1 APEAL 906 of 1990 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.906 OF 1990 1. Shri Vijay Rama Satvi, Age about 30 years, Occu – Agriculturalist and Labourer 2. Sau.Sitabai Rama Satvi, Age about 55 years, Occu – Household, Both are Indians Inhabitant, residing at Village Khulal, Tal. Wada, Dist. Thane. ..... Appellants V/s. The State of Maharashtra ..... Respondent ALONG WITH SUO MOTU PETITION NO.1 OF 1991 The State of Maharashtra ..... Appellant V/s. Vijay Rama Satvi and Anr. ..... Respondents. Mr.Arfan A.E.I.Sait, for the appellants. Mrs.A.A.Mane, A.P.P., for the State. CORAM :P.B.MAJMUDAR & ANOOP V. MOHTA, JJ. DATE : 27TH AUGUST, 2010 ORAL JUDGMENT : (PER P.B.MAJMUDAR, J.) : - 1. This appeal is directed against the judgment and order dated 19th December, 1990 passed by the learned 8th Additional District and Sessions Judge, Thane, in Sessions Case No.323 of 1987, by which the 2 APEAL 906 of 1990 learned Sessions Judge has convicted both the appellants under Section 498(A) read with Section 34 as well as under Section 306 read with Section 34 of Indian Penal Code ( for the sake of brevity, hereinafter referred to as IPC). By the impugned judgment and order, the learned Sessions Judge convicted the appellant/accused No.1 under Section 498(A) read with Section 34 of IPC and sentenced to suffer one year rigorous imprisonment and to pay a fine of Rs.250/- and in default, to suffer one month rigorous imprisonment. The appellant/accused No.1 is also convicted under Section 306 read with Section 34 of the IPC and was sentenced to suffer one year R.I. And to pay a fine of Rs.250/-, in default of which, the appellant/accused No.1 shall suffer one month R.I. 2. The appellant No.2 who was the original accused No.2 in the above Sessions Case, was also convicted under Sections 498(A) read with Section 34 of IPC and sentenced to suffer R.I. for one month and to pay a fine of Rs.250/-, in default, to suffer R.I., for one month. She was also convicted under Section 306 read with Section 34 of IPC and sentenced to suffer R.I. for one month and to pay a fine of Rs.250/-, in default of payment of fine, to suffer R.I., for one month. The substantive sentences were directed to run concurrently. 3. During the course of hearing, the learned counsel appearing for the appellants has pointed out to the Court that the 3 APEAL 906 of 1990 appellant/accused No.1 Mr.Vijay Rama Satvi, has died. We accordingly directed the learned APP to make an inquiry about the same and today, she has confirmed the said fact that the appellant No.1 has already died. In this connection, she has placed on record a fax message which she has received from the concerned police station. The said fax massage is taken on record and marked ‘X’ for identification. In view of the above factual position, the above appeal stands abated qua appellant/accused No.1 Mr.Vijay Rama Satvi. 4. Now, the above appeal is required to be decided regarding appellant/accused No.2 only. At the time of hearing of the above appeal, this Court has also issued notice to the accused for enhancement of the punishment, bearing Suo Motu Criminal Petition No.1 of 1991 and the same is also taken for hearing with the present appeal. 5. It is the case of the prosecution that one Rama Shankar Satvi was staying at Village Khutal, Taluka Wada, along with his wife Sitabai and son Vijay and with deceased Ujwala and their children. The deceased Ujwala married with accused No.1 Vijay prior to about six years from the date of the incident. It is the case of the prosecution that initially for about 1 and ½ years since their marriage, the accused No.1 and the deceased, were staying happily. Subsequently, the accused No.1 started beating the deceased and was also subjected to illtreatment and 4 APEAL 906 of 1990 cruelty. It is also the case of the prosecution that the accused No.2 also treated the deceased with cruelty. The deceased used to complain about the said illtreatment to her brother Laxman Balu Mali and Mother Gangabai Mali and brother-in-law Bhaskar Balu Komb. As per the case of the prosecution, on 15-04-1986, the deceased Ujawala left the house for doing the labour work, but she did not return in the evening. Thereafter, her father-in-law i.e. Shankar, tried to search her in a nearby area and ultimately found that the deceased committed suicide by hanging herself at a tree. He thereafter, informed the police officer of at Wada Police Station. Mr.Krishna V. Patil (PSI) made entry in the register as an accidental death and thereafter, went to the scene of the offence and removed the deadbody from the tree. Inquest panchanama was prepared. Panchanama of scene of offence was also prepared, which is at Exh.11. The cloths of the deceased was also attached by drawing panchanama at Exh.17. The deadbody was thereafter sent to the hospital for post- mortem and Dr.Waran, conducted the post-mortem. PSI Patil recorded the statements of witnesses and it was found that the deceased committed suicide as she was subjected to cruelty by the accused Nos.1 and 2. A complaint was accordingly lodged vide Exh.32 against the aforesaid accused. Offence was registered at C.R.No.I-41 of 1986 under Section 498(A) and 306 read with Section 34 of IPC. Subsequently, both the 5 APEAL 906 of 1990 accused came to be arrested. After completion of investigation, chargesheet was submitted in the Court of J.M.F.C., who in turn, committed the case to the Court of Sessions for trial. 