Suresh S/O Ananda Jadhav (Mali) vs The State Of Maharashtra on 22 August, 2017

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO.825 OF 2015

Suresh s/o Ananda Jadhav (Mali),
Age : 45 years, Occu Business
(Hotel Anand),
R/o Village Ner, Taluka APPELANT
and District Dhule (Orig. Accused No.1)

VERSUS

The State of Maharashtra,
Through Dhule Taluka Police
Station, Taluka and
District Dhule RESPONDENT

—-
Mr.C.R. Deshpande, Advocate for the appellant
Mr.G.O. Wattamwar, A.P.P. for the respondent/State
—-

CORAM : SANGITRAO S. PATIL, J.

RESERVED ON : 8th AUGUST, 2017
PRONOUNCED ON : 22nd AUGUST, 2017

JUDGMENT :

Heard the learned counsel for the appellant and

the learned A.P.P. for the respondent/State.

2. The appellant (original accused No.1) has

challenged his conviction and sentence for the offences

punishable under Sections 306, 498-A, 504 and 506 of the

Indian Penal Code (“IPC”, for short), recorded in

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Sessions Case No. 15 of 2013 by the learned Additional

Sessions Judge, Dhule on 13th October, 2015.

3. The original accused No. 2 is the mother, while

original accused No. 3 is the brother of the appellant.

The accused were prosecuted for the offences punishable

under Sections 306, 498-A, 323, 504 and 506 read with

Section 34 of the IPC. It is alleged that the appellant

and accused Nos. 2 and 3, in furtherance of their common

intention, subjected the deceased Bharati, who was the

wife of the appellant, to cruelty with a view to compel

her to bring money from her maternal home, voluntarily

caused hurt to her, intentionally insulted her,

criminally intimidated her and ultimately abetted her to

commit suicide on 30th August, 2012 at about 2.15 a.m.

when she was residing with the appellant. The

prosecution examined seven witnesses to prove guilt of

the accused persons. The appellant examined two

witnesses, who were the Gram Sevaks of village Ner and

Bhadane, in his defence. After evaluating the evidence

of the prosecution and that of the appellant, the

learned Trial Judge acquitted accused Nos. 2 and 3 of

the above mentioned offences and convicted the appellant

for the said offences. The appellant has been sentenced

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to suffer rigorous imprisonment for eight years, three

years, six months and six months, besides fine amount,

for the offences under Sections 306, 498-A, 504 and 506

of the IPC, respectively. The appellant has deposited

the amount of fine before the Trial Court.

4. The State/prosecution has not challenged the

judgment of acquittal passed in respect of accused Nos.

2 and 3. Thus, the said part of the judgment has got

finality.

5. The case of the prosecution is based on the

oral evidence of the informant, who is the brother of

the deceased Bharati, Trupti (PW2), who is the daughter

of the deceased Bharati and the reports/complaints made

by the deceased Bharati before Varsha Borse (PW3),

Police Head Constable (PHC) Sonawane (PW6) and in the

Court of Judicial Magistrate, First Class at Sakri.

6. A.P.I. Raje (PW7) prepared the inquest

panchanama (Exh-39) and spot panchanama (Exh-50) at the

house of the appellant situate at village Ner, Taluka

and District Dhule. The contents of these panchanamas

about the house, where the deceased Bharati committed

suicide, are not challenged. Though it has come in the

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evidence of the informant that the house, where the

deceased Bharati committed suicide, was that of

Pandharinath Khalane or was by the side of the house of

Pandharinath Khalane, since it is not the case of the

appellant that the deceased Bharati committed suicide in

the house of any other person than himself, the evidence

of informant as to in whose name the said house was

standing would not be of any consequence.

