Bombay High Court
Vinod Khushalbhau Bhosale vs The State Of Maharashtra on 9 January, 2025
2025:BHC-AUG:601
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 234 OF 2006
Vinod S/o. Khushalbhau Bhosale
Age: 19 years, Occu.: Business
R/o. Satral Shivar, Tq. Rahuri,
District Ahmednagar ... Appellant
(Orig. Accused No.1)
Versus
The State of Maharashtra ... Respondent
......
Mr. Niraj Chudiwal, Advocate h/f Mr. Satej S. Jadhav, Advocate for
Appellant
Mr. V.M. Jaware, APP for Respondent - State
......
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 06 JANUARY, 2025
PRONOUNCED ON : 09 JANUARY, 2025
JUDGMENT :
-
1. In this appeal, convict in Sessions Case No.1 of 2006 takes
exception to the judgment and order passed by learned 3 rd Ad-hoc
Additional Sessions Judge, Ahmednagar, dated 06.03.2006 convicting
him for offences punishable under sections 498-A and 306 of Indian
Penal Code (IPC).
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PROSECUTION CASE IN BRIEF
2. In brief case of the prosecution is that, deceased Surekha was
married to present appellant in the year 2003 and after marriage, she
went to cohabit with present appellant i.e. husband, and in-laws. For
one year, everything was smooth. However, after demise of her
father-in-law, the accused persons started addressing deceased
Surekha as a "jinx," i.e., someone who brings misfortune and bad luck
to their house. Appellant/accused no.1 also beat her and remaining
accused abused her. Surekha reported about this on phone to her
parents and brother and even during their visits to her house. All
accused also demanded Rs.25,000/- for purchase of motorcycle for
appellant. It is the case of prosecution that, as above demand was not
met, Surekha was ill-treated and getting fed up, she hanged herself
and committed suicide. On report of father PW-2, crime was
registered for offences punishable under Sections 498-A and 306 of
the IPC.
After investigation, accused were charged and the trial was
conducted before the learned 3rd Additional Sessions Judge,
Ahmednagar, vide Sessions Case No.01 of 2006 and after
appreciating oral and documentary evidence, learned trial court, by
judgment and order dated 06.03.2006, acquitted accused nos. 2 and
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3, but convicted accused no.1, i.e. present appellant, for above
offences.
Feeling aggrieved by above conviction, the present appeal has
been preferred on various grounds raised in the appeal memo.
SUBMISSIONS
On behalf of appellant :
3. Learned Counsel for appellant submitted that there is false
implication. That, vague, general and sweeping allegations are
levelled. He pointed out that, on the same set of evidence, accused
nos.2 and 3 are acquitted, but appellant/husband is alone convicted.
Learned counsel pointed out that evidence of father, mother and
brother of deceased is not consistent and there are material
omissions. That, there is no evidence to suggest the applicability of
either offence under Section 498-A or about abetment to commit
suicide. Therefore, learned counsel prays for setting aside of the
impugned judgment and order by allowing the appeal.
On behalf of State :
4. Per contra, learned APP supported the judgment by submitting
that, after one year of marriage, accused persons abused deceased
Surekha and they considered her as a 'jinx'. That, immediately after
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she stepped into their house after marriage, her father-in-law died,
followed by her brother-in-law. That, appellant and in-laws of
deceased were superstitious, and they ill-treated, abused Surekha on
above count. That, they also put up demand of Rs.25,000/- for
purchase of a motorcycle for the appellant. That, appellant beat
deceased Surekha and therefore, according to learned APP, learned
trial court has correctly appreciated the available evidence and
committed no error whatsoever in holding appellant guilty. For above
reasons, learned APP prays to dismiss the appeal.
STATUS AND ROLE OF PROSECUTION WITNESSES
5. In support of its case, prosecution has examined as many as
five witnesses. Their role and status and the sum and substance of
their evidence can be summarized as under :
PW1 Santosh has acted as pancha to spot panchanama Exhibit 26.
PW2 Dagadu Keshav Salve is father of the deceased. He deposed at
Exh.27 as under :
"1. ....... I am having 3 daughters viz. Sangita Baban, Manda
Bharat and Surekha Vinod. Surekha was my third daughter.
