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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.589 OF 2003
The State of Maharashtra,
Through Namdev s/o Vithalrao Jadhav,
Age-34 years, R/o-Karewadi, Tq-Parali,
Through Police Station, Ambajogai,
Dist-Beed.
…APPELLANT
VERSUS
1) Sharad s/o Dashrath Sawre,
Age-30 years, Occu:Agriculture,
R/o-Chanai, Tq-Ambajogai,
Dist-Beed,
2) Dashrath s/o Vitthalrao Sawre,
Age-55 years, Occu:Agriculture,
Resident-As Above.
…RESPONDENTS
…
Mr.A.D. Namde, A.P.P. for Appellant.
Mr.Satej S. Jadhav Advocate for Respondent
Nos.1 and 2.
…
CORAM: S.S. SHINDE, J.
DATE : 8TH MAY 2017
ORAL JUDGMENT :
1. This Appeal is directed against the
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Judgment and Order passed by the Ist Ad-hoc
Additional Sessions Judge, Ambajogai in Session
Case No.83 of 2001, decided on 30th May, 2003.
2. The brief facts of the prosecution case
are as under:-
A) PW-4 Namdev Vitthalrao, Jadhav, resident of
village Karewadi, Tq-Parali-Vaijnath lodged First
Information Report alleging therein that deceased
Smita was his sister. Her marriage was solemnized
with accused No.1 before five years from
registering the First Information Report. She had
begotten one child out of the said wed-lock. She
was properly treated and stayed happily for six
months in the matrimonial house. Thereafter
accused Nos.1 and 2 started ill-treating and
beating her, and harassing on the count of
domestic reasons. It is alleged that accused used
to ill-treat Smita to bring the money to satisfy
the domestic expenses. Whenever Smita used to
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visit the parents house, she used to disclose
about the ill-treatment and harassment at the
hands of the accused.
B) It is further alleged that in the summer
season before the death of Smita, when the
informant went to Alandi to do the work as mason
(Mistri), Smita and accused No.1 came at Alandi
for doing the labour work. They stayed their for 5
to 6 days. Thereafter accused demanded Rs.7,000/-
to satisfy domestic expenses. Accused No.1
threatened the informant that in case said amount
is not paid, he will kill his wife Smita by
burning. Accused No.1 in presence of the informant
at Alandi, beat Smita on account of non payment of
Rs.7000/- by the informant. Due to fear of accused
No.1, informant paid Rs.2,000/- to him. Thereafter
accused No.1 with Smita left Alandi and went to
Chanai. Accused No.1 sold golden ornaments of
Smita and started beating her after consuming the
liquor.
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C) It is further alleged that 2 to 3 days
before Rakhi Pournima, brother of the informant,
namely Pandurang had gone to Chanai to meet Smita.
In his presence accused beat Smita and asked
Pandurang to pay remaining amount and refused to
send Smita to the parents house. Before the said
incident, informant and some villagers from his
village, had gone to Chanai and persuaded accused
No.1 not to ill-treat or harass Smita but he
continued the ill-treatment and harassment to
Smita.
D) It is further alleged that on 4th August,
2001, one jeep came to Karewadi from Chanai and
one person from the said jeep informed that Smita
is no more. Thereafter informant and his family
members rushed to Ambajogai and when came to the
hospital, they came to know that Smita consumed
poison at about 4.00 p.m. on 4th August, 2001 due
to ill-treatment by both the accused and died at
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about 5.30 p.m.
3. On 5th August, 2001, the informant lodged
First Information Report at Police Outpost at
S.R.T.R. Hospital. Said crime was registered and
after investigation charge-sheet was filed. After
framing charge, full-fledged trial was conducted
and the Respondents were acquitted. Hence this
Appeal filed by the State.
4. Learned A.P.P. appearing for the State
invites my attention to the evidence of PW-4
Namdev Jadhav (informant), PW-5- Pandurang Jadhav
(brother of informant) and PW-6 Vitthal Jadhav
(father of informant) and submits that if their
evidence is read in its entirety, then it
unequivocally indicates that there was ill-
treatment and harassment to Smita at the hands of
the accused. It is submitted that evidence of PW-3
Dr. Kachre, Medical Officer clearly shows that
Smita committed suicide due to instigation and
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abetment by accused No.1 – Sharad Dasharath Sawre.
