- 1 - 638sj rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 638 OF 1995 Kailas Shivaji Ahire age 26 years, occupation: Government Servant,HOrticulture Dept,residing at Savta Nagar, N-41, CIDCO, Nasik ..Appellant (Orig.Accd no.1) vs The State of Maharashtra.. Respondent Mr.S.A.Ingawale for Appellant Mr.S.A.Shaikh APP for Respondent-State CORAM: N.D.DESHPANDE, J RESERVED ON: 21.3.2011 PRONOUNCED ON: 1.4.2011 ORAL JUDGMENT 1. This Appeal impugns the correctness of the judgment and order of conviction and sentence both dated 30th October 1995, passed by the IInd Additional Sessions Judge, Nasik in Sessions Case No.93 of 1995. - 2 - 638sj 2. By the impugned judgment, the Appellant alone was held guilty and convicted under section 306 of Indian Penal Code, abetting the commission of suicide and section 498-A subjecting a married woman to cruelty . Thus, appellant was sentenced to suffer R.I. for three years,fine of Rs.500/- i.d.R.I.for 6 months under section 306 IPC and for 2 years R.I./fine Rs.500/- i.d.R.I. 3 months under section 498-A of Indian Penal Code. Both the sentences to run concurrently. 3. Appellant/Accused was charged jointly along with his brother Sanjay (Accused no.2) mother, Sau.Hirabai (Accused no.3 both since acquitted therefore, the present appeal is preferred only by the Accused no.1 Kailas who is husband of the deceased Mangala who committed suicide on 9th March, 1995 Admittedly, prosecution have not challenged - 3 - 638sj the trial court judgment recorded in favour of accused nos. 2 and 3. The prosecution case can be briefly stated thus : 4. The deceased Mangala was the daughter of complainant Manohar More (PW 1) who was a cobbler residing at Tidke colony, Nasik and was running a shoe mart. Mangala got married with the appellant on 28th May,1993. At the relevant time, the appellant was gainfully employed as a clerk in Horticulture Department and posted at Dhadgaon District Nasik. After marriage and for some days he resided at Dhadgaon Taluka Kalwan jointly with his wife and thereafter he was transfered to Igatpuri. So he got a rented room premises in Savata Nagar, CIDCO, Nasik and started residing with Mangala. - 4 - 638sj 5. The alleged incident took place on 9th March,1995 in the house situated at Savata Nagar, Cidco, Nasik. Mangala admittedly committed suicide by consuming insecticide, a poisonous substance and was found dead in the house of the appellant when she was alone. Her husband had left the house for going to Igatpuri to attend his duty and appellant nos. 2 and 3 had gone to their relatives in the afternoon when accused returned home from his duty, he found the room was bolted from inside. The appellant/accused managed to open the door and found that Mangala was lying in a very serious condition. She was immediately removed to Civil Hospital, Nasik where she was declared dead. Immediately, a message was sent to the complainant-father of Mangala Manohar More (PW 1). The doctor on duty told him that she had expired due to - 5 - 638sj consumption of a poisonous substance. When the matter was reported to the police, they firstly recorded the inquest panchanama and took charge of the dead body of Mangala in Civil Hospital, Nasik vide A.D.No.18/95 at 3.25 p.m. It was sent for post mortem examination and Dr.Avatade and Dr.Khedgaonkar conducted the post mortem examination. On internal examination of the dead body, they found all the vital organs like brain, lyrinx,lungs, small intestines, large intestine liver, spleen were found congested. The Medical Officers preserved the viscera in two bottles. They opined that death of Mangala was due to poisoning. The viscera was sent to the Chemical Analyst. 6. On 10th March, 1995 at around 8.30 p.m. father of the deceased Manohar More (PW 1) lodged a complaint against the accused and - 6 - 638sj his in-laws namely brother and mother to the effect that intermittently Mangala used to come to the house of the complainant and used to tell him that her husband demanded monies and after returning home heavily drunk at night. He always used to beat her under the influence of liquor. On the basis of his complaint, offences were registered vide C.R.No.57 of 1995 under sections 306, 498-A read with section 34 of the Indian Penal code and investigation was carried out by API Adangale. As mentioned Head constable Kokate registered A.D.No.18/1995 at 3.35 p.m. initially on the same day of the incident. He visited the house of the accused in Savta nagar, Cidco, Nasik and recorded the spot panchanama in presence of panchas. While recording the spot panchanama two packets of seeds of Mahabij company were attached by police from the house of accused. The Investigating Officer recorded - 7 - 638sj statements of relatives of deceased Mangala and statements of neighbours of accused no.1 Kailash. He sent the attached tomato seed packets and viscera to Chemical Analyst office, Bombay. 7. Charge sheet was registered as R.C.C. No.132/95 in C.J.Magistrates Court under section 498-A,306 read with section 34 IPC. The learned Chief Judicial Magistrate then committed the case of accused to the Court of Sessions. The accused was arrested on 10th March, 1995 in the night. 8. During the course of trial, the prosecution examined the following prosecution witnesses namely : PW 1: Manohar Chintaman More PW 2: Kamlesh Sahebrao Thakare PW 3: Salim Rashid Pinjari PW 4: Haribhau Sahebrao Aher PW 5: Dada Tukaram Adangale - 8 - 638sj 9. During the course of arguments the defence did not dispute the cause of death of Mangala and the prosecution case of her suicide. It was also explained that the deceased had gone mentally weak and could not sustain trauma of first abortion which was followed by instant death of her newly born baby within two hours. These facts are established on record and therefore, for her suicide neither the appellant nor any other relatives should be held responsible. It is also stated that the accused and their family members suffered a lot and before they could come out of the tragedy they had to face this false and malacious prosecution. 