crapl318.99 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.318 OF 1999 Manik s/o Uttamrao Solav, aged 28 years, occu. agril., r/o Barbadi, Taluka Purna, District Parbhani. ...APPELLANT. VERSUS The State of Maharashtra. ...RESPONDENT. ... Shri V.S. Kadam, Advocate for appellant. Shri S.G. Nandedkar, A.P.P. for Respondent. ... CORAM: S.S. SHINDE,J. RESERVED ON: 24th JANUARY, 2011. PRONOUNCED ON : 10th FEBRUARY, 2011. JUDGMENT: 1. The appellant herein has preferred this appeal challenging the judgment and order dated 2nd August, 1999 passed by the Sessions Judge, Parbhani in Sessions Trial No.23/1999, whereby the appellant was convicted for the offence punishable under Section 306 of I.P.C. and crapl318.99 2 sentenced to R.I. for five years and to pay a fine of Rs.1000/-, in default of payment of fine, to suffer further R.I. for three months, and u/s 498-A of I.P.C. to suffer R.I. for one year and to pay a fine of Rs.300/-, I.D.R.I. for one month. 2. The prosecution case, in brief, is as under: The appellant - original accused No.1 Manik is husband of deceased Indubai, original accused No.2 Tulsabai is mother of Manik and accused No.3 Ramchandra is maternal uncle of Manik and real brother of accused No.2. The trial Court has acquitted the accused Nos.2 and 3 of the offences charged against them. 3. Deceased Indubai was married with accused No.1 - appellant herein prior to six years i.e. approximately in the year, 1992. At the time of marriage, the appellant was paid dowry as agreed. After treating the deceased Indubai well for about six months of the marriage, it is alleged crapl318.99 3 that, appellant and his mother started ill- treating her on some petty matters. She was not given good treatment during sickness. Indubai used to tell to her parents about the ill- treatment given to her by the accused. Such ill- treatment continued for about three years and thereafter, Indubai delivered a male child. Her father performed necessary ceremony "Bolwan" by selling his cattle and provided the articles like cot, mattress, utensils, cradle etc. to the couple. Thereafter also the ill-treatment continued. 4. In a meeting arranged in the village of accused persons, the accused were advised not to ill-treat the deceased Indubai. However, accused Nos.1 and 2 expressed their desire that appellant was willing to perform second marriage as Indubai was not doing the proper work. Whereupon, the father of Indubai told that appellant may perform second marriage but, stop ill-treating deceased. 5. Some days after the said meeting, Indubai crapl318.99 4 sent message to her father that she desires to see him. Accordingly, her father met the deceased and advised her. On the next day itself, message was received that Indubai was missing. Search of Indubai was undertaken and ultimately, her dead body was found in the well of one Ginyandeo. Father of deceased then lodged complaint at the concerned police station. After registering the crime, necessary investigation was carried out by the police and charge-sheet was filed in the Court of J.M.F.C., Purna who in turn committed the case to the Court of Sessions, the offences u/s 302 and 304-B of I.P.C. being exclusively triable by the Court of Sessions. After trial, the Sessions Judge, Parbhani convicted and sentenced the appellant as stated herein above. 8. Heard learned Counsel for the appellant and the learned A.P.P. for the State. 7. The Counsel for the appellant submitted that the prosecution has alleged the ill-treatment to crapl318.99 5 the deceased Indubai at the hands of the appellant and co-accused for three different reasons i.e. harassment on petty matters, deceased not having a child and after she had a male child prior to incident, the third reason was that her husband i.e. appellant wanted to have second wife. He also submitted that P.W.1 Namdeo Buchale alleged in FIR that accused used to beat the deceased by means of hunter; but, while before the Court, he did not state anything about beating by accused. 8. The learned Counsel for the appellant further submitted that the reasons deposed by PW 10 for ill-treatment to the deceased are different than the version of PW 1 Namdeo complainant. PW 1 Namdeo has not stated anything about demand of colour T.V. and invitation to the women for the Bolwan ceremony. There are specific averments regarding nature of ill- treatment and only vague allegations are made. He submitted that PW 11 Bhimrao who is crapl318.99 6 maternal uncle of deceased Indubai has also deposed different story regarding unlawful demands and demand of colour T.V. All the allegations are totally contrary to the allegations made by P.W.1 and P.W.11. 