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Shri Jagannath Trimbak Labade-vs-The State Of Maharashtra on 13 January, 2011

Bombay High Court Shri Jagannath Trimbak Labade-vs-The State Of Maharashtra on 13 January, 2011
Bench: K.U. Chandiwal

1 CRI.APPEAL NO.270 OF 1998

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 270 of 1998

Date of decision:13/1/2011

For approval and signature

HON’BLE MR.JUSTICE K.U.CHANDIWAL

1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ?

2. To be referred to the Reporter or not ? No

3. Whether Their Lordships wish to see No. the fair copy of the Judgment ?

4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ?

5. Whether it is to be circulated to the No. Civil Judges ?

6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ?

Private Secretary

AGP/office/270-98cr.a

2 CRI.APPEAL NO.270 OF 1998

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

CRIMINAL APPEAL NO.270 OF 1998

Shri Jagannath Trimbak Labade,

Age 40 years, r/o Ghari,

Tal.Kopargaon, Dist. Ahmednagar.

…APPELLANT

VERSUS

The State of Maharashtra,

Through P.S.I., G.S.Patil,

Kopargaon, Police Thane,

At & P.O. Tal.Kopargaon,

District Ahmednagar.

…RESPONDENT

Mr.Pradip N.Sonpethkar, Adv., for the appellant.

Mr.N.B.Patil, APP for respondent State.

CORAM: K.U.CHANDIWAL, J.

DATE : 13/1/2011

***

ORAL JUDGMENT:

1. Heard learned Counsel and learned A.P.P. The appeal is is admitted on 14.9.1998. The appellant questions conviction recorded for an offense under Sections 498-A and 306 of IPC in Sessions Case No.297/1996, dt.31.8.1998, by the learned Additional Sessions Judge, Kopargaon. 3 CRI.APPEAL NO.270 OF 1998

2. The matrimonial relations of the accused applicant with deceased Mankarna getting married on 13.2.1996, six months prior to the incident dt.8.7.1996 are not in controversy. Learned Counsel for the appellant submits that in the dying declarations of the victim Mankarna ( Exhs. 22 and 27) in unmistakable terms, she has informed the events as an accidental burns that she has suffered, it should have been believed. The learned Judge erred in holding that death of Mankarna is a case of suicide and then holding appellant/accused abated commission of suicide. Learned Judge erred in not believing evidence of Kakasaheb Ahilaji Pawar, PW No.1, a neighbour who did not support the prosecution. The story and the evidence of the close relatives of Mankarna is afterthought and should not have been believed. No presumption could have been raised in terms of Section 113 of Indian Evidence Act.

3. With the assistance of learned Counsel and learned A.P.P., evidence of each of the witness is read. Kakasaheb Ahilaji Pawar (PW No.1), as stated earlier, is neighbour, submits that the incident has taken place in Gaikwad Vasti. While Mankarna had come to him in a burnt condition, her apparels were burnt, she informed him of having received burns due to flaring up of stove. She desired medical assistance. He disputed prosecution case. From his Police 4 CRI.APPEAL NO.270 OF 1998

statement marked portion “A” was pointed to him wherein he had implicated the accused. He disputed it. Said portion “A” has not been established/proved through the evidence of investigating officer.

4. PW No.3 Machindra is elder brother, PW No.4 Thakubai is the mother, PW No.6 Rambhau is maternal uncle while PW No.7 Tukaram is elder brother of the deceased Mankarna. PW No.2 Sachin proved the panchnama of the hut in question on 9.7.1996. PW No.5 Rajendra Ajmera is money lender with whom ornaments belonging to Thakubai (PW 4) were pawned, by the accused. The post mortem notes are at Exh.10, not disputed by the defense. Thus, the theory projected by the defense is, death of Mankarna is accidental, due to flaring up of stove and no colour of suicidal death can be branded.

5. Evidence of Thakubai, Rambhau, Machindra, the brother, if read together, illustrated that accused was engaged in vending milk, he was already married, however, lost his first wife from whom he had a daughter. The accused, after marriage with Mankarna, had demanded money through Mankarna, for carrying business in milk. Consequent thereupon, the maternal uncle Rambhau donated a cow worth Rs. 10,000/- to the accused, however, the accused was 5 CRI.APPEAL NO.270 OF 1998

not satisfied. These details are proved by two witnesses. Cow was carried by Tukaram and Rambhau. He sent back Mankarna with the step daughter.

6. Learned Counsel for the accused/applicant reiterate that immediately before the death of Mankarna, there was no demand or cruelty or instigation from the accused, making the life of Mankarna miserable, to commit suicide.

