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Shrikanth Appaso Jadhav vs The State Of Maharashtra on 17 February, 2018

1 APEAL 452-97 Judgment.doc-902

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.452 OF 1997

1. Shrikant Appaso Jadhav. ]
Age – 26 years,
2. Smt. Vimal Appaso Jadhav, ]
Age – 45, ]
Both are residents of Ganesh Nagar, ]
Ichalkaranji, Dist. Kolhapur. ] … Appellants

Versus

State of Maharashtra. ] … Respondent

Mr. Prashant Badole for Appellants.
Ms. R. M. Gadhavi, APP for State.

CORAM :- SARANG V. KOTWAL, J.
DATE :- 17 FEBRUARY, 2018

JUDGMENT :-

1. This is an Appeal preferred by the Appellants who were
the original accused nos.1 and 2 against the Judgment and Order
dated 07/08/1997 passed by the 4 th Additional Sessions Judge,
Kolhapur in Sessions Case No.9 of 1997 whereby both of them were
convicted under Section 306 read with 34 of the IPC and were
sentenced to suffer R.I. for five years and to pay fine of Rs.1,000/- and
in default of payment of fine, to suffer further R.I. for one year. By
the same Judgment, both the Appellants were also found guilty under
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Section 498A read with 34 of the IPC and were sentenced to suffer
R.I. for two years each and to pay fine of Rs.5,000/- each and in
default to suffer R.I. for one year. Both of them, however, were
acquitted from the charges for commission of the offence punishable
under Section 304-B read with 34 of the IPC. The State has not
preferred any appeal against the acquittal under Section 304-A read
with 34 of the IPC.

2. The prosecution case pertains to the death of Ujwala who
was the wife of the Appellant No.1 and the daughter-in-law of the
Appellant No.2. The Appellant No.2 is the mother of the Appellant
No.1. According to the prosecution case, the Appellant No.1 got
married with the deceased in the year 1991. Initially, both of them
were residing separately and in the year 1996, they along their two
young children, started residing with the Appellant No.2 and the
brother of the Appellant No.1. The incident occurred on 15/07/1996
when Ujwala committed suicide in their house by pouring kerosene on
herself and setting herself on fire. At that time, no one was in the
house. A neighbour came and extinguished the fire. The Appellant
No.1 was informed by others and he gave his information to the police
station which was registered as A.D.No.47 of 1996 at Ichalkaranji
Police Station. The father of the deceased Ujwala was informed who
reached Ichalkaranji late in the evening. In the night, last rites were
performed and on the next day at about 5.45 p.m. the F.I.R. was
lodged vide C.R.No.61 of 1996 at Ichalkaranji Police Station under
Sections 498A, 306 read with 34 of the IPC. Before lodging of the

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F.I.R., the police had already conducted the inquest panchanama and
the spot panchanama. The post-mortem examination was also
conducted which showed 100% burn injuries and the cause of death
was given as death due to 100% burn injuries. Though the viscera
was preserved, subsequently the analysis showed that there was no
poison detected in the viscera and the cause of death was 100% burn
injuries which Ujwala had suffered. After registration of the FIR,
statements of witnesses were recorded. The usual investigation was
conducted. The muddemal articles were sent for chemical analysis.
The accused were arrested and after completion of investigation, the
charge-sheet was filed and he case was committed to the Court of
Sessions at Kolhapur.

3. The learned Trial Judge framed the charges under
Sections 498A read with 34, 304-B read 34 and 306 read with 34 of
the IPC. Both the Appellants denied the charges and claimed to be
tried.

4. I have heard Mr. Prashant Badole, learned Counsel for the
Appellants and Ms. R. M. Gadhavi, learned APP for State and with
their assistance, I have perused the evidence and gone through the
record and proceedings.

5. In support of its case, the prosecution examined 10
witnesses out of which PW 1 Ishwar Konte was the father of the
deceased, PW 2 Sidram Konte was PW 1’s brother and uncle of the

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deceased, PW 6 Vikas Gaikwad was neighbour of PW 2. These three
witnesses have deposed about the demand of Rs.3,000/- by the
accused and the ill-treatment meted out to Ujwala on that count.

