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Ou vs C on 16 February, 2009

Bombay High Court Ou vs C on 16 February, 2009Bench: V.R. Kingaonkar

(1)

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 154 OF 1997

rt

Rajendra s/o Dongar Patil,

ou

R/o Shivneri Nagar,

Chalisgaon, Dist. Jalgaon. APPELLANT VERSUS

C

The State of Maharashtra RESPONDENT …..

Mr. N.K. Kakade, advocate for the appellant. Smt. S.S. Autade, A.P.P. for respondent/State. …..

h

CORAM: V.R. KINGAONKAR, J.

ig Date: 16th February, 2009 ————————-

H

ORAL JUDGEMENT :

1. Challenge in this appeal is to judgement y

rendered by learned IIIrd Additional Sessions Judge, ba

Jalgaon, in Sessions Case No. 289/1994 whereby the appellant came to be convicted for offence punishable under section 306 and 498A of the I.P. Code and has om

been sentenced to suffer rigorous imprisonment for seven (7) years and to pay fine of Rs. 3000/-, in default to suffer simple imprisonment for three (3) B

months on first count and to suffer rigorous imprisonment for three (3) years and to pay fine of Rs. 2000/-, in default to suffer simple imprisonment for two (2) months on the second count, with further direction that both the substantive sentences would ::: Downloaded on – 09/06/2013 14:21:21 ::: (2)

run concurrently.

2. Out of the four (4) accused tried before the Sessions Court, the appellant was original accused No. rt

2 and is husband of deceased Meenakshi. The other ou

three (3) accused, who are his father, sister and younger brother were acquitted by the trial Court. C

3. Indisputably, the marriage of deceased Meenakshi and the appellant was performed on 27th January, 1991. Her father is inhabitant of Chalisgaon h

and the family house of the appellant is situated in the same

ig

town in a locality called “Shivnerinagar”. Soon after the marriage, Meenakshi went to reside with H

the appellant in his common house shared by himself, his father, younger sister and brother. At the time of marriage, Meenakshi was student of final year of y

Arts faculty in the local college. The appellant was ba

a lecturer. The final year examination of Meenakshi was scheduled in the month of March, 1991 after 2/3 om

months of the marriage.

4. The prosecution case, as unfolded before the trial Court, is that Meenakshi was subjected to B

ill-treatment in the matrimonial home on account of suspicion raised about her premarital relations with someone else. The appellant was instigated by his brother and sister about her infidelity. He had ::: Downloaded on – 09/06/2013 14:21:21 ::: (3)

branded her with burning buts of cigarette. She made complaints to her father about the ill-treatment after about a couple of months of the marriage. Her father, however, gave a word of advice to her and sent her rt

back to reside with the appellant and his family ou

members. After a short duration of couple of months, there was a religious function in the family house of the appellant to commemorate the death anniversary of C

his brother. Then Meenakshi complained to her mother that he attempted to throttle her by neck. She was taken away from his house. She resided with her h

parents for few months thereafter.

ig

5. The appellant and his father visited house of H

parents of Meenakshi and urged to send her back to their house. Her father called for a meeting at his residence. On 17-11-1991, the appellant gave an y

undertaking that he will not ill-treat, trouble and ba

harass Meenakshi any further. In presence of witnesses, including Gambhirrao (PW4), he executed an om

undertaking on a stamp paper of Rs. 10/- (Exh-29) to give her good treatment thereafter. The parents of Meenakshi thereafter sent her with the appellant for cohabitation. She suffered ill-treatment at his hand B

inspite of such undertaking. He neglected her. She felt dejected and isolated.

6. The prosecution alleges that as a result of ::: Downloaded on – 09/06/2013 14:21:21 ::: (4)

unbearable matrimonial cruelty, Meenakshi committed suicide in the matrimonial home by hanging herself with a rope inside a room on 03-01-1994 while she was alone in the house. A neighbour reported the incident rt

to her father in the same noon. Thereupon, her father ou

visited residential house of the appellant and his family members. Her father – Bhimrao (PW1) noticed that there was none inside the house. Through a C

window, he saw that dead-body of Meenakshi was hanging inside a room. He immediately went to the Police Station. He gave report (Exh-30). The police visited h

the residential house. The dead-body of Meenakshi was found hanging

igto a rope in a room which was closed from inside. The tongue was protruding out of the H

mouth and apparently, she had committed the suicide when none of the family members was present in the house. A panchanama was drawn. After the inquest, y

the dead-body of Meenakshi was sent for post-mortem ba

examination. The post-mortem examination report revealed that the death occurred due to asphyxia om

caused by strangulation. On basis of material collected during the course of investigation, the appellant, his father, younger sister and brother were chargesheeted for the offences punishable under B

section 498A and 306 of the I.P. Code.

