1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 607 OF 2008 Appasaheb s/o Rangnath Somwanshi, age: 35 years, Occ: Agril., R/o Maski, Tq. Vaijapur, District Aurangabad. Appellant Versus The State of Maharashtra Respondent Mrs.Vaishali A. Shinde, advocate (appointed) for the appellant. Mrs.R.R.Mane, A.P.P. For Respondent-State. CORAM: R.M.BORDE, J. DATE : 19th June, 2009. ORAL JUDGMENT: 1 Accused-appellant, being aggrieved by the judgment and order of conviction and sentence recorded by Assistant Sessions Judge-4, Aurangabad in Sessions Case No.113/2008 on 20.09.2008, has approached this Court by way of presenting instant appeal. 2 Accused – appellant was prosecuted for commission of offence punishable under Sections 498A and 306 of the Indian Penal Code. According to the prosecution, Tarabai d/o Raosaheb Thorat was given in marriage to accused and marriage was solemnized on 11.07.2007. On 11.12.2007, one Ramrao Anandrao Somwanshi, resident of village 2 Maski, Tq. Vaijapur, lodged information with police that dead body of wife of Appasaheb Rangnath Somwanshi is found floating in the well situate in the agricultural land belonging to Gulabrao Somwanshi. Husband of deceased i.e. accused herein also identified the dead body as that of his wife. Initially police recorded accidental death and initiated inquiry under Section 174 of the Criminal Procedure Code. While recording statements of witnesses, it was disclosed by sisters of deceased that accused was suspecting character of his wife and he used to illtreat her. Sisters of deceased also stated in their statements recorded by the police that as a result of illtreatment meted out to Tarabai, she had committed suicide by jumping into the well. The First Information Report, in that regard, was lodged by Rafiq Chandsaheb Shaikh, Assistant Police Inspector of Police Station Virgaon on 13.12.2007. After completing investigation, police presented charge sheet in the Court of Judicial Magistrate, First Class, Vaijapur. The case, being triable by the Court of Sessions, was committed, in view of committal order passed on 16.04.2008. At the trial before Court of Sessions, accused pleaded not guilty to the charge and claimed to be tried. Defence of the accused is of denial. 3 The prosecution, in order to bring home guilt of the accused, has examined in all four witnesses. After recording evidence of prosecution witnesses and statements of accused, learned trial Judge came to the conclusion that the prosecution has established its case beyond reasonable doubt and as such, on conviction, accused was sentenced to suffer simple imprisonment for eight years and to pay fine of Rs.3000/-, in default, to suffer simple imprisonment for three months, for offence punishable under Section 306 of I.P.C. Accused is also convicted 3 for the offence punishable under Section 498A of I.P.C. and is sentenced to suffer simple imprisonment for one year and to pay fine of Rs.1000/-, in default, to suffer simple imprisonment for one month. The Court issued a direction that the substantive sentence of imprisonment shall run concurrently. 4 I have heard arguments advanced by Mrs.Vaishali shinde, learned Counsel appointed to represent appellant-accused and Mrs.R.R.Mane, learned Assistant Public Prosecutor for the State. 5 P.W.1 Laxman Raosaheb Thorat is the brother of deceased Tarabai. He is resident of Virgaon, Tq.Vaijapur, District Aurangabad. He has stated in his deposition that marriage of deceased was solemnized with accused on 11.07.2007 and thereafter she went to reside with her husband for cohabitation. It is stated by the witness that accused and his wife were residing in the agricultural land belonging to the accused. Deceased had paid visits to Virgaon on the occasion of Rakhi Pornima and Diwali. On these occasions, it is stated that, deceased disclosed to the witness that accused is causing harassment and illtreating and beating her on account of suspicion as regards her character. Deceased also stated to have made complaint against the accused in respect of his not providing grocery articles and thereby putting her to starvation. The witness is stated to have advised his sister that after few days everything will be all right and she should bear for some time. P.W.1 has further stated that his sister had committed suicide by jumping into the well and the act of her committing suicide is as a result of illtreatment and harassment meted out to her by her husband. It has also been stated by the witness 4 that such a disclosure was made to himself (P.W.1) as well as his wife and sister Meerabai. During the cross examination, the witness has stated that the accused is an agriculturist and was residing in the agricultural land belonging to him. He used to grow cash crops like sugarcane, chilly, etc. His sister Tarabai had suffered disability due to polio. Her right leg was affected. Accused knowing all these things has voluntarily got married with deceased Tarabai. He has also further stated that he has stated to the police in respect of beating extended to deceased, but cannot assign any reason as to why same is not recorded in his police statement. A suggestion was given to the witness that as his sister was lame, she fell down while taking water from the well, which has been denied by the witness. The witness also denied the suggestion to the effect that he got annoyed due to his sister’s death and, therefore, he is making false complaint against the accused. 