.Kailas @ Diwanji Bhagwan Patil, Age : 30 years, Occu. : Service,R/o. Nashik Road, Nashik, Dist. Nashik… Appellants VersusThe State of Maharashtra… Respondent…..Mr. Himmatsinh D. Deshmukh, Advocate for Appellants.Mrs. Ashlesha S. Deshmukh, APP for Respondent - State.…..CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 26 NOVEMBER 2024PRONOUNCED ON : 14 DECEMBER 2024JUDGMENT : 1.The judgment and order dated 17.06.2004 passed bylearned IInd Ad-hoc Additional Sessions Judge, Jalgaon in SessionsCase No. 178 of 2002 recording guilt of the appellants for offence
Legal Reasoning
Cri.Appeal.413.2004-23-will not, by itself, constitute the abetment of suicide. There should beevidence capable of suggesting that the accused intended by such actto instigate the deceased to commit suicide. Unless the ingredients ofinstigation/abetment to commit suicide are satisfied, accused cannotbe convicted under Section 306 IPC.”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 be a proof ofdirect or indirect act(s) of incitement to the commission of suicide. Itcould hardly be disputed that the question of cause of a suicide,particularly in the context of an offence of abetment of suicide, remainsa vexed one, involving multifaceted and complex attributes of humanbehavior and responses/reactions. In the case of accusation forabetment of suicide, the Court would be looking for cogent andconvincing proof of the act(s) of incitement to the commission ofsuicide. In the case of suicide, mere allegation of harassment of thedeceased by another person would not suffice unless there be suchaction on the part of the accused which compels the person to commitsuicide; and such an offending action ought to be proximate to the timeof occurrence. Whether a person has abetted in the commission ofsuicide by another or not, could only be gathered from the facts andcircumstances of each case. 16.1 For the purpose of finding out if a person has abetted commissionof suicide by another; the consideration would be if the accused isguilty of the act of instigation of the act of suicide. As explained andreiterated by this Court in the decisions above referred, instigationmeans to goad, urge forward, provoke, incite or encourage to do anact. If the persons who committed suicide had been hypersensitive andthe action of accused is otherwise not ordinarily expected to induce asimilarly circumstanced person to commit suicide, it may not be safe to Cri.Appeal.413.2004-24-hold the accused guilty of abetment of suicide. But, on the other hand,if the accused by his acts and by his continuous course of conductcreates a situation which leads the deceased perceiving no other optionexcept to commit suicide, the case may fall within the four-corners ofSection 306 IPC. If the accused plays an active role in tarnishing theself-esteem and self-respect of the victim, which eventually draws thevictim to commit suicide, the accused may be held guilty of abetmentof suicide. The question of mens rea on the part of the accused in suchcases would be examined with reference to the actual acts and deeds ofthe accused and if the acts and deeds are only of such nature where theaccused intended nothing more than harassment or snap show ofanger, a particular case may fall short of the offence of abetment ofsuicide. However, if the accused kept on irritating or annoying thedeceased by words or deeds until the deceased reacted or wasprovoked, a particular case may be that of abetment of suicide. Suchbeing the matter of delicate analysis of human behaviour, each case isrequired to be examined on its own facts, while taking note of all thesurrounding factors having bearing on the actions and psyche of theaccused and the deceased.”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, aperson can be said to have abetted in doing that thing. To prove theoffence of abetment, as specified under Section 107 of IPC, the stateof mind to commit a particular crime must be visible, to determinethe culpability.In Geo Varghese v. State of Rajasthan and another (2021) 19SCC 144, the Hon’ble Supreme Court has considered the provision ofSection 306 of IPC along with the definition of abetment underSection 107 of IPC and observed as under : Cri.Appeal.413.2004-25-“14.Section 306 of IPC makes abetment of suicide a criminaloffence and prescribes punishment for the same.. . .15.The ordinary dictionary meaning of the word ‘instigate’ is tobring about or initiate, incite someone to do something. This Court inRamesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, hasdefined the word ‘instigate’ as under :-“20. Instigation is to goad, urge forward, provoke, incite orencourage to do ‘an act’.”16.The scope and ambit of Section 107 IPC and its co-relationwith Section 306 IPC has been discussed repeatedly by this Court. Inthe case or S.S. Cheena v. Vijay Kumar Mahajan and Anr (2010) 12SCC 190, it was observed as under : -“25. Abetment involves a mental process of instigating aperson or intentionally aiding a person in doing of a thing.Without a positive act on the part of the accused to instigate oraid in committing suicide, conviction cannot be sustained. Theintention of the legislature and the ratio of the cases decidedby the Supreme Court is clear that in order to convict a personunder Section 306 IPC there has to be a clear mens rea tocommit the offence. It also requires an active act or direct actwhich led the deceased to commit suicide seeing no optionand that act must have been intended to push the deceasedinto such a position that he committed suicide.”