1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 185 OF 2010 Shri Sachin Radhakrishna Bhansali ... Applicant Vs. The State of Maharashtra .. Respondent Mr. J.Shekhar i/b. J.Shekhar & Co. for the applicant. Smt. A.A.Mane, APP, for the respondent No.1 - State Mr. Vila B. Tapkir, Advocate, for the respondent No.2. CORAM: J.H.BHATIA, J. DATE : 18th June, 2010. P.C. 1. The applicant was charge-sheeted for the offence punishable under Sections 306 and 498A IPC in Crime No.43/2009 registered with Sahakar Nagar Police Station, Pune. The applicant filed an application for discharge under Section 227 Cr.P.C. which came to be rejected. He has challenged the said order in the present Revision Application. 2. Heard the learned Counsel for the parties. Perused the copies of the police papers which are submitted with the Revision Application. 2 3. Admittedly, the applicant completed B.E. (Production) in May 2006. The applicant is a permanent resident of Osmanabad. Sonali was daughter of Shivdasji Nawandar, the resident of Samgamner, District Ahmednagar. She had completed her BCS in May 2006. The engagement of the applicant and Sonali took place. As the marriage would take some more time, the applicant suggested her to pursue her further education. Sometime in July-August 2006, she got admission for Master in Computer Science at Pune. She lived with her uncle for some time and thereafter as a paying guest with some friend. The applicant was then posted at Navi Mumbai. They were married on 6.2.2007. At that time, the applicant was posted at Indore. Shortly after the marriage, he was transferred to Nagpur plant of the company and then in April, he was transferred to Kolhapur plant. In March 2008, he was selected for a job at Mundra Port in Kutch, Gujarat State and he joined there in May 2008. Sonali completed her MCS in June-July, 2008 and continued her job at Pune. Since May 2008, the applicant was continuously posted at Mundra Port till she committed suicide on 31.1.2009. He used to come to Pune every month and used to stay with wife Sonali. On 31.1.2009, at about 5.30 p.m. she got a call from her brother-in-law, Rajendra Bhandari, Advocate to give him a parcel at Shivajinagar Railway Station, Pune. However, she did not turn up and within few minutes, she consumed some poison and at about 6.15 p.m. she was taken to Rao Hospital, Bibwewadi, Pune in an 3 Ambulance where she was declared dead. After post-mortem, her dead body was taken to Osmanabad where her funeral and last rites were competed. On 2.2.2009, her brother Vijay lodged a report alleging that because of the cruel treatment at the hands of the applicant, his sister Sonali had committed suicide and the offence under Sections 498A and 306 IPC was registered. 4. The statement of Jagdish Ramchandra Bhutda, the maternal uncle of the deceased, shows that after the marriage, she used to pay visits to his house, but she was not keeping good health. On enquiry as to why she was not keeping good health, she did not tell anything to Jagdish. However, according to him, later on, he had come to know from her another sister Shobha that Sonali was in financial difficulty and she used to take money from her and used to return also, but she was never seen happy. According to him, the applicant had visited her only once in two years. On 31.1.2009 at about 6.30 p.m., he got a telephonic message from one Ravikant Karwa that Sonali was serious and when he went to Rao Hospital, at Bibwewadi, he came to know that she was declared dead. 5. As per the statement of one Mukesh Bajranglalji Sandad, brother-in- law of the deceased, after her marriage, he met her for the first time in the month of December when she was proceeding along with her husband to Nanded for 4 some marriage. At that time, it appeared that her health was not good. On 16.12.2009, there was a get-together of all the sisters and their husbands at Pune. At that time, the applicant and Sonali had also came there. His statement shows that the applicant used to come to Pune for 8 days every month while in service at Kutch. That night they took meals in a hotel. According to him, on repeated enquiry, Sonali had told him that financial condition of the family of the applicant was not good. He used to speak in humiliating language and that he was not giving any money to her and that he used to take away money from her. According to Dr. Umesh Chandra Lahoti, also brother-in-law of the deceased, during his visit at Pune, Sonali had told him that her husband was not treating her properly and that she was being brought to financial difficulties, though his salary was Rs.30,000/- per month. He also speaks about get-together on 16.12.2006, but made no allegation. On 31.1.2009 at about 6 p.m., he got a telephonic message from the brother of the applicant that Sonali had died. There are several other statements, including of Trupti, sister of the deceased. 