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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
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Cri.Appeal No.173-18any 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
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Cri.Appeal No.173-18declarant 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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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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