Bombay High Court

Rajesh S/O Sakharam Sheware vs State Of Maharashtra on 29 September, 2017

Bench: R. B. Deo

 apeal651.02.J.odt                         1




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.651 OF 2002

          Rajesh s/o Sakharam Sheware,
          Aged 35 yrs., Occ: Skilled Job,
          R/o Old Jaitala, Nagpur
          (At present Central Jail, Nagpur
          since 24.10.2002).              ....... APPELLANT

                                   ...V E R S U S...

          The State of Maharashtra,
          through P.S.O. P.S. M.I.D.C., Nagpur
          vide Crime No.127/2001.                   ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Ms. Dharini Muley, Advocate for Appellant.
          Shri N.B. Jawade, APP for Respondent/State.
 -------------------------------------------------------------------------------------------


 CORAM:  ROHIT B. DEO, J.

DATE OF RESERVING THE JUDGMENT : 25.09.2017 DATE OF PRONOUNCING THE JUDGMENT : 29.09.2017

1] Exception is taken to the judgment and order dated

24.10.2002 delivered by the 3rd Adhoc Additional Sessions Judge,

Nagpur in Sessions Trial 25/2002, by and under which, the

accused is convicted of offence punishable under section 498-A

and 306 of Indian Penal Code and is sentenced to suffer rigorous

imprisonment for the period of two years and to payment of fine

of Rs.1000/- and is further convicted of offence punishable under

section 306 of I.P.C. and is sentenced to suffer rigorous

imprisonment for four years and payment of fine of Rs.1500/-.

2] Heard Ms. Dharini Muley, the learned counsel for the

accused and Shri N.B. Jawade, the learned Additional Public

Prosecutor for the respondent/State.

3] The case of the prosecution as is unfolded during the

trial is that the appellant (hereinafter referred to as "the accused")

and the deceased Leelabai entered into wedlock in 1997.

Initially, Leelabai was treated well. However, after a year accused

started ill-treating Leelabai. The accused was demanding

Rs.5000/- for availing electric connection. He was also physically

ill-treating Leelabai under the influence of liquor. Leelabai was

pregnant, her mother Sugandhabai wished to take Leelabai her

home to celebrate the pregnancy, the accused however, did not

oblige.

Leelabai committed suicide by consuming poison on

15.07.2001. She expired at 10:30 p.m. while under going

treatment at Medical College & Hospital, Nagpur. An accidental

death inquiry was registered under section 174 of the Code of

Criminal Procedure. The case of the prosecution is that

Sugandhabai the mother of the deceased and other relatives

noticed injuries on the face of the deceased and were not satisfied

by the explanation of the accused that the injuries were caused

due to a fall. Sugandhabai lodged a report on 17.07.2001, the gist

of which was that the deceased was subjected to ill-treatment in

connection with monetary demand of Rs.5000/- and that she was

beaten by the accused under the influence of liquor. On the basis

of the said report, offence was registered against the accused

under section 498-A and 306 of I.P.C.

4] Investigations ensued, supplementary statement of

Sugandhabai was recorded, the statements of other relatives

including the brother of the deceased, neighbours were recorded

and upon completion of the investigation charge-sheet was

submitted in the Court of the Judicial Magistrate First Class, Court

9, Nagpur who committed the case to the Sessions Court.

The learned Sessions Judge framed charge at Exh.3, the accused

pleased not guilty and claimed to b tried. The defence of the

accused as is discernible from the statement recorded under

section 313 of the Cr.P.C. is of false implication. A specific defence

is taken that since Leelabai was not in a position to conceive, she

was depressed.

5] The learned counsel for the accused Ms. Dharini

Muley submits that the prosecution has miserably failed to prove

the offence under section 306 and 498-A of I.P.C. beyond

reasonable doubt. She would further submit, that the learned

Sessions Judge fell in serious error in invoking the presumption

under section 113-A of the Evidence Act.

She would submit that since the prosecution failed to

establish that the deceased was subjected to cruelty, the statutory

presumption under section 113-A was not available to the

prosecution.

6] Per contra, Shri Jawade, the learned A.P.P. submits

that the prosecution has proved beyond reasonable doubt that the

deceased was subjected to cruelty. The statutory presumption

under section 113-A is activated, and in the absence of a rebuttal,

the accused is rightly convicted of offence punishable under

section 306 and 398-A of I.P.C.