Marriage of Surekha took place with accused no.1 in the year
2003 as per Christian Rites and Religion. After marriage,
Surekha went for cohabitation with accused no.1 When
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marriage took place, accused no.1, his parents and his brother
were residing together. Surekha gave birth to a male child who
is not 1 ½ years of age.
2) For one year good treatment was given to deceased
Surekha. After one year, her father-in-law died. All accused
were telling that due to her arrival in their family misfortune
started and therefore her father-in-law died. Accused no.1 used
to beat her while accused no.2 used to abuse her. My daughter
told me about ill treatment on phone and also in our visits to
her house. I and my wife used to go to her house and used to
console her. I accused to behave properly with my daughter.
However, there was no change in the behavour of the accused.
After 6 months of death of father-in-law, brother-in-law
Rajendra was also expired. Thereafter, accused gave more ill-
treatment to my daughter. All accused were telling my daughter
that she was of "Pandharya Payachi" and were giving her ill-
treatment. My daughter informed me. Therefore, I and my wife
went to the house of accused and told them to behave properly.
3) All accused before 6 months of the death of Surekha
demand Rs.25,000/- to Surekha for purchasing motorcycle.
Surekha told me this on phone as well as on my personal visits
to her. I and my wife told accused that we were not having that
much amount. I assured that we would pay the said amount
later on. Accused quarrelled with me for not giving money.
4) On 24.10.2005, my mother-in-law Shantabai Laxman
expired. I informed accused, but they did not send Surekha. On
05.11.2005, my son Prakash went to bring Surekha for Bhaubij.
My son halted there. I had been to Rampur to attend the funeral
of my cousine brother Dadu Bhosale. My uncle Bhivsen Salve
told my that my daughter committed suicide by hanging. I saw
ligature marks on the neck of my daughter's dead body. Sarie
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was found hanging in a room. P.M. was conducted on following
day. After post-mortem, funeral took place in the village of
accused. I made enquiry about my son Prakash, who was
present there. Prakash met me. Prakash asked me why our
daughter was given in the house of accused. She hanged herself
as accused no.2 demanded Rs.25,000/-."
PW3 Sindhubai is mother of the deceased. At Exhibit 30, she
deposed as under :
"1. .... After one year of the marriage, father-in-law of Surekha
died. Therefore, father-in-law of Surekha died. Therefore,
accused started giving ill-treatment to my daughter. All accused
were giving abuses to my daughter that she was not good. She
was not having boon of goddess Laxmi. Accused no.1 used to
beat her, while accused nos.2 and 3 were abusing her. Surekha
told me about ill-treatment on telephone. I and my husband
repeatedly visited the house of accused and told them to behave
properly with Surekha. After 6 months, Raju- brother-in-law of
Surekha was expired. Accused were telling her that due to her,
their men expired and she would bring Rs.25,000/- for
purchasing motorcycle. Before 6 months of death of Surekha
accused started demanding Rs.25,000/-. Surekha told us this
demand on telephone and also on our personal visits to her. I
and my husband went to the house of accused and told them
that we have no money and amount will be paid in future.
2. My son Prakash went to bring Surekha for Bhaubij Festival.
My son halted there. Accused no.3 gave threat to my son and
asked him to bring Rs.25,000/-. My son told me this on
telephone. Thereafter I received phone message that my
daughter was expired."
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PW4 Prakash, i.e. brother of deceased, is examined at Exhibit 35
wherein he deposed as under :
"1. ..... Surekha was my youngest sister. Marriage of
Surekha took place with accused no.1 on 11/05/2003. Surekha
went for cohabitation with accused no.1 at village Rampur. At
the time of marriage, accused nos.1,2 and father father-in-law
and brother-in-law were residing together. Surekha has one son
of 1 ½ years. For one year good treatment was given to
Surekha.
2) After one year of marriage, Surekha's father-in-law
expired. Accused no.2 was telling that Surekha was of
"Pandharya payachi and therefore she lost her husband".
Accused no.1 was also giving abuses and beating deceased
Surekha. Accused no.3 was also giving abuses to deceased
Surekha. Deceased told me this on telephone and whenever I
visited her house. After 6 months of the death of father-in-law,
her brother-in-law Raju died. Accused No.2 was telling Surekha
that due to her her son was died, while accused nos.2 and 3
were also abusing deceased Surekha. Accused No.1 was also
beating deceased Surekha. This was also told on telephone and
in my personal visits to deceased Surekha. I asked to accused
not to give ill-treatment to my sister. My parents also told
accused to behave properly.
