Bombay High Court

State Of Maha vs Bapu Baban Ghodke & Ors on 9 May, 2017

Bench: S.S. Shinde

                                                 Cri.Appeal.253.2004
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO. 253 OF 2004


 The State of Maharashtra,
 Through Shrigonda Police Station.
 Cr. No.I-138/2003.
                                 ...APPELLANT. 
        VERSUS             

 1.       Bapu Baban Ghodke,
          Age : 26 years,

 2.       Mirabai W/o. Baban Ghodke,
          Age : 50 years,

      Both R/o. Shrigonda,
      Tq. Shrigonda. Dist. Ahmednagar.        
                                 ...RESPONDENTS
                      ...
 Mr. S.J. Salgare, A.P.P. for appellant.       
                      ...

               CORAM:   S.S. SHINDE, J.
               DATE :   09  MAY, 2017 

 JUDGMENT :

Heard.

2. This Appeal is directed against the

judgment and order dated 19th December, 2003,

passed by the 3rd Adhoc Assistant Sessions Judge,

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Ahmednagar in Sessions Case No. 145 of 2003,

thereby acquitting the Respondents from the

offences punishable under Sections 498-A and 306

read with 34 of the Indian Penal Code.

3. The respondents herein are the original

accused, who were tried for the offences

punishable under sections 498-A, 306 read with

Section 34 of the Indian Penal Code (for short

"I.P.C."). In short, the prosecution case is as

follows :-

(A) Rahibai Dhondiba Kalewagh (PW-1) is

original resident of Shrigonda but since last many

years, she is residing at Bombay along with her

four married daughters and one son. Marriage of

Manda, who is younger daughter of PW-1, was

performed with Bapu Baban Ghodke (accused no.1) on

11th May, 2001. Accused nos. 2 and 3 are parents

and accused no.4 is uncle of accused no.1. After

marriage, Manda went for cohabitation at

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Shrigonda. As per prosecution case, she was

properly treated for seven months after marriage.

It is alleged that, thereafter the accused made

demand of cooler, mattress and cupboard from the

parents and brother of Manda. PW-1 tried to

convince the accused that, they should not insist

for the said article. Thereafter, Manda went to

Mumbai in the month of May, 2002 and stayed there

till October, 2002. During the said period, she

begotten female child. Thereafter, in the month of

December, 2002 Manda went to the matrimonial home.

It is alleged that, there was further demand by

the accused.

(B) It is further the case of prosecution

that, on 24th June, 2003, the land of PW-1 and PW-2

situated within the limits of village Tandali

Dumala, Tq. Shrigonda was sold to Mr. Mandhare for

consideration of Rs.1,70,000/- with permission of

all five sisters of PW-2 - Namdeo Dhondiba

Kalewagh. It is further case of the prosecution

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that, after sale of the said land, PW-1, PW-2 with

other married daughters had been to the house of

the accused. At that time, accused nos. 1 and 2

alleged to have demanded amount of Rs. 1,00,000/-

for purchasing jeep for accused no.1. However,

PW-1 and PW-2 assured the accused that, they will

give amount after sale of another land. As per the

prosecution case, there was quarrel between PW-2

and deceased Manda. Thereafter, PW-1, PW-2 along

with other married sisters of PW-1 went back to

Mumbai. Their visit to the house of accused was on

24th June, 2003.

the morning PW-1 received phone call from Manda

that, the accused are illtreating her on the

ground of demand of articles and cash amount and

PW-1 should come to Shrigonda. Thereafter, PW-1

went to Shrigonda and requested the accused to

send Manda at Mumbai, however, accused refused to

send Manda at Mumbai. On 25th June, 2003 itself

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PW-1 went back to Mumbai.

On 26th June, 2003 PW-1 received phone

call from Uddhav Bhailume and her brother Sevak

Ghodke that, Manda committed suicide by hanging

to roof of dwelling house and thereby lost her

life. Thereafter, PW-1 and PW-2 along with their

relatives went to Shrigonda and reached there at 4

p.m.. However, by that time dead body of Manda was

sent to Rural Hospital for postmortem, after

preparing inquest panchanama and spot panchnama.

Only PW-1 was allowed to see dead body of Manda in

postmortem room. Thereafter, the postmortem was

carried out on the same day and F.I.R. was lodged

by PW-1 at about 7.05 p.m. Thereafter, the

investigation was carried out by the Investigating

Officer. During investigation, he collected

postmortem report and all other incriminating

material, and Article `A' chit written by Manda

was also sent to the Handwriting expert to have

his opinion. Thereafter, the charge-sheet came to

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be filed and after full-fledged trial, the trial

Court acquitted the Respondents - accused. Hence

this Appeal.