7] The mother of the deceased Sugandhabai is examined

as P.W.1. She has deposed that the accused was beating the

deceased under the influence of liquor and was ill-treating the

deceased in accordance with demand for Rs.5000/-. P.W.1 has

deposed that an amount of Rs.5000/- was demanded since the

accused wished to avail an electric connection. P.W.1 has deposed

that Leelabai was in the sixth month of pregnancy and P.W.1

wished to escort her to parental house for the pregnancy

ceremony. The accused told P.W.1 that unless Rs.5000/- is paid,

Leelabai will not be sent for the pregnancy ceremony, is the

deposition of P.W.1. She states that the interaction or meeting in

which she expressed desire to take Leelabai for the pregnancy

ceremony and the accused told her that Leelabai will not be sent

unless Rs.5000/- is paid, occurred eight days prior to the death.

8] P.W.1 has deposed that she saw marks of beating on

the body of Leelabai and asked the accused why did he kill

Leelabai. The response of the accused was that Leelabai sustained

injuries due to fall. In the cross-examination, P.W.1 admits that

the relatives of the accused and the family members of the

deceased were present during the last rites. P.W.1 further admits

that none of the relatives of Leelabai approached the police.

She states that when she returned to the village, the police made

inquiries with her. She however, states that the police had not

read over the report. P.W.1 admits that after marriage Leelabai

was unable to continue with the conception. She further admits

that one or two months prior to the death, Rajesh had obtained

electric connection. She admits that neither Rajesh nor Leelabai

were visiting her house. She denies the suggestion that Leelabai

was not pregnant.

9] Be it noted that, the postmortem report of the

deceased does not reveal that she was pregnant. The evidence of

Sugandhabai that she wished to take Leelabai for pregnancy

ceremony and that the accused refused saying that she will be sent

only if Rs.5000/- is paid, is rendered suspect. Moreover, she has

admitted that one or two months prior to the death the accused

obtained the electric connection. This is inconsistent with the

version of P.W.1 that eight days prior to the death there was a

demand for Rs.5000/- to avail the electric connection.

10] Gautam, the brother of the deceased is examined as

P.W.2. He states that when he visited the house of the deceased,

she said that she was beaten by the accused and asked P.W.2 to

send her mother (P.W.1). He has deposed that Leelabai was

telling that the accused demanded money for electricity

connection. He has deposed that the body had bleeding marks on

the face. In the cross-examination P.W.2 states that he visited

Leelabai 4 to 5 times. He admits that Leelabai did not come to his

house since two years prior to her death. Nirmala who is the

maternal aunt of the deceased and sister of P.W.1 is examined as

P.W.4. She has deposed that the deceased came to her house

twice or thrice after marriage. The deceased told Nirmala that the

accused was beating her and demanded Rs.5000/- for availing

electric connection. P.W.4 has then deposed that when Leelabai

was seven months pregnant Sugandhabai P.W.1 went to fetch her

and the accused did not sent Leelabai. She has also deposed that

the signs of bleeding were visible on the face of the body. She has

deposed that according to the accused the injuries were caused

due to fall.

11] In the cross-examination P.W.4 Nirmala admits that

she met Leelabai in her home after one year of marriage and

thereafter she did not visit the home of the deceased. She further

admits that Leelabai did not come to meet her. She further admits

that Leelabai was not in a position to continue with the

conception-pregnancey.

12] Ramdas, a close relative of the deceased, is examined

as P.W.5. He claims that Leelabai told him that he was ill-treated

by the accused under the influence of liquor. He further claims

that Leelabai told him that Rajesh was demanding an amount of

Rs.5000/- for availing electric connection. P.W.5 has deposed that

the deceased stayed at his residence for 2 to 4 days.

14] P.W.6 Pramila, a neighbour of the accused did not

support the prosecution. She was cross-examined on behalf of the

prosecution. However, nothing is brought on record to assist the

prosecution.

15] Ms. Dharini Muley, the learned counsel for the

accused would submit that the evidence on record is absolutely

unreliable. She would submit that the demand of Rs.5000/- for

availing electric connection, which is the common thread in the

evidence of the relatives of the deceased, is not proved. In fact,

the evidence of P.W.1 that eight days prior to the death of the

deceased the accused demanded Rs.5000/- for electric connection

is falsified from the admission in the cross-examination that the

electric connection was already obtained a month or two prior to

the death. The learned counsel would submit that the defence of

the accused that Leelabai committed suicide since she was

depressed due to inability to continue with the pregnancy is more

than probablized on the touchstone of preponderance of

probabilities. The postmortem report rules out pregnancy. P.W.1

admits that Leelabai was not able to continue with the conception

and was uneasy which supports the defence that Leelabai

committed suicide since she was depressed. Allegation that

Leelabai was beaten under the influence of liquor or was ill-

treated otherwise is absolutely vague, lacking in material

particulars, sketchy and therefore, not reliable, is the submission.