6. If all the statements are read, it appears that there was no allegation of any demand of dowry or any amount in consideration of marriage. There is also no allegatin that applicant had ever physically tortured his wife. The main allegatin made in the statement of different witnesses appears to be that the 5 applicant had never taken his wife to the place of his posting and whenever she visited he did not give her sufficient time. It appears from the police papers that at the time of engagement, the applicant was already an Engineer and he was looking for a job and Sonali joined MCA which is the course of two years. She completed her MCA in June-July, 2008. The applicant after engagement got a job with Reliance Industries and therefore he was transferred from place to place by the company. When they were married, he was posted at Indore and thereafter he went to different places till finally he got a job at Mundra Port in May 2008 where he continued. It also appears that from the date of marriage till she completed her MCA, the applicant was posted at different places and therefore, it was not possible for them to live together nor it was possible for the applicant to take his wife to the place of his posting. It also appears that he used to visit his wife at Pune even though he was posted at different places. When he was posted at Mundra Port in Kutch, he used to go to Pune for about 5-6 days or 8 days every month and he used to stay with wife. He could not take his wife with him because she was also having a job at Pune. 7. His wife Sonali was staying as a paying guest with some friend at Pune. She was earning Rs.15,000/- per month and spending Rs.12,000/- on herself, including rent. Her husband was earing Rs.30,000/- to Rs.40,000/- per 6 month. He came from a poor family and it is possible that he was required to give some financial assistance to his parents, etc. 8. From the statements of the prosecution witnesses collected by the police, it appears that at about 5 or 5.30 p.,m., she had a talk on telephone with her brother-in-law Rajendra Bhandari and she had assured to come to Shivajinagar Railway Station at Pune to deliver some parcel to him, but she did not turn up. According to the applicant, on that day, they were preparing to go to Osmanabad and they required some time for preparation. He had suggested her not to go to Shivajinagar Railway Station because it was about 8-10 kms. from their house and it was a journey of 30-40 minutes one way. He wanted time to be saved so that they could make preparation for going to Osmanabad. On this, some arguments took place between the two and according to the applicant, he asked her to do whatever she liked. After that she went to a different room and within few minutes she came back and told him that as he had asked her to do whatever she liked, she had consumed poison. He immediately contacted Dr. Amar Toshniwal and informed him about the incident. The statement of Dr. Amar Toshniwal shows that he advised Sachin to make her vomit. According to him, on telephone, Sachin also told him that she was vomitting and that in the heat of anger, she had consumed poison. Immediately Dr. Amar Toshniwal went to the house of the 7 applicant. At that time Sonali was lying on a bed and she had already vomited. He also gave her injection. By that time, ambulance came and she was taken to Rao Hospital. The doctors at Rao Hospital tried to rescue her but within half an hour she was declared dead. The statements of other witnesses, who are close relatives of the deceased, also reveal that they got messages about this incident from 6 p.m. to 9 p.m. on the same day. In view of these facts and circumstances, it appears that due to some abrupt verbal arguments between the husband and wife, in the heat of anger, she had consumed poison, due to which she died. 9. It is well-settled position of law that for the offence of abetment of suicide punishable under Sec. 306, the accused must have actually abetted a person to commit suicide. Abetment is defined in Sec.107 IPC. A person is said to abet the doing of thing if he instigates or intentionally aids, by any act or illegal omission, the doing of that thing. There is nothing to show that the applicant had ever instigated, urged or aided his wife to commit suicide. Explanation to Section 498A defines "cruelty". Explanation (b)is not at all applicable because there was never any unlawful demand. As per Explanation (a), "cruelty" means 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. Section 113-A of the Evidence Act provides that when 8 the question is whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. In this case, admittedly, she committed suicide and that too within seven years of marriage. However, before the presumption under section 113-A could be raised, it is necessary for the prosecution to show that she was subjected to cruelty as defined in Section 498-A. In the present case, there is no material to show that she was subjected to such physical or mental cruelty which could drive her to commit suicide. Merely because in the heat of anger, after some arguments, she consumed poison does not mean that she was treated with cruelty by her husband. As such, even from the police papers, there is nothing to show on the basis of which the presumption under Section 113-A of the Evidence Act can be raised. 10. On perusal of the impugned order passed by the Sessions Court while rejecting the application for discharge, it appears that the learned Additional Sessions Judge has nowhere pointed out as to what evidence collected by the police indicated cruelty as defined in Sec.498A. He also did not point out on 9 what basis a presumption under Section 113-A of the Evidence act can be raised. In my considered opinion, taking into consideration all the facts and circumstances, the Sessions Court committed an error in passing the impugned order. I find no substance on the basis of which the accused could be charged for the offence punishable under Sections 306 and 498A, IPC and therefore he deserves to be discharged. 11. For the aforesaid reasons, the Revision Application is allowed. The impugned order is set aside and the applicant is hereby discharged of all the charges under Sections 306 and 498-A I.P.C. (J.H.BHATIA,J.)