Manda Narayan Paropte And Another vs State Of Mah. Thr. Pso Ps Ralegaon, ...
2017 Latest Caselaw 6792 Bom

                                                    1                             Judg.050917 apeal 410.03.odt 

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

                                             Criminal Appeal No.410 of 2003

                1]  Manda w/o Narayan Paropte,
                    aged about 52 year, Occ.- Household,

              2] Datta @ Chandrashekhar Narayan Paropte,
                 aged about 26 years,
                 Both applicants r/o.-Relegaon, Tah. Ralegaon, 
                 District Yavatmal.                                                          ....  Appellants.

                                                             -Versus-

                 State of Maharashtra,
                 through P.S.O. P.S. Ralegaon,
                 District Yavatmal.                                                              ....  Respondent.
                 --------------------------------------------------------------------------------------------------
                 Mr.  M.I. Dhatrak, Counsel for appellants.
                 Mr.  S.B. Bissa, Additional Public Prosecutor for State.
                 --------------------------------------------------------------------------------------------------
                                                                  Coram : Mrs. Swapna Joshi, J.

th Dated : 05 September, 2017.

ORAL JUDGMENT

This appeal has been directed against the judgment and

order passed by the learned Additional Sessions Judge, Kelapur in

Sessions Trial No.325 of 2002 (Old Case No.168 of 2001) delivered on

30-06-2003, thereby the learned trial Judge had convicted appellant no.1

(accused no.1-Manda (since dead)) and the appellant no.2 (accused no.2)

under Section 498-A r/w 34 of the Indian Penal Code and sentenced to

2 Judg.050917 apeal 410.03.odt

suffer rigorous imprisonment for two years and to pay a fine of Rs.500/-

each, in default to suffer imprisonment for six months. The appellants

were further convicted for the offence punishable under Section 306 r/w

34 of the IPC and sentenced to suffer rigorous imprisonment for five

years and to pay a fine of Rs. 500/- each, in default to suffer imprisonment

for six months. During the pendency of the appeal appellant no.1-Smt.

Manda died on 22-02-2005 and the appeal against her abated vide order

dated 14-06-2007.

2] I have heard Mr. M.I. Dhatrak, the learned Counsel for the

appellant and Mr. S.B. Bissa, the learned Additional Public Prosecutor for

the State.

3] The facts leading to prefer this appeal can be summarised as

under :-

The appellant (accused no.2) was married with Jyoti on

24-05-2001. The victim was daughter of Indrajeet Kubade (PW-1). The

appellant and the victim were related to each other. After the marriage

Jyoti went to cohabit with her husband at Ralegaon. Her parental place

was Katkhed. It is the case of the prosecution that, on the occasion of

'Akhadi', the father of Jyoti (PW-1) went to fetch Jyoti at Ralegaon. Jyoti

accompanied her father and went to Katkhed. The appellant had a talk

on telephone with Jyoti as well as PW-1. It is the case of the prosecution

that, the appellant told on phone to Jyoti that she had left his house

without his consent and she should not return back to the matrimonial

house. Therefore, on the next day at 9.00 am, PW-1 along with Jyoti

3 Judg.050917 apeal 410.03.odt

came to Ralegaon. The father of the appellant objected as to why Jyoti

had come to their place. At about 5.00 pm, PW-1 alone returned back to

Ralegaon. PW-1 then received a telephonic message that Jyoti was

burnt and she was admitted in the hospital at Yavatmal. Therefore, PW-1

rushed to the hospital. He noticed that Jyoti was completely burnt. On

making enquiry with Jyoti, Jyoti informed him that due to the illtreatment

at the hands of the appellant she got annoyed and set herself on fire in

the compound of the house of the appellant. At the relevant time, API-

Kadu was attached to Ralegaon Police Station. It appears that he came to

know about the said incident. Therefore, he attended the hospital and

recorded the statement of Jyoti. On the basis of the said statement

(PW-5) API- Kadu registered the offence under Section 498-A r/w 34 of

IPC. Thereafter, the Special Executive Magistrate recorded the statement

of Jyoti on 24-06-2001 at about 4.30 pm i.e. on the same day. Jyoti

succumbed to the injuries on 26-02-2001. The dead body of Jyoti was

sent for autopsy. The cause of death revealed as 'septicemia due to

burn'. It is noticed that Jyoti had received 87% burn injuries. After

recording the statement of relatives of witnesses and conducting the

investigation chargesheet was filed in the Court of JMFC, Kelapur. The

learned trial Judge framed the charge. After conducting the trial and on

analysis of the evidence, the learned trial Judge convicted the

appellant/accused as aforesaid. The defence of the appellant was of total

denial.

