Houslal Lakhanlal Macchrike vs The State Of Mah. Thr. Pso Gondiya
2017 Latest Caselaw 7401 Bom

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

                                            Criminal Appeal No.745 of 2003

                Houslal Lakhanlal  Macchrike,
                aged about  28 years, Occ.-Agriculturist,
                R/o.-Latori, Tah. Salekasa, Dist.Gondiya.                       ....  Appellant.

                                                            -Versus-

             The State of Maharashtra,
             through Police Station Officer Salekasa, 
             Tah.-Salekasa, Distt. Gondiya.                                         ....  Respondent.
              --------------------------------------------------------------------------------------------------
              Mr.   S.G. Karmarkar, Counsel  for appellant.
              Mrs. Shamsi Haider, Additional Public Prosecutor for respondent/State.
              --------------------------------------------------------------------------------------------------
                                                               Coram : Mrs. Swapna Joshi, J.

September, 2017.

Dated : 22nd

ORAL JUDGMENT

This appeal has been preferred by the appellant (hereinafter

will be referred as 'the accused') against the judgment and order passed

by the learned Ist Adhoc Additional Sessions Judge, Gondiya in Sessions

Trial No.72 of 2001 on 25-11-2003, whereby the learned trial Judge had

convicted the accused for the offence punishable under Section 306 of the

Indian Penal Code and sentenced to suffer rigorous imprisonment for five

years and to pay a fine of Rs.2000/-, in default, to suffer simple

imprisonment for three months.

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             2]                The learned trial Judge further convicted the accused for the 

offence punishable under Section 498-A of IPC and sentenced to suffer

rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in

default, to suffer simple imprisonment for one month.

3] I have heard Mr. S.G. Karmarkar, the learned counsel for the

appellant and Mrs. Shamsi Haider, the learned Additional Public

Prosecutor for the respondent/State. With their assistance, I have

carefully gone through the record of the prosecution case.

4] The facts in brief are as under :-

Komalwati (deceased) married to the accused on 30-04-1998

at Bordi, District Balaghat (MP). After marriage, Komalwati started

residing with the joint family of accused at Latori, Tahsil Salekasa, District

Gondiya. It is the case of the prosecution that, at the time of marriage, the

father of deceased Komalwati presented her necessary household articles

and performed the marriage as per his financial status. For about one

year, there were no complaints from Komalwati. However, after about one

year of marriage, the accused started demanding Sofa and Bed.

Accordingly, PW-2 presented those articles to him. The accused then

demanded motorcycle, however, the father of Komalwati could not fulfill

his demand. On 03-11-2000, Komalwati delivered first female baby by

name Jidyasa. It is alleged that, the accused was insisting Komalwati to

bring motorcycle, furniture, ornaments and the amount of Rs. 10,000/-

and for that demand the accused used to harass her. During Raksha

Bandhan festival of 2001, Komalwati visited her parental house at Bordi

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and disclosed the illtreatment meted out by the accused. At that time,

she was carrying second pregnancy. Komalwati resided with her parents

till Ganesh festival. Komalwati was not ready to return her matrimonial

house. However, her father reached her to Latori and paid the amount of

Rs. 10,000/- to the accused. On 07-10-2001, Komalwati delivered a

second female child at Latori. It caused much displeasure in the family

of the accused and they were disappointed due to the birth of second

female child and so also their demands were not fulfilled. It is alleged that

the accused started harassing Komalwati. Komalwati could not tolerate

the said harassment and on 30-10-2001 at about 5.30 to 6 o'clock in the

early morning, she killed her both the daughters by administrating

Endosulfan insecticide and committed suicide by consuming the said

poison.

5] PW-1-Gendlal, the Police Patil, immediately informed about

the said incident to Police Station Salekasa and lodged the report

(Exhibit-55). The Police rushed to the place of incident and conducted

the spot panchanama (Exhibit-69). The traces of vomitus were collected

from the spot (Exhibit-70). During the course of investigation it was

observed that, Komalwati had confined herself in a room and in order to

prevent the entry of others, she had placed obstacle of heavy weight

besides the door of the room. When the villagers entered inside the

room, both the daughters and Komalwati were found struggling for life.

Prior to shifting them to hospital, Komalwati died on the spot, whereas her

both the daughters died in Primary Health Centre, Salekasa.

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             6]                The Police conducted the inquest panchanama (Exhibit-67). 

