High Court · 2024
Facts
1 CrRn-344-04.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO.344 OF 2004Namdeo s/o. Laxman Bansode,Age 24 years, Occu. Labourer,R/o. Shendra (Kamangar),Taluka and District Aurangabad..Applicant (Original Accused)Versus1.The State of Maharashtrathrough P.I. Police StationChikalthana Gramin2.Kaduba Dhanaji Kolhe,Age 45 years, Occu. Labour,R/o. Somthana, Tq. Badnapur,District Jalna.. RespondentsMr. Arun S. Shejwal, Advocate for Applicant;Mr. S. B. Narwade, A.P.P. for Respondent No.1CORAM :S. G. MEHARE, J.Reserved on: 08-08-2024Pronounced on: 23-09-2024JUDGMENT:-1.The applicant/convict preferred this revision against thejudgment and order of conviction of the learned 5th Ad-hocAssistant Sessions Judge, Aurangabad, in Sessions Case No.21 of2004 dated 28.04.2004 and the learned 4th Additional SessionsJudge, Aurangabad, in Criminal Appeal No.80 of 2004, dated30.06.2004. The appellate Court maintained the conviction againstthe applicant/husband and acquitted his parents. 2 CrRn-344-04.odt2.The learned counsel for the applicant has vehementlyargued that both Courts erred in law in not commenting upon thecontradictory opinions of the Medical Officer performing thepostmortem report and Chemical Analyzer about the cause ofdeath. Considering the chemical analysis report, the prosecutionfailed to prove the exact cause of death. Since the cause of deathis not proven, the applicant cannot be blamed for the allegedoffences. The conviction is based only upon the partisanwitnesses. The neighbours were not examined. The evidence hasnot been appreciated properly. The prosecution case was based onhearsay evidence. The contradiction and omissions have not beencorrectly appreciated. The findings of the trial Court are self-contradictory. There was no evidence of abetment to commitsuicide. The abetment, as defined under Section 107 of the IndianPenal Code (“IPC”) has not been established. The learned trialCourt erred in exhibiting the statement of the witnesses underSection 164 of the Code of Criminal Procedure without giving anopportunity to cross-examine the Special Executive Magistrate.3.To bolster his arguments, he relied on the case of - (i)Naresh Kumar vs. State of Haryana, Criminal Appeal (No.)1722 of 2010 (@ Special Leave Petition (Criminal) No.8873of 2008, SC, dated 22 February, 2024, and (ii) Kashibai andOrs. vs. The State of Karnataka, Criminal Appeal No. …. of2023 (Arising out of SLP (Crl.) No.8584 of 2022, dated 3 CrRn-344-04.odt28.02.2023 :: 2023 LiveLaw (SC) 149.4.Per contra, the learned A.P.P. submits that there areconcurrent judgments of conviction imposed on the applicant. TheRevision Court cannot re-appreciate the evidence. Both Courtshave correctly appreciated the evidence and recorded theconviction against the applicant. The difference of opinionbetween the Medical Officer and the Chemical Analyzer does notvitiate the prosecution. In such a case, circumstantial evidence isto be considered. Both Courts have correctly considered thecircumstances. The applicant had a false defense of snake biting.There is no error of law in the impugned judgment.5.To bolster his arguments, he relied on the case of State ofKerala: Managing Director, Western India Plywoods vsPuttumana Illath Jathavedan Namboodriri, 1999 AIR (SC)981.6.The Hon’ble Supreme Court, in the case of State of Kerala(supra), has laid down the law that the revisional powers cannot beequated with the power of an Appellate Court, nor can it betreated even as a second Appellate Jurisdiction. Ordinarily,therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on thesame when the evidence has already been appreciated by theMagistrate as well as the Sessions Judge in appeal unless any 4 CrRn-344-04.odtglaring feature is brought to the notice of the High Court whichwould otherwise tantamount to gross miscarriage of justice.7.The first legal question is whether contradictory opinions asregards the cause of death vitiate the trial.8.The Medical Officer who performed the postmortem, hasopined that the cause of death was insecticidal poisoning. Hisopinion was based upon the postmortem signs that the brain wascongested oedematous, right and left lungs congestedoedematous, paritoneuum was congested, imparting abnormalsmell, the stomach contained 20 cc., dark reddish liquid impartingabnormal smell, mucosa congested, eroded with defusedsubmucosal haemorrhage. Other contents of the stomach,pancreas, spleen, and kidney were congested. She had conceiveda child.9.The Assistant Chemical Analyzer, Regional ForensicLaboratory, Aurangabad, found results of the analysis that thecentral and specific chemical testing did not reveal any poison inthe stomach and pieces small of the intestine with contents,pieces of the liver spleen, and kidney and the blood of thedeceased.10.In Modi's Medical Jurisprudence & Toxicology, Twenty-third Edition, Editors- K. Mathiharan and Amrit K. Patmail, 5 CrRn-344-04.odtLexisNexis Butterworths, in Section 2 - Toxicology at page No.26,Modi opined that cases in which there were definite signs of deathfrom poisoning, although the Chemical Examiner failed to detectthe poison in the viscera preserved for chemical analysis. It has,therefore, been wisely held by Christison that in cases where thepoison has not been detected on chemical analysis, the Judge, indeciding a charge of the poisoning, should weigh in evidence thesymptoms, postmortem appearance, and the moral evidence.11.In the case in hand, the evidence of the Medical Officerperforming the postmortem on the deceased was based upon thesigns and the postmortem appearances. He noticed the signs andthe postmortem appearances immediately after the death. Modifurther observed that it is possible that a person may die from theeffects of poison, and yet none may be found in the body afterdeath if the whole of the poison disappeared from the lungs byevaporation or has been removed from the stomach and intestineby vomiting and purging, and after absorption has been detoxified,conjugated and eliminated from the system by the kidneys andother channels. 12.In the facts and circumstances, evidence of the medicalofficer performing postmortem would prevail over the opinion ofthe Chemical analyser. Therefore, the objection of the learnedcounsel for the petitioner/accused that the prosecution could not
Legal Reasoning
7 CrRn-344-04.odtought to be proximate to the time of occurrence.Whether a person has abetted in the commission ofsuicide by another or not, could only be gathered fromthe facts and circumstances of each case.”15. In paragraph No.16.1 of Ude Singh (supra), it has beenobserved that;"For the purpose of finding out if a person has abettedcommission of suicide by another; the considerationwould be if the accused is guilty of the act ofinstigation of the act of suicide. As explained andreiterated by this Court in the decisions abovereferred, instigation means to goad, urge forward,provoke, incite or encourage to do an act. If thepersons who committed suicide had beenhypersensitive and the action of accused is otherwisenot ordinarily expected to induce a similarlycircumstanced person to commit suicide, it may notbe safe to hold the accused guilty of abetment ofsuicide. But, on the other hand, if the accused by hisacts and by his continuous course of conduct createsa situation which leads the deceased perceiving noother option except to commit suicide, the case mayfall within the four-corners of Section 306 IPC. If theaccused plays an active role in tarnishing the self-esteem and self-respect of the victim, whicheventually draws the victim to commit suicide, theaccused may be held guilty of abetment of suicide.The question of mens rea on the part of the accusedin such cases would be examined with reference tothe actual acts and deeds of the accused and if the 8 CrRn-344-04.odtacts and deeds are only of such nature where theaccused intended nothing more than harassment orsnap show of anger, a particular case may fall short ofthe offence of abetment of suicide. However, if theaccused kept on irritating or annoying the deceasedby words or deeds until the deceased reacted or wasprovoked, a particular case may be that of abetmentof suicide.”16.To complete the offence under Section 306 of the IPC, theprosecution must establish that the accused has directly orindirectly incited the deceased by his acts or omissions to commitsuicide.17.The acts of the accused are such an offending action thatcompelled another person to comment on the life or commitsuicide. The accused should provoke the deceased with theintention that she should commit suicide. There should beintentional instigation or aiding by any act or illegal omissionsThere should be clear mens rea to commit the offence punishableunder Section 306 of the IPC. Mere suicide of a woman withinseven years of her marriage, Section 113A of the Indian EvidenceAct would not automatically apply. To apply Section 113A of theEvidence Act, the prosecution has to establish the abetment tocommit the suicide and subjecting the deceased to cruelty.However, such facts are to be considered having regard to theother circumstances of the case. 9 CrRn-344-04.odt18.The Hon'ble Supreme Court in Kashibai (supra), discussingthe various case laws on Section 107 and 307 of the IPC, laid downthe law that “in order to bring the case within the purview of“Abetment” under Section 107 IPC, there has to be an evidencewith regard to the instigation, conspiracy or intentional aid on thepart of the accused. For the purpose of proving the charge underSection 306 IPC, also there has to be evidence with regard to thepositive act on the part of the accused to instigate