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 alleged abetmentof suicide, there must be proof of direct or indirect acts of incitement tothe commission of suicide. Merely on the allegation of harassment Cri.Appeal.413.2004-26-without their being any positive action proximate to the time ofoccurrence on the part of the accused which led or compelled the personto commit suicide, conviction in terms of Section 306 IPC is notsustainable.”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 of 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 of IPC, also there has to be an evidence withregard to the positive act on the part of the accused to instigate or aidto drive a person to commit suicide.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).” Cri.Appeal.413.2004-27-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) 3 SCC 626 ,this Court observed that abetment would involve a mental process ofinstigating a person or intentionally aiding a person in doing of athing. Without a positive act on the part of the accused to instigate oraid in committing suicide, conviction cannot be sustained. Delineatingthe intention of the legislature and having regard to the ratio of thecases decided by this Court, it was concluded that in order to convict aperson under Section 306 IPC there has to be a clear mens rea tocommit the offence. It would also require an active act or direct actwhich led the deceased to commit suicide seeing no other option andthat this act of the accused must have been intended to push thedeceased into such a position that he committed suicide.”25.On re-appreciating evidence in this context, it is emergingthat, PW2 Shiwaji who had been to fetch deceased returned withouther on 19.02.2002. Deceased allegedly met father on 03.03.2002and reported that ill treatment and harassment to be aggravated.Again no specifications or details as to in what form was the illtreatment and at whose hands has not come on record. Thus,allegations are omnibus. Even, there is no reference in this regardsin the alleged letters authored by deceased. Deceased suffered burnson 09.03.2002. There is a gap of almost a month or so, sincedeceased met father on 19.02.2002. There is total vacuum from19.02.2002 up to 09.03.2002. It is pertinent to note that, deceasedherself has conveyed in the letter that mother-in-law would send her Cri.Appeal.413.2004-28-after 9th month of pregnancy. Such material indicates that it is not soas claimed by prosecution that, deceased was not to be send unlesstheir demand is met. Consequently, what exactly happened on or inproximity to 09.03.2002 is not coming on record. Unless there isevidence suggesting positive and active participation by husband andother in-laws in abetting, instigating or inciting deceased to end upher life or that they desired that she should commit suicide and withsuch sole intention they maltreated her; or there was creation of suchcircumstances by them, due to which deceased was left with no otheralternative but to end up her life, charge of section 306 of IPC cannotbe said to be made out. More particularly, in the backdrop of legalrequirements spelt out in the above reproduced numerous judicialpronouncements, here there is no live-link in proximity to suicide toconnect either husband or in-laws. Hence, in the considered opinionof this court, as essential ingredients for attracting section 306 ofIPC, not being available, it is unsafe to attribute suicide to any of theaccused including husband.26.To sum up, on complete re-appreciation, in the consideredopinion of this court, only charge of section 498-A of IPC has beensubstantiated and proved that too only against husband and notagainst other accused persons. Charge of section 306 of IPC has notbeen proved beyond reasonable doubt against any of the appellant. Cri.Appeal.413.2004-29-27.Perused the impugned judgment under challenge, moreparticularly, observations of learned trial Judge, in paragraph no.17that, defence side has not brought any iota of material on record topoint out that for any specific reasons Jayashri had committedsuicide, are primarily against settled principle of criminaljurisprudence that it is for prosecution to prove the charges and it isfairly settled that accused can choose to remain silent. Entire burdenfalls on prosecution to establish the charges. Though presumptionavailable under evidence is available, the same can be invoked andbrought into play only when prosecution discharges its initial burdenof proving its case in entirety. Therefore, above findings andobservations being contrary to the settled cardinal principles ofcriminal jurisprudence and learned trial court having not consideredthat there are no specific allegations against in-laws, nor theirparticular role is getting crystallized under sections 498-A or 306 ofIPC, case for interference as regards to such accused are concerned,is made out. 28.Learned trial court has convicted and sentenced husbandfor 498-A and awarded sentence of two years. This Court, in abovediscussion has reached to a conclusion that there is enough materialsuggesting beating by husband. But for his such act, sentence Cri.Appeal.413.2004-30-awarded by learned trial Judge seems to be on higher side and hencethe same is required to be modified. Hence, the following order ispassed :- ORDER(i) Criminal Appeal is partly allowed. (ii)The conviction awarded to the appellant No.