She would invite my attention to the following observations of the

Hon'ble Supreme Court in Amalendu Pal Alias Jhantu v. State of

Bengal (2010) 1 SCC 707:

12. 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 circumstance 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 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 Section 306 IPC is not sustainable.

She would rely on the following observations in M. Mohan v. State

represented by the Deputy Superintendent of Police (2011) 3 SCC

626:

42. In State of W.B. v. Orilal Jaiswal this Court has cautioned that (SCC p.90, para 17) 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 her life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life, quite common to the society, to which the victim belonged and such petulance, discord and difference 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.

44. Abetment involves a 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 learned counsel would submit that since cruelty

within the meaning of section 498-A of I.P.C. is not established,

the presumption under section 113-A of the Evidence Act is not

activated. She relies on the following observations of the Hon'ble

Supreme Court in Mangat Ram v. State of Haryana (2014) 12 SCC

595:

29. In the instant case, of course, the wife died few months after the marriage and the presumption under Section 113-A of the Evidence Act could be raised. Section 113-A of the Evidence Act reads as follows:

"113-A. Presumption as to abetment of suicide by a married woman.-- When the question is whether the commission of suicide by a woman hand 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 has 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."

30. We are of the view that the mere fact that if a married woman commits suicide within a period of

seven years of her marriage, the presumption under Section 113-A of the Evidence Act would not automatically apply. The legislative mandate is that where a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband has subjected her to cruelty, th presumption as defined under Section 498-A IPC, may attract, having regard to all other circumstance of the case, that such suicide has been abetted by her husband or by such relative of her husband. The term "the Court may presume, having regard to all the other circumstance of the case, that such suicide had been abetted by her husband" would indicate that the presumption is discretionary. So far as the present case is concerned, we have already indicated that the prosecution has not succeeded in showing that there was a dowry demand, nor would the reasoning adopted by the courts below would be sufficient enough to draw a presumption so as to fall under Section 113-A of the Evidence Act.

31. In this connection,, we may refer to the judgment of this Court in Hans Raj v. State of Haryana, wherein this Court has examined the scope of Section 113-A of the Evidence Act and Sections 306, 107, 498-A, etc. and held that unlike Section 113-B of the Evidence Act, a statutory presumption does not arise by operation of law merely on the proof of circumstances enumerated in Section 113-A of the Evidence Act. This Court held that, under Section 113-A of the Evidence Act, the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband has subject her to cruelty. Even though those facts are established, the court is not bound to presume that suicide has been abetted by her husband. Section 113-A, therefore, gives discretion to the court to raise such a presumption having regard to all other circumstances of the case, which means that where the allegation is of cruelty, it can consider the nature of cruelty to which the woman

was subjected, having regard to the meaning of the word "cruelty" in Section 498-A IPC.

32. We are of the view that the circumstances of the case pointed out by the prosecution are totally insufficient to hold that the accused had abetted his wife to commit suicide and the circumstance enumerated under Section 113-A of the Evidence Act have also not been satisfied.

33. In Pinakin Mahipatray Rawal v. State of Gujarat, this Court has examined the scope of Section 113-A of the Evidence Act, wherein this Court has reiterated the legal position that the legislative mandate of Section 113-A of the Evidence Act is that if a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty, as per the presumption defined in Section 498-A IPC, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by the husband or such person. The court held that, though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under Section 498-A IPC is on the prosecution. The court held that the burden is on the prosecution to establish the fact that the deceased committed suicide and the accused abetted the suicide. In the instant case, there is no evidence to show whether it was an accidental death or whether the deceased had committed suicide.

16] The submission of the learned A.P.P. is that cruelty

within the meaning of explanation (a) and (b) of section 498-A of

I.P.C. is established. The statutory presumption is 113-A is

activated and axiomatically offence under section 306 of I.P.C. is

proved.

17] It would be apposite to consider the scope and ambit

of section 306 of I.P.C. Ms. Dharini Muley invites my attention to

the judgment of the Hon'ble Supreme Court in Mangat Ram vs.

State of Haryana (2014) 12 SCC 595 and in particular to the

following observation to paragraphs 28, 29, 30, 31 and 33 which

read thus:

28. We have already indicated that the trial court has found that no offence under Section 304-B IPC has been made out against the accused, but it convicted the accused under Section 306 IPC, even though no charge had been framed on that section against the accused. The scope and ambit of Section 306 IPC has not been properly appreciated by the courts below. Section 306 IPC reads as under:

"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."