6. On 08-06-1989, a charge was framed against both the accused under Section 498(A) and 306 read with Section 34 of Indian Penal Code. Both the accused did not plead guilty to the charges levelled against them. During the trial, on behalf of the prosecution, Mr.Rama Shankar Satvi, the father-in-law of the deceased, who gave first information to the Police, was examined as P.W.1. Mr.Laxman Balu Mali was examined as P.W.2, who was the brother of the deceased. Dr.Mohan Ramchandra Waran (P.W.3) was also examined by the prosecution, who had conducted post-mortem examination of the deceased. The mother of the deceased was examined as P.W.4 and the brother-in-law Mr.Bhaskar Balu Kom was examined as P.W.5. The sister of the deceased namely Ananta Balu Mali was examined as P.W.6. The investigating Officer Krishna Vithoba Patil, was examined as P.W.7 by the prosecution. The learned Sessions Judge by his impugned judgment and order dated 19-12-1990, came to the conclusion that both the accused are guilty for an offences punishable under Section 498(A) and 306 read with Section 34 of Indian Penal Code and accordingly awarded sentence, as stated above. 7. It is the aforesaid judgment and order of conviction, which 6 APEAL 906 of 1990 is challenged by both the accused by way of present appeal. As pointed out earlier, at the time of admitting the appeal, since the Court was of the opinion that sentence awarded by the learned Sessions Judge, is required to be enhanced, a notice was therefore, issued to both the accused to show cause as to why the sentenced awarded to them should not be enhanced. The said notice was subsequently numbered as Suo Motu Petition No.1 of 1991. 8. The learned counsel for the appellants vehemently submitted that the learned Sessions Judge has committed grave error in convicting the accused under Section 498(A) as well as 306 of Indian Penal Code. It is submitted by the learned counsel for the appellants that the marriage between the deceased Ujwala and the accused No.1, was solemnized prior to seven years from the date of incident and the deceased unfortunately was not willing to cohabit with the accused No.1 and she infact, dislike the accused No.1 from the beginning. It is submitted by the learned counsel for the appellants that from the evidence on record, it is clear that the deceased frequently used to go at her maternal house and was not willing to come and stay with the husband, but on the insistence of her parents, she used to go back at her matrimonial house. It is submitted by him that the deceased and accused belonging to a tribal community and in the said community, the husband gives dowry to a wife, 7 APEAL 906 of 1990 which fact was established in the evidence. The learned counsel for the appellants further submitted that it is not a ground where the deceased committed suicide on the ground of demand of dowry amount. It is submitted by him that there is absolutely no medical evidence brought on record by the prosecution to establish that the deceased was subjected to illtreatment or beating at the hands of either the accused No.1/husband or mother-in-law. The learned counsel for the appellant strenuously submitted that none of the neighbours of the vicinity have been examined by the prosecution to prove the fact that the deceased was subjected to illtreatment or beating by the accused Nos.1 and 2 in any manner. It is contended by him that as a matter of fact, the father-in-law of the deceased informed the police about the incident in question. He noticed the deadbody of his daughter-in-law which was found in hanging condition on a tree in the forest. It is submitted by the learned counsel for the appellants that when there is no evidence about any sort of illtreatment by the appellants, the learned Sessions Judge could not have convicted the appellants/accused for an offences punishable under Section 498(A) and 306 of Indian Penal Code. It is submitted by him that if really, it is the case of illtreatment on the part of the husband or mother-in-law of the deceased, at least during the period of 6-7 years of married life, the parents of the deceased could have lodged their protest in this behalf, 8 APEAL 906 of 1990 before the in-laws of the deceased or either by filing any police complaint. It is submitted by the learned counsel for the appellants that the deceased was not willing to stay with the accused No.1 husband and she was interested in getting divorce. But since the amount of dowry was required to be repaid by the parents of the girl, that they were insisting the deceased to go back to the matrimonial house and that is the reason why perhaps, she committed the said act of suicide. 9. The learned APP in her turn, supported the judgment of conviction recorded by the learned Sessions Judge. The learned APP contended that as per the evidence of the prosecution witnesses, especially from the evidence of the mother and brother, brother-in-law and sister of the deceased, it is clearly established that the deceased was subjected to illtreatment and was beaten by the appellant/accused, which ultimately resulted into this unfortunate incident. It is submitted by the learned APP that simply because no complaint has been filed regarding illtreatment or beating against the appellants/accused, it cannot be said that the factum of such illtreatment narrated by the deceased to her relatives, is unbelievable. The learned APP further submitted that since allegations was also made against the mother-in-law of the deceased, she has been rightly convicted by the learned Sessions Judge under Sections 498(A) and 306 of the Indian Penal Code and the sentence awarded to the 9 APEAL 906 of 1990 appellant/accused No.2 is required to be enhanced. 