IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.823 OF 2004 1.Sou.Rukmini Yeshwant Kharade, Age 65 years, Occ.Housewife. 2.Smt.Lilabai Vithal Patil, Age 32 years, Occ.Household. 3.Vishwas Yeshwant Kharade, Age 25 years, Occ.Agriculture. All residents of Manjarde, Tal.Tasgaon, Dist.Sangli. (At present No.3 lodged at Sangli ...Appellants District Prison, Sangli) Ori.Accd.1, 2 & 3 Versus The State of Maharashtra, ...Respondent (At the instance of Sr.P.I., Tasgaon Police Station, Dist.Sangli) ...... Mr.Nitin Pradhan with Ms.S.D.Khot & Mr.Dhananjay Bhosale for Appellants. Mr.Y.S.Shinde, A.P.P. for Respondent. ...... CORAM CORAM CORAM : A.M.KHANWILKAR, J. : A.M.KHANWILKAR, J. : A.M.KHANWILKAR, J. DATE DATE DATE OF RESERVING ) OF RESERVING ) OF RESERVING ) THE THE THE JUDGMENT ) : 16/04/2007. JUDGMENT ) : 16/04/2007. JUDGMENT ) : 16/04/2007. DATE DATE DATE OF PRONOUNCING) OF PRONOUNCING) OF PRONOUNCING) THE THE THE JUDGMENT) : 08/06/2007. JUDGMENT) : 08/06/2007. JUDGMENT) : 08/06/2007. JUDGMENT: JUDGMENT: JUDGMENT: 1. This Appeal is directed against the : 2 : Judgment and Order passed by the Sessions Judge, Sangli dated 30th June 2004 in Sessions Case No.21 of 2003. The Trial Court found Appellants/Accused Nos.1 to 3 guilty of offence punishable under Section 306 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘I.P.C.’) and Section 498A read with Section 34 of I.P.C. By the same Judgment, the Trial Court, however, acquitted Appellants/Accused Nos.1, 2 and 3 of charge under Section 304B r/w Section 34 and Section 302 r/w with Section 34 of the I.P.C. Additionally, the Trial Court acquitted accused No.4 of all the charges qua him. 2. Briefly stated, Mrs.Seema Vishwas Kharade (hereinafter referred to as ‘Seema’) was married to accused No.3. Accused No.1 is the mother of accused No.3 (mother-in-law of deceased Seema). Accused No.2 is the widowed sister of accused No.3 (sister-in-law of deceased Seema). Accused No.4 is the father of accused No.3 (father-in-law of deceased Seema). All the accused were living together in the same house in Village Manjarde during the relevant period. The deceased was the daughter of the complainant-Jagannath Tukaram : 3 : Patole (PW 2). Seema was married to accused No.3 on 28th May 2000. The marriage was solemnized at Village Arawade as per the agreement arrived at between the two families. Seema, however, died due to hanging on 22nd April 2002 in her matrimonial house. The complaint (Exhibit 21) was recorded in the local police station at the instance of Seema’s father (PW 2). He reported that Seema committed suicide on account of continuous ill-treatment meted out to her. After the said complaint was registered, investigation commenced. Initially, the investigation proceeded on the assumption that it was a case of suicide, but later on it was also investigated from the angle of murder by pressing neck of Seema by a small rope. After completion of the investigation, charge-sheet came to be filed against the four accused. As the accused pleaded not guilty, trial proceeded. All the four accused were charged initially with offence punishable under Section 498A r/w Section 34, Section 304B r/w Section 34 and Section 302 r/w Section 34 of the I.P.C. Later on, additional charge for offence punishable under Section 306 r/w Section 34 of the I.P.C. was framed against all the accused. The prosecution examined the complainant Jagannath : 4 : T.Patole-father of deceased Seema (PW 2), Pankaj J.Patole-brother of deceased Seema (PW 4) and Housabai J.Patole-mother of deceased Seema (PW 5) to substantiate the case against the accused. The prosecution also examined Dr.Deepak B.Lade (PW 1) to establish the factum of cause of death of Seema. The prosecution also examined Balaso N. Patole (PW 3) who had acted as panch regarding the scene of offence. The prosecution examined Sanjay Popat Chavan (PW 6) who had taken photographs of the dead body after he suspected that it was not a natural death of Seema. Lastly, prosecution examined Madhukar S.More (PW 7) who was the Investigating Officer of the case. 3. After analysing the evidence on record, the Trial Court first noted that the death of Seema was a suicidal death. To record that finding, the Trial Court has analysed the evidence of PW 1, PW 2, PW 6, PW 7, photographs (Exhibit 32), medical certificate (Exhibit 18). So far as the finding of the Trial Court that Seema died a suicidal death is not subject matter of challenge in the present Appeal. In other words, both the sides have accepted that finding. In any case, there is : 5 : overwhelming evidence on record to take the view that it was a case of suicidal death. 