4. Learned A.P.P. appearing for the

appellant/State invites my attention to the

evidence of the prosecution witnesses, and in

particular, evidence of PW-1, PW-2 and PW-3 and

submits that, the evidence of these witnesses

clearly demonstrates that, there was demand of

cooler, mattress, cupboard and also Rs.1,00,000/-

by the accused persons, as a result, Manda

committed suicide. It is submitted that, the

evidence of prosecution witnesses remained

unshattered during their cross-examination. It is

submitted that, during investigation, it is

revealed that, Manda left with no option but to

commit suicide and accordingly, she committed

suicide in the matrimonial home, and therefore,

the trial Court ought to have convicted the

accused for the offences punishable under Sections

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498-A, 306 read with 34 of the I.P.C.

5. I have carefully considered the

submissions advanced by the learned A.P.P.

appearing for the appellant/State. With his able

assistance, I have perused the entire evidence and

also the findings recorded by the trial Court.

PW-1- Rahibai, the mother of Manda, in her

deposition stated that, Manda was treated nicely

for about first seven months after the marriage

with accused no.1. Thereafter she was illtreated

by accused nos.1 and 2 by asking her to bring

cooler, mattress and cupboard from her parents.

She was assaulted by the accused. Manda informed

to her about the said illtreatment by telephonic

message. Thereafter, PW-1 visited the matrimonial

home of Manda and tried to convince the accused

not to illtreat and harass her. Thereafter, Manda

was taken to Mumbai in the month of May, 2002 for

delivery. At that time, she was five months

pregnant. In the month of October, 2002, she

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begotten female child and in the month of

December, 2002, she went to her matrimonial home.

6. PW-1 in her deposition stated that, in

the month of February, 2003, her son Namdeo was

sick, hence she decided to sale the land situated

at village Tandali Dumala for consideration of

amount of Rs.1,70,000/- and accordingly, on 24th

June, 2003, she sold the said land. She visited

the house of the accused on 24th June, 2003, at

that time, accused nos.1 and 2 demanded

Rs.1,00,000/- for purchase of Jeep for accused

no.1. However, she informed that, she want the

said amount for treatment of her son and assured

the accused that, she will pay them after sale of

another land. Then she went to Mumbai. On 25 th

June, 2003, after call from Manda about the

illtreatment and harassment at the hands of

accused, again she came at Shrigonda at 1 p.m. and

met accused persons and then again she went to

Mumbai. On 26h June, 2003, she received message

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about the incident of commission of suicide by

Manda.

7. Upon perusal of her cross-examination,

she stated that, first seven months after

marriage, there was no grievance of accused

against Manda and there was no demand of any

amount by the accused. Even during the period from

May, 2002 till December, 2002 Manda was taken at

Mumbai and she was residing with PW-1. She

specifically admitted in her cross-examination

that, she used to visit the house of the accused

and at that time, she saw T.V., Cupboard and Cot

along with other household articles in their

house. Those articles were there since before

marriage of Manda and accused no.1. She

specifically admitted that, there is no phone at

her house at Mumbai. The suggestion was given to

her that, Manda was hot tempered and sensitive,

however, the said suggestion was denied by her.

She received only one phone call from Manda

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raising grievance about illtreatment and

harassment by the accused. She admitted that, the

cot, mattress and cooler can be purchased for

Rs.2,000/-. She admitted that, the land, which was

sold by her, the names of all five daughters

including Manda were in the revenue record.

Consent of all the daughters were required for

sale of that land. There was oral agreement

between her and daughters that, she will pay

something to them out of sale consideration. The

amount of share of Manda was demanded by Manda. It

appears that, the suggestion was given to her

that, since PW-1 and PW-2, who were present in the

house of the accused on 25th June, 2003 denied to

give money to Manda from her share, there was

quarrel between PW-2 and Manda, however, PW-1 has

denied that, there was any quarrel. She

specifically admitted in her cross-examination

that, the sale transaction of land was to be

completed on 24th June, 2003. She admitted that,

initially, she agreed to sale land to Kalewagh and

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agreement to sale was executed by accepting

Rs.25,000/-. Accused no.1 was mediator for that

transaction. However, the land was not sold to

Kalewagh and was sold to Mandhare. She admitted

that, earnest money of Rs.25,000/- was demanded by

Kalewagh from accused no.1. She tried to give

Rs.25,000/- to Kalewagh, however, he refused to

accept the said amount and insisted for sale of

land in his favour as per the agreement. The

suggestion was also given to her that, the accused

hold 30 to 35 acres irrigated agricultural land,

she admitted that, the accused were running

grocery shop since before marriage of Manda and

they continued to run the same. The suggestion was

also given to her that, in order to avoid

liability of paying earnest money of Rs.25,000/-

to Kalewagh and share of Manda in the

consideration of land which was sold, she falsely

implicated the accused by lodging the F.I.R.,

however, the said suggestion was denied by her.

