1 cri appeal 243.99 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 243 OF 1999 Siddarth S/o Narayan Kamble, Age : 27 Years, Occu. : Student, R/o Ashta, Tq. Kinwat, District Nanded. .. APPELLANT (Orig. Accused No. 1) Versus The State of Maharashtra, Through Police Station, Mahur, Tq. Kinwat, Dist. Nanded. .. RESPONDENT Shri Jagtap, Advocate h/f Shri V. D. Patnoorkar, Advocate for the Appellant. Shri V. G. Shelke, A.P.P. for the Respondent/State. CORAM : S. S. SHINDE, J. DATE : 19TH JANUARY, 2011. JUDGMENT : . This appeal is filed challenging the judgment and order of the Joint District and Additional Sessions Judge, Nanded in Sessions Case No. 191/1994 dated 21st May, 1999. 2. The prosecution story in brief is as under : 2 cri appeal 243.99 The deceased Panchasheela was residing along with her parents in village Ashta, in Kinwat taluka of Nanded district. Nivratti (P.W.-2) complainant is the brother of deceased Panchasheela. It is the case of the prosecution that, when Panchasheela was taking education at Kinwat four accused use to pay visit to her room and tease her. They use to write letters to her, however, said letters were destroyed by the deceased fifteen days prior to date of incident. It is further case of the prosecution that, Panchasheela received one letter, alleged to have been written by one of the accused in which Panchasheela was given threats that, if at all she marries to any other person, than the writer of the said letter, her married life would be rendered miserable and difficult, because she has committed treachery by refusing to marry the writer. The said letter had been retained by accused No. 4/Manoj till Panchasheela's death and subsequently delivered to Nivratti brother of the Panchasheela. It is further case of the prosecution that, contents of the said letter caused adverse impact and, therefore, she committed suicide by jumping into the well in the field of her father at Ashta on 02nd December, 1992, at about 12.00 mid night. 3. PSI Gaikwad/P.W. 4 investigated into A.D. No.10/1992. He 3 cri appeal 243.99 visited the spot of incident. The spot panchanama was drawn and other necessary steps were taken. P.W. 4 carried further investigation as per procedure. 4. During the course of investigation of said A.D. No. 10/1992, one inland letter was produced to PSI Gaikwad/P.W.4 on 27.02.1993. That letter was received by deceased Panchasheela about 15 days prior to the incident. According to the prosecution said inland letter contained the threats. Said letter was seized as per panchanama Exh. 73. The Investigating Officer sent that letter to the hand writing expert with the specimen hand writing of the four accused for comparison and examination by the hand writing expert. It is the case of the prosecution that, the Panchasheela committed suicide since said letter caused severe impact on her mind and led her to commit suicide. 5. After completing investigation the I. O. filed the charge sheet U/Sec. 306 r/w Sec. 34 of the Indian Penal Code. The charge was framed against the four accused. They were given opportunity to put forth their case. 6. During the course of trial it was noticed that though the specimen hand writing of the accused was collected by PSI Gaikwad and was sent to the hand writing expert. There was no 4 cri appeal 243.99 report and opinion of the hand writing expert. Therefore, the I. O. was summoned to the Court. Thereafter, the prosecution did produce on record report of hand writing expert Shri. Biradar/P.W. 5. The P.W. 5 opined that disputed hand writing in the said inland letter is of Sidharth i. e. appellant herein. 7. The Trial Court framed points for its determination and after full fledged trial convicted the appellant herein for the offence punishable U/Sec. 306 of Indian Penal Code and sentenced to suffer Rigorous Imprisonment for three years and to pay fine of Rs. 2,000/- in default to suffer further R. I. for six months. However, other three accused persons came to be acquitted from all the charges. The appellant herein was in the custody from 02nd March, 1993 to 19th March, 1993 and said period is given set off to the appellant/accused. 8. In this case the material evidence collected by the prosecution is opinion of the hand writing expert at Exhibit - 121. 