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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