The State Of Maharashtra vs Arvind Dashrath Bhor
2021 Latest Caselaw 4602 Bom

                                            1/9                        2 Appeal 859-2007.doc




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                            CRIMINAL APPEAL NO. 859 OF 2007

The State of Maharashtra                               ....Appellant
                                                       (Orig. Complainant)
                  V/s.

1. Arvind Dashrath Bhor
Age : 24 years

2. Vilas Dashrath Bhor
Age : 26 years

3. Chhababai Dashrath Bhor
Age : 41 years
All R/o. Ninawi, Tal. Igatpuri,
Dist. Nashik.                                          ....Respondents
                                                       (Orig. Accused)
                                            ----
Ms. P.N. Dabholkar, APP for State.
None for Respondents/Accused.
                                            ----

                                         CORAM : K.R.SHRIRAM, J.

DATED : 12th MARCH, 2021.

ORAL JUDGMENT :

1. This is an appeal impugning an order and judgment dated 28 th

February, 2005 passed by the 4th Ad-hoc Assistant Sessions Judge, Nashik

acquitting respondents (hereinafter referred as accused) of offence

punishable under Sections 498 A (Husband or relative of husband of a

woman subjecting her to cruelty), 306 (Abetment of suicide.--If any person

commits suicide), 323 (Punishment for voluntarily causing hurt) , 504

(Intentional insult with intent to provoke breach of the peace) and 304

(Dowry death) r/w Section 34 (Acts done by several persons in furtherance

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of common intention) of the Indian Penal Code.

2. Accused No.1 had got married to one Nisha on 22/01/2003.

Nisha was daughter of P.W. 2 - Baburao Damu Bhusal. After marriage Nisha

went to reside with her husband at Igatpuri. Everything was fine for the

first two months. Thereafter, harassment of Nisha started. Accused No.1

and 2 are alleged to have complained that cot and cupboard that was given

by Nisha's father P.W. 2 was not of good quality and on that ground used to

beat Nisha. They used to also mentally harass Nisha on the ground that her

parents did not give gas and television at the time of marriage. Accused

No.3 used to keep taunting Nisha that she was not doing any household

work and Accused No.3 has to work as a labourer to maintain Nisha.

Accused No.3 used to tell Nisha to go back to her parental house and also

not providing food.

3. Prosecution has also alleged that Accused Nos.1 and 2 used to

suspect that Nisha was having illicit relationship with one Sampat

Doodhwala, the one who was responsible for two families to meet with each

other with marriage proposal. They used to beat Nisha on that count also.

Nisha went and told her parents about the ill treatment and her father when

he took up with accused, Accused No.1 expressed regret. But Nisha was

again harassed by Accused No.1 because Nisha complained to her parents

about torture in her matrimonial home. Prosecution also relied upon a chit

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allegedly written by Nisha on 01/10/2003 in which the ill treatment given

to her had been mentioned. That chit however was unsigned and was given

to her father P.W. 2 by an unknown person. On 12/01/2004 Accused No.1

had left Nisha at the house of her parents and at that time Nisha mentioned

about ill treatment. On 17/01/2004 Accused No.1 told Nisha that he will

not take her back but still complainant P.W. 2 sent Nisha back to the house

of accused. On 20/01/2004 complainant came to know about the death of

her daughter Nisha. On 22/01/2004 complainant lodged a report with

police and also produced the chit to the police. Crime was registered,

investigation was commenced, inquest panchanama, seizure panchanama

etc., were prepared and statement of witnesses were recorded. Postmortem

report was also collected. Charges were framed. Accused pleaded not

guilty and claimed to be tried.

4. According to accused, Nisha used to have heavy bleeding

during her menstrual cycle and that would last for 7 or 8 days and she had

even been taken to doctor for consultation. Accused have denied that they

ever ill treated Nisha or made any demand as alleged by the prosecution.

5. To drive home the charge, prosecution led evidence of 5

witnesses namely Dr. Nampalla Vasistha Balaji, Medical Officer who

conducted postmortem of deceased as P.W. 1 ; Bapurao Damu Bhusal,

Complainant, Father of deceased as P.W.2 ; Bhaushet Laxman Toche, Panch

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as P.W. 3 ; Ranjana Bapurao Bhusal, Mother of deceased as P.W. 4 and

Balasaheb Tukaram Gaidhani, Investigating Officer as P.W. 5.

6. After considering postmortem report and other evidence, the

Trial Court has come to a conclusion that the prosecution has established

suicidal death of Nisha.

7. It is settled law to prove an offence under Section 498 A of the

Indian Penal Code, the prosecution has to prove ill treatment of the victim

with a view to coerce her to fulfill unlawful demand of accused or the ill

treatment should be of such a nature so as to drive the victim to commit

suicide.

To prove an offence under Section 306 of the Indian Penal

Code, the prosecution has to establish that accused abetted commission of

suicide by victim.

For offence under Section 304 B of the Indian Penal Code, the

prosecution has to prove that the death occurred otherwise than under

normal circumstances within seven years of marriage and soon before

death, the victim was subjected to cruelty or harassment by her husband or

any relative of her husband for, or in connection with, or any demand for

dowry.

