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Ganesh S/O Bhaurso Shinde vs The State Of Maharashtra on 19 July, 2019

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Cri.Appeal No.173-18

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 173 OF 2018

Ganesh s/o Bhaurao Shinde,
Age 42 years, Occu. Nil,
R/o. Daregaon Tq. Naigaon,
Dist. Nanded. … Appellant
[Ori. Accused]
VERSUS

The State of Maharashtra,
Through Police Station, Naigaon,
Tq. Naigaon Dist. Nanded. … Respondent
[Ori.complainant]

Mr.Chetan T.Jadhav, Advocate (appointed) for the
appellant-accused
Mr. P.N. Kutti, APP for the respondent-State

CORAM : S.M.GAVHANE,J.

RESERVED ON : 02.05.2019
DECIDED ON : 19.07.2019

J U D G M E N T :-

. The appellant-accused, who has been

convicted for the offence punishable under Section

306 of Indian Penal Code (for short “SectionIPC”) and

sentenced to suffer rigorous imprisonment for ten

years and to pay a fine of Rs.5,000/-, in default,

to suffer simple imprisonment for six months, by the

Additional Sessions Judge, Biloli, as per the

judgment and order dated 04.02.2016 passed in

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Sessions Case No.15/2015, has filed this appeal

challenging the said conviction and sentence recorded

against him.

2. Facts giving rise to this appeal, are as

under:

a) Deceased Ranjana Ganesh Shinde was married

with the accused 15 years before the incident dated

12.12.2014. They were residing at Daregaon,

Tq.Naigaon Dist.Nanded. While the deceased was

residing at the house of the accused, in the evening

on 12.12.2014, she sustained 93% burns. The

information of the incident was given to her mother

and uncle. They came and they had taken the deceased

in the injured condition by ambulance to Civil

Hospital, Nanded for treatment.

b) In the Civil Hospital, Nanded, on the same

day i.e. on 12.12.2014, the concerned doctor informed

the fact of admitting the deceased at 9.05 pm in the

hospital, to the Police Inspector of Naigaon Police

Station. Thereafter, police constable Kendre (PW-7)

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went to the Civil Hospital, Nanded. He met Dr.Chavan

(PW-11) and said doctor had taken police constable

Kendre in Ward No.14, in which the deceased was

admitted. Dr.Chavan examined the patient and informed

police constable Kendre that the patient was

conscious and she was in a position to make

statement. Accordingly, Dr.Chavan made endorsement on

the paper. Thereafter, police constable Kendre

recorded statement of the injured patient/the

deceased. The deceased disclosed to him that her

husband-the accused is addicted to liquor and he

consumes liquor daily. One Maroti Tukaram Shinde and

Madhav Vyankat Shinde from the village of the accused

instigated the accused and provided money to the

accused for consuming liquor with an intention to

purchase agricultural land of the accused. She

further stated that the accused used to consume

liquor daily and used to abuse and beat her daily.

Two days prior to the incident i.e. on 10.12.2014,

the accused had sent her to her parental home.

Immediately on the next day, he came to her parental

house and she was brought to Daregaon by the accused.

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In the night on that day, the accused had beaten her

severely under the influence of liquor. Further, she

stated that on the next day i.e. on 12.12.2014, again

the accused severely beaten her by the handle of an

axe and that daily there was harassment to her.

Therefore, she was fed-up with the conduct and

behaviour of the accused her husband. Therefore, she

poured kerosene on her person from a can and set

herself on fire. She sustained burn injuries.

Therefore, she made shouts. The accused, who was

outside the house came and he poured one bucket water

on her person and tried to extinguish the fire. Said

incident was informed to her parental home. Her

mother and uncle came and they had taken her in the

Civil Hospital at Nanded. She stated that action be

taken against her husband-the accused. After

recording statement as above by police constable

Kendre, again Dr.Chavan examined the patient and

found that the patient was conscious/oriented and

mentally fit after the statement. Copy of said

statement/dying declaration (Exh.21) was sent to

Police Station, Naigaon by police constable Kendre.

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Moreover, Special Executive Magistrate (PW-14)

recorded dying declaration (Exh.40) regarding

involvement of the accused as stated by the deceased,

as above. On the basis of copy of said

statement/dying declaration (Exh.21) of the deceased,

Crime No.77/2014 was registered against the accused

for the offence punishable under Section 498-A of the

IPC. While the deceased was undergoing treatment, on

15.12.2014, she died due to burn injuries.

Thereafter, offence under Section 306 of the IPC was

added in the crime registered against the accused.

c) The investigating officer prepared the

inquest panchanama and got post mortem examination

done on the dead body. Dr.Chavan opined that the

deceased died due to septicaemia due to burns. The

investigating officer went to the spot of incident

i.e. house of the accused and drew panchanama of

spot of incident in presence of panchas. He seized

plastic can, match-stick, some pieces of burnt saree

and kerosene mixed soil. The investigating officer

recorded statements of witnesses from the parental

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home of the deceased as well as the witnesses from

the village of the accused. He submitted charge-sheet

in the court of JMFC, Biloli, who committed the case

to the Court of Additional Sessions Judge, Biloli, as

the offence punishable under Section 306 of the IPC

was triable by the Sessions Court.

d) The learned Additional Sessions Judge framed

charge against the accused for the offences

punishable under Sections 498-A, Section306, Section323 and Section504 of

the IPC. The accused pleaded not guilty to the charge

and claimed to be tried. His defence is denial.

e) To prove charge against the accused, the

prosecution has examined in all 14 witnesses and it

has relied upon the panchanamas, post mortem report

and reports of the Chemical Analyzer. Statement of

accused under Section 313 of Cr.P.C. was recorded.