                                                     4                             Judg.050917 apeal 410.03.odt 

             4]                Mr.   M.I.   Dhatrak,   the   learned   Counsel   for   the   appellant 

vehemently argued that the dying declarations relied upon by the

prosecution are shrouded with suspicious circumstances and serious

infirmities and there is absolutely no evidence on record to show that

deceased Jyoti was physically and mentally fit while making her dying

declaration.

5] The Mr. S.B. Bissa, the learned APP contended that the

learned trial Judge has rightly convicted the appellant on relying upon the

dying declarations and the evidence of the father and the brother of the

deceased.

6] In order to substantiate the rival contentions of both sides, it

is necessary to go through the testimony of Indrajit (PW-1), who is the

father of deceased. According to PW-1, the marriage of Jyoti took place

with the appellant on 26-06-2001. He went to Ralegaon, to fetch Jyoti at

Ralegaon on the occasion of 'Akhadi'. He took Jyoti to Katkhed. At that

place Jyoti received a telephonic call from the appellant and the appellant

said on phone that Jyoti had left her in-laws place without their permission

and therefore it would be better if she would not return and if she returns

back it would not make any difference to the the appellant as Jyoti had left

her in-laws place without their permission. Therefore, on next day 9.00

am PW-1 took Jyoti to Ralegaon. The father of the appellant asked

PW-1 as to why he had come here. PW-1 stated that he had received the

telephonic call from the appellant. He rushed there along with Jyoti at

about 5.00 pm. PW-1 returned back leaving Jyoti at her in-laws place at

5 Judg.050917 apeal 410.03.odt

Ralegaon. Thereafter, PW-1 received a telephonic message from

Ralegaon through a boy that Jyoti was burnt and she was admitted in the

hospital at Yavatmal. Therefore, PW-1 rushed to the hospital at Yavatmal.

On making enquiry with Jyoti, Jyoti told him that she got annoyed

because of the appellant and his mother, therefore, in a fit of anger, she

set herself on fire.

7] So far as the testimony of Hanumant (PW-2) is concerned,

he is the brother of Jyoti. PW-2 stated that at the relevant time he was at

Pulgaon. Jyoti informed him telephonically that the appellant abused

her on phone. Jyoti did not tell anything in details. On receipt of the

message about receivng burn injuries to Jyoti, PW-2 went to the hospital.

On interrogation with Jyoti as to how the incident occurred, immediately

Jyoti did not tell him anything. However, after repeated enquiry Jyoti

informed him that, because of continuous illtreatment by the appellant

and his mother, she was fed up and has set herself on fire. During the

cross examination PW-2 admitted that the appellant was saying to Jyoti

that since there was traffic on road, therefore it was not proper for her to

stand at the door continuously. He also admitted that the appellant was

saying that Jyoti was required to learn how to prepare cook. PW-2 also

admitted that the appellants being their nearest relative they were in

visiting terms with each other on many occasions.

8] On careful testimony of the evidence of PW-1 and PW-2 it is

not clear at what particular time they both reached to the hospital and had

conversation with Jyoti. It is also not clear from their testimony as to

6 Judg.050917 apeal 410.03.odt

whether at that particular time Jyoti was in conscious condition and she

was physically and mentally fit to talk with PW-1 and PW-2. It is also not

clear from the testimony of PW-2 as to what was the continuous

illtreatment given to Jyoti by the appellant. Similarly, the testimony of

PW-1 indicates that because of the appellant and his mother, Jyoti got

annoyed and she set herself on fire. It is, however, not clear as to why

Jyoti got annoyed and what was the reason for getting her annoyed so that

she took such a drastic step of setting herself on fire. The testimony of

PW- 1 and PW-2 do not inspire confidence.

9] It is not disputed that Jyoti committed suicide. The dying

declaration was recorded by PW-3 who is the Special Judicial Magistrate.