10. I have gone through the relevant evidence recorded it this case so also the findings recorded by the learned trial - 9 - 638sj court. Although it is held that Mangala committed suicide at her own will by consuming highly poisonous substance Endosulfan and ended her life. The relevant issue would be whether for such act the appellant/accused husband would be held responsible for abetting suicide. It is seen that on the basis of the said evidence both accused nos. 2 and 3 as members of the family came to be acquitted as no case was proved against them and the appellant- husband alone was held guilty on the basis of certain material and mainly in the light of the presumption under section 113-A of the Indian Evidence Act which reads thus : 113-A Presumption as to abetment of suicide by a married woman- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that - 10 - 638sj her husband or such relative of her husband had subjected her to cruelty, the court may presume having regard to all the other circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. 11. It is seen that the trial court heavily relied on the presumption merely because, Mangala committed suicide during the period of 3 to 4 years from the date of her marriage. It must be seen that said presumption is stated as Court may presume and it is only allowed to be drawn in a proved case of cruelty to which she was subjected with regard to all other circumstances and not otherwise. There is no discussion found in the impugnedjudgment on this point as to whether the offence of cruelty is satisfactorily proved or not from independent evidence. 12. I have gone through the relevant - 11 - 638sj evidence of prosecution witnesses on the point of cruelty. There is no evidence to show that she was subjected to cruelty so also there is no reliable and convincing material proved against the accused. On the contrary, accused nos. 2 and 3 were acquitted by the trial court on both charges and it is further seen that there is no evidence of cruelty such as ill-treatment or harassment meted out to the deceased Mangala. 13. The oral testimony of complainant Manohar More (PW 1) and Haribhau Ahire (PW 5) also do not speak about specifically about harassment and physical cruelty of beating caused to deceased Mangala and all allegations are vague and cannot be accepted as true evidence. 14. In the cross-examination of Dada - 12 - 638sj Adangale API (PW 6) he admitted that in the statement of Haushabai More (PW 5) in her police statement did not tell him that at Dahiwad Mangala was beaten by her husband and in-laws and also did not tell that accused no.2 used to demand money for purchasing motorcycle to her daughter Mangala. Further, she also did not tell in her police statement that Mangala had told her while at Dahiwad that her husband used to consume liquor and used to beat her. And that Mangala was not prepared to go to her husband s house but was sent with her husband. There are contradictions in the above statement of Dada Adangale (PW 6). There is no specific evidence of assault or of harassment and cruelty either physical or of beating given to the deceased Mangala by the appellant. 15. Thus, it is further seen that th learned - 13 - 638sj trial court did not consider the explanation offered by the defence about her mental weakness which was mainly responsible for her own act of suicide and simply based conviction on the basis of presumption that she committed suicide within three years of marriage. Therefore, in the light of above discussion the trial court finding of conviction cannot sustain in law. To sum up, there is no evidence of cruelty and harassment established against the appellant-accused. sections 306 and 498-A of Indian penal code cannot sustain in law and the Appeal deserves to be allowed for the reasons stated above. Hence,I proceed to pass the following order : O R D E R 1. Criminal Appeal No.638 of 1995 is allowed. 2. The impugned judgment and order of conviction and sentence dated 30th October, 1995 is quashed and set aside and the Appellant/Accused no.1 is acquitted of the - 14 - 638sj offence under sections 306 and 498-A of Indian Penal Code. 3. Bail bond of Appellant-Kailas Shivaji Ahire who is on bail shall be cancelled. Fine amount if paid be refunded to him. N.D.Deshpande, J - 15 - 638sj - 16 - 638sj - 17 - 638sj - 18 - 638sj - 19 - 638sj - 20 - 638sj - 21 - 638sj - 22 - 638sj - 23 - 638sj - 24 - 638sj - 25 - 638sj - 26 - 638sj 4. On 28th May, 1993 the appellant got married with Mangala (the deceased) daughter - 27 - 638sj of complainant Manohar More (PW 1). At the time of marriage, the appellant was posted at Dhagaon serving in Horticulture Department as a clerk and residing at...........................PW 1 Manohar More stated in his complaint that her daughter Mangale used to tell him that her husband and in laws used to beat her on demand of dowry. The demand of money from the husband still continued and mother of appellant. Brother of appellant used to harass Mangala. On 10.3.1995 when the complainant was in his shop he learnt that his daughter had been admitted in civil hospital in serious condition where the doctor told him his daughter had died due to consumption of poison. At that time, accused nos. 2 and 3 had gone to the house of the relatives. The complainant lodged a complaint with police station, Ambad and complaint is at Exhibit 20 and its contents - 28 - 638sj are correct. The husband returned from Igatpuri and Mangala was found dead inside the house lying in a serious condition. 5. On the complaint of Manohar More (PW 1) offences were registered under crime no. 57/1995 under section s498-A and 306 IPC. Investigation was carried out by API Adangale Initially, head constable Kokate had registered A.D.No.18/95 at 3.35 p.m. Who recorded spot panchanama in presence of panchas. While recording the panchanama two packets of seeds of tomato ....Mahabij company were attached by police from the house of the accused. The I.O. recorded statement of relatives of deceased Mangala and sent the attached tomato seeds packets and viscera to C.A.Bombay. In due course, he received C.A.reports and on completion of investigation, he submitted charge sheet against the accused persons in the Court of - 29 - 638sj the Chief Judicial Magistrate,Nasik on 9th May, 1995. Since the case was exclusively triable by the Court of sessions, the learned Magistrate passed committal order on 13th June,1995 and committed the case to the Court of Sessions at Nasik. 6. (N.D.Deshpande,J) - 30 - 638sj