7. The evidence of Thakubai and Tukaram consistently point that Mankarna was sent by the accused for compliance of demand. Accused had taken to drinks and was torturing and pressurizing Mankarna. On second occasion, since demand of second cow was not complied with, the trouble was aggravated. Thakubai, since could not comply demand of the accused through Mankarna, for Rs.5,000/-, to console her daughter Mankarna, who was weeping, gave her ornaments, advised Mankarna to satisfy her requirement with the ornaments. The set of ornaments belonging to Thakubai was pawned by the accused with Rajendra Ajmera as he identifies two Dorlas and Top pledged by the accused for the amount of Rs. 2,500/-. The accused has candidly accepted such monetary transaction with witness Rajendra, having pledged the gold ornaments, however, the 6 CRI.APPEAL NO.270 OF 1998

accused canvassed, these ornaments belonged to him. There was no reason for Thakubai to detail in advance about her gold ornaments handed over to Mankarna to satisfy demand of the accused and her identifying the same. The ornaments, in the backdrop of above events, were belonging to Thakubai.

8. Another circumstance against the accused is, his visit to the village three days prior to the incident of burning of Mankarna. This has been so indicated by all the witnesses, the accused forcefully brought back Mankarna to matrimonial home, inspite of such insistence by the witnesses and Mankarna to remain at parental home. The evidence of the witnesses attracts provisions of Section 498-A, clause (b) of IPC which reads as under:

“498A. Husband or relative of husband of a woman subjecting her to cruelty:- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this

section, “cruelty” means-

(a) … …

(b) Harassment of the woman where such harassment is with a view to 7 CRI.APPEAL NO.270 OF 1998

coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her

meet such demand.”

9. The mental torture to Mankarna was, in the given situation, amounting to cruelty. She had already suffered a brunt from her earlier marriage, barely six months thereafter she was to face turmoil and embarrassment in her matrimonial life. She was disgusted and mentally upset by the circumstances and situation created by the accused/appellant. The mindset of the victim also needs to be evaluated. In the dying declarations (Exh.22 and 27), she desired a clean chit to be given to the accused. It was, probably, with a hope to survive, however, she succumbed. Different persons react to situations as per their own understanding and state of environment. The deceased was already a harassed woman, consequently, could not imagine to part company of the accused and hence, the two dying declarations. The learned District Judge rightly did not believe the dying declaration to infer that it was an accidental death.

10. The theory of bursting of stove, as projected by the accused and reflected in the dying declaration also rebels the spot panchnama. Presence or existence of any stove or its 8 CRI.APPEAL NO.270 OF 1998

bursting or sprinkling of kerosene or flames having its impact on the roof or sheets of the wall is not there. Nothing was found on the flooring. On the other hand, the room had a very devastating situation, showing a bottle of 250 ml with kerosene, matchsticks and scattered household articles. The articles were witnessing the situation under which the victim committed suicide. Had it been a case of accidental burn, the victim could have raised hue and cry for assistance. Evidence of PW No.1 Kakasaheb cannot be accelerated and coined in favour of the accused as he betrayed the evidence, rebelling the Police statement.

11. The abetement of a thing as illustrated in Section 107 of IPC, relates to instigation by any person to do a thing and, secondly, engages with one or more other persons in a conspiracy for doing that thing. Explanation to Section 107 of Penal Code states that any wilful misrepresentation or wilful concealment of a material fact which the person is bound to disclose may also come within the sweep of “abetment”. Clause firstly has to be taken into consideration restricting to instigation.

12. The Hon’ble Lordships of the Supreme Court, in the matter of Ramesh Kumar Vs. State of Chattisgarh ( (2001) 9 SCC 618), in three Judge 9 CRI.APPEAL NO.270 OF 1998

judgment have observed that instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation, though it is not necessary that the actual words must be used to that effect or what constitute instigation must necessarily and specifically be suggestive of the consequence. Where the accused had, by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. The Apex Court also cautioned, “A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.”

13. Learned Counsel submits, there is no evidence to show as to what happened soon before the death. Fourteen years have elapsed, and therefore, concession be given to the accused, he has undergone sentence of 105 days, he is coming from poor strata of the society and there is no past criminal record.

Though the accused is coming from poor strata of the society, however, the manner in which precious life of his wife has been taken away, to meet his demands, to accommodate his waywardness in the life to the habit of drinks, does not call for any sympathetic approach. This 10 CRI.APPEAL NO.270 OF 1998

cannot be said to be a contrition or an act of remorse.

14. The accused/appellant desired to satisfy his greed of getting persistent flow of money from the poor parental family of Mankarna. In order to achieve his goal he had sent his daughter with Mankarna to demand. Earlier cow was given, thereafter gold ornaments were given. The greed did not stop and, resultantly, the three days prior to the event, the victim was facing cruelty at the behest and hands of the accused. The harassment caused to the deceased, beating caused to her was for the purpose of coercing her parental family to meet the demands which certainly would be a cruelty, punishable under Section 498-A of IPC. The observation of the learned District Judge, on this count, is taking care of the evidence in its entirety. The conviction of the accused/appellant, in the set of above facts, cannot be said to be erroneous or contrary to the legal position. Appeal dismissed. The accused to surrender upto 27th Jan.,2011. Failure to do so, to face consequences.

(K.U.CHANDIWAL)

JUDGE

AGP/270-98cr.a

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