7. The appellant denied truth into the accusations. His defence was of simple denial. He ::: Downloaded on – 09/06/2013 14:21:21 ::: (5)

suggested that Meenakshi was a supersensitive young girl and was unable to bear his inability to arrange for separate residence at Mumbai, it was suggested that she was depressed on account of abortion rt

experienced by her. It was further submitted that the ou

appellant was fair enough to willingly execute an undertaking (Exh-29) on 17-11-1991 and thereafter, he did not give any kind of ill-treatment to Meenakshi. C

He, therefore, sought acquittal from the charge.

8. At the trial, the prosecution examined in all h

eleven (11) witnesses in support of its case. The learned

ig

Additional Sessions Judge placed heavy reliance on the suicide notes found near the deadbody H

of Meenakshi which were seized soon after the police visited the residential house after receiving the F.I.R. (Exh-30). The learned Additional Sessions y

Judge gave much importance to the suicide notes ba

(Exh-31 and Exh-32), which are proved to have been written by deceased Meenakshi, one addressed to the om

appellant and another to her father. The learned Additional Sessions Judge held that the suicide notes indicated continuity of the harassment and ill-treatment meted out to deceased Meenakshi at hands B

of the appellant. Hence, he was convicted and sentenced as described hereinabove.

9. Mr. Kakde would submit that the learned ::: Downloaded on – 09/06/2013 14:21:21 ::: (6)

Additional Sessions Judge committed patent error while ignoring the letters (Exh-35 and Exh-36) written by deceased Meenakshi to the appellant, one after another, just three (3) days before the incident. He rt

would submit that the evidence on record is not ou

properly appreciated by learned Additional Sessions Judge. He contended that there is no tangible evidence to prove that Meenakshi was subjected to C

matrimonial cruelty after midst of November, 1991. The prior incidences of suspicion expressed by the appellant about her character and the ill-treatment on h

such count were the stale stories. He argued that the appellant has

ig been convicted on basis of illogical conclusions and surmises. He, therefore, would submit H

that the charge of cruelty and abetment to suicide of Meenakshi is not proved against the appellant. Consequently, he urged to allow the appeal. Per y

contra, learned A.P.P. Smt. Autade supports the ba

impugned judgement.

om

10. Crucial points for determination are as stated below :

(i) Whether it is proved beyond reasonable realm B

of doubt that the appellant subjected deceased Meenakshi to such degree of matrimonial cruelty by his willful conduct which was of such a nature as is likely to drive her to ::: Downloaded on – 09/06/2013 14:21:21 ::: (7)

commit suicide ?

(ii) Whether it is proved by the prosecution beyond reasonable realm of doubt that by his acts of rt

commission or omission, the appellant aided ou

the suicide of Meenakshi and thereby abetted the same ?

C

11. Before I embark upon scrutiny of the prosecution evidence, it may be made clear that there was no unlawful demand made by the appellant to h

deceased Meenakshi. The background facts which emerge ig

from the record are that the appellant was required to change the place of working from time to time. He was H

employed as lecturer in a private Institution at Jalgaon for some period. He used to daily commute to Jalgaon from his native place for attending the work. y

Initially, at the time of marriage, he was employed in ba

an educational institution at Bhiwandi. He left the said service and joined Rashtriya Vidyalaya, om

Chalisgaon as a junior lecturer. About 4/5 months before the incident, he had accepted employment in a well-known Institute called “SASMIRA’ at Worli (Mumbai). It is explicit from the record that he was B

unable to get residential accommodation at Mumbai and therefore, Meenakshi was residing in the common house at Chalisgaon with her father-in-law and sister-in-law. The father of the appellant was ::: Downloaded on – 09/06/2013 14:21:21 ::: (8)

working as a schoolteacher and was required to be away from the house though he used to commute to the place of working from Chalisgaon. Needless to say, since about four (4) months before the incident, Meenakshi rt

was rather lonely in the house.

ou

12. So far as the charge of matrimonial cruelty is concerned, the prosecution relied upon versions of C

Bhimrao (PW1) and Smt. Satyabhama (PW5). The prosecution also examined Manohar (PW6) and Ku. Archana (PW7) in order to prove that during first h

couple of months of the consortium, the appellant had entertained a

igsuspicion against Meenakshi about her premarital intimacy with someone else. The version of H

Bhimrao (PW1) would show that somewhere in the month of March/April, 1991, Meenakshi visited his house for the first time after the marriage. She appeared y

nervous. On his inquiry, she told him that her ba

brother-in-law poured poison in the ears of her husband about her character and, therefore, she was om

being troubled by the appellant and his relatives in the matrimonial home. She further narrated to him that the appellant had assaulted her. He states that she informed him that the appellant used to drink B

liquor and used to brand her by means of cigarette butts. This part of his testimony does not figure in the recitals of the FIR (Exh-30). He states that he had consoled her at that time and also told her ::: Downloaded on – 09/06/2013 14:21:21 ::: (9)

father-in-law to ensure that such complaints be not repeated.