He has not examined any witness in defence.

f) Considering the evidence adduced by the

prosecution, the Trial Court held that the

prosecution has failed to prove the offences under

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Sections 498-A, Section323 and Section504 of the IPC against the

accused and it has held that the prosecution has

proved the offence punishable under Section 306 of

the IPC against the accused and accordingly,

convicted and sentenced him for the said offence as

said earlier by the impugned judgment and order.

Therefore, this appeal by the appellant-accused.

There is no appeal against the acquittal of the

accused of the aforesaid offences by the State.

3. I have heard Mr. Jadhav, learned Advocate

for the accused and Mr.Kutti, learned APP for the

respondent-State and with their assistance, I have

perused the evidence adduced by the prosecution and

the impugned judgment and order.

4. Mr.Jadhav, learned Advocate for the

appellant-accused submitted that the deceased was

married to the accused about 15 years prior to the

incident. No single complaint was lodged against the

accused by the deceased, making any allegations

against him. The deceased was daughter of maternal

uncle of the accused. It is the case of the

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prosecution that the accused was assaulting the

deceased after consuming liquor. But it is not the

case of the prosecution that the accused was addicted

to liquor and continuously he was causing cruelty to

the deceased by beating her under the influence of

liquor and as such, he was causing physical cruelty

to her. Therefore, case of the prosecution that due

to frustration, due to said act of the accused, the

deceased committed suicide is not acceptable. It is

submitted that no specific incident of harassment of

the deceased at the hands of the accused is alleged

by the prosecution. The deceased had no issue from

the marriage with the accused, even after 15 years of

her marriage and therefore, the accused has incurred

huge expenses for her treatment to conceive.

Therefore, it cannot be said that the accused was

indebted due to habit of consuming liquor. Thus,

according to the learned Advocate as the deceased did

not conceive and she did not deliver child, even

after 15 years of her marriage with the accused, she

committed suicide out of said frustration.

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5. Mr.Jadhav, learned Advocate for the accused

further submitted that the accused was charged for

the offences punishable under Sections 498-A, Section306,

Section323 and Section504 of the IPC. By the impugned judgment, he

was acquitted of the offences under Sections 498-A,

Section323 and Section504 of the IPC. According to the learned

Advocate, when the prosecution has failed to prove

the offence of cruelty against the accused, the

conviction and sentence of the accused for the

offence punishable under Section 306 of the IPC i.e.

abetment to commit suicide by the deceased is not

legal and proper. Once the prosecution has failed to

prove that the accused has caused cruelty to the

deceased, it cannot be said that the accused abetted

the deceased to commit suicide due to cruelty caused

to her by the accused. It is submitted that the trial

court has not properly considered the aspect that the

evidence of PWs 5 and 6 on harassment to the deceased

was not sufficient to attract the offence of cruelty

and still, the trial court held that the prosecution

has proved the offence under Section 306 of the IPC.

It is further submitted that the dying declarations

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(Exh.21 and 40) do not disclose anything that the

accused abetted the deceased to commit suicide. It

is submitted that the marriage of the accused with

the deceased was performed prior to 15 years of the

incident and therefore, presumption of abetting the

deceased to commit suicide under Section 113-A of the

Evidence Act is also not available in the present

case. It is submitted that the accused extinguished

the fire of the deceased and immediately took the

deceased to the hospital. Therefore, it cannot be

said that he was harassing the deceased, which

harassment, as per the prosecution case has led the

deceased to commit suicide. Thus, according to the

learned Advocate for the accused, reasons given by

the Trial Court and findings recorded by the Trial

Court that the prosecution has proved the offence

punishable under Section 306 of the IPC against the

accused are not correct and sustainable and

therefore, conviction and sentence recorded against

the accused for the offence under Section 306 of the

IPC by the impugned judgment is liable to be set

aside by allowing the appeal.

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6. To support his submissions that once the

prosecution has failed to prove the offence of

cruelty under Section 498-A of the IPC against the

accused conviction of the accused for the offence

under Section 306 of the IPC is not sustainable and

it is illegal, the learned Advocate for the accused

has relied upon the following decisions:

(i) In the case of Heera Lal and another V/s.

State of Rajasthan, Criminal Appeal No.790/2017

decided on 24th April 2017 (Supreme Court), the

appellants, in-laws of the deceased were tried for

the offences punishable under Sections 498-A and Section306

of the IPC. The trial court relied upon the evidence

of PWS 4 and 5, who were neighbours, on the

harassment. The deceased had sustained 90% burns.

There was dying declaration made before Special

Divisional Magistrate, both the trial court and the

High Court referred the dying declaration, which

states that the deceased had told the Special

Divisional Magistrate that she was sleeping. Her

husband-accused and in-laws were quarreling every

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day. On the day of dying declaration also, they

quarreled with her. They asked her to leave the

house. Her husband is not responsible for anything.

The trial court held that the offence under Section

498-A of the IPC was not made out, but convicted the

appellants for the offence punishable under Section

306 of the IPC and sentenced them to imprisonment for

three years. In appeal, by them to the High Court,

the High Court relying upon the aforesaid dying

declaration dismissed the appeal. In the appeal

before the Hon’ble Supreme Court by Special Leave in

paragraph 8, the Hon’ble Supreme Court observed as

follows:

“8. We find that having absolved the
appellants of the charge of cruelty, which
is the most basic ingredient for the offence
made out under Section 498A, the third
ingredient for application of Section 113A
is missing, namely, that the relatives i.e.,
the mother-in-law and father-in-law who are
charged under Section 306 had subjected the
victim to cruelty. No doubt, in the facts
of this case, it has been concurrently found
that the in-laws did harass her, but
harassment is something of a lesser degree
than cruelty. Also, we find on the facts,
taken as a whole, that assuming the
presumption under Section 113A would apply,
it has been fully rebutted, for the reason

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that there is no link or intention on the
part of the in-laws to assist the victim to
commit suicide.”

