1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.576 OF 2008 Satish s/o Abarao Naiknaware, age: 36 years, Occ: Nil, R/o Dhorala, Tq. Kallamb, District Osmanabad. Appellant Versus The State of Maharashtra Respondents Mr.P.S.Shinde, advocate (appointed) for the appellant. Mr.V.H.Dighe, A.P.P. For Respondent-State. CORAM: R.M.BORDE, J. DATE : 22nd June, 2009. ORAL JUDGMENT: 1 Accused-appellant is challenging the order of conviction and sentence recorded in Sessions Case No.57/2007, by Ad hoc Additional Sessions Judge, Osmanabad on 30.07.2008, holding him guilty for offences punishable under Sections 498A and 306 of the Indian Penal Code. Appellant-accused is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default, to suffer rigorous imprisonment for one year for the offence punishable under Section 498A of the Indian Penal Code, whereas, he is sentenced to suffer rigorous imprisonment for four years and to pay fine of Rs.2000/-, in default, to suffer rigorous imprisonment for two months, for the offence punishable under Section 306 of the Indian Penal Code. The Court has directed that the substantive sentences of imprisonment shall run concurrently. 2 2 Accused-appellant was married to deceased Ranjana some eight years prior to the alleged incident. Ranjana is alleged to have committed suicide on 22.03.2007 at her husband’s residence, situate at village Dhorala, Taluka Kallam, by hanging herself with the help of saree tied to the roof. Father of deceased Ranaja has lodged First Information Report on 23.03.2007 at Police Station Shiradhon. It is alleged in the report that accused always used to illtreat deceased. There were three children born to the couple out of the wedlock. There are allegations in respect of demand of money as well as extending beating by the accused to his wife on account of non fulfillment of demand. It transpires from perusal of the F.I.R., that as a result of illtreatment meted out to deceased Ranajan, she was compelled to take shelter at Swaadhar Mahila Kendra, Latur along with her kids. On 18.03.2007, son of the informant made a telephonic call to Swaadhar Mahila Kendra, whereupon he was informed that his daughter Ranjana along with her kids left Swaadhar Mahila Kendra to reside with her husband. On 22.03.2007, son of the informant received a telephonic message to the effect that Ranjana had committed suicide by hanging herself at her matrimonial home. The informant alleges that suicidal death of his daughter is as a result of illtreatment meted out to her at the hands of accused. 3 On receipt of First Information Report, Crime No.37/2007 was registered for offences punishable under Sections 498A and 306 of I.P.C. and police initiated investigation in the crime. After completing investigation, police submitted charge sheet against the accused. The case, being triable by the Court of Sessions, was committed to the 3 Sessions Court, Latur.. Charge was framed by the trial Court, to which, accused pleaded not guilty. Defence of the accused is of denial. 4 In order to bring home guilt of the accused, prosecution examined as many as eight witnesses. After recording evidence of prosecution witnesses and statement of the accused under Section 313 Cr.P.C., trial Court recorded verdict of guilt against the accused and directed him to suffer the sentence of imprisonment and to pay fine, as stated above. 5 I have perused the evidence placed on record with the assistance of learned Counsel for the appellant and learned Assistant Public Prosecutor for Respondent-State. P.W.1 is the father of deceased Ranjana - Subhash Savase. He has deposed that marriage of deceased Ranjana was solemnized with accused some eight years prior to the incident. The witness has reiterated his allegations in respect of illtreatment meted out to his daughter at the hands of accused. The witness has stated in respect of demand of money by the accused as well as further alleged that accused used to beat her. He had received such information in respect of illtreatment meted out to her at the hands of accused from his daughter during her life time. The witness has also deposed in respect of his daughter leaving the matrimonial house and taking shelter at Swaadhar Mahila Kendra, Latur along with her kids. On perusal of the evidence of P.W.1 father of deceased, it is evident that the father has not stated particulars of illtreatment nor has stated any specific instance in respect of illtreatment meted out to his daughter Ranjana at the hands of accused. The evidence is of a general character. It is too 4 vague to arrive at a definite conclusion. The witness is silent on the point of illtreatment to deceased Ranjana after she started residing at her matrimonial home after leaving Swaadhar Mahila Kendra, Latur. Merely stating that deceased was illtreated is not sufficient to draw an inference in respect of offence punishable under Section 498A of I.P.C. The evidence of P.W.1 is in no way supporting the prosecution version as regards accused being instrumental in commission of suicide by deceased Ranjana. 