3) Before 6 months of the incident, accused demanded
Rs.25,000/- to my parents for purchasing motorcycle. My sister
told me this demand of accused. My father told accused
husband, mother-in-law and father-in-law of deceased Surekha
that he would pay money in future. However, ill-treatment
continued.
4) On 24/10/2005, my grandmother Shantabai Laxman died.
We requested accused to send deceased Surekha for funeral but
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accused is not send Surekha.
5) On 05/11/2005, I went to bring Surekha for Bhaubij
festival. Accused no.2 was out of station. Accused no.1 told me
to ask his mother on her arrival in the village and then take
away Surekha. I halted there. On following day till 1.30 p.m.,
accused no.2 did not come. So I asked accused no.3 and
accused no.1 that I should take my sister for Bhaubij and also to
give treatment to her as she was suffering from illness but both
accused refused. Accused no.3 told me that if I would take may
sister, she should not be brought back and if I visit their house
again, he would cut my hands and legs as we could not provide
their demand. There was also quarrel between me and accused
no.3 who asked me to bring my father. I searched my father in
Rampur, but I could not trace. Therefore, I made phone call to
my mother and narrated her incident. My mother asked me to
stay at Rampur and took my father to the house of accused. I
then went to the house of accused no.3 and his children were
sitting outside the house. I went in the middle room and found
that my sister Surekha was hanged by sarie to the roof. I called
Shashikant Bhosale and he released my sister from hanging
with a hope that she might be alive, but in vain. Accused no.1
was also present who took Surekha to the hospital. Doctor
declared her dead. On the following day funeral took place.
Accused before the court are the same."
PW5 Ramdas Raykar, API, is the Investigation Officer.
LEGAL PRECEDENTS
6. Before adverting to the facts of the case in hand, it would be
apt to discuss the settled legal position on the aspect of charge under
Sections 498-A and 306 of IPC.
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Law on Section 498-A IPC :
There are series of judgments wherein Hon'ble Apex Court has
repeatedly observed and held that in case of general, vague and
omnibus allegations without specifying role or giving specific
instances of cruelty, charge of Section 498-A would not automatically
get attracted. Such observations are reflected in Kans Raj v. State of
Punjab and others [Appeal (crl.) 688-90 of 1993 decided by the
Hon'ble Apex Court on 26.04.2000]; State of Andhra Pradesh v. M.
Madhusudhan Rao (2008) 15 SCC 582; Neelu Chopra and another v.
Bharti (2009) 10 SCC 184; Geeta Mehrotra Vs. State of U.P. (2012)
10 SCC 741; Bhaskar Lal Sharma and Anr. v. Monica and Ors AIR
2014 SC (Supp) 1310; K. Subba Rao v. The State of Telangana ;
(2018) 14 SCC 452 wherein, as to what constitutes offence under
Section 498-A and when it can be said to be made out has been dealt
and discussed.
Even very recently, the Hon'ble Apex Court, in the case of
Naresh Kumar v. State of Haryana (2024) 3 SCC 573 observed that,
to constitute offence of cruelty, there has to be incessant or
continuous form of cruelty.
Likewise, in the case of Yashodeep Bisanrao Vadode v. State of
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Maharashtra (2024) SCC Online SC 2989, the Hon'ble Apex Court
observed that, by way of evidence, specific acts and role of accused
has to be demonstrated for attracting Section 498-A IPC.
Again, in the most recent case of Dara Lakshmi Narayana and
others v. State of Telangana and another 2024 SCC Online SC 3682,
the Hon'ble Apex Court obseved, "mere reference to the names of
family members in a criminal case arising out of matrimonial dispute,
without specific allegation, indicating their active involvement should
be nipped in the bud".
