Bombay High Court

Sunil Shrikurshna Wankhade And ... vs State Of Mah. Thru. Pso Yeoda on 11 January, 2021

Bench: Pushpa V. Ganediwala

                                                           213Cri.apeal624.08.odt
                                             1


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

                        CRIMINAL APPEAL NO. 624 OF 2008

  1)       Sunil Shrikrushna Wankhade,
           Aged about 30 years.

  2)       Sau. Kamalabai Shrikrushna Wankhade,
           Aged about 55 years,

           Both R/o. Wadnergangai,
           Tq. Daryapur, Distt. Amravati
                                                                   ...APPELLANTS

                                 // VERSUS //

           State of Maharashtra through
           P.S.O. Yeoda, Tq. Daryapur,
           District Amravati
                                                    ...RESPONDENT
  ________________________________________________________________

  Shri J.Y. Ghurde, Advocate for the appellants.
  Shri M.J. Khan, A.P.P. for respondent - State.
  ____________________________________________________

                               CORAM   :   PUSHPA V. GANEDIWALA, J.
                                           JANUARY 11, 2021.

  JUDGMENT :

This is an appeal against the judgment and order

passed by the Additional Sessions Judge, Achalpur, Dist. Amravati,

in Sessions Trial No. 22/2005 dated 31/07/2008 which convicted

the appellants in Crime No. 81/2004 for the offence punishable

under Sections 302 and 498-A read with Section 34 of Indian Penal

Code (for short "IPC") registered at Police Station, Yeoda, Tah.

Daryapur, Dist. Amravati. The appellant No. 1 is accused No. 1 and

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appellant No. 2 is accused No. 3 before the trial Court. The other

two co-accused have been acquitted by the trial court.

2. I have heard Shri Ghurde, learned counsel for the

appellants/accused and Shri M.J. Khan, learned Additional Public

Prosecutor for the respondent - State.

3. The prosecution case, in brief, necessary for deciding

the present appeal is as under :

The deceased - Ujwala was the wife of the appellant

No. 1 and daughter-in-law of appellant No. 2. Her marriage with

appellant No. 1 was solemnized in the year 2002. PW-2 -

Pandurang s/o Wakila Tayade and PW-5 - Rangrao s/o Baliram

Gawai, were the mediators of her marriage. After marriage, for

about one year, the deceased was treated properly. Thereafter, she

was subjected to mental and physical harassment for demand of

remaining dowry amount of Rs. 10,000/-, which was promised at

the time of marriage. Fade up with the harassment, she committed

suicide on 06/11/2004 at her matrimonial house. On the same day,

father of the deceased - Hiraman Uttamrao Sardar, lodged report

and accordingly crime came to be registered against the present

appellants, father-in-law and brother-in-law of the deceased for the

offence punishable under Sections 302 and 498-A of the IPC.

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4. After investigation, the charge-sheet came to be filed

before the Court of J.M.F.C., Daryapur, Dist. Amravati. After

committal, the Additional Sessions Court, Achalpur framed charge

(Exh. 48) dated 22/01/2007 against all the accused for the offence

punishable under Sections 302 and 498-A read with Section 34 of

the IPC. To substantiate the charge, the prosecution examined in all

six witnesses and also brought on record the relevant documents.

5. The learned trial Court also examined the Medical

Officer as a court witness. The learned trial Court recorded

statements of the accused persons under Section 313 of the Code of

Criminal Procedure and after hearing both the sides, the learned

trial Court found that the prosecution has failed to prove the

homicidal death of the deceased and convicted the appellants herein

i.e. husband and mother-in-law of the deceased for the minor

offence punishable under Sections 306 and 498-A read with Section

34 of the IPC and acquitted other co-accused fully i.e. father-in-law

and brother-in-law of the deceased.

6. It is the specific case of the defence that the appellant

No. 1, the husband of deceased was blind with one eye and,

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therefore, the deceased was disliking him and, as such she was

against this marriage, which prompted her to commit suicide at her

own.

7. Shri Ghurde, learned counsel for the appellants/

accused submits that the prosecution witness (PW-5), who

admittedly acted as a mediator for the marriage, admitted that the

in-laws of the deceased were residing separately. The learned

counsel further pointed out certain omissions and contradictions

from the evidence of prosecution witnesses which according to him

go to the root of the prosecution case, to disprove its case.

8. It is further the submission of the learned counsel for

the appellants/accused that though the charge under Section 306 of

the IPC was not framed, the appellants/accused have been

convicted for the same. It is submitted that Section 306 of the IPC

cannot be termed as a minor offence of Section 302 of the IPC.

