Bombay High Court

Homraj Balkrushna Meghe vs State Of Maharashtra on 8 August, 2017

Bench: Swapna Joshi

                                                    1                            Judg. 080817 apeal 172.03.odt 

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
                                    NAGPUR BENCH : NAGPUR.

                                            Criminal Appeal No.172 of 2003

                 Smt. Ratnamala w/o Rajeshwar Kinnake,
                 Aged 34 years,  R/.o-Village Wali-Nagar, 
                 P.S. Ralegaon, Distt- Yavatmal.                                        ....  Appellant.

                                                            -Versus-

              State of Maharashtra, 
              through its P.S.O. Kalamb, Tq. Kalamb, 
              District Yavatmal.                                                               ....  Respondent.
              --------------------------------------------------------------------------------------------------
                               Mr. Bharat Vora, Counsel for appellant.
             Mr. N.H. Joshi, Additional Public Prosecutor for respondent/State.
              --------------------------------------------------------------------------------------------------

                                            Criminal Appeal No.173 of 2003



                Homraj Balkrushna Meghe,
                Aged 35 years,  R/.o-Village Wali-Nagar, 
                P.S. Ralegaon, Distt- Yavatmal.                                         ....  Appellant.

                                                            -Versus-

              State of Maharashtra, 
              through its P.S.O. Kalamb, Tq. Kalamb, 
              District Yavatmal.                                                             ....  Respondent.
              --------------------------------------------------------------------------------------------------
                                  Mr. Bharat Vora, Counsel for appellant.
             Mr. N.H. Joshi, Additional Public Prosecutor for respondent/State.
              --------------------------------------------------------------------------------------------------
                                                             




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                                                     2                            Judg. 080817 apeal 172.03.odt 

                                                              Coram : Mrs. Swapna Joshi, J.

th Dated : 08 August, 2017.

ORAL JUDGMENT

Both these appeals have been preferred by the appellants/accused

nos. 1 and 2 against the judgment and order dated 11-02-2003 delivered

in Sessions Trial No.38 of 2001 by the learned Ad hoc Additional Sessions

Judge, Yavatmal, thereby convicting the appellants for the offence

punishable under Section 306 read with Section 34 of the Indian Penal

Code and sentencing accused no.1- Homraj Balkrushna Meghe to suffer

rigorous imprisonment for five years and to pay a fine of Rs. 2000/- in

default to suffer rigorous imprisonment for three months and so far as

accused no.2- Ratnamala w/o Rajeshwar Kinnake is concerned, she was

sentenced to suffer rigorous imprisonment for four years and to pay a

fine of Rs.1000/- in default to suffer rigorous imprisonment for one month.

2] Heard Mr. Bharat Vora, the learned Counsel for the appellants and

Mr. N.H. Joshi, the learned Additional Public Prosecutor for the

respondent-State. I have carefully gone through the record of the case

and the impugned judgment and order.

3] The prosecution case in brief is that :-

Deceased Rajeshwar was married with accused no.2-Ratnamala in

the year 1986. It was an intercaste marriage. Out of the said wedlock,

they were having two sons namely Gajanan and Mangesh. Accused no.2-

Ratnamala was serving in Anganwadi school at village Wali-Nagar. The

accused no.1-Homraj was running a Flour Mill in front of the Anganwadi

3 Judg. 080817 apeal 172.03.odt

school. The deceased and accused nos.1 and 2 were residing in Ralegaon

village. It is the case of the prosecution that, there was illicit relationship

between accused no.1-Homraj and accused no.2-Ratnamala and this fact

was known to deceased Rajeshwar as well as his son Gajanan.

Deceased Rajeshwar was insisting his wife-accused no.2-Ratnamala not

to keep relations with accused-Homraj but Ratnamala was not paying any

heed to the said suggestion of her husband and therefore there used to be

quarrels between husband and wife.

4] On 01-11-2000, deceased Rajeshwar visited the Anganwadi school

at about 1.00 pm. He saw accused nos. 1 and 2 involved in obscene act

of love affairs. On that count quarrel took place between Rajeshwar and

accused no.1-Homraj. Rajeshwar as well as accused no.1-Homraj lodged

complaints against each other at Ralegaon Police Station. From that

date, accused nos.1 and 2 absconded from that village. Thereafter, on

08-11-2000, Rajeshwar committed suicide by consuming insecticide.

