High Court
Legal Reasoning
-1- Cri.Appeal.478.2003IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 478 OF 2003Ramesh S/o. Narsingh Hire, Age : 28 years, Occu. : Auto Rikshaw Driver, R/o. Ballal, Tq. Bhokar, Dist. Nanded.… AppellantVersusThe State of Maharashtra, Through Police Station Officer, Police Station Umri, Tq. Umri, Dist. Nanded.… Respondent…Mr. Rajendra N. Chavan, Advocate for AppellantMr. A.A.A. Khan, APP for Respondent - State... CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 14th JUNE, 2024PRONOUNCED ON : 19th JUNE, 2024JUDGMENT : 1.Appellant - husband Ramesh is hereby challenging thejudgment and order of conviction recorded by IIIrd AdditionalSessions Judge, Nanded, dated 08.05.2003 in Sessions Case No.74of 2002, thereby convicting for offence punishable under sections498A and 306 of Indian Penal Code (IPC).FACTUAL MATRIX2.Deceased Jyoti was married with appellant. After 5 to -2- Cri.Appeal.478.20036 months, accused husband demanded T.V. Such demand was metby informant father. 2 to 3 months thereafter, again whendeceased Jyoti came, she reported that, husband is makingdemand of money for purchasing auto-rickshaw. Accused met withan accident and was required to be treated. His own father accusedno.2 refused to pay the medical bill. There was demand of moneyand according to prosecution, there was ill treatment on thatcount. Finally, getting fed up Jyoti immolated herself by pouringkerosene, resulting into 95% burns and succumbing to the same.On lodgment of complaint by father, crime was registered. 3.PW10 P.I. Balu Dewde carried out investigation andafter gathering sufficient evidence, charge-sheeted accusedhusband and in-laws.4.Accused husband and in-laws made to face trial beforeIIIrd Additional Sessions Judge, Nanded. In support of its case,prosecution adduced evidence of in all 10 witnesses. Documentaryevidence was also relied. 5.After appreciating oral and documentary evidence,learned trial Judge held that prosecution had failed to prove itscase and charges against accused nos.2 to 6 and acquitted them.
Legal Reasoning
-3- Cri.Appeal.478.2003However, appellant husband alone was found to be guilty foroffence punishable under sections 498A and 306 of IPC and isultimately sentenced to suffer imprisonment for one year andthree years, respectively, and to pay fine. Such judgment ofconviction is now taken exception to by filing instant appeal.SUBMISSIONSOn behalf of appellant : 6.Learned counsel for appellant pointed out that, therewas apparently false implication. That, prosecution has failed toestablish the charges by leading cogent and reliable evidence. That,he took this court through the testimonies of parents and brotherof victim and stated that, it is conspicuously emerging that thereare mere omnibus and general allegations. He pointed out that,witnesses are merely speaking about ill treatment, but none ofthem has specifying nature of ill treatment. He pointed out that,even, when exactly there was alleged ill treatment is not stated byany of the witnesses. Therefore, according to him, essentialingredients for attracting section 498A of IPC as contemplatedunder law are patently missing from the prosecution evidence.7.As regards to suicide is concerned, learned counselpointed out that, prosecution’s own witness deposed aboutdeceased suffering accidental burns while cooking. That, not only -4- Cri.Appeal.478.2003witnesses are stating about it, but even spot panchanamacategorically shows that, incident occurred near the earthenchulha where cooking was in progress. Therefore, according tolearned counsel, deceased Jyoti had apparently suffered accidentalburns and it was not a case of suicide as alleged post occurrenceonly. According to him, deliberately and intentionally a differentcolour was given by father by filling false and afterthoughtcomplaint on account of annoyance of loosing daughter. He tookthis court through the testimony of other witnesses also andpointed out that their testimony is of no avail for prosecution toestablish the charges. He pointed out that, learned trial court didnot appreciate the evidence in the light of above legalrequirements. That, there is apparently improper appreciation oflaw as well as evidence and hence he seeks indulgence for settingaside the judgment by allowing the appeal. He seeks reliance on following rulings :- (i)State of Maharashtra v. Rajendra s/o. Kashirao Bhujade, 2017 ALL MR (Cri.) 2256 (ii)Assoo v. State of Madhya Pradesh, 2012 CRI. L. J. 658On behalf of Respondent - State :8.In answer to above, learned APP supported thejudgment submitting that, parents and brother are consistentabout demand and ill treatment. That, ill treatment began after 5 to -5- Cri.Appeal.478.20036 months and all witnesses are consistent on that point. That,initially there was demand of T.V. It was fulfilled and for somedays, there was no ill treatment, but subsequently again accusedhusband put up demand of Rs.35,000/- for purchasing auto-rickshaw. On that count, there was ill treatment and harassment.That, victim reported about ill treatment, whenever she came forfestival. That, even brother of victim, who was put up at Nanded toply the auto-rickshaw of accused, has deposed that, there washarassment