9. The learned Counsel for appellant submitted that P.W.4 Dr. Masare who had conducted postmortem of deceased Indubai has deposed that there are five contusions and three linear abrasions found on the body of deceased. This witness deposed in his cross-examination that such injuries are possible if a person repeatedly comes into contact with the steps. The learned Counsel further submitted that P.W.6 Dr. Wadhwani who assisted P.W.4 Dr. Masare while conducting the postmoretm, deposed that the injuries found on the person of the deceased Indubai, were not possible due to fall in the well. This witness had experience of one year only. crapl318.99 7 P.W.3 Keshav Shrirang Solva deposed that the well, in which the dead body was found, was having staircase of iron rods. The learned Counsel for appellant further submitted that the P.Ws.7, 8, 9 and 12 were declared hostile. The learned Counsel for the appellant, therefore, submitted that the evidence of the prosecution witnesses is full of discrepancies, contradictions, omissions and the version of the witnesses is inconsistent with each other. The witnesses have made sweeping allegations, which are not sufficient to raise presumption of abetment to suicide. In support of his contentions, he placed reliance on the judgment of this Court in case of Satish Fakira Dhangar and ors. vs. State of Maharashtra (2009 Cri.L.J. 3216). The prosecution has failed to prove the offence beyond reasonable doubt. He, therefore, prayed that this appeal deserves to be allowed by acquitting the appellant. 10. On the other hand, the learned A.P.P. crapl318.99 8 appearing for the respondent - State supported the judgment and order impugned herein and submitted that the prosecution has led cogent and reliable evidence on record to establish the case. The evidence of the complainant P.W.1 Namdeo has been corroborated by other witnesses on the point of ill-treatment and harassment meted out to the deceased Indubai. The deceased, from time to time, disclosed the ill-treatment caused to her by the accused. He submitted that the learned trial Court has rightly scrutinized the evidence brought on record and convicted and sentenced the appellant. He, therefore, urges that the impugned judgment and order needs no interference at the hand of this Court and, the appeal may be dismissed. 13. Since the conviction is awarded to the appellant U/Sec. 306 for abetment to commit suicide, it would be relevant to refer to important sections. Section 107 of the Indian Penal Code reads thus : "107. Abetment of a thing.-- A person abets the doing of a thing, who -- crapl318.99 9 First.-- Instigates any person to do that thing; or Secondly,-- Engages with one or more other persons or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.-- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.-- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." Section 306 of the Indian Penal Code reads thus : "306. Abetment of suicide.-- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 14. In case of suicide how the evidence is required to be appreciated has been stated by the Hon'ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, the Hon'ble Supreme Court has cautioned that the Court should be extremely careful in assessing the facts and crapl318.99 10 circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Further the Hon'ble Supreme Court in case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such crapl318.99 11 cases. Each case has to be decided on the basis of its own facts and circumstances. 15. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in 2010 AIR (SC) 512, after considering various earlier judgments in para 15 observed that, "15. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, 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 but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide 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 306 IPC is not sustainable." "16. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to crapl318.99 12 have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC." 16. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 and 13 reads thus : "12. Abetment involves a mental process of instigation a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 IPC. 13. In State of W. B. v. Orilal Jaiswal this Court has observed that the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it crapl318.99 13 transpires to the court that a victim committing suicide was hypersensitive or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such petulance, discord and differences were not expected to induce a similarly circumstances individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty." 17. Upon perusal of the judgments of the Hon'ble Supreme Court cited supra, it is required to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegations of harassment without there 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 Sec. 306 of I. P. Code is not sustainable. Therefore, what is required is that, unless there is 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 U/Sec. 306 is not sustainable. crapl318.99 14 16. In the above background, it would be appropriate to scan the