5] Complaint was lodged by his bother Govinda Kinnake. The

offence came to be registered on the basis of the said complaint. The

investigation took place. Charge-sheet was filed. After conducting the

trial, the learned Ad hoc Additional Sessions Judge, Yavatmal convicted

accused nos. 1 and 2 as aforesaid.

6] The learned Counsel for the appellants/accused nos.1 and 2

vehemently argued that, no doubt, Rajeshwar had committed suicide and

it is an unfortunate incident. He further submitted that even assuming

but not admitting that there was illicit relationship between accused nos.

4 Judg. 080817 apeal 172.03.odt

1 and 2, however, the said relationship was allegedly going on since 1992

i.e. about eight years prior to the incident and in any case it cannot be

said that due to the said relationship, the husband of accused no.2

committed suicide. He further submitted that the reports which were

lodged by Rajeshwar and accused no.1-Homraj against each other are

not before the Court. Therefore, it cannot be said that the report which

was lodged by Rajeshwar against accused no.1-Homraj was regarding

the illicit relationship between accused nos.1 and 2 and therefore it cannot

be said that as the quarrel took place between deceased Rajeshwar and

accused no.1-Homraj, this unfortunate incident has taken place. He

further submitted that the evidence which is brought by the prosecution

on record is a weak type of evidence and although one can have

sympathy that deceased Rajeshwar has committed suicide by consuming

poison, it cannot be said that Rajeshwar committed suicide due to the

illicit relationship between his wife and accused no.1 and that accused

nos. 1 and 2 abetted to commit suicide by sharing common intention and

that cannot be the ground to convict the accused.

7] Mr. Joshi, the learned Additional Public Prosecutor for the State

contended that in the evidence it is stated by the son of accused no.2-

Ratnamala and the deceased that there were illicit relationships between

accused nos. 1 and 2 and he had himself seen his mother and accused

no.1-Homraj in compromising position for many a times. Mr. Joshi, the

learned Additional Public Prosecutor for the State further submitted that,

even the (PW-3) Vitthal Kowe was aware about the said relationship. It

5 Judg. 080817 apeal 172.03.odt

was pointed out that PW-3 has deposed that there was illicit relationship

between accused nos. 1 and 2 and the deceased had himself asked

PW-3 to give an understanding to accused no.1-Homraj that he should

not keep such type of relations with his wife. According to Mr. Joshi, the

learned Additional Public Prosecutor for the State, there was no other

reason for committing suicide for Rajeshwar and the only reason was that

there was illicit relationship between accused no.1-Homraj and the wife of

Rajeshwar and therefore he had committed suicide as he could not

tolerate the said fact.

8] I have carefully gone through the entire record of the case and

heard both the sides at length. It is not disputed that Rajeshwar

committed suicide by consuming Organochloro insecticide Endosulfan

(Thioden). The Chemical Analyzer's report depicts that it was

Organochloro insecticide Endosulfan (Thioden) which was found in the

viscera of the deceased. The post mortem report does not reveal any

injury on the dead body of the deceased. Therefore, it can be safely said

that Rajeshwar died a suicidal death.

