Bombay High Court
Cyril Garachar Fernandes . vs The State Of Maharashtra . on 13 November, 2025
2025:BHC-AS:49362
Shubhada S Kadam 44-apeal-164-2000.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 164 of 2000
Cyril Garachar Fernandes
Age - 48 years,
R/o.Gandhinagar, Dist. Shinoga
(Karnataka)
presently R/o. D'Souza Poultry Farm,
Wani Khurd, Shivar,
Tal. Dindori, Dist. Nasik ... Appellant
versus
The State of Maharashtra
(to be served through the learned Public
Prosecutor, Appellate Side, Bombay. .... Respondent
Mr. Harshad Palwe along with Ms. Farzana Khan, Advocate for the
Appellant.
Mr. S. S. Ghag, APP for Respondent-State.
CORAM : R. M. JOSHI, J.
DATE : 13th NOVEMBER, 2025.
Judgment:
1. This appeal takes exception to the judgment and order dated
23rd February 2000 passed in Sessions Case No. 112 of 1998 whereby
the appellant/accused came to be convicted for the offense punishable
under Section 306 of the Indian Penal Code 1860 (for short "IPC") and he
is sentenced to suffer Rigorous Imprisonment for three years with fine of
Digitally
signed by ₹2000/-, in default, rigorous imprisonment for four months.
SHUBHADA
SHUBHADA SHANKAR
SHANKAR KADAM
KADAM Date:
2025.11.18
11:03:07
+0530
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2. On 28th March 1998, at about 1:30 p.m. Madhav and Bhagwat
had witnessed an incident involving deceased-Sangita, found her in
compromising position with watchman-Bindravan. Sangita told him not to
inform this incident to anyone, however, it was informed to the accused,
who is the manager of the company. Thereafter, Sangita and her husband
tendered resignation to the accused. Sangita thereafter approached to the
accused requesting him to take her back in the service. On 2 nd April 1998
at around 1:15 a.m. Sangita came to the rest house with matchstick and
set herself on fire by igniting the matchstick. The police personnel and
other persons present at the spot, extinguished the fire, and she was sent
to the hospital for treatment. Dr. Pawar examined Sangita. Special
Judicial Magistrate recorded her statement wherein she claimed that the
accused abused her and took her resignation and removed her from
service and therefore. she set herself on fire by pouring kerosene on her
person. Sangita unfortunately died in the said incident. An offense came
to be registered against the accused for abetment to suicide. Investigation
was done and on conclusion of investigation, charge-sheet came to be
filed.
3. Charge was framed against the accused by Exhibit-. As he
abjured the charge, prosecution led evidence to prove the guilt of the
accused. Prosecution examined in all nine (9) witnesses to bring home
guilt of the accused. Prosecution by examining medical officer, Dr. Pawar-
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PW8 (Exhibit 32) proved the statement of Sangita, which is treated as her
dying declaration. The medical officer examined her at the time of
recording her statement and found her to be fully conscious and oriented
at that time. He also made endorsement on the dying declaration to that
effect. Dying declaration came to be recorded by PSI-Gopale who claimed
to have recorded the statement of Sangita as per her say. In the said
statement, Sangita claimed that her resignation was obtained by force and
thereafter, she went to the accused who refused to employ her by stating
that even if she dies, she will not be reinstated. Another statement came
to be recorded by the Special Judicial Magistrate, Shri Pawar before
whom Sangita stated about she committing the act of self immolation for
obtainment of resignation by accused and for removal of her from service.
She further claimed that being fed up with the harassment caused by the
accused, she set herself ablaze.
4. Learned Trial Court accepted the evidence led by the
prosecution to be sufficient to prove the guilt of the accused beyond
reasonable doubt and convicted him for the offense punishable under
Section 306 of the IPC and sentenced him to suffer rigorous
imprisonment for three years with fine of ₹2000/- with default sentence.
5. Learned counsel for the appellant submits that the Trial Court
has failed to take into consideration inconsistencies in the statement
made by the deceased before her death. It is his submission that even for
the sake of argument, it is accepted that resignation was obtained from
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her and her husband, that cannot be construed as abetment on the part of
the accused to lead deceased to commit suicide. It is his submission that
even otherwise having regard to the fact of illicit sexual relationship of the
deceased were disclosed, there was a reason for her to commit suicide
out of shame. He drew attention of the Court to the finding recorded by
the Trial Court to the effect that she did not voluntarily resign only on the
account she found in compromising position with another person as she
was having responsibility of two children. It is his submission that said
findings recorded by the Trial Court are not based upon evidence but are
surmises and conjectures. It is his submission that the allegation against
the accused with regard to the insult of the deceased is as vague as
possible and on the basis of which the offense of abetment to suicide
cannot be said to have been proved.
6. Learned APP supported the impugned judgment of conviction.
It is his submission that the dying declarations recorded of the deceased
are consistent with each other, and hence there is no error committed by
the Trial Court in relying upon the same to record conviction of the
appellant. It is his submission that the act of obtainment of resignation by
force as well as she being harassed by the accused is proved by
evidence on record, and as such, there would be no justification to cause
interference therein.