(1) SatishBhagwan Patil by learned IInd Ad-hoc Additional Sessions Judge,Jalgaon in Sessions Case No.178 of 2002 on 17.06.2004 for theoffence punishable under section 498-A of IPC is hereby confirmedand maintained. However, he is acquitted from offence punishableunder section 306 of IPC and therefore, conviction and sentenceawarded to him under section 306 of IPC is hereby quashed and setaside. (iii)Sentence awarded to the appellant No.(1)Satish BhagwanPatil for offence punishable under section 498-A of IPC is modifiedand reduced and instead of rigorous imprisonment of two (2) years,he is sentenced to suffer rigorous imprisonment for a period of one(01) year and to pay fine of Rs.2,000/-, in default to suffer rigorousimprisonment for three months. (iv)Set off as provided under section 428 of Cr.P.C., if entitledto, be given to the appellant no.1. (v)The conviction and sentence awarded to appellant Nos. 2to 5 in Sessions Case No.178 of 2002 by learned IInd Ad-hocAdditional Sessions Judge, Jalgaon on 17.06.2004 for the offencepunishable under Sections 498-A and 306 read with section 34 ofIPC, stand quashed and set aside. Cri.Appeal.413.2004-31- (vi) The appellant nos.2 to 5 stand acquitted of the offencepunishable under Sections 498-A and 306 read with section 34 of IPCand their bail bail bonds stand cancelled. (viii) It is clarified that there is no change as regards the orderin respect of disposal of muddemal. (ABHAY S. WAGHWASE, J.) Tandale
Arguments
Cri.Appeal.413.2004-2-punishable under sections 498-A and 306 read with section 34 ofIndian Penal Code (IPC) is questioned here by filing instant appeal. 2.Learned counsel for appellants, at the outset, submitsthat, during pendency of appeal, appellant No.2 Bhagwan KhanduPatil and appellant no.5 Kailas @ Diwanji Bhagwan Patil haveexpired. He has also placed on record the copies of death certificates.In view of the same, appeal stands abetted as against such appellants.FACTUAL MATRIX3.In short, prosecution’s case in trial court is that, deceasedManisha alias Jayashri alias Munni was married to appellant no.1 on18.04.2001. After marriage, she went to reside with husband and in-laws. According to prosecution, during her visit to the house of herparents, for Raksha Bandhan, deceased Manisha reported aboutdemand raised by husband, in-laws and her brothers-in-lawregarding articles like T.V. etc., which were supposed to be given onthe occasion of “Mul”. On instigation of mother-in-law, husband usedto beat her. Subsequently, she was not sent for delivery in thebackdrop of demand of above articles or amount of Rs.40,000/- toRs.50,000/- for purchasing of such articles. Thus, according toprosecution, there was ill treatment and cruelty meted out to her.Deceased wrote letters. Deceased was not permitted to go even for Cri.Appeal.413.2004-3-delivery. On 09.03.2002, news of Manisha committing suicide bysetting herself on fire, was received. After last rituals, report waslodged. Crime was duly registered, investigated and aftergathering evidence, husband and in-laws were charge-sheeted beforelearned Ad-hoc Additional Sessions Judge, Jalgaon, who conductedtrial vide Sessions Case No. 178 of 2002 and by judgment and orderdated 17.06.2004 accepted the prosecution case and convicted theaccused for above offences. Feeling aggrieved by the same, appellants have preferredinstant appeal.SUBMISSIONSOn behalf of Appellants :- 4.Pointing to the evidence, learned counsel for appellantssubmitted that, admittedly marriage is of 18.04.2001. He pointed outthat, during pendency of appeal, two accused had died, i.e. appellantno.2 Bhagwan Khandu Patil, father-in-law and appellant no.5 Kailas@ Diwanji Bhagwan Patil, brother-in-law and as such matter remainsfor consideration against remaining accused. According to him, thereis false implication. That, there was no dowry demand nor there wasany demand of articles. He specifically submitted that, allegations areabout demanding articles at the time of first visit of married girl to Cri.Appeal.413.2004-4-her parent’s house. It is a customary visit and as such it does notamount to any dowry demand or illegal demand. He pointed out that,sweeping allegations are levelled against entire family members.That, no specific instances are also quoted. Thus, according to him,evidence regarding cruelty so as to attract section 498-A of IPC ispatently missing. He also pointed out that, deceased was willing to goher parent’s house for delivery, but her parents did not take her fordelivery and as such she was upset. Therefore, she immolated herselfat 4:00 a.m. in the early hours of morning while everybody wassleeping. That, none of the appellants are responsible. He pointed outthat, immediately prior to suicide, there was no allegations of anyharassment or demand. That, only piece of evidence before the trialcourt is letters, but letters are firstly undated and secondly there areannoyance expressed by