High Court
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-1- Cri.Appeal.641.2016IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 641 OF 2016Sabiya Begum Akbar, Age : Major, Occu. : Household,R/o. : Patil Galli, Ahmedpur, Tq. Ahmedpur, Dist. Latur.… Appellant. Versus1.The State of Maharashtra, Through Police Station,Officer, Police Station of Ahmedpur, Tq. Ahmedpur, Dist. Latur.2.Azhar Akhtar Patel (Pathan)Age : 51 years, Occu. : Agri.,3.Anis w/o Azhar Patel (Pathan)Age : 46 years, Occu. : Household, Both residence of Patil Galli, Ahmedpur, Dist. Latur.… Respondents.…Mr. Fayaz K. Patel, Advocate for Appellant. Mr. N. D. Batule, APP for Respondent – State. Mr. H. I. Pathan, Advocate for Respondent Nos.2 and 3....WITH CRIMINAL APPLICATION NO. 4477 OF 2016The State of Maharashtra, Through Police Station Ahmedpur, Dist. Latur.… Applicant. (Orig. Complainant)Versus1.Azhar Akhtar Patel [Pathan],Age : 50 years, Occu. : Agri., 2.Anis w/o. Azhar Patel [Pathan],Age : 45 years, Occu. : Household,Both R/o. Patil Galli, Ahmedpur, Tq. Ahmedpur, Dist. Latur. … Respondents.(Orig. Accused) -2- Cri.Appeal.641.2016 CORAM : ABHAY S. WAGHWASE, J.RESERVED ON : 29th JANUARY 2024PRONOUNCED ON : 7th FEBRUARY 2024JUDGMENT :1.Matter was for admission. However, all parties madeextensive submissions, and therefore, after obtaining theirconsent, main appeal itself was taken up for decision.2.This is an appeal, wherein judgment and order oflearned Additional Sessions Judge, Ahmedpur, thereby acquittingrespondents - original accused from offence under section 306 readwith section 34 of Indian Penal Code (IPC) is taken exception to. PROSECUTION CASE3.On charge-sheet filed by Ahmedpur police station,crime was registered for offence under section 306 read withsection 34 of IPC, alleging that, informant resided with his brotherunder one roof with their respective families. There was said to bedispute between brothers on account of partition. Daughter ofinformant was abused and her uncle and aunt (accused persons)pressurized her to ask her father to get partition done. Theyabused her in filthy language and also raised quarrel with her bysaying that, “she should go to the road and dance or die”. Because
Legal Reasoning
-3- Cri.Appeal.641.2016of such humiliation at their hands, it is the case of prosecutionthat, deceased Rafia set herself ablaze. While in hospital, shenamed her accused uncle and aunt, and therefore, her fatherlodged report.Investigation was carried out and on its completion,both accused were charge-sheeted and finally tried by learnedAdditional Sessions Judge. However, on appreciation of availableevidence, learned trial Judge acquitted the accused by its judgmentand order dated 05.05.2016, which is assailed herein.SUBMISSIONS4.Learned counsel for appellant would submit that,respondents are solely responsible for suicidal death of Rafia. Theywere residing jointly with deceased and her father who wasbrother of accused no.1. Accused persons were insisting forpartition. Civil proceedings were also pending. That, on18.12.2013, around 4:00 p.m., both accused abused deceased Rafiain filthy language. They quarreled with her and asked her to insisther father to get partition done. He submitted that, only because oftheir such insulting and humiliating treatment, deceased went andignited herself in the house. It is pointed out that, they had saidher that she should go on the road and dance or die. She hadnamed both of them in the dying declarations. They had abetted -4- Cri.Appeal.641.2016the suicide and were solely responsible. There was no other reasonfor deceased to commit suicide. According to learned counsel, allnecessary ingredients for abetment to suicide were available in theprosecution evidence, which comprised of testimonies of 10witnesses. However, learned trial court has not appreciated thesame in its correct perspective and has also not considered thelegal position. Acquittal is on flimsy ground, like non seizure ofkerosene can. That, unfortunately dying declarations are also keptaside from consideration and hence judgment so passed by learnedtrial Judge being illegal, cannot be allowed to be sustained.5.Learned APP also supported the above submissionsand arguments by pointing out that, respondents were solelyresponsible. That, eye witness account i.e of PW1 Sabiyabegam,PW2 Vasim Akbar and PW4 Mohasin Akbar have not beencorrectly appreciated. Deceased had named accused persons indying declarations and had sought accusation against them, butlearned trial court has acquitted both the accused and so accordingto him, the impugned judgment is liable to be interfered with. 6.In answer to above, learned counsel for respondentsaccused