AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.385 OF 1991 State of Maharashtra ) ... Appellant (Orig. Complainant) Versus 1. Baban Damodhar Deshmukh, Occ.: Service. ) ) 2. Abai Damodhar Deshmukh, Occ.: Household work, Both residing at Nalawane, Tal. Junnar, Dist. Pune. ) ) ) ) ... Respondents Mr. A.R. Patil, A.P.P. for the appellant. Ms. Revati Mohite-Dere for the respondents. CORAM : SMT. RANJANA DESAI, J. DATED : APRIL 04, 2008. ORAL JUDGEMENT:- 1. In this appeal, the State of Maharashtra has challenged judgment and order dated 20/2/1991 passed by the Additional Sessions Judge, Pune in Sessions Case No.109 of 1990. AJN 2 2. Respondents 1 and 2 are original accused 1 and 2 respectively. Respondent 1 is the husband of deceased Pramila and respondent 2 is her mother-in-law. For the sake of convenience, I shall refer to them as “A-1” and “A-2” respectively. 3. It would be advantageous to begin with the facts of the case as are evident from the complaint and other evidence on record. Complainant Dattatraya Balasaheb Sawant is the brother of the deceased. He is PW-1 and shall be so referred to in this judgment. According to the prosecution, PW-1 resides at Hadapsar, Pune along with his family. He comes from village Pimpalner, Taluka Parner, District Ahmednagar where his parents reside. The deceased was his youngest sister. She was married to A-1 on 28/4/1979 at Parner. 4. After marriage, the deceased was residing with A-1 and A-2 at village Nalawane and at Bombay for a period of 2 to 2½ years. During this period, the deceased appears to have been happy. According to PW-1, A-1 was having extra marital relationship with another woman and on account of that, he started ill-treating the deceased. He kept the deceased at Nalawane for about 3 to 4 AJN 3 months. Thereafter, he brought her to PW-1's house at Pimpalner. At Pimpalner, A-1 is said to have made a demand of Rs.10,000/- as he wanted to go to Iraq for service. PW-1 expressed his inability to pay the amount. According to PW-1, A-1 left the deceased at Pimpalner and went to Bombay. The deceased stayed at Pimpalner for about 7 to 8 days. Thereafter, PW-1 took her to her matrimonial house at Nalawane. A-1 was not at Nalawane. He had gone to Bombay. According to PW-1, after leaving his sister at Nalawane with A-2, he came back to his house. About 10 to 15 days thereafter, he again went to Nalawane to meet the deceased. The deceased informed him that A-1 had gone to Iraq and that A-2 was asking her to do labour work and maintain herself. PW-1 returned home after telling the deceased to act as per the wishes of her mother-in-law. PW-1 has further gone on to say that 2 to 4 days thereafter, the deceased came to Pimpalner. She told him that she was working as a labourer in the Employment Guarantee Scheme and that the amount of wages received by her was snatched by A-2. She further told him that A-2 was not giving her any food and was ill-treating her. She further informed him that A-2 was quarreling with the deceased on trifling grounds. According to PW-1, the deceased lived at Pimpalner for AJN 4 about a year or so. During this period, neither A-1 nor A-2 came to take the deceased back to their house. PW-1 has further stated that after some days, he took the deceased to Nalawane. A-2 did not allow her to enter the house telling them that she will not be allowed to enter the house till A-1 returns to the village. PW-1 then took the deceased to Pimpalner. 5. According to PW-1, he came to know that thereafter, A-1 had come to Nalawane and gone to Bombay. He, however, did not come to their village. Thereafter, the deceased filed maintenance application under section 125 of the Criminal Procedure Code (for short, “the Code”) and a complaint under section 494 of the Indian Penal Code (for short, “the IPC”) against A-1 in the Court of Judicial Magistrate, First Class, Parner, District Ahmednagar. These proceedings were going on in that court for about four years. During that period, the deceased stayed at Pimpalner. During this period neither A-1 nor A-2 tried to take the deceased to her matrimonial house. 6. PW-1 has further stated that on 18/10/1988, A-1 came to the court of Judicial Magistrate, First Class at Parner along with his AJN 5 relatives. A compromise was arrived at in the pending proceedings and A-1 took the deceased with him to Nalawane. 7. PW-1 has further stated that on 20/5/1989, the deceased came to Hadapsar at about 2.30 p.m. and informed him that A-1 had gone to Saudi Arabia, from where he had sent a letter to her. In that letter, he had informed the deceased, inter alia, that he did not want to have any relation with her. PW-1 has produced certain letters some of which were sent by A-1 to the deceased. The said letters are exhibited. PW-1 has further stated that the deceased informed him that the marriage of her sister-in-law Sunita was fixed on 26/5/1989 and A-1 had directed her to bring a dress and a gold ring of one Tola for him, failing which she was directed not to show her face to him. PW-1 has stated that accordingly, he handed over to the deceased the clothes which he had purchased for A-1. After the marriage, the deceased told him that A-1 had refused to accept the clothes because she did not bring the ring. PW-1 has further stated that the deceased was weeping at that time and he somehow consoled her and returned to Hadapsar. 