deceased for not being permitted to go fordelivery. Therefore, appellants cannot be held responsible for allegedsuicide. For all above reasons, learned counsel questions the legality,maintainability and sustainability of impugned judgment and heprays to set aside the judgment under challenge. In support of his submissions, learned counsel seeksreliance on the following rulings : (i)Naresh Kumar v. State of Haryana, 2024 (3) SCC 573;(ii)Kashibai and Ors. v. State of Karnataka, 2023 (3) Supreme 452; Cri.Appeal.413.2004-5-(iii)Mariano Anto Bruno and Another v. Inspector of Police, 2022 AIR (SC) 4994;(iv)Gurcharan Singh v. State of Punjab, 2020 (10) SCC 200; (v)M. Arjunan v. State Rep. By its Inspector of Police, 2019 AIR (SCW) 43; (vi)Ramesh Kumar v. State of Chattisgarh, 2001 AIR (SC) 3837;(vii)Yashodeep Bisanrao Vadode v. State of Maharashtra and Anr., 2024 DGLS (SC) 1025;(viii)Preeti Gupta and Anr. v. State of Jharkhand and Anr. 2010 DGLS (SC) 597; (ix)Dnyandeo Pandurang Yadav v. State of Maharashtra, 2024 DGLS (Bom.) 3085; On behalf of Respondent – State : 5.On the other hand, learned APP submitted thatapparently, after marriage, demand was raised by husband and in-laws. On instigation of mother-in-law and brothers-in-law, husbandbeat her. That, there was demand of articles or in lieu of it, cash forpurchasing articles. That, deceased reported it when she visitedparent’s house. She also wrote letters. Therefore, according tolearned APP, there is ample evidence on record in support of chargeunder section 498-A of IPC. 6.According to learned APP, only because of theharassment, deceased set herself on fire. That, there was no otherreason. That, suicide is in the house of husband and in-laws. Learned Cri.Appeal.413.2004-6-APP fairly submitted that, there is no evidence in the trial courtabout deceased to be pregnant and in support of all such contention,she pointed out that even doctor’s evidence and post mortem reportto be silent about it. However, according to her, essential ingredientsfor attracting the charges under sections 498-A and 306 of IPC areavailable and hence she prays to dismiss the appeal for want ofmerits.EVIDENCE BEFORE TRIAL COURT7.The prosecution has examined following 8 witnesses insupport of its case. Their role and status are as under :-PW1 Nilkanth, father informant, who set law into motionvide Exh.43.PW2 Shiwaji is the brother of informant father.PW3 Ravindra is Police Constable, who carried sealedenvelop (Exh.54) to hand it over to handwriting expert. PW4 Shobha, a nurse from Health Department, whoprepared Mata Bal Saurakshan Card (Exh.57) ofdeceased Manisha.PW5 PSI Dhanraj, who recorded crime and recordedstatement of a nurse, namely, Shobha. PW6 API Sambhaji, Police Officer, who investigated ADand prepared inquest panchanama (Exh.32) and furtherinvestigated on the report lodged by father. Cri.Appeal.413.2004-7-PW7 Sanjay is the handwriting expert.PW8 Dr. Kiran Patil, Medical Officer, who conducted postmortem.8.In trial court, prosecution rested its case primarily on theoral evidence of father PW1 Nilkanth, uncle PW2 Shiwaji and inlandletters purported to be authored by deceased at Exhs.44, 45 and 46. Admittedly, deceased was married with appellanthusband on 18.04.2001 and she died due to burns on 09.03.2002.The gist of prosecution case is that, after marriage, accused personsput up demand of articles, which even prosecution does not deny, arecustomarily paid by way of gift by parents to husband, either duringher first or second visit to her parent’s house or at the time ofdelivery. Prosecution claims that, for articles like T.V. etc. there wasill treatment. Specific case of prosecution is that they refused to senddeceased Manisha @ Munni in spite of she being pregnant unlesstheir above expectations were met.9.Here while advancing submissions, learned APP fairlypointed out that prosecution’s evidence in trial court does not showdeceased Manisha to be pregnant. Therefore, at the threshold it isrequired to be ascertained as to whether it is so. It assumes Cri.Appeal.413.2004-8-significance because very prosecution version is that deceased wasnot sent for delivery unless their alleged demand was met. 10.In above backdrop, it has become imperative for thiscourt to first study the evidence in that regard and for the sameevidence of medico - legal expert, i.e. PW8 Dr. Kiran Patil is requiredto be visited. His evidence at Exh.74. While under examination-in-chief deposed about conducting post mortem (Exh.41) and testifyingabout contents therein to be true and correct. He deposed that, if alady was carrying pregnancy is ablazed and if she sustains burns, shecould get aborted because of such burns, immediately. However, while under cross at the hands of defence, heanswered that, on the basis of post mortem report, it is his say that,the patient Manisha was not carrying pregnancy.11.Apart from above evidence, if we visit post mortemreport (Exh.41), in paragraph no.21 as regards to organs ofgeneration and state of contents of stomach, remark is “uterusempty”. In trial court, Exh.40 is finding place which is certificateissued by autopsy surgeon in response to letter dated 08.08.2002communicating that “as per your letter received on 08.08.2002 in462/2002, PM No.152 OF 2002 Manisha @ Munni Satish Patil