He submits that there was no reason for Smita to
commit suicide other than ill-treatment and
harassment at the hands of the accused. Therefore,
he submits that the Appeal may be allowed.
5. On the other hand, learned counsel
appearing for Respondents/accused, relying upon
the findings recorded by the trial Court, submits
that plausible view has been taken by the trial
Court. He submits that there was no endeavour on
the part of PW-4, PW-5 or PW-6 to lodge First
Information Report when they noticed alleged ill-
treatment and harassment or beating to Smita
before her death. It is only after she committed
suicide, First Information Report is lodged. He
submits that there was delay in lodging the First
Information Report. He also invites my attention
to the evidence of DW-1 Usha Balasaheb Survase and
submits that she was residing in the vicinity of
house of the accused at Chanai and she has
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categorically deposed that there was no any
abetment/ instigation or act within proximity of
alleged commission of suicide by Smita. Therefore,
he submits that since the plausible view is taken
by the trial Court, this Court may not cause
interference in the order of acquittal.
6. Upon careful perusal of the evidence of
PW-3 Dr. Rajesh Vijaykumar Kachre, in his evidence
he stated that cause of death of Smita was organo
chloro insecticides (Endulsulpan) and accordingly
he had issued final cause of death certificate.
Upon perusal of his findings, death of Smita was
suicidal and the prosecution case also is that
Smita committed suicide. PW-3 in his evidence
stated that there was no external injury except
intra cardiat injection marks on the chest. On
internal examination of head, the brain was
congested and odematous. It has come on record
that accused No.1 attempted to commit suicide by
consuming poisonous substance and on same day
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after accused No.1 consumed poison, Smita also
consumed poison. In respect of this, there is
discussion by the trial Court in Para 40 of the
impugned Judgment. Said discussion is on the basis
of Exhibit 37 and 38.
7. Upon careful perusal of the evidence of
PW-4 Namdev, it is true that there are allegations
of ill-treatment, harassment and occasional
beating by accused No.1 to Smita. However, in his
cross-examination he stated that though he stated
to the concerned Police Officer that he brought
Smita to Diwali at parents house and she told him
about the demands at the hands of the accused,
those facts have not been mentioned in the First
Information Report. He has specifically stated
that, he did not say to police that he had gone to
his sister at the time of Rakhi Pournima, and
accused No.1 demanded money. Though it is stated
in the deposition before the Court that accused
No.1 threatened Namdev that in case amount of
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Rs.7,000/- is not given to accused No.1 he will
kill Smita, even the said allegations are not
mentioned in the First Information Report.
Further, the allegations of beating at the hands
of accused No.1 to Smita, are also missing in the
First Information Report. Therefore, the trial
Court, so as to find out the truthfulness of the
statement of PW-4 Namdev before the Court, perused
the contents of the First Information Report and
found that, allegations of extending threat or
beating to Smita by accused No.1 are not stated in
the First Information Report. Upon careful perusal
of evidence of PW-5 – Pandurang and PW-6 Vitthal,
it appears that their evidence is hear-say. PW-6
Vitthal, after coming to know that Smita died,
went from Alandi to Ambajogai. It is true that
delay in lodging First Information Report itself
is not relevant factor in every case. However, in
the facts of the present case, it has come on
record that after alleged incident when PW-4 to
PW-6 found that Smita is no more, they discussed
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and deliberated with each other and thereafter
belatedly the First Information Report is lodged
on 5th August, 2001. Therefore, in the facts of
the present case, it cannot be said that delay in
lodging the First Information Report was not fatal
to the prosecution case. Admittedly, marriage of
Smita was solemnized with accused No.1 five years
prior to date of alleged incident. During said
period of five years, no complaint/ First
Information Report was lodged either by PW-4, PW-5
or PW-6. If really there was alleged ill-treatment
started after six months of marriage of Smita with
accused No.1, in that case natural conduct of the
relatives/ PW-4 to PW-6 would have been to lodge
First Information Report or complaint, as the case
may be. It is only after the alleged incident of
suicide by Smita, First Information Report was
lodged by PW-4. Therefore, the alleged ill-
treatment or harassment or as per the version of
PW-4, alleged beating at the hands of accused
No.1, would be remote to connect the alleged
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incident of commissions of suicide by Smita. It
further appears that out of the wed-lock of Smita
with accused No.1, the couple was blessed with one
child and therefore the allegations of ill-
treatment, harassment or beating, belatedly after
more than four years from starting point of
alleged harassment and ill-treatment, have rightly
been disbelieved by the trial Court.