9. The learned counsel for the appellants/accused, in

support of his submission, placed reliance on the following

judgments :

(i) Virendra Kumar Vs. State of Uttar Pradesh and ors. reported in 2003 Cri. L.J. 2709.

(ii) Gurjit Singh Vs. State of Punjab reported in 2019 (16) Scale

634.

213Cri.apeal624.08.odt

10. As against this, the learned Additional Public

Prosecutor, while supporting the judgment of conviction, submitted

that there are specific instances of cruelty at the hands of the

appellants/accused which have been clearly brought on record by

the prosecution. There was an incident of beating at the hands of

the appellants/accused and the prosecution witnesses deposed with

specific details as to beating and the injuries which were noticed.

The learned A.P.P. also pointed out one incident of running away of

the deceased from her matrimonial house and reached her elder

sister's house at Jainpur, apprehending threats of killing.

11. In conclusion, learned A.P.P. submits that the

prosecution could prove with cogent and consistent evidence that

the appellants/accused i.e. husband and mother-in-law of the

deceased subjected the deceased to cruelty of such a nature which

drive the deceased to commit suicide. Learned A.P.P. also pressed for

applicability of Section 113-A of the Evidence Act, 1872 which

speaks about presumption with regard to abetment of suicide by

married woman within a period of seven years from the date of her

marriage as she was subjected to cruelty by the appellants/accused.

The learned A.P.P. urged this Court to dismiss the appeal.

213Cri.apeal624.08.odt

12. The learned Additional Public Prosecutor, in support of

his submissions, relied on the judgment of the Hon'ble Apex Court

in the case of Virendra Kumar Vs. State of Uttar Pradesh and ors .

reported in 2003 Cri. L.J. 2709.

13. I have considered the submissions advanced by learned

counsel appearing on behalf of both sides. I have also perused the

records.

14. At the outset, in the present case the learned trial Court

framed charge against the appellants/accused for the offence

punishable under Sections 498-A and 302 read with Section 34 of

the IPC, while conviction is recorded for the offence punishable

under Sections 498-A and 306 read with Section 34 of the IPC.

15. Now, the first question arises for consideration is,

whether framing of charge under Section 306 of the IPC was

necessary in the facts of this case. Undisputedly, the death was by

hanging. The whole evidence before the Court is in the context of

hanging by deceased i.e. suicide, while the trial Court framed the

charge for Section 302 of the IPC.

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16. The testimony of prosecution witnesses supported by

medical evidence proved death by suicide. In such circumstances,

there was no confusion to accused with regard to charge framed

against him. Furthermore, when a married women died in an

unnatural circumstance and Section 498-A of the IPC is invoked, it

is quite difficult to say with certainty as to which of the offence

amongst cognate offences i.e. Section 304-B, 306 and 302 of the IPC

would be applied. Section 304-B of IPC would be applied in a case

when an unnatural death is occurred within a period of seven years

from the date of marriage of the deceased and there was

ill-treatment at the hands of the appellants/accused soon before her

death. Section 304-B of the IPC is a graver offence than Section 306

of the IPC. Scope of Section 306 of the IPC is wider in its compass.

17. Sections 221 of the Code of Criminal Procedure deals

with the situation when it is doubtful as to what offence has been

committed. For ready reference Section 221 of the Code of Criminal

Procedure is reproduced below :

"221. Where it is doubtful what offence has been committed - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved

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will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub- section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."

18. In the instant case, initially there was a confusion as to

whether it was the case of hanging or strangulation and hence, the

charge of Section 302 of IPC was framed, however, during the trial

the whole case proceeded on the premise that the deceased

committed suicide. The trial Court also dealt with this issue in quite

detail in paragraph No. 22 of the judgment.

19. In such circumstances, absence of framing of charge for

the offence punishable under Section 306 of the IPC, in the opinion

of this Court, was not prejudicial to the interest of the accused and

there was no injustice done to the accused and it was not a vital

irregularity as per Section 464 of the Code of Criminal Procedure.

213Cri.apeal624.08.odt

20. Now, the next question is whether the prosecution

could prove beyond reasonable doubt, the charge under Section

498-A of the IPC. For ready reference, Section 498-A of the IPC is

reproduced below :

"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 to this Section defines cruelty : (a) willful

conduct on the part of the accused which is of such a nature as is

likely to drive the woman to commit suicide etc. (b) harassment of

the woman 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 to meet such demand.

21. In the instant case, PW-1 - Hiraman, who is the father

of the deceased and also the informant, deposed that after the

marriage for one year she was treated properly and thereafter

whenever deceased used to visit his house, she used to say about

the ill-treatment meted out to her on account of demand of money.