4. Be that as it may, insofar as the merits is concerned, the Trial Court, on analysing the evidence, in particular, of PW 2, PW 4 and PW 5, found accused Nos.1, 2 and 3 guilty of offence under Section 498A r/w Section 34 and Section 306 r/w Section 34 of the I.P.C. In the present Appeal, the finding so reached by the Trial Court has been assailed. I shall refer to the grounds of attack at the appropriate place. Before examining those aspects, I shall straightaway advert to the evidence of PW 2. PW 2 has spoken about having lodged complaint to the Police Station on 23rd April 2002. The complaint has been brought on record as Exhibit 21. He had reported that his second daughter Seema was married at Manjarde to accused No.3. The proposal for that marriage was mediated by his relative Subhash Limbade. He has mentioned that on 22nd May 2000, list of agreed terms on which marriage was to be performed, was prepared at Manjarde in the presence of Sopan Dnyanu Patole, Baburao Dnyanu Patole and his son (PW 4) as well as 10 to 12 other persons. : 6 : Incidentally, the said list has been proved and has been taken on record as Exhibit 22. The complainant (PW 2) has disclosed the agreed terms on which the marriage of his daughter was performed with accused No.3. He has stated before police that he spent Rs.90,000/- (Rupees Ninety Thousand) for solemnising marriage of Seema, which was performed on 28th May 2000. He has asserted that at the time of marriage, there was no complaint about any matter from the bridegroom’s side. He has then stated that after marriage, Seema joined accused No.3 at Manjarde and started living happily. However, after four months, when his son (PW 4) had gone to bring back Seema, accused Nos.1 and 2 had told him that when he brings back Seema, he should bring sufficient Durdi (basket of sweets) as their relations were too many. It is stated that to avoid any trouble, while sending Seema back to the matrimonial house, all maan-paan (customary formalities) was done. He has then mentioned that in the first Diwali when Seema came to her parental house (Maheri) along with son-in-law/accused No.3, she was instructed by accused No.1 and accused No.2 not to return without gold ring for accused No.3. Accordingly, half tola ring was given to accused : 7 : No.3 to avoid any ill-treatment to Seema. It is then stated that when Seema was pregnant, she visited her paternal house occasionally, when she used to complain that her mother-in-law (accused No.1) and sister-in-law (accused No.2) were ill-treating her. It is next mentioned that when Dohale Meal (customary feast to celebrate the occasion of pregnancy of the daughter) was arranged on completion of seven months pregnancy of Seema, the mother-in-law (accused No.1) and sister-in-law (accused No.2) as well as son-in-law (accused No.3) made sarcastic comments in respect of the clothes. It is also noted in the complaint that when Seema came back to her paternal house, she informed the complainant (PW2), her mother (PW 5) and her brother (PW 4) that the accused No.1, accused No.2 and accused No.3 were commenting (ridiculing) her on the food prepared by her and also on account of her physical handicap. It is stated that Seema told that she was also ridiculed for not bringing ornaments during the marriage. It is mentioned in the complaint that as a result, the complainant (PW 2) gave seven tolas of gold ornaments during the ninth month of pregnancy of Seema. It is then stated that when Seema delivered a baby girl, the : 8 : accused No.1 and accused No.2 who had come to see Seema, ridiculed Seema by saying ‘bari karti zali ahe’ (expressing unhappiness for having given birth to a female child). It is then stated that thereafter the husband’s parents were demanding Rs.10,000/- (Rupees Ten Thousand) on the pretext that they want to do new garden. That amount of Rs.10,000/- was given to them in August 2001. It is further stated that after five-six months of the marriage, husband’s mother and sister started ill-treating Seema. It is then stated that last Thursday before the incident took place, Seema had telephoned on phone No.55835, belonging to neighbour