It was further observed that on the facts, therefore,

in view of the facts, the appellants have not been

convicted for the offence punishable under Section

498-A of the IPC, that abetment of suicide under

Sectionsection 306 of the IPC is not made out. Ultimately,

the appeal was allowed and the impugned judgment of

the High Court was set aside.

(ii) In the case of Vashim Vs. State of

M.C.T.Delhi, Criminal Appeal No.365/2017 decided on

24th May, 2018 (Delhi High Court), the appellant was

convicted for the offence punishable under Sections

498-A and Section306 of the IPC. In the appeal before the

High Court in paragraph Nos.22, 23 and 24, it was

observed, as under:

“22. On the facts of the present case, it
is apparent that the deceased suspected her
husband to be in an extramarital relation
which fact she stated to her family members
also, however there is no evidence that in
order to seek divorce from the deceased
there was cruelty to the extent that she was
driven to commit suicide. Thus, this Court
finds that the prosecution has not made out

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any case for raising a presumption that on
account of mental cruelty by being involved
in an extramarital relationship Wasim abated
the commission of suicide by the deceased.

23. This brings the Court to another facet
of facts of the case i.e. whether the acts
of Wasim had a live and proximate link to
the death of the deceased as admittedly
prior to the incident the appellant was not
in Delhi. Nothing has been shown that before
the death of the deceased she was subjected
to such a mental and physical cruelty by the
appellant which abated her committing
suicide. There is no proximate and live link
between the cruelty or demand of dowry and
the suicide committed as already held by the
learned Trial Court.

24. However in view of the fact that though
not soon before death but soon after the
marriage there was demand of dowry and money
was taken,this Court deems it fit to uphold
the conviction under Section 498A IPC.
Consequently the conviction and order on
sentence of the appellant for offence
punishable under Section 306 IPC is set
aside however, for offence punishable under
Section 498A IPC is maintained.”

(iii) In the case of Shrinivasa Gowda Vs.

State of Karnataka in Criminal Apeal No.355 of 2010

decided on 28th February, 2018 (High Court of

Karnataka at Bengaluru), the appellant was convicted

and sentenced for the offence punishable under

Section 498-A of the IPC. He was charged for the

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offences punishable under Sections 498-A and Section306 read

with Section 34 of the IPC. He was acquitted of the

offence punishable under Section 306 of the IPC. PWS

1, 3 and 6 were vital witnesses examined by the

prosecution to prove the guilt of the accused. The

evidence of DW-2, the sister of the deceased was

contrary to the evidence of these material witnesses.

The evidence of all these witnesses found full of

inconsistencies and was contrary to each other

relating to physical as well as mental harassment

given by the accused to the deceased. Therefore, it

was held that said evidence does not constitute an

offence under Section 498-A of the IPC. Except the

evidence of PWs-1, 3 and 6 who are the father, mother

and brother respectively of the deceased, there was

no other corroborative evidence to prove the guilt of

the acucsed and the evidence of the other witnesses

was only hearsay. Marriage of the deceased with the

accused was performed on 03.06.1994. Deceased led a

happy marrital life with the accused for a long

duration of 11 years prior to death on 09.09.2005.

It was held that under such circumstances, an

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inference can be drawn that deceased committing

suicide by consuming pesticides was not on account of

ill-treatment or cruelty given by the accused. Trial

Court based the conviction of the accused for the

offence under Section 498-A of the IPC slightly on

the ground that the accused did not allow the

deceased to go to her parental house and the same

would amount to cruelty. In the absence of any

material evidene on record, the Trial Court was not

at all justified in coming to such a conclusion. In

the appeal against conviction of the appellant on

re-appreciation of the entire material on record, it

was held that the trial Court has committed an error

in appreciating the evidence on record in a proper

perspective and that the learned Judge of the Trial

Court was not justified in convicting the accused for

the offences alleged against him. As such, the

appellant was acquitted of the charges levelled

against him and conviction under challenge was set

aside.

(iv) In the case of Mohan Gangaram Kesade Vs. The

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State of Maharashtra, Criminal Appeal No.595 fo 2017

(Bombay High Court) decided on 26th November, 2018,

the appellant filed appeal against his conviction for

the offences punishable under Sections 498-A and Section306

of the IPC. The appellant was married with the

deceased prior to incident on 16.04.2005. Suicidal

death of the deceased in the said case was not much

in dispute. The appellant was suspecting character of

the deceased wife and he was frequently quarrelling

with the deceased after consuming liquor during

married life of the deceased of seventeen years. In

para 14, it was observed as under:

“14 Apart from this oral evidence,
there is evidence of dying declaration of

deceased Sushila. Her dying declaration at
Exhibit 26 was recorded on 17/04/2015 by
P.W.No.6 Anant Gurav Nayab Tahsildar.
Deceased Sushila has stated in the said
dying declaration (Exhibit 26) that her
husband used to suspect her character and
used to beat her regularly. Being fed up
with regular beating on suspicion as
stated by Sushila, she poured kerosene on
her person and set herself ablaze. Deceased
Sushila also stated in her officially
recorded dying declaration that the
appellant/accused was very much present at
the time of the incident. He was saying
that he do not need her. Deceased Sushila
has further stated in her dying declaration