10. We have heard the learned counsel for the appellants and the learned APP for the State at some length and have also gone through the evidence on record. In order to find out whether the prosecution has established the guilt of the accused, it is necessary to weigh the evidence adduced by the prosecution. 11. The prosecution has examined Mr.Ramashankar Satvi (P.W. 1) at Exh.7. The said witness is a father of accused No.1 and husband of accused No.2. In para No.3 of his deposition, he stated that on the date of incident, the deceased had gone for work on the field. She did not return back in the evening. He therefore, went to see as to what has happened. When he reached at the field, he saw that the deceased has hanged herself to a tree and that she was not alive. He further deposed that he then returned to his house and narrated the said incident to her son and wife and gave complaint to the police. 12. In the cross-examination, the said witness has admitted that the deceased wife had not seen the accused No.1 at the time of their marriage. He however, admitted that the deceased used to stay for about 7-8 days and she used to go back to the parents house for a long time. The said witness further admitted that no quarrel had taken place between him, his son and his wife with the deceased in any manner. He further 10 APEAL 906 of 1990 stated that he had already complained to the parents of the deceased that she was not staying in the matrimonial house and that she had informed her parents that she did not like her husband. 13. The prosecution has also examined Laxman Balu Mali (P.W. 2) at Exh.9. He has stated that the deceased was his younger sister and that the marriage has taken place prior to 7 hears of the incident. He deposed that for initial 1 and ½ years, the deceased and her husband were staying happily and subsequently, the accused No.1 started beating her. He stated that the deceased had came to their house 4-5 days prior to the incident of hanging. On inquiry, the deceased told that she was beaten by accused Nos.1 and 2 and she will go back to her matrimonial house after she becomes all right. The said witness stated that after 2-3 days, the husband and sister-in-law of the deceased came to their house and took her back to their house. In the cross-examination, the said witness explicitly admitted that he is not having any medical certificate to show that the deceased was treated by Doctor. 14. Dr.Mohan Ramchandra Waran was examined as P.W.3. He stated that at the relevant time, he was Medical Officer at Rural Hospital, Wada. The said doctor had performed postmortem examination of the deceased. He has deposed that at the time of external examination, he found that the neck of the deadbody was stretched and face congested and 11 APEAL 906 of 1990 swollen. He also found that there were two abraded superficial injuries on the calf and the age of which were 6 to 12 hours. Except the same, there was no other injuries on the deadbody of the deceased. The cause of the death is stated to have been asphyxias with apoplexy due to hanging. 15. The mother of the deceased Gangabai Balu Mali was examined as P.W.4 by the prosecution. In her evidence, she stated that prior to the 8 days of the incident, the deceased had been to her parental house and there was a swelling on her neck. On an inquiry, the deceased told that she was assaulted by her husband. She was complaining about the illtreatment at the hands of accused Nos.1 and 2. In the cross- examination, the said witness admitted that the accused No.1 gave two mounds of paddy as dowry at the time of marriage. 16. The sister of the deceased Smt.Ananta Balu Mali was examined as P.W.6. She also in her deposition, reiterated the fact that prior to 8-9 days of the incident, the deceased came to their house and stated that she was badly beaten by her husband. In her cross- examination, she admitted that they were not permitting the deceased to take divorce with the accused No.1. The prosecution has also examined Mr.Krishna V. Patil (P.W.7) at Exh.21, who has registered the FIR. 17. On the basis of the evidence on record, the learned counsel 12 APEAL 906 of 1990 for the appellants submitted that so far as the surviving accused is concerned, there is absolutely no evidence worth the name to suggest that the deceased was subjected to any illtreatment at the hands of the said accused. In this connection, it is required to be noted that the deceased and her husband i.e. original accused No.1, were residing happily for about 1 and ½ years since their marriage. There is nothing in the evidence to suggest that at the time of incident, by which time seven years have passed since the marriage of the deceased and the accused No.1, any grievance/protest in any manner was put forth by the parents of the deceased with the parents of the husband in any manner. It is required to be noted that on behalf of the appellant/accused, it is suggested by the learned counsel that since the deceased wife did not like the husband, she often used to go to her parent’s place. The fact that the deceased wife used to go to her parents house frequently, can be said to have been