1/20 [CASE NUMBER]) IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPEAL NO. 270 OF 2006 1. [ENTITY] s/o [ENTITY] Aged about 33 Years. 2. Sau. [ENTITY] Aged about 56 Years [Abated as per Court's order dt.11/2/19] Both are residents of Hanuman Mandir, Behind Government Godown, Near Kesarbai's House, Khadan, Akola. Tahsil and District Akola. APPELLANTS VERSUS State of Maharashtra through the Police Station Officer, Police Station, Civil Lines, Akola. RESPONDENT Mr. [ENTITY], Advocate for Appellants. Mr. [ENTITY], APP for Respondent - State. CORAM : MRS. [ENTITY], J. DATE : SEPTEMBER 13, 2019 JUDGMENT
. This Appeal has been directed against the Judgment and 2/20 [CASE NUMBER]) Order dated 11th May, 2006 delivered by the learned Adhoc Additional Sessions Judge, Akola in [CASE NUMBER], whereby the learned trial Judge has convicted the Appellants (hereinafter be referred to as 'the Accused' for the sake of brevity) for the offence punishable under [SECTION] of the [ACT] and sentenced to suffer rigorous imprisonment for two years each and to pay a fine of Rs.500/- each, in default to suffer further rigorous imprisonment for two months. The Appellants - Accused also convicted for the offence punishable under [SECTION] of the [ACT] and sentenced to suffer rigorous imprisonment for five years each and to pay a fine of Rs.1000/- each, in default to suffer further rigorous imprisonment for three months.
2. The prosecution case in brief is that, deceased [ENTITY] was married with Accused - [ENTITY] in the year 1994. Out of the said wedlock she was having two children. Initially after marriage for 2-3 years [ENTITY] was treated nicely by her husband and in-laws. Thereafter she was illtreated by them for want of money. The Accused - [ENTITY] want to purchase Auto rickshaw, and therefore, he along with his parents, brother and sister used to illtreat [ENTITY] and asked her to bring the amount of 3/20 [CASE NUMBER]) Rs.40,000/- from her parents. It is alleged that the Accused - [ENTITY] used to beat [ENTITY] on the instigation of the other Accused. Parental home of [ENTITY] was in the same locality. Therefore, her parents were aware about the said illtreatment given to [ENTITY]. Whenever [ENTITY] used to visit her parents' home, she used to complain her parents about the said illtreatment at the hands of Accused - [ENTITY] and her in-laws.
3. On 5/4/2003 as [ENTITY] was not keeping well, she went to her parental home. On 19/4/2003 Accused - [ENTITY] came to her parental home and asked her to return back to her matrimonial home on 20/4/2003 and threatened that if she would not come, he would kill her father and brother. Accordingly, on 20/4/2003 [ENTITY] was reached at her matrimonial home by her brother [ENTITY]. At that time she was beaten and she informed about the said fact to her father on 21/4/2003. On 26/4/2003 at about 6.00 a.m. the Accused - [ENTITY] went to the house of the complainant [ENTITY] (PW-1) and enquired whether [ENTITY] had been to their place. He also informed that during search a pair of ladies footware was found near the Khadan (pond). On 27/4/2003 the dead body of [ENTITY] was found in that pond.
4/20 [CASE NUMBER])
4. On the same day, complaint (Exh.58) came to be lodged by the complainant [ENTITY] (PW-1), who is the father of [ENTITY]. Police recorded the said complaint and on the basis of the said oral report, offence came to be registered vide [CASE NUMBER]. Formal investigation was conducted, spot panchanama (Exh.62) was drawn, so also the inquest panchanama (Exh.63) was prepared by the police. The dead body of [ENTITY] was sent for autopsy. The postmortem report (Exh.65) was secured by the police. The statement of witnesses were recorded. After completion of investigation, chargesheet was filed in the court of Chief Judicial Magistrate, Akola and thereafter the case was committed to the court of Sessions. The learned Additional Sessions Judge, after recording evidence and hearing both the sides, convicted the Accused as aforesaid.