6 P.W.2 Namdeo Gaikwad and P.W.3 Chanchala Apate are the employees of Swaadhar Mahila Kendra, Latur. P.W.2 Namdeo was serving as Counsellor with the social organization. He has stated in his deposition that deceased Ranjana was admitted to Swaadhar Mahila Kendra, Latur, on account of neglect and refusal by her husband. It is not clear on perusal of testimony of the witness as to what is the source of his knowledge as regards alleged illtreatment meted out to Ranjana. He has not disclosed any source of information in his deposition. He has referred to the compromise entered into between deceased Ranjana and accused when she was taken to her matrimonial house by the accused. The compromise is at Exhibit-47. As per the terms of the compromise, the accused has undertaken not to illtreat her. The parties have, amongst themselves, assured to continue matrimonial relations. P.W.3 Chanchala Apate is the Residential Superintendent of Swaadhar Mahila Kendra, Latur. The witness has proved application tendered by deceased Ranjana at the time of her admission with the l organization. The witness has stated that there were attempts made by the members of social organization as well as Counsellor for arriving at reconciliation and for 5 resumption of matrimonial tie. The husband and wife willingly agreed to cohabit and resume matrimonial relations. As such, both the parties signed the compromise deed. Thereafter an indemnity bond was also taken from the accused and deceased Ranjana was allowed to go with her husband. On perusal of the application tendered to Swaadhar Mahila Kendra by deceased Ranjana, it appears that she had complained about the illtreatment meted out to her at the hands of her husband. It is stated in the application by Ranjana that accused used to consume liquor and used to beat her daily and that is the reason for her leaving the matrimonial house. P.W.4 Sachin Chaugule is resident of village Dhorala. Although the witness is related to deceased Ranjana, he has not supported the prosecution version. As such, he is declared hostile. P.W.5 Tirupati Survase is the neighbour of informant. The witness has stated about the disclosure made by deceased Ranjana in respect of illtreatment meted out to her at the hands of her husband. She stated to have disclosed to the witness that her husband used to beat her under the influence of liquor. There is also disclosure by deceased Ranjana, according to the witness, in respect of demand of money by her husband. She has also stated to have disclosed to the witness in respect of her taking shelter with Swaadhar Mahila Kendra at Latur. P.W.6 Satish Savase is the brother of deceased Ranjana. He has also stated in his deposition in respect of illtreatment meted out to deceased Ranjana at the hands of her husband. According to him, illtreatment was for petty reasons. The witness has stated that Ranjana was fed up with the illtreatment, as such, she left the matrimonial home and took shelter at Swaadhar Mahila Kendra, Latur. According to the witness, Ranjana committed suicide due to the illtreatment meted out to her at the hands 6 of accused. The testimony of the witness is quite vague in material particulars. There are no specific allegations or instances in respect of illtreatment. The period, during which his sister was harassed or specific instances, have not been quoted. It is also not disclosed as to whether deceased Ranjana was being illtreated even after she resumed her matrimonial relations after leaving Swaadhar Mahila Kendra, Latur and immediately before her suicidal death. 7 Considering the material placed on record by the prosecution, it is very difficult to arrive at a conclusion that the alleged suicide of Ranjana was as a result of illtreatment meted out to her at the hands of accused. Apart from the fact that no particulars in respect of illtreatment or the nature of illtreatment or specific instances have been quoted by the prosecution, the evidence falls short of drawing an inference to the effect that the alleged acts of the accused amount to abetment within the meaning of Section 107 of the Indian Penal Code. An inference can be drawn in respect of illtreatment meted out to deceased prior to her admission in Swaadhar Mahila Kendra. She herself, in her admission form, has stated about the beating extended to her by her husband as well as drinking habit of her husband. The allegations, which are of general nature, coupled with the documentary evidence in the shape of admission form as well as application tendered with Swaadhar Mahila Kendra, Latur, as well as writing recorded in the presence of police officials, lead to a conclusion that deceased Ranjana was harassed by her husband prior to her admission to Swaadhar Mahila Kendra., Latur Considering the nature of evidence placed on record by the prosecution, the conviction of accused for offence punishable under 7 Section 498A of I.P.C. can be said to be justifiable. 