According to Sarfarajkhan (PW-3) on 24-06-2001, he received the memo

from concerned Police Station to record the statement of Jyoti

(Exhibit-48). Accordingly, he visited the hospital at Yavatmal. He reached

the hospital at about 4.15 pm. He met with the doctor. He went along with

the doctor near the patient. The doctor examined Jyoti physically and

mentally and opined that the patient was in a fit condition to give her

statement. PW-3 put questions to Jyoti as to how the incident occurred

and the manner in which it occurred. On this Jyoti said always there used

to be a quarrel with her mother in law. She further stated that when she

was sitting on 'ota', at that time her husband said she was not liked by

him. Therefore, she got annoyed and she set herself on fire and

committed suicide. PW-3 recorded the dying declaration of Jyoti

(Exhibit-72). He started recording at 4.20 pm and ended within 10

7 Judg.050917 apeal 410.03.odt

minutes. PW-3 admitted that he did not obtain the certificate of the doctor

that Jyoti was mentally and physically fit to give her statement. It is

noticed that no timing are mentioned in the dying declaration. It is not

stated by PW-3 as to when he started the recording of dying declaration

of Jyoti and when he concluded it. PW-3 obtained the thumb impression

of the deceased and explained the contents of dying declaration to the

patient. The testimony of PW-3 does not reveal that the contents in the

dying declaration were read over to the patient and the patient found it to

be correct. The time is mentioned as 4.30 pm. The recording of D.D.

commenced at 4.20 pm and concluded within 10 minutes. There is no

endorsement of the Medical Officer on the dying declaration that he was

present near the patient while recording her statement and all

throughout the patient was physically and mentally fit to give her

statement.

10] The meticulous scrutiny of the testimony of Dr. Umesh

(PW-4) the Medical Officer, who examined the patient shows that, before

recording dying declaration, he found that she was mentally and

physically fit and she was able to talk. Accordingly, he endorsed to that

effect on the dying declaration (Exhibit-72) and issued certificate (Exhibit

72-A). PW-4 stated that he informed to the Executive Magistrate that the

patient is fit to give her statement. The Executive Magistrate put

questions to Jyoti and recorded the answers in his presence and Jyoti

accordingly answered the questions of the Executive Magistrate and

accordingly he issued the certificate (Exhibit-72-B). During the cross

8 Judg.050917 apeal 410.03.odt

examination PW-4 stated that he had not specifically mentioned that the

patient was mentally and physically fit to give her statement. On perusal

of the certificate Exhibit-72-A, it is noted that, there is no mention in the

said certificate that the Medical Officer was all throughout present while

recording the statement of Jyoti and Jyoti was physically and mentally fit

to give her statement. There is no evidence on record to show that Jyoti

was physically and mentally fit to give her statement at the relevant time.

It is significant to note that, PW-3 has specifically stated that he had

verified the case papers with regard to the treatment of Jyoti and some

injections were injected to her.

11] As far as the dying declaration recorded by the Investigating

Officer (PW-5) is concerned, he has recorded the dying declaration of

Jyoti (Exhibit-76). According to PW-5, he issued letter to the Medical

Officer before recording the dying declaration and the Medical Officer

informed him that the patient was in a fit condition to speak and thereafter

he recorded the dying declaration. PW-5 stated that the patient told him

that her mother-in-law quarrels with her on the count of cooking food and

husband was saying that she was disliked by him, he was insisting to give

divorce to him and because of the said conduct she set herself on fire. On

careful scrutiny of dying declaration (Exhibit-76) it is noticed that, there is

no endorsement by the Medical Officer who has recorded the statement

of Jyoti that she is mentally and physically fit to give her statement.

Therefore, it is not clear as to whether Jyoti was mentally and physically fit

to give her statement. In view thereof, the dying declaration (Exhibit -76)

9 Judg.050917 apeal 410.03.odt

cannot be relied upon. The dying declarations recored by the Executive

Magistrate as well as the Investigating Officer do not inspire confidence.

12] In this regard a useful reference can be made of the case

Sanju alias Sanjay Singh Sengar v State of M.P. reported in

(2002) 5 SCC 371 wherein a quarrel took place between the appellant and

the deceased. The appellant said to the deceased 'to go and die" and two

days thereafter the deceased committed suicide. She made a suicide

note. The Hon'ble apex Court observed that "to go and die" itself does not

constitute the ingredient of instigation. The word "instigate" denotes

incitement or urging to do some drastic or inadvisable action or to

stimulate or incite. It is further held that the presence of mens rea is the

necessary concomitant for instigation.