A/PJamod was found not pregnant, “uterus empty” at P.M. and final Cri.Appeal.413.2004-9-cause of death is “shock due to 100% mixed thermal burns.” PW4 Shobha, a nurse, who is also examined byprosecution to show that deceased was pregnant and accordinglycard (Exh.57) was issued by Primary Health Centre, in examination-in-chief, stated that, deceased was examined in “Shibir” (HealthCamp). That, her mother-in-law had informed that, her menstruationcycle had stopped. Witness stated that, on examining Manisha, shefound her to be carrying pregnancy, but while under cross sheanswered that, she has studied up to 12th standard. She answeredthat, after putting her palm on the stomach of Manisha, she could“guess” that she was carrying pregnancy. She admitted that, whenpregnant woman expires, autopsy is conducted, then there must bementioned the fact of pregnancy in post mortem report. She furtheranswered that, she did not make enquiry with Manisha whether shewas prescribed any medicine by any doctor. She answered that, asher belly was found in bigger size, she deposed that, she waspregnant. She also answered that, she has not brought a bookcarrying record of issuance of card. 12.Taking into account above discussed material on behalf ofvery prosecution, here there are serious doubts about allegedpregnancy of deceased Manisha. More particularly, autopsy surgeon Cri.Appeal.413.2004-10-has in writing as well as before the court, admitted that, uterus wasempty. Meaning thereby, there was no fetus and as such nopregnancy. ORAL EVIDENCE13.In father/informant’s evidence, his daughter paid firstvisits during Raksha Bandhan and second visit during Diwali andduring her such visits she reported about demand of husband and in-laws and the relevant testimony given by father at Exh.42 is asunder :- “Marriage of Manisha took place on 18.04.2001.… After marriage she used to visit my house occasionally. I also usedto visit her house. When my daughter had been to my house forRaksha Bandhan festival, she told us that her in-laws, brother-in-laws, husband make demand of household articles like T.V. etc. in“Mul”. Mother-in-law and brother-in-law used to instigate husband,who consequently used to beat her. I told my daughter that dueunderstanding will be given to them. That time she was carryingpregnancy of two months. Thereafter, she was also brought by me for Diwali festival. That timealso my daughter told us that all accused persons insist her to bring‘Mul’ i.e. household articles from her parents and as she did notsatisfy their demand, she was being beaten, harassed and ill treatedby them. Thereafter I had been to her house 2 to 3 times and that timealso she requested me to give ‘Mul’; to which I told my daughter thatRs.40,000/- to 50,000/- would be required for purchase of thosearticles, because of paucity of funds, I showed inability to give them‘Mul’ that time and gave understanding that after selling houseproperty ‘Mul’ would be given to her. On 04.02.2002 my brotherBarikrao Patil went to drop her daughter’s house, he stayed there for4 days and my daughter sent a letter to him mentioning about illtreatment which she was facing at her house. In presence of Barikrao,husband abused and beat her. Cri.Appeal.413.2004-11-On 19.02.2002, brother Shiwaji was sent to bring my daughter, whowas carrying pregnancy of seven months, but she was not sent andwas asked to bring ‘Mul’ and then only she would be sent. On03.03.2002, when I met my daughter at a marriage, she informed meabout ill treatment and harassment and further told that gravity of thecruelty has increased to a larger extent. On 09.03.2002, news of burns was received.”While under cross he admitted that, besides of husband ofhis daughter, only parents-in-law and brother-in-law Vijay wereresided in the village Jamod, whereas, brother-in-law Kailas sincelast 10 to 15 years was resided at Nashik. He volunteered that, heused to visit intermittently. He denied knowing father-in-lawcultivating 10 acres land. He admitted that, accused Meerabaiworked as a teacher in Balwadi and that he and Meerabai wereclassmates. He denied his daughter to be hot tempered. He answeredthat, in report he told that, on instigation of mother-in-law andbrother-in-law, husband beat Manisha. He candidly answered aboutnot telling in report that all accused used to beat Manisha on theground of demand of ‘Mul’. He admitted about not indulging relativesto give understanding to accused nor making any complaint withanybody against accused persons despite receiving letters. Headmitted that, financially accused persons were rich than him and heknew it since prior to the marriage. He denied that his daughter wasnot pregnant. Cri.Appeal.413.2004-12-14.The second material witness on behalf of prosecution isPW2 Shiwaji, who is brother of PW1. In his testimony at Exh.50 hedeposed as under :- “Marriage of Manisha took place with accused 11.04.2001. Shecohabited with her husband at Jamod. She visited my brother’shouse for festival and that time there was occasion for me tomeet her. She used to make complaint about cruelty at thehands of accused persons to her. She used to tell that, husbandused to beat her on the ground of non compliance of ‘Mul’. On19.02.2002, I had been to Jamod to fetch Manisha. As somefunction was arranged as she