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that when she set herself ablaze, the
appellant/accused extinguished the fire and
ran away. Thus, we have two sets of
evidence in order to ascertain whether the
deceased was subjected to cruelty and was
driven to commit suicide by the appellant/
accused. One is oral evidence which also
includes dying declaration of Sushila and
another is that of her officially recorded
dying declaration. If both these sets of
evidence are carefully scrutinized, coupled
with the case of the prosecution reflected
in the FIR lodged by P.W.No.1 Indu Kamble,
then it becomes clear that even after
seventeen years of married life and after
having begotten three children from the
said wedlock, the appellant/accused used to
suspect character of his deceased wife
Sushila. He used to beat her frequently by
picking a quarrel with her. However,
P.W.No.3 Rani Dhanwade, who is neighbourer
of the couple though had spoken about
addiction of liquor of the appellant/accused
and frequent quarrel between him and
deceased Sushila, has not spoken about
beating by the appellant/accused to deceased
Sushila. Thus, though close relatives of the
deceased are speaking about addiction to
liquor, picking up the quarrel by suspecting
the character and frequent beating by the
appellant/accused to deceased Sushila, P.W.
No.3 Rani Dhanwade, who appears to be the
independent witness having an occasion to
watch events happening in the matrimonial
life of the couple, has not spoken about
suspicion about the character of the
deceased Sushila by the appellant/accused so
also beating by the appellant/accused to the
deceased Sushila because of such suspicion.
Thus, in the wake of this variance and
shortcoming in the evidence of closely
related witness to the deceased and that
of the independent witness, the appellant/

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accused is certainly entitled for benefit of
doubt so far as suspicion about the
character of the deceased wife and frequent
beating is concerned. If these aspects are
ignored, then what remains is addiction to
liquor and frequently quarreling with the
deceased. Though such frequent quarrels
with a married woman after consuming the
liquor during married life of seventeen
years may amount to cruelty as such conduct
is harsh and harmful conduct of requisite
intensity and persistence, the same may not
be sufficient to infer abetment. The
allegations which are established from
evidence of P.W.No.3 Rani Dhanwade are not
of such a nature which would drive the
deceased to commit suicide, forming a
natural result of normal conduct of a
married woman. That apart, evidence
regarding mens rea is missing. Without
knowledge or intention, there cannot be
abetment and the knowledge and intention
must relate to the crime in question. In
the instant case, as soon as Sushila set
herself ablaze, the appellant/accused
extinguished the fire on her person and ran
away may be because of fear. This evidence
of the prosecution reflected from the
officially recorded dying declaration
negates the case of abetment by the
appellant/accused to the deceased for
driving her to commit suicide.”

7. Mr.Kutti, learned APP, on the other hand

submitted that there is sufficient evidence to

attract offence under Section 306 of the IPC against

the accused. The Trial Court has considered said

evidence in paragraphs 15, 16 and 17 of the judgment.

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In paragraphs 19 and 21 of the judgment, the Trial

Court has considered the aspect of the accused

abetting the deceased to commit suicide. There is no

reason to reject the dying declarations relied upon

by the prosecution. According to the learned APP,

there is no ground to interfere with the impugned

judgment of the conviction and sentence of the

accused for the offence under Section 306 of the IPC

and claimed to dismiss the appeal. To support his

submissions on dying declarations and the conclusion

of the trial court, the learned APP has relied upon

the Full Bench decision of this Court in Criminal

Appeal No.186 of 2013 decided on 26th February, 2018

in the case of Ganpat Bakaramji Lad V/s. State of

Maharashtra. The learned APP invited my attention to

paragraphs 4 and 43 of the judgment, which read as

under:

“4. After expressing its disagreement,
the Division Bench in Ganpat Lad’s case
framed the question for reference to the
Larger Bench as under :

“Whether a Dying Declaration can be
rejected merely because the same is not
read over to the declarant and the

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declarant admitting the same to have
been correctly recorded?”

43. In the decision of the Apex Court in
the case of State of H.P.V.Lekh Raj,
reported in (2000) 1 SCC 247, it is observed
that the legal trial is conducted to
ascertain the guilt or innocence of the
accused. In arriving at the truth, the
Courts are required to adopt rational
approach and judge the evidence by its
intrinsic worth and the animus of the
witnesses. The hyper technicalities or
figment of imagination should not be
allowed to divest the Court of its
responsibility of sifting and weighing the
evidence to arrive at the conclusion
regarding the existence or otherwise of a
particular circumstances keeping in view the
peculiar facts of each case, the social
position of the victim and the accused, the
larger interests of the society particularly
the law and order problem and degrading
values of life inherent in the prevalent
system. The Courts are not obliged to make
efforts either to give latitude to the
prosecution or loosely construe the law in
favour of the accused. The traditional
dogmatic hyper technical approach has to be
replaced by rational, realistic and genuine
approach for administering justice in a
criminal trial.”

8. I have carefully considered the submissions

made by the leraned Advocate for the accused and the

learned APP.

9. There is no dispute that the deceased was

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married to the accused about 15 years prior to the

incident. She sustained 96% burns on 12-12-2014 in

the house of accused and that she succumbed to the

burn injuries on 15-12-2014. There is also no

dispute that the death of the deceased was suicidal

as it is the defence of the accused that the deceased

committed suicide out of frustration, as she had no

issue.