13] In the instant case the dying declaration (Exhibit-72) depicts

that there was quarrel between Jyoti and her mother-in-law. Jyoti was

sitting on 'ota'. At that time her husband said that he did not like her and

therefore she got annoyed and set herself ablaze. So far as the

allegations against the mother-in-law are concerned, the mother-in-law

is no more and the trial against her already stood abated. As regards the

allegations against the appellant are concerned, the appellant simply

stated that 'he did not like her'. This version in no manner indicate that

the appellant instigated or abetted the deceased to commit suicide. As

regards the dying declaration (Exhibit-76) is concerned, it reveals that,

Jyoti stated that on the earlier night at about 11 pm, her mother-in-law

quarrelled with her on the count of cooking food and said as to why she

10 Judg.050917 apeal 410.03.odt

was sitting outside. The said version is against the accused no.1. So far

as the allegations against the appellant are concerned, Jyoti stated that

her husband was saying that he did not like her, he was not taking food,

he was not talking with her and he was taking divorce from her. Jyoti

could not tolerate this and committed suicide by pouring kerosene on her

body and set herself ablaze. On careful scrutiny of dying declaration

(Exhibit-76) it appears that, some different reasons are mentioned for

committing suicide by Jyoti. According to Jyoti, her husband was saying

that he did not like her, he was not taking food, he was not talking with

her and he was asking for divorce from her. However as discussed above,

the said statement cannot be relied upon as it is not clear as to while

recording the said statement, Jyoti was mentally and physically fit to give

her statement and so also the said statement does not in any manner

indicate that the appellant instigated Jyoti to commit suicide.

14] In (2017) 1 SCC 433 in case of Gurcharan Singh v. State of

Punjab, the Hon'ble apex Court has observed in para 21 as under :-

"21. It is thus manifest that the offence punishable is one of abetment of the commission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment therefor, To constitute abetment, the intention and involvement of the accused to aid or instigate the commission of suicide is imperative. Any severance or absence of any of these constitutes would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualise the suicide would fall short as

11 Judg.050917 apeal 410.03.odt

well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, continuity, culpability and complicity of the indictable acts or omission are the concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide."

15] No doubt Jyoti committed suicide within one month from her

marriage. Section 113-A of the Evidence Act, 1872 permits a

presumption as to the abetment of suicide by a married woman by the

husband or any relative of his, if it is proved that she had committed the

act within a period of seven years from the date of her marriage and that

her husband or such relative of his had subjected her to cruelty. Section

113-A of the Evidence Act reads as under :-

"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 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."

In this regard, Section 498-A of IPC reads as under :-

"498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three

12 Judg.050917 apeal 410.03.odt

years and shall also be liable to fine.

Explanation.-For the purposes of this section. "cruelty" ,means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

In the present case, there is absolutely no evidence on

record to show that Jyoti was treated with cruelty by the appellant.

16] The Hon'ble apex Court in the case of S. S. Chheena vs.

Vijay Kumar Mahajan and another, reported at 2010 Mh.L.J. Online (Cri.)

(S.C.) 4 = (2010) 12 SCC 190, in 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

accused to instigate or aid in committing suicide, conviction cannot be

sustained. The intention 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 Indian penal Code 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 committed suicide.

                                                     13                             Judg.050917 apeal 410.03.odt 

             17]               The intention of the legislature is that in order to convict a 

person under Section 306 IPC, there has to be a clear mens rea to commit

a offence and that there ought to be an active or direct act leading the

deceased to commit suicide, being left with no option.

18] This Court in the case of Sanjay Saosakde vs. The State of

Maharashtra, reported in MANU/MH/3207/2015 has, in similar

circumstances held that dying declaration should be voluntary and should

not be promoted and physical as well as mental fitness of maker is to be

proved by the prosecution. It is further held that the prosecution has

miserably failed to prove material aspect beyond reasonable doubt.

19] There is no continuous illtreatment meted out to the

deceased by the appellant. In the present case it appears that the

incident had taken place on a trifle issue, therefore, she committed

suicide. There is no evidence on record with regard to the cruelty meted

out at the hands of the appellant. Similarly, there is no evidence on record

to show that the appellant instigated Jyoti to commit suicide. The judgment

delivered by the learned trial Judge apparently appears to be illegal and

perverse, in as much as the learned trial Judge has failed to consider that

both the dying declarations do not indicate that the deceased was treated

with cruelty and the appellant nos.1 and 2 instigated Jyoti or sustained

incitement for suicide.

20] 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 appellant. The learned trial Court has

14 Judg.050917 apeal 410.03.odt

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 No.410 of 2003 is allowed.

(b) The judgment and order dated 30-06-2003 delivered

by Additional Sessions Judge, Kelapur in Sessions

Trial No.325 of 2002 (old) No. 168 of 2001) is quashed

and set aside.

(c) The appellant is acquitted of the offences under

Sections 498-A r/w 34 and 306 r/w 34 of I.P.C.

(d) The bail bond furnished by the appellant stands

cancelled.

(e) The fine amount, if any, deposited by the appellant be

refund to him, if not withdrawn.

(f) Muddemal property be dealt with as directed by Trial

Court after the appeal period is over.

JUDGE

Deshmukh