Bombay High Court
The State Of Mah vs Suresh Pralhad Shingare on 18 October, 2024
2024:BHC-AUG:25511
{1} CRI APPEAL NO. 2 OF 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 2 OF 2005
1. Suresh s/o Pralhad Shingare
Age: 27 yrs., Occu.: Agri.,
2. Shantiram s/o Pralhad Shingare
Age: 24 yrs., Occu.: Agri.,
3. Pralhad s/o Govindrao Shingare
Age: 64 yrs., Occu.: Agri.,
4. Housabai w/o Pralhad Shingare
Age: 60 yrs., Occu.: Household.
All R/o.: Kandari (Kh.), Tq.Badnapur,
Dist.Jalna. ..Appellants
Versus
. The State of Maharashtra ..Respondent
...
WITH
CRIMINAL APPEAL NO. 323 OF 2005
1. The State of Maharashtra
Through : The Public Prosecutor,
High Court Bench At
Aurangabad. ..Appellant
Versus
1. Suresh Pralhad Shingare
Age: 27 yrs., Occu.: Agri.,
R/o. Kandari (Kh.), Tq.Badnapur,
Dist.Jalna. ..Respondent
(Ori. Accused No.1)
...
Advocate for Appellants - Accused : Mr. Nilesh S. Ghanekar
APP for Respondent - State : Mr.S.K.Shirse
...
{2} CRI APPEAL NO. 2 OF 2005
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 15 OCTOBER, 2024
PRONOUNCED ON : 18 OCTOBER, 2024
JUDGMENT :
-
1. Convicts for offence under Sections 498-A and 306 read with
34 of the Indian Penal Code (IPC), by way of instant appeal, are
taking exception to the judgment and order dated 28-12-2004,
passed by the learned Sessions Judge, Jalna in Sessions Case No.144
of 2004.
PROSECUTION CASE IN BRIEF
2. On information passed by PW1 Trimbakrao, crime was
registered, as he reported that his daughter Meena was married to
appellant no.1 Suresh on 17-04-2000. He paid dowry of Rs.30,000/-
and had borne marriage expenses. After marriage, Meena went to
cohabit with her husband and in-laws. He reported that, initially for
a period of six months, his daughter Meena was treated well but
thereafter, there was ill-treatment at the hands of husband and in-
laws. There was demand of Rs.1,25,000/-for arranging service for
husband. She reported it when she came to maternal house. She
had come to maternal home for delivery, but none of the accused
{3} CRI APPEAL NO. 2 OF 2005
including husband came to either see her or the new born and rather
sent a message that they would not come to see them unless
Rs.1,25,000/- is paid. Informant claims to have arranged
Rs.56,000/- and Rs.30,000/- on two occasions. However, inspite of
receiving the said amount, there was ill-treatment. Meena reported it
when she came for Nagpanchami festival. Barely after 8 to 15 days
after Nagpanchami festival, news of Meena consuming poison was
received. She died. After necessary rituals, informant set law into
motion, on the strength of which, crime was registered and finally
investigated by PW10.
After gathering sufficient evidence, accused persons came to be
tried by learned Sessions Judge, Jalna, who appreciated the oral and
documentary evidence and held charges for offence under Sections
498-A and 306 read with 34 of the IPC as proved and convicted
them accordingly.
Precisely above judgment and order of conviction is now
subject matter of appeal before this Court.
SUBMISSIONS
On behalf of appellants :
3. Learned Counsel for appellants would submit that there is
false implication. He pointed out that there are general and vague
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allegations. That witnesses are merely deposing about ill-treatment,
but none of them has clarified or specified what was the nature of ill-
treatment and at the hands of which of the accused amongst the five
accused. He submitted that only on two occasions, deceased had
been to the house of informant. He pointed out that there are
allegation of money for service, but none of witnesses could clarify
for which job said amount was required. He pointed out that another
piece of evidence, which prosecution is relying, is at exh.35.
However, he pointed out that text of inland itself shows that there
was no demand, rather husband was insisting his wife to return back
to cohabit with him and this all can be gathered from exh.35 and
therefore, he submitted that said inland letter does not come to the
aid of the prosecution.