8. According to PW-1, on 30/5/1989 at about 8.00 a.m., his AJN 6 father came to his house at Hadapsar and informed him about the death of Pramila, the deceased. His father told him that he was going to the Court at Parner to inform about the incident and directed him to go to Nalawane. According to PW-1, he immediately proceeded to Nalawane along with his cousin. As they were proceeding to Nalawane, when they reached near Gulunchiwadi, they came across an ambulance. They stopped the ambulance. Dead body of the deceased was in the ambulance. The dead body had blackish and bluish marks around her neck and scratch marks on her hands. PW-1 then went to Narayangaon by the ambulance. At about 4 to 5 p.m. on that day, the postmortem was carried out and the dead body was handed over to him. He took the dead body to Nalawane for funeral. According to PW-1, both the accused did not remain present for the funeral. 9. According to PW-1, after the funeral, Subhash, the brother of A-1 met him and told him that the deceased had committed suicide by hanging herself. On that day, in the evening, he returned to his house at Pimpalner. On 31/5/1989, he went to Narayangaon Police Station at 11.00 a.m. and lodged his complaint. The said complaint is Ex-19. Investigation was started on the basis of this AJN 7 complaint. The accused were arrested on 31/5/1989 at about 8.30 p.m. After completing the investigation, the accused came to be charged under sections 306 and 498-A read with section 34 of the Indian Penal Code (for short, “the IPC”). 10. In support of its case, the prosecution examined four witnesses apart from PW-1 Dattatraya Sawant. PW-2 is Shamsundar Mane, the Police Head Constable who was at the relevant time attached to Belha Out-post. PW-3 is Balasaheb Sawant, the father of the deceased (for convenience, “PW-3”), PW- 4 is Malhari Kunjir, PSI, Shirur Police Station and PW-5 is Jaideo Dhimdhime, who was at the relevant time attached to CID, Crime Branch, Pune to whom the investigation of the case was handed over. 11. The defence of the accused was one of denial. After perusing the evidence on record, learned Sessions Judge was of the opinion that the prosecution had failed to prove its case beyond reasonable doubt. He, therefore, acquitted the accused. Being aggrieved by the said order of acquittal, the State of Maharashtra has preferred this appeal. AJN 8 12. There is hardly any dispute about the fact that the deceased was found hanging in her matrimonial house on 29/5/1989 at about 5.30 p.m. 13. Anant Damu Deshmukh is the brother of A-1. We find in the record Ex-32 which is styled as Khabar. It is dated 30/5/1989. It is lodged at 12.10 midnight. The contents of this Khabar assume importance. Anant has stated that he resides at Nalawane, Taluka Junnar along with his mother (A-2), sister Sunita, A-1 and his wife Pramila i.e. the deceased, his brother Subhash and his wife Anita. All of them reside in the same house. A-1 was serving at Saudi Arabia. As his sister Sunita's marriage was to take place on 26/5/1989, A-1 had come from Saudi Arabia for her marriage on 23/5/1989. He has further stated that A-1 and the deceased had got married in 1979. They had no issue. The deceased was staying at Village Nalawane. Anant has further stated that on 29/5/1989 at about 7.30 a.m., A-1 and A-2 i.e. his brother and mother respectively had gone to Ranthe. He had gone to Belha for weekly Bazar and his elder brother Subhash had gone to Loni Dhamni. At about 5.30 p.m., he returned to his house at Nalawane. AJN 9 He started opening the front door. But it did not open. So he started calling out the deceased's name. However, there was no response. He peeped through the hole of the door and found that the door was latched from inside. He, therefore, opened the latch with the help of a `pakad'. He found the deceased hanging at the back of the hall of the house with a rope tied to the beam and around her neck. She was dead. Anant has further stated that six years back, A-1 had got married with one Kesharsing from U.P. and, therefore, he never took the deceased with him and, hence, the deceased must have committed suicide. He has requested that further investigation be made. This complaint is signed by Anant. It is countersigned by Police Head Constable, Belha Out- post. It appears to have been forwarded to the Superintendent of Police, Khed because, he has signed it on 31/5/1989. 14. PW-2 Shamsundar Mane, who was at that time attached to Belha Out-post of Narayangaon Police Station has stated that on 30/5/1989, at about 12.10 midnight Anant Deshmukh came to the Police Out-post Belha and gave information that the deceased has committed suicide by hanging herself. He took the complaint of Anant Deshmukh. This is the same complaint (Ex-32), the gist of AJN 10 which I have reproduced hereinabove. PHC Mane has stated that crime was registered as A.D.No.22/89 at Narayangaon Police Station. He has gone on to say that further investigation of the accidental death was carried out by him. He went to Nalawane. Inquest panchanama was drawn. Dead body was handed over to the constable for postmortem. He drew panchanama of scene of offence (Ex-12). 