would submit that, prosecution has miserably failed toestablish the charges. According to him, very charge is misplaced -5- Cri.Appeal.641.2016as there is no evidence about any abetment or inducement.According to him, accused never intended deceased to end up herlife. There was no mens rea. He pointed out that, prosecutionevidence was patently lacking regarding any inducement orabetment to commit suicide. He pointed out that on the contraryprosecution’s very evidence suggested occurrence to be accidentalone while cooking. Deliberately different colour is given. That,even AD was registered. Very cousin of deceased, who shifted herto hospital had also reported accidental burns while cooking. Healso doubted the mental and physical fitness of deceased to givetwo dying declarations. He submitted that, in fact, there wasalready a partition, and therefore, no reason for quarrel as alleged.In support of his submissions, he took this court through the crossof Investigating Officer. Lastly, he submitted that, appreciation bythe learned trial Judge is in consonance with the evidence. There isno perversity or illegality and so he prays to dismiss the appeal forwant of merits.7.This court by virtue of powers under section 372 ofCr.P.C. is called upon to re-appreciate, re-examine and re-analyzethe entire oral and documentary evidence in the court. Onundertaking such exercise, it is revealed that, case of prosecutionis rested on following 10 witnesses. Their status and role could be -6- Cri.Appeal.641.2016categorized and summarized as under : PW1 Sabiyabegam, mother of deceased; PW2 VasimAkbar, brother of deceased Rafia; PW3 Ganesh, panch to scene ofoccurrence; PW4 Mohasin akbar, another brother of deceased; PW5Narayan, police official, who recorded dying declaration; PW6 Akhilalso a panch to scene of occurrence, PW7 Dr. Harshad Padmakarand PW8 Dr. Dharmaraj Apparao, Medical Officer and AutopsySurgeon, respectively; PW9 Deelip Babarao, Naib Tahsildar, whorecoded dying declaration and PW10 PSI Pandit Kachave,Investigating Officer. Apart from above oral evidence, prosecution has reliedon documentary evidence, like FIR, spot panchanama and postmortem report etc.8.Admittedly, here, there is charge under section 306 ofIPC in order to bring home the charge for such offence, it isbounden duty of prosecution to demonstrate existence of essentialingredients of section 306 of IPC.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 deceased -7- Cri.Appeal.641.2016by 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.”9.Here, it is also desirable to briefly discuss the settledlegal position as regards to offence under section 306 of IPC and itslegal requirements. By way of series of cases, scope and applicability ofSection 306 has been time and again decided and reiterated by theHon’ble Apex Court in the cases viz; Ramesh Kumar v. State ofChhatisgarh reported in(2001) 9 SCC 618; Sanju @ Sanjay SinghSengar v. State of M.P. reported in(2002) 5 SCC 371; State of WestBengal v. Indrajit Kundu and others reported in (2019) 10 SCC188 and very recently in the case of V.P.Singh etc. v. State ofPunjab and others reported in 2022 SCC Online SC 1999. In above series of cases, consistent view that has beenechoed that, at first count it must be shown that accused personsintended that deceased should end up her life. With that object inmind, they should deliberately create circumstances, which are ofsuch nature, that deceased is left with no other alternative but toend up her life, only then charge of abetment to commit suicide canbe said to be successfully brought home. Inducement, incitement -8- Cri.Appeal.641.2016and essential requirements to attract said charge. As to whatamounts to abetment as per section 107 of IPC is also fairly settled.10.Bearing above settled legal requirements in mind,evidence in hand is put to be re-analysis. It is noticed that, the caseof prosecution is rested on oral evidence of mother and brothers aswell as dying declarations. This court first undertakes the scrutinyof dying declaration and the same is at Exh.29. It seems to berecorded on 22.12.2013 regarding occurrence which allegedly tookplace on 18.12.2013. That means, dying declaration is recordedafter almost five days. Be it so. Deceased gave a statement that,around 4:00 p.m on 18.12.2013, her paternal uncle and aunt saidto her to ask her father to get partition done, abused her in filthylanguage and further said she should go on the road and dance ordie. Therefore, she could not tolerate such statement and gettingfed up poured kerosene and set herself on fire. Hearing shouts, hermother doused the fire. Her brother and neighbours shifted her tothe hospital. She sought action