4. Pointing out to the testimonies of PW2, PW3, PW4, he
submitted that they are not consistent. That their testimonies are full
of material omissions and contradictions. That no independent
witness has been examined and therefore, according to him with
such quality of evidence when necessary ingredients for attracting
offence under Section 498-A and 306 of the IPC not being made,
learned trial Court ought not to have accepted prosecution version.
{5} CRI APPEAL NO. 2 OF 2005
According to him, there is improper appreciation of evidence
and settled law has also not been appreciated by learned trial Judge
and therefore, he questions maintainability of such judgment and
prays to allow the appeal by setting aside the impugned judgment.
On behalf of State :
5. Per contra, refuting above submissions and canvasing in favour
of impugned judgment, learned APP pointed out that informant
father, brothers and sister of deceased are all in unison deposing
about proper treatment for six months and thereafter, on account of
demand of Rs.1,25,000/- for job of husband, there was mal-
treatment. That deceased also reported about such demand. That
part payments were paid through PW9 Rangnath. That only for
fulfillment of demand, there was ill-treatment and cruelty. That
testimonies of prosecution witnesses have virtually remained intact
on the aspect of demand and ill-treatment. That only due to ill-
treatment suicide is committed. Therefore, according to learned APP,
as all necessary ingredients for attracting charges were available,
learned trial Judge has committed no error whatsoever in returning
guilt and hence, he prays to not to disturb well reasoned judgment.
{6} CRI APPEAL NO. 2 OF 2005
STATUS AND ROLE OF PROSECUTION WITNESSES
6. In support of its case, prosecution has examined as many as
ten witnesses. Their status and role is as under :
PW1 Trimbakrao Bajirao Ghavate is informant and father of
deceased.
PW2 Krishna s/o Trimbakrao Ghavate, is brother of deceased.
PW3 Sunita w/o Vasant Madan is sister of deceased.
PW4 Shriram s/o Trimbakrao Ghavate, is another brother of
deceased.
PW5 Dr.Sudhakar s/o Bhagwat Mhaske is Autopsy Surgeon, who
conducted autopsy and gave opinion that probable cause of death
might be due to poisoning.
PW6 Kalyan s/o Vithalrao Ukarde PW7 Nivruti s/o Punjaram Raut
and PW8 Sanjay Uttamrao Shinde are Panchas
PW9 Rangnath Yeshwant Dhaiwat is father-in-law of accused nos.5,
who acted as middleman for making payment to the accused.
PW10 Kundlike Kondaji Bhadag is the Investigating Officer.
SUM AND SUBSTANCE OF EVIDENCE
7. PW1 Trimbakrao, father of deceased, in his evidence at exh.33
testified about marriage of his daughter taking place on 17-04-2000,
{7} CRI APPEAL NO. 2 OF 2005
everything was smooth for six months. Thereafter, there was ill-
treatment in backdrop of demand of Rs.1,25,000/-. According to
him, whenever his daughter came to his house, she reported about
ill-treatment and demand. Then, he deposed about none of the
accused coming to see the baby delivered by his daughter, rather a
message was sent back that, until there demand is met, they would
not come. This witness initially sent Rs.56,000/- to accused and after
15 days, he received inland letter from accused issuing threats for
demand. Then he again send Rs.30,000/- through Rangnath Patil
(father in law of accused no.5) and one Sampat Patil. Thereafter,
there was proper treatment for 3-4 months. However, when she
came for festival of Nagpanchami, his daughter again reported ill-
treatment and demand. She was given understanding and sent back
to the accused. After 8-15 days, news of her death was received.
8. PW2 Krishna is brother of deceased. He also deposed that his
sister was treated well for a period of 5-6 months. Thereafter, there
was ill-treatment on account of demand of Rs.1,25,000/- for service
of accused no.1. Whenever she came for festivals, his sister reported.
