Sudhir S/O Vishvasrao Malasne vs State Of Maharashtra on 4 October, 2017

CRI.APPEAL.46.03
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.

CRIMINAL APPEAL NO. 46/2003

Sudhir s/o Vishvasrao Malasne
Aged about 35 years
R/o Shiv Nagar, Amravati
Tq. Dist. Amravati. .. APPELLANT

versus

The State of Maharashtra
Through Police Station Officer,
Gadgenagar, Amravati
Dist. Amravati. .. RESPONDENT

……………………………………………………………………………………………………………………………..
None for the appellant
Mr. S.B.Bissa, Additional Public Prosecutor for respondent -State
………………………………………………………………………………………………………………………………

CORAM: MRS.SWAPNA JOSHI, J.

DATE OF RESERVING:26.09.2017
DATE OF PROUNCEMENT:04.10.2017

ORAL JUDGMENT:

1. Being aggrieved by the judgment and order dated 28.08.2002 in

Sessions Case No.865/1997 delivered by the learned First Ad-hoc Assistant Sessions

Judge, Amravati, convicting the appellant (hereinafter referred to as ‘the accused’) for

the offence punishable under section 306 of the Indian Penal Code and sentencing him

to suffer R.I. for seven years and to pay a fine of Rs. 1000/-, in default, to suffer S.I. for

three months; and further convicting him u/s 498A of IPC and sentencing him to suffer

R.I. for three years and to pay a fine of Rs. 1000/- , in default, to suffer S.I. for three

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months, the present Appeal is filed.

2. The Advocate for the appellant remained absent. I have heard Mr.

S.B.Bissa, learned Additional Public Prosecutor for the Respondent-State. With his

assistance, I have gone through the record and proceedings of the case, minutely.

3. Brief facts giving rise to the instant Appeal may be summarized as

under:-

Deceased-Pratibha was married with the accused-Sudhir on 8.5.1990.

After marriage, she started residing in the joint family of accused at village Kapustalni.

The prosecutrix had passed B.A.first year and had also obtained Diploma in tailoring.

The accused and his father were also doing tailoring work. It is the case of the

prosecution that for about six months after the marriage, Pratibha was subjected to ill-

treatment at the hands of the accused. The accused used to insist her to bring money

from her father and used to beat her. Whenever Pratibha used to visit her parents’

place, she used to complain her parents against the accused. Pratibha and the

accused shifted to Murtizapur in the year 1991. Her father-in-law purchased a tailoring

shop at Murtizapur. Pratibha along with the accused stayed at Murtizapur for about

two years. Her parents-in-law came to that place and started residing with them at

Murtizapur. The ill-treatment continued at the hands of the accused with regard to the

demand of money and beating her. The accused persons sold the articles of tailoring

shop in the year 1993 and returned back to village Kapustalni.

4. It is the case of the prosecution that in the year 1993, Pratibha wrote

letters to her father complaining against ill-treatment by the accused. Therefore, PW1

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Laxman (PW1), father of Pratibha, went to her house at Kapustalni, however,

accused did not send Pratibha with him. Therefore, PW 1-Laxman filed Miscellaneous

Criminal Application for custody of Pratibha and his daughter under Section 97 of the

Cr.P.C. before the Court of learned JMFC Mutizapur, on 6.8.1993, which was allowed

on 13.8.1993.

5. Thereafter Pratibha started residing at her parents’ house at Rasulpur

till 1996. During this period, the accused was visiting the house of his father-in-law

PW1-Laxman and he requested him to send back Pratibha with him. The accused

assured that he would not ill-treat Pratibha and gave his undertaking to that effect

on 21.3.1996 on a stamp paper. The accused and Pratibha then started to reside at

Kapustalni. It is the case of the prosecution that Pratibha was again subjected to ill-

treatment and was threatened to kill. The accused insisted her to sell tailoring shop at

Murtizapur. Thereafter the accused along with Pratibha resided at Amravati.

6. It is the case of the prosecution that 10 to 12 days prior to death of

Pratibha, she had been to her parents’ house at Rasulpur to take back her daughter

Mayuri, who was staying and studying there. At that time, Pratibha informed about the

ill-treatment to her parents. Pratibha then went to reside with the accused at

Amravati.The accused was doing labour work at that place.

7. On 18.6.1997, accused-Sudhir returned back home from his work at

about 11.30 pm. He found that the door of the house was latched from outside and

Pratibha was not found in the house. The accused thought that as there were some

bickering in the morning between him and Pratibha on the count of tiffin, she might

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have gone to the house of relative. The accused searched Pratibha at her relatives

place and returned back home, on next day i.e. 19.6.1997 8.00 am. The accused saw

footwear and palloo of saree of Pratibha floating in the well which was situated in

front of his house. The accused came to know that it was the dead body of his wife

Pratibha. The accused rushed to Gadgenagar Police station and informed about the

death of Pratibha to the police. On the basis of said report, police registered Marg

Khabri No.18/1997. The police visited the place of the incident at Shivajinagar, Amravati

and recorded the spot panchnama (Exh.43). The police also recorded the inquest

panchnama of the dead body (Exh.17). The dead body of Pratibha was sent for

autopsy . The cause of death of Pratibha was detected as death due to asphyxia,

as a result of drowning. PM Report is at Exh.20. The father of Pratibha came to know

about the said incident. He lodged the complaint at Police Station Gadgenagar during

the same night. On the basis of the said report, the police registered the offence vide

Crime No. 223/1997 against the accused and his relatives. The police recorded the

statements of the witnesses, conducted the investigation and after completion of the

investigation submitted the charge sheet in the court of learned JMFC. The learned

Trial Judge framed the charge and on assessing the evidence and hearing both sides,

convicted the accused as aforesaid. Hence this Appeal.