8. It would be relevant to make reference to
the evidence of DW-1 Usha Balasaheb Survase. In
her deposition, she stated that she knew accused
No.1 and Smita since they were residing as her
neighbours. She noticed that prior to the said
incident couple was residing happily. She further
stated that first accused No.1 – Sharad Dashrath
Sawre consumed the poison and thereafter when
accused No.1 was taken to the hospital, Smita
consumed the poison. Thereafter DW-1 informed
about the said incident to one Sarjerao and
others. She further stated that her relations with
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Smita were cordial and good. On perusal of her
cross-examination, her version in the examination-
in-chief is not shattered. Therefore, her evidence
assumes importance in as much as, she has stated
that actual incident of consuming poison by
accused No.1 took place first and at that time she
was present in her house and thereafter also she
was present there. She has not stated about any
ill-treatment, harassment or beating at the hands
of accused No.1 to Smita prior to the incident of
consuming poison by accused No.1 or by Smita.
Therefore, within proximity of alleged suicide by
Smita, there was no any positive act attributable
to accused No.1 in the nature of abetment,
instigation or intentional aid so as to attract
the provisions of Section 107 of the I.P. Code and
consequently to convict him for the offence
punishable under Section 306 of I.P. Code. As
already observed, alleged ill-treatment,
harassment or beating which is not believed by the
trial Court, is too remote to connect with the
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alleged incident of suicide by Smita.
9. The Supreme Court in the case of S.S.
Chheena V/s Vijay Kumar Mahajan and another 1, in
para 25 observed that, the abetment involves
mental process of instigating a person or
intentionally aiding a person in doing of a thing.
Without a positive act on the part of the accused
to instigate or aid in committing suicide,
conviction cannot be sustained. The intention of
the legislature and the ratio of the cases decided
by this Court is clear that in order to convict a
person under Section 306 of the I.P. Code there
has to be a clear mens rea to commit the offence.
It also requires an active act or direct act which
led the deceased to commit suicide seeing no
option and that act must have been intended to
push the deceased into such a position that he/she
committed suicide.
1 (2010) 12 SCC 190
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10. At this juncture, it would be useful to
make a reference to the Judgment of the Supreme
Court in the case of Madan Mohan Singh V. State of
Gujarat and another.2 In said case, the deceased
therein was working as driver under the Ex.
Officer i.e. appellant therein. The said driver
allegedly committed suicide due to harassment and
insulting behaviour by the appellant therein. He
left the suicide note alleging therein that, the
appellant therein asked the driver to keep the
keys of the vehicle on the table and not to take
away them. It was further stated that, “I am going
to commit suicide due to his functioning style.
Alone M.M. Singh, D.E.T. Microwave Project is
responsible for my death. I pray humbly to the
officers of the department that you should not
cooperate as human being to defend M.M. Singh has
acted in breach of discipline disregarding the
norms of discipline. I humbly request the Enquiry
Officer that my wife and son may not be harassed.
2 2010 AIR SCW 5101
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My life has been ruined by M.M. Singh.”
. The Supreme Court in the facts of
aforesaid case, while explaining the scope of
Sections 306 and 294 vis-a-vis, the facts of that
case in para 9 held thus:-
“It is absurd to even think that a superior
officer like the appellant would intend to
bring about suicide of his driver and,
therefore, abet the offence. In fact, there
is no nexus between the so-called suicide
(if at all it is one for which also there
is no material on record) and any of the
alleged acts on the part of the appellant.
There is no proximity either. In the
prosecution under Section 306, IPC, much
more material is required. The Courts have
to be extremely careful as the main person
is not available for cross-examination by
the appellant/accused. Unless, therefore,
there is specific allegation and material
of definite nature (not imaginary or
inferential one), it would be hazardous to
ask the appellant/accused to face the
trial. A criminal trial is not exactly a
pleasant experience. The person like the::: Uploaded on – 09/05/2017 12/05/2017 00:11:47 :::
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16appellant in present case who is serving in
a responsible post would certainly suffer
great prejudice, were he to face
prosecution on absurd allegations of
irrelevant nature.”