5. The prosecution has examined in all nine witnesses. The defence of the Accused was of total denial.
6. With the able assistance of both the sides, I have gone through the record and proceedings of the case.
5/20 [CASE NUMBER])
7. The learned Counsel for Appellants - Accused vehemently argued that the alleged incident of suicide had taken place about nine years after the marriage of [ENTITY] with the Accused - [ENTITY]. During the said period, there was no complaint lodged by [ENTITY] or her parents about the alleged illtreatment at the hands of the Accused. It was submitted that alleged demand of Rs.40,000/- made by the Accused was for purchasing auto rickshaw and there is no consistent evidence on record to show that while demanding the said amount, Accused used to assault [ENTITY] which can be termed as an illtreatment. He further submitted that dead body of [ENTITY] was found after about 48 hours and according to the Medical Officer, [ENTITY] started developing and the postmortem report shows that early signs of decomposition present i.e. peeling of skin from right buttock had started. In these circumstances, it is not clear as to how the Medical Officer analyzed the injuries on the dead body of [ENTITY]. It is submitted that Medical Officer has clearly opined that injuries may be possible while a person falls accidentally on quarry stones (Khadan stones). It is submitted that there are no other injuries on the dead body of [ENTITY] except her face. It is submitted that there is no question of any threat or abetment to the suicide of [ENTITY]. According to him, the learned 6/20 [CASE NUMBER]) trial Judge has not appreciated the evidence of prosecution witnesses in its proper perspective.
8. As against this, the learned APP supported the Judgment of the learned trial Judge and submitted that there is ample evidence on record to show that [ENTITY] was treated with cruelty and it was the reason that she committed suicide. It was submitted that [ENTITY] committed suicide in a lake which was about 55 ft. in depth which was called as 'Hanu Khadan' situated in Vadhurkar Lay out, Khadan, Akola.
9. In order to verify the rival contentions of both the sides, it would be advantageous to go through the evidence led by the prosecution witnesses.
10. It is not seriously disputed that [ENTITY] died a suicidal death. The inquest panchanama (Exh.63) shows that there is reddish mark on the forehead, so also around her neck at three places. The postmortem report shows the cause of death as due to drowning. The spot panchanama (Exh.62) demonstrates that it was the Khadan filled with water situated in Vadhurkar Lay out. The depth of the lake was about 55 feet. The dead body was found on 27/4/2003.
7/20 [CASE NUMBER])
11. The Medical Officer Dr. [ENTITY] (PW-3) has found the following injuries on the dead body of [ENTITY].
(i) Abrated contusion 4 cm x 3 cm over nose, anterior aspect, reddish colour.
(ii) Abrated contusion 2 cm above right eyebrow, size 2 cm x 2 cm reddish colour.
(iii) Abrated contusion 1 x cm over left eyebrow reddish in colour.
(iv) Abrated contusion 3 x 2 cm over right cheek near mouth, reddish in colour.
(v) Abrated contusion over right cheek, 3 cm away from right ear, size 2 x 2 cm round in shape, reddish colour.
(vi) Abrated contusion 5 x 1 cm over right side neck, reddish colour. According to PW-3 Dr. [ENTITY], all the injuries were ante-mortem caused by hard, rough and blunt object. The death was caused due to drowning. He further opined in the cross-examination that injuries are possible if a person falls accidentally on quarry stones.
12. The categorical answer given by PW-3 Dr. [ENTITY] indicates that the injuries might be possible due to [ENTITY] falling on the quarry stones or jumping on it. All these factors indicate that [ENTITY] died a suicidal death.