6. PW 3 Sidram Konte was examined as a panch present
when the spot panchanama was carried out in connection with
A.D.R.No.47 of 1996. The spot panchanama shows that the incident
had occurred inside the house of the Appellants. There were two
rooms in the house. In one of the rooms Ujwala had poured kerosene
on herself and set herself on fire. In the said room, police found one
plastic can having capacity of 10 litres and containing 5 to 6 litres of
kerosene. There was a matchbox nearby. These articles, along with
some burnt clothes and the kerosene spread on the floor, were seized
for the purpose of analysis. This evidence, along with the evidence of
PW 5 Dr. Ramchandra Phadnis who has deposed that the deceased
had suffered 100% burn injuries and that was the cause of death;
shows that the deceased has committed suicide by pouring kerosene
on herself and setting herself on fire by using matchstick. There is no
serious challenge to this evidence by the Appellants. PW 4 Raghunath
Mete was the neighbour of the Appellants and the deceased, who had
rushed to their house on hearing the shouts and found that Ujwala
was burning. He threw water on her to extinguish the fire. Even the
accidental death report lodged by the Appellant No.1 which is on
record at Exh.22/C shows that he was informed by others that the
deceased had suffered burn injuries and his own case in the said
A.D.R. is that the deceased had poured kerosene on herself and had

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committed suicide. All these factors unerringly point to the fact that
the deceased Ujwala had committed suicide.

7. The next crucial question remains to be decided is, as to
whether the Appellants can be said to be responsible for the incident
and the commission of suicide by Ujwala. Though the charges were
framed under Section 304-B read with 34 of the IPC, the Trial Court
had acquitted the Appellants from those charges and there is no
appeal preferred by the State against such acquittal. In any case, the
reasoning of the Trial Court in that behalf is correct because even as
per the prosecution case, though the demand of Rs.3,000/- was made,
it was not in connection with the dowry as defined under the Dowry
Prohibition Act, 1961.

8. To prove that the Appellants were demanding Rs.3,000/-
from the deceased and since the said amount was not paid, they were
ill-treating the deceased; the prosecution has examined 3 witnesses.
The first is PW 1 Ishwar Konte who was the father of the deceased,
the second witness is Sidram Konte who is the brother of PW 1 and
the third witness is PW 6 Vikas Gaikwad who was the neighbour of
the PW 2.

9. PW 1 Ishwar Konte has deposed that the marriage
between his daughter deceased Ujwala and the Appellant No.1 had
taken place in the year 1991 and he had borne the expenses for the
marriage. According to him, initially Ujwala and the Appellant No.1
stayed separately and only a few months prior to the incident, they

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started residing with the Appellant No.2. It is his specific case that the
Appellant No.1 treated Ujwala nicely during the period when they had
stayed together. He has further deposed that 2.1/2 months prior to
the incident dated 15/07/1996, the Appellant No.1 and Ujwala had
been to his house asking for Rs.3,000/- to purchase a plot. He has
deposed that after the Appellant No.1 had left, he had told Ujwala
that he was willing to pay the said amount only if the plot was to be
purchased in the name of the Appellant No.1 and not in the name of
the Appellant No.2. It is his further case that after about 15 days,
Ujwala again came to him and informed him that she was being ill-
treated and harassed as the said amount of Rs.3,000/- was not paid.
This time PW 1 advised Ujwala to go to PW 2 Sidram and ask for the
said amount. PW 1 has further deposed that again after 15 days
Ujwala came to him and repeated her grievance. PW 1 has further
deposed that thereafter he went to his brother and requested him to
tell the accused that PW 1 was not in a position to pay the money.
Thereafter on 15/07/1996, he was informed about the incident. He
went to Ichalkaranji and as mentioned before, after the last rites were
performed, on the next day at about 5.45 p.m., lodged his F.I.R. In
his examination-in-chief itself, he has admitted that the ornaments
which were given to Ujwala were still on her person at the time of her
death. He has also admitted that it was his opinion that Ujwala had
committed suicide because she was ill-treated and harassed by the
Appellants. If his evidence is read in the light of the F.I.R. which he
has lodged, it can be seen that he mentions three occasions in his
deposition when the deceased had visited him in connection with the

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demand of Rs.3,000/-. The first of these visits was important because
that was the first time when the amount of Rs.3,000/- was demanded.
At that time, according to his F.I.R., she had alone visited him. There
is no mention that she was accompanied by the Appellant No.1. So,
the basic premise of allegation regarding the demand of Rs.3,000/- is
not satisfactorily established by the prosecution. Thereafter, the F.I.R.
does not make any reference to her subsequent two visits and at
which time she had informed the PW 1 that she was being harassed
and ill-treated by the Appellants as the demand of Rs.3,000/- was not
fulfilled. Thus, the overall analysis of the evidence of this witness
shows that his evidence is not reliable to hold firstly, that there was a
demand of Rs.3,000/- and secondly, there was a ill-treatment or
harassment caused to Ujwala because of non-fulfillment of the same.