Law on Section 306 of IPC :
7. In State of West Bengal v. Orilal Jaiswal (supra), the Hon'ble
Supreme Court has cautioned 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. If it appears to the Court that a victim
committing suicide was hypersensitive to ordinary petulance, discord
and difference in domestic life, quite common to the society, to which
the victim belonged and such petulance, discord and difference were
not expected to induce a similarly circumstanced individual in a
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given society to commit suicide, the conscience of the Court should
not be satisfied for basing a finding that the accused charged of
abetting the offence of suicide should be found guilt.
8. In Ramesh Kumar v. State of Chhatisgarh (2001) 9 SCC 618, it
is observed that, "Instigation is to goad, urge forward, provoke, incite
or encourage to do 'an act'. To satisfy the requirement of instigation
though it is not necessary that actual words must be used to that
effect or what constitutes instigation must necessarily and specifically
be suggestive of the consequence. Yet a reasonable certainty to incite
the consequence must be capable of being spelt out.
9. In M. Arjunan v. State, represented by its Inspector of Police ,
(2019) 3 SCC 315, while explaining the necessary ingredients of
Section 306 IPC in detail, observed as under :-
"7. The essential ingredients of the offence 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
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suicide are satisfied, accused cannot be convicted under
Section 306 IPC."
10. In Ude Sing & others v. State of Haryana (2019) 17 SCC 301,
the Hon'ble Supreme Court held that in order to convict an accused
under Section 306 IPC, the state of mind to commit a particular
crime must be visible with regard to determining the culpability. It
was observed as under :-
" 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, particularly in the context of
an offence 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 suffice unless there be such action on the part of
the accused which compels the person to commit suicide;
and such an offending 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.
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16.1 For the purpose of finding 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 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 offence 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
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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."
11. In Gurcharan Singh v. State of Punjab , (2020) 10 SCC 200, the
Hon'ble Apex Court observed that whenever a person instigates or
intentionally aids by any act or illegal omission, the doing of a thing,
a person can be said to have abetted in doing that thing. To prove the
offence of abetment, as specified under Section 107 IPC, the state of
mind to commit a particular crime must be visible, to determine the
culpability.
12. In Geo Varghese v. State of Rajasthan and another (2021) 19
SCC 144, the Hon'ble Supreme Court has considered the provision of
Section 306 IPC along with the definition of abetment under Section
107 IPC and observed as under :
"14. Section 306 of IPC makes abetment of suicide a
criminal offence and prescribes punishment for the same.
...
15. The ordinary dictionary meaning of the word
'instigate' is to bring about or initiate, incite someone to
do something. This Court in Ramesh Kumar v. State of
Chhattisgarh, (2001) 9 SCC 618, has defined the word
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'instigate' as under :-
"20. Instigation is to goad, urge forward, provoke,
incite or encourage to do 'an act'."
16. The scope and ambit of Section 107 IPC and its co-
relation with Section 306 IPC has been discussed
repeatedly by this Court. In the case or S.S. Cheena v.
Vijay Kumar Mahajan and Anr (2010) 12 SCC 190, it was
observed as under : -
"25. 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 and the
ratio of the cases decided by the Supreme Court is
clear that in order to convict a person under
Section 306 IPC there has to be a clear mens rea to
commit the offence. It also requires an active act or
direct act which led the deceased to commit suicide
seeing no option and that act must have been
intended to push the deceased into such a position
that he committed suicide."
13. In Mariano Anto Bruno & another v. The Inspector of Police,
2022 SCC OnLine SC 1387, after referring to the above referred
decisions rendered in context of culpability under Section 306 IPC,
the Hon'ble Supreme Court observed as under :
"44. . . . It is also to be borne in mind that in cases of
alleged abetment of suicide, there must be proof of direct or
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indirect acts of incitement to the commission of suicide.
Merely on the allegation of harassment without their 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."
14. In Kashibai & Others v. The State of Karnataka, 2023 SCC
OnLine SC 575, it is observed that to bring the case within the
purview of 'Abetment' under Section 107 IPC, there has to be an
evidence with regard to the instigation, conspiracy or intentional aid
on the part of the accused and for the purpose proving the charge
under Section 306 IPC, also there has to be an evidence with regard
to the positive act on the part of the accused to instigate or aid to
drive a person to commit suicide.
