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The State Of Maharashtra vs Vilas Shivram Bansode And Anr on 6 September, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.46 OF 2018

The State of Maharashtra .. Applicant
Versus
Vilas Shivram Bansode and anr .. Respondents

Mrs.P.P. Shinde, APP for the State.

Mr.Girish B. Badigar for respondent nos.1 and 2.

CORAM: SMT. BHARATI H.DANGRE, J

DATED : 6th SEPTEMBER, 2018

P.C:-

1 By the present application, the State of Maharashtra

has sought leave to Appeal under Section 378 of the Code of

Criminal Procedure. The judgment passed by the Sessions

Judge, Pune in Sessions Case No.337 of 2016 is sought to be

assailed, by which the Sessions Judge has acquitted the accused

persons of the offences punishable under Section 498A, 306

r/w Section 34 of the Indian Penal Code. The case of the

prosecution is that the accused no.1 was married to deceased

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Seema in the year 2011 and that the deceased was subjected to

cruelty on the ground that she had given birth to two

daughters. In support of the case of the prosecution, the

prosecution has examined PW no.1 Parvati Nagesh Gaikwad,

who is the mother of the deceased and one Ganga Nagappa

Shringeri PW no.2, the sister of the deceased. In order to

establish the cruelty and the harassment inflicted to the

deceased, an independent witness PW no.3 who is a neighbor is

also examined. Apart from this, one maternal uncle Shankar

Dhanappa Hasure PW no.6 is examined.

Perusal of the testimony of the near relatives

including that the mother and the sister of the deceased would

reveal that their statements contain bald allegations about the

alleged harassment. It is stated by PW no.1 that at the time of

marriage, one tola of gold was given to the husband, but 1 ½

Tola was not given to Seema. However, there is no statement

made by PW no.1 – Parvati that on account of the not giving of

the said gold ornaments, the deceased was subjected to any ill-

treatment or harassment. PW no.1 has not spoken about any

harassment in relation of demand of dowry but her specific

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statement is that after Seema gave birth to a girl child, the

accused nos.1 and 2 started to taunt Seema on account of

giving birth to a girl child and after two years, Seema delivered

another girl child. This is the only allegation of harassment

that PW no.1 talks about. As far as PW No.2 is concerned, she

had stated that there was harassment due to various reasons.

No specific incidence has been mentioned which would lead to

an inference about harassment and the only allegation is that

since Seema gave birth to two girls, she was subjected to

harassment. The evidence of the independent evidence PW

no.3 who is a neighbor, is also to be noted and she had stated

that she had come to know from the neighborhood sources that

Seema was subjected to harassment. Similarly, PW no.6 also

does not support the case of the prosecution in specific and in

support of the charge of Section 498A and 306 of the IPC.

None of the witnesses have given any particulars of harassment.

On the other hand, PW no.1 herself has admitted in the cross-

examination that the deceased use to frequently visit her

parental house and that was always with the consent of the

accused. The prosecution witness no.5, a Medical Officer who

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conducted the post mortem has given the cause of death as

“asphyxia due to hanging”.

Learned Sessions Court has adduced the entire

evidence brought on record by the prosecution. He records a

clear finding that merely because a woman has committed

suicide, it would not lead to an inference that the accused

persons have instigated her to commit suicide and he has

rightly observed that for bringing a charge under Section 306

of the IPC, something more has to be brought on record and a

nexus has to be shown between the cruelty inflicted and the act

of committing suicide. Bald allegations of ill-treatment or the

allegations without any substratum cannot be said to be

sufficient for driving a person to commit suicide and in the

absence of any nexus being demonstrated, the said charge

cannot be proved.

2 By now, it is settled position of law that in order to

establish a charge under Section 306 of the IPC, it is necessary

for the prosecution to atleast prima facie establish that the

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accused had any intention to aid or instigate or abate the

deceased to commit suicide and in the absence of availability of

such material, accused cannot be convicted under Section 306

of the IPC. The law as to what are the requirements to

constitute offence punishable under Section 306 of the IPC, is

not more res integra in a catena of cases including the judgment

of the Hon’ble Apex Court in Sanju @ Sanjay Singh Sengar’s

Vs State of Madhya Pradesh,1 considered the earlier judgment

and observed thus :

“9. In Swamy Prahaladdas v. State of M.P. Anr., 1995
Supp. (3) SCC 438, the appellant was charged for an
offence under Section 306 I.P.C. on the ground that the
appellant during the quarrel is said to have remarked
the deceased ‘to go and die’ . This Court was of the view
that mere words uttered by the accused to the deceased
‘to go and die’ were not even prima facie enough to
instigate the deceased to commit suicide.

10. In Mahendra Singh v. State of M.P., 1995 Supp.(3)
SCC 731, the appellant was charged for an offence under
Section 306 I.P.C basically based upon the dying
declaration of the deceased, which reads as under:

“My mother-in-law and husband and sister-in-law
(husband’s elder brother’s wife) harassed me. They beat
me and abused me. My husband Mahendra wants to
marry a second time. He has illicit connections with my
sister-in-law. Because of those reasons and being
harassed I want to die by burning.”

1 2002 Cri.L.J. 2796

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11. This Court, considering the definition of ‘abetment’
under Section 107 I.P.C., found that the charge and
conviction of the appellant for an offence under Section
306 is not sustainable merely on the allegation of
harassment to the deceased. This Court further held that
neither of the ingredients of abetment are attracted on
the statement of the deceased.

As far as charge under Section 498A of the IPC is

concerned, the section itself defines and explains the term

“Cruelty” and it is only if the conduct of the accused fall within

clauses (a) and (b) of the Explanation appended to Section

498A, then the ingredients of 498A can be said to be satisfied.

This would cover any willful conduct of such a nature as is

likely to drive a woman to commit suicide or to cause grave

injury or danger to life, limb or health (whether physical or

mental) of the woman or the harassment of women with a view

to coarse her or any person related to her to meet any unlawful

demand of dowry. These ingredients of the said section are not

established by the prosecution by bringing on record any

evidence to that effect.

3 The findings recorded by the Sessions Judge Pune,

therefore, cannot be said to be perverse or illegal and are rather

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borne from the record and evidence brought on record by the

prosecution in support of its case. The learned Sessions Judge

has rightly acquitted the accused nos.1 and 2 of the offences

punishable under Section 498A and 306 of the IPC r/w Section

34 of the IPC. The said judgment do not suffer from any

illegality or perversity and hence calls for no interference.

Leave to Appeal refused.

Application is dismissed.

(SMT. BHARATI H. DANGRE, J.)
Digitally signed
by Manali
Manali Prasanna Tilak
Prasanna Date:
2018.09.07
Tilak 16:56:20
+0530

Tilak

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