7. Dr. Choudhari (PW4) (Exh-35), who conducted

post-mortem of the body of the deceased Bharati on 31 st

August, 2012, noticed ante-mortem ligature mark around

the neck of the deceased Bharati. He opined that she

died of asphyxia due to hanging. This evidence has

remained unchallenged. It is not the case of the

appellant that the death of the deceased Bharati was

accidental or homicidal. It is, thus, clear that the

death of Bharati was suicidal.

8. The informant and Trupti (PW2) specifically

state that the appellant used to ask the deceased

Bharati to bring Rs.1,50,000/- from her father and used

to beat and illtreat her with a view to compel her to

bring that amount. They state that the appellant used

to consume liquor and beat the deceased Bharati. It

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has come in their evidence that prior to about six

months of her committing suicide, the deceased Bharati

had come to the house of her father at village Jaitane

because of the illtreatment meted out to her by the

appellant in connection with demand for money. She had

lodged a report against the appellant in Police Station,

Nizampur. PHC Sonawane (PW6) states that the deceased

Bharati lodged report (Exh-44) in Police Station,

Nizampur on 28th July, 2012. The report (Exh-44) bears

the signature of the deceased Bharati.

9. It has further come in the evidence of the

informant and Trupti (PW2) that eight days prior to the

date of the incident, the appellant came to maternal

home of the deceased Bharati. At that time also, he

demanded money. He assured to treat the deceased

Bharati properly and took her with him. However, on 30 th

August, 2012 i.e. one day prior to the date of the

incident, the appellant came to village Jaitane at the

maternal home of the deceased Bharati along with her and

started demanding Rs.1,50,000/- from her father. He beat

the deceased Bharati at that time. Then the appellant

and the deceased Bharati went back to village Ner and in

the night of 31st August, 2012, she committed suicide by

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hanging herself in the house of the appellant.

10. In the cross-examination of the informant, the

learned counsel for the appellant brought to his notice

the complaint (Exh-28) filed by the deceased Bharati

against the appellant and four others under the

provisions of the Protection of Women from Domestic

Violence Act, 2005 and also the application (Exh-29)

filed by her daughters Trupti and Yogita and son Sudit

against the appellant for maintenance under Section 125

of the Code of Criminal Procedure in the Court of the

Judicial Magistrate First Class at Sakri on 14 th May,

2012. The informant admits that the said complaints bear

signatures of the deceased Bharati.

11. Relying on the evidence of the informant and

Trupti (PW2), coupled with the report (Exh-44) dated 28 th

July, 2012 and the complaint/application (Exh-28) and

Exh-29) filed by the deceased Bharati, the learned

A.P.P. claims that the above mentioned offences have

been duly established against the appellant.

12. On the other hand, the learned counsel for the

appellant submits that Trupti (PW2) was residing at the

house of the informant since the year 2009. He submits

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that she was under the control of the informant.

Therefore, she deposed against the appellant on the say

of the informant. He submits that the informant visited

the house of the appellant after receiving the message

about the hanging of the deceased Bharati in the early

hours of 31st August, 2012. He lodged Accidental Death

(A.D.) report (Exh-107) in Dhule Taluka Police Station.

In that report, he did not make any allegation against

the appellant. However, after his father came to

village Ner from Surat, the FIR (Exh-27) came to be

lodged in the Police Station. He, therefore, submits

that the FIR (Exh-27) is an outcome of concoction,

deliberations and an afterthought.

13. I am not inclined to accept this contention. It

seems that after seeing the deceased Bharati at about

4.00 a.m. to 4.30 a.m. On 31st August, 2012, the

informant simply intimated the Police Station about her

unnatural death. In the report (Exh-107), there is

specific mention that the death of Bharati is

suspicious. Thus, simply intimating about the suspicious

death of Bharati to the Police Station would not throw a

doubt on the case of the prosecution.

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14. The evidence of the informant and Trupti (PW2)

about the illtreatment meted out by the appellant to the

deceased Bharati is quite consistent. Trupti (PW2) is

none other than the daughter of the appellant. After

suffering loss of her mother, she would not have deposed

against the appellant to see him behind the bars and to

get herself deprived of his love and affection also.