and ill-treatment to his sister. That, he was witness tothe said maltreatment. Therefore, according to learned APP, therebeing cogent, clear and consistent evidence, learned trial courtcommitted no error whatsoever in accepting the case ofprosecution as proved and recording the guilt of husband alone. Hepointed out that, the very fact of acquittal of in-laws itself issufficient to hold that, there is proper consideration and analysis.According to him, there is no merit in the appeal and the same bedismissed. SUM AND SUBSTANCE OF EVIDENCE ON RECORD9.PW1 Gangadhar is the spot pancha. He has notsupported the prosecution. PW2 Baburao father of deceased, testified that,everything was smooth for 5 to 6 moths, there was initially -6- Cri.Appeal.478.2003demand of T.V. and on its fulfillment again demand for purchase ofauto-rickshaw was raised. After accident of accused husband, forpayment of medical bills, there was demand of money. Deceasedreported ill treatment and harassment to her, when she came forfestivals. Finally, message of burns suffered by Jyoti werereceived.PW3 Parvatibai, mother of deceased also stated that,when her daughter came her home, she was reporting aboutdemand of money for purchasing auto-rickshaw by accused no.1.Finally, she got a message about daughter being serious. Accordingto this witness, her daughter might have committed suicide due toill treatment given by accused persons. PW4 Prakash, brother of deceased also stated about illtreatment commencing after 5 to 6 months. According to himthere was demand of Rs.35000 for rickshaw. During her visit ofher sister’s place he used to see about quarrels with sister and illtreatment meted out to her. Finally, they got the news aboutserious condition of his sister.PW5 Sheshabai, sister of PW3 Parvatibai, stated that,whenever victim met her, she told that, there was ill treatment onaccount of demand of money. Twice -thrice deceased Jyoti came toher house and every time she reported about the demand of -7- Cri.Appeal.478.2003money. Accused no.1 told her about the burns of Jyoti and so shewent to hospital, but she died in the hospital on the same day.PW6 Ramdas informed that, he knew the accused.Deceased to be wife of accused no.1. His house was near the houseof the accused at Ballal. Accused no.1 was working in a factory atNanded. On 20.09.2001, he learnt that Jyoti while cooking in thehouse, sustained burn injuries. Thereafter, he and others took herto the hospital, but she died due to burns.PW7 Nagorao, pancha to spot panchanama did notsupport the prosecution.PW8 Kailash is pancha to inquest panchanama.PW9 Mirza is another pancha to inquest panchanama.PW10 P.I. Balu Dewde is the Investigating Officer.ANALYSIS10.Though prosecution has rested its case on oralevidence of almost 10 witnesses, crucial evidence is that of PW2Baburao - father , PW3 Parvatibai – mother, PW4 Prakash - brotherand PW5 Sheshabai - maternal aunt of deceased. 11.Here, conviction is recorded for offence punishableunder sections 498A and 306 of IPC. Before adverting to analyze -8- Cri.Appeal.478.2003the evidence, it would be apt to give brief account of settled legalrequirements for attracting both the charges. Offence under section 498A of IPC12.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.” 13.On carefully evaluating above evidence, it seems that, 5to 6 years prior to the incident of burns suffered by deceased Jyoti,initial period of six months was smooth. Informant father speaksabout demand of television raised by husband and the same to bemet. It is noticed that, he has not alleged that at the time of saiddemand, there was any ill treatment. Rather, he merely deposedthat, accused husband asked his daughter to bring TV. He claims -9- Cri.Appeal.478.2003that 2 to 3 months thereafter, when she was brought to his housefor festival, she reported that, accused persons ill treated her. Forwhich festival she came after Diwali is unclear from father’sevidence. He merely deposed about ill treatment, but did notspecify or narrate mode and form of ill treatment. Father statedthat, thereafter accused husband resided with his daughterseparately at Nanded and in examination-in-chief itself he deposedthat, they both cohabited happily for a period of one and half year.Then he alleges that, accused no.2 started ill treatment by makingdemand of money. Such allegations are attributed to accused no.2,who is father-in-law and not husband, who is already shown to beresiding separately on account of deceased and accused husbandshifting to Nanded. Informant does not specify exact amountdemanded by such accused no.2. As stated above, it is to be notedthat, at such point of time, deceased and accused husband arealready residing separately at Nanded, whereas, rest of theaccused resided at Ballal, Tq. Bhokar. Then, informant alleges that, accused no.1 husbandstarted asking him to purchase auto-rickshaw for him. His suchtestimony signifies that, husband did not assert or demandmoney for purchasing auto-rickshaw, but merely seems to haveasked him to arrange auto-rickshaw. -10- Cri.Appeal.478.200314.Again in further examination-in-chief, informanthimself deposed that, meanwhile, accused husband himselfobtained loan and purchased auto-rickshaw. Therefore, beforeabove demand was decided to be met by arranging fund, as isclaimed by informant, accused husband himself has apparentlypurchased rickshaw by raising loan. Therefore, the aboveaccusation of demand of Rs.35,000/- for auto-rickshaw and illtreatment on such count, is rendered doubtful. 