6 The evidence of P.W.2 Meerabai, who is sister of deceased Tarabai as well as evidence of P.W.3 Sangita wife of Laxman (P.W.1) is also identical in character. All the three witnesses stated same story without any deviation therefrom. There are no particulars in respect of illtreatment meted out to the deceased. There are also no details in respect of accusations made by the husband i.e. accused against his wife in respect of her character. The allegations contained in the testimony of all the three witnesses are quite general in nature. Apart from this, P.W.3 Sangita has specifically admitted in her cross examination that whenever deceased Tarabai used to visit her house, accused used to take her back. All her relations i.e. her brother and sister-in-law used to send her voluntarily along with her husband. Deceased was also voluntarily going 5 back with the accused. Thus, there was no hesitation on the part of brother or sisters or P.W.3 Sangita while sending deceased back with her husband. It is to be noted that deceased used to reside with her husband at village Maski, whereas her brother, and sister as well as brother’s wife (P.W.3) used to reside at village Virgaon. Had there been any disharmony in the relations between husband and wife and had there been any disclosure to that effect, the witnesses i.e. P.W.1 – brother of deceased and P.W.2 – sister of deceased would have definitely expressed their concern with the husband of deceased. It is evident on perusal of cross examination of P.W.3 Sangita that no such attempt was made nor it was found necessary for the witnesses to question husband of the deceased in respect of his conduct. As I have stated above, allegations against accused, husband of deceased Tarabai, are quite general in nature and testimony of all the three witnesses is strikingly similar. In these circumstances, therefore, in the absence of any other evidence and in the absence of any specific material particulars in respect of alleged illtreatment by the husband, it is quite unsafe to place reliance on the testimony of these witnesses so as to draw an inference about the guilt of the accused as regards commission of offence punishable under Section 498A of I.P.C. 7 That, so far as allegation in respect of abetting commission of suicide is concerned, evidence of the prosecution falls short of drawing an inference that the act alleged against the accused amounts to instigation to commit suicide or the said act amounts to intentional aid by act or illegal omission, the doing of that thing i.e. suicide by deceased. Section 107 of the Indian Penal Code defines abetment. The offence of 6 abetment is a separate and distinct offence provided in the Act. A person abets doing of a thing (1) who instigates any person to do that thing; or (ii) that he intentionally aids by any act or illegal omission, the doing of that thing. In the instant matter, evidence led by the prosecution falls short of drawing an inference in respect of instigation by the accused to his wife for committing the act of suicide or that there was any intentional aid by his act or illegal omission for committing suicide. It has been observed by the Apex Court, in paragraphs 8 and 9 of the judgment, in the matter of Sohan Raj Sharma Vs. State of Haryana, reported in 2008 AIR SC 3202: “8 Abetment involves a mental process of instigating 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 of IPC. 9 In State of West Bengal Vs. Orilal Jaiswal (AIR 1994 SC 1418) 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 her 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 7 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.” 8 On examination of factual scenario in the case, allegations levelled against the accused fall short of leading to an irresistible conclusion that, such act constitute instigation to the deceased to commit suicide or amounts to intentional aid to commit the act of suicide. Evidence of the witnesses, who are brother, sister and sister-in-law of deceased, is deficient in material particulars as regards illtreatment meted out to deceased by the accused or as regards suspicion raised by the accused in respect of character of deceased. It is also to be taken note of that version of all the three prosecution witnesses is strikingly similar and in fact is reproduction of the testimony of each other. It does appear that as the incident of suicide had happened within a short span after solemnization of marriage, the prosecution witnesses, who are blood relations of deceased, are making allegations against the husband. The defence suggested to P.W.1 Laxman, to the effect that considering the deformity suffered by deceased due to polio, deceased might have fallen in well while taking water, also appears to be probable. 9 Taking stock of prosecution evidence, definite conclusion as against the accused cannot be drawn in respect of his guilt. Learned Judge of the trial Court has committed error in appreciating the evidence of prosecution witnesses and drawing an inference as regards guilt of the accused. 8 10 For the reasons set out above, appeal of the appellant- accused deserves to be allowed and same is accordingly allowed. The judgment and order of conviction and sentence, recorded by Assistant Sessions Judge-4, Aurangabad, in Sessions Case No.113/2008 on 20.09.2008, stands quashed and set aside. Appellant – accused Appasaheb Rangnath Somwanshi is acquitted of the charge levelled against him. Accused – appellant be set at liberty, if not required in connection with any other crime. 11 Learned advocate Ms.Vaishali A. Shinde is appointed as amicus curiae to represent the appellant in this matter. Fees payable to the learned Counsel is quantified at Rs.5000/- (Rs.Five thousand). (R.M.BORDE) JUDGE ******* adb/criappeal60708