evidence of the prosecution witnesses. P.W.1 Namdeo Vithalrao Buchale is complainant and father of the deceased Indubai. He stated in his deposition before the Court that at the time of settlement of marriage with accused Manik, he paid an amount of Rs.25,000/- as dowry to the accused No.1 Manik. His daughter Indubai was treated well for about six months by the accused after her marriage. Accused No.1 Manik and accused No.2 Tulsabai started ill- treating the deceased Indubai. They were assaulting Indubai on some petty matters. Indubai was not given medical treatment by accused Nos.1 and 2 when she was suffering from vomiting and dysentery. Therefore, the complainant was constrained to provide medical treatment to Indubai. Even the accused had no courtesy to inform the complainant about her illness. It is further stated that the complainant always used to visit Purna market and on the way to Purna crapl318.99 15 town, there is village Barbadi. While going to Purna town, this witness used to visit the house of accused persons and at those times, Induabai used to tell him that she was being ill-treated by the accused No.1 Manik and accused No.2 Tulsabai. Induabai was brought to the house of the complainant after she was given treatment when she was suffering from vomiting and dysentery. P.W.1 Namdeo has further stated about the details of taking Indubai to matrimonial house, again bringing her on the occasion of Dipawali. It is further stated that accused No.1 and 2 were giving ill-treatment to Indubai on account that she did not beget a child. Such ill-treatment was going on for about three years. Thereafter, Indubai delivered male child. P.W.1 Namdeo states that he sold his bullock and she- buffalo and gave presents to the accused No.1 like cot, pillow, fan, cradle, utensils etc., worth Rs.10,000/-. It is further stated that in spite of these gifts, ill-treatment continued. She was asked to work on the field by the accused. Indubai was brought at the time of crapl318.99 16 Nagpanchami festival. She stayed for about 8 days. During that time, she told about the ill- treatment given by the accused. It is further stated that accused No.1 Manik used to ask the complainant to bring Indubai at matrimonial house instead of taking her from complainant's house by himself. About a month prior to the date of incident, one Dnyanoba met the complainant and gave message that Indubai had called him to see. Thereafter, he himself and other five - six persons including Dnyanoba, Gangadhar Limbaji Sarpanch, Police Patil Madhavrao and Kishan Sambhaji went to see Indubai at her matrimonial place. At that time, they advised the accused Nos.1 and 2 not to ill- treat Indubai. However, accused Nos.1 and 2 told them that accused No.1 desires to perform second marriage as Indubai was not doing proper work. It was told by the complainant to the accused that if accused Manik wants to marry second time, they can perform second marriage. However, in that case, the complainant will take Indubai to his crapl318.99 17 house. At that time, Indubai was carrying. After some period, the complainant received message from Indubai through his son Janardhan that Indubai wanted to see the complainant. The complainant went to Indubai's house at the time of Ashadi Ekadashi. After seeing the complainant, Indubai started weeping. He advised her and told that he would come again to call her for delivery within fifteen days. Saying so, the complainant returned to his village. On the very next day, the complainant received message that Indubai was missing from her house. That message was given by Ramchandra - accused No.3 to him. Thereafter, he himself and accused No.3 Ramchandra went to Police Station Hatta. He gave information to the police, which was reduced into writing. The complaint was given that the daughter Indubai was missing from her house. Thereafter, the complainant, Sarpanch of the village and other two - three people went to the house of the accused. On asking whereabouts of Indubai, accused Nos. 1 and 2 led them to the crapl318.99 18 land near the well belonging to one Ginyandeo of village Barbada. Some persons then threw a bucket with rope in that well and took out dead body of Indubai from beneath the water in that well. Dead body was pulled out from the well and was kept floating in the said well. Thereafter, the complainant reached the police station Hatta and gave oral information to police, which was reduced into writing. Complainant put his signature on the same. The said statement was shown tot he complainant before the Court and the complainant identified his signature and also stated that the contents in the said statement are true and correct, which is at Exh.13. During his cross-examination, nothing substantial is brought on record to disbelieve his statement in examination-in-chief. 