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Bombay High Court
Babasaheb Devidas Shinde vs The State Of Maharashtra on 9 February, 2024
2024:BHC-AUG:2786
-1- Cri.Appeal.320.2002
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 320 OF 2002
Babasaheb S/o. Devidas Shinde,
Age : 25 years, Occu. : Agri.,
R/o. : Narsapur, Tq. : Gangapur,
Dist. Aurangabad. … Appellant
(Orig. Accused)
Versus
The State of Maharashtra … Respondent
…
Ms. Sakshi Kale h/f. Mr. A. B. Kale, Advocate for Appellant
Mr. S. M. Ganachari, APP for Respondent – State
…
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 1st FEBRUARY 2024
PRONOUNCED ON : 9th FEBRUARY 2024
JUDGMENT :
1. Conviction for offence punishable under sections 498A
and 306 of Indian Penal Code (IPC) recorded by Ist Ad-hoc
Additional Sessions Judge, Aurangabad dated 05.06.2002 in
Sessions Case No. 385 of 1999, is now taken exception to by
original accused Babasaheb – husband of deceased Sunita.
2. Gangapur police station registered crime bearing No.97
of 1999 and challaned accused husband and in-laws of deceased
Sunita, alleging that, deceased and appellant were married in April
1999. After marriage, deceased came to reside with husband and
-2- Cri.Appeal.320.2002
in-laws. For one month after marriage, deceased Sunita was
treated properly, but thereafter ill-treatment began on account of
demand of Rs.20,000/-. Whenever deceased came home, she
reported the occurrence to her father and mother. Father assured
to pay after harvest. However, after she lost her brother-in-law
namely Bapu, husband and in-laws asked her to bring Rs.20,000/-
more towards his share in the property. Because of the
harassment and ill-treatment, on 21.07.1999 Sunita consumed
insecticide and died on 22.07.1999 due to its consumption.
PW2 Ramesh father after last rituals lodged report and
crime was registered. After investigation was over, accused
persons were made to face trial on denial of the charge.
On appreciation of oral and documentary evidence,
learned trial Judge, acquitted in-laws, but held accused husband
guilty for offence under sections 498A and 306 of IPC, which is
precisely questioned before this court.
SUBMISSIONS
On behalf of appellant :-
3. Learned counsel appearing for appellant would apprise
this court about marriage of accused and deceased to be of
-3- Cri.Appeal.320.2002
20.04.1999. She pointed out that alleged occurrence is of
21.07.1999. Learned counsel took this court through the
testimony of father informant and pointed out that, allegations are
vague and omnibus. She pointed out that, evidence of father shows
that, deceased went to her parent’s house only twice. She pointed
out that, there was no previous talks at the time of settlement
regarding any dowry amount agreed to be given. That, her father
admitted that since one year back, marriage was decided to be
performed. Brother-in-law of deceased died in 1998, and therefore,
no question of seeking any share of said deceased.
4. She further took this court through the evidence of
PW3 Latabai, mother and would submit that her version is
contrary to that of her husband PW2 Ramesh. It is pointed out that
this witness was already in the hospital for delivery of her
daughter and in the same hospital deceased was admitted, but she
was not informed. It is pointed out that, in cross she gave contrary
version about marriage itself being settled 08 days prior to the
marriage, which is contrary to the version of her husband. That,
this witness had improvised her version by changing it every time.
5. It is pointed out that, PW4 Badrinath also gave similar
version as that of PW3 Latabai. Evidence of PW5 Suresh,
-4- Cri.Appeal.320.2002
neighbour is full of improvements, contradictions and omissions.
For above reasons, it is her submission that case has
not been proved beyond reasonable doubt and she further urged
that when on same set of evidence, if in-laws are acquitted, then
learned trial court ought not to have recorded guilt of husband
alone. Consequently, she seeks indulgence of this court in setting
aside the judgment and order under challenge.
On behalf of State :-
6. In answer to above, learned APP for State would justify
the conviction by submitting that, shortly after marriage, accused
demanded dowry, which had remained unpaid. That, whenever
deceased visited parents, she reported the occurrence. That, barely
after few months deceased consumed insecticide only because of
repeated demand and harassment. Death has taken place in the
house of accused. Accused are solely responsible, more particularly
husband and hence he prays to dismiss the appeal for want of
merits.