13. The version of Bhimrao (PW1) further shows rt

that Meenakshi then narrated to him that her ou

brother-in-law used to say that sufficient dowry was not given in the marriage and the arrangements were also improper. However, this was not the grievance C

against the appellant. As stated before, the brother-in-law of the appellant is acquitted and no appeal against such acquittal is preferred. The h

version of Bhimrao further reveals that Meenakshi used to

ig

visit his house at interval of one (1) or two (2) months. She narrated to him that the ill-treatment H

was increased. It was only when the appellant executed an undertaking (Exh-29) to behave properly with her and not to give any ill-treatment to her and y

after a common meeting dated 17-11-1991, she was sent ba

with him. The versions of Manohar (PW6) and Ku. Archana (PW7) would show that in the initial period of om

2/3 months after the marriage, the appellant had inquired with them about character of Meenakshi. Both of them vouched that she was of good character. The suspicion, whatsoever, which was in the mind of the B

appellant was no more in existence. Otherwise, he would not have executed the undertaking (Exh-29) on 17-11-1991 in presence of the respectable persons including Gambhirrao (PW4). The appellant and his ::: Downloaded on – 09/06/2013 14:21:21 ::: (10)

father made efforts to fetch Meenakshi back to the matrimonial house. They had taken initiative and repeatedly requested her father to send her back. They had assured that she will be given good rt

treatment.

ou

14. The versions of Bhimrao (PW1) and Smt. Satyabhama (PW5) do not show that there was any C

serious complaint made by Meenakshi against the appellant after the midst of November, 1991 till the incident. Though Gambhirrao (PW4) is common relative h

and is brother-in-law of Bhimrao (PW1), yet, there is no

ig

whisper in his deposition about the continuity of the ill-treatment to Meenakshi after the common H

meeting dated 17-11-1991. If there would have been continuous ill-treatment to Meenakshi after midst of November, 1991, then Gambhirrao (PW4) could have y

received information about the same. His silence in ba

this behalf is quite eloquent. The version of Smt. Satyabhama (PW5) would show that she attributed the om

matrimonial cruelty to the brother and sister of the appellant. She narrated that Meenakshi had informed her that the appellant used to break her bangles and was branding her with burning cigarette butts. This B

part of her version is not corroborated by the recitals of the FIR (Exh-30). She was unable to disclose as to when Meenakshi told her about such incidence of branding her person by cigarette and ::: Downloaded on – 09/06/2013 14:21:21 ::: (11)

breaking of her bangles. So also, the recitals of the FIR do not show that on the occasion of death anniversary of his mother (Shradha), the appellant had attempted to throttle Meenakshi by neck. It appears rt

that Smt. Satyabhama exaggerated about the reported ou

matrimonial cruelty.

15. The versions of Bhimrao (PW1) and Smt. C

Satyabhama (PW5) do not show specific instance of matrimonial cruelty meted out to Meenakshi at hands of the appellant after midst of November, 1991 till h

03-01-1994. It is not that Meenakshi was residing at any other

ig

place to which her parents could have no easy access. They were all residing in the same town H

and, therefore, it was quite probable for the parents to know about her family life. It is an admitted fact that Meenakshi was under medical treatment of DW1 Dr. y

Smt. Deore. She had suffered an abortion. The ba

cross-examination of Bhimrao (PW1) reveals that Meenakshi was under mental stress. He admits, om

unequivocally, that the two (2) letters (Exh-35 and Exh-36) are in the hand of deceased Meenakshi. He also admits that the postal envelope (Exh-37) bears address of the appellant which is in the handwriting B

of deceased Meenakshi. It is manifestly clear that she wrote both these letters (Exh-35 and Exh-36) in the same night, one after another. These letters also bear time of writing the same. The first letter ::: Downloaded on – 09/06/2013 14:21:21 ::: (12)

(Exh-35) was written at 10.15 p.m. whereas another letter (Exh-36) was written at 8.30 p.m. Both these letters have been practically kept aside by the learned Additional Sessions Judge while evaluating the rt

evidence of prosecution.

ou

16. The recitals of letter (Exh-36) would make it amply clear that Meenakshi was totally desirous to C

join the company of the appellant at Mumbai. She candidly expressed that she loved him from bottom of the heart. She referred him as ‘king’ (Raje) and h

urged him to secure residential accommodation at the earliest.