She came for delivery at maternal house, but none of the accused
came to see either her or the child. Even according to him, after one
{8} CRI APPEAL NO. 2 OF 2005
and a half month, Rangnath, father-in-law of accused nos.5 came to
take his sister and at that time, he conveyed demand of Rs.1,25,000/-
and stated that unless demand is met, Meena would not be taken
back. When Rs.56,000/- were paid, he took his sister back to
accused. Again after one and a half month, Rangnath came and put
up demand of remaining amount. Again Rs.30,000/- were collected
and in presence of Sampat paid to Rangnath and both Rangnath and
Sampat went. But still ill-treatment continued. During Nagpanchami
festival, his sister reported ill-treatment and demand and after one
and half month, news of her death was received.
9. PW3 Sunita is sister of deceased, who also gave evidence that
there was proper treatment for six months and thereafter, for
insufficient dowry, demand of Rs.1,25,000/- was put up. After
delivery of her sister at maternal home, none of the accused came.
Her brother Shriram went to accused, but accused said that unless
Rs.1,25,000/- is paid, they will not receive his sister. He also
deposed about Rs.56,000/- paid through Rangnath. That proper
treatment was given for two months, but again demand was raised.
His cousin uncle and brother took Rs.30,000/- alongwith his sister to
the accused. Thereafter, he also deposed about news of her death
{9} CRI APPEAL NO. 2 OF 2005
being received.
10. PW4 Shriram is another brother of deceased, who also
reiterated as above.
ANALYSIS
11. Here out of ten witnesses, PW1 Trimbakrao is informant father,
PW2 Krishna and PW4 Shriram are brothers whereas PW3 Sunita is
sister of deceased. PW9 Rangnath has acted as mediator. Rest of the
witnesses are panchas, Police officials and autopsy surgeon.
First Charge - Section 498-A :
12. There is no dispute that marriage of appellant no.1 was
performed with deceased on 17-04-2000 and she died on 06-09-
2003. Appellant no.1 and deceased had one year old child.
Therefore, total cohabitation is of almost three years. Prosecution
alleges that there was ill-treatment in the backdrop of demand of
Rs.1,25,000/- for service of accused. Twice amount was paid, but for
balance Rs.25,000/- there was cruelty and ill-treatment is what is the
case of prosecution is and due to it Meena allegedly consumed poison
and ended up her life.
{10} CRI APPEAL NO. 2 OF 2005
13. On meticulous re-appreciation of testimonies of PW1 father,
PW2 and PW4 brothers and PW3 sister of deceased, it is emerging
that they are consistent about proper treatment given for a period of
5-6 months after marriage. Thereafter, they all deposed about
demand of Rs.1,25,000/- for service of accused husband and then
they alleged ill-treatment. However, it is pertinent to note that
informant father merely used the word ill-treatment. Similarly even
brothers and sister alleged ill-treatment but it is noticed that neither
of them has clarified or elaborated about mode of ill-treatment,
nature of ill-treatment and by which of the accused persons. When
the alleged ill-treatment was inflicted is also not specified by them.
None of them also deposed about what was the nature of job which
appellant husband intended to procure for which there was said to be
demand of Rs.1,25,000/-. It is also noticed that informant father has
admitted that marriage was performed happily. None of them
uttered that prior to marriage there was any talk about occupation of
husband or there was any assurance to arrange for his job, resulting
into demand of Rs.1,25,000/-. First time, after six month's of
marriage there are allegations of demand of Rs.1,25,000/-.
14. Unlike PW1 informant, PW3 Sunita, who is married and
{11} CRI APPEAL NO. 2 OF 2005
resident of Jalna, deposed that there was ill-treatment for bringing
insufficient dowry. PW1 Informant and PW2 another brother of
deceased have not uttered a word about dowry decided or settled
prior to marriage. Consequently, only general and omnibus
allegations are made by deposing "they ill-treated". None has given
details of instances of ill-treatment during cohabitation of three
years. As pointed out informant father merely speaks of hearing
from his daughter that there was demand of Rs.1,25,000/- but in
initial part of his testimony, he has not uttered about any cruelty
being mated out. Though PW3 sister spoke about ill-treatment in the
backdrop of demand of money, it is shown to be material omission
which has cropped up in paragraph 2 of the cross-examination.