EVIDENCE ON BEHALF OF PROSECUTION
7. In the light of above submissions and on going through
the record, it is emerging that, in support of its case, prosecution
has examined following witnesses and sum and substance of their
evidence is as under :-
-5- Cri.Appeal.320.2002
PW1 Ramdas, Police Head constable, who registered AD
(Exh.25) as well as complaint by Ramesh Bobade, on the strength
of which, he registered crime bearing No. 97 of 1999.
PW2 Ramesh father deposed about number of
daughters and date of marriage of deceased Sunita. According to
him, for one month after marriage, deceased was stated well, but
thereafter there was harassment in the form of abuses and beating
over demand of Rs.20,000/-. Deceased reported the same to him.
He assured to pay after harvest and requested the accused not to
ill-treat with deceased and sent both to Narsapur. On 22.07.1999
he received message and so visited hospital and found his daughter
unconscious. After post mortem, he approached police and lodged
complaint.
PW3 Latabai mother stated that, her daughter was
treated well for one month, but learnt from his daughter about
husband and parents-in-law beating and asking her to bring
Rs.20,000/-. Deceased reported about beating and demand and also
demanded share which devolved on her brother-in-law after his
demise.
PW4 Badrinath claims that, he learnt from deceased
about harassment caused to her on account of Rs.20,000/-i.e. when
-6- Cri.Appeal.320.2002
she had come to the house one month prior to the death. He claims
that he noticed burn injuries on the hand when he visited hospital
to see her.
PW5 Suresh neighbour deposed that, after marriage
deceased met him twice and told about beating and harassment on
account of demand of Rs.20,000/-. He deposed that, deceased once
told him that, they were insisting for Rs.20,000/- or else they
would administer the poisonous medicine.
PW6 ASI Muley is the Investigating Officer, who
narrated about all steps taken by him during investigation.
8. Here, charge for offence under sections 498A and 306
of IPC read with section 34 of IPC. Admittedly, by judgment and
order dated 05.06.2002, in-laws are acquitted for want of evidence,
but appellant alone is convicted.
9. For attracting offence of sections 498A of IPC, it is
incumbent upon prosecution to establish essential ingredients of
this section are as under :-
“(1) A woman was married;
(2) She was subjected to cruelty;
(3) Such cruelty consisted in –
(i) any lawful conduct as was likely to drive such
woman to commit suicide or to cause grave injury or
danger to her life, limb or health whether mental or
physical;
-7- Cri.Appeal.320.2002
(ii) harm to such woman with a view to coercing her to
meet unlawful demand for property or valuable security or
on account of failure of such woman or any of her relations
to meet the lawful demand ;
(iii) the woman was subjected to such cruelty by her
husband or any relation of her husband.”
10. Before adverting to the merits of the evidence, it would
also be fruitful to spelt out regarding essentials for attracting
charge of abetment to suicide and the settled legal position. For
bringing home the said charge, it is duty of prosecution to prove
that there was abetment to commit suicide. As to what amounts to
abetment is also fairly settled.
Section 107 of the IPC deals with abetment. It reads thus:
“107. Abetment of a thing- A person abets the doing
of a thing, who –
First. – Instigates any person to do that thing; or
Secondly. – Engages with one or more other person or
persons in any conspiracy for the doing of that thing,
if an act or illegal omission lakes place in pursuance
of that conspiracy, and in order to the doing of that
thing; or Thirdly.-Intentionally aids, by any act or
illegal omission, the doing of that thing.
Ingredients of this section are as under :
“The accused kept on irritating or annoying the
deceased by words, deeds or willful omission or
conduct which may even be a willful silence until the
deceased reacted, or pushed or forced the deceased
by his deeds, words or willful omission or to conduct
to make the deceased move forwards more quickly
-8- Cri.Appeal.320.2002
and (ii) that the accused had the intention to
provoke, urge or encourage the deceased to commit
suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary
concomitant of instigation.”
11. Evidence of father and mother goes to show that, prior
to the occurrence, deceased had twice paid visit to them.
