1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 114 OF 1998 Haridas s/os Digambar Mane age 23 years, occup.labour, r/of Hangara,Taluka Udgir, District Latur. ... Appellant versus The State of Maharashtra ... Respondent ----- Shri B.R.Warma, Advocate, for appellant-accused. Shri B.V. Wagh, A.P.P. for the Respondent-State. ----- Coram : P.R.Borkar,J. Date : 18/01/2010. ORAL JUDGMENT 01. This is an appeal preferred by original accused who is convicted by the learned Additional Sessions Judge, Latur, in Sessions Case No.167 of 1996 decided on 20.3.1998 of the offences punishable under 2 Sections 498-A and 306 of the Indian Penal Code. For offence punishable under Section 498-A of I.P.C., the appellant is sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.500/=, in default, to suffer further rigorous imprisonment for one month. For offence punishable under Section 306, the appellant is sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default, to suffer further rigorous imprisonment for two months. 02. It is no more disputed that the deceased Mahananda had married the appellant six months before the incident of her consuming insecticide (thymite) on 19.9.1996 at village Hangarga, as a result of which she died on 23.9.1996 in the Government Hospital, Ambejogai. As per the complaint (Exhibit 9) lodged by PW-1 Dnyanoba Bhimrao Biradar, the father of Mahananda, after marriage, Mahananda went to reside with the appellant. About 1-1/2 months prior to the incident, she was beaten by the appellant and left at the house of PW-1 Dnyanoba. When Mahananda was asked by her parents why there was dispute between her and her husband and why he was beating her, Mahananda disclosed that her husband used to say that she was 3 not good looking girl and that she did not know cooking and on that count he used to ill-treat and threaten her that he would remarry. At that time PW-1 Dnyanoba tried to persuade the appellant not to beat Mahananda and not to remarry, but without saying anything the appellant went away. It is said that thereafter on two occasions when Mahananda alone was at her parent's house and they were not present in the house, the appellant came there and demanded divorce from Mahananda. He even threatened that if she did not consent for divorce, he would take her in a jeep and obtain divorce from her forcibly. When parents came, Mahananda told them about the incident. It is said that due to said threat, Mahananda took mental tension and consumed poison as stated above which resulted into her death. The complaint was registered at the police station. Police drew inquest panchanama. Post mortem was also performed. Police also recorded statements of various witnesses and did usual investigation and sent charge-sheet to the court. 03. Prosecution, in all, examined five witnesses and accused examined his brother Govind as defence witness. Govind stated that Mahananda wanted the 4 appellant to come and live at her parental house. He also stated that at the instance of the appellant, he had gone twice to bring back Mahananda, but she was not ready to live in village with appellant and, therefore, he had to come back alone. 04. PW-1 Dnyanoba and his wife PW-4 Kamlabai are the two main witnesses on the point of cruelty to deceased Mahananda and commission of suicide by her. PW-1 Dnyanoba mainly deposed in terms of his complaint (Exh.9) which is reproduced above. He stated that 1-1/2 months before death of Mahananda, the appellant had brought and left her at his house. Thereafter, PW-1 asked Mahananda why she was being ill-treated by the appellant whereupon she said that appellant was disliking her and wanted to remarry. Mahananda lived with her parents. PW-1 Dnyaneshwar attempted to persuade the appellant to lead marital life with Mahananda. However, the appellant was not ready and was insisting Mahananda for divorce. It is said that at one time when PW-1 Dnyanoba was not at his house, the appellant came and threatened Mahananda to give him divorce and if she refused, he would take her in a jeep and obtain divorce from her forcibly. Because of this, Mahananda was mentally disturbed and she 5 consumed insecticide `thymite`. At that time, PW-1 Dnyanoba was in the land. His wife came there and told him about the incident. He came home and took Mahananda to Udgir for medical treatment. Doctor treated Mahananda and advised to take her to the Govt. hospital at Ambejogai. Accordingly, PW-1 took Mahananda to Ambejogai and admitted her in the Govt. Hospital, but after two days she expired. 05. In this case, there is no independent evidence other than that of parents of deceased Mahananda. In cross examination, PW-1 Dnyanoba admitted that the appellant was frequently visiting Pudale Mala where PW-1 Dnyanoba used to reside. For about one to two months after marriage, the appellant treated Mahananda well. Appellant is a labourer working at a distance of 5 to 6 kilometers from the residence of PW-1 Dnyanoba. In further cross examination, it is also admitted that the appellant alone came to leave Mahananda at the house of her parents. At that time time, PW-1 Dnyanoba and PW-4 Kamlabai had no opportunity to see the appellant. At about 7 to 7.30 p.m. PW-1 came home and saw Mahananda at his house. He asked Mahananda how she came. One hour thereafter, wife of PW-1 Dnyanoba came home. 6 Mahananda told that appellant had brought and left her. 06. However, PW-4 Kamlabai, mother of Mahananda, in her cross examination has admitted that when the appellant last came to reach Mahananda at their house, there were talks between the appellant and herself. At that time, appellant stayed at their house for a night. Thereafter, 4-5 times the appellant came to their house, but he never stayed at their house on those occasions. They tried to give better treatment to the appellant, he being son-in-law, but he refused to take meal etc. at their house. PW-4 Kamlabai also admitted that even Govind, the brother of the appellant, had come twice to their house. She, however, denied that Govind had come for settlement. It may be noted that there was no other reason for Govind to visit the house of PW-1 Dnyanoba. PW-4 Kamalabaiadmitted that prior to marriage, the appellant had not seen Mahananda, but Mahananda was knowing cooking. 