Had there been no illtreatment given by him to the

deceased Bharati, Trupti (PW2) would not have thought of

deposing against him. The evidence of the informant and

Trupti (PW2) has been corroborated by the contents of

the complaint (Exh-28) and application (Exh-29) filed

against the appellant by none other than the deceased

Bharati. In these documents, there is detailed mention

about the harassment and illtreatment given by the

appellant to the deceased Bharati under the influence of

liquor with a view to compel her to bring Rs.1,50,000/-

from her father. The report (Exh-44) also runs on the

same lines. It clearly depicts as to how the appellant

was harassing and illtreating the deceased Bharati in

connection with his demand for money. The complaint

(Exh-28), application (Exh-29) and the report (Exh-44)

contain the circumstances leading to her suicidal death.

The contents of these documents would be admissible

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under sub-section (1) of Section 32 of the Indian

Evidence Act. Here, it would be necessary to reproduce

the legal position relating to the admissibility of

evidence under Section 32 (1) of the Evidence Act, from

the judgment in the case of Sharad Birdhichand Sarda Vs.

State of Maharashtra (1984) 4 SCC 116, as under:-

“(1) Section 32 is an exception to the
rule of hearsay and makes admissible the
statement of a person who dies, whether the
death is a homicide or a suicide, provided the
statement relates to the cause of death, or
exhibits circumstances leading to the death.
In this respect, as indicated above, the
Indian Evidence Act, in view of the peculiar
conditions of our society and the diverse
nature and character of our people, has
thought it necessary to widen the sphere of
Section 32 to avoid injustice.

(2) The test of proximity cannot be too
literally construed and practically reduced to
a cut-and-dried formula of universal
application so as to be confined in a strait-
jacket. Distance of time would depend or vary
with the circumstances of each case. For
instance, where death is a logical culmination
of a continuous drama long in process and is,
as it were, a finale of the story, the
statement regarding each step directly
connected with the end of the drama would be
admissible because the entire statement would
have to be read as an organic whole and not
torn from the context. Sometimes statements
relevant to or furnishing an immediate motive
may also be admissible as being a part of the
transaction of death. It is manifest that all
these statements come to light only after the
death of the deceased who speaks from death.
For instance, where the death takes place
within a very short time of the marriage or

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the distance of time is not spread over more
than 3-4 months the statement may be
admissible under Section 32.

(3) The second part of clause (1) of Section
32 is yet another exception to the rule that
in criminal law the evidence of a person who
was not being subjected to or given an
opportunity of being cross-examined by the
accused, would be valueless because the place
of cross-examination is taken by the solemnity
and sanctity of oath for the simple reason
that a person on the verge of death is not
likely to make a false statement unless there
is strong evidence to show that the statement
was secured either by prompting or tutoring.

(4) It may be important to note that Section
32 does not speak of homicide alone but
includes suicide also, hence all the
circumstances which may be relevant to prove a
case of homicide would be equally relevant to
prove a case of suicide.

(5) Where the main evidence consists of
statements and letters written by the deceased
which are directly connected with or related
to her death and which reveal a telltale
story, the said statement would clearly fall
within the four corners of Section 32 and,
therefore, admissible. The distance of time
alone in such cases would not make the
statement irrelevant.”

15. In view of the above legal position, the

contents of the complaint (Exh-28), application (Exh-29)

and the report (Exh-44) would be admissible in evidence

to establish the circumstances which led the deceased

Bharati to commit suicide.