8/20 [CASE NUMBER])
13. As regards the allegations under [SECTION] of [ACT], according to PW-1 [ENTITY], who is father of deceased [ENTITY], [ENTITY] was married with Accused - [ENTITY] in the year 1994. Initially, for about 2-3 years [ENTITY] was treated properly by Accused [ENTITY] and in-laws. Thereafter Accused [ENTITY] was illtreated for want of money and for petty cause. All the Accused were demanding money from [ENTITY] for purchasing auto rickshaw. They were insisting her to bring money from her parents or else. The Accused - [ENTITY] would perform second marriage. [ENTITY] was beaten by Accused - [ENTITY] at the instigation of her mother-in-law. The matrimonial home of [ENTITY] was in the same locality, therefore, PW-1 [ENTITY] was aware about the said illtreatment given to [ENTITY]. [ENTITY] used to complain about the said illtreatment to her mother. According to PW-1 [ENTITY], all the Accused were demanding the amount of Rs.40,000/- for auto rickshaw since 4-5 years of her death. However, as his financial condition was not good, he could not fulfill the said demand of the Accused persons. According to him, he had shown his inability to [ENTITY] and [ENTITY] told this fact to the Accused persons. Accused - [ENTITY] was compelling her to give her signature for his second marriage.
9/20 [CASE NUMBER])
14. PW-1 [ENTITY] deposed that on 5/4/2003 [ENTITY] was ill and she she was left Accused - [ENTITY] to his house along with her son. On 19/4/2003 there was a marriage function at the house of one [ENTITY], therefore, all his family members including him had gone to attend the marriage except [ENTITY]. Accused - [ENTITY] met him in the said marriage and enquired about [ENTITY]. Accordingly he informed that [ENTITY] is at home because of her illness. Then before reaching of PW-1 [ENTITY] to his house, Accused - [ENTITY] went to his house. PW-1 [ENTITY] saw him talking with [ENTITY]. After sometime, Accused - [ENTITY] went away. [ENTITY] informed to PW-1 [ENTITY] that Accused - [ENTITY] had asked her that if she would not come to his house on 20/4/2003, he would kill her father and brother.
15. On 20/4/2003 at about 7.00 p.m. [ENTITY] was reached at her matrimonial home by her brother [ENTITY]. PW-1 [ENTITY] was called on the next day i.e. on 21/4/2003. Accordingly he went there. At that time [ENTITY] told him that she was beaten by Accused persons on 20/4/2003. On 24/4/2003 at about 4.00 to 5.00 p.m. PW-1 [ENTITY] came to know that Accused No.2 - [ENTITY] had poured kerosene on the person of [ENTITY]. Therefore, PW-1 [ENTITY] with his wife went to the house of 10/20 [CASE NUMBER]) Accused. However, his house was locked from inside. The wife of PW-1 [ENTITY] asked [ENTITY] to lodge report, however, [ENTITY] refused to do so and told that if she would lodge report, she would be killed by the Accused and she will be more illtreated by the Accused persons.
16. On 25/4/2003 Accused No.3 - [ENTITY] met PW-1 [ENTITY] on the way and told that Accused - [ENTITY] will be meeting him. On that day [ENTITY] told PW-1 [ENTITY] in her house that her mother-in-law had poured kerosene on her person with the help of Accused No.4 - [ENTITY]. On 25/4/2003 PW-1 [ENTITY] saw Accused Nos.1, 3, 5 and 6 sitting on the terrace of their house.
17. On 26/4/2003 at about 6.00 a.m. Accused - [ENTITY] went to the house of PW-1 [ENTITY] and made enquiry whether [ENTITY] had come to his house. They all searched [ENTITY]. As ladies footware were found near the lake of Khadan, they all went there and identified the footware. Thereafter the matter was reported to police. Police arrived at the spot. They called swimmer and also put anchor into the lake but [ENTITY] was not found. On 27/4/2003 dead body of [ENTITY] was found in the said lake. On 11/20 [CASE NUMBER]) the same day PW-1 [ENTITY] lodged complaint (Exh.58) against all the accused persons.