15. Though PHC Mane has stated that he recorded complaint of Anant Deshmukh and though Anant Deshmukh has stated that because A-1 had remarried, the deceased must have committed suicide, this complaint is not treated as FIR by Narayangaon Police Station. We have on record evidence of PW-4 Malhari Kunjir PSI attached to Shirur Police Station. He has stated that on 31/5/1989 he had received A.D. No.22/89 from PHC Mane and on the same day he received complaint of PW-1 Dattatraya Sawant, the brother of the deceased and on that basis, he registered Crime No.28/89 under sections 498-A, 306 and 304-B of the IPC and started investigation on the basis of the same. 16. At this stage, we must see how learned Sessions Judge has AJN 11 dealt with this aspect. He has merely noted that the incident occurred on 29/5/1989 and offence was initially registered as accidental death on the basis of FIR of Anant Deshmukh dated 30/5/1989. Learned Judge has then referred to the complaint lodged by the brother of the deceased on 31/5/1989 which is at Ex- 19 and commented that it is a delayed complaint. He has stated that no reasonable explanation is coming forward from him as to why there was a delay of two days in filing the FIR. 17. It appears that the complaint of PW-1 is treated as FIR by the prosecution. Complaint of Anant Damu Deshmukh is prior in point of time and PW-2 PHC Mane has described it as FIR. Learned Judge has also referred to it as FIR. However, PW-4 PI Kunjir has treated the statement of PW-1 as the FIR. It is not explained why the statement of Anant Deshmukh was not treated as FIR. Undoubtedly, there is some inconsistency in the prosecution case about FIR, though it may not make any difference to the result of this appeal. AJN 12 18. I have heard Mr. Patil, learned A.P.P. appearing for the State in support of the appeal. He submitted that the impugned judgment and order is perverse and deserves to be set aside. He drew my attention to the letters of the deceased which are on record and submitted that these letters clearly indicate that A-1 caused mental cruelty to the deceased. He pointed out that A-1 has admitted that he had got remarried. The letters clearly indicate that on account of this, the deceased was depressed. Learned A.P.P. submitted that the evidence of PW-1 and PW-3 i.e. the brother and the father of the deceased clearly establish that both the accused ill-treated the deceased which ill-treatment drove her to commit suicide. He submitted that the learned Sessions Judge should not have ignored the cogent and consistent evidence of the relatives of the deceased on the ground that they are interested witnesses. He submitted that in the nature of things, in such matters, it is not possible to get independent evidence and, therefore, reliance should have been placed by the learned Sessions Judge on the consistent evidence of PW-1 and PW-3. Learned A.P.P. further pointed out that it was wrong on the part of the learned Sessions AJN 13 Judge to observe that there is a delay in lodging the FIR. He submitted that in the facts of this case, one day's delay is hardly material. He submitted that this is a fit case where this court should reverse the order of acquittal and convict the accused in accordance with law. 19. I have also heard Ms. Revati Mohite-Dere, learned counsel appearing for the respondents-accused. She submitted that the impugned judgment and order cannot be characterized as perverse. The view taken by the learned Sessions Judge is a reasonably possible view and, hence, it should not be disturbed in this appeal against acquittal. In support of this submission, she relied on the judgments of the Supreme Court in Kashiram & Ors. v. State of M.P., (2002) 1 SCC 71 and Sukliya v. State of M.P., JT 2002 (5) SC 302. 20. Learned counsel then submitted that PW-1 has stated that his other sisters were also staying at Nalawane after their marriage. However, the prosecution chose not to examine them. She submitted that the evidence of PW-1 and PW-3 has rightly been AJN 14 described as evidence of interested witnesses. Learned counsel submitted that in the absence of independent corroboration to their evidence, it is risky to rely on it. She submitted that PW-1 as well as PW-3 have omitted to state in their police statements that A-1 was having extra marital relationship with another woman and that caused mental cruelty to the deceased. She submitted that this omission is a material omission as the prosecution has put this circumstance in forefront. Learned counsel further submitted that Rs.10,000/- allegedly demanded by A-1 from the brother of the deceased was for his personal reason. It was not connected with marriage and will not be covered by section 498A(b) of the IPC. 21. Learned counsel submitted that though the letters on record do indicate that the deceased was distressed, those letters appear to be old letters. Learned counsel submitted that merely on the basis of these letters it cannot be said that A-1 abated suicide of the deceased. Learned counsel submitted that section 107 requires instigation, intentional aiding and conspiracy. She submitted that none of the ingredients of section 107 are present in this case and, therefore, learned Judge has rightly acquitted the accused. Learned counsel submitted that so far as section 498A is AJN 15 concerned, there is hardly any evidence on record which can bring home the guilt to the accused. In support of her submission, learned counsel relied on the judgments of the Supreme Court in Sanju alias Sanjay Singh Sengar v. State of Madhya Pradesh, 2002 Cri. L.J. 2796, Sunil Bajaj v. State of M.P., JT 2001 (8) SC 465, judgments of this court in Sk. Usman Sk. Raheman v. State of Maharashtra, 200 Cri. L.J. 3301, Satish s/o. Narayan Ate, v. State of Maharashtra, 1997 Cri.L.J. 935 and judgment of Jharkhand High Court in Anup Kumar Verma v. State of Jharkhand, 2004 Cri.L.J. 1712. She submitted that no case is made out for interference with the well reasoned order of the learned Sessions Judge and, therefore, the appeal ought to be dismissed. 