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Mithailal Jagram Gupta-vs-State Of Maharashtra on 17 December, 2002

Bombay High Court Mithailal Jagram Gupta-vs-State Of Maharashtra on 17 December, 2002
Equivalent citations:2003 (2) ALD Cri 35, 2002 BomCR Cri
Author: Cri.Lj.
Bench: V Tahilramani

JUDGMENT

V.K. Tahilramani, J.

1. The appellant has preferred this appeal through jail against the judgment and order dated 17-5-2002 passed by the IIIrd Ad-hoc Additional Sessions Judge, Thane. The said judgment and order is passed in Sessions Case No. 397/99. By the said judgment and order, the appellant came to be convicted under Section 498A, Indian Penal Code and sentenced to suffer R.I. for 3 years and fine of Rs. 3000/- i.d. S.I. for one year. He was also convicted for the offence punishable under Section 306 Indian Penal Code and sentenced to suffer R.I. for 5 years and fine of Rs. 5000/- i.d. S. I. for one year. Both the sentences to run concurrently.

2. It is the prosecution case that the appellant was married to Pushpa (deceased) on 26-10-1998. After the marriage, the appellant started suspecting the character of his wife and hence, he started ill-treating her and harassing her. This fact was disclosed by Pushpa to the complainant who is her brother i.e. Kamlakant Gupta (PW 1) as well as PW 2 Madhuri Gupta who is the wife of Kamlakant Gupta.

On 20-2-1999, the appellant informed the complainant on the phone to take back Pushpa immediately as he is not willing to co-habit with her. The complainant and his wife and some other relations went to the house of the appellant. At that time, the appellant asked them to take back Pushpa with them as she used to leave the house without his consent and she might have been wandered with someone as she had slept with someone prior to his marriage with Pushpa. Complainant and others tried to convince the accused and they came back to their house leaving Pushpa at the house of the appellant. Some days thereafter, the complainant was informed that Pushpa committed suicide in the house of appellant by hanging herself. When the complainant, his wife and others reached the house of the appellant, panchnama was going on. It appears that on the night of the incident i.e. 20-2-1999 itself, the accused had informed about the death of wife by lodging report on the basis of which A. D. R. No. 16/99 had been registered. The concerned I.O. recorded the statement of the relatives of the deceased on 21-2-1999. On the basis of the report of the complainant, C.R.No. I-59/99 came to be lodged for the offence punishable under Sections 498A and 306 Indian Penal Code. The appellant came to be arrested on 23-2-1999.

3. Thereafter, in due course, the trial commenced. The charge came to be framed under Sections 498A and 306, Indian Penal Code and at the end of the trial, the appellant came to be convicted under Sections 498A and 306, Indian Penal Code as stated above. Hence, this appeal.

4. I have heard both sides at length and perused the evidence pertaining to this case. The prosecution has examined the complainant, (PW 1) who is the brother of the deceased. Kamalakant has specifically stated that his sister Pushpa was married to the accused in the year 1998. After the marriage, the accused started doubting the character of Pushpa and he used to beat Pushpa on that count and he used to ill-treat her. He has categorically stated that his sister Pushpa informed him that accused doubted her character and on that count, he beat her. He has further stated that he received phone call from the accused informing him that he would not cohabit with Pushpa. When they went to the house of the appellant, the appellant stated that they should take away Pushpa with them and that he would not cohabit with her. The accused had stated that he doubted the character of Pushpa, however, the complainant, his wife and others tried to convince the appellant and Pushpa and they came back leaving Pushpa at the house of the appellant. A few days thereafter, he received a call from the appellant informing him that Pushpa had committed suicide by hanging herself. Thereafter, he lodged complaint (Exhibit 1). Thus, this witness has specifically stated that the appellant was doubting the character of Pushpa and he used to ill-treat her and beat her on that count. Evidence of this witness on the point of cruelty is corroborated by the evidence of PW 2 Wife Madhuri Gupta. I find both their evidence to be credible and trustworthy on the point of the cruelty meted out by the accused person against Pushpa. The accused used to doubt the character of his wife and he used to even beat her on that count. If the husband without any reasonable ground repeatedly expresses doubts about the moral character of his wife and beats her on that ground, it would certainly amount to cruelty. It has been observed in the decision of this Court reported in 1995(2) Mh.L.J. 113 = 1995 Cri.LJ. Sarojakshan Nayar v. State of Maharashtra as follows :–