18. Cross-examination of PW-1 [ENTITY] shows an improvement in the entire version of PW-1 [ENTITY] except the demand of amount of Rs.40,000/-. So far as the demand is concerned, admittedly PW-1 [ENTITY] did not lodge any complaint at the police station nor he tried to resolve the dispute between [ENTITY], her husband and in-laws through the elder members of their community. Significantly, the allegation that the kerosene was poured on the person of [ENTITY] on 24/4/2003, the said allegation is not against the present Accused - [ENTITY], but against the other accused who are acquitted by the trial court. Moreover, all these allegations do not find place in the complaint (Exh.58) lodged by PW-1 [ENTITY]. The entire testimony of PW-1 [ENTITY] is in the form of improvement which certainly creates a serious doubt about the truthfulness of the incident.
19. It is not clear as to when PW-1 [ENTITY] was residing in the same vicinity where [ENTITY] was residing and he was aware about the alleged illtreatment at the hands of Accused [ENTITY] and in-laws of 12/20 [CASE NUMBER]) [ENTITY], why he had not lodged any complaint with the police. Moreover, it is not a case of PW-1 [ENTITY] in his evidence that for the alleged demand of Rs.40,000/-, Accused [ENTITY] was assaulting [ENTITY]. According to PW-1 [ENTITY] all these allegations were made by [ENTITY] against all the Accused. Pertinently, the trial court has acquitted all other Accused on considering those allegations. It is not clear as to how the present Accused was convicted by the trial court on the basis of some allegations.
20. Moreover, according to PW-1 [ENTITY], all the accused were demanding money for purchasing auto rickshaw and if the said demand was not fulfilled, then according to them, the Accused [ENTITY] could perform second marriage, there is no reference of the second marriage in the FIR (Exh.58). Thus, the testimony of PW-1 [ENTITY] is not found to be reliable one.
21. The evidences of PW-5 [ENTITY], who is the mother as well as PW-7 [ENTITY], who is the brother of deceased [ENTITY] are on the same lines. According to them, the Accused persons were demanding money to [ENTITY] for purchasing auto rickshaw.
13/20 [CASE NUMBER]) They used to ask [ENTITY] to bring Rs.40,000/- from her parents for purchasing auto rickshaw. Whenever she used to visit their house, she used to complain against the Accused. She used to say that she was abused, beaten and harassed by the Accused persons for the demand of Rs.40,000/-. The deposition of PW-5 [ENTITY] is also full with improvements. Similarly the testimony of PW-7 [ENTITY] also shows the discrepancies on the material aspects.
22. PW-7 [ENTITY] admitted in his cross-examination that his sister used to go back to her matrimonial home willingly, whenever she used to visit her parental home. The said version of PW-7 [ENTITY] indicates that [ENTITY] was not having problem with her husband and in-laws, and therefore, she used to willingly return back to her matrimonial home, whenever she used to visit her parental home. If at all [ENTITY] had any complaint of illtreatment at the hands of her husband and in-laws, she would have complained to her parents and they would have taken action against the Accused and his relatives, however, no complaint was lodged with the police either by [ENTITY] or her parents for nine years from her marriage. PW-4 [ENTITY], who is the neighbourer of Accused persons, has turned hostile and not supported the case of the prosecution.
14/20 [CASE NUMBER])
23. Thus, there is no convincing and cogent evidence on record to show that [ENTITY] was treated with cruelty by her husband [ENTITY]. Naturally whatever allegations are made against the Accused - [ENTITY] are made against the other six Accused, who were the in-laws of [ENTITY]. The learned trial Judge acquitted the other Accused, as the learned trial Judge did not find the evidence of the witnesses reliable and trustworthy and sufficient to convict them.
24. Thus, there is no convincing evidence on record to show that [ENTITY] was illtreated by Accused [ENTITY]. There is no evidence on record to show that the Accused illtreated [ENTITY] and abetted her to commit suicide.
