( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No.220 of 2003. CRIMINAL REVISION APPLICATION No.220 of 2003. CRIMINAL REVISION APPLICATION No.220 of 2003. Vithal Digambar Vaidya ..Applicant. Vs. Hemchandra Moreshwar Joglekar and Anr ..Respondents. Mr Rajesh P. Behere, Advocate for the Applicant. Mr S. V. Kotwal, Advocate for the Respondent Nos.1 to 6. Mr P. P. Shinde, A.P.P. for State/Respondent No.7. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. CORAM : V.C. DAGA, J. DATED : 5TH JUNE, 2008. DATED : 5TH JUNE, 2008. DATED : 5TH JUNE, 2008. P.C.:- P.C.:- P.C.:- 1. Heard the rival parties. Perused the petition. 2. This revision is directed against the judgment and order, dated 10-12-2002, passed in Criminal Appeal No. 9 of 2002, by the Additional Sessions Judge, Pune (the "Lower Appellate Court") by which the appeal was allowed and the judgment and order of conviction dated 9.1.2002, passed by the Ad hoc Assistant Sessions Judge, Pune ("the Trial Court") in Sessions Case No. 150 of 2000 was set aside and the accused were ( 2 ) acquitted of the offences punishable under Sections 498-A and 306 read with section 34 of the Indian Penal Code ("the I.P.C."for short). 3. The story of the prosecution, in brief, is as under: 4. Deceased Shradha was married to Respondent No.1 - accused No.1 - Hemchandra Moreshwar Joglekar, on 26th June, 1998 at Pune. After marriage, she started living with her husband - Accused no.1 and his family members, accused No.2 - Moreshwar Joglekar - his father, accused No.3 - Prabha, his mother, Accused No.4 Archana, his sister and accused No.5 Vatsala, his grand mother and accused No.6 Pallavi, his second married sister. 5. Shradha had been cohabiting with her husband at Sanghavi (New). The deceased Shradha and her husband (Accused No.1) went to Mahabaleshwar for honeymoon and stayed at Mahabaleshwar for fifteen days and thereafter they returned to the place of accused persons at Sanghavi. Thereafter, Shradha went to her ( 3 ) parent’s home and in that meeting/visit, she disclosed to her mother that her husband - accused No.1 did not fulfil his marital obligations and did not keep sexual relation with her. Thus, she was not happy to be in his company. She, thereafter, returned to her matrimonial home. Her parents, then, contacted the parents of her husband at their place. They informed the parents of accused No.1 about the problems which Shradha had disclosed to them, but in vain. 6. It is alleged that when the parents of her husband, accused No. 1, came to know about the refusal on the part of Accused No.1 to keep sexual relation with their daughter-in-law by accused No.1, they were annoyed with Shradha and they started harassing her and subjecting her to cruelty. The deceased Shradha informed her parents about the harassment and cruelty meted out to her over the phone and also when she visited her parents. She also noted the conduct, behaviour, torture and harassment to which she was being subjected to by the accused persons in her personal diary. The accused persons were ( 4 ) torturing, harassing and taunting her on flimsy grounds. However, her parents tried to pacify her. 7. The deceased Shardha, who was fed up with the harassment meted out and cruelty to which she was subjected at the hands of the accused persons, committed suicide by pouring kerosene on her person and setting herself on fire on 26th August, 1999 at the house of Accused No.1. 8. It is the case of the prosecution that on the day of incident, it was the festival of "Raksha Bandhan" and Shradha’s brother and his wife went to the place of Accused No.1 - Hemchand, where they met Shradha. But Accused No.1 Hemchand was not in the house and could not attend to them. Therefore, Shradha’s brother and his wife returned to their house on the same day at 10-00 p.m. However, on the same day at about 11:00 p.m., father of the deceased Shradha received a message over the telephone that Shradha was serious. Therefore, her parents went to the place of accused No.1, where they came to know that Shradha had set herself on fire and she ( 5 ) was admitted in Sassoon Hospital. So they went to the said Hospital. There, they found Shradha had suffered 100% burns but was able to talk and accordingly she spoke to her mother. There, she disclosed to her father and mother that on the previous night of the incident, after leaving her brother and his wife she went to the house of accused Nos. 2 to 6 where her husband, accused No.1 was present. She, then, asked him the reason for about his late stay, on which Accused No.1 slapped her. That, she felt insulted and, ultimately, decided to end her life. She poured kerosene on her person and set herself on fire. 9. On 5th September, 1999 she expired in the Hospital. Prior to her death, on 27th August,1999 her father had lodged a complaint to the police. On the day of the incident the Special Executive Magistrate recorded the statement of Shradha. On the basis of the complaint and statement of Shradha, recorded by the Special Executive Magistrate, the offence was registered. Thereafter, the investigation was carried out by the Investigating Officer. He visited the house of the accused No.1 and ( 6 ) prepared panchnama of the scene of the offence. He also seized the necessary articles i.e. a big kerosene can, a match box and a diary, allegedly written by the deceased Shradha. During the course of investigation, investigating officer also recorded the statements of some of the witnesses, collected the post-mortem report and after completing investigation filed the charge sheet against all the accused for the offences punishable under Sections 498-A, 306 read with Section 34 of the I.P.C. in the Court of Judicial Magistrate, First Class, Pune. 10. On 9.3.2000 the learned Judicial Magistrate, First Class, then, committed the case to the Court of Session as the offence under Section 306 of the I.P.C. being exclusively triable by the Court of Session. The learned Assistant Sessions Judge, Pune framed charges against the accused for the offences punishable under Sections 498-A, 306 read with Section 34 of the I.P.C. to which the accused pleaded not guilty and claimed to be tried. 