Bombay High Court The State Of Maharashtra-vs-Subhash S/O Laxmanrao Chikare on 16 February, 2010
Bench: A.P. Bhangale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO: 24 /2010
The State of Maharashtra
Through the Police Station Officer
Arvi, Dist. Wardha. … APPELLANT v e r s u s
Subhash s/o Laxmanrao Chikare
Aged 49 years,
R/o Sai Nagar, Arvi
Dist. Wardha. …RESPONDENT . Mr S B Ahirkar, APP for appellant
Mr M B Naidu, Adv. For Respondent
———————————————————————————————————- CORAM: A.P.BHANGALE, J.
DATED: 16th February, 2010
ORAL JUDGMENT :
1 By this appeal, the appellant-State challenged the judgment and order delivered on 27th February, 2009 by learned Ad-hoc Additional Sessions Judge -2 Wardha in Sessions Trial No. 179/2007 whereby the accused were acquitted of offence punishable under section 498A, 306 read with section 34 of the Indian Penal Code ( in short “IPC”).
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2 The facts in brief are these: FIR was lodged by Shri Ramchandra Govindrao Tongale (PW 5), aged about 80-years, who is the father of the alleged victim Ujwala. It was reported at Arvi Police Station on 18.7.2007 that his daughter Ujwala was not in good terms with his son-in-law Subhash Laxmanrao Chikare although they nuptially tied way back in 1993. Out of the said marriage, they had two sons, namely Kshitij and Kartik, aged about 12 years and 9 years respectively. It is also alleged that the victim was harrassed by his son- in-law mentally, physically as well as financially, inasmuch as he was not providing essentials of life, such as, clothes etc. to victim Ujwala and her sons. In order to sustain herself and two sons, Ujwala was doing small scale business of pico fall and preparing papad so as to meet the household expenses, as well meet the expenses of school- going children. It is further stated by the first informant that he was helpless as he himself was staying in Home for the Aged and his sons were not maintaining him. According to first informant, his another daughter Meenakshi informed him on 17.7.2007 that Ujwala is not keeping good health. Later, he came to know about untimely and sad demise of Ujwala and her two sons. On the basis of this information, FIR No. 176/2007 was reported at Arvi Police Station, Dist. Wardha for offence punishable under sections 498A, 306 read with section 34 IPC and the wheels of investigation followed. It appears that inquest over dead bodies of Ujwala and her two sons were held. The 3
Investigating Agency also drew spot panchnama and carried out investigation. It is also alleged that chit was seized from the victim. After completion of investigation, the accused who were named in the course of investigation as allegedly responsible for death of victim Ujwala were charge sheeted for offence cited supra, before the JMFC Arvi who committed the case to the Court of Sessions, Wardha on 18 th December, 2007. The charge was framed against as many as seven accused as per Exh. 24 to which they pleaded not guilty and claimed to be tried.
3. The prosecution has led the evidence of as many as 16 witnesses and then closed the evidence. No defence evidence was led on behalf of the accused. After considering the evidence led by the prosecution, by the impugned judgment and order, the learned Judge of the trial Court recorded an order of acquittal, which is under challenge in the present Appeal.
4 Learned APP vehemently criticized the judgment and order passed by the trial Court on the ground that there was perverse approach adopted by the learned trial Judge as the evidence of witnesses, mainly father of the victim as also sister of the victim, was not considered appropriately to believe that the victim Ujwala was subjected to harassment and cruelty by her husband and in-laws which prompted her to commit suicide by consuming poison and also led to terminate the life of her sons by administering poison. Learned APP in 4
support of the appeal submitted that father of the victim who was examined as PW 5 had deposed about the fact that his son-in-law /accused no.1 was not taking care of Ujwala; but was taking care of his younger brother. He also deposed that his deceased daughter had been informing him time and again about some illicit relations between accused and wife of his younger brother and also complained that his son-in-law was not purchasing clothes for children and, therefore, his daughter had started business of pico fall and to prepare Papad and started earning for her maintenance. According to first informant, his another daughter Meenakshi informed him about the death of her daughter Ujwala and two sons on account of the fact that she had consumed and administered poison to both sons. Reference is also made to evidence of PW 6 Meenakshi (sister of the victim) who deposed that the in-laws of Ujwala were not behaving with her properly and were not providing proper food; she used to complain beating at the hands of her husband (accused no.1) as also used to express her desire that if harassment continues unabated and would reach to the peak of intolerance, she would commit suicide. Thus, learned APP submitted that there was sufficient evidence on record in order to hold the accused guilty of offences with which they were charged. He also made reference to the documentary evidence in the form of xerox copies of alleged handwriting of the victim and contended that there was sufficient evidence beyond reasonable doubt 5
to hold the accused guilty for offences with which they were charged.
5. Per contra, learned Advocate for the respondent/accused submitted that there was no infirmity in the judgment of the trial Court, inasmuch as it considered the entire evidence of 16 witnesses and by well-reasoned and comprehensive judgment came to the conclusion that the prosecution failed to establish charge beyond reasonable doubt and acquitted the accused. Learned Advocate for respondent submitted that there is no merit in the submissions advanced on behalf of the appellant- State because even if we read the evidence of father of the victim (PW 5)- Ramchandra and sister of the victim (PW 6 )-Meenakshi, as it is, it can not lead to an irresistible conclusion that offences punishable under sections 498A and 306 IPC are proved beyond reasonable doubt.