8 It has to be borne in mind that deceased was taken for resumption of matrimonial relations admittedly by her husband on 04.03.2007, whereas, the incident has occurred on 22.03.2007. There is absolutely no evidence to the effect that even after bringing her back to matrimonial home by accused, she was being illtreated. There is absolutely no material to draw such an inference. This aspect is required to be taken into account for considering the validity of conviction of the accused for offence punishable under Section 306 of I.P.C. For bringing home guilt of the accused for offence punishable under Section 306 of I.P.C., it has to be established that the accused is guilty of causing abetment to commit suicide. As provided by Section 107 of I.P.C., a person can be said to abet doing of a thing if (i) he instigates any person to do that thing; and (ii) intentionally aids by any act or omission doing of that thing. In the instant matter, there is no evidence to come to the conclusion that the accused has instigated commission of suicide by Ranjana or that he intentionally aided by any act doing of that thing i.e. suicide by deceased Ranjana. Every type of illtreatment will not necessarily compel to draw an inference as regards abetment as defined by Section 107 of the I.P.C. In this particular matter, there is no evidence to the effect that deceased Ranjana was illtreated after she was brought to her matrimonial home from Swaadhar Mahila Kendra, Latur. 9 A reference can be made to the observations of the Apex Court in the matter of Sohan Raj Sharma Vs. State of Haryana, reported in 8 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 it 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 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.” 10 On examination of factual scenario in the case, allegations levelled against the accused fall short of leading to an irresistible conclusion that the act constitute instigation or abetment to the deceased to commit suicide or such acts or omissions amount to intentional aid to commit the act of suicide by deceased Ranjana. 9 Evidence of the prosecution witnesses, is deficient in material particulars as regards illtreatment meted out to deceased at the hands of accused, which amounts to intentional aid to commit suicide. In these circumstances, it cannot be said that the prosecution is successful in bringing home guilt of the accused in respect of offence punishable under Section 306 of I.P.C. Consequently, the conviction and sentence imposed against the accused for offence punishable under Section 306 of I.P.C. will have to be quashed and set aside. 9 In the result- (1) The order of conviction, so far as offence punishable under Section 498A of I.P.C. is concerned, same is maintained. However, as far as sentence is concerned, it has been brought to my notice that accused has been arrested on 24.03.2007 and was in jail till 18.09.2007. After recording judgment of guilt, accused has been taken in custody on 30.07.2008 and he is still in jail. Thus, it appears that accused has undergone sentence of about one and half years. According to me, sentence already undergone by the accused would suffice the purpose. In this view of the matter, sentence imposed by the trial Court, for offence punishable under Section 498 of I.P.C., same shall stand modified and accused-appellant is sentenced to suffer rigorous imprisonment for the period which he has already undergone. (2) The accused is acquitted of the charge levelled against him for the offence punishable under Section 306 of I.P.C. The order of conviction and sentence recorded by Ad hoc Additional Sessions Judge, Latur, in that regard, is quashed and set aside. (3) Accused-appellant Satish Abarao Naiknaware be set at 10 liberty if not required in connection with any other crime. (4) Learned Counsel Shri P.S.Shinde is appointed as amicus curiae to represent appellant-accused in this appeal. His remuneration is quantified at Rs.5000/- (Rs.Five thousand). (R.M.BORDE) JUDGE ******* adb/criappeal57608