9. The learned counsel appearing for the appellant submitted that, the evidence of the prosecution witness suffers from omission, material contradictions and exaggerations and, therefore, same is not trustworthy. The counsel invited my attention to the contents of A. D. report and also complainant 5 cri appeal 243.99 and also to the evidence of the prosecution witnesses and submitted that, when A.D. was registered P.W. 2/brother of the deceased has not stated anything against any of the accused. On the contrary his case was that, Panchasheela now deceased was of hot tempered and she committed suicide. He has no any suspicion about anybody. The counsel further submitted that, the alleged recovery of the letter from the accused No. 4/Manoj after the death of Panchasheela and relying on said evidence conviction of the appellant cannot be sustained. It is further submitted that, P.W. 2 submitted inland letter which is recovered from accused/Manoj after two and half months after the date of incident. It is further submitted that in his complaint P.W. 2 has never stated that the appellant herein was teasing and visiting to the room of the Panchasheela, when she was prosecuting her studies at Kinwat and at the relevant time staying in the hostel. The sum and substance of the argument of the counsel for the appellant is that, merely relying on the letter which was recovered from the Manoj/accused No. 4, conviction in case of appellant should not have been there. It is not the case of the prosecution that, the said letter is recovered from the house of the deceased or from her parents. The counsel for the appellant further submitted that, entire prosecution story is vague. The evidence of the prosecution witnesses suffers from material 6 cri appeal 243.99 discrepancies and prosecution has not dealt with the case with fair approach. Therefore, the counsel for the appellant would submit that, this appeal may be allowed. 10. On the other hand, learned Additional Public Prosecutor appearing for the state submitted that, the Sessions Court has given cogent reasons while convicting the appellant. Therefore, this Court may not interfere with the impugned judgment and order and appeal deserves to be dismissed. 11. I have given due consideration to the rival submissions. I have carefully perused the impugned judgment, entire material placed on record by the appellant and also original record and proceedings received from the Trial Court. The entire prosecution story revolves around the letter at Exh. 130. It is also the prosecution case that said letter is recovered from Manoj/accused No. 4 after the date of incident. The careful perusal of the impugned judgment, letter Exhibit 130, it clearly emerges that, the conviction of the appellant is mainly based upon Exhibit 130. The Trial Court in para 13 has commented upon the Exhibit 130, and the contents of the letter and recorded the conclusion that writer of the said letter did not like Panchasheela's marriage being performed with any other person 7 cri appeal 243.99 than him because he was having love with Panchasheela. Instead of this Panchasheela was going to be married with some other person. The letter further contains that, Panchasheela had promised in written to marry him, but the writer got annoyed because she did not keep that word. The inland letter does contain the threats by the writer to Panchalsheela that, he would never allow her to lead happy married life, but would always create the trouble and put thorns in her way. If the letter at Exhibit 130 is read as a whole it does appear that the writer had the firm determination to give trouble to Panchasheela in case she marries with a person other than the writer. (emphasis supplied). Therefore, it appears from the perusal of the impugned judgment that, the Trial Court after perusal of the said letter reached to the conclusion that, it is the firm determination of the writer to give trouble to Panchasheela in case she marries with a person other than the writer. It is not in dispute that, said letter was written by the writer of the said letter on 14.07.1992 and as per the prosecution case the Panchasheela, now deceased committed suicide in the night intervening between 02nd and 03rd December, 1992. It is also not in dispute that at the relevant time, when Panchasheela committed suicide, she was 8 cri appeal 243.99 staying in her parents house. She was not at Kinwat and it has come in the evidence of P.W. 2/complainant that six months prior to the date of incident she is at her parents home at village Ashta, Tq. Kinwat. The prosecution case is that, Panchasheela was studying at Kinwat and stayed in some hostel along with one other girl in her room. It is further case of the prosecution that, the appellant herein was studying in 11th class and the Panchasheela was studying in 12th class. The appellant and other three accused namely Rajesh, Vinod and Manoj use to trouble and tease Panchsheela. They use to go to the hostel to tease her. However, at the cost of repetition, it has to be mentioned that, from six months prior to the date of incident Panchasheela was continuously staying with the parents at village Ashta and not at Kinwat. 