10. The second witness i.e. PW 2 Sidram Konte is the uncle of
the deceased Ujwala and brother of PW 1. According to him, Ujwala
had been to his house and had informed him that the Appellants were
demanding Rs.3,000/- for purchasing a plot and since the money was
not paid, they were beating her. He has further deposed that 15 days
prior to her death, Ujwala had come to his house and had informed
him that she was being ill-treated and harassed by the Appellants as
the said amount of Rs.3,000/- was not paid. According to him, he
tried to tell the Appellants not to ill-treat her. He has further deposed
that on the day of the incident, he got the information about the
incident. His brother PW 1 arrived at about 8.00 to 8.30 p.m. In his
cross-examination, he has denied that he wanted his own daughter to

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get married with the Appellant No.1 and the Appellant No.2 was
opposed to such alliance and therefore he held a grudge against the
Appellants. He has admitted that before lodging the F.I.R., they had
met office bearers of ‘Mahila Dakshata Committee’.

11. Through the evidence of PW 10, API Suryavanshi, the
defence has brought out omissions from this witness’s evidence. It
was brought on record that this witness PW 2 Sidram Konte had not
narrated in his statement before the police that Ujwala had visited him
15 days prior to her death. This witness also conceded that his police
statement does not mention that Ujwala had demanded money from
him to pay the accused. The prosecution has tried to corroborate
evidence of this witness by the evidence of PW 6 Vikas Gaikwad who
was a neighbour of PW 2. According to PW 6 Vikas Gaikwad, one
month prior to the incident, Ujwala had approached the PW 2 in his
house and had informed about the demand of Rs.3,000/- and the ill-
treatment meted out to her on non-fulfillment of the same. According
to him, he was present in the house when Ujwala had disclosed this
fact to PW 2. PW 2 Sidram himself had not mentioned about the
presence of this witness when Ujwala had told PW 2 about her
grievance. Moreover, the contradictions in his evidence which are
brought on record vide Exh.32 and Exh.33 show that he had made
contrary statements before the police and the date of visit of Ujwala to
the house of PW 2 had varied from two months to three months and
thus his evidence was not clear in respect of as to when Ujwala had
actually met PW 2 and had put forth her grievance. Thus, reading the

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evidence of PW 2 and PW 6, it appears that their evidence is not
cogent. In my opinion, the evidence of PW 2 and PW 6 is not
satisfactory and the prosecution case is not proved through their
evidence. It is significant to note that PW 2 was residing just 4 to 5
kms away from the house of the deceased and therefore, if the ill-
treatment or the instances of ill-treatment were so severe, she could
have easily reached him on every occasion to put forth her grievance
before him. There is no evidence to suggest that the Appellants had
stopped Ujwala from visiting him. Thus, the prosecution has not
proved that Ujwala was being ill-treated or was being harassed by the
Appellants on account of non-payment of Rs.3,000/-.

12. The Appellants, through their Written Statement u/s 313
of Cr.P.C., have produced Sale Deed dated 25/04/1996 which appears
to be the root cause of the entire controversy and the incident. It can
be seen tht the said document was already executed on 25/04/1996
itself by making payment and there was no occasion to make the
demand for payment for the purpose of purchasing the said plot. The
prosecution, on its own, has not brought any evidence on record in
respect of the said transaction or to show that the Appellants were short
of money or were in dire need of money for purchasing of such plot.

13. There is no doubt that Ujwala had committed suicide but
it is difficult to connect her suicide with the alleged ill-treatment given
to her on account of non-payment of Rs.3,000/-.

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14. Mr. Badole, learned Counsel for the Appellants, has relied
on the Judgment of the Hon’ble Supreme Court in the case of Kishori
Lal Vs. State of M.P.1 In the said Judgment, the Hon’ble Supreme
Court has considered the definition of abetment as given under
Section 107 of the IPC and has laid down the requirements for
proving the case of abetment of suicide. The Hon’ble Supreme Court,
in paragraph nos.6 and 7, has held thus :

6. Section 107 IPC defines abetment of a thing. The
offence of abetment is a separate and distinct offence
provided in IPC. A person, abets the doing of a thing when
(1) he instigates any person to do that thing; or (2)
engages with one or more other persons in any conspiracy
for the doing of that thing; or (3) intentionally aids, by
act or illegal omission, the doing of that thing. These
things are essential to complete abetment as a crime. The
word “instigate” literally means to provoke, incite, urge on
or bring about by persuasion to do any thing. The
abetment may be by instigation, conspiracy or intentional
aid, as provided in the three clauses of Section 107.
Section 109 provides that if the act abetted is committed
in consequence of abetment and there is no provision for
the punishment of such abetment, then the offender is to
be punished with the punishment provided for the original
offence. ‘Abetted’ in Section 109 means the specific offence
abetted. Therefore, the offence for the abetment of which a
person is charged with the abetment is normally linked
with the proved offence.