Informant father in paragraph 7 of the cross-examination has
categorically admitted that at the time of marriage, there were no
quarrels and that marriage was performed peacefully.
15. It has further come in the evidence of father and siblings of
deceased that inspite of delivery of child at her parents house, none
of the accused came to see her or the child. Prosecution claims that
accused persons conveyed that unless said demand of amount is met,
they will not come. In support of such assertion PW9 was examined.
{12} CRI APPEAL NO. 2 OF 2005
This witness Rangnath allegedly visited house of informant to bring
deceased i.e. pre as well as post delivery and through him they all
claim demand of money to be raised. They also alleged that once
Rs.56,000/- and once Rs.30,000/- were handed over to PW9
Rangnath to be paid to accused and it is this witness, who was star
witness for prosecution. But inspite of he having examined at
exh.56, he has not supported prosecution on any count and was
therefore, required to be subjected to cross by prosecution itself, but
it turned out to be of no use for prosecution.
Consequently, star witness for prosecution PW9 Rangnath
having not supported prosecution, the very linchpin, who held both
the parties together, did not support prosecution. Prosecution
version suffered severe blow because he resiled and retracted from
his earlier version. That apart, Sampat Patil, who allegedly
accompanied PW9 Rangnath to handover amount of Rs.30,000/- to
accused, is also not examined by the prosecution.
Consequently, only family members' testimony is available and
as stated above their evidence is only about deceased being ill-
treated, as none has clarified or elaborated its nature or form and
when instances took place.
{13} CRI APPEAL NO. 2 OF 2005
16. In the light of above, mere testimony alleging ill-treatment is
not sufficient to attract charge of Section 498-A of the IPC. As to
what amounts to cruelty is fairly settled in following rulings by the
Hon'ble Apex Court :
(i) State of Andhra Pradesh v. M.Madhusudhan Rao, (2008) 15
SCC 582.
"Harassment simplicitor is not cruelty. Only when such
harassment is committed for the purpose of coercing a woman
or any other person to meet an unlawful demand or property
etc. alone would amount to cruelty punishable under Section
498-A IPC."
(ii) Girdhar Shankar Tawade v. State of Maharashtra (2002) 5 SCC
177.
"3. The basic purport of the statutory provision is to avoid
"cruelty" which stands defined by attributing a specific statutory
meaning attached thereto as noticed hereinbefore. Two specific
instances have been taken note of in order to ascribe a meaning
to the word "cruelty" as is expressed by the legislatures: whereas
Explanation (a) involves three specific situations viz. (i) to drive
the woman to commit suicide or (ii) to cause grave injury or
(iii) danger to life, limb or health, both mental and physical,
and thus involving a physical torture or atrocity, in Explanation
(b) there is absence of physical injury but the legislature
{14} CRI APPEAL NO. 2 OF 2005
thought it fit to include only coercive harassment which
obviously as the legislative intent expressed is equally heinous
to match the physical injury : whereas one is patent, the other
one is latent but equally serious in terms of the provisions of the
statute since the same would also embrace the attributes of
"cruelty" in terms of Section 498-A."
17. The second piece of evidence which prosecution seems to be
catching hold of is letter written by accused husband when deceased
was put up with her parents where she had been for delivery. The
said letter exh.34, for the sake of comprehension and analysis in
translated version is as under :
Many Many blessings to Meena. Reason for writing a letter is that,
you left (me) on your father's trust. But what was done was well done. But
now I am giving you as an advice, without ordering or warning you to
return by the 10th of March last. Because you never thought of me. And if
you had that thing called honor, you would come here and die, but you
would not stay there. I think so from what happened in the past. And your
parents have an attitude. They have nothing to do with this. Because they
can bear all this. If you come till last March 15th, if you don't come, your
relationship with me will be broken. And afterwards look at everything else.
This is the only advice to your father. If they don't send you by March 15th,
please don't wait. And don't come. Don't even think about me. Now we have
completed three years of marriage. Now giving only last 15 days. Is it the
end of our relationship? You can lie this too. And if you have the strength at
last, put it on, do anything I'm ready to answer.