The dead bodies of Komalwati and her two daughters were sent for post

moretm (Exhibit-74). The PM report reveals the cause of death as

cardiorespiratory arrest due to Organo Phosphorus poison.

7] On 01-11-2001, the father of deceased (PW-2) lodged the

complaint (Exhibit-57) against the present accused and his relatives. On

the basis of the said complaint, the offence was registered. The

statements of the witnesses were recorded and after completion of

investigation, the chargesheet was filed in the Court of learned JMFC,

Amgaon. The case was committed to the Court of Sessions. The

learned trial Judge framed the charge and after adducing the evidence

and hearing both the sides, the learned trial Judge acquitted the other

accused i.e grandmother-in-law and brother-in-law of the present accused.

However, the appellant was convicted as aforesaid. Hence, this appeal.

8] I have heard Mr. S.G. Karmarkar, the learned Counsel for the

appellant and Mrs. Shamsi Haider, the learned APP for the State. I have

carefully gone through the record and proceedings of the case.

9] Mr. S.G. Karmarkar, the learned Counsel for the appellant

vehemently argued that the learned trial Judge has not considered the

testimony of the witnesses in right perspective and has convicted the

accused erroneously.

10] Mrs. Shamsi Haider, the learned APP contended that the

learned trial Judge has rightly convicted the accused after considering the

entire evidence on record.

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             11]               In order to verify   the rival contentions of both the sides, it 

would be advantageous to go through the evidence led by the prosecution.

On considering the prosecution case, it is noticed that the defence has

not seriously disputed that Komalwati died a suicidal death. It is also not

disputed that as Komalwati administered her two daughters insecticide,

they died. It is already discussed above, the post mortem report reveals

the cause of death as cardiorespiratory arrest due to Organo Phosphorus

poison. The CA report reveals the detection of Organochloro insecticide

Endosulfan (Thiodan) and Petroleum hydrocarbons in the viscera. Thus,

there is no doubt that, Komalwati died due to consuming poison and her

death was suicidal one.

12] In order to prove the fact that the accused was responsible

for the said suicidal death, the prosecution heavily relied upon the

testimony of PW-2-Krishnadas, PW-3-Rewatibai and PW-5-Thakurdas.

According to PW-2-Krishnadas, who is the father of deceased, stated that

deceased Komalwati was his daughter. Her marriage was performed with

accused on 30-04-1998. According to PW-2, for about one year after the

marriage, there was no demand from the accused. However, thereafter,

the accused demanded Sofa and Bed. Accordingly, he presented those

articles. The accused then demanded motorcycle, but he could not fulfill

the said demand. PW-2 stated that, in the year 2000, Komalwati

delivered a female child. PW-2 specifically stated that, after first delivery,

Komalwati used to visit his house. She used to complain that, the

accused insisted her to bring motorcycle and Rs. 10,000/-. Komalwati

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visited her parental house during festival of Raksha Bandhan of 2000. At

that time, she was reluctant to go to her matrimonial house. She was

disturbed, as the accused was harassing her for dowry. During Ganesh

festival, he reached Komalwati to her matrimonial home. According to

PW-2, Komalwati delivered a second female child in October, 2001. The

second child was delivered within a year from the first delivery. Therefore,

the accused started blaming her that how many daughters Komalwati

going to deliver like this.

13] PW-2-Krishnadas stated that, on 30-10-2001, he came to

know from two persons of the village of accused that his daughter

Komalwati was unconscious. PW-2 immediately rushed to Latori with

them. PW-2 further stated that, Komalwati was already dead by that time.

His grand daughters were already shifted to the hospital before his arrival

and both died in the hospital. PW-2 then lodged complaint against the

accused (Exhibit-57). During the cross examination, few improvements

were pointed out regarding the fact that, Komalwati had been to his

house during Raksha Bandhan and she was not ready to go to her

matrimonial home and that the accused was blaming his daughter that

how many daughters she was going to deliver. PW-2 confirmed that the

accused was desirous of a male baby. The testimony of PW-2 is not

shattered in the cross examination, so far as the demands of sofa, bed

and motorcycle are concerned. It is also not shattered in the cross

examination that, Komalwati was disturbed, as the accused was harassing

her for dowry.

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             14]               The testimony of PW-2-Krishnadas is corroborated with the 

testimony of PW-3-Rewatibai, who is the mother of deceased Komalwati.

