1 Criminal Appeal No.113/1999 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.113 OF 1999 Jagannath s/o Laxman Bankar Age 27 years, Occ. Agriculture, R/o Golegaon, Taluka Sillod, District Aurangabad. ... APPELLANT VERSUS The State of Maharashtra (Copy served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri Vijay Sharma, Advocate for appellant Shri N.B. Patil, A.P.P. for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 25th April, 2011 ORAL JUDGMENT : 1. The appellant, husband of Shevantabai questions conviction in Sessions Case No.293/1995 for an offence under Sections 498-A of the Indian Penal Code and Section 306 of the Indian Penal Code, recorded by learned Additional Sessions 2 Criminal Appeal No.113/1999 Judge, Aurangabad. 2. Deceased Shevantabai married to appellant 5 to 6 years prior to her death. Prosecution claims that the marriage was settled on dowry which was parted by the parents. She was treated well for initial 2 or 4 months. She was humiliated and ill-treated towards non compliance of cash. The accused allegedly made demand, however, he was paid Rs.2500/- and she joined him. Out of the wedlock, a male child was blessed to the couple. The accused repeated his demand of Rs.50,000/- to purchase a tempo. A meeting was ensued, attended by one Shantaram, in which the accused/ appellant assured the gathering that he would not ill-treat Shevantabai and consequently, she joined matrimonial home. Shevantabai allegedly expired due to poisoning. Accused/ appellant claims that it was accidental death as due to spreading insecticide in the field, due to the unbearable odour, she has suffered asphyxia. 3. On the other hand, prosecution asserts that it was a suicidal death of Shevantabai owing to ill-treatment by the accused/ appellant. Statements of witnesses were recorded and the accused was charge sheeted . He denied the charge, claimed 3 Criminal Appeal No.113/1999 trial. His defence is, he has no role in death of his wife Shevantabai, he is breaved due to loss of his wife with a question mark to maintain a male infant. 4. In order to establish the charge, prosecution has examined P.W.1 Shamrao Mirge at Exhibit 7 father of deceased. He also proved F.I.R. at Exhibit 8. P.W.2 Shantaram Khose is an independent person, attended the so called meeting. P.W.3 Kailas Mirge is the brother of deceased. P.W.4 Anil Patil carried investigation. He collected C.A. reports, proved them. P.W.5 Baburao Sapkal is the medical officer with his report at Exhibit 18. P.W.6 Kisan Gaikwad is a panch for spot panchanama. Exhibit 22 Inquest was also proved at Exhibit 23. 5. Reading evidence of the three witnesses, I find that, though the prosecution established untimely death of Shevantabai, however, it has miserably failed to account the same to the discredit of the accused/ appellant. It could not be informed that deceased was fed up of her life due to persistent nagging harassment and met her end. The events and the narration projected by the witnesses Shamrao, Shantaram and Kailas collectively do not inform that in close proximity of her death there was such unbearable ill-treatment nagging to 4 Criminal Appeal No.113/1999 Shevantabai that she thought it better to end herself. Even if prosecution indicates that there were negotiations and settlement of Shevantabai, pursuant to such negotiations with her husband, however, that by itself will not be an element to infer that accused instigated his wife to commit suicide. Shantaram, the independent witness, though accepts that there were controversies between the couple, however, controversy in the marital life being a regular wear and tear, should not have been taken to its peak to attribute the act of forcing the deceased to commit suicide. It may be that the victim/ deceased was a lady with hypertension, could not bear the situation in the family, however, for that purpose, the accused/ appellant, as a husband, should not be responsible to meet accusations in terms of Section 306 of the Indian Penal Code. 6. The death of Shevantabai while she was at matrimonial home, is not questioned, but that does not mean that it will involve to offence under Section 306 of the Indian Penal code. Payment of Rs.2500/- in past by P.W.1 Shamrao Mirge allegedly in presence of P.W.3 Kailas Mirge would not tantamount that accused instigated and harassed after release of such payment. The evidence of P.W.1 Shamrao Mirge and P.W.3 Kailas Mirge cannot be said to be so direct that the 5 Criminal Appeal No.113/1999 accused made a demand from parents of Shevantabai and non compliance forced her to commit suicide. The observations of the learned Sessions Judge on this count calls for interference. Hon’ble Apex Court, in the case of Gangula Mohan Reddy Vs. State of Andhra Pradesh [ (2010) 1 Supreme Court Cases 750 ], in paras 16 and 17, has observed as under : “16. This Court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) 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 has to be decided on the basis of its own facts and circumstances. 17. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the 6 Criminal Appeal No.113/1999 deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.” 7. The prosecution has failed to establish that accused/ appellant abetted suicidal death of his wife Shevantabai. 8. Now comes the import of Section 498-A of the Indian Penal Code. The accused/ appellant has, in the meeting, allegedly renewed his demand of Rs.50,000/- and in second meeting, solemnly assured to behave properly with his wife. Shantaram having witnessed the meeting, submits that it was attended by 10 to 12 persons a conciliation had taken place. Pursuant thereto, Shevantabai joined the accused, expired 10 to 12 days later. He does not confirm to the accusations of persistent demands asserted by Shevantabai. The cumulative effect of evidence of father, son, illustrate that there was harassment to deceased Shevantabai. Once he had paid Rs. 2500/- and on second occasion, Rs.5000/-. On one occasion, Shevantabai informed her father that unless demand of Rs. 50,000/- is complied with, she will not be treated properly in her matrimonial home. Kailas had gone to meet Shevantabai. She complained of the ill-treatment at the hands of the accused and 7 Criminal Appeal No.113/1999 after 4 or 5 days she succumbed. 9. Survey of above evidence illustrate that the deceased, young, recently married, could vent her feelings to her parents, her brother and at the most to a person of acquaintance, but could not be done publicly and consequently, the evidence of her close relations and independent witness Shantaram to the extent of ill-treatment will have to be accepted to its worth. Observations of the learned Judge to this effect need not be castigated or criticised. 10. Considering the evidence adduced, I hold, the prosecution has failed to establish charge in terms of Section 306 of the Indian Penal Code against the accused/ appellant. However, prosecution has established that there was ill- treatment to deceased Shevantabai and consequently, the accused committed an offence under Section 498-A of the Indian Penal Code. 11. The learned Sessions Judge convicted the accused/ appellant for an offence under Section 498-A of the Indian Penal Code to undergo imprisonment for a period of two years and to pay a fine of Rs.2000/-, in default, R.I. for 3 months. 8 Criminal Appeal No.113/1999 Maintaining the conviction, the sentence for an offence under Section 498-A of the Indian Penal Code is reduced to the one undergone (3 months and 27 days). The amount of fine is increased from Rs.2000/- to Rs.5000/-. Since total Rs.5000/- was already deposited by the accused/ appellant, he need not to deposit further fine. Conviction and sentence of the appellant for offence under Section 306 of the Indian Penal Code is set aside and he is acquitted of the said charge. Appeal is partly allowed in above terms. K.U. CHANDIWAL JUDGE