07. So, as per prosecution evidence, the reason for Mahananda to commit suicide was the threat given by the appellant that if she refused divorce, he 7 would take her in a jeep and obtain divorce forcibly from her. It is argued by Shri B.R.Warma, learned Advocate on behalf of the appellant-accused that the admissions given by PW-1 Dnyanoba and PW-4 Kamlabai clearly show that it was the appellant who was again and again coming to their house. Even defence witness Govind had gone twice to the house of PW-1 Dnyanoba. If really divorce was desired by the appellant, ordinarily he would ask PW-1 Dnyanoba who was head of the family, to tell Mahananda to give him divorce. It is not likely that behind the back of PW-1 Dnyanoba and PW-4 Kamlabai, the appellant would give such threat. Assuming that such threat was given by the appellant, learned Advocate for the appellant argued, it is quite likely that such threat might have been given just to persuade Mahananda to come and live with him. In any case, even if such incident had taken place, the same does not amount to abetment to commit suicide. 08. So far as alleged beating by the appellant to Mahananda is concerned, PW-1 Dnyanoba in his cross examination has stated that he had no opportunity to meet the appellant, when he last came to reach Mahananda at his house, whereas PW-4 Kamlabai said 8 that not only they met the appellant, but the appellant stayed for whole night at their house and there is specific admission to that effect and this admission falsifies the case of PW-1 Dnyanoba that Mahananda was left at his house when they were not present in the house. Dnyanoba also stated in his cross examination that he had not seen injuries on the person of Mahananda, but PW-4 Kamlabai did say that there were signs of beating, but her husband had not seen the same. It is obvious that those injuries not serious in nature, else PW-1 Dnyanoba would have immediately come to know about the same and would have given medical treatment to Mahananda. In this case, no dying declaration of Mahananda could be recorded as she had become unconscious because of insecticide and as a result thereof, her condition went on worsening. So, there is only evidence of parents viz. PW-1 Dnyanoba and PW-4 Kamlabai. 09. In the case of Sukhdeo s/o Dagdu Thakre vs. The State of Maharashtra, 1985 ILR 2086, this court considered when the presumption under Section 113-A of the Evidence Act can be drawn and what is understood as "cruelty" under Section 498-A of IPC. It is observed:- 9 " The next question to be considered is even assuming that the deceased Mathura committed suicide, for raising presumption under Sec.113-A, it is necessary for the prosecution to prove that she had committed suicide because she was subjected to ill treatment by the accused no.1 as defined under S.498-A I.P.C. At this stage, I may refer to the concept of cruelty as given in Sec.498-A I.P.C The explanation to Sec.498- A defines cruelty. Under clause (a) which is relevant for the purpose of this case, the cruelty means any wilful conduct which is of such a nature which is likely to drive a woman to commit suicide or to cause grave injury or danger to the life, limb or health (whether mental or physical). It is clear from the said definition that mere quarrel or ill treatment would not be sufficient to level the charge of cruelty within the meaning of the explanation to Sec.498-A. The degree of the conduct of the husband must be such that it would drive the wife to commit suicide or would cause grave injury or danger to her life, limb or health." 10. In the present matter, it is not the prosecution case that there was any unlawful demand by the appellant. Therefore, the case necessarily fall 10 under clause (a) of explanation to Section 498-A IPC which is to the effect that the cruelty means any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman. So, demand of divorce by appellant from Mahananda or threat by him that if she refused divorce he would take her in jeep and obtain divorce from her forcibly, does not necessarily mean that there was wilful conduct on the part of the appellant of such a nature as was likely to drive Mahananda to commit suicide or cause grave injury or danger to her life, limb or health. If we consider the probability of the case, it is clear that after Mahananda came to live with her parents, not only the appellant visited her time and again, but even his brother also visited the house of parents of Mahananda with a view to bring Mahananda back. 11. I may also refer to the case of Netai Dutta vs. State of West Bengal AIR 2005 SC 1775 in which the Supreme Court considered Section 306 of I.P.C. and in paragraph 5 observed that the parameters of the `abetment' have been stated in Section 107 of the Indian Penal Code which says that a person abets the 11 doing of a thing, who instigates any person to do that things; or 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, or the person should have intentionally aided any act or illegal omission. In present case, it is not that the appellant intended that Mahananda should commit suicide and, therefore, appellant merely telling her that if she did not give divorce, he would obtain the same forcibly does not would not amount to wilful conduct so as to likely to drive or compel Mahananda to commit suicide. 12. A reference can usefully be made also to the case of Amalendu Pal @ Jhantu vs. State of West Bengal, All MR (Cri.) 3755 (SC) and more particularly to paragraphs 13 and 15 which read thus:- "13. The legal position as regards Section 306, IPC which is long settled was recently reiterated by this Court in the case of Randhir Singh vs. State of Punjab, (2004) 13 SCC 129:[2004 ALL MR (Cri.)3407 (SC)] as follows in paras 12 and 13:- "12. Abetment involves a mental process of instigating a person or 12 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. vs. 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 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 13 of suicide should be found guilty." 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 there 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. " 13. Having regard to the legal position as above, in my considered opinion, there was no role or conduct on the part of the appellant instigating or intentionally aiding Mahananda to commit suicide. Necessary elements are not present. There is no sufficient evidence to show that the alleged cruelty was of such a nature as to attract Section 498-A or 14 Section 306 of IPC. Therefore, considering the totality of the case, this criminal appeal against conviction must succeed. 14. In the result, Appeal is allowed. The judgment and order of passed by the learned Additional Sessions Judge, Latur, on 20.3.1998 in Sessions Case No.167 of 1996 holding the appellant guilty of the offences punishable under Sections 498-A and 306 of the Indian Penal Code, is hereby set aside. Bail bond executed by the appellant stands cancelled. Appeal is accordingly disposed of. pnd/criapl114.98 (P.R.BORKAR, J.) 15