established from the evidence on record. If for such a long period about of five years, the deceased was subjected to cruelty or illtreatment, at least it is expected from the parents of the girl to raise this issue with the parents of the husband or at least such things would have been narrated to other caste community people. It is surprising to note that the prosecution has not examined any neighbours, who could have deposed this aspect, in case the deceased was subjected to cruelty for 5-6 years, as the case may 13 APEAL 906 of 1990 be. The distance between matrimonial house and her parental house is about six kilometers. If any such illtreatment of such a nature had taken place, at least, the nearby neighbours residing in the adjoining houses, normally would come to know about the said aspect. However, no neighbours have been examined to prove the said fact. Dr.Mohan R. Waran (P.W.3) in his evidence, has also clearly stated that there was no other external injuries on the deadbody of the deceased except abrasion on the calf, which according to the learned counsel for the appellants, might have been caused when the deceased tried to hang herself by taking rope in her hand. 18. As pointed out earlier, from the evidence on record, it is clear that no dowry amount was demanded by the accused from the deceased. On the contrary, at the time of marriage, infact the dowry was paid by the husband to the deceased wife. It is pertinent to note that for more than six years, no protest was lodged, nor any complaint was filed by the parents of the deceased in connection with the alleged illtreatment to the accused. Now in this appeal, the Court is required to consider the case of appellant/accused No.2 i.e. mother-in-law only. In our view, there is absolutely no evidence on record to show that the appellant/accused No.2 treated her daughter-in-law with cruelty or illtreated her in any manner. As a matter of fact, as per the evidence of the prosecution witnesses, the 14 APEAL 906 of 1990 deceased when she last visited her parental house, she made a complaint about illtreatment, which was attributed to the husband and she has not stated anything about her mother-in-law in this connection. Considering the evidence on record, in our view, it is not possible for us to believe that the deceased was subjected to illtreatment at the hands of mother-in-law i.e. accused No.2 or that she had beaten the accused, by which the deceased wife was compelled to commit suicide. 19. The learned counsel for the appellants, in order to substantiate his case that this is not a case in which Section 306 could have been attracted in any manner, has relied upon a decision of the Supreme Court in the case of Chitresh Kumar Chopra Vs. State (Govt. of NCT of Delhi), 2010 ALL MR (Cri) 1331 (S.C.). The relevant observations of the Supreme Court in this behalf, reads as under : - “12. As per the Section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the going 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 to Section 107 states that any willful misrepresentation or willful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 of the IPC”. 15 APEAL 906 of 1990 20. Considering the aforesaid decision, in our view, there is nothing on record to suggest that the appellant/accused No.2 was in any way instrumental in abetting the offence under Section 306 of IPC. There is nothing on record to suggest the so-called beating or illtreatment of such extent, that ultimately compelled the deceased to take such a extreme step of committing suicide. 21. In the case of Gangula Mohan Reddy V/s. State of Andhra Pradesh, in Criminal Appeal No.1301 of 2002, the Supreme Court held as under : - “13. Learned counsel for the appellant has placed reliance on a judgment of this Court in Mahendra Singh & Anr., V. State of M.P., 1995 Supp.(3) SCC 731. In the case of Mahendra Singh, the allegations levelled are as under : “My mother in law and husband and sister in law (husband’s elder brother’s wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in- law. Because of these reasons and being harassed, I want to die by burning” 14. The Court on aforementioned allegations came to a definite conclusion that by no stretch the ingredients of abetment are attracted on the statement of the deceased. According to the appellant, the conviction of the appellant under Section 306 IPC merely on the basis of aforementioned allegation of harassment of the deceased is unsustainable in law. 20. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. 16 APEAL 906 of 1990 Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. 21. 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 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.” 22. On the appreciation of the evidence which the prosecution has led in the present case, in our view, it is not possible for us to accept the say of the prosecution that the mother-in-law of the deceased, can be said to have committed an offence punishable under Section 306 of Indian Penal Code in any manner. As discussed earlier, even as per the evidence of the prosecution witnesses, the deceased made a grievance about the beating or illtreatment and which was attributed by her to her husband at the time when she met her parents last time prior to the incident. There is nothing in the evidence to suggest as to what type of injury was caused to the deceased in connection with the alleged act of illtreatment attributed