16. The learned counsel for the appellant submits

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that even if it is accepted for a while that the

deceased Bharati was being harassed by the appellant

under the influence of liquor, that by itself would not

amount to abetting her to commit suicide. He submits

that there is no evidence to show that the appellant had

intention to drive the deceased Bharati to commit

suicide. He submits that there is no evidence to show

any actual overt act committed by the appellant as a

result of which the deceased Bharati was prompted to

commit suicide. Therefore, according to him, the

prosecution cannot be said to have established the

offence under Section 306 of the IPC. In support of his

contentions, he places reliance on the following cases:-

(i) Gangula Mohan Reddy Vs. State of A.P.

AIR 2010 SC 327

(ii) Vijay @ Munna Bharat Gurkhude Vs.
The State of Maharashtra
2016 ALL MR (Cri) 2566

(iii) Ramesh s/o Shamrao Shinde Vs.
State of Maharashtra
2016 ALL MR (Cri) 358 (Bombay)

(iv) Raviraj Ramchandra Deshpande Vs.
The State of Maharashtra Anr.
2016 ALL MR (Cri) 1420 (Bombay)

17. In the case of Gangula Mohan Reddy (supra), the

accused was alleged to have levelled allegations of

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theft of ornaments against the deceased (his servant)

and also had demanded advance paid at the time of his

employment. The deceased appeared to be hypersensitive

man. He consumed poison and committed suicide. In the

circumstances, it was held that the accused was not

liable to be convicted for the offence punishable under

Section 306 of the IPC.

18. In the case of Vijay @ Munna Bharat Gurkhude

(supra), the accused had filed an application under

Section 482 of the Code of Criminal Procedure for

quashment of the criminal proceedings instituted against

him for the offence punishable under Section 306 of the

IPC. The accused was alleged to have threatened the

deceased to kill him in case the amount of loan of Rs.

20,000/- was not returned. It was the case of the

deceased that he had repaid the total amount of

Rs.30,000/- as against hand-loan of Rs.10,000/- and

still, the accused was demanding Rs.20,000/- more. The

deceased sent a complaint dated 15th February, 2013

against the accused to the Police Station and committed

suicide on 19th February, 2013. There was no evidence to

show that on or prior to the date of the incident of

suicide, the accused committed any overt act against the

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deceased. In the circumstances, it was held that in

case of abetment of suicide, there must be proof of

direct or indirect acts of incitement to commission of

suicide. Merely on the allegations of harassment

without there being any positive action proximate to the

time of occurrence on the part of accused which led or

compelled a person to commit suicide, the conviction

under Section 306 of the IPC would not be sustainable.

19. In the case of Ramesh s/o Shamrao Shinde

(supra), there was no evidence that on the date of

commission of suicide, or somewhere nearby that, the

accused had done such act by which the deceased was

compelled to commit suicide. Therefore, it was held that

a live link for commission of suicide in order to prove

offence under Section 306 being absent, the accused was

liable to be acquitted.

20. In the case of Raviraj Ramchandra Deshpande

(supra), the deceased had named many persons, including

the accused, alleging that he was cheated by them. It

was the defence of the accused that the deceased

committed suicide because he was heavily indebted due to

huge losses suffered by him in his business. There was

no evidence to show that the accused committed any

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willful act/omission or had intentionally aided or

instigated the deceased in committing suicide. In the

circumstances, the accused was held to be not guilty

under Section 306 of the IPC.

21. The facts of the present case are totally

different and distinguishable from the facts of the

above mentioned cases. In the present case, there is

specific oral evidence of the informant and the daughter

of the appellant himself that one day prior to the

incident, he had beaten the deceased Bharati. The

evidence of these witnesses in respect of the earlier

harassment and illtreatment given by the appellant to

the deceased Bharati in connection with his demand for

money has been fully supported by the previous

statements of the deceased Bharati herself recorded by

her in the complaint (Exh-28), application (Exh-29) and

the report (Exh-44).

22. Undisputedly, the deceased Bharati was in the

company of the appellant in the night of the incident.