17. P.W.2 Kashinath Yenkaji Pawar, whose evidence is at Exh.14, is a witness to the spot panchanama. He stated that he saw the dead body of Induabi, daughter of P.W.1 Namdeo, tied with a crapl318.99 19 rope which was floating in the well. The dead body was taken out from the well. This witness further states, thus: "We inspected that dead body. At that time, we noticed the marks of beating on the knee joint, thighs, and elbow joint on that dead body. We also noticed the scratches of broken bangles on the hands of that dead body. We also noticed marks of beating on the back as well as cheek of that dead body. We also noticed the marks of beating on the forehead of that dead body. We also noticed the marks of beating on the throat as well as leg of that dead body. Panchanama to that effect was drown (drawn) by the police in our presence, which is now shown to me, bears my signature, signature of another panch Udhav and thumb impression of another panch Mandodhari." He has also admitted the contents of the said panchanama as true and correct. The said panchanama is at Exh.15. He further stated that the dead body was sent by police to the Medical Officer for post mortem examination. Nothing has been brought on record by the defence in cross- crapl318.99 20 examination of this witness so as to disbelieve his evidence. 18. P.W.3 Keshav Shrirang Solav was examined at panch witness. His evidence is at Exh.16. He stated that police prepared panchanama of scene of offence in their presence. After preparation of panchanama, he himself and Navnath put signatures on the same. The panchanama is dated 12.7.98. The witness identified his signature and signature of Navnath on the panchanama and he states that the contents thereof are true and correct. The said panchanama is at Exh.17. The defence has brought on record in cross- examination of this witness that there is arrangement to get down in that well as the steps are prepared with the iron rods. The foundation for installation of electric motor is also constructed in that well. 19. P.W.4 Dr. Manik Prabhakarrao Masare is Medical Officer, whose evidence is at Exh.19. He stated in his examination-in-chief that on crapl318.99 21 12.7.98 Hatta Police referred the dead body of Indubai w/o Manik Solav to Rural Hospital Basmath for P.M. examination. On the same day, he conducted the P.M. examination on that dead body between 4.15 p.m. to 5.15 p.m. The said dead body was moderately built and was cold. The witness found following external injuries on the dead body, which have been mentioned in column NO.17 of the P.M. Notes: "(1) Contusion over left thigh, lower part transverse 2"x1/2" - lateral aspect of thigh rectangular. (2) Contusion just below left knee region lateral aspect, oblique direction, - 2"x1/2" rectangular. (3) Contusion over right knee joint region 1/2"x1/2"x irregular. (4) Contusion over right leg upper part, oblique direction - anteriorly, 2"x1/2" rectangular. (5) Contusion over left forearm - middle part medially oblique direction, 2"x1/2" - rectangular. crapl318.99 22 (6) Three linear abrasions over right wrist region anteriorly - transverse about 1/2"x1" in length. All the above said injuries were ante mortem, and might have been caused by hard and blunt object." P.W.4 Dr. Manik Masale further stated in para 2 and 3, which read thus: "2. Thereafter, I dissected the said dead- body and found that the linges in the brain was congested. The larynx and bronchi were seen congested. Cedematous from the lungs was congested. On pressing out section redish froth materially comes out. The right aurical & ventical of the heart were full of blood, however the left aurical and left ventical of the heart were empty. The tongue was inside the mouth. The stomach contained about 50 c.c. liquid matter. The small intestine contained semi-digested food material. The large intestine contained foecal matter with gas. The liver was congested. The spleen, kidneys were congested. The urinary bladder was empty. crapl318.99 23 3. The uterus contained 28 weeks size pregnancy i.e. the pregnancy was aged 28 weeks. The funds of the uterus was congested. The pregnancy was of female child about 35 cm. in length i.e. seven months. Both side ovaries were normal." He further stated that he received C.A. report, which shows that no poison was detected in the viscera. He has opined that the cause of death of Indubai was due to cardio respiratory arrest due to asphyxia due to drowning. He stated that one Dr. A.S. Wadhwani was also accompanying him and helping him at the time of said P.M. examination. He has identified his signature on the P.M. Notes and also signature of Dr. Wadhwani. He has also stated that the contents of the P.M. notes are true and correct. He further stated that external injury no.1,2,4 and 5, which are mentioned above, are possible by assault due to Rumna (wooden handle of harrow) (M.Art.No.7) shown to him. He further stated that external injury No.3 and 6 are possible by whip (Art.No.6), which was shown to him. crapl318.99