9] So far as the abetment to commit suicide is concerned, I have

carefully gone through the evidence of PW-1-Govinda Kinnake, PW-2-

Gajanan Kinnake and PW-3-Vitthal Kowe who are the reliable witnesses,

according to the prosecution. The testimony of PW-1 who is brother of

deceased, it shows that he has narrated the facts which are stated above

in the prosecution case. PW-1 has stated that eight days before the

incident, quarrel took place between accused Homraj and deceased

6 Judg. 080817 apeal 172.03.odt

Rajeshwar in primary school. The quarrel had taken place between them

because of the visit of accused persons to each other's house and they

both lodged complaints in Police Station Ralegaon in connection with the

said quarrel. About the factum of illicit relationship, PW-1 stated that,

said fact was disclosed by the sons of Rajeshwar to the Police. PW-1

stated before the Court that accused no.-1-Homraj and accused No.2-

Ratnamala were in visiting terms with each other. Apart from that PW-1

has not stated anything about the relationship between accused nos. 1

and 2. It is worthy to note that the reports which were allegedly lodged by

the deceased and accused no.1-Homraj against each other on the date of

the alleged quarrel, were not produced by the prosecution. Interestingly

nobody had witnessed the quarrels between deceased and accused no.1

which had allegedly taken place in Anganwadi school. There is

absolutely no evidence on record to show that the quarrel took place

between Rajeshwar and accused no.1. It is, therefore, not clear as to what

was the cause of quarrel between Rajeshwar and accused no.1-Homraj

which allegedly took place on 01-11-2000 in Anganwadi school. Those

reports certainly would have thrown light on the aspect of quarrel which

had taken place between deceased and accused no.1. Thus it has not

been established by prosecution that deceased Rajeshwar had quarreled

with accused no.1-Homraj for the alleged illicit relationship between

accused nos.1 and 2. On careful scrutiny of the testimony of PW-1, it is

noticed that, PW-1 did not have personal knowledge about the illicit

relationship between accused nos. 1 and 2. So also he did not have any

7 Judg. 080817 apeal 172.03.odt

personal knowledge about the quarrel which allegedly took place between

deceased Rajeshwar and accused no.1-Homraj on 01-11-2000 i.e. just 8

days prior to the incident. In view thereof, the testimony of PW-1 is of not

much assistance to the prosecution case.

10] So far as the testimony of PW-2 is concerned, he is the son of

deceased Rajeshwar. PW-2 submitted that 8 days prior to the date of

incident quarrel took place between his father and accused Homraj.

According to PW-2, he saw accused nos.1 and 2 in compromising position

10 to 20 times. Once when he saw them in that position, at that time, his

mother threatened him by saying that 'if he disclosed this fact to his father

she would finish him'. Significantly, during the cross examination of PW-2

he admitted that he had not seen the quarrel which had taken place

between accused no.1-Homraj and his father and that had not taken place

in his presence. In view thereof, it cannot be stated that the quarrel took

place due to the illicit relationship between accused nos. 1 and 2. The

testimony of PW-2 does not throw any light on the aspect of the alleged

quarrel which had taken place between the deceased and accused no.1-

Homraj at Anganwadi school just 8 days prior to the incident and which

according to the prosecution, led the deceased to commit suicide.

Similarly, it is not clear from his evidence that as to when he saw his

mother in compromising position with accused no.-1-Homraj.

