1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 463 OF 1999 1. Abdul Jabbar S/o Abdul Razzaq, Age : 35 Years, Occu. : Business, R/o Mahoor, Tq. Kinwat, District Nanded. 2. Abdul Aziz S/o Abdul Razzaq, Age : 26 Years, Occu. : Business, R/o as above. 3. Abdul Gaffar S/o Abdul Razzaq, Age : 22 Years, Occu. : Business, R/o as above. 4. Fatimabi w/o Abdul Razzaq, Age : 52 Years, Occu. : Household, R/o as above. 5. Faimidabi w/o Abdul Jabbar, Age : 30 Years, Occu. : Household, R/o as above. .. APPELLANTS (Orig. Accused No. 1 to 5) Versus The State of Maharashtra, Through the Public Prosecutor High Court Bench at Aurangabad. .. RESPONDENT 2 Shri P. V. Mandalik, Senior Counsel i/by Shri Amol Gandhi, Advocate for Appellants. Smt. Y. M. Kshirsagar, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. RESERVED FOR JUDGMENT ON : 07.02.2011 JUDGMENT PRONOUNCED ON : 11.02.2011 JUDGMENT : . This appeal is filed challenging the judgment and order of conviction passed by the Joint District Judge and Additional Sessions Judge at Nanded in Sessions Case No. 26 of 1997 dated 01st December, 1999. 2. The prosecution story in brief is as under : It is the case of prosecution that P.W. 1 Shaikh Ainu is resident of village Rahur which is about 20 k.m. from Mahur in Kinwat taluka. Shaihin now deceased was eldest daughter of Shaikh Ainu. Her marriage was solemnized with one Mr. Abdul Aziz i. e. original accused No. 2 on 12th April, 1996. In the marriage a golden ring of 5 gms, certain utensils, furniture and a cash amount of Rs. 5,000/- for purchasing garments were given to the Abdul Aziz as per the custom prevailing in their community. It is the case of the prosecution that, there was no agreement as 3 such as to what was to be given to Abdul Aziz by the complainant in the marriage. After marriage Shaheen went to the matrimonial house at Mahur. It is the case of prosecution that all the accused persons are members of joint family and residing in the same house. After about eight days stay in the matrimonial house of Shaheen, Shaheen was taken to the parents home at Rahur. At that time, she was not in a pleasant mood, and showed the signs of disinterestedness. The parents of Shaheen thought that Shaheen may be finding it difficult to adjust in the matrimonial house, it being new for her. After about eight days stay at the parents house, Shaheen was again taken back to village Mahur. After about a month Shaheen was again brought to Rahur. That time also she was not happy. On enquiry by the parents she told that her in-laws were demanding money from her. She told that Rs. 2,000/- were demanded by in-laws and, therefore, P.W. 1 Shaikh Ainu made arrangement to give Rs. 2,000/- and sent Shaheen along with husband to their house at Mahur. Thereafter, Shaheen came to Rahur twice and on every occasion she told the parents that the in-laws have demanded the money. The P.W. 1 gave Rs. 2,000/- on each of the two occasions 4 and sent her to the matrimonial home. Thereafter, P.W. 1 came to know that Shaheen was ill. Therefore, he sent his father Shaikh Yakhoob to Mahur to bring her at Rahur. On 19.08.1996, Shaheen was brought to Rahur by Shaikh Yakhoob. At that time Shaheen was in unpleasant mood. On enquiry by parents she weepingly told that she has troubles in the matrimonial house. She told that all the accused are asking to bring money from the parents home and on that count they were giving physical and mental torture. Shaheen made it clear to the parents that she did not disclose earlier about ill-treatment so as to avoid disappointment to the parents. But the torture and trouble in the matrimonial home went on increasing and the accused persons had asked her to bring Rs. 25,000/- from parents because the accused wanted to purchase new stock in their utensils shop. P.W. 1 Shaikh Ainu expressed his inability to pay amount as it was off season for him. However, he assured Shaheen to pay afterwards during the harvesting season, the amount as demanded by the accused. It is further case of prosecution that, Abdul Gaffar i. e. accused No. 3 on 24.08.1996 had gone to Rahur to bring Shaheen. Shaikh Ainu persuaded Shaheen by telling that he will come at 5 Mahur and try to settle the matter. He had sent Shaheen along with Abdul Gaffar to Mahur. 