10. In the above circumstaances, considering the

conviction of the accused for the offence under

Section 306 of the IPC, the only aspect which is

requried to be considered is whether the finding of

the Trial Court convicting the accused for the

offence punishable under Section 306 of the IPC is

sustainable? As mentioned earlier, charge was framed

against the accused for the offences under Sections

498-A, Section306, Section323 and Section504 of the IPC and by the

impugned judgment, he came to be acquitted of all the

said offences, except offence under Section 306 of

the IPC. Case of the prosecution is that, the

deceased committed suicide due to cruelty caused to

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her by the accused as the accused was harassing her

by beating under the influence of liquor. When the

Trial Court has held that the prosecution has failed

to prove cruelty punishable under Section 498-A of

the IPC against the accused, it is diffcult to accept

the finding of the trial Court that the prosecution

has proved that the acucsed abetted the deceased to

commit suicide which offence is punishable under

Section 306 of the IPC as submitted by the learned

Advocate for the accused. However, it is necessary

to see whether the accused has abetted the deceased

to commit suicide. To prove the same, the

prosecution has relied upon the evidence of PWs 3, 4,

5, 6 and dying declarations Exh.21 and 40 of the

dseceased on the alleged harassment of the deceased,

which amounts to cruelty to her, which abetted the

deceased to commit suicide.

11. Now coming to the evidence of above

witnesses, both PWs 3 and 4, who are cousins of the

accused and to whom the deceased made oral dying

declaration have not supported the prosecution case

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as they have denied that on hearing the shouts of the

deceased “okpok ! okpok !”, immediately, they rushed

towards the house of the deceased and that on their

asking to her, she (deceased) told them that due to

harassment of the accused, she herself set her on

fire. Thus, the evidence of both these witnesses is

of no help to the prosecution to state that the

accused harassed the deceased and thus, abetted her

to commit suicide.

12. The evidence of Maroti Shinde (PW-5), who is

from the village of the accused is that on the date

of incident on 12.12.2014, he came to his house from

the field at 7.00 pm and came to know that there was

quarrel between the accused and the deceased.

Further, he deposed that habit of liquor was the

cause of quarrel. The accused used to harass the

deceased under the influence of liquor and due to

harassment of the accused, the deceased poured

kerosene on her person and set her on fire. In the

cross-examination, he admitted that in the year 2007,

the accused met with an accident. He was admitted in

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Dabhekar Hospital. When the accused was admitted in

the hospital, they both approached him and demanded

money for medical expenses. The accused assured him

that he would return money and they were ready to

hand over land to him. He admitted that he paid

Rs.50,000/- as first installment and Rs.1,00,000/- as

second installment. The accused was maintaining his

family by doing labour work. He denied that the

accused was not in the habit of consuming liquor and

that there was no quarrel before him. He denied that

he is deposing false that there was regular quarrel

between the accused and the deceased. He denied that

due to non-conception, the deceased herself poured

kerosene and set herself on fire. He stated that he

does not know that due to non-conception of 11 years,

the deceased was nervous. This witness has not

deposed about specific instance of harassing the

deceased by the accused on consuming liquor and his

evidence that the accused used to harass the deceased

under the influence of liquor is quite vague and is

not sufficient to infer that there was continuous

harassment to the deceased by the accused. It

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appears from his evidence that he had given an amount

of Rs.1,50,000/- to the accused and the deceased at

the time of treatment of the acucsed, when the

accused met with an accident.

13. The evidence of Ananda Tekale (PW-6), who is

brother of the deceased is that the deceased was

married to the accused in the year 1996. She had no

issue. The accused harassed the deceased under the

influence of liquor. Her marital life was not happy.

The accused sold his land to consume liquor and under

the influence of liquor, he used to harass the

deceased. He and his relatives tried to convince the

accused but he has not heard. Further, he has stated

that on 08.12.2014, the accused sent the deceased to

his house saying that he is attending the sugar

factory. Again on 11.12.2014, the accused returned

to his house and the accused had taken the deceased

along with him. The accused had promised that he

would not harass the deceased and his brother

(brother of the witness) sent the deceased along with

the accused. On 12.12.2014, his cousin received phone

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of the accused that the deceased sustained burn

injury. He went to the house of the accused and saw

that door was closed. There was nobody, except the

deceased, his sister. He asked the deceased, what

had happened and the deceased told him that the

accused beat her severely and the harassment was

unbearable, therefore, she herself poured kerosene

and set her on fire. Further, he stated that he

called ambulance and took the deceased to Nanded for

treatment. She was admitted in hospital for 2-3 days

and she died on 14.12.2014.

14. In the cross-examination, Ananda Tekale

(PW-6) has stated that there was accident to the auto

of the accused. He stated before police that the

accused severely beaten his sister/the deceased and

it is not recorded in the said statement. He could

not assign any reason of absence of said fact in his

statement before police. Therefore, his evidence

that the accused severely beaten his sister-the

deceased is amounting to omission in his statement

before police. Moreover, he stated that he made a

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complaint to Naigaon Police Station about harassment

by the accused to his sister-the deceased and police

registered crime against the accused. He stated that

the copy of that complaint is available, he will

produce the same. However, it appers that he has not

produced the copy of said complaint nor he has

produced the record showing that crime was registered

against the accused on the said complaint allegedly

lodged by him about harassment to the deceased. In

fact, it was possible for him to produce the

complaint as above or to produce the material showing

the fact that really crime was regisrered against the

accused on the complaint of harassment to the

deceased. Ananda (PW-6) has admited that the

deceased was treated at various places to conceive.

As referred earlier, there is no dispute that the

deceased was daughter of the maternal uncle of the

accused. In the above circumstaances, the evidence

of Ananda (PW-6) regarding harassment to the deceased

by the accused is not believable. Similarly, his

evidence that the deceased told him that the accused

severely beat her and the harassment was unbearable

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and thereforee, she committed suicide is not

believable.