Abetment of suicide is confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under Section 306 IPC, abetment must attract the definition thereof in Section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it. It would be evident from a plain reading of Section 306 read with Section 107 IPC that, in order to make

out the offence of abetment or suicide, necessary proof required is that the culprit is either instigating the victim to commit suicide or has engaged himself in a conspiracy with others for the commission of suicide, or has intentionally aided by an act or illegal omission in the commission of suicide.

18] Ms. Dharini Muley, the learned counsel for the

appellant also relies on the following observation in Sanju alias

Sanjay Singh Sengar v. State of M.P. 2002 Cri. L.J. 2796 (SC) to

contend that even if the entire evidence is taken at face value, the

necessary mens rea is not proved and the prosecution has not

established that the accused instigated deceased Saroja to commit

suicide and relies in particular on the following observations in

paragraphs 7 to 13 which read thus:

7. Section 107, I.P.C. defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person 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.

8. Before we advert further, at this stage we may notice a few decisions of this Court, relevant for the purpose of disposal of this case.

9. In Swamy Prahaladdas v. State of M.P. and Anr., 1995 Supp. (3) SCC 438, the appellant was charged for an offence under Section 306, I.P.C. on the ground that the appellant during the quarrel is said to have remarked the deceased 'to go and die'. This Court was of the view that mere words uttered by the accused to the deceased 'to go and die' were not even prima facie enough to instigate the deceased to commit suicide.

10. In Mahendra Singh v. State of M.P. 1995 Supp. (3) SCC 731, the appellant was charged for an offence under Section 306, I.P.C. basically based upon the dying declaration of the deceased, which reads as under:

"My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of those reasons and being harassed I want to die by burning."

11. This Court, considering the definition of 'abetment' under Section 107, I.P.C., found that the charge and conviction of the appellant for an offence under Section 306 is not sustainable merely on the allegation of harassment to the deceased. This Court further held that neither of the ingredients of abetment are attracted on the statement of the deceased.

12. In Ramesh Kumar v. State of Chhattisgarh (2001) 9 SCC 618, this Court while considering the charge framed and the conviction for an offence under Section 306, I.P.C. on the basis of dying declaration recorded by an Executive Magistrate, in which she had stated that previously there had been quarrel between the deceased and her husband and on the day of occurrence she had a quarrel with her husband who had said that she could go wherever she wanted to go and that thereafter she had poured kerosene on herself and had set fire. Acquitting the accused this Court said:

"A word uttered in a fit of anger of emotion without intending the consequences to actually follow cannot be said to be instigation. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance discord and difference 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 for abetting the offence of suicide should be found guilty."

13. Reverting to the facts of the case, both the courts below have erroneously accepted the prosecution story that the suicide by the deceased is the direct result of the quarrel that had taken place on 25 th July, 1998 wherein it is alleged that the appellant has used abusive language and had reportedly told the deceased 'to go and die'. For this, the courts relied on a statement of Shashi Bhushan, brother of the deceased, made under Section 161 Cr.P.C. when reportedly the deceased, after coming back from the house of the appellant, told him that the appellant had humiliated him and abused him with filthy words. The statement of Shashi Bhushan, recorded under Section 161 Cr.P.C. is annexed as annexure P-3 to this appeal and going through the statement, we find that he has not stated that the deceased had told him that the appellant had asked him 'to go and die'. Even if we accept the prosecution story that the appellant did tell the deceased 'to go and die', that itself does not constitute the ingredient of 'instigation'. The word 'instigate' denotes incitement or urging to do some drastic or unadvisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotional. Secondly, the alleged abusive words, said to have been

told to the deceased were on 25th July, 1998 ensued by quarrel. The deceased was found hanging on 27 th July, 1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25th July, 1998 drived the deceased to commit suicide. Suicide by the deceased on 27th July, 1998 is not proximate to the abusive language uttered by the appellant on 25 th July, 1998.

The fact that the deceased committed suicide on 27th July, 1998 would itself clearly pointed out that it is not the direct result of the quarrel taken place on 25 th July, 1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below

19] If the evidence is appreciated on the anvil of the

settled position of law I am not persuaded to hold that the

prosecution has established that the deceased was subjected to

cruelty within the meaning of explanation (a) and (b) of section

498-A of I.P.C. and as a necessary consequence the offence under

section 306 of I.P.C. is also not proved. The evidence is not at all

confidence inspiring on the aspect of the alleged demand of

Rs.5000/- for electric connection. The omnibus allegation, which

is absolutely lacking in material details, that the deceased was

ill-treated by the accused under the influence of liquor, is not

sufficient to bring home the charge under section 498-A I.P.C.

The possibility, as is suggested by the defence, that since the