Bombay High Court
Santosh Sakharam Kamble And Anr vs State Of Maharashtra on 28 November, 2023
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2023:BHC-AS:37700
1/19
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.470 OF 2023
WITH
INTERIM APPLICATION NO.3309 OF 2023
IN
CRIMINAL APPEAL NO.470 OF 2023
1. Santosh Sakharam Kamble )
Age: 45 years, Occ: Service )
R/at: Palu (Buddhawadi), Tal: Lanja )
Dist. Ratanagiri )
Presently lodged in Ratnagiri Prison, )
Ratnagiri )
2. Milind Devaji Kamble )
Age: 47 years, Occ: Service )
R/at: Palu (Buddhawadi), Tal: Lanja )
Dist. Ratanagiri )
Presently lodged in Ratnagiri Prison, )
Ratnagiri ) ...Appellants
Versus
The State of Maharashtra )
at the instance of Inspector of Police, )
Lanja Police Station, Tal: Lanja )
Dist. Ratnagiri ) ...Respondent
Mr. Prashant Pawar a/w Mr. Amit Diwale for the Appellants.
Mr. A. R. Patil, APP for Respondent-State.
CORAM : NITIN B. SURYAWANSHI, J.
DATED : 28TH NOVEMBER, 2023
JUDGMENT:
1. This Appeal takes exception to the judgment and order of
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conviction passed by learned Additional Sessions Judge, Ratnagiri in
Sessions Case No. 40 of 2021 thereby convicting Appellants/Original
Accused u/s. 306 r/w. 34 of IPC and sentencing them to sufer
rigorous imprisonment of four years and to pay a fne of Rs.5,000/-
and in default to undergo simple imprisonment of three months and
u/s. 506 r/w. 34 of IPC sentencing them to sufer rigorous
imprisonment of one year and to a pay fne of Rs.2,000/- and in
default to undergo simple imprisonment of one month.
2. Prosecution case is that, Bhikaji Kamble was residing at
Baudhawadi, Palu Taluka-Lanja, District-Ratnagiri. He used to
frequently visit house of one lady in Baudhawadi. Due to that both
the accused who are resident of the same village used to doubt that
Bhikaji had illicit relations with said lady. Accused No. 2- Milind
abused Bhikaji and threatened to kill him in the month of January,
2021. Thereafter, on 07/04/2021 both accused assaulted Bhikaji. On
09/04/2021 both accused on suspicion of illicit relations of Bhikaji
with said lady, threatened him not to stay in the village, else he will
be killed. Because of constant harassment on the part of accused,
Bhikaji committed suicide by hanging himself. A suicide note was
found in the pocket of Bhikaji.
3. Vijay, brother of deceased-Bhikaji lodged FIR which was
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registered at C.R. No. 39 of 2021 u/s. 306, 506 r/w. 34 of IPC. After
completion of investigation, charge-sheet was fled and case was
committed to the Sessions Court. Both Accused were charged for the
ofence punishable u/s. 306, 506 r/w. 34 of IPC.
4. In support of its case, the prosecution has examined 13
witnesses. Defence of the accused is that they were falsely
implicated by P.W. No. 6-Police Patil, as he was under impression that
Ramesh Wadekar lodged atrocity case against his brothers -
Shashikant and Sandeep and for that accused No. 2 -Milind helped
him. Deceased-Bhikaji was fade up of his married life and since
deceased was addicted to liquor, he has committed suicide. There
was no instigation on the part of accused. A forged suicide note was
used to implicate accused persons in the crime. After recording
evidence and hearing parties, Trial Court has convicted the accused
as aforesaid, hence the present Appeal.
5. Learned Advocate for Appellants assailed the conviction
submitting that there is no evidence on record to show that accused
have abetted the suicide of Bhikaji. Admittedly, Bhikaji was illiterate
and was not knowing reading or writing. P.W. No. 6-Police Patil has
admitted that suicide note is in his handwriting, but he has not
disclosed the same to the investigating agency for a period of more
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than two months. Hence, the Trial Court has erred in relying on the
evidence of PW-6 and the suicide note.