was carrying seven monthspregnancy. Accused persons were insisting either to give ‘Mul’or to give Rs.50,000/- towards price of ‘Mul’ and then onlyManisha would be taken back. Thereupon, Manisha asked me togo back home alone as her in-laws were disinterested to sendher along with me and subsequently she will send letter tofather. I consequently returned back alone. On 09.03.2002 therewas telephonic message about the incident of ablazingManisha.” While under cross, he answered that, he and his brotherstayed separately. Manisha used to visit his house also. He deniedManisha to be hot tempered or about picking quarrels on flimsyground. He denied that she was insisting her husband that they bothshould reside separately from other family members. Rest is alldenial.DOCUMENTARY EVIDENCE15.Apart from oral evidence of father and uncle, prosecutionis heavily banking on letters purportedly written by deceased herself, Cri.Appeal.413.2004-13-which are handed it over by informant father to police, which are atExhs.44, 45 and 46. The translated versions of the said letters are asunder :- (Exh.44)“ Jamod Shriram Date: 25.02.02Greetings to Tatya from Munni. The reason for a letter is, you had sentAppa to take me. But my mother-in-law did not send me. She willgoing to send me after 9th month . My mother-in-law, husband, andbrother-in-law have made a condition that first we will take 50,000rupees for mool (one ritual after marriage), only then will they sendme to my maternal house. [Note: My in-laws have sold all the gold gifts you gave me at mywedding and spent the money. All the things on my person are ofBentex. They are behaving like this deliberately.] Tell your uncle like this and send a message to your father. My fatherhad requested Vaccha Tai, about my maternal situation, that even ifmy niece's otibharan ((ceremony held on an auspicious day in the 7thor the 9th month of pregnancy )) is done, you should convinced her in-laws and help Munni get on her way. However, Vaccha Tai did notfeel any pity, on the contrary, both, my mother-in-law and daughter-in-law, used to tell bad things about me to the people in the house andmake them abuse and beat me. My mother-in-law, father-in-law,husband and brother-in-law all beat and abused me to pay 50,000/-rupees. My father-in-law has completely broken down and sold thegold worth 55,000/- rupees that you gave me in marriage. They playcards every day. They drink alcohol. And they torture me, you spent1,50,0000/- rupees for my marriage. They are not satisfied with that.They are begging for money like a beggar without considering yourfinancial situation. But please, for my life, we should sell the houseand give them the money. All these four people are giving me a lot oftrouble. And they are playing with my life. Are they so monstrous that Cri.Appeal.413.2004-14-they will kill me for money? I am afraid. Because when I am 8 monthspregnant, they beat me mercilessly. My mother-in-law is so evil thatshe is giving me bad advice like aborting the fetus in my womb. Andshe keeps saying that we don't want a daughter-in-law with children.We only wanted a daughter-in-law who can work in agriculture/field.There are so many monstrous people. They beats me in front ofeveryone in Dilip Aaba's house viz.Vallabh Appa, Vaccha Tai, etc.But they don't show any mercy.[ Tatya, if I were alone and had no relatives in this house, my mother-in-law and the Patil would add salt and pepper to my problems. If Ihad been tortured and beaten, I would have blamed my fate, but whatshould I do? Tatya, Atmaram Bepari of our village Dheku and allthese four have cheated on us a lot by putting me in this demonicfamily. I pray to the Lord that I will be free from their torture, butwhat should I do? The wood for the stove will burn in the stove, so Iam bearing all. I am remaining as if God has placed me to live. Pleasetake me with Rs. 50,000/- in exchange for mool (ritual aftermarriage), otherwise my mother-in-law will not send me. I feared thatone day my mother-in-law, father-in-law, husband, and brother-in-lawall will kill me. Yours obediently,Give my regards to Sau. Aai, Tai, Jija,Aapi.Good wishes to Bharti.”(As translated by Senior Translator, High Court of Bombay Bench at Aurangabad) (Exh.45)“Give my regards to Aai from Munni, I am writing a letter , reason isthat, My father has fulfilled my wish by spending a lot on my wedding.But Atmaram Bepari, who claims to be our close friend, and hisrelatives, son-in-law, sister, and daughter have deceived us a lot. Myfather-in-law has a family of 5 siblings and the virgin daughters ofMaschindra Aaba and Sur Dada have had miscarriages. In all these Cri.Appeal.413.2004-15-cases, Dilip Vallabh had huge contribution in hiding everything frombirth to death. Also, while the father-in-law named Sur Dada was abad person, drinking alcohol, selling alcohol, being drunk, etc., Bepari,Vallabh Appa, Dilip Aaba, Vaccha Tai, and Chhaya Tai havedeliberately done this to make us suffer. Because my father, uncle, andbrothers should always keep their minds down in front of them. Forthis purpose, they have ruined my fate. Dilip Aaba used to say that myhusband is very virtuous, but I have experienced that he has very badqualities. But what to do now, I must face it. In all this, I feel thatBepari and his