After 15th do not come. Because I can't bear it. I can do anything to
{15} CRI APPEAL NO. 2 OF 2005
you if I find you there.
Signatures of Seizure Panchas:
1...... ..................sd/-
2. Sanjay Shinde
Before me
Sd/-
I.O. PSI
Police Station, Badnapur,Dist. Jalna."
(As translated by Sr. Translator, High Court, Aurangabad)
18. In the considered opinion of this Court, bare reading of the
letter allegedly authored by husband, would show that letter itself
has commenced by extending blessings to deceased. He seems to
have conveyed message asking her to come back to reside with him
within stipulated time i.e. by 15th March. However, when letter was
written by husband and when it was received by deceased, is not
clear. There is postal stamp of Badnapur Post Office on the letter
indicating date of despatch as 05-03-2003. Be it so, prosecution
claims that there are clear threats by husband. But on repeated
evaluation of the text, it does not seem to be so. He has conveyed
that if she is not sent back by 15 th March by her parents, do not
expect him to come or wait for him and then do not come at all and
even stop thinking about him. He has posed a question also as to
whether it is the end of their relationship and even challenged her
and that he is ready to answer back.
{16} CRI APPEAL NO. 2 OF 2005
Above is the communication between married couple. In said
letter, there is no material suggesting that vide exh.34 again demand
for amount was raised as is tried to be submitted by learned APP. For
above reasons, exh.34 has nothing incriminating nor can be said to
be carrying any foundation for prosecution version.
19. In the light of above discussion, in the considered opinion of
this Court, cruelty as contemplated under law is not firmly, cogently
proved beyond reasonable doubt so as to attract offence under
Section 498-A of the IPC.
Second Charge - Section 306 of the IPC :
20. Second charge is of abetment to commit suicide. Learned trial
Judge has held appellant guilty for offence of 306 of the IPC.
Before analyzing the evidence on this charge, it would be
fruitful to first give a brief account of settled judicial precedent as to
when said charge can be said to brought home.
Before attracting and applying charge under Section 306 of the
IPC, it is bounden and statutory duty of prosecution to establish that
there was abetment, inducement, instigation to commit suicide.
Coupled with mens rea, positive role must be shown to have been
{17} CRI APPEAL NO. 2 OF 2005
played by accused.
Law to the above extent is time and again dealt and discussed
in numerous judgments, including recent judgment of Kumar @
Shiva Kumar v. State of Karnataka, 2024 SCC OnLine SC 216,
wherein, from para 60 onwards, the Hon'ble Apex Court has
discussed the legal aspect of abetment to suicide, as to what amounts
to abetment as dealt under Section 107 of IPC and also, after
discussing previous legal pronouncements in M. Mohan v. State
(2011) 3 SCC 626; Ramesh Kumar v. State of Chhattisgarh (2001) 9
SCC 618, Chitresh Kumar Chopra v. State (2009) 16 SCC 605;
Amalendu Pal alias Jhantu v. State of West Bengal (2010) 1 SCC 707;
Rajesh v. State of Haryana (2020)15 SCC 359 and State of West
Bengal v. Orilal Jaiswal (1994) 1 SCC 73, culled out a principle that,
in order to prove guilt of accused for abetment to commit suicide,
prosecution has to prove :
(i) the accused kept on irritating or annoying the deceased
by words, deeds or wilful omission or conduct which
may even be a wilful silence until the deceased reacted
or pushed or forced the deceased by his deeds, words
or wilful omission or conduct to make the deceased
move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or
{18} CRI APPEAL NO. 2 OF 2005
encourage the deceased to commit suicide while acting
in the manner noted above. Undoubtedly, presence of
mens rea is the necessary concomitant of instigation.