15. Exhibit 21 statement/dying declaration of

the deceased was recorded by police naik (PW-7) on

12.12.2014, after the deceased was examined by

Dr.Chavan. Police Naik Kendre (PW-7) has stated that

on 12.12.2014, after receiving information from Civil

Hospital that the deceased recevied burn injuries and

that she was admitted in Civil Hospital, Nanded, he

immediately went to said hospital and met Dr.Vilas

Chavan. Said doctor came with him to the patient.

He examined the patient and put his endorsement.

Thereafter, Ranjanabai-the deceased made statement to

him that her husband was addicted to liquor and her

husband used to harass her and beat her and due to

harassment of the accused, she poured kerosene on her

person and set herself on fire. She immediately made

shouts and her husband came and extinguished her. In

the cross-examination, he has denied that the

deceased has not given statement Exh.21 and that he

is deposing false. Dr.Chavan (PW-11) has also stated

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that he made endorsement (Exh.32) on dying

declaration recorded by head constable and according

to him, the paitent was conscious and mentally fit to

give a statement. He also stated about second

endorsement made on dying declaration (Exh.21) by him

after the dying declaration was recorded by the

police. In the cross-examination, he has denied that

the patient was not in a position to speak real and

voluntarily. Dying Declaration/Statement (Exh.21)

shows that it was recorded by Kendre (PW-7) and

Dr.Chavan (PW-11) made two endorsements as depsoed by

said doctor, on the said statement. Thus, on the

basis of above evidence, it can be said that PW-7

recorded dying declaration (Exh.21) and at the time

of making said dying declaration, the deceased was

admitted in injured condition in the hospital and she

was in a position to make statement. It is stated in

the said dying declaration (Exh.21) that on

12.12.2014, as the accused assaulted the deceased

after consuming liquor and as he was assaulting her,

she committed suicide on boaring to the said

harassment by pouring kerosene on her person and

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setting herself on fire in the house and that her

husband is responsibile for the said incident.

16. Now, coming to the second dying declaration

Exh.40 recorded by Shaikh Hayder (PW-14), Special

Judicial Magistrate, Nanded on the same day i.e. on

12.12.2014, after the deceased was examined by

Dr.Chavan (PW-11), it has come in the evidence of PW-

14 that after receiving letter on 12.12.2014 of

police constable, Kendre, he went to Civil Hospital,

Nanded in Ward No.14. He contacted Dr.Chavan, who was

in-charge. Dr.Chavan came along him to the patient.

Dr.Chavan examined the patient and made endorsement.

He stated that, he (doctor) informed that patient was

conscious and she was in a position to give a

statement. According to him, the patient/deceased

told him that their marriage was solemnized 18 years

back. There was quarrel between her and her husband

for landed property. The accused beat her by handle

of an axe. The accused under the influence of liquor

used to harass her daily and on the day of incident

she herself set on fire due to harassment at the

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hands of the accused. She made shouts and

neighbouring persons came to her home and they

poured water on her person and extinguished fire.

Maroti Shinde and Manohar Shinde provided liquor to

her husband with an intention to purchase the land of

Ganesh and she opposed to said transaction. She was

fed-up with the behaviour of her husband and set

herself on fire. She further told him that her

husband extinguished the fire by pouring water on her

person. The neighbouring persons came on the spot and

they admitted her in Civil Hospital, Nanded for

treatment. She further told him that her husband is

responsibile. In the cross-examination, he has denied

that patient was in critical condition and before

recording statement, he collected all informations of

the patient from relative and that only to help the

prosecution, he recorded false dying declaration.

Dr.Chavan (PW-11) has also stated that, on the same

day i.e. on 12.12.2014, Special Judicial Magistrate

made him request to examine the patient and

accordingly, he examined the patient and put

endorsements (Exh.33 and 34) and the Special

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Judicicial Magistrate recorded dying declaration of

the patient. In the cross-examination, he denied

that the patient was not in a position to speak real

and voluntarily and to help the prosecution, he

deposes false. Thus, on the basis of the evidence of

PW-14 and PW-11, it can be said that on 12.12.2014

between 10.35 pm to 11.05 pm, PW-14 recorded dying

declaration (Exh.40) of the deceased and at the time

of recording said dying declaration, the deceased was

conscious.

17. On perusal of dying declarations Exh.21 and

40, it appears that in Exh.21, the deceased as

referred earlier states that on boaring to harassment

caused to her by her husband and her husband

assaulted her after consuming liquor on 12.12.2014

and as he used to assault her, she committed suicide.

Whereas, in dying declaration Exh.40, it is stated

that there was quarrel between her and her husband

for landed property. The accused beat her by handle

of an axe. The accused used to harass her daily

under the influence of liquor and therefore, she

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committed suicide. The neighbours as well as her

husband came and extinguished fire. Thus, it is seen

that dying declaration (Exh.21), which was prior in

time as it was recorded on 12.12.2014 between 9.30

pm. to 10.00 pm, it is not stated that there was

quarrel between the deceased and her husband on

account of landed property. Thus, there is no

consistency in both the dying declarations (Exh.21

and 40) in respect of quarrel between the deceased

and the accused for landed property. It is true that

in both the dying declarations, it is stated that the

accused used to harass her, after consuming liquor

and therefore, she committed suicide. But, said

statement in both the dying declarations is not

sufficient to state that there was really continuous

harassment to the deceased by the accused and thus,

the accused caused cruelty to the deceased, which was

of such a nature that there was no alternative to the

deceased than to commit suicide, because admittedly,

the deceased was daughter of maternal uncle of the

accused and their marriage was performed about 18

years prior to the incident of sustaining burn to the

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deceased on 12.12.2014 as deposed by her brother and

when it has come on record, particularly, in the

evidence of brother of the deceased that the deceased

was treated at various places to conceive.

