Bombay High Court

Babasaheb Janku Hinge vs The State Of Mah on 25 September, 2023

Bench: S. G. Mehare

2023:BHC-AUG:20848
                                                  1                 Cri.Rev.Appln.444-04.odt


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                            CRIMINAL REVISION APPLICATION NO.444 OF 2004

                     Babasaheb Janku Hinge,
                     Age : 31 years, Occu. Agri.,
                     R/o Dahigaon, Tq. & Dist. Ahmednagar.
                     (At present, in jail).                        ... Applicant.

                             Versus

                     The State of Maharashtra.                     ... Respondent.

                                                     ...
                                  Advocate for Applicant : Mr. N. R. Bhavar.
                                APP for Respondent-State : Mr. S. P. Deshmukh.
                                                     ...

                                                CORAM :     S. G. MEHARE, J.

RESERVED ON : 17.07.2023 PRONOUNCED ON : 25.09.2023.

JUDGMENT :-

1. Heard the respective learned counsels for the parties.

2. The applicant takes exception to the judgments and

orders of the conviction of the learned 4 th Adhoc Assistant

Sessions Judge, Ahmednagar, passed in Sessions Case No.106

of 2002, dated 21.09.2002 and in Criminal Appeal No.42 of

2002 of the Additional Sessions Judge, Ahmednagar, dated

08.10.2004.

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3. The facts of the case in brief were that the applicant

married the deceased on 11.12.2001. She went to cohabit with

him. It has been alleged that two months after the marriage,

the deceased and the accused went to the house of his in-laws.

They stayed there for one day. During the stay, the accused

demanded Rs.70,000/- from the complainant to purchase the

motorcycle and plaster the house. The complainant expressed

her inability to fulfill his demand due to her poor financial

condition. The accused demanded the money in front of her

son Sagar and daughter Bharati. On 25.04.2002, the

complainant had been to the marriage at Dahigaon with her

daughter Bharti. There, the deceased Swati also came. She

complained that the accused were beating, abusing and ill-

treating her for non-fulfilling their demand of Rs.70,000/-. Her

daughter P.W.2 Bharti requested the complainant to allow her

to stay with Swati for 4-5 days at her home. Twelve days

thereafter, the accused went to leave Bharti to the

complainant's house. That time, again, he demanded

Rs.70,000/- and threatened that she should keep the money

ready; otherwise, she would see what would happen in future.

The deceased committed suicide by hanging in the house of the

accused on 12.05.2002. One Nana Shripati Mhaske lodged a

report of the incident on the same day to the Police Station.

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The police registered the accidental death case. After that, the

complainant gave her statement on 13.05.2002, making the

above allegations. Therefore, Police Station Nagar Taluka

registered Crime No.68 of 2002 against the accused and his

relatives under Section 498-A and 306, read with Section 34 of

the I.P.C.

4. Both Courts held the accused guilty of the offences

punishable under Sections 498-A and 306 of the I.P.C.

However, the other co-accused were acquitted.

5. Heard the learned counsel for the accused and the

learned APP for the State.

6. Learned counsel for the accused has vehemently argued

that the second star witness, P.W.2 Bharti, has clearly admitted

that she did not know why Swati was beaten at her home

while she was staying with her. Her evidence has not been

correctly appreciated. Both Courts did not consider the

material admissions of the complainant on the better financial

condition of the applicants than her. The Courts erred in

holding that the contradictory stand of the accused goes

against him. The statement of the accused under Section 313

has been used against him without considering its object. To

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bolster his argument, he relied on the case of Mariano Anto

Bruno and another Vs. The Inspector of Police ; 2022 Live Law

(SC) 834.