Brahmadeo Yevale, when she informed that accused No.1, accused No.2 and accused No.3 were demanding Rs.40,000/- (Rupees Forty Thousand) to pay the loan. That phone was attended by wife of the complainant - mother of Seema (PW 5), who in turn informed the same to the complainant. It is then stated that on 22nd April 2002 at 4.00 hrs., when the complainant was at Tasgaon, he was informed that his daughter was dead due to hanging. Immediately on receiving such information, the complainant and other family members rushed to the matrimonial house of Seema where she was seen dead, : 9 : hanging to a rope. It is stated that the accused 1 to 3, after five to six months from the marriage, started ill-treating and ridiculing Seema because of her physical disability. They (accused) treated Seema as a liability and called upon her to bring money and ornaments from her parents on the pretext that the parents of Seema did not make sufficient expenditure in the marriage. She was also ill-treated for not able to prepare food and having given birth to a baby girl by describing the child as ‘karti’ (derogatory remark for a girl child). It is noted in the complaint that Seema was continuously ill-treated, causing her physical and mental strain, as a result of which, she committed suicide. 5. In the evidence, PW 2 has more or less re-iterated the same factual matrix with regard to the circumstances which led to forcing Seema to commit suicide. While deposing before the Court, PW 2 has made reference to the comments made by accused No.1 and accused No.2 in the presence of his son (PW 4) when he had gone to fetch Seema after four months of marriage. The said accused had said that when Seema returns back to her : 10 : matrimonial house, she should get sufficient quantity of durdi (basket of sweets) to be distributed amongst the relatives and family of the accused. This demand was complied. He has then referred to the fact that for celebration of first Diwali as per the custom, Seema was brought to her parental house when accused No.3-husband also accompanied her. At that time, Seema disclosed that accused Nos.1 and 2 had warned her to ensure that gold ring is gifted to accused No.3 and if it is not gifted, she should not return to her matrimonial house. He has deposed that even this demand was complied by giving half tola gold ring and clothes to accused No.3 when Seema was sent back to her matrimonial house along with accused No.3. PW 2 has then deposed that when he had brought Seema in her 7th month of pregnancy, so that, she can stay with her parents and family for few days. However, the accused asked them to immediately send back Seema to her matrimonial house. Seema stayed only for fifteen days. During that stay, Seema disclosed that she was being ridiculed for her physical disability which had occurred due to Polio in her right leg. Besides, Seema disclosed that accused were sarcastic about : 11 : sufficient gold ornaments were not given to her during the marriage. Seema also disclosed that she was being commented on the pretext that she was not able to do good cooking. He has deposed that to avoid any trouble, he gave seven tolas of gold ornaments to Seema, which belonged to his wife (PW 5), after polishing the same, when he sent back Seema to her matrimonial house. He has then deposed that customary gifts like clothes were given to accused Nos.1 to 4 with lots of sweets when they had gone to attend Dohale Meal function. He has stated that although the clothes purchased by him for being gifted to accused Nos.1 to 4 were of good quality, accused No.3 in the presence of relatives and neighbours commented that the clothes purchased for his parents were not of good quality. He has then deposed that when Seema used to visit her parental house, she used to disclose that all the accused persons were ill-treating her and commenting about her physical handicap and also that she was not able to cook good food. He has then deposed that when Seema was brought to her house in the 8th month of pregnancy, Seema disclosed that accused No.1 had told her to bring Rs.10,000/- (Rupees Ten Thousand) from him, as the : 12 : family of accused wanted the amount for grapes garden. PW 2 has deposed that thereafter, he personally handed over Rs.10,000/- to accused No.3. PW 2 has then referred to the fact that he and son-in-law of his elder brother had gone to the farm of