Therefore, above-referred both the dying declarations

and solitary incident of 12.12.2014 of beating the

deceased by the handle of an axe, which is not

accepted and believed by the trial Court, are not

sufficient to state that the accused caused

harassment to the deceased, which amounts to cruelty

within the meaning of Section 498-A of the IPC and

thus, accused abetted the deceased to commit suicide.

18. As regards defence of the accused is

concerned, it is his defence that the deceased had no

issue even after 18 years of her marriage. The

deceased was nervous and therefore, she committed

suicide and that he has not abetted her to commit the

same. As referred erlier, Ananda (PW-6) brother of

the deceased has admitted that his sister was treated

at various places to conceive her. Moreover, Maroti

Shinde (PW-5) has stated that he does not know that

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due to non-conception for 11 years, deceased was

nervous. As referred above, it has come in the

evidence of PW-7, who recorded dying declaration

Exh.21 that the deceased told him that immediately,

after she made shouts, the accused came and

extinguished fire. She has also stated the same in

dying declaration (Exh.40). This shows that the

accused tried to save the deceased and he had no

intention to abet the deceased to commit suicide.

Therefore, there is substance in the defence of the

accused that the deceased committed suicide as she

was nervous, as she had no issue, as it appears from

the trend of cross-examination of the prosecution

witnesses.

19. There is presumption as per Section 113-A of

the Evidence Act, as to abetment of suicide by a

married woman. As per said provision, when the

question is whether the commission of suicide by a

married woman had been abetted by her husband or any

relative of her husband and it is shown that she had

committed suicide within a period of seven years from

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the date of her marriage and that her husband or such

relative of her husband had subjected her to cruelty,

the Court may presume, having regard to all the other

circumstances of the case, that such suicide had been

abetted by her husband or by such relative of her

husband. Explanation under said section says that

for the purpose of this section, “cruelty” shall have

the same meaning in Section 498-A of the Indian Penal

Code. In the present case, there is no dispute that

the death of the deceased is suicidal. So also,

there is no dispute that marriage of the deceased

with the accused was performed in 1996 and she

sustained injuries on 12.12.2014 and she died on

15.12.2014. Thus, she died after about 18 years of

her marriage. Therefore, it is not the case that the

deceased committed suicide within a period of seven

years from the date of her marriage with the accused.

So also, as observed above, the prosecution has

failed to prove that the accused caused cruelty to

the deceased by harassing her by beating her, while

under the influence of liquor. The trial Court has

acquitted the accused of the offence of cruelty

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punishable under Section 498-A of the IPC.

Therefore, no presumption as to abetment of suicide

by the deceased under Section 113-A of the Evidence

Act can be drawn in favour of the prosecution and

against the accused in the present case.

20. Considering the facts of the present case

and the facts of the decision in the case of Mohan

Gangaram Kesade (supra) relied upon by the learned

Advocate for the acused, ratio led down in the said

decision is applicable to the present case, to state

that the evidence adduced by the prosecution is not

sufficient to establish the offence of abetment of

suicide under Section 306 of the IPC against the

accused.

21. On perusal of the impugned judgment and

order, after referring the evidence of PWs 3, 4, 5

and 6 and dying declarations Exh.21 and 40, the trial

Court has not accepted the said evidence of the

prosecution to hold that the proseuction has proved

the offence under Section 498-A of the IPC against

the accused. However, the trial Court observed that

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the evidence of PW-6 brother of the deceased is

believable and there is no any other reason to

discard the evidence of the said witness. In

paragraph 19 of the judgment, the trial Court made

certain observations and concluded that the accused

abetted the deceased to commit suicide. Observations

in said paragraph 18, are thus:

“19- If we considered the statement
recorded by P.C. Kendre both the statements
are not inconsisistent. At Exh.32 in dying
declaration she made a statement that on
11-12-2014 her husband called back. He
personally taken her from her parental home
and on that night he under the influence of
liquor was beat her. On next day i.e.
12-12-2014 again he given a blow of wooden
handle of axe under the influence of liquor.
This statement itself suggest that on
11-12-2014 and 12-12-2014 on both the days
this accused was consumed the liquor and
under influence of liquor he has bet to her
wife. These two days incidents between
these two is sufficient evidence of
instigating and beating to commit the
suicide and according to me, the prosecution
has proved both the dying declaration much
is made by learned counsel for accused
Mr.Kuncholikar. As per the evidence of
doctor, the patient was on that day having
high teperature, high blood pressure and
high pulse rate and therefore, she was not
in a positition. There are Catena of
judgment that medical evidence is not
material in absence of medical evidence the
court can rely upon the dying declaration

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but it would be subject to confirmation of
the person who recorded that statement is
material. In this case, police constable
Kendre and Spl.Judicial Magistrate Hamid
clearly stated before the court that they
get confirmed her physical condition is good
and she is able to give a statement before
them, then they recorded the statement and
this evidence of these two witneses is
sufficient to believe in absence of evidence
of doctor and therefore, I am not giving
much weightage to doctor and I am not agree
with the submission of learned counsel for
accused. Therefore, I belive the dying
declarations which was rightly recorded
after due confirmation. There is no
inconsistency it is supported by the brother
of deceased and one Shinde from same village
and regular harassment of beating and habit
of liquor is duly proved by the prosecution
and according to me, the accused Ganesh
Shinde is responsible for the death of his
wife Ranjana and he instigated to commit the
suicide. For sake of argument apart from
the evidence on record if we perused the
conduct of the present accused after the
incident the Ranjana made a statement before
police constable Kendre that he was present
there he thrown some water on her person and
he left the place thereafter, no one has
pointed the presency of accused it means
after throwing water he left the house. The
panch witness who came before the court made
a statement that when they were visited to
the incident spot accused was not present.
The door was closed and which was opened by
the police with panchanama. So far as the
second seizure panch is concerned, that
witness also supported the prosecution case
that when the accused was arrested he
produced one wooden handle of axe in
presence of panchas in polcie station and
that was seized and that handle was