Cri.Appeal.253.2004

8. Therefore, it is clear from her evidence

that, Manda was happy for seven months from the

date of marriage and she was nicely treated by the

accused. Thereafter from the month of May, 2002 to

December, 2002, Manda stayed with her and give

birth to female child during the said period.

Thereafter she visited the house of accused on 24 th

June, 2003. There was agreement with Kalewagh and

middle man was accused no.1 - Bapu Ghodke and an

amount of Rs.25,000/- was paid by said Kalewagh

for purchasing the land of PW-1. He refused to

accept the said amount. It is also admitted by her

that, T.V., cupboard and cot was already there in

the house of the accused. They were running

grocery shop also.

9. Upon perusal of the evidence of PW-2 -

Namdeo Dhondiba Kalewagh, who is brother of Manda

and also Karta of the family, he was not aware

about the alleged demand of mattress, cooler and

cupboard by the accused. He admitted in his cross-

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examination that, on 24th June, 2003, there was

quarrel between him and Manda, on account of

refusal of the amount towards Manda's share in the

land, which was sold and consideration of

Rs.1,70,000/- was received by PW-1. In his

examination-in-chief, he stated that, the amount

of Rs.1,00,000/- was demanded by accused no.1 for

purchase of Jeep and for his business on 24 th June,

2003. However, the said amount required for his

treatment. He has also stated other details, as

stated by PW-1 about illtreatment and harassment

by the accused persons to Manda. However, in

cross-examination he admitted that, he had no

personal knowledge about the demand of cooler,

mattress and cupboard by the accused. The

suggestion was also given to him that, the accused

persons have 30 to 35 acres irrigated land,

however, he stated that, the financial position of

the accused is not good.

10. Upon considering the evidence of PW-1 and

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PW-2 in its entirety, it does not inspire

confidence, in as much as, their evidence shows

that, on 24th June, 2003, there was quarrel between

Manda and Namdeo Dhondiba Kalewagh (PW-2) on

account of non-payment of consideration amount to

Manda since Manda had share in the property, which

was sold for consideration of Rs.1,70,000/-. Manda

got annoyed due to such refusal of paying the

amount of consideration. As already observed, all

these articles Mattress, Cooler and cot etc., were

already in the house of the accused. The trial

Court on comparison of evidence of prosecution

witnesses found that, their version is

inconsistent so far demand is concerned. On the

contrary, it is observed that, it has come on

record that, Manda got annoyed on 24th June, 2003

for not receiving the amount towards her share in

the property, which was sold by PW-1.

11. It is also relevant to mention that, the

chit Article `A', which was found under blouse of

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Manda, was sent to the Handwriting expert. Except

her signature, her handwriting was not tallied.

Upon careful perusal of the contents of the said

chit, it does not appear that, the same was

written by Manda. It has come in the evidence of

PW-1 that, she studied upto 9th standard. However,

the alleged contents of the chit, if read, even an

illiterate person could have written better. Be

that as it may, since Handwriting expert has not

stated that, handwriting of the said chit is of

Manda on comparison of her other handwriting, it

is not necessary to go into greater length of the

said aspect.

12. At this stage, it is necessary to make

reference to defence taken by accused nos.1 to 4.

It is stated in the said statement that, in order

to avoid payment of Rs.25,000/-, which was given

as an advance amount by Kalewagh for purchasing

the land of complainant, false case is filed

against accused. Manda was of hot tempered and

Cri.Appeal.253.2004

sensitive woman. It is further stated in the said

statement that, one day prior to the date of

incident, Smt. Rahibai (PW-1) and Namdeo (PW-2)

and sisters of Manda came to the house of accused.