7. He further argued that the silence of the deceased till

committing suicide about the ill-treatment was not properly

considered. The admission of P.W.1/the mother of the

deceased, that she is financially poor has also not been

considered in the context of the allegation of paying

Rs.80,000/- to the accused before the marriage. Learned Trial

Court and the First Appellate Court did not consider that P.W.1

to 3 were the interested witnesses. The learned Trial Court

committed a grave error of Law in observing that the omission

to State by P.W.2 Bharti in her statement under Section 161 of

the Cr.P.C. about threats by accused No.1 in the house of P.W.1/

the mother of the victim that if the amount is not paid, be

prepared for consequences in future cannot be taken as a

contradiction and does not affect the core of the statement of

the P.W.2. Both Courts did not consider there was delay in

lodging the report. Both Courts have erred in believing the

evidence of the prosecution that the prosecution has

established an offence under Section 306 of the I.P.C. The

presumption under Section 113-A of the Indian Evidence Act

5 Cri.Rev.Appln.444-04.odt

has been incorrectly applied. Giving a slap to Swati at his home

does not prove the offence of illegal demand of money. The

learned First Appellate Court has unnecessarily shifted the

burden upon the applicant to explain why the deceased Swati

committed suicide. The silence of the complainant till the

funeral had a great and significant adverse effect on the

prosecution case. Since the death of the deceased till the filing

of the F.I.R., they had sufficient time to hatch the plan to file a

false complaint. He would lastly argue that in the absence of

evidence of abetting the deceased to commit suicide, the

wrong conclusion has been drawn by both Courts that the

prosecution had proved the offence under Section 306 of the

I.P.C. The prosecution did not prove that the deceased was

harassed for the demand of dowry, and for that, she was

coerced. Hence, the accused be acquitted.

8. In the alternative, he submits the term of imprisonment

imposed upon the accused against the sentencing policy. In the

facts and circumstances, it was disproportionate. Hence, his

sentence may kindly be reduced, and a reasonable term may be

imposed if the Court concludes that any offence is proved

against the accused.

6 Cri.Rev.Appln.444-04.odt

9. Per contra, learned APP would submit that Section 113-A

of the Indian Evidence Act has been correctly applied in this

case as the deceased died within five months of her marriage.

It was categorically proved that the accused was demanding

dowry, and for that purpose, he was harassing and ill-treating

the deceased. The evidence of the witnesses was consistent.

The witnesses, being relatives of the deceased, cannot be

branded as interested witnesses. Independent evidence was

there to prove that Rs.80,000/- were paid to the accused

before marriage. Merely a sound financial condition of the

accused is no ground to disbelieve that there was no illegal

demand. Both judgments are legally correct and proper. There

are no grounds to interfere with the impugned judgments and

orders.

10. Admittedly, the victim died within five months of her

marriage. She had hanged herself. The accused has a defence

that the deceased was good-looking and the financial condition

of her family was poor. Hence, he performed the marriage with

her at his expense. They were not involved in the crime. The

marriage of the deceased Swati was performed against her

will. Hence, she was going frequently to her parental home

without the knowledge of the accused/present applicant. She

7 Cri.Rev.Appln.444-04.odt

was behaving arrogantly. Her parents did not convince her.

Hence, she committed suicide. They never demanded money,

as alleged. They have been falsely implicated in the crime as

their daughter has committed suicide.

11. The First Appellate Court observed that the accused was

to give some plausible explanation for the cause of death in

their statements under Section 313 of the Cr.P.C. The

explanation given by the accused is not at all probable as the

prosecution has proved that the suicide has taken place. It was

further observed that 'I hold that evidence of the prosecution

witnesses will have to be read in the light of these

circumstances'.

12. The Law is well settled that the statement of the accused

under Section 313 of the Cr.P.C. is not evidence. It is only the

accused's stand or version by way of explanation when

incriminating materials appearing against him are brought to

his notice. It is also the Law settled in the case of Bable Vs.

State of Chattisgarh; A.I.R. 2012 SC 2621 that "answer given

by the accused in the statement under Section 313 of the

Cr.P.C. or defence of plea by him binds the accused". There is

no bar to take defence as many as possible. The Court can use

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the statement insofar as it corroborates the prosecution case,

but conviction cannot be based only on such statement. If the

various defences have been taken, those will not be used

against the accused. Even a false defence is no ground to

convict the accused if a chain of circumstantial evidence is

incomplete.

13. The accused has been convicted for the offence

punishable under Section 498-A of the I.P.C. appreciating the

evidence of the mother and sister of the deceased. The mother

had testified that after two months of the marriage, the

accused demanded Rs.70,000/- from her for a motorcycle and

plastering of his home. Secondly, he again demanded her

money for the same cause at his village Dahigaon when she

had been to attend the marriage of her relative on 25.02.2002.