6. He submitted that there is no evidence to prove that any
witnesses have seen accused persons slapping or harassing
deceased-Bhikaji. There is no evidence to show that accused aided,
abetted or instigated deceased-Bhikaji to commit suicide. In support
of the submissions, he has relied on following judgments.
(a) Mahendra Singh and Another vs. State of MP1
(b) Sanju alias Sanjay Singh Sengar vs. State of MP2
(c) Amalendu Pal alias Jhantu vs. State of West Bengal3
(d) M. Arjunan vs. State 4
(e) Bhagwan Das vs. Kartar Singh and Others5
(f) Vithal vs. State of Maharashtra6
(g) Netai Dutta vs. State of W.B7
(h) Gurcharan Singh vs. State of Panjab8
(i) Gulab s/o. Yohan Pandi vs. State of Maharashtra & Anr9
7. Per contra, learned APP supported impugned judgment and
order of conviction. He submits that four incidents dated 07/01/2021,
07/04/2021, 08/04/2021 and 09/04/2021 of harassment of deceased
by Accused are proved by P.W. Nos. 2, 3, 4, 6 and 7. Because of
constant harassment by Accused persons, deceased - Bhikaji has
1 1995 Supp (3) SCC 731
2 (2002) 5 SCC 371
3 (2010) 1 SCC 707
4 (2019) 3 SCC 315
5 (2007) 11 SCC 205
6 2023 SCC Online Bom 432
7 (2005) 2 SCC 659
8 (2020) 10 SCC 200
9 Criminal Writ Petition No. 164 of 2018
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committed suicide. He submitted that there is sufcient evidence on
record showing instigation and incitement at the instance of the
accused and the cumulative efect of acts of accused has led to the
commission of the suicide by the deceased-Bhikaji.
8. He distinguished the authorities relied upon by accused and
has placed reliance on some of the paragraphs of the authorities
relied upon by the accused. In support of his submissions, learned
APP has placed reliance on the M. Arjunan (supra) and Ude
Singh and Others vs. State of Haryana10
9. I have duly considered rival submissions and perused records
and citations relied upon by both parties. For considering rival
submissions, it is necessary to appreciate the evidence led by
prosecution.
10. P.W. No. 1-Ashish Kamble has proved spot panchanama (Exh-
26). He has stated that a chit was found in Bhikaji's track pant's
pocket. Thumb impression of deceased in blue ink was there on the
said chit. He has admitted that Bhikaji was illiterate and he was not
able to read and write. The chit was not written by Bhikaji and he
was not in a position to state as to who has written the said chit.
11. P.W. No. 2-Vijay is brother of deceased-Bhikaji. He has lodged
FIR (Exh-31) on the basis of which Crime No. 39 of 2021 was
10 (2019) 17 SCC 101
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registered. He also admitted that Bhikaji was not able to read and
write. He has also stated that on suspicion both accused had beaten
Bhikaji on 07/04/2021 and Bhikaji had lodged a complaint to that
efect. The said fact was informed to him by Bharat Kamble, PW.
No. 3.
In cross examination, he has admitted that Bhikaji used to do
labour work. He admitted that there are two groups of his community
in village. Bhikaji was member of Akhil Baudhajan Gramin Vikas
Mandal. He is also a member of said Mandal. He has admitted that at
the time of lodging FIR against brothers of Police Patil accused had
helped complainant - Ramesh Wadekar. In next breath, he has stated
that he does not know about it.
12. P.W. No. 3-Bharat Kamble has deposed that on 07/04/2021
accused-Milind called him and informed him that they have caught
Bhikaji, therefore he should accompany them. Accordingly, he
alongwith Siddharth Kamble and Ramesh Kamble accompanied
accused-Milind. He brought them near the house of Chandrakant
Kamble at Baudhawadi. Accused-Santosh and Bhikaji were there.