accused with tractor and also helped the accused persons in preparing the land for grapes garden. He has then deposed about the incident when accused Nos.1, 2 and 3 had gone to see the new born baby when accused Nos.1 and 2 commented Seema for having given birth to a female child. He has then deposed about the telephone call received from Seema, which was attended by his wife (PW 5), on telephone No.55538 of his neighbour Brahmadeo Yewale, on the previous Thursday before the date of incident, when Seema disclosed to PW 5 that her husband (accused No.3) was demanding Rs.40,000/- (Rupees Forty Thousand), as he (accused No.3) was of the view that complainant (PW 2) had earned handsome income in that year from his (PW 2’s) grape garden. This episode was disclosed to PW 2 by his wife (PW 5). He has then deposed that on 22nd April 2002, when he had gone along with his wife (PW 5) to Tasgaon for marketing, one Shashikant Baburao Patil informed that Seema was : 13 : dead. Thereafter, he and his family members proceeded to the matrimonial house of Seema where she was seen dead due to hanging. This witness has been cross-examined by the defence. The cross-examination is only to cull out that whatever gifts were given were as per the customary practice. The cross-examination was also to bring out omissions in the complaint (Exhibit 21) and improvements of the witnesses in the evidence, not being consistent with the statement-complaint (Exhibit 21). The attempt of the cross-examination is also to bring on record that the accused No.3 was married to Seema with full knowledge that she was physically handicap. Moreover, the bridegroom side had also contributed to the marriage by giving clothes, mangalsutra, painjan (anklet), ear tops and one gold mala (chain) to the bride. That there was no quarrel at all on giving gifts and maan-paan in the marriage. Interestingly, the admission of accused No.3 having demanded clothes and gold ring on the occasion of first Diwali has come in the cross-examination in the form of following question posed to PW 2 : : 14 : "Whether accused No.3 had demanded clothes and gold ring on the first Diwali?" . The thurst of the cross-examination by the defence was to make the witness agree that there was nothing objectionable in demanding customary gifts or taking the help and monies from relatives in agricultural matters. Suggestion is given to this witness that in fact the neighbouring ladies were teasing Seema regarding her physical handicap in one leg and on account of that Seema was unhappy. 6. The evidence of PW 2 is substantiated by the evidence of PW 4 and PW 5. PW 4-brother of Seema has spoken of the fact that after Seema gave birth to a female child, the ill-treatment by the accused persons was intensified. He has stated that accused Nos.1 and 3 were blaming Seema regarding her physical handicap in one leg. He has also spoken about the episode of comments made by the accused to bring sufficient quantity of sweets. He has then spoken about the episode of accused No.1 having told Seema to demand gold ring and clothes for accused No.3 on the occasion of first : 15 : Diwali and that such articles were given to accused No.3. He has spoken about the fact that accused No.3 demanded Rs.10,000/- for agricultural operation through Seema after fifteen days from Diwali festival and that his father gave that amount to accused No.3. He has also spoken about the fact that when Seema was brought to her parents house in the 7th month of pregnancy, so that, she can spend some time with her family, but she was immediately taken back to her matrimonial house by the accused. He has then spoken about the episode of comments made by accused No.1 blaming Seema when she had visited hospital to see Seema and newly born female child. He has also spoken about the episode of accused No.1 having commented upon the quality of clothes given to accused No.4 as customary gift. He has spoken about the disclosure made by Seema about ill-treatment meted out to her. He has then deposed about the telephone call received from Seema eight days before the incident which was attended by his mother (PW 5) when Seema disclosed that accused No.3 has demanded Rs.40,000/- (Rupees Forty Thousand). The evidence of PW 4 broadly corroborates the position stated by complainant (PW 2). This witness was also : 16 : extensively cross-examined. The attempt of the defence was to elicit admission from this witness that the gifts given to son-in-law were customary gifts. The cross-examination is more or less on the same lines as in the case of PW 2. This witness has, however, stood the cross-examination in relation to the events seen and heard by him personally, amongst others, event as unfolded in the hospital when accused No.1 had commented Seema for having given birth to a female child. 