Accusations are of dowry demand. Father claims that, there was
demand of Rs.20,000/- towards share of deceased brother-in-law of
deceased Sunita. On close scrutiny of PW2 Ramesh and PW3
Latabai, the peculiar feature is that none of them have stated in
clear terms, on which all days deceased had come home. Though
PW1 Ramesh father speaks about his daughter being harassed,
allegations are general in nature, as in what form harassment was
caused either physical or mental has not been spelt out by him.
Secondly, on close scrutiny of testimony of his wife PW3 i.e. mother
of deceased, she does not lend support to PW2 Ramesh. She seems
to have improvised and exaggerated her version. Relevant
omissions and improvements are also brought in cross.
12. When there are allegations of cruelty, it is expected of
prosecution to give instances, nature of ill-treatment etc. However,
the same is missing in the evidence of parents. PW5 Suresh
neighbour has apparently stated about threat to deceased for
bringing Rs.20,000/- or else they would administer the poisonous
-9- Cri.Appeal.320.2002
medicine, which is not coming in the version of very own parents of
deceased. Therefore, mere vague and omnibus allegations would
not itself constitute cruelty.
13. Deceased allegedly consumed insecticide. No doubt,
said consumption is while she was with her husband and in-laws on
21.07.1999, however what exactly preceded prior to the
consumption has not come on record.
14. In order to attract the charge of section 306 of IPC, it is
incumbent upon prosecution to establish incitement, instigation,
aiding or abetment to commit suicide. Law to this extent has been
fairly settled in series of cases, scope of Sections 107 and 306 has
been time and again decided by the Hon’ble Apex Court in the cases
viz; Ramesh Kumar v. State of Chhatisgarh reported in(2001) 9
SCC 618; Sanju @ Sanjay Singh Sengar v. State of M.P. reported
in(2002) 5 SCC 371; State of West Bengal v. Indrajit Kundu and
others reported in (2019) 10 SCC 188 and very recently in the
case of V.P.Singh etc. v. State of Punjab and others reported in
2022 SCC Online SC 1999.
In above series of cases, it has been held and reiterated
that accused persons should intent that deceased should end up
her life. With that object in mind, if they deliberately create
-10- Cri.Appeal.320.2002
circumstances, which are of such nature, that deceased is left with
no other alternative but to end up her life, only then charge of
abetment to commit suicide can be said to be successfully brought
home. Abetment is equally an essential factor to be proved by
prosecution.
15. Keeping above legal requirements in mind and testing
the evidence of prosecution in case in hand, it is clearly emerging
that, here, evidence of prosecution witness does not suggest as to
who were present at the time of said consumption and what
exactly triggered the occurrence of consumption. Therefore, in
absence of any cogent and reliable evidence, it is unsafe to hold
accused person guilty for abetting suicide.
16. This court has scrupulously gone through the evidence
adduced by prosecution in trial court. It is apparent that, learned
trial Judge has on same set of evidence acquitted parents-in-law,
but has surprisingly maintained conviction of appellant-husband
alone without assigning proper reasoning for the same. Learned
trial Judge has not considered the necessary ingredients for
attracting the charges, which were not available so as to record
conviction. Therefore, for above reasons such findings and
conclusion reached at by learned trial Judge cannot be allowed to
-11- Cri.Appeal.320.2002
be sustained. Accordingly, I proceed to pass the following order :
ORDER
I) Criminal Appeal No.320 of 2002 stands allowed.
II) The conviction awarded to appellant – Babasaheb S/o.
Devidas Shinde in Sessions Case No. 385 of 1999 by the I st Ad-
hoc Additional Sessions Judge, Aurangabad on 05.06.2002 for
the offence punishable under Sections 498A and 306 of Indian
Penal Code, stands quashed and set aside.
III) The appellant stands acquitted of the offence punishable
under Sections 498A and 306 of Indian Penal Code.
IV) The appellant be set at liberty, if not required in any
other case.
V) The fine amount deposited, if any, be refunded to the
appellant after the statutory period.
VI) It is clarified that there is no change as regards the order
in respect of disposal of muddemal.
(ABHAY S. WAGHWASE, J.)
Tandale