For offence under Section 323 of the Indian Penal Code, the

prosecution has to prove that accused did the act with intention to cause

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hurt to the victim or with knowledge that they are likely to cause hurt to

victim and it thereby caused hurt to victim.

8. To prove ill treatment prosecution has primarily relied on the

evidence of P.W. 2 and P.W. 4, father and mother, respectively, of Nisha.

According to P.W. 1 a chit dated 01/10/2003 was sent by Nisha and he has

produced it before the police and the handwriting in the chit was of Nisha.

The Trial Court has rightly not given much credence to the chit because

prosecution has not made any efforts to prove that the handwriting in that

chit was that of Nisha. The prosecution could have produced some other

document of Nisha which contained her handwriting. Except for bare words

of complainant there are nothing on record to come to a conclusion that it

was Nisha's handwriting.

9. We have to note that the defence also led evidence of one

Yashodabai Popat Pardhi D.W. 1 who was neighbour and friend of Nisha. In

the evidence of defence witness it has come on record that Nisha used to go

to her house and Nisha used to tell D.W. 1 about serious stomach cramps

and severe bleeding during her menstrual cycle and that would last for

about eight days. D.W. 1 has also stated that Nisha used to be ill because of

that and according to her Nisha was cohabiting happily with Accused No.1

and even Accused No.1 had taken her for medical assistance. Apart from

this, prosecution itself has produced Dr. Shivde's sonography report dated

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27/10/2003 and the papers shows that in the month of October, 2003 Nisha

was taken to hospital of Dr.Mrs. Kelkar on 8 th and 15th October, 2003. The

report of Dr. Shivde mentioned about increased ovarian stroma in both

ovaries and tiny cist like follicicles in both ovaries.

10. Against this, admittedly except the evidence of P.W. 2 and P.W. 4

there is no evidence on record to come to the conclusion that Nisha was

being ill treated by accused. As stated earlier that chit on record cannot be

given much importance. So far as evidence of P.W. 2 and P.W. 4, it appears

more of hear say. Both the witnesses have not stated any where that they

have seen accused treating Nisha with cruelty. Both the witnesses do not

say that accused made any demand of television set or gas to them directly

or they complained about quality of bed or cupboard given by them at the

time of marriage. P.W. 2 says that he had asked accused to bring mediator

by name Sampat and other respected persons to settle the dispute. But

according to complainant Accused No.1 was suspecting Nisha of having

illicit relationship with Sampat and Nisha had told P.W. 2 about it, then I

wonder how could P.W. 2 have told accused to bring said Sampat to settle

the dispute. This raises a question of credibility on the alleged narration of

Nisha to complainant P.W. 2 and P.W. 4.

11. The Trial Court raised many other grounds for acquitting

accused. For the sake of brevity, I am not dealing with all of that but would

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only say that I agree with the points raised by the Trial Court.

12. Except general statements of demand or suspicion as allegedly

told to P.W. 2 and P.W. 4 by Nisha there is no evidence under Section 498 A

of the Indian Penal Code.

13. For charge under Section 306 of the Indian Penal Code, here is

the case of abetment by instigation. When is a person said to instigate

another ? The word 'instigate' literally means to goad, or urge, or to

provoke, or incite, or encourage, to do an act, which the person, otherwise

would not have done. It is well settled, that in order to amount to abetment,

there must be mens rea or community of intention. Without knowledge or

intention, there can be no abetment and the knowledge and intention must

relate to the act said to be abetted, i.e., suicide, in this case. In order to

constitute 'abetment by instigation', there must be a direct incitement to do

the culpable act. This issue has been discussed by various High Courts and

Supreme Court of India.

The courts have held that the evidence must suggest or indicate

that the accused knew or had a reason to believe that deceased would

commit suicide.

14. There is no evidence, whatsoever to even suggest that Nisha

committed suicide because of ill-treatment or cruelty by accused. There is

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also no evidence whatsoever that the accused by their acts intended Nisha

to commit suicide.

15. Likewise there is no evidence to talk about to prove the charge

under Section 323, 504 or 304 B of the Indian Penal Code.

16. I have perused the impugned judgment, considered the

evidence and also heard Ms. P.N. Dabholkar, learned APP. I do not find

anything palpably wrong, manifestly erroneous or demonstrably

unsustainable in the impugned judgment. From the evidence available on

record, there is nothing to substantiate the charge leveled against accused.

17. There is an acquittal and therefore, there is double presumption

in favour of accused. Firstly, the presumption of innocence available to

accused under the fundamental principle of criminal jurisprudence that

every person shall be presumed to be innocent unless he is proved guilty by

a competent court of law. Secondly, accused having secured his acquittal,

the presumption of his innocence is further reinforced, reaffirmed and

strengthened by the Trial Court. For acquitting accused, the Trial Court

rightly observed that the prosecution had failed to prove its case.

18. In the circumstances, in my view, the opinion of the Trial Court

cannot be held to be illegal or improper or contrary to law. The order of

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acquittal, in my view, need not be interfered with.

19. Appeal dismissed.

(K.R. SHRIRAM, J.)

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