At that time, the deceased requested her to pay the money

because her in-laws and the accused were harassing her. She

also complained about abusing and beating her. She also

testified that around 12 days thereafter, when the victim went

to her home to leave her daughter P.W.2, Bharti, for the third

time, he demanded the money for the same reason. At that

time, the accused threatened her that she would see something

happen if she did not arrange for money. P.W.2 Bharti, the

9 Cri.Rev.Appln.444-04.odt

deceased's sister, has corroborated her regarding the demand

on all three occasions. In addition, she has testified that when

she was at her home for 12 days, the accused beat her.

However, she did not know why the deceased was beaten. She

did not depose that the accused had beaten the deceased for

unlawful demand of money.

14. Learned counsel for the applicant has emphasized that

both Courts did not consider the admission of P.W.1 that the

accused was more financially sound than her. He has

vehemently argued that he had no reason to demand money

when the accused was financially sound. But, her marriage was

performed against her wish. Hence, she committed suicide.

Therefore, the false allegations have been levelled against him.

He has tried to convince the Court that a person who has a

sound financial condition is not greedy.

15. It is not the universal rule that a rich person is not

greedy. It's a mindset. It is a selfish and excessive desire for

more of something (such as money) than needed. It is an

insatiable demand for material gain. It has no concern with the

financial condition of a man. Anybody may be greedy. the

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financial soundness is not an exception. Hence, the arguments

of the learned counsel on this point find no water.

16. To disbelieve the allegation of unlawful demand, except

the sound financial condition, the testimony of these two

material witnesses i.e. P.W.1, and 2, was not shattered and

nothing material has been procured from the these witnesses.

The evidence of P.W.1 and 2 appears natural. There was no

exaggeration and the circumstances to disbelieve them. The

evidence of P.W.1 and 2 was cogent and reliable to believe that

the accused harassed the deceased was harassed for the

unlawful demand of money. Their evidence establishes that the

allegations of unlawful demand of money fall under

explanation (b) to Section 498-A of the Indian Penal Code.

Both Courts have Correctly appreciated the evidence on the

harassment of the deceased for unlawful demand of money.

Hence, there is no error on the face of the record.

17. The next point for consideration would be whether the

prosecution evidence is sufficient to believe that the accused

abetted the deceased to commit suicide and whether

presumption under Section 113-A of the Indian Evidence Act

would apply since the deceased died within seven (7) years of

11 Cri.Rev.Appln.444-04.odt

her marriage. It would also fall for consideration whether the

offence under Section 498-A of the I.P.C. has been proved; the

presumption under Section 113-A of the Indian Evidence Act

would automatically attract or apply.

18. The Hon'ble Supreme Court, in a recent judgment of

Gurjit Singh Vs. State of Punjab in Criminal Appeal Nos.1492-

1493 of 2010, dated 26.11.2019, reiterated the ratio laid down

in the case of State of West Bengal Vs. Orilal Jaiswal ; (1994) 1

S.C.C. 73, in which it was held that 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. It has

also been held that Sections 498-A and 306 of the I.P.C. are

independent and constitute different offences. Depending on

the facts and circumstances of an individual case, subjecting a

woman to cruelty may amount to an offence under Section

498-A of I.P.C. If a course of conduct amounting to cruelty is

established, leaving no other option for the woman except to

commit suicide, it may also amount to abetment to commit

suicide. Merely because the accused has been held liable to be

punished under Section 498-A of I.P.C., it does not follow that

12 Cri.Rev.Appln.444-04.odt

on the same evidence, he must also and necessarily be held

guilty of having abetted the commission of suicide by the

woman concerned.

19. Further, the Hon'ble Supreme Court has reiterated the

issue raised in the case of Hans Raj Vs. State of Haryana ;

(2004) 12 SCC 257 and observed in para No.26, which reads

thus :

"26. After observing the aforesaid, this Court, relying on the judgment of this Court in the case of Hans Raj (supra), observed that even if it is established that the woman concerned had committed suicide within a period of seven years from the date of marriage and that her husband has subjected her to cruelty, the Court is not bound to presume that suicide has been abetted by her husband. It is required to take into consideration all other circumstances of the case."