According to her, one year after the marriage, the accused started

harassing Komalwati and he was insisting her to bring ornaments,

Watch, Cycle, T.V., Fan, Cash, Almirah, Bed etc. The accused was also

insisting for motorcycle and was harassing her for the said purpose. PW-3

stated that Komalwati had been to her house during Raksha Bandhan

and stayed with her till Ganesh festival. During her stay, she narrated

about the harassment at the hands of the accused. Komalwati used to

say how she will go, as demands were not fulfilled. The father of

Komalwati handed over the amount of Rs. 10,000/- to her and reached

her to her matrimonial home. PW-3-Rewatibai stated that, at the time of

second delivery of her daughter, she had been to her house at Latori.

She stayed there for 2/3 days. She stated that as Komalwati delivered a

female baby, the entire family was not happy. The accused used to say

that meal should not be provided to Komalwati and there was no need to

look after her health. Komalwati narrated the harassment to her. PW-3

stated that accused was blaming her daughter that, she had delivered two

female babies within a year and she was not provided sufficient food.

15] PW-3-Rewatibai stated that before Diwali, they received

information that Komalwati was serious and later on she came to know

that her daughter died. Few improvements were pointed out in the

evidence of PW-3, about the accused insisting Komalwati to bring Fan,

Watch, ornaments and Almirah and harassing for that purpose. Further

8 Judg 220917 apeal 745.03.odt

an improvement was pointed out that the accused was not providing

sufficient food to Komalwati. The testimony of PW-3-Rewatibai is not

shaken during her exhaustive cross examination and her testimony

remains unshattered with regard to her version that Komalawti harassed,

as she had delivered two female babies. The testimony of PW-3 also

makes clear that accused used to harass Komalwati for fulfilling his

demand of motorcycle.

16] As per the testimony of PW-5-Thakurdas, who is the uncle of

deceased Komalwati, whenever Komalwati visited her parental house at

Bordi, she used to visit his house at Lanji. He stated that initially the

relations between accused and Komalwati were cordial for a year,

thereafter, the accused used to demand ornaments, Sofa, Bed, Motorcycle

etc. and on that issue, he used to taunt her and harass her. Komalwati

delivered a female child one year after her marriage. Even after her

delivery Komalwati used to make similar complaints against the accused.

PW-5 stated that during Ganesh festival of 2001, Komalwati had been to

Bordi. They all persuaded her and she was reached to the house of the

accused by her father. At that time she was carrying. She delivered

second female baby at Latori. During the cross examination, it is noticed

that there is an improvement in the version of PW-5 with regard to the fact

that the accused used to pass taunts. The testimony of PW-5 is not

shaken in the cross examination. PW-5 is found to be a reliable witness.

17] The testimony of PW-2-Krishnadas and PW-3-Rewatibai

corroborates with the testimony of PW-1-Gendlal. The testimony of PW-1

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is in consonance with his complaint (Exhibit-55). The testimony of all

these three witnesses shows that the deceased Komalwati was being

harassed for the demand of dowry i.e. Sofa, Bed and Motorcycle and she

was also harassed as she had delivered female babies particularly she

delivered second female baby when the accused was desirous to have a

male child. Due to the said harassment at the hands of accused,

Komalwati had no option but to commit suicide. The cruelty was to such

an extent that Komalwati under depression caused death of her two

innocent daughters.

18] 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 thereof. 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 constituents 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 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."

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             19]               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 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

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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."

Thus the prosecution has proved its case beyond reasonable

doubt.

20] From the above said discussion, it is noticed that the learned

trial Judge has rightly convicted the accused. There is no illegality or

perversity noticed in the judgment of the trial Court. In view thereof, the

appeal is hereby dismissed. Hence, the following order is passed:-

O r d e r

(a) Criminal Appeal No. 745 of 2003 is dismissed.

(b) The judgment and order passed by the learned Ist

Adhoc Additional Sessions Judge, Gondiya in

Sessions Trial No.72 of 2001 on 25-11-2003 stands

confirmed.

(c) The sentence of appellant for the offences punishable

under Sections 306 and 498-A of the IPC is

maintained.

                      (d)       The   appellant   is   on   bail.     His   bail   bond   stands  

                                cancelled.   He   is   directed   to   surrender     before   

the learned Ist Adhoc Additional Sessions Judge,

Gondiya to undergo the remaining period of sentence.

If he does not surrender within a period of four weeks

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from today, the learned trial Court is directed to take

appropriate action in accordance with law.

(e) Muddemal property be dealt with as directed by trial

Court after the appeal period is over.

JUDGE

Deshmukh