Since the marriage of the appellant and the deceased

Bharati had taken place prior to about fourteen years of

the date of the incident, the presumption under Section

113A of the Evidence Act was not applicable to the facts

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of the present case. However, the provisions of Section

106 of the Evidence Act would be very much applicable

thereto. The appellant only was the best person to

explain the circumstances under which the deceased

Bharati committed suicide when she was in his company in

the night of the incident. He was having special

knowledge about that fact. Though he was not supposed to

prove his defence beyond doubt, he was under an

obligation to explain the probable circumstances leading

to her death. He did not examine himself as a witness.

Even in his statement under Section 313 of the Code of

Criminal Procedure, he did not give any explanation as

to what made the deceased Bharati to commit suicide.

23. The defence of the appellant that the father of

the deceased Bharati wanted to grab the house property

standing in the name of the deceased Bharati, he was

compelling her to record that house in his name and

therefore, she committed suicide, ex facie is not

natural, probable and acceptable. The defence witnesses

examined by him viz. Sanjay Deore (DW1) (Exh-78) and

Sunil Desale (DW2) (Exh-91), who were serving as Gram

Sevaks of villages Ner and Bhadane, respectively, would

not probabalize the defence of the appellant. Sanjay

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Deore (DW1) states that after the demise of Bharati, her

father filed an application for recording the names of

the daughters and son of the deceased Bharati in the

village panchayat record in respect of house No. 2698.

Accordingly, their names were recorded. When the said

house was standing in the name of the deceased Bharati,

her daughters and son were bound to be substituted for

her in the village panchayat record in respect of the

said house. By no stretch of imagination, it can be

said that by recording the names of the daughters and

son of the deceased Bharati in respect of the said

house, her father was going to reap any benefit for

himself. Generally speaking, no father would expect his

daughter to transfer any property belonging to her in

his favour and would compel her to commit suicide for

that purpose. Thus, the defence suggested in the cross-

examination of the informant is totally baseless and

unbelievable.

24. It has come in the evidence of PHC Sonawane

(PW6) that after receiving the report (Exh-44), he

called the deceased Bharati and the appellant.

Accordingly, they appeared before him on 27th August,

2012. By that time, the deceased Bharati had started

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residing with the appellant. This witness recorded

statement of the appellant, which is at Exh-45. After

understanding the contents of the report (Exh-44), the

appellant stated before this witness that the deceased

Bharati had started residing with him pursuant to

amicable settlement. He assured that he would not

harass her thenceforth. The contents of the statement

(Exh-45) of the appellant show that he had not

challenged the allegations made by the deceased Bharati

against him in the report (Exh-44) and further had

assured to treat her properly.

25. The prosecution examined Varsha Borse (PW3)

(Exh-31), who happened to be the Manager of `Virangana

Gramin Mahila Swayamsiddha Sangh, Nizampur’. The said

Sangh was running a Bachat Gat and a Women Counselling

Centre. She deposes that the deceased Bharati

approached her on 27th July, 2011 with a complaint

against the appellant. After registering her complaint,

she asked the deceased Bharati to come back on 14th

September, 2011. She issued notice to the appellant to

appear on that day. However, the appellant did not

appear before her on 14th September, 2011. Then the next

date was given as 14th October, 2011, but on that day,

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neither the deceased Bharati nor the appellant appeared.

She produced complaint (Exh-32) that was given by the

deceased Bharati. This complaint also contains the

allegations about harassment and illtreatment given by

the appellant to the deceased Bharati. This is an

additional piece of evidence to show as to how the

appellant was illtreating the deceased Bharati.

26. From the evidence of the informant and Trupti

(PW2) as well as the contents of the complaint (Exh-

28), application (Exh-29) and the report (Exh-44), it is

clear that the appellant was harassing and illtreating

the deceased Bharati under the influence of liquor with

a view to compel her to fulfill the demand for money.