6 I have considered the submissions advanced by respective counsel and also gone through the evidence led before the trial Court minutely. The main evidence appears to be that of PW 5 Ramchandra who is father of the alleged victim Ujwala. It does appear from his evidence that the alleged victim had started business of pico-fall and preparing papad etc. in order to sustain herself as well as her children . She had purchased instruments for manufacturing papad and pico fall. This would indicate that although she was dependent upon her husband, her husband must have provided means to start the business. 6
Except for the bald and baseless statement that accused no.1/Respondent had some extra-marital flings with the wife of his younger brother and that accused no.1 was not arranging anything for maintenance of family, this Court do not find total ingredients of offence punishable u/s 306 read with section 498-A IPC. In the evidence of either Ramchandra (PW 5) or Meekanshi (PW 6), it may be noted that Ramchandra himself was helpless, in the twilight of his life running 81 years and is put up with Home for Aged persons. It is his grievance that his own sons are not maintaining him since death of his wife. It also indicates that he could not have any personal knowledge regarding the alleged harassment or cruelty. Except his hearsay knowledge that too from his another daughter Meenakshi, nothing concrete could be obtained from his evidence. Meenakshi was also examined as PW 6. According to her, she had received a telephonic message on 16.7.2007 from Ujwala informing her that she is unable to bear the harassment. On the very next day, she received Phone call from her brother Sunil about death of Ujwala and her both sons on account of consumption of poison. In the course of her cross-examination, material contradiction has been brought in her evidence when she stated about the alleged statement from Ujwala that if harassment is beyond tolerance point, she may do anything to her life. However she could not mention this in her statement to the police. She also admitted in the course of cross- examination that Ujwala possessed hot temper. PW 10 Sunil is the 7
brother of the victim Ujwala. He also alleged that that accused no.1 was harassing physically and mentally Ujwala and that she was complaining about it. He admitted that since last three years his father was residing in Wadnera in a Home for Aged. The evidence of such son who did not take care of his age-old father for his maintenance could not have advanced the prosecution case any further. 7 Rest of the witnesses are about different Panchnamas drawn ; for example PW 1 and 2 are for the spot Panchnama; PW 3 about Inquest Panchanama ; PW 4 about alleged seizure of letter; PW 8 Inquest Panchnama ; PW 9 witness from computer institute where the victim was studying after he marriage; PW 12 Sadhana, friend of victim PW 11 Ganesh, uncle of the victim ; PW 14 maternal uncle of the victim, PW 13 seizure panch and PW 15 and 16 Police witnesses. The evidence of these witnesses appear to have been considered by the learned trial Judge in its right perspective.
8 It is well settled legal position that mere fact that husband had treated wife with cruelty is not enough proof of direct or indirect acts of incitement to suicide. It is necessary to establish that cruelty was meted out to victim who was in fact induced to commit suicide. In other words it is necessary that there must be some evidence that the accused has abeted the deceased to commit suicide. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be liable to be punished. The 8
ingredients of abetment are set out in Section 107 IPC, which reads as under :-
“107: Abetment of a thing : A person abets the doing of a thing, who – first instigates any person to do that thing; or secondly, engages with one or more other person or persons in conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing”.
9 The Honourable Apex Court in the matter of Ramesh Kumar vs. State of Chhatisgarh: (2001) 9 SCC 618 held 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 actual words must be used to that
effect or what constitutes instigation must necessary and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case 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. A word uttered in a fit of anger or emotion without 9
intending the consequences to actually follow cannot be said to be instigation. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and
differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”.
Further, in the matter of Sanju alias Sanjay Singh Sengar vs. State of M.P. : 2002 SCC (Cri) Page 1141, the Honourable Apex Court held that ; Instigating a person to do, held, “instigate” denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite -presence of mens rea is the necessary concomitant for instigation – words uttered in a quarrel or on the spur of moment, such as ” to go and die” cannot be taken to be uttered with mens rea”. 10 In the present case, according to learned APP there was a suicide note; however unfortunately no original documents have been brought on record nor any evidence is led regarding missing of or loss of original evidence in this regard nor the suicide note (Photostat 10
copies) was confronted with material witnesses who were close relatives of the victim so as to bring on record, the evidence about the handwriting of the victim to the conclusive effect. An indiscreet person possessing hot temper may not need instigation or abetment to take drastic decision to end her life.
11 Under these circumstances, considering the well reasoned judgment by the learned trial Judge, more particularly when he did consider the legal position in its proper perspective and since no serious infirmity is found with the view of the learned Trial Judge, no interference is called for. Looking from any angle, no serious infirmity is found in the judgment of the trial Court. The appellate Court would not normally disturb the order of acquittal since there is presumption of innocence and when such presumption is further strengthened and fortified by judgment and order of acquittal. There is no justifiable reason so as to interfere with the impugned judgment and order.
12. In the result, Appeal is dismissed.
JUDGE
sahare