12. The impugned judgment observes that, the specimen writing of each of the accused was sent to the hand writing expert and hand writing expert P.W. 5 opined that, the writing in the letter at Exhibit 130 is by the appellant/Sidharth. On perusal of entire evidence, it appears that, this is the main basis to convict the appellant/accused. However, if the evidence of the prosecution witnesses is perused in its entirety and more particularly the evidence of P.W. 2/Nivratti the brother of the 9 cri appeal 243.99 deceased Panchasheela, he has on more than one occasion has stated in his examination in chief and also in the cross examination that, other accused i. e. accused No. 2 Rajesh and accused No. 3/Manoj used to write letters to the Panchasheela and there was some knowledge to the mother of the Panchasheela and complainant about writing such letters. However, so far as writing letters by the appellant/accused prior to the date of incident is not stated by P.W. 2 in his entire evidence. He has stated that he has heard from some other person from his village that, the appellant has eloped love with Panchasheela, but he did not enquire this fact from Panchasheela. Upon perusal of the entire evidence of P.W. 2, who is the star witness for the prosecution, it appears that, he has given greater roll to the Rajesh/accused No. 2 and he has stated that he use to write letter and also use to give threats to the Panchasheela deceased and also once he came to the agricultural field of the complainant, since deceased Panchasheela was avilable there in the agricultural field at the relevant time. However, the accused No. 2/Rajesh is acquitted by the Sessions Court along with two other accused who were tried along with the appellant. 10 cri appeal 243.99 13. Since the conviction is awarded to the appellant U/Sec. 306 for abetment to commit suicide, it would be relevant to refer to important sections. Section 107 of the Indian Penal Code reads thus : "107. Abetment of a thing.-- A person abets the doing of a thing, who -- First.-- Instigates any person to do that thing; or Secondly,-- Engages with one or more other prsons or persons in any conspiracy for the doing 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 1.-- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." Section 306 of the Indian Penal Code reads thus : "306. Abetment of suicide.-- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 14. In case of suicide how the evidence is required to be 11 cri appeal 243.99 appreciated has been stated by the Hon'ble Supreme Court in number of judgments. In State of West Bengal v. Orilal Jaiswal (1994) 1 SCC 73, the Hon'ble Supreme Court has cautioned that the Court 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 appears 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. Further the Hon'ble Supreme Court in case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) (2009) 16 SCC 605 had an occasion to deal with this aspect of abetment. The Court dealt with the dictionary meaning of the words "instigation" and "goading". The Court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern 12 cri appeal 243.99 is different from the other. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances. 15. The Hon'ble Supreme Court in case of Amalendu Pal @ Jhantu vs. State of West Bengal reported in 2010 AIR (SC) 512, after considering various earlier judgments in para 15 observed that, "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 their 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." "16. In order to bring a case within the purview of 13 cri appeal 243.99 Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC." 16. The Hon'ble Supreme Court in the case of Randhir Singh v. State of Punjab (2004) 13 SCC 129 has reiterated the legal position as regards Section 306 IPC which is long settled in para 12 and 13. Para 12 and 13 reads thus : "12. Abetment involves a mental process of instigation 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 IPC. 13. In State of W. B. v. 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 14 cri appeal 243.99 by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive or ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belongs and such petulance, discord and differences were not expected to induce a similarly circumstances 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." 17. Upon perusal of the judgments of the Hon'ble Supreme Court cited supra, it is required to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts to the commission of suicide. Merely on the allegations 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 Sec. 306 of I. P. Code is not sustainable. Therefore, what is required is that, unless there is 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 U/Sec. 306 is not sustainable. 