relatives(Vyahi) must have taken brokerage from myfather-in-law, because my father-in-law is also a broker. If anytrouble/mishap happens in this village, my father-in-law's family andVallabh’s family take care of the police station. Dilip Aba and PolicePatil's grandfather taking care of the practical matters. The boss of allof them is Police Patil. These bad people commit various types of theft,gambling, and even abortions of virgin girls. I know how I would beliving in such a terrible environment, by the grace of God. Mother andTatya don't tell to my brothers anything about this letter because theyhave managed a lot and spent a lot for my wedding. They will be verysad. Don't tell them. Send my father to visit me often so that my fearwill go away. Finally, my destiny. I will live as God has planned. Givemy regards to Tatya. Best wishes to Bharti. Please tell Bepari about thetrouble I am facing and tell him to warn my mother-in-law and in-law.This is my humble request. I am bearing it.Forgive me for mistakes. In hurry. Yours obediently, Munni.”(As translated by Senior Translator, High Court of Bombay Bench at Aurangabad) (Exh.46)“Give my regards to Aai and Tatya, best wishes to Bharti, the reasonfor the letter is that received Bharti’s greeting, I read the letter andgreeting and was happy. Another thing is that we were supposed to go Cri.Appeal.413.2004-16-to the hospital on January 7, but we didn't go. So, on February 1, wewent to the hospital in Jalgaon, but we went to Nandra. We went to thehospital but didn't take any pills or medicines. My mother-in-law saidthat only very sick people need medicines, but we are fine. My health isstill not good. I was prescribed a tonic. I didn't bring that either. Mymother-in-law says that those pills are of no use. And they told me thatthey didn't bring the pills to the house. And they told me that it will take9 months, or they will send it and they don't even take the pills ormedicines. I have become very helpless. You didn't meet me when youcame. I am not getting any work done. My mother-in-law is taking myexams (testing my patience) do this, do that, I can’t do anything. Theyare going to fill my Otibharan (ceremony held on an auspicious dayin the 7th or the 9th month of preganancy ) on the 12th. However, comeand take me on the 14th or 15th. My mother-in-law says, ask me to tellyou to bring both the zoli and the things of Mool, otherwise she willnot send me . Now my mother-in-law is showing her children the wayto ask for the things to be given on Mool. I cannot write much.Give my regards to Aappa and Jija. And to Grandma also. All of you take care of your health. Send my brothers to take me or elseyou come. Don't send Dada, because Dada drinks alcohol and playscards. Otherwise, send Gotu.”(As translated by Senior Translator, High Court of Bombay Bench at Aurangabad) APPRECIATION OF EVIDENCE AND ITS ANALYSIS16.On meticulous re-appreciation of above evidence of fatherPW1 Nilkanth and uncle PW2 Shiwaji, it is emerging that, aftermarriage in April 2001, deceased Manisha paid two visits to parent’shouse i.e. firstly during Raksha Bandhan and secondly, during Diwaliand she also met father in one marriage on 03.03.2002. Father’s Cri.Appeal.413.2004-17-evidence discussed above shows that accused persons put up demandof articles at the time of customary occasion of ‘Mul’. On court query learned APP clarified that ‘Mul’ is acustomary process of giving gifts in the form of articles to husband attwo occasions i.e. firstly, when newly married bride pays visits to herparent’s house or the first time after marriage and secondly, whenshe visits her parent’s house for delivery. Therefore, the articlesdemanded are due to customs prevailing in community.SUMMATION ON CHARGE UNDER SECTION 498-A IPC17.Re-appreciating the above oral evidence of father anduncle, it is noticed that, informant father claims that during visit ofdeceased for Raksha Bandhan after four months of marriage, shereported that, in-laws, brother-in-law and husband made demand ofhousehold articles, like T.V. etc. in “Mul”. Specific allegations is thatmother-in-law and brother-in-law used to instigate husband, whoconsequently beat her. But, very Investigating Officer while undercross admitted that informant did not state in his report that mother-in-law and brother-in-law instigating husband and so he used to beatdeceased. She also reported about demand during visit of Diwali. Hedeposed about daughter beaten, harassed and ill treated by them. 18.PW2 Shiwaji, uncle, claims to have heard from deceased Cri.Appeal.413.2004-18-that husband used to beat her on the ground of non compliance of‘Mul’. Even during his visit to her on 19.02.2002 to take her, healleges that, deceased was not sent with him, saying that, either ‘Mul”should be given or Rs.40,000 to 50,000/- be paid. But, he also isattributing mere allegations of demand to all accused and he does notspecify who amongst them put up the above demand. However,allegations about husband beating is also deposed by him too and tothat extent he supports his brother PW1 informant. It is alsoemerging that, as regards to mother-in-law is concerned, onlyinformant father speaks about instigation by mother-in-law as aresult of which husband beat her. PW2 Shiwaji does not attributerole of