Bombay High Court Baban Tulshiram Latake-vs-State Of Maharashtra on 21 January, 2004
Equivalent citations:II (2004) DMC 644
Author: V Palshikar
Bench: V Palshikar, P Kakade
V.G. Palshikar, J.
1. Being aggrieved by the judgment and order of conviction and sentence passed on 13.1.1999 by II Additional Sessions Judge, Solapur in Sessions Case No. 74/97, the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us.
2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.
3. The prosecution story as disclosed on reappreciation of evidence on record stated briefly is that the appellant-accused was married to the victim deceased Ranjana. She was harassed constantly by the accused and he kept on demanding good some of money, Rs. 40,000/- to be precise. Being harassed by constant ill treatment the deceased allegedly put herself on fire and committed suicide on 14.10.1996. Information regarding death of victim was given to her relations who came, saw that the victim was dead and lodged First Information Report in which it was alleged that the accused used to torture the victim continuously as a result of which she felt exhausted and desperate and lit herself and committed suicide. The FIR is proved by PW 4-Vasudeo Navale as Ex. 25. It very clearly reveals that even according to the relations of the victim, victim had committed suicide. On the basis of this report the appellant was arrested, investigation conducted and the trial took place in which 12 persons were examined for proving the prosecution case.
4. It is pertinent to note that initially the charge was framed under Section 306 of Indian Penal Code. However later on additional charge under Section 302 of IPC was framed and the trial proceeded. The learned trial Judge on appreciation of evidence came to the conclusion of guilt and punished the appellant-accused as aforesaid. Hence this appeal has been preferred by the present appellant-accused.
5. At the outset it must be made clear that the offences punishable under Section 302 of IPC and Section 306 of IPC are mutually exclusive. Under Section 306 of IPC a person is to be found guilty of abetment of suicide which presupposes the factually proved commission of suicide. Whereas Section 302 of IPC contemplates punishment for murder which presumes existence of intention on the part of the accused to kill the victim. It was in these peculiar circumstances that the matter was taken up for trial and decided as aforesaid.
6. The learned Counsel appearing on behalf of the appellant submitted that there is no evidence on record to substantiate the charge under Section 302 of IPC. We have scrutinized that evidence of PW 4-Vasudeo Navale who has lodged the FIR which was proved as Ex. 25. This witness is the brother of the deceased Ranjana. He has proved the FIR, he has proved the fact that the accused used to regularly harass and torture the victim and has very clearly stated in his deposition that it is because of this harassment that his sister committed suicide. It was always his claim that the suicide abetted by the previous conduct of the accused. Unfortunately for the prosecution there is no evidence of any immediate previous torture by the accused of the victim. There has to be immediate proximity for torture and harassment and commission of suicide. Instance of past torture about few months before the date of incident cannot support a presumption of mens rea in the accused. It cannot, therefore, be said that the accused abetted the suicide and the learned trial Judge has ignored this aspect and has proceeded to consider the question of accused having committed murder, if any.
7. Even if the entire evidence as led by the prosecution is accepted as correct the entire evidence leads us to only one conclusion viz. that the accused used to harass and torture the victim. This evidence proves beyond reasonable doubt that the accused did commit offence punishable under Section 498A of IPC for which he has been properly punished. We see no reason to interfere with this conviction and sentence.
8. However even acceptance of the entire evidence of the prosecution cannot lead us to the conclusion that it was the accused who put the victim on fire. There is no allegation that the accused lit the fire. In fact there is ample evidence on record to show that the accused was sitting outside the house in Verandah along with a friend called Mahadeo Latake When another friend called Mirgane came there and informed the accused that his wife was on fire. It is thereafter that the accused went to the place and doused the fire with the help of a quilt. The Investigating Officer who has been examined in this case as PW 12-Prabhakar Wagh has clearly said this in his deposition. He also admits that both Mahadeo Latake and Mirgane have not been examined. The reason for not examining these witnesses probably appears to be the fact that they would have deposed that the accused was sitting on ota when the wife was on fire. There is no explanation given by the prosecution as to why these two important witnesses have not been examined. In the face of such evidence therefore it is not possible for us to sustain the. order of conviction and sentence under Section 302 of IPC. In the result, therefore, we allow the appeal partly, set aside the judgment and order of conviction imposed for that offence. We however reject the appeal insofar as the appeal under Section 498A, IPC is concerned. In our opinion, it was well based and for well reasoned evidence it is liable to be maintained. The punishment awarded for the offence punishable under Section 498A is three years rigorous imprisonment. The appellant-accused has undergone more than six years of imprisonment. He is, therefore, liable to be released from jail immediately. Appeal accordingly stands disposed/respondent. Office to expedite the writ.