Referring to the case of Amalendu Pal (supra), it has been
observed in para 69 that :
69. ... this Court after referring to some of the previous
decisions held that it has been the consistent view that
before holding an accused guilty of an offence 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 find out whether the
cruelty and harassment meted out to the victim had left the
victim with no other alternative to put an end to her life. It
must be borne in mind that in a case of alleged abetment
of suicide, there must be proof of direct or indirect act(s)
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 deceased to
commit suicide, conviction in terms of Section 306 IPC
would not be sustainable. Thereafter, this Court held as
under:
13. In order to bring a case within the purview of Section
306 IPC there must be a case of suicide and in the
commission of the said offence, the person who is said to
have abetted the commission of suicide must have played
{19} CRI APPEAL NO. 2 OF 2005
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
offence must be proved and established by the prosecution
before he could be convicted under Section 306 IPC."
21. Prosecution witnesses have received message that Meena
consumed poison on 06-09-2003. FIR is lodged on next day. Autopsy
surgeon, who conducted post mortem, gave opinion about probable
cause of death "death of deceased "might" have been caused due to
poison". Said opinion explicitly shows that autopsy surgeon has not
given any concrete opinion as he seems to be unsure. Autopsy
surgeon has preserved viscera (CA report does not find place in the
chargesheet). Therefore, question is what is the cause of death. If
case is of consumption of poison, then there has to be supportive
material. Spot panchanama drawn on next day is explicit that
nothing is seized from the spot. With such state of affairs, question
arises is on what basis PW5 Dr.Mhaske, autopsy surgeon, expressed
possibility of death due to poison. Admittedly, burden is on
prosecution to prove mode of death because there is charge of 306 of
the IPC.
{20} CRI APPEAL NO. 2 OF 2005
22. Prosecution witnesses i.e.PW1 father, PW2 brother, PW3 sister,
PW4 brother of deceased claim that visit of Meena to their house was
at the time of Nagpanchami, which as per Indian calendar falls in the
month of August. There are no medical papers suggesting deceased
Meena being taken to hospital. Deceased Meena was declared dead
on 06-09-2003. What preceded the consumption is unclear. There is
a gap of almost two weeks between visit of deceased to informant
and meeting them and this is axiomatic from testimony of informant
in paragraph 4. When she returned back to accused is not brought
on record.
In view of the charge, it is expected of the prosecution to show
that during her stay with accused, there was cruelty, harassment,
which was so incessant and continuous in nature that she was left
with no other alternative but to end up her life. It is expected of
prosecution to demonstrate that accused persons abetted or induced
the suicide. Their role has to be crystallized to make them
answerable for suicide by Meena. Unless above legal requirements
are available, mere unnatural death taking place in their house,
would not be sufficient to bring presumption into play i.e. unless
foundational facts are proved. What triggered the suicide has
virtually remained a mystery. Unfortunately, death has taken place
{21} CRI APPEAL NO. 2 OF 2005
but to attribute it to accused persons, charges have to be proved
beyond reasonable doubt and that is the fundamental principle of
criminal jurisprudence. Here it is not proved beyond reasonable
doubt that only and only because of cruelty or ill-treatment by
accused in the backdrop of their demand, Meena committed suicide.
Therefore, with such quality of evidence on record, it is unsafe to
hold charge of 306 to be proved and same also fails. Consequently,
Criminal Appeal No.2 of 2005 deserves to be allowed.
23. State has preferred Criminal Appeal No.323 of 2005 i.e. getting
dissatisfied by the quantum of sentence, but as this Court has
reversed the conviction, said appeal becomes redundant. Accordingly,
I proceed to pass following order :
ORDER
I) Criminal Appeal No.2 of 2005 is allowed.
II) The conviction awarded to appellants in Sessions Case
No.144 of 2004 by Sessions Judge, Jalna on 28-12-2004 for
the offence punishable under Sections 498-A and 306 read with
34 of the Indian Penal Code, stands quashed and set aside.
III) The appellants stand acquitted of the offence punishable
under Sections 498-A and 306 read with 34 of the Indian Penal
Code.
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IV) The bail bonds of appellants stand cancelled.
V) The fine amount deposited, if any, be refunded to the
appellants after the statutory period.
VI) It is clarified that there is no change as regards the order
in respect of disposal of muddemal.
VII) Criminal Appeal No.323 of 2005 is dismissed.
( ABHAY S. WAGHWASE )
JUDGE
SPT