15.PW3 Parvatibai mother of deceased, in her testimonyitself has stated that, whenever her daughter visited house, shetold that, accused no.1 was demanded money for purchasing auto-rickshaw. But, she has not deposed, as like of her husband, thataccused himself purchased rickshaw by raising loan. She is silentabout demand of T.V. as is deposed by her husband. Though shestated that her daughter was severely ill treated, even she does notspecify when and in what form ill treatment was subjected todeceased. Rather, she deposed that, her daughter might havecommitted suicide. Her such testimony itself shows that she is notsure and is merely suspecting suicide.16.On visiting evidence of brother PW4 Prakash, it isnoticed that, he had stayed at deceased place at Nanded by leaving -11- Cri.Appeal.478.2003his own place at Nashik to ply auto-rickshaw allegedly purchasedby accused husband. Though he claims that, during his stay henoticed quarrel and ill treatment to his sister, he has also notelaborated reason of quarrel or nature and mode of ill treatment.He has not reported about it to anyone till his statement wasrecorded by police.17.What can be culled out from above discussed materialis that, witnesses are not at the first count describing the nature ofill treatment. General and omnibus allegations by using the term illtreatment are levelled. What was the exact mental and physicalcruelty inflicted is not elaborated by any of the witnesses and evenno specific instances are quoted by any of them. Therefore, mere bald allegations without narratingdetails, would not be itself sufficient to gravitate charge of 498A ofIPC. Cruelty as contemplated under law is not met in the aboveevidence. Offence under section 306 of IPC18.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 for -12- Cri.Appeal.478.2003attracting 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 toprovoke, urge or encourage the deceased to commitsuicide while acting in the manner noted above.Undoubtedly, presence of mens rea is the necessaryconcomitant of instigation.”19.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 has -13- Cri.Appeal.478.2003been 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. 20.Allegation here in the case in hand is that, because of illtreatment and demand, deceased Jyoti immolated herself. Allegedincident of burns is of 20.09.2001. At that point time, admittedlyaccused husband alone was residing with deceased at Nanded.Other accused were admittedly residing separately. He was notshown to be present in the house, when the alleged incident tookplace so as to connect him with alleged burns. In fact, evidence of -14- Cri.Appeal.478.2003PW6 Ramdas who is prosecution’s own witness, goes to show that,while cooking deceased suffered burns. This witness has taken herto the hospital. In trial court, prosecution failed to gather andplace on record hospital admissions papers to ascertain as to whatwas the history reported at the admission stage itself. Such paperswere essential to form decision as to whether episode of burns wassuicidal, accidental or otherwise. Be it so. Spot panchanama, to which attention of this court isinvited by learned counsel for appellant, goes to show that, episodeof burn has taken place near earthen chulha. Burnt pieces ofclothes are said to be lying near the cooking place. On the strengthof such material, inference can definitely be drawn that, burnswere suffered while cooking activity. 21.Therefore, here, as there is nothing to infer that onlybecause of ill treatment and demand, deceased immolated herself,case so put-forth by prosecution cannot be straightaway accepted.Presence of accused is not marked or demonstrated at the time ofalleged episode to hold him responsible for her burns. In fact, asdiscussed above, prosecution’s own witness suggest that deceasedsuffered accidental burns. -15- Cri.Appeal.478.2003 Resultantly, there is weak and fragile evidenceregarding offence of 498A and 306 of IPC. Cruelty and abetment ascontemplated under law has not been established.22.Perused the judgment. Apparently there is improperappreciation of evidence. No satisfactory and sound reasons areassigned for accepting the case of prosecution. The abovediscussion and features noticed by this court on re-appreciationare not taken into account by learned trial Judge and henceinterference is called for. Hence, I proceed to pass the followingorder :-ORDERI)Criminal Appeal stands allowed.II)The conviction awarded to appellant - Ramesh S/o.Narsingh Hire in Sessions Case No. 74 of 2002 on08.05.2003 for offence punishable under sections 498Aand 306 of Indian Penal Code (IPC), stands quashed andset aside. III)The appellant stands acquitted of the punishable undersections 498A and 306 of Indian Penal Code (IPC).IV)Bail bonds furnished by the appellant stands cancelled. -16- Cri.Appeal.478.2003V)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