11] Prosecution further relied upon the testimony of PW-3. According

to PW-3, the accused nos. 1 and 2 were in visiting terms with each other

and they were having love affairs. He stated that there used to be

8 Judg. 080817 apeal 172.03.odt

quarrel between deceased Rajeshwar and accused no.2-Ratnamala as

Rajeshwar was asking his wife Ratnamala not to keep relations with

accused no.1-Homraj. PW-3 further deposed that deceased Rajeshwar

had disclosed the fact of said relations between accused no.1 and 2 and

asked him to give understanding to accused no.1-Homraj. Therefore, he

gave understanding to accused Homraj about it while grazing bullocks in

the field. During the cross examination PW-3, however, was unable to

state the dates of quarrel between accused no.2-Ratnamala and

Rajeshwar. He stated that the quarrels were going on. He also stated

that the quarrels between accused no. 2-Ratnamala and Rajeshwar had

taken place 15 days prior to the incident. On going through the testimony

of PW-3 it is noticed that the deceased had informed the PW-3 about the

illicit relationship between his wife and accused no.1-Homraj and he also

asked PW-3 to give understanding to accused no.1-Homraj for not keeping

such relationship between them. It appears from his evidence that the

quarrel took place between accused no.2-Ratnamala and the deceased

about 15 days prior to the incident. According to PW-3, the quarrels were

going on oftenly. It is, however, not clear from the testimony of PW-3 as

to when exactly deceased Rajeshwar disclosed the fact about the illicit

relationship between accused nos. 1 and 2 and when he asked PW-3 to

give understanding to accused no.1-Homraj about not keeping the said

illicit relationships between them. It is also unclear as to when exactly

PW-3 talked with accused no.1 and gave understanding to him. In the

absence of the convincing evidence specific period during which PW-3

9 Judg. 080817 apeal 172.03.odt

has conversation with the deceased and accused no.1, it is difficult to rely

upon the testimony of PW-3 and it cannot be safely stated that due to

the said illicit relationship between accused nos. 1 and 2, deceased

Rajeshwar committed suicide. On the contrary, the testimony of PW-3

indicates that the quarrel used to take place between Rajeshwar and his

wife accused no.2-Ratnamala oftenly and the quarrel had also taken

place about 15 days prior to the incident. Thus, PW-3 is not found to be a

trustworthy witness. On careful scrutiny of testimony of prosecution

witnesses, at the most it can be said that there may be illicit relationship

between accused nos. 1 and 2. However, it was not a surprise for the

deceased about the said relationship and oftenly there used to be

quarrels between deceased Rajeshwar and accused no.2-Ratnamala for

the said reason. The reason for committing suicide by Rajeshwar has not

come forward. It cannot be, therefore, safely stated that due to the

quarrel which took place between accused no.1-Homraj and deceased

Rajeshwar in Anganwadi school, Rajeshwar committed suicide and

accused nos. 1 and 2 abetted to commit suicide by sharing common

intention. Even the reason for the said quarrel does not come forward.

The reports lodged by Rajeshwar and accused no.1-Homraj against each

others are also not placed on record by the prosecution.

12] It is worthy to note that the spot panchanama does not reveal any

poisonous material. There is no seizure of poisonous material on record.

From the testimony of PW-5 ASI Gedam it appears that one chit was

taken charge from the place of incident, however none of the witnesses

10 Judg. 080817 apeal 172.03.odt

have made a mention of any chit. Even the handwriting on the said chit

was not shown to the witnesses and it was not identified by the son or

brother (PW-1) of the deceased. Significantly, the chit was not sent to the

handwriting expert for the purpose of identification of handwriting of

deceased. Thus, the prosecution has failed to establish that Rajeshwar

committed suicide as he could not tolerate the illicit relationship between

accused nos.1 and 2.

13] The learned Additional Public Prosecutor for the State has placed

reliance upon the decision of the Hon'ble Apex Court in the case of

Dammu Sreenu v. State of A.P., reported in AIR 2009 SC 2532.

Wherein, it was the case that there was illicit relationship between

accused and the wife of deceased and due to the said relationship, the

deceased suffered humiliation and insult and therefore committed

suicide. In the said case, it had happened that prior to the suicide, the

deceased expressed before his brother that it would be better to die as

he very much feel insult and humiliation. Thus, the deceased had

expressed his desire to commit suicide and the reason for that is also

reflected from his version. Whereas, in the present case, there is no such

case that the deceased expressed before his brother PW-1 about the said

relationship and that due to the said relationship he got humiliated and

committed suicide.

14] The learned Counsel for the appellants has placed reliance upon

the decision of the Hon'ble Apex Court in the case of M. Mohan v. State

represented by the Deputy Superintendent of Police, reported in

11 Judg. 080817 apeal 172.03.odt

(2011) 3 SCC 626. Wherein, in paragraphs 44 and 45, the Hon'ble Apex

Court has held as under :-

"44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive action on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

45. The intention of the legislature and the ratio of the cases decided by this Court are 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/she committed suicide."

The above said case law relied upon by the learned Counsel for the

appellants is applicable to the facts of the present case. There is no

cogent and clear evidence on record to prove the guilt of the appellants.

15] In view of above, it is held that the prosecution has failed to prove

its case beyond reasonable doubt. In these circumstances, the benefit of

doubt is to be given to the appellants. The learned trial Court has not

properly evaluated the evidence led by prosecution. In view thereof, the

judgment and order passed by the learned trial Judge needs to be

set aside. Hence, the following order:-

O r d e r

(a) Criminal Appeal Nos.172 of 2003 and 173 of 2003 are

allowed.

                                                     12                            Judg. 080817 apeal 172.03.odt 

                         (b)       The judgment and order dated 11-02-2003  delivered 

                                   by   learned  Ad   hoc  Additional   Sessions   Judge,