Already the land in the name of PW-2 was sold for

consideration of Rs.1,70,000/-. Prior to selling

the said land, there was earlier agreement between

PW-1, PW-2 and Manda that, after sale of that

land, Manda will be given consideration amount

received of her share. When Manda asked for amount

of her share out of the sale consideration of

Rs.1,70,000/- received by PW-1 and PW-2, PW-2

refused to give the amount towards her share, and

on the contrary he stated that, he has incurred

expenditure for marriage of Manda, and therefore,

she has no right to claim her share in the amount

of consideration received by PW-2. There was

quarrel between Manda, Namdeo (PW-2) and

thereafter PW-1 and PW-2 went to Mumbai without

giving share to Manda. The said incident of

quarrel and also refusal of giving amount of her

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share Manda felt very bad and since she was of

sensitive and hot tempered woman, she could not

tolerate such behaviour of PW-1 and PW-2 and

therefore, she committed suicide. It is further

stated in the said statement that, since PW-1 did

not want to return the amount of Rs.25,000/- taken

from Kalewagh through accused no.1 towards advance

of agreement of selling the land. However, the

land was not sold to Kalewagh and PW-1 did not

intend to return the amount of Rs.25,000/-, she

lodged false complaint. Accused never demanded

Rs.1,00,000/- or any other articles from Manda and

her parents. Accused no.4 was already residing

separately before marriage of accused no.1 and

Manda. In the name of accused, irrigated land to

the extent of 2 H 47 R is on record and accused

are financially sound. Therefore, there was no

question of demand of any article or money from

PW-1, PW-2 or Manda.

13. If the evidence of PW-1, PW-2 and also

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other evidence is considered in its totality, it

does not inspire confidence to hold that, the

accused persons illtreated, harassed and assaulted

Manda on non fulfillment of demand of cooler,

cupboard and mattress etc., and Rs. 1,00,000/-, as

alleged by the complainant. On the contrary, if

the entire evidence brought on record by the

prosecution is considered, it clearly emerges

that, there was quarrel between Namdeo (PW-2) and

Manda on 24th June, 2003, on account of refusal of

amount to Manda received towards consideration of

sale of land, to the extent of her share.

Therefore, Manda got annoyed. If the evidence of

prosecution is considered in its entirety, within

proximity of alleged incident of commission of

suicide of Manda, there was no instigation or

abatement or intentionally aiding commission of

suicide of Manda on the part of accused.

14. The trial Court after appreciating the

entire evidence on record has reached to the

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correct conclusion that, the prosecution has

utterly failed to prove the illtreatment,

harassment or any other form of cruelty, which

would attract the ingredients of provisions of

Section 498-A of the I.P.C., and granted benefit

of doubt in favour of the accused.

15. On independent scrutiny of the evidence,

this Court is of the opinion that, the evidence of

the prosecution witnesses do not inspire

confidence to hold that, the accused have

committed offence punishable under Section 498-A

of the I.P.C., which lead for commission of

suicide by Manda. As already observed, there was

no abatement, instigation or intentional aiding

and intending commission of suicide by Manda at

the behest of the accused.

16. The Supreme Court in the case of S.S.

Chheena V/s Vijay Kumar Mahajan and another 1, in

1 (2010) 12 SCC 190

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para 25 observed that, the abetment involves

mental process of instigating a person or

intentionally aiding a person in doing of a thing.

Without a positive act on the part of the

respondents to instigate or aid in committing

suicide, conviction cannot be sustained. The

intention of the legislature and the ratio of the

cases decided by this Court is clear that in order

to convict a person under Section 306 of the

I.P.C. 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 that act must have

been intended to push the deceased into such a

position that he/she committed suicide.

17. At this juncture, it would be useful to

make a reference to the Judgment of the Supreme

Court in the case of Madan Mohan Singh V. State of

Gujarat and another.2 In said case, the deceased

2 2010 AIR SCW 5101

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therein was working as driver under the Ex.Officer

i.e. appellant therein. The said driver allegedly

committed suicide due to harassment and insulting

behaviour by the appellant therein. He left the

suicide note alleging therein that, the appellant

therein asked the driver to keep the keys of the

vehicle on the table and not to take away them. It

was further stated that, "I am going to commit

suicide due to his functioning style. Alone M.M.

Singh, D.E.T. Microwave Project is responsible for

my death. I pray humbly to the officers of the

department that you should not cooperate as human

being to defend M.M. Singh has acted in breach of

discipline disregarding the norms of discipline. I

humbly request the Enquiry Officer that my wife

and son may not be harassed. My life has been

ruined by M.M. Singh."

. The Supreme Court in the facts of

aforesaid case, while explaining the scope of

Sections 306 and 294 vis-a-vis, the facts of that

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case in para 9 held thus:-

"It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The Courts have to be extremely careful as the main person is not available for cross-examination by the appellant/accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant/accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature."

. In the facts of the present case also,

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there is no nexus between so called suicide and

any of the alleged acts on the part of the

respondents. There is no proximity either. Even if

the evidence on record is read in its entirety,

the same would not even remotely suggest that, the

respondents abetted, intentionally aided or

instigated in an alleged suicide by Manda.