or aid to drive aperson to commit suicide.”19.To ascertain whether the acts of the applicant wereinstigating or he was aiding the deceased to drive her to commitsuicide or was there abetment to commit suicide, a few factsrelevant to the allegations need to be considered.20.Admittedly, the deceased died after two years of hermarriage. The defence of the accused was that since she did notconceive, she was depressed. She was going frequently to herparents. She stayed with her father for a year and seven monthsand then sent back to the applicant. Thereafter, one and a halfmonths before the incident, she went to her parents. At that time,she complained that the applicant was harassing her for goldenornaments. Then the applicant went to fetch her back, he wasgiven the understanding that he would not illtreat her.Considering the allegations of her last stay and fetching her by the 10 CrRn-344-04.odtaccused/applicant, she joined the company in mid-August 2003.She committed suicide on 23.10.2003. In the intervening period ofone and half months, she never complained to anybody that shewas again harassed and ill-treated for the golden ornaments. Onefine morning, she consumed the pesticides. The applicant and hisfather admitted her to the hospital. However, the admission of thewitness shows that she was residing with the applicant for five tosix months back from the date of the incident, and then shecommitted suicide. The material fact on record is that in themorning on the day of the incident, her brother Devidas had beento the house of the applicant. He did not send the deceased withhim. Thereafter, she consumed the insecticides. During her laststay with the applicant, there were absolutely no complaints. Sinceshe was not permitted to go to her parents, she might have beenangered and committed suicide. 21.It has been argued for the applicant that the prosecution didnot establish that the applicant had provoked, incited, orencouraged the deceased to commit suicide. It was notestablished that the offending action of the accused wasproximate to the time of the occurrence. He went to fetch her backwhen she was residing with her parents. Therefore, the legalaspect of applying Section 107 of the IPC also appears missing inthe case. There is an apparent error of law in holding the applicantabetted the deceased to commit suicide. 11 CrRn-344-04.odt22.It is apparent that the death of the deceased was notproximate to the alleged harassment, and the prosecution couldnot establish from the other circumstances that the applicantabetted the deceased to commit suicide. Therefore, thepresumption under Section 113A of the Evidence Act does notattract, though the death was within seven years of the marriage.There was nothing to show that the applicant instigated thedeceased with the intention of forcing her to commit suicide.23.The learned counsel for the applicant submits that theprosecution did not prove the charge under Section 498A of theIndian Penal Code. There was absolutely no evidence of coercionto the deceased for unlawful demand. The conviction of theaccused for the said offence is bad in law. 24.To prove the charge of Section 498A of the Indian PenalCode, the prosecution has to establish that the husband or hisrelative subjects such woman to cruelty. The term “cruelty” isexplained in two parts in the said Section. The first part speaks ofwillful conduct of a nature that is likely to drive the woman tocommit suicide or to cause grave injury or danger to the life, limbor health, either physical or mental, of such woman. The secondpart provides for harassment of a woman with a view to coercingher or any person related to her to meet unlawful demand for anyproperty or valuable security on account of these failure, or any 12 CrRn-344-04.odtperson related to her to meet such demand.25.The allegations reveal that the accused caused cruelty to thedeceased by persistent demand for money for the goldenornaments. She was caused physical as well as mental cruelty.The parents could not satisfy the demands of the accused as theywere financially poor. The prosecution case reveals that theaccused husband went to fetch her back when she used to staywith her parents. When he assured he would not ill-treat her, shewent to cohabit with him. It has been pointed out that there wasno cogent and reliable evidence of her last visit to her parents.However, both Courts missed this material fact. The prosecutionalso had no case that soon after the incident or on the day of theincident, the deceased and the accused had a quarrel about theunlawful demand of ornaments.26.Section 498A of the IPC does not attract every harassment orevery type of cruelty. The prosecution has to establish that thebeating and harassment of the deceased were with a view to forceher to commit suicide or to fulfil the illegal demand of dowry. Mereharassment for dowry or causing grave injury to her life or limb orhealth is not cruelty, as explained in Section 498-A of IPC. Toconstitute the offence under this Section, it is to be establishedthat the harassment was caused by coercing the woman to meetunlawful demands. 