11. All the accused admitted that Shradha had ( 7 ) committed suicide. However, it was their defence that she was suffering from mental disorder and depression and had developed suicidal tendency. For any petty reason she used to hurt herself and would become uncontrollable. As per her wish she was residing separately along with accused no.1 Hemchand. Her mother used to interfere in her daily life. It is also their defence that mother of the deceased Shradha and her brother tutored her when she was in the hospital to blame the accused. They never treated her with cruelty. In fact, they always respected her wishes. It is their contention that because of her own psychological problem she used to be depressed. They claimed themselves innocent and prayed for acquittal. 12. The prosecution in support of the charges against the accused examined some of the witnesses and relied upon the letters which were allegedly written by the deceased Shradha. The Accused did not examine any witness in support of their defence. 13. The Trial Court after the completion of ( 8 ) trial recorded a finding that the deceased was subjected to ill-treatment, harassment and cruelty and thereby committed the offence under Section 498-A of the I.P.C. and the act of harassment and cruelty to the deceased had driven her to commit suicide. As such, they were held guilty of the offence punishable under Section 306 read with Section 34 of the I.P.C. 14. Being dissatisfied with the aforesaid order of conviction, the accused invoked Appellate Jurisdiction of the Court of Session through Criminal Appeal No. 9 of 2002. The learned Additional Sessions Judge vide its order dated 10.12.2002 was pleased to allow the appeal holding that no offence was committed by the applicant warranting his conviction. The applicant being the brother of the deceased has invoked the revisional jurisdiction of this Court. 15. The learned counsel for the applicant urged that the impugned judgment and order acquitting the accused persons is clearly against the evidence on record. He further submits that ( 9 ) the husband of the deceased was impotent and in order to conceal his own short-coming, he was harassing the deceased which had ultimately driven the deceased to commit suicide. He further submits that ill-treatment and using abusive language amounted to cruelty, especially to a deceased who was polite, hard working and a career oriented girl, interested in music, dance, etc. He, thus, submits that the impugned judgment and order acquitting the accused is liable to be quashed and set aside. He placed reliance on three judgments, namely, Sushil Kumar Sushil Kumar Sushil Kumar Sharma Vs. Union of India and Ors, 2005 6 S.C.C. Sharma Vs. Union of India and Ors, 2005 6 S.C.C. Sharma Vs. Union of India and Ors, 2005 6 S.C.C. 281 and Kaliyaperumal and Anr vs. State of Tamil 281 and Kaliyaperumal and Anr vs. State of Tamil 281 and Kaliyaperumal and Anr vs. State of Tamil Nadu, (2004) 9 S.C.C. 157 and Randhir Singh and Nadu, (2004) 9 S.C.C. 157 and Randhir Singh and Nadu, (2004) 9 S.C.C. 157 and Randhir Singh and Anr Vs. State of Punjab, (2004) 13 S.C.C. 129. Anr Vs. State of Punjab, (2004) 13 S.C.C. 129. Anr Vs. State of Punjab, (2004) 13 S.C.C. 129. 16. Mr Kotwal appearing for Respondent Nos. 1 to 6 (the original accused persons) urged that the Trial Court has recorded a categorical finding based on the evidence (Exh.46) of which the deceased was the author, wherein she has recorded that her husband was able to have sex on that day. He, thus, submits that the allegation that the husband of the deceased was impotent is ( 10 ) unsustainable. He has also relied upon one more piece of evidence showing that her husband had been to Dr. Godbole for getting his semen examined. From this finding he tried to canvass that it is not a case, wherein the husband was wilfully refusing to have sex with the deceased and that the deceased was a hypersensitive woman. He further submits that the physical incapacity to have sex on some of the occasions with the wife cannot be said to be an act amounting to cruelty. He also placed reliance on the dying declaration available on record Exh.45, wherein the deceased has stated that she had poured kerosene on her person and set herself on fire because she was being treated with cruelty and harassed by her husband. It is stated in her dying declaration that she was being teased by her husband. The contents of the dying declaration were also appreciated by the lower Appellate Court who reached to the conclusion that the deceased had no grievance against accused No.1 and in her suicidal note deceased had mentioned that her family members were very good and had also mentioned that she was not happy with herself and that she herself was ( 11 ) responsible for her suicide. The Lower Appellate Court has appreciated that various notings made in the diary maintained by the deceased reached to the conclusion that the reason of suicide was incompatible marriage or a rather failure of marriage which can hardly bring the accused persons within the ambit of Sections 498-A, 306 read with Section 34 of the I.P.C. 17. With the aforesaid findings on record the lower Appellate Court was pleased to acquit all the accused persons. 