instigation to mother-in-law. Therefore, on complete re-analysis only allegation ofbeating by husband are surfacing in the evidence of both, father aswell as uncle and from the letters reproduced above.19.As regards to other accused i.e. brothers-in-law areconcerned, as discussed above, there are general and omnibusallegations. Apparently, allegations are directed against husband forbeating, though on instigation of mother-in-law. However, it ispertinent to note that, at the time of judgment, age of accused Vijay isnoted as 19 years. Judgment is passed on 17.06.2004. FIR is of10.03.2002. This shows that, on the day of occurrence, accused Vijay Cri.Appeal.413.2004-19-was merely 17 years of age and thus a minor. It is also emerging thataccused no.5 Kailas @ Diwanj was resident of Nashik. Informant hasadmitted that, he had shifted there since 10 to 15 years. However,though he has volunteered that he used to visit Jamodintermittently, specific visits are not coming on record. Therefore, asregards to allegations against both brothers-in-law are concerned,there are omnibus allegations about instigation. Even as againstmother-in-law allegations are non specific except stating that sheinstigated. The Hon’ble Apex Court in the very recent case ofKahkashan Kausar alias Sonam and others v. State of Bihar andothers ; (2022) 6 SCC 599, observed that, general, sweeping andomnibus allegations without giving specific role and distinctallegation does not warrant prosecution itself.20.Learned counsel for appellants would submit that,whatever allegations are made about demand, is not illegal demandtowards any dowry. According to him, demand was towardscustomary rituals which are acknowledged in the community. Hence,according to him, rigors of section 498-A of IPC would not beattracted. 21. Here, father and uncle of deceased have both deposed Cri.Appeal.413.2004-20-about demand of “Mul”. As stated above, learned APP herselfclarified that, when newly wedded bride visits her parent’s place forthe first time or during first visit after conception and delivery, thereis a custom of giving articles. Informant narrated that on19.02.2002, his brother PW2 Shiwaji was sent to fetch deceased, butshe was not allowed to go, saying that, said customary ‘Mul’ is notgiven.22.Though above demand of articles is customary, theHon’ble Apex court in the case of Rajinder Singh v. State of Punjabreported in AIR 2015 SC 1359, observed that, any demand made byhusband or his relatives before, during or after the marriage areconsidered as a dowry. This view is again reiterated in the case ofState of Madhya Pradesh v. Jogendra and Ors. reported in (2022) 5SCC 401. In view of above, though demands are termed as‘customary’ in view of above ruling, every demand is to be held asdowry demand.23.Consequently, here, role of husband alone is gettingcrystallized. Though there are three letters (Exh.44, 45, and 46) asregards to maltreatment is concerned, only Exh.44 carries materialregarding conduct of accused husband and mother-in-law. Allegations Cri.Appeal.413.2004-21-against mother-in-law is coming to the extent of instigation, but forwhat is not clear. Therefore, there is no convincing evidence asregards to section 498-A is concerned against both, brothers-in-lawas well as mother-in-law and as such it would be unjust and improperto involve brothers-in-law and mother-in-law by invoking section 34of IPC.CHARGE UNDER SECTION 306 OF IPC :24.As regards to offence of section 306 of IPC is concerned,case of prosecution is that, accused abetted deceased Manisha tocommit suicide on 09.03.2002. Whereas, according to appellants,very essential ingredients and evidence to the extent of abetment,inducement, incitement or any positive role in proximity to suicide ispalpably missing from entire prosecution evidence. Before adverting to such charge, it would be desirable toreproduce and quote settled judicial precedent for holding chargeunder section 306 as proved. In State of West Bengal v. Orilal Jaiswal (supra), theHon’ble Supreme Court has cautioned that the Court should beextremely careful in assessing the facts and circumstances of eachcase and the evidence adduced in the trial for the purpose of findingwhether the cruelty meted out to the victim had in fact induced her Cri.Appeal.413.2004-22-to end her life by committing suicide. If it appears to the Court that avictim committing suicide was hypersensitive to ordinary petulance,discord and difference in domestic life, quite common to the society,to which the victim belonged and such petulance, discord anddifference were not expected to induce a similarly circumstancedindividual in a given society to commit suicide, the conscience of theCourt should not be satisfied for basing a finding that the accusedcharged of abetting the offence of suicide should be found guilt. 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 andspecifically be suggestive of the consequence. Yet a reasonablecertainty to incite the consequence must be capable of being spelt out.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 under Section 306I.P.C. are : (i) the abetment; (ii) the intention of the accused to aid orinstigate or abet the deceased to commit suicide. The act of theaccused, however, insulting the deceased by using abusive language