. In the facts of the present case also,
there is no nexus between so called suicide by
Smita and any of the alleged acts on the part of
the accused Nos.1 and 2. There is no proximity
either.
11. The Supreme Court, in recent Judgment in
the case of Heera Lal and another vs. State of
Rajasthan (Criminal Appeal No.790 of 2017) decided
on 24th April, 2017, in Para 6 to 10 held thus:
“6. Having heard the learned
counsel appearing for the parties and
having gone through the evidence, we
are of the opinion that Section 113A of
the Indian Evidence Act requires three
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17ingredients to be satisfied before it
can be applied i.e. (i) that a woman
has committed suicide, (ii) such
suicide has been committed within a
period of seven years from the date of
her marriage and (iii) the husband or
his relatives who are charged had
subjected her to cruelty.
7. This Court in an illuminating
Judgment in Ramesh Kumar vs. State of
Chhattisgarh (2001) 9 SCC 618 has
stated the law as follows:-
“This provision was introduced by the
Criminal Law (Second) Amendment Act, 1983
with effect from 26-12-1983 to meet a
social demand to resolve difficulty of
proof where helpless married women were
eliminated by being forced to commit
suicide by the husband or in-laws and
incriminating evidence was usually
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18matrimonial home and hence was not
available to anyone outside the occupants
of the house. However, still it cannot be
lost sight of that the presumption is
intended to operate against the accused in
the field of criminal law. Before the
presumption may be raised, the foundation
thereof must exist. A bare reading of
Section 113-A shows that to attract
applicability of Section 113-A, it must be
shown that (i) the woman has committed
suicide, (ii) such suicide has been
committed within a period of seven years
from the date of her marriage, (iii) the
husband or his relatives, who are charged
had subjected her to cruelty. On existence
and availability of the abovesaid
circumstances, the Court may presume that
such suicide had been abetted by her
husband or by such relatives of her
husband. Parliament has chosen to sound a
note of caution. Firstly, the presumption
is not mandatory; it is only permissive as
the employment of expression “may presume”
suggests. Secondly, the existence and
availability of the abovesaid three
circumstances shall not, like a formula,
enable the presumption being drawn; before
the presumption may be drawn the court
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19circumstances of the case”. A consideration
of all the other circumstances of the case
may strengthen the presumption or may
dictate the conscience of the court to
abstain from drawing the presumption. The
expression – “the other circumstances of
the case” used in Section 113-A suggests
the need to reach a cause – and – effect.
Relationship between the cruelty and the
suicide for the purpose of raising a
presumption. Last but not the least, the
presumption is not an irrebuttable one. In
spite of a presumption having been raised
the evidence adduced in defence or the
facts and circumstances otherwise available
on record may destroy the presumption. The
phrase “may presume” used in Section 113-A
is defined in Section 4 of the Evidence
Act, which says – “Whenever it is provided
by this Act the court may presume a fact,
it may either regard such fact as proved,
unless and until it is disproved, or may
call for proof of it.”
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
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20i.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 that there is no link or
intention on the part of the in-laws to
assist the victim to commit suicide.
9. In the absence of this vital link,
the mere fact that there is a finding of
harassment would not lead to the
conclusion that there is “abetment of
suicide”.
10. On the facts, therefore, we
find, especially in view of the fact that
the appellants have been acquitted for the
crime under Section 498 A of the Code,
that abetment of suicide under Section 306
is not made out.”
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12. In the light of discussion herein above,
I am convinced that the findings recorded by the
trial Court are in consonance with the evidence
brought on record by the prosecution. There is no
perversity as such. The view taken by the trial
Court is plausible view. Even if it is assumed for
a moment that, an another view is possible on the
strength of evidence brought on record by the
prosecution, the same is no ground to interfere in
the order of acquittal when plausible view has
been taken by the trial Court.
13. Therefore, in the light of discussion,
herein above, the Appeal filed by the State stands
dismissed.
[S.S. SHINDE, J.]
asb/MAY17
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