25. Now coming to the allegations against the accused that they had ill-treated [ENTITY] which led her to commit suicide, it would be advantageous to go through the provisions under [SECTION] of the [ACT]. In this regard, [SECTION] of the [ACT] reads as under :
" 498-A. Husband or relative of husband of a woman subjecting her to cruelty .- Whoever, being the husband or the relative of the husband of a 15/20 [CASE NUMBER]) woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purposes of this section. "cruelty" means -
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
Keeping in mind the aforesaid provision under [SECTION] of the [ACT], the testimony of the prosecution witnesses is to be scrutinized cautiously.
26. In [PRECEDENT], the Hon'ble Apex Court has observed that every quarrel between a husband and wife which results in a suicide cannot be taken as an abetment by the husband and the standard of a reasonable and practical woman as compared to a headstrong and over sensitive one has to be applied.
16/20 [CASE NUMBER])
27. The Hon'ble Apex Court in the case of [PRECEDENT], has categorically observed that before holding accused guilty of offence u/[SECTION] of [ACT] the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative except to put an end to her life. Thus, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of [SECTION] [ACT] is not sustainable. To attract offence u/[SECTION] of [ACT], there must be positive act on the part of the person who is said to have abetted the commission of suicide. The person must have played an active role either to instigate or to facilitate the commission of suicide by the person committing suicide.
28. In the instant case, there is no iota of evidence even to remotely connect the Accused to infer that the Accused committed such act with a view to abet the deceased to commit suicide. Neither any act of 17/20 [CASE NUMBER]) instigation nor any act of facilitation to commit suicide by the deceased can be inferred on the part of the accused in the light of the evidence on record.
29. A useful reference can be made of the case [PRECEDENT] wherein a quarrel took place between the appellant and the deceased. The appellant said to the deceased 'to go and die" and two days thereafter the deceased committed suicide. She made a suicide note. The Hon'ble apex Court observed that "to go and die" itself does not constitute the ingredient of instigation. The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. It is further held that the presence of mens rea is the necessary concomitant for instigation.
30. In [PRECEDENT] in case of [PRECEDENT], the Hon'ble apex Court has observed in para 21 as under :-
21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision 18/20 [CASE NUMBER]) are suicidal death and the abetment thereof. To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of [SECTION] [ACT]. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment.
[SECTION] [ACT], thus criminalises the sustained incitement for suicide."
31. The Hon'ble Apex Court in the case of [PRECEDENT] Mh.L.J. Online (Cri.) (S.C.) 4 = (2010) 12 SCC 190, in para 25 observed that, the abetment involves mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under [SECTION] of the [ACT] there has to be a clear mens rea to commit the offence. It also requires an overt act or direct act which led the deceased 19/20 [CASE NUMBER]) to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.
32. In the instant case there is no convincing evidence or record to show that the accused treated [ENTITY] with cruelty which was of such a grave nature that [ENTITY] was constrained to end her life by committing evidence. There is no satisfactory evidence on record to show that the accused instigated or abetted [ENTITY] to commit suicide.
33. In view of the facts and circumstances of the case, it is held that the learned trial Judge should have assessed the evidence led by the prosecution witnesses in its proper perspective. Hence the Judgment delivered by the trial Court needs to be set aside and the present Appeal is required to be allowed. Hence, the following order.
ORDER [A] Criminal Appeal is allowed. [B] The Judgment and Order passed by the learned Adhoc Additional
Sessions Judge, Akola is hereby quashed and set aside.
[C] Accused - [ENTITY] is acquitted of the offences 20/20 [CASE NUMBER])
punishable under [SECTION] and [SECTION]/[SECTION] of the [ACT].
[D] Accused is on bail, his bail bonds shall stand cancelled.
34. Criminal Appeal is disposed of accordingly.
[MRS. [ENTITY], J.] [ENTITY] VG