22. Scope of interference by the High Court with the order of acquittal in an appeal against acquittal has been described by the Supreme Court in Sukliya' s case (supra). I may quote the relevant paragraphs: “The settled position of law regarding the powers to be exercised by the High Court in an appeal against AJN 16 the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.” 23. In Kashiram's case (supra), while considering the same point, the Supreme Court has held as under : “Though the High Court while hearing an appeal against an acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is – if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary that it is obligatory on the High Court while reversing an order of acquittal to consider and AJN 17 discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.” 24. Keeping these well established principles, I will deal with the present appeal. 25. We have already noted that there is some inconsistency in the prosecution case about FIR. We have also noted that the said inconsistency, however, will not make any difference to the result of the present appeal. It must be stated here that the observation made by learned Judge that there is delay in filing the FIR is incorrect. In our opinion, time taken to lodge FIR is explained by the prosecution. About a day's delay in filing the FIR can hardly be described as delay. 26. It is also necessary to refer to the judgment of the Supreme Court in Sanju alias Sanjay Singh Sengar's case because in that, the Supreme Court has considered when suicide can be said to have been abeted and what is meant by abetment. The appellant AJN 18 therein was the brother of Neelam Sengar, wife of the deceased Chander Bhushan alias Babloor. The marriage between the sister of the appellant therein and the deceased took place in 1993. The case of the prosecution was that immediately after the marriage, she was subjected to continuous ill-treatment by the deceased and his family members forcing her to live separately along with the deceased and children for about a year. Thereafter she went to her parents' house and started living with her brother, the appellant therein. About two months prior to the incident, the appellant advised the deceased to take his sister back to her matrimonial house and treat her properly. On 25/7/1998, the appellant visited the place of the parents of the deceased and pleaded with them that his sister should be rehabilitated in the matrimonial home and should not be ill-treated. He also told them that in case they do not mend their behaviour towards his sister, he would be compelled to file a complaint under section 498-A of the IPC. The parents of the deceased expressed helplessness as the deceased had been living separately from them. It was the case of the prosecution that on this story being narrated to the deceased by the mother of the deceased, the deceased went to the house of the parents of the appellant. There was a quarrel between them. Thereafter, the AJN 19 deceased returned home and told his brothers that the appellant had threatened and abused him. On the next day, the deceased was found hanging by neck with a rope on the raft of his house. He had left a suicide note in which he stated that the appellant was responsible for his death. The appellant was charged under section 306 of the IPC. 27. The appellant filed a petition under section 482 of the Cr.P.C. in the Madhya Pradesh High Court for quashing of the charge- sheet. The High Court dismissed the petition and, therefore, the appellant approached the Supreme Court. 28. The Supreme Court took a resume of its several earlier cases. Section 107 of the IPC was quoted. The Supreme Court observed that the courts below erred in accepting the prosecution story that the suicide by the deceased was the direct result of the quarrel that had taken place on 25/7/1998 wherein it was alleged that the appellant had used abusive language and had reportedly told the deceased 'to go and die'. The Supreme Court observed that even if the prosecution story is accepted that the appellant did tell the deceased 'to go and die', that itself did not constitute the AJN 20 ingredient of `instigation'. The word `instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. The Supreme Court observed that the presence of mens rea, therefore, is the necessary concomitant of instigation. The Supreme Court observed that the words uttered in a quarrel or in a spur of the moment cannot be taken to have been uttered with mens rea. The Supreme Court further observed that the alleged abusive words were uttered on 25/7/1998. The deceased was found hanging on 27/7/1998 and, therefore, assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect. The Supreme Court concluded that, therefore, it cannot be said