7. The prosecution has examined PW1- Narendra who was
working as supervisor in C & M Company and Smt. Lankabai-PW2. These
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witnesses have deposed about the incident in which the deceased lit
herself. In cross-examination, PW1 accepts that the deceased did not
inform anyone's name in respect of the incident. These witnesses are
relevant for the purpose of holding that this is a case of self immolation by
deceased. Testimony of Balu (PW4) is also on the same point.
8. It would be relevant to take note of testimony of Kantilal-PW3
who was working as Supervisor at C & M Company. He claims to have
seen the deceased and a watchmen of the company were found involved
in sexual intercourse. According to him, deceased had asked the witness
not to inform about the said incident to anyone, however, he has informed
about it to the accused being his superior. This witness states about
deceased and her husband tendering resignation. He also states about
the accused not conceding to the request made by the deceased for
reinstatement.
9. Though the prosecution has examined these witnesses in order
to bring on record the occurrence of the incident, so also, the issue of
resignation of the deceased and her husband, the prosecution has not
examined the husband of the deceased who also had tendered
resignation along with her. If it is the case of the prosecution that the
accused has forced them to tender resignation, his testimony was
absolutely necessary to substantiate the said fact. This becomes more
relevant in view of the fact that there is inconsistency in her statement
made before the police personnel as well as before the Special Judicial
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Magistrate about her resignation being obtained forcibly. In Exhibit-29 i.e.
statement made before Police Constable- Borade, no such forcible
resignation obtained by the accused from her has been claimed. But in
the statement recorded by the Special Judicial Magistrate, she claims
about obtainment of resignation forcibly. Thus, there is material
consistency in two dying declarations recorded of the deceased by two
different authorities. In such circumstances, examination of her husband
was necessary. He is not examined without any reason or justification.
Withholding of evidence of this witness would lead to drawing adverse
inference against prosecution that since there was no substance in the
said allegation, witness was not examined before the Trial Court.
10. One more question arises at this stage is as to when after the
occurrence of the incident of the deceased being found in compromising
position at workplace with another person, resignation is obtained of her's
as well as her husband and they are relieved from services, and
thereafter, the accused, not conceding to the request of the deceased for
re-employment would amount to abetment to the suicide committed by
her. It would be relevant to take note of the provisions of Section 107 read
with Section 306 of the IPC which reads thus :
"107. Abetment of a thing.-A person abets the doing of a thing,
who-
First.- Instigates any person to do that thing; or
Secondly. - Engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or illegal
omission takes place in pursuance of that conspiracy, and in order
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to the doing of that thing; or
Thirdly. - Intentionally aids, by any act or illegal omission, the doing
of that thing.
......
306. Abetment of suicide. - If any person commits suicide,
whoever abets the commission of such suicide, shall be punished
with imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine."
11. Abetment of thing would be an act where a person instigates
another person to do that thing. Here in this case, there is nothing on
record to indicate that the accused had instigated the deceased to commit
suicide by obtaining forcible resignation. Though it is sought to be claimed
in one of the dying declarations to that effect, the said dying declaration is
contrary to another. Here is not the case wherein , there is any
conspiracy for doing any act for illegal omission. There has to be an
intentional aid by any act for illegal omission on the part of the accused.
Even if it is accepted, that resignation was obtained by the accused from
deceased as well as her husband and subsequent act of his refusal to
reinstate them both, cannot be held to be an abetment to the commission
of suicide. There must be evidence to indicate the intention of accused to
drive deceased to commit act of suicide. In one of statements, it is
claimed by deceased that accused told her that even if she dies, he will
not reinstate her. In other statement, this aspect is missing. Thus there is
inconsistency in the two statements recorded of deceased and in absence
of any corroboration through independent evidence, it cannot be held that
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the guild of accused is proved beyond doubt. It also cannot be ignored
that apart from resignation, there was revelation of illicit relations of
deceased and thus, it cannot be said that there was absolutely, no other
reason for her to end her life. Though prosecution was able to prove that
deceased committed suicide by setting herself on fire, in absence of the
abetment on the part of the accused, no offense can be held to have been
proved against the accused.
12. Learned Trial Court has failed to take into consideration these
aspects of the matter and proceeded to convict the accused merely for the
reason that the deceased committed suicide and the said act of
commitment of suicide was preceded by the resignation of service. The
Trial Court has also recorded finding about there being no possibility of
voluntary resignation by the deceased, however, the said finding is not
based on the evidence on record but is on surmises. In the same breath,
Trial Court ought to have considered the incident of deceased, a married
person, being found in compromising position with another person in the
workplace could not have been ignored by the Trial Court.
13. Consideration of evidence on record, does not prove the guilt
of the accused with regard to he abetting the act of commission of suicide
by the deceased. Hence, the following order :
ORDER
1. The appeal is allowed.
Shubhada S Kadam 44-apeal-164-2000.doc
2. The judgment and order dated dated 23rd February 2000
passed in Sessions Case No. 112 of 1998 by the Additional
Sessions Judge, Nashik, is quashed and set-aside.
3. The appellant is acquitted for the offense punishable under 306
of the Indian Penal Code 1860 (for short "IPC").
4. The bail bonds of the appellant stands cancelled.
5. Fine, if any paid, be refunded to the accused.
6. Record and proceedings be returned to the learned Trial Court.
The appeal stands disposed of.
(R. M. JOSHI, J.)