“The expression ‘cruelty’ takes within its sweep both mental and physical agony and torture. The concept of cruelty varies from place to place and individual to individual and according to the social and economic status of the person involved. The question whether the act complained of was an act of cruelty has to be determined from the whole fact and relationship between the parties. The cultural and temperamental state of life among them are factors from where the cruelty has to be inferred and will depend on the facts of each case. The expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. Therefore, to decide the question of cruelty the relevant factors are the matrimonial relationship between the husband and wife, their cultural and temperament status in life, state of health, their interaction in their daily life which dominate the aspect of cruelty.”

In the present case, the act of the husband in time and again expressing doubts about the character of his wife and beating her on that count would certainly amount to cruelty. Thus, the trial Court was entirely justified in convicting the accused under Section 498A of Indian Penal Code.

5. However, as far as the offence under Section 306, Indian Penal Code is concerned, the learned Advocate who has been appointed for the appellant, contended that the conviction of the appellant under Section 306, Indian Penal Code is not proper. According to her, even if it is assumed that the deceased was subjected to cruelty by the appellant, the offence of abetment under Section 306 of Indian Penal Code cannot be made out unless and until there is evidence on record to show that the appellant had in any way instigated the deceased to commit suicide. The learned Advocate for the appellant had brought to my notice that PW 1 who is the brother of deceased has stated that the deceased Pushpa was suffering from mental attacks and it has come on record that Pushpa was suffering from mental attacks since 3 years prior to the incident and she was being treated at the Mental Hospital, Thane for the same. Hence, she has contended that it is very much possible that due to the mental imbalance, the deceased committed suicide. The learned Advocate for the appellant/accused has further stated that the last incident in this case has taken on the night of “Mahashivratri” and it was only some days thereafter that Pushpa committed suicide. Nothing has come on record that in the intervening period, the accused had stated or done anything so as to instigate Pushpa to commit suicide. She has contended that mere harassment or cruelty to the wife is not sufficient to lay the charge of abetment under Section 306 of Indian Penal Code unless there was intentional or actual abetment by the accused to commit suicide.

6. I find considerable merit in the above contention of Ms. Shete. Abetment is not defined under Section 306, Indian Penal Code and therefore, one has to take the aid of Section 107 of Indian Penal Code. In order to prove the charge of abetment, the accused must have instigated the person to do a thing, in this case, to commit suicide. The prosecution has to prove that the accused intentionally aided the deceased to commit suicide. Neither the learned A. P. P. has been able to show me anything in the evidence on record in that behalf nor could I find anything from the record of the case. Neither by any words or by action or conduct, the appellant is alleged to have instigated, aided or abetted the deceased to commit suicide. The learned trial Judge simply seems to have inferred the abetment of suicide on the basis of the evidence on record about the frequent comments made by the appellant in relation to the character of Pushpa. Looking to the fact that the last incident had occurred some days prior to the death of Pushpa and looking to the fact that Pushpa was suffering from mental illness, in my view, it cannot be conclusively said that the offence of abetment of suicide as envisaged under Section 306 of Indian Penal Code is made out against the appellant.

7. In the aforesaid circumstances, in my opinion, the conviction under Section 306 of Indian Penal Code and the sentence recorded thereunder by the trial Court against the appellant is liable to be quashed and set aside.

8. In the result, the appeal is partly allowed. The order of conviction and sentence recorded by the Sessions Court under Section 306, Indian Penal Code in Session Case No. 397/99 is quashed and set aside. The conviction and sentence of the appellant under Section 498A of Indian Penal Code is confirmed. The appellant is in jail and he shall serve out his sentence.

In the result, appeal is partly allowed.

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