18. Now, turning to the legal issue revolving around section 306 of I.P.C., which pertains to abetment of suicide, one has to observe that it is settled that word "abetment", which occurs in Section 306, is abetment within the meaning of Section 107 of I.P.C. Which reads as under: "107. Abetment of a thing - - A person abets the doing of thing, who - Firstly instigates any person to do that things; 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 ( 12 ) of that conspiracy, and in order to the doing of that things; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 2 : Explanation 2 : 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 facilitates the commission thereof, is said to aid the doing of that act. 19. That two terms, "instigates" and "intentionally aids "used in Section 107 of the I.P.C. would necessarily require mens rea on the part of the accused in order to hold him guilty for the offence of abetment of suicide under Section 306 of the I.P.C. Neither learned A.P.P. nor learned counsel for the applicant were able to show any evidence on record nor could one find any evidence from the record of the case. As is clear from dying declaration made by the deceased she took this step of commission of suicide as she was fed up of her life. The evidence indicates that incapacity on the part of the husband of the deceased had driven her to commit suicide. This by itself cannot be said to be sufficient to make out charges of abetment of suicide under Section 306 of the I.P.C. as rightly held by the lower Appellate Court. ( 13 ) 20. In a recent judgment delivered in the case of Sanju @ Sanjay Singh Sengar v. State of M.P. Sanju @ Sanjay Singh Sengar v. State of M.P. Sanju @ Sanjay Singh Sengar v. State of M.P. AIR 2002 SC 1998, the Apex Court AIR 2002 SC 1998, the Apex Court AIR 2002 SC 1998, the Apex Court had occasion to interpret section 306 read with section 107 of the Indian Penal Code. The Apex Court held that presence of mens rea is a necessary concomitant of instigation which was ingredient of the offence within the meaning of section 107 firstly of the Indian Penal Code. The facts of the case were, in fact, more extreme where the accused had expressly told the deceased to go and die. The Apex Court held that even telling the deceased to go and die would not constitute the ingredient of "instigation". In that case, a suicide note was also left by the deceased showing that he was in great stress and depression. The wife of the deceased had made a statement that deceased was a frustrated man and was in the habit of drinking. The Apex Court in that case, in fact, quashed the charge-sheet on the ground that ingredients of abetment were totally absent. 21. It would also be profitable to make reference to the judgment of the learned single ( 14 ) Judge of this Court in the case of Satish Narayan Satish Narayan Satish Narayan Ate v. State of Maharashtra 1997 Cri.L.J. 935. Ate v. State of Maharashtra 1997 Cri.L.J. 935. Ate v. State of Maharashtra 1997 Cri.L.J. 935. The facts of that case were that the accused was having a love affair with the deceased girl. The marriage was settled between them but the accused did not turn up at the time of marriage and, therefore, victim girl committed suicide. It was held that it was not proved that the accused intended by not marrying that she should commit suicide or that she was likely to commit suicide. That act of committing suicide was an independent act of deceased for committing suicide. 22. Having said so, it is true that the jurisdiction of this Court while entertaining criminal revision is limited which is recognised by this Court and also by the Apex Court in number of decisions. Readily available decision is in the case of C.P.Fernandes v. Union C.P.Fernandes v. Union C.P.Fernandes v. Union territory of Goa, Daman & Diu AIR 1977 SC 135, territory of Goa, Daman & Diu AIR 1977 SC 135, territory of Goa, Daman & Diu AIR 1977 SC 135, wherein the Apex Court has ruled that the Court should not interfere with the trial Court view unless found to be unreasonable or perverse. If two views are possible on the basis of evidence on record, the higher Court should not disturb ( 15 ) the findings of the trial Court. The same principle is reiterated in the case of Varghese Varghese Varghese Thomas v. State of Kerala, 1977 SC 701. Thomas v. State of Kerala, 1977 SC 701. Thomas v. State of Kerala, 1977 SC 701. 23. This Court not being a Court of appeal cannot reappreciate and substitute its view in exercise of revisional jurisdiction. Revisional jurisdiction is not only limited in scope but discretionary. The Court interferes in the revisional jurisdiction only in exceptional cases of flagrant miscarriage of justice as held by Apex Court in the case of State of Rajasthan v. State of Rajasthan v. State of Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC 1895. Gurucharandas Chaddha, AIR 1979 SC 1895. Gurucharandas Chaddha, AIR 1979 SC 1895. No such case is made out by the applicant. 24. In the light of the law laid down by the Apex Court, if one turns to the evidence, it is not possible to come to the conclusion that the impugned order is perverse or that the Court below has committed any illegality in appreciating the evidence so as to misdirect itself to acquit accused persons. In my opinion, the evidence has been rightly appreciated by the Court below. The view taken is a reasonable and ( 16 ) possible view, which can very well be sustained on the basis of evidence available on record. In the above view of the matter, no case is made out to interfere with the impugned order. 25. In the result, revision application is dismissed with no order as to costs. (V.C. DAGA,J) (V.C. DAGA,J) (V.C. DAGA,J)