20. To attract or apply Section 306 of the I.P.C., the

prosecution has to prove that there was abetment to commit

suicide. The term 'abetment' has been defined in Section 107 of

the I.P.C. This Section has been scanned in various cases, and

the legal position has been settled that there shall be

instigation by a person to other people to do a particular thing

or engage with one or more other persons in any conspiracy for

doing that act. There shall be intentional aids, by any act or

13 Cri.Rev.Appln.444-04.odt

illegal omission for doing that thing. The term 'instigation'

means to goad, urge, forward, provoke, incite or encourage to

do an act. The actual words are not essential. 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

intention of the Legislature is clear that in order to convict a

person under Section 306 of I.P.C. there has to be a clear mens

rea to commit the offence. It also requires an active or direct

act that led the deceased to commit suicide, seeing no option,

and this act must have been intended to push the deceased

into such a position that he/she committed suicide. ( M. Mohan

Vs. State, Represented by the Dy. Superintendent of Police

A.I.R. 2011 SC 1238).

21. In the case of Gurjit Singh (cited supra), the ratio laid

down in the case of Hans Raj was discussed in paragraph

No.21, it has been held that when the allegation is of cruelty, it

must consider the nature of cruelty to which the woman was

subjected having regard to the meaning of the word "cruelty" in

Section 498-A of I.P.C. It has been held that one of the

circumstances that has to be taken into consideration by the

14 Cri.Rev.Appln.444-04.odt

Court is whether the alleged cruelty was of such a nature as

was likely to drive the woman to commit suicide or to cause

grave injury or danger to life, limb or health of the woman.

22. To establish the instigation to commit suicide, there shall

be a proximate nexus between the commission of suicide and

illegal demand made by the accused.

23. As far as 113-A of the Indian Evidence Act is concerned,

paragraph 13 of the Hans Raj case is the guiding principle

which reiterate thus :

"Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of Law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section

15 Cri.Rev.Appln.444-04.odt

498-A I.P.C. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman............."

24. Bearing in mind the Law as regards the abetment to

commit suicide and the cruelty caused to the wife and

application of presumption under Section 113-A of the Indian

Evidence Act; the Court has gone through the findings of both

Courts. It is the prosecution evidence that three times, the

accused demanded money from the mother of the deceased. It

also appears that at the time of the demand for money for the

first time, the accused went to the complainant's house. On the

second time, the mother and sister of the deceased went to the

village of the accused to attend the marriage of her relative.

The accused had taken the deceased to attend the said

marriage, and on that day, he took P.W.2 Bharti, sister of the

deceased, to his home. She stayed there for about 12 days.

However, she testified that the deceased was beaten twice

16 Cri.Rev.Appln.444-04.odt

during her stay. She never disclosed to anybody that the

accused demanded Rs.70,000/- at Dahigaon. She was unable

to tell the exact dates of beating the deceased at her home. She

has explained that since the deceased asked her not to disclose

the incident of beating, she kept mum. She never disclosed

about beating the deceased during her stay at home, even to

her mother, until her statement was recorded. The material

allegations that the accused demanded money and threatened

if not paid are by way of omission. The prosecution has a case

that after leaving P.W.2 Bharti to her home, the deceased

committed suicide after about three days. One of the

significant facts is that the report was lodged after the

cremation, and it was done at the place of the accused. She has

given the candid admission that till the filing of the complaint,

she never disclosed to anybody that the accused was

demanding money to purchase the motorcycle and plaster his

home. Though Bharti believed that there was a beating to the

deceased, her evidence is not specific that she was beaten for

not fulfilling the unlawful demand for money. On the contrary,

her evidence reveals that it was the quarrel on trivial grounds.

This situation is sufficient to infer that the deceased had no

cruelty to infer that there was a nexus between harassment/

cruelty and abetment to commit suicide. The conduct of the

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accused taking the deceased to attend the marriage of her

relative and sister to his home and her happy stay there for 12

days, and not noticing that the deceased was harassed or

treated cruelly for the demand of dowry raises doubt about the

abetment to commit suicide. The prosecution evidence appears

insufficient to believe that the nature of cruelty was of such a

nature as was likely to drive the deceased to commit suicide or

to cause grave injury or danger to the limb, life or health of the

deceased.