Santosh told them that Bhikaji has accepted everything and since he
had committed mistake, he had slapped him twice. Accordingly,
Bharat asked whether whatever Santosh is saying is correct? Bhikaji
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said, yes. They all gave understanding to Bhikaji. He then informed
the incident on telephone to P.W. No. 2-Vijay. On 09/04/2021 at about
7.45PM, one Namdeo Kamble called him and told him that Bhikya
has deceived, he should come. He accordingly went there. The door
of Bhikaji's house was open. In the torch light they saw that Bhikaji
was hanging. He accordingly informed Police Patil-Jaisingh and
Chairman of Tanta Mukti Samiti-Suresh Gade. He brought them to
spot. Thereafter, Police Patil informed the Police Station. Police came.
He showed spot of incident to Police. Accordingly, Spot Pachanama
(Exh-26) was conducted. A chit was found in the pant's pocket of
deceased.
In cross-examination, he deposed that because of the chit
found in the pocket of deceased-Bhikaji, they formed an opinion that
accused are responsible for the death of Bhikaji. He also admitted
that Bhikaji was illiterate and was not able to read and write.
13. P.W. No. 4 - Saurabh Kamble states that incident dated
08/04/2021 took place at 7.30 in the evening when he alongwith
Suhas Kamble were near Panchashil Budhavihar. They heard loud
noise of quarrel from the house of Bhikaji. They both went there.
Bhikaj was sitting on the foor in courtyard. Accused No. 1-Santosh
was sitting in a chair and Accused No. 2-Milind was standing next to
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him. Accused-Santosh was asking Bhikaji that they told him to leave
and why he has not left? At that time Bhikaji told that he does not
have money and he will leave tomorrow. He told Bhikaji that if Bhikaji
is so desperate then he should sleep with his own wife. If he does not
leave next day then, they will see to it.
In cross examination, he has admitted that Bhikaji was addicted
to liquor. He said that he is not aware about Bhikaji's habit of
borrowing money and not re-paying the same.
14. P.W. No. 5-Namdev Kamble is nephew of deceased Bhikaji. He
has seen Bhikaji in hanging condition. He has admitted that Bhikaji
was addicted to liquor and even he is in habit of consuming liquor
15. P.W. No. 6 - Jaisingh Chavan is Police Patil since 2009. He
deposed that on 09/04/2021 at 11.30AM Bhikaji came to his house
and complained to him that accused - Milind and Santosh are
harassing him. They are asking him to leave village otherwise they
will kill him. He asked Bhikaji to go to Lanja Police Station and lodge
a complaint. At that time Bhikaji told him that he is not able to read
and write and requested him to write a complaint. He, therefore,
wrote a complaint as narrated by Bhikaji on paper and obtained
Bhikaji's thumb impression on the said complaint. After writing
complaint he read it over to Bhikaji and Bhikaji confrmed it. Bhikaji
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then took away the complaint (Exh-29) written by him. On the same
night he learnt that Bhikaji has committed suicide. He went to house
of Bhikaji and saw the dead body. He informed Lanja Police about
suicide Accordingly, Police came. Police found chit written by him in
Bhikaji's pant. At that time, he was frightened and therefore he did
not disclose to police that chit is in his hand writing. Thereafter,
police recorded his statement on 14/06/2021, at that time, he
disclosed the said fact. Because of harassment of accused, Bhikaji
committed suicide.
In cross examination, he admitted that there are two societies
i.e. Akhil Baudhjan Vikas Mandal and Baudhjan Vikas Mandal, Palu,
Mumbai in his village. He denied that before arrival of police on spot
he handled the dead body. He admitted that he did not disclose the
police that chit is in his handwriting. For two and half months after
the incident he was in the village. He accepted that it is his duty to
help the police. He denied that he planted chit in the pocket of
Bhikaji.