Had there been good treatment to the deceased Bharati at

the hands of the appellant, she would not have thought

of ending her life at the cost of love and affection of

her two daughters and one son. It is clear that the

appellant created such circumstances which left no

option before the deceased Bharati but to commit

suicide. This amounts to cruelty as explained under

Section 498-A of the IPC. Because of such cruelty, the

appellant drove the deceased Bharati to commit suicide.

There is positive and dependable evidence of the

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informant and Trupti (PW2) that the appellant frequently

beat the deceased Bharati. In the circumstances, the

case of the prosecution that the appellant committed the

offences punishable under Section 306 and 498-A of the

IPC, will have to be held as proved beyond reasonable

doubt.

27. So far as the offences punishable under

Sections 504 and 506 of the IPC are concerned, there is

no specific and clinching evidence about the abusive

words allegedly used by the appellant against the

deceased Bharati. Likewise, there is no sufficient and

dependable evidence on record to establish that the

appellant criminally intimidated the deceased Bharati

with intent to cause alarm to her. The evidence on

record in respect of these two offences is insufficient

and scanty. The prosecution cannot be said to have

established guilt of the appellant for the said

offences. The findings of the learned Trial Judge

holding the appellant guilty of the offences punishable

under Sections 504 and 506 of the IPC, being not

supported by sufficient, cogent and dependable evidence,

cannot be upheld. So far as the findings in respect of

the offences punishable under Sections 306 and 498-A of

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the IPC are concerned, I fully subscribe thereto and

hold that the prosecution established beyond reasonable

doubt that the appellant committed the offences

punishable under Sections 306 and 498-A of the IPC.

28. Relying on the judgment in the case of Ghan

Shyam Singh Vs. State of U.P. 2016 ALL MR (Cri) 4057

(S.C.), the learned counsel for the appellant submits

that the appellant has undergone imprisonment for a

period of two years and therefore, he may be sentenced

for the period of imprisonment which he has already

undergone. I am not inclined to accept this contention

considering the facts that because of his misdeeds, the

appellant abetted the deceased Bharati to commit

suicide, he deprived her daughters and son of her love

and affection forever, the daughters and son of the

appellant are residing at the mercy of their maternal

uncle and grandfather and considering the serious

consequences of the acts of the appellant, he cannot be

imposed sentence of imprisonment of about two years only

which he has already undergone. He does not deserve for

more leniency than that has been shown to him by the

Trial Court.

29. In the above circumstances, the appeal is

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liable to be allowed partly. The conviction and

sentence recorded against the appellant for the offences

punishable under Sections 306 and 498-A of the IPC are

liable to be confirmed. The conviction and sentence

recorded against the appellant for the offences

punishable under Sections 504 and 506 of the IPC are

liable to be set aside. The direction given by the

learned Trial Judge for running of the substantive

sentences for the offences punishable under Sections 306

and 498-A of the IPC concurrently, is liable to be

maintained as it is. The appellant would be entitled to

get set off vide Section 428 of the Code of Criminal

Procedure. In the result, I pass the following order:-

O R D E R

(i) The Criminal Appeal is partly allowed.

(ii) The impugned judgment and order, convicting and

sentencing the appellant for the offences punishable

under Sections 306 and 498-A of the Indian Penal Code,

are maintained as they are.

(iii) The impugned judgment and order, convicting and

sentencing the appellant for the offences punishable

under Sections 504 and 506 of the Indian Penal Code, are

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quashed and set aside.

(iv) The appellant is acquitted of the offences

punishable under Sections 504 and 506 of the Indian

Penal Code.

(v) The substantive sentences of imprisonment,

passed against the appellant for the offences punishable

under Sections 306 and 498-A of the Indian Penal Code,

shall run concurrently.

(vi) The appellant shall be given benefit of set off

vide Section 428 of the Code of Criminal Procedure in

respect of the period of detention he has already

undergone.

(vii) The appeal stands disposed of accordingly.

Sd/-

[SANGITRAO S. PATIL]
JUDGE

npj/CRIAPL825-2015

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