7. In cases of alleged abetment of suicide there must be
proof of direct or indirect acts of incitement to the
commission of suicide. The mere fact that the husband
treated the deceased-wife with cruelty is not enough. [See
Mahinder Singh v. State of M.P.2 1995 AIR SCW 4570].

1 (2007) 10 Supreme Court Cases 797
2 1995 Supp (3) SCC 731 : 1995 SCC (Cri) 1157 : 1995 AIR SCW 4570

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Merely on the allegation of harassment conviction in
terms of Section 306 IPC is not sustainable. There is
ample evidence on record that the deceased was disturbed
because she had not given birth to any child. PWs. 8, 10,
and 11 have categorically stated that the deceased was
disappointed due to the said fact and her failure to beget a
child and she was upset due to this.”

15. Mr. Badole also relied on the Judgment of this Court in
the case of Abdul Jabbar S/o Abdul Razzaq Ors. Vs. The State of
Maharashtra3 wherein this Court has observed thus :

“28. The prosecution case is that due to ill-treatment and
harassment Shaheen committed suicide and, therefore,
charge U/Sec. 306 was added subsequently. The Trial
Court has convicted the accused/appellants U/Sec. 306,
498-A r/w Sec. 34 of I. P. Code. As stated earlier the
entire evidence of the prosecution witnesses does not lead
to the only conclusion that due to alleged harassment and
ill-treatment by the appellants/accused to deceased
Shaheen, she committed suicide. Language of Sec. 498-A
is very clear, unless it is established that the cruel
treatment and harassment given to the victim is of such a
nature that, it would drive the woman to commit the
suicide, then only conviction U/Sec. 306 can be sustained.
In the instant case, at the cost of repetition, it is to be
stated that, the omnibus statement is made by each
witness that there was demand of Rs.2,000/- on two
occasions and Rs.25,000/- on one occasion without
giving any particulars that which accused has demanded
this amount and on which date and for what purpose. If
the accused are convicted with the aid of section 34, in
that case it is necessary to attribute overt act to each
accused/appellant. It should be brought on record that
there was meeting of mind before the occurrence.

3 Criminal Appeal No.463 of 1999, decided on 11/02/2011

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29. Even if the prosecution case is considered on
the basis of the evidence brought on record that, the
Shaheen committed suicide because of ill-treatment or
harassment by the appellants/accused. The abetment
contemplated U/Sec. 306 of the I. P. Code has to be of
such a nature that, act of the accused is such which
instigated to commit the suicide or they were engaged in
any conspiracy in the doing or forcing the victim for
commission of suicide or they have intentionally aided in
the said commission of offence. The prosecution has not
brought anything on record that soon before the
commission of suicide, there was abetment of things
which forced the Shaheen to commit suicide. To attract
provisions of Sec. 306, it is necessary to show that cruelty
meted out to victim had in fact induced her to end the life
by committing suicide. There should be intention to
provoke incite or encourage committing of an act by the
accused. In order to find out whether the cruelty and
harassment meted out to the victim had left the victim
with no other alternative but to put an end to her life,
there should be convincing, clinching and cogent evidence
on record. Unless there is a proof of direct or indirect act
of incitement to the 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 the accused which lead or compelled the person to
commit suicide, conviction in terms of Section 306 of the
I. P. Code is not sustainable. This position has been
stated by the Hon’ble Supreme Court in case of Amalendu
Pal @ Jhantu cited supra. In case of Randhir Singh cited
supra, the Supreme Court held that abetment involves a
mental process of instigation a person or intentionally
aiding that person in doing of a thing……..”

The ratio laid down in both these Judgments are applicable to the
facts of the present case. In the present case, the prosecution has not
proved that ill-treatment or harassment was of such a nature that

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deceased Ujwala was driven to commit suicide. There are only
general allegations that she was ill-treated and harassed. Even those
allegations are not proved by the prosecution satisfactorily.
Therefore, though the incident has taken place within seven years of
marriage, the prosecution has failed to prove that the deceased was
treated with cruelty as envisaged under Section 498A of the IPC. The
presumption u/s 113A of the Evidence Act will not be helpful to the
prosecution in the present case.

16. As a result of the above discussion the Appeal deserves to
be allowed. Hence, the following order.

ORDER
(i) The Appeal is allowed.
(ii) The Judgment and Order dated 07/08/1997

passed by the 4th Additional Sessions Judge,
Kolhapur in Sessions Case No.9 of 1997, is set
aside.

(iii) The Appellants are acquitted of all the charges.

(iv) Their bail bonds shall stand discharged.

(SARANG V. KOTWAL, J.)

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