03. It is further case of the prosecution that on 27th August, 1996 the accused so also Shaheen took the dinner and thereafter Shaheen slept in her room by latching the door from inside. At about 10.00 p.m. accused and their neighbourers heard shouts raised by Shaheen, "Save Save" from her room. The accused got up and rushed towards the room of Shaheen. They notices that the door was latched from inside, and the smoke and fire was seen inside. All the accused then raised shouts which attracted the attention of the neighbourers. Some of them climbed wall of the room and removed some tins and entered in the room and extinguished burning flams of Shaheen. Abdul Aziz (Accused No. 2) went to the house of Dr. Amanulla Khan (P.W.4) and awakened him and informed about the incident. Along with Abdul Aziz (Accused -2) Dr. Amanulla Khan came to the house of accused and found that Shaheen had burns all over her body. Fatimabi (Accused -4) had taken Shaheen's head on her lap. Shaheen was unable to talk but with difficulty she was asking for water. Dr. Amanulla Khan advised the accused to remove Shaheen immediately to the Government Hospital and left the house. (emphasis supplied) 6 After returning from the house of accused Dr. Amanulla Khan went to the house of Sarpanch and thereafter along with him went to the Government Hospital at Mahur. Dr. Pande examined her and found 100% burns on the body. He advised the accused and Dr. Amanulla Khan to take her immediately for treatment to the Civil Hospital either at Yawatmal or Nanded. When Shaheen was in the hospital at Mahur police head constable Jankar (the court witness), as per the directions of P.S.O. Mahur had recorded the statement of Shaheen at Exhibit 34. Shaheen was taken to Yawatmal by jeep, however, on the way to Yawatmal Dr. Amanulla Khan who was accompanying Shaheen found that Shaheen is no more. They, therefore, came back to Mahur. It is the prosecution case that at about 3.00 a.m. Abdul Gaffar (Accused-3) arrived at Rahur by jeep and informed Shaikh Ainu that Shaheen sustained burns and was taken to the hospital at Yawatmal for treatment. Having came to know that Shaikh Ainu along with his wife Zullekha Begum (PW-3) proceeded to Yawatmal along with Abdul Gaffar in the same jeep. Shaikh Ainu saw the dead body of Shaheen. They all along with dead body went to the Government Hospital at Mahur. 7 04. At about 8.00 a.m. on 28th August, 1996, Shaikh Razzaq lodged report Exhibit 29 at Mahur Police Station that, Shaheen sustained burns in the house at about 10.00 p.m. on 27.08.1996 and while being taken to the Hospital at Yawatmal, she expired and the dead body has been brought and kept in the Government Hospital at Mahur. Accordingly, A. D. was registered bearing A. D. No. 16/1996 U/Sec. 174 of the Criminal Procedure Code. P.W. 5 P.S.I. Mugalikar took over the investigation. He proceeded to the Government Hospital Mahur, drew inquest panchanama on the dead body of Shaheen as per Exhibit 13. The dead body was sent for postmortem. Then P.W. 5 proceeded to the place of incident, drew the panchanama of place of incident as per Exhibit 31 and seized certain articles such as pillow cover smelling of kerosene, match box, tin of rogour in which there was three liters of kerosene, half burnt pieces of Yellowish petty coat and green saree and some beads of Mangalsutra, a country lamp made of glass bottle, by inserting a rag in the crock. Smelling of kerosene was also noticed on the spot. All things were seized by the PSI Mungalikar. He recorded the statement of witnesses which consisted of some of the accused and their neighbourers. After postmortem dead body of Shaheen was delivered to P.W. 1 Shaikh Ainu who carried the same to Rahur and buried it down in the evening of 28.08.1996. 8 05. On next day i. e. on 29.08.1996 P.W. 1 accompanied by Dr. Amanulla Khan (PW-4), Allabaz and Zakiulla Khan (PW-2) and one Phatru went to Mahur, where Shaikh Ainu lodged complaint Exhibit 40 against the accused persons for having subjected deceased Shaheen to cruelty on account of money and having brought about her death by burns. 