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identified this witness before the court.
Not only that, the panch witness who came
before the court he also identified again
matchstick and burn piece of saree. Both
the panchanamas are duly proved by the
proseuction. In these circumstances, seizure
of wooden handle of axe and the statement of
deceased that on the day of incident i.e.
12-12-2014 the accused had given blow of
handle of axe that was seized by the police
in presence of pancahs. Prior to tht there
is also harassment and beating that is
called as a continuously beating and
harassment and mental torture to the
deceased and he instigate and abet to commit
the suicide if in case he was present on the
spot after the incident he extinguished he
taken the deceased to the hospital then the
fact would be otherwise but no presency of
accused after the incident clearly indicate
that he was not interested to survival of
deceased. Hence, according to me, I conclude
by saying that accused has committed the
offnece and he should be punished. I heard
the accused on the point of sentence.”

22. From the above observations of the trial

Court, it is seen that the trial Court has believed

the statement of the deceased in the first dying

declaration Exh.21 (which is mentioned as Exh.32 in

the judgment) that on 11.12.2014, the accused had

taken the deceased to his house from her parental

house and in the night, under the influence of liquor

beat her and on the next day i.e. on 12.12.2014,

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again the acucsed gave a blow of wooden handle of an

axe to the deceased under the ingluence of liquor and

as such according to the trial Court, these two

incidents are sufficient to state that the accused

instigated the deceased to commit suicide. As

discussed earlier, there is inconsistenncy in two

dying declarations Exh.21 and 40 regarding quarrel

beatween the deceased and the accused on account of

land. So also, in dying declaration Exh.40, the

deceased has not stated consistently with the

contents of dying declaration Exh.21 that in the

night of 11.12.2014, she was assaulted by the accused

under the influence of liquor and on the next day

i.e. on 12.12.2014 in the morning also, she was

beaten by the accused, by the handle of an axe.

Thus, there is no consistency in two dying

declarations regarding act of assaulting to the

deceased in the night, on 11.12.2014 under the

influence of liquor. In the above circumstaances,

when the trial Court did not accept the oral evidence

of PWs 5 and 6 and dying declarations Exh.21 and 40

to attract the offence under Section 498-A of the IPC

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of causing cruelty to the deceased by the accused,

the trial Court erred in accepting the dying

declaration (Exh.21) without properly appreciating

the contents of dying declaration (Exh.40) recorded

by Special Judicial Magistrate (PW-14), immediately

after Exh.21, to hold that the accused has abetted

the deceased to commit suicide, particularly, when

the proseuction case was that the accused harassed

the deceased by beating her under the influence of

liquor, which harassment abetted her to commit

suicide. The observations of the trial Court in

paragraph 19 reproduced (supra) that absence of the

accused after the incident clearly indicates that he

was not interested in survival of the deceased and

hence, the accused has committed the offence under

Section 306 of the IPC are not correct because in

both the dying declarations referred earlier, the

deceased said that the accused put off the fire by

pouring water on her person. This conduct of the

accused very well shows that he tried to save the

deceased. There is possibility of his leaving the

spot after the incident due to fear of an action

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against him at the instance of relatives of the

deceased.

23. For all the reasons discussed above, oral

evidence of PWs 3, 4, 5 and 6 and dying declarations

(Exh.21 and 40) are not sufficient to infer that the

accused harassed the deceased on consuming liquor and

thus, abetted the deceased to commit suicide.

Therefore, I hold that the prosecution failed to

prove the offence under Section 306 of the IPC

agianst the accused beyond reasonable doubt. The

finding of the trial Court that the prosecution has

proved the said offence against the accused is not

correct and sustainable and the same is laible to be

set aisde. Naturally, therefore, conviction and

setence recorded against the accused for the offence

punishable under Section 306 of the IPC is not

sustainable and the same is laible to be set aside

and the accused is entitled to be acquitted of the

said offence by allowing the appeal. In the result

following order is passed.

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Cri.Appeal No.173-18

O R D E R

(1) Appeal is allowed.

(2) The judgment and order dated 04-02-2016 passed
by the Additional Sessions Judge, Biloli in
Sessions Case No.15/2015, convicting and
sentencing the appellant-accused for the offence
punishable under Sectionsection 306 of the IPC is set
aside and the appellant-accused is acquitted of
the said offence.

(3) Appellant-accused Ganesh s/o Bhaurao Shinde, who
is in jail, be released forthwith, if not
required in any other case or crime.

(4) Fine, if paid by the appellant-accused as per
the impugned judgment shall be refunded to him.

(5) In view of disposal of Criminal Appeal
No.173/2018, Civil Application 2964 of 2018
stands disposed of.

(6) Record and proceeding in Sessions Case No.15 of
2015 be sent to the trial court forthwith for
necessary compliance.

(7) Order regarding disposal of muddemal property
is maintained.

(8) Mr.Chetan T.Jadhav, Advocate was appointed to
represent the appellant-accused through Legal
Aid. I appreciate his sincere efforts in
conducting the matter to arrive at a proper
conclusion, I quantify his fees at Rs.7,500/-.

(9) Appellant-accused to furnish bail as per Section
437-A of Code of Criminal Procedure before the
trial court.

[S.M.GAVHANE,J.]

sarowar

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