18. In the case of Tushar s/o Mahadeorao

Arsul vs. State of Maharashtra and another

(Criminal Application No.3683 of 2012) decided on

26th November, 2012, the Division of the Bombay

High Court, Bench at Aurangabad, in para 6 of the

Judgment observed that:

"We are of the considered view that the act or acts of accused to insult do not by themselves constitute abetment. It has to be shown from a statement in the complaint that these accused have actually instigated and aided in the victim's act of committing suicide. In absence of any such description, the FIR is liable to be viewed

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as a text which does not contain the ingredients of offence."

19. In the case of Dilip s/o Ramrao Shirasao

and others vs. State of Maharashtra and another

(Criminal Application No.332 of 2016) decided on

5th August, 2016, the Division Bench of the Bombay

High Court, Bench at Nagpur considered the various

Judgments of the Supreme Court and the High Court

and in Para 20 of the Judgment, held thus:

"20. As has been held by Their Lordships

of the Apex Court that for permitting a

trial to proceed against the accused for

the offence punishable under Section 306 of

the Indian Penal Code, it is necessary for

the prosecution to at least prima facie

establish that the accused had an intention

to aid or instigate or abet the deceased to

commit suicide. In the absence of

availability of such material, the accused

cannot be compelled to face trial for the

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offence punishable under Section 306 of the

Indian Penal Code. As has been held by

Their Lordships of the Apex Court that

abetment involves mental process of

instigating a person or intentionally

aiding a person in doing of a thing and

without a positive act on the part of the

accused in aiding or instigating or

abetting the deceased to commit suicide,

the said persons cannot be compelled to

face the trial. Unless there is clear mens

rea to commit an offence or active act or

direct act, which led the deceased to

commit suicide seeing no option or the act

intending to push the deceased into such a

position, the trial against the accused

under Section 306 of the Indian Penal Code,

in our considered view, would be an abuse

or process of law."

20. The Supreme Court, in recent Judgment in

the case of Heera Lal and another vs. State of

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Rajasthan (Criminal Appeal No.790 of 2017) decided

on 24th April, 2017, in Para 6 to 10 held thus:

"6. Having heard the learned

counsel appearing for the parties and

having gone through the evidence, we

are of the opinion that Section 113A of

the Indian Evidence Act requires three

ingredients to be satisfied before it

can be applied i.e. (i) that a woman

has committed suicide, (ii) such

suicide has been committed within a

period of seven years from the date of

her marriage and (iii) the husband or

his relatives who are charged had

subjected her to cruelty.

7. This Court in an illuminating

Judgment in Ramesh Kumar vs. State of

Chhattisgarh (2001) 9 SCC 618 has

stated the law as follows:-

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"This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her

Cri.Appeal.253.2004

husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression "may presume" suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to "all the other circumstances of the case". A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression - "the other circumstances of the case" used in Section 113-A suggests the need to reach a cause - and - effect. Relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase "may presume" used in Section 113-A is defined in Section 4 of the Evidence Act, which says - "Whenever it is provided

Cri.Appeal.253.2004

by this Act the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it."

8. We find that having absolved the appellants of the charge of cruelty, which is the most basic ingredient for the offence made out under Section 498A, the third ingredient for application of Section 113A is missing, namely, that the relatives i.e., the mother-in-law and father-in-law who are charged under Section 306 had subjected the victim to cruelty. No doubt, in the facts of this case, it has been concurrently found that the in-laws did harass her, but harassment is something of a lesser degree than cruelty. Also, we find on the facts, taken as a whole, that assuming the presumption under Section 113A would apply, it has been fully rebutted, for the reason that there is no link or intention on the part of the in-laws to assist the victim to commit suicide.

9. In the absence of this vital link, the mere fact that there is a finding of harassment would not lead to the conclusion that there is "abetment of suicide".

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10. On the facts, therefore, we find, especially in view of the fact that the appellants have been acquitted for the crime under Section 498 A of the Code, that abetment of suicide under Section 306 is not made out."

21. Therefore, keeping in view the exposition

of law in the afore mentioned Judgments, in the

present case in absence of any material suggesting

any instigation, abetment or intentional aid on

the part of the respondents in commission of

suicide by Manda, it will have to be held that so

far as the respondents are concerned, the alleged

offence under Section 306 of the I.P.C. is not

disclosed.

22. In the light of discussion in foregoing

paragraphs, in my considered view, the prosecution

has utterly failed to prove the case against the