06. On the said complaint Crime No. 61/1996 U/Sec. 498-A, 304-B r/w 34 of Indian Penal Code was registered against the accused persons at about 3.00 p.m. on 29.09.1996. Statement of Dr. Amanulla Khan (PW-4), Zakiullah Khan, Phatru and others were recorded at about 4.30 p.m. On the same day accused Nos 2 to 5 were arrested. Statements of remaining witnesses were recorded on 01st September, 1996 at Rahur. Thereupon charge U/Sec. 306 of the Indian Penal Code was added in the original crime on 23.11.1996. The accused No. 6 (deceased Abdul Razzaq) was arrested on 21.09.1996, when he suo muto appeared at Mahur Police Station . After completing investigation charge sheet was filed . After completing the formalities matter was committed to the Court of Sessions. The necessary charges were framed. The Trial Court after recording the evidence and framing points for determination convicted all the accused persons for the offences punishable U/Sec. 498-A and 306 r/w 9 Sec. 34 of the Indian Penal Code. All the accused were acquitted of the offence of dowry death punishable U/Sec. 304-B r/w Sec. 34 of the Indian Penal Code. The original accused No. 1 Abdul Jabbar, accused No. 2 Abdul Aziz and accused No. 4 Fatimabi were sentenced to suffer R.I. for five years and to pay fine of Rs. 500/- in default to suffer further R. I. for two months on account of the offence under Sec. 306 r/w Sec. 34 of the I. P. Code. Each of them further sentenced with R. I. for one year and to pay fine of Rs. 500/- in default further R. I. for three months on account of offence U/Sec. 498-A r/w Sec. 34 of I. P. Code. Therefore, maximum sentence awarded to the appellant/accused is five years, so far accused No. 1, 2 and 4 are concerned. However, accused No. 3 and 5 are sentenced for only one year and to pay fine of Rs. 500/- and in default to suffer further imprisonment for three months U/Sec. 498-A and 306 r/w Sec. 34 of I. P. Code. Hence this appeal filed by the original accused Nos. 1 to 5. Since the accused No. 6 died during the trial, there was no question of any further proceedings in respect of accused No. 6. 07. The learned senior counsel appearing for the appellants submitted that to constitute the offence U/Sec. 498-A the following ingredients are required to be proved which are : i) A woman was married 10 ii) She was subjected to cruelty iii) such cruelty consisted of A. Any lawful conduct as was likely to drive such woman to commit suicide or to cause grave injury or danger to her life, limb or health-mental or physical. B. Harm of such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relation to meet the lawful demand. C. The woman was subjected to such cruelty by her husband or any relative of her husband. 08. It is further submitted that, to prove offence U/Sec. 306, the prosecution has to prove that suicide was committed in consequence of abetment by the accused. It is further submitted that, so far Sec. 34 of the Indian Penal Code is concerned, there must be meeting of mind of all the accused prior to commission of the offence and the accused must have participated int he said meeting intending to commit the offence, all the accused must have participated in the crime and criminal act must have been committed in furtherance of their common intention. Therefore, the learned senior counsel would submit that none of these ingredients are proved by the prosecution. The learned senior 11 counsel further submitted that, all the witnesses which are examined on behalf of prosecution are interested witnesses in the sense that they are close relatives of the complainant. There is no evidence against all the accused to establish ingredients of Sec. 498-A and 306 r/w Sec. 34 of the Indian Penal Code. 09. It is further submitted that, the statement of Shaheen was recorded at Exhibit 24 which was recorded by the police constable in presence of the doctor and, therefore, there was no reason for the trial Court to disbelieve the said statement which was recorded at the earliest point of time when Shaheen was hospitalized at Mahur. It is submitted that, there is no other statement of the deceased which was recorded by the prosecution and, therefore, the statement which was recorded by the police constable on the directions of the P.S.O. and in presence of the Medical Officer is required to be believed. The concerned police constable was examined by the Court as Court witness. It is further submitted that, the alleged incident had taken place on 27th August, 1996 at 10.00 p.m. and the complaint is lodged on 29th August, 1996 at 3.00 p.m. It is further submitted that, said complaint is filed after thought and there is no substance in the allegations in the said complaint. Therefore, filing the complaint at belated stage created doubt about the prosecution story. It is 12 further submitted that, dr. Amanulla Khan (PW-4) has stated in his deposition that he never heard any complaint about each other from the Shaheen or her husband. It is further submitted that, evidence of all the witnesses is hear say. It is further submitted that, the allegations in the complaint have