18. In this background it would be appropriate to scan the evidence of the prosecution witnesses. According to the 15 cri appeal 243.99 prosecution story as stated earlier Panchasheela committed suicide in the intervening night between 02nd and 03rd December, 1992. On the next date i. e. on 03rd December, 1992 P.W.2/Nivratti brother of the deceased Panchasheela went to the police station and stated in his report that on 02nd December, 1992 during night time at about 12.00 a.m. Panchasheela (now deceased) told her sister Trisheela that I am going out to answer the nature's call. She did not return back. My father got up at about 5.00 a.m. in the morning saw that the door of the house from the Western side is open. Then father awakened my mother, sister and started asking whether Panchasheela has gone. Complainant along with father and other persons from the village went to near by fields and other places and ultimately they found that Panchasheela's dead body in the well which is situated in their own agricultural land. They saw that Panchasheela's sandle and one white cloth is lying near by that well. Thereafter, they called other persons from the village and narrated the incident. P.W. 2 Nivratti further stated that, my sister went to answer the call of nature and perhaps died by falling in the well. My sister was hot tempered and she was not use to tolerate any irrelevant talk. I do not know how she has fallen in the well and 16 cri appeal 243.99 I have no suspicion or doubt about anybody. 19. Therefore, the report of the Nivratti which was recorded on 03.12.1992 at police station does show that, the brother of the deceased Panchasheela did not express slightest doubt or suspicion about any of the accused persons. He has categorically stated in his statement that, sister of the P.W. 2 was hot tempered and she was not accustomed to tolerate irrelevant talk. 20. It further appears that on the basis of the statement of the Nivratti, A.D. was registered. It further appears that on 29th February, 1993, one Mr. Anil Narayanrao Gaikwad, PSI, Police Station Mahur has lodged the complaint with police station stating therein that after recording the statement of Nivratti on 03.12.1992, this officer made enquiry with the relatives of the deceased and upon enquiry he found that, fifteen days prior to the date of the incident Panchasheela did received one anonymous letter in which it was written that I will see that how you can perform the marriage, you have treached me. You have finished me and I will see that your life is spoiled and upon reading such letter Panchasheela might have committed suicide, because of impact of said letter and thereafter, he sought permission to add Section 306. He further states that it revealed 17 cri appeal 243.99 from the enquiry with the relatives of the deceased about the incident and relatives told them that they have doubt about Sidharth Narayan Kamble, Rajesh Sitaram Khare, Vinod Krishnaji Khare and Manoj Pundalik Muneshwar resident of Ashta that, they might have written letter to the deceased Panchasheela. Therefore, the complaint was lodged against these four accused stating therein that by entering into conspiracy and by threatening the accused have abeted the commission of suicide and, therefore, they are liable to be tried and convicted for the offence punishable U/Sec. 306, 507 r/w Sec. 34 of the Indian Penal Code. 21. As stated earlier, it is admitted position that, the said letter at Exhibit 130 was in the possession of accused No. 4/Manoj. According to the P.W. 2 it was handed over to him by Manoj. Therefore, it follows that on the date of incident or prior to that said letter was in the custody of Manoj. The prosecution has not brought anything on record to show that said letter was in the possession of either deceased or her family members. There is only assertion of the prosecution witnesses that such letter was received by the deceased 15 days prior to the date of incident. However, there is no evidence placed on record to suggest that said letter was actually in the possession of the 18 cri appeal 243.99 deceased and she had read it 15 days prior to date of incident. On the contrary, it is the case of the prosecution that, letter at Exhibit 130 was handed over/recovered from accused No. 4/Manoj after the date of incident. It has also come in the evidence that accused No. 4/Manoj is close relative of the family of the deceased. 22. Now it would be appropriate to refer to the evidence of P.W. 2 before the Additional Sessions Judge, Nanded. His evidence is at Exhibit 52. His statement is recorded before the Court during the trial in the year 1997. P.W. 2 Nivratti in his examination in chief has stated that, deceased Panchashella his sister was unmarried. At the time of incident she was of 19 years old. She committed suicide. She had received some letters. The letters were anonymous. In those letters Panchasheela was given threats that her marriage will not be allowed to be performed. We got only one letter out of them. It was with one Manoj/accused No. 4. After the death of Panchasheela, Manoj/accused No. 4 on the next day morning came to me and delivered that letter to me. When I was writing report regarding