13 CrRn-344-04.odt27.In Smt. Raj Rani vs. State (Delhi Administration) AIR2000 SC 3559, the Hon’ble Supreme Court held that whenconsidering the case of cruelty with the context to the provision ofSection 498A of IPC, the Court, must examine that the allegations/accusations must be of a very grave nature and should be provedbeyond a reasonable doubt.28.To hold the accused guilty for the offence punishable underSection 498A of the IPC, there should be a case of continuous stateof affairs of torture by one to another.29.The record reveals that there was no continuous state ofaffairs of torture by the husband to the deceased wife. It has beenestablished that her parents-in-law were residing separately. Thelearned counsel for the petitioner succeeded in pointing out thatthere was no sufficient evidence to establish that thepetitioner/accused willfully drove the deceased by his conduct tocommit suicide nor the harassment as alleged prove that she washarassed with a view to coerce her or to her relatives to meet anyunlawful demand of golden ornaments. There were generalallegations of cruelty to the deceased or the demand forornaments. The allegations were leveled for the first time after thefuneral was over. The defence of the accused was that he did notallow her to go to her parent's home with her brother. Hence, shetook a drastic step to end her life, appears probable from the 14 CrRn-344-04.odtmaterial produced on record. The deceased was not harassedphysically or mentally soon before the suicide. The record showsthat both Courts did not appreciate the evidence in consonancewith the elements of Section 498A of the Indian Penal Code.30.Bare exhibiting the statement under Section 164 of theCr.P.C. does not affect the rights of the accused. Such a statementis used for contradiction and omission. Barely exhibiting such astatement is not admissible in evidence. Therefore, the argumentsof the learned counsel of the applicant that he had lost his right tocross-examine the witness was affected materially has nofoundation.31.For the above reasons, this Court is satisfied that theapplicant/accused has been incorrectly held guilty withoutsufficient evidence or establishing the charges. Hence, criminalrevision deserves to be allowed.ORDERi)The Criminal Revision Application is allowed.ii)The judgment and order of conviction of the learned 5th Ad-hoc Assistant Sessions Judge, Aurangabad, in Sessions CaseNo.21 of 2004, dated 28.04.2004 and the learned 4thAdditional Sessions Judge, Aurangabad in Criminal AppealNo.80 of 2004, dated 30.06.2004, stand quashed and setaside. 15 CrRn-344-04.odtiii)Applicant / accused - Namdeo s/o. Laxman Bansode isacquitted of the offences punishable under Sections 306 and498A of the Indian Penal Code.iv)The fine amount, if any, deposited by the petitioner/accusedbe returned to him within a month by the trial Court.v)The bail bonds of the accused stand cancelled. The suretystands discharged.vi)Rule made absolute in the above terms.vii)R & P be returned to the Court of learned 5th Ad-hoc AssistantSessions Judge, Aurangabad. ( S. G. MEHARE ) JUDGErrd
Arguments
6 CrRn-344-04.odtestablish the cause of death has no force of law.13.The next legal question raised by the learned counsel for theapplicant is that without establishing abatement, both courtsillegally convicted the accused/applicant for the offencepunishable under Section 306 of the IPC.14.In Naresh Kumar (supra), the Hon’ble Supreme Court, inparagraph No.16, referred to the case of Ude Singh & Others v.State of Haryana, (2019) 17 SCC 301. It was held in that casethat to convict an accused under Section 306 IPC, the state ofmind to commit a particular crime must be visible with regard todetermining the culpability. It was observed as under:-"16.In cases of alleged abetment of suicide, theremust be a proof of direct or indirect act(s) of incitementto the commission of suicide. It could hardly bedisputed that the question of cause of a suicide,particularly in the context of an offence of abetment ofsuicide, remains a vexed one, involving multifacetedand complex attributes of human behavior andresponses/reactions. In the case of accusation forabetment of suicide, the Court would be looking forcogent and convincing proof of the act(s) of incitementto the commission of suicide. In the case of suicide,mere allegation of harassment of the deceased byanother person would not suffice unless there be suchaction on the part of the accused which compels theperson to commit suicide; and such an offending action