8. In order to bring home the guilt of the accused, the prosecution

examined as many as nine witnesses. The relevant witnesses are PW1-Laxman Sable

father of the deceased, PW2-Kusumbai, mother of the deceased, PW3-Sangita Kolhe,

sister of the deceased, and PW 5-Gajanan Ingle, who produced the letters of the

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deceased.

9. In order to prove that deceased Pratibha died a suicidal death, the

prosecution relied upon the spot panchnama (Exh. 63) which shows that the peripheral

wall of the well was of height of about 2 ½ feet from the ground level. There is a iron

pulley measuring about 3 feet is fitted. The peripheral wall of the said well collapsed

from one side. A pair of footwear was also found floating in the well with the dead

body. No rope, bucket or any container for storing water was found near the well.

From the above said circumstances it appears that Pratibha died a suicidal death. If at

all she would have gone near the well to fetch water then a container to store water

would have been found near the well. The bucket attached to the rope was also not

found above well. In these circumstances it appears that Pratibha died a suicidal

death by jumping in the well and it was not an accidental death.

10. On the basis of harassment and ill-treatment at the hands of the

accused, the prosecution relied upon the testimony of PW1-Laxman, who is the father

of the deceased. PW1 deposed that Pratibha got married with the accused on

8.5.1990. After marriage,she started residing with the husband and in-laws at

Kapustalni. For about six months after the marriage, Pratibha was treated well,

thereafter she was subjected to beating and harassment and was insisted by the

accused to bring money. Whenever Pratibha used to visit her parental house she

used to disclose the said fact to him and her mother. In the year 1991 Pratibha and

her husband came to reside at Murtizapur. Pratibha was knowing tailoring, therefore,

PW1 purchased the shop of tailoring for Pratibha, Pratibha and her husband resided

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there for about two years thereafter the parents in law of Pratibha came to reside with

Pratibha at Murtizapur. The accused ill-treated Pratibha by insisting her to bring money.

The accused sold all the articles of tailoring shop and again went to reside at village

Kapustalni. Pratibha was insisted to bring money from her parents and on this count,

she was beaten by the accused. Pratibha sent three letters to PW1 dated 7.7.1993,

12.7.1993 and 30.7.1993. PW1 went to Kapustalni to bring back Pratibha, however

the accused did not allow. PW1 therefore filed an application in Murtizapur for the

custody of his daughter. On 13.8.1993 he received the custody of Puratibha along

with her daughter Mayuri. Pratibha who resided at the house of PW1 till 1996

thereafter her accused started visiting his house and gave an undertaking that he

would not ill-treat Pratibha and PW1 consented to send Pratibha with the accused

at Shivnagar, Amravati. PW1-Laxman deposed that thereafter Pratibha came to his

house on 2/3 occasions and informed him that the accused continued to beat her on

the ground of bringing cash amount. On 18.6.1997 PW1-Laxman came to know that

Pratibha died at Amavati by drowning into the well. On the same day, PW1 lodged

complaint against the accused (Exh.26).

11. The testimony of PW1 is not at all shattered in the cross-examination

and is in consonance with the contents of the complaint Exh.26.

12. PW2, Kusumbai, mother of the deceased, supported the testimony of

PW1. According to PW2, after the marriage for about six months the relations between

accused and Pratibha were good. However after six months Pratibha was ill-treated by

the accused and insisted to bring money and on that count, he used to beat and

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harass Pratibha. Whenever Pratibha used to visit her parental house, she used to

complain against the accused. PW2 stated that her husband went to Kapustalni to

bring her back. However the accused did not send Pratibha with PW1. She deposed

that, her husband (PW1) filed a case in the Court of JMFC at Murtizapur. Thereafter by

an order of the court Pratibha’s custody was given to her father. Thereafter Pratibha

started residing with them at Rasulpur. After three years, the accused came to their

house and took back Pratibha with him, on an undertaking that he will give good

treatment to Pratibha. Then, Pratibha started residing with her husband at Amravati.

Thereafter Pratibha told them that the accused ill-treated her and insisting her to bring

money from her parents. PW2 stated that thereafter she came to know about the death

of Pratibha.

13. The testimony of PW2 corroborates with the testimony of PW 2 and is

not shaken in her cross-examination at all.