16. P.W. No. 7-Ramesh Kamble is resident of Palu, Baudhawadi. He
is also Panch to the inquest panchanama (Exh-42). He has stated
that on 07/01/2021 there was fair in the village. While he was in the
fair accused-Milind called him and he alongwith Bharat and Siddharth
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went near house of Chandrakant Kamble. Accused-Santosh and
Bhikaji were present. Accused-Santosh told him that twice he
slapped Bhikaji. Santosh also told him that since Bhikaji committed
crime, he slapped him. He then asksed Bhikaji, whether Santosh
slapped him and Bhikaji said, yes.
In cross examination, he admitted that Bhikaji's family stayed
at Mumbai and Bhikaji was addicted to liquor.
17. P.W. No. 8 is a lady with whom, according to accused, Bhikaji
was having illicit relationship. She has deposed that she was
acquainted with Bhikaji. His wife and son used to stay at Mumbai.
Sometime she used to give tifn to Bhikaji. She knows both Accused.
Both accused used to harass her and say to her that she has illicit
relationship with Bhikaji. On 07/04/2021 at night when she was
sleeping, she came out hearing the quarrel. She switched on the
outside light. Both accused were beating Bhikaji with hands. She got
frightened and went inside the house. Both accused came near her
house and threatened her. She opened the door and shouted, then
accused left. On 08/04/2021, in the evening while she was standing
in courtyard, both accused threatened Bhikaji that he should not be
seen in the village. Thereafter, both accused came to her and also
threatened her. On. 09/04/2021 in night Bhikaji came to her house
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and took tifn from her and went home. Thereafter, accused-Milind
came to her and threatened her.
In her cross examination, she has admitted that Pravin
Khanvilkar is her husband and denied that he has deserted her.
18. P.W. Nos. 9 to 12 are the police witnesses and P.W. 13 is
medical ofcer, who has conducted post mortem.
19. Upon careful scrutiny of the evidence on record, it is clear that
Bhikaji was an illiterate person and was not able to read and write.
Chit (Exh-29), found in his pant's pocket is in handwriting of PW-6
Police Patil, who has claimed that he wrote the chit (Exh-29) at the
instance of Bhikaji. The version of PW-6 is not believable, in view of
the fact that if Bhikaji had complained about harassment by accused
persons to PW-6 and PW-6 had written the chit (Exh-29), then PW-6
would have disclosed the said fact to police, at the frst opportunity,
when the police arrived at the spot. His explanation that he was
frightened, is not acceptable. PW-6 is working as Police Patil since
2009 and, therefore, he has sufcient experience of the said post.
Admittedly, it is his duty to help police and he has informed the
police about suicidal death of Bhikaji. He was present when police
arrived on the spot. At the time of recovery of chit (Exh-29) in his
presence, PW-6 did not disclose that the chit (Exh-29) is in his
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handwriting. In spite of he being present in the village for more than
two months after the incident, he did not disclose the said fact to the
police. These admitted facts on record cast serious doubt about the
veracity of PW-6 and the authenticity of the chit (Exh-29).
20. In the statement recorded after more than two months of the
incident, PW-6 has, for the frst time, disclosed that the chit (Exh-29)
is in his handwriting. It is settled position of law that, "delay in
recording statement of witness creates doubt about credibility of the
witness, if delay is not explained". (Vide - "Harbeer Singh V/s
Sheeshpal" reported in AIR (2016) SCC 4985). In this case, PW-6
is not a layman, but he is Police Patil of a village and, therefore,
credibility of PW-6 is doubtful and he is unreliable witness.
21. Defense has brought on record the fact that PW-6 had reason
to implicate accused persons as he was under impression that
Ramesh Wadkar had lodged atrocity case against his two brothers
and accused No.2 had helped Ramesh Wadkar in lodging the case.
Therefore, there is every possibility that PW-6 has falsely implicated
the accused persons, by planting the said chit (Exh-29).
22. The Trial Court has erred in placing reliance on the testimony of
PW-6 and the chit (Exh-29) while convicting the accused.