7. The other witness to whom disclosures were made by Seema, has been examined as PW 5 (mother of Seema). She has also stated about the disclosures made by Seema to her regarding the ill-treatment meted out to her. She has mentioned about the episode when Seema was brought to her parents house after four months of marriage when demand of sufficient quantity of sweets was made by accused Nos.1 to 4. She has spoken about the disclosure made by Seema during her stay with them in the first Diwali. Seema had disclosed that accused Nos.1 to 4 had warned her to ensure that gold ring is gifted to accused No.3 otherwise she should not come back to her matrimonial house. She has : 17 : deposed that gold ring was gifted to accused No.3 as per the demand. She has then spoken about the episode which had happened during dohale meals, when accused Nos.1 to 3 picked up quarrel with PW 4 and commented that the clothes gifted to them were not of good quality. She has then deposed about the demand regarding gold ornaments conveyed through Seema and also of fulfilling that demand. She has also deposed about the episode that accused No.1 had blamed Seema for having delivered a female child. She has also deposed about the demand of Rs.10,000/- (Rupees Ten thousand) which was conveyed through Seema. She has also stated about the disclosure made by Seema that there were quarrels in the house of the accused and accused persons were ill-treating her. She has then mentioned about the telephone call received from Seema eight days prior to the date of incident. She has deposed that Seema had conveyed on telephone about the demand of Rs.40,000/- which was required to pay-off the loan taken by the accused No.3 for grape garden. Even this witness has been cross-examined on the same lines as that of the cross-examination of PW 2 and PW 4. : 18 : 8. The question is: whether on analysing this evidence, it is possible to take the view that the finding and conclusions recorded by the Trial Court are manifestly wrong and perverse. In my opinion, the conclusion reached by the Trial Court recording finding of guilt against accused Nos.1 to 3/Appellants herein for offence punishable under Section 306 r/w Section 34 as also Section 498A r/w Section 34 of the I.P.C. will have to be upheld being a possible view. Indeed, the Appellants would be right in contending that the evidence of PW 2, PW 4 and PW 5 which asserts about the disclosure made by Seema, such evidence cannot be looked into for the purpose of offence under Section 498A of the I.P.C., being hearsay evidence. That however, does not mean that the same evidence cannot be used against the accused to establish any other offence such as Section 306 r/w Section 34 of the I.P.C. I shall elaborate on this aspect a little later. 9. I shall first deal with the sweep of offence punishable under Section 306 r/w Section 34 of the I.P.C. Section 306 of I.P.C. reads thus: : 19 : "306. 306. 306. Abetment of suicide.- Abetment of suicide.- 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." . Ordinarily, for making out an offence under Section 306 of the I.P.C., the prosecution is required to establish the factum of abetment of a thing by the concerned accused. For that, the prosecution has to establish one amongst the three ingredients envisaged by Section 107 of the I.P.C. Section 107 reads thus: "107.Abetment "107.Abetment "107.Abetment of a thing.- of a thing.- of a thing.-A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly.- Engages with one or more other person 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 wilful misrepresentation, or by wilful 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 : 20 : the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act." (emphasis supplied) 10. However, in relation to offence of abetment of suicide by a married woman, the law postulates that the Court may presume that suicide has been abetted by the husband or by such relative of the husband, if it