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He could not satisfy the demand because of his poverty. This

witness deposed about one incident of beating by wooden plank by

the appellants for dowry amount. They brought her to their house

and she stayed there for three months and thereafter, both the

appellants/accused along with their two relatives had been to the

house of this witness and there was settlement and with assurance

that no such thing would happen in future, the deceased was sent

back.

22. This witness further deposed that after one month, the

father-in-law of the deceased inquired about whereabouts of the

deceased as she was missing from the house. The deceased was

found at Jainpur at her elder sister's and brother-in-law's house.

She informed that she was beaten for the amount of dowry and,

therefore, she ran away from her in-laws house. The deceased was

again sent with her cousin father-in-law to her matrimonial house.

23. After two months i.e. on 06/11/2004, the informant

received a telephonic message about the death of his daughter. This

witness along with his wife reached her matrimonial house, she was

found lying dead with ligature marks around her neck.

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24. Now, the question is, whether the facts narrated above

would fall under the definition of cruelty, as contemplated under

Section 498-A of the IPC. On a careful and comparative reading of

the deposition of PW-1 and the contents in the F.I.R., one thing is

discernible that there was harassment to the deceased on account of

money though the wordings in the deposition and the F.I.R. do not

match exactly, however, the import is that there was physical and

mental harassment.

25. Now, the question is, whether this harassment can be

seen as a willful conduct on the part of the appellants/accused to

drive her to commit suicide. Admittedly, whenever the deceased left

her matrimonial house on account of harassment, her husband or

in-laws used to come to take her and there used to be settlement

and, therefore, the harassment as has been brought on record can

be said to be 'a willful conduct' of such a nature to drive her to

commit suicide. However, it does come under explanation (b) that

the beating was for unlawful demand of some dowry.

26. As rightly pointed out by the learned defence counsel,

the amount of Rs. 10,000/- which PW-1 deposed before the Court is

missing from his statement in the First Information Report.

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However, as stated above, the import of the whole of the contents in

the report would unerringly reflect that there was some tussle on

account of money / dowry. In such circumstances, the prosecution

could establish the offence of cruelty under Section 498-A of the

IPC.

27. With regard to the offence punishable under Section

306 of the IPC, PW-1 deposed that after two months when she was

sent to her matrimonial house, he received a call about the death of

his daughter but what happened during the period of two months,

there is absolutely nothing on record. The two incidences of cruelty,

as narrated above, are not sufficient to say that the appellants/

accused had instigated the deceased to commit suicide.

28. In the absence of any concrete material on record, the

presumption under Section 133-A of the Evidence Act, 1872, as

pressed by Shri Khan, learned Additional Public Prosecutor, could

not come into play. It is a rebuttable presumption. Shri Ghurde,

learned counsel appearing on behalf of the appellants/accused has

relied on the judgment of the Hon'ble Apex Court in this regard in

the case of Gurjit Singh Vs. State of Punjab reported in 2019 (16)

Scale 634. The learned counsel has drawn the attention of this

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Court to paragraph No. 23 of the said judgment, which is

reproduced below :

"23. It will be relevant to refer to the following observations of this Court in the case of Pinakin Mahipatray Rawal Vs. State of Gujarat :

26. Section 113A only deals with a presumption which the court may draw in a particular fact situation which may arise when necessary ingredients in order to attract that provision are established. Criminal law amendment and the rule of procedure was necessitated so as to meet the social challenge of saving the married woman from being ill-treated or forcing to commit suicide by the husband or his relatives, demanding dowry. Legislative mandate of the section is that when 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 terms defined in Section 498-A of the IPC, the court may presume having regard to all other circumstances of the case that such suicide has been abetted by the husband or such person. Though a presumption could be drawn, the burden of proof of showing that such an offence has been committed by the accused under

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Section 498-A IPC is on the prosecution. On facts, we have already found that the prosecution has not discharged the burden that A-1 had instigated, conspired or intentionally aided so as to drive the wife to commit suicide or that the alleged extramarital affair was of such a degree which was likely to drive the wife to commit suicide.

27. Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused.

The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show

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that the accused had provoked, incited or induced the wife to commit suicide."

29. The Hon'ble Apex Court in the aforesaid judgment

relied on the case of Mangat Ram Vs. State of Haryana reported in

2014 (12) SCC 595, wherein it is held that "in the matter of an

offence punishable under Section 306 of the IPC, abetment must

attract the definition thereof in Section 107 of the IPC. The

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 of the 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