15. In very recent case of Naresh Kumar v. State of Haryana 2024
DGLS (SC) 224/(2024) 3 SCC 573 it is observed that, had there been
any clinching evidence of incessant harassment on account of which
the wife was left with no other option but to put an end to her life, it
could have been said that the accused intended the consequences of
his act, namely, suicide. A person intends a consequence when he (1)
foresees that it will happen if the given series of acts or omissions
continue, and (2) desires it to happen. The most serious level of
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culpability, justifying the most serious levels of punishment, is
achieved when both these components are actually present in the
accused's mind (a "subjective" test)."
16. In another recent case of Kumar @ Shiva Kumar v. State of
Karnataka [Criminal Appeal No. 1427 of 2011 decided by the
Hon'ble Apex Court on 01.03.2024], following observations are
made:
"39. Reverting back to the decision in M. Mohan (2011) 3
SCC 626 , this Court observed that abetment would
involve 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.
Delineating the intention of the legislature and having
regard to the ratio of the cases decided by this Court, it
was concluded that in order to convict a person under
Section 306 IPC there has to be a clear mens rea to
commit the offence. It would also require an active act or
direct act which led the deceased to commit suicide seeing
no other option and that this act of the accused must have
been intended to push the deceased into such a position
that he committed suicide."
ANALYSIS
17. Keeping in mind the above settled legal position, here, there is
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no dispute about marriage between present appellant and deceased
Surekha taking place in 2003. Informant (father), mother and
brother are consistent that after one year, there was ill-treatment. It is
alleged that accused/husband beat and abused Surekha and
demanded Rs.25,000/-. However, none of the above witnesses have
quoted as to when and on what count accused-husband/present
appellant beat her. Apparently, sweeping allegations of abuse, ill-
treatment, and demand are leveled against all accused. Prosecution
has claimed that deceased was addressed as a 'jinx' for inviting bad
luck. However, apart from delayed F.I.R., i.e. in spite of the
occurrence taking place on 05.11.2005, report was lodged on
09.11.2005 i.e. after five days, and there is also no plausible
explanation for delayed reporting.
18. Father and brother i.e. PW-2 and PW-4, apparently appear to
have improvised their version as their statements are silent about
accused/husband beating and raising demand. There is material
omission on that regard. Version of son materially differs from
version of his own parents on the count that deceased herself was
suffering from illness. Even both parents are silent that accused No.3
stating PW-4 that if he takes his sister, then she should not be brought
back. It also transpires that on the day of hanging, brother Prakash
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was very much in house of accused. In paragraph 5, he stated that his
sister hanged herself with a saree on the roof. However, in cross-
examination, in paragraph 9, he admitted that accused no. 1/present
appellant was present in the house, but he entered the room after
this witness arrived. Resultantly, there is no evidence of any
abetment, instigation or ill-treatment to suggests that deceased was
compelled to take the drastic step of hanging herself as stated above.
What actually happened in proximity to hanging is not stated by
brother. There are vague, omnibus and sweeping allegations against
all accused, however except the appellant/husband, all remaining
accused are already acquitted from the said charge. Therefore, with
such quality of evidence, charges under Sections 498-A and 306 of
the IPC cannot be said to be proved beyond reasonable doubt. For all
above reasons, appeal succeeds.
19. Perused the judgment under challenge. Learned trial Court has
apparently failed to appreciate the material omissions, improvisation
made by prosecution witnesses and that they are inconsistent on
material count. Therefore, there being non-appreciation of the
valuable evidence in proper perspective, interference is called for.
Accordingly, I proceed to pass following order:
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ORDER
I) Criminal Appeal No.234 of 2006 is allowed.
II) The conviction awarded to appellant Vinod Khushalbhau
Bhosale in Sessions Case No.1 of 2006 by the learned 3rd
Ad-hoc Additional Sessions Judge, Ahmednagar on
06.03.2006 for offences punishable under Sections 498-A
and 306 of the Indian Penal Code, stands quashed and set
aside.
II) The appellant Vinod Khushalbhau Bhosale stands
acquitted of the offences punishable under Section 498-A
and 306 of the Indian Penal Code.
IV) The bail bonds of appellant stands cancelled.
V) The fine amount deposited, if any, be refunded to the
appellant after the statutory period.
VI) It is clarified that there is no change as regards the order
in respect of disposal of muddemal.
( ABHAY S. WAGHWASE )
JUDGE
S P Rane