23. By relying on the four incidents dated 07/01/2021, 07/04/2021,
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08/04/2021 and 09/04/2021, the Trial Court has held that accused
persons were constantly harassing the deceased, who was left with
no other alternative but to commit suicide.
24. The word "instigate" is explained in Sanju (supra), as
incitement or urging to do some drastic or unadvisable action or to
stimulate or incite. It is further held that mens rea is a necessary
concomitant of instigation.
25. In Amalendu (supra), it is held that -
"Before holding an accused guilty of an ofence under Section
306 IPC, the Court must scrupulously examine the facts and
circumstances of the case and also assess the evidence
adduced before it in order to fnd 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. (Para 12)
In order to bring a case within the purview of Section 306 of
IPC there must be a case of suicide and in the commission of
the said ofence, the person who is said to have abetted the
commission of suicide must have played an active role by an
act of instigation or by doing certain act to facilitate the
commission of suicide. Therefore, the act of abetment by the
person charged with the said ofence must be proved and
established by the prosecution before he could be convicted
under Section 306 IPC. (Para 13)"
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26. In M. Arjunan (supra), it is held in paragraph 7 that -
"7. The essential ingredients of the ofence under Section
306 I.P.C. are: (i) the abetment; (ii) the intention of the accused
to aid or instigate or abet the deceased to commit suicide. The
act of the accused, however, insulting the deceased by using
abusive language will not, by itself, constitute the abetment of
suicide. There should be evidence capable of suggesting that
the accused intended by such act to instigate the deceased to
commit suicide. Unless the ingredients of instigation/abetment
to commit suicide are satisfed, accused cannot be convicted
under Section 306 I.P.C."
Applying aforesaid ratio to the facts of the present case, even if
the four incidents, as alleged by the prosecution are accepted to be
true, they are not sufcient to prove instigation or abetment by
accused to the deceased. It cannot be said that because of the 4
incidents Bhikaji was left with no other alternative but to commit
suicide. Both the accused are cousins of Bhikaji and none of the
witness has actually seen the accused beating Bhikaji. The four
incidents as alleged by the prosecution, are not sufcient to prove
that accused abetted or instigated Bhikaji to commit suicide.
27. Even if case of the prosecution, that accused gave threats to
Bhikaji, is accepted, from the nature of alleged threats given by
accused, it is clear that intention of accused was that Bhikaji should
leave the village. Thus, the necessary mens rea to prove ofence of
abetment under section 107 of the IPC is absent in the present case.
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There is no evidence on record that accused abetted or instigated
Bhikaji to commit suicide. The prosecution has utterly failed to prove
that suicide of Bhikaji is result of abetment or instigation by accused
and the accused are directly involved in commission of suicide by
Bhikaji.
28. It has come on record that Bhikaji was addicted to liquor and
his family was staying away from him at Mumbai and he was staying
in village-Palu, Baudhawadi. Therefore, the defence appears to be
probable that being frustrated with said situation, Bhikaji committed
suicide.
29. Learned APP has strongly relied on the observation in M.
Arjunan (supra) particularly paragraph no. 7 as noted supra. The
instances of abetment specifed u/s. 107 of IPC are totally absent in
the present case.
30. By placing strong reliance on paragraphs 15, 16, 16.1 and 16.2
of Ude Singh and others (supra), learned APP argued that
cumulative efect of constant harassment on the part of accused in
proximate time has resulted into commission of suicide by Bhikaji. In
Ude Singh (supra) it is held:
"16. In cases of alleged abetment of suicide, there
must be a proof of direct or indirect act/s of incitement
to the commission of suicide. It could hardly be
disputed that the question of cause of a suicide,
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particularly in the context of an ofence of abetment of
suicide, remains a vexed one, involving multifaceted
and complex attributes of human behavior and
responses/reactions. In the case of accusation for
abetment of suicide, the Court would be looking for
cogent and convincing proof of the act/s of incitement
to the commission of suicide. In the case of suicide,
mere allegation of harassment of the deceased by
another person would not sufce unless there be such
action on the part of the accused which compels the
person to commit suicide; and such an ofending
action ought to be proximate to the time of occurrence.