been made first time and there was no any prior complaint about ill- treatment by the appellants to the deceased Shaheen. It is further submitted that, the independent witness whose names are mentioned in the spot panchanama are not examined. There was no intention on the part of the appellants/accused to commit such alleged offence. It is submitted that, the entire prosecution story is required to be disbelieved. The prosecution has not approached the case with fair and reasonable manner. Initially the appellants were tried for the offence punishable U/Sec. 498-A and 304-B, however, Section 306 was added subsequently after thought. The learned Senior Counsel therefore submitted that the impugned judgment and order passed by the Sessions Court cannot be sustained in law, since prosecution has not proved by bringing specific evidence on record about each accused about demand or their abetment or participation soon before the death of the Shaheen so as to draw the inference that Shaheen has committed suicide and the accused/appellants have abeted the commission of suicide. The learned senior counsel in support of 13 his contention placed reliance on the reported judgment of this Court in case of Ganesh Y. Bhutekar v. State of Maharashtra reported in 2005 Cri. L. J. 1221 and submitted that in the facts of that case Court discarded the prosecution story on the ground that no independent evidence of villagers/neighbourers was recorded and only evidence of interested witnesses was recorded. Therefore, this Court acquitted the appellant/accused in that case. The learned senior counsel further placed reliance on the reported judgment in case of Sangannagari Narsimulu v. State of A. P. reported in 2005 Cri. L. J. 4166 and submitted that as like in the present case in that case also the evidence of the prosecution witness was hear say and, therefore, such statement becoming hear say are not admissible in the evidence. The learned senior counsel further invited my attention to the reported judgment of this Court in case of Deepak Bhimrao Bharne and others vs. State of Maharashtra reported in 2004(2) Mh. L. J. 987 and submitted that concept of cruelty has to be proved by direct evidence. The learned senior counsel appearing for appellants would submit that appellants deserve to be acquitted from all the charges leveled against them. 14 10. On the other hand learned Additional Public Prosecutor for the respondent/State invited my attention to the evidence of prosecution witnesses and submitted that, there was demand of money. Rupees 2,000/- were demanded thrice. It is further submitted that, the deceased sustained 100% burn injuries. She committed suicide due to ill-treatment of the accused/appellants. The size of cot was 4 x 6 feet and it was not possible that the deceased Shaheen fell down from said cot. In fact, she had committed suicide. Her death was not accidental. She was alone in the room. The door was latched from inside. The learned A.P.P. further invited my attention to the fact that, the evidence of P.W. 1 and P.W. 2 on demand has been fully corroborated by the evidence of P.W. 4 and 5. The learned A.P.P. further submitted that, the appellants/accused are rightly convicted U/Sec. 498-A, 306 r/w Sec. 34 of the Indian Penal Code. She invited my attention to the examination in chief of Dr. Amanulla Khan and contended that, P.W. 1 Shaikh Ainu stated to Dr. Amanulla Khan about demand of money by the accused from Shaheen. Therefore, the learned A.P.P. would submit that the appeal is devoid of any merit and same deserves to be dismissed. 11. Since the conviction is awarded to the appellant U/Sec. 306 for abetment to commit suicide, it would be relevant to refer to 15 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 -- 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 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 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." 12. 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 16 cautioned that the Court 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 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 cases. Each case 17 has to be decided on the basis of its own facts and circumstances. 13. 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 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 18 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." 14. 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 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