against her uncle and aunt.11.PW5 ASI Ranzunjare, who has recorded above dyingdeclaration is examined at Exh.25 and he deposed about receivingwireless information, visiting the hospital, approaching doctor,seeking his endorsement, about fitness to give statement and -9- Cri.Appeal.641.2016recorded her above dying declaration. He stated that, initially shewas admitted by her brother to Ahmedpur Rural Hospital, but lateron she was referred to Civil Hospital, Latur and while undergoingtreatment her statement was recorded. In cross he has admitted that, no attempt was made torecord statement of deceased on 18.12.2013 and 19.12.2013. Headmitted that, MLC shows admission of deceased at AhmedpurRural Hospital. He admitted that, at the time of his visit forreferring dying declaration, along with patient relatives werepresent. Along with patient Anwar Patel was also present. Headmitted that, both the hands of patients were totally burnt andbandage was applied. He answered that, it is not necessary toobtain endorsement about identification of thumb impression. Restis all denial. 12.Second dying declaration is at Exh.52 seems to berecorded by PW9 Deelip Mulaje, Naib Tahsildar on 22.12.2013which is in question answer form. While answering question, howincident occurred, statement is given that, accused her uncle andaunt always said to her to ask her father to get house for partitionand troubled her. Therefore, on 18.12.2013 at 6.30 p.m, gettingfed up of the trouble, she ignited herself. -10- Cri.Appeal.641.201613.Therefore, here, on minute scrutiny of above discussedboth dying declarations, it is apparent that, alleged occurrence is of18.12.2013 between 4:00 to 4:30 p.m. It is also emerging thatincident had taken place in the house of deceased and deceasedwas taken to Ahmedpur Rural hospital, but no efforts apparentlyseems to have been taken to get her dying declaration recordedpromptly at such Rural hospital, Ahmedpur itself. Rather after fivedays PW5 ASI Runzunjare and PW9 Deelip Mulaje seem to havetaken steps to record the dying declarations. In Exh.29 occurrenceis reported to have taken place around 4:00 to 4:30 p.m., whereasExh.52 occurred is shown to have taken place at around 6:30 p.m.consequently, there is variance as to exactly and what timeoccurrence took place. Answers given by PW5 ASI Ranzunjare incross clearly shows that Exh.29 was scribed in presence ofrelatives of the patient. Such material shows that voluntariness ofdeclaration comes under shadow of doubt. Even there is noidentification beneath the thumb and that too is admitted by PW5ASI Runzunjare. He further admitted that, both hands were burntand bandages were applied. Under such circumstances, questionthat arises is how in such condition thumb impression can beobtained. Therefore, apart from delayed recording of dyingdeclaration, that too in presence of relatives, above discussed -11- Cri.Appeal.641.2016aspects contributes to the credibility and veracity of the dyingdeclarations. 14.Now, let us go through the oral evidence adduced onbehalf of prosecution i.e. mother (PW1 Sabiyabegum), hertestimony is that, on 18.12.2013, both accused hold her daughterto ask her father for partition of house and further asked her to goon road and dance or die. Because of it, her daughter got mentallyhurt, she bolted door of the house from inside, poured kerosene onher person and set her ablaze. She and her sons doused the fire andtook her to the hospital initially at Ahmedpur and subsequently atLatur. While undergoing treatment, she succumbed on 23.12.2013.She holds both accused responsible for the death of her daughter.15.Though witness is subjected to extensive cross, itwould be desirable to deal and discussed only material cross. Shehas answered that, her family has one house at Patil Galli and allfour brothers have share and one room is allotted to each of them.She admitted regarding pending litigation in civil court amongst allbrothers. She further admitted that, during lifetime of her father-in-law, he had made partition of agricultural land in 2001 and eachbrother allotted four acre land. She admitted that, three brothersagreed before the court that two acres agriculture land is given to -12- Cri.Appeal.641.2016Khurshidabegum as a Hiba, but her husband protested against thesaid declaration and that there was grudge in their mind againstthe accused. He further admitted that, her daughter was admittedon 18.12.2013 till 23.10.2013, but none of them had lodged anycomplaint against the accused. Rest is all denial. 