Whether a person has abetted in the commission of
suicide by another or not, could only be gathered from
the facts and circumstances of each case.
16.1. For the purpose of fnding out if a person has
abetted commission of suicide by another; the
consideration would be if the accused is guilty of the
act of instigation of the act of suicide. As explained and
reiterated by this Court in the decisions above-
referred, instigation means to goad, urge forward,
provoke, incite or encourage to do an act. If the
persons who committed suicide had been
hypersensitive and the action of accused is otherwise
not ordinarily expected to induce a similarly
circumstanced person to commit suicide, it may not be
safe to hold the accused guilty of abetment of suicide.
But, on the other hand, if the accused by his acts and
by his continuous course of conduct creates a
situation which leads the deceased perceiving no
other option except to commit suicide, the case may
fall within the four-corners of Section 306 IPC. If the
accused plays an active role in tarnishing the self-
esteem and self-respect of the victim, which eventually
draws the victim to commit suicide, the accused may
be held guilty of abetment of suicide. The question of
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mens rea on the part of the accused in such cases
would be examined with reference to the actual acts
and deeds of the accused and if the acts and deeds
are only of such nature where the accused intended
nothing more than harassment or snap show of anger,
a particular case may fall short of the ofence of
abetment of suicide. However, if the accused kept on
irritating or annoying the deceased by words or deeds
until the deceased reacted or was provoked, a
particular case may be that of abetment of suicide.
Such being the matter of delicate analysis of human
behaviour, each case is required to be examined on its
own facts, while taking note of all the surrounding
factors having bearing on the actions and psyche of
the accused and the deceased.
16.2. We may also observed that human mind could be
afected and could react in myriad ways; and impact of
one's action on the mind of another carries several
imponderables. Similar actions are dealt with diferently
by diferent persons; and so far a particular person's
reaction to any other human's action is concerned, there
is not specifc theorem or yardstick to estimate or assess
the same."
31. In the present case, even if prosecution evidence is accepted
as it is, it cannot be said that accused, by their acts and by their
continuous course of conduct, created a situation which led Bhikaji
perceiving no other option except to commit suicide. As held supra,
the only intention that can be attributed to the accused while giving
threats to Bhikaji can be that Bhikaji should leave the village.
32. In this view of the matter, mens rea which is a necessary
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concomitant of instigation on the part of accused in abetting suicide
of Bhikaji is totally absent in the present case. Hence, the above ratio
is of not help to the prosecution.
33. The Trial Court has wrongly appreciated evidence on record and
has erred in relying on testimony of PW-6, who is not a reliable
witness. The Trial Court has failed to appreciate the true purport and
meaning of abetment and instigation. Trial Court while recording the
conviction has misread and misconstrued the rullings cited before it.
The Trial Court has failed to consider the fact that there is no
dependable evidence on record for convicting the accused under
section 306 of the IPC. The impugned judgment of conviction is,
therefore, unsustainable in law and facts of the case.
34. In the result, following order:
(a) Appeal No. 470 of 2023 is allowed.
(b) Impugned judgment and order dated 13/03/2023 passed
by learned Additional Sessions Judge, Ratnagiri in Sessions
Case No. 40 of 2021 thereby convicting the Appellants u/s. 306
and 506 r/w. 34 of IPC is hereby quashed and set aside.
(c) Applicant No. 1- Santosh Sakharam Kamble and
Applicant No. 2 - Milind Devaji Kamble are acquitted of all the
charges.
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(d) Applicant No. 1- Santosh Sakharam Kamble and Applicant
No. 2 - Milind Devaji Kamble be released forthwith, if not
required in any other case.
(e) Both the Applicants shall execute personal bond of
Rs.15,000/- each with one or more sureties in the like amount,
in terms of Section 437-A of the Code of Criminal Procedure.
34. The Interim Application also stands disposed of.
(NITIN B. SURYAWANSHI, J.)