25. Considering the Law on the abetment to commit suicide

and presumption under 113-A of the Indian Evidence Act, the

Court believes that the accused never abetted the deceased to

commit suicide, and he never had any intention that the

deceased should commit suicide and the cruelty proved against

him was not of such a nature as was likely to drive the

deceased to commit suicide. Hence, the findings recorded by

both Courts that the prosecution has established that the

accused abetted the deceased to commit suicide warrants

interference.

26. The Court affirms the conviction of the accused for the

offence punishable under Section 498-A of the Indian Penal

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Court. The trial Court sentenced the accused to suffer rigorous

imprisonment for three years. It was the maximum corporal

sentence provided for the said offence.

27. Normally, the Judges consider many aspects of the case

like severity, guilt, the nature of the crime, liability of the

accused, the motive of the crime, and the social effect of the

crime for determining the quantum of the sentence. The

mitigating circumstances are also the consideration for the

quantum of the sentence. In Alister Anthony Pareira Vs. State

of Maharashtra (Criminal Appeal Nos. 1318-1320, decided on

12th January 2012), the Hon'ble Supreme Court held that

sentencing is an important task in the matters of crime. One of

the prime objectives of the Criminal Law is the imposition of an

appropriate, adequate, just and proportionate sentence

commensurate with the nature and gravity of the crime and

the manner in which the crime is done. There is no straight-

jacket formula for sentencing an accused on proof of crime.

The Courts have evolved certain principles: the twin objective

of the sentencing policy is deterrence and correction. What

sentence would meet the ends of justice depends on the facts

and circumstances of each case, and the Court must keep in

19 Cri.Rev.Appln.444-04.odt

mind the gravity of the crime, motive for the crime, nature of

the offence and all other attending circumstances."

28. In India, we adopt the reformative theory of punishment.

The sentence has to be just and fair not only to the accused but

also to the victim.

29. The learned trial Judge heard the accused on the point

of sentence. However, the lenient view sought on the ground

that the accused was the eldest son of his parents and he was

illiterate was rejected by assigning the reasons that such

offences are rampant and on the rise these days. A deterrent

sentence has to be awarded so the others are deterred. A soft

view in the matter of such offence would provide impetus to

person to commit such anti-social offences. Perhaps, the

learned trial Judge might have recorded the above reasons as

the accused was held guilty of the offence under Section 498-A

and Section 306 of the Indian Penal Code. However, this Court

held that the cruelty to the victim was not of such a nature as

was likely to drive the deceased to commit suicide. The

evidence reveals that most of the times demands were made to

the mother of the victim/deceased. However, the conduct of

the accused was that he never denied the deceased to meet her

20 Cri.Rev.Appln.444-04.odt

mother and sister. Not only this, he also took the sister of the

deceased at the request of her mother to his house, and she

stayed there for twelve days. There was no cogent evidence

that the accused ever beat the deceased for illegal demand of

dowry. At the time of the incident, the accused was 29. Now,

twenty years on, he must be fifty. He was a mason at the time

of the incident. Considering these circumstances, the Court is

of the view that the sentence imposed upon the accused for the

offence punishable under Section 498-A of the Indian Penal

Code is not just and fair. Hence, it requires reduction. The

accused had undergone a pre-trial sentence of around five

months and some days from time to time. Hence, the Court

considers it appropriate to reduce the sentence to the period he

has already undergone. Hence, the following order:

ORDER

(i) The Criminal Revision Application is partly allowed.

(ii) The impugned judgments and orders of the conviction of the learned 4th Adhoc Assistant Sessions Judge, Ahmednagar, passed in Sessions Case No.106 of 2002, dated 21.09.2002 and in Criminal Appeal No.42 of 2002 of the Additional Sessions Judge, Ahmednagar, dated 08.10.2004

21 Cri.Rev.Appln.444-04.odt

stand set aside partly to the extent of convicting the accused for the offence punishable under Section 306 of the I.P.C.

(iii) The accused, Babasaheb Janku Hinge, is acquitted of the offence punishable under Section 306 of the I.P.C.

(iv) The conviction for the offence punishable under Section 498-A of the I.P.C. is maintained. However, the sentence imposed upon the accused is reduced to the period he has undergone from time to time.