16.PW2 Wasim Patel, brother of deceased deposed abouthis sister setting herself on fire and he receiving phone call fromhis mother to that extent and she being shifted to Ahmedpurhospital and later on Civil Hospital, Latur. This shows that, he hasreached after the occurrence and whatever information he has ishearsay. PW3 Ganesh, spot panch has not supportedprosecution.PW4 Mohasin also a brother of deceased deposed that,while he was on work on 18.12.2023, he received phone call and hewas returned home. They brought her sister to Ahmedpur formedical treatment and thereafter to Civil Hospital, Latur. He statedthat, while in hospital his sister gave dying declaration, namingaccused asking her to demand partition from her father and alsosaid to her to go on the road and dance or die. Initially, he statedthat. Accused said the above statement in his presence, but later -13- Cri.Appeal.641.2016on volunteered and answered that it was not said in his presence.Rest is all denial. PW5 ASI Ranzunjare, who recorded dying declarationand his evidence is already discussed in aforesaid para. PW6 Akhil Ahmed, panch to spot panchanam (Exh.36).However, apparently, spot seems to have been drawn on26.12.2013 almost after nine days of the occurrence. However, incross, he has admitted that, information was received thatdeceased suffered burns while cooking. PW7 Dr. Harshad Sonwane is the doctor who issuedcertificate of fitness. PW8 Dr. Dharmaraj is the autopsy doctor, whoconducted post mortem and opined about cause of death issepticemia due to burns. PW9 Deelip Mulaje, Naib Tahsilder, who recorded dyingdeclaration at Exh.52. PW10 PSI Pandit Kachave is the Investigating Office. 17.Defence has adduced evidence of other paternal uncleof deceased i.e DW1 Anwar. He seems to be brother of father ofdeceased as well as brother of accused herein. His evidence is -14- Cri.Appeal.641.2016categorical in chief that, four brother had separated from eachother and resided separately and partition of family is alreadydone and each individual is having separate property. Accordingto him, he was present at the time of such incident. Deceasedsuffered burns due to explosion of fire of a kerosene stove while shewas cooking and that she was taken to Rural Hospital, Ahmedpurand later on to Latur and he also claims to have accompanied her.He deposed that, she was unable to talk. He also stated thatincident took place in the kitchen where articles were scatteredand flour was made ready for preparing chapati. Though above witness is cross examined by learnedAPP, nothing adverse has been brought to doubt his version. SUMMATION 18.Therefore, on taking total survey of above discussedevidence and on reanalysis, it is emerging that, though deceasedsuffered burns and though she gave dying declarations, it isapparently a case of immolation. Though prosecution tried to setup a case that accused persons, who are her uncle and aunt,abetted the suicide by ill-treating her, there is no positive or legallyacceptable evidence that they harassed her to such extent that shewas forced to end up her life. Solitary instance of 18.12.2013 hascome in the entire evidence of prosecution. There is nothing to -15- Cri.Appeal.641.2016indicate abetment to commit suicide. Even otherwise, mere askingdeceased to ask her father to get partition done, by no stretch ofimagination can be said to be inducement or abetment to commitsuicide. Further, here, PW1 Sabiyabegam mother and DW1 Anwaruncle categorically speak about partition already being done andsome litigation being pending. Therefore, here, there is nothing tohold accused responsible for alleged episode of burns. There isequal evidence about deceased suffering accidental burns whilecooking coming on record from none other than uncle, who isbrother of accused as well as father of deceased. As none of the essential ingredients for attractingcharge under section 306 of IPC are available, it can be safely saidthat prosecution has miserably failed to establish the charges. 19.Though vide Criminal Application No.4477 of 2016,applicant State had prayed for grant of leave to file appeal, afterhearing full-fledged appeal and having discussed entire evidence,there is no merit in the application so as to grant leave.20.After hearing learned counsel for appellant andlearned APP as well as learned counsel for respondent nos.2 and 3and on going through the judgment, no convincing ground is made -16- Cri.Appeal.641.2016out to interfere in the judgment passed by learned trial Judge,which is upon proper appreciation, supported by reasons and lawon dying declaration as well as offence being clearly discussed.Finding no merits in the appeal, I proceed to pass following order :-ORDER(i)Criminal Appeal stands dismissed.(ii)Criminal Application No.4477 of 2016 filed by applicant State stands rejected. (ABHAY S. WAGHWASE, J.) Tandale