ig

She further informed him that she was bored at Chalisgaon. She also informed him that she desired H

to have children. Similar is the tenor of the letter (Exh-35). The recitals of the letter (Exh-35) would show that she was a caring wife. She informed the y

appellant that he shall seek accommodation in the ba

Worli area. She had expressed concern for him. She had asked him to return with a key of the room. The om

tenor of the said letter also shows that she was unable to bear loneliness in the house and particularly due to absence of any child. B

17. There is absolutely nothing on record as to what had happened in between 30th December, 1993 and 3rd January, 1994 which transformed the mindset of Meenakshi to diagonally opposite direction within ::: Downloaded on – 09/06/2013 14:21:21 ::: (13)

period of those three (3) days and she decided to end her life at the beginning of the new year for which she had given best wishes to her husband. The suicide note (Exh-31) would show that she was unable to bear rt

the loneliness. She was unable to bear his absence ou

from the house. She always wanted him to be near her. The elaborate suicide notes addressed by her would show that she had confessed that she had lost mental C

health due to the circumstances including his being away from her. She again expressed that she loved him and desired to cohabit with him. There is a h

significant note at the end of the letter (Exh-31). ig

She had drawn a small caricature which shows her dream of a small house wherein she and the appellant with a H

son and a daughter are living. At the bottom of caricature, she wrote “———————————————– y

—————————————————-” ba

(You were saying not to obtain room and hence, it was difficult for me to live. I alone know what I om

suffered.)

18. Considering the tenor of the mindset of B

Meenakshi, it can be gathered that she wanted to reside with the appellant. She always desired his company. She was disgusted with the boredom suffered by her in the house at Chalisgaon. The circumstances ::: Downloaded on – 09/06/2013 14:21:21 ::: (14)

would show that she was unable to appreciate his practical difficulties. He used to tell her that residential accommodation was not easily available at Mumbai. He used to come at Chalisgaon as and when it rt

was possible for him. There was no purposeful ou

separation due to his specific conduct as such. Sometimes, the social circumstances are responsible for such kind of misery. The dreams of the newly C

married young woman were frustrated because her husband was unable to secure accommodation in the metro city. She was forced by the circumstances to h

live away from the husband whom she loved in depth. Her

ig

emotional level of depression took the toll. The suicide note (Exh-32) addressed to her father would H

show that she wanted to forgive the appellant.

19. It is not necessary to elaborately discuss the y

remaining part of the evidence. Suffices to mention ba

here that the fact that Meenakshi died suicidal death is duly proved by Dr. Chavan (PW10). The Apex Court om

in “Rajbabu

Rajbabu and another v. State of M.P.” 2008 ALL MR (Cri) 2894 (S.C.),

(S.C.) held that the unhappy notes of the deceased by itself could not be treated as sufficient to attribute charge of abetment of her suicide to the B

accused. The Apex Court in “Ramesh Ramesh Kumar v. State of Chhattisgarh” AIR 2001 S.C. 3837, 3837 held that letter

written by deceased wife to her father, asking him to return the ornaments given for repairs and also ::: Downloaded on – 09/06/2013 14:21:21 ::: (15)

informing that she was beaten and pushed out of house due to her forgetful nature, could not be treated as demand for dowry. The Apex Curt observed : rt

“Instigation is to goad, urge forward, ou

provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words C

must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. h

Yet a reasonable certainty to incite the ig

consequence must be capable of being spelt out. The present one is not a case where the H

accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with y

no other option except to commit suicide in ba

which case an instigation may have been inferred. A word uttered in the fit of anger om

or emotion without intending the consequences to actually follow cannot be said to be instigation.”

B

20. So also in “Sohan

Sohan Raj Sharma v. State of Haryana” 2008 CRI.L.J. 2569, 2569 the Apex Court succinctly clarified the necessary ingredients of Section 306 of the I.P. Code. It is held that some ::: Downloaded on – 09/06/2013 14:21:21 ::: (16)

cruel or insulting behaviour of the accused could not be taken as an act of abetting to the suicide. The abetment involves a mental process of instigating a person or intentionally aiding that person doing of a rt

thing. In the present case, it is not proved at all ou

that the appellant by any act or omission, instigated, goaded or aided the suicide of deceased Meenakshi. The appreciation of the evidence by the trial Court is C

faulty, unreasonable and liable to be interfered with in the peculiar fact situation obtained in the present case.

h

21. In

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the result, the appeal is allowed. The impugned judgement of conviction and sentence is set H

aside. The appellant is acquitted of the charge for offences punishable under section 498-A and 306 of the I.P. Code. His bail bonds be deemed as cancelled. y

The fine amount, deposited by him, if any, shall be ba

refunded to him.

om

[ V.R. KINGAONKAR ]

JUDGE

B

NPJ/CRIAPL154-97

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