14. PW3-Sangita Kolhe, who is the younger sister of the Pratibha, stated

that whenever Pratibha used to visit their village, she used to tell about the troubles

from the accused. PW3 stated that 10/12 days prior to the incident, Pratibha visited

their house and she found Pratibha was dejected. On enquiry with Pratibha, firstly

she did not tell anything, however on cajoling, she asked her to accompany her for

answering nature’s call and at that time Pratibha told PW3 that the accused used to

ill-treat and beat her. She also informed not to disclose the said facts to her parents.

Thereafter Pratibha died.

15. On careful scrutiny of testimony of PW 1-Laxman, PW2-Kusumbai and

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PW3-Sangita and the letters written by Pratibha to her parents, show that Pratibha

was ill-treated by the accused. She was subjected to beating and harassment for

bringing money from her parents. On going through the letters sent by Pratibha to her

parents (Exhs. 29,30,31 respectively), it is amply clear that the accused used to beat

Pratibha for bringing money from her parents house.

16. Thus the prosecution has proved that accused used to ill-treat Pratibha

by beating her and insisting her to bring money from her parents house.

17. So far as the offence of abetment of suicide is concerned, there is no

direct evidence on record to show that the accused instigated the deceased or abetted

her to commit suicide. There is absolutely no evidence on record to show as to what

exactly happened between husband and wife prior to the incident.

18. It is the case of the prosecution that the accused himself lodged the

complaint (Exh.42) about the suicidal death of his wife. In this regard it may be

mentioned here that the said report is hit by section 25 of the Evidence Act, hence is of

no use to the prosecution case, as the complaint discloses that there were altercations

between the accused and his wife over the issue of tiffin and therefore the accused

suspected that in a fit of anger she might have gone to her relative’s place. He

searched throughout the night, however, she was not found. On the next day, her dead

body was found in the well. Thus, apart from the complaint of the accused which is

not admissible u/s 25 of the Evidence Act, nothing is on record to show that there was

any dispute between the accused and Pratibha and the accused instigated her to

commit suicide.

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19. A useful reference can be made of the case Sanju alias Sanjay Singh

Sengar v State of M.P. reported in (2002) 5 SCC 371 wherein a quarrel took place

between the appellant and the deceased. The appellant said to the deceased ‘to go

and die” and two days thereafter the deceased committed suicide. She made a suicide

note. The Hon’ble apex Court observed that “to go and die” itself does not constitute

the ingredient of instigation. The word “instigate” denotes incitement or urging to do

some drastic or inadvisable action or to stimulate or incite. It is further held that the

presence of mens rea is the necessary concomitant for instigation.

20. In (2017) 1 SCC 433 in case of Gurcharan Singh v. State of Punjab, the

Hon’ble apex Court has observed in para 21 as under :-

“21. It is thus manifest that the offence punishable is one of
abetment of the commission of suicide by any person, predicating
existence of a live link or nexus between the two, abetment being the
propelling causative factor. The basic ingredients of this provision are
suicidal death and the abetment thereof. To constitute abetment, the
intention and involvement of the accused to aid or instigate the
commission of suicide is imperative. Any severance or absence of any
of these constituents would militate against this indictment.
Remoteness of the culpable acts or omissions rooted in the intention of
the accused to actualise the suicide would fall short as well of the
offence of abetment essential to attract the punitive mandate of
Section 306 IPC. Contiguity, continuity, culpability and complicity of the
indictable acts or omission are the concomitant indices of abetment.
Section 306 IPC, thus criminalises the sustained incitement for
suicide.”

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21. The Hon’ble apex Court in the case of S. S. Chheena vs. Vijay Kumar

Mahajan and another, reported at 2010 Mh.L.J. Online (Cri.) (S.C.) 4 (2010) 12 SCC

190, in para 25 observed that, the abetment involves 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 the legislature and the ratio of the cases decided by this Court

is clear that in order to convict a person under section 306 of the Indian penal Code

there has to be a clear mens rea to commit the offence. It also requires an overt 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.

22. In the instant case, it appears that Pratibha committed suicide on a trifle

issue. Thus, the learned trial Judge has not considered the above-said aspect and

convicted the accused u/s 498A as well as 306 of the IPC. It is needless to mention

that since Pratibha did not commit suicide within a period of seven years from her

marriage, the benefit of Section 113 of the IPC is not available to the prosecution

case.

23. Considering the age of the accused and that he had no past

antecedents, I am of the view that his sentence needs to be altered from 3 years to 2

years for offence punishable u/s 498A of the IPC, whereas he needs to be acquitted for

offence punishable u/s 306 IPC. Hence the order :-

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ORDER

i) Criminal Appeal No.46/2003 is partly allowed.

ii) The judgment and order dated 28.08.2002 in Sessions Case No.865/1997

delivered by the learned First Ad-hoc Assistant Sessions Judge, Amravati, convicting

the appellant for the offence punishable under section 306 of the Indian Penal Code, is

hereby set aside.

iii) The conviction of the accused for offence punishable under section 498A of the

IPC is confirmed, however, the sentence is altered to two years from three years, with

a fine of Rs. 1000/-, in default, to suffer S.I. for three months, is maintained.

iv) The appellant/accused to surrender to his bail bonds within a period of four

weeks, for undergoing the remaining sentence.

JUDGE

sahare

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